Trower and Repatriation Commission

[2006] AATA 113

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/320

VETERANS' APPEALS DIVISION		)
Re		JOYCE EDNA TROWER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date10 February 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..........[Sgd].......

KS Levy
  Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service of applicant’s husband - non-Hodgkin’s Lymphoma – coeliac disease – alleged link to gluten intolerance – exposure to toxic chemicals and radiation – decision affirmed.

Veterans’ Entitlements Act 1986 ss 6, 7, 120, 120A

Repatriation Commission v Budworth [2001] FCA 1421
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

10 February 2006 Dr KS Levy, Member   

The Introduction

1. The applicant, Joyce Trower, has lodged an application dated 25 May 2005 under section 29(1) of the Administrative Appeals Tribunal Act 1975.  This application seeks review of the decision of the Veterans’ Review Board dated 14 April 2005.  That decision affirmed a previous determination of the Repatriation Commission dated 9 December 2004, which held that the death of the applicant’s late husband from non-Hodgkin’s Lymphoma was not war-caused.  That determination was made under the Veterans’ Entitlements Act 1986 (the Act).

2.      A previous claim by the applicant also determined that Mr Trower’s death was not war-caused.  That determination was made by the Repatriation Commission on 11 February 1999 and was affirmed by the Veterans’ Review Board on 11 November 1999.  The applicant also sought review of that decision, which was affirmed by the Administrative Appeals Tribunal on 16 December 2003.

3.      The previous claims have considered factors set out in Statements of Principles (SoP) No 80 of 1999 (non-Hodgkin’s Lymphoma) and included consideration of the veterans’ use of toxic chemicals and radiation in his employment in World War II.  Consideration of all submissions to date on both previous claims, has not been successful for the applicant.  The present application is made under an updated SoP No 37 of 2003 (non-Hodgkin’s Lymphoma) and is concerned with Factor 5(g), which seeks to link Coeliac Disease to non-Hodgkin’s Lymphoma, and the clinical onset of Coeliac Disease to the veterans’ terminal disease of non-Hodgkin’s Lymphoma.      

4.      The application has been dealt with on the papers at the request of the parties.

Documentary Evidence

5.      The following documents were before the Tribunal.

Exhibit 1Documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975

Exhibit 2Three undated sets of documents from the applicant (11 folios)

Exhibit 3Copy of a letter by Dr Sherif Farag dated 24 February 1999

Exhibit 4Letter from the applicant to Sciacca’s Lawyers dated 25 July 2005

Exhibit 5Letter from the applicant to Sciacca’s Lawyers dated 14 September 2005

Exhibit 6Memorandum from Sciacca’s Lawyers to Administrative Appeals Tribunal dated 26 July 2005

Exhibit 7Letter from Mr George Mason dated 9 September 2005

Exhibit 8Letter from Mr FM Treacy to the Administrative Appeals Tribunal dated 30 August 2005

Exhibit 9Letter from Mr GA Mason regarding the deceased’s military service, dated 5 September 2005

Exhibit 10Documents submitted by Sciacca’s Lawyers to the Administrative Appeals Tribunal dated 30 September 2005

Exhibit 11Applicant’s Statement of Facts and Contentions by Legacy Advocate (received 28 November 2005)

Exhibit 12Respondent’s Statement of Facts and Contentions dated 8 December 2005

Exhibit 13 BBC News extract on Coeliac Disease (from internet) dated 22 April 2005.

Brief History

6. The applicant’s husband (the veteran) served in the Australian Army during World War II for the period 2 June 1942 to 11 June 1946. That period was also eligible war service and operational service (see sections 6 and 7 of the Act). The veteran was employed with the Australian Army as an instrument maker.

