4. More Horses Bolt

Let’s suppose you took 1000 people from Brisbane, and 1000 from Melbourne, and measured a whole set of parameters: height, number of children, whether they had skin cancer, high blood pressure, fallen arches, or what not. It is likely that there would not be a single match. But how would you know that the differences were due to the location, rather than just the luck of the draw?

Fear not, mathematicians have devised complex statistical formulae to determine the degree played by chance. In applying them, scientists traditionally adopt the 5% rule ie they accept that a difference is “significant” if there is no more than 5%, or one chance in 20, that the results are due to chance. This is an arbitrary figure, chosen as the happy medium between the dangers of rejecting a genuine difference, and the risk of accepting as genuine the mere result of random sampling.

However, even if the results are significant, there is still the question of interpretation. Suppose, for example, you found that significantly more of the Brisbane sample suffered from skin cancers and solar keratoses (“sun spots”). You might assume that it was due to the greater amount of sunlight in Brisbane – and you would probably be right. But there are still other possibilities. Perhaps Melbourne has a higher proportion of people of southern European ancestry, whose olive skin is more resistant to sun damage. Or perhaps more retirees have moved to Brisbane, and old people, by their very nature, have had longer exposure to the sun.

Confounding factors such as these lurk in nearly every study, sometimes where you least expect it. Scientists, therefore, always attempt to compare their study group with a “control group”: one which is identical to the study group in every detail likely to be relevant except the one under consideration. In practice, this is often very difficult to achieve. Experience shows that bad habits tend to run together eg people who eat too much often drink too much, and smoke, and fail to exercise, and all of these behaviours vary with social class and location. On the other hand, if you wanted to see whether giving up smoking reduces the risk of a certain disease, it is no use simply comparing smokers, never-smokers, and ex-smokers. Many ex-smokers have given up because they were sick.

I mention all this because most people haven’t a clue how epidemiologists determine the causes of disease. Most journalists are equally ill-informed. Yet every week you will read in the paper, or a popular magazine, of a recent study which shows that X causes/cures/prevents cancer/diabetes/ingrown toenails, or whatever. In almost every case, the results are merely tentative. They are based on a preliminary investigation, and more detailed, more controlled studies with much larger sample sizes will now be required to validate it.

One other source of inaccuracy is often overlooked. If you are using the 5% or one in twenty rule of significance, and you perform twenty tests, you should not be surprised if one of them comes up trumps. This multiple test phenomenon is responsible for any number of bogus correlations. When I was studying biological statistics the classic example was the close correlation between the birth rates in German cities and the population densities of nesting storks. Bogus correlations crop up all the time. Leukaemia clusters are a good example. A hospital in a country town reports an unusually high incidence of childhood leukaemia. “There is only one chance in a hundred that this happened by chance,” a worried spokesman exclaims. Well, there are more than a hundred country hospitals, aren’t there?

Remember, too, that the human brain is programmed to always notice the outstanding exceptions rather than the mundane rule. A while ago there was a hue and cry over an unexpectedly high incidence of breast cancer in the Brisbane office of the ABC. “Only one chance in a million!” shouted the headlines. The office was evacuated and condemned, on the assumption that it was contaminated – although no possible contaminant is known to cause breast cancer.

Well, the first thing we should ask is: what is so special about the Brisbane ABC? Why not look at the Melbourne ABC, or the Roma CWA, or the St Joseph’s ladies’ guild, or a hundred thousand other organisations? Indeed, what is so special about breast cancer? It would be considered just as noteworthy if any of the above groups were inflicted with Hodgkin’s disease, stomach ulcers, haemochromatosis, or a thousand other diseases. Looked at this way, there are almost endless combinations of disease clusters which could have happened, but didn’t.

It is like winning the lottery. The chances of any individual winning it are very remote, yet there are winners every week. Likewise, the chances of something terrible happening to your own small group is quite small, but some bad thing is bound to happen to some group somewhere. Thus, the only reason the Brisbane ABC was singled out was because someone noticed it stood out from the great mass of mediocrity. In the absence of some known cause, however, this must be regarded as just another example of the multiple test phenomenon. But people never look at it that way. It is human nature to always try to find some reason behind one’s tragedies.

You should not be surprised, therefore, that epidemiologists have additional methods of determining if a correlation is valid. They are:

1. Repeatability. If one study reveals a correlation between X and cancer, a second, more thorough study should also reveal it.
2. Dose effect. If X causes cancer, then heavy users of X should show a higher incidence of cancer than light users.
3. Finally, although some well established correlations are inexplicable, it is helpful if physiological mechanism can be hypothesized to explain the correlation. (That makes it rather difficult to accept the stork-birth rate correlation at its face value.)

What has this all got to do with veterans’ legislation? Plenty. Because once you start invoking the “beyond reasonable doubt” test, every rogue hypothesis and tentative speculation becomes grist to the pension mill.

As an example, one might mention the case of several widows who appeared before the Federal Court in 1981. Each of their husbands had suffered from malaria in New Guinea, and each of them had died of lymphosarcoma (cancer of the lymph glands) decades later. No statistical connection – not even a multiple test connection – could be cited between malaria and lymphosarcoma, nor was any alleged. You might think, therefore, that their case was pretty weak. However, they were able to cite the testimony of Dr Donald Metcalf, who had investigated the causes of the disease for more than 25 years, both in Australia and overseas, and was one of the world’s leading experts on the subject. He explained that such cancers typically display a latency period of up to 30 years between the initiating event and the manifestation of the disease. Furthermore, no one particular factor can be isolated as a cause for cancer. Nearly always it results from a combination of factors involving both the body’s own workings, and influences from the outside world. However, because cancer is, by definition, a result of runaway cell division, any factor increasing cell division acts to increase the risk. In this case, he believed that widespread, systemic infections, such as malaria, would cause a massive proliferation of lymphoid cells, and this might set in a train a course of events leading to cancer 30 decades later. He admitted it was only an hypothesis, but there was some support from experiments with mice.

When the Federal Court decided this was good enough to grant a pension under the “beyond reasonable doubt” principle, the Department had no choice but to accept such claims. However, there was still the question: how severe is severe? Multiple hospitalisations for malaria would certainly meet the mark, one brief incident might not. Dr Metcalf, being an honest researcher, kept refining his hypothesis in the light of additional information. It got to the point where he was essentially co-opted into the decision making process. Whenever such a claim was received, the relevant information would be sent to him with the question: does this accord with your current views? Eventually, after about four years, he finally abandoned his hypothesis, and anyone who lodged a claim after that date was out of luck.

Then there was the case of Joseph Rose. After he came back from the Second World War, he did not resume cohabitation with his wife, but went to live in a private hotel. On 21 July 1951, he disappeared. Then, in June 1955, a skeleton was found in bushland on Mt Coot-tha, then on the outskirts of Brisbane, and identified as his. Presumably, he had died of unknown causes while bushwalking.

The war widow’s pension was originally intended for relatively young women, often with children, tragically deprived of their husband’s emotional and financial support by enemy action. Looked at this way, Mrs Rose could hardly have been greatly inconvenienced by her estranged husband’s mysterious demise. Just the same, they had never been divorced, and she never had remarried. Then, in 1976 when, one presumes, she was no longer supported by her own labour, she applied for a war widow’s pension. He probably died, she contended, of a sudden heart attack, brought on by the war, naturally. This, said the three layers of decision makers, sounded a little tenuous. Various friends testified that he had complained of heart problems, but no supporting medical evidence whatsoever could be found. Nevertheless, in 1982 the Federal Court ruled that one could not be certain that death was not due to a heart attack.

A pattern was emerging. “Beyond reasonable doubt” was beginning to look like “beyond all shadow of doubt whatsoever”. It was no longer a reverse criminal standard of proof. The gaols would be empty if such a standard applied in criminal cases. But you should not be surprised that certain decision makers started taking it to heart.

Prior to 1985, the appeal avenue did not proceed: Delegate of the Commission → VRB → AAT. Instead, the initial decision would be made by a three-man Repatriation Board, with appeals first to a Delegate of the Commission, and then to the Repatriation Review Tribunal (RRT). It was the RRT which was the weakest link. Widows were a particular weakness. Confronted with the sight of an elderly widow, the critical faculties of the RRT would melt away. In 1983 alone, 98% of war widow’s appeals succeeded at the RRT. That wasn’t a bad score when you consider these were the cases too weak to be accepted at the other two levels. The Commission took the Tribunal to court many times, but even when they won, it made no difference. The RRT simply found another excuse to grant the appeal. Was it any wonder that the government eventually abolished it?

