Bassett and Repatriation Commission - [2001] AATA 462

DECISION AND REASONS FOR DECISION [2001] AATA 462

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1829

VETERANS' APPEALS DIVISION       )
           Re      Dennis Ambrose BASSETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date30 May 2001
PlaceSydney

Decision      The Tribunal varies that part of the decision of the Repatriation Commission dated 12 March 1999, being the decision under review, that diagnosed the claimed condition as "pneumonia" to read "asthma", and affirms the decision under review, as varied.
  ..............................................
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – reasonable hypothesis – whether veteran suffers from a 'disease' – whether Tribunal satisfied beyond reasonable doubt that veteran did not suffer from RADS – whether claim for "breathing problem", now diagnosed as "asthma" was finalised – whether a valid claim exists
Budworth v Repatriation Commission [2001] FCA 317
Repatriation Commission v Cooke (1998) 90 FCR 307
Veterans' Entitlements Act 1986: ss 14(5), 14(7), 120(1), 120(3), 120A(4)
Statement of Principles, Instrument No. 59 of 1996 (Asthma)

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

This is a review of that part of a decision of the Repatriation Commission ("the Respondent") dated 12 March 1999 that determined that the conditions suffered by Dennis Ambrose Bassett ("the Applicant") of solar skin damage, hypertension and alcoholic fatty liver are not related to his war-service and that refused the claim for pneumonia on the basis that no incapacity was found. The Applicant sought review of the Respondent's decision by the Veterans' Review Board ("the VRB"), and on 1 October 1999 the VRB affirmed the decision under review. The Applicant then lodged an application for review by this Tribunal on 6 December 1999. All applications for review ere in time, and therefore the earliest date of effect in the event of the Tribunal making a decision in favour of the Applicant is 24 August 1998, being a date not earlier than three months before he lodged his claim for these conditions.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Reports from Dr Michael Burns dated 4 April 2000 (with addendum) and 19 February 2001 (Exhibit A)
Extract from Tabular List of Diseases ICD-9-CM and ICD-10-AM (exhibit B)

Reports from Associate professor Breslin dated 25 August 2000 and 14 November 2000 (exhibit 1) were tendered as evidence on behalf of the Respondent.

