MacKenzie and Repatriation Commission (Veterans' entitlements)

[2018] AATA 1374

MacKenzie and Repatriation Commission (Veterans' entitlements) [2018] AATA 1374 (25 May 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2015/0117
VETERANS' APPEALS DIVISION  )

Re: Alison MacKenzie
Applicant

And: Repatriation Commission
Respondent

DIRECTION

TRIBUNAL:  Senior Member M J McGrowdie

DATE OF CORRIGENDUM:   26 June 2018

PLACE:            Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), that the text of the decision in this application is to be altered such that the reference to:

1. The determination on page 1 of the decision is amended to read:

The determination of the Veterans’ Review Board dated 21 November 2014 is set aside and instead substituted for a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement 1986, the date of effect of the decision is 12 September 2013, with liberty to apply.

2. The typographical error in paragraph 10 of the decision is corrected, such that the first sentence is amended to read, “In 1985, Mr Mackenzie decreased his consumption of alcohol”.

3. The typographical error in paragraph 13 of the decision is corrected such that the first sentence is amended to read “Despite Mr Mackenzie’s information, his daughters’ at the hearing suggested that based on their frequent observations of Mr Mackenzie, his drinking continued at a high level.”

4. The words “The doctor” in paragraph 25 at sentence 2 of the decision are deleted.

5. The text in paragraph 31 of the decision is amended to read:

The determination of the Veterans’ Review Board dated 21 November 2014 is set aside and instead substituted for a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement 1986, the date of effect of the decision is 12 September 2013.  

6. The dates of the hearing on page 7 are replaced with “4 May 2017 and 5 May 2017”.

.........................[SGD]..........................................

Senior Member M J McGrowdie

NOTE: Pursuant to liberty granted for the parties to apply, the parties have submitted that the more appropriate date for commencement of the Order is 12 September 2013, which is the day after the veteran’s death on 11 September 2013. Accordingly, the date
12 September 2013 is substituted for the date appearing in the decision as the date of effect of the decision.

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2015/0117

Re:Alison MacKenzie

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:25 May 2018

Place:Sydney

The determination of the Veterans’ Review Board dated 21 November 2014 is set aside and instead substituted for a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement 1986, the date of effect of the decision is 7 November 2013.

............................[SGD]............................................

Senior Member M J McGrowdie

CATCHWORDS

VETERANS’ AFFAIRS – veteran deceased – claim for pension by widow - whether disease caused by operational service – clinical onset of disease – malignant neoplasm of the prostate – relevant Statement of Principles – alcohol consumption connecting to death from malignant neoplasm of the prostate – reasonable hypothesis – decision set aside and substituted – applicant entitled to widow’s pension

LEGISLATION

Veterans Entitlement Act 1986 (Cth) ss 20, 120, 196

CASES

Lees v Repatriation Commission [2002] FCAFC 398

SECONDARY MATERIALS

Statement of Principles concerning Malignant Neoplasm of the Prostate (No. 53 of 2014)

REASONS FOR DECISION

Senior Member M J McGrowdie

25 May 2018

INTRODUCTION

1. Mrs Alison MacKenzie (the Applicant) is the widow of Second World War Veteran Cecil McKenzie (Mr MacKenzie) who was born in May 1918.

2. Mr McKenzie served in the Australian Air Force.  He flew low flying aircraft around New Guinea and at least on one occasion was shot down and was picked up by local native inhabitants.  There is no issue that such events were traumatic.  Both his daughters gave evidence about what they had learned of his experiences and strongly suggested that Mr Mackenzie suffered lingering distress.

3. Mr Mackenzie took to alcohol consequent to his military engagements and this habit continued for many years.  He died of prostate cancer in a nursing home on 11 September 2013 aged 95 years.

   CLINICAL ONSET

4. The issue is whether a service induced alcohol consumption materially contributed to the development of his prostate cancer and subsequent death.  That is, whether he died as a result of wartime service.  The fact that alcohol consumption can materially contribute to the development of prostate cancer is not in dispute,  but the development is dependent on the quantity of alcohol consumed over a specific period of time.  That consumption has to be of at least a specific quantity in any block of 10 years within a period of 20 years before the clinical onset of the cancer.

5. “Clinical onset” is not defined in the relevant legislation but I take it to mean, for present practical purposes, when the disease first manifested itself.

6. Clinical onset was the subject of much debate in the present case.  Mr Mackenzie had PSA blood tests taken in the 1990’s which tests can flag prostate cancer if levels are elevated.

7. Such a test was completed in September 1994 and produced a result of 6. This result could be regarded as a little high, but still ‘normal’ for the veteran’s age.  The level as at August 1995 was 8.3 and elevated to outside the normal range. By 1998 it had risen to 12.1 and by late 1999, to 13.

8. Dr John Francis Stewart, Oncologist, provided evidence for the Applicant’s case. In his report dated 28 April 2017, he states in relation to the prostate cancer, that: “As the value was 12.1ng/ml in 1998, the velocity of change would mean that it developed in the period (say 1995) rather than later”.

9. However, it is probably only with the benefit of hindsight that the cancer could be said to have been present in 1994 or 1995.

10. In 1985, the Mr Mackenzie decreased his consumption of alcohol.  This information comes from an Alcohol Questionnaire completed by Mr Mackenzie on 7 October 2011 as part of a claim for pension or medical treatment.

11. In the Questionnaire document, Mr Mackenzie indicated that in and from 1985, due to ill health and medical advice, he reduced his consumption to 1-2 standard drinks per day, down from 8-10 standard drinks per day plus some binge drinking since 1945.

