PAMELA MITCHELL and REPATRIATION COMMISSION
[2012] AATA 215
•16 April 2012
[2012] AATA 215
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/0642
Re
PAMELA MITCHELL
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Senior Member Dr K S Levy RFD
Date 16 April 2012 Place Brisbane The decision under review is affirmed.
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Senior Member Dr K S Levy RFD
CATCHWORDS
VETERANS AFFAIRS – Pensions and entitlements – Widow's war pension – Operational service – Defence service – Standard of proof – Application of Statements of Principle – Death not war caused or defence caused – Decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 34J
Veterans' Entitlements Act 1986 (Cth) ss 5E, 6D, 7, 8, 11, 13, 68, 69B, 70, 120, 196A, 196B
CASES
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] 69 ALD 581Roncevich v Repatriation Commission (2005) 222 CLR 115
SECONDARY MATERIALS
Statement of Principle Number 28 of 2010
Statement of Principle Number 29 of 2010
REASONS FOR DECISION
Senior Member Dr K S Levy RFD
INTRODUCTION
Pamela May Mitchell is the widow of Donald Robert Mitchell, a “veteran” for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”). The Veteran had service in the citizen Air Force and then in the permanent Royal Australian Air Force (“RAAF”) from 24 October 1950 to 30 October 1974. There is no dispute that Mr Mitchell was a “veteran” or that he rendered “operational service” with 77 Squadron in Ubon, Thailand from 24 April 1963 to 13 September 1963, a period of five months (approximately). Relevantly, he also had “defence service” from 7 December 1972 to 30 October 1974.
The veteran died on 5 August 1997, aged 70 years. His wife, the applicant, applied for a widow’s war pension on 31 October 1997, on 17 May 2002 and on 24 May 2010. All three applications have been unsuccessful. The latest application was reviewed by the Veteran’s Review Board and that review was also unsuccessful as, on 7 February 2011, it affirmed the Repatriation Commission’s decision of 19 July 2010. Mrs Mitchell applied to this Tribunal for further review on 21 February 2011. At her request, the matter was initially delayed. She has now consented to the matter being heard “on the papers” under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth).
THE ISSUE
The issue for determination is whether the death of Mr Donald Robert Mitchell was “war caused” or “defence caused”, as defined by ss 8 and 70, respectively, of the Act.
THE FACTS
Mr Mitchell’s operational service and defence service periods are set out above. His service in the RAAF was initially as a radio technician, having been enlisted on 24 October 1950. His career progressed to the rank of Flight Sergeant on 1 December 1960. He was commissioned as a Pilot Officer with effect from 8 May 1964. He was later promoted to Flying Officer on 8 May 1965 and subsequently to Flight Lieutenant on 8 November 1967. His war service (which is operational service) in Thailand was as a Flight Sergeant. All of his defence service was as a commissioned officer with the rank of Flight Lieutenant. He was OC of a Radio Section and in March 1974 was posted as “Telecom Flt”. He accepted early retirement with effect from 28 October 1974 (T-document 4, folio 67).
Mr Mitchell’s Death
The certificate of death records the veteran’s death being attributable to:
1(a). malignant non-Hodgkin’s lymphoma of the brain;
1(b). non-Hodgkin’s lymphoma;
2. diabetes mellitus
The certificate of death also shows the duration of these illnesses having been as follows:
1(a). one month;
1(b). five years;
2. many years.
Mr Mitchell’s medical examination on enlistment reveals he was a very fit young man at 24 years of age. His discharge medical on 30 September 1974 reveals only scars from bilateral hernia and symptoms of oesophageal reflux associated with hiatus hernia. There is no mention of a condition associated with the listed causes of death (folio 91, T-documents).
Relevant Service
Mr Mitchell’s war service was with 77 Squadron in Ubon Thailand from 14 April 1963 to September 1963. His role was as a radio flight sergeant. His defence service was all served at 3 OTU, Pearce, Western Australia as an engineer officer, pilot training Macchi Aircraft, with the exception of his last month of service which was spent at Amberley, Queensland, in anticipation of discharge.