The Applicant gave oral evidence, and Dr Burns was called to give evidence on behalf of the Applicant. Associate Professor Breslin gave oral evidence, called by the Respondent.
The Applicant's representative advised the Tribunal that the Applicant did not wish to pursue that part of the claim in respect of solar skin damage, hypertension and alcoholic fatty liver. Therefore the Tribunal affirms that part of the decision under review in respect of those conditions.
The only part of the Applicant's claim that is now being pursued relates to a condition to which he referred on his claim as "breathing problems. It was submitted for the Applicant that the correct diagnosis for that condition is Reactive Airways Dysfunction Syndrome (RADS), for which there is no Statement of Principles. It was conceded for the Respondent that if the Tribunal found the diagnosis of the claimed condition to be RADS and not asthma then a reasonable hypothesis would have been raised. It was submitted for the Respondent, however, that the correct diagnosis of the claimed condition is "bronchial asthma", and that the relevant Statement of Principles is No. 59 of 1996, that being the instrument in place at the time the primary decision was made. It was conceded for the Applicant that if the Tribunal determines that the diagnosis of the claimed condition is asthma then he does not meet the Statement of Principles for Asthma, and hence his case would fail.
Hence, the only issue open in these proceedings is the correct diagnosis of the claimed condition.
The Applicant served in the Royal Australian Air Force from 10 April 1956 to 21 February 1958. Within that service he had eligible service under the Veterans' Entitlements Act 1986 ("the Act") in Malaya and then Malaysia from 11 May 1957 to 18 October 1957, and this constitutes operational service. Therefore, this matter falls for consideration pursuant to s120(1) and (3) of the Act. There is no relevant Statement of Principles for RADS. Therefore, pursuant to s120A(4) of the Act, if there is a reasonable hypothesis that the Applicant suffers from RADS, then s120(3) is, in effect, applied without reference to a Statement of Principles.
THE EVIDENCE
Applicant
The Applicant's evidence was that his breathing problems commenced in Malaya in 1957. On one particular occasion, he recalled he was the only Australian detailed for night guard duty with British servicemen, protecting equipment stored in a large disused hangar. At the time he noted there to be a light turned on some distance from the door and nearby he noticed a half-pallet partly covered by a tarpaulin. He also noticed a warning sign on the top of the pallet not to approach but by that time he said he had "gone very close to the pallet". Alongside the pallet was a red fire box in which was placed a complete asbestos-type body suit with a full head helmet. He considered that anyone wearing the gear "would be totally protected from any fumes". He said at about this time he started t cough, his eyes watered and he started to choke. He retreated to the main door, which was his post, and continued coughing and his eyes continued to weep. He then found a tap and drank some water. He said throughout the night he was "coughing, spluttering, choking and drinking water". At some time during the night two British personnel entered the hangar and walked immediately to the pallet. However they did not approach as closely as the Applicant had done but they remained in the vicinity talking for some five minutes. The Applicant considered that his distress would have been obvious to the British personnel, who nonetheless left the hangar without saying anything to him. He noted in particular that there was no ventilation in the hangar, and commented that "the only air that was entering that building was a slight gap under the main door and that was almost fetid air because we were in the tropics".
The Applicant and his associates were then relieved of their duty some 1½ hours later, without completing the shift. By the time they left the Applicant said he was aware that one of his associates was also affected, but not as badly as the Applicant had been. He said he then returned to his quarters. He said he had been warned before the assignment that the work he was doing was "highly classified" and he must not talk to anyone about it. In cross-examination he said that it was not possible that the stains on the floor beside the pallet had nothing to do with the pallet. He said that one of the cartons on the pallet had wet stains on it and it was obvious that the stains on the concrete floor had started from that carton.
The Applicant said that between one and three days after this incident he developed a rash over most of his body. While the coughing continued it had eased. He was then taken to hospital and treated as an in-patient for the rash. He recalled that no one appeared to be concerned about his breathing problems. He said that within six weeks he was repatriated to Australia. He admitted in cross-examination that his discharge from the RAAF early in 1958 had nothing to do with his chest condition, but it was because of a personality disorder.
The Applicant said that after his discharge his breathing problems continued all his life. However he said initially he did not recognise them as breathing problems but thought instead that something had happened in his stomach. Since that time he said his stomach hurts when drinking tea or coffee in the morning and now he has to drink decaffeinated tea and coffee. He said he also had severe chest pains from the time of his discharge, but they are now not so severe because of medication he takes. He has continued to cough spasmodically.
The Applicant said that after his discharge he returned to the Northern Territory to work as a head stockman. His only access to medical attention was through the Flying Doctor Service. He said he experienced breathing problems in the 1960s in the form of a recurrence of "the pain and suffering that I went through in 1957 and early 1958". He did not seek medical attention however, as he understood at the time, and for many years later, his problem was related to his smoking. However he consulted a doctor about the rash, which he said still persists on his left leg. He said that in the early 1960s he worked on an isolated plantation of New Ireland and he then worked on a trading ship in the area of Bougainville, New Britain and New Ireland. He said he then spent a short period with Burns Philp as a delivery agent on the waterfront.
The Applicant changed his occupation in the 1970s and he provided confidential information to the Tribunal of his new work, the details of which the parties and the Tribunal considered did not need to be disclosed in these reasons. He said that he continued to smoke in the 1970s and his breathing problems continued and became worse to such a degree that he made three attempts to cease smoking. He ceased smoking on the first occasion for three months because he thought his wheezing and lung problems were related to smoking. He made two more attempts to cease smoking, each lasted for about three years. He then said he finally ceased smoking in 1973 but the symptoms continued into the 1980s.
The Applicant said that at no time since his discharge from the RAAF has he had any exposure to chemicals or irritant fumes. He said that he first received treatment from a doctor for his breathing problems in December 1989 when he was admitted to hospital and pneumonia was diagnosed. He said that at that time he was advised that all his chest problems related to his smoking. He said he commenced treatment with Becloforte and Ventolin for asthma prevention and asthma relief. He said he has not received any specialist treatment for his chest condition since that time, but he has attended his local doctors for treatment. He also said a specialist physician told him that Losec, which he takes for gastritis and gastro-oesophageal reflux disease, would help his breathing. He has discontinued using Becloforte and Ventolin because he "could not tolerate them" as they made his cough. He said that other drugs he has been prescribed have also caused coughing.
In cross-examination the Applicant agreed that he did not work for six years following his pneumonia in 1990. He said he had a relapse of pneumonia about 12 months later and was found by a Commonwealth Medical Officer to have less than 60 percent lung capacity. He disagreed that he had told Professor Breslin when he was examined on 18 August 2000 (exhibit 1) that –
He says he has been dyspnoeic for about 4 years and that the dyspnoea is worse and is perennial.

