Dodsworth and Repatriation Commission
[2003] AATA 473
•26 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/293
VETERANS’ APPEALS DIVISION ) Re DAVID JOHN DODSWORTH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb Date26 May 2003
PlaceSydney
Decision The Tribunal affirms the decision under review.
(Sgd) Mr S. Webb
..............................................
Member
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension – peptic ulcer disease – gastro-oesophageal reflux disease - gastritis – diagnosis – conformity with Statement of Principles - clinical onset - whether defence-caused.
LEGISLATION
Veterans' Entitlements Act 1986 ss 5D, 9, 68, 70, 119, 120, 120B
Repatriation Medical Authority Statement of Principles Instrument Number 53 of 2002 concerning Gastro Oesophageal Reflux Disease
Repatriation Medical Authority Statement of Principles Instrument Number 22 of 1999 concerning Peptic Ulcer Disease
Repatriation Medical Authority Statement of Principles Instrument Number 76 of 2001 concerning Chronic Gastritis
AUTHORITIES
East v Repatriation Commission (1987) 74 ALR 518
Repatriation Commission v Smith (1987) 74 ALR 537
Re Slattery and Repatriation Commission (1998) 52 ALD 90
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION
26 May 2003 Mr S. Webb 1.This is an application by Mr David John Dodsworth (“the Applicant”) for review of a specific decision of the Repatriation Commission (“the Respondent”) dated 19 May 2001 to refuse his claim for the conditions, gastritis, peptic ulcer disease and gastro-oesophageal reflux disease and to continue his disability pension at 30 percent of the general rate (Exhibit T2). The Veterans Review Board (“the Board”) reviewed the Respondent’s decision on appeal, deciding on 6 December 2001 to affirm the decision in relation to the claimed conditions and set aside the decision in relation to the assessment of the veteran’s pension, substituting therefor, that pension be assessed at 50 percent of the general rate (Exhibit T18).
2.A hearing in this matter was held before the Tribunal in Sydney on 13 February 2003 at which the Applicant gave evidence. The Applicant was represented by Mr Sherlock, an advocate from the NSW Legal Aid Commission. The Respondent was represented by Mr Modder, an advocate from the Department of Veterans’ Affairs.
3.The following documents were placed into evidence before the Tribunal:
Exhibit
Description
Date
T1-T21
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit A1
Medical reports by Dr Anthony Dinnen.
14 October 2002 and 31 January 1997
Exhibit A2
Applicant’s statement of facts and contentions.
31 October 2002
Exhibit R1
Medical report by Dr Robert Haik.
25 July 2002
Exhibit R2
Medical report by Dr Robert Haik.
18 November 2002
Exhibit R3
Medical records of Dr Stephen Williams.
Exhibit R4
Respondent’s statement of facts and contentions.
12 December 2002
issues
4.The parties are in agreement that the date of effect, should the Applicant be successful, is 18 September 2001. The issues to be determined in this matter are:
(a)whether the Applicant’s symptoms are correctly diagnosed as gastritis, peptic ulcer disease and/or gastro-oesophageal reflux disease; and
(b)whether one or more of the disorders is defence-caused; and if so,
(c)the Applicant’s correct entitlement to disability pension.
legislation
5.The relevant legislation in this matter is the Veterans’ Entitlements Act 1986 (“the Act”) and in particular the following sections:
“5D Injury/disease definitions
(1) In this Act, unless the contrary intention appears:
…
disease means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2) In this Act, unless the contrary intention appears:
…
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
…
68 Interpretation
(1) In this Part, unless the contrary intention appears:
…
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
(b) in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv) the expiration of that term ……..
…
70 Eligibility for pension under this Part
(1) Where:
…
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the member — pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member… has become incapacitated:
(i)was suffered or contracted during any defence service … of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service … of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service … rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
but not otherwise.
…
21A Determination of degree of incapacity
(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
…
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.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c) the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…
120BReasonable 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:
…
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
…
(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.
(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(3), 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.”
background
6.It is not in dispute that the 46 year old Applicant enlisted in the Royal Australian Navy on 6 February 1974 and was discharged on 5 September 1977 (Exhibit T3), which period is eligible defence service pursuant to the Act.
7.The Applicant’s condition “dislocation of the right knee” was accepted as related to his eligible defence service from 23 August 1998.
EVIDENCE
the applicant
8.The Applicant told the Tribunal he was a keen football player prior to joining the Navy, playing in the under 19 team for North Melbourne in 1972. He stated that six months before enlisting in the Navy, he was knocked down in a football game and his coach, Mr Ron Barassi, told him to “bulk up”.. He gave evidence that he continued to play football in the Navy until injuring his knee in a game at HMAS Leeuwin in 1977, effectively ending his football career. He informed the Tribunal that he was prescribed anti-inflammatory medication for his knee, which he still takes.
9.The Applicant gave evidence that he first tried smoking at the age of 12, but “didn’t like it” and did not smoke thereafter until he joined the Navy in 1974 at the age of 17. He told the Tribunal some of his mates at school smoked and drank but he did not because he wanted to be fit for football. He agreed that he had been suspended from school with a group of his mates who had been caught smoking, but stated that he had not been smoking. It was his evidence that he started smoking in the first week of his service in the Navy, accepting cigarettes while waiting between classes. He stated that initially, he smoked one or two cigarettes per day, but this increased to “a couple of packets per day” within a month and to three packets per day by the end of 1976. The Applicant explained he took up smoking because cigarettes were cheap and his mates smoked. He gave evidence he gave up smoking cigarettes “12 months ago”, having ceased in 1996 and then resumed the habit in 1997 on the event of separation from his wife.
