Molony and Repatriation Commission - [2001] AATA 312

DECISION AND REASONS FOR DECISION [2001] AATA 312

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1998/484

VETERANS DIVISION     )
           Re      Ruth Molony
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member, Brigadier R D F Lloyd, Member, Dr D Weerasooriya, Member

Date 9 April 2001

PlacePerth

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the decision of the Veterans' Review Board of 27 August 1998, is affirmed.
  ...........(-sgd RD Fayle)...............
  Senior Member
CATCHWORDS
Widow's Pension - Repatriation Commission – accepted war-caused diseases and war-caused injuries: (incl) functional dyspepsia – veteran's death caused indirectly by symptomatic gall bladder disease – acute or chronic inflammation (cholecystitis) – standard of proof - no relevant Statement of Principle for empyema of the gall bladder or cholecystitis – reasonable hypothesis – veteran's war service including high carotene diet and stress contributed to cholecystitis which caused or contributed to death
Veterans' Entitlement Act 1986 section 120
Critch v Repatriation Commission (1996) 43 ALD 574
Repatriation Commission v Bey (1997) 79 FCR 364
Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

9 April 2001 Mr R D Fayle, Senior Member, Brigadier R D F Lloyd, Member & Dr D Weerasooriya, Member

Mrs Ruth Molony ("the applicant") applied for a widow's pension in relation to the death of her husband, Mr James Patrick Molony ("the veteran") on 4 August 1995. The Repatriation Commission ("the respondent") decided on 8 January 1996 to refuse the claim. The Veteran's Review Board ("the VRB") upon review of that decision on 27 August 1998 decided to affirm it. That decision of the VRB is before this Tribunal for review on the application of the applicant.
The parties had made application to the Tribunal for it to dispense with a hearing and to review the decision by consideration of the documents and other material lodged with or provided to the Tribunal. Pursuant to s34B of the Administrative Appeals Tribunal Act 1975, the Tribunal determined that the issues for review can be adequately determined in the absence of parties, and so proceeded.
The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents) and a further file of 27 folios of similar documents filed subsequently ("the supplementary T documents"), together with the following documents taken into evidence:

Respondent's statement of Facts and Contentions filed 2 March 2001;
Applicant's statement of Facts and Contentions filed 20 December 2000;
Letter to Mr Carl Ponnuthurai (acting on behalf of the respondent) from Naraha Company – Mr Robert Kendall Piper, dated 8 May 1999 and attachments;
Affidavit of Anthony William Atkinson (translator) with translation of published article from Japanese to English – article on Drug-induced Hepatic Injury, The Japanese Journal of Clinical Medicine [Nippon Rinsho], Vol 43 (6): 89-93, 1985;
Copy of Leo M A, et al Interaction of Ethanol with B-Carotene: Delayed Blood Clearance and Enhanced Hepatoxicity, Hepatology, Vol 15, No. 5, 1992; and
Copy of Youping He, et al, Effects of Carotenoin-Rich Food Extracts on the Development of Preneoplastic Lesions in Rat Liver and on In Vivo and In Vitro Antioxidant Status, Nutrition and Cancer, 27(3), 1997, pp.238-244.

