Wynn and Repatriation Commission (Veterans' entitlements)

[2017] AATA 608

Wynn and Repatriation Commission (Veterans' entitlements) [2017] AATA 608 (8 May 2017)

Division:Veterans' Appeals Division

File Number:           2014/6663

Re:Thelma Wynn

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:8 May 2017

Place:Sydney

The Tribunal affirms the decision under review.

.............................[sgd]...........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – whether applicant’s death caused by his service – cause of death – cause of death prostate cancer – whether smoking history in service caused prostate cancer - prostate cancer not linked to applicant’s service – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Repatriation Commission v Deledio, the Full Federal Court [1998] FCA 391

Repatriation Commission v Gorton [2001] FCA 1194

SECONDARY MATERIALS

Mayo Foundation for Medical Education and Research, Hyponatremia, Mayo Clinic < Medical Authority, Amendment Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 77 of 2012
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 53 of 2014
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 28 of 2005

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

8 May 2017

The decision under review

1. The decision under review is the decision made by the Repatriation Commission on 13 December 2013 refusing the applicant’s claim for widows’ pension which was affirmed by the Veterans’ Review Board on 1 December 2014.

2. If the application is successful and the pension granted, the earliest date of effect would be 4 October 2013, the day after the death of Mr Wynn, the applicant’s husband.

The law

1. The legislative scheme which applies in a case where a claim for a pension has been made in relation to the death of a veteran who had operational service is set out in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).

2. Following is a summary of the steps to be taken.

3. First, the Tribunal must determine the “kind of death” suffered by the veteran on the balance of probabilities.

4. Having done that, the following steps are to be taken to determine whether the death was war caused:[1] 

   1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the person. If no such hypothesis arises, the application must fail.

   2If the material does raise such a hypothesis, the Tribunal must ascertain whether there is in force an SoP [Statement of Principles]…

   3If 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" in the SoP. The hypothesis raised must contain one or more of the factors which are set out in the SoP that must exist and be related to the person's service…

   4The Tribunal must then consider whether it is satisfied beyond reasonable doubt that the death was not war-cause. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail….

   [1] Repatriation Commission v Deledio, the Full Federal Court [1998] FCA 391

Background

1. The following facts are not in dispute.

2. Mr Wynn was born on 4 May 1918.  He had operational service during the periods:

• Australian Army: 1 October 1941 to 28 January 1943

• Royal Australian Air force: 29 January 1943 to 14 March 1946

1. Mr Wynn’s death certificate recorded:

   Cause of death: (1)(a) Hyponastremia, 1 week

   and Duration of Last Illness: (b) Metastatic prostate cancer, years

2. The certifying doctor was Dr Mallinson, who treated Mr Wynn for the last four months of his life after he was discharged from John Hunter Hospital to a high care bed in a nursing home.

3. Before his admission to John Hunter Hospital on 2 May 2013, Mr Wynn’s general practitioner had been Dr Illiadis from 2003 and, from 1993, Dr Kushter who was at the same practice.

4. Relevantly, Mr Wynn had two conditions which had been accepted as “war caused”:

• 13/02/1993      Adenocarcinoma of stomach

• 16/07/2003     Malignant neoplasm of the colorectum

1. If the applicant is successful, the earliest date of effect of a decision granting pension is 4 October 2013, the day after Mr Wynn’s death.

The issue in the case

1. The issue in this case is whether Mr Wynn’s death was caused by his service. 

2. The respondent contends that on the evidence, Mr Wynn’s “kind of death” was prostate cancer and no hypothesis was raised connecting his death with his service.

3. Alternative kinds of death raised by a previous representative of the applicant and by the evidence of Dr Mallinson are:

• metastatic cancer arising from prostate, stomach and bowel cancer;

• SIADH caused by prostate, bowel and stomach cancer.

Consideration of the evidence and findings

1. Mrs Wynn said that she thought Mr Wynn’s stomach and bowel cancer shortened his life. The Tribunal accepts that is her opinion.  However, this is a case that must be decided on the expert medical evidence before the Tribunal. Following is a summary of that evidence which is relevant to determining the “kind of death”.

