McDonald and Repatriation Commission (Veterans' entitlements)

[2017] AATA 1636

McDonald and Repatriation Commission (Veterans' entitlements) [2017] AATA 1636 (6 October 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/3871

Re:Suzanne McDonald

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Dr Graham Maynard, Member

Date:6 October 2017

Place:Brisbane

We affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS - veteran deceased – cause of death prostate cancer – claim for pension by widow – relevant Statement of Principles – standard of proof ss 120(1), 120(3) and 120A of the Act – whether death related to operational service – whether there is a reasonable hypothesis supported by the relevant SoP – Deledio steps – factors of the SoP that as a minimum must exist are not satisfied – reasonable hypothesis not raised connecting the death of veteran with his service – widow not entitled to pension - decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 13, 14, 120, 120A, 196

CASES

Repatriation Commission v Deledio (1998) 49 ALD 193
Kattenberg v Repatriation Commission [2002] FCA 412

SECONDARY MATERIALS

Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 0f 2014
Statement of Principles concerning Malignant Neoplasm of the Prostate No. 54 0f 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

6 October 2017

BACKGROUND

1. This is an application to review the decision of the Veteran’s Review Board (“VRB”) to affirm the original decision to deny the applicant a war widow’s pension upon the death of her husband, Wayne Andrew McDonald. 

2. The applicant claims that her husband Mr McDonald passed away on 23 April 2014 aged 70 years due to metastatic prostate cancer which was related to his war service.

   SERVICE

3. Mr McDonald served as an “Assistant Instructor Physical Training” in the Australian Army from 4 September 1961 to 3 September 1967.

4. Mr McDonald’s records of service show that he had operational service on the HMAS Sydney from 22 April 1966 to 18 May 1966, a period of 27 days.

5. The voyages of HMAS Sydney for April and May 1966 are recorded in the Report of Proceedings. HMAS Sydney had a journey of 27 days departing Sydney on 22 April 1966 and returning to Sydney on 18 May 1966.[1]

   [1] See attachments to the Respondent’s Statement of Facts, Issues and Contentions

   LEGAL FRAMEWORK

6. Section 6C(1) of the Veterans’ Entitlements Act 1986 (“the Act”) provides that a member, or a member of a unit, of the Defence Force, allotted for duty in an operational area, who has rendered full-time continuous service in that operational area is taken to have rendered operational service. The terms “operational area” and “allotted for duty” are defined in section 5B of the Act and are determined according to Schedule 2 of the Act in conjunction with a relevant written instrument issued under section 5B(2) of the Act[2].

   [2] Instrument of Allotment of Persons under the Veteran’s Entitlements Act 1986 dated 10 December 2010, commencing on 1 January 2001

7. Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible war service.

8. Section 8 of the Act provides for when the death of a veteran is taken to be war-caused. Relevantly, this provision applies where, under section 8(1)(b) of the Act, “the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”.

9. Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension by way of compensation to the veteran’s dependants.

10. Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act provides that the term “dependant” is defined to include a “widow”.

11. Section 5E(1) of the Act defines a “war widow” to include a woman who was legally married to a veteran immediately before his death. It is not in contention that the applicant was a dependant of the veteran.

12. As the veteran has performed operational service, the determination of whether his death was war-caused is to be made by applying the standard of proof outlined in subsections 120(1), 120(3) and 120A of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:

    (i)…in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

13. Subsection 120(3) of the Act also provides:

    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a)that the injury was a war-caused injury or a defence-caused injury;

    (b)that the disease was a war-caused disease or a defence-caused disease; or

    (c)that the death was war-caused or defence-caused;

    as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

14. Section 120A of the Act sets out how a hypothesis must be assessed:

    120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

    (1)   This section applies to any of the following claims made on or after 1 June 1994:

    (a)a claim under Part II that relates to the operational service rendered by a veteran…

    …

    (3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

    (a)a Statement of Principles determined under subsection 196B(2) or (11); or

    …

    that upholds the hypothesis.

    STATEMENT OF PRINCIPLES

15. Section 196A of the Act provides for the establishment of the RMA which is an independent medical body that issues Statements of Principles (“SoP”) based on sound medical-scientific evidence. The SoP sets out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

16. Section 196B(2) of the Act provides that if the RMA:

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a) operational service rendered by veterans; or

    the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d) the factors that must as a minimum exist; and

    (e) which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

17. A SoP is binding on the respondent and various review bodies, including this Tribunal.

18. There is a Statement of Principles (SoP) relevant to this matter entitled Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 0f 2014.

19. The applicable part of the SoP is clause 6(b)(iii) which states:

    6. 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:

    …

    (b) being:

    (iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters;

    for a cumulative period of at least 30 days, at least five years, before the clinical onset of malignant neoplasm of the prostate.