Mr Mitchell’s own letter dated 21 June 1995 shows he was, relevantly, posted to Amberley in 1955 and “was responsible for checking the LINCOLN Bombers for radio activity after their engagement in atom bomb tests at that time. He said “I was also in charge of radioactive material for disposal to sea in sealed concrete containers” (T-document 4, folio 2A).
In the attachment to his letter of 21 June 1995 he states he had lumps on his neck as early as 1954/55 which he ignored. He then asserted these were related to non-Hodgkin’s lymphoma from which he then suffered (T-document 4, folio 2C). In relation to his defence service, he said he had diagnosed heart trouble while he was serving at 3 OTU Pearce, Western Australia, in 1973 (T-Document 4, folio 2C). He also stated he was diagnosed with ischaemic heart disease in September 1994, which required a triple oblique quadruple bypass operation (T-document 4, folio 2D).
On leaving the RAAF, Mr Mitchell became a grazier, returning to the family farm in Southern Queensland.
I note the considerable assistance provided to the applicant in this case by Mr P Henssler of the Vietnam Veterans Association of Australia. This assistance incorporated other opinions of defence force personnel who had served in South-east Asia around the same time as Mr Mitchell. It refers to a belief that:
a)There was spraying of herbicides, commonly including Agent Orange in Vietnam, and, it is said, also in parts of Cambodia, Laos and Thailand;
b)He became contaminated with the herbicide;
c)Australian planes which landed on Vietnam air strips and returned to Ubon would have some contamination from herbicide and Mr Mitchell would have had to do radio maintenance checks on the equipment and get herbicide on his clothes;
d)On the American side of Ubon, there was a swimming pool which Australian personnel were permitted to use. It is said the Australian personnel “would most probably” have used that pool;
e)If the crew of planes were spraying herbicide or the local staff sprayed grass and vegetation in the base with pesticides, particularly near living quarters, then the veteran may have been affected by such poisons;
f)In the monsoon season, personnel lived in close quarters. It is suggested that if soiled clothing was hanging nearby, still with traces of herbicides, then all personnel around would have been able to smell it and would probably have been infected by it;
g)There was spraying of grass by ground personnel, using knapsacks or spraying from trailers, to keep grass down during the monsoon season;
Mr Henssler, at the hearing on 4 November 2004, said there was no evidence that Mr Mitchell was in Vietnam or that he had ever been involved in spraying herbicides.
At the hearing of this matter on 7 February 2011 (which is the decision being reviewed), Mr Henssler said he relied on Statement of Principle Number 28 of 2010 dealing with non-Hodgkin’s lymphoma. However, when the Veterans Review Board referred the SOP to him, it seems he conceded that he was unable to identify any factor which may have been able to link the veteran’s operational service with the condition at the time of his death.
CONSIDERATION
I have taken all of the material before me into account in reaching a decision in relation to the issues which arise for determination.
I note at the outset that, apart from the service personnel and medical records presented, there is no other medical evidence before me, particularly specialist medical reports, about a link between the causes of death and Mr Mitchell’s service in the RAAF; there is only one reference to such a possible opinion and that is contained in Mr Mitchell’s letter dated 21 June 1995 (T-document 4, folio 2A) where he refers to his oncologist, Dr Terrence Frost. However, no written opinion is made available from that doctor or any other relevant expert. I assume that is not an oversight as there is no such reference to other relevant medical events in any of the previous decisions dealing with this matter. I proceed therefore to assess the claim on the basis of the available material lodged with the Tribunal.
The Statutory Law
Mrs Mitchell, the wife of the veteran, is eligible to apply for a service pension and if the death of the veteran is war caused, the Commonwealth is, subject to the Act, liable to pay compensation to the dependents of the veteran (s 13 of the Act). The references in s 13 to “war caused” death is defined in s 8 of the Act, relevantly that the death of the veteran should be taken to have been war caused where the death arose out of or was attributable to any eligible war service rendered by the veteran (s 8(1)(b)). Mr Mitchell’s service in Ubon Thailand is eligible war service (see ss 7 and 6D(1)(a)(iii) of the Act).