Prior to the hearing on the papers the applicant was invited, by the Deputy Registrar, to make further submissions in the light of the above material should she so wish, but declined.
Facts
The following facts were not disputed and are drawn largely from the respondent's statement of facts, which rely on the T documents, the supplementary T documents and the additional documents taken into evidence.
The veteran was born on 27 September 1913 and died on 4 August 1995 (aged 81 years), the cause of death being recorded on the death certificate as:
"Empyema gall bladder – sepsis and multi-organ failure (weeks), (Contributory Cause) Ischaemic heart disease, Aortic stenosis (years)."
The veteran had eligible war service in the RAAF from 2 March 1941 to 18 February 1946 and because he served in the United Kingdom attached to the RAF, the whole of his service constitutes operational service.
At the time of his death the veteran was in receipt of disability pension at 80 per cent of the General Rate in respect of the following war-caused diseases and war-caused injuries:
Functional dyspepsia;
Degenerated lumbo-sacral disc with intermittent herniation; and
Cervical spondylosis.
Carcinoma of the urinary bladder was rejected as being not war-caused.
On enlistment in the RAAF in 1940 the veteran denied any history of stomach or bowel trouble or of chronic indigestion or pain after food. His abdomen was normal to palpation.
At a special medical examination on 8 October 1941, no mention was made of any gastro-intestinal abnormality. At another medical examination on 17 September 1942, the veteran's abdomen was clinically normal. At the same medical examination, the veteran was noted to neither smoke tobacco nor drink alcohol.
At discharge, the veteran was again medically examined. He denied suffering from any wounds, diseases or injuries during his service. His abdomen was clinically normal on examination and his urine was clear of albumin and sugar.
In 1951, the veteran submitted a claim for acceptance of loss of weight. On medical examination, he was noted to be a non-smoker and a moderate drinker. The veteran told the examining doctor that his health had been good since discharge, except for his present complaint. A year prior to the examination, the veteran had begun to get attacks of anorexia, sometimes with vomiting and diarrhoea, lasting usually three or four days. He had suffered four attacks in all, with insomnia and his bowels opening four to five times in 24 hours. The veteran thought that the condition was due to worry and extra work (he was a teacher). The veteran had lost two stone in weight in 12 months, due probably to dieting. On clinical examination, his teeth were good and his throat, heart, lungs, abdomen, urine and reflexes were all normal. The veteran was admitted to hospital for investigation. Barium enema, barium meal and an alcohol test meal all proved normal. The veteran was diagnosed as suffering from functional dyspepsia, to which his loss of weight was attributed.
In July 1964, the veteran was medically examined in connection with a review of his disability pension. The veteran then told the examining doctor that he had no stomach trouble. His abdomen was normal on clinical examination and his urine showed neither sugar nor albumen.
In December 1969 the veteran was medically examined in connection with a review of his disability pension. The veteran stated that his dyspepsia gave him occasional trouble, particularly at the end of the year. On examination, there was no tenderness in his abdomen, no hernia and no masses although his abdomen was obese.
In March 1973, at a further medical examination in relation to the veteran's disability pension, the doctor recorded that the veteran was suffering some discomfort and associated diarrhoea for a week the previous December, which he blamed on Codis tablets that he was taking for his back. The veteran suffered no indigestion.
On 1 January 1990, the veteran was admitted to hospital for investigation of haematuria. He was found to have transitional cell carcinoma of the bladder. Liver function tests performed at the time were normal.
On 20 March 1990, the veteran was again medically examined in order to review his disability pension. He told the doctor that he had suffered no symptoms of functional dyspepsia for the last 20 years. On general medical examination the veteran told the doctor that he had never smoked and the he now drank no alcohol at all. He had drunk a little alcohol about 20 years ago for about two years. On examination of his abdomen there was a vague mass palpable in the right upper quadrant but no abdominal tenderness.
In November 1990, the veteran appeared before the Veterans' Review Board in connection with an appeal against an assessment of his disability pension. He concurred with the impairment rating of nil in respect of dyspepsia.
On 28 July 1995, the veteran was admitted to hospital with a ruptured gall bladder and septic cholecystitis. He was suffering from sepsis and multi-organ failure. The veteran under went a cholecystectomy but did not recover following the operation.
On 17 October 1995, Dr Yin, a departmental doctor opined that empyema of the gall bladder is almost always a sequel to acute cholecystitis, the cause of which is usually a stone impacted in the bile duct. There was no evidence of this on clinical notes and the cause was thus acalculous cholecystitis. However, the cause of this in the veteran's case was unknown.
On 5 June 1996, Dr Linden Easton, a gastroenterologist, opined that recurrent cholecystitis can be difficult to differentiate symptomatically from peptic ulcer disease. Dr Easton opined that gall bladder empyema can be associated with acute cholecystitis and that this may provide a link with recurrent dyspepsia.
On 8 May 1999, Mr Robert Piper, an aviation historian, provided a report on the question of the veteran's diet during service in the RAAF/RAF. Mr Piper was unable to find any documentary evidence concerning a high intake of carrots. Mr Piper interviewed Sir Richard Kingsland DFC, who advised that carrots were included in the RAF diet in Britain and to a lesser extent in the RAAF diet in Australia, but were never forced. Greens were also encouraged for good health and night vision and unit medical officers encouraged catering officers to ensure that carrots were included in meals. Australians serving in Britain did not enjoy the British way of preparing carrots and were never ordered to eat them. Mr Piper also consulted Mr Bob Cowper, who served as a pilot with 464 Squadron RAAF in Britain, flying Mosquito night fighters. Mr Cowper advised that carrots were never force-fed to squadron members and the whole story is a "furphy". Mr Cowper believed the story to have started to cover up the new aircraft mounted radar carried by Beaufighters, which resulted in greatly improved success against enemy aircraft.
The Law
The relevant provision of the Veterans' Entitlement Act 1986 ("the Act") is section 120, Standard of proof, which states:
120(1) Where a claim under Part II for a pension 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.
Note:   This subsection is affected by section 120A.
(2)       (Not relevant).
(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.
Note:   This subsection is affected by section 120A.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:   This subsection is affected by section 120B.
(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
          (a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;
          (b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;
          (c)       the death of a person is war-caused or defence-caused; or
          (d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
          (a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
          (b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
(7)       (Not relevant)

