Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 170 (AAC)

Fecha: 25-Abr-2024

The Appellant’s appeal to the First-tier Tribunal

The Appellant’s appeal to the First-tier Tribunal

12.

On 27 March 2020 the Appellant lodged an appeal, arguing that “in the view of specialists in dermatology …. my service has in fact contributed to my illness. My consultant notes that the fast growing lesion on my shoulder developed over the course of my operational tour in 17/18 when I was exposed to intense sunlight … I therefore appeal this decision on the grounds that medical evidence supports my case that my illness was wholly or partly caused by my service and I restate my claim.” The Appellant included, for example, a letter from his consultant dermatologist dated 20 February 2020, which included the following passage:

He has informed me that that there has been a question as to the role of his military service in theaetiology of his skin cancer. I have explained that it is very well established that ultraviolet lightexposure is one of the major risk factors for the development of melanoma. He has been stationedoverseas for five tours in Afghanistan and Iraq between 2004 and 2017, all of these postings werebetween 6-12 months. Although a definitive causal link cannot be proven, in my view it is entirelyplausible that this extensive sunlight exposure has contributed to the development of his melanoma.

13.

Following the Appellant’s appeal, the adverse decision was confirmed on reconsideration in a decision by Veterans UK dated 18 August 2020. In a supplementary comment, following the Appellant’s submission of his consultant reports, the Secretary of State noted that “it is not in dispute that [Col C] has not had extensive exposure during his service … what is up for determination is whether his service after April 2005 is the predominant cause of his condition”. In that context the Secretary of State noted the following evidence from the Appellant’s personal statement:

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BATUS (Canada) 10 weeks in summer 1988 “was over exposed to the sun and did have reddening of my skin, arms, legs and face.”

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BATUS (Canada) summer 1991 “again ended up with sun exposure, with reddening to my skin.”

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Bosnia 1994 “The temperatures here were known to reach in excess of 30+ degrees and from August to October 1994 the conditions were hot and sunny, and we operated extensively outdoors.”

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South Carolina 1996 “We spent an average of 12-14 hours each day in the sun … We lived on the beach during this exercise which lasted about 10 weeks. The temperatures were in excess of 33+ degrees. Many of the unit suffered sunburn whilst on this tour, including myself.”

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Afghanistan October 2004-April 2005 “Again during this tour a significant number of soldiers suffered from sunburn, me included.”

14.

The lay certificate accordingly asked the FTT to decide “if the claimed condition melanoma on left shoulder and right calf is predominantly caused by [AFCS] service in accordance with the rules of the Order”.

15.

Shortly before the hearing, the Appellant’s solicitors filed further evidence in the form of letters from the Appellant’s consultant dermatologist and consultant oncologist. Copies of the solicitors’ instructing letters requesting these reports were not provided to the FTT, but from the way the solicitors’ questions were framed (which were cited in the consultants’ replies) it does not appear that the consultants were asked to distinguish between the respective causative effects of service before and after April 2005.

16.

The consultant dermatologist’s letter (dated 27 October 2020) included the following responses:

It is my opinion that, on the balance of probabilities, the sun exposure that Col C received whilst in the military was responsible for the development of his melanoma … Having read Col C’s witness statement it seems to me that the extent of sun exposure that he sustained whilst a child was insignificant compared to the prolonged episodes of intense sun exposure with burning that occurred whilst in military service. In view of this it is my opinion that, on the balance of probabilities, the sun exposure whilst in the military is the predominant cause of the melanoma from which he now suffers,

17.

The consultant oncologist’s letter (dated 28 October 2020) was in similar terms:

Reading the account of your client’s history, suggesting multiple episodes of sun burn while on deployment, then my view would be that on balance of probabilities it is likely that the episodes of sun burn represented the UV exposure that led to his subsequently developing melanoma … Reading the account of your client’s history of sun exposure in childhood, compared with the multiple episodes of sun burn he experienced whilst on deployment, then my view is that on a balance of probabilities it is the periodic episodes of high intensity sun exposure and subsequent sunburn in adult life that was the predominant cause of his condition.

18.

It bears repeating that neither of the consultants’ reports drew a distinction between service before and after April 2005.

19.

In terms of medical evidence the Secretary of State relied (in part at least) on the December 2017 report of the Independent Medical Expert Group (IMEG). Topic 7 of that report dealt with UV light and skin cancers and made the following ‘key points’:

For a disorder to be a Recognised Disease in the AFCS, we look for evidence that service is consistently associated with an increase in its frequency and whether there are circumstances where the frequency is more than doubled, making it more likely than not in the individual case that the disease was attributable to a cause in service.

Skin cancers, the most common cancers in white skinned populations are usually divided into nonmelanoma skin cancers (NMSC) and cutaneous malignant melanoma (CMM). The most important types of NMSC are basal cell carcinoma (BCC) and squamous cell carcinoma (SCC).

NMSC Basal cell carcinoma (BCC) is commonly called rodent ulcer. The mortality rate is low and they rarely metastasize but they may invade surrounding tissues including cartilage and bone causing significant destruction. Squamous cell carcinomas (SCC) may arise in scar tissue but the majority arise on sun damaged exposed skin, and most commonly in actinic keratosis (AK).

Cutaneous malignant melanoma. Cutaneous malignant melanoma (CMM) accounts for less than 5% total skin cancers, although the incidence is rising in all parts of the world for which data are available and it leads to 75% of all deaths from skin cancers.

By April 2005 public health education on the dangers of sun exposure were well developed including in the UK amongst the military medical services, the chain of command and Service personnel. The avoidance of direct UVR exposure and sunburn, use of suitable protective clothing, sunglasses, and sunscreens, were standard practice.

While total cumulative lifetime sun exposure is casually associated with AK and SCC, the evidence is that BCCs are more related to short intermittent burning episodes. Sun exposure plays a primary role and supporting role in most cases of CMM with the pattern of exposure in the sub-types varying. The risk for CMM in older people, developing over many years and of generally lower mortality is as for SCC, i.e. chronic long term excess UV exposure. Superficial spreading melanomas, the most common type in working age adults are related to short sharp episodes of burning exposure especially in youth and adolescence.

We conclude that in general none of these circumstances is likely to be met at this date due to AFCS service and so most cases of NMSC and CMM claimed under AFCS will be for rejection. However each case should be considered on its facts.

20.

I recognise, as Mr Rawlinson submitted, that the findings of the IMEG report are based on an overall epidemiological assessment and are subject to the important proviso that, as the final ‘key point’ stipulates at paragraph (5), “each case should be considered on its facts”.