10.The Applicant told the Tribunal that he “never touched alcohol til the Navy”, having tried beer “once or twice at Christmas”.. He gave evidence that three weeks after his induction, he went to Melbourne with his mates and got drunk, developing a “habit within a couple of months”. He explained that he drank beer and spirits after work with his mates, possibly as an escape from the regimentation of Naval life. He gave evidence that he was happy in the Navy initially but became disillusioned because there were “too many chiefs and not enough Indians”.. He explained that as he was at the bottom of the ladder, he would get “kicked in the arse” and was “victimised for a while”. He stated he gave up drinking alcohol in 1984.
11.The Applicant told the Tribunal he lived at home while serving at HMAS Cerebus in Melbourne and lived “on base” when he was transferred to Sydney. It was his evidence that drinking and smoking cigarettes were part of social life in the Navy, which he shared with his mates. He stated there was no particular event that caused him to start smoking or drinking.
12.The Applicant told the Tribunal he suffered severe stomach pains and reflux in the Navy that were attributable to a duodenal ulcer. He explained he returned from leave in November 1976 “feeling crook as a dog” and was admitted to HMAS Penguin vomiting, where he spent three weeks. He described experiencing severe abdominal pain, nausea, burning in his oesophagus and blood in his stools. He stated he had a barium meal in 1977 and a duodenal ulcer was diagnosed. The Applicant told the Tribunal his stomach problems have persisted to the present day and he suffers occasional bouts of reflux. He gave evidence that he takes medication for ulcers (Zantac) and for reflux (Abascom).
13.The Applicant told the Tribunal his drinking had caused difficulties in communications with his mother and brothers and had caused difficulties in the Navy. He related an incident in which he had been charged with malicious damage in Bondi in 1974 while “drunk out of my brain”, having damaged a pot plant. He told the Tribunal he had been disciplined for absences without leave on occasions when he had fallen asleep while drunk. The Applicant explained that he did not know why he had been demoted from the rank of Able Seaman to Seaman, observing that he “did not see eye to eye with the Divisional Officer” who recorded his performance as inferior and had him transferred to HMAS Leeuwin. He said he had “cracked up” on service at HMAS Leeuwin and falsely claimed to have been assaulted, for which he was charged by the Police. This incident, he claimed, led to his discharge from the Navy in 1977.
14.Under cross examination, the Applicant agreed that he had “wagged school pretty regularly” and had been involved in a theft and a number of fights at school. He agreed he used marijuana on a regular basis during and after service and had experimented with amphetamines and LSD. He acknowledged, after leaving the Navy, he had been charged with assault, fighting while drunk, and driving under the influence of alcohol.
medical evidence
15.It is convenient to set out the service medical history (Exhibit 3) of the Applicant in relevant detail.
7 April 1974 Gastroenteritis diagnosed (folio 15).
4 August 1974 Gastroenteritis diagnosed (folio 16).
1 November 1974 Gastroenteritis diagnosed (folio 17).
28 May 1975 Abdominal pain diagnosed (folio 19).
22 August 1975 Gastroenteritis diagnosed (folio 18).
3 May 1976Capsular strain (R) knee diagnosed (folio 41).
6 July 1976Gastritis diagnosed (folio 20).
12 January 1977 Duodenal ulcer and acute gastritis was diagnosed (folio 31). “This sailor presented with an history of epigastric pain and vomiting X 6 weeks. On Barium Meal the possibility of an ulcer crater was demonstrated. He was treated at RANH Penguin with bed rest, ulcer diet Tyrimide and Mylanta.” (folio 26)
“There is some irregularity of the duodenal bulb suggesting scarring. In the prone view there is a small collection of barium within the bulb which could represent a little ulcer crater. The remainder of the upper gastro-intestinal tract is normal.” (folio 45).
14 January 1977 Dr Brodziak reported, “History as above. No abnormal clinical signs present today, except some tenderness now in left side of his back lumbar region. Ba Meal noted. Treat as DU.” (folio 45)
21 January 1977 Dr Brodziak further reported, “Occasional lower abdominal and lower back pains but no other symptoms. No appreciable effect from Mylanta. OE: Very mild lower abdominal tenderness. These symptoms are not very suggestive of the doubtful DU report.” (folio 45)
28 January 1977 Dr Brodziak further reported, “Occasional infra umbilical pain and this is relieved by alkali. OE: Some indefinite upper abdominal tenderness. Continue present regime.” (folio 45)
10 February 1977 Dandenong Hospital recorded,“…Man admitted with haematemesis and melaena. P/H of Duodenal ulcer. He also had generalised abdominal pain. Gastroscopy – mild gastritis. Ba Meal – NAD. We feel that no serious process is going on and that future management should include control of alcohol and tobacco intake. He is obviously upset nothing is wrong. Thanks for continuing his management.” (folio 22).
4 March 1977 Dr Brodziak reported, “Recent history noted. Healed ulcer with mild gastritis and perhaps some dyspepsia but recent investigations show no active ulcer. For early discharge. No appreciable physical signs.” (folio 30).
