Campbell and Repatriation Commission
[2001] AATA 84
•8 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 84
ADMINISTRATIVE APPEALS TRIBUNAL )
)No N2000/267
VETERANS' APPEALS DIVISION ) N2000/1341
Re NEIL CAMPBELL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 8 February 2001
PlaceSydney (Heard in Taree)
Decision In respect of matter N2000/267, the Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 31 August 1999 as affirmed by the Veterans' Review Board on 7 February 2000 to refuse the claim of the Applicant, Mr Neil Campbell, that his Paget's disease of the bone was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986. In respect of matter N2000/1341, the Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 13 December 1999 as affirmed by the Veteran's Review Board on 20 April 2000 to refuse the application of the Applicant, Mr Neil Campbell, for an Attendant Allowance pursuant to section 98 of the Veterans' Entitlements Act 1986.
..............................................
Ms G EttingerSenior Member CATCHWORDS
Veterans' Affairs - Paget's Disease of Bone - Attendant's Allowance - both decisions affirmed
LEGISLATION
Veterans Entitlements Act 1986 ss 9, 98, 120(1) and (3) and 120A
Guide to the Assessment of Rates of Veterans' Pensions
CASE LAW
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Ryan and Repatriation Commission (1986) 11 ALD 209
Trengove and Repatriation Commission (AAT 3431, 29 April 1987)
STATEMENT OF PRINCIPLES
Statement of Principles Instrument No.15 of 1996 concerning Paget's Disease of Bone
REASONS FOR DECISION
8 February 2001 Ms G Ettinger Senior Member
The decisions under review before the Administrative Appeals Tribunal ("the Tribunal") concerning the Applicant, Mr Neil Campbell were as follows:
· Matter N2000/267: The decision of the Repatriation Commission dated 31 August 1999 to refuse the Applicant's application to have his Paget's disease of bone accepted as a war-caused disability, as affirmed by the Veterans' Review Board decision of 7 February 2000.
· Matter N2000/1341: The decision of the Repatriation Commission dated 13 December 1999 to refuse the Applicant's claim for Attendant Allowance as affirmed by the Veterans' Review Board on 20 April 2000.
Due to administrative error of the Tribunal with regard to the listing of matter 2000/1341, it was heard concurrrently with matter N2000/267, but the Respondent was unable to proceed to closing submissions in respect of the claim for an attendant allowance at the conclusion of the Hearing on 21 November 2000. At the conclusion of the Hearing, the Hearing was adjourned for written submissions, which were received on 15 December 2000.
The Applicant was self represented and the Respondent represented by its advocate Ms G Pacey.
ISSUES BEFORE THE TRIBUNALThe issues before the Tribunal was:
· Whether Mr Campbell's Paget's disease of bone was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
· Whether Mr Campbell was eligible for Attendant Allowance pursuant to section 98 of the Veterans' Entitlements Act 1986.
LEGISLATION
The relevant legislation in this matter was the Veterans' Entitlements Act 1986 ("the Act") in particular sections 9, 98(2), 120(1) and (3) and 120A. Section 9 provides:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
Section 98 of the Act provides for the granting of an attendant allowance to an applicant in need. As relevant, it follows:
"98 Attendant Allowance
…(2)Where:
(a)a veteran is being paid a pension under Part II in respect of incapacity:
(i) from a war-caused injury or a war-caused disease affecting the cerebro-spinal system; or
(ii) from a war-caused injury or a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and
(b)the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate of an amount per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
…"
Mr Campbell served on operational service between 14 October 1942 and 17 April 1946 during World War II, so the standard of proof applicable to assess whether his Paget's disease of bone was war-caused was the reasonable hypothesis, applying sections 120(1) and 120(3) of the Act.
I noted that Mr Campbell also claimed he had served on eligible service from 1948 to 1968, and although there was no formal record of it in the documentation before me, the Tribunal acknowledges his contribution. However as the Veteran had established that he had served on operational service, it was unnecessary for the purposes of my decision- making to inquire further.
For the Applicant's claim for an attendant allowance, the applicable standard of proof was that of reasonable satisfaction pursuant to section 120(4) of the Act. As relevant these sections provide:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
In the review of Mr Campbell's application, I was bound to apply section 120A of the Act because his application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
I noted that the relevant SoP at the time of both the Repatriation Commission decision on 31 August 1999, and the Veterans' Review Board on 7 February 2000 regarding Paget's Disease of Bone was Instrument No.15 of 1996. In that SoP, Paget's Disease of Bone is defined as:
"… a disease of bone marked by repeated episodes of increased bone resorption followed by excessive attempts at repair, resulting in weakened deformed bones of increased mass …"
The minimum factor required to relate the Applicant's Paget's disease of the bone with his war service are outlined in Factor 5 of the SoP. Factor 5 provides as follows:
"(a)inability to obtain appropriate clinical management for Paget's disease of bone."