7.      After service with the Army in Australia, the veteran served in New Guinea, arriving in Aitape on 3 January 1945.  He was posted there to 110 Brigade Workshops.  He was then transferred to 133 Brigade Workshops in Rabaul on 13 January 1946.  On 14 February 1946 he was posted to 12 Advanced Workshops.  He was hospitalised whilst there, from 11 April 1946 to 21 May 1946.  On discharge from the hospital, he was transferred to 8 MD Area Workshops and then left Rabaul on HMAS Kanimbra on 25 May 1946, to return to Australia.  He disembarked in Sydney on 1 June 1946 and was formally discharged from the Army on 3 July 1946.

8.      The veteran has an accepted disability of malaria on his record.  No other medical conditions were accepted prior to his death.  The veteran died on 26 December 1998 in the Mater Misericordiae Hospital, Townsville.  He was 74 years of age.  The Death Certificate reveals the cause of death as “Mantle cell lymphoma”.  The duration of that illness prior to death is shown as being two years.  Therefore, the clinical onset of non-Hodgkin’s Lymphoma can be determined as being 1996 (see Folio 222).

Consideration  

9.      There is no dispute about the veteran’s operational service.  Also, the diagnosis shown on the Death Certificate is not in dispute.  Linking the official cause of death to the SoPs is the main question for resolution.

10. The assessment of the length of time between war service and causation of death must be resolved in accordance with the standard of proof found in sections 120(1) and 120(3) of the Act. The latter section requires the Tribunal to assess whether a reasonable hypothesis of connection can be raised which links the veteran’s operational service and the relevant medical condition. For applications lodged after 1 June 1994, the assessment under section 120(3) is qualified and requires consideration of the SoPs which are issued in respect of various medical conditions. These are issued under the authority of the Repatriation Medical Authority (RMA). Section 120A provides that the hypothesis of connection between the relevant condition and operational service will only be “reasonable” as referred to in section 120(3), where the veteran’s circumstances are in accordance with the SoP requirements.

11. Where the SoP requirements are met, and a reasonable hypothesis is raised, the Tribunal is required to conclude that the condition is war-caused, unless it can be satisfied beyond reasonable doubt that there is no justification for making that decision. That would require an examination of the evidence by invoking section 120(1) of the Act.

12.     Initially, the Tribunal must be satisfied to its reasonable satisfaction, that is, on the balance of probabilities, about the “kind of injury” or “disease” which has been suffered by the veteran.  The Tribunal must be satisfied as to two issues –

(i)        that the applicant’s husband is a veteran; and

(ii)in order to determine whether an SoP applies, the “kind of injury, disease or death” which is the basis of the veteran’s claim, must be identified (section 120A(3) of the Act).

13.     In this case, the veteran’s operational service is not in dispute.  In relation to the kind of injury, disease or death, the Death Certificate makes it clear that the veteran died from Mantle Cell Lymphoma.  This is a form of non-Hodgkin’s Lymphoma for which an SoP has been issued.

14. The standard of proof to be satisfied in this case, which is set out in sections 120(1) and 120(3) of the Act, is the reverse onus of proof of the criminal standard. That is, the standard to be applied “beyond reasonable doubt” (Repatriation Commission v Budworth [2001] FCA 1421). That standard requires that if the Tribunal is satisfied beyond reasonable doubt that there is a sufficient ground for linking the disease to the operational service of the veteran, then it must determine that the death was due to war service. To be satisfied that there is no sufficient ground beyond reasonable doubt, then the Tribunal must find, after considering the whole of the material, that a reasonable hypothesis is not raised which links the disease to the relevant operational service. The test to be applied to satisfy the sections were set out by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 as follows:

“The claim will succeed unless:  (a)  one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”

15.     The approach to assessment of this claim under relevant SoPs has been outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. The matters to be considered are these:

(i)        Does the material point to an hypothesis connecting the death with the        veteran’s service?

16.     In Deledio, it was said that the Tribunal must consider all the material which is before it although no question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail. 

