Scott and Repatriation Commission (Veterans’ entitlements)

[2017] AATA 1

Scott and Repatriation Commission (Veterans’ entitlements) [2017] AATA 1 (11 January 2017)

Division:VETERANS' APPEALS DIVISION

File Number:           2015/2478

Re:Vivienne Scott

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Brigadier AG Warner, Member

Date:11 January 2017

Place:Perth

The decision under review is affirmed.

........................................................................

Brigadier AG Warner, Member

CATCHWORDS

VETERANS AFFAIRS – war widow’s pension – operational service – whether death war-caused – Statement of Principles No. 75 of 2012 as amended by Amendment Instrument No. 37 of 2016, concerning acute lymphoblastic leukaemia – factor 6(b), being exposed to benzene as specified – whether reasonable hypothesis connecting death to service – material found not to raise reasonable hypothesis – veteran’s death not war-caused – decision affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 – s 5B – s 6A – s 13(1) – s 120 – s 120A – s 196B

CASES

East v Repatriation Commission (1987) 16 FCR 517
Re Greenough and Repatriation Commission [2002] AATA 774
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313
Repatriation Commission v Hill (2002) 69 ALD 581
Whitworth v Repatriation Commission (2003) FCA 1530

SECONDARY MATERIALS

Statement of Principles No. 75 of 2012 as Amended by Amendment Instrument No. 37 of 2016

DVA SOP Bulletin No. 189 – Benzene SOP Factors, and attached footnote references

REASONS FOR DECISION

Brigadier AG Warner, Member

11 January 2017

INTRODUCTION

1. Mrs Vivienne Scott is seeking review of a Veterans’ Review Board (VRB) decision dated 9 March 2015 (T2). That decision affirmed a determination by a delegate of the Repatriation Commission dated 14 April 2014, that the death of Mr Alexander Scott was not related to service, and that a war widow’s pension was therefore not payable to Mrs Scott (T12).

2. Mrs Scott attended the hearing. She was accompanied by family members, Ms Wendy Lloyd and Mr Murray Scott, and was represented by Mr Peter Eddy of Perth Legacy.  

   BACKGROUND

3. Mr Alexander Scott was born in 1934 and served in the Australian Army from 16 July 1952 until 24 May 1957.

4. Mr Scott rendered operational service in Korea during the period 20 March 1954 to 5 April 1956. This constitutes “operational service” for the purposes of the Veterans’ Entitlement Act 1986 (the VE Act) – see s 5B(1)(c).

5. Mr Scott died, at age 79, on 18 December 2013. His death certificate records the cause of death as - atypical pneumonia (weeks), acute lymphoblastic leukaemia (months), hypertension (contributory cause) (T7/37). If Mr Scott’s death was “war caused” his widow is entitled to a compensation pension: VE Act s 13(1). On 26 February 2014, Mrs Scott lodged a claim for acceptance of the death of Mr Scott as being service related.

6. On 14 April 2014, a delegate of the Repatriation Commission determined that “the death of Mr Alexander J Scott is not related to service, and that a war widow’s pension is therefore not payable” (T12/58). The VRB affirmed the delegate’s decision on 9 March 2015 (T2/B1).

   ISSUE

7. The Tribunal must decide whether, on the material before it, the Tribunal can form the opinion that the material raises a reasonable hypothesis that Mr Scott’s death arose out of or was attributable to, or was contributed to in a material degree or aggravated by the particular circumstances of his operational service.

   LEGISLATION AND PRINCIPLES FOR DETERMINING “WAR CAUSED”

8. Mrs Scott’s claim relates her husband’s death to his operational service. Therefore that   death must be determined to have been “war caused” in the absence of satisfaction, beyond reasonable doubt, “that there is no sufficient ground for making that determination”:  VE Act s 120(1). That satisfaction is reached if the material relating to Mrs Scott’s claim “does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person”:  VE Act s 120(3).