Factor 6 limits the instances where Factor 5(a) will apply. It states:
"Paragraph 5(a) applies only to material contribution to, or aggravation of, Paget's disease of bone where the person's Paget's disease of bone was suffered or contracted before or during (but not arising out of) the person's relevant service."
EVIDENCE BEFORE THE TRIBUNAL
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and the following Exhibits:
ITEM DATE NAME
Clinical Notes of Dr K Clahane 1993 & ongoing Exhibit A1
Medical Report of Dr K Clahane 6 January 2000 Exhibit A2
Letter from the Applicant to the Tribunal 16 February 2000 Exhibit A3
Letter from the Applicant to the Tribunal 3 April 2000 Exhibit A4
Letter from the Applicant to the Department of Veterans' Affairs 31 September 1999 Exhibit A5
T-Documents N2000/267 Exhibit R1
T-Documents N2000/1341 Exhibit R2
Oral evidence was given by the Applicant, Mr Neil Campbell.
EVIDENCE OF THE APPLICANT, MR NEIL CAMPBELLMr Campbell, whose date of birth was 10 September 1924, gave oral evidence before the Tribunal. He had been diagnosed with Paget's Disease of Bone ("Paget's disease") and gave evidence regarding the restrictions in movement he suffers as a result. Mr Campbell said that he had symptoms of the disease in 1972 but that it was only formally diagnosed after investigations performed on 24 January 1980.
Mr Campbell said that his doctor had told him that the cause of the disease was not known, and that there was no cure, but that he understood it commenced many years ago. Mr Campbell said that he thought it might have been the conditions under which he lived in Japan, Papua New Guinea and Korea which caused Paget's disease. He also told me that he had to traverse the regions in Japan around Hiroshima which had been affected by the atomic bomb and considered this may have been the origin of his Paget's disease.
Mr Campbell said that his brother also contracted Paget's disease, saying that it could perhaps be hereditary, but as his brother was in the RAAF at a similar time and was posted to similar places, there could be environmental factors involved.
When questioned about any trauma he may have suffered during service, Mr Campbell said that he did suffer direct trauma during his service in Korea, Papua New Guinea and Japan but he could not recall specific incidents nor did he recall having open sores or wounds.
Mr Campbell also gave evidence regarding his disabilities due to his Paget's disease and his accepted disability of schizophrenia, and explained that he could not do his housework. The schizophrenia and medication he took for it for it caused him to be tired he said. Moreover, Mr Campbell informed the Tribunal that his Paget's disease caused his arm to be weak and affected his neck, and shoulder which made it difficult to make the bed, vacuum, clean or mop floors. Mr Campbell also said that he paid a cleaner which included also cleaning his car and doing the washing.
I noted that in a letter to the Department of Veterans' Affairs dated 11 August 1999, which was before the Tribunal at Exhibit R1/17, Mr Campbell detailed the effect of his Paget's disease as follows:
"This condition has existed for many years and today extends to most parts of my body. In particular it has serious effects upon my right arm, giving me constant pain and limits the usage of that right arm. I am right handed and the disability presents me from carrying out much of my household work, without experiencing pain and discomfort.
…
At the present time, I am limited in the extent to which I can use my right arm and it requires me to hire domestic help to perform Household Cleaning and Lawn Mowing duties."
MEDICAL EVIDENCE OF DR K CLAHANE GENERAL PRACTITIONER
Dr Clahane, whose clinical notes and medical report dated 6 January 2000 were before the Tribunal as Exhibits A1 and A2 respectively, recorded his diagnosis of Mr Campbell's condition, the onset of which he said occurred in 1972, as:
"Symptomatic Paget's Disease of Bone. Confirmed Haematologically and Radiologically." (Exhibit R1/11)
Dr Clahane recorded: "?TRAUMA", in reply to a question regarding how Mr Campbell's war service caused, contributed or aggravated his condition. I noted that Dr Clahane did not provide any further elucidation as to what, if any, trauma Mr Campbell had sustained during his war service that would cause, contribute or aggravate his Paget's disease (Exhibit R1/11).
Dr Clahane completed the medical section of the application in respect of Mr Campbell's claim for an attendant allowance, as follows:
"Fully capable
This patient looks after himself very well – in spite of his largely mental health disorders
He is independent and drives to and from his home to various locations daily." (Exhibit A2)At question 8 of the Application, Dr Clahane advised the Department that Mr Campbell "… does not need an attendent (sic) for stated reasons."
In his report dated 6 January 2000, Dr Clahane reiterated his comments as recorded in the application for the attendant allowance. However, he stated why he felt that Mr Campbell needed an attendant allowance. He opined:
"The reasons why Neil Campbell does need an attendant are that he is unable to have the full use of his right arm, due to his disabilities of Pagets Disease of the bone, and because of his mental condition of schizophrenia.
