Faust and Repatriation Commission
[2001] AATA 966
•28 November 2001
DECISION AND REASONS FOR DECISION [2001] AATA 966
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/244
VETERANS' APPEALS DIVISION )
Re Bernard Siegfried FAUST
Applicant
And Repatriation Commission
Respondent
DECISION
Tribunal Mr RD Fayle, Senior Member, Brigadier RDF Lloyd & Dr D Weerasooriya, Members
Date28 November 2001
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being that of the Veterans' Review Board of 28 June 1999, is varied inasmuch as the diagnosis of osteocartilagenous exostosis and post-traumatic dystrophic calcification and ectopic bone formation is substituted with cartilagenous lesions (osteochondroma or soft-tissue chondroma). The decision as varied is affirmed.
...........(sgd R D Fayle)...........
Senior Member
CATCHWORDS
VETRANS ENTITLEMENTS ACT 1986 – diagnosis of condition - whether osteochondroma or soft-tissue chondroma or something else; whether war caused or conditions connected to service; conflicting medical opinion; reasonable hypothesis.
Veterans' Entitlements Act 1986 – s120
REASONS FOR DECISION
28 November 2001 Mr RD Fayle, Senior Member, Brigadier RDF Lloyd & Dr D Weerasooriya, Members
This is the decision in the matter of Bernard Siegfried Faust ("the applicant") and the Repatriation Commission ("the respondent"). The hearing in this matter commenced on 23 August 2001. It was adjourned to allow an opportunity to receive further medical evidence from Dr Graeme Stewart, Physician, who wrote to the respondent on 13 September 2001. The applicant's representative, Mr Henri Christie wrote in response on 19 September 2001 making further relevant submissions. Mr Ponnuthurai, for the respondent, made no further written submissions. The matter stood adjourned until today.
The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and the following exhibits taken in during the hearing:
A1 9 pages of supplementary T documents
A2 Report of Dr F B (Don) Webb 16 February 1998
A3a Report of Dr David O Watson 30 October 2000
A3b Report of Dr David O Watson 26 March 2001
A3c Report of Dr David O Watson 19 April 2001
A4 Statutory declaration by Mr Keith Reilly 6 March 2000
A5 Statement by applicant 14 August 2001
R1 Report Dr Ross Glancy 26 July 2000
R2 Letter from Repatriation Commission to Professor David Wood, 17 November 2000 and reply 5 December 2000; and letter from Repatriation Commission to Professor David Wood, 4 October 2000 and reply 13 March 2001Subsequent to the hearing the following documents were received into evidence:
Letter from the respondent to Dr Graeme Stewart, 27 August 2001
Reply from Dr Graeme Stewart 13 September 2001Both the applicant and Dr David Watson gave evidence.
The facts of this matter are set out conveniently in the respondent's statement of Facts and Contentions filed with the Tribunal on 4 July 2001. They are:
On 5 September 1997, the applicant submitted a claim for acceptance of a number of conditions including "left knee/leg" as being war caused.
On 9 December 1997, a delegate of the respondent determined that osteochondroma left leg is not war caused.
On 6 February 1998, the applicant applied to the Veterans' Review Board for review of the delegate's decision.
On 28 June 1999, the Veterans' Review Board varied the diagnosis of the claimed condition to osteocartilagenous exostosis and post traumatic dystrophic calcification and ectopic bone formation but otherwise affirmed the delegate's decision.
On 27 July 1999, the applicant applied for a review of the Board's decision by the Administrative Appeals Tribunal.
The applicant served in the Royal Australian Navy ("RAN") from 16 January 1961 to 15 January 1970. His eligible periods of service for the purposes of claims under the Veterans' Entitlements Act 1986 ("the Act") and which also constitute operation service are:
Deemed allotted for service in Vietnamese waters (HMAS Vendetta):
25 May 1966 to 11 June 1966
Allotted for service in Vietnamese waters (HMAS Hobart):
22 March 1968 to 11 October 1968
The Tribunal is informed that the relevant standard of proof in this matter is found in section 120 of the Veterans' Entitlements Act 1986 ("the Act") as there is no relevant Statement of Principles relating to the claimed disease (discussed below). Section 120 of the Act is set out below for ease of reference:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2) …
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
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.(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.(7) …
In essence, the applicant's evidence, as it relates to his operational service periods and his claimed ailment, is that whilst in Vietnam waters the crew were always "ready to close up" which required them to proceed as fast as possible to their allotted "action station". In the applicant's case this required him to go at a jogging/running pace from where ever he may be to his action station. From his quarters this required him to climb two ladders to upper decks, run along the decks and then descend two ladders from upper decks to his action station below deck. Those ladders were on a steep gradient, which he estimated to be a vertical of 8 feet from a base of 2 feet. The metal ladders had mesh steps about 5 to 6 inches wide. The ladders were not wide but had railings to guide one's ascent or descent. In this regard, the applicant said in Exhibit A5 that:
"… in normal and reasonably calm conditions the easiest way to quickly descend the ladders was to go down forwards, leaning back with part of my weight taken on the rails and sliding my hands down the rails, whilst my feet rapidly moved down from one step to the next. However, particularly if it was a bit rough, and if as a result I missed my footing, it was quite usual to slide or bump down the rest of the way or at least a few steps, and this would cause me to knock the back of my legs against the metal steps until I regained control."
