Butterworth and Repatriation Commission
[2004] AATA 676
•29 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 676
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/26
VETERANS' APPEALS DIVISION ) Re NEVILLE JAMES BUTTERWORTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date29 June 2004
PlaceBrisbane
Decision The Tribunal:
1. Varies the diagnosis in relation to the left and right feet of Neville James Butterworth.
2. Determines that Neville James Butterworth suffers from peripheral neuropathy.
3. Varies the decision under review by determining that Neville James Butterworth’s peripheral neuropathy is not war-caused, nor defence-caused.
................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – new diagnosis – peripheral neuropathy – alcohol abuse – SoP not satisfied – diagnosis varied – decision varied
Veterans’ Entitlements Act 1986
REASONS FOR DECISION
Deputy President Don Muller 1. On 17 March 1998, Neville James Butterworth, the Applicant, claimed for disability pension and medical treatment pursuant to the provisions of the Veterans’ Entitlements Act 1986 (the Act), for “ankle condition (left + right)” and “feet condition (L + R)”.
2. Mr. Butterworth claimed that he suffers from “crook feet” because of trauma to his feet experienced whilst he was on “operational service” in Vietnam, and also whilst on “defence service” in Australia, within the meaning of the terms “operational service” and “defence service” in the Act.
3. In a decision dated 21 May 1998, the Respondent applied the diagnoses of osteoarthrosis to the first metatarsophalangeal joint on both the right and left foot, and accepted Mr. Butterworth’s claim for osteoarthrosis of his left first metatarsophalangeal joint as defence-caused, but rejected his claim in relation to the right foot.
4. On 12 November 1999, the Veterans’ Review Board affirmed the decision to reject Mr. Butterworth’s claim in relation to his right foot.
5. Mr. Butterworth seeks a review of the decision to reject his claim in relation to his right foot. He also seeks to re-open the issue of diagnosis. He claims that the problems he has with both feet are more extensive than merely osteoarthrosis of his big toes.
6. A pension is payable under the Act to a veteran who is incapacitated due to a war-caused, or defence-caused, disease or injury. Under section 9 of the Act a disease contracted or injury suffered is taken to be war-caused if it arose out of, or was attributable to any eligible war service rendered by the veteran. Under section 70 of the Act an injury suffered, or disease contracted, by a member of the Forces shall be taken to be a defence-caused injury, or a defence-caused disease, if the injury or disease arose out of, or was attributable to any defence service.
7. Under section 68 of the Act “defence service” means:
“(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and…”
8. Mr. Butterworth served in the Australian Army from 8 October 1968 to 2 October 1981. He had “operational service” in South Vietnam from 16 April 1970 to 14 April 1971. He had “defence service” from 7 December 1972 to 2 October 1981. For the purposes of the Act those two periods constitute eligible service.
9. The Tribunal heard oral evidence from Mr. Butterworth and had before it the following documents:
(a)The section 37 Administrative Appeals Tribunal Act 1975 documents, exhibit 1;
(b)Bundle of medical reports provided by Mr. Butterworth, containing 30 reports including x-ray reports, diagnostic imaging reports and the various reports of 13 medical practitioners, exhibit 2;
(c)Report of Dr. Boyce dated 17 March 2003, exhibit 3;
(d)Mr. Butterworth’s statement dated 15 August 2003, exhibit 4;
(e)Mr. Butterworth’s statement dated 21 August 2002, exhibit 5;
(f)Mr. Butterworth’s statement dated 7 February 2001, exhibit 6;
(g)Mr. Butterworth’s statement dated 12 March 2001, exhibit 7;
(h)Lifestyle Questionnaire completed by Mr. Butterworth, exhibit 8;
(i)Dr. Peter Grant’s reports, dated 20 March 2000, 9 April 2000 and 6 August 2001, exhibit 9;
(j)Army Medical Attendance Records of Mr. Butterworth dated 6 and 12 May 1974, exhibit 10;
(k)Army Medical Report of Mr. Butterworth dated 24 July 1975, exhibit 11;
(l)Army Request for Investigation dated 10 June 1975, exhibit 12; and
(m)Army Attendance and Treatment Card dated 5 June 1975, exhibit 13.
