Sands and Repatriation Commission

[2009] AATA 560

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 560

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0247

VETERANS'       APPEALS        DIVISION		)
Re		KATHLEEN JOY SANDS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier C. Ermert, Member

Dr R. McRae, Member

Date30 July 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

[sgd] C. Ermert

Brigadier C. Ermert, Member

VETERANS’ AFFAIRS ‑ operational service – death certificate for malignant neoplasm of the anal canal and ischaemic heart disease – kind of death – whether other factors contributed to kind of death – whether kind of death war-caused – whether material points to hypothesis – decision affirmed.

Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196B

Repatriation Commission v Hancock [2003] FCA 711

Repatriation v Codd (2007) 95 ALD 619

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

30 July 2009

Brigadier C. Ermert, Member

Dr R. McRae, Member

INTRODUCTION

1.      Gordon John Sands (the veteran), was born in 1919 and served in the Australian Army in World War II from December 1941 to December 1945.  As the veteran served outside Australia, the whole of his war-time service is operational service for the purposes of the Veterans’ Entitlement Act 1986 (the Act).  The veteran died on 28 September 2004 at the age of 85.  The cause of death was certified as metastatic bowel cancer and ischaemic heart disease.  At the time of his death the veteran had no war-caused disabilities for which the Repatriation Commission (the Commission) had accepted liability.

2.      On 22 May 2006 Mrs Kathleen Joy Sands, the veteran’s widow (the applicant), lodged a claim for widow’s pension.  The claim was refused by a delegate of the Commission.  That decision was reviewed by the Veterans’ Review Board (VRB) and affirmed on 28 November 2007.  The present matter is an application for review of the VRB decision. 

THE HEARING

3.      At the hearing Mrs Sands was represented by Mr D. De Marchi, solicitor of De Marchi and Associates.  The respondent was represented by Ms J. McCulloch of the Advocacy Section of the Department of Veterans’ Affairs.  For the applicant, the Tribunal heard evidence from Mrs Sands and Dr B. Collins, consultant forensic pathologist.  For the respondent, the Tribunal heard evidence from Professor J. Cade, principal specialist in intensive care at the Royal Melbourne Hospital, and Professor R. Fox, honorary consultant, Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital.

THE ISSUES

4.      The issues to be determined by the Tribunal are:

(a)the kind of death suffered by the veteran; and

(b)whether the veteran’s death was war-caused.

KIND OF DEATH

5.      The Tribunal’s first task is to determine, on the balance of probabilities, the kind of death suffered by the veteran.  In Repatriation Commission v Hancock [2003] FCA 711 (16 July 2003) Selway J laid out the process to be adopted (paragraph 11):

(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. None of these were in dispute.

(b) Next, the Tribunal was required to determine on balance of probabilities what `kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other `kinds of death' which were applicable to that death.

(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those `kinds of death'.

(d) If only a determination under s 180A(2) is applicable, then the application must fail.

(e) If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.

6.      The purpose of addressing the issue of the relevant kind of death is to establish which Statements of Principles (SoP) apply to the claim (Repatriation Commission v Codd (2007) 95 ALD 619 at 626). The kind of death to be considered is the medical cause of death including the contributing or underlying medical cause of death (Codd at 627). 

7.      In this case the pre-conditions to addressing the issue of the relevant kind of death are not in dispute: namely that Mr Sands was a veteran who died and Mrs Sands is his widow.

8.      In regard to the kind of death suffered by the veteran, the death certificate lists the causes of death to be metastatic bowel cancer and ischaemic heart disease.  The applicant contends that the conditions of malignant neoplasm of the anal canal (SoP Instrument No.34 of 2002), malignant neoplasm of the colorectum (SoP Instrument No.1 of 2004), ischaemic heart disease and anxiety disorder should be considered as contributing to the kind of death.  The respondent submits that the kind of death was only metastatic cancer of the anal canal and that malignant neoplasm of the colorectum and ischaemic heart disease did not contribute to the veteran’s death.  The respondent submits further that there is no evidence that the veteran suffered a clinical condition of anxiety disorder.  The four conditions will be considered in turn.

Malignant Neoplasm of the Anal Canal

9.      Both parties agree that malignant neoplasm of the anal canal contributed to the kind of death suffered by the veteran.  This is supported by the evidence of Professor Cade, Professor Fox and Dr Collins.  Accordingly, the Tribunal is satisfied that malignant neoplasm of the anal canal contributed to the kind of death suffered by the veteran.  The relevant SoP for this condition is Instrument No.34 of 2002. 

