Bell and Repatriation Commission

[2002] AATA 381

DECISION AND REASONS FOR DECISION [2002] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL              Nº V2000/1430

VETERANS'      APPEALS      DIVISION

Re:            NEIL LINDSAY BELL

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             22 May 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS – osteoarthritis of the left knee – whether war-caused – whether factor of Statement of Principles satisfied – whether infection of joint – whether trauma to the joint
Veterans' Entitlements Act 1986

REASONS FOR DECISION

22 May 2002  Mr B.H. Pascoe, Senior Member

1. This is an application to review a decision of the Veterans' Review Board ("VRB") which affirmed a decision of the respondent dated 3 June 1998 refusing a claim for osteoarthritis of the left knee as being war-caused.

2. At the hearing the applicant, Mr Bell, was represented by Mr D. De Marchi, solicitor, and the respondent by Ms J. McCulloch, advocate with the Department of Veterans' Affairs. Evidence was given by Mr Bell, and his stepson, Mr G. Cooper. In addition to the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered:

   Trauma Statement by Mr Bell (exhibit A1)
   Report of Mr H. Hadley, orthopaedic surgeon, dated 26 September 2001 (exhibit A2)
   Clinical notes of Dr I. White, general practitioner (exhibit R1)
   Report of Mr P. Lugg, orthopaedic surgeon, dated 7 January 2002 (exhibit R2)
   Transcript of VRB Hearing, 2 October 2000 (exhibit R3)
   Combined impairment assessment, Dr F. Morgan, 27 February 2002 (exhibit R4)
   Service Medical Records of Mr Bell, October 1946 (exhibit R5)

3. Mr Bell served in the Australian Army ("the army") from 26 March 1946 to 6 April 1948 and served in Japan with the occupational forces from 19 January 1947 to 22 March 1948.  His service constituted war service and operational service under the Veterans' Entitlements Act 1986 ("the Act").  On 16 March 1998 he lodged a claim to have knee problems, gastro-oesophageal reflux and breathing problems accepted as war-caused.  A delegate of the respondent diagnosed the claimed conditions as osteoarthritis of the left knee, gastro-oesophageal reflux and chronic bronchitis and emphysema.  The latter two conditions were accepted as war-caused but osteoarthritis of the left knee was not so accepted.  There was no dispute between the parties as to the diagnosis of the condition so that the sole issue was whether the osteoarthritis of the left knee was war-caused.

4. In the trauma statement (exhibit A1), Mr Bell said:

   …
   I served in Fujama, Japan, with the 65th Infantry Battalion.
   In 1947 as I jumped off a truck when I was going on guard duty, I tripped on some part of the truck and come down on bitumen with my knees.
   My left knee was painful and swelled and was bruised.  The next day my knee was still sore and I attended the RAP and was given some aspirin.
   At some later stage both my knees became infected.  I was sent to the camp hospital and was there for ten days.
   Although this happened a long time ago and my memory of the incident is not perfect, I seem to recall that I had difficulty with drill on the parade ground for a number of weeks.
   Although I had no further problems after my service some four years ago my knee started to ache and I am now very restricted in movement of that leg.
   I suffered no further injuries to my knee since Japan and I believe that the cause of my problems stem from the fall off the truck in Japan.

In his oral evidence, Mr Bell said that his memory had deteriorated in recent months and he was unable to recall the date of the accident in Japan, how long after the accident that the knee became infected or which knee was mostly affected.  He believed that the knees suffered abrasions "like a gravel rash".  He said that, six months after his discharge from the army, he had a motor cycle accident which resulted in the amputation of two toes from his right foot.  He thought that there was pain in the knee prior to that accident.

1. Mr Cooper said that Mr Bell's memory had deteriorated significantly over recent months.  He said that it was suspected that Mr Bell had suffered a mini stroke prior to Christmas 2001 and that he had been assessed as suffering dementia.  Mr Cooper believed that Mr Bell had been better some six months ago than he was at the date of the hearing and there had been a gradual decline in his ability to remember.

