Doyle and Repatriation Commission
[2008] AATA 148
•26 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 148
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/525
VETERANS’ APPEALS DIVISION )
ReJOHN CHARLES JOSEPH DOYLE
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalDr J Campbell, Member
Date26 February 2008
PlaceSydney
DecisionThe decision under review is affirmed.
...............[sgd]...............................
Dr J Campbell
Member
CATCHWORDS
Veterans’ entitlement – claim for Bronchiectasis and Adjustment Disorder to be war-caused diseases – work environment – decision under review affirmed.
Veterans’ Entitlements Act 1986: ss 5D, 7, 9, 13, 14, 120(4), 120B
Benjamin v Repatriation Commission (2001) 64 ALD 411
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
26 February 2008
Dr John Campbell, Member
summary
1. Mr Doyle, an 85 year-old veteran, lodged a claim on 26 November 2002 seeking to have various conditions accepted as either war-caused injuries and/or diseases. Bilateral sensorineural hearing loss and tinnitus in the right ear were accepted as war-caused injuries/diseases on 23 April 2003. The conditions of bronchiectasis and adjustment disorder with anxiety were not accepted as war-caused diseases by the Repatriation Commission on 23 April 2003. This latter decision was affirmed upon review by the Veterans’ Review Board on 7 February 2006.
2. Mr Doyle seeks to appeal the decision of the Repatriation Commission dated 23 April 2003, as affirmed by the Veterans’ Review Board on 7 February 2006, as regards the issue of whether the conditions of bronchiectasis and adjustment disorder with anxiety are war-caused injuries and/or diseases.
3. Mr Doyle served in the Australian Army as a CpL Armourer from 30 March 1942 to 4 December 1942. As all this service was within Australia, such service is considered eligible service pursuant to s 7 of the Veterans’ Entitlements Act 1986 (the Act).
issues
4. The relevant issues in this matter are:
(a)What are the diagnoses for the conditions claimed?;
(b)When did the clinical onset of the two diseases commence?;
(c)Was either of the diseases contributed to in a material degree and/or aggravated by Mr Doyle’s period of eligible service?; and
(d)Were the diseases war-caused?
decision
5. For the reasons stated later in this decision, I find that:
(a)The diagnoses for the two diseases under consideration are:
(i)bronchiectasis; and
(ii)adjustment disorder with anxiety;
(b)the clinical onset for each of the diseases was:
(i)bronchiectasis: 1937 or possibly as early as when Mr Doyle suffered his first episode of pneumonia; and
(ii)adjustment disorder with anxiety: circa 1985, associated with worsening of his lung condition;
(c)neither of the two diseases nominated were materially contributed to and/or aggravated by Mr Doyle’s period of eligible service; and
(d)neither of the diseases is war-caused.
background
6. Mr Doyle left school at age 15. For 12 months Mr Doyle was then employed undertaking manual duties with General Motors and Stomberg Carlson, prior to commencing working as a junior storeman with the Department of Defence. After about 12 months, Mr Doyle became a junior armourer with the Department of Defence, servicing rifle barrels.
7. Mr Doyle appears to have undergone a medical board examination on 23 October 1941, during which it was noted that he had his tonsils and adenoids removed in 1928, while further recruitment procedures (chest X-ray and vaccination) were noted to have occurred on 3 April 1942. It is noted that Mr Doyle is stated to have commenced a period of full-time duty on 30 March 1942 and served for 250 days prior to his discharge as medically unfit on 4 December 1942 (T4 p22).
8. During his period of full-time duty, Mr Doyle stated that his work as an armourer included both maintenance and repair of rifles. Mr Doyle also stated that his duties included initially “oil blackening” of rifles (dipping rifles in oil and then burning the oil off) and later “blueing” of the rifles (placing the rifle in a basket that was then dipped in a vat of chemicals). Mr Doyle stated that a sergeant major controlled the mixing and heating of the chemical mix, with him, amongst others, performing the dipping. Mr Doyle stated that he could remember a chemical smell and observing a bluish type haze around the vats.