Discussion

The respondent submitted that the standard of proof in this matter is that of reasonable hypothesis as required by s120(3) of the Act and as there is (are) no relevant Statement of Principle (or Statement of Principles) in respect of the cause of death as recorded in the death certificate (para. 6 above), empyema of the gall bladder nor in relation to cholecystitis.
The respondent submitted that the manner in which a determining body is to apply the reasonable hypothesis standard of proof was discussed by the Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364, (Northrop, RD Nicholson, Sundberg, Marshall and Merkel JJ). At pages 366-367 their honours said:
In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 the High Court said of the relationship between sub-ss (1) and (3) of s 120:
The position may be summarised as follows: (1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s(1) of s 120 is applied.
The method of applying s 120(1) and (3) is now well established:
1. One commences with sub-s (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under sub-s (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts, which support the hypothesis (the "raised facts") and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Sub-section (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
In some cases the hypothesis may assume the occurrence or existence of a "fact". That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.
It is the Tribunal's understanding that the applicant's hypotheses are:
The First Hypothesis
That the death of James Molony ("the veteran") was caused indirectly by cholecystitis, (which caused empyema of the gall bladder, which ruptured) which was contributed to or aggravated by the accepted disability of functional dyspepsia.
The Second Hypothesis
That veteran's war service, including the veterans high carotene diet and stress, contributed to the veteran's condition of cholecystitis, which caused or contributed to the veteran's death.