2. In his evidence before the VRB in October 2000, some 17 months before the Tribunal hearing, Mr Bell said that, after he fell and grazed his knees, he "just brushed it off" and went on with his work.  He thought that it was a month later that infection developed and he went to hospital.  He could not recall any difficulty with mobility.  He said that he developed a carbuncle on the right knee.  He could not recall any treatment to the left knee.  He acknowledged that he had not sought any treatment for his knees until 1998 and, until the motor cycle accident, could run and play football.

3. Mr Bell's service records show that he was admitted to 20 Field Ambulance on 24 October 1947 with "infected Abrasions Rt Knee" and discharged on 31 October 1947.  There are other references on medical history reports of infected abrasions right knee in October 1947.  Other medical records tendered by the respondent all refer to infected abrasions of the right knee.

4. As Mr Bell had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of an hypothesis in accordance with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoP is Instrument Nº 71 of 1995 as amended by Instrument Nº 336 of 1995 and Instrument Nº 352 of 1995. This SoP concerning osteoarthrosis sets out the factors, one of which must be related to the veteran's service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis with the circumstances of service. The only factors which could be relevant to this claim are:

   1(a)(ii)contracting significant inflammatory joint disease in the relevant joint before the clinical onset of osteoarthrosis

   1(b)(iv)suffering a depositional joint disease in the relevant joint before the clinical onset of osteoarthrosis

   1(b)(vi)suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis

Trauma to the relevant joint is defined as:

"trauma to the relevant joint" means a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred.  Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;"   

The definition of "trauma to the relevant joint" was inserted by Instrument Nº 352 of 1995 and the explanatory notes stated:

… The new definition reflects the fact that initial internal damage to the joint, and not only overlying soft tissue injury, is needed to increase the risk of osteoarthrosis.  Such internal joint injury would be associated with cartilage injury, effusion or haemorrhage into the joint, a situation which would produce the elements of the proposed new definition.

1. It was submitted for the applicant that he satisfied the relevant SoP and that the Tribunal should have regard to the fact that the objective evidence by way of contemporaneous records was deficient after over 40 years and the difficulties the applicant had with his memory.  For the respondent, it was submitted that there was no evidence of a trauma to either knee which satisfied the definition in the SoP and any infection was to the right knee and limited to infection of abrasions to the surface of the knee not to the joint.

2. It is recognised that the passing of in excess of 44 years since the incident in October 1947, the unavailability of any supporting witnesses, the limited documentary evidence and the accepted problems that Mr Bell has with memory produce difficulties in determining the facts and results of the incident relied upon by Mr Bell for his claim.  Nevertheless, the combination of the evidence provided at this hearing and the evidence given by Mr Bell at the VRB hearing result in me being satisfied that Mr Bell fell when alighting from a truck in Japan and grazed the skin of his knees.  The skin abrasion of his right knee became infected and he was later admitted to hospital for treatment of that infection.  Consequently, I am satisfied beyond reasonable doubt that neither factor 1(a)(ii) nor factor 1(b)(iv) are satisfied in that there was no disease suffered or contracted in the knee joint itself.  It was clearly a skin or soft tissue infection not involving the joint and, in any event, was to the right knee, not the left knee now being claimed.  Similarly I am satisfied that factor 1(b)(iv) was not satisfied.  The definition of "trauma of the relevant joint" was not satisfied in that the evidence of Mr Bell was that he may have had some discomfort as a result of grazed knees but there were no "acute" symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of the left knee which lasted for a period of one week.   His evidence on this point was much clearer before the VRB some 16 months prior to giving evidence to this Tribunal and when, on the evidence of his stepson, his memory was much better.

3. As a result, I am satisfied beyond reasonable doubt that the material before me does not raise a reasonable hypothesis in accordance with the relevant SoP connecting osteoarthritis of the left knee with circumstances of the service rendered by Mr Bell.  It follows that the decision under review should be affirmed.

   I certify that the eleven [11] preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B.H. Pascoe, Senior Member
   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  1 March 2002
   Date of Decision:  22 May 2002
   Solicitor for the applicant:           Mr D. De Marchi, Messrs De Marchi & Associates
   Advocate for the respondent:       Ms J. McCulloch, Advocacy Section,
     Department of Veterans' Affairs