In respect of Mrs Mitchell’s claim, while her husband undertook “eligible defence service” for the purposes of Part IV of the Act, services during the period of British nuclear testing in an area specified in s 69B may deem a defence force member to be covered by Part IV. In any event, where the death of a member of the forces was defence caused (either because of the application of s 69B or because the person rendered continuous full time service on or after 7 December 1972) (see s 68), the Commonwealth, subject to the Act, is liable to pay compensation to the dependents of the member (see s 70(1)). In addition:
(a) A death will be “defence caused” if the death “arose out of, or was attributable to, any defence service … of the member” (see s 70(5));
(b) Mrs Mitchell can be taken to be a “dependent” by virtue of ss 11 and 5E(2)(a) of the Act;
(c) Sections 120(1) and (3) of the Act are relevant to the standard of proof which is required to make a determination of the issues;
(d) Section 120A of the Act was proclaimed by statutory amendment in 1994. This resulted in the creation of the Repatriation Medical Authority (“RMA”) (s 196A). Section 196B of the Act then empowers the RMA to determine Statements of Principle (“SOP”). The only relevant SOP which has been determined for non-Hodgkin’s lymphoma is SOP Number 28 of 2010 (“the SOP”). The factors relevant to non-Hodgkin’s lymphoma in this case and which might be related to relevant service (as provided in paragraph 4 of the SOP) are itemised in para 6 of the SOP. The most likely sub-factors in paragraph 6 are itemised at (p), (q) and (r);
(e) Paragraph 5 of the SOP provides that at least one of the factors in paragraph 6 must be related to the relevant service of the person for the claim to succeed; and
(f) “Relevant service” is defined in paragraph 9 to mean operational service. The term “related to service” as used in the SOP is defined in s 196B(14) of the Act.
Assessment of the Issues in Dispute – Operational Service
I make the following findings of fact:
1.Mr Mitchell died of malignant non-Hodgkin’s lymphoma of the brain, non-Hodgkin’s lymphoma and diabetes mellitus.
2.The evidence submitted previously on behalf of Mrs Mitchell by Mr Henssler is noted. However, it is opinion evidence unsupported by corroborated evidence or scientific opinion.
3.The submission in paragraphs 12(d), (e) and (f) are speculative and unsupported by independent evidence and are uncorroborated.
Non-Hodgkin’s Lymphoma
The underlying question which the Tribunal must answer in relation to the cause of death is whether the non-Hodgkin’s lymphoma of the veteran is related to his operational service in Ubon, Thailand. I make a finding of fact that the reference to service in Thailand under s 69B of the Act (which refers to particular areas in Thailand but does not refer to Ubon), does not apply to the veteran. Nevertheless, service at Ubon, Thailand is within the bounds of his operational service.
For operational service it must be shown that the death “arose out of or was attributable to” the veteran’s war service. For the death to be “attributable to” his war service there must be a causal connection (Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133 per Dixon J). That would include activity reasonably required by the person’s duties and would include duties incidental to the core or primary duties (Roncevich v Repatriation Commission (2005) 222 CLR 115). On the other hand, it could be said that a condition, disease or death “arose out of” service which may not have such an obvious or direct connection with the veteran’s actual operational service in terms of time, space or location. It may however be a consequential effect of that service.
The standard of proof is critical to resolving this issue. Section 120(3)(c) of the Act provides that after consideration of all the material, the Tribunal shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war caused, if the hypotheses do not raise a reasonable hypothesis connecting the death with the particular defence service. Otherwise, the applicant must succeed.
The reasonableness of a hypothesis is to be assessed by following the requirements set out in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) which, relevantly for a death, can be said to be:
1.Determine whether all of the material points to a hypothesis connecting the death with the circumstances of the veteran’s particular service;
2.If so, ascertain whether there is in force a relevant SOP;
3.If so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with the applicable SOP; and
4.Consider whether it is satisfied beyond reasonable doubt that the veteran’s death was not war caused or did not arise from a war caused injury.
The material available credibly raises a hypothesis for the claim made. Deledio then requires an assessment of the factors in the SOP to determine if the hypothesis is reasonable. There is in existence SOP Number 28 of 2010 which is relevant to this claim.
