Blair and Repatriation Commission

[2006] AATA 579

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL         Nº V2004/402

VETERANS'       APPEALS        DIVISION

Re:          GEOFFREY MICHAEL BLAIR

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:              30 June 2006

Place:             Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements – war-caused injury – deep vein thrombosis – acute sprains and strains – decision affirmed

Veterans’ Entitlements Act 1986 ss 9(1), 9(2), 120, 120(4),120A

Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

30 June 2006  Regina Perton, Member

1.       Geoffrey Michael Blair is 57 years old.  He served in the Australian Army from 1 October 1969 to 30 September 1971 as a national serviceman.  His service included six months in Vietnam from 15 February 1971 to 19 August 1971 which qualifies as operational war service.  Mr Blair has disabilities accepted as war‑caused, namely post traumatic stress disorder, bilateral sensorineural hearing loss and sprain of the right ankle. 

2.       On 25 June 2003, Mr Blair lodged a claim to have his condition of deep vein thrombosis (DVT) accepted as a disability that is war-caused.  A delegate of the Repatriation Commission refused Mr Blair’s claim on 11 July 2003.  The Veterans’ Review Board (VRB) affirmed the delegate’s decision on 3 March 2004.    Mr Blair applied to the Tribunal for review on 1 April 2004.

3.       The issue before the Tribunal is whether the DVT was war-caused.  The condition may be attributable to Mr Blair’s right ankle sprain.  There is no dispute that Mr Blair suffered from DVT.    

EVIDENCE

Mr Blair

4.       In the claim form lodged on 25 June 2003, Mr Blair indicated that DVT in his right leg was caused by immobilisation of his right ankle in 1993.  He indicated that:

DVT is a sequelae to treatment for an accepted disability.  It is part and parcel of my already accepted disability.

5.       In oral evidence Mr Blair stated that he was an infantry platoon medic in Vietnam.  He often twisted and experienced ongoing pain in his right ankle but did not report his condition to the medical officer.  He said that he carried a pack weighing 70 to 80 pound on his back in a combat situation.  The pack contained five days of rations, a medical kit, ammunition, water and his share of the additional equipment that the platoon took out with them.  Mr Blair said that he was of a light frame at that time weighing about 10 stone so it was quite a weight to carry. 

6.       Mr Blair’s platoon’s first operation was one of the longest in Australian army history lasting some 54 days.  Mr Blair said that he was a rifleman as well as a medic.  He provided some details of their activities and the need for vigilance.  He said that in such circumstances a person is not too worried about where they are walking.  He said that it was easy to go over on your ankle on a stone or uneven ground while out on an operation carrying a heavy pack.  He did so regularly.  He said that he would strap up his ankle.  His ankle also received support from the GP boot which also came up high on the ankle.  He said that he did not treat his ankle injuries as a big problem.  He said that …Everyone had problems…and this one was mine that I just had to deal with.    Mr Blair said that if a person’s injury was serious and affected their job, they would be evacuated out  for medical treatment and it was his decision as to whether they should be.  He said that he was not going out over a twisted ankle.  Mr Blair recalled having problems with his ankle about seven or eight times in Vietnam.  He reiterated that it was never a big enough problem…to be worried.

7.       After discharge, Mr Blair was self-employed as an orchardist from 1972 to 1993.  He then became an orchard manager from 1993 to 2000.  From 2000 to 2003, he undertook orchard and vineyard work for various employers.  He indicated that he is no longer able to work. 

8.       Mr Blair stated that on his return from Vietnam, he continued to wear the GP boot as support when working.  He said that on their orchard, apart from picking time, he and his wife had to do all the work as they could not afford to pay others.  He said that he took precautions such as being careful when he got off the tractor, looked at where he was walking and the like.  He said from time to time, he would go over on his ankle again and twist it.  However, it did not stop him from continuing to work.  He said that there was no point going to the doctor about it as all a doctor would suggest is that he stopped work for a few days to let it heal but the work still had to be done.  Mr Blair said the condition was not life-threatening so he just got on with things until 1991.