Neil Campbell is unable to carry out his household chores, mow his lawn, tend his garden or work on his car. He needs to pay hired help in the form of "attendants" to perform those duties for him and that is the reason why he needs an attendants allowance."
FILE REVIEW BY DR G HESSION PHYSICIAN
Dr Hession conducted a review of the Applicant's file on 20 May 1983, which was before the Tribunal as Exhibit R1/7, and diagnosed Mr Campbell as suffering from Paget's disease. Dr Hession also noted that:
"The significance of patient's brother also having Paget's Disease is genetic. It is not relevant that his brother served in the same theatre of war as the condition is not deemed to be due to any known toxic or environmental agent."
X-RAY REPORT DATED 24 JANUARY 1980
The Applicant's condition was initially diagnosed following a barium enema conducted on 24 January 1980, which documented the appearance of Paget's disease in the pelvis and the sacrum and was before the Tribunal at page 8 of Exhibit A1.
X-RAY REPORT DATED 14 DECEMBER 1982In an x-ray report dated 14 December 1982 as Exhibit A1/7, the nuclear physician noted the presence of Paget's disease in the head of the left humerus. It was further recorded that:
"Paget's disease is noted in the pelvis and in the 1st and 3rd lumbar vertebral bodies. There is some loss of height of the 3rd lumbar vertebral body with some expansion in the A.P. diameter. These features are consistent with Paget's disease and do not appear to be related to recent trauma."
X-RAY REPORTS OF DR D HERBERT NUCLEAR PHYSICIAN
In an x-ray report dated 28 April 1993, which was before the Tribunal as Exhibit A1/79, Dr Herbert made the following observations:
"LUMBOSACRAL SPINE
The course trabecular pattern of the lumbar vertebrae is noted with a thickened cortical margin consistent with Paget's disease. There is compression and volume loss within L1 of 30% due to the expansion of the adjacent discs into the softened bodies. L5 has also lost approximately 30% of its volume … The appearance of the lumbar vertebrae are consistent with Paget's disease and osteoporosis.
PELVIS
There is a coarse trabecular pattern involving the sacrum, right and left hemi pelves and right and left femurs consistent with Paget's disease with thickening of the cortical brim of the pelvis. There is mild protrusio of the left acetabulum."In a later x-ray report dated 24 February 1999, which was before the Tribunal as Exhibit R1/27, Dr Herbert made the following updated assessment of Mr Campbell's Paget's disease:
"PELVIS
The extensive paget's disease involving all of the visualised bones is noted with slight bowing of the neck of femur and proximal femoral shaft on each side. Comparison is made to an earlier study of 28.4.93 and there is very little difference in the appearance. There is mild protrusio on the left side with the femoral head and acetabulum migrating somewhat medially.RIGHT AND LEFT SHOULDERS AND HUMERI
The paget's disease is more severe in the left humerus than in the right. There are pagetoid changes also in the left scapula. Pleural calcification over the left lung apex is noted.SKULL
The cotton wool appearance of the skull is fairly typical of paget's disease with no pituitary fossa enlargement demonstrated."
SUBMISSIONS AND CONCLUSIONS
I must take into account the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether Mr Campbell's Paget's disease was war-caused within the terms or the legislation, and whether he was eligible for an Attendant Allowance.
I noted that Mr Campbell served his country on operational service during World War II from 14 October 1942 to 17 April 1946. It was therefore appropriate in considering whether Mr Campbell's Paget's disease was war-caused, to apply the relevant SoP and the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
As a preliminary matter, Mr Campbell submitted section 120A was not applicable to his claim as he had lodged an application to have his Paget's disease recognised as being war-caused in 1981. In this respect, I noted a letter from the Department of Veterans' Affairs to Mr Campbell dated during 1985 (full date illegible), which was before the Tribunal as Exhibit A1/76, and stated that:
"After careful consideration of your claim, the delegate has been unable to relate to service, incapacity resulting from Paget's disease."
I noted that Mr Campbell then lodged a fresh application with the Department of Veterans' Affairs on 24 August 1999 regarding his Paget's disease. Because that application was made after 1 June 1994, section 120A of the Act, applies:
"… any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…"
Thus, the Repatriation Medical Authority's SoPs apply, with the effect that if a hypothesis is raised connecting Mr Campbell's condition with his war service, I am required to consider whether Mr Campbell's condition meets the template of the relevant SoP for Paget's Disease of Bone.
APPLICATION OF PRINCIPLES IN REPATRIATION COMMISSION v DELEDIO (1998) 83 FCR 82
The Full Federal Court in Repatriation Commission v Deledio (supra) held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
With respect to determining when an hypothesis is reasonable, I noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
I turned then to decide whether applying the principles set out above, the material before me raised a hypothesis connecting Mr Campbell's Paget's disease with his war service. I was mindful that no fact finding arose at this stage, nor was the reasonableness of the hypothesis at issue.