The evidence here is scant in comparison to the factors set out in the SOP:
a)The only medical evidence is by way of the death certificate. The causes and duration of death are certified by Dr T.J. Frost, the veteran’s treating oncologist. There, it is certified that non-Hodgkin’s lymphoma had been present in the veteran for 5 years, that is, from about 1992;
b)The veteran had said he had flat lumps in his neck in 1954/55. This was not operational service nor is there any medical evidence to establish what the lumps were. Even if that was Hodgkin’s lymphoma, non-Hodgkin’s lymphoma did not, on the medical evidence, arise within 25 years of that time (factor 6(p));
c)There is no evidence that clinical onset of non-Hodgkin’s lymphoma occurred within 25 years of service at Ubon; i.e. within the period 24 April 1988 and 13 September 1988. It had occurred certainly by June 1995, some 32 years after the veteran’s service in Ubon (factor 6(q));
d)There is conjecture that Mr Mitchell may have inhaled herbicides or been in an environment where he may have breathed or ingested such chemicals. The notion that clothing may have been infected; that aircraft flew through radioactive smoke; and that the pool provided by the American Defence Force “would most probably” have been used by Australian servicemen raises a possibility but no direct evidence is offered. This is not an issue which can accurately be answered by the ordinary human experience. Therefore it should be answered by expert opinion;
e)I accept that grass in camp areas and around living lines would have been sprayed with weed killer; however, whether Mr Mitchell was infected is conjecture. This is because no evidence linking him to any of these possibilities has been demonstrated; and
f)The advocate representing Mrs Mitchell at the last hearing before the Veteran’s Review Board conceded there was no evidence of Mr Mitchell being in South Vietnam as required by factor 6(r) of the SOP.
In all, there are a number of possibilities but no direct link is offered which would point to a probability of its occurrence. The applicant does not bare a burden of proof but there needs to be more than the remote suggestions which have been submitted.
The standard of proof allows the applicant to succeed unless “there is no sufficient ground for making that determination” (s 120(1) of the Act). The significance or weight of the story proffered affects its probability of occurrence and, therefore, its acceptance. Here, the direct link or weight of facts which might be said to support the hypothesis is very low because it is almost wholly speculative. That is not to cast any aspersion on the veteran or the applicant, but for the application to succeed from a legal perspective there must be more than mere conjecture.
As stated, there is very little factually that helps to link the veteran’s service to his cause of death. Indeed, evidence of this nature is highly technical and it would ordinarily be expected that some “expert opinion” would be produced. Not only was no expert opinion from an oncologist or any other medical specialist produced, there have been no additional medical reports provided since the first application some years ago.
I must conclude that there is no material before the Tribunal which raises the essential elements of SOP Number 28 of 2010 (Repatriation Commission v Hill [2002] 69 ALD 581). The steps set out in Deledio, and therefore s 120(3) of the Act, cannot be established. Therefore, no reasonable hypothesis is raised and, under s 120(1) of the Act, I find there is no sufficient ground for making a determination that the death was war caused.
Non-Hodgkin’s Lymphoma of the Brain
No statement of principle has been issued by the RMA for this condition. Equally, no determination that it will do so has been declared as far as I can ascertain.
In the absence of any specific submission by the applicant and with no expert opinion to illuminate this issue, I cannot find that the claim is established to the required standard of proof; i.e. there is no sufficient ground for determining that the death was war caused (s 120(1) of the Act).
Assessment of Issue in Dispute – Defence Service
SOP Number 29 of 2010 is relevant in this regard. The standard of proof here is the balance of probabilities (paragraph 4). Again, there is no specific submission to assist the applicant’s claim and no expert opinion has been provided which might clarify any link between relevant service and the veteran’s death. The standard of proof to establish the applicant’s claim has not been satisfied.
Therefore, I find that in respect of all three bases of claim, that there is no sufficient ground for determining that the death of Mr Mitchell in relation to his defence service or operational service is related to any of his service in the RAAF.
DECISION
The decision under review is affirmed.
I certify that the preceding 34 (thirty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD.
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Associate
Dated 16 April 2012
Hearing on the papers 16 February 2012
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