Burns and Repatriation Commission
[2008] AATA 1078
•2 December 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1078
ADMINISTRATIVE APPEALS TRIBUNAL )
)No 2004/00050 & 2005/1375
GENERAL ADMINISTRATIVE DIVISION ) Re JAMES BURNS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, MemberDate 2 December 2008
PlaceSydney
Decision The Tribunal sets aside the decision under review and decides instead:
i) Mr Burns suffers from malignant neoplasm of the prostate, anxiety disorder not otherwise specified, irritable bowel syndrome and haemorrhoids;
ii) Mr Burns’ malignant neoplasm of the prostate, anxiety disorder not otherwise specified and haemorrhoids are war-caused;
iii) Mr Burns’ irritable bowel syndrome is not war-caused;
iv) the date of effect of the substituted decision in respect of malignant neoplasm of the prostate and haemorrhoids is 7 December 2002;
v) the date of effect of the substituted decision in respect of anxiety disorder not otherwise specified is 12 August 2004.
....................SGD........................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Eligible War Service – Claim Malignant Neoplasm of the Prostate, Anxiety Disorder not otherwise specified and Haemorrhoids are war-caused - consideration of Statement of Principles – Stressor – Clinical Worsening - Increase in animal fat consumption – Clinical Onset of Conditions – the Decision under Review is Set Aside and substituted - Malignant Neoplasm of the Prostate- Anxiety Disorder not otherwise specified and Haemorrhoids are War-Caused.
Veterans’ Entitlements Act 1986 (Cth) sections 120(1); 196B(14)(d)
Statement of Principles concerning Malignant neoplasm of the prostate – Instrument No. 28 of 2005 or No. 84 of 1999 as amended by No. 69 of 2002.
Statement of Principles concerning Anxiety disorder not otherwise specified – Instrument No. 101 of 2007 or No. 1 of 2000.
Statement of Principles concerning Irritable bowel syndrome – Instrument No. 103 of 1996.
Statement of Principles concerning Haemorrhoids – Instrument No. 26 of 2004 or No. 13 of 2000.
Repatriation Commission v Deledio (1998) 83 FCR 82
Dunn v Repatriation Commission [2006] FCA 1703
Repatriation Commission v Tuite (1993) 39 FCR 540
Gorton v Repatriation Commission [2001] FCA 1194
Repatriation Commission v Yates (1995) 38 ALD 80
REASONS FOR DECISION
2 December 2008 Ms N Bell, Senior Member
Dr M E C Thorpe, Member1. Mr Burns served in the Royal Australian Air Force (RAAF) from 25 September 1950 until 8 July 1955. During that period he had operational service from 1 April 1953 to 30 May 1955 in Japan during the Korean War.
2. Mr Burns was a commissioned officer. At Rathmines in 1951, there was an incident in which he was exposed to gun noise. Mr Burns maintains he was not aware, at that point, that his hearing was impaired but noticed some symptoms. Before going to Japan on operational service, his administrative duties kept his exposure to aircraft noise at a moderate level. However, in Japan, as a disbandment officer, his exposure to aircraft noise was higher and, as he said, “disturbing”.
3. Mr Burns’ bilateral sensori-neural hearing loss with tinnitus was accepted as war-caused. He made a further claim for prostate cancer, irritable bowel syndrome and haemorrhoids on 7 March 2003. After concluding that the appropriate diagnoses are irritable bowel syndrome, malignant neoplasm of the prostate, benign prostatic hypertrophy and haemorrhoids, the Repatriation Commission delegate refused the claim.
4. On 12 November 2004 Mr Burns lodged another claim for deafness-induced distress. After concluding a diagnosis of adjustment disorder, the delegate refused the claim.