It seems that this technique was generally accepted as the quickest way to descend shipboard ladders. It was during these descents that the applicant said that he knocked the back of his thigh/knee/leg on at least three occasions, and on one of those, causing some bruising at the back of the thigh. He said that the bruising was apparent that night or the following morning. He said that whilst he mentioned it to his shipmates he didn't get much sympathy. He did not go to sick bay until he noticed a lump some 4 to 5 weeks later. No treatment was provided at sea but he was examined upon his return to Australia.
In his statutory declaration, Mr Keith Reilly, a shipmate of the applicant at the time, said, in relation to "close up" procedure:
"With regards to the access of the IC/GYRO room [the applicant's action station] this was achieved via an access hatch set in the deck. When the ship was closed up in defence/action station this hatch was shut and access was gained via a manhole set within the hatch which placed the ladder several feet below the hatch. This required the user to swing down onto the ladder. When closing up to action stations this had to be done as rapidly as possible."
The Tribunal has noted that Mr Reilly, in his declaration expresses an opinion, about the cause of lumps and their appearance, in the applicant's leg, and to that extent it is given no weight. However, he did say, and we quote: "I did see B Faust slip down the ladder into the IC/GYRO room on board the HMAS Hobart."
The applicant's evidence is that for a major part of the time that the Hobart was in Vietnamese waters it was involved in shore bombardment along the coast up to the Demilitarised Zone ("DMZ"), that is, as the Tribunal understands the terminology, along what is called "the gun line". The applicant said that "sometimes the ship would only be 2 to 3 miles out and could see individuals on the beach", presumably with the assistance of strong binoculars. And he adds that "at other times we would be shelling an unseen target from over the horizon about 15 miles out. We would fire at the shore both night and day."
In relation to the purported injury to his leg the applicant said in his statement:
"I remember one particular incident when I noticeably hurt my leg and my memory is that it was sore for at least of the rest of the day and maybe the next day as well. I can locate that injury by reference to when the ship was hit by the Yank missiles [apparently by mistake, the USA forces concluding that the Hobart was "enemy helicopters"], in June 1968. I banged my left leg against the ladder steps on a number of other occasions, but this one stands out because it hurt more than the others did. A lump appeared 3 to 4 weeks after this incident."
THE MEDICAL EVIDENCE
Exhibit A1 contains a report of 24 September 1964, by Surgeon Lieutenant RAN in relation to a consultation after which the applicant was referred to Dr F G Bell. The Surgeon Lieutenant reports:
"E M Faust presented yesterday with three weeks history of a lump behind left ankle which (gave) some pain with pointing toe. Gives no history of injury or infection. Gives no pain with walking and apparently came on quite suddenly with no increase in size.
O/E 7cm firm – hard mass behind (L) 'Archilles' tendon, ? fixed to bone – mildly tender – not inflammatory. X-rays taken yesterday show calcification in mass. I would be grateful for your opinion re diagnosis and management."
On 2 October 1964, the Surgeon Lieutenant further notes (in Ex. A1):
"HISTORY. Swelling and mild pain over the back of the left ankle for three weeks. No definite history of injury.
On examination: Firm to hard swelling deep to the tendo-archilles not attached to bone nor apparently to the tendon. Normal movements of ankle and sub-talar joint. No enlargement of the inguinal nodes. X-ray: Calcified swelling lying in the interval between the posterior aspect of the ankle joint and the tendo achilles. ? Calcified haematoma ? fat necrosis ? neoplasm. For excision biopsy.