10. Mr. Butterworth’s oral evidence and four written statements made the following points (among others):
(a)In Vietnam he was required to continually jump in and out of vehicles with heavy packs. This caused him to suffer from numerous ankle injuries and swelling through the ankles, toes and feet.
(b)He would attend the RAP after most runs to receive treatment for his ankles and feet.
(c)On one occasion, whilst serving in Vietnam, he was loading aircraft flares, containing magnesium, onto the back of a large truck when he heard a loud hissing noise coming from the stack of canisters. He initially tried to find the canister which was hissing but then decided to jump over the side of the truck. The top of the side of the truck was about 2½ metres from the ground. He fell heavily and twisted both ankles. He was so disabled he could not run from the truck. He was eventually assisted from the scene and then driven to the RAP in a land rover. He was given crutches, wore thongs, had three days off work and then light duties for about two weeks before resuming normal duties.
(d)On at least two occasions after his return from Vietnam he injured his right and left ankles during P.T. sessions and while playing football for the Army. On each occasion he was required to use crutches for at least a week and was placed on light duties for approximately six weeks. He was treated for his injuries by strapping his ankles and physiotherapy. He particularly badly sprained his left ankle playing football for the Army in May and again in July 1975.
(e)While on crutches for the second injury to his left ankle he tripped on a gutter and was then on crutches for a further six weeks due to the injury to his ankle and foot.
(f)After leaving the Army he drove semi-trailer trucks on long interstate trips for some years. His feet used to swell. His ankle and feet problems have caused him to reduce the hours he works as a truck driver. He now works about 15 hours per week as a cleaner. He can no longer play golf or play with his grandchildren and the pain in his feet disturbs his sleep.
(g)He was diagnosed with non insulin dependent diabetes in 2002.
(h)He did not drink alcohol before he went to South Vietnam. He began to drink alcohol soon after he arrived in South Vietnam. He had some extremely unpleasant experiences in South Vietnam. He was shot at. He saw a young South Vietnamese man shot. He was in a helicopter which hit a tree. He began to drink heavily about half way through his term in South Vietnam. He continued to drink heavily for a short time when he came back to Australia. He would occasionally be involved in “bender drinking”. He used to brew his own beer. Now he does not drink as much as he used to. He has switched to drinking mid-strength beer. He eventually stopped drinking to excess in 1992.
(i)Shortly after he returned to Australia he got married. He left the Army after he was married. He could not cope with civilian life so he returned to the Army.
(j)He then had some personal problems and went AWOL for three months. He was not drinking heavily at that time.
(k)He now cannot walk bare-footed. It feels as if he is walking on nails. He gets shooting pains in the feet.
(l)He used to be “skinny” but he started putting on weight in 1980. He went from 85kgs to 110kgs.
11. The large number of medical reports placed before the Tribunal have been examined and assessed by Dr. Peter Grant, Senior Medical Officer Compensation with the Department of Veterans’ Affairs. Dr. Grant has come to the conclusion that Mr. Butterworth may have the following problems with his feet:
Right plantar fasciitis with calcaneal spur
Bilateral pes planus; and
Bilateral peripheral neuropathy.
12. There is also a report by Dr. Terence Saxby, orthopaedic surgeon, 10 June 2003, that Mr. Butterworth has a fracture of the left second metatarsal which, at that stage, had not fully re-united. There is no evidence before the Tribunal as to when that injury occurred.
13. The only injury documented on service is that of 6 April 1972 wherein the veteran attended for treatment after kicking a bottle six days earlier at the races resulting in persisting pain in the right forefoot. X-rays showed an impacted fracture of the head of the third metatarsal for which strapping was applied. He also attended with a left ankle sprain and contusion to the right shoulder on 5 June 1975. (Apparently as the result of “horseplay” in the barracks.)
