Williams and Repatriation Commission - [2001] AATA 404

DECISION AND REASONS FOR DECISION [2001] AATA 404

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos. T2000/117-118

VETERANS' APPEALS DIVISION       )
           Re      JOYCE HANNAH WILLIAMS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date4 May 2001
PlaceHobart

Decision      The decisions under review are affirmed.
  ..............................................
  Part-Time Member
CATCHWORDS
Veterans' Entitlements – claim for medical treatment and pension for incapacity from varicose veins of the right and left legs with ulceration and malignant neoplasm of the breast – whether conditions were war-caused – no evidence satisfying factors listed in Statement of Principles – determination not war-caused.
Statement of Principle No. 54 of 1997
Statement of Principle No. 4 of 1995

REASONS FOR DECISION

4 May 2001 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision of the Repatriation Commission made on 1 April 1998 which refused a claim for medical treatment and pension for incapacity from varicose veins of the right and left legs with ulceration on the grounds that the conditions were not war-caused; and their decision dated 25 May 1999 which refused a claim for medical treatment and pension for incapacity from malignant neoplasm of the breast and hernia – umbilical on the grounds that the conditions were not war-caused.
The applicant subsequently withdrew her appeal with respect to hernia-umbilical. The Veterans' Review Board on 18 May 2000 otherwise confirmed the decisions under review.
At the request of both parties to this appeal, the Tribunal has decided this appeal on the basis of the written material before it, which included the 'T' documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975.
The respondent lodged submissions with the Tribunal annexing Statement of Principle No. 54 of 1997 concerning Malignant Neoplasm of the Breast and Statement of Principle No. 4 of 1995 concerning Varicose Veins and contended that they are the relevant Statements of Principle to be applied in accordance with the provisions of s.120B of the Veterans' Entitlements Act 1986.
Also on file were various letters from the applicant addressed to the District Registrar which contained details of her medical conditions and an account of her service history. The applicant appears to have suffered considerable ill health, including cancer, which necessitated a mastectomy in May 1965 and more recently, a heart condition requiring the fitting of a pacemaker.
The applicant's medical conditions which are the subject of this appeal relate to her cancer of the breast and varicose veins.
It is the applicant's contention that her breast cancer which resulted in a radical mastectomy in 1965, is the result of her direct exposure to radiation whilst operating a range finder machine during her service between 1943 and 1944. The applicant informed the Veterans' Review Board that she operated this machine for some 16 months. She gave evidence to the Board as to how she had to lean over the machine which caused her left breast to be pressed against the machine whilst she guided the anti aircraft guns onto target. It is her strongly held view that her breast cancer was the direct result of the radiation that she experienced during the operation of this machine.
The applicant's appeal is to be decided by the Tribunal in accordance with the provisions of the Veterans' Entitlement Act 1986 ("the Act").
The certificate of discharge contained in the 'T' documents indicate that the applicant was enlisted with the Australian military forces between 26 November 1942 and 15 August 1944. In accordance with the provisions of s.7 of the Act, such service constitutes eligible war service. There is no evidence that the applicant had operational service within the meaning of the Act and therefore the provisions s.120(4) of the Act apply and require the Tribunal to decide all relevant matters to its reasonable satisfaction.
As the claim was made after 1 June 1994, s.120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
Subsection (3) provides:
"(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."
The Tribunal accepts that the relevant Statement of Principles are those referred to in the respondent's submissions and applied by the Repatriation Commission and the Veterans' Review Board in its determination.
Malignant Neoplasm of the Breast
Paragraph 5 of Instrument No. 54 of 1997 sets out a list of factors that must exist before it can be said "that on the balance of probabilities, malignant neoplasm of the breast … is connected with the circumstances of a person's relevant service." Those factors are:
"(a)undergoing a course of therapeutic radiation to the area of the breast or the chest that commenced at least ten years before the clinical onset of malignant neoplasm of the breast; or
(b)undergoing a course of hormone replacement therapy consisting of oestrogen with or without progesterone for a period of at least ten years immediately before the clinical onset of malignant neoplasm of the breast; or
