Burge and Repatriation Commission
[2000] AATA 1128
•20 December 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1128
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/479
VETERANS' APPEALS DIVISION )
Re LESLIE BURGE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B. H. Pascoe, Senior Member Mr I. L. G. Campbell, Member Assoc. Professor J. Maynard, Member
Date20 December 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
....…(Sgd) B. H. Pascoe.............
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether conditions war-caused – cerebral haemorrhage, generalised anxiety disorder, varicose veins left leg – whether Statements of Principles met – whether cerebral ischaemia – consumption of alcohol – whether diagnosis correct – whether clinical onset of generalised anxiety disorder within two years of stressful event – prior acceptance of varicose veins right leg – whether left leg must now be accepted
Veterans' Entitlements Act 1986
Statements of Principles
Instrument No. 142 of 1996 as amended by Instrument No. 195 of 1996 concerning cerebrovascular accident
Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995 concerning generalised anxiety disorder
Instrument No. 3 of 1995 concerning varicose veins
REASONS FOR DECISION
20 December 2000 Mr B. H. Pascoe, Senior Member Mr I. L. G. Campbell, Member Assoc. Professor J. Maynard, Member
This is an application to review a decision of the Veterans' Review Board ("VRB") dated 17 November 1998 which affirmed a decision of the respondent of 7 July 1997 that claimed conditions of intracranial haemorrhage, mild anxiety disorder and varicose veins left leg were not war-caused. The VRB assessed the rate of pension at 30% in respect of the veteran's accepted disabilities of bilateral sensorineural hearing loss, varicose veins and dermatitis right leg and gastro-oesophageal reflux disease. The hearing of an application in relation to chronic solar skin damage was adjourned. On 13 May 1999, the respondent accepted the claim for chronic solar skin damage and increased the pension to 40% of the general rate.
At the hearing the applicant was represented by Mr A. Lopez of counsel and the respondent by Ms R. Casamento, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Mr Burge; his wife; Professor K. Myers, a general and vascular surgeon; Dr E. Cole, a consultant psychiatrist, and Dr K. Byrne, a clinical psychologist.
Mr Burge served in the Australian Army from 30 October 1941 to 10 April 1946 and the whole of his service constituted operational service under the Veterans' Entitlements Act 1986 ("the Act"). He was born on 22 February 1921 and was 79 years of age at the date of the hearing. He was the youngest of four children. His mother died when he was eighteen months of age. He was placed in homes until nine years of age when he lived with his father and stepmother. At 14 years of age he and his elder brother boarded until his brother married and he then lived with that brother. He commenced as an apprentice butcher at age 14 and, after completion worked with Kia Ora until joining the Army. After the Army he worked with his brother as a butcher for some fifteen years then as a manager for two large chains of butchers until retirement at age 62. He has been married for 53 years and has four children.
Mr Burge served in the Army as a driver in Darwin and Morotai primarily driving ambulances. He referred to one incident when he was required to transport a very badly burned man to Adelaide River hospital quite some distance and is still unaware of whether the man survived. On another occasion during the rainy season and travelling on dirt roads, the ambulance overturned and it took Mr Burge a month before he could return to driving. In Morotai, Mr Burge said that he was upset seeing and transporting refugees returning from Japanese prison camps, many on stretchers and many children in very poor condition. He was upset also in seeing Japanese prisoners being beaten with baseball bats.
Prior to the hearing, the applicant provided a statement concerning his drinking and smoking. It stated:
"1.I served in the Australian Army from 30 October 1941, to 10 April 1946. I served in the Northern Territory and in the South West Pacific Area, and have rendered operational service.
2.I was only an occasional drinker prior to war-service.
3.When I joined up and went to Seymour I was exposed to beer and started to drink regularly there. I would drink two 26oz bottles of beer per day, through peer pressure and to relieve stress.
4.I was in Darwin when it was bombed and my drinking there increased accordingly.
5.On Morotay [sic], we were allocated two 26oz bottles of beer per day. I would drink these and buy more.
6.After service I continued at the same level and would drink more on weekends.
7.About 10 years ago I reduced my alcohol intake because of my stomach.
8.SMOKING – I commenced smoking prior to the Army, but was a very light smoker, smoking less than 10 cigarettes per day.
9.When in the Army and training, I increased my cigarette consumption to 15 per day.
10.On Morotai I increased my smoking habit to 25 per day through stress, and continued to smoke 25 cigarettes or more per day until 1989, when I ceased smoking."
In his oral evidence, Mr Burge denied that he had given a history to Dr Byrne of drinking prior to Army service. Dr Byrne had stated in his report:
"Mr Burge began drinking at the age of about seventeen, and in the couple of years prior to his Army service he would drink each day at home, about half a dozen bottles of beer each week. He stated he had never been drunk before he joined the Army, and did not go to the pub to drink."