The Applicant said that in fact his dyspnoea had been getting worse for the previous four years and that is what he told Professor Breslin.

The Applicant admitted that he had only one period in hospital for his lung condition and that was in 1989, and that he had had little other treatment for the condition. He said that he learned to live with the condition.
Dr Burns and Associate Professor Breslin
The evidence of these two expert witnesses was taken together, using a conference telephone for Professor Breslin's evidence and Dr Burns attended the hearing in person.
Dr Burns noted that a diagnosis of RADS is associated with inhalation of a large amount of noxious chemical into the lungs, leading to bronchial damage, and causing a temporary or indefinite residual asthma-like condition with increased bronchial irritability. He noted that research in this area has been progressing, and future nomenclature is likely to refer to the condition as a sub-set of asthma called "Irritant Induced Asthma". Professor Breslin agreed with this evidence and noted that RADS is a form of irritant induced asthma that occurs after one intense exposure.
Professor Breslin said he was concerned that there was no record of the Applicant having any symptoms for at least a few days after the chemical spill incident. He noted from a journal article to which both he and Dr Burns referred that "affected individuals are immediately ill and require prompt medical care". Professor Breslin said that the Applicant could have had –
"a very mild form of RADS. He certainly didn't have any form of RADS that I have ever seen personally, because he … continued with his guard duty and did not complain until … some days after, so that was my concern"

Professor Breslin said that if the Applicant's condition was as mild as it appeared from the immediate history of the incident he would expect the condition to have resolved in months or a year or two. He noted from the records that in November 1957 the Applicant's chest was found to be clear whereas people who suffer from RADS have ongoing wheeze because the pathology is different from other forms of asthma. He said this is well reported in the literature. He said it was "highly unusual" and "it does not hang together" for RADS to have developed in the middle of 1957, for the Applicant to have had a normal chest X-ray later in 1957, and to have only an intermittent cough throughout. In his experience and from reading the literature, "these people are sick". They usually suffer from a wheeze and shortness of breath as well as cough. On the basis of the Applicant's history to the Tribunal that his cough developed in mid 1957 and persisted for 30 years, Professor Breslin would have expected him to "have a wheeze or two when he was examined" later in 1957. He said –

RADS does not tend to come and go like that, it tends to be relatively fixed - and there are quite a number of articles to suggest that the air flow limitation from RADS is not as responsive to inhale bronchodilator, not as variable as in other forms of asthma, and therefore, I would have expected him if he was going to get 30 years of symptoms from RADS, to have at least had a wheeze or two when he was examined, or to have some suggestion of shortness of breath over that 30-odd years and so I would find it exceptionally – I wouldn't be able to link the two, I don't think, there are lots of causes of cough.

Professor Breslin noted the Applicant's history to him that he "only had shortness of breath for four years".