9.         Mr Blair said that he joined the army reserve in 1986 and undertook 12 years service.  He joined so that he could be a member of their pipe band.  Mr Blair said that he had already played the bagpipes and when he heard that a new band was being formed, decided to join.  In 1991, he was participating in a battle efficiency course that he was required rather than wanted to do when he thought he had twisted his ankle again.  It was not until the end of the course when he took off his boot that his ankle was black.   It was a sprain rather than a twist.  With medical treatment, it took about 10 to 14 days to heal. 

10.     In 1993, a more serious injury occurred.  Mr Blair said that he was not at work or doing anything in particular when he went over on his ankle.  It became swollen and he went for medical treatment.  He said that it was strapped up initially.  However, after a few days, his doctor decided to put the ankle in plaster for two weeks as it was not healing properly.  After about 10 days, the doctor decided to remove the plaster.  A physiotherapist noticed pitting on top of his ankle and told him he had DVT.  Mr Blair said he did not know at that time what DVT was.  He was off work for 12 weeks.  At that time, he had recently sold his farm and had started working as an orchard manager only a week earlier.  He returned to work after his 12 weeks off and continued to manage that orchard for the next seven years. 

11.     Mr Blair said that he still experiences swelling of his right leg and has to wear an elastic stocking to keep the swelling down.  He said that the swelling was particularly severe in the summer in the years following 1993 when it was picking time.  He said that he continued to work despite the swelling.  He would need to rest with his leg elevated and it slowed him down in his work.  He said that he now finds it difficult to work although the major problem is not his leg, rather it is the stuff going on in my head.

12.     Under cross-examination, Mr Ken Rudge, the advocate representing the Repatriation Commission, read out an extract describing evidence given to the VRB on 28 October 2002 in relation to an earlier claim (Exhibit R3).  Mr Blair told the VRB that at recruit training he twisted his ankle but did not sprain it and that it did not necessitate medical assistance.  Mr Blair could not recall that incident.  However, he believed that carrying the heavy weights in Vietnam resulted in his being more prone to ankle injuries.   

13.     Asked to recall any ankle injuries while working as an orchardist during the 1970s and 1980s, Mr Blair said that he could recall a number of occasions including June 1975 when he went over on his ankle while walking around checking cattle, another in 1978 and again in 1982 when getting off the tractor.  He remembered going over his ankle in 1986 when walking on uneven ground on the farm.  He said that he had not recorded the occasions when he hurt his ankle.  He said that he has never twisted or otherwise injured his left ankle.   Mr Blair said that when he was wearing ordinary shoes rather than the GP boots he usually wore, he strapped his ankle using a wrap-around bandage.  He particularly did so during the 1980s and also at times such as when he was playing in the pipe band.

14.     Mr Blair said that it was not until 1991 and 1993 that he encountered sprains in which his ankle went black.  In Vietnam and during the 1970s and 1980s, he would twist the ankle, there would be pain but he would just put up with the discomfort.  Mr Blair confirmed that he did not report any ankle injuries while undertaking national service.

15.     Mr Rudge brought to Mr Blair’s attention the report of the medical examination when Mr Blair joined the army reserve (Exhibit R2).  In the report, it states that Mr Blair was fit with a well-toned physique.  Mr Blair was stated to keep fit through running, squash and manual work on the farm.  Mr Blair stated that at that time, he ran 4 to 5 kilometres about twice a week and played social squash for about two years.  He conceded that the heavy work in the orchard may have aggravated his ankle problems because of the rough ground, the getting on and off tractors and the like.  He said that until 1991, his twistings of the ankle would result in soreness for a couple of hours.

16.     Under re-examination Mr Blair said that he had not been aware of the definition of acute sprain in the relevant Statement of Principles (SoP) when Mr De Marchi read it out.  Mr Blair said that he has never been diagnosed with a ligament or muscle disease or degenerative joint to his ankles.  He said that he experienced pain for a short time, had some limitation of movement and strapped his ankle.  Mr Blair said that after hearing the definition, he would describe his injuries in Vietnam as acute sprains or strains.