Further note, 28 September 1964. Excision of lump well encapsulated, appears to be arising from the posterior tubercle of the talus. Wound drained, swelling sent for section."
The applicant was an in-patient at the Fremantle Hospital from 27 September 1964 until 2 October 1964. The final diagnosis is reported as "Osteochondroma 225". The report states:
"pathologist section confirmed by two Senior Pathologists that the swelling removed was a cartilagenous tumor which is probably a somewhat unusual osteo-chondroma." (Ex.A1)
On 20 July 1968, a medical record notes, in relation to the applicant's left ankle the diagnosis being "? lump R [should be L] ankle in vicinity of Tendo Calcanius. Previously had spur removed. X-ray – calcification in region tendo calcanius but separated from it."
On 10 December 1968, after the applicant had reported a lump sited as at the upper end of the left fibula, a radiologist reported:
"No evidence of osteochondroma detected. There is an oval area of faint calcification lying rather superficially in soft tissues at the lateral side of the knee joint. This is probably calcified in a ligament."
The applicant was an out-patient again in February 1969 in relation to what is described as a "cyst from lateral aspect lateral femoral condyle". This was referred to Histopathology and diagnosed by the histopathologist as "This is an Osteochrondroma (sic). It is benign."
T 7 documents include clinical notes made at various times. On 29 April 1971 those notes (pages 37-39) included the following:
"Rt wrist hard smooth lump on wrist attached to underlying bone. PD (provisional diagnosis) ? recurrent synovioma (L) knee."
When asked about this at the hearing, the applicant denied that he ever had a lump on either wrist. The 29 April 1971 report continues:
"Pain and lump behind left knee since Dec 1970
HPI. Late 1968 – noticed lump on lateral side of left popliteal forsa – (indecipherable) pain not related to exercise etc
Feb 1969 – lump removed at Balmoral Naval Hospital
Dec 1970 – noticed lump again – has grown slowly – still painful, but not severely so – pain left in antr aspect of (indecipherable) mainly and also over lump". (T7, pp.37-39)
T7, page 41 is a medical history sheet dated 15 April 1971 containing the following clinical history note:
"Hard cyst removed from L knee Feb 69 at Balmoral and again Oct 69, also at Balmoral. Has recurred, no further treatment. No injury to knee".
The applicant underwent an operation to his left knee area on 4 May 1971. Mr Ireland, the surgeon, reported (T7, p.26) "removal of tumour mass behind left knee … Findings: A fibrosed tumour measuring approximately 4 x 4 cms just above the head of the left fibula. The tumour is incorporated into the part of the insertion of the bicep femoris to the head of the left fibula." (T7, p.36)
The related histopathology report, dated 11 May 1971 states: "The specimen consists of the tendonous insertion of a muscle into an irregular fragment of bone. Microscopic: Lesion behind knee: Osteocartilagenous exostosis."
An X-ray report on 12 May 1971, following the above operation and histopathological examination, states: "Left knee: no obvious bone or joint lesion." (T7, p.31)
Mr E Hedberg, surgeon, in July 1972 wrote to the applicant after having examined x-rays and service documents, concluding:
"The lump is due to a deposition of bone in the scar of your past operation – this bone formation recurred after the second. It is not a malignant process – that is, it is not a new growth.
The bone forming tendency is usually self-limiting and if undisturbed resolves of its own accord.
I have recommended that you be reviewed in 12 months."
Mr F B (Don) Webb, orthopaedic surgeon, wrote to the applicant's then treating general practitioner on 16 February 1998, apparently in relation to a then workers' compensation claim in relation to his left elbow (Ex. A2). Mr Webb makes the following statements, which the Tribunal consider relevant to these proceedings:
"… Eventually in March, 1979, I had a letter from Alan McJannet sent by his secretary, because it was reported that he had an osteochondroma removed on a couple of occasions from behind his left knee, and the report went on to say 'he still has this calcium deposit of course on the inner aspect of the left ankle,' and Alan McJannet thought that that required removal. This was done on 13 November 74, and resection showed irregular but largely longitudinally orientated trabeculae of mature lamellar bone adjoining a segment of tendo-archilles. The inter-trabecular tissue was loose fibro fatty in type. In the centre of the lesion there was considerably more proliferative fibroblastic and osteobalistic activity with formation of osteroid, woven immature bone and cartilage, and the appearances were said to be those of rather inactive myositis ossificans, heterotopic ossification.