Having heard Professor Breslin's evidence (supra), Dr Burns said that from the literature he noted that the chemical insult not only leads to coughing and asthma but to increased bronchial reactivity, so if the coughing and asthma settles down the increased bronchial reactivity tends to continue, and therefore asthmatic symptoms come and go according to the nature of the respiratory insults that happen subsequently. Hence, the Applicant may not have had continuous asthma through the years. However he had a history of continual coughing that could have been associated with increased bronchial reactivity, that ultimately led to frank asthma developing. Professor Breslin disagreed, and said this proposition was not supported in the literature. That is, he said the literature does not report that chemical exposure capable of producing RADS in an individual with a normal respiratory system, could be associated with an increased propensity to develop asthma later.
Dr Burns said that because the Applicant did not have wheezes audible on one or two occasions does not rule out that he had asthma. He did not consider Professor Breslin's position ruled out the fact that the Applicant did have a form of RADS that caused some bronchial damage with subsequent vulnerability of the respiratory system.
Professor Breslin did not deny that the Applicant might have had RADS in a very mild form at the time of alleged chemical exposure. He said the pathology in RADS tends to include fibrosis, and if very intense heavy exposure occurs one would need to be assisted from the scene immediately and is often left with fixed airways disease. However the very mild cases are likely to have recovered. Professor Breslin said he could not reconcile the evidence about the spill with the fact that the Applicant's condition was apparently so bad that he had 30 years of symptoms for which he sought no medical attention prior to the onset of very frank asthma.
Professor Breslin said he did not know what the Applicant's reference to "breathing difficulties" meant, and he also considered that his "story of dyspnoea" even in the 1990s was not really characteristic of asthma. Professor Breslin accepted that there might have been a spill in 1957 but he could not reconcile that it produced such a severe disease so as to render him liable to 30 years of symptoms and increased propensity to asthma in the 1990s. His medical examination in late 1957 was normal and he did not consult his local doctor for his breathing difficulties.
Both doctors noted that the condition RADS has been reported in the medical literature only since about 1985. Dr Burns noted the reported cases in the medical literature hitherto tended to "lump cases together" rather than to report them in detail. The medical literature showed that statistically there was not an increased risk of RADS in persons who were allergic, and in that study the reference was to dust mite sensitivity. Dr Burns considered it to be "logical" that if RADS occurred with increased bronchial activity in a person pre-disposed to asthma because of atopic sensitivity then realistically the trigger of RADS could have precipitated an ongoing intermittent asthma tendency because of the predisposition. Hence, the fact that the Applicant did not have severe disability from a continuing problem of respiratory symptoms over many years does not mean that RADS did not "set the tone" for him to develop ongoing mild asthma symptoms because of his predisposition. Dr Burns said the Applicant might have had mild RADS, but noting his history, he said his condition might have been ongoing because of his increased re-activity to dust mite sensitivity; hence there were probably two factors in his ongoing symptoms.
In response to Dr Burn's hypothesis, Professor Breslin noted that the literature did not support it, nor did the normal chest examination in late 1957. Professor Breslin noted that there are numerous causes of coughs other than asthma, and indeed the history he obtained from the Applicant was that his cough has not been troublesome at night at any time unless he has a respiratory infection. If a cough was due to asthma one of the characteristic features is that it tends to be troublesome at night.
Dr Burns said he had not observed the Applicant's skin rash and he did not know what might have caused it to continue over the years. However the skin rash that he developed within two days of the spill was likely to have been the result of a burn-like effect on the skin similar to the respiratory damage from the fumes. Professor Breslin said that if the rash was due to a burn from the chemical that also burnt the Applicant's airways it was hard to imagine the rash persisting for so many years thereafter. That does not happen with burns, unless they are radioactive burns. He said that a rash is not a feature of RADS and he thought it was completely unrelated.

