FLORENCE and REPATRIATION COMMISSION

[2011] AATA 483

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/0864

VETERANS’ APPEALS DIVISION		)
Re		ROY FLORENCE

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 11 July 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review in respect of morbid obesity.  The Tribunal sets aside the decision in respect of sleep apnoea and decides in substitution that the applicant’s sleep apnoea condition is attributable to his operational service. The matter is remitted to the respondent for assessment with a date of effect of 7 January 2009.

....................[SGD]..........................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENT — morbid obesity — sleep apnoea — decision affirmed in part and set aside in part.

Veterans Entitlements Act 1986

Florence and Repatriation Commission No Q2004/505

REASONS FOR DECISION

11 July 2011 Senior Member Bernard J McCabe

1.Mr Roy Florence suffers from a range of conditions that are related to the circumstances of his military service, including post traumatic stress disorder (PTSD) and alcohol abuse or dependence. He receives a pension under the Veterans Entitlements Act 1986 (“the Act”) as a result. He also suffers from morbid obesity and sleep apnoea but the Repatriation Commission says those two conditions are not related to service. Mr Florence has asked the Tribunal to reconsider that decision.

Background facts

2.Mr Florence rendered operational service in Thailand and South Vietnam on several occasions in 1966, 1967 and 1968. He was an airfield defence guard with the RAAF. He witnessed distressing events during the course of that service (in particular, he saw a shooting while he was on leave in Thailand). I understand there is no dispute that the date of onset of his alcohol abuse or dependence condition coincided with the stressful events that occurred during operational service.  There was a dispute over the date of onset of the PTSD condition, although it is now accepted the PTSD is ultimately linked to the same stressful events that brought on the heavy drinking.

3.The applicant has experienced difficulties with his weight for many years. His body mass index (“BMI”) has been relatively high since the time he joined the RAAF: in November 1965, his BMI was 29.9, according to the table distilled from his records in exhibit one at p 85. It is accepted that a BMI of 30 or above means the individual is obese. The table says Mr Florence’s BMI was 30.4 by August of 1966, 33 in June 1967 and 35.5 in June 1968. The elevated readings coincided with the periods when the applicant was on operational service and had been drinking heavily. His BMI decreased when he returned to Australia and resumed his service, which included a rigorous exercise program that he referred to in his statement and oral evidence. His BMI was 31.2 in April 1971, and 31.1 in November of the same year. He was discharged in January 1972. He began work as a heavy machinery operator. He worked long hours in a relatively sedentary occupation. He says he did not have a regular exercise program during this period.

4.I am satisfied the applicant’s BMI did not fall below 30 after he left the services. Indeed, the evidence makes it clear that it rose – slowly and unremarkably at first, but more precipitously between 1995 and 1998 when the applicant put on a lot of weight and became morbidly obese (that is, he had a BMI of at least 40).

5.The weight gain (or more precisely, the increase in BMI) after 1995 coincided with the applicant’s decision to give up smoking. Experience suggests that many individuals experience significant weight gain when they give up smoking. Importantly, the applicant had given up drinking some years before. He says he stopped drinking in 1990 for health reasons and did not drink again for the better part of 20 years. He remained in the same sedentary occupation throughout his period. He did not have a regular exercise program.

Diagnosis

6.The parties accept Mr Florence’s morbid obesity condition had its onset around 1995, while the sleep apnoea condition took hold in 1998. 

Causation

7.Mr Florence offered two hypotheses in support of his claim. Firstly, he argued the sleep apnoea was related to the morbid obesity. The morbid obesity in turn was a product of an excessive caloric intake (in the form of large amounts of alcohol) and an inability to exercise that resulted from his psychiatric conditions. The lack of motivation and lethargy that he experienced as a result of his service-related PTSD and perhaps his alcohol condition made it difficult if not impossible to exercise at a level that would keep his weight in check.

8.The second hypothesis emerged at the hearing. Mr Florence argued that he became obese because of his service-related excessive drinking and perhaps the PTSD. That meant the obesity was service-related. The obesity in turn caused the sleep apnoea. On that analysis, the applicant says he is entitled to succeed in respect of sleep apnoea independently of his claim in respect of morbid obesity.

9.The relevant statements of principle are No 31 of 2003 (in relation to morbid obesity) and No 13 of 2005 (in relation to sleep apnoea).

10.I will deal with the claim in respect of morbid obesity first. I turn to the statement of principles with a view to establishing whether the applicant’s story as told “fits” the template. The statement of principles provides at clause 5(a) that a factor in the development of morbid obesity is:

having a caloric intake that:

(i) is excessive for energy needs; and

(ii) cannot be compensated by physical activity;

for the year immediately before the clinical onset of morbid obesity.

11.While it seems likely the applicant experienced an excessive caloric intake in the period 1994-1995, there is no evidence to connect that excessive intake from whatever source with the circumstances of his service. The applicant had stopped drinking in 1990, so his (service-related) alcohol intake could not be the source of any weight problems. The more interesting question is whether his evidence suggests he could not undertake physical activity that would compensate for the caloric intake as a result of his PTSD or alcohol conditions.