9. Mr Doyle detailed a history of an attack of pneumonia at age five with hospitalisation at the Coast Hospital (Prince Henry), a second bout in 1937 (no hospitalisation) and an admission to Lewisham Hospital in 1936 for nasal antrum surgery. Prior to his service, Mr Doyle played tennis and the clarinet. Mr Doyle also detailed a history of a cough when attending school at Belmore, aged 14 and for which he was called “consumma” by fellow students. Mr Doyle believed it to be a dry cough, and that the nature of the cough remained the same until he had the haemorrhage in 1942.
10. Mr Doyle stated that he was walking along the street when he felt a hot flash in his mouth and that he was going to be sick, after which blood flowed from his mouth. Mr Doyle stated that he was admitted to hospital and after the first haemorrhage, he noted that there was some phlegm, sometimes bloodstained, associated with his cough. Mr Doyle stated that after his period of hospitalisation, he was discharged from the Army.
11. Mr Doyle was unable to detail his health status after his discharge, other than to say that it was okay and things had to be done in moderation (experiencing tiredness when riding a push bike or playing golf). Mr Doyle believes he has been treated with Ventolin and Atrovent for about 40 years, having consulted the outpatients department at St George Hospital since the mid to late 1950s..
12. Mr Doyle, in response to questions asked in cross-examination, detailed the uncontrolled and unpredictable nature of his cough while at school, but that it remained unproductive until the event in 1942. In response to a report by Dr Charles Bickerton Blackburn in 1942, contained within Mr Doyle’s army medical records that Mr Doyle had detailed a definite history of a productive cough since 1937 (from the second episode of pneumonia to the initial haemoptysis), Mr Doyle stated that as it was so long ago, he was unable to answer such a question.
13. Further, in cross-examination, Mr Doyle detailed that after he was discharged from the Army in 1942, he worked as a draftsman in the Army Design Division and later with the Lands Department. Following such activities, Mr Doyle stated that he ran a florist shop with his wife for five years, during which he sold his clarinet (on instruction in 1948) prior to working as a newspaper delivery contractor for 20 years. Mr Doyle stated that he then worked as a real estate salesman. He then ran squash courts for five years prior to becoming a post office agency owner for 12 years.
14. During his working career, Mr Doyle noted that exertion made him tired, although while his cough was always there, it never loosened until 1985, when it got very bad. Mr Doyle confirmed that he did not receive any particular treatment for his respiratory condition between 1942 and 1953/54. Mr Doyle detailed how in 1985, his coughing would cause him to “blackout”, and thereafter his condition has worsened with some days better than others.
consideration and findings
15. I note that the kind of disease suffered by a veteran must be determined on the balance of probabilities (Benjamin v Repatriation Commission (2001) 64 ALD 411, considered and followed). I note that s 5D of the Act defines “disease” as:
…
(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)…
16. In addressing the pulmonary condition, I note the entry in the army medical record for 17 Camp Hospital, Liverpool, on 15 October 1942, namely “coughed up blood about a cupful 1 hour ago. Has had a cough for some years”. The doctor also notes at the examination of the chest that “bronchitic signs scattered all over both lungs (T3 p4). A plain X-ray of the chest is reported on 19 October 1942 by a specialist as “atelectosis, congestion and fibrosis at and behind cardiac apex. Probable bronchiectasis” (T4 p9).
17. Mr Doyle was transferred to 113 AGH (Concord) on 23 October 1942, where the attending medical practitioner notes that Mr Doyle has suffered from cough with sputum for approximately five years (T3 p5). An X-ray (lipoidal) of the chest on 30 October 1942 is reported as demonstrating definite saccular bronchiectasis at the left base especially in retro-cardiac bronchi and early changes in one or two bronchi at the right base also (T3 p8).
18. Mr Doyle was the subject of a final medical board on 11 November 1942 in which Lt Col Bickerton Blackburn, the medical officer in charge of the case, stated that the diagnosis was bronchiectasis, which had been present since 1936 and evidenced by a chronic cough for about six years increasing in severity (T3 p11). A further note in the army hospital records by Lt Col Blackburn notes a productive cough since before his attack of pneumonia in 1937, but that he did not mention his cough on enlistment (T3 p8).