In respect of the ICD-9-CM classification (exhibit B) Dr Burns considered that the Applicant's condition came under the code 506.3 for "other acute and subacute respiratory conditions due to fumes and vapours", while Professor Breslin put it under the code 493.1 for "Intrinsic asthma – late-onset asthma".
Service Medical Records
The Tribunal notes the Applicant's reference to being admitted to hospital a few days after the alleged chemical spill incident because of a skin condition. However, this is not borne out in his service medical records. There is absolutely no reference made in those records to any respiratory or skin condition suffered by the Applicant at any time whatsoever. Additionally, the Tribunal notes on a final medical board examination dated 15 November 1957, which is after the end of his operational service, that he answered "nil" to a question "From what other disabilities, wounds, or injuries have you suffered during your service? Give dates and places of origin". The only reference to any disability on service was to "nervous disorder" which originated while he was at the School of Radio at Ballarat in 1956.
The Tribunal also notes that the Applicant sought medical attention on 29 July 1957, while serving at Tengah in Singapore, for a psychological condition. Despite extensive records of that condition from that date, until the Applicant was discharged from the RAAF on 21 February 1958 on the grounds of being "temperamentally unsuited for service", there was no reference made to chemical exposure or to any respiratory condition or skin condition that the Applicant alleged in his evidence to the Tribunal. In the course of extensive psychiatric investigations he was diagnosed as having a pre-existing psychopathic personality. It was during a medical examination in relation to that condition on 27 November 1957 (T3, p16) that it was recorded, inter alia, "Resp. N." and "Skin. N". the Tribunal understands this to indicate "respiratory system normal" and "skin normal". Presumably it is this medical examination to which Professor Breslin referred in his evidence.
The Applicant told Dr Burns that he was stationed at Tengah for 5½ months. A psychiatric examination was conducted on 3 September 1957 at the British Military Hospital, Singapore. The Tribunal also notes that the Applicant had a Medical Board examination at the RAF Hospital, Changi, on 1 October 1957 (T3, p30) when it was decided he would be repatriated to Australia because of his psychiatric condition. No reference was made to the Applicant suffering from any respiratory or skin condition. The Tribunal notes the Applicant alleged that he was admitted to hospital in Changi for treatment of his skin condition.
SUBMISSIONS
It was submitted for the Applicant, relying on the diagnosis made by Dr Burns in his reports (exhibit A) and his oral evidence, that the Applicant suffered from RADS, attracting the ICD code 506.3. The ICD code for asthma is 493, which is the condition covered by the Statement of Principles for Asthma Instrument No. 59 of 1996. It was submitted that the newest version of the ICD code (ICD-10-AM) specifically notes that dysfunction syndromes are to be classified separately from asthma that is classified as J68.3. The code for asthma in the most recent classification is J45, which specifically excludes lung diseases due to external agents. It was submitted that this supports the Applicant's case.
It was submitted for the Applicant that if the Applicant suffers from RADS, then the Respondent has conceded that a reasonable hypothesis has been raised and therefore the Applicant's claim should succeed and pension should be paid to him from 24 August 1998.
It was submitted for the Respondent that on the balance of probabilities, on the medical evidence the only possible diagnosis was "asthma" as both doctors, being eminent thoracic physicians, have agreed that the diagnosis is asthma. The condition had its onset in 1990 following an episode of pneumonia. It was submitted that none of the factors set out in paragraph 5 of the Statement of Principles for Asthma have been met.
It was submitted for the Respondent that the Applicant does not suffer from RADS, or from any continuing symptoms relating to RADS. His present symptoms relate to asthma, not to RADS. If indeed he did suffer from RADS at the time of the alleged incident, it was a brief, very mild dose for which he did not seek treatment.
The Respondent noted the variance in the Applicant's history given to the various doctors, and that some of the Applicant's evidence to the Tribunal was different from that recorded by each of the doctors. However, it was submitted for the Respondent that he was a truthful witness.
CONSIDERATION OF EVIDENCE, CASE LAW AND FINDINGS OF FACT
It was apparent at the hearing that both parties and the Tribunal had assumed a particular interpretation of the decision of the Full Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307 to the effect that the Tribunal was required to apply the balance of probabilities test in determining the specific diagnosis of the claimed condition, and then, having decided on the balance of probabilities whether the Applicant suffered from RADS or asthma, the Tribunal would then proceed to determine the matter pursuant to s 120(1) and (3) of the Act. Indeed, both parties made certain concessions such that the only issue identified at the hearing for the Tribunal to determine was the diagnosis of the claimed condition. However, a few weeks after the hearing was adjourned, the Federal Court handed down its decision in Budworth v Repatriation Commission [2001] FCA 317, in which Madgwick J clarified that point and determined that the balance of probabilities test goes only to determine whether a disease exists in answer to the claim, and that there was no requirement to prove the specific diagnosis on the balance of probabilities. That decision is binding on the Tribunal, and obviously puts a different focus on the issue before the Tribunal.