Some X-rays that I sent and were reported on by Peter Breidahl, the left ankle showed new bone formation anterior to the tendo achilles, and the situation of the retro calcanean bursa, and there was a suggestion of trabecula pattern, indicating bone formation. Peter Breidahl wondered whether it represented a form of calcinosis circumscriptor, although as he said at the time it doesn't usually go on the apparent bone formation. The question arose as to whether he had hypercalcaemia, which he did not. In 1978 I said I thought it would be a mistake to excise these bony lumps, because they would just be followed by further calcium deposition, and ectopic bone.
I asked Gary Stein to see this patient, and I have a report from him on 1.9.78, in which he stated 'this man certainly seems to have a tendency to calcification in various parts of his body, but has a normal serum calcium and I cannot explain this tendency.' […] In the event, I removed calcified plaque from his left leg, on 2.11.79 and then some 6 weeks later removed a further plaque at the back of his left knee, and some cysts. Further calcified plaques were removed from the back of his left knee on 30.3.84, again in November 1987, and multiple plaques were removed from the back of his left leg on 24.4.90, with problems relating to his lumbar spine. All the plaques that I removed were very superficial, there was absolutely no question of any of them being osteochondromata, or bony tumours, although he had developed trabeculation consistent with heterotopic bone in some of the pieces, but an osteochondroma by definition, is something that is growing from the shaft of a long bone or in a bony cavity, and I repeat again, that these plaques were all very superficial, and were not osteochondromata.
I gather the Department of Veterans' Affairs have said that he had an osteochondroma in his left leg at the ankle, which was prior to War Service. This is an operation report that he showed me from Frank Bell, saying that possibly the calcified tissue removed from the ankle, was an osteochondroma, but the word possible and not probable or definite is used. Even if it was an osteochondroma at the ankle, which I doubt, I don't believe that the calcified plaques that I removed from his left leg and the back of his left knee, had anything to do with any osteochondroma about the ankle." (Ex. A2)
On 27 August 1998, Mr R C Edibam, orthopaedic surgeon, wrote to Dr S Arasu, examining doctor with the Department of Veterans' Affairs. (T7, p.151-152) Mr Edibam examined the applicant in relation to his left leg/knee, went through his history and medical reports provided and viewed the x-rays, which the applicant brought. He expresses the following opinions:
"Going through the notes in 1964 it appears that the lump had occurred in the soft tissues, it was not attached to bone and the histological diagnosis at that time was osteochondroma which is somewhat surprising as the lump was not arising from the bone. It would have been a soft tissue chondroma with ossification and calcification.
… He had further surgery done on the 5th February 1969 for removal of an additional lump, again in the region of the left fibula and the notes say it was removed from the biceps tendon. The history at the time again said that it was osteochondroma. In other words describing the nature of the tissue but not the condition which is known as ostoechondromatosis which is a congential condition and occurs as a result of a growth disorder where the exostosis arises from bone but in Mr Faust's case there was no exostosis, they were all soft tissue lumps suggesting of a tumour or tumour-like condition of cartilaginous tissue."
Mr Edibam examined the applicant and referred him for further x-rays. As a result he makes the following additional comments in his report of 27 August 1998:
"I referred Mr Faust for further x-rays which showed extensive soft tissue calcification, as well as ossification in the subcutaneous tissue and some in the deeper tissues, mainly in the muscles of his thigh and calf, calcification in a reticular pattern and with his widespread distribution it was suggestive of a dermatomyositis, a condition which is part of the rheumatoid group of diseases and I feel that he should be reviewed by a Rheumatologist …" (T7, p.152)
Dr Graeme Stewart, physician, examined the applicant on 16 February 1999 saying that he "examined his medical file in some detail". He recounts the previous medical history of the applicant. Dr Stewart notes that the applicant "has no family history of osteochondromata or ectopic vein (sic) formation", nor has the applicant an "history of muscle weakness or muscle pain to suggest a diagnosis of dermatomyositis." Dr Stewart provides a description of what he believes is the appropriate diagnosis and answers specific questions put to him by the Department of Veterans' Affairs. His report states, inter alia:
"There are therefore two conditions which have affected this veteran. The first condition was osteochondroma otherwise known as osteocartilagenous exostosis. The second condition is dystrophic calcification which when it involves muscle is known a myositis ossificans. Injured tissue of any kind is predisposed to this type of extra skeletal clacification. In his case, there was quite extensive tissue injury as he required three operations to remove the osteochondroma from the knee. It is thought that local factors released from damaged tissue cause the calcification and ectopic bone formation but the exact nature of this process is unknown.
