Derry and Repatriation Commission (Veterans’ entitlements)

[2016] AATA 724

Derry and Repatriation Commission (Veterans’ entitlements) [2016] AATA 724 (20 September)

Division	Veterans' Appeals Division
File Number	2015/5508
Re	Christopher Derry
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	20 September 2016
Place	Melbourne

The Tribunal affirms the decision under review.  

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

Miss E A Shanahan, Member

VETERANS’ AFFAIRS – right shoulder injury during service – right shoulder injury accepted as defence caused – left shoulder osteoarthritis/rotator cuff syndrome – no episode of trauma – does not satisfy the SoP – decision affirmed

Legislation

Veterans’ Entitlement Act 1986
Military Compensation and Rehabilitation Act 2004

Secondary Materials

Statement of Principles concerning rotator cuff syndrome No. 101 of 2014

Statement of Principles concerning osteoarthritis No. 14 of 2010

REASONS FOR DECISION

Miss E A Shanahan, Member

20 September 2016

1. Mr Derry lodged a claim for an increase in disability pension due to development of left shoulder rotator cuff syndrome. He had previously been successful in his claim for disability pension arising from his right shoulder osteoarthritis.  The claim for the left shoulder was lodged on 12 August 2014.  Mr Derry’s claim was denied on 23 October 2014 and he then lodged an application for review by the Veterans’ Review Board (VRB). On 28 August 2015 the VRB affirmed the decision.  On 22 October 2015 Mr Derry lodged an application for further review by the Administrative Appeals Tribunal.

2. At the hearing on 22 June 2016, Mr Derry was self-represented. Mr Ken Rudge, a solicitor, appeared for the Repatriation Commission (the Commission). The Respondent provided in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 the documents known as the T-documents, which were designated Exhibit R1.  Mr Derry tendered data relating to Rotator Cuff Syndrome downloaded from the internet.  The Commission provided and tendered reports from Dr Khursandi, orthopaedic surgeon, (Exhibit R2 and R3), medical records of Mr Derry’s general practitioners at Swansea Road Medical Clinic (Exhibit R4), Mr Derry’s naval medical record (Exhibit R5) and the Transcript of the VRB hearing (Exhibit R6).  Mr Derry gave evidence before the Tribunal.

   BACKGROUND TO THE APPLICATION

3. Mr Derry enlisted in the Royal Australian Navy (the Navy) and commenced service on 6 January 1971. He was 16 years old.  He served until 5 January 1993 and at all times his service was defence service, not operational service.  In 1982, his naval medical records reveal that he complained of a sensation of numbness in relation to his left shoulder with some pain occasionally on movement and aching, particularly at night.

4. No further complaints of shoulder pain were made until 1986 when Mr Derry injured his right shoulder while playing football for the Navy in Nowra.  He fell onto his fully abducted right arm.  While he continued to complain of bilateral shoulder pain in November and December 1986, it was thereafter only reported that he had pain in his right shoulder.  At all times Mr Derry denied any injury to his left shoulder and he continues to do so. 

5. Over the years Mr Derry has experienced recurrent problems with his right shoulder, having suffered several dislocations necessitating at least three surgical procedures. These were preceded by intra-articular or sub-acromial bursa injections of local anaesthetic and cortico-steroids with short-lived benefit. 

6. Mr Derry likens his left shoulder symptoms to those in his right shoulder, but less severe.  Since his discharge from the Navy he has sustained an actual fracture of his right shoulder.  This occurred in 2010 while playing with his children.  In 1988 Mr Derry underwent tenodesis of his right long head of biceps tendon and his last reconstructive surgery in the form of a synovectomy was performed by Mr John Salmon, orthopaedic surgeon, in early August 2010.  Postoperatively, Mr Salmon recommended that Mr Derry reduce his gym work in order to avoid further shoulder injury. 

7. Mr Derry’s right shoulder injury has been accepted as defence caused since 1986 when he first injured this joint playing football.  Mr Derry has experienced ongoing intermittent pain in his right shoulder requiring the use of analgesics. On occasions the pain has been responsive to acupuncture.  In 2012 he complained to his general practitioner of pain in his left shoulder and this is recorded in his general practitioner’s medical records.  On 3 September 2012 a plain x-ray of his left shoulder and an ultrasound were performed and revealed slight degenerative changes in the acromioclavicular joint with a thickened subacromial bursa. 