Indeed, the Tribunal is confident that both parties would contend that there is no doubt that the Applicant suffers from a respiratory disease, in answer to his claim for "breathing problems". The issue of the diagnosis that answers the claim for "breathing problems" then becomes part of the matter to be determined pursuant to s 120(1) and (3) of the Act.
The raised fact, being the evidence of Dr Burns, I that the Applicant suffers from RADS. The Applicant's evidence is that he was exposed to a chemical irritant while on operational service in 1957 that has caused him to have an ongoing cough and wheeze thereafter, which became much more severe and debilitating following an episode of pneumonia late in 1989 and which then manifested itself with asthma-like symptoms including dyspnoea. In considering the evidence of Dr Burns, not only about diagnosis but about the causation of the condition from which the Applicant suffers, the Tribunal finds that a reasonable hypothesis has been raised that the Applicant suffers from RADS that arose out of his operational service. There is no Statement of Principles for RADS, and on the basis of the raised facts the Tribunal determines that s 120(3) has been satisfied. The Tribunal is not required to make findings of fact in determining that a reasonable hypothesis has been raised. All that is needed is for the relevant facts to be raised in evidence.
Section 120(1) of the Act requires the Tribunal to determine that the Applicant's RADS was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. It is at this stage that the Tribunal makes findings of fact, and these must be made on the reverse criminal standard of proof.
The Tribunal notes the ambiguity in the Respondent's submissions in respect of the Applicant's credibility. The Respondent noted the inconsistencies between the history given by the Applicant to Dr Burns and to Professor Breslin, and inconsistencies between the histories given to the doctors and to the Tribunal in his oral evidence. On the other hand the Respondent considered the Applicant to be credible. The Tribunal finds that the Applicant was not credible.
In his evidence the Applicant has attempted to establish a link between his respiratory condition, his skin condition, an adverse reaction to drinking tea and coffee, his stomach condition and severe chest pains. In his oral evidence he attempted to link his repatriation to Australia following his operational service with his reaction to the chemical exposure. However, his Medical Board Examination on 1 October 1957 shows that in fact it was because of his psychopathic personality, a factor that he acknowledged in cross-examination. The Tribunal notes that the Applicant had significant medical consultation while in Malaya from 29 July 1957 until he returned to Australia. After his return to Australia he was in hospital for psychiatric assessment for many weeks in the period prior to when he was finally discharged on 21 February 1958. However, the Tribunal also notes, there is absolutely no reference at any time during that period to the chemical spill incident, a consequent cough or wheeze, or a skin condition. At the time of his discharge he denied having suffered from any other disabilities, wounds or injuries during his service, other than his "nervous disorder" (T3, p41). Notwithstanding his evidence that he was admitted to hospital in Changi a few days after the incident because of the skin rash he allegedly developed, there is no record of that admission to hospital. However, there is a record from Changi Hospital of a Medical Board examination (T3, p30) on 1 October 1957, less than three weeks before he was repatriated to Australia, that referred only to his psychiatric condition. This is the only record from Changi Hospital. The Tribunal is not concerned about the lack of records of the alleged admission to hospital for the skin rash per se. However it is concerned about the lack of reference about the skin or respiratory condition, or the chemical exposure, in any of the documents to which reference has been made already. The Tribunal would expect some notation of the chemical spill incident in the later documents given that, on the Applicant's evidence, it occurred only six weeks before he was repatriated.
The Tribunal is also concerned, in respect of this claim for "breathing problems" that the Applicant has made no reference to the incident until after the lodgement of the applicant for review by this Tribunal. One would expect, given the nature of his evidence, that such a significant event in his operational service that caused his admission to hospital and a cough and respiratory wheeze intermittently for the rest of his life, would have been described by the Applicant at the time he made his claim, or even when he lodged his claim for review by the VRB.