… The condition osteocartilagenous exostosis is a developmental condition that is probably inherited. The second condition is the result of tissue trauma.
… Trauma at sea is unlikely to be causally related to the osteocartilagenous exostosis. This condition has been demonstrated by histology and is difficult to dispute. It is a developmental condition and not related to trauma. The dystrophic calcification has occurred in scar tissue from previous surgery. It appears likely therefore that trauma in the form of repeated operation is the causative factor."
Professor David Wood was asked by the respondent to express an opinion on the diagnosis of the applicant. Professor Wood did not examine the applicant but was provided with medical reports (and the T documents) and available x-rays. In his reply (Ex. R2) Professor Wood makes the point that is would be difficult to be dogmatic about the clinical case presented without sighting the original x-rays or histology reports. He concludes:
"However, … it would appear that this patient has a condition called diaphusial aclasia or multiple exostoses. The term exostosis is interchangeable with osteochondroma. … These lesions are not caused by a blow to the area but can sometimes be brought to light by trauma. … They can occasionally be made worse by trauma in terms of the symptoms experienced because of the prominence of these lesions. … The fundamental cause, genes responsible for this condition have not yet been identified." (Ex. R2)
Because the Tribunal considered, on the basis of Dr David Watson's evidence (orally and in written reports, A3), that there was an element of confusion as to the correct or preferred diagnosis, the Tribunal directed a further report from Dr Stewart in the light of Dr Watson's reports. Dr Watson's reports and evidence are discussed below. In reponse, Dr Stewart provided a further letter date 13 September 2001 (which the Tribunal designates as Exhibit R3, since it was received after the adjournment). Dr Stewart states:
"… My opinion that the primary diagnosis was osteochondroma was based on the histopathology reports from various pathologists. I am a physician and not a pathologist and really depend on the histopathologist to establish the diagnosis on the material removed at operation. From Mr Faust's record I note that the excision performed by Dr Frank Bell in September 1964, was reviewed by two senior pathologists at Fremantle Hospital. Their conclusion was that the swelling removed was a cartilaginous tumor, which is probably a somewhat unusual osteochondroma. This conclusion was supported by the letter of Dr Ross Glancy, the current head of Histopathology Department at Fremantle Hospital. Dr Glancy in his letter of 26 July 2000 stated that he favoured a diagnosis of osteochondroma with atypical features. The initial osteochondroma was removed from the region of the Archilles tendon.
He had a subsequent operation in early 1969 when a lump was removed from the left knee. In the records I perused it was identified as a cyst from the lateral aspect of lateral femoral condyle. It was referred for histopathological examination on the 5 February 1969 and again a diagnosis of benign osteochondroma was made by the histopathologist. As the patient then had two benign osteochondromas removed I concluded that he had multiple hereditary exostoses. Usually in this condition there are multiple lesions and in his case there appear to have only been two osteochondromata so perhaps I should not have come to this conclusion. Based on histopathology I would still have to say that the primary diagnosis was osteochondroma in two separate sites, the knee and the ankle. I would still think that it is a developmental condition and not related to trauma. I think the diagnosis is his case still rests on the reports of the histopathologists involved.
The secondary diagnosis is dystrophic calcification and myositis ossificans, which is calcification in the tissues as a result of trauma from surgery or other trauma to muscle. I think it is unlikely to be due to talc from the surgeons gloves. [The Tribunal notes that this last statement is a direct reference to an opinion expressed by Dr Watson, that that may have caused the secondary lesions.] Most of this man's disability seems to relate to the tissue calcification, which occurred subsequent to removal of the osteochondroma from his knee.
I think if there is ongoing doubt about the primary diagnosis of osteochondroma it should be referred to a histopathologist. …" (Ex. R3)
Dr David Watson provided three reports (Exhibits A3a, b and c) to the applicant's solicitor, and gave oral evidence. In his report of 30 October 2000 (Ex. A3a) Dr Watson, who examined the applicant and was provided with radiographs, and "material attached to [the solicitor's] letter". Dr Watson includes the following description of relevant events in his history:
"What is clear from Mr Faust's history is that during his time when he was serving in HMAS Hobart off Vietnam, there was a good deal of action. The ship was struck by friendly misile fire, there was a good deal of urgent call to action stations during that period of time. It is also clear that in going to his station in the gyro-compass compartment which was below the waterline amidships on the port side, he had to go down a number of companionways at speed. In doing that, he frequently traumatized the back of both knees but specifically, the left knee because of the way he went down these ladders. He does not recall specifically seeing signs of bruising but he certainly recalls the trauma and it was within a fairly short time of that period of his service that the first of these lesions related to the left knee appeared."