It was clear from the medical evidence before the Tribunal, and I was satisfied that Mr Campbell suffers from Paget's disease. In this respect, I noted that although the Applicant's evidence was that he had suffered Paget's disease for many years before, the condition was finally diagnosed following a barium enema conducted on 24 January 1980, which documented the appearance of Paget's disease in the pelvis and the sacrum.
In a later x-ray report dated 14 December 1982, (Exhibit A1/7), the presence of Paget's disease was noted in the head of the left humerus. It was further recorded that:
"Paget's disease is noted in the pelvis and in the 1st and 3rd lumbar vertebral bodies. There is some loss of height of the 3rd lumbar vertebral body with some expansion in the A.P. diameter. These features are consistent with Paget's disease and do not appear to be related to recent trauma."
I was also mindful that the diagnosis of Paget's disease was confirmed by Dr Hession in a file review conducted on 20 May 1983. I further noted that Dr Clahane gave the date of onset of the condition as 1972, and recorded his diagnosis of Mr Campbell's condition as follows when the Applicant applied for a pension:
"Symptomatic Paget's Disease of Bone. Confirmed Haematologically and Radiologically." (Exhibit R1/11)
Dr Herbert confirmed the extent of Mr Campbell's Paget's disease in radiological inquiries conducted on 28 April 1993 and 24 February 1999 (Exhibit A1/79 & Exhibit R1/27).
Turning to the issue as to whether a hypothesis could be established connecting Mr Campbell's Paget's disease with his service, I noted the evidence of the Applicant that although the exact cause of the condition was not known, and that there was no cure, he thought that it might have been the unhygienic conditions under which he lived in Japan, Papua New Guinea and Korea which caused his Paget's disease. I was also mindful that Mr Campbell said that he was required to traverse the regions in Japan around Hiroshima less than three years after it was affected by the atom bomb, and that this may have been the origin of his Paget's disease.
I further noted that Mr Campbell said that he did suffer direct trauma during his service in Korea, Papua New Guinea and Japan but he could not recall specific incidents nor did he recall having any open sores or wounds.
In this respect, I noted that in his written submissions dated 8 December 2000, Mr Campbell said of his close association with "primitive unhygienic natives of Papua New Guineas, Japan and Korea" that:
"These people lived and worked, amongst servicemen, and, even helped to prepare our food. The infection could have been caused in many other ways, than, by infection of open wounds and sores. No one knows how Pagets Disease is contracted. No one knows the cause, or, of any cure. Many minor cuts, sores, and abrasions, occur, and are unnoticed."
I also noted Mr Campbell's evidence regarding his brother, who also suffers from Paget's disease. He said:
"… my brother was also a member of the R.A.A.F., who, served on the same R.A.A.F. Base in Japan and also served in Korea, within a few years, after, my service period, in Japan. He could, also, have contracted his Paget Disease during his service in those areas, during the Korean War. My brother, no doubt, was also, in Hiroshima, the sight (sic) of the First Atomic Bomb Blast."
In this respect, I also noted the comments of Dr Hession in his review of the Applicant's file on Dr Hession on 20 May 1983, which was before the Tribunal as Exhibit R1/7, that:
"The significance of patient's brother also having Paget's Disease is genetic. It is not relevant that his brother served in the same theatre of war as the condition is not deemed to be due to any know toxic or environmental agent."
Ms Pacey submitted on behalf of the Respondent, that the Applicant's claim to have his Paget's disease recognised as war-caused, was based on three factors, namely:
"… he alleges that trauma during his service caused his Paget's disease, although in evidence he said that he could remember no direct trauma to any part of his body.
Secondly, he alleges that the unhygienic living conditions of the natives of Papua New Guinea, Japan and Korea, where he saw service, have caused his Paget's disease . When asked to explain how this occurred, he indicated that mere proximity to the natives could have caused this disease …
Finally, he cited being at Hiroshima three years after the bomb blast as a further factor which could have caused his Paget's disease."From all the material before me, namely the evidence of Mr Campbell, the medical evidence and the submissions of the parties, it was clear that Mr Campbell suffers from Paget's disease. Dr Clahane indicated the onset of the disease as 1972, although the actual diagnosis was confirmed radiologically and haematologically in 1980.
Although Mr Campbell attributed the cause of his Paget's disease to either trauma during his service, exposure to unhygienic living conditions in Papua New Guinea, Japan or Korea or exposure to radiation after Hiroshima, he could not indicate any particular relevant trauma he had suffered, and there was no evidence he had suffered infection due to lack of hygiene in Papua New Guinea, Japan or Korea, or exposure to radiation.
None of the medical evidence before me indicated that any wartime trauma, exposure or experience had been responsible for the condition. Indeed Mr Campbell himself gave evidence that he had been informed the origins of Paget's were unknown. Dr Hession opined that the significance of Mr Campbell's brother also suffering Paget's disease was genetic. He opined that it was not relevant that they had served in the same theatre of war as the condition was not deemed to be due to any known toxic or environmental agent.
