McGibbon and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 745

McGibbon and Repatriation Commission (Veterans’ entitlements) [2015] AATA 745 (24 September 2015)

Division	VETERANS' APPEALS DIVISION
File Number	2015/0366
Re	Ivy McGibbon
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member
Date	24 September 2015
Place	Sydney

The Tribunal affirms the decision under review.

...........................[sgd].............................................

Ms G Ettinger, Senior Member

CATCHWORDS

Veteran’s pension – widow of the Veteran is the Applicant at the Tribunal seeking review of a decision of the VRB which denied the widow’s pension on the basis that the Veteran’s death from pancreatic cancer was not war-caused – smoking/drinking claim – temporal claim established, but no causal connection to service - decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 ss 8,13, 120, 120A

CASES

Collins v Repatriation Commission (2009) 258 ALR 204
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law (1980) 47 FLR 57

SECONDARY MATERIALS

Statement of Principles concerning acute pancreatitis No. 85 of 2011

Statement of Principles concerning chronic pancreatitis No. 104 of 2011
Statement of Principles concerning malignant neoplasm of the pancreas No.73 of 2013

REASONS FOR DECISION

Ms G Ettinger, Senior Member

24 September 2015

SUMMARY

1. The matter before the Tribunal was the application of Mrs Ivy June McGibbon for review of a decision of the Veterans Review Board which held that her late husband, Mr Raymond McGibbon’s death from pancreatic cancer in 2008 was not war-caused.

2. Mrs McGibbon, the Applicant, who is 85 years old, gave evidence by telephone, assisted by Mr D Rhymer, OAM, JP, an advocate from the Dapto RSL sub-branch. The Repatriation Commission was represented by Mr K Rudge.

3. Mrs McGibbon’s argument was that her husband commenced smoking and drinking for mateship during his operational service with the Australian Army between March 1942 and August 1946. Her evidence was that those habits endured into his later life, although he ceased smoking in 1960. According to her, the drinking caused her husband’s severe stomach pain, which may have been pancreatitis. I noted however, that there was no formal diagnosis of pancreatitis.

4. I have taken into consideration the evidence, legislation and relevant Statements of Principle (SOPs) in coming to the decision that Mr McGibbon’s death from pancreatic cancer was not war-caused. Mrs McGibbon cannot therefore succeed in her claim. My reasons follow.

   ISSUES BEFORE THE TRIBUNAL

5. The Tribunal has to decide whether Mr McGibbon’s death was war-caused pursuant to section 8(1) of the Veterans’ Entitlements Act 1986 (the Act).

6. This involves a decision regarding the kind of death pursuant to the standard of proof in section 120(4) of the Act, and a consideration of whether there is a reasonable hypothesis connecting the death of the Veteran with his war service (section 120 of the Act).

   LEGISLATIVE ENVIRONMENT

7. The relevant legislation is the Veterans’ Entitlements Act 1986, in particular sections 8(1), 13, 120(4), and section 120.

8. Pursuant to section 13 of the Act, Mrs McGibbon, being the wife and dependent of the deceased Veteran, is eligible for payment of a pension if his death was war-caused.

9. The death of a veteran shall be taken to have been war-caused within the meaning of section 8(1) of the Act, if the death of the veteran arose out of, or was attributable to, eligible war service (section 8(1)(b)) or the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his … having rendered eligible war service …  (section 8(1)(d)).

10. The Respondent, and the Tribunal standing in his shoes, is obliged to determine that the death of a veteran was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (section 120(1) of the Act).  The decision maker will reach that conclusion if a reasonable hypothesis has not been raised connecting death with service (section 120(3)).

11. Section 120A(3) of the Act provides that a hypothesis connecting the death of a veteran with service will only be reasonable if there is in force a Statement of Principles (SoP) determined pursuant to section 196B(2) or (11) that upholds the hypothesis.

