Nelson and Repatriation Commission - [2000] AATA 1098

DECISION AND REASONS FOR DECISION [2000] AATA 1098

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/1728

VETERANS' APPEALS DIVISION )

Re Kevin John NELSON
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date13 December 2000
PlaceSydney

Decision The Tribunal – 1. Sets aside the decision of a delegate of the Repatriation Commission ("the Respondent") dated 7 April 1998 that determined the condition of metastatic squamous cell carcinoma suffered by Kevin John Nelson ("the Applicant") was not war-caused ; 2. Varies the diagnosis of the claimed condition to read "solar keratoses, basal cell carcinomas, and squamous cell carcinomas with metastases in the lymph glands" 3. Substitutes that the conditions suffered by the Applicant of solar keratoses, basal cell carcinomas and squamous cell carcinomas with metastases in the lymph glands are war-caused disabilities pursuant to s9(e) of the Veterans' Entitlements Act 1986, with effect on and from 20 December 1997; and 4. Remits the matter to the Respondent to assess the rate of Disability Pension payable to the Applicant.

..............................................
M T Lewis
Senior Member
CATCHWORDS – VETERANS' AFFAIRS – entitlement - metastatic squamous cell carcinoma – whether solar UV damage ratio factor of at least 1.1 experienced during operational service – Statement of Principles applied - whether reasonable hypothesis that condition was war caused
Veterans' Entitlements Act 1986 ss120(1) and (3)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 7 April 1998 that refused a claim lodged by Kevin John Nelson ("the Applicant") in respect of "solar skin damage and tumour of lymph glands". The condition in respect of this claim was diagnosed as metastatic squamous cell carcinoma. The Applicant sought review by the Veterans' Review Board, and the result of that review was that the decision was affirmed on 6 October 1999. The Applicant then sought review by this Tribunal. All applications for review were lodged in time, and therefore the earliest effective date in this matter is 20 December 1997, being a date not earlier than three months before the lodgement of the Applicant's claim, the subject of this review.
The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"). The Applicant, who was unrepresented at the hearing, gave oral evidence at the hearing and tendered a report from Dr I D McCrossin, his treating dermatologist, dated 7 July 2000 (exhibit A). The Respondent, who was represented by a Departmental advocate, tendered the following documents as evidence –

Reports from Professor John Levi, oncologist, dated 16 May 2000 and 28 June 2000 (exhibit 1);
Extract from Departmental Training Kit Manual "Solar Skin Damage UV Assessment" (undated) (exhibit 2);
Computer recalculation of UV Risk Factor summary dated 16 November 2000 (exhibit 3).

The Applicant was born on 14 June 1930. He enlisted in the Royal Australian Navy on 8 April 1948 and was trained and deployed as a radio and radar technician. He remained in the Navy until his discharge on 2 February 1962. It is not in dispute that the Applicant had the following periods of operational service:

HMAS Warramunga 2 July 1955 to 15 July 1955
HMAS Melbourne 17 March 1958 to 3 April 1958
HMAS Melbourne 23 April 1958 to 13 May 1958

It is common ground that the Applicant's entire operational service was in tropical waters. The Applicant agreed that he also served in tropical waters for four years but that service was not operational or eligible service as defined in the Veterans' Entitlements Act 1986 ("the Act").

The three periods of operational service entitle the Applicant to have his claim determined pursuant to s120(1) and (3) of the Act. As his claim was lodged after 1 June 1994, s120A requires that the Tribunal consider whether a reasonable hypothesis has been raised by considering whether the Applicant meets any of the factors set out in relevant Statements of Principles.
The Applicant's evidence to the Tribunal was that his first skin lesions appeared in 1977 and were treated by Dr Garney, his local medical officer. At that time the lesions were mainly on his hands and arms. Dr Garney continued to treat the new lesions that developed subsequently, until 1982 when the Applicant was referred to Dr McCrossin because they had become more extensive and had progressed to his face and head. There is extensive documentary evidence in the T. documents from Dr McCrossin about the extensive treatment that he has provided subsequently. That evidence also indicates that the Applicant suffered from solar keratoses, basal cell carcinoma and squamous cell carcinoma. He has also had resection of a metastatic extension of the squamous cell carcinoma in his lymph glands, requiring plastic surgery.
It is conceded for the Respondent that the appropriate diagnoses in respect of the Applicant's claim are solar keratoses, basal cell carcinoma, and squamous cell carcinoma with lymph gland metastases. On the basis of the evidence before the Tribunal I find that this is the correct diagnosis to answer the Applicant's claim.
On the Applicant's evidence, and the medical evidence in the T.documents the Tribunal finds that he suffers from skin lesions on his hands, arms, head, face, back, chest, and legs. There is no contention about the location of the skin lesions.
The Applicant completed a Solar Damage Assessment questionnaire dated 28 January 1999 (T10, pp63-80). The oral evidence about his solar exposure was largely consistent with the information provided in that questionnaire, and it was submitted on behalf of the Respondent that any differences would have no material effect on the calculations that had been based on the information in the questionnaire.
Taking into account the information in the Solar Damage Assessment questionnaire and the periods of the Applicant's operational service, a "solar UV damage factor ratio" was calculated by an officer of the Department of Veterans' Affairs using the computer program UV Risk Version 3.3 (T13, p177). That computer assessment provided the following results –
Percentage Increase in Risk due to Service Activity at Age 69.117:
Face Hand Back Arm Leg
1.38 1.38 16.64 16.64 16.64