19. Dr Breslin, a consultant respiratory physician after consultation with Mr Doyle and reading the material in evidence, in his report dated 28 February 2007, concludes that Mr Doyle suffers from bronchiectasis and that his condition of bronchiectasis predates his enlistment into the army, with the clinical onset at least as far back as 1936/37 and probably even earlier. Dr Breslin, in his clinical notes, records that Mr Doyle could not remember when his cough started, but it was some years before 1942 (Exhibit R5).
20. Dr Breslin, in oral evidence discussed the signs and symptoms associated with a clinical worsening of bronchiectasis. Such included increasing cough and sputum, dyspnoea, clubbing, weight loss, recurrent bouts of pneumonia and pleural effusion. Dr Breslin was particular in stating that haemoptysis was part of the natural history of the disease, with haemoptysis usually not occurring in the early stages of the disease process and that haemoptysis was not a sign/symptom of clinical worsening of bronchiectasis. Dr Breslin considered that the first evidence of dyspnoea was in 1988, and while being somewhat sceptical of such a complaint in the mid-1950s, noted that at that time Mr Doyle had been discharged from the army for some 10 to 12 years.
21. Dr Breslin was also particular in stating that during the episode in 1942, there was no clinical evidence to suggest pneumonitis and/or acute pulmonary oedema, with the X-ray changes of atelectasis and fibrosis in 1942, being evidence of a clinical and long-standing bronchiectetic condition.
22. Dr Breslin, in noting that chlorine gas can cause bronchiectasis, was of the opinion that exposure by Mr Doyle to the gases arising from the blueing process, would neither cause bronchiectasis nor would it aggravate a pre-existing bronchiectetic condition.
23. Dr Burns, a consultant respiratory physician, in his report of 21 March 2007, considered that Mr Doyle had bilateral bronchiectasis prior to his entry to the army in 1942, but considers there has been a degree of clinical worsening of the condition, by virtue of Mr Doyle’s exposure to the fumes arising from the blueing vats.
24. In forming his opinion, Dr Burns was of the view that Mr Doyle’s bronchiectasis may have come on when he was five, with the clinical manifestations not appearing until after the second attack of pneumonia in 1936/37. Dr Burns also was of the opinion that the collapsed lower base of the left lung and associated fibrosis had occurred probably after 1937 and before joining the army. Dr Burns considered that the gases emanating from the blueing vats would cause irritation to the lungs, which caused coughing which in turn caused haemoptysis. In short, Dr Burns considered that Mr Doyle had a minimally symptomatic condition, which because of the effects of the irritant gases, moved to a condition of having major symptoms (haemoptysis). Dr Burns also acknowledged that there was no evidence of pneumonitis and/or pulmonary oedema in Mr Doyle’s presentation in 1942.
25. Dr Burns in oral evidence acknowledged that Dr Breslin had a more detailed history in relation to the history of Mr Doyle’s cough. Further, Dr Burns agreed to the proposition that the natural history of bronchiectasis is to get worse of its own accord; that haemoptysis is an indicator of the disease; that there was no evidence that the fume gases caused the bronchiectasis, but that there is no way of getting evidence that it did or did not cause aggravation, which would cause the clinical worsening.
26. Dr Burns when questioned upon the clinical comment at T3 p12 that “he has now returned to his usual health”, made by Lt Col Blackburn in 1942, concluded that despite such a statement, Mr Doyle must have suffered some aggravation, as his condition continued to worsen over the years, with daily symptoms of cough and sputum, as opposed to earlier intermittent symptoms of cough and sputum. Dr Burns acknowledged the comments made by Lt Col Blackburn as regards the history of Mr Doyle’s cough, and agreed that it was different in terms of what he had been told, although the difference only being a matter of degree. Dr Burns continued to postulate that cough can give rise to haemoptysis as well as the latter occurring with very little coughing, while continuing to assert that irritant gases can cause coughing, and the haemoptysis being the beginning of the clinical worsening. Dr Burns also acknowledged that he was unaware of when the next episode of haemoptysis occurred after the initial one in 1942.