8. Thereafter, Mr Derry has reported various levels of left shoulder pain, although for much of the time he has been pain free.  On 19 June 2014 he informed his general practitioner that he had injured his shoulder in 1988 while serving in the Navy and intended to lodge a claim to have any left shoulder treatment covered by Department of Veterans’ Affairs (DVA).  Mr Derry also expressed his opinion that the pain in his left shoulder was contributed to by the overuse of his left arm as a result of his right shoulder injuries.  Repeat treatment with acupuncture in June and July 2015 did not alleviate a recurrence of his pain. 

9. Despite the entries in the medical record completed by his general practitioner Dr McKernan, at the hearing of the matter before this Tribunal Mr Derry denied he had experienced any traumatic injury to his left shoulder.  His presentation to a Navy doctor in 1982 was recorded but no abnormality of the left shoulder was detected on examination.  The anti-inflammatory drug Brufen was prescribed.  He was seen next on 17 November 1986 with bilateral shoulder pain. He gave a history of having suffered an injury to his right shoulder while playing Australian Rules football.  On this occasion physical examination was quite normal in terms of range of movement although that of the right shoulder was painful. 

10. X-rays of both shoulders in 1986 were entirely normal.  By May 1987 Mr Derry’s left shoulder was asymptomatic but he continued to experience occasional pain on the right side where he was tender over the biceps tendon. A Cortisone injection was given along with anti‑inflammatory drugs and physiotherapy.  These measures were of limited success and in October 1987 the consulting orthopaedic surgeon, Mr Davidson, recommended fixation of the biceps tendon in the bicipital groove.

11. Mr Derry’s pre-discharge medical examination notes the surgery to his right shoulder and the presence of a scar beneath his right nipple with an underlying deficiency in the pectoralis major muscle.  The chest wall scar arose from the resection of a breast lump (a benign fibro-adenoma) performed while in service.  Mr Derry recently underwent plastic surgery to improve the appearance of the scar but the operation was not successful in correcting the muscle defect. 

12. While symptomatically Mr Derry had improved in terms of his left shoulder symptoms, it is to be noted that on 4 July 1988 Mr Davison, on reviewing Mr Derry some seven and a half months after his right shoulder surgery, noted there was still occasional right shoulder pain localised to the site of the operation.  Mr Derry was complaining of pain in his left shoulder similar to that he had previously experienced on the right.  The range of movement of both shoulders was normal. 

13. Mr Davison recommended steroid injections but Mr Derry declined. Mr Davison suggested that in the event that the symptoms persist, Mr Derry should consider a trial of anti‑inflammatory medication and steroid injections. If these did not provide benefit a biceps tenodesis on the left would be considered. 

    EVIDENCE BEFORE THE TRIBUNAL

14. Mr Derry gave evidence before the Tribunal and confirmed there was no episode of direct trauma to his left shoulder while in service.  He did not injure it during the 1986 football match when he sustained injuries to his right shoulder. In relation to the latter, from 1986 Mr Derry had suffered numerous further problems with his right shoulder including a more recent fracture of the greater tuberosity of the right humerus.  In his evidence he stated that all he was seeking was that the DVA pay for any surgery he might need to his left shoulder.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

    Medical Records of Dr McKernan relating to Mr Derry

15. The relevant records regarding the status of Mr Derry’s left shoulder are recorded under BACKGROUND TO THE APPLICATION.  It is recorded that he has a history of depression over many years with suicidal ideation and attempts. 

    Dr HJP KHURSANDI

16. Dr Khursandi prepared two reports for DVA. On 21 January he assessed Mr Derry in person and his report was provided on 3 February 2016.  Dr Khursandi obtained the history already reported and the radiological diagnosis on 3 September 2012 of left acromioclavicular mild degenerative joint changes with subacromial bursitis.  Mr Derry gave Dr Khursandi a history of constant ache in the left shoulder with accentuation of the pain by movement of the arm above his head or reaching forwards.  Mr Derry had ceased work in his self-owned and operated contract cleaning business in 2010. 

17. Physical examination of the shoulders as reported by Dr Khursandi revealed a full range of movement on the left side with pain at the extremes of abduction and adduction.  No crepitus was detected and there was no soft tissue or bony tenderness.  Examination of the right shoulder revealed several operation scars and slight limitation of full abduction and extension.  No other joint abnormalities were detected.  Dr Khursandi noted the findings of the plain x-ray and ultrasound of the left shoulder of 3 September 2012.  He made a diagnosis of rotator cuff tendinopathy of the left shoulder. 