17.     Here, the cause of death is listed on the Death Certificate and this has not been challenged.  The principal problem is that the applicant maintains an hypothesis which links her husband’s death from a form of non-Hodgkin’s Lymphoma to his military service.  She argues that it is related to Coeliac Disease at the time of the clinical onset of non-Hodgkin’s Lymphoma.  It has been submitted that the veteran had a long history of gluten intolerance, which can lead to Coeliac Disease.  There is some material which has been presented which at least raises a potential link between the veteran’s medical conditions and the symptoms of Coeliac Disease.  It is also argued that this connection is linked to the veteran’s war service because of the diet which the Army provided during World War II.

18.     The applicant also states that a doctor some years ago told her husband that his health problems were related to gluten intolerance and that it related back to his diet in the Army in World War II.  On the basis of what has been submitted to the Tribunal, I find that an hypothesis has been raised.

(ii)If the material raises an hypothesis, is there in force an SoP determined by the RMA?

19.     In the next step of the Deledio process the relevant SoP must be identified.  The relevant SoP in relation to the death of the veteran is Instrument No 37 of 2003 – non-Hodgkin’s Lymphoma.  As the basis of this claim is to link Coeliac Disease to non-Hodgkin’s Lymphoma, consideration must be given also to SoP Instrument No 17 of 1997 – Coeliac Disease.

(iii)      Is the Hypothesis raised a reasonable one?

20.     This is the third step in the Deledio process and requires a determination of whether the facts as stated by the applicant are consistent with the SoP.  For the purpose of this stage of the analysis, I accept the applicant’s account of the facts and now consider whether any of the factors identified in the SoP do exist.  If the relevant factors cannot be found to exist, the hypothesis would have to be regarded as not reasonable.  In that event, the claim would fail. 

21.     The issue for determination is based on Factor 5(g) of Instrument No 37 of 2003.  That requires that as a minimum, a reasonable hypothesis can only exist if there is a connection between death from non-Hodgkin’s Lymphoma with the circumstances of the veterans’ relevant service, by demonstrating Coeliac Disease at the time of the clinical onset of non-Hodgkin’s Lymphoma.  As stated earlier, the clinical onset of non-Hodgkin’s Lymphoma, based on the evidence in the Death Certificate, would indicate an onset in 1996.  The applicant’s Statement of Facts and Contentions argues that clinical onset “appears to have been approximately March 1999”.  That is clearly incorrect when the veteran in fact had died three months earlier in December 1998.  The onset of non-Hodgkin’s Lymphoma in 1996 is not inconsistent with some of the medical evidence such as the report of the Clinical Haematologist, Dr Sherif Farag dated 24 February 1999, where he states that certainly in October 1997, the veteran was unwell and had lost weight even at that time. 

22.     The respondent argues that for non-Hodgkin’s Lymphoma to have a causal link to Coeliac Disease, that condition must itself have a causal connection to the veteran’s operational service.  It argues that if that is the case then SoP Instrument No 17 of 1997 (Coeliac Disease) is relevant and in particular, Factor 5(a) of that SoP.  Factor 5(a) refers to “inability to obtain appropriate clinical management for coeliac disease, for example, consumption of a gluten containing diet where gluten containing products could not be ceased or substituted at the time of the clinical worsening of coeliac disease.”  In amplification of that factor, paragraph 6 of that SoP states that Factor 5(a) applies only to a material contribution to, or aggravation of, Coeliac Disease where the person’s Coeliac Disease was suffered or contracted before or during (but not arising out of) the person’s relevant service.  The respondent argues therefore, that the applicant would need to show the following to satisfy SoP Instrument No 17 of 1997 –

(i)that Coeliac Disease was present either before or during the person’s relevant operational service; and

(ii)that the veteran was unable to obtain appropriate clinical management for that condition.

23.     The respondent further argues that there is no medical evidence that the late veteran has not been diagnosed with Coeliac Disease either during service or subsequently.