The government should have locked the stable door once the Law horse had bolted. Now another horse, by the name of O’Brien, was about to make its run. The case involved high blood pressure, or hypertension. By itself, it is not particularly incapacitating, but it is a gateway condition for much higher pensions down the track, because anyone suffering from it runs a much higher risk of heart disease, stroke, and other vascular diseases. The contention raised was that it was a result of a war-caused anxiety state. Intuitively, this hypothesis would appear to have a lot going for it. Everyone knows that your blood pressure goes up when you are anxious, and if you had a long term anxiety state, it seems reasonable that the pressure would end up reset at a higher level. It all makes perfect sense. The trouble is, there is not much scientific evidence to support it. And, indeed, it has been pointed out that exercise also raises blood pressure, but athletes are not particularly susceptible to hypertension. In the vast majority of cases, the cause of hypertension is unknown.

The case also went all the way to the High Court, and when Their Honours made their ruling in 1985, it was a bombshell. If you did not know the exact cause of a disease, then one cannot be certain “beyond reasonable doubt” that war service did not play a part. Broken bones and bacterial infections incurred after discharge would be out, but high blood pressure, prostate cancer, brain cancer, kidney stones, irritable bowel – every disease whose cause is unknown, or is incompletely known, in fact 90% of diseases – would be in. The stable door was not just open, it was smashed flat and lying battered on the ground, and the whole blessed herd was about to get away.

This time, the government sprang into action and changed the law. But for a few glorious months it was open slather. The change became effective only from the date of royal assent. Pre-existing claims, and all those who got in for their chop before the effective date, were entitled to an automatic, rubber stamp acceptance.

Why was this so? It is a basic principle of parliamentary government that laws are not made retrospective – and for good reasons. It would be iniquitous if you could be punished or sued for something that was perfectly legal at the time you did it. Even with administrative law, the principle holds good. When, for example, the government changes the rules relating to superannuation, the new rules apply only from the date of the legislation. Before that date, it is assumed that you have been planning your finances according to the old rules.

But in this case the principle was not valid. The issue was how to establish that a disease was war-caused. Nobody had planned to be sick, and certainly nobody had ever planned for the war to make him sick. Nobody would have been denied justice if the law had been made retrospective. Failure to do so simply handed a windfall to hundreds of people whose illnesses were not, by any rational assessment, due to the war.

Be that as it may, the reforms of 1985 can be summarised as follows:

1. Although there was no onus on the claimant to prove his case, there was no assumption that a medical condition was, in fact, war-caused. Up till then, the court decisions had carried the presumption that every veteran or veteran’s widow was entitled to a pension unless proved otherwise.
2. Before the “beyond reasonable doubt” test applied, the material had to raise a “reasonable hypothesis”. That effectively ruled out those cases where there was no evidence at all.
3. For the first time, eligible service was divided into separate categories. Operational service essentially entailed overseas service in time of war, or in certain parts of Australia which came under enemy attack in World War II. If a veteran went overseas at any time during the Second World War, the whole of his service before and afterwards counts as operational service. Peacekeeping service speaks for itself. The Minister could also designate certain episodes of peacetime service as “hazardous service.”
4. The “beyond reasonable doubt” standard of proof was to apply only to the connection between a disease or death and operational, peacekeeping, or hazardous service. Everything else was to be determined to the decision maker’s “reasonable satisfaction”, which was generally seen as the old civil standard of balance of probabilities. Effectively, this meant that service wholly in Australian during World War II, or simple defence service, would be judged in a much less generous manner. So would the assessment of pension.
5. Finally, the “reasonable satisfaction” test would apply to any disease with an onset more than forty years after the end of service, or any death which occurred after the said forty years’ delay. This was too much for the ex-service organisations. The Second World War was now forty years in the past. They could see their pot of gold slipping from their grasp. Worse still, their widows would miss out, and end up no better off than elderly civilian widows. That was the one clause they had to make a fuss about, and it was removed when the law was rewritten as the Veterans’ Entitlements Act the following year.

Two Standards of Proof

Stronger Standard (operational, peacekeeping, and hazardous service)	Weaker Standard (everything else)
reasonable hypothesis (RH) beyond reasonable doubt reverse criminal standard	reasonable satisfaction balance of probabilities (BOP) civil standard

The two standards of proof are referred to in different ways, and even with different acronyms. They are listed here for reference purposes.

When the reforms were introduced to Parliament, the Minister made it clear that a “reasonable hypothesis” meant one that was not “remote, fanciful or tenuous”, and it did not take long for the courts to confirm it. It took a lot longer to clarify that the evidence had to point to the hypothesis, however weakly, rather than merely leaving it open, and it was well over a decade before it was established that the diagnosis of a disease, or the cause of death, had to be established on the weaker standard. In the meantime, a lot of undeserved pensions were handed out.

Anomalies still existed. For instance, World War II is legally defined as ending in 1952, when the peace treaty was signed with Japan. Anybody who went overseas during that time still had operational service, even if all the enemies had laid down their arms. If he did, then the whole of his service was operational. Once I had a case which revolved around whether the claimant had made a single flight, lasting only one day, to New Guinea in 1946. “Surely,” said a colleague, “you’re not going to give him a pension because he went to New Guinea for just one day?” Indeed I was, because that’s what the law required.

Once the reforms were in place, the first action initiated by the Commission was to start rejecting all claims based on a smoking habit which commenced on non-operational service. All such rejections were accompanied by an explanation similar to what you have read in the last chapter: that smoking was the rule rather than the exception for men in the veteran’s age group in the period under consideration, and that access to cigarettes, and peer pressure were equally applicable to civilian life. On the balance of probabilities, military service was merely the setting, not the cause, of a smoking habit.

     This common sense approach lasted only eight years, when it was overthrown, first by the Tribunal, and then by the Federal Court, in the case of Tuite. Mr Tuite was one of those servicemen who was sent to a boot camp for several months, and then told to go home and wait till he got his call-up for full time service. Because the period in camp was isolated from the rest of his service, and it took place inside Australia, the service was non-operational, and standard of proof, in consequence, that of reasonable satisfaction.

At the time, he was 24 years old, and had successfully resisted all temptations to smoke. A more marked difference from James Law’s experience of heavy combat and imprisonment would be hard to come by, but he did suddenly find himself in an environment totally different from before. A truck used to come around and offer cigarettes for sale, and he saw other people accept them. There was nothing else to do but walk around, march, parade, and attend lectures. He was bored, and just a little apprehensive about going overseas sometime, so he decided to smoke. That’s good enough, said the Tribunal. Quite so, said the Court. The fact that the same inducements to smoke exist in civilian life is immaterial; just say the right words about smoking, and we’ll give you a pension. Being a decision maker at the time, I remember vividly how, in less than a year, we went from rejecting nearly all “reasonable satisfaction” smoking claims to accepting nearly all of them as a matter of course.

Just the same, there are two lines in the sand the Commission has decided to draw. Except in unusual circumstances, or in a moment of distraction, they will not accept increases in smoking on the balance of probabilities. Nor will they accept a claims if smoking commenced on defence service ie after 6 November 1972. By then the dangers of smoking were well known, even in the military, and warnings were placed on cigarette packets. Making the Tribunal understand that is, of course, another matter.

Quite apart from this, the vast majority of cases fell into the category of “reasonable hypothesis”, and there was still left open the question: how weak does an hypothesis have to be before it becomes “unreasonable”. The post-O’Brien reforms merely turned the clock back to the pre-O’Brien situation. It was no longer possible to obtain a pension with no evidence whatsoever, but medical authorities still differed as to how much smoking is required to cause a particular disease, or how much heavy work is needed to cause osteoarthrosis, and new, unsubstantiated studies were always coming out suggesting some connection between some little known disease and some commonplace item or experience. It needed only one rogue study or rogue doctor to set the cat among the pigeons.

Sometimes, no medical input was required at all. At one stage, the advocates of Legacy wracked their brains over the question: how can we get stomach cancer accepted as war-caused for non-smokers? and came up with the following chain of logic.

1. There is usually a long latency period between the insult to the body and the onset of cancer.

2. Nitrates can cause cancer.

3. During the war, troops were fed meat containing nitrate preservatives.

4. Ergo, the war can be blamed for stomach cancers forty years later.

No evidence was provided that stomach cancer was more common in veterans, or of the quantities of nitrate required before a risk is present, or even the concentration of nitrate present in war-time rations. It made no difference. It was an hypothesis; if it went unchallenged it would be deemed to be a “reasonable hypothesis”. Highly paid Departmental Medical Officers had therefore to be taken off their normal duties to investigate all the parameters and implications which Legacy had neglected.

Chasing these sorts of wild geese became a regular exercise for the Department. I honestly cannot remember any of the hypotheses initiated at the time by ex-service organisations turning out to have any validity, though they managed to get away with a few for a while.

