Firth and Repatriation Commission (Veterans' entitlements)

Firth and Repatriation Commission (Veterans' entitlements) [2017] AATA 1591 (27 September 2017)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/5010
Re:Glenn Firth
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr C Kendall
Deputy President S Boyle
Date:27 September 2017
Place:Perth

The Tribunal:
1.sets aside the decision of the respondent of 24 November 2015 affirmed by the Veterans’ Review Board on 15 August 2016; and
2.substitutes a decision that the applicant’s bilateral open-angle glaucoma was war-caused within the meaning of the Veterans’ Entitlements Act 1986.

................[sgd].................................................
Deputy President Dr C Kendall
CATCHWORDS
VETERANS' AFFAIRS – open-angle glaucoma – whether open-angle glaucoma war caused – whether reasonable hypothesis has been raised – whether Applicant meets the Statement of Principles – decision set aside and substituted.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – s 5B, s 5D, s 5Q, s 6-6F, 7(1), 9(1), 120, 120A, 196B
CASES
Repatriation Commission vDeledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles concerning open-angle glaucoma No. 27 of 2012
Statement of Principles concerning open-angle glaucoma No. 28 of 2012
REASONS FOR DECISION
Deputy President Dr C Kendall
27 September 2017
INTRODUCTION

The applicant, Glenn Firth, seeks the review of a decision made by the Veterans’ Review Board (the “VRB”) on 15 August 2016 which affirmed the respondent’s determination of 24 November 2015.
By the determination made on 24 November 2015, a delegate of the respondent determined that, on the basis of the medical evidence before him, the applicant’s claimed condition of “bilateral open-angle glaucoma” (the “claimed condition”) was not related to his eligible service because none of the factors in the relevant Statement of Principles (“SoP”) was raised.
By reviewable decision made on 15 August 2016, the VRB also found that none of the factors in the relevant SoP was raised and/or met by the evidence before it. As such, the VRB was not satisfied beyond reasonable doubt that there were sufficient grounds for determining that the applicant’s claimed condition was war-caused.
THE FACTS
The applicant provided three lay witness statements:
(1)the applicant’s statement signed 16 January 2017 (A2);
(2)statement of Clayton Smith signed 27 January 2017 (A3); and
(3)statement of John Short signed 15 February 2017 (A4).
Each of the applicant, Mr Smith and Mr Short gave evidence and was cross-examined.
The material facts taken from the applicant’s Statement of Facts, Issues and Contentions (A1) and the witness statements, which are not in dispute, are:
(a)the applicant served in the Australian Army from 3 October 1984 to 19 July 1990;
(b)the applicant served in the RAAF from January 1991 to 21 June 1992;
(c)during recruit training at Kapooka RTB in 1984, and thereafter between 1984 and 1985 (while attending the School of Military Engineering for IET Training), the applicant was exposed to tear gas;
(d)in February/March 1987 the applicant attended Holdswothy Barracks for training and was exposed to tear gas on four occasions;
(e)between March and May 1988 the applicant attended SME for further training and was exposed to tear gas on four occasions;
(f)during Exercise K89 at Katherine in 1989 the applicant was exposed to tear gas on four occasions;
(g)during pre-deployment training with other members of 22 Construction Squadron at Holdsworthy Training Range in August 1989 the applicant was exposed to tear gas on four occasions;
(h)from September 1989 to February 1990 the applicant served with the United Nations Transition Assistance Group (UNTAG) in Namibia (South West Africa as it was known then) as a corporal section commander and qualified Army instructor;
(i)the applicant’s duties, including while deployed in Namibia, involved taking troops into the field for training which involved the use of CS gas (tear gas);
(j)during the deployment in Namibia the applicant was involved in full-day tear gas training exercises on at least six occasions;
(k)training was conducted in the open air and there was no eye protection other than the use of a gas mask;
(l)the tear gas used was in the form of irritant crystals that settled on the skin, clothing and hair;
(m)the only treatment after exposure was to wash the face with water from a water bottle and wipe the face with a towel;
(n)the tear gas would cause irritation and itchiness in the eyes and although the applicant would flush his eyes with water and dry them with a towel, that was not very effective in stopping the effects of the tear gas;
(o)following the exposure to the tear gas and rinsing his eyes with water the applicant would rub his eyes vigorously and frequently for between ten and fifteen minutes. He describes this as feeling “like I was pushing my eyes to the back of my head” and that he would “rub his eyes to the point where they would hurt”;
(p)after training, the applicant would shower which, he says, had the effect of washing the particles from his skin and hair into his eyes causing the irritation to start again;
(q)the applicant’s eyes would ache for days after tear gas training;
(r)during his military service the applicant was required to do physical training (“PT”) at least four times a week. This usually involved completing an obstacle course with full gear, back pack and webbing, a 5 kilometre run and gym work outs;
(s)at least four times a year the applicant was also required to undertake a Battle Efficiency Test in full gear and a 15 kilometre route march and four times a year he was required to do a 30 kilometre route march;
(t)the applicant suffers from the following conditions that are accepted as service related:
(i)  Sensorineural hearing loss;
(ii)  Tinnitus;
(iii)              Post traumatic stress disorder;
(iv)              Osteoarthritis affecting both knees;
(v)               Lumbar spondylosis;
(vi)              Osteoarthritis affecting both hips; and
(vii)             Alcohol dependence.
(u)the applicant also suffers from the following conditions that have not been accepted as service related:
(i)Open-angle glaucoma in the left eye;
(ii)               Open-angle glaucoma in the right eye; and
(iii)              Bilateral open-angle glaucoma,
(v)the applicant currently receives a disability pension at 100% of the general rate.