9. Section 120A of the VE Act requires that the Tribunal assess the reasonableness of hypotheses in accordance with any Statements of Principles (SoP) issued by the Repatriation Medical Authority (RMA) or any relevant determinations or declarations under the VE Act.  SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between particular injuries, diseases or death and service. SoPs are binding on decision-makers at all levels, including the Tribunal.  A factor is “related to service” if, amongst other things, it has resulted from a service occurrence, arose out of the person’s service, was materially contributed to by the person’s service, or would not have occurred but for that service:  VE Act s 196B(14)(a), (b), (d) and (f).

10. Where a RMA SOP applies to a particular kind of death, a connecting hypothesis raised by the claim material can only be considered as reasonable for the purposes of the VE Act if it is upheld by the relevant SOP:  VE Act s 120A(3); Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313 at 97G. In circumstances where there is no SoP, nor a statement by the RMA that it does not propose to produce one, nor a relevant determination, an hypothesis will not be reasonable if it is either contrary to known scientific facts, obviously fanciful, remote or tenuous.

11. In Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; BC9801313, the Full Court of the Federal Court set out the steps that must be followed in matters like that presently before the Tribunal. The Tribunal must consider four distinct matters in determining whether a veteran’s death was “war caused”, where the claim relies on a circumstance “related” to a person’s operational service. Those matters are:

    a. Whether the claim material (that is, the whole of the available information, including contentious assertions) gives rise to a reasonable hypothesis relating the person’s death to their operational services;

    b.        Whether a SoP applies to the person’s kind of death;

    c. Whether the otherwise reasonable hypothesis contains any of the “factors” that an applicable SoP stipulates must be related to the claimant’s service; and

    d. if the claim material “points to” a required factor, a factual assessment is required. That assessment is whether any of the facts supporting the hypothesis have been disproved, or contradicted, beyond reasonable doubt.

    EVIDENCE

12. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-T19, ppA1-274, Exhibit 1);

    ·Applicant’s Statement of Facts, Issues and Contentions dated 29 September 2016, including attached journal extracts in total 9 pages) (Exhibit 2);

    ·Respondent’s Statement of Facts, Issues and Contentions dated 4 February 2016 (Exhibit 3);

    ·Clinical Notes – Murray Medical Centre, filed 24 August 2016 (Exhibit 4);

    ·Medical Report by Professor JF Cade dated 27 May 2016 (Exhibit 5); and

    ·The oral evidence of Professor JF Cade.

13. The Tribunal also had regard to DVA SOP Bulletin No. 189 – Benzene SOP Factors, dated 4 April 2016 and its attached footnote references. DVA has provided the information in the bulletin to assist delegates in applying benzene SOP factors.  Although not strictly evidentiary, the bulletin provides the Tribunal with useful guidance and contextual information.

    CONSIDERATION

    VRB decision

14. The Tribunal’s review is de novo, permitting the Tribunal to look at the law and facts, including any new evidence, as at the date of the hearing. That said, it is appropriate to look at the VRB decision (T2) where it has relevance to the present proceedings.

15. The VRB considered matters not presently before the Tribunal, in that it considered hypotheses relating excessive use of salt and post-traumatic stress disorder to hypertension.  In relation to Mr Scott’s exposure to benzene, which is under consideration in the present proceedings, the VRB decision states:

    23.In his verbal submission Mr Milligan explored the possibility, first raised in his 7 April 2014 written submission, that the veteran may have been exposed to benzene during his war service; exposure to benzene being a causal factor in the relevant SOP for acute lymphoblastic leukaemia.  He referred to a statutory declaration from the veteran, at folio 54, and the veteran’s claim, at folio 55.  Both of these describe how the veteran was exposed to fumes while living underground and in “winterised tents” for long periods while in Korea.

    24.The veteran also served as a vehicle driver from March 1955 to March 1956.  As such, he would have been regularly exposed to benzene.