27. While noting that there is some disagreement between the two consultant respiratory physicians as to what particular clinical inferences and opinions can be drawn and established from particular aspects of the clinical history and events, I observe that there is agreement between the two on the following clinical issues and opinions, namely:
(a)That Mr Doyle suffers from bronchiectasis;
(b)That the clinical onset of Mr Doyle’s bronchiectasis was in 1936/37, when he suffered a second episode of pneumonia. Also, both clinicians appear to be of the opinion that the disease process may have commenced at the time that Mr Doyle suffered his first episode at age five;
(c)That the atelectasis, congestion and fibrosis demonstrated on an X-ray of the left lung in 1942 occurred prior to service; and
(d)That Mr Doyle did not show any clinical evidence of pneumonitis and/or pulmonary oedema during his hospitalisation in 1942.
28. In such circumstances, I conclude on the balance of probabilities that the diagnosis of Mr Doyle’s respiratory condition is bronchiectasis, with time of clinical onset being in 1936/37 (Lees v Repatriation Commission [2002] FCAFC 398 considered and applied).
29. In addressing the diagnosis of the mental health disease, I note the following opinions:
(a)Dr Looi, consultant in aged care psychiatry: Report 5 September 2000 (T5) – depressive symptomatology;
(b)Dr Koller, consultant psychiatrist: Report 27 March 2003 (T8) – adjustment disorder with anxiety, the stressor being the progression of a significant lung condition;
(c)Dr Robinson, consultant psychiatrist: Report 16 May 2007– adjustment disorder with anxiety secondary to bronchiectasis; and
(d)Dr Gertler, consultant psychiatrist: Report 28 March 2007– adjustment disorder with anxiety secondary to bronchiectasis.
30. In the light of the psychiatric opinions given, I find that Mr Doyle’s psychiatric condition is diagnosed as adjustment disorder with anxiety, with the stressor being Mr Doyle’s bronchiectasis. Further, I find that the clinical onset of the disease is 1985, at which time Mr Doyle’s bronchiectasis worsened, as evidenced by the onset of severe dyspnoea.
relationship to service
31. Firstly, I note that both parties acknowledge that further considerations, in terms of relationship to service of the acute adjustment disorder, is dependent on a successful finding in relation to Mr Doyle’s lung condition. With this I agree.
32. In addressing the issue of relationship to service in a matter involving eligible service, I note that I am bound pursuant to s 120B of the Act, for the purposes of determining a claim, that I must be reasonably satisfied that a disease suffered by a person is war-caused in the circumstances, that the material before me raises a connection between the disease and some particular aspect of the service rendered by the person and consideration of a relevant Statement of Principles (SoP) that upholds that the disease in contention is, on the balance of probabilities, connected with his service.
33. I note that there is a SoP concerning bronchiectasis, namely Instrument No 60 of 2001 (the Instrument). I further note that the factors argued before me connecting Mr Doyle's bronchiectasis with the circumstances of his service were factors 5(q) and 5(u) of the Instrument.
34. Factor 5(q) states:
…
5(q)Inhaling toxic gases or fumes within the 90 days before the clinical worsening of bronchiectasis.
…
35. Further I note that clause 8 of the Instrument defines “inhaling toxic gases or fumes” to mean inhaling anhydrous ammonia fumes, oxides of sulphur, chlorine or phosgene, resulting in acute respiratory distress with evidence of pulmonary oedema or evidence of pneumonitis.
36. In addressing the issue of which gases or fumes were involved or arose out of the blueing process, I note that initial material as to what gases or fumes were present arose from Ms Ross’s investigations (Ms Ross is Mr Doyle’s daughter), and Dr Burns’ research on the internet. With the agreement of both parties a research report was undertaken to establish the chemical nature of the ingredients and gases involved in the blueing process. This report (Exhibit A4) dated 12 November 2007 prepared by Mr O'Keefe, details the wide array of chemicals used in the degreasing and blueing process. I note that the report indicates the use of sulphuric acid, and in such circumstances I am satisfied that Mr Doyle was exposed to respiratory irritant gases and probably oxides of sulphur (from the sulphuric acid interactions).
37. However, in relation to the factor, there is no evidence whatsoever that Mr Doyle at any stage during his military service in 1942 suffered from acute respiratory distress as evidenced by either pulmonary oedema and/or pneumonitis. In this regard, I note the clinical records during his admission in 1942 and the opinions of Drs Breslin and Burns, documented earlier in this decision.
