Wright and Repatriation Commission

[2003] AATA 400

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 400

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/393

VETERANS APPEALS DIVISION		)
Re		MARGARET JEAN WRIGHT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date1 May 2003

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd) J Handley

Senior Member

CATCHWORDS

Veterans Entitlements - Death by astrocytoma & bronchopneumonia - Widow’s application - deceased bumped his head frequently in service - subsequent complaints of persisting headaches - deceased did not smoke tobacco - absence of material pointing to satisfaction of SoP templates - decision affirmed. 

REASONS FOR DECISION

1 May 2003 Mr J. Handley, Senior Member    

1.      The applicant applies to review a decision of the Veterans Review Board (“VRB”) made on 11 February 2002.  The VRB then decided to affirm a decision made by the respondent on 30 July 2001 to deny payment of a pension to Mrs Wright as the widow of the late Arthur Douglas Wright deceased. 

2.      The late Mr Wright was born on 28 November 1925 and died on 26 July 1966.  He was a member of the Royal Australian Air Force between 8 December 1943 and 20 May 1946 and was engaged in operational service in New Guinea. 

3.      The certified cause of death was cerebral “astrocytoma - 9 months; broncho pneumonia - 1 week”.

4.      This review was listed for hearing at Eaglehawk on 2 April 2003.  Mrs Wright did not appear.  Memorandums of conversations between Registry staff and Mr Nigel Wright, the applicant’s son of 30 January 2003 and 7 February 2003, indicate that the applicant was unsure whether she would proceed with this review and that she was considering withdrawal.  A notice advising her of the hearing was forwarded to her last known address at 6 Kennedy Street, Marryborough on 18 February 2003.  The notice was not returned as undelivered.

5. Mr Douglass appeared on behalf of the Repatriation Commission. Having regard to the Statements of Facts and Contentions lodged prior to the commencement of the hearing and to the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975, it is noted that the late Mr Wright was a wireless technician with the RAAF. In his lifetime he made an application to the Repatriation Commission for a pension for illness or injury, variously described as “allergic rhinitis, sinusitis and head condition”. 

6.      In a notice completed by Mr Wright on 20 May 1966 he recorded-

“On many occasions I have bumped my head getting into cockpits and aeroplanes during my war service.  These injuries were never severe enough to seek medical attention but may have started my head condition.  I have also suffered from sinusitis for a long time”. 

7.      Having regard to the history provided by Mr Wright and his complaints subsequent to discharge of headaches, the hypothesis advanced by Mrs Wright in these proceedings was believed to be the occurrence of an eventual fatal cerebral tumour associated with her late husband repeatedly bumping his head during service.  In the period between discharge from service and death, the complaints made by the deceased of headaches were said to be a manifestation or consequence of having repeatedly bumped his head and as a precursor to the tumour.  In a declaration completed on 14 June 1967 by Jessie Irene Brock, the sister of the deceased, it was deposed that the late Mr Wright complained of, and apparently suffered from headaches subsequent to discharge in 1946.  Mrs Brock deposed that her brother “constantly complained of headaches and pain in the head.  He would have these attacks at intervals of about 2 months and sometimes they were much more severe than at others” (page 8 of T-documents). 

8.      The applicable Statement of Principle for astrocytoma is Instrument No. 40 of 1999 being “Malignant Neoplasm of the Brain”..  Paragraph 5 records the factors that must exist as a minimum before a reasonable hypothesis can be raised connecting malignant neoplasm with the circumstances of service.  The three factors are recorded as follows-

“(a)being infected with Human Immunodeficiency Virus (HIV) before the clinical onset of malignant neoplasm of the brain; or

(b)undergoing a course of therapeutic radiation to the head or neck before the clinical onset of malignant neoplasm of the brain; where the first exposure to therapeutic radiation occurred at least two years before the clinical onset of malignant neoplasm of the brain; or

(c)inability to obtain appropriate clinical management for malignant neoplasm of the brain”.

9.      There is no material at all which points to factors 5(a) and (b) as recorded above having any application to the present proceedings.

10.     An examination of the reasons for decision of the Veterans Review Board indicate that the applicant’s son, Nigel Wright, submitted that factor 5(c) above may have application.  This factor will only apply, if at all, in the circumstances dictated by factor 6, namely-

“Paragraph 5(c) applies only to material contribution to, or aggravation of, malignant neoplasm of the brain where the person’s malignant neoplasm of the brain was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers”.

11.     I agree with the contentions made by Mr Douglass in his Statement of Facts and Contentions lodged prior to the hearing namely-

“the effect of paragraph 5(c) …... of the relevant SoP is that the applicant would need to establish (i) that the Veteran suffered from astrocytoma prior to or on service (ii) that appropriate clinical management was available for astrocytoma at that time (iii) that due to the particular circumstances of his service the veteran was deprived of clinical management for his astrocytoma and (iv) that this deprivation led to a permanent worsening of the underlying disease”.

12.     There is no medical evidence within the documents lodged which points to the deceased having suffered from an astrocytoma prior to or on service.  Additionally, there is nothing pointing to an inability to obtain appropriate clinical management for the tumour.

13.     To the extent that the Full Federal Court in Repatriation Commission v Deledio [1998] 391 FCA recorded 4 stages which must be followed in order to determine whether a illness, injury or death is related to service, I am satisfied that there is a hypothesis advanced by Mrs Wright and a Statement of Principle exists.  The third stage however is not satisfied because there is no material which is consistent with the template of the Statement of Principle..  It follows therefore that the hypothesis is not reasonable.

14.     The other certified cause of death was broncho pneumonia, which would appear - from the limited information lodged with the Tribunal - to be a consequence of the perilous state of health of the deceased immediately prior to his demise.  The Statement of Principle for “Chronic Bronchitis and Emphysema” is No. 73 of 1997, where the only applicable factors would be smoking “at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products” or "being exposed to mustard gas or Lewisite within 10 years immediately before the clinical onset of chronic bronchitis or emphysema” or “being exposed to an irritant gas resulting in acute respiratory symptoms occurring within 48 hours immediately after the exposure within 10 years immediately before the clinical onset of chronic bronchitis and/or emphysema”.. 

15.     There is no material in the T documents, or elsewhere, completed by Mr Wright which points to him ever having smoked tobacco.  At Q.5 in her application for pension (p.31), Mrs Wright has recorded that her husband did not smoke tobacco (although I note, against the question ‘Did the Veteran ever smoke?’ the words ‘on record’ are written by hand.  (I do not understand the meaning of these words). Additionally, there is no material which points to the deceased being exposed to mustard gas or Lewisite or any irritant gas at all, at any time, during service.

16.     Again, following the Deledio principles there is no raised material which is consistent with the template of the Statement of Principle and any hypothesis connecting service with death from broncho pneumonia is not reasonable in the circumstances. 

17.     For the above reasons the decision under review must be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. Handley, Senior Member

Signed:         Grace Carney
  Personal Assistant

Date/s of Hearing  2 April 2003
Date of Decision  1 May 2003
Departmental Advocate            Mr R Douglass