5. In this application, Mr Burns pursues his claims for malignant neoplasm of the prostate, irritable bowel syndrome and haemorrhoids, but not his claim for benign prostatic hypertrophy. He has also sought to have accepted a diagnosis of anxiety disorder not otherwise specified, in place of a diagnosis of adjustment disorder.
issues
6. The first question to be considered is the appropriate diagnosis of Mr Burns’ claimed and pursued conditions. His malignant neoplasm of the prostate was diagnosed at the Concord Prostate Centre in 2003 and we have no reason to doubt this diagnosis. His irritable bowel syndrome and haemorrhoids were considered by Dr Margaret Gillies, Gastroenterologist, in a report dated 8 April 2004, to have had onset during his teenage years and, again, we accept this diagnosis and opinion as to clinical onset. The psychiatric diagnosis, however, is an issue, with the Repatriation Commission contending that Mr Burns does not suffer from any psychiatric condition.
7. If we are reasonably satisfied that Mr Burns does suffer from a psychiatric condition, then we must consider whether that condition, however diagnosed, was war-caused. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before us conforms with one of the factors in the SoP. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused. In doing so we will follow the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
8. We will conduct a similar inquiry into war causation in respect of Mr Burns’ malignant neoplasm of the prostate, irritable bowel syndrome and haemorrhoids.
9. Mr Burns relies on particular factors in the SoPs applicable (in the alternative when new SoPs have been introduced since the date of claim) to his various claimed conditions. In summary they are:
Condition
Applicable SoP
Factor relied on
Anxiety Disorder not otherwise specified
No. 101 of 2007
Or
No.1 of 2000
6. (c)(iv) – experiencing a category 2 stressor (social isolation and inability to maintain friendships or family relationships) within the one year before the clinical worsening of anxiety disorder; or
5(a)(v) – experiencing a severe psychosocial stressor within the two years immediately before the clinical worsening of anxiety disorder.
Malignant Neoplasmof the Prostate
No. 28 of 2005
Or
No. 84 of 1999 as amended by No. 69 of 2002
5(c) – increasing animal fat consumption by at least 40 % and to at least 50 grams per day, and maintaining these levels for at least five years within twenty-five years before the clinical onset of malignant neoplasm of the prostate.
5(c) − increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
Irritable Bowel Syndrome
No.103 of 1996
5(d) – suffering a specified psychiatric condition within the six months immediately before the clinical worsening of irritable bowel syndrome.
Haemorrhoids
No. 26 of 2004
or
No.13 of 2000
5(f) − straining at stool due to constipation or diarrhoea, within the two weeks before the clinical worsening of haemorrhoids; or
5(f) - straining at stool due to constipation or diarrhoea, within the two weeks before the clinical worsening of haemorrhoids
(We note that, since the hearing of this application, a new SoP, No. 41 of 2008, was introduced on 2 July 2008. However factor 6(f) of that SoP is in identical terms to corresponding factors in its predecessors).
10. From this matrix, a range of issues arises for consideration. We note that, in accordance with the standard of reasonable hypothesis, we must not engage in fact finding. Rather, we must consider whether there is material before us that points to positive answers to the following questions:
Anxiety disorder
i) Does Mr Burns suffer from a psychiatric condition and, if so, does he suffer from anxiety disorder not otherwise specified?
ii) Does any hypothesis raised meet the relevant factor in either the current SoP or the SoP in force at the time of his claim? In particular, did Mr Burns experience a stressor of the kind required, and at the time required, by the relevant SoP?
Malignant neoplasm of the prostate
i) Did Mr Burns increase his animal fat consumption to the required degree and for the required period of time under either the current SoP or the SoP in force at the time of his claim?
ii) If so, was that increase connected to his operational service?
Irritable bowel syndrome
i) Did Mr Burns suffer a clinical worsening of irritable bowel syndrome?
ii) If so, did he suffer from a psychiatric condition connected to his operational service within six months of that clinical worsening?
Haemorrhoids
i) Did Mr Burns suffer a clinical worsening of haemorrhoids?
ii) Did Mr Burns strain at stool because of service related constipation or diarrhoea, within the two weeks before the clinical worsening of haemorrhoids?