12. Drinking 8-10 standard drinks per day equates to 10 grams of alcohol multiplied by the number of standard drinks.  If the number of standard drinks is 10 then this would be 100g of alcohol per day or 700g per week.

13. Despite the Mr Mackenzie’s  information, his daughters’ evidence at the hearing suggested that based on their frequent observations of Mr Mackenzie, his drinking continued at a high level. This often included beer at lunch, large whiskies, and large quantities of wine with dinner.  Their evidence suggests that each drink that the veteran consumed was somewhat greater than the standard drink.  Also, their evidence was that he would  have a full glass of wine and large whiskies with 50% water.

14. It is difficult, however, to depart from a declaration made by Mr Mackenzie  in 1985 that he was consuming only 1-2 standard drinks.  Two standard drinks would be 20g per day or 140g per week.

15. Per section 196B(14)(d) of the Veterans Entitlement Act 1986 (the Act), a factor causing or contributing to death is related to service if “it was contributed to in a material degree by, or was aggravated by, that service”. 

16. In respect of the question whether the cause of death is war caused, the standard of proof is to be found in section 120 of the Act which applies to war-caused incapacity provided that there is a “reasonable hypothesis” with war service which is not disputed beyond reasonable doubt.

17. Here it is suggested that the stressors of war led to excessive drinking which was a fact in the development of a malignant neoplasm of the prostate, resulting in Mr MacKenzie’s death.

18. I am satisfied that the veteran’s drinking ‘problem’ was as a consequence of his war service.

19. The statutory instrument made by the Repatriation Medical Authority, “Statement of Principles concerning Malignant Neoplasm of the Prostate” (No. 53 of 2014) (“the Instrument”) provides that death from malignant neoplasm of the prostate can be related to service so long as a factor set out in the instrument is related to the veteran’s service. The Instrument states the following:

    The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:

    ….

    (d)Drinking at least 200kilograms of alcohol within any ten year period within the 20 years before the clinical onset of malignant neoplasm of the prostate;

20. Accordingly, if clinical onset was to coincide with the abnormal PSA reading in August 1998 then the 20 year period commences in August 1978.  The evidence before the Tribunal was that there was heavy drinking between August 1978 to August 1985, a period of seven years.  By arithmetic, the veteran probably consumed in excess of 33kg per year for 7 years, a total 231 kilograms for that period, certainly in excess of 200 kilograms.  Added to this, there is the more understated drinking between 1985 and 1998.

21. The period is not limited to the period of reduced drinking from 1985.  It is not by reference to this level alone that the ten year period is calculated.  It is rather the whole of the ten year period, including the seven years of very heavy drinking from 1978 to 1985.  It can be any ten year period, not just the last period of ten years before clinical onset.  If the period of ten years only dated back from a clinical onset in 2003 then there would only be a moderate intake of alcohol. If it dated back from a clinical onset in 1998 then there would be significant consumption of alcohol over the previous 10 year period notwithstanding a possible drop from 1985.

22. It was not, according to the Respondent, until 2003 that the cancer was actually diagnosed and Mr MacKenzie was treated with Zolandex implants.  Before this however, there were increasing PSA levels.  If 2003 was the operative date then there would not have been the required level of drinking.  If it was in 1998 or 1999 then there would likely be the required level of drinking.

23. Professor Richard Fox, Oncologist, was called to give evidence for the Respondent.  He noted that a rise in PSA was detected in the late 1990’s and that Mr MacKenzie was experiencing symptoms by late 1998 and early 1999.

24. Professor Fox did his calculations of alcohol consumption for the ten year period immediately prior to 2003 which, based on Mr MacKenzie’s Questionnaire, came in well under the required amount.  According to Professor Fox, diagnosis would have coincided with the treatment in 2003.  Nonetheless, Professor Fox did acknowledge that earlier PSA readings were elevated.

25. Dr Plummer, the Mr Mackenzie’s general practitioner, gave evidence by telephone. The  doctor 

    ISSUES

26. The issues in the present case are the validity of Applicant’s hypothesis and the associated issue of what the date of ‘clinical onset’ is.

    CONSIDERATION

27. ‘Clinical onset’ was discussed in detail in Lees v Repatriation Commission [2002] FCAFC 398. The Court indicated that it is not sufficient to later identify when a process commenced, but rather identifying when the process could be clinically identified. To my mind, this was when the significant rise occurred in PSA testing in August 1998 and that this is the appropriate date for the purposes for determining the clinical onset of the cancer.

28. Accordingly, the 20 year period commenced in August 1978. Any 10 year period in the larger period can also commence in 1978 and go to August 1988. In that period there is approximately 7 years of heavy drinking and 3 years of lesser drinking. In this period of 10 years there is likely to have been consumption in excess of the required amount in accordance with the statement of principles.

29. It is my conclusion that Mr Mackenzie’s drinking followed from his war time experiences, and I conclude that the veteran’s death was war-caused in that the hypothesis is made out. That is, that war experiences led to excessive drinking, the level of drinking was a material factor in the veteran developing prostate cancer and that prostate cancer was a cause of death. 

30. Accordingly the Applicant, being the widow of Mr Mackenzie, is entitled to benefits.

    DECISION

31. The determination of the Veterans’ Review Board dated 21 November 2014 is set aside and instead substituted for a decision that the death of the veteran was war-caused and that the applicant is entitled to a widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement 1986, the date of effect of the decision is 7 November 2013.  

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member McGrowdie

..................................[SGD]......................................

Associate

Dated: 25 May 2018

Date(s) of hearing:	4 May 2018 and 5 May 2018
Counsel for the Applicant:	Tim Saunders
Solicitors for the Applicant:	Kemp & Co Lawyers
Solicitors for the Respondent:	Emily Baggett - Moray & Agnew Lawyers