38. Further in relation to the issue of clinical worsening, I note in particular the clinical reasoning as detailed by Dr Breslin and particularly the criteria he nominated upon which to assess the issue of clinical worsening of a bronchiectetic condition. I note from his analysis that there is no evidence to support a finding of clinical worsening of Mr Doyle’s bronchiectetic condition as a consequence of his military service in 1942. Further I observe that Dr Breslin’s analysis accepts the clinical history and findings as nominated in the army hospital clinical notes by Col Blackburn, a consultant physician. Further I note the history of Mr Doyle’s history of cough and productive cough as recorded by Dr Breslin as more in accord with the history nominated in the military medical records of 1942. On the other hand, I note the brevity of Dr Burns’ clinical history as regards the history of Mr Doyle’s cough, and the nature of his analysis as to clinical worsening. In his analysis, Dr Burns places emphasis on a productive cough history at odds with what is detailed in contemporaneous clinical records and that obtained by Dr Breslin and a single episode of haemoptysis which he believes indicative of not only bronchiectasis, but also of a clinical worsening of that condition, without any other clinical evidence of material pointing to a worsening of the established condition.
39. In the circumstances of the two clinical opinions, Mr Doyle’s evidence and the contemporaneous clinical records of Mr Doyle’s army service, I conclude on the balance of probabilities that there is an absence of necessary evidence to support a finding of a clinical worsening of Mr Doyle's bronchiectetic condition in 1942. In so finding, I rely upon the clinical records of 1942 and the analysis and clinical opinion of Dr Breslin, which for the reasons nominated in the previous paragraph I prefer.
40. With such findings, namely the absence of signs of acute respiratory distress in 1942 and an absence of clinical worsening of the bronchiectetic condition, I conclude that on the balance of probabilities Mr Doyle fails to satisfy the necessary elements contained within factor 5(q). Accordingly, in relation to consideration of factor 5(q) I cannot find on the balance of probabilities that Mr Doyle’s bronchiectasis is connected with the circumstances of his relevant service.
41. In addressing factor 5(u) of the Instrument which states:
…
5(u)Having suffered from collapse or fibrosis of the segment of the lung affected by bronchiectasis, before the clinical worsening of bronchiectasis.
…
I note that the factor involves two issues both of which must occur during the period of eligible service, as the factor relates the condition under consideration (namely bronchiectasis) with the particulars of a person’s service. The two issues involved within this factor are:
(a)having suffered from collapse or fibrosis of the segment of the lung affected by bronchiectasis; and
(b)the clinical worsening of bronchiectasis occurring after (a) having occurred.
42. In relation to issue (a) (nominated in paragraph 41 above), it is noted that the collapse or fibrosis of the segment of the lung affected by bronchiectasis occurred prior to Mr Doyle’s enlistment in 1942. This is the opinion of both respiratory physicians and it is an opinion consistent with the clinical evidence detailed in the army medical records of 1942. I accept these opinions.
43. I have already addressed the issue of clinical worsening of the bronchiectetic condition when dealing with factor 5(q). Again I conclude on the balance of probabilities that the issue of clinical worsening of bronchiectasis is not made out for reasons nominated earlier.
44. With such findings, I conclude that on the balance of probabilities Mr Doyle fails to satisfy the necessary elements contained within factor 5(u). Accordingly, in relation to consideration of factor 5(u), I cannot find on the balance of probabilities that Mr Doyle’s bronchiectasis is connected with the circumstances of his service.
45. In the light of the findings made following a consideration of SoP Instrument No 60 of 2001, I conclude that Mr Doyle’s disease of bronchiectasis is not a war-caused condition. Further, with the disease of bronchiectasis not been found to be a war-caused condition, his claim for adjustment disorder with anxiety must fail, as the stressor inherent to the diagnosis of the adjustment disorder was the clinical worsening of the bronchiectasis in 1985.
46. In such circumstances I affirm the decision under review.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr John Campbell, Member
Signed: ........[sgd]....................................................................
Tal Aviram, AssociateDate/s of Hearing: 29 January 2008
Date of Decision: 26 February 2008
Solicitor for the Applicant: Joanne Pollock
Counsel for the Applicant: Elizabeth Wood
Solicitor for the Respondent: Tim O’Reilly
Counsel for the Respondent: Gerald Purcell
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