Mr Smith and Mr Short both served in the Army with the applicant including serving with the applicant in the Namibian UNTAG. Both Mr Smith and Mr Short gave evidence in similar terms to that of the applicant in relation to the frequency of the tear gas training and its effect on the skin and eyes, including during the deployment in Namibia. Both Mr Smith and Mr Short gave evidence to the effect that the exposure to the tear gas caused them to rub their eyes. Mr Short said that, although they were told not to rub their eyes, “the stinging and pain (was) horrific. You cannot help but rub your eyes because it is an involuntary action”, (A4 at 32). Mr Smith’s evidence was that after exposure to the tear gas he “would initially rub (his) eyes continually for 10 to 15 minutes and for short periods after that”, (A3).
THE MEDICAL EVIDENCE
The following medical reports were received:
(a)Medical note from Dr Giubilato (Lions Eye Institute) dated 28 July 2014 (T15);
(b)Medical report from Dr Giubilato dated 21 August 2014 (T16);
(c)Medical report from Dr Giubilato dated 20 March 2015 (T19);
(d)Medical report from Dr Giubilato dated 21 August 2017 (A5); and
(e)Medical report from Dr Gebauer dated 29 March 2017 (R3).
Dr Gebauer and Dr Giubilato also gave oral evidence at the hearing and were cross-examined.
Other medical records were also included in the evidence before the Tribunal which largely related to other medical conditions suffered by the applicant. None of these records is directly relevant to the open-angle glaucoma the subject of the current application and no reliance is placed on these records by either party or the Tribunal. Further, references were made in the tendered medical reports to notes and medical histories provided by various other medical practitioners who had treated the applicant. Those notes and histories were not put into evidence. The Tribunal is, however, prepared to accept the accuracy of the description of those histories and notes as contained in the tendered reports.
It is not in dispute that the applicant suffers from bilateral pigment dispersion syndrome and has gone on to suffer open-angle glaucoma (Report of Dr Gebauer dated 29 March 2017)(R3).
The Applicant has been treated by Dr Giubilato since January 2014 for advanced pigment dispersion glaucomatous optic neuropathy (T16 at 135 and T19 at 138).
In his report of 21 August 2014 (A5), Dr Giubilato stated:
I first reviewed Mr Firth at the request or one of my colleagues on the 17th of January 2014. He presented at that point with bilateral early cataract and significant pigment dispersion syndrome with glaucomatous optic neuropathy. He previously had a central retinal vein occlusion.
He has now subsequently undergone bilateral glaucoma drainage devices which are managing his intraocular pressures reasonably well. He is under continued care for this.
With respect to the link between his glaucomatous optic neuropathy and his service I would state at the present moment that the pigment dispersion syndrome and then subsequently glaucoma in fact evolves over many years. It classically presents at its peak usually in men in their 40's. It is in fact an abnormality of the angle and interaction of the iris with the lens. Effectively because of the anatomical configuration the iris rubs on the lens during pupil excursion. This releases pigment which causes occlusion drainage or the mesh work and subsequently raised pressure and then glaucoma. The abnormality was likely to be present at a very early age probably in Mr Firth’s 20's as the period for which the pressure needs to slowly rise can be anywhere from 10 to 20 years
As a consequence I am almost certain that the actual syndrome itself was present at least in its early form at the beginning of Mr Firth's service. Activity is known to precipitate pigment release and hence there would be a causal relationship between service and aggravation of pigment dispersion consequently causing further raised intraocular pressures and subsequently glaucoma
With respect to the central retinal vein occlusion which has contributed significantly to Mr Firth's visual incapacity there is a causal relationship between glaucomatous optic neuropathy and central retinal vein occlusion as well as cigarette smoking. The accumulative affect therefore may well be sufficient to meet the criteria for association with clinical service.
Dr Giubilato’s further report of 20 March 2015 (T19) provided as follows:
This gentleman is now under my care for some time with advanced pigment dispersion glaucomatous optic neuropathy. With respect to the aetiology of this disease, this is an anatomical rubbing of the iris against the lens usually presenting in patients in their 40s. There is no doubt given the mechanism and the amount of iris pigment loss that needs to occur for obstruction of the trabecular meshwork that this disease starts 20 years prior to diagnosis. There is good evidence that exercise induces increased pigment loss and therefore exacerbates the intraocular pressure elevation and contributes to both the presentation and prognosis of the disease. Mr Firth is certainly likely to have had pigment dispersion syndrome when he was listed (sic) into the armed forces and excessive exercise during this period would have contributed to the severity of his disease. This is well documented in numerous articles. I attach one for your reference.
With respect to the statement of principles I note:
1)The diagnosis is pigment dispersion glaucoma (a type of open angle glaucoma)
2)The pigment dispersion was definitely present at the time of service
3)I note that in the statement of principles that pigment dispersion is actually cited as a contributor in other factors
With respect to your decision I note:
There is a history of intraocular surgery to the left eye, and his surgery may have contributed to open angle glaucoma in the left eye".
This would not have exacerbated his pigment dispersion glaucoma.
Dr Giubilato’s further report of 21 August 2017 (A5) provided as follows:
I am providing a report with respect to Mr Firth's glaucomatous optic neuropathy and pigment dispersion syndrome. Mr Firth was first seen by myself on 17 January 2014. He was referred by one of my colleagues, Dr Alasdair Jackson, for advanced glaucomatous optic neuropathy with progression. He had a past history of a left central retinal vein occlusion with a shunt procedure and had been known to have discs around 0.45.
