Bourke and Repatriation Commission (Veterans' entitlements)

[2019] AATA 1597

Bourke and Repatriation Commission (Veterans' entitlements) [2019] AATA 1597 (3 July 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/6176

Re:Simon Bourke

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:The Hon. Matthew Groom, Senior Member

Date:3 July 2019

Place:Hobart

The Tribunal’s decision in relation to the preliminary question is that vestibular migraine is not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or the Statement of Principles concerning Migraine (No. 57 of 2009).

...................................[sgd]..................................

The Hon. Matthew Groom, Senior Member

VETERANS’ AFFAIRS – veterans’ entitlements – preliminary questions – whether claimed condition of vestibular migraine covered by statement of principles – applicable statement of principles – Statement of Principles No 8 of 2018 – Statement of Principles No 57 of 2009 – migraine – vestibular migraine – claimed condition not covered by either statement of principles

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

Repatriation Commissions v Keeley [2000] FCA 532; (2000) 98 FCR 108

SECONDARY MATERIALS

Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018)
Statement of Principles concerning Migraine (No. 57 of 2009)
International Statistical Classification of Diseases and Related Health Problems (10^th Revision, Australian Modification)

Explanatory Statement, Statement of Principles Concerning Migraine (Balance of Probabilities) (No. 8 of 2018) (Cth)

REASONS FOR DECISION

The Hon. Matthew Groom, Senior Member

3 July 2019

INTRODUCTION

1. The substantive application in this matter is for a review of a decision of the Veterans’ Review Board (the VRB) made on 23 August 2017 denying the Applicant’s claim for disability pension.

2. The Applicant’s original application made on 6 February 2015 was for disability pension in respect of ‘inner ear problems’ diagnosed as ‘inner ear disorder. Possibly Meniere’s Disease’.

3. On 12 March 2015 a delegate determined the claim as one relating to Meniere’s disease, sensorineural hearing loss and tinnitus. The claim relating to sensorineural hearing loss and tinnitus was accepted but the claim relating to Meniere’s disease was rejected on the basis that it was not related to service.

4. The Applicant sought review by the VRB. The VRB’s decision was to set aside the delegate’s decision and substitute it for a new decision that:

   (i)The Applicant’s diagnosed conditions are otitis media, otitic barotrauma and vestibular migraine;

   (ii)The Applicant suffers no current incapacity from the conditions of otitis media and otitic barotrauma; and

   (iii)The Applicant’s vestibular migraine is not related to his defence service.

5. In making its decision the VRB was reasonably satisfied that the Applicant suffered from vestibular migraine and that the Statement of Principles concerning Migraine (No. 57 of 2009) applied to the condition.

6. The Applicant subsequently made application for a review of the VRB decision before this Tribunal. One of the contentions put by the Applicant in seeking a review of the decision was that the Statement of Principles concerning Migraine (No. 57 of 2009) did not apply to vestibular migraine. The Respondent continues to contest this point. Both parties accept that there is no Statement of Principles specifically for vestibular migraine and that the Repatriation Medical Authority (the RMA) has not declared that it does not propose to make a Statement of Principles concerning vestibular migraine.

7. The Tribunal has agreed to consider a preliminary question relevant to the review, namely, whether vestibular migraine is covered by the Statement of Principles concerning Migraine.

8. The preliminary hearing was held on 19 June 2019. The Applicant, Dr Bourke, appeared in person together with his advocate, Mr Fitz. The Respondent was represented by Mr Wilson of the Australian Government Solicitor. The Tribunal heard oral evidence from two expert witnesses, Dr Kelley, a medical doctor and contracted medical adviser with the Department of Veterans’ Affairs, and Dr Szmulewicz, a Neurologist and Neuro-otologist at the Royal Victorian Eye and Ear Hospital. In considering this matter the Tribunal has also had regard to documentary material tendered into evidence which included:

   (i)Exhibit A1 – Letter from Dr Szmulewicz dated 26 March 2018;

   (ii)Exhibit A2 – Letter from Dr Szmulewicz dated 27 June 2018;

   (iii)Exhibit A3 – Letter from Dr Szmulewicz dated 10 March 2019;

   (iv)Exhibit A4 – Fact Sheet on vestibular migraine published by the Royal Victorian Eye and Ear Hospital;

   (v)Exhibit R1 – Statement of Dr Jon Kelley signed and dated 1 May 2018, with annexures A to E;

   (vi)Exhibit R2 – International Classification of Headache Disorders (ICHD-3);

   (vii)Exhibit R3 – Article published on ‘UpToDate.com’ titled ‘Vestibular Migraines’;

   (viii)Exhibit R4 – Article entitled ‘Vestibular Migraine or Migraine Associated Vertigo (MAV)’ by J Kramer and associated documents from the Vestibular Disorders Association (VEDA) website; and

   (ix)Exhibit R5 – Email from S Lochel, Information Manager at the Repatriation Medical Authority dated 12 December 2017 responding to query from D Wilson regarding vestibular migraines and the Statements of Principles.