Functional Dyspepsia and Cholecystitis

Dr David Watson, Consultant Physician, reported on 13 November 2000, inter alia:
"There seems little doubt that the cause of death was an empyema of the gall bladder associated with rupture and presumably, bacterial peritonitis, generalised sepsis as well as multi-organ failure.
Empyema of the gall bladder is an acute condition that rarely arises in a normal gall bladder. Usually, it will occur in a gall bladder affected either by acute or chronic inflammation (cholecystitis), in the presence of gall stones (cholelithiasis) or both. Occasionally, acute gall bladder infection can arise de novo, either as part of a septicaemic illness or in the presence of reduced immunity. In respect of the former, there seems to be no evidence in the material I have seen that the empyema of the gall bladder was secondary to sepsis. Rather, it seems to have been accepted by those looking after him that the sepsis was the consequence of the empyema. In respect of the question of reduced immunity, I note that Mr Molony had been given Phenylbutazone for his back years before. Although Phenylbutazone rarely caused bone marrow suppression and thus, a risk of infection, I believe that can be ruled out even on circumstantial grounds. He also had intra-vestical Thiotepa for his carcinoma of the bladder. Once again, I think we can assume the he had no marrow suppression or other problems from that therapy which was given as part of the treatment for his bladder cancer.
The question that now arises is the extent to which Mr Maloney may have had symptomatic gall bladder disease that was not recognised.
I note that in a 1951 decision, the then Repatriation Commission accepted that Mr Molony had functional dyspepsia was (sic) a result of his war service but there was no disability. On 3 April 1951 in a report by Dr R Button (DMO), mention is made of 'loss of weight and stomach condition'. The commentary also reports on 'attacks of anorexia, sometimes with vomiting and diarrhoea lasting usually 3 to 4 days, four attacks in all, with insomnia'. A loss of weight of '2 stone in 12 months' was due probably to dieting. His physical examination appeared to be normal. A barium meal and enema were performed and apparently were normal.
In the decision, the diagnosis of functional dyspepsia was attributed at the cause of weight loss. Subsequently, the DVA in a letter addressed to Mr D L Ray of Perth Legacy in July 1996, accepted that functional dyspepsia was possibly incorrect and that the symptoms at that time could have been due to cholecystitis.
Dr Linden Easton, in a letter dated 5 June 1996, refers to Dr Burton's report and also makes comments on cholecystitis.
Cholecystitis normally presents with upper abdominal pain frequently with vomiting but vary regarding diarrhoea. From my conversation with Mrs Molony and her son, there seems to be good grounds for believing that Mr Molony did have episodes of upper abdominal pain and vomiting that would be much more consistent with cholecystitis than with functional dyspepsia. I think on the balance of probabilities, that as far back as 1951, Mr Molony was having such episodes.
It is much more likely that this was the cause of the weight loss.
However, episodes of cholecystitis will not in any way explain the fact that he had episodes of diarrhoea quite frequently, both before 1951 and indeed for the rest of his life. Thus, I think it is actually correct that he did have functional dyspepsia as accepted by the Repatriation Commission in 1951. The problem here was that symptoms of functional dyspepsia were of such prominence that consideration was not given to the fact that Mr Molony appears to have had quite severe abdominal pain with some of these episodes and that that abdominal pain and the weight loss were inconsistent with the diagnosis of functional dyspepsia. On the balance of probabilities, I think it is likely that the diagnosis of recurrent cholecystitis was masked by some of the symptomatology thought to be due to functional dyspepsia. Hence the diagnosis was not made."

In answer to a question put to Dr Watson in writing by the applicant's then representative (Mr Christie), whether in his view there was a direct or indirect link between "the longstanding functional dyspepsia which masked episodes of acute cholecystitis as far back as the early 1950s", he opined:
"I think there is a direct link between Mr Molony's gut problems and his war service as was accepted by the Repatriation Commission in 1951. The problem I think, is that in accepting that diagnosis then (and rejecting it in 1996) the diagnosis of recurrent bouts of cholecystitis was missed."
The Tribunal notes that Dr S T Arasu in his medical report of 20 March 1990, states that the veteran reported that he had had no symptoms of functional dyspepsia for 20 years, contrary to the report of Dr Watson mentioned above.
At page 40 of the T documents Dr C Yin (DMO) opines that the veteran's death is a result of a ruptured gall bladder secondary to empyema of the gall bladder.
"Empyema of the gall bladder is almost always a sequel to acute cholecystitis or occasionally a mucocoele becoming infected. In the case of the veteran it was almost certainly the result of acute cholecystitis. The cause of acute cholecystitis is unusually the result of a stone impacted in the bile duct. There is no evidence of this in the clinical notes. The diagnosis is therefore acalculous cholecystitis. The minimal risk for the development of this condition is especially aggravated with serious trauma or burns and other … major surgical operations in the post-operative period. Other precipitating factors include vasculitis, obstructive adeno-carcinoma of the gall bladder, diabetes mellitus, torsion of the gall bladder, unusual bacterial infection of the gall bladder and parasitic infection of the gall bladder. In about 50% of acalculous cholecystitis, an underlying explanation for acalculous inflammation is not known. The late veteran did not have any of the risk or precipitating factors. He therefore lies within the unknown category. There is therefore no causal relationship to service." (T7, p.40)