20. Clause 9 of the SoP defines the term estuarine Vietnamese waters:

    9.         For the purposes of this Statement of Principles:

    "estuarine Vietnamese waters" means at least one of the waterways or harbours in the relevant areas described in Items 4 and 8 of Schedule 2 of the Veterans’ Entitlements Act 1986;

    EVIDENCE

21. Mr McDonald was diagnosed with prostate cancer in 2012.[3]

    [3] T-documents, T5.2 at p. 38

22. The records show that Mr McDonald was assigned to the HMAS Sydney for a period of 27 days in 1966. The Report of Proceedings records that the HMAS Sydney disembarked from Sydney on 22 April 1966 and the key dates for the passage of the HMAS Sydney are as follows:

    (a)On 1 May 1966 the ship transited Basilan Strait and on the morning of 2 May 1966 the ship transited Balabac Strait;

    (b)HMAS Sydney continued onto Cap Saint-Jacques, anchoring off Vung Point, on 4 May 1966; and

    (c)HMAS Sydney then sailed on 6 May 1966 to depart the Vietnamese Coast. The ship transited Balabac Strait the morning of 8 May 1966 and Basilan Strait in the evening of 8 May 1966.

23. Statements have been submitted from soldiers who had similar postings to Mr McDonald. Mr Noel Jarvis was assigned to HMAS Sydney during February and April 1971 and Mr Paul Forsyth was assigned to HMAS Sydney from 12 February 1971 and disembarked in Sydney on 10 March 1971.

24. Mr Jarvis cannot recall exact dates but states: “From my memory I had 2 days, maybe 3 days to settle in on the Sydney to acclimate [sic] to where all the equipment & working spaces of the ship.”[4]

    [4] See T-documents, T10 at p. 53

25. Mr Forsyth submitted a statement where he outlines his own experience. He flew to Adelaide on 9 February 1971 and joined the HMAS Sydney on 10 February 1971.  The ship departed on 12 February 1971.  He states that he disembarked in Sydney on 10 March 1971.  Mr Forsyth makes a comment that “It was protocol that the Ship’s Army Staff disembarked well after the homecoming troops. This could mean that the Ship’s Army Staff disembarked the following day.”[5] 

    [5] See T-documents, T11 at pp. 54-55

26. There is a submission by the applicant to the VRB dated 5 May 2016 on Returned and Services League (“RSL”) Letterhead where she states[6]:

    “Mr McDonald had 27 days operational service, we are able to prove that PTI’s did a minimum of three days undertaking familiarisation”.  

    [6] T-documents, T12 at pp. 56-57

27. There is a statement from Dr Roderick Bain OAM[7] who is a medical advisor to the RSL National Board. While the statement of Dr Bain does not provide evidence reflecting directly on Mr McDonald’s circumstances in his 1966 voyage between Australia and South Vietnam, Dr Bain gave his opinion that army personnel needed to undergo ‘familiarisation’ prior to a ship’s departure.  He also offers the opinion that time would be required on the ship after an official posting.  

    [7] T-documents, T8 at pp. 50-51

    CONSIDERATION

28. The applicant is eligible for a pension if it can be shown that Mr McDonald’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP.[8] This requires consideration of the four steps outlined in the case of Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 (“Deledio”).

    First Deledio step

    [8] See Veteran’s Entitlement Act 1986, section 120A

29. We must consider firstly all the material which is before us and determine whether this material points to a hypothesis connecting the death of Mr McDonald with the operational service rendered by him.

30. The applicant submits that the hypothesis is that Mr McDonald’s service led to the development of his prostate cancer because he spent at least 30 days on the HMAS Sydney, including a familiarisation period prior to departure from Sydney. 

31. We consider that the material points to a hypothesis connecting Mr McDonald’s condition to his relevant service.

    Second Deledio step

32. We must then consider whether there is a relevant SoP in force. In assessing whether a certain SoP applies, the Tribunal must be satisfied as to the ‘kind of death’ met by the veteran: see section 120A(4)(c) of the Act.

33. The death certificate for Mr McDonald outlines that the cause of death was metastatic prostate cancer.[9] Therefore it is apparent that the ‘kind of death’ relevant for the applicant is malignant neoplasm of the prostate.

    [9] T-documents, T5.2 at p. 38

34. It follows, and the parties agree, that the relevant SoP is the Statement of Principles concerning Malignant Neoplasm of the Prostate No. 53 0f 2014 (“the relevant SoP”).

    Third Deledio Step

35. The third requirement in the Deledio process is an assessment of whether the hypothesis is reasonable by way of being supported by the relevant SoP.

36. Clause 6(b) of the SoP sets out the minimum 30 day exposure requirement in order for a veteran’s death from malignant neoplasm of the prostate to be connected to their consumption of potable water.

37. We must determine whether the material supports a reasonable hypothesis.

38. The applicant submits that the veteran meets the minimum 30 day requirement of the relevant SoP because the “contaminated water was carried in the ship for the whole time” (from port to port between Sydney and Vietnam) and that while the veteran’s service records indicate the voyage was 27 days, the veteran would have been subject to a familiarisation period on the HMAS Sydney of at least 3 days, which therefore increases his service period on the HMAS Sydney to at least 30 days.

