Yvonne Palmer and Repatriation Commission
[2013] AATA 670
[2013] AATA 670
Division VETERANS' APPEALS DIVISION File Number
2011/4928
Re
Yvonne Palmer
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 20 September 2013 Place Brisbane The Tribunal affirms the decision under review.
....................[Sgd]....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Operational service with Australian Army – Death from carcinoma of the stomach – Statement of Principles concerning malignant neoplasm of the stomach – No material pointing to the presence of Helicobacter pylori – Clinical onset – Reasonable hypothesis of relationship to eligible war service not raised – Death not war-caused – Decision affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 5E, 6C, 7, 8, 11, 14, 120, 120A
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Re Bennett and Repatriation Commission [2003] AATA 1319
Re Cunningham and Repatriation Commission [2007] AATA 1790Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning malignant neoplasm of the stomach No. 3 of 2007[1]
[1] As amended by Instrument No. 65 of 2011 in a manner unrelated to this matter.
Brendan O’Keefe and F B Smith, Medicine at War, Allan and Unwin in association with the Australian War Memorial, 1994.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
20 September 2013
BACKGROUND
Robert Palmer (“the veteran”) died on 20 February 2005 at the age of 55 years.
The applicant is his widow and dependant as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). On 13 May 2010, the applicant lodged a claim, under s 14 of the Act, for a pension on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission on 12 July 2010 and by the Veterans’ Review Board on 31 August 2011.
SERVICE
The veteran served in the Australian Army (“the army”) from 8 July 1970 until
7 January 1972. That included a period of service in South Vietnam from
5 February 1971 until 18 November 1971. His Vietnam service constitutes eligible war service in the form of operational service in accordance with ss 7 and 6C, respectively,
of the Act.
CAUSATION
In order for the death of a veteran to be accepted as being war-caused, one of the requirements in s 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:
(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:
…
(a)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:
120 Standard of proof
(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.
The application of that provision is affected by the terms of s 120(3) and by s 120A(3) of the Act. Those provisions read:
120 Standard of proof
…
(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. ...
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…
(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. …
Those provisions are concerned with matters of causation and require a consideration of any relevant Statements of Principles which have been published by the Repatriation Medical Authority.
KIND OF DEATH
Before applying the causation provisions of the Act, it is necessary to consider the “kind of death” applicable to the veteran, a matter which is to be determined to the
decision-maker’s reasonable satisfaction.[2] The veteran’s death certificate nominates the cause of death and duration of illness to be:[3]
1(a) respiratory arrest
(b) carcinomatosis (4 years)
(c) carcinoma stomach (5 years)
[2] In accordance with s 120(4) of the Act: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at 634-5 per Moore, Emmett and Allsop JJ; and Collins vRepatriation Commission [2009] FCAFC 90 at [20] per Mansfield and Stone JJ.
[3] Exhibit 1, T-Document 5, p. 56.
It was common ground that the kind of death in this matter was carcinoma of the stomach and that its clinical onset was in 2003 when he was first hospitalised with stomach problems.
SUBMISSIONS AND ISSUE
Mr Keith Joyce, for the applicant, submitted that the veteran, during service, was exposed to Helicobacter pylori bacteria which remained in his system until the onset of the carcinoma which was the cause of his death. On that basis, he submitted, the veteran’s death was war-caused and the decision under review ought be set aside. Mr Joyce referred to Re Bennett and Repatriation Commission[4] (“Bennett”) and ReCunningham and Repatriation Commission[5] (“Cunningham”) as being supportive of the applicant’s claim.
[4] [2003] AATA 1319.
[5] [2007] AATA 1790.
For the respondent, Mr Bruce Williams submitted that there were no test results which confirmed the presence of Helicobacter pylori in the veteran and that, any hypothesis of
a relationship between the veteran’s death and service per medium of Helicobacter pylori was not reasonable. He submitted that the veteran’s death was not war-caused and that the decision under review ought be affirmed.
The issue for the Tribunal is whether the veteran’s death arose out of, or was attributable to, any eligible war service rendered by him.
EVIDENCE
The Applicant
The applicant’s evidence was that she met the veteran in 1979 and that they married
in 1981. She described him as a quiet man who had not discussed aspects of his service in Vietnam with her. He had been employed by a bank from shortly after leaving school and travelled around Queensland for many years with the bank. The applicant is a registered nurse with experience in surgical procedures. She was unaware of any complaint by the veteran about his stomach before he experienced an episode of severe stomach pain in January 2003. This resulted in his admission to hospital where he underwent surgery for a gastric ulcer perforation. No tests were conducted at that time for Helicobacter pylori but he was directed to have a gastroscopy done within six weeks. This procedure revealed the carcinoma of the stomach for which he underwent further surgery in 2003. The veteran made no complaint of stomach pain before 2003 but the applicant recalled that, for a year or two before surgery, he would rub his stomach which made her believe that he may have been experiencing stomach discomfort from about 2001. She was aware that, over the years, he suffered from indigestion and
self-medicated with antacids.