Once the RRT was replaced by the VRB in 1985, it rapidly adopted its role as the weak link in the appeal chain. The current VRB is not too bad, but the original one was, to put it tactfully, a little over-enthusiastic in the thinness of an hypothesis it would accept as “reasonable”. Here are a few of the more memorable ones:

• While stationed in Australia during the war, a soldier was promoted to sergeant, and granted access to the sergeants’ mess, where he gained a taste for the pastries served there, became obese, stayed obese, and eventually developed heart trouble. This, you might notice, is a far cry from the case of Law, whose tobacco consumption was the result of an actual addiction. What made the decision even worse was that his service was non-operational, and so the “beyond reasonable doubt” principle failed to apply.
• Another digger, at a time when most Australians were tea drinkers, was seconded to the American army, and got addicted to coffee. (They used to brew it in their tanks, so he told me.) He came up with some evidence that caffeine is a risk factor for heart disease, and the Board accepted it. But I wouldn’t suggest you coffee drinkers worry too much; scientific research has failed to confirm it.
• The prize, however, must go to the time the Board accepted Legacy’s tortuous contention about the death of an elderly veteran from Alzheimer’s disease. It went as follows:

1. Although he was diagnosed with Alzheimer’s disease, this can only be established by autopsy. It may have really been some other form of dementia such as Creutzfedt-Jacob disease (CJD), a disease which received worldwide attention in the wake of the British “mad cow” epidemic.

2. CJD is thought to be caused by a “slow virus”, an old term for what is now known to be a strange biological particle called a prion.

3. “Slow viruses” are known to be present in New Guinea, in the form of kuru, or “laughing disease”, infecting a tribe called the South Fore.

4. Ergo, the deceased may have died from a dementia mimicking Alzheimer’s disease caused by a dreaded “slow virus” picked up in New Guinea.

Had the Board not been in a rush to hand out pensions, but had actually done its homework, it would have discovered a couple of pertinent facts. First, although CJD, kuru, and Alzheimer’s disease all involve dementia, they present quite differently, and whereas the progress of the first two diseases is a few months, Alzheimer’s disease lasts 6 to 10 years. Secondly, “slow viruses”, or prions, are not just floating around New Guinea haphazardly. Kuru was transmitted among the South Fore by mortuary cannibalism. In other words, instead of burying their dead, they ate them, the victims of kuru itself being considered especially delicious. As far as I know, this custom was not prevalent among Australian diggers.

Just to show that the lunatics really were in charge of the asylum, the Commission embraced this decision. At the time, there was a backlog of cases listed for the AAT, and the head of the Department’s advocacy section decided that the best way to reduce it was to concede cases willy nilly, even if it meant handing out large sums of taxpayers’ money. So, for some months, until saner policies prevailed, every claim involving New Guinea and dementia got smooth sailing.

The stable door, in other words, was still loose on its hinges, and now horse number 3 was about to bolt. Bushell was a partial re-run of O’Brien, in that it involved the same minority medical opinion about a connection between anxiety states and hypertension. The AAT had done the right thing; it had heard detailed evidence about when the scientific studies had actually found, and came out with the view that the connection had not been demonstrated. But this was too much for the High Court, which heard the case in 1992. Judges do not think like scientists. To them a scientist or a doctor is an “expert” – a keeper of arcane knowledge which a mere layman could hardly be expected to understand or analyse. They elected to follow the safer course, and not question it. Under the prevailing standard of proof, they ruled, it would be difficult to deny that an hypothesis was reasonable if it were raised by a specialist, even if most of his colleagues disagreed, provided he was eminent in his field, and had full knowledge of the veteran’s circumstances.

In practice, of course, the test was looser than that. The Department’s Claims Assessor, hard pressed for time, is hardly likely to question the eminence of any specialist who offered an opinion, or to ask what sort of studies he used as the basis for his opinion. What it meant, in other words, was that claimants could go doctor shopping, and as soon as they found someone who agreed with them, they were on a winner. It was not actually back to square one, but square two was looking very cosy.

The government’s attempt to correct the law met an unexpected hitch. Normally, Veterans’ Affairs legislation has bipartisan support, but now an election was in the offing. The ex-service organisations were therefore able to pressure the Coalition opposition in the Senate to quash the proposed amendments. Fortunately, it was merely a delaying tactic. Following the election, the re-elected Labor government appointed a committee headed by Prof Peter Baume to examine the issue. It was a masterful stroke. Prof Baume was an ex-Liberal MP. His party were unlikely to resist any recommendations he was to make. Also, as mentioned before, both sides of politics tend to think alike in this field, and the Liberals were probably glad to be let off the hook.

The Baume Report, ultimately made a large number of recommendations. It recommended, for example, that the standard of proof should revert to the modified civil standard originally intended by the 1977 amendments. Only a “courageous” government, unconcerned about political backlash, would have resorted to anything as radical as that. The veteran community had gotten used to regarding the standard of proof as their passport to the public purse. Also, as the Tuite case had proved, such a reform would not have put the smoking genie back into the bottle.

The committee also took note of the fact that, for a condition to be accepted as war-caused, the contribution by the war need be only very small. They recommended a two level scale of pension. If the contribution by the war were 50% or more, then the full pension would be paid. If it were less than 50% - even if it were de minimis – then only half the pension rate would be payable. Such a reform would have required a lot more public servants to administer, and would have created many more appeals, but it would have produced enormous savings. It would also have gutted the TPI industry.

Every chapter of the report contained numerous recommendations, but only one was acted upon in the immediate aftermath. Over the past year, the Department’s medical advisers had attempted to make the decision making process more consistent by producing Statements of Principles (SoPs) detailing under exactly which circumstances a disease could be accepted as war-caused – but leaving open, of course, the possibility of a doctor pulling a minority opinion out of the hat, and invoking Bushell. The Baume Report recommended that this process be formalised, with a special panel of medical experts being established to systematize the causes of every disease.

On this front, the government acted very quickly. The report had been published on 18 March 1994. From 1^st June that year all claims were to be determined by reference to SoPs promulgated by a select body called the Repatriation Medical Authority (RMA). Once a SoP has been issued, the opinion of any other specialist, no matter how eminent, would be irrelevant. Doctor shopping under the old system would be possible only for diseases not yet the subject of a SoP – and there are precious few of those left. The amendment to the law also established a Specialist Medical Review Council to review the decisions of the RMA. Finally, in order to retain control over the whole situation, the government added section 180A, which essentially allows the Commission to issue its own SoPs. (We shall see examples in the next chapter.)

The RMA does not publish the reasoning behind its SoPs. Like God, it moves in mysterious ways, and like God, its decrees are binding on us mortals. However, outside bodies are permitted to make submissions, and the Commission frequently does so. So, occasionally do ex-service organisations, but they seldom have the facilities to properly analyse scientific data. The RMA is not concerned about majority medical opinion. Medical research advances so rapidly, that majority opinion is actually uninformed opinion. Instead, it studies all the most recent and thorough scientific papers, analysing them according to the tenets of scientific research. Consequently, SoPs are amended and replaced at irregular intervals as new information becomes available.

A SoP merely lists all the risk factors for a disease, no matter how obscure – even birth defects. It is up to the determining authority to connect one of them to eligible service, and sometimes this would be next to impossible. Nevertheless, the list of risk factors grows every year, as more research becomes available. (Now you know, for instance, where I got the list of smoking related conditions in the last chapter.) Two SoPs are produced for every disease, one for each standard of proof. Sometimes the risk factors are the same in both. In others cases, the SoPs differ in the level of exposure required, or the latency period between exposure and onset. What the RMA effectively does, is take the most likely situation for the “balance of probabilities” SoP, and the outer limits of the epidemiological data when the test is “beyond reasonable doubt”. Occasionally, a risk factor appears in one, but not in the other. For example, you will be interested to know that the hypothesis of O’Brien and Bushell: that of anxiety and hypertension, finally got the OK from the RMA in 2003 – but only as a possibility which could not be excluded “beyond reasonable doubt”. It is still regarded as improbable.

Needless to say, the Federal Court still managed to frustrate the intentions of Parliament. In 1999, for instance, came the case of Keeley. He was dismayed to find that, between the decision of the Commission and that of the Tribunal, the RMA had replaced his SoP with one less favourable to his claim. It wasn’t fair, he cried – and the Court agreed. He had an accrued right to be considered under the old SoP. Consider what this means. The most up-to-date scientific knowledge indicated that his condition could not be related to service, even under the most generous standard of proof, yet now he was entitled to a free pension on the basis of obsolete information.

The perversity of this logic was not completely lost on the Court. In the Full Court decision of Gorton (2001), Justice Allsop gave the following minority opinion: “However, it seems to me that they [the SoPs] do not affect accrued rights at all and are not intended to. To put it bluntly, it might be said that no-one has the right to have his or her claim assessed by the tribunal erroneously by reference to the product of out of date science and medicine.” Exactly. Yet, law and precedent was still permitted to triumph over justice and common sense. (Gorton is also authority for the proposition that, when a SoP says “daily”, it does not mean “daily”; it means “just about daily”.)