I was not satisfied that the material before me pointed to a hypothesis connecting the Applicant's condition with his war service. Therefore, the Applicant's claim must fail.
In the alternative, if I was wrong and a hypothesis could be found connecting Mr Campbell's Paget's disease with his service, I moved to consider whether there was an appropriate SoP which could be applied to Mr Campbell's circumstances, and whether a reasonable hypothesis could be raised.
As discussed earlier in these reasons, the relevant SoP for Paget's Disease of Bone current at the time of both the Repatriation Commission decision on 31 August 1999 and the Veterans' Review Board decision on 7 February 2000 was Instrument No.15 of 1996. It was therefore the correct SoP to apply in view of the decision in Repatriation Commission v Keeley (2000) 98 FCR 108.
Having established that there was an applicable SoP, I had also to decide whether the hypothesis was reasonable and consider whether the development of the Applicant's Paget's disease was consistent with the template in the SoP. In SoP Instrument No.15 of 1996, Paget's disease of bone is defined as:
"… a disease of the bone marked by repeated episodes of increased bone resorption followed by excessive attempts at repair, resulting in weakened deformed bones of increased mass …"
The minimum factor required to relate the Applicant's Paget's disease of the bone with his war service are outlined in Factor 5 of the SoP. Factor 5 provides as follows:
"(a)inability to obtain appropriate clinical management for Paget's disease of bone."
Factor 6 provides limits the instances where factor 5(a) will apply. It states:
"Paragraph 5(a) applies only to material contribution to, or aggravation of, Paget's disease of bone where the person's Paget's disease of
bone was suffered or contracted before or during (but not arising out of) the person's relevant service."I noted that the Repatriation Commission in its decision dated 31 August 1999 rejected the Applicant's claim to have his Paget's disease recognised as being war-caused on the following basis:
"Aggravation of Paget's disease of the bone by factors that are due to service can only be considered if this condition developed before the end of service covered by the Veterans' Entitlements Act. Paget's disease of the bone developed after this service therefore I cannot take any possible aggravation into account. I can only consider whether this service caused the condition.
The circumstances of this case do not satisfy the Statement of Principles issued by the RMA in respect of Paget's disease of the bone. As a result I find that all the evidence does not raise a reasonable hypothesis connecting Paget's disease of the bone and operational service. I am therefore unable to accept it as war caused."
I further noted that the Veterans' Review Board in its decision dated 7 February 2000, examined the Applicant's evidence in light of the SoP for Paget's disease of bone. The Board found that because the clinical onset for the condition was nominated by Dr Clahane as commencing in 1972, the Applicant's claim could not be successful as factor 5(a):
"… only applies to material contribution to, or aggravation of Paget's disease of the bone when that condition was suffered or contracted before or during (but not arising out of) the person's relevant service."
Ms Pacey submitted on behalf of the Respondent that the relevant SoP had only one factor, which if satisfied, would relate an Applicant's Paget's disease with his war service, namely, the "… inability to obtain appropriate clinical management for Paget's disease". Ms Pacey further submitted for that factor to be relevant to any consideration as to whether Mr Campbell's Paget's disease was war caused, he:
"… must have suffered an aggravation of his disease, which must have been present either before or during relevant service."
Ms Pacey directed my attention to the evidence of the Applicant, in which he confirmed that he first developed symptoms of the condition in 1972, as confirmed by his General Practitioner, Dr Clahane on 18 August 1999 in Mr Campbell's claim form, which was before the Tribunal as Exhibit R1/11.
Mr Campbell submitted that at no time during his evidence did he agree or confirm that the "… onset of Pagets (sic) Disease had occurred in 1972". Rather Mr Campbell submitted that he said that he:
"… first noticed symptoms about the year 1972, but, both me and my Doctor, Dr. Kevin P Clahane agreed that the Pagets Disease could have been prevalent for many many years, before, the symptoms became apparent and could have easily been prevalent during my World War II War Service."
I was mindful, however, that there was no evidence before the Tribunal of Dr Clahane indicating that Mr Campbell's Paget's disease was contracted or arose many years prior to 1972 or that Mr Campbell suffered from it during his operational service.
Mr Campbell also said that his condition was not diagnosed any earlier as chest x-rays were the only x-rays taken by the Royal Australian Air Force ("RAAF") during medical examinations. He said further that:
"No X Ray of the lower part of my body was ever taken, until the year, 1980, when a civilian Doctor took X Rays and discovered that I had Pagets Disease of the Bone."
In contrast, Ms Pacey submitted that Mr Campbell could not satisfy the requirements of Instrument No.15 of 1996, as both he and his General Practitioner, Dr Clahane, had confirmed that the condition did not arise until 1972 and it was not until it was radiologically confirmed in 1982, that Mr Campbell was actually diagnosed as suffering from Paget's disease.
