Dillon and Repatriation Commission - [2000] AATA 986

DECISION AND REASONS FOR DECISION [2000] AATA 986

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/123

VETERANS' APPEALS   DIVISION     )
           Re      BRIAN DILLON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Deputy President T E Barnett Brigadier R D F Lloyd, Member Dr P A Staer, Member

Date13 November 2000
PlacePerth

Decision      In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  ..........(sgd T E Barnett).........
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – applicant rendered operational service – applicant suffering from conditions of gastro-oesophageal reflux disease and hiatus hernia – whether those conditions are war-caused.
Veterans' Entitlements Act 1986 ss 9, 120, 120A, 196B
Statement of Principles concerning Gastro-Oesophageal Reflux Disease (Instrument No 121 of 1995)
Determination of Statement of Principles concerning Hiatus Hernia (Instrument No 42 of 1999)
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley [2000] FCA 532
Re Ogston and Repatriation Commission (1999) 86 FCR 578
Thompson v Repatriation Commission [2000] FCA 939

REASONS FOR DECISION

13 November 2000 Deputy President T E Barnett Brigadier R D F Lloyd Dr P A Staer

This is an application by Brian Dillon ("the applicant") for a review of a decision made by the Veterans' Appeals Tribunal ("VRB"), on 30 March 1999, to affirm the decision of a delegate of the Repatriation Commission ("the respondent") made on 25 February 1998, that the applicant's condition of Gastro-Oesophageal Reflux Disease ("GORD") is not a war-caused injury or war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing the applicant was represented by Mr B Cooper, veterans' advocate, and the respondent was represented by Mr C Ponnuthurai, an advocate for the department. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following documents tendered at hearing:

Letter from the applicant, received by facsimile on 3 August 1999, enclosing the endoscopy report of Dr Kilerby, dated 23 December 1997 – Exhibit A1;
Medical report of Dr M Glaser, dated 23 February 2000 – Exhibit A2;
Letter from Mr B Cooper to Dr M Glaser, dated 16 June 1999 – Exhibit A3(a);
Medical report of Dr M Glaser, dated 11 June 1999 – Exhibit A3(b).

The applicant also gave oral evidence.

At the conclusion of the hearing, the Tribunal afforded the respondent the opportunity to file background documents submitted to the Repatriation Medical Authority ("RMA") in its consideration of the medical condition hiatus hernia. This document entitled "Hiatus Hernia Discussion Paper", and dated 29 March 1999, was duly filed by the respondent on 18 May 2000 and was taken into evidence as Exhibit R1. The applicant was given the opportunity to file submissions on this document, but declined to do so.
The Background Facts
The background facts, as found by the Tribunal, and that are not in dispute between the parties, are as follows.
The applicant was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dillon and Repatriation Commission

Details

AGLC: Dillon and Repatriation Commission [2000] AATA 986
Case: [2000] AATA 986
Decision Date: 13 November 2000

CaseChat Overview and Summary

The applicant, a former member of the Australian Defence Force, sought a determination under the Veterans' Entitlements Act 1986 that his gastro-oesophageal reflux disease and hiatus hernia were war-caused conditions. The Tribunal was tasked with determining whether these conditions were connected to the applicant's service in Vietnam. Key issues included the application of the Statement of Principles concerning Gastro-Oesophageal Reflux Disease and Hiatus Hernia, and the relevance of the applicant's smoking and alcohol consumption.

The Tribunal examined the applicant's service records, medical history, and the evidence presented regarding the onset and progression of his conditions. The applicant claimed that his reflux symptoms began during his service in Vietnam and that he had been treated for these symptoms post-service. The Tribunal noted that the applicant's service records did not document any complaints of reflux or treatment during his service, and that he had a history of smoking and alcohol consumption, which could contribute to these conditions.

The Tribunal concluded that the applicant's conditions could not be definitively linked to his service. The Statement of Principles did not provide a reasonable hypothesis that the applicant's hiatus hernia, smoking, or alcohol consumption were connected to his service. Therefore, the Tribunal found that the applicant's gastro-oesophageal reflux disease was not a war-caused injury or disease.

The Tribunal affirmed the decision under review, finding that the applicant's conditions were not war-caused. Consequently, the applicant's claim for war-related entitlements was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