Next came the ruling in Kattenberg (2002). In this instance, the veteran needed 30 pack years of tobacco consumption. (A pack year is 7,300 cigarettes: the equivalent of a packet of 20 per day for one year.) Unfortunately, he had started smoking before eligible service, and merely increased on service, so he had only 15.87 pack years directly due to service. Yes, said the judge, but he also had 19.4 pack years due to his original addiction, and the extra 15.87 were enough to push him over the threshold. He would not have had 30 pack years “but for” his eligible service, and the legislation does use the term “but for”. That was definitely not what had been intended by the legislation, and it threw the field wide open again. For a short time, the Commission considered asking Parliament to change the law, but decided against it because they could not think of a form of words that would work. The Commission, in other words, lacked imagination.

Worse, the Commission has chosen to adopt an incorrect interpretation of the judge’s decision, one much more generous to the applicants than the judge’s actual decision. Instead of using the “but for” test, they have decided that all that is needed is that eligible service make a “material contribution” to a disease. The difference is very important. If Mr Kattenberg’s original tobacco addiction has produced the full 30 pack years, his claim would have failed, because the extra 15.87 due to service would not have pushed him over the threshold. The threshold would have been crossed in any case, and “in any case” will always trump “but for”. Nevertheless, the Commission has now rewritten the department’s computer programs, and I have personal experience that they will automatically accept claims which a correct reading of the law should reject.

Finally, although the 2006 case of Cotton did not have the overwhelming ramifications of the other two, it remains an object lesson for anyone who believes that judges are highly intelligent beings with superior faculties in logical reasoning. As a background to the case, you must understand that drinking too much alcohol will put you at risk of high blood pressure, or hypertension. The original SoP required:

“suffering from alcohol dependence or alcohol abuse, involving consumption of an average of at least 300 grams per week of alcohol”. (That’s little more than four standard drinks a day.)

However, the new SoP replaced it with:

“consuming an average of at least 300 grams per week of alcohol which cannot be decreased to less than an average of 300 grams per week.”

     Obviously, the RMA had wished to include the hypothetical circumstances where a person was unable to reduce consumption for some unlikely reason unrelated to alcoholism. But that was much too sensible for Justice Steven Rares to grasp. After following the most tortuous and convoluted chain of logic imaginable, he reached the conclusion that the last phrase cannot mean what it says and, in practice, has no real meaning at all. (Why take my word for it? The full decision, in all its glory, can be found on the internet. Just follow the link already provided.)

    (Shortly afterwards, the RMA, rather than correcting the misinterpretation, simply removed the reference to being unable to decrease. However, they did increase the quantity required.)

Despite all this, the SoPs swept through the department like a clean wind. Now the causes of diseases were clear cut and beyond question. The odious doctor shopping was largely a thing of the past. Nevertheless, they were not an unqualified blessing. Although a large number of diseases were now off the table as far as pension claims were concerned, the increasing number of risk factors for an increasing number of diseases resulted in increasingly imaginative contentions from ex-service organisations. Also, the ready accessibility of the SoPs meant that people could tailor their evidence to suit their requirements.

Not only that, but an air of unreality and artificiality still clings to them. A good example would be ischaemic heart disease, the most common type of heart trouble. Everyone knows that it can be caused by smoking. What everybody doesn’t know is that the risk very quickly reduces once you give it up. So, the “balance of probabilities” SoP states that, no matter how much you may have smoked, once you have given it up for five years, you are no longer at risk. However, when you consult the “beyond reasonable doubt” SoP, you find that the risk extends to 15 years after cessation, provided you have smoked at least five and less than 20 pack years (a pack year, you will remember, is 7,300 cigarettes). If you have smoked 20 pack years or more, then the risk is considered permanent.

You must understand the biological basis of all this. Smoking causes hardening of the arteries, but once it ceases, the body starts to clean itself, and after a short while returns to normal. Scientific studies have revealed that it is probably back to normal after five years, but the possibility that there is still some residual effect cannot be ruled out. Nevertheless, the probability most be very low. After 15 years, any residual effect would be very small, and after 20 years smaller still. In other words, we are operating at the very bottom limit of residual effects. Yet, when a claim comes up for consideration, we will often find ourselves arguing over whether the veteran had 20 pack years, or only 19, or whether he gave up 16 years ago, and not 15. Meanwhile, he has reached the age where heart disease is common, he is obese and does not exercise, and has non-war-caused high blood pressure – all of which are recognised risk factors, and which any ordinary person outside of the ivory tower would say were the “real” causes of his heart disease. Examples like this can be provided indefinitely.

Three years after the introduction of the SoP regime, the government commissioned Prof. D. Pearce to review the progress of the system. He determined that it was working quite well indeed. However, he did perform a few back-of-the-envelope calculations, and estimated that only one to ten per cent of successful claims would succeed without the “benefit of the doubt” rule. In other words, the department is accepting at least ten unworthy claims in order to avoid one worthy claim being refused. And this assumes the validity of the smoking contention, which is responsible for two thirds of all successful claims.

He also pointed out the irony that, although the Department of Veterans’ Affairs has the most generous pension system in the world, the ex-service organisations are constantly complaining about how niggardly it is. He corrected divined the cause: Veterans’ Affairs is evidence-based, whereas the ex-service organisations are reward-based. In other words, whereas the Department does it best to determine that diseases are at least theoretically related to service, the ex-service organisations believe that every veteran and widow should get a pension – preferably at the highest rate – merely for being a veteran or widow, and regard SoPs and the law as unreasonable barriers to that aim.

Continue to Chapter 5

Return to Index

5. The Myth of Agent Orange

Another uncle of mine was seriously affected by agricultural chemicals. I’ll always remember the sight of the very severe contact dermatitis which covered his hands. Indeed, it was commonly held that he in fact died from the effects of these chemicals. However, one day I happened to ask the cause of his death, and all I could get were vague generalities. From what I could gather, however, his death was more likely the result of the chemicals in cigarettes.

Another relative was popularly held to be suffering the effects of occupational exposure to sheep dip. But it turned this was also a family myth. What he had was a congenital metabolic disorder, which cannot be aggravated by any chemical except alcohol.

These two anecdotes are provided simply to illustrate a phenomenon. Most people’s understanding of chemicals is very limited, with the result that they tend to assume the worst, and when exposure to chemicals is known, or even suspected, they are quick to blame it for any and every disorder they may experience. Radiation has the same effect on people’s imaginations. In a wide zone around the burst nuclear reactor at Chernobyl, inhabitants are liable to attribute all their medical problems to it, even those which science has shown have never been linked to radiation.

Coupled with this is the same mental process which causes primitive people to believe in witchcraft: the natural human attempt to make sense of their misfortunes. If an African or a Papuan is bitten by a snake, his kinsmen’s first response is to ask who had placed a curse on him. Of course, they know that snakes are poisonous, and they do bite, but the question they want answered is the one science never asks: why did this person get bitten? We think we are beyond all that superstition, but are we? We know that snake bites, car accidents, and stomach cancer can happen to anybody, but should we come down with a disease which is rare, or perceived to be rare (though it may be well known to doctors) or, better still, one we’ve never even heard of, our intuitive reaction is usually to ask, how could this have happened? Could it be the result of chemical exposure years ago, or radiation, or close proximity to power lines or industrial magnets, or silicone breast implants, or the use of mobile phones?- all of which have been the focus of scares in the past. It goes against the grain to accept that a bolt from the blue like this might be “just one of those things”, without any obvious cause.

So now we come to Agent Orange which, along with Agents White, Green, Pink, Blue and Purple, was a code name for the herbicide mixture used to deny vegetation cover to the enemy in Vietnam from 1962 to 1970. By itself, this would have been unexceptional. Herbicide spraying had been previously used in World War II, Korea, and Malaya. Herbicides, of course, are poisonous – you wouldn’t put them in your soup – but the issue is how poisonous? How much exposure is needed to receive a dangerous dose? Long-term and repeated exposure is not advisable, and those who work with them on a regular basis wear protective clothing, but if one of them were to slip up and make contact with the chemical on a single occasion, it would not necessarily be a cause for alarm.

Agent Orange consisted of two major defoliants: 2,4-D and 2,4,5-T, of which the latter was the most significant, because it was discovered that the manufacturing process caused it to be contaminated with 2,3,7,8-TCDD, the most toxic of the dioxins, which is also known cause cancer. In fact, its toxic qualities had been known as far back as the late 1940s, but even so, the chemicals had been used effectively ever since then, for the simple reason that they had been known to have been safe in the concentrations used.