6 March 1977 “Gastroscopy was performed by Dr. Sanderson. This showed a normal oesophagus and oesophageal gastric junction. Bile was present in the stomach and the mucosa was red. There was a slight deformity in the pylorus. Patchy duodenitis was present in the cap. No ulceration or blood was seen. His symptoms settled and he did not have any further bleeds…..” (folio 33).
26 March 1977 Bleeding alcoholic gastritis and duodenitis was diagnosed. “Mr Dodsworth vomited dark blood on three occasions on the night of admission after drinking four beers. On the day before admission he had sharp epigastric pain which has continued. Otherwise he has been quite well. No history of melaena. He drinks two to three bottles of beer per day and smokes 10 cigarettes per day. He had a duodenal ulcer diagnosed with a barium meal in November 1976. No history of ingestion of Aspirin or other drugs.” (folio 44).
6 April 1977 Acute gastritis diagnosed (folio 35).
18 April 1977 Medial meniscus injury diagnosed in the Applicant’s right knee (folio 36).
22 May 1977 Concussion and multiple minor abrasions was diagnosed. “Scratches considered to be self inflicted but no underlying cause elicited – Patient remaining pleasant, ingenuous, superficial, co-operative and denying problems. Subsequent investigation by C.I.B. confirms self inflicted injuries and charges were laid against the patient…The injuries were an impulsive suicidal gesture of the “Cry for help” type, immediately regretted and reported as an assault. Assessment: Inadequate Sociopathic Personality -– poor prognosis in short term. No evidence of Psychiatric illness.” (folio 32)
23 May 1977 Personality problem diagnosed. “Discussed – following warning from civil court. Discussion – has undertaken to undo the fabrication of lies with his mates at Stirling – apparently with some sincerity and success.” (folio 14)
7 July 1977Dr R. L. Leedman reviewed the Applicant and reported, “In November ‘76 he developed epigastric pain of ulcerative type and also pain at night and vomiting off and on. He was investigated in Victoria and Barium Meal and Gastroscopy showed Duodenal Ulcer. He continued to have trouble and was apparently drinking heavily, and had small bleeds in February and March ‘77, and Gastroscopy in R.P.H. in March ‘77 showed Duodenitis without actual ulceration. Since then he’s been on Mucaine and eating all normal foods and has had no pain or discomfort for the last two months. He has reduced his drinking and smokes about 10 cigarettes a day…..From the point of view of abdominal examination there is nothing abnormal to find, and I have no doubt, at the present juncture his ulcer has healed….It would seem to me that this man is going to have recurrent ulcerative discomfort in the future…” (folios 39-40).
16.The Tribunal had before it the clinical notes of Dr S. Williams, the Applicant’s treating General practitioner (Exhibit R3). Unfortunately, Dr Williams’ hand written clinical notes are indecipherable and offer no assistance to the Tribunal. The Tribunal notes, however, two reports by Dr P. Gerard, Consultant General Surgeon, wherein reference is made to the Applicant reporting episodic abdominal pain and bleeding. Dr P. Gerard reported (Exhibit R3 folio 201):
“I imagine you know his history fairly well and, in brief, it is worth repeating that he had an appendicectomy in 1976 which was followed in 1982 with a laparotomy for adhesions and small bowel obstruction. Again on the 23rd March, 1989 a further laparotomy was carried out for a similar problem in Melbourne and at that stage he was told his abdomen was in a ‘mess’.
He has had several admission to the District Hospital under various Surgeons because of abdominal pain but on all occasions he has settled rapidly and his x-rays and blood tests, together with a barium follow-through series on one occasions [sic] showed no evidence of obstruction or of inflammatory bowel disease. He has also had a previous CT scan and ultrasound of his abdomen by Chris Raman in November, 1989 and these were also normal.
The pain described is a nagging sort of pain in the right iliac fossa which usually occurs after eating food and is unassociated with any nausea or vomiting or any change in bowel habit. He occasionally takes Panadol for this pain which is sufficient.”
17.Dr Gerard reported on 5 February 1992 (Exhibit R3 folio 196):
“Thank you for asking me to see David again who has had further episodic dark red bleeding which apparently seems to be mostly separate in nature, although he is always a little unsure about this. Furthermore he has had sharp pain in the right upper quadrant which bothers him from time to time.
…
As previously, I think David’s main problem is that of the irritable bowel syndrome and possibly the bleeding may be related to his occasional constipation and therefore is either arising from his minimal piles or he may develop a fissure on occasions. I have seen him many times before for his abdominal problems and he seems to get his symptoms in well described episodes and in the past I feel he has responded to some Charcoal which is the simplest form of treatment.”
18.The Tribunal had before it a report by Dr I. Bruce, Consultant Physician, dated 11 May 1995 (Exhibit T7 folio 61). Dr Bruce reported:
“Endoscopy in 1992 by Dr J. Wenman, Physician at Coffs Harbour, apparently showed reflux oesophagitis….
…
Mr Dodsworth history is consistent with previous duodenal ulcer. Smoking and alcohol are probable exacerbating factors and he has had only mild indigestion since discontinuing them. I don’t think his present level of symptoms justifies further investigation, in particular endoscopy.”