11. In relation to all conditions, we must consider whether we are satisfied, beyond reasonable doubt, that the conditions are not war-caused.
anxiety disorder
Does Mr Burns suffer from a psychiatric condition and, if so, does he suffer from anxiety disorder not otherwise specified?
12. Dr A Dinnen, Consultant Psychiatrist, first examined Mr Burns in 1987. At that time he considered that he did not suffer from a psychiatric condition. However, after further examination in 2006, he reached the view that Mr Burns has suffered from anxiety disorder since 1951, (as a consequence of deafness), when he was working at Rathmines and shortly thereafter left the service for a period.
13. Dr Dinnen described the onset and progression of the disease as having its onset in 1951 at Rathmines following the incident concerning his hearing and then of it being aggravated by further aural assaults during operational service which, in turn, aggravated his anxiety disorder.
14. Dr Dinnen based that view on the clinical notes of Dr G Weyland, General Practitioner, (Exhibit A5) that say, in 1968, “v. tense, loss of hearing interferes with work ”; in 1969, “still anxious”; and in 1971, “very tense and anxious last few weeks”. He also noted that Valium was prescribed for Mr Burns in 1971 and presumed this was for an anxiety disorder, in his view the only condition for which Valium was prescribed at that time. Dr Dinnen said that he had also changed his opinion from the one he held in 1987 on the basis of assessments made by Dr Gentile, Psychiatrist, in 1965, Dr Cull, Psychiatrist, who diagnosed anxiety state in 1985, and Dr Winfield, Neurologist, who in 1964 found a large “functional overlay” to Mr Burns’ symptoms.
15. Dr Dinnen described Mr Burns as falling short of having the full range of symptoms of generalised anxiety disorder, but of having, over the years, shown himself to be more than just a “worrier”. He considered that the clinical notes he had now seen, together with assessments over the years and Mr Burns’ treatment with Valium, coupled with what he now considers to be an excessive response to the stressor of his hearing problem, tip Mr Burns over into having a diagnosable psychiatric disorder.
16. Dr Dinnen, referring to the diagnostic criteria for anxiety disorder in DSM–IV-TR, noted prominence of anxiety or phobic avoidance in Mr Burns. He explained that the diagnostic criteria meant “prominence” in the sense of being the prominent or predominant symptom rather than in the sense of being severe. He also considered that Mr Burns, although meticulous and orderly, did not have a pathological personality disorder.
17. Dr R Lewin, Consultant Psychiatrist, on the other hand, having found the same symptoms as Dr Dinnen, and having had access to the same clinical notes and history, considered Mr Burns to fall short of a psychiatric condition. He noted in his report of 10 May 2006 that Mr Burns had told him that Valium had been prescribed to treat benign positional vertigo.
18. Dr Lewin said in oral evidence that some things, such as Mr Burns’ retirement at the age of 48, weigh in favour of a diagnosis, and he would like to investigate this further, having been told by him that he was unable to cope with promotions, supervision of staff and social interaction. But he also noted Mr Burns’ studies after his retirement and his hobby of book collecting which indicate a pattern of adaptive functioning that weighs against a diagnosis of a psychiatric condition. He raised the possibility that Mr Burns is simply meticulous by nature and that this nature gives rise to some anxiety which does not take him over the threshold of a psychiatric disorder.
19. Drs Dinnen and Lewin are not entirely at odds. Instead, the divergence in their opinions is a question of degree. We are impressed by Dr Dinnen’s development of his opinion since 1987 and his preparedness to review his position after considering further material and history. We accept Dr Dinnen’s opinion and find that Mr Burns suffers from anxiety disorder not otherwise specified, albeit a mild form of that condition. We do not consider that the change in his view, either from no condition at all in 1987, or from his diagnosis of anxiety disorder in reaction to a medical condition up until shortly before the hearing, detract from his final opinion. On the contrary, we consider him to have carefully taken all material into account with a preparedness to change his opinion when warranted. We note again that he and Dr Lewin are essentially not at odds.
did Mr Burns experience the required stressor at the required time?