On review at that point, his visual acuities were 6/7.5 in the right eye and 6/24 pinhole 6/15 in the left with discs at around 0.9 bilaterally (having been noted at 0.45 in 2004). At this point, he went on to have bilateral glaucoma drainage devices implanted for IOP control and these have worked particularly well with respect to keeping his intraocular pressure into the low teens albeit with the additional treatment of topical and oral medications at times. Mr Firth suffers from pigment dispersion glaucoma, a variant of open angle glaucoma, typically seen in low myopic patients and usually presenting in their 40s, but probably evolving over 10 to 20 years prior to that because of an anatomical pre-disposition to the iris rubbing on the lens. The entire mechanism is not entirely understood, but it is thought that exercise certainly increases pigment dispersion as does alterations of the anterior segment anatomy such as by blinking and rubbing of the eye. It is difficult to ascertain as to when this syndrome, i.e., the pigment dispersion itself started as this would have been asymptomatic and may not even have caused the elevated IOP, but as a general rule from clinical experience would appear that pigment dispersion syndrome leads to pigment dispersion, ocular hypertension and subsequently glaucoma over probably 10 to 20 years.
With respect to the role of the military service, there are two possible hypotheses here that would certainly enhance the release of pigment and hence enhance the rate at which glaucoma would progress. Excessive exercise has been well documented to cause significant pigment release and visual blurring at times in some patients and eye rubbing as indicated by Dr Gebauer would certainly alter the anterior segment anatomy so that increased pigment dispersion is certainly possible in this setting. Clearly in the active military service, relative amounts of exercise would be much higher than in the normal population and therefore a causal relationship here would be noted. The exposure to CS gas likewise is likely to lead to significant rubbing of the eyes. This will alter the anterior segment anatomy causing change in interaction between the iris and the lens and exacerbating iris pigmentary loss and hence increasing IOP fluctuations and therefore progressing to a more rapid and severe glaucoma.
Mr Firth continues to suffer from glaucomatous optic neuropathy and has advanced glaucomatous eye disease. We are hoping that with his current treatment regime of Brinzolamide and Ganfort to both eyes and with pressures in the low teens that he will remain relatively stable, but at these levels of glaucomatous optic neuropathy even with low intraocular pressure, one can still see slow clinical progression. Unfortunately, the prognosis is therefore for no potential improvement and possibly for slow deterioration in visual function over time.
As long as I have known Mr Firth, there have really been no issues about compliance. Despite even living in Eaton, which is somewhat away from Perth, he never had a problem with coming up frequently for a clinic visit as well as for surgical interventions and I certainly had no concerns ever about treatment compliance. Pigment dispersion glaucoma can be a very aggressive disease with very high intraocular pressures and hence one can see significant and rapid progression in these patients often non-responsive to topical IOP lowering treatment. I certainly cannot comment on other people's observations with respect to compliance, but certainly this never entered my mind in terms of his treatment and management.
Dr Gebauer’s report dated 29 March 2017 (R3 at 2) relevantly states:
Mechanism of alleged Injury/Sequence of Events:
During Mr Firth’s enlistment in the Australian Defence Forces he suffered exposure to CS gas (tear gas) on approximately 25 occasions. This commenced in 1984 during training. It consisted of crystal shards entering the eyes causing intense itch pain and prompted him to rub his eyes vigorously. He was given water to wash out his eyes but otherwise no medical attention or treatment was provided.
Physical exercise during this time consisted of physical training daily, twice weekly battle PT and two to three times per year 30 plus km runs.
In 1999 and 2000 he developed a blurred vision in the left eye and was seen by an ophthalmologist Dr Chris Kennedy, who diagnosed a left central vein occlusion. This was treated with laser (from the notes chorioretinal venous anastomosis). Mr Firth saw Dr Kennedy over the next 12 to 24 months. At the time of his initial assessment it was noted he had elevated intraocular pressure and was prescribed two different types of eye drops to use in the both [sic] eyes daily. This was later reduced to one eye drop.
Mr Firth recalled that follow-up was suggested every two years. He has a vague recollection of being referred to Dr Philip House, Ophthalmologist in Applecross in 2002 which he thinks was for one visit only. He continued to get prescriptions for his eyedrops from his GP Dr Greg Murphy, Kingsway Medical Centre, Landsdale and noted that the eyedrops caused his eyes to go red. From the notes provided he was referred by his GP to Dr Jeremy Raiter, Ophthalmologist in Joondalup in 2003 at which time he was on two different types of glaucoma drops.
From the notes he was referred by his GP to Dr Raiter in 2006 when he was not happy with his glasses and was seen approximately twice. From the notes during the period 2007 to 2009 he was seen by Dr Christopher Kennedy on two occasions and was on two types of eyedrops Cosopt and Xalatan to both eyes.
In 2013 Mr Firth moved to Bunbury and had an episode of dim vision whilst in the shopping centre. He saw an optometrist and noticed his intraocular pressures were elevated and referred him to Dr Alasdair Jackson in Bunbury. He recalls having to wait a few months for an appointment. Subsequently he was referred to Dr Giubilato, an ophthalmologist in Perth in 2014 and underwent surgery to both eyes for treatment of his glaucoma.
Of relevance to progression of Mr Firth’s glaucoma several statements from various ophthalmologists detailing history of non-compliance with his eyedrops. From the notes I have summarised these below:
1.Letter from Dr Chris Kennedy dated 18 September 2002 “ran out of timolol drops” (April 2002) “missed taking drops” (June 2002).
2.Letter from Dr Chris Kennedy dated 20 May 2004 “had stopped his Xalatan drops due to allergic reaction”.
3.A letter from Dr Jeremy Raiter dated 8 March 2005 “some confusion over his drops”.
4.Letter from Dr Chris Kennedy dated 13 December 2007 “currently well controlled on Xalatan and Cosopt”.
5.Letter from Dr Kennedy dated 7 December 2009 “glaucoma nicely controlled”.
Further clinical details are not available over the next few years as it appears to be a period of nonattendance. A referral letter from his GP to Dr Chris Kennedy was noted on 11 February 2011. Additionally a referral letter from his GP to Dr Low, Ophthalmologist in Bunbury was noted on 27 August 2013. From there he was referred to Dr Alasdair Jackson for treatment of his advanced glaucomatous optic neuropathy. As previously noted further assessment and surgery was then undertaken by Dr Antonio Giubilato in Perth.

