Suckling and Repatriation Commission

[2003] AATA 862

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/328

VETERANS'       APPEALS     DIVISION

Re:         THELMA GLADYS SUCKLING

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G. D. Friedman, Member

Date:             3 September 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - widow's entitlement - small cell carcinoma of the prostate - whether carcinoma spread from lungs - smoking - whether death related to service

Veterans’ Entitlements Act 1986 ss8(1), 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

3 September 2003  G. D. Friedman, Member

1.      This is an application by Thelma Gladys Suckling (the applicant), widow of Leonard Suckling (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 25 February 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 17 November 2000 to refuse a claim for pension on the basis that the death of the veteran was not related to his service. 

2.      At the hearing of this matter on 22 August 2003 Mr D. De Marchi, solicitor, represented the applicant and Mr R. Fergusson, advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T10), together with three exhibits (Exhibits A1-A3) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.

BACKGROUND

4. The veteran was born on 31 July 1920. He enlisted in the Australian Army on 10 October 1941 and served in New Guinea and Bougainville. He was discharged on 29 May 1946. In accordance with s8 of the Veterans’ Entitlements Act 1986 (the Act), the period constitutes operational service.

5.      After a history of obstructive urinary symptoms, the veteran was diagnosed with carcinoma of the prostate and died on 1 May 2000.  The cause of death was certified as …Metastatic Small Cell Prostate Cancer - 5 months. 

6.      On 3 April 2002 the applicant sought review of the VRB decision by the Tribunal. 

EVIDENCE

7.      In a written statement dated 25 October 2002 (Exhibit A3) the applicant said that she met the veteran after his war service when he was 30 years old, and she believed that he might have been a smoker when she met him because she could smell cigarette smoke on him.  She said that he smoked during his service in New Guinea, and she believed that his smoking was related to service stress.  The applicant stated that the veteran suffered from malaria and several wounds.  She noted that, although he died from small cell carcinoma of the prostate, x-ray investigations of the lungs showed lesions, which she understood might have been primary lesions of the lung.

8.      In a written report dated 6 September 2002 (Exhibit A1), Dr R. Collins, consultant forensic pathologist, said that he had reviewed the medical records and had examined microscope slides prepared after prostatectomy surgery conducted in May 2000.  He stated that the material showed an extensive small cell carcinoma of the prostate, but noted that at the time the veteran presented with obstructive urinary symptoms in January 2000, x-ray investigations showed lesions in the lungs, liver, skeletal system and possibly the spleen.  Dr Collins stated:

…

Although there was no histological confirmation it was, not unreasonably, postulated that these lesions were all secondary deposits (metastases) from a primary located in the prostate gland.  However, in my view, it could not be reasonably excluded, on sound pathological grounds, that one of the areas of abnormality in the lungs identified on chest X-ray was, in fact, not a secondary deposit, but rather a primary lesion.

…

It should also be noted that primary malignancies of the lungs metastasise widely throughout the body and, although haematogenous spread to the prostate should be regarded as rare, the metastatic involvement of this gland from a primary lesion in the lung has been documented in the literature.

4.    Cigarette smoking is an accepted aetiological agent in the generation and progression of lung cancer, particularly small cell carcinoma.  If it is believed that the late veteran’s smoking habit was as a consequence of his experiences during the war, then it is my firm opinion that a reasonable hypothesis exists between his service and death, through the link between smoking and primary lung cancer with metastases involving lungs, bones, liver, spleen and prostate.

In a supplementary report dated 25 July 2003 (Exhibit A2), Dr Collins stated:

…

2.    It is conceded that the clinical history, as evidenced by the late veteran, could be regarded as consistent with a primary prostatic lesion.  However, I still hold the view it cannot reasonably be excluded, based on the presently available clinical, pathological, X-ray and histological information, that the malignant small cell infiltrate in the prostate was not a primary lesion, but a secondary deposit originating from the lung.

9.      In oral evidence Dr Collins explained that the lesions found in the lungs could have been the source of the carcinoma of the prostate which led to the death of the veteran.  In cross-examination Dr Collins agreed that the spread of a primary cancer from the lung was rare, but stated that it was possible.