Mrs Blair

17.     Mrs Elizabeth Blair had been excluded from the hearing room while her husband gave his evidence.  She told the Tribunal that they have been married for 34 years.  She described their last few years during which they have travelled around Australia and her husband’s restlessness.  She said that he has become less sociable and described the changes in his behaviour.  Mrs Blair said that his ankle problems are preventing him from working at fruit picking with its requirement to climb ladders.  She said that he has had problems with his right ankle for as long as she has known him.  She stated that he used support bandages regularly to assist him and now uses an elastic stocking to reduce swelling. 

Professor Myers

18.     In a report dated 16 May 2005 addressed to Mr De Marchi, Professor Kenneth Myers, vascular and general surgeon, described the outcome of his examination of Mr Blair on that day (Exhibit A2).  Professor Myers gave the following opinion:

I have noted the report from Professor Hall of 24 August 2004.  Like myself, Professor Hall noted that there was increased circumference of the right calf.  He correctly identifies that the Deep Vein Thrombosis resulted from immobilisation of the leg in a plaster cast in 1993.  He identifies that your client had a minor ankle sprain during service in Vietnam in 1971.  However, he considers that he made a good recovery and was able to participate in heavy work activities over the next 20 years.  He again identifies that there were further ankle injuries in 1991 and 1993.  However, he does not believe that these were causally contributed to by an ankle condition suffered in Vietnam…

I have noted the Statement of Principles concerning Deep Vein Thrombosis.  Clearly Factor 5c with immobilisation of the leg is a sufficient factor to relate the ankle injury to the Deep Vein Thrombosis. 

…

I think that a convincing argument could be made to say that this man has a weakness of the ligaments of the ankle which has persisted ever since war service in 1971 and renders him prone to recurring episodes of rolling over with simple movement, so as to cause a sprain of the ankle.  Accordingly, it is my opinion that his Deep Vein Thrombosis can be related to his period of service in Vietnam.

There is certainly minimal disability at the present time, although he states there is pain and there is an observation of measured swelling of the leg.  I think that the swelling is more likely to be due to residual problems in the deep veins as a result of recanalisation after Deep Vein Thrombosis, rather than any ongoing disability relating to injury of the ankle…

19.     In oral evidence, Professor Myers stated that Mr Blair may have had a past tear of one of the ligaments in the ankle joint leading to a weakening of the ankle joint so as to allow it to turn over more regularly.  He said that his hypothesis of linking the sprain and strain to the ankle in Vietnam to the 1991 and 1993 sprains was based on possible damage to the ankle ligament in Vietnam that had not been repaired or did not need to be repaired.  When asked if the tearing or stretching of ligaments would show up on x-rays, he said that plain x-rays are a very poor way of demonstrating damage to ligaments.  Professor Myers stated that he had seen the reports of Mr Blair’s x-rays which showed no definite abnormality in the left or right ankle.  He said that either an ultrasound or an MRI of the ankle would provide a better indicator. 

20.     Mr Rudge cross-examined Professor Myers.  The transcript at page 51 provides the following exchange: 

MR RUDGE:  Okay.  Well, let us look at the sprains in Vietnam, and let us say that we will look at the first one.  He has a twist of the ankle and he has soreness for a couple of hours.  For something to cause an underlying ligamentous problem, damage to the ligaments, you would expect more symptoms than that, wouldn’t you? --- [PROFESSOR MYERS] Well, I think it is correct to say that the longer the duration of the symptoms and the more severe the symptoms the more severe the pathology is likely to be.

But as – if you – you are talking about a tear of a ligament, aren’t you? ---Yes

Now, a sprain of the ankle, or a twist of the ankle with two hours – a couple of hours of soreness and then resolution of the problem, does not indicate a tear of the ligament, does it?--- If here was a complete resolution within a short time then that makes it appreciably less likely, yes.

….