12. When considering the meaning of death arising of out or being attributable to service in section 8(1)(b) of the Act, I noted that the Full Court in Repatriation Commission v Law (1980) 47 FLR 57 considered the meaning of those words in the now repealed section 101(1)(b) of the Repatriation Act 1920. The Court said that arising out of, requires a consequential relationship of the incapacity or death with the service out of which it is said to arise. However, something less proximate than caused by or results from, will suffice, provided that it is not fanciful. When considering the words is attributable to, the Court in Law said:

    It seems clear that the expression “attributable to” in each case involves an element of causation.  The cause need not be the sole or dominant cause: it is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause to the incapacity or death in respect of which the claim is made.

    EVIDENCE AND CONSIDERATION

13. Mrs McGibbon gave evidence before the Tribunal as well as providing written correspondence and comment upon the Respondent’s documents. I took into evidence letters she wrote to Members of the Veterans’ Review Board (the VRB), in 2014, and a letter she wrote to this Tribunal in March 2015, as well as what appeared to be one page of a letter to Dr Ulvi Budak from the VRB.  I also had before me the section 37 Documents prepared by the Respondent.

14. Mrs McGibbon’s evidence was that her husband did not smoke or drink before the War, but started doing so then, to be part of the mob. She said that after discharge, he could not settle, and joined the Merchant Navy for two years, which is when she met him. She told him that she would marry him if he got himself a shore job, so he joined the power company at Port Kembla, and then moved to the County Council. Mrs McGibbon told me that her husband stopped smoking in 1960.

15. Mrs McGibbon said that her husband had severe abdominal pain for approximately two years before the diagnosis of pancreatic cancer, and relieved it by taking Mylanta, but would not go to the doctor. She said that when he finally went to the doctor and was referred to Dr Budak, (a surgeon described on his letterhead as Upper Gastrointestinal, Hepatobiliary & Laparoscopic Surgeon, Endoscopist), it was too late.

    APPLICATION OF THE LAW

    Kind of death

16. I noted that Mr McGibbon was medically examined both on enlistment and on discharge, and found to be free of any disabilities, including wounds, injuries or disease.

17. Mrs McGibbon said that her husband had been suffering abdominal pain for a long time, and that it was relieved by taking sips of Mylanta. She said that he refused to go to the doctor, and by the time he did, in 2008, he was referred to Dr Budak. Dr Budak noted that Mr McGibbon was suffering prostate cancer diagnosed in 1995, and was being treated for melanoma excised from his back five years prior. Dr Budak stated that he did not obtain any history of pancreatitis. He said however, that it was possible Mr McGibbon may have had attacks of abdominal pain which may have been due to attacks of pancreatitis without proper diagnosis.

18. Mr McGibbon died on 30 October 2008. His death certificate indicates the cause of death  as:

    (i)Carcinoma pancreas (head), 12 months

    (ii)Carcinoma prostate, 13 years

19. The Full Court of the Federal Court in Collinsv Repatriation Commission (2009) 258 ALR 204 decided that the kind of death for the purpose of s 120A(2) and (4) of the Act refers to the medical cause or causes of death. The kind of death (or the cause of death) is a question of fact based on the medical evidence, and is to be determined on the balance of probabilities (section 120(4) of the Act). When the cause of death is identified, the decision-maker must then determine whether the death was war-caused in accordance with the principles set out in Repatriation Commission v Deledio (1998) 83 FCR 82. Therefore, an enquiry into the kind of death is made independently of s 120, s 120A or any SoP.  A determination about the medical cause or causes of death is anterior to, and unrelated to, whether the death is war-caused.

20. Dr Dinaker Rao was Mr McGibbon’s general practitioner who has since retired. His records were not available.

21. I am satisfied from the evidence that Mr McGibbon’s kind of death, and cause of death was due to carcinoma of the pancreas.

    Repatriation Commission v Deledio (1998) 83 FCR 82

22. Because Mr McGibbon served on operational service, in order to decide the matter, I must apply the tests as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 [97] as follows:

    1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

    2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …

    3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.

    4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.