This report, under the heading “Summary and Assessment”, further states:
Mr Firth experienced a left central retinal vein occlusion in late 1999 treated in early 2000 by Dr Chris Kennedy with laser resulting in an excellent recovery of vision. He has bilateral pigment dispersion syndrome and has gone on to develop open angle glaucoma with severe visual field loss consistent with a classification of legal blindness in both eyes.
In her report dated 29 March 2017 (R3 at 5-6), Dr Gebauer responds to specific questions posed by the respondent’s solicitor as follows:
“1.1. What is your diagnosis of the condition?
The diagnosis is that of left central retinal vein occlusion, bilateral pigment dispersion syndrome and open angle glaucoma.
1.2.Specify (if possible) the date on which you consider the condition to have first developed or arisen;
The date of onset of the left central retinal vein occlusion was late 1999. The pigment dispersion syndrome is likely to have developed in his 20s but as he had no symptoms and no ophthalmic examination records are available prior to his presentation to Dr Chris Kennedy in 2000, a specific date cannot be given. His open angle glaucoma as a consequence of the pigment dispersion syndrome is likely to have developed in the 1990s, early 2000 and specifically he was noted to have elevated intraocular pressure of 30 mmHg in both eyes when first seen by Dr Kennedy in 2000.
1.3.Did Mr Firth’s military service, and specifically, his exposure to tear/CS gas in the circumstances he described caused or contributed to the development of the condition?
Exposure to tear/CS gas has been described in the literature as being associated with glaucoma. However the circumstances were those of extreme short range exposure during the world wars and first noted in a journal article in 1964 (see references). There is no association between CS gas and Mr Firth’s type of pigment dispersion and subsequent open-angle glaucoma. Hypothetically intense eye rubbing following CS gas exposure during his military service may result in pigment release/dispersion which predisposes to the development of open-angle glaucoma however in spite of an extensive literature search I could not find any evidence in the medical literature to support this.
1.4.If the answer is yes to 1.3 above, please describe what those military factors are?
Not applicable.
1.5.If the answer is no to 1.3 above:
a.What non-military service factors do you consider caused or contributed to the development of the condition?
Non-military service factors causing or contributing to the development of Mr Firth’s glaucoma include genetic factors related to development of pigment dispersion syndrome. In spite of the presence of this syndrome approximately 35% of people go on to develop open-angle glaucoma as a consequence. At the time of the detection of Mr Firth’s elevated intraocular pressure in 2000 by Dr Christopher Kennedy it appears the condition responded well to the appropriate medical therapy and any effect of the ocular hypertension/glaucoma on the visual field was mild.
His visual field test at this time were not entirely reliable however a comment in a letter from Dr Philip House, Ophthalmologist dated 19 November 2002 was that his optic disc looks surprisingly good which suggests relatively early glaucoma. Unfortunately repeated episodes of poor compliance and discontinuation of his eye drops at various time by Mr Firth are likely to have significantly contributed to the progression of the glaucomatous optic neuropathy and subsequent loss of his visual field.
b.Did Mr Firth’s military service, and specifically, his exposure to tear/CS gas in the circumstances he described aggravated the condition?
As mentioned previously, Mr Firth’s exposure to tear/CS gas in the circumstances he described cannot be linked to the aggravation of pigment dispersion in the eye and subsequent development of glaucoma. Studies have shown (see references) that excessive and vigorous exercise may increase pigment release and dispersion which potentially may aggravate pigmentary glaucoma however I could not see this association appearing in the statement of principles concerning open-angle glaucoma.
1.6.Does Mr Firth continue to suffer from the condition, and if yes, what is your prognosis of it?
Mr Firth continues to suffer from the condition of bilateral glaucomatous optic neuropathy which is advanced and this condition is permanent and likely to be progressive. He has a poor prognosis due to his relatively young age and the fact that he has already experienced severe damage to the optic nerve with subsequent loss of his visual field and less than 10° of field remaining in both eyes.
2.There is evidence that Mr Firth was not compliant with his eye medications and follow ups for some period of time (see paragraphs 29 & 30 above). Would such non-compliance have any impact on Mr Firth’s condition, and if yes, how so, and to what extent, and would such impact be irreversible?
As mentioned previously there is evidence that Mr Firth was non-compliant with eye medications (see Mechanism of Alleged Injury/Sequence of Events). This non- compliance would adversely affect his condition as the intraocular pressure was found to be elevated when he re-presented for examination. The impact would be highly significant and irreversible in nature.”
LEGISLATION
The Veterans’ Entitlement Act 1986 (Cth) (the “VE Act”)
Section 9(1) of the VE Act relevantly provides that:
...for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …
Section 7(1) of the VE Act relevantly provides that:
... for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; ...
The word “disease” is defined in s 5D(1) of the VE Act as follows:
“disease” means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition; but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or”
Section 120 of the VE Act, which deals with standard of proof, relevantly provides that:
(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.
Note:    This subsection is affected by section 120A.
…
(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.
Note:     This subsection is affected by section 120A.
(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.
Note:     This subsection is affected by section 120B.
(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 per son 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.
Section 120A of the VE Act relevantly provides:
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)   a claim under Part II that relates to the operational service rendered by the veteran;
…
(3) For the purposes of subsection120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of
(a)   the kind of injury suffered by the person; or
(b)   the kind of disease contracted by the person; or
(c)   the kind of death met by the person; as the case may be.”
Section 196B of the VE Act relevantly provides:
(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act and the MRCA.
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)         operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c)          hazardous service rendered by members of the Forces; or
(caa) British nuclear test defence service rendered by members of the Forces;or
(ca)       warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)         the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3:       For factor related to service see subsection (14).
Subsection 196B(14) of the VE Act relevantly provides that:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service…
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i)        but for the rendering of that service by the person; or
(ii)but for changes in the person's environment consequent upon his or her having rendered that service; or
(g)     in the case of a factor causing, or contributing to, the death of a person--it was due to    an accident that would not have occurred, or to a disease that would not have been contracted:
(i)       but for the rendering of that service by the person; or
(ii)     but for changes in the person's environment consequent upon his or her having rendered that service.
The relevant SoP, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, that relates to the applicant’s operational service is Statement of Principles concerning Open-Angle Glaucoma No. 27 of 2012.
The relevant SoP as determined by the Repatriation Medical Authority under s 196B(3) and (8) that relates to the applicant’s eligible war service (other than operational service) and certain other defence service is Statement of Principles concerning Open-Angle Glaucoma No. 28 of 2012.
In the Statement of Facts, Issues and Contentions filed by the applicant (A1), the applicant identified the factors in clause 6 of the SoPs relied on as being:
(b)having a specified disorder or the affected eye or orbit at the time of the clinical onset of open-angle glaucoma; or
(d)having trauma as specified to the affected eye before the clinical onset of open- angle glaucoma; or
(n) having a specified disorder or the affected eye or orbit at the time of the clinical worsening of open-angle glaucoma; or
(p) having trauma as specified to the affected eye before the clinical worsening of open-angle glaucoma.
Section 5Q of the VE Act defines “operational service” by reference to ss 6 to 6F. Section 6C of the VE Act provides as follows:
(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
Operational area is defined in s 5B of the VE Act as an area described in column 1 of Schedule 2 during the period specified in column 2 of Schedule 2. Item 9 of Schedule 2 identifies:

Column 1

Description of operational areas

Column 2

Period

The area comprising the United Nations Mandated Territory of Namibia and the area of land extending 400 kilometres outwards from the borders of Namibia into the adjoining countries of Angola, Zambia, Zimbabwe, Botswana and South Africa (including Walvis Bay)

The period from and including 18 February 1989 to and including 10 April 1990.

CONSIDERATION

It is common ground that this application is one to which s 120 of the VE Act applies. The relevant service was operational service as that term is defined (see paragraphs 29 and 30 above).
The approach to be taken in applying ss 120(1) and 120(3) of the VE Act, as affected by s 120A, in particular s 120A(3), was set out in detail by the Full Court (Beaumont, Hill and O’Connor JJ) in Repatriation Commission vDeledio (1998) 83 FCR 82 (“Deledio”).
In Deledio, the Full Court established a four step approach (hereafter referred to as the “Deledio steps”) as follows:
(1)Does the material before the Tribunal point to a hypothesis connecting the injury, disease or death with the particular circumstances of the service rendered by the person? No findings of fact are involved at this stage, just whether a hypothesis arises. If no hypothesis arises, the claim must fail.
(2)If the material does raise an hypothesis, is there in force an SoP determined by the authority under s 196B(2) or (11) of the VE Act which supports the hypothesis? If there is no such SoP in force, the hypothesis will be taken not to be reasonable and the application will fail.
(3)If there is an SoP in force, then the Tribunal must form a view on whether the hypothesis is reasonable. The hypothesis will be taken to be reasonable if it is consistent with the template in the SoP. For that to be the case, the hypothesis must contain one or more of the factors which the authority has determined to be the minimum which must exist and be related to the person’s service (in this case as required by s 196B(2)(d) and (e)). If the hypothesis does contain one or more of the listed factors, the hypothesis cannot be said to be contrary to the proved or known scientific facts and not otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
(4)The Tribunal then must consider whether, under s 120(1) of the VE Act, it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury or disease was war-caused. Unless it is so satisfied, the claim must succeed. If it is satisfied beyond reasonable doubt that there is no sufficient ground to support the hypothesis, then the claim must fail. It is only at this stage that the Tribunal is required to find facts from the material before it.
Applying the four step test laid out in Deledio, the first step for the Tribunal is to determine whether the material before the Tribunal points to a hypothesis connecting the injury, disease or death with the particular circumstances of the service rendered by the applicant.
Here, two hypotheses were raised by the applicant and arose from the material before the Tribunal. The first is that strenuous physical activity during the period of his enlistment in the Army, including his time on deployment in Namibia, caused or contributed to the pigment release and dispersal that caused or contributed to the open-angle glaucoma. The second is that exposure to tear gas during his service, including exposure to tear gas while deployed in Namibia, caused or contributed to the pigment release and dispersal that in turn was the cause of the open-angle glaucoma and/or caused the clinical worsening of the open-angle glaucoma.
The Tribunal accepts that the first Deledio step, namely that there is material before it pointing to an hypothesis, is satisfied.
It is not disputed, and the medical evidence is unequivocal, that the applicant suffers from open-angle glaucoma. It is similarly not disputed that there is in force an SoP concerning open-angle glaucoma, namely SoP No.27 of 2012 (“SoP 27”). The Tribunal notes that SoP No.28 of 2012 also concerns open-angle glaucoma. Nonetheless, for reasons set out later in this decision relating to the nature of the applicant’s relevant service, namely operational service, the Tribunal considers SoP 27 to be the applicable SoP. The applicant’s case and the hearing proceeded on the basis of the relevant SoP being SoP 27.
The Tribunal is satisfied that the second Deledio step has been met and that there is in force a relevant SoP duly determined by the authority under s 196B(2) of the VE Act, namely SoP 27.
Deledio step three requires the Tribunal to determine whether the SoP supports the hypothesis. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. If the hypothesis fits the template -- that is, it is consistent with the template of the SoP -- it will be taken to be reasonable. In order for the hypothesis to fit the template, it must contain one or more of the factors identified in the SoP.