21.     Mr Rudge then read out an extract from a report dated 27 June 2005 written by Mr Hugh Hadley, a retired orthopaedic surgeon, who had been asked by Mr De Marchi to provide advice on Mr Blair’s ankle. 

[MR RUDGE] You didn’t have a report from Mr Hugh Hadley, did you? ---I don’t believe so.

Mr Hadley said – I don’t believe Mr Hadley saw Mr Blair, but he gave a short letter which was filed with the Tribunal.  He said:

In order to determine whether he does have a chronic weakness with the ligaments of his right ankle, I recommend he have x-rays taken of both his ankles with views of forced inversion and eversion of both ankles to determine if he does have laxity of his right ankle ligaments compared to his left ankle ligaments.

?---Yes.

I think Mr Hadley is indicating that we actually have no evidence of the underlying weakness or an underlying tear or pathology and you – to make that diagnosis you need some objective evidence?---Yes, I would agree with that.

Right.  So we are in the situation of just having a guess?---Yes, in the absence of further investigations I think it is difficult to make a decision on a plain x-ray or indeed on the clinical examination.

So all we have got is sprains of the ankle which resolve after a couple of hours.  No objective evidence of an underlying pathology, a tear, so we are just speculating about that, aren’t we?---Well, we are certainly making an assumption as to whether there is a reasonable case that damage to the ankle in 1971 has caused his subsequent problems and I agree with you that there is inadequate objective evidence to support whether that is correct or not.

Yes.  The condition of deep vein thrombosis, would you see those types of conditions in your practice?---Yes, I do.

Yes.  And would you say that is something within your area of expertise?---Yes, it is.

Ankle injuries of this nature would not come within your area of expertise, would it?---Well, I see a lot in the course of medico-legal assessment of patients, but I do not treat orthopaedic problems, no.

…

22.     On re-examination by Mr De Marchi, Professor Myers, upon being recounted a history that involved regular strapping of Mr Blair’s ankle, indicated that it was highly likely that Mr Blair had a long standing problem with the ankle resulting in weakness of the ankle predisposing to future episodes.    Upon being advised by the Tribunal that Mr Blair could remember only 8 or 9 twists of his ankle in the 20 years after service in Vietnam i.e. between 1971 and 1991, Professor Myers stated:

…most of us never have a sprained ankle.  I have never had one and you know, two would be a coincidence.  For me, your description of six or seven episodes is more than a coincidence.  That indicates somebody who I think has a weak ankle.    

Dr Hall

23.     In a report dated 24 August 2004 addressed to Mr Rudge, Dr Stephen Hall related the results of his examination of Mr Blair on 8 August 2004 (Exhibit R1). 

…

There was no swelling of his right ankle or foot.  The right calf measured 1.5cm. more in diameter than the left calf taken 12 cm. below the tibial tubercle.

Examination of the right ankle was entirely normal without restriction of movement or stress tenderness.

In answer to your specific questions:

1.  I believe that Mr. Blair’s deep venous thrombosis of the right leg was the result of immobilisation of leg in a plaster cast in 1993.

2.  I believe that by his description Mr. Blair had minor ankle sprain during his service in Vietnam in 1971.  He clearly made a good recovery from that and was able to participate for the next 20 years in a physically demanding job which involved standing for most of the day as well as participating in some sporting recreation. His problems were never of the magnitude which required him to attend medical or paramedical attention and on that basis I think it is reasonable to conclude that his symptoms had resolved.

3.  I believe that appropriate diagnosis for the ankle injuries in 1991 and 1993 were those of ankle sprain.

4.  I do not believe that the right ankle injury suffered in 1991 and 1993 were caused or causally contributed to by the ankle condition suffered in Vietnam.

5.  Mr. Blair does not presently suffer from any identifiable ankle injury.  I could find no evidence of abnormality of the ankle on physical examination.

6.  Mr. Blair states that he has some minor oedema of the right leg.  However, there was no evidence of oedema at the time of my examination.