39. In support of the applicant’s contention, the applicant submits the statements of Mr Jarvis and Mr Forsyth. While these statements relate the experiences of these persons, neither of the statements confirm the experiences of Mr McDonald who was on board the HMAS Sydney in 1966.

40. Dr Bain addresses the increased water intake required by the personnel that were Physical Training Instructors.  The relevant SoP mentions a minimum duration of water intake however it does not reference the level or volume of water intake. Dr Bain remarked “To confine [the veteran’s] actual time on board HMAS Sydney to the fixed dates… would be unrealistic and impractical”. Dr Bain gives his opinion on the need for army personnel to undergo familiarisation prior to a ship’s departure and that time would be required after an official posting. However, he is not able to give evidence which refers to the circumstances of Mr McDonald.

41. The applicant submits that the HMAS Sydney completed 24 trips to Vietnam between 1965 and 1972 and that the contaminated water was carried in the ship for that whole time, however the applicant does not submit any evidence as to the extent of the ‘contamination’ of the water for the entire voyage or how the water supplied to personnel on board the HMAS Sydney was still the potable water distilled from the Vietnamese estuaries despite the ship transiting through other water. There is no other material which indicates whether or not the personnel on the HMAS Sydney would have been drinking potable water while transiting other international waters or in an Australian port.

42. The respondent submits that the proper interpretation of clause 6(b)(iii) of the SoP is that in order to meet the requirements, a veteran must be on board a vessel, consuming potable water supplied on that vessel and consuming potable water when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, all, together, for a cumulative period of at least 30 days. The respondent contends that the material does not point to the veteran being on board HMAS Sydney for a cumulative period of at least 30 days, let alone consuming water of the specific type required by the SoP for that same period. Rather, the respondent submits that the material points to the veteran consuming potable water produced from distilled estuarine waters only when the HMAS Sydney was in the Cap Saint-Jaques harbour or offshore for three days between 4 and 6 May 1966.

43. Further the respondent submits that there is no material pointing to HMAS Sydney’s water supply being contaminated or mixed and that even if this were to be accepted, it is not relevant because the requirement for exposure over a cumulative period of 30 days is not met.

44. The respondent submitted that the reference to 30 days in clause 6(b)(iii) of the SoP means consumption while the ship underwent a distillation process during the time when the ship was in estuarine Vietnamese waters. In the case of Mr McDonald’s voyage, the time spent in Vietnamese waters appears to be a maximum of six or seven days while unloading cargo[10].

    [10] Ships Report of Proceedings – HMAS Sydney 1966

45. In Kattenberg v Repatriation Commission [2002] FCA 412 at [8], Emmett J explained:

    An SoP must set out the factors that must, as a minimum, exist, and which of those factors “must be related to service rendered by a person”, before it can be said that a reasonable hypothesis has been raised connecting a disease of that kind with the circumstances of service.

46. What is important is the stipulation of the RMA in clause 4 of the SoP that malignant neoplasm of the prostate can be related to relevant service if ‘as a minimum’ the ‘water supply’ to a vessel referred to in clause 6(b)(iii) has been supplied for a cumulative period of 30 days from ‘estuarine Vietnamese waters’.

47. The material before us points to the water supply to the vessel on which the veteran was located being produced by evaporative distillation of ‘estuarine Vietnamese waters’ for a cumulative period of seven days at the most and not 30 days. The expression ‘estuarine Vietnamese waters’ is defined by clause 9 of the SoP as being at least one of the waterways or harbours described in Items 2 and 8 of Schedule 2 of the Act.

48. The SoP does not provide that the cumulative period includes a period when the ‘water supply’ on a vessel has been produced by the evaporative distillation of waters other than estuarine Vietnamese waters or the evaporative distillation of estuarine Vietnamese waters that have been mixed with other waters.  The template of the SoP is not satisfied. Even if the period that Mr McDonald was on the voyage were included, he would not have been on the ship for the requisite 30 days.

49. As ‘the factors that must as a minimum exist’ (see section 196B(2) of the Act) which are provided for in the SoP have not been satisfied, a reasonable hypothesis has not been raised connecting the death of Mr McDonald with his service. The claim of the applicant cannot therefore succeed.

50. As a matter of completeness, we should mention that the ‘material’, to use the terminology employed in Deledio, does not raise a hypothesis in respect to other factors in clause 6 of the SoP. Nor does the material satisfy on the balance of probabilities the factors in clause 6 of the Statement of Principles concerning Malignant Neoplasm of the Prostate, Instrument Number 54 of 2014, which relates to defence service.

    CONCLUSION

51. The decision under review is affirmed.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 6 October 2017

Date(s) of hearing:	On the papers
Advocate for the Applicant:	Vietnam Veteran's Association Australia Sunshine Coast
Solicitors for the Respondent:	Australian Government Solicitor