10.     In a written report dated 10 April 2003 (Exhibit R5), Professor R. Fox, Director, Department of Clinical Haematology and Medical Oncology, The Royal Melbourne Hospital, stated:

…

Given the clinical descriptions by Dr. Reisner and the CT, he undoubtedly had a primary carcinoma of the prostate gland of a small cell carcinoma type…It classically is extremely malignant and usually patients present with concurrent metastatic disease.  It has nothing to do with small cell carcinoma of the lung.

…There was no evidence on radiology of a primary carcinoma of the lung, i.e a small cell carcinoma of the lung.  He had multiple secondaries, but this is consistent obviously with metastatic spread from his primary carcinoma of the prostate of small cell type. 

…

While in theory it is possible that metastases could come to the prostate, however, the clinical features described by Dr. Reisner and the CT scan are of a primary lesion in the prostate that has dramatically and significantly progressed.

Professor Fox told the Tribunal that he did not agree with the reports from Dr Collins, whom, he stated, had not noted the classic descriptions in the literature.  He said that Dr Collins’s report was not based on clinical experience of a primary small cell  carcinoma of the prostate.  He stated that Dr Collins had avoided an evidence‑based approach, and he described Dr Collins’s hypothesis as fanciful.  In cross‑examination Professor Fox stated that, after searching the literature, he had not been able to locate any examples of lung cancer metastasising to the prostate, and that smoking was not related to carcinoma of the prostate.

11.     In a report dated 28 January 2000 (Exhibit R3), Mr G.. Reisner, urologist, stated that the veteran suffered from a classic carcinoma of the prostate with the exception of the considerable extent of spread to the groin and to other areas demonstrated on the computed tomography (CT) scan.    

CONSIDERATION OF THE ISSUES

12. Section 8(1) of the Act provides:

(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:

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

Section 120 of the Act provides:

(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.

(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.

13. The provisions for dealing with the standard of proof in claims made after 1994 are to be found in s120A. It provides:

(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;

…

(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.

14. The principles to be applied in cases where s120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:

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.  

15. Mr De Marchi submitted that the reasonable hypothesis being relied upon was that the abnormality revealed by the lesions on the veteran’s lungs was a primary carcinoma (malignant neoplasm of the lung), which was a condition most likely connected with service‑related smoking and was a contributing factor to his death. The carcinoma of the lung then spread to the prostate, causing the death of the veteran, and that this raised a connection that came within s8(1)(b) of the Act.

16.      Mr De Marchi noted that the veteran suffered from a rare type of small cell carcinoma, and that the exact cause of the carcinoma of the prostate was impossible to determine.  He submitted that Dr Collins's evidence, that there was a possibility that the lung cancer caused the prostate cancer, was more balanced than Professor Fox's evidence.  Mr De Marchi stated that there was uncontradicted evidence that the veteran commenced smoking during service and that he satisfied risk factor 5(a) of Statement of Principles (SoP) N° 35 of 2001 concerning malignant neoplasm of the lung that brought the matter within the framework outlined in Deledio.  He also referred to the absence of a post mortem.  He submitted that public policy required the Tribunal to apply the Act in a manner beneficial to the applicant, particularly as the veteran had died and relevant evidence was accordingly limited.

17.     Although there was no mention of lung cancer in the death certificate, Mr De Marchi submitted that, on the evidence of Dr Collins, this could not be ruled out when applying the Deledio test.  He said that the decision of Selway J in Repatriation Commission v Hancock [2003] FCA 711 was of limited value because in that case Mr Hancock’s general practitioner believed that osteoarthrosis of both knees contributed to and expedited Mr Hancock’s death, whereas in the matter before the Tribunal the cause of death was clearly cancer of the prostate. Mr De Marchi said that the question before the Tribunal was whether the primary cancer was in the lung or the prostate.

18.     Mr Fergusson submitted that in Hancock Selway J set out the correct approach as follows:

…

(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.

19.     Mr Fergusson submitted that the first pre-conditions, other than causation (step (a)), were made out, in that Mr Suckling was a veteran, the applicant was his widow and that the veteran had died.