20. SoP No. 101 of 2007 provides, as one of the factors establishing war causation:
6(c)(iv) – experiencing a category 2 stressor within the one year before the clinical worsening of anxiety disorder.
21. A “category 2 stressor” is defined in this SoP as including:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability or medical or psychiatric illness.
22. Mr Burns’ oral evidence was that his hearing problem caused him stress, made him withdraw socially and caused him difficulty in communicating with people. He said he particularly felt this at his posting in Wagga and also in Japan. He described his deafness as having been undiagnosed until 1962, 12 years after the incident to which he attributes it, but as having a profound effect on his ability to cope long before that diagnosis. We note that Mr Burns’ deafness was accepted as war-caused some years ago. We consider therefore that there is material before us that points to him having been socially isolated at the time of the clinical worsening of his anxiety disorder, which we accept, according to Dr Dinnen’s opinion, as having been in 1951 or soon after. There is also material before us that points to that social isolation having been due to his war-caused hearing impairment.
23. It follows, in the absence of any evidence to satisfy us beyond reasonable doubt to the contrary, that Mr Burns’ anxiety disorder is war-caused.
Malignant neoplasm of the prostate
Did Mr Burns increase his animal fat consumption to the required degree and for the required period of time?
24. At the time Mr Burns completed the dietary questionnaire which formed the basis for the opinions of the two dieticians whose evidence was before us, and at the time of Mr Burns’ claim, the current SoP was No. 84 of 1999 as amended by No. 69 of 2002. The risk factor relevant to Mr Burns was:
5(c) - increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
25. The now current SoP is No. 28 of 2005, the relevant risk factor of which provides:
5(c) – increasing animal fat consumption by at least 40% and to at least 50 gm/day, and maintaining these levels for at least five years within the twenty-five years before the clincal onset of malignant neoplasm of the prostate..
26. It is not in dispute that the date of clinical onset of Mr Burns’ malignant neoplasm of the prostate was 2003. Because the time frame for the current SoP runs from 1978 (the beginning of the period of 25 years before the date of clinical onset), no material was gathered by the dieticians for the post 1976 period and because Mr Burns purposely reduced his fat intake by decreasing his meat and daily consumption during this period, his animal fat consumption could only be extrapolated. We note that the combination of the evidence of Dr English, Nutrition Consultant, as to his consumption of fat on service and prior to service and that this included some 63 grams of fat per day, and Mr Burns’ evidence that after service he continued to eat the same foods, there is material that points to him still consuming more than 40 per cent more fat than he did prior to service.
27. We note the submission made on behalf of the Commission that the factor requires an increase in fat consumption in the 25 year period and Mr Burns’ evidence was of a decrease in fat consumption. We do not agree that is the ordinary meaning of the words in the factor. We consider that the words “for at least five years within the 25 years before the clinical onset of the cancer” refer to “maintenance” of an increase in fat consumption and not to the increase in fat consumption itself. To find otherwise would severely prejudice veterans whose service was more than 25 years prior to clinical onset.
28. On the other hand, the earlier SoP, in force at the time of Mr Burns’ claim, requires an increase in fat consumption “by at least 40% and to at least 70 gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate”. There is no requirement as to the time from which the 20 years must run. The dieticians obtained answers to the questionnaire for the period 1955 to 1975. On their evidence, the risk factor was met. There is no controversy about this, although Dr English was of the view that the results of the questionnaire were invalid. This is a matter to be considered in relation to section 120(1) of the Veterans’ Entitlements Act 1986 (the Act).
29. Whether Mr Burns exercises his accrued right to have the earlier SoP applied to his claim, (Repatriation Commission v Gorton [2001] FCA 1194), or whether the current SoP is applied, we find this aspect of a reasonable hypothesis, according to the amounts and periods of time requirements of the SoPs, has been raised by him and is pointed to by the material before us.
was the increase in fat consumption connected to his service?