It is noted that the history provided to Dr Watson by the applicant differs in certain respects from that provided by him in his oral evidence. He said in evidence that he knocked the back of his knee 2 or 3 times and that bruising did occur on one occasion.
When asked about his understanding of the incidence of injury to the back of his knee/thigh/leg by the Tribunal, in the light of the applicant's earlier evidence in this respect, Dr Watson responded in the following manner:
BRIGADIER LLOYD: I just make the point to you, this is, in soldierly language, … the guts of the problem in relation to connection between war and the conditions, and that's very important that we get this right as to what your opinion is?---I mean, I was fairly convinced by his history of going down ladders and I've talked to a number of other ex-RAN personnel and I mean I know they used to drop down like whatever. I think, and my interpretation of that was subtly different. Firstly, there is enormous pressure on the crew to remain at action stations and when you go back sometime usually closer to the event, and that's our biggest difficulty here, what you find is there were other injuries but these were the ones that stood out because they were more painful. So, yes, he may well have had a predisposition to calcify after injury but I think there is the added factor that he had to stay on duty, and these were the ones that really stood out because they were more painful. (Tr. p.49)
Dr Watson states, in Ex. A3a, that "I do not agree that the diagnosis is osteocartilagenous exostosis otherwise known as osteochondroma." He supports this conclusion by reference to passages from Anderson WAD and Kisain JM, editors, Pathology, 7th edition, The Moseby Company, St Louis, 1977. After citing two passages from that reference, Dr Watson then states:
"As can be seen from these two quotes, the lesions in soft tissue are extremely rare whereas those attached to bone are extremely common. Those attached to bone are usually not seen as having clinical significance and while the histology of both may look the same, it is doubtful that they are true neoplasms. Finally, and essential criterion for diagnosing a soft tissue osteochondroma is that there should be no prior history of trauma.
Thus, whilst I agree that on the balance of probabilities the histology looked like that of an osteochondroma the classification is incorrect in that the distinction had not been made between soft tissue and true bony origin osteochondroma. This would require as much as anything, input from the operating surgeon in 1968. This is now not available to us but in any event, there is no evidence of a bony lesion at that time or at any time subsequently up until the present. In the face of a history of trauma given by Mr Faust and well documented in the papers, I accept that the histology is that of ectopic calcification but is inconsistent with a diagnosis of soft tissue osteochondroma.
I agree with Dr Stewart that the current growths evident both at his consultation and mine relate to trauma following the initial surgery in 1968.
On that basis Dr Watson concluded "the original lesion was a traumatic one and not a primary soft tissue chondroma. Following the trauma which was almost certainly repeated, Mr Faust developed ectopic calcification in the soft tissues leading to the first lesion being exercised in 1968." (Ex. A3a)
Exhibits A3b and A3c are letters to the applicant's solicitor relating to further enquiries made by Dr Watson of Dr Glancy, histopathologist at Fremantle Hospital in connection with whether or not the original lesion in 1964 which was excised at Balmoral Hospital was subject to pathological study. Dr Watson, after discussion with Dr Glancy, reports that Dr Glancy "stressed that it is difficult to assess these lesions". Dr Watson was asked to elaborate on this issue during his evidence-in-chief. The transcript states:
MR CHRISTIE: … I think you've spoken to Dr Glancy concerning this?---Yes I have.
Is there any explanation for why the osteopathic reports refer to osteochondroma? Osteopathically, are they very similar conditions?---Well they can be very similar and one of the points that Dr Glancy made to me which certainly I didn't need to have made to me because it's very obvious, is that with a lot of these things it requires correlation between the clinical, radiological, surgical and pathological findings and it's only when that's done that you can really determine – and not always can you do it – which tissue is the primary tissue involved. What is the primary process and whether it is abnormal cartilage, chondroma or whether it is calcification in chronically inflamed tissues. … You can say histologically that it has the appearance of chondroma but to – that's because the signs aren't all that much different from chronic inflammation and calcification and cartilage.
