Sahlqvist and Repatriation Commission - [2001] AATA 833

DECISION AND REASONS FOR DECISION [2001] AATA 833

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1999/208

VETERANS' APPEALS DIVISION          )
           Re      ELLA MAUD SAHLQVIST
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date4 October 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) I R WAY
MEMBER

Decision No: 833/2001
CATCHWORDS
VETERANS' APPEALS – widows' pension – reasonable hypothesis

Veterans' Entitlements Act 1986 ss 5(b), 6(a), 8, 11, 13, 14, 119, 120, 120A
Repatriation Commission v Deledio (1998) 49 ALD 193
Deledio v Repatriation Commission (1997) 47 ALD 261
Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

4 October 2001 Mr IR Way, Member

This is an application by Ella Maud Sahlqvist (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 17 December 1998 which affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 4 November 1997 that the death of the late husband of the applicant, William Roy Sahlqvist, was not related to his service.
The parties agreed that the Tribunal should proceed to make its decision on the papers before it, without proceeding to a formal hearing. The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (Document T1 – T6) and other documents as follows:

Statement by the applicant dated 15 July 1999
Statement by the applicant dated 2000
Written medical opinion of Dr PA Grant dated 28 July 1999
Minute to Dr PA Grant from Robert Morison dated 3 November 1999
Written medical opinion of Dr PA Grant dated 3 November 1999
Respondent's Facts and Contentions received by the Tribunal on 27 July 2001

The applicant is the widow of the veteran who rendered operational service as defined in subsections 5(b) and 6(a) of the Veterans' Entitlements Act 1986 (the Act), namely continuous full-time service outside Australia during World War II. Mr Sahlqvist rendered operational service as he served with the Australian Army from 18 December 1941 to 13 January 1946, including service in New Guinea and on Torokina.
Under Section 13 of the Act the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, when the death of a veteran was war-caused. A dependant of a deceased veteran, including a widow (Section 11) may make a claim to a pension under Section 14 of the Act.
The applicant contends that the veteran suffered dysentery on service and continued to suffer stomach upsets following service which led to ulcerative colitis which in turn led to cancer of the colon which caused his death on 25 August 1964.
The cause of death recorded on the veteran's death certificate (T4/58) is myocardial infarction (4 hours); disseminated carcinoma of the colon (16 months). The Tribunal notes that at T4/25-26 the autopsy report summary records carcinoma of the colon with widespread abdominal metastases and metastases in liver.
Legislative Scheme
The question of whether the death of a veteran who has rendered operational service is war-caused within Section 8 of the Act is to be decided by applying the standard of proof prescribed by Section 120 of the Act. With regard to the meaning of the expression "war-caused" a relevant part of Section 8 provides:
"8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e)the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise."

Section 120 describes the relevant standard of proof:
"120     Standard of proof
(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.
……
(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."

Other relevant provisions of the Act in respect of the claim are as follows:
"119     Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
          (a)       a claim or application;
          ……
          the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it things just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

Section 120A provides that the reasonableness of the hypothesis is to be assessed by reference to the Statement of Principles (SoP).
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…….
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."