Findings relating to the first hypothesis

The respondent submitted that Dr Watson's opinion does not point to a connection between any putative cholecystitis and service. The respondent noted in this respect that, when the veteran presented in 1951 and was admitted to hospital, he said that his dyspeptic symptoms had started about a year before. It was further submitted that at that time when the investigations were carried out, nervous dyspepsia was diagnosed. And by 1990, when seen by a departmental doctor, the veteran said that he had not had dyspeptic problems for some 20 years.
The respondent further submitted that even if the veteran had cholecystitis rather than nervous dyspepsia, there is nothing in the material before the Tribunal that connects it with war service.
The evidence before the Tribunal is that the condition of cholecystitis, if it existed, arose subsequent to the veteran's service. There is nothing in the materials, which connects cholecystitis as a sequel to any accepted disability. Indeed, Dr Yin concludes, in the veteran's case, that the cause of the cholecystitis was unknown. Certainly, there was no diagnosis of cholecystitis in 1951 when the veteran's then anorexia, vomiting and diarrhoea were investigated. Therefore, it is not relevant as to whether it may have aggravated the accepted condition of functional dyspepsia.
On the basis of the evidence before it, the Tribunal finds that the death of the veteran was not contributed to by the accepted disability of functional dyspepsia causing or aggravating the condition of cholecystitis.
High carotene diet
The Tribunal had before it a letter addressed to the respondent of 8 May 1999 from Mr Robert Piper, referred to above under "Facts" (paragraph 23). That evidence does not support a general proposition that RAF or RAAF aviators were, during the second World War in Britain (or Australia), required to consume a high carrot diet.
The respondent submitted that historical research and the recollection of people with service at a similar time indicate that there was no requirement to eat large amounts of carrots sufficient to cause vitamin A toxicity during the veteran's service.
The Tribunal notes that at discharge there was no indication that the veteran was suffering from any of the stigmata of vitamin toxicity (T6).
The respondent submitted that the scientific articles that were put forward in evidence by the applicant, as supportive of a connection between damage to the gall bladder by excessive ingestion of vitamin A and its precursors, are not relevant. It was submitted that these articles are not relevant as none refer to damage to the gall bladder although they do refer to damage to the liver.
In his letter of 13 November 2000 (supra) Dr Watson, in relation to the veteran's assumed high carrot diet, said:
"It is not possible to say whether Mr Molony's abdominal symptoms initially started as a result of the diet but there is certainly an overlap of symptomatology between hyper-vitaminosis A and his abdominal symptoms. Again, I think it is possible that this served to mask the fact that he may have been having episodes of acute cholecystitis."
The Tribunal, having considered those remarks of Dr D Watson in relation to vitamin A toxicity, finds that evidence is not sufficiently supportive to establish this aspect of the second hypothesis as reasonable.
Stress/ War services
Whist there is evidence that the respondent has accepted that stress contributed to the accepted disability of functional dyspepsia, there is no evidence before the Tribunal that stress causes or contributes either directly or indirectly to cholecystitis. Therefore, in the opinion of the Tribunal, that aspect of the second hypothesis is not reasonable. Similarly, there is no evidence before the Tribunal that any other known aspect of the applicant's war/operational service was relevant in this regard.
Conclusion
Having regard to the foregoing and the evidence generally before the Tribunal in this matter, it concludes that the material does not raise a reasonable hypothesis that, by reference to section 120 of the Act, there are sufficient grounds for determining that the veteran's death was war caused.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being the decision of the Veterans' Review Board of 27 August 1998, is affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member, Brigadier R D F Lloyd, Member & Dr D Weerasooriya, Member
Signed:         ...........(-sgd W. Treasure-)...............
   Associate
Date of Hearing on the Papers                 26 March 2001
Date of Decision  9 April 2001
Counsel for the Applicant              not represented
Counsel for the Respondent         Mr Carl Ponnuthurai