Blair and Repatriation Commission
[2004] AATA 1311
•9 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1999/47
VETERANS' APPEALS DIVISION ) Re JOHN ALEXANDER WILLIAM BLAIR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal The Hon R J Groom (Deputy President) Date9 December 2004
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS
Veterans’ Entitlements – disability pension – operational service - Lyme disease – satisfied applicant contracted disease – hypothesis raised – acceptance of evidence without considering proof – only a possibility disease contracted during operational service – mere possibility not sufficient – hypothesis not reasonable – decision affirmed.
Veterans’ Entitlements Act 1986 – s9, 120
Benjamin v Repatriation Commission (2001) 7 ALD 70
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Colin Mack Cooke (1998) 1717 FCA
East v Repatriation Commission (1987) 16 FCR 533
Repatriation Commission v Bey (1997) 79 FCR 364
REASONS FOR DECISION
9 December 2004 The Hon R J Groom (Deputy President) 1. This is an application to review a decision of the Veterans’ Review Board (“the VRB”) dated 5 February 1995. That decision affirmed a decision of the Repatriation Commission made on 9 September 1996 refusing the applicant’s claim that he is suffering from “unspecified pityrasis (bilateral)” and that it is war-caused.
2. The hearing was held on in Launceston on 8 October 2004. The applicant was represented by Mr Ross Hart and the respondent by Mr Michael Castle. Oral evidence was given by the applicant and by Dr Richard Barry. Several documents were tendered in evidence, including the “T” documents, seven photographs, a report of Dr Barry dated 28 May 2004, three reports of Dr John Sands dated 13 December 2001, 8 November 2001 and 31 October 2002, and the HMAS Vendetta “Report of Proceedings” for November 1965.
3. It is not in dispute between the parties, and I so find, that the applicant served in the Royal Australian Navy from 16 January 1965 until 14 April 1969. His periods of eligible service, which were also “operational service” were as follows:-
(i) 31 August 1965 to 7 September 1965
(ii) 20 September 1965 to 3 October 1965
(iii) 19 October 1965 to 19 November 1965
(iv) 29 November 1965 to 29 December 1965
(v) 29 January 1966 to 9 February 1966
(vi) 24 April 1966 to 18 May 1966; and
(vii) 25 May 1966 to 11 June 1966.
4. The applicant originally claimed a disability pension for “severe skin problems” and “periodic dizziness” caused by operational service in the Navy. The claims were formally considered as “other and unspecified pityriasis (bilateral)” and “benign paroxysmal positional vertigo”. The Repatriation Commission decided on 9 September 1996 that those two diseases were not war-caused diseases within the meaning of s9 of the Veterans’ Entitlements Act 1986 (“the Act”).
5. The applicant then appealed to the VRB which heard the appeal on 5 February 1996. The VRB affirmed the decision in so far as it related to “other and “unspecified pityriasis (bilateral)” and adjourned the hearing of the appeal concerning “benign paroxysmal positional vertigo” pending the provision of further medical reports. On 2 December 1999 the latter claim was withdrawn by consent.
6. In the course of the proceedings before the VRB, the applicant contended that he was not suffering from “other and unspecified pityriasis (bilateral), but that he was in fact suffering from the disease known as Lyme borreliosis (“Lyme disease”). The VRB determined that there was no evidence pointing to a “reasonable hypothesis of a relevant relationship” between that disease and service and therefore decided such condition was not war-caused.
7. Although the formal decision of the VRB of 5 February 1999 refers only to “other and unspecified pityriasis (bilateral)” it also considered the applicant’s claim that he was suffering war-caused Lyme disease. It rejected that claim. This Tribunal can therefore properly consider the applicant’s current contention that he is suffering from Lyme disease which was war-caused. Indeed the issue to be considered by the Tribunal is whether the applicant suffers from a disease which was war-caused no matter how it may have been previously diagnosed or described – see Benjamin v Repatriation Commission (2001) 7 ALD 70 @ 622.
8. As the applicant’s relevant service was operational service, the standard of proof is governed by s 120 of the Act applied in accordance with the four stages of analysis prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at pp96-7.