Malignant Neoplasm of the Colorectum

10.     In his reply to the respondent’s written submissions, Mr De Marchi submitted that it is open to the Tribunal to conclude that malignant neoplasm of the colorectum applies in this case and stated that the evidence of Professor Fox supports this contention.  However, in his report dated 13 March 2009 (Exhibit R3) Professor Fox states In May 2004 it was unfortunately found that his squamous cell carcinoma of the anus had recurred.  An EUA showed recurrence in the lower third of the rectum.  … The death certificate states that death was due to metastatic bowel cancer … The use of the term metastatic bowel cancer is technically incorrect and that referred to an adenocarcinoma of either the rectum or the colon.  A more correct description was metastatic cancer of the anal canal (squamous).  In his oral evidence Professor Fox stated that the veteran had a squamous carcinoma of the anal canal (Transcript page 78).  When asked if the neoplasm was at the junction of the anal canal Professor Fox said I am not sure if it was at the junction.  It was in the anal canal… (Transcript page 81). 

11.     In his written report dated 17 February 2009 (Exhibit A2), Dr Collins stated that the biopsy report prepared by Pathologist Dr R. Bunter dated 11 September 2002 indicated a poorly differentiated squamous carcinoma immediately inside the anal canal.  Dr Collins did not comment further on this condition during his oral evidence.

12.     In his report dated 6 March 2008 (Exhibit R2) Professor Cade stated that the cause of the veteran’s death was undoubtedly metastatic bowel cancer, as listed on the death certificate.  In his oral evidence Professor Cade stated that this entry on the death certificate was undoubtedly correct as the particular cancer had been … demonstrated and confirmed with great sophistication at a specialist centre (Transcript page 62).  Professor Cade stated that the cancer was a squamous cell carcinoma at the anorectal junction and it had a different histology from the carcinoma of the rectum or the colon (Transcript page 71).  When asked specifically if the diagnosed cancer met the definition of a malignant neoplasm of the colorectum, as defined in Instrument No.1 of 2004, Professor Cade said this carcinoma was high in the anal canal, at the anorectal junction.  He stated that it did not comply with the SoP for malignant neoplasm of the colorectum but it did comply with the SoP for a malignant neoplasm of the anal canal (Instrument No.34 of 2002) (Transcript page 73).

13.     The medical evidence is thus unanimous in placing the site of the neoplasm in the anal canal.  There is no evidence of a malignant neoplasm of the colorectum.  The Tribunal is reasonably satisfied that the veteran did not suffer from a malignant neoplasm of the colorectum and finds that Instrument No.1 of 2004 does not apply in this case. 

Ischaemic Heart Disease (IHD)

14.     Mr De Marchi submitted that IHD was listed on the death certificate and that it was reasonable to postulate that it was present and part of the terminal event and death.  He submitted that if the veteran had not suffered from IHD he might have had the operation on his cancer which may have prolonged, if not saved, his life.

15.     In his report (Exhibit A2) Dr Collins stated that a palliative abdomino-perineal resection was considered for the veteran but was rejected as he was classified as a high surgical risk.  Dr Collins went on to say

This risk, in all probability, was contributed to in part by the late Mr. Sands’ well documented, ischaemic heart disease … and, therefore, it could reasonably be argued on sound pathological grounds, that this heart disease contributed to or, at least, hastened his demise, by depriving him of a potentially life-extending, tumour debulking operation. 

In his oral evidence Dr Collins acknowledged the successful coronary artery bypass graft surgery performed on the veteran 16 months before he died but said that coronary heart disease still needed to be taken into account.  He referred to a note dated 30 June 2004 that the veteran’s doctor had ceased treating the veteran with Avapro, which Dr Collins thought was a diuretic used to control his cardiac status (Transcript page 36). 

16.     Dr Collins went on to say that despite the fact that the veteran’s cardiovascular system was under reasonable control, an undertone of cardiac disease was still present at the time of making the decision not to operate.  Dr Collins also referred to the veteran’s Discharge Summary from the Peter MacCallum Cancer Centre (T documents page 157) which state the results of a Persantin Thallium Stress Test as scan findings are suggestive of mild reversible ischaemia in the left circumflex vascular territory.  Dr Collins said that, from the thallium test, there is obviously some level of IHD present even though the applicant had had a coronary bypass graft (Transcript page 37).

17.     Dr Collins was asked to comment on the statement by Professor Cade that it would seem unlikely that the assessment of the veteran being unfit for major surgery would have been related to his prior IHD.  Dr Collins said that although there was not enough detailed medical information to make a further assessment … it seems to me that if this man does on his thallium stress test have still evidence of ischaemia then that’s got to be thrown into the mix as well (Transcript page 39). 

18.     When asked by Mr De Marchi if IHD played a part in the death of the veteran, Dr Collins said If it’s accepted that the ischaemic heart disease was a factor in the abandonment of the abdominal perineal resection operation then yes, it did play a role (Transcript page 41).  Later, Dr Collins stated that there was no evidence that IHD contributed to the veteran’s death other than its affect on the decision not to perform the potentially life-prolonging operation (Transcript page 48).