    25. The relevant SOP factor, however, requires exposure on at least 600 days within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia.  Given this requirement, Mr Milligan conceded that the veteran’s circumstances did not meet the factor. (T2/B5 paras 23-25)

16. The VRB was satisfied that having regard to the evidence of Dr Yin, the date of clinical onset of Mr Scott’s acute lymphoblastic leukaemia was 2003 (T2/B5 para29, T16/71).  The Tribunal is similarly satisfied.

    Applicant’s new submission

17. In the Applicant’s Statement of Facts, Issues and Contentions dated 8 December 2015, Mrs Scott’s advocate at that time contended that both acute lymphoblastic leukaemia and hypertension contributed to Mr Scott’s death.  However, at the commencement of these proceedings, Mr Eddy expressly abandoned that statement and submitted a new statement dated 29 September 2016 (Exhibit 2).  The new statement relies only on acute lymphoblastic leukaemia. 

18. Having regard to the lack of notice for the submission of the new statement, the Tribunal accepted the respondent’s response that: “The respondent has no objection of that marked as an exhibit but obviously we don’t accept it as evidence of the truth of its content. So the assertion about the amount of benzene in the fuel, for example, is not accepted.”

    Matters not in dispute

19. A number of matters were common ground in the review proceedings and the Tribunal finds that:

    ·Mrs Scott was a dependent (widow) of the veteran, Mr Scott, when he died;

    ·Mr Scott rendered operational service during the period 20 March 1954 to 5 April 1956;

    ·Mr Scott died on 18 December 2013 and the “kind of death” has been determined as respiratory failure caused by diffuse lung pathology;

    ·Mr Scott was suffering from acute lymphoblastic leukaemia at the time of his death;

    ·Hypertension did not contribute to Mr Scott’s death and so was not the “kind of death”;

    ·Mr Scott’s acute lymphoblastic leukaemia was a “kind of death” for the purposes of the VE Act; and

    ·Mr Scott was exposed to benzene for more than 2 500 hours in the relevant period.

    Mrs Scott’s claim hypothesis

20. The hypothesis is that Mr Scott suffered acute lymphoblastic leukaemia as a result of inhaling vapours containing benzene emitted by fuel burning “choofers” in underground bunkers and weapon pits and in above ground winterised tents (T5/23).

21. At the hearing, Mr Eddy stated the hypothesis as:

    Our hypothesis would be that prolonged and high level exposure to benzene   during eligible service led to acute lymphoblastic leukaemia, causing the pulmonary infiltrates that caused the atypical pneumonia that caused his death.

    SOP

22. There is no SoP for atypical pneumonia or respiratory failure.  It was agreed between the parties and the Tribunal so finds that the relevant SoP in relation to Mr Scott’s acute lymphoblastic leukaemia is SoP No. 75 of 2012 as amended by Amendment Instrument No.37 of 2016.

23. Relevantly, SoP No.75 provides as follows:

    Factors that must be related to service

    5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

    Factors

    6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting acute lymphoblastic leukaemia or death from acute lymphoblastic leukaemia with the circumstances of a person’s relevant service is:

    (a) having received a cumulative equivalent dose of at least 0.01 sievert of ionising radiation to the bone marrow at least one year before the clinical onset of acute lymphoblastic leukaemia; or

    (b)       being exposed to benzene as specified:

    (i)for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia; and

    (ii)where the first exposure in that period occurred at least five years before the clinical onset of acute lymphoblastic leukaemia; or

    (ba)receiving greater than ten ppm-years of cumulative exposure to benzene before the clinical onset of acute lymphoblastic leukaemia, and where the first exposure occurred at least five years before the clinical onset of acute lymphoblastic leukaemia; or

    (c)undergoing treatment for a malignant neoplasm with an alkylating agent or a DNA topoisomerase II inhibitor before the clinical onset of acute lymphoblastic leukaemia, where the first exposure occurred at least one year before the clinical onset of acute lymphoblastic leukaemia, and where that exposure has ceased, the clinical onset of acute lymphoblastic leukaemia occurred within 20 years of cessation; or

    (d)receiving a solid organ transplant from a donor with lymphoma or lymphatic leukaemia before the clinical  onset of acute lymphoblastic leukaemia; or

    (e)inability to obtain appropriate clinical management for acute lymphoblastic leukaemia.