Nevertheless, there were certain factors in the social milieu of the 1960s which worked against them. This period saw the burgeoning of the environmental movement, with a concomitant sensitivity to issues of pollution and the dangers of unregulated chemicals, some of it justified, some of it exaggerated. Secondly, the Communist governments of North Vietnam and Red China had started a propaganda campaign against “chemical warfare”. Any pronouncements from that quarter were inevitably taken up by the vocal fifth column in the U.S. and Australia. In short, for good motives and bad, many people were prepared to believe the worst about anything involved with chemicals and/or the U.S. war effort.

The result was that the U.S. Department of Defence commissioned an independent investigation by the Mid-West Research Institute at Kansas City. Their authoritative report in 1968 was sufficient to establish that the concentrations deployed were far below anything which could be considered toxic to human beings or animals. Even spraying next to rivers or canals, or even in the water itself, would not be sufficient to kill the fish. The toxins would not accumulate in meat or fish to a sufficient degree to be dangerous to consumers. It would not accumulate in crops; rather, any residue would simply retard the growth of next season’s crop (which is what a herbicide is supposed to do). The major ecological effect would be the destruction of vegetation and wildlife habitat – quite apart from the fact that bombs and shells are also not good for the environment.

Needless to say, the report was not well publicised. Good news seldom is. (And if it were, it would have been branded a “cover-up”, no matter how independent it might be. Any study which suggests that government, and especially military, action is not as bad as is made out, is always labelled a cover-up.) Just the same, Agent Orange was banned in April 1970, and the defoliation program cancelled in February 1971.

Although health issues had been raised at the time, the main focus of the opposition was on the alleged ecological damage. That all changed in June 1977, as a result of a remarkable series of events. Charles Owen, one of the airmen actually involved in the spraying, was now dying of cancer, and decided that the two were linked. His wife phoned a counsellor at the Chicago Office of the U.S. Veterans’ Administration, one Maude de Victor who, herself in remission from another cancer, took a personal interest in his claim.

Using the Administration’s computer records, she checked for Vietnam veterans who were also cancer sufferers. Not surprisingly, she found a large number, because cancer is common, and does not discriminate against veterans. However, that was not the conclusion she reached. Instead, she began questioning other veterans about both cancer and herbicides, became convinced that Agent Orange was the cause of a large number of complaints, and encouraged them to file claims. Of course, she was neither medically qualified, nor authorised to call up computer records, so management told her to desist. To her mind, this was obviously a cover-up, so she decided to go public.

At her urging, a television journalist, Bill Kurtis produced a documentary entitled, Agent Orange – Vietnam’s Deadly Fog, in which veterans gathered together by Ms de Victor described not only cancer and birth defects, but also every other non-specific symptom imaginable, such as loss of libido and tingling in the extremities. No doubt Kurtis was honest in his misperceptions, but the documentary was essentially pseudoscience. Nevertheless, its emotional impact was strong, and was immediately picked up by the rest of the media. The Agent Orange panic had started.

As Justice Evatt so aptly put it:

“The development of the Agent Orange story should be contrasted with that of the normal epidemiological progress. Epidemiological progress is often made by the observation of a particular syndrome or set of symptoms and signs associated with a particular exposure leading to deduction by a trained observer of an hypothesis of a cause and effect to be tested by proper scientific inquiry. It involves a deductive leap from a large number of particular cases to an hypothesis for testing.

The Agent Orange story was this process in reverse. One man ascribed his cancer to being sprayed with Agent Orange. Others then ascribed a huge range of other disabilities to the same cause because of a wish to believe, not by any observation of value.”  [Royal Commission of the Use and Effects of Chemical Agents on Australian Personnel in Vietnam. Final Report. July 1985.  vol. 8, pp E-34 to E-35 (Aust. Govt. Publ. Serv.).  His Honour’s account of the events leading to the panic really deserve to be read in detail.]

The panic spread to Australia with an article in Rolling Stone magazine in August 1978, and was quickly taken up by the mainstream press. Journalists, I need to remind you, are mostly honest people, but they do know what sort of stories sell. They also vary a lot in how critically they approach stories, and very few have any scientific or medical training. When a controversial issue of this nature breaks, they do not even know the correct questions to ask, let alone how to analyse the data. As far as making sense of the matter, they were just as out of their depth as the poor veterans.

Those of us who worked in Veterans’ Affairs during the height of the panic remember veterans and their wives ringing up in alarm to ask what sort of conditions were caused by Agent Orange. No worthwhile guidelines had come down from the powers to be - who were, after all, equally scientifically naïve - and, in any case, the truthful answer (we don’t know, but probably very little) would not have gone down well. Anybody who was sick naturally assumed the worst because, after all, these things don’t just happen. You don’t get sick without a reason, do you?

Middle age is often the time when the human machine first shows signs of breakdown. If you go around your workplace, your social club, church or PTA – anywhere where there is a significant number of middle aged people - and get the members to describe their physical ailments, you would be surprised at how many and varied they are. By the law of averages, some surprising coincidences will turn up. But, of course, we never do discuss such details, and thus never obtain a proper perspective on the matter. That is, unless we have reason to believe our very membership of the group is likely to be a cause of illness. At that point, we do talk about it, and the normal range of medical problems will look like an epidemic. The perception will be increased if the afflicted join forces to form lobby groups, because then everybody they are dealing with will be sick.

This, then, was the situation that developed at the height of the Agent Orange panic. The Department responded by calling up medical and scientific evidence, as well as unit histories on the timing and extent of the defoliation program. Meanwhile, anybody who lodged a claim on the basis of Agent Orange was given a complete medical check up. Invariably, they presented with disorders which are widespread and unexceptional in the community. Some made no specific complaint, but just wanted to be checked up in case there was something present they were unaware of. Many attributed their psychiatric disorders to Agent Orange – as if being shot at wasn’t a sufficient cause. One man even claimed he was so chemically contaminated he was sweating excessively at night and turning the sheets orange!

Notably absent from the list were the two disorders which were definitely known to be linked to dioxin exposure: chloracne and porphyria cutanea tarda. Chloracne is a specific type of acne caused by exposure to the class of chemicals to which dioxin belongs. In fact, it is virtually indicative of dioxin exposure. Experience with industrial accidents has shown that if you suffer any non-trivial exposure to dioxin you will get chloracne. No Australian serviceman has ever presented with chloracne. Porphyria cutanea tarda is a metabolic disorder which results in extreme sensitivity to sunlight. Mostly it is genetic in origin, but can be caused by viral hepatitis, alcoholism, and a large class of chemicals which include dioxin. It is quite rare; I can’t ever remember a case.

As could be expected, these investigations turned up a number of conditions which could be related to the war on other grounds, notably smoking. But when various skin diseases and cancers kept being rejected, frustration set in because, after all, the press kept telling them that everything and anything was due to Agent Orange. A man with a Bachelor of Science degree, John Evans became the chief promoter of the Agent Orange theory, and it was largely due to his agitation that Justice Phillip Evatt, a judge of the Federal Court was appointed to head a Royal Commission in May 1983.

From what you will have read so far, no Federal Court judge is a puppet of the Government. This would be a completely independent inquiry. Indeed, the judge freely admitted that, initially, he was sympathetic to the Agent Orange theory, but as the evidence piled up over a period of two years, he was unable to maintain that position. Normally, I would have small confidence in the ability of a legal enquiry to handle scientific matters. The methodology of science is foreign to that of lawyers, who have difficulty dealing with it. But this was the exception. The Royal Commission had at its disposal a wide range of earlier scientific studies, and was able to sift through them in a highly professional manner.

The final report consists of nine volumes, and well over a thousand pages. This is all very daunting to the average person, particularly if he or she is unfamiliar with the scientific method. Nevertheless, it behoves anybody who still believes in the Agent Orange myth to study it in detail, because its findings have never been refuted.

Firstly, there was the initial question of how many Australians were actually exposed to the chemicals. The Department had obtained the records of Operation Ranch Hand, the U.S. herbicide spraying program, noted the dates and areas sprayed, and the projected dispersal of the chemicals under the prevailing weather conditions, and matched them with the Australian unit diaries, to determine where Australian servicemen were on those dates. The conclusions were that few Australians, if any, were present anywhere near the spray zones.

This immediately brought a riposte from ex-service organisations that unit diaries were not always accurate, that sometimes transient movements of servicemen were not recorded. Point taken. However, a moment’s reflection will reveal that this applies only to the individual, not to veterans as a whole. An individual may be able to claim that he was in a spray zone, but hundreds or individuals, or thousands of individuals, cannot. One swallow does not make a summer, and one exception does not destroy the rule. In point of fact, witnesses to spraying have almost invariably confused insecticide spraying with herbicide spraying. The former was used against malaria, and exposure was almost universal, but it has no bearing on the Agent Orange claims. The mixture of this natural confusion, selective interpretations of memories, and anti-chemical hysteria produced some extraordinary claims. It was often said that Agent Orange was dripping off the trees, to be brushed off on one’s skin as one passed. Since the whole point of the herbicide use was to make vegetation die, and thus deny cover to the enemy, this is hardly likely.