19.     Professor Cade was asked whether the cessation of treatment of the veteran with Avapro indicated that the veteran was suffering IHD.  He said that it had nothing to do with IHD but was related to the management of the veteran’s low blood pressure. 

20.     When asked whether the veteran’s IHD was a cause of the rejection of the potential surgery Professor Cade said

… I thought it was a good suggestion …but … on close examination I felt that that suggestion did not stand up to detailed scrutiny … although the patient had significant coronary artery disease in the past, coronary artery by-pass surgery had been performed over a year beforehand … He had no symptoms subsequently, and under those circumstances one would regard his cardiac state as not a contra-indication to major surgery … On the other hand, he also had a severe aortic stenosis, … and that too had been treated with an artificial valve.  Now the presence of an artificial valve is potentially problematic for major surgery … So it was really no surprise that the palliative surgery was changed to palliative radiotherapy (Transcript page 64). 

21.     Professor Cade was also asked about the significance of a condition being included on a death certificate.  He responded So the fact that some things are on a death certificate doesn’t mean that it caused death, and I always take it that it may or may not have contributed to death, but it is perfectly understandable to see it listed as a significant condition present at death, but not necessarily contributing to death… (Transcript page 65).  When asked about the present matter Professor Cade said that the death certificate indicated that IHD was present at death, but whether or not it contributed to death is an open question… (Transcript page 66). 

22.     Professor Cade, when asked about symptoms of IHD following the veteran’s earlier cardiac operations, said that the cardiomegaly and pulmonary venous congestion noted in the Discharge Summary from the Peter McCallum Cancer Centre (T Documents page 157) were related to the veteran’s heart valve disease. 

23.     Professor Cade agreed that the veteran’s problems of narrowing of the arteries, left ventricular enlargement, his age and the size of the operation and all other things relating to his health were all part of the equation when considering whether an operation ought to go ahead.  In a further explanation of the consideration about whether to proceed with the perineal resection surgery, Professor Cade said that prior coronary artery surgery would not be considered a bar to major curative cancer surgery but it would be a consideration for palliative surgery where the patient could have radiotherapy instead of surgery.  He said that in this case the greater worry was the problem of the veteran’s aortic valve. 

24.     In his evidence on the consideration of the treatment options for the veteran’s cancer Professor Fox said that radiation therapy was probably not considered on the basis of his previous radiation therapy.  He thought that surgery was ruled out on the basis of the veteran’s pre-existing condition, his known underlying cardiac disease, his age, and that the surgery is not really going to be a life-prolonging procedure because he has a metastatic disease involving his vertebral column plus he has a metastases in his lung … given the known poor outcome of such a massive operation … It’s not a terribly good thing to offer (Transcript page 79).  Professor Fox referred to a review of the management of carcinoma of the anal canal conducted at the Royal Melbourne Hospital, taken in as Exhibit R5, in which the authors noted the problems of treating patients over the age of 75.  Professor Fox said that the review does not suggest that the veteran’s life was shortened by not having the operation.  In fact, I suspect he was very lucky not to have had the operation, because I suspect he would have died at roughly the same time, but had to have spent that time in hospital after the surgery, plus having to have to manage a colostomy (Transcript page 79). 

25.     In response to the suggestion from Dr Collins that surgery on anal cancer together with radiotherapy would possibly have extended the veteran’s life, Professor Fox said that the radiation would not be curative but just a pain-relieving process and would not go to survival.  Professor Fox stated that in his opinion the operation would not have prolonged the veteran’s survival. 

26.     When asked whether IHD had played a role in the cause of death of the veteran, Professor Fox said I would say it had no role in the cause of his death.  He died from his cancer (Transcript page 81).

Consideration

27.     The issue before the Tribunal is whether IHD was a factor in the medical cause of death of the veteran.  The Tribunal has the opinion from Dr Collins, a forensic pathologist, that the veteran’s IHD had an affect on the decision not to perform the potentially life-prolonging operation of a perineal resection.  On the other hand, the Tribunal has the opinion of Professor Cade that that suggestion did not stand up to detailed scrutiny and that the veteran’s aortic valve would have been a factor in his high rating of surgical risk.  Professor Cade also said that the inclusion of IHD on the death certificate meant only that the condition was present at the time of the veteran’s death and did not mean that it contributed to his death.  Professor Fox’s evidence was that IHD had no role in the cause of the veteran’s death.  He stated further that the surgery would not have prolonged the veteran’s survival. 