Dr David Hetzel
Dr Hetzel, physician, completed a report on 31 May 2012 and gave evidence.
He provided an outline of the mechanism for infection by Helicobacter pylori. It is one of the world’s most common pathogens, colonising approximately one-half of the world’s population with humans being the only known reservoir. Only a small percentage develops a clinical disease, making the process of transmission difficult to determine.
He described the major risk factor as the socio-economic status of a family and he identified unhygienic conditions in food preparation and contaminated water supply as factors which may raise the risk of infection. He noted the Writeway report[6] concerning the sources of potable water for soldiers in Vietnam and opined that it was unlikely,
but not impossible, for the applicant to have acquired Helicobacter pylori in Vietnam.
[6] See para 20 (below).
Dr Hetzel examined the veteran’s history of illness and noted that he had described episodes of diarrhoea in Vietnam. Dr Hetzel said that this was not a symptom of acute or chronic Helicobacter pylori infection and that more likely symptoms were upper abdominal pain or dyspeptic discomfort. Dr Hetzel described mucosal biopsy and histological examination of the specimen for the presence of Helicobacter pylori as the ideal diagnostic method of choice. He noted the opinion of general surgeon
Dr Andrew Russell that, as the veteran was treated with acid-lowering medication for some weeks before his endoscopy test for Helicobacter pylori, the results of that test may have been flawed. However, he said that less powerful acid inhibitors which the veteran had been using such as Ranitidine (Zantac) rarely gave rise to false negatives in testing for Helicobacter pylori. He noted that biopsies were taken by Dr Russell at endoscopy and five samples were examined microscopically and that the results were negative.
He also noted that the histopathology report on gastrectomy specimens were negative.
Dr Hetzel referred to the review of CLO test results directed by Dr Russell in which no evidence of Helicobacter pylori infection was seen.
Dr Hetzel noted the reference by the applicant to the veteran’s use of antacids over the years. He was aware that the veteran had taken medication for chest infections and an anti-inflammatory drug for osteoarthritis but he concluded that there was no evidence that the veteran suffered from dyspepsia or other symptoms suggestive of gastric cancer in the years before he was hospitalised in 2003.
Dr Hetzel concluded that there was no evidence that the veteran had ever acquired Helicobacter pylori at any time. This, he said, was confirmed by the negative CLO test and the histopathology tests which made it unlikely that he suffered from Helicobacter pylori infection. He considered it was only remotely possible that Helicobacter pylori was present but undetected by these methods of testing.
Dr Andrew Russell
General surgeon, Dr Russell, in a report dated 19 April 2011, wrote that the veteran’s stomach cancer was located in part of the stomach in which Helicobacter pylori may be found. While accepting that that tests revealed no evidence of Helicobacter pylori,
he noted that the veteran had been taking acid lowering medication which may have served to produce a flawed result in the standard testing.
Dr Harley Wilson
Dr Harley Wilson, a treating doctor of the veteran, confirmed that the veteran first presented with his gastric condition in January 2003.
Other evidence of conditions on service
Statements were provided in this matter by other veterans[7] who served in Vietnam.
They described the conditions in which they prepared and consumed their meals and utilised cleaning and toilet facilities. This included circumstances which were wet and muddy at times and dry and dusty at other times. Mr Joyce also referred to a book[8] which described conditions applicable to the period when the veteran was in Vietnam.
[7] Trevor Hewitt, Charles Bartkus, Barry Hassall and Waltar Nairn.
[8] Brendan O’Keefe and F B Smith, Medicine at War, Allan and Unwin in association with the Australian War Memorial, 1994.
Writeway report
David Gibson, from Writeway Research Service Pty Ltd, completed a report, dated
23 March 2012, in which he set out aspects of the conditions experienced by the veteran during his service in Vietnam in 1971. In particular, he referred to the way soldiers were rationed, how water was obtained and provided and the processes available for cleaning utensils in Nui Dat and in fire support bases in the field. He concluded that soldiers in Nui Dat were provided with fresh rations with food preparation in Nui Dat being undertaken by qualified cooks. In fire support bases, ration packs were issued and, once the base was established, catering staff at Nui Dat prepared lunches in hot boxes which were transported to the fire support bases. Potable water was available to all units based at Nui Dat from controlled wells and water. In the fire support bases, it was stored in jerry cans which were replenished from rubber bladders transported from Nui Dat.
PROCEDURE FOR CONSIDERATION
The procedure for determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[9]
(i)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.
(ii)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). ...
(iii)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.