Since there was a pervasive belief that Vietnam veterans were – and are – dying off at a faster rate than the general population, especially from chemically induced cancers, the Commonwealth Institute of Health, a branch of the University of Sydney, set up the Australian Veterans’ Health Study (AVHS) to investigate their morbidity. However, before looking at their results, it may be useful to examine some general studies.

The Vermin and Noxious Weeds Destruction Board of Victoria used a tremendous amount of 2,4-D and 2,4,5 –T (ie Agent Orange) in the control of blackberries. Their knapsacks and vehicles were often wet with it. They often had to reach their hands into the tanks to adjust the regulators. The 2,023 staff followed up to the end of 1984 had been exposed to the herbicides for anything from one to 25 years, a far heavier exposure than anything any Vietnam veteran could have experienced. Yet they suffered no increase in cancer rates over the general population.

In Finland, 16,694 man years of spraying produced even fewer cancers and fewer deaths from natural causes than the general population. Two separate studies in New York State revealed that, compared to non-veterans, Vietnam veterans experienced excess deaths only due to non-vehicle accidents and liver diseases. When the 1256 U.S. personnel of Operation Ranch Hand – the men who did the actual spraying in Vietnam – were compared to servicemen who did similar work, but had no contact with Agent Orange, there were no excess deaths, and most of their cancers were skin cancers, due to sun exposure. These were men whose aircrafts, clothes, and equipment were often covered with the herbicide, who walked through puddles of the stuff in their daily work, who often had to reach their arms into the chemical cocktail. It is estimated that each Ranch Hander received at least 1,000 times the exposure of a hypothetical serviceman who stood naked in a field under a spraying aircraft.

With this background, one might made a reasoned prediction of what the AVHS would find. Their first task was to establish a “control” group ie a group with very much the same characteristics as Australian Vietnam veterans, except that they hadn’t been to Vietnam. The solution was obvious: the national servicemen. Here was a group of the same age, chosen at random from the general population, all of whom then passed the bottleneck of a military medical examination, followed by military training. All they needed to do was to compare the conscripts who went to Vietnam with those who stayed at home. And since hardly anybody who served less than twelve months served in Vietnam, they decided to limit their examination to those with at least twelve months service.

It says a great deal for the determination and application of the AVHS team that they were able to trace more than 95% of the men on their list, and establish whether they were alive or dead as of 1^st January 1982. For the deceased, they then had to establish the cause of death. In order to avoid bias, the investigators were not informed as to whether the subjects had gone to Vietnam until all this information was in. In total, there were 19,209 Vietnam veterans to compare to 26,957 fellow conscripts who stayed home. What were the results?

• The death rate for Vietnam veterans was 18% lower than for men of the same age in the general population – for the simple reason that they were healthier than average to start with. The enlistment medical exam weeded out the unfit.
• However, among national servicemen, Vietnam veterans had a death rate 29% higher than non-veterans. Interestingly enough, the excess deaths were largely concentrated in the immediate post-war period. Veterans who reached their mid- to late-30s were less likely to die than non-veteran conscripts.
• Excess deaths did not correlate with length of time in Vietnam, or year of service. This is significant, because if death was due to Agent Orange exposure, or even to combat, it would be highest among those who served the longest periods, or served during periods of heaviest spraying, or most intense fighting.
• It was, however, correlated with corps. To be precise, national servicemen were more likely to go to Vietnam if they belonged to infantry or armoured units. Obviously, such units would suffer more combat stress than support units, but national serviceman in infantry and armoured units had higher post-war death rates whether they went to Vietnam or not. Indeed, if the effect of corps membership was taken into account, the differences between veterans and non-veterans largely disappeared.
• So far, we haven’t mentioned the causes of deaths. The excess deaths in veterans were due almost entirely to circulatory diseases, alcoholic diseases of the digestive system, and external factors, but not cancer. All this was consistent with exposure to chemicals: specifically, those in cigarettes and beer bottles. Perhaps the general impression that veterans were more likely to smoke and drink has a basis in fact.

However, the cause and effect relationship is not so straightforward. The two groups, veterans and non-veterans, were not completely comparable. National servicemen frequently had a choice in which units they joined and, with very few exceptions, they volunteered for, or at least consented to, service in Vietnam. (The Royal Commission went into a great deal of detail about this.) It is likely, therefore, that those who ended up in Vietnam had a more macho outlook on life, with a more reckless attitude to risk taking, and risky behaviour, such as drinking and smoking. This would also explain the increased death rate of infantry and armoured personnel, even among the non-veterans.

In any case, there is absolutely no evidence that Agent Orange has had any effect on the health of veterans. Vietnam veterans were not significantly exposed to herbicides. The sort of cancers linked to dioxins is not more common in Vietnam veterans. At the time, many veterans were prone to attribute their psychiatric problems to Agent Orange, the implication being that the chemicals had somehow got into their brains and caused neurological damage. There is no evidence of increased neurological problems in Vietnam veterans. Their psychiatric problems are the direct reaction to combat stress, not brain damage.

Given the above incidence of psychiatric disorders, it might be expected that many would have committed suicide. In 1981, Vietnam veterans’ groups were claiming that 470 of their comrades had already taken their own lives – more than had died in the conflict itself. The press picked this up and ran with it, without ever bothering to confirm it. One paper claimed this was statistically 100 times the society average. No-one asked where that figure came from either. Fact: the total number of suicides, both national servicemen and professionals, which the Department of Veterans’ Affairs was able to establish, was 106. They may have missed a few, but the figure of 470 had been plucked out of thin air. Among national servicemen, Vietnam veterans appeared to have a higher suicide rate than non-veterans, but the results were not statistically significant, and the rate was still no higher than in the general population. And those of us who have to investigate death claims know that suicide is still a very uncommon cause of death.

The second major concern during the Agent Orange scare was birth defects. It was not surprising. This is an area where laymen are running blind, but nothing pushes a parent’s panic button like a perceived threat to his or her children. Also, although we pride ourselves on being sophisticated and tolerant, having a “defective” child bears a similar stigma to mental illness. So we don’t talk about it. If we did, we would soon discover something interesting: although individual birth defects are rare, in the aggregate they are fairly common.

In approximately one per cent of births, a birth defect causes either death or severe incapacity. Less severe defects occur in between 3 and 10% of births. The exact figure depends on just where you draw the line on severity, and at what stage, for many minor defects are not present, or are not noticed, until some years after birth. By and large, veterans took a broad approach to the definition of “birth defect”. A submission to the Royal Commission included not only such things as cleft palate and clubfoot, but hyperactivity, skin rashes, slow learning capacity, eye problems, and being underweight – in fact, any childhood malady which was present very early in life, and which was not obviously due to an accident or infection, and which was not suffered by the child’s parents. I know the feeling. As a child I used to suffer from recurrent sinusitis until a specialist diagnosed, and corrected, a deviated nasal septum. It must always have been present, and it was almost certainly a birth defect. On the other hand, for unknown reasons, childhood asthma and allergies appear to be increasing in the community, but these were also included in the list of birth defects. Their wives’ miscarriages were often attributed to Agent Orange, unaware that, under the normal course of events, one out of every ten pregnancies ends this way.

All this goes to show that, if a group of you ever get together to discuss your children’s health, you will have a vast wealth of material to draw on. If, as in the case of worried veterans, the very reason people join the group is because their children are sick, it will look like a virtual epidemic is in progress.

What causes birth defects? In 70% of cases, no-one can say. By and large, however, causes divide into two categories: genetics and environmental. Since the average person’s knowledge of genetics is limited, here is a brief summary.

All your physical characteristics are encoded on units called genes, and you come in pairs, one from each parent. As an example of what can go wrong, we will take a typical birth defect, albinism. An albino lacks the tanning pigment, melanin and typically has white hair, pink eyes, and very pale, sun-sensitive skin. Let us label the albino gene a, and the normal gene A. As you get one set of genes from each parent, it is obvious that the following combinations of genes are possible: AA, Aa, and aa. The normal gene orders the manufacture of melanin. The albino gene does nothing; it simply does not work. If your genotype, as it is called, is AA, well and good. If your genotype is Aa, you will probably never know it. The normal gene produces melanin, and your body is normal. Only those with the genotype, aa suffer from albinism.

