Paisley and Repatriation Commission

[2001] AATA 846

DECISION AND REASONS FOR DECISION [2001] AATA 846

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/10
VETERANS'     APPEALS       DIVISION
  Re:         JOYCE MAY PAISLEY
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member
Date:             20 September 2001
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
  Member
VETERANS' AFFAIRS — whether the development of carcinoma of the colon by the applicant's husband (the veteran) was war-caused within the meaning of section 9 of the Veterans' Entitlements Act1986 — whether the material raises a reasonable hypothesis connecting the development of carcinoma of the colon with an excessive amount of alcohol within any 25 year period before the clinical onset of the disease
Veterans' Entitlements Act 1986 ss.120(1), 120(3), 120A
Statement of Principles

Instrument Nº 23 of 1996 amended by Instrument Nº 5 of 1998

REASONS FOR DECISION

20 September 2001  Miss E.A. Shanahan, Member

1. This is an application for review of a decision of a delegate of the Repatriation Commission dated 21 December 1998 which found that the late veteran's carcinoma of the right hemicolon could not be connected to service as the relevant Statement of Principles (SoP) was not satisfied.   The late veteran had died on 29 August 1998 and the applicant had lodged a claim for a widow's pension on 2 November 1998.   The decision of the delegate of the Repatriation Commission was affirmed by the Veterans' Review Board (VRB) on 14 April 2000.  

2. The review was conducted on the papers.  
   Background to the Application

3. The applicant's late husband (the veteran) was born on 24 June 1921, and served in the Australian Army from 20 October 1941 to 10 August 1944.   As his service was in the Northern Territory, the entire service constitutes operational service for the purposes of the Veterans' Entitlements Act1986 (the Act). The latter attracts the standard of proof as provided in subsections 120(1) and (3) of the Act. The Tribunal is required to find that the claimed carcinoma of the right hemicolon was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The applicant lodged her claim with the Repatriation Commission on 2 November 1998 following the veteran's death on 29 August 1998. Section 120A of the Act, effective 1 June 1994, applies to this application and any decision. It was contended before the VRB on 14 April 2000 that the veteran's carcinoma of the colon was related to excessive alcohol intake and that this excessive alcohol intake was service-related. It was argued that the relative SoP was Instrument Nº 23 of 1996, risk factor 5(c), which states:

   5.        . . .

   (c)drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the colon; or  

It was contended that the late veteran had commenced drinking during his service in the Northern Territory and continued to drink until a short time before his death.   The applicant had given evidence that the late veteran drank 2 to 3 days per week at a rate of 4 to 6 glasses of beer on each day.   The VRB noted inconsistencies in the documentation regarding the late veteran's drinking habits over the years, but on the basis of the applicant's statement they concluded that the late veteran had consumed the minimum consumption requirement of 25 kilograms of alcohol within a 25 year period.   This Tribunal is uncertain as to whether the reference to 25 kilograms of alcohol is a typographical error or whether that was indeed the finding of the VRB.   The SoP Instrument Nº 23 of 1996 states the requirement to be 250 kilograms of alcohol.   The VRB was unable to find any causal link between the late veteran's drinking habit and his war service.   The VRB doubted that the late veteran would have been able to access regular supplies of alcohol while serving in the Northern Territory.   The VRB also considered the remaining risk factors in the SoP but found none to be applicable.  

1. There is no evidence in the documents, lodged pursuant to section 37 of the Administrative Appeals Tribunal Act1975 (the T documents), that the late veteran suffered from colonic polyps before the onset of malignancy (factor 5(a)).   The late veteran was a non-smoker negating factor 5(b), no evidence was produced as to altered dietary pattern in accordance with factor 5(d), nor was there any evidence to support factors 5(e) to 5(j).   It would appear that factor 5(k) was not argued.   The T documents contain evidence that the late veteran did work as a wharf labourer immediately following his discharge from the Australian Army for a period of 6 to 8 years and, as it is now known, most wharf labourers in that era were exposed to asbestos.   This was not however causally related to his service.   There was no evidence that there was an inability to obtain appropriate clinical management for malignant neoplasm of the colon (factor 5(m)).  
   Documentary evidence before the Tribunal

2. The T documents and, in particular, extracts from the late veteran's Austin and Repatriation Hospital medical notes address the late veteran's alcohol intake over a period of many years, commencing in 1971 (T5, p.10) when he was described as a non-smoker and a light drinker.   At that time he was being investigated for atrial fibrillation of unknown aetiology.   On 5 June 1971 the medical history noted that the late veteran drank two glasses of beer per day.   On 28 May 1997 he was described as a social drinker.   On 27 October 1998 the applicant reported that he drank two to three times per week, four to six standard drinks.   In 1991 (T16, p.41) the Repatriation General Hospital Medical Record states that the late veteran denied ever being a heavy drinker, and drank four to five bottles of beer per week.   All admissions throughout the period from 1971 to 1998 recorded similar facts, although on various occasions treating doctors queried alcoholism based on the presence of atrial fibrillation and a cardiomyopathy.   It would appear the cardiomyopathy and atrial fibrillation were eventually found to be related to myxoid degeneration of the posterior leaflet of the mitral valve.   Mitral valve replacement was subsequently undertaken.  

3. The respondent's submission of 22 May 2001 included a reference to the Military Regulation quoted in Professor McCarthy's report regarding another veteran who had served in the Northern Territory.   This report related to the availability of alcohol rations during service in various areas, but in particular within Australia, which would include the Northern Territory.   With respect to the Northern Territory, Professor McCarthy had reported that one bottle of beer per man per week was the maximum quantity supplied.   It is noted that it was possible that, whilst on leave, the late veteran may have imbibed larger volumes of alcohol.  

4. The maximum alcohol intake reported, and this was reported by the applicant, was 4 to 6 beers, 2 to 3 times per week.   Thus, the most intake, as reported by the applicant, would be 18 standard glasses of beer per week and it has been estimated that in order to drink 250 kilograms within a 25 year period it would be necessary to average over 19 standard drinks per week.   There was no evidence to support such an intake.  

5. Factor 5 of the SoP Instrument Nº 23 of 1996 is not satisfied on the evidence before the Tribunal.   While a reasonable hypothesis linking alcohol intake to development of carcinoma of colon has been raised, this failure to satisfy the SoP results in the Tribunal not being required to consider the reasonableness of the hypothesis in accordance with subsections 120(1) and 120(3).  

6. For the reasons given, the decision of the VRB dated 14 April 2000 is affirmed.

   I certify that the nine [9] preceding paragraphs are a true copy of the reasons for the decision herein of
   Miss E.A. Shanahan, Member

   (sgd)    Catherine Thomas
             Clerk

   Date of Hearing  Nil — Decided on Papers
   Date of Decision  20 September 2001
   Solicitor for the Applicant            Messrs John W. Ball & Associates

   Solicitor for the Respondent        Nil — Ms J. McCulloch, Advocate with Veterans' Affairs