O'Brien and Repatriation Commission - [2001] AATA 193

DECISION AND REASONS FOR DECISION [2001] AATA 193

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D2000/15

VETERANS' APPEALS DIVISION       )
           Re      ELSIE MAY O'BRIEN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member)

Date15 March 2001
PlaceBrisbane

Decision      The Tribunal affirms the decision under review.
  (Sgd) K L Beddoe
  Senior Member

Decision No: 193/2001
CATCHWORDS : Veterans Affairs – War Widows pension – Non-operational war service – Basal and squamous cell carcinoma developed after voluntary post-war interstate move - Whether cause of death by metastatic squamous cell carcinoma of the left ear causally connected to war service – Whether Statement of Principles No 46 of 1998 satisfied

REASONS FOR DECISION

15 March 2001 Mr K L Beddoe (Senior Member)

On 6 January 1999 a delegate of the respondent notified a decision refusing the applicant's claim that death of the applicant's husband was not related to war service. On 11 May 2000 the Veterans' Review Board decided to affirm that decision.
At the hearing before this Tribunal the applicant was represented by Mr Aebersol and Mr Doube represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant's daughter.
The veteran was born 14 September 1912 and died 19 February 1989 at Darwin Hospital. Cause of death is shown on the death certificate as metastatic squamous cell carcinoma of left ear.
War service commenced on enlistment in the Air Force on 22 July 1940 and ended with discharge on 7 November 1945. The veteran did not serve outside Australia and did not undertake operational service as defined. Postings seem to have been confined to postings in southern Western Australia and Victoria. Duties were that of a fitter.
On enlistment the veteran's medical history as set out on T4/13-18 did not disclose bronchial problems but bronchial problems developed during the veteran's service. In the result recurrent bronchitis was accepted as a war caused disability and a disability pension at 40% of the general rate was paid to the veteran.
Following war service the veteran returned to his employment as a fitter at Fremantle Cold Stores. In 1949 the veteran removed to Darwin on the basis that he and the applicant had been convinced that the Darwin climate would be more conducive to preventing recurrent attacks of bronchitis. Initially he worked for a cold store in Darwin but subsequently joined the Darwin Fire Brigade as a fireman.
In 1965 the veteran notified the respondent that he had had an operation for removal of a skin cancer and requested the respondent to seek further information from his medical practitioner in Darwin (Dr Stack). The skin cancer was diagnosed as melanoma and surgically removed [T11].
Document T16 is a detailed medical report by Dr Brotherton dated 9 September 1989. He noted that the veteran had attended the practice since the 1960s. He noted, inter alia, widespread persistent cancers – basal and squamous cell carcinomas – resulting in many operations and specialist attention for what must be accepted as a very serious condition as described by Dr Brotherton. In particular Dr Brotherton noted that the veteran's left ear was only a remnant as a result of wide excision of a basal cell carcinoma.
The suggested link between the veteran's war service and cause of death is found in the evidence of his daughters which supports the proposition that the veteran moved to Darwin because of his war caused bronchitis and the requirements of his employment there resulted in increased exposure to ultra violet radiation from the sun. That evidence satisfies me that the veteran did move to Darwin because it was perceived that his chronic bronchitis would improve in the Darwin climate. It seems likely that such an improvement did occur because chronic bronchitis apparently ceased being a live issue following the removal to Darwin. In his report dated 9 September 1989 [T16] Dr Brotherton does not mention it.
It also seems the condition of recurrent bronchitis was accepted as a war caused disability some time prior to 1965 when the veteran made a claim for acceptance of hypertension [T9]. The Commission says the date of acceptance is unknown. I am prepared to infer that the condition was accepted before 1965 and probably in 1960 after the claim by the veteran dated 12 October 1959 [T7] and before an appeal for acceptance of Cervical Spondylitis and Refractive Error by the veteran dated 9 January 1960 [T8].
The applicant's claim is based on a contention that there is a chain of causation commencing with war service which caused the chronic bronchitis which in turn caused the veteran to move from Perth to Darwin after the war, resulting in increased exposure to sunlight thereby causing the skin cancers in general and the metastatic squamous cell carcinoma of the left ear which eventually caused the veteran's death.
As to increase exposure to sunlight the applicant relies on document T23/104 and on the claimed fact that the nature of the veteran's work in Darwin increased his exposure to sunlight by comparison with what it would have been in Perth.
The respondent submits that recurrent bronchitis is irrelevant to the cause of death. It says that the Tribunal is required to be satisfied that the Statement of Principles, being Instrument No 46 of 1998, is satisfied before the Tribunal can be satisfied to its reasonable satisfaction that the veteran's death was war caused.
In general the respondent says there is no medical evidence to satisfy the factors in para 5. In particular the respondent says that subparagraph 5 (a)(vi) and paragraph 5(f) are not satisfied.
As to increased exposure to ultra violet radiation the respondent asserts there was only a 2% increase in risk due to location change. Subsequent to the hearing the respondent supplied the Tribunal with the computer program which calculates the UV damage factors.
The respondent relies on section 196B(14) to submit that the exposure to sunlight in Darwin was not related to the veteran's service and in particular the voluntary change in the veteran's environment when he moved to Darwin was not a change consequent upon him having rendered war service (s 196B(14)(g)).
Consideration
The veteran's decision to move to Darwin was not based on medical advice and seems to have been based on the experience of a relative. That decision was a personal choice decision which cannot be said to have arisen out of or attributable to the war service. There is no dispute that the veteran moved to Darwin because of his bronchitis but it does not follow that the decision to move can be attributed to the veteran's war service.
I am not satisfied, as a question of fact, that the veteran suffered increased exposure to ultra violet radiation because I have been left to speculate about this. While I accept that there is a prima facie case that there will be additional exposure in Darwin compared to Perth, I am not satisfied that there is a 20% differential between the two and I am not satisfied that it is more likely than not that the veteran suffered increased exposure. It may well be, but I do not know, that the relevant exposure was the veteran's exposure to sunlight prior to enlistment which resulted in the conditions which manifested as various forms of skin cancer in the 1960s.
I am not satisfied, on the balance of probabilities that the material before the Tribunal raises a connection between the cause of death, and therefore the veteran's death, and the veterans' war service. The connection asserted depends upon the decision to move to Darwin several years after war service and that decision does not, in my view, have any causative link with the war service. The proposition asserted is too tenuous to satisfy me that there is a connection between the war service and the cause of death.
Even if I could be reasonably satisfied that there was a connection between the veteran's death and his war service I have not been satisfied that any of the paragraphs of clause 5 of the Statement of Principles has been satisfied. In particular there is no evidence of a chronically infected cutaneous sinus tract as defined in any way relevant to the veteran's death.
Given that the veteran's war service was in south western Western Australia and suburban Melbourne, I am not satisfied that a solar UV damage factor ratio of at least 1.2 can be an issue. In relation to the veteran's civil employment in Darwin such a factor is not relevant because I am not satisfied that the civil employment in Darwin is connected with the circumstances of the veteran's war service.
For these reasons the decision under review will be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed:         .....................................................................................
  Associate
Date of Hearing  9 November 2000
Date of Decision  15 March 2001
Applicant  Mr Aebersol, Advocate
Respondent  Mr Doube, Advocate