In the language of genetics, the normal gene is dominant, and the defective gene recessive. However, although the Aa person is physically normal, he or she is a carrier. This is because his or her offspring can inherit either the normal gene or the defective one. If you are a carrier, and you have the bad luck to marry another carrier, then there is a strong possibility that your child will be defective. From this, two other things follow:

• If your child suffers from one of these genetic defects, then it means both of you are carriers, and there is a good chance another of your children will be affected. In fact, it can be statistically calculated that a quarter of the children of such unions will be affected.
• Since the actual defective gene is very rare, it can be passed unseen from generation to generation to generation, only appearing when two carriers unwittingly meet and fall in love. Indeed, the same thing applies for other characteristics involving reduced melanin, but which are not considered abnormal. Fair skin is recessive to olive, blue eyes to brown, and fair hair to dark. Fair skin and blue eyes are, of course, the norm rather than the exception in this country. But blond hair is sufficiently uncommon for its sudden appearance in a family of brunets to be sufficient to cause comment – not to mention half-serious references to the milkman.

Explanations such as these are likely to encounter resistance among parents of afflicted children. It seems to imply that they have “bad blood”, or are of “inferior stock”. Yet there is nothing unusual about it. When I was studying genetics at university, I was told that the average person – you, me, the people next door – carries three lethal genes. The reason we were not born dead is that we have only one of each, and the good genes inherited from the other parent keep us alive. The reason our children do not die is that our partners in life carry a different set of lethal genes.

What I have just described – one gene: one character, and complete dominance – is known as simple Mendelian inheritance, from the monk who discovered it, and most of the notorious birth defects follow this pattern. On the other hand, the inheritance of most physical characteristics is more complicated, involving several genes, and incomplete dominance. This was probably the cause of my deviated nasal septum. The genetic card pack is shuffled each generation, and someone has to draw a bad hand. At least I have strong teeth and good eyes, but none of us is a perfect physical specimen. In that sense, the incidence of birth defects is 100%.

The second cause of birth defects is environmental, when external factors damage the baby in the mother’s womb. Thalidomide is a good example. Taken at a certain stage during pregnancy, it blocks the action of a natural chemical used in the development of the limbs, with the result that the victims end up with hands growing from their shoulders, or feet from their hip. Rubella, or German measles, has a more general effect, when the virus crosses into the unborn baby and damages multiple body systems.

And this is where Agent Orange comes in. This aspect of the scare started when experimenters showed that dioxin can cause defects if large concentrations are fed to pregnant laboratory animals.

I need to emphasize those two words. Large concentrations: it is extremely unlikely they ever reached those levels in Vietnam, even among the civilian population. (Then or now. The veterans who go back to Vietnam and repeat the government line that Agent Orange is “still” causing birth defects have learned nothing about Communist propaganda. But they ought to at least stop and think: Agent Orange was a herbicide, but the vegetation has grown back long ago. Agent Orange is no longer present in the environment.)

And pregnant: dioxin is a generalised poison, which can pass through the mother’s womb and, if the dosage is high enough, poison her developing baby. But a man cannot get pregnant. Even if he were heavily exposed to Agent Orange, even if he were to drink the stuff, it is impossible for it to affect the children he fathers after the event.

This itself should be sufficient to remove any worries about birth defects. Now, let us look at the studies. Two separate New Zealand studies revealed that the wives of professional sprayers experienced no more miscarriages or the birth of children with defects than the wives of non-sprayers – even though the women were often exposed to the chemicals themselves while assisting their husbands. The American city of Atlanta, Georgia keeps a record of serious birth defects, but a study of 7,122 afflicted babies revealed no difference in the in the offspring of Vietnam veterans and non-veterans. As for the personnel of Operation Ranch Hand itself, they exhibited no change in fertility, sperm count, miscarriages by their wives, or birth defects in their children.

So when we get to Australia, there will be no prizes for guessing what the results would be. The AVHS scientists enlisted the records of 34 hospitals and 4 cytogenetic laboratories for the years 1966 – 79, and obtained records of 8,517 birth defects. This was the test group. For a control group, they matched each of these babies with another born in the same hospital, at the same level of accommodation, to a mother of similar age, at close to the same date. Only then did they check whether the fathers had been to Vietnam. Obviously, if service in Vietnam was a risk factor, a greater number of veteran fathers would turn up in the test group. In actual fact, the figure was 127, as against 123 in the control group. Not only that, there was no increased risk for longer periods of service in Vietnam. It also made no difference whether the father had even been in the army, let alone been a national serviceman or in the regular army. Interestingly enough, though, it did reveal a greater risk of birth defects if the father was born in Australia, the British Isles, or New Zealand, rather than southern Europe.

So there you have it. The whole birth defects scare was a beat up fed by a general public ignorance of the subject. Studies of the effects of unrealistically high exposure levels to pregnant animals was morphed by Communist propaganda and unscientific journalism into an impossible threat to the children of exposed fathers. But it never had any substance.

Once the Royal Commission handed down its report, it recommended that the findings be made the subject of an educational campaign to relieve the worries of veterans and their wives, but this was never carried out. Even if it had, political experience shows that scare campaigns are taken to heart, while official reassurances are ignored, or treated as whitewashes.

Nevertheless, the Government had to make some political decisions. The birth defects issue was easily solved. The law had never provided for pensions or treatment for the children of veterans, so all the Government had to do was leave it as it was. The living veterans proved a more difficult quandary. The Government knew that none of them were affected by Agent Orange, but they also knew that nothing they could say would persuade them otherwise. As a sop, therefore, they made an executive decision to accept a number of uncommon conditions where there was some indication of a link with major occupational exposure to herbicides, and even a few conditions which had been statistically linked to Vietnam. The multiple test phenomenon (chapter 4) ensured that a few would turn up. Ten years later, it was left to the RMA.

What is the situation today? You will remember from the last chapter, section 108A permits the Commission to override the RMA and declare that certain conditions are war-caused. It did this for acute and chronic myeloid leukaemia and acute and chronic lymphoid leukaemia. What this means is that there is no real evidence that exposure to Agent Orange causes these diseases, or that anyone was actually exposed to Agent Orange in the first place, but the Department will hand out a pension for it anyway.

With respect to the RMA, it has accepted that service in Vietnam can cause chloracne, porphyria cutanea tarda, lung cancer, prostate cancer, myeloma, soft-tissue sarcoma, Hodgkin’s disease, non-Hodgkin’s lymphoma, and diabetes mellitus. This sounds grim, but in point of fact, many of these are quite rare (you would have a wait a long time before you saw a case of soft-tissue sarcoma), and those that aren’t rare have much more widespread causes. Furthermore, the wording of the SoPs suggests strongly that the decisions are partly political.

For a start, prostate cancer, Hodgkin’s disease, non-Hodgkin’s lymphoma, and myeloma have dioxin exposure only in the “reasonable hypothesis” SoP. In other words, it is only a possibility. On the balance of probabilities, there is no connection.

For the others, let us take lung cancer, which is very closely dependent on smoking. Believe it or not, a lot of things can cause lung cancer, such as arsenic, cadmium, beryllium, nickel, asbestos, mustard gas, diesel exhaust fumes, and industrial coke ovens. But these are trivial risk factors. By and large, if you have never been a smoker, you should lose no sleep over the danger of lung cancer.

The very first two SoPs, issued in 1994, concerned lung cancer. For the balance of probabilities standard of proof, the following factor was listed:

spraying or decanting insecticides or herbicides as an occupational requirement for at least ten years, at a time or times prior to the clinical onset of malignant neoplasm of the lung.

 Understand what this means. Balance of probabilities means that there is a 50% chance that the above level of exposure is a risk factor. Many people would require more than ten years, but less than ten years was not considered probable. So when the “reasonable hypothesis” SoP reduced the exposure from ten years to 60 days, you know that they were really scraping the probability barrel. The risk that 60 days of exposure produces must be only slightly higher than zero. Also, since no Australian was involved in Operation Ranch Hand, only the few who thus sprayed or decanted insecticides would qualify.
In 1996 the RMA changed the SoPs. This time, although the above risk factors were retained, another was added:

being exposed to herbicides in Vietnam before the clinical onset of malignant neoplasm of the lung.

This was defined as having occurred if the veteran had:

(a) rendered more than 30 days service on land in Vietnam; or

(b) regularly eaten fish, fish products, crustaceans, shellfish or meat from Vietnam; or

(c) regularly eaten food cooked with water from Vietnam discoloured by sediment, or regularly drunk water from Vietnam discoloured by sediment; or
(d) regularly inhaled dust in a defoliated area in Vietnam or regularly inhaled herbicide fog in Vietnam; or
(e) sprayed or decanted herbicides in Vietnam as an occupational requirement.

Consider for a minute what this implies. Spraying and/or decanting herbicides for 60 days was still listed as a risk factor in the same SoP. So merely being in Vietnam for just 30 days – even if confined to the base, even after the spraying had been discontinued – is just as bad as spraying or decanting herbicides for a full 60 days. The SoP is internally inconsistent, and smacks of politics rather than science. And, of course, it still needed ten years under the balance of probabilities.