    Factors that apply only to material contribution or aggravation

    7.Paragraph 6(e) applies only to material contribution to, or aggravation of, acute lymphoblastic leukaemia where the person’s acute lymphoblastic leukaemia was suffered or contracted before or during (but not arising out of) the person’s relevant service.

    …

    Other Definitions

    9.        For the purposes of this Statement of Principles:

    “being exposed to benzene as specified” means:

    (a)having cutaneous contact with liquids containing benzene greater than 1% by volume; or

    (b)ingesting liquids containing benzene greater than 1% by volume; or

    (c)inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million;

    “cumulative equivalent dose” means the total dose of ionising radiation received by the particular organ or tissue.  The formula used to calculate the cumulative equivalent dose allows doses from multiple types of ionising radiation to be combined, by accounting for their differing biological effect.  The unit of equivalent dose is the sievert. For the purposes of this Statement of Principles, the calculation of cumulative equivalent dose excludes doses received from normal background radiation but includes therapeutic radiation, diagnostic radiation, cosmic radiation at high altitude, radiation from occupation related sources and radiation from nuclear explosions or accidents;

    “death from acute lymphoblastic leukaemia” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s acute lymphoblastic leukaemia;

    “8-hour time-weighted average (TWA)” means the averaging of different exposure levels to benzene during an average exposure period equivalent to eight hours;

    “ICD-10-AM code” means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10^th Revision, Australian Modification (ICD-10-AM), Seventh Edition, effective date of 1 July 2010, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 978 1 74210 154 5;

    “ppm-years” means parts per million multiplied by years of exposure;

    “relevant service” means:

    a)    operational service under the VEA;

    b)    peacekeeping service under the VEA;

    c)    hazardous service under the VEA;

    d)    British nuclear test defence service under the VEA;

    e)    warlike service under the MRCA;

    f)     non-warlike service under the MRCA;

    “terminal event” means the proximate or ultimate cause of death and includes:

    a)    pneumonia;

    b)    respiratory failure;

    c)    cardiac arrest;

    d)    circulatory failure; or

    e)    cessation of brain function.

24. At the hearing it was agreed that Mrs Scott’s claim relies only on factor 6(b) above as it relates to exposure to benzene as specified: “for a cumulative total of at least 2 500 hours within a continuous period of five years and before the clinical onset of acute lymphoblastic leukaemia; and where the first exposure in that period occurred at least five years before the clinical onset of acute lymphoblastic leukaemia.”  In this factor “being exposed to benzene as specified” means “inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million”.

    Medical evidence - Professor JF Cade

25. A medical report dated 27 May 2016 by Professor JF Cade, Emeritus Specialist in Intensive Care, states in part:

    The death certificate completed by the hospital’s Dr Levitt listed the direct cause of death as atypical pneumonia (weeks) with an antecedent condition of acute lymphoblastic leukaemia (months) and other significant contributing condition of hypertension.  There was no autopsy.

    Your specific questions may be answered as follows.

    1.  What was the cause of the veteran’s death?

    The cause of the veteran’s death was undoubtedly acute respiratory failure caused by diffuse lung pathology.  The nature of the lung pathology could not be diagnosed with certainty, despite extensive investigation.  It was considered most likely to be an atypical pneumonia (as listed on the death certificate).  However, there are many causes of a diffuse pulmonary infiltrate, and without histological examination (e.g. at autopsy) it is not possible to make more than a presumptive diagnosis.  Nevertheless, the progressive severity of the lung pathology and its failure to respond to multi-modality treatment indicate that death from it was both inevitable and imminent.

    The patient’s major underlying illness was acute lymphoblastic leukaemia.  As noted above, the available documentation does not contain details of this diagnosis or specialist opinion on his prognosis from it.  At all events, it appears to have been relatively quiescent at the time of his death, in that the FBE was apparently normal.  It is thus not clear to me how this malignancy may have contributed to his death at this time.