28.     The Tribunal prefers the evidence of Professors Cade and Fox, both practising clinicians, to that of Dr Collins who, although an experienced forensic pathologist, is not a practising clinical cardiologist or oncologist.  On the balance of probabilities the Tribunal finds that IHD was not a factor in the veteran’s cause of death and is therefore not a factor in the kind of death suffered by the veteran.

Anxiety Disorder

29.     Mr De Marchi submitted that, although the veteran was fit and healthy before he went off to war, he was affected by his operational service and developed an anxiety condition as a result of being socially isolated and unable to maintain his family relationship while he was overseas.  In her written statement (Exhibit A1) Mrs Sands said

Upon his return from the War, he would never talk about his experiences but I noticed that he had become a nervous and withdrawn person, who did not like crowds.  We courted between 1947 and 1949 and married in 1949, upon which I noticed that he did not sleep well at night.  At the time he was seeing Dr Sleeman, but I am not sure whether the doctor prescribed any medication for anxiety …. 

30.     In her evidence Mrs Sands said relevantly that the veteran never wanted to leave his farm, he had restless nights, he tended to worry about everything and he probably had trouble concentrating. 

31.     In considering the kind of death suffered by the veteran, the Tribunal must consider the medical cause of death including the contributing or underlying medical cause of death.  In this case no evidence was presented to the Tribunal that the veteran suffered from a clinically significant anxiety condition.  There is no diagnosis from a medical practitioner of such a condition.  As a consequence, the Tribunal is not reasonably satisfied that an anxiety condition was a factor in the veteran’s cause of death.  The Tribunal finds that an anxiety condition is not a factor in the kind of death suffered by the veteran.

Summary of Kind of Death Considerations

32.     From its deliberations the Tribunal is reasonably satisfied on the balance of probabilities that the kind of death suffered by the veteran was consequent to a malignant neoplasm of the anal canal, as defined in Instrument No. 34 0f 2002.  The Tribunal is also reasonably satisfied on the balance of probabilities that the conditions of malignant neoplasm of the colorectum, IHD and anxiety were not contributory factors in the kind of death suffered by the veteran.

33.     The Tribunal will now proceed to apply the methodology of Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 to determine whether the veteran’s kind of death was war-caused.

Was the Veteran’s Kind of Death War-caused?

34. The question of whether an injury or disease is taken to be war‑caused is covered in section 9 of the Act. This section relevantly provides as follows:

(1)Subject to this section, … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…

35. The parties agree that the veteran’s service constitutes operational service. Thus the question of whether death is war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act. Those sections provide that:

(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.

36. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from section 120A(3), which relevantly provides:

(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.

37. Section 196B(2) of the Act provides, in effect, that if the RMA is of the view that:

…there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)operational service rendered by veterans…

the Authority [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d)the factors that must as a minimum exist; and

(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

…

38. The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act. Section 196B(14) provides that:

A factor causing … an injury… is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)it arose out of, or was attributable to, that service…

39. Malignant neoplasm of the anal canal is the subject of an SoP. Therefore, the Tribunal must apply the test prescribed by section 120A(3) of the Act, which was explained by the Federal Court in Deledio in the following way:

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.

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 ss 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.

Is there Material pointing to a Hypothesis connecting Malignant Neoplasm of the Anal Canal to Operational Service?

40.     Mr De Marchi submitted that the veteran did not obtain appropriate clinical management for the malignant neoplasm of his anal canal and referred to factor 5(e) of Instrument No.34 of 2002.  Mr De Marchi’s submissions went no further in enunciating the hypothesis connecting the veteran’s condition with his war service.  From the evidence presented on behalf of the applicant and the remainder of Mr De Marchi’s submissions, the Tribunal draws the inference that the hypothesis being advanced is that due to his IHD the veteran was denied a surgical procedure which may have prolonged his life and that the IHD was connected to his war service by the veteran’s hypertension. 

41.     The respondent submits that no evidence was led that the requirements of the SoP are met in this case.

42.     The Tribunal has already found that the veteran’s IHD was not a factor in the decision not to perform the perineal resection surgery for the veteran’s cancer.  In addition, the Tribunal is satisfied from the evidence of Professor Fox that the operation would not have prolonged the life of the veteran.  The Tribunal has already found that the veteran’s IHD was not a factor in his cause of death.  Thus, there is no material connecting the veteran’s malignant neoplasm of the anal canal with his operational service.  As a result, the applicant’s claim fails at this point and there is no need to proceed further with the Deledio process.

DECISION

43.     The Tribunal affirms the decision under review.

I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member and Dr R. McRae, Member

[sgd]: Leah Berardi

Clerk

Date of Hearing:  17 April 2009

Date of Decision:  30 July 2009

Solicitor for the applicant:     Mr D. De Marchi, De Marchi & Associates

Representative for the respondent:    Ms J. McCulloch, Advocacy Section, Department of Veterans’ Affairs