Mr Campbell submitted that his condition was actually diagnosed from an x-ray dated 24 January 1980. Whilst I noted that an x-ray report dated 14 December 1982, noted presence of Paget's disease in the head of the left humerus and in:
"… the pelvis and in the 1st and 3rd lumbar vertebral bodies. There is some loss of height of the 3rd lumbar vertebral body with some expansion in the A.P. diameter. These features are consistent with Paget's disease and do not appear to be related to recent trauma." (Exhibit A1/7)
There was an earlier x-ray report dated 24 January 1980, to which Mr Campbell correctly referred, which noted Paget's disease in the pelvis and sacrum before the Tribunal as Exhibit A1/8.
I accepted from the evidence of Mr Campbell and the medical information before me that Mr Campbell suffers from Paget's disease, which was initially confined to the lower part of his body but now affects his shoulder and neck causing him pain in those regions.
I also noted that Mr Campbell performed operational service in Korea, Papua New Guinea and Japan during the period from 14 October 1942 to 17 April 1946.
However, In coming to a decision as to whether the Applicant's Paget's disease was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986, I had to consider the relevant SoP concerning Paget's disease, namely Instrument No.15 of 1996.
Insofar as the SoP is concerned, in order to relate an Applicant's Paget's disease with the circumstances of service, Factor 5(a) provided that the Applicant must have an inability to obtain appropriate clinical management of the Paget's disease . However, the operation of Factor 5(a) was limited by Factor 6, which provided:
"Paragraph 5(a) applies only to material contribution to, or aggravation of, Paget's disease of bone where the person's Paget's disease of bone was suffered or contracted before or during (but not arising out of) the person's relevant service."
In the instant case, Mr Campbell's Paget's disease of the bone was diagnosed radiologically following a barium enema conducted on 24 January 1980, which documented the appearance of Paget's disease in the pelvis and the sacrum. I accepted the Applicant's evidence that he first noticed symptoms of his Paget's bone disease many years before.
I noted that on 18 August 1999, Dr Clahane gave the date of onset of the condition as 1972, and recorded his diagnosis of Mr Campbell's condition in the application form for pension as follows:
"Symptomatic Paget's Disease of Bone. Confirmed Haematologically and Radiologically."
I was mindful however that the SoP requires that Mr Campbell demonstrate that he was unable to obtain appropriate clinical management of his Paget's disease at the appropriate time. As the condition was not noticed until 1972 (Dr Clahane), and then not diagnosed until 1980, I preferred the submissions of the Respondent that for the factor to be relevant:
"… the applicant must have suffered an aggravation of his disease, which must have been present either before or during relevant service."
Although it is not impossible that Mr Campbell contracted Paget's disease of the bone during his service, particularly given the lack of knowledge about the way in which it is contracted, there was, nevertheless, no medical evidence before the Tribunal which suggested that the date of onset of the Paget's disease was anything other than 1972.
Therefore, I was not satisfied that Mr Campbell met the requirements of the SoP concerning Paget's disease, namely that his condition was not contracted or aggravated by his service by the failure to obtain appropriate clinical management of the disease. Thus, having considered all the medical evidence as well as the evidence of the Applicant, I was not satisfied from the material before me that a reasonable hypothesis had been raised to find the connection between Mr Campbell's Paget's disease with his war service.
I then took into account the indicia in section 120(3) of the Act and found that on the basis of consideration of the whole of the material before me, I was of the opinion the material did not raise a reasonable hypothesis connecting Mr Campbell's condition with his operational service.
I found applying section 120(1) of the Act that I was convinced beyond reasonable doubt that the Applicant's condition cannot be said to have been war-caused. Therefore, the application must fail and the reviewable decision be affirmed.
WHETHER THE APPLICANT IS ELIGIBLE FOR AN ATTENDANT ALLOWANCE PURSUANT TO SECTION 98(2) OF THE ACTI then turned to consider whether Mr Campbell was eligible for an attendant allowance pursuant to section 98(2) of the Act. In this respect, I noted that section 98 of the Act provided for the granting of an attendant allowance to an applicant in need where certain pre-conditions were met. As relevant, it follows:
"98 Attendant Allowance
…(2)Where:
(a)a veteran is being paid a pension under Part II in respect of incapacity:
(i) from a war-caused injury or a war-caused disease affecting the cerebro-spinal system; or
(ii) from a war-caused injury or a war-caused disease that has caused a condition similar in effect or severity to an injury or disease affecting the cerebro-spinal system; and
(b)the Commission is of the opinion that the veteran has a need for the services of an attendant to assist the veteran;
the Commission may grant to the veteran an allowance, called attendant allowance, at the rate per fortnight equal to the amount specified in item 1 (in column 2) of the table in subsection (1), for or towards the cost of the services of an attendant to assist the veteran.
…"
As a preliminary matter I noted that the standard of proof applicable to determine whether Mr Campbell was eligible for an attendant allowance, was that of reasonable satisfaction pursuant to section 120(4) of the Act.