9. At the hearing a question was raised as to which Statement of Principles concerning Migraine it was appropriate for the Tribunal to consider. The current Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) came into effect on 29 January 2018 and remains in force (the current SoP). The Statement of Principles in force at the time of the primary decision was Statement of Principles concerning Migraine (No. 57 of 2009) (the former SoP). The Tribunal has decided to proceed on the basis of the current SoP but it does so mindful of the potential for an accrued right in respect of the former SoP. The Tribunal will address this issue further on in these reasons.

   EVIDENCE AND CONSIDERATION

10. The evidence before the Tribunal, including the oral testimony of both expert witnesses, was that while vestibular migraine is a recognised medical condition its recognition is relatively recent. The condition is generally described as involving a combination of episodic vertigo with migraine headaches or other clinical features of migraine such as photophobia, phonophobia and visual aura. There was evidence that understanding of its pathophysiology is not well developed and that its relationship to other migraine-related conditions, as well as the understanding of causal factors, remains uncertain.

11. The Respondent tendered an article titled ‘Vestibular migraine’ by Doctors Robertson and Eggers published on the UpToDate.com website (Exhibit R3, the Robertson-Eggers article), which noted the following in relation to the condition:

    ... it remains a poorly defined and understood entity. Factors that have hindered the study of vestibular migraine include clinical manifestations that vary and overlap with other vestibular disorders, poor understanding of underlying pathophysiology of migraine, a lack of biological markers or specific tests, lack of standard nomenclature, and only recently developed and evolving consensus diagnostic criteria.

12. While vestibular migraine is listed in the Appendix to the International Headache Society’s classification ICHD-3 (Exhibit R2) it has not yet been included in the main list of recognised conditions. The Appendix to the classification list explains the context for including conditions in the Appendix as:

    An Appendix was first added to the second edition of The International Classification of Headache Disorders (ICHD-II). It had several purposes, which are retained in ICHD-3.

    The primary purpose of the Appendix is to present research criteria for a number of novel entities that have not been sufficiently validated by research conducted so far. The experience of the experts in the Classification Committee, and publications of variable quality, suggest that there are still a number of diagnostic entities that are believed to be real but for which better scientific evidence must be presented before they can be formally accepted. Therefore, as has happened between ICHD-II, ICHD-3 (beta) and ICHD-3, it is anticipated that some disorders now in the Appendix will move into the main body of the classification at the next revision.

    In a few places the Appendix presents alternative sets of diagnostic criteria to those in the main body of the classification. This is again because clinical experience and a certain amount of published evidence suggest that the alternative criteria may be preferable, but the committee does not yet feel that the evidence is sufficient to change the main classification.

    Finally, the Appendix is used as a first step in eliminating disorders historically included as diagnostic entities in previous editions of ICHD, but for which sufficient evidence has still not been published.

13. The Appendix notes the following as the diagnostic criteria for the condition:

    A.At least five episodes fulfilling criteria C and D

    B.A current or past history of 1.1 Migraine without aura or 1.2 Migraine with aura.

    C.Vestibular symptoms of moderate or severe intensity, lasting between 5 minutes and 72 hours

    D.At least half of episodes are associated with at least one of the following three migrainous features:

    1.    headache with at least two of the following four characteristics:

    a)    unilateral location

    b)    pulsating quality

    c)    moderate or severe intensity

    d)    aggravation by routine physical activity

    2.    photophobia and phonophobia

    3.    visual aura

    E.Not better accounted for by another ICHD-3 diagnosis or by another vestibular disorder.

