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DECISION OF THE WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER ENT41 Appellant Tribunal sitting in: 1. 2.

Colin Eric Leslie DUNCAN Birmingham PAT ref: ENT/00893/2007 NINO: ZR-64-14-88-C Date: 17 December 2008

The Decision of the Tribunal is to allow the Appeal This is an Appeal under Section 1 of the Pensions Appeal Tribunals Act 1943 ("the Act") against a Decision of the Secretary of State ("the Decision") rejecting a claim for entitlement to "disablement" under the War Pensions Scheme, treated by the Decision under the following medical labels: 1. 2. Non-Hodgkins Lymphoma Multinodular Goitre

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The Appellant appeared at the hearing The Appellant was represented at the hearing by Group Captain Andrew V Ades, The Secretary of State was represented by Mr Frith, Presenting Officer

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The Tribunal considered the Statement of Case, evidence given by the appellant and Professor Chris Busby and proceedings at the hearing. The Tribunal considered other documentary evidence produced at the hearing namely: Cerrie Minority Report 2004. Reasons for Decision

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Article 41 of the Naval, Military and Air Forces (Disablement and Death) Service Pensions Order 2006 ("the Order") applies to and governs this Appeal. The effect of that Article in the Order is to place the burden of proof on the appellant at least to the extent of requiring him to raise a reasonable doubt in his favour based on reliable evidence. Preliminary points a) At the start of the hearing Group Capt Ades on behalf of Mr Duncan confirmed i. ii. that he was content for the hearing to take place on the evidence as it stood that the only radiation exposure on which Mr Duncan relied was the exposure whilst he was in Lima with a detachment of 543 Squadron between 9 June 1974 and 24 September 1974;and that in particular he would not be putting forward any argument that Mr Duncan was exposed to radiation on Christmas Island since he was only stationed there for two weeks when no tests were carried out. that he would not be putting forward arguments in relation to exposure to radar or chemicals.

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b) Following the previous adjourned hearing there was a dispute about the issue of whether evidence of other service personnel stationed at Lima was relevant to Mr Duncan's claim. We have referred to such evidence for a limited purpose only namely whether or not it corroborates what Mr Duncan says about the conditions under which he worked at Lima Airport and the work he was required to do. We express no views about the wider individual jurisdiction issue canvassed between the two hearings. 1

DECISION OF THE WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER 8. Having assessed all the evidence the Tribunal's findings of facts material to the appeal are, in summary: Non-Hodgkins Lymphoma Mr Duncan served in the Royal Air Force from October 1955 until September 1978, latterly as a Chief Technician. Whilst serving with 543 Squadron he was part of the ground crew support for a detachment of two Victor 2 SR aircraft sent to Lima Peru to monitor French atomic tests from the Pacific Island of Mururoa. He was stationed at Lima International Airport from 9 June 1974 to 26 September 1974. We find that he was provided with a dose meter which he was required to wear when he was at Lima Airport. The monitoring was done by flying the Victor aircraft through the radioactive cloud and collecting samples in removable scoops that were fitted in specially modified ducts in the airframe. There were seven measurable nuclear detonations hi the series and debris samples were collected from five of them. The aircraft were subjected to high levels of radioactive contamination when their missions were successful. On return to Lima Airport the scoops containing the samples were unloaded by handlers who were provided with protective suits, respirators and lead-lined gloves. Afterwards ground crew went out to the aircraft to measure the level of radiation two inches from the surface of the aircraft. We find that Mr Duncan carried out this latter work at least four times whilst stationed at Lima. Mr Duncan was not issued with any protective clothing and wore denims and a hat. He did not wear gloves. He was not provided with a respirator. We find that after one sortie Aircraft XL 165 was very radioactive and was therefore left for 24 hours. Mr Duncan was then told to take two or three airmen and try to wipe off the worst areas of contamination, where oil, dirt and dust were intermingled. Mr Duncan spent at least half an hour doing this with kim wipes which were blue paper towels. He again wore denims and a hat but no gloves. He was not provided with a protective suit or respirator. After working on the aircraft a Geiger counter was run over Mr Duncan and the airmen working with him. We accept what he says about the rudimentary decontamination arrangements in paragraph 12 of his signed statement. He needed to wash four times before the level of contamination was deemed acceptable. He continued to wear the same shoes after the decontamination procedure. We find that he would have inhaled dust when the aircraft was taxiing and whilst working on the aircraft to remove contaminated dust. There was also a serious risk that he ingested contaminated dust through minor grazes which we accept are a hazard of such work and standard maintenance work. We find that he also carried out routine maintenance work on the aircraft whilst in Lima. We make the above findings based on Mr Duncan's statement and his oral evidence. We found him to be a careful and reliable witness. We consider that our findings are not inconsistent with the contemporary operational reports. We have not found the other signed witness statements on pages 254-266 of the SoC helpful since none of the witnesses worked at Lima Airport at the same tune as Mr Duncan. We find that the arrangements for health safety during the time Mr Duncan was at Lima Airport focussed on the risks of gamma radiation but that there were lapses - see paragraph 24 on page 93 SoC. The Secretary of State included various fact sheets about UK atmospheric nuclear weapons tests in the SoC. Group Capt Ades and Professor Busby were critical of their evidential value since there is no indication who prepared them, they are not dated and the sources and authority for such facts are not given. We would add that they are of course focussed on the UK as compared to the French atmospheric testing although we understand that the methods of collecting samples were similar. Mr Frith stated, after