The first hypothesis proposed by the applicant in his Statement of Facts, Issues and Contentions dated 3 July 2017 (A1) is that:
34. (the) excessive level of physical activity is likely to have led to an increase in the intraocular pressure which exacerbated the release of pigment, leading to a material contribution to, or an aggravation of the Condition by accelerating its onset and increasing its severity.
The medical evidence presented arguably described the hypothesis slightly differently as being that it is generally accepted that vigorous physical activity does cause, or causes an increase in, pigment dispersal in those who suffer from pigment dispersal syndrome which may, in those susceptible, lead to open-angle glaucoma.
A precise formulation of this hypothesis is, however, unnecessary because, whichever way it is expressed, it does not fit the template set out in the SoP. Physical exertion, excessive, strenuous, or however otherwise described, is not a factor listed in cl 6 of SoP 27. Applying the test laid out in Deledio step three, this hypothesis is therefore to be deemed not to be reasonable and a claim based on that hypothesis must fail.
The second hypothesis identified by the applicant in paragraphs 35 to 38 of his Statement of Facts, Issues and Contentions dated 3 July 2017 (A1) was:
35.Further, both during his defence service and his operational service the Applicant was exposed to CS gas (tear gas) upwards of 25 times without protective equipment.
36.Following such exposure the Applicant suffered significant irritation and discomfort and resorted to vigorous and sustained eye rubbing.
37.Exposure to the tear gas resulted in the Applicant suffering a ‘trauma as specified’ that caused a chemical injury that was likely to have resulted in intraocular inflammation , leading to increased intraocular pressure which exacerbated the release of pigment, leading to a material contribution to , or an aggravation of the Condition by accelerating its onset and increasing its severity.
38.Further, the intense eye rubbing was likely to have resulted in increased intraocular pressure which exacerbated the release of pigment, leading to a material contribution to, or an aggravation of the Condition by accelerating its onset and increasing its severity”
In order to undertake the third Deledio step in relation to this second hypothesis (namely, to determine whether the hypothesis is a reasonable one, and in particular whether the SoP supports the hypothesis), it is necessary to determine what the relevant disease is and when the clinical onset of that disease occurred. While this might seem obvious, and both parties proceeded on the basis that the relevant disease is open-angle glaucoma, the medical evidence before the Tribunal was not clear as to when the clinical onset of open-angle glaucoma occurred. While it is not in dispute that the applicant presently suffers from open-angle glaucoma and that that disease is the result of pigment release/dispersion within the eye, what is not clear is at what point in time the build-up of released pigment reached a sufficient cumulative level to cause the clinical onset of the neuropathy constituting open-angle glaucoma.
In his report dated 21 August 2017 (A5) Dr Giubilato described the process of the development of the applicant’s open-angle glaucoma as follows:
Mr Firth suffers from pigment dispersion glaucoma, a variant of open-angle glaucoma, typically seen in low myopic patients and usually presenting in their 40s, but probably evolving over 10 to 20 years prior to that because of an anatomical pre-disposition to the iris rubbing on the lens. The entire mechanism is not entirely understood, but it is thought that exercise certainly increases pigment dispersion as does alterations of the anterior segment anatomy such as blinking and rubbing of the eye. It is difficult to ascertain as to when this syndrome, i.e., the pigment dispersion itself started as this would have been asymptomatic and may not have even caused the elevated IOP, but as a general rule from clinical experience would appear that pigment dispersion syndrome leads to pigment dispersion, ocular hypertension and subsequently glaucoma over probably 10 to 20 years.
Dr Gebauer, in her report of 29 March 2017 (R3), in response to the request “Specify (if possible) the date on which you consider the condition to have first developed or arisen” responded:
The pigment dispersion syndrome is likely to have developed in his 20s but as he had no symptoms and no ophthalmic examination records are available prior to his presentation to Dr Chris Kennedy in 2000, a specific date cannot be given. His open-angle glaucoma as a consequence of the pigment dispersion syndrome is likely to have developed in the 1990s, early 2000 and specifically he was noted to have elevated intraocular pressure of 30 mmHg in both eyes when first seen by Dr Kennedy in 2000.
The evidence of both Dr Gebauer and Dr Giubilato was that strenuous activity may cause pigment release and dispersion potentially resulting in the development of open-angle glaucoma (paragraph 1.5b of Dr Gebauer’s report of 29 March 2017 (R3) and Dr Giubilato’s reports of 21 August 2017 (A5, third paragraph) and 20 March 2015 (T19, first paragraph). As noted at paragraph 42 above, however, the Tribunal has determined that the hypothesis based on vigorous physical activity is not supported by the SoP, is therefore deemed not to be reasonable and is therefore a hypothesis upon which the applicant cannot rely.
In relation to the second hypothesis and based on a connection between exposure to tear gas and the disease, Dr Gebauer (in answer to request 1.3) in her report of 29 March 2017 (R3) stated:
There is no association between CS gas and Mr Firth’s type of pigment dispersion and subsequent open-angle glaucoma. Hypothetically intense eye rubbing following CS gas exposure during his military service may result in pigment release/dispersion which re-disposes to the development of open-angle glaucoma however in spite of extensive literature search I could not find any evidence in the medical literature to support this.
In cross-examination Dr Gebauer agreed that, while she was unable to find any literature or research which had studied the connection between aggressive rubbing of the eyes and pigment release in those predisposed to pigment dispersion syndrome, the effect of intense eye rubbing on an eye with the relevant anatomical structure could cause the iris to rub on the lens which could result in release and dispersion of pigment from the iris.
In examination by counsel for the applicant, Dr Giubilato commented that it was not surprising that there was no literature or studies on the effect of intense rubbing of eyes in relation to pigment release because of the nature of that behaviour in question and the intrinsic difficulty with identifying and monitoring participants, including a control group, for such a study. He relied on a first-principles analysis of the mechanical affects that vigorous rubbing of the eye would have on the interaction between the iris and the lens in an eye with the anatomical characteristics that would cause friction between the lens and the iris. In that sense Dr Gebauer’s observation in her report (R3 at 6) that “Hypothetically intense eye rubbing….may result in pigment release/dispersion which pre-disposes to the development of open-angle glaucoma” is not inconsistent with the view expressed by Dr Giubilato. Dr Gebauer effectively conceded that to be the case in cross-examination.
This second hypothesis, that exposure to tear gas caused or contributed to the clinical onset or worsening of the open-angle glaucoma, relies on two potential mechanisms. The first is that exposure to the tear gas itself causes harm to the fabric of the eye through a chemical process that is linked to the release of pigment. No medical evidence was presented by the applicant to support that particular mechanism. As cited above, Dr Gebauer’s report was to the effect that “There is no association between CS gas and Mr Firth’s type of pigment dispersion and subsequent open-angle glaucoma”. It was put to Dr Gebauer in cross-examination that the chemicals or compounds comprising the tear gas might be absorbed into the eye which could cause some damage to the eye. Dr Gebauer responded to the effect that, as she was not aware of what chemicals are in tear gas, she could not comment on whether they would be likely to be absorbed into the eye or, even if they were absorbed, what effect they would have on the structure or fabric of the eye.
The end-result is that there is no material upon which the Tribunal could reach a finding that exposure of the eye to tear gas alone would cause harm to the eye, let alone harm that would cause release of pigment.
The second possible mechanism by which exposure to tear gas could cause pigment release, and the one upon which the application almost exclusively relied on at the hearing of this matter, is that exposure to the tear gas caused the applicant to rub his eyes intensely which caused the pigment release and which eventually caused the open-angle glaucoma. In other words, the physical effect of the rubbing of the eyes (rather than some chemical reaction within the eye) caused by absorption of tear gas into the eye caused the pigment release.
The Tribunal accepts that the material before it, including the cross-examination of the medical witnesses, points to the second mechanism underlying the hypothesis – ie, that the vigorous rubbing of the eyes caused by exposure to tear gas caused an increased release of pigment, which is accepted as being the cause, along with other physical conditions, of the open-angle glaucoma suffered by the applicant.