14. At the hearing it was conceded by Mr. Stoner, advocate for the Respondent, that because the original application by Mr. Butterworth described his problems with his feet in very wide terms, the Tribunal has the jurisdiction to widen the scope of the review beyond osteoarthrosis of the big toes. The Tribunal will do so.
DIAGNOSIS
15. An important step in the process of determining whether Mr. Butterworth’s left and right foot conditions are war-caused or defence-caused, is to diagnose the disease or injury. This has not been easy. There is a wide divergence of opinion among the many medical experts who have examined Mr. Butterworth. There has even been a suggestion that his complaints and reactions to physical examination are not consistent with the radiological findings.
16. Peripheral Neuropathy was first suggested as a possible explanation for Mr. Butterworth’s foot problems by Dr. Gamini Jayasinghe, Neurologist, who examined Mr. Butterworth in November 1999. Dr. Jayasinghe reported:
“The above results demonstrate the presence of a peripheral neuropathy of the axonal type. This type of neuropathies are usually due to toxic or metabolic causes. It is possible that it could have been drug induced. Please be good enough to check on the drug which he was on at the time.
To exclude other treatable causes, I have organised a haematological and biochemical screen the results of which will be forwarded to you.”
17. On 12 March 2000, Mr. Butterworth’s General Practitioner, Dr. Kresevic, recorded that investigations had revealed that Mr. Butterworth had low vitamin B12/folic acid blood levels but that his neuropathic symptoms had dramatically improved with B12/folate supplements.
18. Mr. Butterworth was examined by Dr. Macintosh, Consultant Orthopaedic Surgeon, on 23 August 2001. Dr. Macintosh found very little wrong with Mr. Butterworth’s feet and found the x-rays and CT scan to be normal, except for “a minimally displaced non-united transverse fracture through the proximal shaft of the second metatarsal” of the left foot. He made the following assessment of Mr. Butterworth’s problems:
“He does, however, have a history suggestive of a significant peripheral neuropathy and I consider this is most likely to be the cause of his symptoms, though I would bow to the opinion of a neurologist regarding this.”
19. Mr. Butterworth was examined by Dr. Boyce, Consultant Neurologist, in March 2003. Dr. Bryce concluded that Mr. Butterworth’s conditions were:
“…consistent with an axonal type sensory peripheral neuropathy most likely related to his diabetic condition”
20. Mr. Butterworth was examined by Dr. Terence Saxby on 19 May 2003. Dr. Saxby concluded:
“The exact diagnosis here is difficult to be certain of. There is a mixed clinical picture and the clinical findings do not correlate well to the radiological investigations. What could be stated for certain is that gentleman does have a peripheral neuropathy. This has been confirmed by Dr. Geoffrey Boyce with his nerve conduction studies and this is consistent with his history of diabetes mellitis and I think that his peripheral neuropathy is the cause for a large proportion of this gentleman’s foot discomfort and pain.”
21. The Tribunal is satisfied that Mr. Butterworth suffers from peripheral neuropathy.
22. Left 2nd Metatarsal Fracture Non-union was first discovered by Dr. Burgin, radiologist, on 17 April 2001, when he reported:
“There is a minimally displaced non united transverse fracture through the proximal shaft of the second metatarsal”.
23. The non-union fracture was not seen on plain x-ray taken by Dr. McCormack on 6 April 2001. It was also not seen by Dr. Lewis upon MRI scan of both feet on 15 May 2001, nor by Dr. Macintosh in August 2001.
24. This injury has probably healed by now. In any case it seems to have been a relatively recent injury – unconnected to Mr. Butterworth’s Army service.
25. Osteoarthrosis of left and right big toe was first commented upon by Dr. W.L. Thomas, orthopaedic surgeon, on 5 July 2000, when he said:
“I think that from the clinical point of view this man does have early degenerative changes involving the first metatarsophalangeal region of the right big toe. ….