When the Tribunal puts all of these problems and omissions together, and in the context of the inconsistency in the history the Applicant gave to the doctors and to the Tribunal, the Tribunal is satisfied beyond reasonable doubt that the chemical spill incident did not occur, or if it did occur it had nothing more than a transitory effect on the Applicant. Certainly there is no corroborative evidence of the event or any sequelae of the event. In effect, there is not a scintilla of evidence, other than the Applicant's uncorroborated oral testimony, and his history to Professor Breslin and Dr Burns, that it occurred. Given the Tribunal's finding that the Applicant is not a credible witness, and noting the absence of any other evidence to support his allegations, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient evidence to conclude that the respiratory condition from which he now suffers is in fact RADS.
The evidence of Dr Burns is predicated on an acceptance of the Applicant's evidence about the chemical spill and its inhalation. In the absence of evidence of the chemical spill theTribunal is satisfied beyond reasonable doubt, pursuant to s 120(1) of the Act, that the condition from which the Applicant suffers is asthma, and that, on the concession of his representative at the hearing, which the Tribunal accepts, he does not meet the Statement of Principles for Asthma. Therefore no reasonable hypothesis has been raised, and hence the Applicant's claim must fail.
The Tribunal will therefore vary that part of the decision of the Respondent dated 12 March 1999 that refers to "pneumonia" by changing that diagnosis to "asthma" and affirm that part of the decision under review, as varied.
The Tribunal notes that the claim for "breathing problems, the subject of this review, was lodged on 24 November 1998 and the decision under review was made on 12 March 1999, diagnosing the claimed condition as "pneumonia". The VRB noted in its decision that although the Applicant did not now suffer from pneumonia, that was not to say that he did not suffer from asthma. The VRB also noted that an application in relation to a review of a decision of the Respondent (dated 3 October 1997) regarding asthma had been lodged with this Tribunal (N1998/1672) and that subsequently the application had been withdrawn (on 15 March 1999).
The Tribunal has now changed the diagnosis of the claimed condition in the present matter from pneumonia to asthma, a move that was open to the Tribunal to do. However, an issue now arises as to whether a claim for "breathing problems", now diagnosed as "asthma" is a valid claim, insofar as there was already a claim existing in the determining system in relation to "asthma" (N1998/1672) that remained alive until 15 March 1999. Pursuant to ss 14(5) and (7) of the Act, the Applicant was not empowered to make another claim for a pension in respect of that condition until the earlier claim was finally determined, that is, in this case, until he withdrew his application to the Tribunal in respect of "asthma" (N1998/1672) on 15 March 1999, arising from a claim for "chronic lung disease" lodged on 30 July 1997. Unfortunately the parties did not draw this potential problem to the Tribunal's attention at the time of the hearing, although submissions were made taking into account the possibility of the Tribunal finding that the diagnosis of the claimed condition was "asthma". Of course, the main issue for the Tribunal to determine was whether the Applicant was suffering from RADS, and this is the first time in the existence of any of the Applicant's claims for a respiratory condition, that this diagnosis has been at issue.
Indeed, the Tribunal has become aware of the "asthma" application from its own records at the time it was ready to hand down the decision. Given the Tribunal's decision on the substantive issues, it was decided not to approach the parties for submissions on whether there was in existence a valid claim. It is arguable that there was not a valid claim in existence, and therefore it had no jurisdiction in respect of the present application. However, if in fact the claim for "breathing problem" was valid, and in view of the RADS issue this is arguable, then the decision under review, as varied, is affirmed.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................
  Associate
Date/s of Hearing       27 February 2001
Date of Decision       30 May 2001
Solicitor for the Applicant              Ms J Buchanan, Legal Aid Commission
Solicitor for the Respondent        Ms G Pacey, Dept. of Veterans' Affairs