While still focussing on Deledio at step three, the next question for the Tribunal is whether the SoP supports this second hypothesis based on the pigment release being caused by eye rubbing. In order for the SoP to support the hypothesis, the hypothesis must contain one of the factors listed in the SoP. The factors are set out in subclauses (a) to (y) of cl 6. The applicant’s Statement of Facts, Issues and Contentions (A1) identified four factors in SoP 27 as being potentially applicable. They are:
(i)Factor (b), having a specified disorder of the affected eye or orbit at the time of the clinical onset of open-angle glaucoma;
(ii)Factor (d), having trauma as specified to the affected eye before the clinical onset of the open-angle glaucoma;
(iii)Factor (n), having a specified disorder of the affected eye or orbit a the time of the clinical worsening of open-angle glaucoma; and
(iv)Factor (p), having trauma as specified to the affected eye before the clinical worsening of the open-angle glaucoma.
At the hearing of this matter, counsel for the applicant (correctly in the Tribunal’s view), identified factor (d) as being the one upon which the applicant primarily relied. That is not to say, however, that factor (p) may not also be applicable. The Tribunal addresses both factors below. At the hearing, counsel for the applicant advised (again, rightly in the Tribunal’s view) that factors (b) and (n) would not be relied on.
Dealing firstly with factor (d): is that factor present in the second hypothesis – namely, that the eye rubbing caused by the exposure to tear gas caused or contributed to the clinical onset of the open-angle glaucoma suffered by the applicant?
In determining whether this hypothesis contains factor (d) or for that matter factor (p), it is necessary to consider the definition of “trauma as specified”.
Clause 9 of SoP 27 defines that term as follows:
“Trauma as specified means penetrating, blunt, chemical, thermal or ionising radiation injury involving the affected eye that results in intraocular inflammation, intraocular bleeding or other intraocular tissue disruption.”
Does the material before the Tribunal, in particular the medical evidence, support a conclusion that the rubbing of the eyes and the effect of that rubbing constitute a trauma as specified? In effect, the definition has two elements. The first is that there is a penetrating, blunt, chemical, thermal or ionising injury to the eye. The second is that, as a result of the injury, there is intraocular inflammation, intraocular bleeding or other intraocular tissue disruption.
Dealing first with the second element of the definition, in cross-examination Dr Gebauer agreed that the release of pigment from the iris would be an event of intraocular tissue disruption. On the normal meaning of the words in the definition of trauma as specified, supported by Dr Gebauer’s answer in cross-examination, the Tribunal is satisfied that the second element of the definition is satisfied.
The other element of the definition that needs to be satisfied is whether there could be said to be an injury in the sense that that word is used in the definition. The Macquarie Dictionary defines an injury as “harm of any kind done or sustained”. The Oxford English Dictionary relevantly defines injury as “hurt or loss caused to or sustained by a person or thing; harm, detriment, damage” or “a bodily wound or sore”.
The question here is whether “the rubbing of the eye that causes the tissue disruption” can be considered to be an injury. The tissue disruption, while in one sense could be considered to be a harm or injury, cannot be the injury for the purposes of the definition. Given that the definition talks in terms of an “injury…that results in…intraocular tissue disruption”, on ordinary principles of statutory construction the “tissue disruption” cannot of itself be the injury. The latter must result in the former and, accordingly, they cannot be one and the same.
The word “injury”, however, is to be given context by surrounding words and the intention of the legislation. In this regard when coupled with the adjective “blunt”, which was the element of the definition identified as being relevant by the applicant’s counsel, it is hard to see how the rubbing of the eyes alone, even if such rubbing causes tissue disruption, could be considered to be an injury within the normal meaning of that word. There was no medical evidence that the rubbing of the eyes of itself was an injury even though there was evidence that rubbing the eyes could cause release and dispersal of pigment which is the cause of this form of open-angle glaucoma.
If, however, the word “injury” is coupled with the adjective chemical, a different context emerges. It is not disputed, nor could it be, that the purpose and effect of tear gas (established by the evidence presented by the applicant) is to cause extreme irritation, pain, production of tears and inflammation of the eyes. In the context of a “chemical injury”, it would be difficult to categorise those consequences of exposure to tear gas as anything other than an injury to the eye, even if it is an injury with a limited duration.
The Tribunal accepts that an inevitable and, in real-world terms, unavoidable consequence of the injury caused to an eye by exposure to tear gas is that the effected person will vigorously rub his or her eyes. The exposure to tear gas and the response of vigorous and sustained eye rubbing are so clearly connected that the tissue disruption caused by the vigorous and sustained eye rubbing can properly be treated as a result of the chemical injury to the eye. The elements of the definition of trauma as specified are therefore met.
A further element of factor (d) that must be satisfied is that the trauma as specified occurred before the clinical onset of the open-angle glaucoma. As noted above, the timing of the clinical onset of the open-angle glaucoma is difficult to establish. The medical evidence, in particular Dr Gebauer’s report, points to the following timeline:
(i)1999 - 2000, blurred vision. Dr Kennedy diagnoses left central vein occlusion. At that time Dr Kennedy noted that the applicant had elevated intraocular pressure. Prescribed drops for treatment of the intraocular pressure. The material does not disclose that there was at that time a diagnosis of open-angle glaucoma.
(ii)Over the next three years the applicant saw a number of doctors including Dr Murphy (GP), Dr House (ophthalmologist) and in 2003 Dr Raiter (ophthalmologist). During this period the applicant was taking several types of eye drops for the intraocular pressure.
(iii)2006, the applicant was referred by his GP to Dr Raiter who saw the applicant twice.
(iv)2007 – 2009, the applicant was seen by Dr Kennedy on two occasions and was during that time taking two types of eye drops, Cosopt and Xalatan.
(v)2013, the applicant moved to Bunbury. He had an episode of dim vision and saw an optometrist who noted elevated intraocular pressure. The applicant was referred to Dr Jackson. No report from Dr Jackson was put into evidence.
(vi)2014, the applicant was referred to Dr Giubilato who, in his report dated 28 July 2014 (T15), diagnosed the applicant as having advance glaucomatous optic neuropathy. On the material before the Tribunal this is the first diagnosis of glaucoma.
The Tribunal also notes the following elements of Dr Giubilato’s and Dr Gebauer’s reports:
This releases pigment which causes occlusion drainage or the mesh work and subsequently raised pressure and then glaucoma. The abnormality was likely to be present at a very early age probably in Mr Firth’s 20's as the period for which the pressure needs to slowly rise can be anywhere from 10 to 20 years. (Dr Giubilato report of 21 August 2014)(T16);
There is no doubt given the mechanism and the amount of iris pigment loss that needs to occur for obstruction of the trabecular meshwork that this disease starts 20 years prior to diagnosis (Dr Giubilato report of 20 March 2015)(T19);
Mr Firth suffers from pigment dispersion glaucoma, a variant of open-angle glaucoma, typically seen in low myopic patients and usually presenting in their 40s, but probably evolving over 10 to 20 years prior to that because of an anatomical pre-disposition to the iris rubbing on the lens (Dr Giubilato report of 21 August 2017)(A5); and
His open-angle glaucoma as a consequence of the pigment dispersion syndrome is likely to have developed in the 1990s, early 2000 and specifically he was noted to have elevated intraocular pressure of 30 mmHg in both eyes when first seen by Dr Kennedy in 2000 (Dr Gebauer report of 29 March 2017)(R3 at 5).
Based on the above chronology of treatment and diagnosis, the Tribunal accepts that, while it is likely that the applicant was suffering from pigment dispersion syndrome at the time of the applicant’s exposure to tear gas in 1989 – 1990, there had not been a clinical onset of open-angle glaucoma -- thus satisfying the timing requirement of factor (d). Alternatively, if the applicant had by 1989-1990 suffered a clinical onset of open-angle glaucoma, the Tribunal accepts that at a time after the applicant’s exposure to tear gas in 1989-1990 there was a clinical worsening of the applicant’s open-angle glaucoma -- thereby satisfying the timing requirement of factor (p).
As a result of the above findings, the Tribunal accepts that there is in force a relevant SoP and that the hypothesis linking the applicant’s exposure to tear gas to his open-angle glaucoma is consistent with the template in SoP 27. Having so found, in accordance with the third Deledio step, the Tribunal is satisfied that the hypothesis is reasonable.
The final Deledio step is to consider under s 120(1) of the VE Act whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the applicant’s open-angle glaucoma was war-caused.
For the reasons set out above, the Tribunal accepts that the material before it points to a reasonable hypothesis connecting the applicant’s open-angle glaucoma to his operational service and that that hypothesis is supported by SoP 27 in that it is consistent with the template set out in that SoP as it contains at least one factor listed in cl 6 of SoP 27.