9. The first issue in this application is to consider whether the applicant does in fact suffer from the claimed condition. That issue is to be determined to the Tribunal’s “reasonable satisfaction” which is the ordinary civil standard of proof. See s120(4) of the Act and Benjamin’s case (supra) and also Repatriation Commission v Colin Mack Cooke (1998) 1717 FCA.
10. It is clear on the evidence before the Tribunal that the applicant has suffered many health problems since his period of service in the Navy, including chronic skin problems, aches and pains in his joints including the knees, elbows and shoulders, dizziness, tiredness and malaise, poor concentration and memory, gastro-intestinal problems, sleep difficulties, irritability and other complaints.
11. Although the applicant had visited many medical practitioners over the years and had received a range of different diagnoses for his several health problems, he believed he may be suffering from a serious infectious disease which he felt could be the central cause of his various complaints. A Launceston physician Dr John Sands said in a reported dated 13 December 2001:
“… he feared that he may have caught giardiasis or Entamoeba histolytica, schistosomiasis, or some other infection that he couldn’t identify and he was given a course of eradication in the form of metronidazole to clear up giardiasis or entamebiasis.
On review on 2nd November 1995 he had improved somewhat and I had hoped that it would all go away.
However on the next occasion I saw him on 20th November 1995 he returned unwell again and concerned that he may have Lyme disease on the basis of the research that he had been doing independently as he contemplated so many illnesses and at the time I saw him again on 2nd January 1996 the serology for Lyme disease was found to be positive.”
12. It is entirely understandable that the applicant would be anxiously seeking some answer to his chronic health problems. The evidence indicates that the applicant heard or read about Lyme disease and conducted his own research into the disease in order to ascertain whether it could be the cause of his symptoms. He raised the possibility with his doctors and they then gave it their consideration. Dr Sands said in his report of 13 March 1996:
“He continued research into himself reasonably but obsessively, and suspected that he may have had Lyme disease, and indeed the appropriate serological tests show I think beyond reasonable doubt that he has at one stage in his career had an infection with the appropriate Borrelia.”
13. Lyme disease is a tick transmitted disease which can cause chronic skin problems, headaches, musculoskeletal pains and a range of other symptoms. It was identified in the United States of America in the 1970’s and gained much publicity in the period 1980 to 1995. In fact it had been identified in Europe at least a century earlier. It was named after Lyme in Connecticut where many people were diagnosed with the disease. The hallmark symptom of Lyme disease is a bright red, bullseye-like rash that develops at the site of the tick bite. This rash is called “Erythema Migrans”.
14. According to the material before the Tribunal the most accurate serological test for Lyme disease is the so-called “western blot” test. A serum sample from the applicant was sent in November 1995 to the Royal North Shore Hospital which then operated a diagnostic service, using the “western blot” test. Dr Richard Barry, a retired Professor of Microbiology, who was involved in operating the diagnostic service at the time confirmed that the applicant’s serum had been tested there. He said the serum tested positive to Borrelia Afzelii. A copy of this positive test result is among the documents presented in evidence. Borrelia Afzelli are a known cause of Lyme disease, particularly in the “Eurasian” region.
15. Dr Barry said in oral evidence:
“…. No, I don’t think there are any pieces of evidence which will automatically exclude diagnosis of the (Lyme) disease”.
16. A positive serological test for Lyme disease is not conclusive evidence that a subject has the disease. Dr Bernie Hudson of the Royal North Shore Hospital, a recognised Australian expert in the disease, said in a report dated 24 December 1996:
“… it is virtually impossible to distinguish between seropositivity due to past infection but unassociated with current illness, seropositivity due to current infection associated with current illness, or even a false positive result.”
17. Dr J M Sands in his report of 13 December 2001 made the following comments:
“I am of the opinion that the symptoms that he described to me since my first assessment in 1995 and to current date are consistent with chronic Lyme disease.
I believe it is possible to diagnose him as suffering from chronic Lyme disease on the basis of the information available to me as “the probable diagnosis”. This information is historical, clinical, and supported by blood tests.
I think one has to accept the fact that he did have exposure to a Lyme disease pathogen namely Borrelia afzelii as an unarguable.
The less certain issue is to whether his current medical state is due to the chronic form of this disease. I have formed the opinion this is the probable diagnosis on the basis of the fact that the disease is consistent with the history of the exposure, the development to the current state is consistent, and particularly in the absence of an alternative diagnosis.”
