Bond and Repatriation Commission

[2004] AATA 108

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 108

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/806

VETERANS' APPEALS  DIVISION		)
Re		STANLEY BOND

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member KL Beddoe

Date6 February 2004 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................(Sgd)...........................

KL Beddoe
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether the applicant suffers from Bronchitis-Acute and Chronic Bronchitis and Emphysema – whether applicant’s condition is a war caused disability

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

Senior Member KL Beddoe          

1.      The applicant made a claim for acceptance of Bronchitis as a war caused disability on 7 January 1999. By a letter dated 24 February 1999 the respondent Commission refused the claim.  In doing so the respondent diagnosed:-

(a)Bronchitis-Acute; and

(b)Chronic Bronchitis and Emphysema.

2.      By application dated 22 September 1999 the applicant sought review by the Veterans’ Review Board. By a decision notified on 21 August 2000 the Board decided to affirm the decisions under review.  On 1 September 2000 the applicant’s solicitors applied for review in this Tribunal.

3.      At the hearing (on 11 March 2003 and 14 November 2003) Mr O’Gorman appeared for the applicant and Mr Kelly represented the respondent Commission.

4. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T-documents and further documents were tendered and marked as exhibits.  Oral evidence was given by the applicant, Dr Heiner, a consultant thoracic physician and sleep physician, and Dr McEvoy, a consultant respiratory physician.

5. The applicant served in the RAAF from 15 May 1943 to discharge on 8 May 1946. Part of this service was in New Guinea so that the applicant’s service is operational service in accordance with section 6A of the Veterans’ Entitlements Act 1986 (“the Act”).

6.      The applicant’s musterings in the RAAF included working on runways in close proximity to aircraft with consequential exposure to aircraft fumes.  The applicant was also involved with gas tests at least twice (Ex. A).

7.      The applicant said, and I accept, that he was always conscious of bronchial conditions suffered because of a family history of tuberculosis.  While stationed at RAAF Sandgate for recruit training, he reported sick and was admitted to hospital.   On examination he was found to have suffered crepitations and bronchi on both lung fields with a dry cough, in the month following the month of enlistment.  Reason for admission was “measles” (T4/8-9).  In his oral evidence the applicant said he first observed that he had a lung condition in May 1943.  No chest condition was noted in the medical examination on enlistment (20 April 1943).  The family history of tuberculosis was however noted and a chest examination conducted (T4/10-11).

8.      It is apparent that exposure to gas during the two gas tests occurred at an uncertain time but while posted at RAAF Sandgate.  The exposure to aircraft fumes occurred while posted at the following locations for the periods of time shown:

Garbutt          10.12.43 to 10.2.44

Nadzab         13.4.44 to 19.6.44

Hollandia      20.11.44 to 18.10.45

(T4/43)

9.      The medical examination details, prior to discharge, are recorded at T4/203.  There is no mention by the applicant or the medical officer of any chest complaint.  The applicant noted episodes of malaria. X-ray of the chest on 3.5.46 is noted as “Result – Pass.”

10.     Exhibit 1 is a copy of a medical history sheet in the applicant’s name completed in June 1974.  It is an extensive report which includes reference to the respiratory system as follows:

“no cough – no sputum – no LOB (loss of breath) on hills and steps.”

And also in relation to the chest notes “air entry good.”

The Medical Evidence

11.     The applicant was hospitalised in Madang (17.10.44 to 19.10.44) with a final diagnosis of “Upper Respiratory Tract Infection, non specific”.  On examination the medical officer noted, inter alia, “no abnormal physical signs in the chest” (T4/6).

12.     A lung function test performed at the Holy Spirit Lung Function laboratory resulted in a report dated 10 February 1999 which included “mild impairment of lung function.  No change after bronchodilator. Results consistent with a restrictive process”.

13.     The results of that test are consistent with the applicant’s history of attendance at his general practitioner (T4/37-38).

14.     Exhibit 4 is a copy of a report by Dr O’Connell of a CT scan of the Thorax on 16 May 2001, at the request of the Department of Veteran’s Affairs.  Dr O’Connell records his consideration of the scan as follows:-

“No significant abnormality has been demonstrated other than a focus of calcification involving the right hemidiaphragm pleura.”

15.     Dr Heiner made four written reports to the applicant’s solicitors (Exs. B, C, D and E) and also gave oral evidence.  Dr Heiner noted a long history of recurrent chest infections which invariably follow an upper respiratory tract infection.