19.The Tribunal had before it two reports by Dr Anthony Dinnen, Consultant Psychiatrist (Exhibit A1), who reported on 14 October 2002 at pages 5-6:
“There is no evidence of frank psychiatric disease or disorder being present during service. The evidence is that he did have significant personality problems, expressed in pathological drinking, which cause ongoing problems. I have no evidence that he had a psychiatric disease, as distinct from an underlying personality disorder, which contributed to his smoking and drinking habits.
…
As stated above, it is my view that his eligible service contributed to his smoking and drinking habits in the absence of service related psychiatric disorder, by virtue of his predisposing vulnerable personality, that is antisocial personality disorder.”
20.Dr Dinnen reported on 31 October 1997 (Exhibit A1, Attachment 1 p4):
“The history and the records and previous psychiatric reports are not entirely consistent, and this in itself is at odds with the fact that the patient appeared to have an excellent memory for a variety of matters which were discussed during the consultation. Common ground exists however with regard to the history of truancy and aggressive behaviour prior to enlistment, and the pathological abuse of a variety of substances including alcohol and marijuana and amphetamine.
…
This patient has suffered from alcoholism, which originated during service. There is a pre-existing vulnerability, by way of a longstanding personality disorder of antisocial type. Nonetheless, on the balance of probabilities I think that the patient’s service within the Navy contributed to the development of alcoholism.”
21.The Tribunal had before it two reports by Dr Robert Haik, Consultant Psychiatrist (Exhibits R1 and R2). Dr Haik reported on 25 July 2002 (Exhibit R1 p6):
“One can only agree with Dr Delaforce [Exhibit T8, folio 64] that Mr Dodsworth conforms to the [DSM IV] criteria of this disorder and therefore has Antisocial Personality Disorder.
As documented above, under [DSM IV] ‘Associated Features’ can be found many traits demonstrated by Mr Dodsworth (see also page 32 “pleasant, ingenuous, superficial, cooperative and denying problems’). Of particular note are substance related disorders and somatization disorders. Mr Dodsworth has both.”
Dr Haik commented upon the Applicant’s smoking history (Exhibit R1 p8):
“Mr Dodsworth said he began smoking cigarettes for the first time in the navy and, as best as he could recall, he increased the use to one or two packs a day (para 2.6)[Exhibit T4, folio 50]. He claimed he ceased smoking cigarettes in December 2001 and continues to abstain. (He had written in 1994 (p.50) that he had given up cigarettes then.) He said that until December 2001 he had never abstained from cigarettes for longer than 2 weeks.
The details provided by Mr Dodsworth on page 50 [Exhibit T4] concur with what he told me about his smoking habits.”
Dr Haik concluded (Exhibit R1 p8):
“Mr Dodsworth had unequivocal evidence of the beginnings of Antisocial Personality Disorder before his entry into the navy in 1974. His misuse of alcohol and his use of tobacco, combined, were a part of the substance related disorders of this psychiatric condition. The alcohol and tobacco probably contributed to his gastritis but this had nothing to do with navy stress and would have occurred if he had not enlisted in the navy. Ultimately, his Personality Disorder led to his discharge.”
submissions and findings
22.In order to make the correct and preferable decision in this matter, the Tribunal considered all the evidence, the submissions of the parties, relevant case law and the relevant legislation.
23.The Applicant will be entitled to the pension claimed if he demonstrates incapacity from a disease that relates to his defence service, that is a defence-caused disease. The relevant standard of proof is the “reasonable satisfaction” standard under subsection 120(4) of the Act, that is, the civil standard of the balance of probabilities: East v Repatriation Commission (1987) 74 ALR 578. Pursuant to subsection 120B(3), the Tribunal will only be reasonably satisfied that an injury or disease is defence caused, if the material before the Tribunal, raises a connection between the injury or disease and the defence service of the person and there is in force a Statement of Principle (SoP) that upholds the connection on the balance of probabilities.
24.Beaumont J discussed the meaning of the term “reasonable satisfaction” in Repatriation Commission v Smith (1987) 74 ALR 537 and observed at 547:
“There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.”
The Tribunal turned to carefully consider the evidence before it.
25.The Tribunal finds there are issues of reliability and credit concerning the Applicant’s evidence. The Tribunal finds the Applicant gave evidence guardedly for advantage. These matters will be taken into account when considering the weight to be given to the Applicant’s uncorroborated evidence.
26.The Tribunal found and the parties did not dispute:
(a)the Applicant served in the Royal Australian Navy and has eligible defence service from 6 February 1974 to 5 September 1977, inclusive, as defined in section 68 of the Act; and
(b)the date of effect, should the Applicant be successful, is 18 September 2001.
27.In the first instance it is necessary to determine the correct and preferable diagnosis of the Applicant’s symptoms of injury or disease. The Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 stated at para 55:
“The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of that disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1).”
diagnosis
28.The symptoms the Applicant described to the Tribunal are occasional bouts of reflux and continuing epigastric problems for which he takes Zantac.
29.Mr Sherlock, for the Applicant, submitted the correct diagnoses are gastritis, peptic ulcer disease and gastro-oesophageal reflux disease.