    Although the veteran had documented hypertension for many years before his death, it appears to have been well controlled and without complications, so that it is unlikely to have contributed to his death in any material way.  Thus, while it was a condition present at the time of the veteran’s death, in my opinion it is not correct to refer to it as a significant contributing condition (as on the death certificate).

    2.  Was there a causal relationship between the veteran’s death and his war-service?

    The veteran died over 50 years after the end of his war service, and until the year before his death there was no record of any major illness.  His terminal complication of respiratory failure was due to a recent severe lung condition, which was not able to be diagnosed with certainty and which cannot therefore be related to his prior service via any convincing mechanism.

    His major underlying illness (i.e. ALL) has been considered in detail by the Veterans’ Review Board, which found that none of the factors in the relevant Statement of Principles for this condition could be met.  I see no reason to disagree with this conclusion, given the available evidence.

    It has been suggested that the veteran’s hypertension could have been related to his service via either stress (i.e. PTSD) or excessive salt consumption.  Not only have these suggestions been discounted by the Veterans’ Review Board (a decision with which I concur), but more importantly I do not believe that the hypertension in turn contributed to his death, for the reasons listed above.

    Finally, there are no other recorded conditions which may have contributed to the veteran’s death, and thus no other plausible mechanisms that I can suggest which may have linked his death with his prior service (Exhibit 5).

1. In addition to his witness statement, quoted in part above, Professor Cade gave evidence by telephone conference at the hearing. In that evidence, Professor Cade told the Tribunal:

   ·There is a link between acute lymphoblastic leukaemia and pneumonia.  Leukaemia can cause proneness to infection, or if there is an infection, treatment might not be effective because treatment requires working blood cells to have a good response to antibiotics;

   ·It is very likely that Mr Scott’s acute lymphoblastic pneumonia played a role in leading to pneumonia because even though it was under control, it left the patient at high risk of infection.  However, there was not enough information to be certain how the acute lymphoblastic leukaemia caused the pneumonia;

   ·It is highly probable that Mr Scott’s underlying acute lymphoblastic leukaemia contributed to the pulmonary infiltrates;

   ·He had reviewed the “T Documents”, including a statement by Mr Scott, and was unable to identify any mechanism by which Mr Scott’s service and his acute lymphoblastic leukaemia could be connected; and

   ·In relation to the significance of the 50 years between the end of Mr Scott’s service and the contraction of acute lymphoblastic pneumonia, “I think the longer the time between one event and another makes the likelihood of their connection increasingly remote. There are some exceptions, such as asbestos for example, between exposure and cancer, but these are quite exceptional and by far the majority would be expected to occur much earlier.  So I just pointed out that there was an enormous delay.”

   SOP BULLETIN NO. 189

2. Mindful of the limited evidentiary role of this document in the Tribunal’s analysis, the bulletin provides some relevant information and guidance.

3. Military benzene exposure levels are explained as follows:

   Current or recent military service is generally not associated with exposure to potentially harmful levels of benzene.  Of particular note – currently used military fuels have low levels of benzene (much lower than petrol) and are generally not a significant source of exposure.  There may be specific occupational categories that are or were associated with increased exposure.  The circumstances in each individual case will need to be carefully considered.

   Measured benzene vapour in air levels for specific military settings are highly unlikely to be available.

   As a generalisation, the further back in time service occurred the greater the potential for significant benzene exposure.

4. Under the heading “Applying the SOP factors”, the bulletin states:

   Specific detailed information about a person’s benzene exposure will typically not be available and so applying the factors is unlikely to be straightforward.  The factors and associated definitions provide for exposure via three pathways: skin contact; ingestion; and inhalation.