12.There is evidence from Dr Likely to the effect that the applicant’s PTSD condition made it difficult if not impossible for him to undertake an exercise regime that would have allowed him to keep his BMI below 40. I note there is a good deal of evidence that is inconsistent with that proposition, but I will accept for now that the applicant’s story fits the template of the statement of principles.

13.I think the applicant’s case in relation to morbid obesity runs into difficulty at the point when I must start making findings of fact. To begin with, I am not persuaded the applicant experienced PTSD during 1994-1995. Dr Likely has previously opined that the applicant suffered from generalised anxiety disorder that had its onset at or about the time of the applicant’s service. I note a claim in respect of that condition was rejected by the Tribunal in 2005: see Florence and Repatriation Commission No Q2004/505 per Deputy President Muller. The Tribunal referred in particular to the evidence of Dr Rogers, a recognised expert on PTSD. Dr Rogers had examined Mr Florence in 2001 and concluded the applicant did not suffer from PTSD at that point. Dr Likely did not diagnose a psychiatric condition until 2003. He changed his diagnosis to PTSD some time later and the claim was subsequently accepted. Dr Likely’s retrospective diagnosis of PTSD from the date of Mr Florence’s service is inconsistent with that of the well-credentialed Dr Rogers.  Dr Likely’s evidence about the debilitating effect of that condition from the late 1960s is also inconsistent with the evidence that Mr Florence was able to maintain a rigorous exercise program in the years following the stressful events overseas before he left the RAAF, and the fact that he was able to work long hours over many years prior to 1994-1995. I prefer the evidence of Dr Rogers, an independent expert whose opinion could not have been influenced by a treating relationship.

14.I am satisfied beyond reasonable doubt that the applicant did not suffer from PTSD during 1994-1995. Since his alcohol condition was in remission during the period after he stopped drinking in 1990, I cannot be satisfied the applicant’s service-related conditions played any part in preventing from exercising in 1994-1995. The more likely culprits were a combination of a sedentary lifestyle and the increase in caloric consumption that accompanied his attempts to quit smoking. It follows the increase in BMI above 40 around 1995 is not attributable to his service, and the claim in respect of morbid obesity must fail.

15.I turn next to the claim in respect of sleep apnoea. The relevant statement of principles refers at factor 5(b) to “being obese at the time of the clinical onset of sleep apnoea”. The expression “being obese” is defined in the statement of principles as “an increase in body weight by way of fat accumulation which results in a body mass index (BMI) of thirty or greater.”

16.It stands to reason that one might accumulate fat as a result of a level of caloric intake that is not offset by physical activity.

17.Mr Honchin, for the applicant, pointed out the applicant had become obese during the course of his service and remained obese when he was diagnosed with sleep apnoea. Mr Honchin pointed to the increase in BMI that occurred around the time the applicant was drinking heavily in 1967-1968, apparently as a response to the stressful events he had witnessed overseas.  Mr Honchin acknowledged the applicant’s BMI fell to a slightly lower level when he returned to Australia, but said that did not make any difference: the applicant accumulated fat because of his (service-related) drinking and never really lost it.

18.I accept for present purposes that the applicant’s story as told appears to fit the template of the statement of principles. He was obese in 1998. He may have become morbidly obese for other reasons (such as giving up smoking), but that is not the issue.

19.The evidence does not establish the applicant first became obese because of drinking that was a response to stressful events. The chart recording his BMI in exhibit one at p 85 suggests his BMI was close to 30 when he joined the RAAF and had exceeded that figure by the time he commenced operational service in Thailand in September 1966. His BMI declined after he returned but the evidence suggests – and I accept – he was drinking heavily while maintaining a rigorous exercise regime before his discharge in 1972. Once he was discharged and commenced a lifestyle that saw a continuation of a pattern of heavy drinking (and a high caloric intake) without compensating physical activity, he inevitably began to accumulate fat, and his BMI slowly increased above 30. Given there is evidence to suggest the applicant’s disinclination to engage in exercise was brought on (or at least exacerbated) by his psychiatric state, I am constrained to accept his service-related condition made a serious contribution to the development of his sleep apnoea condition.

Conclusion

20.The decision in respect of the applicant’s morbid obesity condition is affirmed. The decision in respect of the applicant’s sleep apnoea condition is set aside. The Tribunal decides in substitution that the applicant’s sleep apnoea condition is attributable to his operational service. The matter is remitted to the respondent for assessment with a date of effect of 7 January 2009.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed:......................[SGD].......................................................
  Associate

Date/s of Hearing  20 June 2011
Date of Decision  11 July 2011
Counsel for the Applicant         Mr D Honchin
Solicitors for the Applicant        Purcell Taylor Lawyers
Advocate for the Respondent   Mr J Stoner