(iv)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, ... 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.
[9] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.
Step 1:- Hypothesis
The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service. The hypothesis raised by Mr Joyce was that the circumstances of the veteran’s service contributed to his acquiring a Helicobacter pylori infection which was responsible for the veteran’s malignant neoplasm of the stomach which, in turn, caused his death.
Step 2:- Statement of Principles
The hypothesis noted above requires consideration of the Statement of Principles concerning malignant neoplasm of the stomach. The relevant factor in that Statement of Principles reads:
Statement of Principles concerning malignant neoplasm of the stomachNo. 7 of 2003:[10]
Factor 5(b)(i): being infected with Helicobacter pylori at least 10 years before the clinical onset of malignant neoplasm of the stomach; …
[10] As amended by Instrument No. 65 of 2011 in a manner unrelated to this matter.
Clinical Onset
The identified factor in the Statement of Principles requires consideration of the concept of clinical onset. In Kaluza v Repatriation Commission,[11] Jacobson J summarised the effect of the decision of the Full Federal Court in Leesv Repatriation Commission,[12] in the following way:
[92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
[93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment. [13]
[11] [2010] FCA 1244.
[12] (2002) 125 FCR 331.
[13] [2010] FCA 1244 at [92], [93].
The medical material in this matter points to a clinical onset of stomach cancer in 2003 when he first experienced severe stomach pain. As stated above,[14] this is not in dispute.
[14] See para 8, above.
Step 3:- Reasonableness of the Hypothesis
The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of s 120(3) of the Act. This step is not concerned with proof of the claim but relates to the question of whether there is some material which calls for a determination under s 120(1) of the Act.[15] This requirement will be met if the hypothesis fits or is consistent with the template provided by the factor in the Statement of Principles.
[15] See Bushell v Repatriation Commission (1992) 175 CLR 408 at 415.
Dr Hetzel’s evidence points to the environmental factors which may support the presence and transmission of Helicobacter pylori. The evidence of those who served in Vietnam when the veteran was there as well as the literature provided by Mr Joyce indicate that those conditions may have prevailed in Vietnam at the time of the veteran’s term of duty there. Despite that, there has not been any material which points to the presence or diagnosis of Helicobacter pylori in the veteran. Rather, all tests undertaken have pointed to an absence of the bacteria in the veteran. In that regard, Dr Hetzel gave a detailed account of the tests, including that described by him as the diagnostic method of choice, which were conducted after the veteran’s hospitalisation for gastric ulcer perforation and after his surgery for cancer. None of the tests pointed to a positive reading for Helicobacter pylori. Dr Russell pointed to the possibility of flawed readings but this was not supported by the evidence of Dr Hetzel having regard to the forms of medication the veteran was taking prior to the testing procedures.
I have noted the authorities referred to by Mr Joyce.[16] Each of them is clearly distinguishable from the instant case. In Bennett, the death of the veteran from gastric carcinoma in 2000 was accepted as being war-caused in respect of his service in New Guinea from 1942 to 1944. However, in Bennett’s case, no testing for Helicobacter pylori was conducted. The hypothesis was that Mr Bennett may have been infected with Helicobacter pylori because of the environmental factors extant where he served.
In Cunningham, the veteran’s peptic ulcer disease was accepted as being related to his service on the HMAS Sydney, in particular, to a voyage when Australian soldiers were transported to Australia. There, the hypothesis was that Mr Cunningham was associated with some of these soldiers who became sea-sick and, through that association,
he became infected with Helicobacter pylori. He was found to have a Helicobacter pylori infection and was treated for it. The circumstances in each of those cases are materially different from those before me. Mr Bennett was never tested for Helicobacter pylori;
Mr Cunningham was found to have the Helicobacter pylori infection. The veteran in this case was tested and was found not to be infected with Helicobacter pylori. Neither of the cases cited by Mr Joyce support the hypothesis relied on by him.
[16] See para 9, above.
In order for the hypothesis to be reasonable, there must be some material which fits the template of the Statement of Principles concerning malignant neoplasm of the stomach. The template requires infection with Helicobacter pylori at least 10 years before the clinical onset of the stomach cancer. As there is no material which supports the presence of Helicobacter pylori in the veteran at any time, it follows that the hypothesis advanced by Mr Joyce is not reasonable.
Step 4:- Is Death War-caused?
As a reasonable hypothesis of a relevant relationship is not raised between malignant neoplasm of the stomach and the veteran’s service, it follows that the applicant’s claim cannot succeed. Accordingly, I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused in accordance with s 8 of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member. ..........................[Sgd]..............................................
Associate
Dated 20 September 2013
Date of hearing 10 September 2013 Advocate for the Applicant Mr Keith Joyce Advocate for the Respondent Mr Bruce Williams
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