30.In the case of Re Slattery and Repatriation Commission [1998] AATA 427 a previous Tribunal considered the role of SoP’s in the diagnosis of disease, albeit in a different service context, and observed at para 69:
“It seems to us that a SOP cannot be used to establish the particular disease or injury from which the person suffers. It is only once that condition has been determined that there arises the question whether that disease or injury was caused, or contributed to, by the relevant service i.e. whether the disease or injury is a war-caused disease. In that instance, regard must then be had to the SOP…”
31.In order to determine whether or not the Applicant’s symptoms comprise an injury or a disease pursuant to subsection 5D(1) of the Act, the Tribunal turned to consider the Applicant’s medical history and the clinical notes of his treating General Practitioner, Dr Williams, which commenced on 20 February 1991 and concluded on 12 June 2002 (Exhibit R3).
32.The Tribunal noted that while Dr Williams’ hand written notes were illegible, there was no evidence in his clinical documents of any investigations, specialist opinions or pathology that would indicate the presence of duodenal ulcer. Dr Williams completed a medical impairment assessment on 15 January 2001 (Exhibit T11) in which he reported the Applicant experiencing symptoms of chronic gastritis for which he was treated with Zantec.
33.On 5 February 1992, Dr Gerard, Consultant General Surgeon, referred to serial consultations with the Applicant in relation to abdominal pain, which he related to irritable bowel syndrome and mild constipation (Exhibit R3 folios 196-197). Dr Gerard reported on 23 April 1991 (Exhibit R3, folio 202):
“I note that a recent ultrasound that you had ordered and which was done by Fran Newman on the 4th March showed no abnormality in the upper abdomen.
It is my opinion that there is no serious underlying organic problem in David’s case and I certainly wouldn’t be tempted to operate on him for his present symptoms, which seem to be relatively mild.”
It is clear that Dr Gerard’s comments relate to symptoms described by the Applicant relating to pain in the “right iliac fossa”.. Pain associated with the claimed conditions would not be expected to occur in the iliac fossa region. The Tribunal is satisfied, therefore, that Dr Gerard’s assessments were not directed in response to epigastric symptomatology or pain.
34.Considering all the evidence, the Tribunal is reasonably satisfied the Applicant was correctly diagnosed with gastritis in 1976 with subsequent diagnoses indicating the Applicant suffered “acute gastritis” (Exhibits T3 folio 31 and T3 folio 35), “mild gastritis” (Exhibit T3 folio 22) and “alcoholic gastritis” (Exhibit T3 folio 44). Dr Williams reported the Applicant experienced symptoms of chronic gastritis in January 2001 (Exhibit T11 folio 85). The Tribunal accepts Dr Williams’ assessment and is reasonably satisfied the Applicant suffered from chronic gastritis.
35.The evidence concerning the diagnosis of duodenal ulcer in January 1977 is equivocal. The results of one Barium meal test indicated the “possibility” of a duodenal ulcer (Exhibit T3 folio 26). The condition was treated as a duodenal ulcer (Exhibit T3 folio 45) but Dr Brodziak reported the Applicant’s symptoms were “not suggestive of doubtful DU report” (Exhibit T3 folio 45). A second Barium meal test and subsequent gastroscopic investigations at the Dandenong Hospital, however, revealed no such ulceration but confirmed a diagnosis of alcoholic gastritis and duodenitis.
36.Dr Bruce opined in 1995, that the Applicant’s history was consistent with previous duodenal ulcer, noting that “smoking and alcohol are probable exacerbating factors and he has had only mild indigestion since discontinuing them”. While there is no evidence Dr Bruce conducted any investigations to confirm the Applicant’s reported history, he concluded that the level of the Applicant’s symptoms did not justify further investigation, in particular endoscopy. There is no other medical evidence before the Tribunal that the Applicant experienced symptoms of or was treated for duodenal or peptic ulcer disease after service or that he currently suffers from clinically significant symptoms of that condition.
37.While a diagnosis of duodenal ulcer remains open as a real possibility, the preponderance of the medical evidence does not support such a conclusion as a probability. The Tribunal is persuaded by the evidence of Dr Brodziak and Dr Sanderson in 1977 and noted the absence of any subsequent medical finding or diagnosis affirming the Applicant’s claim and Mr Sherlock’s submission concerning duodenal ulcer. The Tribunal finds a diagnosis of duodenal ulcer is not made out on the evidence to its reasonable satisfaction.
38.There is paucity of medical evidence supporting the Applicant’s claim that he experiences occasional bouts of reflux or, in Mr Sherlock’s submission, that this condition constitutes gastro-oesophageal reflux disease. The only evidence of this before the Tribunal is that of Dr I. Bruce who reported (Exhibit T7 folio 61):
“Endoscopy in 1992 by Dr J. Wenham, Physician at Coffs Harbour, apparently showed reflux oesophagitis.”
Dr Wenham’s report, however, is not in evidence before the Tribunal.
39.Dr Sanderson performed a gastroscopy and reported on 6 March 1977 that the Applicant had a “normal oesophagus and oesophageal gastric junction” (Exhibit T3 folio 33). The Tribunal notes the absence of any medical evidence to support the Applicant’s contention that he suffered from this condition at any time prior to Dr Wenham’s apparent finding or thereafter to the present day.
40.On balance, the Tribunal accepts the Applicant’s evidence that he has occasional bouts of reflux from time to time and is reasonably satisfied that this condition may be diagnosed as intermittent reflux oesophagitis.