14. In the notes to the Appendix entry, the vestibular symptoms associated with the condition are stated to include:

    a)    spontaneous vertigo:

    -internal vertigo (a false sensation of self-motion)

    -external vertigo (a false sensation that the visual surround is spinning or flowing);

    b)    positional vertigo, occurring after a change of head position;

    c)    visually-induced vertigo, triggered by a complex or large moving visual stimulus;

    d)    head motion-induced vertigo, occurring during head motion;

    e)    head motion-induced dizziness with nausea (dizziness is characterised by a sensation of disturbed spatial orientation; other forms of dizziness are currently not included in the classification of vestibular migraine).

15. The notes to the Appendix also provide the following statement on the relationship between vestibular migraine and benign paroxysmal vertigo acknowledging the potential for overlap of the two conditions:

    While A1.6.6 Vestibular migraine may start at any age, ICHD-3 specifically recognises a childhood disorder, 1.6.2 Benign paroxysmal vertigo. The diagnosis requires five episodes of vertigo, occurring without warning and resolving spontaneously after minutes to hours. Between episodes, neurological examination, audiometry, vestibular functions and EEG must be normal. A unilateral throbbing headache may occur during attacks but it is not a mandatory criterion. 1.6.2 Benign paroxysmal vertigo is regarded as one of the precursor syndromes of migraine. Therefore, previous migraine headaches are not required for diagnosis. Since the classification of A1.6.6 Vestibular migraine does not involve any age limit, the diagnosis can be applied in children when the respective criteria are met, but only children with different types of vertigo attacks (eg, short-duration episodes of less than 5 minutes and longer lasting ones of more than 5 minutes) should receive both these diagnoses.

16. A fact sheet issued by the Royal Victorian Eye and Ear Hospital (Exhibit A4) describes vestibular migraine as:

    … a type of migraine that may or may not cause a headache, but can include a number of debilitating symptoms affecting balance, ears and vision.

    …

    The symptoms of vestibular migraine often occur without headaches.

    …

    During a vestibular migraine, symptoms may include:

    ·vertigo (a spinning sensation) and/or dizziness

    ·imbalance or unsteadiness

    ·feeling unable to tolerate movements such as bending down, looking up or turning the head, especially if they are quick

    ·sensitivity to light and/or noise and/or certain ‘busy’ visual environments (eg shopping centres)

    ·visual disturbance (bright/flickering lights or zigzag lines in the person’s vision, blurry or unclear vision)

    ·nausea and/or vomiting

    ·reduced or muffled hearing

    ·tinnitus (sounds such as ringing, buzzing or rumbling in the ear)

    ·a feeling of pressure or fullness in the ear.

17. The Tribunal now turns to the question of whether vestibular migraine is covered by the current SoP. In his evidence Dr Kelley told the Tribunal that, in his view, vestibular migraine is covered by the current SoP. He told the Tribunal that migraine was not a single condition but rather a general diagnostic term that covered a number of subtypes and that vestibular migraine was not expressly excluded from the definition adopted in the current SoP. Dr Kelley also told the Tribunal that he considered it administratively convenient to apply the current SoP as including vestibular migraine as not doing so could lead to inconsistent outcomes for similar conditions involving migraine depending on whether they proceeded on the basis of a diagnosis of migraine or vestibular migraine.

18. Dr Szmulewicz told the Tribunal that, in his view, the current SoP does not cover vestibular migraine because the definition adopted in it was focused on migraine headaches and vestibular migraine was a broader condition that did not necessarily involve migraine headaches.

19. In considering this question the starting point is the definition of migraine in the Statement of Principles itself. Subsection 7(2) of the current SoP defines migraine as:

    (a)means a condition which is characterised by recurrent episodes of headache that are most often unilateral, pulsatile, periodic and disabling, lasting 4 to 72 hours; and

    (b)excludes cluster headache, tension-type headache, headache attributable to structural abnormalities or inflammatory disorders of the head and neck, and headache attributable to systemic disease.

    Note 1: Typically, the headache is aggravated by routine physical activity, and may be accompanied by nausea, photophobia and phonophobia.

    Note 2: Some patients may experience visual or sensory symptoms, collectively known as an aura, that arise most often before the head pain, but can also occur during or afterward. Most commonly, the aura consists of visual manifestations, such as scotomas.