Section 120(1) provides that the decision-maker must determine that the death of a veteran who rendered operational service was war-caused unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision-maker is satisfied beyond reasonable doubt that the material before it does not suggest that Section 8 of the Act applies, may the decision-maker determine that the death of such a veteran was not war-caused.
Section 120(3) provides that the decision-maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision-maker, the material does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
The Act provides that an hypothesis is not reasonable for the purposes of Section 120(3) unless a Statement of Principles (SoP) upholds the hypothesis.
Applicant's evidence
It was the applicant's evidence that she first met her late husband in 1936 and married him on 11 May 1946, shortly after his discharge from the Army.
She said that before service the veteran smoked one or two cigarettes per day, but increased this to 20-30 cigarettes per day during the war. He finally gave up smoking in about 1960.
It was the applicant's evidence that her late husband was in good health before the war, but that after marriage he regularly had periodic bad stomach upsets and diarrhoea, generally of one or two day's duration. She said that the veteran told her he had suffered from bad dysentery in New Guinea and that she treated him by giving him Kaomagma.
Following the veteran suffering a particularly serious stomach upset in the early 1960s the applicant stated she made him go and see Dr Vincent Parer, who she said diagnosed the veteran's condition as "ulcerative colitis". Following another bad attack, Dr Parer referred the veteran to a specialist, Dr Mitchell who operated on the veteran on 16 July 1963 and found cancer of the colon which eventually caused his death on 25 August 1964. The applicant stated that there was no history of colon disease in her husband's family and that her husband was "not really a drinker".
The Tribunal notes that in the "T" Documents there are a number of statements from soldiers from the same unit as the veteran testifying that they, along with the veteran, suffered from dysentery in New Guinea. Included in these statements is one from the Senior Medical Officer of the veteran's Brigade stating that to the best of his knowledge and belief the veteran was one of those affected and treated by him for dysentery during the Salamaua Campaign. Dr PA Grant, Senior Medical Officer Compensation, on reviewing the veteran's medical records expressed two relevant opinions as follows.
On 28 July 1999 Dr Grant opined:
"This opinion seeks to address the core issue of whether or not the late Mr Sahlqvist suffered from any pre-existing colonic disease of a type that would have increased his risk of developing malignant neoplasm of the colon.
2.        The clinical notes commencing on 12 July 1863 list the past medical condition as a bout of malaria in 1946 with no past surgery. The presenting features were being unwell for the previous four months with abdominal pain to the left of the umbilicus. There was no associated nausea and vomiting and the pain was not severe.
3.        The medical officer added that this was the first attack that Mr Sahlqvist had ever suffered. His bowels were opening three times a day whilst this was reported to have never happened before. There was no passage of blood per rectum or melaena stools. The veteran did not take any medication. Surgery on 16 July 1963 confirmed colonic cancer.
4.        On reading Mrs Sahlqvist's submission, it is quite possible that her late husband did suffer from one or more bouts of infective colitis when he was in Papua New Guinea. The clinical pattern she describes and for which her late husband attended Dr Parer before he was referred for bowel surgery are not at all consistent with ulcerative colitis, Crohn's disease or familial polyposis coli, in my opinion.
5.        Even if one of these three diagnoses were considered valid, it is difficult to see how condition can be causally linked to service. Nor is it at all likely that the bowel tumour is due to the stomach upset of 16 October 1944."

On 3 November 1999 in answer to further questions from the respondent with respect to whether the veteran suffered from colorectal adenomatous polyps, or ulcerative colitis, or Crohn's disease, Dr Grant stated:
"I have read the photocopies of the service medical records in the "T" documents with the express intention of trying to identify any symptoms or signs during service or thereafter to suggest colonic polyps, ulcerative colitis, or Crohn's disease.
2.        The only bowel disorder that I can find is that of piles or haemorrhoids. Mr Sahlqvist reported this to be a problem at the medical board of 14 May 1941 but he denied any problems at the medical board of 12 May 1943. The other incidents including I [sic] Papua New Guinea have already been discussed in my opinion of 28 July 1999. It is probably salient to note that no dysentery was noted at the final medical board of 8 October 1945 and no abdominal masses or haemorrhoids were seen.
3.        In my opinion, the history is quite clear concerning first presentation with malignant neoplasm of the colon on 12 July 1963. There are no clinical notes to suggest any of the above three conditions as precursors of the malignancy.
4.        I do not consider that there is any evidence that the late Mr Sahlqvist developed colorectal polyps, ulcerative colitis, or Crohn's disease at any stage of his life. He was a non-drinker and had not smoked for five years according to the history of 12 July 1963 but there is no record of any pre-existing bowel problems to suggest the above were present.
5.        The macroscopic report of the resected bowel specimen makes no mention of any colon polyps and the lesion itself was an encircling stenotic lesion near the splenic flexure. I should reiterate that the site and histology of the tumour for which extensive surgery of the upper gastrointestinal tract was undertaken the following year was not confirmed as being recurrent colonic malignancy."