I noted that the Repatriation Commission on 13 December 1999 when refusing the Applicant's claim for an attendant allowance stated that:
"I have read the available medical evidence and note that you do not suffer from any of the specific disabilities … The evidence indicates that you are able to carry out selfcare activities without assistance. I note that you mention Paget's disease in your application, however this is not an accepted war-caused disability and cannot therefore be taken into account in considering your eligibility for Attendant Allowance. I am reasonably satisfied that you do not require the services of an attendant as a result of your service-related disabilities."
The Veterans' Review Board in affirming the Repatriation Commission decision on 20 April 2000, held that:
"In this case, the Board is of the view that the substantial reason for the veteran's need for an attendant is his Paget's disease of the Bone, a non-accepted disability.
Accordingly, the veteran does not satisfy the requirements of section 98(2)(b), in that the veteran's war-caused conditions alone do not give rise to the need for an attendant."Ms Pacey submitted that in applying section 98(2) of the Act, "need is to be measured against the "normal requirements of living"". Ms Pacey drew the Tribunal's attention to the "need" test established in Trengove and Repatriation Commission (AAT 3431, 29 April 1987). I noted that the "need" test was derived from the comments of the Tribunal in Re Ryan and Repatriation (1986) 11 ALD 209 in which it was held that:
"S.98(2) of the Act is somewhat different from the previous legislation in that it clearly makes the test a two stage test. Both subclause (a) which poses a test of severity and subclause (b) which poses a test of need must be satisfied".
In considering the two stage test posited by the legislation, I noted that Senior Member Kiosoglous and Members Dowie and Rogers held in Trengove (supra) that:
"… the applicant is able to perform all of the usual activities of daily living with some limitations in some of those activities due to the weakness of his right hand. Although the applicant is comforted by the services of his wife as an attendant, the Tribunal concludes that there is no actual need for an attendant to enable him to undertake the normal activities of daily living. The applicant gave examples to establish that, in various emergency situations, his life would be endangered if he did not have an attendant to warn him and to help him adopt appropriate measures. However, a need must be more than a mere convenience or desire. Section 98 is intended to provide assistance to people who have difficulty in everyday living and is not intended to cater for emergencies."
Ms Pacey submitted that the intention of the legislation as raised in the case law, could also be clearly derived from the Explanatory Memorandum to the Act, which stated:
"Attendant allowance is to be payable to eligible veterans who need an attendant to assist with the normal requirements of living."
I noted that the Tribunal in Trengove (supra) were guided by the Guide to the Assessment of Rates of Veterans' Pensions, in their assessment of what constituted "the usual activities of daily living".
Ms Pacey submitted that in considering Mr Campbell's application for an attendant allowance, it was clear from the evidence that Mr Campbell is:
"… fully functional in all the activities of daily life. Mr Campbell today gave evidence that he can feed himself, dress and bathe himself, and attend to the functions of nature".
Ms Pacey also submitted that Dr Clahane did not regard Mr Campbell as a suitable candidate for an attendant, and directed my attention to his comments in medical section in the application for an attendant allowance. I noted that Dr Clahane recorded in the space available that Mr Campbell was:
"Fully capable
This patient looks after himself very well – in spite of his largely mental health disorders
He is independent and drives to and from his home to various locations daily."At question 8 of the Application (Exhibit A2), I also noted that Dr Clahane clearly stated that "… does not need an attendant for stated reasons."
Ms Pacey submitted that Mr Campbell's application for an attendant allowance to cover the cost of the help with cleaning, gardening and washing his car was a want rather than a need, and as he was able to attend to the activities of daily living, and thus not eligible for an attendant allowance.
Mr Campbell in the Application for an Attendant Allowance at Exhibit R2/1, Mr Campbell answered the question "why do you need an attendant", as follows:
"Bone pain, neck, joints and limbs from Paget's Disease. Cannot maintain house and garden."
Mr Campbell also submitted that the Respondent did not consider the medical report of Dr Clahane dated 6 January 2000, which set out the reasons why he required an attendant.
I noted that in that report Dr Clahane reiterated his comments as recorded in Mr Campbell's application for the attendant allowance:
"Neil is fully capable of looking after himself very well with regard to his ability to dress, feed, wash and toilet himself, inspite (sic) of his largely mental health disorders."
He did however state the reasons why he felt that Mr Campbell needed an attendant allowance. He opined:
"The reasons why Neil Campbell does need an attendant are that he is unable to have the full use of his right arm, due to his disabilities of Pagets Disease of the bone, and because of his mental condition of schizophrenia.
Neil Campbell is unable to carry out his household chores, mow his lawn, tend his garden or work on his car. He needs to pay hired help in the form of "attendants" to perform those duties for him and that is the reason why he needs an attendants allowance."