20. Both of the expert witnesses were strongly of the view that vestibular migraine does not fall within any of the express exclusions in subsection 7(2)(b). Having considered all of the evidence before it the Tribunal accepts this view. The question therefore is whether the condition can be said to fall within the words of subsection 7(2)(a). The Tribunal is satisfied that it does not. While the words of subsection 7(2)(a) describe a symptom of the condition, the words are far from a complete description of the condition itself. There is a self-evident connection between vestibular migraine and the type of migraine headaches described in subsection 7(2)(a). Migraine headaches are a symptom suffered by a significant proportion of those diagnosed with vestibular migraine but it is not a mandatory symptom for diagnosis. As Dr Szmulewicz pointed out in his oral evidence, a person can be diagnosed with vestibular migraine without experiencing any migraine-related headaches at all. The Robertson–Eggers article notes that ‘longer-lasting vestibular symptoms may stem from a process that parallels the headache phase of migraine but does not necessarily include headache.’

21. The condition of vestibular migraine is significantly broader than the definition of migraine included in the current SoP and importantly includes vestibular symptoms such as vertigo, dizziness and imbalance, which are not referred to in the current SoP definition. The diagnostic criteria and notes for vestibular migraine set out in the ICHD-3 Appendix listing and the fact sheet issued by the Royal Victorian Eye and Ear Hospital also support a conclusion that vestibular migraine is a broader and distinct condition to that defined in the current SoP.

22. At the very least there must be said to be uncertainty about whether vestibular migraine is within the definition of migraine included in the current SoP. Any such uncertainty can only be resolved by having regard to the intent and purpose of the Statement of Principles.

23. The power for determining a Statement of Principles is set out in the Veterans’ Entitlements Act 1986 (the Act). Section 196B of the Act relevantly provides that:

    Section 196B Functions of Authority

    …

    Determination of Statement of Principles

    …

    4If the Authority is of the view that on the sound medical‑scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:

    (a)eligible war service (other than operational service) rendered by veterans; or

    (b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or

    (ba)  peacetime service rendered by members;

    the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (c)the factors that must exist; and

    (d)which of those factors must be related to service rendered by a person;

    before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.

24. The Act makes clear that the purpose of the Statement of Principles regime is to provide an accepted evidentiary basis for determining the causal link between a known condition and service based on the RMA’s assessment of sound medical-scientific evidence. To infer an intent for the current SoP to apply to vestibular migraine when its diagnostic criteria are broader and distinct from those included in the definition adopted by the current SoP would clearly be inconsistent with the purpose of the Statement of Principles. In these circumstances the factors that may be relevant to establishing a causal link have the potential to be quite distinct and the scientific-medical evidence, while no doubt overlapping, would, at least in part, also be quite distinct.

25. The Act also makes clear that to infer an intent for the current SoP to apply to vestibular migraine the condition must have been specifically considered by the RMA in its process for determining the current SoP. If the RMA did not specifically consider the condition then to infer an intent for the current SoP to cover vestibular migraine would again be inconsistent with its stated purpose. The question then becomes whether vestibular migraine was specifically considered. There is no compelling evidence before the Tribunal to suggest that it was. The current SoP certainly does not include any express reference to vestibular migraine. It omits to include a number of symptoms relevant to the condition. Further, the fact that recognition of the condition is relatively recent and its pathophysiology is not well understood gives rise to even further doubt that it was specifically considered in determining the current SoP.

26. The definition of migraine included in the current SoP notes that migraine attracts ICD-10-AM code G43. That is a reference to the code for migraine included in the International Statistical Classification of Diseases and Related Health Problems, 10^th Revision, Australian Modification with an effective date of 1 July 2017. ICD-10-AM code G43 makes no specific reference to vestibular migraine or to any of the vestibular-related symptoms applicable to the condition. In his evidence Dr Kelley noted that the ICD classification is due to be revised by 2022 and he told the Tribunal that vestibular migraine may be included in the next edition. He also expressed a personal view that the condition could be considered to be within the G43.8 coding, which relates to other migraine-related conditions. However, whether vestibular migraine might be included in a future edition of the ICD classification does not address the intended coverage of the current SoP and the current G43.8 coding does not include any specific reference to the condition.

1. In his evidence Dr Kelley made reference to having asked a RMA researcher whether vestibular migraine was intended to be included in the current SoP and indicated that he was told by the researcher that it was intended to be included. The Tribunal places very little weight on Dr Kelley’s evidence in this respect given that it is clearly hearsay and the Tribunal has not had the benefit of hearing from the researcher directly. The Respondent also referenced an email from an Information Manager with the RMA expressing a view that the current SoP covers vestibular migraine (Exhibit R5). The Tribunal places no weight on the email. It is clearly not an authoritative statement of the RMA and it is also hearsay.