16.     Dr Heiner initially diagnosed the applicant as having bronchial asthma and that exposure to aircraft engine fumes together with exposure to gas in the gas tests would be precipitating agents.

17.     On his oral evidence Dr Heiner said he believed that the applicant’s diagnosis should be “asthma superimposed on mild restrictive disease”..  He said that the presence of the restrictive disease was not inconsistent with a diagnosis of asthma – he said in effect that the conditions may co-exist.  Dr Heiner also said, as I understand him, that the asthma can be triggered by exposure to gases or fumes or by the common cold or other upper respiratory tract infection or by measles which commonly has an upper tract infection.

18.     In so far as the records for the applicant suggest that he suffered from bronchitis, Dr Heiner said that the condition was correctly diagnosed as asthma.

19.     A somewhat different view is found in the evidence of Dr McEvoy.  Exhibits 2,3,5 and 6 are reports by Dr McEvoy to the Department of Veterans’ Affairs.  Dr McEvoy was initially uncertain as to diagnosis although he did consider that the applicant did not have asthma nor did he have emphysema.

20.     In his oral evidence Dr McEvoy said in effect, that the available lung function test results were inconsistent with asthma because they showed constant results over eighteen months and because there is consistently no response to administered bronchodilator tests.  He expressed the opinion that the applicant suffers from another respiratory condition part of which is recurrent bronchitis with prominent respiratory symptoms associated with infection and part of which is loss of lung capacity for reasons that are unexplained - something which is however inconsistent with asthma which causes increased lung capacity.

21.     In the course of cross-examination of Dr McEvoy by Mr O’Gorman the following exchange occurred:-

“Q.      Certainly, but I’m referring to the reference to the symptoms appear to be quite intermittent and would equally fit a diagnosis of recurrent or intermittent bronchial asthma?---Yes.

Q.       What are the symptoms you are referring to that would equally fit a diagnosis of recurrent of intermittent bronchial asthma?---Well, those reported from the King Street Medial Centre of recurrent bronchitis and wheezing.

Q.       Right, so, can I take it from that sentence – I’ll make it clear what sentence I’m referring to?---Yes.

Q.       I’ve just read there the symptoms---?Yes.

---appearing to equally fit a diagnosis of recurrent or intermittent bronchial asthma?---Yes.

Q.       Is what you’re saying there is, look, I adhere to my original diagnosis, however I acknowledge that the symptoms would equally fit a diagnosis of recurrent or intermediate bronchial asthma?---That’s exactly what I’m indicating.

Q.       Yes?---That either diagnosis would satisfy those symptoms.

Q.       Yes, okay. And with recurrent or intermittent bronchial asthma, you would expect to see increased responsiveness of the bronchiole to various stimuli?---Yes.

Q.       Those stimuli manifested by recurrent attacks of paroxysmal dyspnoea?---Dyspnoea, yes.

Pardon my pronunciation?---Yes.

Q.       And wheezing due to spasmodic contraction of the bronchiole?---I’m – yes, I’m not sure what you want me to say about this.

Q.       Right, that those symptoms that I’m reading out fit this diagnosis of recurrent or intermittent asthma?---Paroxysmal dyspnoea is different from intermittent wheezing.”

Consideration

22.     This is a case where there is a real issue as to the correct diagnosis of the claimed condition.  As Mr O’Gorman acknowledged the Tribunal has the opinions of two consultant physicians both expert in respiratory medicine.  Those opinions diverge as to the correct diagnosis. Dr Heiner has the advantage of treating the applicant on a number of occasions commencing in 2001.  Dr McEvoy has the advantage of independence because he was only required to prepare a medico legal report and was not the applicant’s treating physician.  Both doctors had access to reports of scans and lung function testing.

23.     While the applicant and the respondent had dealt with this claim on the basis that the applicant suffered a condition diagnosed as bronchitis, the applicant now says that the correct diagnosis is asthma.  The applicant also submits that the applicant was exposed to aircraft fumes on three postings requiring him to work in places proximate to military aerodrome runways.

24.     The respondent did not make submissions as to the correct diagnosis of the condition but submitted that the applicant did not seek medical treatment for respiratory problems on those postings where he asserts he was exposed to aircraft fumes.

25.     As Mr Kelly submitted the question of diagnosis of the condition is now a matter for the Tribunal.

26.     In the result, I have come to the view that diagnosis depends on the results of the objective lung function testing.  This was explained by Dr McEvoy during cross-examination by Mr O’Gorman as follows:-

“Q.      Now, again, that is not inconsistent with asthma, either, is it?---Totally inconsistent.