Mr Burge agreed that his statement of being allocated two bottles of beer per day was incorrect and the allocation was two bottles per week. However, he maintained that he was able to buy additional beer from other Army personnel who did not drink. He accepted that there would have been periods of a week when he was working and did not drink. Mr Burge said that, after the war he would go to the hotel after work approximately three times per week and have 6-8 glasses of beer and he would normally drink at home with his evening meal. At times, he would drink at lunchtime. He did not believe that his drinking had any detrimental effect on his work, socially or at home. Since his retirement, he occasionally drinks with his "mates" at the hotel or at home. In relation to his smoking, Mr Burge could not explain why the clinical notes of the Repatriation General Hospital in 1987 described him as a non-smoker and a report from the neurology resident stated that "he is a reformed smoker 30 years ago". He had been admitted to hospital in February 1987 with a diagnosis of a right cerebellar bleed which resolved.
Mrs Burge said that she first met Mr Burge 25 days prior to his war service. She saw him daily, became engaged prior to his departure and they were married three months after his return. She believed that he was more subdued after his return. He kept a lot to himself and did not speak of his war experiences. Particularly after his cerebral haemorrhage, he was easily agitated and argumentative at times and the children noticed a difference in him.
Professor Myers examined Mr Burge on 12 November 1999 and provided a report dated 17 December 1999. After referring to a history of having had a stroke some 12 years prior, Professor Myers noted:
"… He states that he was told his stroke was due to a clot on the back of the head. Apparently this had resulted in collapse and vomiting but did not leave him with any ongoing motor sensory, visual or speech disturbance. However, he has subsequently been troubled by episodes of vertigo which occur up to two or three times a week and which is moderately well controlled by taking Stemetil. Early on he had flashes before his eyes but these have disappeared."
Later in his report, Professor Myers said:
"He certainly has hypertension at the present time and I see no reason to believe that he has not suffered from hypertension for many years given that I understand that he was previously on treatment for this condition. I think that the hypertension was the major factor in causing the stroke.
Past smoking habits may well have contributed to the problem as well. I think that a major factor in the development of hypertension is obesity (he is 85kg weight) which in turn could well be in large part, associated with his high alcohol intake since the time of war service. His smoking activities were clearly accelerated by his experiences during the war."
In his oral evidence, Professor Myers felt that there had been a possible combination of cerebral ischaemia and cerebral haemorrhage. The symptoms of vertigo were likely to be ischaemic but vertigo can be from other causes and he accepted that there was no record of ischaemic symptoms in the hospital records of the time.
Dr Cole examined Mr Burge on 16 November 1999 and provided a report dated 14 December 1999. He was of the opinion that Mr Burge is suffering from a mild generalised anxiety disorder. Dr Cole noted that "He would appear to have had few in the way of nervous symptoms upon his discharge from the Army and many of his current symptoms have emerged only in comparatively recent years." Nevertheless, Dr Cole considered that it could "…reasonably be postulated that his war time experiences rendered him more vulnerable to the development of a nervous disorder in later life than might otherwise been the case". In his oral evidence, Dr Cole accepted that it would be difficult to establish a diagnosis of generalised anxiety disorder within two years of Army service.
Dr Byrne examined Mr Burge on 9 November 1999 and provided a report dated 12 November 1999. In his opinion, Mr Burge did not display the symptoms of generalised anxiety disorder. He considered that, notwithstanding a difficult childhood and some painful memories of Army service, Mr Burge had been emotionally resilient with a successful career and a strong and happy marriage and family life. He was of the opinion that any current symptoms of mood swings and sleep disturbance were common following a cerebral haemorrhage.
Section 120(3) of the Act requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of the veteran's operational service. Under section 120A, if there is in force a SoP issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoPs here are those concerning cerebrovascular accident (Instrument No. 142 of 1996, as amended by Instrument No. 195 of 1996), generalised anxiety disorder (Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995) and varicose veins (Instrument No. 3 of 1995). Each SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.
For the applicant it was submitted that he satisfied the SoP for cerebrovascular accident (No. 142 of 1996) and either factor 5(d) or 5(j). Factor 5(d) states "regularly consuming alcohol of at least 250g/week for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident". Factor 5(j) states:
"(j)for cerebral ischaemia only, smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; …"
It was submitted further that the applicant satisfied the SoP for generalised anxiety disorder (No. 48 of 1994) and the factor of "experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder". In relation to the claim for varicose veins left leg, it was submitted that, as the right leg had been accepted as war-caused, it was appropriate to accept the left leg also. Mr Lopes could not point to any specific reason satisfying the SoP for varicose veins (No. 3 of 1995).
For the respondent it was submitted that, while Mr Burge may have consumed the relevant quantity of alcohol, that consumption was not linked with service but a level of drinking commenced pre-service and continued within the normal range of persons in the form of employment and in the era of the applicant. It was argued that factor 5(j) of the SoP relating to cerebrovascular accident was limited to cerebral ischaemia only and it was purely speculation that Mr Burge may have suffered ischaemia. It was noted that no such diagnosis was suggested by the contemporaneous hospital reports and in a letter from Dr Gilbert, neurology resident, of 13 April 1987 it was stated that the haemorrhage "radiologically seems to be more suggestive of primary haemorrhage rather than a haemorrhagic infact". The respondent submitted that the evidence did not support a diagnosis of generalised anxiety disorder and, even if such a diagnosis was possible now, there was no support for such a diagnosis within two years of the accepted stressful events during service. In relation to the claim for varicose veins left leg, the respondent submitted that Mr Burge did not satisfy the relevant SoP. While it was acknowledged that varicose veins of the right leg had been accepted, this occurred many years ago and prior to the introduction of the SoPs.