18. There is little doubt that at sometime the applicant was exposed to Borrelia Afzelii as indicated by the western blot test. Whether or not he actually contracted the disease is not as certain. The evidence establishes that he has suffered many of the typical symptoms of the disease. Although Dr Sands states that Lyme disease is the “probable diagnosis”, it is nevertheless necessary for the Tribunal to be so satisfied on all of the evidence.
19. Although the diagnosis is far from certain, after considering all of the evidence before me, I have concluded, on the balance of probabilities, that the applicant was at some point in time infected by Borrelia Afzelii and as a result contracted Lyme disease.
20. The next issue to consider is whether there is present in this case the necessary link between the Lyme disease contracted at some time by the applicant and his operational service with the Royal Australian Navy.
21. As there is no Statement of Principles for Lyme disease published by the Repatriation Medical Authority nor any relevant determination or declarations, it falls therefore to the Tribunal to consider all the material before it to determine whether that material points to a reasonable hypothesis connecting the applicant’s disease with the circumstances of his particular service.
22. Section 120(3) of the Act provides as follows:
“In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
23. So it is not sufficient to merely raise an hypothesis. The hypothesis advanced must also be “reasonable” within the meaning of s120(3) of the Act.
24. The Federal Court in East v Repatriation Commission (1987) 16 FCR @ 533 approved the following passage from the decision of the VRB in the case of Stacey (unreported), 26 June 1985:
“The addition of the word `reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised' by material before the Board, we think it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of a least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."
25. The approach in East was confirmed by the Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 372:
“Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. 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. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.”
26. It is now necessary to consider the whole of the material before the Tribunal in order to determine whether an hypothesis has been advanced connecting the disease to the applicant’s eligible service.
27. Dr Richard Barry is a former Professor of Microbiology at the University of Newcastle. From 1979 until 1998, he taught medical students at that University “virtually all aspects of microbiology”. Prior to 1979 he was involved in research at the University of Cambridge in the United Kingdom. As mentioned in 2 above Dr Barry provided a written report dated 28 May 2004 and also gave oral evidence at the hearing.
28. Dr Barry said in his report that he believed that the applicant was at some stage “exposed to a Borrelia Afzelii like organism as indicated by the W.B (Western Blot) testing against the Borellia Afzelii antigen”. He also said “…. Although not known at the time Borrelia Afzelii was highly likely to be endemic in S.E. Asia at the reported date of the index illness”. He went on to say in the report that “Confirmation of the diagnosis, and the timing of the illness could be supported by information related to tick bites and the occurrence of EM-like lesions”. The following exchange took place between Mr Hart, counsel for the applicant and Dr Barry:
Mr Hart: “Is the evidence of Mr Blair as to his exposure to insects in the river in Borneo significant or insignificant when it comes to providing the linkage?”
Dr Barry: “I think it is quite significant as a possible linkage. The thing that has to be mentioned is that the tick factor – these ticks; they go through various life cycle stages and so, the first of those life stages is little embryonic form, which is really very, very small. It is the size of a pinhead or so, and in an area, where say, ticks are prevalent, you will find on the tips of blades of grass, you will find hundreds of these little things, which are just hanging around there to hitch onto a warm blooded mammal. So, it sounds to me like they probably were, either tick larvae or in the intermediate stage in the development of the tick.”
29. Dr Barry was asked specifically about the possible hypothesis by Mr Hart in the following terms:
Mr Hart: “Is there anything in the facts that have been made to you, including Mr Blair’s subsequent evidence regarding exposure to the small insects, which would enable you so say that there does not exist a reasonable hypothesis linking his exposure to Lyme disease?”
Dr Barry: “No, I don’t think there are any pieces of evidence which would automatically exclude the diagnosis of the disease.”
Mr Hart: “…so there is nothing which would enable you to say that the hypothesis is fanciful, is subject contrary to any known fact, any known research, or is it contrary to any know law of nature?”
Dr Barry: “The answer to that is no. But qualified by the comment that, of course, nevertheless it has to remain speculative.”