41.Considering all the evidence, the Tribunal finds to its reasonable satisfaction that the correct diagnoses of the Applicant’s claimed symptoms are chronic gastritis and reflux oesophagitis. In making this finding, the Tribunal notes that the medical evidence indicates that the Applicant was diagnosed with gastritis in 1976, which he still experienced in 2001. He was diagnosed with duodenitis in 1977 but there is no medical evidence this condition persisted thereafter and the Tribunal is reasonably satisfied that it did not. The Applicant was apparently found to be suffering reflux oesophagitis in 1992 and the Applicant claims he experiences the symptoms of this condition from time to time, however, there is no medical evidence before the Tribunal to support this claim.
are the claimed conditions defence-caused?
42.It is necessary to consider whether the material before the Tribunal raises a causal connection between the Applicant’s defence service and his chronic gastritis or reflux oesophagitis. For this purpose it is necessary to ascertain whether there is in force a relevant SoP, determined by the Repatriation Medical Authority under subsection 196B(3) of the Act, in relation to each of the conditions and, if so, whether the SoP upholds the contention that the disease is, on the balance of probabilities, connected with the Applicant’s defence service.
43.Mr Sherlock, for the Applicant, submitted that the Applicant’s chronic gastritis and reflux oesophagitis arose from the Applicant smoking cigarettes and drinking alcohol in consequence of his defence service.
44.Applying the approach set out in Repatriation Commission v Keeley (2000) 98 FCR 108, the Tribunal turns, first, to the SoPs that are currently in force.
chronic gastritis
45.The relevant SoP for the condition of gastritis that is currently in force is Instrument 76 of 2001 concerning Chronic Gastritis. The SoP for Chronic Gastritis that was in force on 18 December 2000, the date the Applicant lodged the claim for Disability Pension, was Instrument Number 61 of 1999 concerning Chronic Gastritis.
46.SoP 76 of 2001 defines “chronic gastritis” to mean “the presence of histologically demostrated chronic inflammatory cell infiltrate of the gastric mucosa, attracting ICD-10-AM code K29.3, K29.4 or K29.5”. The relevant ICD-10-AM codes are as follows:
“K29.3 Chronic superficial gastritis
K29.4 Chronic atrophic gastritis
Gastric atrophy
K29.5 Chronic gastritis, unspecified
Chronic gastritis:· Antral
· Fundal”
47.Consistent with Dr Williams’ assessment, the Tribunal is reasonably satisfied that the Applicant’s gastritis was a persistent and therefore chronic condition during the period following its first diagnosis in July 1976 despite various diagnoses of “gastritis”, “acute gastritis”, “mild gastritis” and “alcoholic gastritis”. The word “chronic” is defined in Black’s Medical Dictionary (39th edition, 1999) as follows:
“A persistent or recurring condition. The disease, which may or may not be severe, often starts gradually and changes will be slow. Opposite: acute.”
This being the case, the Tribunal is reasonably satisfied the Applicant’s gastritis falls within the terms of the SoP concerning chronic gastritis.
48.The SoP sets out the factors at clause 5 that must as a minimum exist before it can be said that chronic gastritis is related to the circumstances of the person's relevant service:
“Factors
5. The factors that must exist before it can be said that, on the balance of
probabilities, chronic gastritis or death from chronic gastritis is
connected with the circumstances of a person’s relevant service are:
(a) suffering from Helicobacter pylori infection of the stomach before
the diagnosis of chronic gastritis; or
(b) suffering from Helicobacter heilmannii infection of the stomach
before the diagnosis of chronic gastritis; or
(c) inability to obtain appropriate clinical management for chronic
gastritis.”
49.The material before the Tribunal, however, does not point to the existence of any of the factors set out at clause 5 of the SoP. The Tribunal considered SoP 61 of 1999 concerning chronic gastritis and concluded the terms therein are not more favourable to the Applicant.
50.This being the case, the Tribunal finds to its reasonable satisfaction the connection between the Applicant’s defence-service and chronic gastritis contended for the Applicant by Mr Sherlock is not upheld by the SoP template. This being the case and pursuant to subsection 120B(3) of the Act, the Tribunal finds the Applicant’s gastritis is not defence-caused.
reflux oesophagitis
51.SoP 52 of 2002 concerning Gastro-Oesophageal Reflux Disease states at clause 2(b):
“For the purpose of this Statement of Principles “gastro-oesophageal reflux disease” means the regurgitation of gastric content into the oesophagus together with resultant symptomatic or histological evidence of oesophageal inflammation.
Gastro-oesophageal reflux disease attracts ICD-10-AM code K21.”
The relevant ICD-10-AM code provides:
“K21 Gastro-oesophageal reflux disease
K21.0 Gastro-oesophageal reflux disease with oesophagitis
Reflux oesophagitis
K21.9 Gastro-oesophageal reflux disease without oesophagitis
Oesophageal reflux NOS”
The Tribunal is satisfied the Applicant’s reflux oesophagitis falls within the terms of the SoP concerning gastro-oesophageal reflux disease.
52.The SoP sets out at clause 5 the factors that must exist before it can be said, on the balance of probabilities, gastro-oesophageal reflux disease is connected with the person’s relevant service. The Applicant relied upon factors 5(c) and (d) of the SoP, which state:
“(c) smoking at least 10 cigarettes per day of the equivalent thereof in other tobacco products, and having smoked at least two pack years of cigarettes or the equivalent thereof in other tobacco products, at the time of the clinical onset of gastro oesophageal reflux disease; or
(d)suffering from alcohol dependence or alcohol abuse and consuming alcohol at the time of the clinical onset of gastro-oesophageal reflux disease……..”