I would think the main causation of his present right big toe problem relates to a constitutional tendency to develop generalised degenerative changes.”
Dr. Thomas did not find anything wrong with Mr. Butterworth’s left big toe.
26. On 28 August 2001, Mr. Butterworth was examined by Dr. Macintosh, who reported as follows:
“On examination, apart from flat feet, I could find no abnormality. X-rays basically have been normal and consistent with his age, apart from the most recent bone scan, which showed significant increased uptake, but no obvious underlying cause on further investigation. At the moment there are no clinical signs suggesting any inflammation or fracture of his foot.
He does not appear to have any evidence of any significant osteoarthrosis of his first metatarsophalangeal joints. He no longer suffers gout.
In essence, I do not consider he has any abnormality in his feet at the present time, apart from flat feet, which are not related to his Army service. He does not have any evidence of plantar fasciitis or gout.”
27. Dr. Saxby concluded from his examination of Mr. Butterworth on 19 May 2003, that Mr. Butterworth does not have osteoarthrosis in his feet. Dr. Saxby said:
“With regards his Metatarsophalangeal joints. This gentleman has an excellent range of motion of both his Metatarsophalangeal joints. The plain xrays were essential normal for both of the joints, although the radionuclear scans have shown some increased activity here. I would therefore think that this gentleman, from a clinical point of view, does not have osteoarthritis of his Metatarsophalangeal joints, because indeed the only positive finding really is of an increased activity on a bone scan which is not confirmed on the MRI Scan or the clinical examination. I therefore think that the consensus of opinion was that this gentleman did not have osteoarthritis in his Metatarsophalangeal joints.”
28. The Tribunal finds that Mr. Butterworth does not have osteoarthrosis of either his left or right big toe.
29. Plantar fasciitis was first raised as a possible diagnosis by Mr. Butterworth’s General Practitioner, Dr. Kresevic, in March 2000. However, neither of the specialists, Drs. Macintosh and Saxby, found any evidence of plantar fasciitis.
30. The Tribunal finds that Mr. Butterworth does not have plantar fasciitis.
31. Pes Planus was first suggested by Dr. Pozzi, Orthopaedic Surgeon, on 12 February 2001. He reported:
“On examination the most obvious thing about Mr. Butterworth is that he has a tendency to bilateral flat feet. He walks reasonably comfortably, though fairly slowly. He is able to single heel raise just on the right side, but not on the left side and his arch is not recreated. He has a slight restriction in ankle range of movement on the left verses the right, though has otherwise preserved ranges of movement in his foot including his subtalar joint and mid tarsal joint. He has some mild pain on his left foot pressing on the base of his second metatarsal phalangeal joint. He has evidence of weakness of his tip post function on the left and the right, more so on the left.”
In a later report, 15 February 2002, Dr. Pozzi said:
“The ultrasound would suggest that the progressive flat foot deformity is related to posterior tibialis tendon dysfunction.”
32. Neither Drs. Macintosh and Saxby found any sign of flat feet. Although, in fairness to Dr. Pozzi he found only a tendency to flat feet.
33. The Tribunal finds that Mr. Butterworth does not have flat feet.
34. Mr. Butterworth also complained of “ankle pain”. Dr. Saxby reported on 10 June 2003:
“With regards his ankle condition. This gentleman has suffered ankle sprains in the past. Clinically he does not have evidence of ankle instability and both radiographically on stress xrays and MRI Scan there was not evidence of a lateral ligament injury.
I therefore do not believe that there is any significant ankle condition with this gentleman.”
35. The Tribunal finds that Mr. Butterworth has no diagnosable injury or disease in either his left or right ankles.
36. The Tribunal determines that the only diagnosis of Mr. Butterworth’s problems with his feet which is supported by the medical evidence, is peripheral neuropathy.
CAUSATION
37. The medical specialists put forward four possible causes for Mr. Butterworth’s peripheral neuropathy, namely, diabetes mellitus, drug induced, toxic or metabolic.