18. Dr Khursandi considered the radiologically demonstrated osteoarthritic degeneration of the left acromioclavicular joint to be asymptomatic.  Mr Derry’s rotator cuff tendinopathy was considered to be predominantly an aged related degeneration that accounted for 75 per cent of the changes and 25 per cent was attributed to a left shoulder football injury.  The degenerative changes in the left acromioclavicular joint were considered to be constitutional and not related to a traumatic incident. 

19. Dr Khursandi was subsequently asked to clarify his report, in particular his diagnosis of rotator cuff tendinitis of the left shoulder.  In reply, he stated the rotator cuff tendinitis came within the definition of rotator cuff syndrome covered by the Statement of Principles concerning rotator cuff syndrome No. 101 of 2014 (SOP).  He was asked to nominate the date of clinical onset, in accordance with the decision in Re Robertson and Repatriation Commission (1998) 50 ALD 668, and on that basis nominated the date of 11 November 1986 when a Naval medical officer recorded the left shoulder pain as an injury/strain of that joint. In Dr Khursandi’s opinion the causal factors in Clause 6 as defined in Clause 9 of the SoP were satisfied. He did not specify which of the 22 factors was satisfied.

20. At the completion of the evidence as summarised above Mr Rudge suggested that the Commission arrange for Mr Derry to be seen again by his treating orthopaedic surgeon, Mr John Salmon, in relation to the assessment of the current status of his left shoulder, the definitive diagnosis and whether or not any surgical intervention was required.  The Tribunal agreed given that the evidence available was deficient and conflicting.  In addition the Tribunal was anxious to obtain further expert opinion as to the satisfaction or otherwise of the SoP and given Mr Derry’s evidence, whether there was expert opinion to support his claim that his left shoulder condition was in part or mainly due to the overuse of his left arm over a period of some years following repeated surgical intervention to the injured right shoulder. 

21. The matter was adjourned and an appointment was arranged by the Commission for Mr Salmon to review Mr Derry on 30 August 2016.  Unfortunately, this appointment was cancelled due to Mr Salmon’s ill health. A further appointment was not available until November 2016.  Mr Derry formally requested that the Tribunal proceed to make a decision on the material presently before the Tribunal.

22. As this was Mr Derry’s preferred option the Tribunal has proceeded to make its decision. 

    RELEVANT LEGISLATION

23. Section 68 of the Veterans’ Entitlement Act 1986 (the Act) defines eligible service.  Clearly, Mr Derry’s 22 years of service Royal Australian Navy between January 1971 and 1993 meets the requirements of the Act. Further, given the time frame of his service he has a dual entitlement under the Act and the Military Compensation and Rehabilitation Act 2004 (MRC Act) with offsetting provisions precluding double compensation. 

24. The standard of proof attracted is that delineated in s 120(4) of the Act which states:

    120  Standard of proof

    (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.

25. As Mr Derry’s application was lodged after 1 June 1994, s 120B of the Act is attracted:

    120B Reasonable satisfaction to be assessed in certain cases 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 eligible war service (other than operational service) rendered by a veteran;

    (b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.

    Note 1:   Subsection 120(4) is relevant to these claims.

    ...

    (3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war caused or defence caused only if:

    (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

    (b)there is in force:

    (i)     a Statement of Principles determined under subsection 196B(3) or (12); or

    (ii)     a determination of the Commission under subsection 180A(3);

    that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

26. The SoP relied on by both parties was Instrument No 101 of 2014 concerning rotator cuff syndrome.  However as at the VRB review level only the Statement of Principles concerning osteoarthritis No. 14 of 2010  was considered reference will also be made to this SoP. 

    SUBMISSIONS

27. Oral submissions clearly were not available and the parties have presumably relied on their written Statements of Facts and Contentions.

28. In his Statement of Facts and Contentions of 9 May 2016 Mr Derry stated that he had satisfied the SoP requirements outlined in Clause 3(b) and 3(c) for the injury of rotator cuff tendonitis in his left shoulder, resulting from overuse of his left upper limb following multiple injuries to his right shoulder (which have been accepted as service caused).  Clauses 3(b) and (c) relate to the definition of rotator cuff syndrome (3(b)) and the International Coding of Diseases number for rotator cuff syndrome (3(c)). Mr Derry did not address the factors that must be related to service in order to determine that rotator cuff syndrome is connected with his relevant service. 