Clause 8 of the SoP relevantly defines:
“‘pack years of cigarettes…’ means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7,300 cigarettes…”
53.The only medical evidence of reflux oesophagitis is the reference by Dr Bruce to the condition having been noted by Dr Wenham during endoscopic investigation in 1992. Dr Sanderson conducted a gastroscopy in March 1977 and reported the Applicant’s oesophagus and oesophageal gastric junction were normal. The Tribunal is reasonably satisfied, therefore, that the clinical onset of reflux oesophagitis was in 1992.
54.Dr Bruce records the Applicant “smoked 20 cigarettes per day until stopping in July 1994” (Exhibit T7 folio 61). The smoking questionnaire the Applicant completed on 25 October 1995 indicates he commenced smoking in 1974 and “increased to 1-2 pk per day”, ceasing smoking in 1994 (Exhibit T4 folio 50). This material points to the Applicant smoking more than 10 cigarettes per day and at least 2 pack years of cigarettes at the time of the clinical onset of reflux oesophagitis.
55.The Applicant gave evidence that he had not smoked prior to enlisting in the Navy because of his commitment to playing football. His evidence was that he commenced smoking in the first week of his defence service, being offered cigarettes by his mates and trainers in an environment where cigarettes were cheap. He gave evidence that he increased his smoking and developed a habit within a month, smoking 2 packets containing 20 cigarettes per day in 1974 and 3 packets per day in 1976. The Applicant stated he continued his interests in football in the Navy throughout this period, until injuring his knee and ending his football career in April 1977. His evidence was that he ceased smoking for one year in 1996, but recommenced on the event of his separation from his wife in August 1997 and ultimately ceased “12 months ago”.
56.The question to be answered is whether the Applicant’s smoking habit is, on the balance of probabilities, attributable to his defence service.
57.The Tribunal notes inconsistencies in the Applicant’s evidence concerning his smoking. The Applicant told the Tribunal that he stole his first cigarette from an Aunt at the age of 12, but did not like it and did not smoke again until enlisting in the Navy. There is material, however, indicating that the Applicant was suspended from school for smoking before he enlisted in the Navy (Exhibit A1, Attachment p3). The Applicant told the Tribunal it was his interest in playing football that prevented him from drinking and smoking prior to enlistment, claiming he commenced smoking and drinking in the first week of his defence service. The Applicant told the Tribunal, however, he maintained his interest in playing football on service until he was prevented from playing in 1977 in consequence of a knee injury, which is accepted as defence caused. The reason the Applicant gave for commencing smoking on service was that others were smoking, cigarettes were cheap and he enjoyed drinking and smoking with his mates. There is evidence and the Applicant agreed that he was exposed to smoking and drinking in the company of his mates prior to enlistment.
58.The medical evidence indicates that the Applicant’s antisocial personality disorder was a factor in his smoking, drinking and drug use and was in evidence prior to his enlistment in the Navy. Dr Delaforce reports that the Applicant was “highly predisposed to reacting unfavourably to navy life and probably would have had similar difficulties if he remained in civilian life” (Exhibit T64). Dr Haik reports that the Applicant’s antisocial personality disorder has associated features comprising substance related disorders and somatization disorders (Exhibit R1, p6). Dr Dinnen reports (Exhibit A1, Attachment p4):
“The history and the records and previous psychiatric reports are not entirely consistent, and this in itself is at odds with the fact that the patient appeared to have an excellent memory for a variety of matters which were discussed during the consultation. Common ground exists however with regard to the history of truancy and aggressive behaviour prior to enlistment, and the pathological abuse of a variety of substances including alcohol and marijuana and amphetamine.”
59.Referring to the case of Repatriation Commission v Tuite (1993) 39 FCR 540, Mr Sherlock submitted that the Applicant was socialised into smoking and drinking by the Navy and that such activities were a part of Navy life. It was Mr Sherlock’s contention that the Applicant’s claim is not disturbed by claims that he smoked and drank because of his personality disorder. In Mr Sherlock’s submission, the Applicant’s experiences in the Navy materially contributed to his smoking and drinking alcohol, in consequence of which he contracted the claimed conditions.
60.In Mr Modder’s submission, the Applicant smoked and drank socially with his mates because he enjoyed it, contending that the Applicant gave evidence he was happy in the initial period of his defence service, his difficulties with regimentation and “too many chiefs” occurring only later in his Navy career. It was Mr Modder’s submission that a temporal connection, alone, is not sufficient to establish the requisite connection between the Applicant’s defence service and his smoking and drinking. The Tribunal agrees.
61.Taking these matters into account, the Tribunal is not persuaded by Mr Sherlock’s submission and observes that the material points to the Applicant being in a social milieu in which smoking was common amongst his peers prior to his enlistment in the Navy. There is material that points to the Applicant commencing smoking prior to his enlistment in 1974, despite his evidence to the contrary. There is no material pointing to an event or occurrence of significance that caused the Applicant to take up smoking on service. The Applicant told the Tribunal he enjoyed drinking and smoking with his mates on service. There is no material pointing to the Applicant being under any pressure to smoke while on service, nor is there material pointing to the Applicant experiencing boredom or stress on service during the period when it is alleged he took up smoking.