…

24.     In oral evidence, Dr Hall stated that he has been specialising in rheumatology for some 22 years.  He has treated many people with ankle strains and estimated he has probably assessed ankles in some 4000 persons over the years.  He stated that the history he had from Mr Blair was that his ankle injuries prior to 1991 were of short duration and it was only the ankle injuries of 1991 and 1993 that were associated with bruising.  Dr Hall stated that the presence of bruising is significant because it indicates that there has been significant tissue damage and that there are broken fibres and there is bleeding.  He indicated that ankle pains from rolling the ankle that last for a couple of hours and then go away are not injuries that would normally be expected to leave a person with permanent damage or long-term sequelae. 

25.     Dr Hall stated that if there had been a high-grade tear of a ligament in Vietnam, it would have been expected to be of the seriousness of the episode of 1993.  Such an injury could cause ongoing instability.  Dr Hall stated that if Mr Blair had suffered an injury in Vietnam serious enough to have left ongoing instability, he would have expected a discrete severe ankle sprain with bleeding, bruising and extensive swelling with at least 10 days for recovery with a period of inability to put weight on it, requiring the use of crutches for some time.  Dr Hall stated an injury of that level would prevent the person from carrying a pack or being out in the field.  

26.     Dr Hall stated that he did not share the hypothesis put forward by Professor Myers.  He said that to support such a hypothesis, he would need to have at least one of three things.  There would need to have a history of a severe ankle strain during Mr Blair’s service which there was not.  He would expect to see some long term sequelae of instability on x-ray which is not apparent in Mr Blair.  A third option would be to have an abnormal physical examination 30 years later.  However, he found that Mr Blair had a normal ankle.  There was no restriction of movement nor swelling of the ankle on examination or of any structural weakness within the ankle. 

27.     Under cross-examination by Mr De Marchi, Dr Hall stated that he was unable to measure whether Mr Blair had a high or low threshold of pain.  Dr Hall stated that Mr Blair’s access to analgesics to mask pain would not result in the masking of bruising.  Dr Hall stated that many people have a pattern of gait which means that they go over on their ankle.  Such a problem does not indicate that those persons have had a previous severe acute sprain or strain of the ankle.

CONSIDERATION OF THE ISSUES

28. Section 9 of the Veterans’ Entitlements Act 1986 (the Act) sets out the circumstances in which an injury or disease suffered by a veteran can be considered war‑caused.  It provides:

9(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

…

(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

…

but not otherwise.

(2)       For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:

…

(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

29. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:

1.        The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.  

30.     Both parties agree that Mr Blair suffered from DVT following the immobilisation of his ankle in 1993.  However, there is disagreement on whether Mr Blair’s DVT is attributable to his accepted war-caused disability of sprain of the right ankle. 

31.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.

32.     Whether an applicant suffers from a condition is a preliminary issue (Fogarty v Repatriation Commission [2003] FCAFC 136), to be decided on the balance of probabilities, under s 120(4) of the Act. The parties agree, and the Tribunal finds, that Mr Blair suffers from DVT.

33.     The Tribunal has considered each of the four steps from Deledio.  In respect of the first step, the Tribunal finds that the material before it points to a hypothesis connecting DVT to the particular service rendered by Mr Blair.

34.     In respect of the second step from Deledio, there is a relevant SoP for deep vein thrombosis, namely Instrument No. 5 of 2001 as amended by Instrument No. 38 of 2004.   Mr Blair relies on factor 5(c) of the relevant SoP which states:

(c) experiencing immobilisation for at least four consecutive hours within the 30 days immediately before the clinical onset of deep vein thrombosis; …

35.     Immobilisation is defined in the SoP as at least gross diminution of movement of a lower limb associated with sitting or reclining.  The Tribunal finds that Mr Blair satisfies the second step.

36.      In respect of the third step from Deledio, the Tribunal accepts that Mr Blair’s immobilisation of his right ankle is sufficient to satisfy factor 5(c) of Instrument No. 5 of 2001 and that clinical onset occurred in 1993.  In these circumstances there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the SoP.  Consequently, Mr Blair satisfies the third step.