(c)consuming at least 160 kg of alcohol (contained within alcoholic drinks) over a period of 15 years within the 20 years before the clinical onset of malignant neoplasm of the breast; or
(d)if the person is a female:
(i)not having undergone bilateral oophoectomy before natural menopause; and
(ii)being nulliparous until at least the age of 30 years;
before the clinical onset of malignant neoplasm of the breast; or
(e)regularly ingesting oral contraceptives for a period of at least eight years within the 18 years immediately before the clinical onset of malignant neoplasm of the breast; or
(f)if the person is a female aged at least 60 years at the time of the clinical onset of malignant neoplasm of the breast – being obese for the five years immediately before the clinical onset of malignant neoplasm of the breast; or
(g)inability to obtain appropriate clinical management for malignant neoplasm of the breast."
There is no evidence before the Tribunal that supports any of the factors listed above. It is noted that it was conceded on behalf of the applicant during the hearing before the Veterans' Review Board, that none of the listed factors were met in the applicant's case.
The definition of therapeutic radiation is defined in paragraph 7 as "one or more fractions (treatment portions) of ionising radiation administered with the aim of achieving palliation or cure with gamma rays, x-rays, alpha particles or beta particles", clearly not relevant in the applicant's case.
The Tribunal notes the applicant's strongly held belief that her breast cancer is the result of the radiation she experienced during her service, however this Tribunal is constrained in determining the appeal in accordance with the provisions of the relevant legislation. As stated above, the Tribunal is required to decide the evidence in accordance with the factors listed in the relevant Statement of Principles. The Statement of Principle sets out the minimum factors relating to service that must exist in order for the Tribunal to determine a causal connection between the applicant's condition and her period of service.
The Tribunal is unable to find on the evidence before it that any of the factors listed in paragraph 5 are satisfied. Accordingly, the Tribunal is unable to establish a causal connection between the applicant's malignant neoplasm of the breast and her period of service and must affirm the decision under review.
Varicose Veins
It is the applicant's contention that her varicose vein condition is a result of an accepted foot condition being callosities of right and left feet. The applicant stated that during her period of service in Townsville she was required to wear gumboots to protect her from possible snake bites. She alleged that this resulted in significant foot problems during service for which she was later fitted with special shoes and which she claimed, worsened her condition. She believed that these problems and ongoing strain on her legs caused the varicose veins and ulceration.
In a report provided to the Veterans' Review Board by Dr. Robertson, dated 15 August 1967 he noted that whilst the applicant had had varicose veins for some 12 to 20 years they had not caused her trouble until the last 10 – 14 years. Dr Robertson also concurred with the applicant's contention that the onset of the veins may have been largely due to her wearing heavy rubber boots in a hot climate.
The factors listed in Instrument No. 4 of 1995 that must exist before it can be said that, on the balance of probabilities, varicose veins are connected with the circumstances of the applicant's service are as follows:-
"(a)having congestive cardiac failure with increased venous pressure before the clinical onset of varicose veins; or
(b)having thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins; or
(c)having an abdominal tumour causing lower limb venous obstruction before the clinical onset of varicose veins; or
(d)having been pregnant before the clinical onset of varicose veins; or
(e)inability to obtain appropriate clinical management for varicose veins."
Paragraph 2 of the Instrument states:
"Subject to clause 3 (below) at least one of the factors set out in paragraphs
1(a) to (e) must be related to any service rendered by a person."
Again there is no evidence before the Tribunal which would satisfy any of the factors referred to in paragraphs (a) to (e) above. The evidence concerning the applicant's heart condition is that it post-dated the varicose vein condition.
There being no evidence to satisfy the Tribunal that the applicant's varicose vein condition is connected with her service, in accordance with the provisions of the Act, the Tribunal cannot be satisfied on the balance of probabilities that her condition was war-caused.
The Tribunal accordingly affirms the decisions under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  Matter decided on the papers.
Date of Decision  4 May 2001