statements of principles to be applied

Instrument No.33 of 1996 in respect of Chronic Solar Skin Damage relates to solar keratosis, and is relevant to apply to this application. The relevant factor in respect of that Statement of Principles is 5(b) that states –
having a solar UV damage factor ratio of at least 1.1.
Instrument No.31 of 1996 relates to Non Melanotic Malignant Neoplasm of the Skin. That Instrument was revoked and replaced by Instrument No.45 of 1998. The parties agree that there is no material difference in those Instruments for the purpose of the present matter. The Statement of Principles for Non Melanotic Malignant Neoplasm of the Skin is relevant to apply in respect of the Applicant's conditions of basal cell carcinoma and squamous cell carcinoma.
The Applicant sought to rely on factors 5(g) and (o) of Instrument No.31 of 1996, reproduced as factors 5(a)(vi) [which the Tribunal notes is labelled in error and should be (iv)] and 5(a)(v), and 5(g), viz.:
(g)suffering from chronic cutaneous scarring of the affected site at the time of the clinical onset of non melanotic malignant neoplasm of the skin; or
(o)having a solar UV damage factor ratio of at least 1.1:or
The Tribunal accepts and the Respondent agreed that the Applicant is required to meet only one of the 14 alternative factors listed in paragraph 5 of the Statements of Principles.
In respect of factor 5(g) the Applicant relied on the opinion of Dr McCrossin (exhibit A) that as a result of his squamous cell carcinomas and basal cell carcinomas he suffers from cutaneous scarring of the skin. The Tribunal notes the oral evidence of the Applicant that at the time of the clinical onset of his lesions his skin was clear of any scarring, and that the scarring occurred only as a consequence of his skin lesions. He also said that he had never suffered blisters from sunburn. On the basis of this evidence the Tribunal finds that the Applicant did not suffer from cutaneous scarring at the site of the BCC and SCC lesions at the time of their clinical onset, and therefore he does not meet this factor.
Turning now to the solar UV damage factor ratio, the Tribunal notes the definition of that term in the Statements of Principles, viz.;
"solar UV damage factor ratio" means the value obtained by applying the solar UV damage factor ratio formula. This may be calculated by using the computer program, UV Risk Version 3.3 (created by the Australian Radiation Laboratory using Microsoft ® Visual Basic ™ Programming System for Windows ™ Professional Edition, Version 3.0) to the data concerning the exposure of the person to ultra violet (UV) radiation.
In fact the computer program was used in the calculation to which the Tribunal has already referred in paragraph 9. This is found at p177 of the T.documents. That calculation would enable the Applicant to succeed in his application in that, the percentage increase in risk during the Applicant's operational service was calculated for all anatomical sites affected to be higher than the 1.1 required in the Statement of Principles. However, it was submitted for the Respondent that there is a fundamental problem in using that calculation in the Applicant's case. It was submitted that the calculation did not take into account the fact that the Applicant also had four years' non-operational service in tropical waters while in the Navy for which he has no entitlement under the Act. That period of high-risk solar exposure could not be taken into account by the computer program used to calculate the risk factor. It was explained at the hearing that the Applicant's four years' service in Malaysia from 1950 to 1959 could only be shown in the computer program as being "normal (non-service)" work in Sydney, which carried a much lower UV risk factor. The only way the Respondent was able to have the computer assessment calculate for the Applicant's four years' "normal (non-service)" work in Malaysia was to feed that data into the computer program as if it was "recreation". That recalculation was undertaken (exhibit 3), and the following results were obtained –
Percentage Increase in Risk due to Service Activity at Age 70.426
Face Head Back Arm Leg
0.01 0.01 0.01 0.01 0.01

That calculation, of course, is lower than that required to meet factor 5(o) of the Statement of Principles.

The Tribunal's attention was also drawn to an extract from the Respondent's training manual which is undated (exhibit 2). It is apparent on its face that it relates to the computer program to which reference is also made in the Statement of Principles. However, it also states –
The first thing to remember when you are assessing a solar skin damage claim is that the percentage increase in risk must exceed 10.00 for acceptance of Reasonable Satisfaction Cases and exceed 20.00 for acceptance of Balance of Probability cases.
When entering information there are a number of assumptions that you can make unless there is evidence to the contrary on file. These assumptions are what would be the expected as "normal" in different situations.