38. The material placed before the Tribunal points to two possible causes of Mr. Butterworth’s peripheral neuropathy. They are diabetes mellitus and toxicity caused by alcohol consumption.
39. The material does not point to any link between Mr. Butterworth’s Army service and his diabetes mellitus.
40. The only suggested link between Mr. Butterworth’s Army service and his peripheral neuropathy is in his evidence that he started to drink to excess about half way through his 12 months in South Vietnam. There is nothing in the evidence to suggest that his defence-service was responsible for his consumption of alcohol.
41. There is a Statement of Principles in force for peripheral neuropathy. The relevant SoP for war-caused peripheral neuropathy is No. 79 of 2001 as amended by No. 13 of 2003.
No. 79 of 2001
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting peripheral neuropathy or death from peripheral neuropathy with the circumstances of a person’s relevant service are:
(a)consuming at least 350kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of peripheral neuropathy; or
(b)suffering from a systemic disease from the specified list at the time of the clinical onset of peripheral neuropathy; or
“a systemic disease from the specified list” means the presence of one of the following conditions:
(a) acromegaly;
(b) diabetes mellitus; …..
No. 80 of 2001:
“Factors
5.The factors that must exist before it can be said peripheral neuropathy or death from peripheral neuropathy that, on the balance of probabilities, are connected with the circumstances of a person’s relevant service are:
(a)consuming at least 700 kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of peripheral neuropathy; or
(b)suffering from a systemic disease from the specified list at the time of the clinical onset of peripheral neuropathy; or
“a systemic disease from the specified list” means the presence of one of the following conditions:
(a) acromegaly;
(b) diabetes mellitus; …..”
42. The material placed before the Tribunal indicates that Mr. Butterworth’s diabetes mellitus may have been the cause of his peripheral neuropathy. There are a number of SoPs for diabetes mellitus, No. 11 of 2004 replaced No. 82 of 1999 which also replaced an earlier SoP, however, as stated above, none of the factors in any of the SoPs have been presented as having any relationship to Mr. Butterworth’s Army service.
43. Mr. Butterworth’s peripheral neuropathy was first diagnosed in 1999.
44. The question for determination by the Tribunal is whether Factor 5(a) for peripheral neuropathy is satisfied. That is, did Mr. Butterworth consume at least 350kg of alcohol within any 10 year period before 1999 and if he did so, was it connected with the circumstances of his service in Vietnam. (There is no suggestion that any events in his defence service led to any excess alcohol intake).
45. There is an SoP concerning alcohol abuse. It is No. 76 of 1998. The only factors relevant to Mr. Butterworth’s case are:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or -eath from alcohol dependence or alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse;
….
(d)experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
46. The evidence about the quantity of alcohol consumed by Mr. Butterworth was not specific. In the presentation of his case there was no attempt to cover his drinking pattern for a specific ten year period. From the material placed before the Tribunal it is not possible to say that Mr. Butterworth consumed 350 kg of alcohol in any 10 year period prior to 1999.
47. Furthermore, although Mr. Butterworth had some unpleasant experiences in South Vietnam, he did not give any evidence to the effect that the events evoked in him intense fear, helplessness or horror. Nor did he link his increase in alcohol intake with any particular unpleasant event.
48. I find that the hypothesis raised by the material does not satisfy the relevant SoP for peripheral neuropathy.
49. Consequently, I am satisfied beyond reasonable doubt that Mr. Butterworth’s peripheral neuropathy is not related to his Army service.
50. The Tribunal varies the decision under review in relation to the diagnosis for Mr. Butterworth’s foot problems and determines that he suffers from peripheral neuropathy.
51. The Tribunal decides that his peripheral neuropathy is not war-caused, nor defence caused.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 14 April 2004
Date of Decision 29 June 2004
Solicitor for the Applicant Mr. M. Thompson
Respondent Mr. M. Smith, departmental advocate
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