…
And when you look at this case as a whole then it doesn't have those other correlations?---Clinically it certainly doesn't because none of this area is directly related to any of the bony tissue round the knee." (Tr, p.39-40)
Mr Ponnuthurai, for the respondent pursued this point with Dr Wastson upon cross-examination:
MR PONNUTHURAI: … I picked up a reference, somewhere here in the documents that talk about whatever it was that they removed, first of all "being attached to the biceps tendon" and then there was another mention of it being "at the insertion of the tendon into the head of the fibula". Does that have any real significance from where they're talking about the thing arising from?---Well, yeah, it's not clear from that description whether it is coming from the tendon, even at the attachment of the tendon to the bone, or from the bone. The initial description sounds like it is unrelated to bone.
Right?---The second description – it's not clear, it could be related to the tendon at the … insertion, it could be related to the bone.
… this is one of these cases where you get people, and there's a small number of them, that where you start damaging tissue in that way, either cutting into it or I'm presuming bruising and having bleeding into it, that they will develop this kind of calcification, they're more likely to develop it than other people?---Yep
Would it be unusual if he had other solid knocks of that nature, not that we've had evidence that he has received that sort of knock, but if he had received other knocks of that nature, would be (sic) expect then to see him developing calcification elsewhere in his body?---Possibly …" (Tr, p. 41-42)
It is at this point in the transcript that Dr Watson then expresses his opinion that further lesions may have developed as a result of talc being left behind in the wound after surgery, the talc having been used by the surgeon with his surgical gloves.
DISCUSSIONMr Christie made earnest submissions on behalf to the applicant. In essence, he submitted that the medical evidence supports a conclusion that Dr Watson's hypothesis is reasonable in the circumstances and should be accepted. He submitted that the reported conditions in the left ankle and knee/leg/thigh are quite different and the Tribunal should accept the evidence of Dr Watson in that respect. He further submitted that Dr Stewart does not advert to the possibility that the lesion removed in 1969, not being a classical osteochondroma, may have been a soft tissue chondroma, which Dr Watson considers to be an unlikely diagnosis for reasons which he gave in evidence.
Mr Christie further submitted that this is a case of considerable ongoing doubt and ought to be referred for clarification to a pathologist. For reasons expressed below the Tribunal agrees with Mr Christie to the extent that this is a case of an indefinite diagnosis simply because of the nature of the condition and the fact that it first arose over thirty years ago and is reliant upon existing documentary evidence, such as it is. It is not at all clear to the Tribunal how another pathologist report would assist, especially as it appears that the 1969 specimen sent for histopathology examination cannot now be found. Mr Christie submitted, in the absence of any such further report, that in the present circumstances of the evidence before it the Tribunal must accept the hypothesis presented by Dr Watson as reasonable and prefer it to any competing alternate opinion.
The Tribunal acknowledges in cases where an applicant makes a claim for a war caused condition over thirty years after the alleged incident giving rise to the condition and in circumstances of imperfect medical records, that its task of deciding the matter on the balance of probabilities is anything but straight forward. However, in the Tribunal's opinion, the correct application of the facts to s120 of the Act allows it considerable scope to accept a reasonable hypothesis. The difficulty for the Tribunal is to determine the reasonableness of the hypothesis in the light of all the evidence before it. It is in those circumstances that the Tribunal makes the determination to follow.
At the outset the Tribunal needs to determine the correct or preferred diagnosis. Dr Watson speaks of "soft tissue osteochondroma". In the Tribunal's opinion this implies that osteochondroma, which is normally associated with bone, hence the "osteo", can exist without that association. Further the medical term "chondro" is otherwise known as "cartilege". Dr Watson states in his report of 30 October 2000 (Ex. A3a), by reference to Anderson & Kisain's work, Pathology, that the lesions in soft tissue are extremely rare whereas those attached to bone are extremely common. This finds support from Mr Edibam's report (T7, p151) above where he said:
"Going through the notes in 1964 it appears that the lump had occurred in the soft tissues, it was not attached to bone and the histological diagnosis at that time was osteochondroma which is somewhat surprising as the lump was not arising from the bone. It would have been a soft tissue chondroma with ossification and calcification.
From the evidence it is apparent that simple chondroma can rarely arise in soft tissue.
Dr Watson also opined (Ex. A3a, fourth page) that "[f]inally, an essential criterion for diagnosing a soft tissue osteochondroma is that there should be no prior history of trauma."