Accordingly, the Tribunal is not satisfied beyond reasonable doubt that there are sufficient grounds for making a determination that the applicant’s open-angle glaucoma was not war-caused.
For the reasons set out above, the Tribunal is satisfied that the applicant’s open-angle glaucoma was war-caused within the meaning of the VE Act.
DECISION
The Tribunal sets aside the decision of the respondent of 24 November 2015, affirmed by the Veterans’ Review Board on 15 August 2016, and substitutes a decision that the applicant’s open-angle glaucoma was war-caused within the meaning of the Veterans’ Entitlements Act 1986.

I certify that the preceding 75 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr C Kendall.

............[sgd].......................................................
Administrative Assistant - Legal
Dated: 27 September 2017

Date(s) of hearing: 5 and 6 September 2017

Representative for the Applicant: Mr R Grayden

Solicitors for the Applicant: Robert Grayden Legal

Counsel for the Respondent: Ms S Oliver

Representative for the Respondent: Ms T Ling

Solicitors for the Respondent:

Australian Government Solicitor

[2017] AATA 1591

27 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	5 and 6 September 2017
Representative for the Applicant:	Mr R Grayden
Solicitors for the Applicant:	Robert Grayden Legal
Counsel for the Respondent:	Ms S Oliver
Representative for the Respondent:	Ms T Ling
Solicitors for the Respondent:	Australian Government Solicitor