30. I am satisfied on the evidence that an hypothesis has been advanced by an expert in infectious diseases with a sound working knowledge of Lyme disease. In essence the hypothesis is that Lyme disease is spread by ticks carrying various types of Borellia including Borrelia Afzelii; – the applicant was at some stage exposed to an “Afzelii – like organism”; – ticks carrying Afzelii may have been in Borneo when the applicant was there during his operational service; - the applicant may have been bitten by a tick carrying Borrelia Afzelii; – as a result the applicant may have contracted Lyme disease.
31. I point out that no expert evidence was called by the respondent to contradict the hypothesis raised by Dr Barry.
32. The next stage to be considered by the Tribunal in the four stage analysis in Deledio’s case (supra) is whether that hypothesis is reasonable.
33. Dr Barry appeared to confirm, in somewhat ambiguous terms (see paragraph 29 above), that he though the hypothesis was reasonable, however it remains for the Tribunal to be so satisfied taking into account all of the evidence before it.
34. Although there is an hypothesis advanced on behalf of the applicant two fundamental questions can be asked which go to the very foundation of that hypothesis. They are (a) - where is the evidence that the applicant was actually bitten by a tick in Borneo when he was there in 1965? and (b) - what is the basis for the claim that Borrelia Afzelii were in fact present in Borneo at the relevant time?
35. The applicant says that he went on a day long recreational excursion in Borneo on 8 November 1965. It was attended by several other personnel from HMAS Vendetta on which the applicant was then serving. The ship was visiting Borneo at the time. There is documentary proof in the HMAS Vendetta “Report of Proceedings” that such an excursion took place and I find on the evidence that the applicant did go on such an excursion on 8 November 1965.
36. It is implied in the evidence that the applicant was bitten by a tick during that excursion, but there is no direct evidence that he was. He initially said in his evidence:
“I do recall during the course of that excursion, getting some minute insects all over my hands. As I previously stated to you in a letter, I remember having trouble dislodging them off myself and washing them off myself in the river…. They were numerous. To hazard a guess, a couple of dozen.”
In cross-examination the applicant said about the insects on his hands:
“I tried to brush them off. They were gripping me very severely. I might have brushed a few off but I went into the river and washed them and dislodged them off myself.”
37. Dr Barry refers to the insects as “a possible linkage” (see paragraph 28 above). He was, of course, relying totally on the applicant’s account of the insect incident.
38. I find on the evidence that the applicant did have annoying and unidentified
insects on his hands for a period of time during the one day excursion, but that they were removed by the applicant during that day.
39. Dr Barry said in his report of 28 May 2004 as follows:
“However the only way in which he could have been infected is by way of a tick bite, so that here his historical recall of his index of illness is important. This is because tick bites are different from the bites of other insects, such as midges and mosquitoes, in that the larval tick (pin head size) burrows into the skin and remains attached for days while it grows as it engorges its blood meal; most LB patients not only recall where they were when the tick attachment occurred, but describe efforts to remove it, and also remember the itchy, sore swelling of EM.”
40. The applicant fell ill on 17 November 1965, 9 days after the excursion, with flu like symptoms, which were diagnosed as “viremia”. The medical records show that the applicant had a temperature of 104 °F and had a 3 day history of coryzal symptoms leading to headaches, malaise, aches in limbs and back. On 20 November 1965 he was discharged when the entry said “symptoms subsided, to be discharged to excused duties for one day and then full duty”.
41. As mentioned in paragraph 13 above the classic indicator of Lyme disease is Erythemia Migrans or “E.M.” (formerly known as Erythemia Chronicum Migrans or “ECM”). It is the distinctive “balls-eye” rash which is said to be present in 60% of Lyme disease cases.
42. The applicant did not claim in evidence that he had “E.M.” after the excursion in Borneo and there is no reference to it in the medical records from HMAS Vendetta. Nor is there any reference to any tick or other insect bite in those records.
43. In the “Scientific American” Journal of September 1994 at p.21 (T documents p.188) there is a comprehensive explanation of many aspects of Lyme disease including how a person is infected with the disease. It states:
“Luckily for potential victims, a tick has to be attached to a human host for 36 to 48 hours before an infectious dose of B.burdorferi will be transmitted. This fact is comforting to those of us in areas where Lyme disease is endemic; we can establish a strong first-line defence just by checking ourselves assiduously for ticks every day.