30. Mr Burns’ gave evidence that he developed a liking for the foods he was served while on service in Japan. He described the food as “excellent” and said he enjoyed it. He said he particularly liked the dairy products that were available to him and, most of all, the ice-cream and milkshakes, given that he had been “starved” of dairy products on rationing in Australia. He said he developed a liking for these things and continued to enjoy them up until the 90’s when he cut down on dairy products for health reasons.
31. It was submitted on behalf of Mr Burns that his liking for dairy products became habitual, pleasurable behaviour initiated during his operational service. It was also submitted that this behaviour provided him with a salve for the stress he experienced on service. We note there was no direct evidence from Mr Burns to this latter effect. We also note that the issue of stress on operational service and its relationship to Mr Burns’ consumption of animal fats was raised with the parties by the Tribunal after the hearing had concluded. We invited and received written submissions from the parties on the issue.
32. For the Commission it was submitted that evidence of something in the nature of addiction is required to establish a causal connection between service and animal fat consumption. An analogy was drawn with service connected smoking and “smoking cases” were cited.
33. In Repatriation Commission v Tuite (1993) 39 FCR 540 at 545 Burchett and Einfeld JJ said:
“It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondents’ decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotine addiction”
34. At this point, the circumstances of Mr Burns’ case can be distinguished from those in Tuite. Here, we are considering the causal factors of fat consumption – not generally thought to give rise to physical addiction and we have no material before us that supports a theory of addiction; in Tuite the Federal Court considered the notoriously highly addictive consumption of nicotine.
35. However, the Commission also relied on the decision of Ryan J in Dunn v Repatriation Commission [2006] FCA 1703. In relation to circumstances very similar to those in the present case, His Honour said:
“In my view the Commission is correct in maintaining that there was not material before the Tribunal which pointed to the continuance of Mr Dunn’s diet for a period of 20 years as being related to his operational service. The only way that relationship could have been open and found would have been by inference that it would not have occurred but for the rendering of the service by him – s 196B(14)(f) – or otherwise fell within other paragraphs of that section. It cannot be concluded that the inference was logically the only conclusion open from the other circumstances in the material.”
36. Mr Dunn, like Mr Burns, continued eating the same sort of diet post service which he had eaten during operational service because he enjoyed it. Like Mr Dunn, Mr Burns put forward no material to indicate that he, rather than his wife, bought, prepared or otherwise determined the amount of animal fat that was consumed by him post service. However, an important additional element in Mr Burns’ case is his stress. Unlike Mr Dunn, he gave evidence of having experienced stress and anxiety during his operational service. We have already concluded that there is a reasonable hypothesis of an anxiety disorder aggravated by operational service. It was submitted on behalf of Mr Burns that, although there is no direct evidence from him that he formed the pattern or habit of eating foods that were pleasurable to him because he was stressed, it can be hypothesised that he ate the foods that were pleasurable to him, and continued to do so, because, at least in part, they made him feel better and were a salve to his stress.
37. We consider that, in contrast to the circumstances surrounding Mr Dunn, it may be hypothesised that Mr Burns had a service connected impetus for forming, and maintaining, the pattern of fat consumption that was initiated by his exposure to a dairy rich diet in Japan. That impetus, it may be hypothesised from the material before us, was stress. It may also reasonably be hypothesised that the continuation of the stress experienced by Mr Burns post operational service affected his capacity to exercise the free will to alter his diet. In other words, his enduring stress and his continued pleasure in these foods, may have served to entrench his eating habits. We consider this an obvious inference to be made from the material before us which points to stress on service, and in particular operational service, and continuing thereafter; the introduction of Mr Burns to a diet rich in fat while on operational service; and the great pleasure Mr Burns took in that new diet when in Japan on operational service and continuing thereafter.
38. We consider that, on this basis, Mr Burns’ consumption of fat at a level and for the period required by the current SoP factor, is related to his operational service in that it was contributed to in a material degree by that service (section196B(14)(d) of the Act).