37.     In respect of the fourth step from Deledio, that is whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.

38.     In Bushell v Repatriation Commission (1992) 175 CLR 408, the High Court indicated that the Tribunal does not need to consider a hypothesis to be a reasonable one if it is … obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. 

39.     In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court stated:

(2) If a reasonable hypothesis is established, sub-s. (1) of section 120 is applied. The claim will succeed unless:(a) one or more of the facts necessary to support the hypothesis are disproved beyond a reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

40.     In Repatriation Commission v Bey (1997) 79 FCR 364, the Full Court of the Federal Court held that a “reasonable hypothesis”:

involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities…

41.     Mr Blair has the accepted war-caused disability of sprain of the right ankle.  Mr Blair served in Vietnam in 1971.  The ankle injury that led to Mr Blair being placed in plaster and subsequently suffering DVT occurred in 1993.  Mr De Marchi pointed to a hypothesis that Mr Blair’s ankle injuries in Vietnam resulted in ongoing ankle weakness leading eventually to the 1993 sprain that led in turn to the DVT.  Mr Rudge submitted that the immobilisation was not related to service and that the hypothesis is not supported by the facts.  He submitted that the hypothesis is too tenuous and the suggested causal connection too remote.

42.     Mr Blair gave evidence that the ankle sprains or strains which he suffered in Vietnam did not result in him ceasing duty or seeking medical attention.  He said that following a twist, he strapped the ankle with a bandage, sometimes took an analgesic and suffered a few hours of pain and discomfort.  There was no bruising.  He also stated that he had twisted his ankle a number of times while working as an orchardist.  The first time that he suffered an ankle injury resulting in bruising for which he sought medical treatment was when he was on an army reserve exercise in 1991.  He indicated that he wore boots that supported his ankle while at work.  There was evidence that he regularly bandaged his ankle for support when wearing ordinary shoes.  He worked in a physically demanding role.  He also ran and played squash in the mid 1980s.   

43.     Dr Hall was not satisfied that there was any evidence to sustain a hypothesis linking Mr Blair’s sprains and strains of the right ankle in Vietnam to the severe ankle sprain in 1993 which led to the DVT.  Based on his expertise and experience, he set out three possibilities, one of which should have occurred for a hypothesis to be able to be sustained linking service with DVT.  He gave the opinion that none of these were met in Mr Blair’s case. 

44.     Professor Myers conceded that there was no objective evidence that Mr Blair’s ankle injuries in Vietnam were serious enough to have resulted in damage to a ligament.  His hypothesis linking the war-caused disability relating to the right ankle was based on a history provided to him of serious ongoing ankle problems after service until 1991.  He speculated that Mr Blair may have had damage to his ligaments but conceded that there was no objective evidence for such an opinion.

45.     The Tribunal finds Dr Hall’s evidence persuasive.  Dr Hall specializes in rheumatology with particular experience in relation to ankle conditions.  Professor Myers indicated that he does not specialize in that particular area.  Furthermore, he acknowledged that there was no objective evidence underpinning his hypothesis about a relationship between the ankle injuries in Vietnam to that incurred in 1991 or 1993.  The Tribunal finds that Mr Blair’s ankle injuries in 1991 and 1993 were serious ankle sprains and that the ankle sprains in Vietnam were not causally connected to the serious ankle sprain of 1993 that led to immobilisation and then DVT.

46.     The Tribunal is consequently satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of DVT was caused by or attributable to Mr Blair’s accepted war-caused disability of sprain of the right ankle.  Therefore, the Tribunal finds that the fourth step is not satisfied in relation to this condition.

47.     The Tribunal finds that Mr Blair’s deep vein thrombosis is not war‑caused.

DECISION

48.     The Tribunal affirms the decision under review.

I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  13 April 2006

Date of decision:  30 June 2006
Advocate for applicant:                 Mr D De Marchi
Solicitor for applicant:                   De Marchi & Associates
Advocate for respondent:            Mr K Rudge
Solicitor for respondent:               Advocacy Section, Department of Veterans’ Affairs