2. The medical records from Dr Illiadis’s practice show that the onset of prostatic adenocarcinoma was in 2003.  That condition is listed under the heading “Active” conditions.  In the list of “Inactive” conditions are “Stomach cancer” in 1993 and “Bowel cancer” in 2004.

3. The Allied Health Discharge Referral from John Hunter Hospital dated 19 June 2013 shows the following: 

• Mr Wynn was admitted to John Hunter Hospital on 2 May 2013 for “Recurrent blockage of SPC, haematuria and clot retention secondary to prostate cancer. Radiotherapy treatment course complete (palliative).”   

• Abdominal X-ray and CT scan were “in keeping with metastatic prostate cancer” and “likely in keeping with prostate cancer”, respectively.

1. On 19 June 2013, Mr Wynn was discharged to a high care bed at the nursing home where he came under the care of Dr Mallinson.  Patient Health Summaries printed out from Dr Mallinson’s practice on different dates include the same information.  “1993 Stomach cancer”,  “2003 Prostatic adenocarcinoma”  and “2004 Bowel cancer” were all listed under the heading “Active Past History”.  There was another list under the heading “Inactive Past History”.  

2. Dr Mallinson provided the following opinions about the cause of Mr Wynn’s death:

   23 January 2014

   (Mr Wynn) died on October 3, 2013 from hypoantremia (sic) which was a direct result of metastatic cancer. He has suffered from prostate cancer for 10 years at least.

   1 May 2014

   He suffered from prostate, stomach and bowel cancer and died from metastatic cancer from these primaries.       

   21 July 2014

   Just prior to his death, blood tests showed that he was suffering from syndrome of inappropriate ADH secretion (SIADH) which was most likely the cause of his death.

   Prostate cancer, stomach and bowel cancer can all cause SIADH and certainly the combination of these three malignancies is much more likely to cause this syndrome and hence death. I am unable without a biopsy or post mortem to definitely ascertain which cancer caused his death, however I can say that it is very likely that the bowel and stomach carcinomas contributed significantly. I have discussed this with other medical practitioners who agree that these cancers were likely to contribute to death.

   I, however have no previous notes or investigations documenting the metastases of Mr Wynn’s bowel and stomach cancer - his previous GP, Dr Illiadis may have some documented investigation results.           

3. On 26 September 2014, Dr Steve Illiadis wrote to the Department of Veterans Affairs and advised:

   I have reviewed the late Mr Wynns [sic] file in response to your enquiry as to whether he had active stomach or colorectal cancer during the time that he was being treated by me.

   Stomach cancer and colorectal cancer were already surgically managed before I became involved in his care.  Records show that he had a partial gastrectomy in 1993 and a right hemicolectomy in March 2003. I first attended to Mr Wynn in December 2003.

   I can advise that he had a gastrointestinal assessment with upper gastrointestinal endoscopy, video capsule endoscopy and limited colonoscopy in 2012 to investigate for gastrointestinal tract sources of bleeding.  Stomach cancer and colon cancer are included in the differential diagnosis.  However, the investigating specialist’s report of 20 July 2012 indicates that there was no identifiable source of gastrointestinal blood loss with the caveat that not all of the colon was seen. It follows therefore that at least as recently as 2012, and with the caveat mentioned, there was no identifiable active stomach or colon cancer.

4. Hyponatremia is a condition that occurs when the level of sodium in a person’s blood is abnormally low. Sodium is an electrolyte which helps regulate the amount of water that is in and around a person’s cells.[2]

   [2] Mayo Foundation for Medical Education and Research, Hyponatremia, Mayo Clinic <>

   SIADH (syndrome of inappropriate anti-diuretic hormone) may increase the risk of hyponatremia.[3]

   [3] Mayo Foundation for Medical Education and Research, Hyponatremia, Mayo Clinic <>

   Key points from Fact Sheet of the National Cancer Institute included in the T-documents are:

• Metastatic cancer is cancer that has spread from the place where it first started to another place in the body.

• Metastatic cancer has the same name and same type of cancer cells as the original cancer.

• The most common sites of cancer metastasis are, in alphabetical order, the bone, liver and lung.