29. Attached to his Statement of Facts and Contentions were various internet downloads relating to rotator cuff syndrome, tendinitis and impingement.  Mr Derry has relied on the report of Dr Khursandi, who made a diagnosis of rotator cuff tendonitis.  Mr Derry also referred to an article from the American Academy of Orthopaedic Surgeons in relation to the effects of overuse of the shoulder leading to the development of symptoms.

30. In the written Statement of Facts and Contentions supplied by Mr Rudge, the factor identified in relation to SoP No 101 of 2014 was factor 6(a) which states the requirement of:

    ... having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome. ...

    Mr Rudge had contended that as there was no injury recorded, nor did Mr Derry claim to have injured his left shoulder, the SoP was not satisfied. 

    TRIBUNAL DELIBERATIONS

31. There is no dispute that Mr Derry suffered an injury to his right shoulder in 1986 while playing football at the behest of the Navy.  His injuries are well documented as is his prolonged and repeated requirements for surgical intervention to the right shoulder joint.  There is no recorded evidence of injury to the left shoulder and Mr Derry has agreed in his evidence before the Tribunal that he has not at any time sustained such an injury. However, he does claim that he has overused his left shoulder as a result of his many surgical procedures on the right side and the consequent inability to use his right shoulder for considerable periods, thereby placing greater physical strain on his left shoulder. 

32. In terms of the requirement of the SoP in particular factor 6(a), Mr Derry clearly does not satisfy the requirement in relation to an injury to the left shoulder.  The SoP does not provide for the overuse of the opposite shoulder as a causal link to the development of either rotator cuff syndrome or osteoarthritis in the overused shoulder.

33. The evidence of Dr Khursandi provided to the Tribunal in the written form is puzzling to say the least.  Dr Khursandi has made a diagnosis of rotator cuff syndrome due to tendonitis involving the rotator cuff of the left shoulder.  While such a diagnosis clearly comes within the definition of rotator cuff syndrome as defined by the SoP, there is no radiological evidence before the Tribunal of tendonitis.  The investigations provided to the Tribunal revealed the presence of very mild osteoarthritic changes in the acromioclavicular joint and bursitis that is, inflammation and thickening of the sub‑acromial bursa, but no report of any inflammatory process in a rotator cuff muscle tendon.  The Tribunal notes that Dr Khursandi attributed what he said was tendonitis to predominately Mr Derry’s age, with 25 per cent of the change attributed to a left shoulder football injury occurring, according to Dr Khursandi in 1986, despite Mr Derry denying such an injury.  As a result the Tribunal cannot assign much weight to Dr Khursandi’s opinion.

34. At the VRB hearing and in the VRB’s decision the only SoP referred to was that relating to osteoarthritis of a joint, in this case the acromioclavicular joint on the left side.  The causal links considered were those delineated under Clause 6 of Instrument No 14 of 2010 these being factor 6(f) relating to trauma within 25 years before the clinical onset of osteoarthritis in the joint and factor 6(j) relating to the performance of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in the joint (upper limb only).  The VRB found that neither of these factors was satisfied as they were both limited by time, requirements and in Mr Derry’s case he did not fall within the 25 year limit imposed in factor 6(f) or the 20 year limit of factor 6(j).

35. It is regrettable that Mr Derry is not prepared to wait for a further opinion from his treating orthopaedic surgeon which may resolve areas of doubt. However, in terms of the Act, Mr Derry does not meet any of the factors outlined in the relevant SoP for either rotator cuff syndrome or osteoarthritis of an upper limb joint. His contention that his accepted right shoulder rotator cuff and joint injuries are such that he has overused his left shoulder and perhaps accelerated the degenerative osteoarthritic aging changes that would occur in various joints (but in particular the acromioclavicular joint with associated sub-acromial bursitis), is not provided for under the Act. 

1. Should Mr Derry wish to pursue his claim it would be more appropriate that he did so under the MRC Act should expert opinion suggest there has been a significant contribution to the left shoulder pathology by the accepted right shoulder pathology.  The Tribunal has become aware of the fact that Mr Derry has a related matter before the Tribunal under the MRC Act that has not yet been concluded. 

2. The Tribunal affirms the decision under review.

I certify that the preceding 37 (thirty‑seven) paragraphs are a true copy of the reasons for the decision herein of:
Miss E A Shanahan, Member

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Associate

Dated 20 September 2016

Date of hearing	22 June 2016
Applicant	In person
Advocate for the Respondent	Mr Ken Rudge - Department of Veterans' Affairs