2. While acknowledging that vestibular migraine is related to migraine, in light of its broader and distinct diagnostic criteria, and in the absence of any compelling evidence that the condition was specifically considered by the RMA in its determination of the current SoP or was intended to be covered by it, the Tribunal is minded to resolve any uncertainty as to whether the current SoP applies to vestibular migraine in the negative.

3. For these reasons, the Tribunal is reasonably satisfied that vestibular migraine is not covered by the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018).

4. There is one final point for the Tribunal to address. As mentioned earlier in these reasons, at the preliminary hearing a question was raised regarding which version of the Statement of Principles it was appropriate to consider. The Tribunal has proceeded having regard to the current SoP. It does so on the basis of decisions of the Federal Court in Repatriation Commissions v Keeley (2000) 98 FCR 108 (Keeley) and in Repatriation Commission v Gorton (2001) 110 FCR 321 (Gorton). In Gorton, which considered Keeley, Allsop J (with whom Emmett J agreed) stated that (at [57]):

   ... notwithstanding the application of Keeley, I am of the view that the Tribunal is bound to apply the SoP current at the time of the hearing before it. That is, while I recognise that Keeley stands for the proposition that a claimant is entitled to an accrued right to have his or her claim considered and reviewed by the Tribunal on the basis of the SoP current at the time of the Commission's decision despite the later revocation of that earlier SOP, Keeley does not stand for the proposition that the SoP in force at the date of the Tribunal hearing must not be applied.

5. Following the preliminary hearing, at the invitation of the Tribunal both the Respondent and the Applicant made further submissions on which Statement of Principles should be considered by the Tribunal. In his submission the Applicant cited the decision in Gorton and sought confirmation that the Tribunal would proceed having regard to the former SoP on the basis of what he claimed was an accrued right. However, the Tribunal’s understanding of the Applicant’s position, properly understood, is slightly different to that expressed in the further submission. The Tribunal understands that the Applicant is seeking to have the Tribunal proceed with regard to the former SoP on the basis that it does not apply because it does not extend to cover vestibular migraine. As has already been made clear, the Tribunal has formed the view that the current SoP does not cover vestibular migraine and therefore it is difficult to see how an accrued right arises in respect of the former SoP in these circumstances. Nonetheless, even if the Tribunal accepted that the former SoP should be applied, the Tribunal’s conclusion would be the same – the former SoP does not apply to vestibular migraine. Paragraph 3 of the former SoP defines migraine as:

   (b)For the purposes of this Statement of Principles, “migraine” means a neurovascular condition in which there are periodic attacks, lasting 2 to 72 hours, of a symptom complex typically consisting of headache that is pulsatile and aggravated by physical activity, accompanied by nausea, photophobia and phonophobia. This definition excludes cluster headache; tension-type headache; headache attributable to structural abnormalities or inflammatory disorders of the head and neck; and headache attributable to systemic disease.

   (c)Migraine attracts ICD – 10-AM code G43.

   (d)In the application of this Statement of Principles, the definition of “migraine” is that given at paragraph 3(b) above.

6. Having carefully considered the definitions as well as hearing evidence from the two expert witnesses, the Tribunal is not satisfied that there is any material difference in the scope of the definition of migraine adopted in each of the current and former SoPs. There are some slight wording changes but they appear to be more focused on the adoption of a new template and some updated understanding of the pathophysiology relating to migraine, rather than any intention to materially change the scope of the conditions covered by the current SoP. This conclusion is further reinforced by the wording of the Explanatory Statement to the current SoP, which does not evidence any intention of a material change in its scope. Further, any uncertainty regarding the likelihood that the RMA specifically considered vestibular migraine is even more pronounced in respect of the former SoP. Again, any uncertainty should be resolved in the negative. For these reasons, the Tribunal is reasonably satisfied that vestibular migraine is also not covered by the Statement of Principles concerning Migraine (No. 57 of 2009).

   DECISION

7. Tribunal’s decision in relation to the preliminary question is that vestibular migraine is not covered by either the Statement of Principles concerning Migraine (Balance of Probabilities) (No. 8 of 2018) or Statement of Principles concerning Migraine (No. 57 of 2009).

33.  I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

.................................[sgd].................................

Associate

Dated: 3 July 2019

Date(s) of hearing:	19 June 2019
Date final submissions received:	21 June 2019
Applicant:	In person
Advocate for the Applicant:	Mr R Fitz, Launceston RSL
Counsel for the Respondent:	Mr D Wilson, Australian Government Solicitor