   …

   Inhalation of benzene vapour at an 8-hour time-weighted average (TWA) benzene concentration exceeding five ppm is and was highly unlikely outside  of some specific industrial settings or in particular circumstances in small, poorly-ventilated, enclosed spaces.  A study by Glass et al on historic benzene exposure in Australia reported maximum exposure for a wide range of occupational activities that were all less than 5 ppm (table 4, p. 313).  Cumulative exposures of 5 or 10 ppm-years, via exposure to levels of benzene below 5 ppm were reported in the Glass et al study, but required long-term exposure.  On that basis the first SOP factor covering inhalation exposure (at a TWA of 5 ppm) is unlikely to be met, but the levels in the second factor (for ppm-years) might be achievable.

5. Although not specific to the particular circumstances of Mr Scott’s exposure to benzene, the footnote reference documents indicate a link between benzene and leukaemia.

   Deledio tests

6. The Tribunal now turns to the Deledio tests required in veterans’ matters of this kind and outlined at paragraph 11 above.

7. There are necessary antecedent enquiries before application of the Deledio steps.  They are: whether Mrs Scott is a dependent; whether Mr Scott has died, and if so his “kind of death”; and the nature of Mr Scott’s service. The Tribunal’s findings on these enquiries are at paragraph 19 above.

8. The Tribunal now turns to the first of the Deledio steps.  Mrs Scott’s hypothesis is detailed at paragraphs 20 and 21 above.  The Tribunal has found that Mr Scott was exposed to benzene during his operational service and that acute lymphoblastic leukaemia was a “kind of death” for the purposes of the VE Act.  There is material before the Tribunal that exposure to benzene can be linked to acute lymphoblastic leukaemia, and the RMA has produced a SoP accordingly.  On this basis, the Tribunal accepts that the material raises a hypothesis connecting Mr Scott’s “kind of death” with his operational service.

9. There is an applicable SoP is in force, namely SOP No. 75 of 2012, as amended by No. 37 of 2016.  The provisions of the SoP are detailed in paragraph 23 above.

10. In the third step of Deledio, the Tribunal must form the opinion whether the hypothesis raised is a reasonable one. At this step, the Tribunal is not concerned with proof or disproof of factors and is not engaged in fact-finding.

11. At the outset, the Tribunal repeats the cautionary comment in SOP Bulletin No. 189, that “applying the SOP factors is unlikely to be straightforward” and “the first SOP factor covering inhalational exposure (at a TWA of 5 ppm) is unlikely to be met”.

12. The Tribunal has found that Mr Scott satisfies that part of the SoP factor requiring exposure to benzene for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia.  However, this is not sufficient for the hypothesis to be considered consistent with the template in the SoP factor.  This is because there is no evidence pointing to Mr Scott inhaling benzene vapour with an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million.

13. Mr Eddy submitted that Mr Scott had been exposed to a considerable degree of hydrocarbons, citing the Health Study 2005: Australian Veterans of the Korean War, which stated:

    Army members during winter were also exposed to high levels of hydrocarbon  combustion products produced by the petrol-fed heaters known as ‘choofers’ and by the solid-fuel ‘hexamine’ heating blocks used for cooking.  Both were utilised within the confined and poorly ventilated underground spaces of individual ‘utchies’ (underground sleeping bunkers) and subsequently tent-lines (T5/27).

14. This information, and the general indirect evidence attached to SOP Bulletin No. 189, cannot be seen as evidence that all veterans who served in Korea were exposed to high quantities of benzene.  Nor does this material, in the Tribunal’s view, provide evidence pertaining to Mr Scott’s particular circumstances or to the specified level of exposure to benzene as required by the SoP.

15. Relevantly, a case that holds that for a hypothesis to be reasonable, the hypothesis must be consistent with the template in the applicable SoP is Repatriation Commission v Hill (2002) 69 ALD 581, which states:

    55.… Put another way, a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP).