62.Mr Modder distinguished the case of Tuite (supra) on the facts. The Tribunal agrees. In the Tuite case, the veteran lived on the base and endured the boredom of camp life, while also experiencing some apprehension about his future in anticipation of going to war. It was found that these elements and the availability of cheap cigarettes caused the veteran to smoke cigarettes. In the present case, the Applicant had access to cheap cigarettes but lived off-base for an extended period after enlistment. There is nothing in the material before the Tribunal indicating he experienced boredom or apprehension about his future in the defence service in the first weeks of his defence service, when it is claimed he took up smoking. On the contrary, the material points to an individual with a personality disorder and an associated predisposition to substance abuse enlisting in the Navy, living off-base as he had done previously and smoking and drinking socially with his mates while pursuing his interests in football. The Tribunal accepts the Applicant’s evidence that he was offered cigarettes by trainers as well as mates and that he smoked between classes. This, however, does not lead the Tribunal to the conclusion sought by the Applicant. The fact that the Applicant smoked between classes in his first weeks in the Navy is consistent with medical opinions in evidence that the Applicant was predisposed to substance abuse and evidence that he smoked prior to enlistment. These factors point to a conclusion, on the balance of probabilities, that the Applicant smoked in the Navy because he was already habituated to that activity in a social context when he enlisted.
63.Considering all the material, the Tribunal is not persuaded that Mr Sherlock’s submission is made out on the evidence to be other than a possibility. The evidence indicates that the Applicant was exposed to smoking and drinking in a cultural milieu in which truancy, fighting and smoking were commonplace. The Applicant’s own evidence was that he stole his first cigarette at the age of 12. The preponderance of the medical evidence reveals that the Applicant had a predisposition to substance abuse in consequence of a personality disorder that was, more likely than not, in evidence prior to his enlistment in the Navy.
64.Taking these matters into consideration, the Tribunal is not persuaded by Mr Sherlock’s submissions and finds the contention put forward by the Applicant connecting his defence service and his smoking habit to be implausible, being too tenuous and not pointed to by the material before the Tribunal. The Tribunal is asked, on the one hand, to accept that the Applicant’s claim that he did not smoke prior to service because of his interest in football, despite his admission that his mates smoked, evidence that he was suspended from school for smoking with his mates and evidence of a predisposition to substance abuse in consequence of a personality disorder. Whereas on the other hand, despite his ongoing interest in football and the continuation of his living arrangements off-base, the Tribunal is asked to accept that the Applicant was socialised into smoking and drinking on service, having taken up smoking in the first week of his service for no other reason that others were smoking, cigarettes were cheap and he enjoyed drinking and smoking with his mates.
65.The Tribunal finds, on the balance of probabilities, that the material does not point to a causal connection between the Applicant’s defence service and his smoking habit.
66.The Tribunal turns to consider the Applicant’s contention concerning alcohol and finds that the connection to service is not upheld by factor 5(d) of the SoP, which requires that the person must be suffering from alcohol dependence or abuse and consuming alcohol at the time of the clinical onset of reflux oesophagitis. The material, including the Applicant’s own evidence, clearly points to the Applicant ceasing alcohol consumption in 1984, 6 years prior to the date of clinical onset of reflux oesophagitis.
67.This being the case, the Tribunal finds the contentions raised by the Applicant connecting his defence service with his reflux oesophagitis do not fit the SoP template and are not upheld, on the balance of probabilities, pursuant to subsection 120B(3) of the Act. The Tribunal notes that SoP 63 of 1999 concerning Gastro-Oesophageal Reflux Disease, which was in force on the date of the Applicant’s claim, is not more favourable to the Applicant.
68.The Tribunal is not able, therefore, to achieve a state of reasonable satisfaction that the Applicant’s defence service is causally connected to his medical conditions of chronic gastritis and reflux oesophagitis and the Applicant’s claim must fail.
69.The Tribunal notes that if it had found differently in relation to the question of diagnosis of duodenal ulcer, and such diagnosis was made out on the material, it would be necessary to consider the relevant SoP for that condition, being SoP Number 22 of 1999 or, in the alternative, previous SoP Number 10 of 1994. The Applicant claimed his smoking had given rise to the condition of duodenal ulcer and sought to rely on SoP factor 5(b), which requires the smoking of at least 10 cigarettes per day at the time of the clinical onset of peptic ulcer disease. Peptic ulcer disease is defined in the SoP to include “chronic duodenal ulcer”. Setting to one side the question whether the Applicant’s claimed condition would constitute chronic duodenal ulcer, the Tribunal accepts that the Applicant was smoking the requisite amount of cigarettes during his defence service. However, the Tribunal has found as a fact that the Applicant’s smoking habit was not causally related to his defence service. This being the case, even if it was found that the claimed duodenal ulcer fell within the terms of the SoP, with clinical onset during the period of the Applicant’s defence service, the SoP would not uphold the connection to service contended for by Mr Sherlock. In which case it would follow, therefore, that the duodenal ulcer was not defence-caused as claimed.
decision
70. The Tribunal affirms the decision under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.
Signed: (Sgd) Kwai-Ling Wong .......................................................................................
AssociateDate/s of Hearing 13 February 2003
Date of Decision 26 May 2003Representative for the Applicant Mr R. Sherlock, NSW Legal Aid Commission
Representative for the Respondent Mr S. Modder, Department of Veterans Affairs
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