    The hypothesis

23. The hypothesis raised in this matter by Mrs McGibbon is that her husband suffered chronic pancreatitis as a result of his smoking or alcohol consumption as a result of his service, and that this led to his death from carcinoma of the pancreas.

24. Mrs McGibbon raised the fact she observed her husband with severe abdominal pain relieved by Mylanta, at least two years before his diagnosis of carcinoma of the pancreas, and raised the hypothesis that he was suffering pancreatitis which led to his death from carcinoma of the pancreas.

25. Mrs McGibbon provided information with regard to her husband’s smoking and drinking habits in completing questionnaires for the Repatriation Commission.

    Clinical onset

26. Mrs McGibbon stated that she observed her husband with severe abdominal pain relieved by Mylanta, at least two years before his diagnosis of carcinoma of the pancreas. The only medical evidence was that of Dr Budak who stated that he did not obtain any history of pancreatitis from Mr McGibbon. He stated that the veteran presented to him with a four week history of passing very dark urine, and a two week history of jaundice and also pale motions. Dr Budak stated:

    He did not complain of any abdominal pain however he had lost 10 kg in the preceding 2 months.

    Investigation suggested locally advanced pancreatic cancer. A stent was inserted in the common bile duct. He subsequent (sic) died within months.

27. Dr Budak stated that he did not obtain any history of pancreatitis from Mr McGibbon, but that it was possible the Veteran may have had attacks of abdominal pain which may have been due to attacks of pancreatitis without proper diagnosis.

28. It is not possible for me to assign a date for the clinical onset of pancreatitis as no diagnosis of that condition was made.

    APPLICATION OF THE SOPs

29. As there are relevant SoPs in place, being No.85 of 2011, Acute Pancreatitis, No.104 of 2011, Chronic Pancreatitis, and No.73 of 2013, Malignant Neoplasm of the Pancreas, they must be applied.

30. I must form an opinion whether the hypothesis raised is reasonable. It will be reasonable if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis raised must thus contain one or more of the factors which the Repatriation Medical Authority (the Authority) has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable, and the claim will fail. (Deledio v Repatriation Commission (1997) 47 ALD 261 and East v Repatriation Commission (1987) 16 FCR 517).

    No.85 of 2011, Acute Pancreatitis

31. The definition of acute pancreatitis in the SoP means:

    an acute inflammatory condition due to auto-digestion of pancreatic tissue by its own enzymes, typically presenting with abdominal pain and usually associated with raised levels of pancreatic enzymes in blood or urine.

32. The relevant Factor in this case is Factor 6(c), which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting acute pancreatitis or death from acute pancreatitis with the circumstances of a person’s relevant service is. Factor 6(c) states: drinking at least 36 kilograms of alcohol within any two year period, and continuing to consume alcohol at the time of the clinical onset of acute pancreatitis.

33. The evidence of Mrs McGibbon in the alcohol questionnaires and in her oral evidence points to the Veteran’s drinking habits, which Mr Rudge conceded would have amounted to at least 36 kgs of alcohol within any two year period. However, there is no material pointing to the onset of acute pancreatitis, including that of Dr Budak.

34. The hypothesis will be reasonable if the hypothesis fits, that is to say, it is consistent with the template to be found in the SoP.  The hypothesis raised must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service. The hypothesis in this case is that Mr McGibbon suffered chronic pancreatitis as a result of his smoking or alcohol consumption as a result of his service, and that this led to his death from carcinoma of the pancreas.

35. The hypothesis is not reasonable in that it is not consistent with the template in SoP No.85 of 2011 and Factor 6(c). Accordingly the hypothesis could be said to be contrary to proved or known scientific facts.

    No. 104 of 2011, Chronic Pancreatitis

36. In the SoP chronic pancreatitis means a:

    progressive inflammatory disease of the pancreas resulting in irreversible morphological change with fibrosis of the organ. Loss of exocrine and endocrine function results from fibrosis and parenchymal damage.