Respondent's Contentions

The respondent contends that a reasonable hypothesis cannot be raised connecting the veteran's service and the death of the veteran since the material relied upon by the applicant does not fit the factors in the relevant SoPs, namely, Instrument No. 23 of 1996, Malignant Neoplasm of the Colon, and Instrument No. 141 of 1996, Inflammatory Bowel Disease.
In the alternative the respondent submits that should the Tribunal find a reasonable hypothesis is raised, there is material which contradicts the hypothesis, particularly the opinions of Dr Grant and that subsection 120(1) is not satisfied in that there are facts relied upon by the applicant which are disproved beyond a reasonable doubt.
Consideration
There is no dispute between the parties and the Tribunal accepts that the veteran died from disseminated carcinoma of the colon.
In determining whether the veteran's carcinoma of the colon was war-caused, the Tribunal, with respect, adopts the approach as set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, as follows:
"The course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. [This is now accepted as partially inaccurate; see the discussion of Gosewinckel below].
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

With respect to the third step, Heerey J at first instance in Deledio v Repatriation Commission (1997) 47 ALD 261, followed the test for "reasonableness" approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 as follows:
"Therefore when s 196B(2) says a factor "must …. exist" and "must be related to service", it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. [See [120.11] for Byrnes tests)…..
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. (at 275)."

After consideration of all the material before it, the Tribunal finds that the material points to an hypothesis connecting the veteran's death with the circumstances of his services, as contended by the applicant.
With respect to whether or not the RMA has determined a relevant SoP (or SoPs) pursuant to the Act, the Tribunal is satisfied that Instrument No. 23 of 1996 (as amended by Instrument No. 5 of 1998), Malignant Neoplasm of the Colon, and Instrument No. 144 of 1996 (as amended by Instrument No. 179 of 1996), Inflammatory Bowel Disease, are relevant.
Turning then to the question as to whether or not the hypothesis raised is a reasonable one. The factors under paragraph 5 of the SoP dealing with malignant neoplasm of the colon which might have bearing on this case are as follows:
"(a)suffering from a colorectal adenomatous polyp before the clinical onset of malignant neoplasm of the colon; or
(b)smoking cigarettes or other tobacco products, where the equivalent of at least 15 pack years were consumed 30 years or more before the clinical onset of malignant neoplasm of the colon; or
(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
…..
(e)suffering from ulcerative colitis before the clinical onset of malignant neoplasm of the colon; or
(f)suffering from Crohn's disease before the clinical onset of malignant neoplasm of the colon; or
(g)suffering from familial polyposis coli before the clinical onset of malignant neoplasm of the colon;
……
(m)inability to obtain appropriate clinical management for malignant neoplasm of the colon."

After careful consideration of all the material before it, and particularly the medical evidence, the Tribunal is satisfied that the only factor the material reasonably suggests is relevant, is factor 5(e), namely, "suffering from ulcerative colitis before the clinical onset of malignant neoplasm of the colon".
With respect to factor 5(e), "ulcerative colitis" is defined in the SoP as "a chronic inflammatory disease of the colon, usually limited to the mucosa and submucosa; characterised by diffuse inflammatory cell infiltrate and crypt abscesses, attracting ICD code of 556".
Instrument No. 144 of 1996, Inflammatory Bowel Disease, describes "inflammatory bowel disease" as a group of chronic inflammatory disorders involving the gastrointestinal tract, attracting ICD code 555 or 556, the most common of which are ulcerative colitis and Crohn's disease.
In view of this, Instrument No. 144 of 1996 must be applied in determining whether or not the hypothesis as contended for by the applicant is reasonable. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from inflammatory bowel disease with the circumstances of a veteran's relevant service are:
"(a)for Crohn's disease only, smoking at least one half of one pack-year of cigarettes or other tobacco products, before the clinical onset of Crohn's disease, and where smoking has ceased, the clinical onset has occurred within four years of cessation; or
(b)for Crohn's disease only, smoking at least one half of one pack-year of cigarettes or other tobacco products, before the clinical worsening of Crohn's disease, and where smoking has ceased, the clinical worsening has occurred within four years of cessation; or
(c)inability to obtain appropriate clinical management for inflammatory bowel disease."

The Tribunal is satisfied that none of the material before it reasonably suggests that any one of these factors exist.
The Tribunal is therefore satisfied that the raised hypothesis does not fit within the template to be found in the relevant SoPs and therefore is not a reasonable hypothesis. It follows that the applicant's claim fails.
The Tribunal affirms the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed:
Associate
Hearing on the Papers
Date of Decision 4 October 2001

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Citations

Sahlqvist and Repatriation Commission [2001] AATA 833

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Byrnes v Repatriation Commission [1993] HCA 51