The remainder of the document is then divided under the following headings –
           Work location
           Environment
           Environment Definations (sic)
           Daylight Exposure Factors
           Annual leave
           Weekends
           Body Exposure Factors

Service Years
Daylight Exposure Factors
Body Exposure Factors

It was submitted for the Respondent that the Tribunal should take this document into account in determining this matter, notwithstanding that it makes reference to a 10% increase in risk which is not mirrored in the Statement of Principles and notwithstanding that its date is unclear. While the Tribunal is concerned to address the principle of consistency in decision making at all levels of the decision making system, this must be achieved within the context of the legislation and the legislative instruments. The relationship between exhibit 2 and the Statement of Principles is not clear and therefore the Tribunal cannot accept it as a tool to be applied in this case.
Returning now to the computer recalculation undertaken by the Respondent's advocate (exhibit 3), the Tribunal finds that the method used compromises and distorts the integrity of the program. Not even the training manual extract (exhibit 2) suggests that one can use the field for annual leave or recreation, to enter a period of non-service "work", to circumvent a rigidity in the program in order to achieve the desired outcome. While the innovation in this approach must be commended, the Tribunal finds that it is quite unfair to subject this Applicant to such a manoeuvre. The innovation is not an orthodox procedure that fits within the Statement of Principles or the instructions about the use of the computer program.
The definition of "solar UV damage factor ratio" in the Statement of Principles clearly stated that this "may be calculated by using the computer program". There is no qualification to its use. As the formula for calculation of "solar UV damage factor" is also set out in the Statement of Principles, presumably it is open to someone with the necessary skills to make a manual rather than a computer calculation. However, it does not follow when the computer calculation is flawed, as it appears in this case, because of the design limitations of the program, the Respondent can insist either on a manual calculation or an unorthodox modification of the computer program.
Not infrequently the Tribunal comes across cases where there is reliable and eminent expert evidence to support an hypothesis that is not included in the Statement of Principles. In such cases it is not open to the Tribunal, or any decision maker, to discard or distort the Statement of Principles. Similarly, in this case, it is not open to the Tribunal to accept the modification urged by the Respondent, because of an apparent flaw allowed by the Statement of Principles. The only way to deal with such a problem is by application to the Repatriation Medical Authority, and/or by rewriting the computer program, which would then be applicable to all veterans with such claims, and not merely this Applicant.
The Tribunal notes that Professor Levi (report of 16 May 2000, exhibit 1) considers that the Applicant has "highly susceptible skin" and that his "tropical exposure to the sun during service would have undoubtedly contributed to the causation and aggravation of [his] condition". Professor Levi appeared to be referring to the Applicant's brief periods of operational service only, when using the term "service" in the abovementioned statement. Hence, although the computer program appears to provide some advantage to the Applicant in facilitating a calculation of a risk factor higher than 1.1, the favourable outcome is consistent with the expert opinion of Professor Levi.
The Tribunal considers that in the administration of beneficial legislation it would be unfair and inappropriate not to accept the calculation as reproduced at paragraph 10 of these reasons for decision.
The Tribunal therefore finds that as the hypothesis raised meets factor 5(o) of Instrument No.31 of 1996 and factor 5(b) of Instrument No.33 of 1996, a reasonable hypothesis has been raised pursuant to s120(3) of the Act.
The Tribunal is required to consider, pursuant to s9(e) of the Act, whether the Applicant's condition, which presumably has been developing during the course of his whole life, was contributed to in a material degree by his eligible war service. Professor Levi's evidence clearly supports the relationship between the Applicant's condition and his operational service, and there is no evidence before the Tribunal that goes to disprove the hypothesis. Turning now to s120(1), the Tribunal cannot be satisfied beyond reasonable doubt that the Applicant's conditions of solar keratosis, basal cell carcinomas and squamous cell carcinomas with metastases in the lymph glands are not related to his three periods of operational service.
The Tribunal therefore sets aside the decision of the Respondent, and substitutes it's decision that the Applicant's conditions are war caused. The date of effect of the Tribunal's decision is 20 December 1997.
The Tribunal is able to assess the rate at which pension shall be paid in respect of this condition, or remit to the Respondent for assessment. As the Tribunal does not have the best evidence available in order to assess the appropriate rate of pension payable the matter will be remitted to the Respondent for assessment.
applicant's earlier claim
The Tribunal notes that the Applicant had lodged a claim on 31 March 1995 for solar skin damage that was refused by a delegate of the respondent on 25 May 1995. That decision noted that the Repatriation Medical Authority had not at that time issued a Statement of Principles in respect of Solar Skin Damage. Having refused the claim, the delegate said –
To ensure that you are not disadvantaged by having your claim for Solar Skin Damage decided before the RMA has issued a Statement of Principles, a review under Section 31 of the Veterans Entitlements Act 1986 is being commenced. This allows a senior delegate of the Commission to review and vary this original decision should the issue of an RMA Statement of Principles contain factors which enable your claim to be accepted as service related.
The Applicant did not seek to have that decision reviewed, but it would appear that neither did the Respondent undertake the s31 review as indicated. The Applicant drew this issue to the Tribunal at the hearing, and was advised that the Tribunal had no jurisdiction to consider this issue. He was advised that in the event of this application for review to the Tribunal being successful the earlier issue was one that he might then raise again with the Respondent as an administrative issue.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  17 November 2000; 28 November 2000
Date of Decision  13 December 2000
Counsel for the Applicant        n/a
Solicitor for the Applicant         n/a
Counsel for the Respondent    n/a
Solicitor for the Respondent    Mr Glenn Wright, Department of Veterans' Affairs