37. The relevant Factors in this case are Factor 6(a) and 6(f).

38. Factor 6(a), requires consuming at least 90 kilograms of alcohol:

    (i)within any five year period before the clinical onset of chronic pancreatitis; and

    (ii)where alcohol consumption has ceased, the clinical onset occurred within ten years of cessation;

39. Factor 6(f) stipulates having an episode of acute pancreatitis before the clinical onset of chronic pancreatitis.

40. The evidence of Mrs McGibbon in the alcohol questionnaires and in her oral evidence points to the Veteran’s drinking habits, which Mr Rudge conceded would have amounted to at least 36 kgs of alcohol within any two year period. However, there is no material pointing to the onset of acute or chronic pancreatitis, including that of Dr Budak.

41. The hypothesis will be reasonable if the hypothesis fits, that is to say, it is consistent with the template to be found in the SoP.  The hypothesis raised must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service. The hypothesis in this case is that Mr McGibbon suffered chronic pancreatitis as a result of his smoking or alcohol consumption as a result of his service, and that this led to his death from carcinoma of the pancreas.

42. The hypothesis is not reasonable in that it is not consistent with the template in SoP No.104 of 2011 and Factors 6(a) and 6(f). Accordingly the hypothesis could be said to be contrary to proved or known scientific facts.

    No.73 of 2013, Malignant Neoplasm of the Pancreas

43. In the SoP malignant neoplasm of the pancreas means a primary malignant neoplasm arising from the cells of the exocrine pancreas….  

44. The factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the pancreas or death from malignant neoplasm of the pancreas with the circumstances of a person’s relevant service are: Factors 6(a) and 6(d).

45. Factor 6(a) – smoking at last ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the pancreas, and

    (i)…

    (ii)where smoking has ceased, the clinical onset of malignant neoplasm of the pancreas, has occurred within 20 years of cessation;

46. Factor 6(d) - having chronic pancreatitis for at least two years before the clinical onset of malignant neoplasm of the pancreas.

47. The evidence of Mrs McGibbon in the smoking questionnaire and in her oral evidence points to the Veteran’s smoking habits, which were that he ceased smoking in 1960. Further, there is no material pointing to the onset of acute or chronic pancreatitis, including that of Dr Budak.

48. The hypothesis will be reasonable if the hypothesis fits, that is to say, it is consistent with the template to be found in the SoP.  The hypothesis raised must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service. The hypothesis in this case is that Mr McGibbon suffered chronic pancreatitis as a result of his smoking or alcohol consumption as a result of his service, and that this led to his death from carcinoma of the pancreas.

49. The hypothesis is not reasonable in that it is not consistent with the template in SoP No.73 of 2013 and Factors 6(a) and 6(d). Accordingly the hypothesis could be said to be contrary to proved or known scientific fact.

    Can the Tribunal be satisfied beyond reasonable doubt that Mr McGibbon’s death was not war-caused

50. The evidence before the Tribunal is that Mr McGibbon consumed sufficient alcohol to meet the requirements of Factor 6(c) of SoP No.85 of 2011, and 6(a) of No.104 of 2011. This was also conceded by the Respondent.

51. Mrs McGibbon said that her husband did not drink or smoke before the War. However her evidence, both oral and in the questionnaires she filled in, was that her husband drank and smoked to be one of the boys, and after work, which means that the connection with the War may have been temporal, but it was not causal.

1. There was also no evidence of a diagnosis of either chronic or acute pancreatitis. Mrs McGibbon’s evidence regarding her husband’s abdominal pain was that he took Mylanta to alleviate it. Dr Budak did not diagnose pancreatitis, and there was no evidence from any other doctor.

2. Accordingly those facts satisfy me beyond reasonable doubt that Mr McGibbon’s death was not war-caused. The claim must fail.

   DECISION

3. The Tribunal affirms the decision under review.

I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

..............................[sgd]..........................................

Associate

Dated 24 September 2015

Date(s) of hearing	7 July 2015
Advocate for the Applicant	Mr D Rymner, RSL Sub Branch, Dapto
Advocate for the Respondent	Department of Veterans Affairs