At the conclusion of the hearing, the Tribunal afforded the respondent the opportunity to file background documents submitted to the Repatriation Medical Authority ("RMA") in its consideration of the medical condition hiatus hernia. This document entitled "Hiatus Hernia Discussion Paper", and dated 29 March 1999, was duly filed by the respondent on 18 May 2000 and was taken into evidence as Exhibit R1. The applicant was given the opportunity to file submissions on this document, but declined to do so.The Background Facts The background facts, as found by the Tribunal, and that are not in dispute between the parties, are as follows. The applicant was born on 20 February 1944 and joined the Australian Defence Force on 24 February 1961. He rendered "operational service", also being "eligible war service", within the meaning of the Act in Vietnam from 22 May 1966 to 11 December 1966. He was discharged from service in 1967. On the applicant's "Record of Medical Examination of a Recruit" (T6, p16), completed upon his enlistment in the Australian Regular Army in 1961, no abnormalities with respect to stomach ulcers, indigestion or reflux were noted. On discharge from the Army in 1967, the applicant again denied any recurrent problems with respect to indigestion, ulcer of stomach or duodenum (T6, p20), and no mention is made in his service records of his being treated for indigestion or reflux problems (T6). On 21 August 1979, the applicant underwent medical examination by a Repatriation Department medical officer and no abnormality was detected with respect to his abdomen and no mention made of the applicant suffering reflux symptoms (T7, p29). During the course of that examination the applicant stated that he smoked 20 cigarettes per day and was a moderate drinker (T7, p28). On 29 June 1984 the applicant underwent a further medical examination by a medical officer of the Department of Veteran' Affairs. In the report from that examination, no mention is made of the applicant suffering from stomach upsets or reflux symptoms and examination of his abdomen again detected no abnormality (T7, p33). The applicant stated that he smoked 20-25 cigarettes a day and drank 2 stubbies of beer a day (T7, p32). On 8 July 1986 the applicant was admitted to Derby Regional Hospital for investigation of his reflux symptoms. He underwent endoscopy and was found to be suffering from hiatus hernia with severe oesophagitis and he was commenced on Tagamet (T7, p61). On 17 October 1986 the applicant underwent a further medical examination by a medical officer of the Department of Veterans' Affairs. In that examination he was noted to be overweight, with a protruding abdomen, and to have a history of hiatus hernia and peptic ulcers (T7, pp 38, 39). He was also noted to smoke 20-25 cigarettes a day, having commenced smoking at 14 years of age, and to drink 6 stubbies of beer a week. On 23 October 1997, the applicant completed a "Claim of Disability and Medical Treatment" form (T7, p41) in which he claimed his "gastro-reflux" as a war-caused disease. In that form the applicant stated that he first became aware of this disability in 1970, and a section completed by the applicant's general practitioner, Dr J Crawford, stated that the date of onset for this condition was before 1984 (T7, p46). In that form the applicant also stated that he smoked cigarettes and consumed alcohol (T7, p46).

Evidence

Evidence Before The Court

On 23 February 2000, the applicant underwent a further gastroscopy, performed by Dr Glaser, which confirmed the presence of Barrett's oesophagus (Exhibit A2). The report of that gastroscopy stated that no hiatus hernia was present on examination.The Applicant's Evidence The applicant stated in evidence that he was a driver whilst in the Army in Vietnam. He served in the Artillery Regiment based in Nui Dat (the Australian Task Force base) and his usual duties included collecting general supplies, laundry and sand. He recounted one particular incident during the battle of Long Tan when he and others were required to carry ammunition boxes to the gun sites in Nui Dat. Because of the intensity of the battle the applicant stated that he was required to carry the ammunition boxes, weighing approximately 100-120 pounds, single-handedly a distance of 30 to 40 yards. This event lasted for approximately an hour in total and was the only incident involving heavy lifting that he could recall during his time in Vietnam. The applicant stated that he first began to suffer reflux symptoms during his service in Vietnam. He described his symptoms as follows;"… sort of whoosey in the stomach and I would sort of bring food up into my oesophagus." (Transcript, pg8) When questioned about the lack of documentation about his reflux complaint and treatment with Mylanta in his service records, the applicant stated that the record keeping in the Army at that stage was quite lackadaisical and that not all complaints were documented, in particular his infection with ringworm, for which he required medical treatment (Transcript, p8). The applicant gave evidence that he continued to take Mylanta upon his return to Australia for his reflux symptoms and in the late 1960s, after his discharge from the Army, saw a doctor in Bunbury who advised him to continue with it. In approximately 1973/1974 he had a barium meal to investigate the problem and no abnormality was found. He stated that it was not until 1989 when he underwent an endoscopy in Derby that he was diagnosed as suffering from Barrett's oesophagus and hiatus hernia and was placed on Zantac tablets. The applicant is still required to visit his specialist, Dr Glaser, to monitor his condition, and is currently taking Losec tablets for his reflux symptoms. When questioned about his smoking habit, the applicant agreed that he has "smoked on and off through most of [his] life" (Transcript, p27). He gave evidence that he first commenced smoking about 10-15 cigarettes a day in 1960, prior to his enlistment in the Army in 1961. He stated that he ceased to smoke in 1962 or 1963 because he was playing football and did not recommence until around June 1966 whilst in Vietnam. He attributed his recommencement of smoking to the availability of the cigarettes in his ration packs and to the stress of the situation in which he found himself. The applicant gave evidence that he stopped smoking upon his return to Australia and did not commence smoking again until 1972. He smoked for a period of approximately 12 months and then stopped, not recommencing again until 1977. He smoked again until 1980 and once again stopped for a period of time. He recommenced once again in approximately 1992 at a time when he was under a great deal of stress at work. He stated that currently he is an "occasional social smoker" (Transcript, p11) and only smokes one or two cigarettes a day. He stated that he did not consider his habit to be an addiction, but that it did help to calm him down (Transcript, p27).

Decision

Reasons for decision

Having determined that no reasonable hypothesis can be raised under the SoP relating to GORD to link the applicant's condition with his relevant service by means of his hiatus hernia, cigarette smoking or alcohol consumption, the Tribunal finds that the applicant's condition of GORD is not a war-caused injury or a war-caused disease within the meaning the meaning of s9 of the Act.Decision Accordingly, the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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