16. East v Repatriation Commission (1987) 16 FCR 517, is relevant to consideration of a SoP which requires a specific exposure rather than pointing to some degree of exposure. East held as follows:

    The necessity for quantitative evidence in the particular case must depend on the nature of the hypothesis being expounded.  For example, if a tribunal accepts medical evidence that  condition B may be caused by any degree of exposure to factor A, that the veteran exposed to  factor A, and that he or she has subsequently developed condition B, it would be wrong to reject the claim because of the absence of evidence as to the extent of exposure.  The hypothesis itself makes quantity irrelevant.  If, on the other hand, the evidence is that exposure quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reasonable belief that the veteran was exposed to factor A to the extent of quantity X.

17. A second difficulty arises in determining the reasonableness of Mrs Scott’s hypothesis in that there is no medical evidence pointing to a connection between Mr Scott’s operational service and his acute lymphoblastic leukaemia.  Despite there being material before the Tribunal on the link between exposure to benzene and acute lymphoblastic leukaemia (and an applicable SoP), and the acceptance of acute lymphoblastic leukaemia as a “kind of death”, Professor Cade’s evidence points away from the hypothesis being reasonable.  In his evidence, detailed at paragraphs 25 and 26 above, Professor Cade stated that:

    ·     The enormous delay between the exposure to benzene and the onset of acute lymphoblastic leukaemia made the connection remote;

    ·     There was insufficient information to be certain how the acute lymphoblastic leukaemia caused Mr Scott’s pneumonia; and

    ·     He was unable to link Mr Scott’s death with his prior service.   

18. The respondent referred the Tribunal to a case involving exposure to benzene (although the hypothesis in that instance connected exposure to benzene with pancytopenia rather than acute lymphoblastic leukaemia as in the present matter): Whitworth v Repatriation Commission [2003] FCA 1530. Relevantly, in commenting on medical evidence, Ryan J held:

    Merely because a theory cannot be excluded as impossible, fanciful or contrary to the known facts does not entail it is reasonable…

    However, a theory that is entirely unsupported by any substantiating fact, and merely provides an explanation connecting a known condition with a known event in the applicant’s history, remains no more than a theory………..In a situation where the only clinical evidence points away from a hypothesis, it is self-evidently not a reasonable one (at 14-16).

19. Those comments, in the Tribunal’s view, are entirely applicable to the present matter.

20. The decision under review in the present proceedings was determined with reference to SoP No. 75 prior to amendment by SoP No. 37 of 2016.  In Re Greenough and Repatriation Commission (2002) AATA 774, Deputy President Forgie summarised the approach to be taken by the Tribunal in such circumstances, as follows:

    ·     First consider the claim by reference to the SoP in force at the date of the Tribunal’s decision;

    ·     If the consideration is favourable to the applicant, that is an end to the matter; and

    ·     If the consideration is not favourable to the applicant, consider the claim by reference to the SoP in force at the date of the Commission’s determination.

21. Although the relevant factor 6(b) in the unamended SoP did not contain the “benzene as specified” requirement, it required exposure to benzene on at least 600 days within a continuous period of five years before the clinical onset of acute lymphoblastic leukaemia.  Mrs Scott’s advocate at that time conceded that Mr Scott’s circumstances did not meet the factor (T2/5 para 25).  In the present proceedings there have been no submissions, and there is no material before the Tribunal, that would lead to a favourable conclusion under the previous SoP.

22. For completeness, the Tribunal considered other arguably relevant factors in SoP No. 75.  No submissions were made in relation to other factors listed in the SoP and the Tribunal was unable to identify any factors relevant to Mr Scott’s circumstances.

    CONCLUSION

23. After consideration of the whole of the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting Mr Scott’s death with the particular circumstances of his operational service.  As the hypothesis has failed at the third Deledio step, it is not necessary for the Tribunal to proceed to the fourth Deledio step.

24. The Tribunal is obliged in these circumstances to find that the decision under review should be affirmed.

    DECISION

25. The Tribunal affirms the decision under review.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

........................................................................

Administrative Assistant

Dated: 11 January 2017

Date of hearing:	3 October 2016
Advocate for the Applicant:	Mr P Eddy Perth Legacy
Counsel for the Respondent:	Mr A Schatz