20.     In relation to step (b), concerning the kind of death (as identified in Hancock) suffered by the veteran, Mr Fergusson submitted that the Tribunal must determine the medical conditions contributing to death on the balance of probabilities, and not as a reasonable hypothesis.  He said that, on the evidence before the Tribunal, including the death certificate, the report from Professor Fox, clinical notes and even the report from Dr Collins, the kind of death suffered by the veteran was from malignant neoplasm of the prostate, and not malignant neoplasm of the lung.  Mr Fergusson stated that there was no radiological evidence of a primary carcinoma of the lung.  He submitted that the history of urinary symptoms and the advanced nature of the prostatic lesion on CT scan and clinical examination were a classic demonstration of the well‑recognised phenomenon of small cell primary carcinoma of the prostate.

21.     Mr Fergusson stated that for these reasons the only kind of death was malignant neoplasm of the prostate, so the applicable SoP is N° 84 of 1999 (as amended by N° 69 of 2002) concerning malignant neoplasm of the prostate.  Therefore, there was no necessity for the Tribunal to consider the question of the veteran’s smoking habits, which were not relevant to that SoP.  He submitted that the veteran was unable to satisfy the Deledio test in relation to malignant neoplasm of the prostate.

22.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.

23.     In following the approach laid down in Hancock, the Tribunal finds that the pre-conditions, other than causation, have been made out because Mr Suckling was a veteran, the applicant was his widow and the veteran had died.  In relation to a determination, to the Tribunal’s reasonable satisfaction (s120(4) of the Act), of the kind of death suffered by the veteran, the Tribunal notes that the death certificate and medical evidence state that the cause of death was metastatic small cell cancer of the prostate.  The Tribunal also takes into account the acknowledgment by Dr Collins, in his report dated 6 September 2002, that …it was, not unreasonably, postulated that these lesions were all secondary deposits (metastases) from a primary located in the prostate gland.  And his view that …it could not be reasonably excluded… that the abnormality in the lungs was a primary lesion.

24.     The Tribunal prefers the evidence of Professor Fox, who has had long clinical experience.  His findings that there was no radiology of primary carcinoma of the lung were supported by the clinical notes from various practitioners and the medical history of obstructive urinary symptoms suffered by the veteran.  The Tribunal accepts his evidence that, although relatively rare, primary small cell carcinoma of the prostate is highly malignant, with sufferers often experiencing concurrent metastatic disease in other parts of the body.

25.     For these reasons, the Tribunal is reasonably satisfied that the kind of death suffered by the veteran was small cell carcinoma of the prostate, identified in SoP N° 84 of 1999 (as amended by N° 69 of 2002) concerning malignant neoplasm of the prostate.   

26.     As there is an SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death.  Factors 5(a) to (d) of SoP N°84 of 1999 state:

(a)spraying or decanting a herbicide containing 2,4-dichloro-phenoxyacetic acid (2,4-D) or 2,4,5-trichlorophenoxyacetic acid (2,4,5-T), in circumstances likely to result in inhalation or absorption of the herbicide, at least five years before the clinical onset of malignant neoplasm of the prostate; or

(b)being on land in Vietnam or at sea in Vietnamese waters, for at least 30 days, at least five years before the clinical onset of malignant neoplasm of the prostate; or

(c)increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate; or

(d)inability to obtain appropriate clinical management for malignant neoplasm of the prostate.

Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis is reasonable.  That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him.  If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.  Factor 5(c) had been the basis of the claim before the VRB and was not pursued before the Tribunal, and no evidence was presented concerning the other factors.  Overall, there is no material or evidence pointing to the veteran meeting any of the relevant factors in the SoP, and therefore the hypothesis is deemed not to be a reasonable hypothesis, as it is not consistent with the template.

27.     Similarly, there was no evidence that would lead the Tribunal to conclude that lung cancer was a medical cause of death (or kind of death) (Hancock).  Therefore, the claim must fail.

DECISION

28.      The Tribunal affirms the decision under review.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  22 August 2003

Date of decision:  3 September 2003
Advocate for applicant:                Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Mr R. Fergusson
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs