Fabian and Military Rehabilitation and Compensation Commission (Veterans' entitlements) - [2019] AATA 368

Fabian and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 368 (12 March 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/6094
Re:Benjamin Fabian
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:12 March 2019
Place:Brisbane

I affirm the decision under review.
..............................[SGD].........................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS AFFAIRS – military compensation – Crohn’s disease – overseas deployment to East Timor – non-warlike service – whether Crohn’s disease was a service injury or service disease – whether aggravated or materially contributed to by an event or circumstance during the applicant’s service in East Timor – whether the symptoms worsened while in East Timor – whether stress aggravated the disease
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans Entitlement Act 1986 (Cth)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Bendy [1989] FCA 170
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Codd [2007] FCA 877
SECONDARY MATERIALS
Statement of Principles concerning Inflammatory Bowel Disease No. 19 of 2012
Statement of Principles concerning Inflammatory Bowel Disease No. 20 of 2012
Department of Veterans’ Guidelines No 12: Determination of liability for aggravation
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
12 March 2019
INTRODUCTION

The applicant, Mr Benjamin Fabian, lodged a claim for the acceptance of Crohn’s disease by the respondent. The applicant served in the Royal Australian Air Force (“RAAF”) from 6 August 2002 to 11 January 2015. He was diagnosed with Crohn’s disease in late 2007 and was medically discharged in 2015.[1]
[1] Exhibit A, T-Documents, T83.
The applicant performed peacetime service for the purposes of the Military Rehabilitation and Compensation Act 2004 (Cth) (“the Act”) from 1 July 2004 to 26 July 2007 and from 30 October 2007 to 11 January 2015.[2] He also performed non-warlike service for the purposes of the Act from 27 July 2007 to 29 October 2007.
[2] Exhibit A, T-Documents, T88.
The applicant has had several medical conditions accepted by the respondent, including tinnitus, fracture C7 vertebrae and right acromio-clavicular joint osteoarthritis.[3]
[3] Exhibit A, T-Documents, T103.
CLAIM HISTORY
On 12 December 2014 the applicant lodged a claim for compensation for Crohn’s disease. In the attached Injury and Disease Details Sheet dated 24 November 2014 the applicant stated that his claimed condition first arose in August 2006.[4] The applicant also attributed his condition to the medication which was prescribed to him during the course of his RAAF service.
[4] Exhibit A, T-Documents, T9.
On 11 February 2015 the respondent denied liability for the applicant’s claimed condition. The delegate of the respondent was satisfied that the applicant suffered from the claimed condition and accepted the date of onset as 25 August 2006, but was not satisfied that the claimed condition was upheld by the current Statement of Principles (“SoP”).
The applicant then applied for further review of this decision by the Veterans’ Review Board (“VRB”). In his request for a reconsideration the applicant submitted that consideration had not been given to his contention that there had been an “aggravation of an existing condition” which was brought on by a stressor during operational service and prescribed medication which caused Crohn’s disease.[5]
[5] Exhibit A, T-Documents, T112.
On 1 October 2015 the VRB affirmed the decision of the delegate.
The applicant then lodged an application for review of the decision of the delegate with this Tribunal.
The claim which related to the prescription of medication during his service has now been withdrawn by the applicant. Later in these reasons I explain why this claim was properly withdrawn by the applicant.
LEGISLATIVE FRAMEWORK
Liability provisions
Section 23(1)(a) of the Act provides that liability must be accepted for service injuries and diseases where the person’s injury or disease is a “service injury or disease” under s 27 of the Act. Section 23(4) of the Act provides that a reference to a liability for an injury or disease is taken to include a reference to an “aggravation of an injury or disease”.
Section 27 of the Act provides:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if one or more of the following apply:
(a)the injury or disease resulted from an occurrence that happened while the person was a member rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member;
(c)in the opinion of the Commission:
(i)the injury was sustained due to an accident that would not have occurred; or
(ii)the disease would not have been contracted;
but for:
(iii)the person having rendered defence service while a member; or
(iv)changes in the person's environment consequent upon his or her having rendered defence service while a member;
(d)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence 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 person while a member after he or she sustained the injury or contracted the disease;
Note: This paragraph might not cover aggravations of, or material contributions to, signs and symptoms of an injury or disease (see Repatriation Commission v Yates (1995) 38 Administrative Law Decisions 80). This is dealt with in section 30.
(e)the injury or disease resulted from an accident that occurred while the person was travelling, while a member rendering peacetime service but otherwise than in the course of duty, on a journey:
(i)to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty.
Section 30 of the Act contains the following definitions of service ‘injury’ and service ‘disease’ for aggravations of signs and symptoms:
For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:
(a)the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
(b)in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.
Determination of claim
As the applicant has performed non-warlike service, and his claim relates to when he was undertaking this non-warlike service, his application must be determined according to subsections 335(1) and (2) of the Act.
Section 335 of the Act provides:
(1)If a claim in respect of subsection 23(1) or (3) or 24(1) for acceptance of liability for a person's injury, disease or death relates to warlike or non-warlike service rendered by the person while a member, the Commission must determine that the injury is a service injury, that the disease is a service disease, or that the death is a service death, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 338.
When there is no sufficient ground for making a determination
(2)In applying subsection (1) in respect of a person's injury, disease or death, related to service rendered by the person while a member, the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury is a service injury; or
(b)that the disease is a service disease; or
(c)that the death is a service death;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person while a member.
Section 337 of the Act provides that the onus of proof does not fall on either party.
Section 338 of the Act provides that a determination of whether a reasonable hypothesis exists for the purposes of s 335(2) of the Act, a Statement of Principles (“SoP”) must uphold the hypothesis. Section 341 of the Act provides that the current SoP must be applied on review of a decision.
Statement of Principles
The current SoP is No. 19 of 2012 concerning Inflammatory Bowel Disease. The applicant relies upon factor 6(k) as being the relevant factor for consideration when determining whether a reasonable hypothesis has been raised connecting the Crohn’s disease with his service. Factor 6(k) provides that this connection can be established where the following exists:
(k) experiencing a category 2 stressor within the one month before the clinical worsening of inflammatory bowel disease
Clause 7 of the SoP provides:
Paragraphs 6(f) to 6(n) apply only to material contribution to, or aggravation of, inflammatory bowel disease where the person’s inflammatory bowel disease was suffered or contracted before or during (but not arising out of) the person’s relevant service.
A “category 2 stressor” is defined in clause 9 of the SoP to include:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness
EVIDENCE
Medical history
A clinical record dated 27 August 2006 states that the applicant then presented with abdominal pain and constipation.[6] A CT scan of the applicant’s abdomen and pelvis on 29 August 2006 revealed normal results.[7] On 30 August 2006 the applicant was referred to Mr Stephen McLaughlin, a gastroenterologist.[8] On 1 September 2006 Mr McLaughlin reported that for the last two or three weeks the applicant had been experiencing abdominal pains, constipation, some loss of weight and had been generally feeling unwell.[9] Mr McLaughlin speculated, “one wonders whether he may have early Crohn’s disease”, but said that as the CT scan was normal there was nothing more to do at that stage.
[6] Exhibit A, Supplementary T-Documents, at p. 134.
[7] Exhibit A, T-Documents, T11.
[8] Exhibit A, T-Documents, T12.
[9] Exhibit A, T-Documents, T13.
The applicant was admitted to hospital on 7 September 2006 for further testing.[10] A pathology report dated 8 September 2006 reported, “Features are those of acute ileitis and are in favour of an infection” and “Early Crohn (sic.) disease... is not entirely excluded”.[11]
[10] Exhibit A, T-Documents, T16.
[11] Exhibit A, T-Documents, T19.
A clinical record dated 26 April 2007 documented that the applicant was “slightly anxious re health”.[12] In a Comprehensive Preventative Health Examination dated 1 May 2007 the applicant answered ‘no’ to suffering ‘any change of bowel habits’ or ‘persistent abdominal pain or cramps’.[13]
[12] Exhibit A, Supplementary T-Documents, at p. 43.
[13] Exhibit A, Supplementary T-Documents, at p. 169.
A clinical record dated 30 May 2007 reported the applicant’s presentation with “intermittent abdo pain, feeling slightly run down”, and noted “symptoms returned yesterday”.[14] This record states since the applicant’s September 2006 hospital admission he had been experiencing occasional abdominal pain.
[14] Exhibit A, T-Documents, T20.
A further clinical record dated 22 June 2007 noted that the applicant was experiencing, “ongoing abdo discomfort”.[15]
[15] Id.
On 26 June 2007 it was recorded that the applicant “feels well”, and any further tests should be deferred until after the applicant returns from East Timor.[16]
[16] Id.
Two medical reports were completed upon the applicant’s return from deployment to East Timor. A Psychology Assessment Record dated 25 October 2007 documented that the applicant reported a “positive deployment experience”, with the “separation from his partner” being the only major negative.[17] The applicant reported “low level symptomatology”, and just feeling restless some of the time. The applicant also reported being able to switch off after leaving the office. The record refers to the applicant having “nil reintegration concerns with work or his partner”. It was noted that his relationship with his partner “seems to have strengthened from the experience”. A Post Deployment Health Screen dated 29 October 2007 made reference to the applicant experiencing abdominal pain in September or October 2006, and recorded “no change since being in Timor”.[18]
[17] Exhibit C, Respondent’s bundle of documents, at p. 38.
[18] Exhibit C, Respondent’s bundle of documents, at p. 33.
A clinical record dated 7 November 2007 states: “been deployed to Timor and pains/bowel unchanged”, “worries re diagnosis – wants colonoscopy” and “wants it sorted out”.[19] This record also noted, “[discussed with] re psychological effect aggravating symptoms”. The applicant was documented to be “very concerned” in a record dated 29 November 2007, after he presented with intermittent abdominal pain.[20]
[19] Exhibit A, T-Documents, T22.
[20] Exhibit A, T-Documents, T23.
On 10 December 2007 a white cell scan was conducted by Dr Evelyn Yap, the results of the scan suggested “active inflammatory bowel disease”.[21] On 20 December 2007 Dr Andrew Paull confirmed that a “barium follow through” procedure showed “clear cut evidence of ileo caecal Crohn’s disease”.[22] Dr Paull reported that the applicant’s previous abdominal pain suggested some form of ileitis but it was unclear whether this was Crohn’s disease or an infection, but as his symptoms had persisted since then this favoured a diagnosis of an inflammatory bowel disease. On 18 January 2008 Dr Paull confirmed that the applicant had Crohn’s disease which was confined to the distal ileum, and treatment was commenced.[23]
[21] Exhibit A, T-Documents, T24.
[22] Exhibit A, T-Documents, T28.
[23] Exhibit A, T-Documents, T32.
A clinical record dated 23 February 2008 recorded the applicant’s refusal to be assessed by a military doctor, and described him as “very defensive and suspicious”.[24] A clinical record dated 26 February 2008 documented that the applicant’s partner was suddenly returned during an overseas deployment, which the applicant had been unable to attend due to “Crohn’s and initiation of medication”.[25] It was noted that the applicant felt that his distress at the separation between him and his partner “was not adequately acknowledged” by himself or his unit, and he considered that the unit was not supportive of him and his partner.
[24] Exhibit A, T-Documents, T36.
[25] Exhibit A, T-Documents, T38.
A “Serving Member Referral Form” dated 27 February 2008 records the applicant “showing signs of stress” and having difficulties remaining focused and motivated. It was noted that the applicant was presently non-deployable “due to a medical condition which has transpired since being employed with Defence”. The referral form also described how the applicant was being affected by a decision to not promote him. The referral requested an assessment of the applicant’s emotional state and ability to deploy.
A Psychology Assessment Record dated 17 March 2008 records the applicant having “very definite views on how he and his partner should be treated and managed within the ADF”. The document records that some grievances of the applicant were valid, but contains a statement that the applicant did not fully understand his status and obligations within the Australian Defence Force. It was recorded that the applicant conceded that he and his partner “tended to inflame each other’s discontent”, and they also lacked external interests which “tended to increase their focus on work frustrations”. The psychologist also noted that the applicant’s feelings of helplessness were discussed in the context of his inability to change the promotion decision or to “resolve his medical condition”. The accompanying Psychological Report referred to the applicant not being deployed due to his medical condition. It was noted that the applicant admitted that he had refused to cooperate with the medical assessment because he expected that he and his partner would be interviewed jointly. The applicant also experienced concern over his partner’s welfare during her recent deployment, due to her “not coping” and having an “incurable” medical condition. The applicant indicated that he was strongly motivated to perform well in his role, but might consider discharge in future if his dissatisfactions continued. He stated that the recent period of “stress leave” was beneficial to him and his partner.
A clinical record dated 26 June 2008 noted that the applicant then had no issues of note, and he had recently returned from a holiday to Europe.[26]
[26] Exhibit A, T-Documents, T40.
Subsequent medical records refer to the applicant’s disease briefly went into remission around September 2008, as he was experiencing only occasional discomfort and fairly normal bowel function,[27] but shortly after that the disease relapsed and the applicant engaged in further treatment and surgery.[28]
[27] Exhibit A, T-Documents, T44.
[28] Exhibit A, T-Documents, T46 and T54.
The applicant
The applicant provided a statutory declaration dated 9 June 2015 in support of this claim.[29] In his statutory declaration the applicant referred to his deployment to Timor Leste, saying that in 2007 both he and his then partner (now wife) were operationally deployed to Timor Leste. The applicant stated that the deployments were conducted back to back without the provision of “relief out of country leave”, as individually the deployment periods did not exceed six months. The applicant stated that these operational tours were immediately followed by regional service and further separation in the South Pacific. The applicant described how the result of this separation placed “significant strain” on his relationship with his partner, which ultimately led to them attending couples counselling. Due to the extended periods of no contact, he was left feeling helpless and without control. He stated that during a second trip to the South Pacific his partner was returned to Australia for stress reasons. The applicant and his partner were both granted stress leave and admitted to “defence psychology”.
[29] Exhibit D.
On 26 September 2007 the applicant sent an email when he was in East Timor. The email was entitled “Fabs’ Rant”, and outlined in detail some of the grievances the applicant had with the RAAF. The applicant described being given conflicting information, and being posted to undesirable locations away from his partner. The applicant also spoke about having a promotion delayed due to being posted away from Canberra for 12 months. The applicant stated that his partner had been deployed 5 times in 5 years, which put a strain on her and therefore also him. The applicant commented that a decision to post both himself and his partner would likely result in them both discharging, which neither of them wanted to do. The applicant also spoke about not being able to take leave due to relocating and transitioning to a new unit after receiving very short notice. The applicant expressed his dissatisfaction with not receiving a promotion and having his career affected.
Evidence-in-chief

The applicant gave evidence that when he joined the Air Force at 18 years of age he was in good health. He stated that he first noticed medical issues related to his Crohn’s disease in about August 2006 when he started to experience abdominal pain and presented to the on-base hospital. He was sent for testing and admitted to a Melbourne hospital. At that time the general assessment was that he may have some sort of infection in his bowel or stomach.
The applicant stated that the symptoms initially abated after a period of around 3 weeks to one month. He stated that he was first notified about his impending posting to East Timor in early 2007, shortly after he arrived at his post in Adelaide. At this time he was still concerned about the abdominal pain, but his doctor determined that he was fit to deploy. He stated that if he had been diagnosed with Crohn’s disease at this time he would not have been deployed to East Timor.
The applicant stated that he first met his partner in 2002, and their relationship developed in late 2006. When asked about how being deployed made him feel, given that he was in a relationship, the applicant stated that “it was tough”. He explained that his partner was deployed to East Timor first, and then as she came back he was deployed to replace her. The applicant confirmed that his partner was deployed from May to July 2007 and that he was deployed from July to October 2007. The applicant referred to feeling as though he was “detached and socially removed” and “having a limited amount of control”. The applicant discussed how difficult it was to communicate with his partner at the time.
The applicant described his work in East Timor as “around the clock”. He worked 8 to 12 hours a day, seven days a week, and did not take any holidays. The applicant was asked what symptoms he suffered in East Timor, he answered that the most prominent symptom was lethargy. He also had continual “stomach upset, abdominal pain and discomfort”. The applicant stated that there was no doctor on the army base he was on; there was only a medical assistant who had basic medical training to provide first aid and any more serious medical issues had to be referred to a civilian doctor. The applicant stated that he went to the civilian doctor a couple of weeks prior to leaving East Timor to get his health assessed. The applicant stated that he was feeling very tired, and the advice that he received was to seek further medical assistance as soon as he got back to Australia. Within a few days of landing back in Australia the applicant went to see the base doctor.
The applicant described his symptoms upon arrival back to Australia as “irregular bowel habits”, “significant abdominal pain” and a feeling of being “very rundown”. When asked to compare how he felt before going to East Timor, and after coming back from East Timor, he stated that the biggest change was “the nature of the bowel habits and an escalation of the feeling of general unwellness associated with the fatigue”.
The applicant gave evidence about the state of his relationship with his partner when he returned, stating that initially there was a sense of relief, but within two weeks of his return his partner was going to be deployed again and “it was very raw, very emotional”. He was “quite distressed” at the time, and both he and his partner were referred to the psychologist around October or November 2007, shortly after he returned from East Timor. The applicant stated that he had behaved “quite poorly” in the presence of the GP, as he had insisted that he attend a medical appointment with his partner. He and his partner were subsequently placed on two weeks of stress leave.
Cross-examination
During cross-examination the applicant remarked that his symptoms “totally resolved for a period” after August/September 2006, but then he “had an inkling that something wasn’t right prior to Timor”. However, no cause of his symptoms had been established.
When asked if his symptoms got worse during his deployment, the applicant answered: “It was a gradual escalation over the period”. The applicant stated that his irregular bowel habits developed during his deployment, as did his lethargy and abdominal discomfort. He described his deployment as resulting in a “significant change” in his medical symptoms. He stated that when he got back, his symptoms did not improve over the next 12 months.
A Post Deployment Health Screen dated 29 October 2007[30] was shown to the applicant, and he accepted that it referred to his history of abdominal pain and noted, “No change since being in Timor”. The applicant accepted that this information would have come from him, however he stated that he did discuss with the doctor that his symptoms had gotten worse. The applicant agreed that this was not consistent with the evidence he had given earlier.
[30] Exhibit C, Respondent’s bundle of documents, at p. 33.
A clinical record dated 7 November 2007[31] was shown to the applicant, including the note, “pains/bowel unchanged”. The applicant answered that his interpretation of this record was: “The symptoms were ongoing”.
[31] Exhibit A, T-Documents, T22.
When he was asked whether the prospect of his partner being deployed again after his return had aggravated his stress, the applicant said that it was an “unrelated additional stressor to those already faced”. The applicant accepted that the progression of his disease was “influenced” by the stress of his partner’s impending posting. The applicant agreed that he was experiencing other issues at the time, including missing a promotion. He described that as “disappointing”. The applicant agreed that, despite the separation from his partner, overall his deployment was a positive experience. He stated that professionally “it was very rewarding”.
The applicant was asked about the clinical record dated 26 February 2018[32], which recorded that his partner had to be returned from an overseas deployment. He agreed that this was stressful, but disagreed that it was a “fresh issue”. He explained that he was seeing the psychologist at this time due to his “distress at [the] separation”.
[32] Exhibit A, T-Documents, T38.
The applicant asserted that military assessments and screenings carry with them a mentality that “you don’t whinge and you don’t complain because, to do so, would be to compromise your career moving forward”.
It was put to the applicant that there were a variety of stressors which presented after he returned from East Timor. The applicant agreed stating that “there was other stuff going on”. He stated that before his deployment he was a high performing individual but afterwards he “lost the ability to cope”, and it “all came to the fore in the time immediately following Timor”.
Re-examination
During re-examination the applicant was asked to elaborate on when the stressors first occurred and whether they continued escalating. The applicant stated that the stressors first occurred during his deployment, and “it was only once faced with the prospect of further separation that those things really came to a head”.
Dr Mark Whillans, general practitioner
Dr Whillans, the applicant’s current treating general practitioner (“GP”), provided a Medical Statement dated 31 January 2017.[33] In this statement he indicated that his opinion was that the worsening of the applicant’s Crohn’s Disease was not simply due to the progression of the underlying disease. He considered that the condition was aggravated or materially contributed to by an event or circumstance during the applicant’s service in East Timor. He noted that the reasons for this opinion were due to “long hours of work” and “stresses – deployment in East Timor as documented”. Dr Whillans also considered that the signs or symptoms of the condition were aggravated or materially contributed to by an event or circumstance during the applicant’s East Timor service. His reasons for this were similar as above; he cited “long hours of work”, “stresses – deployment in East Timor triggered considerable stress” and “separation from partner – prolonged”.
[33] Exhibit D.
Dr Whillans gave evidence that he had first examined the applicant on 31 January 2017 and had seen him in total on six occasions. Dr Whillans gave reasons for opining that the applicant’s condition was aggravated by his deployment, stating that it was based on the applicant having experienced a lot of stress during that period. He stated that he was “very aware of the effects of stress on the immune system” and has “seen situations where stress can tip someone’s medical condition over the edge and exacerbate it”. Dr Whillans was asked whether any other evidence informed this opinion, and he referred to the clinical record of 7 November 2007, where he recalled the doctor who examined him post-deployment referred to discussing the psychological effect that was aggravating his abdominal symptoms.
During cross-examination Dr Whillans was asked about the significance of the applicant undertaking long hours of work and his deployment with respect to his condition. Dr Whillans stated that working long hours and being in an “unpleasant environment” “would have caused him a lot of stress”, which in turn has an adverse effect on the immune system. Dr Whillans explained that Crohn’s disease is “very much tied up with the person’s immune system” and referred to the deployment as being an “unpleasant environment”.
The notes in the medical records of 29 October 2007 and 7 November 2007 were put to Dr Whillans who maintained that the applicant reported a worsening of his abdominal symptoms while he was in East Timor. Dr Whillans accepted that the Post Deployment Health Screen made no reference to psychiatric symptoms and agreed that after his return from deployment the applicant was also experiencing psychological stressors in the form of him remaining in Australia while his partner was deployed again, and missing out on promotions and transfers in the RAAF. Dr Whillans also agreed that these sorts of stressors can have an impact on Crohn’s disease. Dr Whillans confirmed that the applicant’s condition was not caused by his military service, but that he believes it was aggravated by it.
Dr Charles Steadman, gastroenterologist
Dr Steadman provided a report dated 12 September 2016 which related to the original basis of the applicant’s claim that medication which was prescribed during the course of his military service caused his Crohn’s disease.[34] In his report Dr Steadman confirmed his knowledge of the applicant’s diagnosis of Crohn’s disease on 20 December 2007 by Dr Andrew Paull. Dr Steadman opined that the applicant began developing Crohn’s disease during 2006, when a clinical diagnosis was not able to be made by his treating doctors.[35]
[34] Exhibit F.
[35] Exhibit F, at p. 4.
The file note dated 26 May 2017 documents a phone conversation between Dr Steadman and the respondent’s representative. The applicant was granted an adjournment of the hearing in the interests of procedural fairness because the file note which I regard as a material document was not filed by the respondent before the hearing. The file note records that Dr Steadman was advised that the applicant’s claim is now predicated on the basis of the applicant experiencing a stressor while in East Timor, with the stressor being separation from his partner while he was deployed. In the file note Dr Steadman advised that stress can be a trigger for the onset of Crohn’s disease,[36] but is not the cause of the disease; the cause is unknown. Dr Steadman clarified that stress, particularly recent stress, is a known trigger, factor or cause of an exacerbation, and that applies to broad conditions which originate from the immune system. Dr Steadman referred to how, in the applicant’s case, something occurred prior to his diagnosis which caused his symptoms to develop into those of a “true inflammatory bowel disease”, and that could have been from stress. Dr Steadman discussed how one of the difficulties with Crohn’s disease is that people feel stress while their disease is worsening, but what they are really saying is “I was getting sick and I wasn’t coping well with the illness”.[37]
[36] Exhibit E.
[37] Exhibit E.
Dr Steadman gave evidence confirming that the cause of Crohn’s disease is unknown, but that it has been hypothesised that it is linked to the immune system. When he was asked during cross-examination whether stress can play a part in the aggravation of the disease, Dr Steadman said that “it may”, elaborating that “causality in a strict sense has not been established but there is… an association”.
Dr Steadman described Crohn’s disease as a “relapsing and remitting disorder”, meaning it has peaks and troughs of activity which are specific to the individual. He accepted that there is a possible association between stress and a peak in symptoms, “in the sense that… people who experience exacerbations or relapses of Crohn's disease are more likely to show mood changes or… depression or anxiety”. However, he stated that it is difficult to know which is the cause and which is the effect.
SUBMISSIONS
Applicant submissions
The applicant’s submits that, as a result of his non-warlike service in East Timor between 22 July 2007 and 29 October 2007, he suffered an aggravation of his Crohn’s disease or the signs and symptoms of the disease. The applicant relies upon sections 23, 27 and 30 of the Act, and notes that s 27 refers to aggravation of a disease itself, while s 30 refers to the aggravation of signs and symptoms of a disease.
The applicant considers that s 30 of the Act does not require the satisfaction of the relevant SoP. In this regard the applicant referred to the Department of Veterans’ Guidelines No 12: Determination of liability for aggravation.
The applicant has put forward a proposed clinical onset date of 7 September 2006.[38] He referred to medical opinions of doctors dated between 1 to 7 September 2006 which speculated about the possible existence of Crohn’s disease, including the opinions of Drs McLaughlin and McCarthy.
[38] Applicant’s Statement of Facts, Issues and Contentions.
The applicant’s case is advanced on the basis that, he was suffering from signs and symptoms of Crohn’s disease prior to deployment, and while he was in East Timor this disease was aggravated by the separation from his then partner. The applicant considers that these circumstances meet factor 6(k) of the relevant SoP: that is, that he suffered from a category 2 stressor during his service in East Timor, and there was a subsequent clinical worsening of his Crohn’s disease.
The applicant has referred to post-deployment medical evidence which supports the contention that he was suffering from a category 2 stressor at the time. On 25 October 2007 a psychology assessment record noted that he “reported separation from his partner to be a major negative”. Another record of 26 February 2008 noted “Distress at separation” and “Situational crisis – context of prolonged separation from partner”. The applicant also referred to the evidence of Dr Whillans and Dr Steadman in submitting that the stress the applicant experienced from the separation could have aggravated his disease; in the words of Dr Steadman, it could have been a trigger “from not expressing disease to expressing disease”.
The applicant relies without elaboration upon Kattenberg v Repatriation Commission [2002] FCA 412 as being relevant to issues of material contribution and aggravation, and Repatriation Commission v Bendy [1989] FCA 170 as being relevant to the issue of aggravation.
At the hearing the applicant submitted that the earliest date of effect of any successful claim for compensation would be 12 December 2014.
Respondent submissions
The respondent accepts that the applicant suffers from Crohn’s disease.
The respondent submits that for the applicant’s condition to be accepted it has to be found that the applicant suffers from a “service disease” as defined in s 27 of the Act. The respondent disputes the applicant’s contention that this matter is to be decided under s 30 of the Act, and that the SoP regime does not apply to this section, and in this respect it is submitted that the effect of s 30 is to incorporate an aggravation of a disease within the meaning of a “service disease” as set out in s 27. The respondent submits that s 30 does not provide for a distinct ground of liability separate from the SoP regime. They submit that the relevant SoP in this matter makes this clear as it specifically refers to an aggravation of underlying Crohn’s disease in factor 7.
The respondent highlighted some key points raised in the applicant’s statutory declaration and cross-examination at the hearing. The respondent considers that the statutory declaration of the applicant raises the likelihood that the stress symptoms he suffered only reached a critical phase after his return from East Timor, when he was faced with the prospect of his partner being deployed again. The respondent also noted that the statutory declaration of the applicant did not mention any severe bowel complaints suffered by the applicant either in East Timor or when he returned.
The respondent’s submissions addressed a number of inconsistencies raised in the applicant’s cross-examination. Contrary to what he stated in his evidence-in-chief, the applicant claimed during cross-examination that his irregular bowel habits had started while he was in East Timor and there was a “significant change” while in East Timor. The respondent submits that the applicant “downplayed” the effect of finding out that his partner would be deployed again and the loss of a promotional opportunity. The respondent submits that several medical records were put to the applicant during cross-examination, including the Post Deployment Health Screen and a clinical record dated 7 November 2007; these records contradict much of the applicant’s evidence-in-chief and the applicant’s responses to the contents of these documents were “not plausible”. The respondent also noted that the applicant accepted that his diagnosis of Crohn’s disease and the consequences of the disease caused him stress.
The respondent submits that the medical evidence put forward is of little or no utility in resolving the issues under consideration. It was submitted that Dr Whillans’ evidence is of limited relevance as he was not treating the applicant at the relevant time in 2007 and 2008, and his report is solely based upon the applicant’s self-reporting. The respondent contends that the report of Dr Steadman dated 12 September 2016 is no longer relevant as it relates to the basis of the original claim basis of the applicant; and the signed file note and oral evidence of Dr Steadman serve to confirm that stress can potentially aggravate underlying Crohn’s disease, which is already reflected within the relevant SoP.
The respondent submits that the applicant was not diagnosed with Crohn’s disease until after his return from East Timor, and the medical evidence prior to his deployment only establishes that Crohn’s disease was a possibility. They refer to the service medical records which reveal that the applicant did not experience altered bowel habits and discomfort (about which he gave oral evidence) either in East Timor or when he returned.
The respondent submits that any stress the applicant experienced as a result of the separation from his partner while in East Timor was not reflected in the medical evidence to be as serious as he claims. They consider that any stress that arose only occurred after the applicant’s return from East Timor when he was performing peacetime service, and was prompted by new factors including his partner’s fresh deployment, his partner’s personal problems, the applicant’s diagnosis with Crohn’s disease, and the applicant’s denial of a promotion.
The respondent contends that the medical records do not establish that the applicant had experienced any aggravation of his Crohn’s disease immediately after his East Timor posting; all that happened during this time was that the applicant sought treatment to investigate what had been affecting him in late 2006. As the respondent submitted at the hearing, there is no evidence that there was a “clinical worsening” of the disease; rather, the evidence reflects that the applicant continued to suffer from the disease.

The respondent contends that there is no reasonable hypothesis put forward by the applicant.
For completeness, the respondent noted that stress is not a recognised factor in the Inflammatory Bowel Disease SoP No. 20 of 2012 which applies to peacetime service.
Applicant submissions in reply
The applicant provided further submissions in reply, in which he referred to the distinction between sections 27 and 30 of the Act. The applicant considers that these sections amount to separate heads of liability, and as such he requests that this matter be considered under both sections.
The applicant rejects the respondent’s contention that the applicant’s statutory declaration raises the likelihood that the stress suffered by the applicant only reached a critical phase after his return from East Timor. The applicant contends that his deployment materially contributed to the development of a “category 2 stressor” and/or the worsening of a sign or symptom, as he and his partner had already been separated for a lengthy period of time.
The applicant referred to the fact that in the Post Deployment Health Screen he ticked yes in response to whether he suffered from “malaise/lethargy”. He also pointed out that in the 7 November 2007 clinical record there was a note of “d/w re psychol effect aggra symptoms”, which the applicant considers clearly shows that issues of a psychological nature were occurring in East Timor, prior to the notice of the further deployment of the applicant’s partner. The applicant submitted that the notice of his partner’s further deployment was the tipping point at which he began to complain, and referred to his email dated 26 September 2007, which was sent while he was still in East Timor. The applicant submits that these records demonstrate an aggravation of Crohn’s disease because of a sign or symptom which first occurred in East Timor.
The applicant disputes that Dr Whillans’ report was based solely on the applicant’s self-reporting, and noted that his evidence reflected that he was also given contemporaneous medical evidence. The applicant also disputes that the medical records show that the applicant did not experience altered bowel habits or discomfort while in East Timor or when he returned; the clinical record of 7 November 2007 recorded altered symptoms 9 days after the applicant returned from East Timor.
CONSIDERATION
A number of possible causes of the bowel condition of the applicant were adverted to before he was deployed to East Timor. Mr McLaughlin, gastroenterologist, in his report dated 1 September 2006 remarked “one wonders whether he may have early Crohn’s disease with his past history of perianal sepsis” but stated “I do not think there is much more we can do apart from wait and watch. Hopefully it is just a viral illness as indicated by some of his markers”. On 5 September 2006 a report of an upper abdominal ultrasound was made that “absolutely did not exclude the possibility of appendicitis”. On 7 September 2006 a gastroenterologist reported after performing a colonoscopy that there was a mild ileal distortion and minor colonic erythema and a gastroscopy and a gastroscopy did not return any abnormal results. A pathology report on 8 September 2006 reported features are in favour of an infection and early Crohn’s disease was not “entirely excluded”. In late 2007 it was finally confirmed that the applicant was diagnosed with Crohn’s disease. Dr Paull, gastroenterologist, in his report dated 20 December 2007 confirmed that there was evidence of ileo caecal Crohn’s disease. Later, on 18 January 2008 Dr Paull reported that the Crohn’s disease was confined to the distal ileum.
I consider that Dr Steadman was correct in his opinion that the applicant began developing Crohn’s disease in 2006. The applicant had initially put forward a date of clinical onset of Crohn’s disease as 7 September 2006. The respondent in its Statement of Facts, Issues and Contentions accepts that the date of clinical onset of Crohn’s disease was 8 September 2006. I certainly accept that the applicant had Crohn’s disease on that date. I will, however, make a finding of there being an earlier date of clinical onset of Crohn’s disease. In his report dated 20 December 2007 Dr Paull referred to the events of August 2006 when the applicant “first developed abdominal pain” and remarked that “his symptoms have persisted and this would therefore favour inflammatory bowel disease”. Mr McLaughlin had earlier opined in 2006 that it would be necessary to wait before a diagnosis could be made. I have relied on the opinions of Dr Steadman and Dr Paull to find that the date of clinical onset of the Crohn’s disease is 27 August 2006 when the applicant presented with abdominal pain which can now be regarded to be inflammatory bowel disease.
Having regard to my finding that the date of clinical onset of the Crohn’s disease is 27 August 2006, I am satisfied on the balance of probabilities that the applicant had Crohn’s disease before he was deployed to East Timor.
I am required under s 338 of the Act to determine whether there is a reasonable hypothesis in accordance with a SoP which is in force. Under s 341 of the Act I am required to apply the current SoP (being No. 19 of 2012) which is applicable at the time of the making of the decision on the review. The case of the applicant was that he was suffering from signs and symptoms of Crohn’s disease prior to deployment, and that while he was in East Timor this disease was aggravated by the separation from his partner.
I have considered the authorities that are relied upon by the applicant. The decision in Kattenburg certainly was concerned with the issue of contribution to in a material degree in relation to the construction of a particular SoP; it certainly emphasised that there was need to consider the issue of the service connection which I have examined in determining that application. The decision in Bey is certainly relevant to the issue of whether a reasonable hypothesis is raised; the decision was referred to by Gordon J. in Repatriation Commission v Codd [2007] FCA 877 in relation to the determination of a reasonable hypothesis.
In Repatriation Commission v Codd [2007] FCA 877 at [12], Gordon remarked:
the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis … is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-533. See also Repatriation Commission v Bey (1997) 79 FCR 364 at 366-367, 372-373; Bull v Repatriation Commission (2001) 188 ALR 756 at [18] and [41].
While Gordon J. was referring to the determination of a reasonable hypothesis under the Veterans Entitlement Act 1986 (Cth), the remarks of Her Honour have afforded me considerable assistance in considering whether the evidence before me raises a reasonable hypothesis which is upheld by a SoP that is made under that Act.
It is my conclusion that for the reasons which I have outlined that the evidence before me does not raise a reasonable hypothesis which is upheld by factor 6(k) of the current SoP as required by ss 335(2) and 338 of the Act.
There is no issue that Crohn’s disease is within the definition of “inflammatory bowel disease” in clause 3(a) of the SoP. The evidence of the applicant meets factor 6(k) of the SoP as the applicant suffered from a category 2 stressor during his relevant service. This is because the evidence of the applicant was unable to maintain a family relationship with his partner.
However, there is no material before me that raises consideration of whether there was a clinical worsening of inflammatory bowel disease in terms of factor 6(k) of the SoP whilst the applicant was on relevant service or on his return from relevant service. In Repatriation Commission v Milenz [2006] FCA 1436 at [35], Finn J explained that the term “clinical worsening” imposed what His Honour referred to as a “medical-scientific standard, not a lay standard” and there is no material before me that in my opinion raises this “medical-scientific standard”. Finn J also referred to the necessity for there being “features or manifest symptoms of the disease”. In my respectful opinion the evidence of Dr Whillans did not identify any features or symptoms to enable him to form an opinion that there was an aggravation of the condition which would constitute a clinical worsening of the condition.
I do not consider that the material before me raises the consideration of any factor in clause 6 of the SoP.
Even though I consider that there is no reasonable hypothesis which is upheld by the current SoP, I have considered whether the Tribunal can be satisfied beyond a reasonable doubt, for the purposes of s 335(1) of the Act, that there is no sufficient ground for making a determination that the non-warlike service rendered by the applicant is a service injury or a service disease.
In Bushell v Repatriation Commission (1992) 175 CLR 408, at 416, Mason CJ, Deane and McHugh JJ in explained what is required in making a finding of being satisfied beyond reasonable doubt for making a determination:
“The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making (the) determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination”.
I have come to the conclusion that I am satisfied beyond a reasonable doubt, for the purposes of s 335(1) of the Act, that there is no sufficient ground for making a determination that the non-warlike service rendered by the applicant is a service injury or a service disease. This finding has not been lightly made.
In coming to my conclusion I have found in terms of the analysis in Bushell of not being able to accept the “raised facts” of the applicant that he was suffering from signs and symptoms of Crohn’s disease while he was in East Timor. This is because those “raised facts” are inconsistent with the contemporaneous medical documentation which are the Post Deployment Health Screen dated 29 October 2007 which is when the applicant was examined upon his return from deployment. This record contradicts those “raised facts”. In terms of the analysis in Bushell this contemporaneous medical documentation can be regarded as having a “superior reliability” to other parts of the material before the Tribunal because it is a record of what the applicant said at the time. I give great weight to contemporaneous medical documentation which recorded that the applicant did not experience altered bowel habits and discomfort in East Timor or upon his return from the deployment.
The statutory declaration of the applicant did not refer to any severe bowel complaints suffered by the applicant either in East Timor. During cross-examination the applicant asserted that his irregular bowel habits had started while he was in East Timor when there was a “significant change”. However, this assertion is not mentioned in the applicant’s statutory declaration. This assertion of the applicant that there was a “significant change” in East Timor was also not recorded in the Post Deployment Health Screen.
The applicant claimed that the medical record dated 7 November 2007 recorded altered symptoms 9 days after the applicant returned from East Timor. I do not accept the interpretation of the applicant that the reference in that record to “pains/bowel unchanged” meant “the symptoms were ongoing”. This interpretation which is inconsistent with the Post Deployment Health Screen dated 29 October 2007 which acknowledged that the applicant had abdominal pain in September or October 2006 but which contained the notation of “no change since being in Timor”. There is certainly no reference in those documents of the applicant having altered bowel habits and discomfort or pain in East Timor.
If the applicant had reported that he experienced pain whilst he was in East Timor, I would expect the medical documentation to record such a report of pain as there are other instances in the medical records of the applicant which record when the applicant experienced pain such as the medical record of 29 November 2007. I appreciate that the applicant stated in evidence that any complaint by a member would “compromise” a career moving forward. However, I have considered the medical documentation that is in evidence and there are numerous instances where the applicant had reported pain which is recorded by the medical practitioners. On 30 August 2006 Dr Alhamdani recorded a complaint by the applicant having “ongoing lower abdominal pain”.[39] On 1 September 2006 the applicant made a complaint of “gripey abdominal pains”[40] to Mr McLaughlin. On 9 May 2007 and 22 June 2007 the applicant made complaints of “abdominal pain”[41] at AHS, Edinburgh.
[39] Exhibit A, T-Documents, T12, p.55.
[40] Exhibit A, T-Documents, T13, p.56.
[41] Exhibit A, T-Documents, T20, p.67 & 68.
Dr Whillans certainly gave evidence on the basis of what the applicant told him had occurred in 2007 and 2008. However, I do not consider that the applicant had given Dr Whillans accurate information as to what had occurred in those years. The applicant was not then a patient of Dr Whillans.
I have had regard to the entries in both the Post Deployment Health Screen dated 29 October 2007 as well as the clinical record dated 7 November 2007, I consider that a fair interpretation of those entries is that there was no change to the bowel condition of the applicant during his deployment. I accordingly do not accept the assertion of the applicant that he experienced a “significant change” to his bowel habits whilst he was in East Timor. For this reason, I do not accept that there was any material contribution to or an aggravation of inflammatory bowel disease arising out of the service of the applicant in East Timor in terms of factor 7 of SoP No.19 of 2012. A medical record of 24 January 2008 records that the applicant was fit for deployment to Guam.
I have come to the conclusion that the complaint about the bowel condition of the applicant arose after he returned from East Timor and was distressed when he learned that he would be again separated from his partner. On 7 November 2007 there is a medical report which makes reference to the “psychological effect aggravating symptoms”. On 29 November 2007 there is a medical record which refers to intermittent abdominal pain. The evidence discloses that within two weeks after the applicant returned from East Timor his partner’s fresh deployment caused him to be “quite distressed”. This is not, in my view, related to the relevant service of the applicant as required by clause 5 of the SoP No.19 of 2012. It also does not raise a factor in the SoP which applies to the peacetime service rendered by the applicant which is Instrument No. 20 of 2012. The applicant in giving evidence remarked that “it all came to the fore in the time immediately following Timor” and that “it was only once faced with the prospect of further separation that those things really came to a head”. In contrast, the psychological assessment of 25 October 2007 which was conducted at the end of his deployment records a positive deployment experience and his relationship with his partner seemed to have strengthened.
Earlier in these reasons I stated that I accepted that the applicant suffered from a category 2 stressor during his deployment in East Timor. My conclusion in that regard was for the purpose of determining whether the material before me disclosed a reasonable hypothesis. In making such an assessment I was not required at that stage of my inquiry to engage in making a fact-finding exercise. However, for the purpose of my consideration under s 375(1) of the Act I now have to consider whether there is no sufficient ground for making a determination that the non-warlike service rendered by the applicant is a service disease. Having regard to the pathology assessment of 25 October 2007 which records a positive deployment experience with his partner, I consider that there is no sufficient ground for making such a determination.
As a matter of completeness I should mention that there is no evidence that would support a reasonable hypothesis that the medications prescribed for the applicant during the course of his military service caused his Crohn’s disease. In my opinion the applicant has acted properly in withdrawing this claim. This claim may have been prompted by an entry in a medical record dated 29 November 2007,[42] which stated that there was a link between iso-tretinoin medication and Crohn’s disease. Dr Steadman in his report of 12 September 2016 reported that the literature reviews do not support any causative link. Dr Steadman also expressed the opinion that he did not consider the medication to have caused Crohn’s disease as the exposure to the medication was more than two years before there was the development of any evidence of Crohn’s disease. Dr Steadman reported that doxycycline medication is not a cause but a risk factor for Crohn’s disease along with other risk factors such as gastrointestinal infection.
[42] Exhibit A, T-Documents, T23.
I do not accept the submissions of the applicant regarding s 30 of the Act. I consider that this provision is a definitional provision of the Act which has relevance in interpreting the terms “service injury” and “service disease” in the Act. The provision does not itself operate to impose liability upon the respondent and is not a warrant to disregard the SoP scheme. Any Departmental Guidelines cannot govern the construction of the Act.
DECISION
I affirm the decision under review.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate
Dated: 12 March 2019

Dates of hearing:

Date final submissions received:

16 January 2017
20 September 2017
23 January 2018

3 April 2018

Advocate for the Applicant:

Solicitors for the Respondent:

Counsel for the Respondent:

Anthony Hornby

Moray & Agnew Lawyers

Charles Clark