Most people who do become infected will ultimately display one or more symptoms. Early on, perhaps 60 percent of patients will notice a roundish rash called erythema chronicum migrans (ECM). Three days to a month after spirochetes enter the skin will see redness at or near the site of the tick bite. The reddened area, which neither itches nor hurts expands over time and may grow to measure several inches across.”
I accept those comments as an authoritative statement and as evidence that a tick has to be attached to the body for a long period of time before Lyme disease can be transmitted.
44. There is no evidence before me that the applicant was actually bitten by a tick let alone evidence that it remained lodged in his skin for many hours. Similarly, there is no evidence that the applicant had E.M. following the recreational visit in Borneo.
45. In a letter dated 16 March 1996 to Mr Glen Limbrick of “Veterans Affairs” (see T documents p78) the applicant said:
“Since my symptoms commenced whilst in the navy and have persisted ever since, I can only assume that I acquired the disease somewhere in South East Asia while on HMAS Vendetta. I suspect the onset was the occasion of collapse on the Vendetta, which at the time I was told was due to a form of flu. Strangely though I recall being the only person thus affected. If my memory serves me correctly, this all happened not long after a stop over in Borneo. I recall going on an organised recreational trip up country where we swam in rivers and walked through the bush. I in fact still have photos of the occasion. I guess it only now remains to establish whether these such areas are endemic to such strains of Lyme disease. I fell that at long last I have the answers to what has been years of torment and lengthy periods of dysfunction.”
46. It is significant that in that letter there is no specific reference to the incident involving insects. In saying that, I am not doubting the applicant’s credibility in any sense, but it is interesting that he did not consider the insect incident as being of sufficient significance to expressly refer to it in this letter written in 1996.
47. The applicant now contends that he contracted Lyme disease on a one day excursion in Borneo some 39 years ago. In supporting this hypothesis, Dr Barry said in his oral evidence that: “my suspicion is that the ticks occur in Borneo and similar places”. He said “ticks travel as passengers on migratory birds” and “end up down as far as Macquarie Island …”. He went on to say “… the opportunity for the disease to spread worldwide is enormous”.
48. As far as the flu like symptoms which the applicant was suffering from 9 days after the Borneo trip is concerned Dr Barry said “I wouldn’t put a strong correlation between those symptoms and the possible exposure to Lyme disease”. I find that the symptoms could equally have been caused by some type of influenza or similar condition.
49. Dr Hudson said in his report 24 December 1996 (T documents p135):
“Likewise, it is impossible either way to say that the initial illness in November 1965 while on active duty was or was not the first presentation of LB.”
50. There is evidence before the Tribunal that Borellia Afzelii is present in the cooler climates of Europe and Asia. There is also evidence before me that Lyme disease is present in the United Kingdom and Australia. The applicant has worked in the United Kingdom for some 5 years and also in Algeria. He has lived and worked for many years in Tasmania and also lived in Victoria.
51. When Dr Barry was asked by counsel about the evidence to support his contention that Borellia Afzelii may have travelled to Borneo, he agreed that there was no factual evidence to support the hypothesis. The exchange was as follows:
Mr Castle: “But there is actually absolutely no factual evidence to support that?”
Dr Barry: “No, not at the moment.”
Conclusion
52. Accepting the evidence before me and without considering issues of proof, I find on all of the evidence, that there is no sound basis for the hypothesis advanced on behalf of the applicant. There is no evidence that Borellia Afzelii were actually present in Borneo at the relevant time and no evidence that the applicant was bitten by a tick during the excursion, let alone evidence that a tick was present on his body for the length of time necessary for the disease to be transmitted.
53. The hypothesis advanced in this case is based merely on the possibility that the applicant may have been bitten by a tick carrying Lyme disease during the one day recreational excursion in Borneo in 1965. The facts as advanced to not provide the essential foundation for the hypothesis.
54. As was said in Repatriation Commission v Bey (supra):
“A reasonable hypothesis involves more than a mere possibility. It is an hypothesis pointed to by the facts …”.
55. I therefore find that the hypothesis advanced in this case is not a reasonable hypothesis within the meaning of s 120(3) of the Act.
56. The decision under review is therefore affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 8 October 2004
Date of Decision 9 December 2004
Counsel for the Applicant Mr Ross Hart
Solicitor for the Applicant Rae and Partners
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans’ Affairs
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