39. We note the objections and doubts raised by Dr English as to the validity of the questionnaire answers. In contrast, the report dated 16 September 2005 of Dr Volker, Consultant Dietian, accepts the answers as plausible. It is unnecessary to air the habitual contest between these two experts. The reasonableness of the hypothesis will not be disproved by either one of their opinions.There are variables in the equations that are applied to estimate increases in fat consumption: differences in metabolic rate, differences in exercise levels, and the effects of illnesses. The different ways in which different experts incorporate these variables into their calculations, and the different formulae used by them, mean that the opinion of just one expert dietician, in opposition to that of another, does not serve to disprove, beyond reasonable doubt, a reasonable hypothesis.
40. It follows that Mr Burns’ malignant neoplasm of the prostate is war-caused.
Irritable bowel syndrome
Did Mr Burns suffer a clinical worsening of irritable bowel syndrome?
41. We have already found that Mr Burns’ irritable bowel syndrome had its clinical onset in his teenage years. That means our consideration must centre on the questions of aggravation and clinical worsening.
42. Mr Burns’ evidence was that his irritable bowel syndrome has worsened at various times during his life. He said that, during his period of service, his symptoms would become worse at times of greater stress. For example, he said that after he rejoined the service in about 1951 he was posted to RAAF headquarters with duties he described as akin to a 9.00 to 5.00 public servant’s job, with little discipline, no parades and in very quiet surroundings. He said that at this time his bowel symptoms were moderate. On the other hand, at Wagga, which he found far more stressful, his symptoms, he said, were severe.
43. Mr Burns said that when he went to Japan he became stressed and his bowel symptoms again became severe and continued in that way for the period he was there. However, he has also experienced severe symptoms after he returned from Japan and has continued to experience symptoms since then. He described a “consistent sort of pattern over the years”.
44. Dr Margaret Gillies, Gastroenterologist, in her report of 8 April 2003, noted that Mr Burns had suffered stress at various times throughout his service, that she had no record of a psychiatric assessment of him and that she was surprised that his advocates had not used a psychiatric condition for the basis of irritable bowel syndrome. She considered there had been intermittent aggravation of Mr Burns’ irritable bowel syndrome associated with stress over the years, but that “there had been no complaint during the period of service of severe diarrhoea but, rather, of constipation”. She then gave the opinion that there had been a clinical worsening when Mr Burns was stressed both within his period of service and thereafter. She said the symptoms produced by stress were, for Mr Burns, abdominal colic and discomfort and frequent, loose stools with recent faecal incontinence. The reported absence of complaints of diarrhoea during service contradicts her opinion that there was clinical worsening during service, that clinical worsening being described by her as stress related abdominal colic and discomfort and frequent, loose stools. We are puzzled by this opinion.
45. She linked the severity of rectal bleeding associated with his haemorrhoids to the frequency and severity of his constipation.
46. In any event, Dr Gillies considered that Mr Burns meets none of the factors in the relevant SoP.
47. Dr P Katelaris’, Consultant Gastroenterologist & Clinical Associate Professor, evidence was that it is generally possible that periods of stress and an exacerbation of anxiety can make bowel symptoms worse – but it is usually around the time of the stress and will not last for decades. In his report, dated 6 July 2005, he noted there is “no clear evidence” that Mr Burns’ period of operational service in Japan resulted in the worsening of the condition. However, “clear evidence” is not what is required here. All that must exist is material pointing to conformity with the relevant factor in the SoP. In Mr Burns’ evidence, we have material pointing to fluctuation of symptoms, with increases in severity at times of stress in service and thereafter.
48. The Repatriation Commission submitted that a mere exacerbation or fluctuation of symptoms does not amount to a clinical worsening.
49. In Repatriation Commission v Yates (1995) 38 ALD 80 Lindgren J held that the Tribunal had erred by equating a temporary worsening of symptoms with a temporary aggravation of the underlying disease. He also held that “an aggravation of an underlying disease should last longer than the period of worsening of symptoms caused by service, although the aggravation may not necessarily be as long as the duration of the disease itself”. However, an occurrence from time to time of symptoms caused by service does not necessarily compel an inference that there has been an aggravation, caused by service, of a pre-existing disease.