Q.       Totally inconsistent?---Yes.  As I was – I was trying to explain before, in asthma, the lungs become hyper-inflated due to narrowed airways, so that any asthmatic with abnormal lung function will have an increase in lung volumes.  Mr Bond has consistently shown a marked reduction in lung volumes over the five years that he’s been having lung function tests, and that is unexplained by asthma.

Q.       But it’s not inconsistent with, is what I---?---It’s totally inconsistent with asthma.  It’s the reverse of what you would expect.

Q.       Well, can we compare those tests with the tests you were provided with today?---Yes.

Q.       I think you indicated earlier – you agreed earlier that the tests you were provided with today are largely consistent with those earlier tests; is that correct?---Yes.  There are – and there are two lots of tests that I’ve been provided with today.  One is a series of simple tests on the vitalograph, which measures spirometry, and the other are two sets of complete lung function tests, which measure lung volumes.  And as you can see, the total lung capacity is 77 per cent of predicted on one, and 78 per cent of predicted on the other.  If he had asthma, I’d expect that reading to be 110, 120, 130 per cent – depending on its severity, of course.

Q.       Depending on the severity of the asthma?---Yes.

Q.       Yes?---It could be normal, but it wouldn’t be reduced.  So there has to be another process explaining why he has small lungs.

Q.       But it can be with the presence of asthma, though, can’t it?---There’s nothing on those tests that suggests that he has asthma, and everything points to the opposite.  There’s not one test result there that indicates asthma.  The forced expiratory ratio is better than normal; the lung volumes are reduced.”

27.     In the result, I am satisfied on the balance of probabilities that the applicant does not suffer from asthma and does suffer a form of recurrent bronchitis and I so find.  The records of the King St Medical Centre do not support a finding of chronic bronchitis.

28.     I have assumed, in the applicant’s favour, that the recurrent bronchitis comes within the definition of “chronic bronchitis” in Statement of Principles No 73 of 1997.  That view is supported by the evidence in particular the laboratory testing, but is not supported by the evidence as to diagnosis.

29.     For present purposes I accept the applicant’s assertion that he was exposed to aircraft fumes on a regular basis while servicing at Garbutt, Nadzab and Hollandia.  I also accept for present purposes the applicant’s assertion that the claimed condition had its genesis in this exposure to aircraft fumes and to exposure to gas while stationed at RAAF Sandgate.

30.     The hypothesis is that these exposures to aircraft fumes and gas during gas mask testing caused the claimed condition.  That is not a tenuous or fanciful hypothesis, it is supported by material before the Tribunal.

31. To be a reasonable hypothesis (s.120A of the Act) the hypothesis must, on the view I have taken so far, satisfy the provisions of Statement of Principles No. 73 of 1997 (“the instrument”) concerning Chronic Airflow Limitation and Chronic Bronchitis and Emphysema.

32.     In that regard I have considered each of the factors in clause 5 of the instrument to determine whether one of the factors is related to the applicant’s operational service.

33.     The applicant suffered acute respiratory symptoms on two occasions during his service (deemed to be operational service).  The first was a consequence of contracting measles and so cannot be as a consequence of being exposed to airborne irritants.

34.     The second occasion was in Madang and the applicant did not assert that he was exposed to airborne irritants there.  He was unable to say where the airport runway was in relation to his place of work.

35.     In relation to the exposure to gas at Sandgate it was not asserted that it was Mustard Gas or Lewisite and it is not asserted that there was a relevant attack of acute respiratory symptoms at Sandgate once the measles episode is discounted.

36.     It follows, in my view that I cannot be satisfied that any of the factors in clause 5 of the instrument are satisfied on the facts as asserted by the applicant.

37.     If I am wrong to assume that the claimed condition is within the terms of the instrument then I could not be satisfied that there is no sufficient ground for accepting the hypothesis as a reasonable hypothesis.

38.     The refusal of the claim for “Bronchitis” by the Repatriation Commission is affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe

Signed:         
  Associate

Date/s of Hearing  11 March 2003, 14 November 2003
Date of Decision  6 February 2004
Counsel for the Applicant         Mr D O'Gorman
Solicitor for the Applicant          Gilshenan and Luton
For the Respondent                  Mr J Kelly, Departmental Advocate