In the opinion of the Tribunal, the evidence reviewed above points to a conclusion that the original diagnosis, in 1964, (in relation to the left ankle, of osteochondroma), and the 1969 diagnosis of osteochondroma (in relation to the left knee), are diagnoses that, in the circumstances and with hindsight, were not only open but reasonable. In the case of the left ankle osteochondroma, the Tribunal accepts the expert evidence discussed that it would have been an extremely rare condition. In the case of the 1969 removed lump which was "mobile" [and therefore not attached to bone] it too would have been extremely rare. In the opinion of the Tribunal those diagnoses are not necessarily contradicted by the evidence and opinion of Dr Watson. It is though, a diagnosis not consistent with the opinion of Dr Stewart who concluded that it was an osteochondroma of bony origin. In any event, it is noted that both Drs Watson and Stewart are expressing opinions on diagnoses made many years ago, which would appear, on the evidence, to have then been supported by histopathological reports.
The Tribunal is not satisfied on the evidence describing the way the applicant descended the ladders when closing up to action stations, that he would not have also experienced knocks of the same intensity on other parts of his body, especially when descending those ladders in conditions which were other than calm.
In the opinion of the Tribunal the applicant's medical history of unusual "cartilaginous" lesions, which appeared seemingly independently at two sites, about the ankle prior to1964 and about the left knee prior to 1969, have not been definitively diagnostically categorised. At best, on the evidence, the diagnosis could be either osteochondroma, or soft-tissue chondroma. The evidence does not support the outside possibility of the lesions being diagnosed as ganglions, synovioma or organised calcified haematomas, the latter ordinarily associated with trauma and significant bruising arising therefrom. The Tribunal notes that the applicant's evidence at the hearing was that he suffered some bruising to the back of his knee during operational service. However, this was not supported by earlier evidence of a medical nature which records the applicant as saying there was no bruising contemporaneous to the trauma described in his evidence. Also that record states that there was no history of trauma.
In the opinion of the Tribunal, relying on the medical evidence before it, neither of the diagnostic categories, that is osteochondroma and soft-tissue chondroma, are related to trauma. Dr Stewart is of the opinion that osteochondroma is not set off by trauma. Dr Watson referred to Anderson & Kisain (supra), quoting from page 1,898:
"'… criteria for soft tissue origin is that they should be unattached to periosteum or periarticular structures, that they appear to be of spontaneous origin and not secondary to trauma or inflammation, and not related to maldevelopment.' The reference goes on to say that '… such neoplasms seldom attain more than a few centimetres in diameter and usually are of little clinical significance.'"
The hypothesis that trauma caused the lesions whether identified as osteochondroma or soft-tissue chondroma, is not tenable.
The applicant continued to experience lesions about the left knee/leg/thigh after surgical removal of lesions in 1969 from the knee. The evidence is that these lesions were due to ectopic calcifications related to the trauma of prior surgery and had nothing to do inherently with either osteochondroma or soft-tissue chondroma.
THE DIAGNOSISFor the above reasons, on the balance of probabilities, the Tribunal concludes that the more appropriate diagnosis of the applicant's conditions is cartilagenous lesions (osteochondroma or soft-tissue chondroma).
RELATIONSHIP TO OPERATIONAL SERVICEIt has been submitted on the applicant's behalf that there is a reasonable hypothesis connecting the incidents of trauma during the applicant's operational service with the applicant's claimed conditions.
Based on the conclusion reached in paragraph 50 above, the more appropriate diagnosed conditions of osteochondroma or soft-tissue chondroma are not related to trauma. Therefore, in the Tribunal's opinion, it does not accept that the hypothesis raised on behalf of the applicant is reasonable.
For those reasons the Tribunal is not satisfied beyond reasonable doubt that there is sufficient ground for making a determination, in terms of s120 of the Veterans' Entitlements Act 1986, that the claimed conditions as varied by the Tribunal are either war-caused or defence caused.
DECISIONPursuant to s43 of the Administrative Appeals Tribunal Act 1975, the decision under review, being that of the Veterans' Review Board of 28 June 1999, is varied inasmuch as the diagnosis of osteocartilagenous exostosis and post-traumatic dystrophic calcification and ectopic bone formation is substituted with cartilagenous lesions (osteochondroma or soft-tissue chondroma). The decision as varied is affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RD Fayle, Senior Member, Brigadier RDF Lloyd & Dr D Weerasooriya, Members
Signed:
.................................(sgd S Railton)...............................
AssociateDate/s of Hearing 23 August 2001
Date of Decision 28 November 2001
Counsel for the Applicant Mr Henry Christie, Barrister
Counsel for the Respondent Mr Carl Ponnuthurai, Departmental Advocate
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