50. The material before us points to fluctuating symptoms, which have become worse at times of stress. There is no material pointing to a persisting worsening of the underlying condition or something more than a temporary worsening of symptoms at times of stress. Dr Katelaris considered there had been no clinical worsening and, while Dr Gillies considered there had been clinical worsening, her opinion was internally contradictory and logically inconsistent. We consider that the material before us does not point to a clinical worsening of Mr Burns’ irritable bowel syndrome, during operational service.
51. It follows that it is not necessary for us to consider whether Mr Burns suffered from a psychiatric condition connected to his service within six months of clinical worsening. We conclude that Mr Burns’ irritable bowel syndrome is not war-caused.
Haemorrhoids
Did Mr Burns suffer a clinical worsening of haemorroids?
52. Similar considerations apply to this question as to the question of whether Mr Burns suffered a clinical worsening of irritable bowel syndrome. We were initially, inclined to a similar conclusion. One would normally associate haemorrhoids with irritable bowel syndrome, the latter as a consequence of irritable bowel syndrome. Certainly one would associate the constipation leading to haemorrhoids with irritable bowel syndrome. However, the Repatriation Medical Authority has separated the two conditions and issued a statement of principles for each. Each of the SoPs provides for different factors to be met in order to establish a reasonable hypothesis of war causation. Notwithstanding the apparent logical inconsistency of finding irritable bowel syndrome not to be war-caused but haemorrhoids to be war-caused, we find, for the following reason, that is the correct outcome on application of the two, different SoPs to these closely linked conditions.
53. We are mindful of Mr Burns’ evidence that not long after he had completed his operational service in Japan his haemorrhoids were so persistently severe since Japan, that he undertook surgery to have them removed. We consider this, in line with His Honour’s reasoning in Yates, to point to a worsening of the underlying disease as opposed to a mere exacerbation of symptoms.
Did Mr Burns strain at stool because of service related constipation or diarrhoea, within the two weeks before the clinical worsening?
54. Mr Burns’ evidence was that his constipation, which included straining at stool, became more severe and frequent on operational service in Japan. He attributed this to the stress he experienced while in Japan. Dr Katelaris, in his report, allowed that stressful situations may make symptoms of irritable bowel syndrome, including constipation, temporarily worse. This temporary worsening of symptoms does not amount to a clinical worsening of irritable bowel syndrome, but it still serves to point to a connection with service. On this basis, we find there is material pointing to service related constipation, and straining at stool, within two weeks before the clinical worsening of Mr Burns’ haemorrhoids.
55. It follows, in the absence of any evidence to satisfy us beyond reasonable doubt to the contrary, that Mr Burns’ haemorrhoids are war-caused.
decision
56. The Tribunal sets aside the decision under review and decides instead:
i) Mr Burns suffers from malignant neoplasm of the prostate, anxiety disorder not otherwise specified, irritable bowel syndrome and haemorrhoids;
ii) Mr Burns’ malignant neoplasm of the prostate, anxiety disorder not otherwise specified and haemorrhoids are war-caused;
iii) Mr Burns’ irritable bowel syndrome is not war-caused;
iv) the date of effect of the substituted decision in respect of malignant neoplasm of the prostate and haemorrhoids is 7 December 2002;
v) the date of effect of the substituted decision in respect of anxiety disorder not otherwise specified is 12 August 2004.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member
DR M E C THORPE, MemberSigned: ...............................SGD......................................................
Associate:Date/s of Hearing: 5, 6 December 2007 & 13 May 2008
Date of Decision: 2 December 2008
Counsel for the Applicant: Mr M Vincent
Solicitor for the Applicant: Mr R Wallis
Counsel for the Respondent: Mr G.L Purcell
Solicitor for the Respondent: Mr T O’Reilly
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