24.     The SoP dealing with Coeliac Disease requires the disease to be present either before or during relevant service.  However, in its relationship with SoP Instrument No 37 of 2003, it only needs to be present at the time of clinical onset of non-Hodgkin’s Lymphoma.  The respondent’s argument that the applicant needs to show that Coeliac Disease was present during service is certainly true if that is the only SoP upon which the applicant relies.  But, such a strict reading is not justifiable where it is also being used as a link to prove that non-Hodgkin’s Lymphoma is related to military service many years earlier.  However, I agree that there must be some evidence of the link to Coeliac Disease or illness which is reasonably related to a diet involving gluten products and the veteran’s intolerance to gluten.  This link must also be reasonably related to diet in World War II.  It may be possible to satisfy a Tribunal of this connection without necessarily having a rigid diagnosis having been made of Coeliac Disease during service.  But that does not equate gluten intolerance to Coeliac Disease.

25.     The applicant has made repetitive claims of her husband’s illness throughout his life and refers to various symptoms such as rashes which she says are related to gluten intolerance.  She then equates that to Coeliac Disease.  She refers to comments made by Dr Norman Scott-Young many years ago.  There are also some vague assertions in the Statement of Mr George Mason, who was a long-time friend of the veteran, and attests to the veteran suffering from a condition or allergic reaction during the course of his life. 

26.     While I accept both the applicant and Mr Mason’s evidence as being provided truthfully and in good faith, mere assertions of that nature are not independent evidence of such weight which helps to satisfy the evidentiary standard required.  For example, in Exhibit 9, Mr Mason said that the veteran developed the illness and the rash in the Army.  It is stated that this first became evident after he joined the Army.  A Dr Scott-Young from Townsville is said to have supported that contention.  She further says “He got it then in the Army camp and had it all his life”.  While the applicant is clearly frustrated by the applications being unsuccessful to date, the mere assertions are unsupported by any evidence which is sufficient to corroborate those assertions. 

27.     As another example, Exhibit 10 also contains numerous assertions.  One of those is on page 9 where it is said:

“Dr Farag, while Arthur was alive, said the chemicals could have caused his lymphoma and stated that in his letter in 1999.”

28.     While Dr Farag did make that comment, it was not in the form of an authoritative opinion but rather a statement or conjecture rather than a conclusive opinion.  In addition, Dr Farag’s letter has been commented on by Dr Terence Frost, Clinical Haematologist in Brisbane (see Exhibit 1, Folios 57-59).  There, Dr Frost refers to the veteran having died from Stage IVB B Cell non-Hodgkin’s Malignant Lymphoma of Mantle Cell Type.  He considers and provides a report quoting a number of international epidemiological studies about what the risk factors are which may lead to Mantle Cell Lymphoma.  He refers to the risks being increased more with use of pesticides which may be in many foods not just gluten-based foods;  lawn care pesticides and lifestyle factors, including an increase in animal protein, fat and meat. 

29.     There is also reference to solvents being a factor where there is clear evidence of an increased risk of non-Hodgkin’s Lymphoma.  There was no specific reference to the veteran in either his military service, or his subsequent civilian career, or in his leisure hours, as to whether any of these risk factors might have contributed and the likelihood of a significant contribution by any one of these risk factors to the veteran.  There seems to be no evidence submitted to the Tribunal which would help in that regard.  Likewise, the medical report of Dr Anne-Marie Watson, Clinical Haematologist with Queensland Health in Townsville, commented on the immunosuppressive drugs which had been prescribed for Mr Trower, but there was no indication that they would have had any deleterious effect on him or contribute to Mantle Cell Lymphoma.

30.     This medical evidence is provided in relation to risks of Mantle Cell Lymphoma.  It provides no link to the possibility of someone with gluten intolerance getting non-Hodgkin’s Lymphoma.  Also, the likelihood of pesticides, lifestyle factors, solvents or any other risk in the veteran’s life leading to non-Hodgkin’s Lymphoma, is not commented on in comparison to the risk of gluten intolerance.  

31.     The report by the Director of Haematology and Medical Oncology at Townsville General Hospital in October 2000, Dr Nicholas Wickham, reported on the general path of progress of non-Hodgkin’s Lymphoma and in particular, that it advances to be a very aggressive disease and which is resistant to therapy.