1. The Tribunal concludes that the kind of death in this case is prostate cancer.  It finds Dr Mallinson’s opinion that bowel and stomach carcinomas were “very likely” to have contributed significantly to death, is speculative.  On her own evidence, Dr Mallinson had no information documenting the metastases from the bowel and stomach cancer and therefore no basis for coming to that conclusion.  Taking into account that metastatic cancer has the same name and same type of cancer cells as the original cancer, the Tribunal concludes that the primary cancer from which the metastasis had spread, in this case, was the prostate.  The name “metastatic prostate cancer” does not permit speculation that the prostate cancer was a metastasis of the bowel or stomach cancer.  In the absence of investigations, Dr Illiadis, who had cared for Mr Wynn for more than ten years until May 2014, and was in a better position than Dr Mallinson to assess the status of the bowel and stomach cancer in relation to Mr Wynn’s death.  Dr Illiadis’s evidence supports the finding that the kind of death was metastatic prostate cancer.

2. Two hypotheses are raised on the material before the Tribunal linking Mr Wynn’s death with service:

• His smoking history caused his prostate cancer;

• His bowel and/or stomach cancer caused his prostate cancer.

1. The Tribunal finds that there is a current SoP in force, namely No. 53 of 2014 concerning Malignant Neoplasm of the Prostate. It does not accept that metastatic prostate cancer is a different condition from prostate cancer.  The primary cancer is prostate cancer.  There is no factor in the SoP No. 53 of 2014 linking bowel and/or stomach cancer with prostate cancer.  That hypothesis does not fit the SoP and is therefore not reasonable.

2. The respondent accepted that Mr Wynn had a smoking history of 15 pack years.  He quit smoking 36 years ago when he married the applicant. The SoP No. 53 contains one factor relating to smoking, cl 6(e) which refers to a smoking history before the “clinical worsening” of malignant neoplasm of the prostate and where smoking has ceased, “the clinical worsening of malignant neoplasm has occurred within ten years of cessation”. 

3. Clause 7 of  SoP No. 53 states that cl 6(e) applies:

   …only to material contribution to, or aggravation of, malignant neoplasm of the prostate where the person’s malignant neoplasm of the prostate was suffered or contracted before or during (but not arising out of) the person’s relevant service.

4. Mr Wynn ceased smoking in 1976.  The clinical onset of his prostate cancer was not until 2003.  He did not contract prostate cancer before or during his service.

5. The smoking hypothesis does not fit the SoP. It is not a reasonable hypothesis.

6. A previous SoP that was in force when the applicant claimed the pension may be referred to if the hypothesis does not fit the current SoP.[4]  The SoP No. 53 of 2014 revoked SoP No 28 of 2005 as amended by instrument No. 77 of 2012.

   [4] Repatriation Commission v Gorton [2001] FCA 1194

7. The 2005 SoP had no factor linking malignant neoplasm of the prostate to any of smoking, stomach, or bowel cancer.  Amendment SoP No. 77 of 2012 inserted factors relating to smoking, but nothing relating to bowel or stomach cancer.  The hypotheses linking either or both of those conditions with Mr Wynn’s prostate cancer are not reasonable.

8. The first factor inserted (cl 5(ca) applied to current smokers only, and specified a smoking history “before the clinical onset of malignant neoplasm of the prostate”.  That could not apply to Mr Wynn, who was not a current smoker, having given it up in 1976. 

9. The other clause that was inserted (cl (cb)) specified a smoking history “before the clinical worsening of malignant neoplasm of the prostate”, or where smoking had ceased, “the clinical worsening has occurred within ten years of cessation”. 

10. Clause 6 was amended to include cl (cb) and was in identical terms to cl 7 in SoP No. 53 of 2014. 

11. The smoking hypothesis does not fit SoP No. 28 of 2005 as amended by Instrument No. 77 of 2012.  The smoking hypothesis is not reasonable.

12. For the above reasons, the decision under review is affirmed.

I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.............................[sgd]...........................................

Associate

Dated: 8 May 2017

Dates of hearing:	13 February 2017
Applicant:	In person
Solicitors for the Respondent:	Mr K Rudge