Ardill and Repatriation Commission

[2006] AATA 217

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 217

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/449

VETERANS APPEALS  DIVISION		)
Re		LAURENCE ARDILL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date9 March 2006

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell
  Senior Member 

VETERANS’ ENTITLEMENT – Operational Service – Accepted Condition – Varicose Veins – 2002 Amputation of Right Lower Leg – Relationship Between Varicose Vein Condition and Amputation – Tribunal Not Reasonably Satisfied of War Causation – Decision Affirmed.

Veterans’ Entitlements Act 1986

Repatriation Act 1920

McKenna v Repatriation Commission [1999] FCA 323

Byrnes v Repatriation Commission (1993) 177 CLR 564

Spencer v Repatriation Commission [2002] FCA 229

REASONS FOR DECISION

9 March 2006 Ms N Bell, Senior Member

1.      Mr Ardill served in the Australian Army from 7 February 1942 to 5 June 1946.  He was a paratrooper.  Now, Mr Ardill is 86 and in 2002 his right leg, below the knee, was amputated.  He has also lost his sight.  His service is operational service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”).  Mr Ardill currently receives 100% of the general rate of disability pension in respect of a number of accepted conditions including varicose veins and anxiety state.  Mr Ardill seeks to have his leg amputation, and the condition that gave rise to it, accepted as war caused and to thereby attract a higher rate of pension.  His primary motivation for seeking a higher rate of pension is to ensure that his wife, who has cared for him for many years, is well provided for after his death. 

issues

2.      The first issue I must deal with is the correct diagnosis of the condition that gave rise to the amputation of Mr Ardill’s right leg below the knee.  That question must be answered to the standard of reasonable satisfaction.

3.      Then I must consider whether that condition was war caused.  Mr Ardill’s service was operational service and so the standard of proof to be applied to the question of war causation is that of reasonable hypothesis.  If there is a Statement of Principles (SoP) relevant to the condition, then the hypothesis put forward by Mr Ardill, and the material that points to it, must conform with a factor in that SoP in order to be a reasonable hypothesis.  By extension, and in accordance with the Full Federal Court decision in McKenna v Repatriation Commission [1999] FCA 323, any hypothesis in a chain of hypotheses must also conform to the relevant SoPs. If the condition is a “non SoP” condition then the hypothesis must be reasonable in that it is not contrary to known scientific facts and not obviously fanciful or untenable (Byrnes v Repatriation Commission (1993) 177 CLR 564). In accordance with the Federal Court’s decision in Spencer v Repatriation Commission [2002] FCA 229, it is not necessary for any sub hypothesis, in a chain of hypotheses, to conform with any relevant SoP where the ultimate condition has no relevant SoP.

diagnosis

4.      The Repatriation Commission contended that the condition suffered by Mr Ardhill that gave rise to the amputation was septic arthritis.  Mr Ardill disagreed with that diagnosis and contended that the condition that resulted in the amputation was varicose veins.  He said that his veins had troubled him for many years and were what gave rise to his circulation problems, and, ultimately, the amputation of his lower right leg.

5.      The expert medical evidence before me is against Mr Ardill’s view.  Dr John Glass, Consultant Physician, Rheumatic Diseases; Dr L Kleinman, Orthopaedic Surgeon; Dr H Foster, Surgeon and Dr J O’Sullivan, Mr Ardill’s treating Orthopaedic Surgeon, all refer to infection or septic arthritis as the ultimate precipitator of the amputation.  On this basis I find the correct diagnosis to be septic arthritis.

6.      However, Drs O’Sullivan, Foster and Glass all refer to Mr Ardill’s “chronic venous insufficiency” as playing some role in the development of the infection that ultimately gave rise to the amputation.  This is relevant to the question of war causation, which I will now address.

war causation

7.      There is no SoP concerning septic arthritis.  Therefore, my consideration of whether the hypothesis raised by Mr Ardill is reasonable, is not constrained by the factors of any SoP, including any SoP concerning varicose veins.

8.      The hypothesis put forward by Mr Ardill is that he developed varicose veins as a result of his service, and the vigorous activity he was required to perform, and his varicose veins in turn contributed to the development of the condition requiring the amputation.

9.      There is some material, noted above, pointing to the contribution of varicose veins to the ultimate condition of septic arthritis.  However, I must also consider the question of whether Mr Ardill’s varicose veins are related to his service.  In this regard, I note that this condition was accepted as war caused in 1972.  This was, of course, pursuant to the Repatriation Act 1920, a different regime for the assessment of entitlement to pensions.

10.     In McKenna v Repatriation Commission [1999] FCA 323, the Full Federal Court decided that Mr McKenna’s condition of hypertension, as a step in a chain of war causation culminating in ischaemic heart disease and peripheral vascular disease, was not war caused because the hypothesis did not conform with the SoP then in force. This was so notwithstanding that the condition of hypertension had been accepted as war caused by the Repatriation Commission prior to the introduction of SoP’s in 1994. The Court was careful to point out, however, that this had no impact on the validity of the pre 1994 determination. I note, also, that the Court had determined that, as the ultimate condition in the chain of war causation was the subject of an SoP, so should each of the other links in that chain be considered by reference to relevant SoPs. That is not the case here, with septic arthritis as a non SoP condition. However, given the decision in McKenna, I should revisit the question of whether Mr Ardill’s varicose veins are war caused, as a link in the chain of hypothesis of war causation of his septic arthritis, and I may do so without reference to the SoP concerning varicose veins (Spencer).  If I reach a different conclusion to the one reached in 1972, it will not affect the force of that determination.

11.     The hypothesis put forward by Mr Ardill was that the strenuous activity he engaged in whilst on operational service as a paratrooper caused his varicose veins.  His assertion was supported only by his own evidence of having engaged in strenuous activities that included jumping out of planes.  There was no expert medical evidence in support of this assertion.  The report of Mr Ardill’s medical examination prior to discharge makes no mention of varicose veins or of any of the matters included in factors in the SoP concerning varicose veins (not binding but a useful resource in this instance) such as deep vein thrombosis, arteriovenous fistula or obstruction of a vein.  There is no material, other than Mr Ardill’s assertion, to point to the hypothesis he has raised.

12.     It follows that the hypothesis is not reasonable and so his varicose veins are not war caused.  It follows from this that his septic arthritis is not war caused.

decision

13.     The decision under review is affirmed.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member.

Signed:         ............[Linda Blue].............................
  Associate

Date of Hearing  20 February 2006
Date of Decision  9 March 2006
Solicitor for the Respondent     Department of Veterans' Affairs