Mr Campbell argued that the Respondent's submission that Dr Clahane did not regard him as a suitable candidate for an attendant allowance was incorrect. Mr Campbell said that Dr Clahane clearly set out the reasons why he required an attendant allowance in his report.
I further noted that Mr Campbell, in response to Ms Pacey's claim that in order to be successful, he would need to show that the effect of his accepted disabilities was that he could "no longer do his household chores", said that:
"Dr. Kevin P. Clahane's letter, Dated 6 JANUARY, 2000, clearly associates my accepted disability of Schizophrenia, and, Pagets Disease, as the Reasons why I Neil Campbell need an attendant allowance. This meets the requirement stated at item (29)." [of the Respondent's written submissions]
In considering the material before me regarding Mr Campbell's claim for an attendant allowance, I noted that Mr Campbell's accepted disabilities were as follows:
Allergy State;
Recurrent Tinea;
Irritable Bowel Syndrome;
Paranoid Schizophrenia.
I was persuaded by the submissions of Ms Pacey for the Respondent that the "need" for an attendant allowance is to be "… measured against the "normal requirements of living"".
As to what constituted the "normal requirements of living", I noted that the Tribunal in Trengove (supra) was guided by the Guide to the Assessment of Rates of Veterans' Pensions, which then stated:
"Activities of Daily Living are activities which an individual needs to perform to function in a non–specific environment (i.e. to live) namely, the ability to stand, move, communicate, grasp and hold objects, receive incoming sensory stimuli, care for self and so on. Activities of Daily Living do not include those activities necessary to maintain the individual in a specific environment, that is, in the individual's personal, social and occupational environment."
The evidence from the Applicant was that he was able to attend to the normal requirements of living. This position was reinforced by his doctor, Dr Clahane who stated that:
"Neil is fully capable of looking after himself very well with regard to ability to dress, feed, wash and toilet himself, inspite (sic) of his largely mental health disorders."
Dr Clahane also stated in Mr Campbell's application for an attendant allowance, that he did not require an attendant with respect to dressing, feeding, washing and toileting.
I noted that Dr Clahane did, however, state that Mr Campbell required an attendant based on the following reasons:
"Neil Campbell is unable to carry out his household chores, mow his lawn, tend his garden or work on his car. He needs to pay hired help in the form of "attendants" to perform those duties for him and that is the reason why he needs an attendants allowance."
While I acknowledge that Mr Campbell has difficulty in attending to household chores including cleaning, mowing the lawn and tending the garden as a result of the effects of his Paget's disease on his right (dominant) arm, the purpose of the attendant allowance is to assist persons who are unable to care for themselves, not those who cannot maintain their home. In this respect, I noted that the Explanatory Memorandum to the Act stated that an:
"Attendant allowance is to be payable to eligible veterans who need an attendant to assist with the normal requirements of living."
Therefore, as I am satisfied that Mr Campbell can attend to the normal requirements of living, I am unable to find pursuant to section 98(2), that he is eligible for an attendant allowance.
In coming to my decision I have also considered what role Mr Campbell's accepted war-caused disabilities play with regard to his claim for an attendant allowance.
I noted that in his request for an attendant allowance, Mr Campbell stated the reasons for his request as resulting from :
"Bone pain, neck, joints and limbs from Paget's disease. Cannot maintain house and garden."
In evidence, Mr Campbell also stated that the medication to control his schizophrenia caused him to tire easily and made it very difficult to tend to his house or garden.
I further noted that Dr Clahane in his medical report dated 6 January 2000 that:
"The reason why Neil Campbell does need an attendant are that he is unable to have the full use of his right arm, due to his disabilities of Pagets Disease of the bone, and because of his mental condition of schizophrenia."
As stated above, I was mindful that Mr Campbell's Paget's disease and other conditions have affected the use of his right arm, and that his evidence was that he employed household help because he found he was unable to do all his housework. However, as I have concluded that his Paget's disease could not be found to be war-caused pursuant to section 9 of the Act, I am unable to find Mr Campbell eligible for an attendant allowance, the need of which arises substantially from the non-accepted disability of Paget's disease.
DECISIONIn respect of matter N2000/267, the Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 31 August 1999 as affirmed by the Veterans' Review Board on 7 February 2000 to refuse the claim of the Applicant, Mr Neil Campbell, that his Paget's disease of bone was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
In respect of matter N2000/1341, the Administrative Appeals Tribunal affirms the decision of the Respondent Repatriation Commission dated 13 December 1999 as affirmed by the Veteran's Review Board on 20 April 2000 to refuse the application of the Applicant, Mr Neil Campbell, for an Attendant Allowance pursuant to section 98 of the Veterans' Entitlements Act 1986.
I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member.
Signed: .....................................................................................
AssociateDate of Hearing 21 November 2000
Date of Written Submissions Received 15 December 2000
Date of Decision 8 February 2001
Applicant Self-Represented
Counsel for the Respondent N/A
Advocate for the Respondent Ms G Pacey
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