32.     Overall, the medical evidence provided has been more in answer to previous claims under other factors in SoP Instrument No 37 of 2003.  They are not helpful in linking non-Hodgkin’s Lymphoma to the veteran’s military service in World War II and do not advance the link between the veteran’s health problems associated with gluten intolerance, and non-Hodgkin’s Lymphoma.  Nor indeed, does any of the evidence provided by the medical experts, provide evidence which helps to link the claims of the veteran’s health issues with his having Coeliac Disease.  No diagnosis of that disease has ever been made for the applicant.  Whether it was ever sought is not apparent from the evidence presented to the Tribunal, but it is clear that no new evidence has been provided than that which was available since 2002.  In other words, no evidence has been sought since the first application to obtain any better or direct evidence, which might help answer the questions about which the Tribunal would need to be satisfied that the hypothesis here is a reasonable one.

33.     The applicant’s hypothesis, if it is to be considered to be reasonable, must show evidence before the Tribunal that points to or supports the hypothesis.  It cannot merely be left open as a possibility (East v Repatriation Commission (1987) 16 FCR 517; Repatriation Commission v Bey (1997) 79 FCR 364). Also, the Tribunal cannot find an hypothesis as being reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” (Bushell v Repatriation Commission (1992) 175 CLR 408). In considering these authorities, the Tribunal does not make any findings of fact in stage 3 of the Deledio process.  However, unfortunately, the evidence presented is not supportive of the hypothesis raised in Step 1.  There is simply no evidence (other than mere assertions by the applicant and a hearsay suggestion that a doctor many years ago attributed Mr Trower’s health problems to his Army diet), which could point to any link between the veteran’s health issues while he was alive and Coeliac Disease in any authoritative medical sense.  Nor can that be linked to the veteran’s military service in World War II based on the material provided.  The assertions made are simply too remote, and no medical evidence is provided which allows a conclusion to be drawn in favour of the applicant.

34.     It follows therefore that the hypothesis does not “fit” that is, it is not consistent with the “template” which is found in the SoP.  On that basis, the hypothesis is not “reasonable” and therefore the claim must fail.

35.     As a matter of comment, I note the applicant has, for the purposes of this application, spent a significant amount of time documenting her recollections of her husband’s association or work during World War II which might have contributed to his condition.  For example, there is considerable comment about his work with children in Rabaul and that there is reference to the information paper by the Disability Compensation Branch of the Repatriation Commission.  It refers to the transmission of infection and that one of the ways of transmission is by close personal contact with children for periods totalling at least six months (Folio 132, “T” Documents,).  There is on the face of it, a possibility that the veteran’s work with children in New Guinea in World War II may have subjected him to an increased risk of infection which may have made a contribution to his stomach ulcers or B Cell Lymphoma.  It is stated in the Disability Compensation Branch information paper that:

“Infection is transmitted directly from person to person.  Infection is not water-borne, blood-borne or sexually transmitted.  There are no animal carriers of the infection.” (Folio 131, “T” Documents)

That information may be more relevant to a previous claim.  

36.     The information paper concludes that an inability to obtain clinical management for such a condition does not make the infection any worse (Folio 133, “T” Documents).  However, the information submitted to the Tribunal which was a recollection of comments made by the veteran over his lifetime, again, has simply not provided any objective support for a claim under Factor 5(g) of the SoP on non-Hodgkin’s Lymphoma.  That is not to suggest that better medical evidence by experts might not be obtained which would be more helpful to the applicant’s case.  Nevertheless, any evidence which might support a link between gluten intolerance, the likelihood of Coeliac Disease, and its possible link to Mantle Cell Lymphoma, has not been provided to the Tribunal

37.     It follows, therefore, that the decision under review must be affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member  

Signed:          J Lauriston

Administrative Assistant

Hearing on the Papers              
Date of Decision  10 February 2006