For the Tribunal to accept Mr Burge's cerebral haemorrhage as war-caused, it must be satisfied that one of the factors in the SoP is satisfied and, further, that such factor can be accepted as war-caused. Factor 5(j) can be satisfied only if a diagnosis of cerebral ischaemia is correct. While there are comments in the contemporaneous medical records of vertigo which can be a symptom of ischaemia, it can, as stated by Professor Myers, be a symptom of ear problems or other conditions. At the highest, Professor Myers felt that there was a possibility of cerebral ischaemia. Given that this is purely speculation and the contemporaneous medical records do not support such a diagnosis, the Tribunal is unable to find sufficient grounds to accept a condition of cerebral ischaemia. Consequently, factor 5(j), bringing smoking in as a factor, is not satisfied. It appears that the evidence does not support a reliance on factor 5(d). Mr Burge may have consumed at least 250g/week of alcohol for a continuous period of at least one year before February 1987. This consumption is equal to 25 standard alcoholic drinks per week or some 3.5 per day. Mr Burge said that he reduced his intake of alcohol "about ten years ago" because of stomach problems. He said that, prior to his cerebral haemorrhage he bought cans or bottles of beer at the supermarket to drink at home. For the whole of the year before February 1987, Mr Burge was retired from employment and his evidence was that, after retirement, he drank occasionally with friends but mainly drank at home with meals. As a consequence, there must be some doubt as to whether his consumption in that year was at the level required by the SoP. More importantly, the Tribunal needs to be satisfied that such level of drinking can be connected with war service. In his statement, Mr Burge said that he was only an occasional drinker prior to war service. Dr Byrne took a history of beginning drinking at 17 approximately six bottles a week, Dr Cole had a history of not drinking before service and Professor Myers had a history of being a non-drinker before joining the Army. Mr Burge corrected his statement of an allocation of two bottles per day to two per week during service and accepted that there were periods of a week without beer. His level of consumption after service appeared to be consistent with his occupational and social environment and not seen by himself, his wife or others as being excessive or abnormal. We are satisfied that his alcohol consumption in the year prior to the cerebral haemorrhage was not related to his Army service even if the level of consumption was sufficient to satisfy factor 5(d) of SoP Instrument No. 142 of 1996.
In relation to the claim for generalised anxiety disorder, the Tribunal has considerable doubt that such a diagnosis can be accepted. The definition of the disorder in the SoP (Instrument No. 48 of 1994) refers to:
"(a)excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least six months, about a number of events or activities (such as work or study), which:
(i)the person finds difficult to control; and
(ii)…
…
(v)either the anxiety or worry, or physical symptoms, cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; …
(b) …
…"
The evidence of Mr and Mrs Burge did not indicate that such a definition was satisfied. Dr Cole thought that he was suffering from a mild anxiety disorder but accepted that many symptoms have emerged in comparatively recent years only. Dr Byrne had no doubt that Mr Burge was not suffering from generalised anxiety disorder and any worry was not excessive but normal for his personality type and his age. Even if we could be persuaded that a diagnosis of generalised anxiety disorder can be made out, and we are not, even Dr Cole has difficulty in attributing a clinical onset of the disorder within two years of any stressful event during service. As a consequence, it is clear that Mr Burge does not satisfy the SoP.
The claim for varicose veins left leg cannot succeed. It was accepted by Mr Lopes that the relevant SoP (Instrument No. 3 of 1995) could not be satisfied. The sole argument in favour of the claim was that the equivalent condition of the right leg had been accepted as war-caused. There is no difficulty in accepting that the position is anomalous. However, it would appear that the right leg was accepted by the respondent many years ago and before 1 June 1994 when section 120A of the Act commenced to apply. Any claim after that date has to be upheld by a SoP if one is in force relative to the claimed condition. The claim regarding the left leg was not made until 6 January 1997. Whilst agreeing that it may be difficult for Mr Burge to understand the acceptance of a condition in one leg but not the identical condition in the other leg, it is likely that he was fortunate to have one leg accepted when it was. The Tribunal has no power to ignore the legislation which in this must cause the denial of the claim for varicose veins left leg.
It follows from the foregoing that the decision under review should be affirmed.
I certify that the seventeen (17) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Mr I. L. G. Campbell, Member
Assoc. Professor J. Maynard, MemberSigned: .....................................................................................
Personal AssistantDate/s of Hearing 26 September 2000
Date of Decision 20 December 2000
Counsel for the Applicant Mr A. Lopez
Solicitor for the Applicant De Marchi and Associates
Solicitor for the Respondent Ms R. Casamento, Departmental Advocate
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