Lest anyone doubt that the lunatics were still in charge of the asylum, one of the first claims we received after the change of SoP was from a veteran who had already had already had his claim for lung cancer rejected. He had been a heavy smoker all his adult life, but had not gone to Vietnam until his mature years, when his smoking habit had been well established. Now he appealed to the new SoP. And was granted a pension. Of course, his lung cancer was caused by Agent Orange! How could we possibly have thought it was a result of smoking?

With the coming of the 21^st century, the RMA sought to remove both references to spraying and decanting, and references to insecticides, and establish actual exposure to dioxin. So, when the new SoPs came out in 2006, both standards of proof included the following factor:

inhaling, ingesting or having cutaneous contact with a chemical agent contaminated by 2,3,7,8-tetrachlorodibenzo-para-dioxin (TCDD) for a cumulative period of at least thirty days, at least five years [ten years on the balance of probabilities] before the clinical onset of malignant neoplasm of the lung.

For a reasonable hypothesis, an additional risk factor was included:

being:

(i) on land in Vietnam, or

(ii) at sea in Vietnamese waters, or

(iii) on board a vessel and consuming potable water supplied on that vessel, when the water supply had been produced by evaporative distillation of estuarine Vietnamese waters, for a cumulative period of at least thirty days, at least five years before the clinical onset of malignant neoplasm of the lung.

So now by merely being in Vietnam, or just sailing along the coast, a man is assumed to have inhaled, ingested, or had cutaneous [skin] contact with Agent Orange. The only people who miss out are the poor Vung Tau Ferry veterans, who escorted the troops to Vietnam, and were in port for only a day or two at a time. Nevertheless, some of them have managed to convince Delegates, or the Board, that they qualify by a clever argument. When in Vung Tau Harbour, the story goes, the ship took on sea water and distilled it for drinking purposes. Subsequently, although the tanks were topped up regularly, the contaminants were never removed, but just got more and more dilute. This is not true. The turnover time for water in the tanks was two days. Even if there had been actual Agent Orange in the estuary, after a week or so it would have been so dilute its concentration would have been de minimis.

At any rate, the above risk factors, with occasional slight word changes, is now current for all cancers allegedly linked to Agent Orange. Logic would suggest that the dose response of the body to dioxin would differ according to the cancer involved. The fact that 30 days occurs in all the relevant SoPs, including those where there is no dioxin risk on the balance of probabilities, suggests that political considerations are involved.

In practice, of course, lung cancer can usually be accepted on the basis of smoking, and the other cancers are uncommon. The real gift to the ex-service community lies in prostate cancer, because of widespread prevalence in the community, and the absence of significant risk factors. There is a saying that if a man lives long enough, he will get prostate cancer. (People like me, with longevity in their genes, have something to look forward to.) The balance of probabilities SoP contains no risk factor for Agent Orange, but if a victim had been to Vietnam for more than a month, he will get a pension, and his wife will become a war widow.

Nevertheless, although the RMA is reluctant to remove Vietnam service from a SoP once it has been inserted, it is also reluctant to include it in new ones. The earliest SoP for diabetes mellitus contained no reference to Agent Orange. Then, in 1999, an amendment came out which included the hand decanting or spraying, or the cleaning or maintenance of spray equipment of chemicals contaminated by dioxin for at least six months. (For the balance of probabilities, the exposure time was two years.) No Australian veteran would qualify. However, it also included having a serum dioxin level of 5 parts per trillion at the date of onset of diabetes. The 2006 SoP increased the threshold to 10 ppt.

Now, dioxin has a half life in the human body of 7½ years. If you know the current dioxin level, it will be possible to calculate the concentration at the date of exposure to dioxin. So, when this SoP first came out, a blood sample was taken from any claimant who had been to Vietnam and, at great expense, flown to New Zealand, where the only available lab for testing dioxin levels was situated. However, after a while the Department gave up this costly exercise, because the results were uniformly negative. No matter how long veterans may have served in Vietnam, they never had any significant traces of dioxin in their blood. It is not surprising. Back in 1988 the U.S. Center for Disease Control found that dioxin levels in the blood of veterans who had served in heavily sprayed areas were almost identical to those of the general population. So, by now, shouldn’t the evidence be sufficient? Vietnam veterans were not exposed to Agent Orange.

If you went to Vietnam, I can safely put your mind at rest. It is now 40 years since you came home. Any new medical condition you now acquire will be due to old age, or lifestyle choices, or sheer bad luck – but not service in Vietnam. But you can lodge a claim anyway. There is a good chance that the Department will find an excuse to give you a pension.

The issue still petered on. I have already explained that just talking to your friends about their illnesses is a poor way to ascertain whether your group is any sicker than the population as a whole. It had already been established that Vietnam veterans were healthier than the general population. Nevertheless, because ex-service advocates were constantly assisting sick veterans in their claims for pension, they were convinced that veterans were a predominantly sick group. Under this pressure, the Department commissioned another mortality study by a committee chaired by Prof John McCallum of the University of Western Sydney. This time, a new attempt was made to trace all national servicemen, and establish the causes of all deaths from 1982 to 1994.

The results were a repeat of the 1983 study. The death rate of Vietnam veterans was 16% higher than non-veterans. (You will remember that in 1983 the figure was 29%.) The greatest disparity was in lung cancer and cirrhosis of the liver – smoking and alcohol again. Cancers associated with Agent Orange were too few for any conclusions to be drawn. And veterans were no more likely to commit suicide than non-veterans.

In conjunction with the mortality study was a health study which was much less scientifically based. Questionnaires were sent to veterans, who indicated whether they had ever been diagnosed with specific disorders. Thus, they had to rely on the veterans’ own interpretation of what their doctors had told them. There was no control population ie no group with the same characteristics as the veterans except that they had not been to war, so the Commission was forced to search the literature for information to the incidence of each disease in the general population. In many cases, there was none. The results could be expected. Some conditions were found to be more common in veterans, but could be dealt with simply under the SoP régime, for some conditions no useful conclusions could be made, and there were some conditions which suggested the need for more research, but none was undertaken.

Ironically, there was one question which, had it been asked, would have been informative: “Are you, or have you ever been, a smoker?” The incidence of smoking in the community is well known, so it would have been possible, once and for all, to determine whether veterans smoke more than non-veterans. I asked the doctor responsible for the questionnaire why it wasn’t included. He said there wasn’t enough space.

In 2006 the outcome of three new studies was published, covering nearly every Vietnam veteran since they returned home. The results were as expected. Despite the very real presence of psychiatric illnesses in veterans, their suicide rate was still the same as the general public. They still had a lower death rate than the population as a whole. But, compared to national servicemen who didn’t go overseas, they do show a higher mortality and incidence of cancer associated with tobacco, alcohol and sun exposure. Naval veterans, who had least contact with the enemy, and the least hypothetical exposure to Agent Orange, were the worst. But, it might be added, the cancer rate was independent on the ship involved, or the length of time in Vietnamese waters, and so appears to be related to the naval culture and lifestyle.

Exposure to chemicals continues to generate paranoia, fuelled by the fact that, every now and then, one of the claims is found to be genuine. In the early 21^st century, the big scare was the “Deseal Reseal” program, under which the sealants in the fuel tanks of the F111 bombers were removed and replaced. More than 1,500 people claimed a variety of non-specific symptoms due to direct or peripheral involvement with this unpleasant job over the period 1973 to 2000. The Department was forced to assess their claims against the current SoPs, and then hold the others in limbo until the SHOAMP (Study of Health Outcomes in Aircraft Maintenance Personnel) finished its investigations. It took them four years. Just how rigorous was the scientific investigation can be shown by the debriefing we received at the end of the study.

“Before the Government can decide on a course of action,” the manager said, “it has to first determine who was, in fact, ‘deseal reseal’. Was it only those who actually went inside the tanks, or those who were just casually involved?”

At that, I put up my hand. “What’s the problem?” I asked. “Why don’t they just use the definition used in the study?”

“That’s the problem,” she replied. “The study didn’t use any definition.”

“Wait a minute,” I said. “How can you do a study with a genuine control group if you don’t first define your test group?”

My manager, to her credit, did not try to justify that approach.

In the end, the RMA was able to produce SoPs for one additional disease, solvent related chronic encephalopathy, a form of brain damage normally associated with kids who sniff solvents, but can also be caused by applying the solvents in an enclose space (eg a fuel tank) for ten years. Not many veterans would qualify. None of the other non-specific symptoms could be realistically connected to the job.

Obviously, a political solution was required. All those directly involved in the deseal reseal program were given a lump sum of $40,000, with a sum of $10,000 available to those peripherally involved. The pension claims in limbo were finally activated, and all of them rejected.
        The veterans were not amused.

To Chapter 6

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