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DECISION OF THE WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER checking with Norcross that they were prepared by the SPVA and that in December 2007 or January 2008 they had been split into five fact sheets. We agree that they are not evidence which can be given significant weight. They are, however, part of the Secretary of State's case and we note the reference to the hazard of inhalation towards the bottom of page 147 and the reference on page 160 to RAF decontamination flight crews who sluiced the aircraft being the second most likely group of personnel to have been exposed to measurable levels of ionising radiation. On 24 October 2006 Mr Duncan appealed against the Secretary of State's refusal to award him a War pension in respect of the claimed conditions, hi his reasons for appeal Mr Duncan referred to his exposure to Alpha/beta particles and to the danger of inhalation or ingestion. This issue was not considered in the Opinion of Medical Services dated 18 December 2006, reliance being placed on the AWE evidence of Mr Duncan's overall low total effective dose as measured by dose meters between July and September 1974. In Paragraph 16 of that Opinion states "We are satisfied that Mr Duncan was not exposed to ionising radiation hazard as a result of his duties during his 1974 Peruvian detachment" Professor Busby submitted a detailed expert report dated 30 March 2008 (page 209 SoC). He is a distinguished scientist who was asked by Michael Meacher MP, Minister of the Environment, to be a member of the Committee Examining Radiation Risks of Internal Emitters (CERRIE). This is an area of science where there are divergent views. We find that the Secretary of State has insufficiently considered Professor Busby's two principal arguments • • that the greater risk to Mr Duncan was through inhalation; and that a low reading on a dose meter does not necessarily indicate also a low exposure to alpha and beta particles.

The Secretary of State's arguments are set out in a Further Opinion of SPVA Medical Services dated 28 July 2008. His key conclusion is in paragraph 13. " Of course we acknowledge Dr Busby's core argument concerning the difference between external and internal radiation exposure Thus it is our understanding that in respect of internal radiation, alpha particles are the most damaging of those inhaled or ingested, although beta particles are also involved. It is the case that film badges in use at the time were not able to measure internal dose directly. However to receive a significant internal dose a person would also need to be exposed to high levels of external gamma radiation as indicated by the film badge (AWE report of 04.04.06)" Professor Busby submitted a detailed further expert written statement with four referenced citations in October 2008 to comment on the Supplementary Statement of Case. He specifically addressed the issue of whether gamma doses from film badges give information about internal doses to atmospheric atomic test participants from beta and alpha emitters. He contended that the Secretary of State's argument is invalid and referred to three separate areas where measurements are available • • • The fallout measurements made by AE Oldbury at Christmas island The Maralinga safety tests The dispersion of material from Chernobyl.

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DECISION OF THE WAR PENSIONS AND ARMED FORCES COMPENSATION CHAMBER The Secretary of State chose to make no further comment on the information contained in Professor Busby's further expert written statement. Professor Busby gave evidence at the Tribunal hearing. We find that his evidence is both cogent and reliable and raises a reasonable doubt that the Secretary of State's views which rely exclusively on contemporary dose meter readings is wrong. It is accepted in the relevant Medical Appendix that non-Hodgkin's lymphomas have an increased incidence following exposure to excess ionising radiation. We find that the combination of Mr Duncan's written and oral evidence and Professor Busby's evidence both of which we have found is reliable raises a reasonable doubt that Mr Duncan's Non-Hodgkin's Lymphoma is attributable to service. Multinodular Goitre In November 2004 Mr Duncan told his Haematologist that he had first noticed enlargement of his thyroid gland some 10 years before his recently diagnosed Non-Hodgkins Lymphoma. His thyroid function prior to surgery is not known to Mr Duncan and is not documented in the SoC. Within two months of partial thyroidectomy surgery in November 2005, having shown histology of follicular hyperplasia with no evidence of cancer, Mr Duncan was started on thyroxine replacement treatment for hypothyroidism. The Medical Appendix on Multinodular Goitre concludes that "it is caused by inadequacy of production of thyroid hormone". Radiotherapy or radioactive iodine are sometimes used to bring about a so-called "medical thyroidectomy" in the treatment of over-activity of the gland or thyrotoxicosis. The Medical member put it to Professor Busby during his oral evidence that hypothyroidism might be the most likely medical consequence of exposure to ionising radiation. Professor Busby stated that this was indeed the case in studies elsewhere, and suggested that a possible mechanism in this case was that Multinodular Goitre was a natural biological response to the insidious development of inadequacy of production of thyroid hormone secondary to the delayed effects of Mr Duncan's radiation exposure. We have concluded that Mr Duncan has raised a reasonable doubt based on reliable evidence that his Multinodular Goitre is also attributable to service. 9. The Tribunal's reasons for deciding this Appeal, having regard to its findings of fact, to the relevant law and to the contentions put by the parties, are in summary, as follows :(1) We adopt the medical labels in Paragraph 2 above as a proper interpretation of the claimed disablement. (2) The burden of proof, that under the Order lies on the Appellant, has been discharged.

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Signed by Tribunal Judge :. Date signed: