Forrest and Repatriation Commission (Veterans' entitlements)
[2018] AATA 759
•4 April 2018
Forrest and Repatriation Commission (Veterans' entitlements) [2018] AATA 759 (4 April 2018)
Division:Veterans' Appeals Division
File Number: 2015/0300
Re:Thomas Forrest
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Miss E A Shanahan, Member
Date:4 April 2018
Place:Melbourne
The Tribunal affirms the decision under review.
.......[sgd].................................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – claim for increase in disability pension – dispute as to lifestyle rating – seeking extreme disablement adjustment – not eligible for special or intermediate rate – earlier hearing discontinued on the basis of an entry mistake in the current entitlements – reliance on transcript – issue as to whether incapacity related to accepted disabilities – decision affirmed
Legislation
Veterans’ Entitlement Act 1986 (Cth)
Secondary Material
Guide to the Assessment of Rates of Veterans’ Pension (No 2) 2016
Cases
Re Anderson and Repatriation Commission (1998) 53 ALD 467Raisbeck v Repatriation Commission (1993) 31 ALD 704
REASONS FOR DECISION
Miss E A Shanahan, Member
4 April 2018
On 26 May 2014 Mr Forrest lodged a claim in accordance with s 22 of the Veterans’ Entitlement Act 1986 (the VE Act) for an increase in his pension. At the time of his application he was 66 and had not worked since ceasing Reserve service in 2009. He is receiving a disability pension at 100 per cent of the General Rate. On 17 June 2014 a determination was made by the Repatriation Commission (the Commission), denying an increase in pension as Mr Forrest’s lifestyle rating in accordance with the Guide to the Assessment of Rates of Veterans’ Pension (No 2) 2016 (GARP) averaged 5. As the required lifestyle rating is an average of 6, he did not satisfy the requirements of s 22.
The Veterans’ Review Board (the VRB) affirmed the decision on 21 October 2014. They determined that Mr Forrest had an impairment rating of 70 points and on their calculations an average lifestyle rating of 5 points. In their decision the VRB referred in particular to the large number of non accepted disabilities from which Mr Forrest suffered, the most relevant of which was peripheral neuropathy, first diagnosed in 2005. The VRB considered the peripheral neuropathy to have a considerable impact on Mr Forrest’s health and lifestyle.
At the hearing of this matter on 23 October 2017 Mr Forrest was represented by Ms Fiona Spencer of counsel, instructed by Ms Sophia McMahon, trainee solicitor of Williams Winter. Mr Ken Rudge, solicitor with the Department of Veterans’ Affairs (DVA), appeared for the Commission. This matter had been part heard on 23 and 24 March 2017. The s 37 documents (the Tribunal documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975) had been found to contain an error in relation to Mr Forrest’s accepted entitlements for his war-caused medical conditions.
The then presiding Member ordered that the hearing be discontinued and the matter be reheard by a differently constituted Tribunal. Mr Forrest and his wife Rae Forrest and his treating physician Dr Kemp had given evidence on 23 March 2017. At Mr Forrest’s request the Tribunal agreed to rely on the transcript of their evidence as they were averse to going through the process again. The Tribunal accepted into evidence the redacted transcript of 23 March 2017. This included Dr Kemp’s evidence which was consolidated by his further oral evidence before the Tribunal given by telephone. Associate Professor Chambers, consultant neurologist, gave evidence in person. Both parties tendered additional reports and documentation which have been assigned exhibit numbers, a list of these being appended to this decision.
It is agreed by the parties and the Tribunal that the only issue to be determined relates to the applicant’s lifestyle rating and the contribution to this of the accepted and non‑accepted medical conditions, in particular, the lumbar spondylosis which has been accepted as war-caused and the non-compensable non accepted peripheral neuropathy, both of which impact on function of the lower limbs and in the case of the peripheral neuropathy on the upper limbs also.
BACKGROUND TO THE APPLICATION
Mr Forrest joined the Royal Australian Army (army) on 13 April 1965 at the age of 17 years and 3 months. In the army he served in the infantry and predominantly in an administrative capacity until 21 December 1981. He then transferred to an administrative role in the Royal Australian Airforce (Airforce) where he remained until 24 July 1989 at which time he became a member of the Reserve service and worked for the Department of Defence, again in administrative duties. He was required to work for a minimum of 100 days per year. Throughout his reserve employment he was based mainly at the Amberley Base in Queensland. He would work for three weeks at Amberley and then have one week at home. From 2005 he and his wife lived in Ballarat in Victoria. He ceased work on 9 August 2009, although his contract ran until 2012. His cessation of work was due to him being unable to pass the required medical fitness examination. He was aged 61 at the time he ceased work.
Mr Forrest has the accepted service related disabilities of:
·bilateral sensorineural hearing loss;
·lumbar spondylosis;
·tinea;
·acquired cataracts in both eyes; and
·post-traumatic stress disorder.
He has numerous non-service related disabilities. These include:
·anxiety disorder;
·migraine;
·hypertension;
·hyperlipidaemia;
·bilateral presbyopia;
·rosacea;
·gastro-oesophageal reflux disease;
·cervical spondylosis;
·osteoarthrosis of the right acromioclavicular joint;
·astigmatism in the left eye;
·astigmatism in the right eye;
·seborrheic dermatitis;
·left kidney stones;
·diabetes;
·peripheral neuropathy, and
·right carpal tunnel syndrome.
According to his general practitioner’s clinical notes Mr Forrest in 2015 was taking some 14 different medications. Mainly, these were for his hypertension, diabetes, gastro oesophageal reflux, antidepressants for his post-traumatic stress disorder (PTSD) and analgesics in the form of opioids in particular Jurnista (a hypomorphone). To the Tribunal’s knowledge, many of these medications interact with each other (online data from Therapeutic Goods Administration (TGA) Product Information of above medications).
The Tribunal has not been provided with Mr Forrest’s medical and service history which was provided to VRB. This is not a substantive issue but may have assisted in the determination of the sequence of events. Neither Mr Forrest or Mrs Forrest’s statements nor their evidence provided on transcript address these questions. The Tribunal has relied on the entries in the general practitioner’s records which indicate that Mr Forrest’s chronic back pain has been present since 2002, his lumbar spondylosis since 1970, cataracts were diagnosed in 1986, gastro-oesophageal reflux disease in 1998, sensorineural hearing impairment in 2006, peripheral neuropathy in 2005, PTSD in 2010 and diabetes in 2012. In 2011 Mr Forrest underwent the insertion of a spinal cord stimulator in an effort to control his back pain. Just prior to this he had been diagnosed with arachnoiditis on MRI (magnetic resonance imaging). This diagnosis has since been negated.
In both his statement and his evidence before the earlier hearing Mr Forrest outlined the severity of his back pain which he believed was attributable to his lumbar spondylosis. He confirmed that he had a spinal cord stimulator inserted at the Melbourne Spinal Clinic in 2011, and in 2015 this was replaced with a more up-to-date model. The stimulator has to be checked at three monthly intervals and reprogrammed. Mr Forrest is not able to have further MRI studies because the electromagnetic field of the latter would interfere with the function of the spinal cord stimulator. He confirmed his medication although, he was of the understanding that the Catapres he was taking was solely for his pain although it was prescribed for his hypertension because of the co-effect on some types of pain.
Mr Forrest described his pain as being partially controlled by the use of the stimulator, Jurnista and up to six Panadeine Fortes per day. He also provided data in relation to his PTSD treatment including his medication with Allegron and Efexor, these being overseen by his general practitioner and his endocrinologist Dr Kemp. He continues to see a psychologist at monthly intervals but has not seen a psychiatrist for some years.
Mr Forrest believes that since filing his initial claim in May 2014 his level of disability from his accepted conditions, particularly the lumbar spondylosis, has worsened and he is now more incapacitated. His deterioration related to both the PTSD and the lumbar spondylosis. In terms of the PTSD he believed he was now more withdrawn than before, was more dependent on his wife, now had his driving abilities restricted, his sleep was poor, he continued to suffer from restless leg syndrome which he attributed to his PTSD but was rather vague about the frequency and content of any dreams.
Mr Forrest confirmed that his relationships with people in general had changed. He said he had few service friends and rarely saw them, his contact with relatives was reduced and he no longer had intimate relations with his wife, this having been the case for the past four or five years. He attributed the latter to his irritability and his excessive weight gain following the initial treatment for his PTSD.
Mr Forrest said he did not see his children frequently, his daughter living in Canberra and his son, who did live nearby, visited infrequently because of a conflict between the son and his mother. In answer to a direct question Mr Forrest said that he did not believe his son or daughter believed he had any psychiatric problems and he believed that they thought he was lazy. Mr Forrest agreed that at times he had some thoughts of suicide, or as he expressed it, I wonder whether it’s worthwhile being here.
Mr Forrest rarely drives a car and this he said was mainly due to his inability to feel the exact position of his feet and determine whether he is exerting pressure on the correct pedals. He told the Tribunal he had recently driven through the back wall of his garage because of this sensory loss. In general his wife drives but if she was unwell as she had been recently with knee problems, he would drive and still has a driver’s licence. He did use public transport but only for medical appointments in the city of Melbourne or in dealings with DVA. Mr Forrest avoided the use of trains and trams, trains because of the crowding and trams because of his difficulties climbing the steps.
Mr and Mrs Forrest modified their home, or to be more correct, built a new home wherein various cupboards, sinks and bathroom fittings are at a higher than usual level thereby limiting Mr Forrest’s need to bend. There are rails in the shower and adjoining the toilets, sliding doors rather than those opening and shutting and higher bed bases, all of which facilitate or compensate for his inability to bend because of the pain this causes.
Mr Forrest uses a walking stick most times and increasingly uses a wheelchair outside the home. He and Mrs Forrest went on a six week cruise and he used a wheelchair to both board and get off the ship and also move around the decks.
Over the past few years, Mr Forrest said his social life in terms of outings had diminished. He had ceased to engage in his hobby of collecting and restoring diecast toy cars. He had a collection of more than 13,000 that he maintained and repaired. He found it increasingly difficult to repair the cars because of numbness and lack of sensation in his hands and also poor concentration. He was said to have sold his car collection 12 to 15 months prior to the date of giving evidence, although at the hearing on 23 October 2017 Mrs Forrest from the back of the hearing room said he still had many. He had ceased playing all sport, having previously played golf and tennis and had lost interest in reading the newspaper, watching television and reading novels.
In domestic terms Mrs Forrest did most of the work in the house, neighbours provided some assistance and Mr Forrest’s activities were restricted to tasks such as drying the dishes, occasionally putting out the rubbish bin and hand watering his garden while sitting in a chair.
Mr Forrest confirmed that he no longer had his tri-weekly walks around Lake Wendouree as both he and his wife had difficulty walking and he now needed to use a stick. He still walked to pick up his newspaper at the local newsagency every Sunday.
Mrs Rae Forrest has acted as her husband’s advocate since 8 July 2014. She had been unaware that he had lodged an application for an increase in his pension, had not seen this application and had not been in a position to review his answers to the lifestyle questionnaire prior to it being submitted. Mrs Forrest provided additional information after Mr Forrest’s application for an increase in pension had been rejected by the Commission’s delegate Maria Galdes, on 27 June 2014 based on the lifestyle questionnaire rating of 5.
Mrs Forrest agreed with the assignment of 6 points under personal relationships which had scored a 6. In addition, Mrs Forrest stated that the combined impairment report did not reflect his accepted disabilities in that she believed carpal tunnel of the right wrist had been accepted as war-caused.
In relation to mobility, Mrs Forrest said that they had purchased a mid-sized SUV to allow her husband to step in and out with less difficulty than that experienced in a sedan. In addition they had built a new house designed to accommodate his physical limitations. Benchtops in the kitchens and bathrooms were made higher than the norm and rails had been installed beside toilets and in shower recesses. A handheld showerhead on a sliding rail was used in Mr Forrest’s shower and there were no steps in the bathroom. Wider doors and doorjambs had been built in relation to all bedrooms and sliding doors were used in preference to doors that opened. The beds were higher than normal bed bases.
Mr Forrest had trouble with buttons, shoes and socks and therefore required assistance in dressing. He also experienced trouble shaving as he dropped the shaver, being unable to hold it for any length of time. Around the house Mr Forrest used one or more walking sticks and also supported himself on the furniture.
Mrs Forrest addressed the questions entitled “Recreation and Community Activities” stating that Mr Forrest no longer attended the theatre or movies as he became agitated and emotional in the dark and his legs and back cramped up after a short time. He was no longer able to participate in activities with his grandchildren and he had sold or given away parts of his diecast car collection of what she then said numbered 8,000 cars, as he no longer had the manual dexterity or concentration to repair and maintain this collection. She reported that his energy levels were poor and he had difficulty walking because of poor balance. He stumbled and fell on most days. Mr Forrest was still able to use his personal computer for a limited period of time, following which his hand were said to seize up.
In terms of “Domestic Activities” Mr Forrest was said to be extremely limited. This caused him agitation and frustration. He had been a keen gardener and could no longer mow or weed the lawn, nor could he prune. He became depressed when his garden was not up to his standard. A watering system had been installed but he was able to sit and water his pot plants of which there were many. Attempts to help around the house were limited as he had a tendency to drop and break things and became very frustrated when taking a long time to complete menial tasks such as washing the dishes.
In her evidence before the Tribunal on 23 March 2017, Mrs Forrest said that her husband’s condition had deteriorated since he lodged his application in 2014, in that he was far more short tempered and nastier than he had been. As a result she had moved into a separate room and on occasion left the home by car and just drove around until she had settled down. She said, he suffered from nightmares on average four times a month and screamed during these, this being a further reason for her to have a separate bedroom.
While Mr Forrest still saw his son, usually on a regular basis, Mrs Forrest said she and her husband do not have any mutual friends, although they agreed that a Mr and Mrs Robinson visited up to twice a week. She and Mrs Robinson went out once a week. Mrs Forrest confirmed that Mr Forrest had to get rid of his diecast metal cars and that he only drove a motor vehicle in an absolute necessity, such as when she had been in hospital. She also confirmed that he had recently driven the car through the back wall of the garage. Despite this he still had a driver’s licence. She attributed his poor driving to his lack of sensation as to the position of his feet.
Mrs Forrest spoke of their cruise in Europe for some five weeks in 2012 and that he had used a wheelchair on the ship and during that trip had suffered one fall only.
Mr Forrest was said to currently leave the house about once a week to accompany Mrs Forrest to do the grocery shopping and for doctor’s appointments which were made on a regular basis. On these occasions they would dine out in a quiet restaurant. While Mr Forrest had been doing pool hydrotherapy on a regular basis, this had lapsed when she was unwell and unable to drive him to the pool.
Mrs Forrest described the household tasks Mr Forrest could complete. He was able to unload the dishwasher and put away the dishes, he washed some dishes and on occasion would take out the rubbish or place a small amount of rubbish in the bins. Help was provided by the young man (Rohan) who lived nearby and had a good relationship with Mr Forrest as did Rohan’s wife and baby.
Mrs Forrest confirmed that her husband had ceased playing golf and tennis at least 10 years ago.
Mrs Forrest said that her husband and their daughter have a pretty good relationship but as she was an Airforce officer living in Canberra they did not see each other on a regular basis. She did speak to them by telephone a couple of times a month. While their son who normally came to dinner with them every Thursday night had not done so recently this was because Mrs Forrest was not well enough to entertain and cook the meal. Mrs Forrest confirmed that there had been no sexual relationship with her husband for a period of two years. She also stated they had ceased their tri-weekly walks around Lake Wendouree three years ago in 2014. This had ceased mainly because Mrs Forrest, for some unexplained reason, did not drive down to the lake. The Forrests were now planning to enter a retirement village. This was in the course of being built and they anticipated that the shift would occur in about four months.
Mrs Forrest was asked whether she believed her husband could go to a supermarket and undertake shopping. While he had never done so, she stated that if given a list and he used a shopping trolley, he might cope except if he had to converse with staff. She stated that he could cope with smaller shops and in particular the Chinese proprietors of the shop to which he walked on Sundays to buy the paper. She described Mr Forrest as being good one-on-one but not in crowds.
In cross-examination Mrs Forrest said that her husband got on very well with his grandchildren, two of whom were teenagers and lived just eight minutes away from their home. He also got on very well with his daughter’s children aged 14 and 11, although they only saw them once a year. Their son Tom was a safety inspector with CASA (Civil Aviation Safety Authority) and is therefore frequently interstate. Mr Forrest also got on very well with Tom’s wife, their daughter-in-law. Mrs Forrest had noted changes in her husband in terms of his nastiness had started about a year before the date of her evidence and had been particularly difficult in the previous six months.
The Tribunal asked direct questions of Mrs Forrest in relation to the 13,000 model cars. She said these had been housed in a double garage furnished with purpose built shelves. She was also questioned about him using two walking sticks for support. This she qualified as he no longer used two. Having obtained a stronger stick he was now perfectly alright using just one.
The delegate’s decision in relation to the lifestyle ratings was based on the completed questionnaire provided by the treating general practitioner, Dr Livingston who had treated Mr Forrest for more than five years and seen him on a very regular basis. This assessment had been completed on 10 June 2014, detailing the symptoms and Dr Livingston’s comments but not assigning points. The actual point assignment was performed by a Dr Naomi Hayman based on Dr Livingston’s report. Dr Hayman provided the rating of 6 for Personal Relationships, 5 for Mobility, 5 for Recreational Community Activities and 5 for Domestic or Employment Activities, giving an average of 5 points.
On 21 October 2014 the VRB affirmed the decision of the delegate on the basis that Mr Forrest’s peripheral neuropathy had a considerable impact on both his health and lifestyle, and his Lifestyle average rating of 5 was correctly apportioned.
Medical records reveal that Mr Forrest was first diagnosed with a peripheral neuropathy in 2005. He had lodged a claim with the DVA at that time and underwent a battery of investigations in relation to that claim. While he considered that his numbness of the lower limbs was associated with his back pain, nerve conduction studies demonstrated the presence of a totally unrelated condition, namely a peripheral neuropathy. This was evidenced clinically by reduced vibration and cold sensation to a mid-calf level in both lower limbs. Ankle jerks/reflexes were absent.
Nerve conduction studies were performed again in 2008 and confirmed an axonal polyneuropathy which had worsened compared to the earlier study. Dr Poon also performed various blood tests to exclude or find other causes of peripheral neuropathy but all were negative. He stated that 30 per cent of cases of axonal polyneuropathy were of an unknown cause. In 2008 Dr Poon predicted that Mr Forrest’s peripheral neuropathy would worsen and that his current burning pain would be replaced by numbness, his gait would become unsteady and he would be more prone to falls but would not require a wheelchair in the near future.
In 2009 Mr Forrest was seen by the consultant physician, Dr Malcolm Hogg in relation to his chronic pain, Dr Hogg being involved in the Chronic Pain Management Clinic in Ballarat Health Services. Dr Hogg recorded a 10 year history of Mr Forrest’s low back and cervical spine pain, hypertension since 1989 and since 1999, but more severely since the mid-2000s, burning pain in the feet, gait disturbance and falls that had become more frequent and severe. Mr Forrest was then overweight and had high blood pressure. Dr Hogg recorded a good range of movement of both the cervical and lumbar spine with no muscle tenderness or dysfunction. Mr Forrest also managed straight leg raising bilaterally at 70 degrees. In relation to the neuropathy the findings were decreased pin prick sensation in the feet to the distal calf, cutaneous hyperalgesia and absent ankle jerks.
Mr Hogg considered the radiological investigations, in particular the lumbar x-rays, as showing minor degenerative changes only. Better control of blood pressure was recommended and also that the Pregabalin, an antiepileptic used for control of chronic pain, dose be reduced. Tramadol was recommended for pain control as was a hydrotherapy program. Mr Forrest had been noted to have had abnormal glucose tolerance tests, not yet frankly diabetic, in 2009.
In 2009 Mr Forrest was investigated for sleep apnoea and excessive snoring. While his wife attested to the snoring having been present for 25 years she had not noticed any episodes of apnoea. Mr Forrest underwent a sleep study which showed moderate to heavy snoring but no major sleep disordered breathing. Periodic limb movements, often referred to as restless legs, were noted. Dr Spring recommended the use of a mandibular advancement splint to control the snoring. In 2014 Dr Spring repeated the tests and diagnosed sleep apnoea for which continuous positive airways pressure (CPAP) was prescribed.
Mr Forrest has attended a chiropractor for treatment of low back and neck pain since October 2008. Dr Mark Brunning, chiropractor in his report of 18 September 2009 stated that Mr Forrest was improving with treatment. He referred to the diagnosis of peripheral neuropathy and that he was treating this. The actual treatment was not described by Dr Brunning.
The duration and date of diagnosis of Mr Forrest’s lumbar spondylosis is not revealed in any of the above reports, except that Dr Kemp has said that the back pain and sciatica has been present for 40 years and that this had been well documented by the late Mr Wilton Carter, orthopaedic surgeon who practiced in Ballarat. In his report of 2 November 2010, Dr Kemp had said that Mr Forrest had suffered from sleep apnoea. This was not confirmed until 2014. Mr Wilton Carter’s records have not been provided and therefore his opinion regarding the lumbar spine and his treatment is unknown. The Tribunal is aware that Mr Carter died in 2013.
A definitive diagnosis of diabetes mellitus was not made until 2012. Since then Mr Forrest has been treated with oral hypo-glycaemic agents and his control has been less than ideal (Exhibit R2).
In March 2011, Mr Forrest underwent magnetic resonance imaging (MRI) of his lumbar spine. He was found to have some minor disc space narrowing at L4/5 and L1/2, a small annular tear of L5/S1 disc and posterior disc protrusions at L1/2, L4/5 and L5/S1. The spinal canal was capacious and although there was developing foraminal stenosis at the L4/5 level the L5 nerve roots exited without impediment. The unexpected finding in this investigation was the presence of what was termed group 3 arachnoiditis. Arachnoiditis is inflammation of the membranes that surround the cauda equina distal to the termination of the spinal cord at the level of the first lumbar vertebra. Such inflammation most commonly follows surgical intervention or intrathecal injections. Subsequent expert opinions have negated this diagnosis. The possibility of arachnoiditis had been raised by Dr Kemp who requested the MRI and provided clinical notes suggesting that diagnosis.
In late 2011 Mr Forrest was referred to Dr Paul Verrills, a consultant in pain medicine. Dr Verrills performed what is called a spinal cord stimulator trial which he reported as being outstandingly positive. He recommended that a permanent spinal cord stimulator be implanted. It is not known who made the referral although response letters were sent to Dr Anthony Kemp, to the general practitioner who had seen Mr Forrest earlier and to his chiropractor. According to Dr Verrills the indication for undertaking the trial was Failed Back Surgery Syndrome. There is no record, apart from Dr Verrills report of Mr Forrest having back surgery and Dr Horsley’s recording of a 7 cm central spinal scar suggestive of spinal surgery when seen she saw him on 29 April 2015. The Tribunal notes a small incision was said to have been made for the modulator implantation.
On 9 November 2011 a permanent spinal cord stimulator was implanted the electrodes being placed at a T9 level (9th thoracic vertebra). This was said to have improved Mr Forrest’s level of pain. Mr Forrest has continued to have this treatment and in 2015 underwent a replacement of the spinal cord stimulator with a more up to date model. While his back pain improved there is no documentary evidence that his peripheral neuritis symptomatology was altered.
Dr Kemp first saw Mr Forrest in 2010 in relation to the peripheral neuropathy and a pre‑diabetic glucose tolerance test. While it is not stated in the letter, the Tribunal assumes this referral was made as the most common cause of peripheral neuropathy is diabetes. Mr Forrest’s diabetes became florid in 2012. Dr Kemp’s reports will be considered separately in conjunction with his oral evidence before the Tribunal.
EVIDENCE BEFORE THE TRIBUNAL
Dr Kemp
Dr Kemp gave evidence by telephone on both occasions. He provided two reports, the first dated 30 November 2015 (Exhibit A2) and the second 31 March 2016 (Exhibit A3). The clinical records of the treating general practitioner Dr Livingston contain numerous reports relating to Mr Forest and authored by Dr Kemp. Dr Kemp is a consultant physician specialising in general medicine and endocrinology and has been in practice as a consultant physician for 17 years.
Dr Kemp stated that he had first seen Mr Forest in 2010 and initially saw him four to five times a year. For the past two to three years Mr Forrest’s attendance has reduced to three times a year. Dr Kemp had prescribed Allegron, a tricyclic anti-depressant, for the control of pain arising from the peripheral neuritis, Jurnista, an opioid, for the pain arising from his spondylosis and added Neurofen, Panamax and Panadeine Forte as adjuncts to the Jurnista. Sifrol has been given for restless leg syndrome.
Dr Kemp did not find any evidence of neuritis when he first saw Mr Forrest in 2010. He first detected signs of this condition in 2011. When first seen by Dr Kemp, Mr Forrest had described symptoms of pain and weakness in his thighs and upper part of his legs rather than in his feet. Dr Kemp attributed Mr Forrest’s frequent falls to proximal muscle weakness linked to the spondylosis. When Mr Forrest did develop signs of peripheral neuritis, these were said to be confined to below the mid-foot level. Dr Kemp did acknowledge that Mr Forrest had lost the proprioception senses in his toes but was of the opinion that proprioception was retained in the ankles and thus the neuritis would be unlikely to contribute to any falls.
Dr Kemp was unable to quantitate the contribution of the peripheral neuritis to Mr Forrest’s current level of incapacity but suspected that it was minor. He considered secondary deconditioning of the proximal muscles of the legs and thighs, tiring readily and the back pain with problems of core balance were the major factors. He considered that the area he believed was relevant and important was from the bellybutton down to the knees. Dr Kemp was questioned in relation to the diagnosis of arachnoiditis. He was of the opinion that this had been totally excluded by Dr Schnier’s later reassessment of the MRI. Dr Kemp having described what he considered the major area of pain and poor muscle function added that this was entirely non-anatomical in that it did not follow any nerve distribution or dermatomes. He therefore could not attribute it to lumbar spondylosis and postulated that it may be due to a chronic pain syndrome.
While Dr Schnier’s opinion had been challenged by Ms Spencer on the basis that he was stepping outside his field of expertise, Dr Kemp in fact agreed with his comments. He added that the pain associated with spondylitis or spondylosis was usually an electric shock which ran from the back down the leg. It is noted that Mr Forrest’s description of the electric shock-like pain was that it often started in his feet and radiated to his back.
Dr Kemp was asked whether Mr Forrest could drive. He was uncertain of any history relating to Mr Forrest’s driving but thought he would not be safe to do so because of pain and the effects of his medication. His medication was such that his ability to respond quickly to any stimulus would be poor and the medication would impact on his concentration. Dr Kemp also listed the side effects of Jurnista as being poor memory, poor concentration, reduced sleep and an increase incidence of falls. To his knowledge Mr Forrest was taking 4 mgs of Jurnista daily (records show this varied between 4 and 16 mg daily).
In cross-examination by Mr Rudge, Dr Kemp was taken to Dr Schnier’s review of the MRI findings. Dr Kemp agreed there was no radiological evidence of nerve root compression and that the changes seen were consistent with Mr Forrest’s age. He said:
...So I cannot explain why the muscle tenderness is there, you know, and the conditions, such as fibromyalgia and so forth, but these two has specific diagnostic criteria, and he doesn’t quite fit into that either. (Transcript page 74 line 43)
Mr Rudge read part of the content of Dr Kemp’s report of 2 November 2010 wherein he said:
He has the problem of five years of slowly progressive numbness and sensation of deadness in his feet. Pain is described as burning in his feet at night, but he also has jabs and jolts which come up from his feet into his skull. The consensus from testing has been at least a mild, and on the more recent study, mild to moderate sensory greater than motor axonal polyneuropathy in the lower limbs. (Transcript pages 75-76, lines 1-4)
Having read this extract Dr Kemp referred to his clinical records and agreed that the symptoms and signs he had recorded were in keeping with a diagnosis of peripheral neuropathy. In addition he had recorded tenderness over the lower thoracic spine rather than the lumbar spine. Despite this finding Dr Kemp was unaware that there had not been any thoracic spine abnormality demonstrated.
In the light of several nerve conduction studies performed between 2005 and 2010, Dr Kemp agreed Mr Forrest had peripheral neuritis and that he had had it for many years. He was taken to the reports of Dr Poon and Dr Hogg which referred to symptoms of peripheral neuropathy dating back to 1999. Dr Kemp agreed that the peripheral neuropathy that accompanies diabetes can appear before the diabetes reaches a diagnostic level.
Dr Kemp maintained his opinion that Mr Forrest’s peripheral neuropathy starting in his toes and progressing upwards had not reached beyond the mid-foot level. This was in contrast to the physical findings of other specialists. Dr Kemp maintained that problems with gait or falls would not occur until the neuropathy reached thigh level and signs and symptoms of peripheral neuropathy in the upper limbs did not develop until numbness had reached above the knees. He described this as being the rules in neurology.
In relation to the falls and Mr Forrest’s inability to perceive where his foot was in relation to the ground Dr Kemp explained as follows:
So the perception of where you are in space has many levels. The cerebral cortex, there is a specific column of the spine known as cerebellar, a column down the spinal cord, and the peripheral nerves, and then the end nerves in the joints themselves, so any or some of those may have contributed, along with altered perception with respect to medications prescribed. (Transcript, page 80, lines 22‑26)
Dr Kemp was invited to comment on Professor Chambers’ opinion and conclusion that:
I am still of the opinion that the major problem for Mr Forrest is neuropathic pain secondary to peripheral neuropathy, with pain amplification due to central sensitisation.
Dr Kemp agreed that there was central pain sensitisation and in his opinion this had preceded the development of the peripheral neuropathy as he had not been able to detect any objective evidence of this condition in 2010 despite the fact that five years earlier nerve conduction studies, which he acknowledged in his initial report of 2 November 2010, revealed mild to moderate motor axonal polyneuropathy. Dr Kemp also hypothesised that the earlier signs he did elicit in 2010, were not due to a pre-diabetic neuropathy but due to chronic pain sensitisation. He described central chronic pain sensitisation as a syndrome. The Tribunal is aware that a syndrome by definition is a collection of signs and symptoms of unknown cause.
In re-examination by Ms Spencer, Dr Kemp opined that the degree of spondylosis from which Mr Forrest suffered would be expected to increase over the years. Mr Forrest has not been able to have another MRI since the original in 2011 because of his implanted spinal stimulator.
Dr Kemp was asked how Mr Forrest’s peripheral neuritis should be managed. Dr Kemp said Mr Forrest’s alcohol intake should be reduced (he is a teetotaller), his diabetes should be well controlled and any vitamin deficiencies should be treated. He also postulated that peripheral neuritis could be genetic in origin but he didn’t know the cause in Mr Forrest. Despite the opinions of Dr Poon, Dr Hogg and Professor Chambers, all of whom diagnosed peripheral neuropathy associated with diabetes, Dr Kemp did not change his opinion. He maintained that in 2010, Mr Forrest’s proprioception in his feet and his vibration sensation were normal and his Romberg test was negative.
Dr Kemp was taken to his report of 30 November 2015 where he said:
...distal lower limb symptomatology could reasonably be attributed to his peripheral neuropathy with a psychological overlay borne of anxiety in relation to pain...
He agreed that this was his opinion at that time but this did not exclude either a chronic pain syndrome or a central pain sensitisation syndrome. He was also taken to his letter to Mr Forrest’s general practitioner Dr Livingston of 28 January 2015 (Exhibit R2) where he reported that Mr Forrest had been concerned by Dr Livingston’s report to DVA regarding the peripheral neuropathy which may preclude him from benefits otherwise due if attributed to his back.
Dr Kemp was asked to explain this entry in his correspondence to Dr Livingston. In response Dr Kemp said that he presumed that the back was the DVA accepted morbidity and in Mr Forrest’s mind all his problems and his pain, which he owned, was due to his back and that there was money coming to him because of it. The neuropathy comments made by Dr Livingston were interpreted by Mr Forrest to have derailed the processing of his application. Dr Kemp said Dr Livingston was perfectly entitled to his own opinions.
In more recent years Dr Kemp had confined his treatment of Mr Forrest to the management of his diabetes, particularly given the time pressure in his practice where he could not provide more than 20 minutes for an interview.
Dr Kemp was asked to provide an estimate as a percentage that he would ascribe to the lumbar spondylosis versus the peripheral neuropathy on Mr Forrest’s lifestyle rating. In response he said the spinal cord stimulator was aimed at getting rid of pain and would not affect a peripheral neuropathy. While he believed that Mr Forrest’s peripheral neuropathy was now causing more incapacity than it had seven years previously, he put the percentage at 97 for the spondylosis and 3 per cent for the peripheral neuropathy.
In response Mr Rudge brought to Dr Kemp’s attention, the fact that when he saw Mr Forrest on 7 September 2015, he had a positive Romberg test. This was in contrast to Dr Kemp’s report of a negative Romberg test in 2016. Without proffering an explanation Dr Kemp said this would suggest that the positive Romberg may have been at a higher level than the peripheral nerve. The Tribunal will comment on this further based on the known anatomy and physiology involved.
Dr Kemp gave further evidence by telephone at the reconstituted hearing of 23 October 2017. He confirmed that Mr Forrest’s glucose tolerance test was abnormal when he first saw him on 17 February 2010. In addition he had albuminuria which was possibly multifactorial and due to the hypertension but also to renal impairment secondary to the diabetes. While he did not find any evidence of Mr Forrest’s peripheral neuropathy in 2010 he did detect some early signs in 2011. He also confirmed that the pre-diabetic state can be associated with the development of frank peripheral neuritis.
Dr Kemp considered Mr Forrest’s reports of lancinating pain to equate to sciatica, despite it starting in his feet and radiating to his spine. It was confirmed that at no time had he found a dermatomal loss as indicated by skin sensation loss corresponding to spinal nerve root innervation. He concluded that the only explanation covering all of Mr Forrest’s signs and symptoms was the development of central pain sensitisation.
Professor Chambers
Professor Chambers has provided four reports, the first of which was dated 7 September 2015. These reports are Exhibits R4, R5, R6 and R7. Professor Chambers’ diagnosis of 7 September 2015 was peripheral neuropathy. He excluded a diagnosis of arachnoiditis having himself viewed the 2011 MRI of Mr Forrest’s spine. He considered all the findings in the lumbar spine to be consistent with Mr Forrest’s age. He informed the Tribunal that the burning pain in the lower limbs as experienced by Mr Forrest is the classical symptoms of peripheral neuritis and there is no other known cause of this symptom in the limbs.
Professor Chambers explained peripheral neuritis was evidenced by the decrease in amplitude of conduction in large nerve fibres and small fibre disease, which was not displayed on nerve conduction studies, was thought to be responsible for the burning pain. In summary his diagnosis was peripheral neuritis with central pain sensitisation the latter being increased in terms of the risk of its development by Mr Forrest’s co-existing PTSD. He endeavoured to explain the central pain sensitisation as theoretically akin to a ticking clock, the ticking sound being amplified the longer one concentrated on the sound.
Professor Chambers relied on the multiple nerve conduction studies that have been performed, all of which were compatible with peripheral neuritis with the exception of the finding of right carpel tunnel syndrome. The carpal tunnel syndrome had been treated surgically in 2014 and is not an accepted war-caused condition. Professor Chambers explained that the burning sensation, the cold and numb feet and the loss of proprioception leading to an unpleasant sensation on walking on textured surfaces were all classic symptoms of peripheral neuritis as were the clinical signs of proprioceptive loss, diminished pin-prick and temperature sensation and loss of ankle reflexes.
Despite Mr Forrest’s complaint of thigh and hip muscle weakness and his inability to raise his legs, Professor Chambers considered this to be psychogenic, as there was no muscle weakness detected. Mr Forrest had normal plantar reflex responses and therefore there was no evidence of an upper motor neurone disorder. Contrary to Dr Kemp’s findings Professor Chambers found a reduction in all sensation in the lower limbs without a clearly definable upper limit. He said that in 50 per cent of people with peripheral neuritis there was no level of delineation despite the glove and stocking numbness being a diagnostic sign. In relation to his finding of a positive Romberg’s test he explained this could be due to distal proprioception loss or a vestibular, that is, an internal ear, abnormality. There is no evidence of the latter in Mr Forrest’s history.
In cross-examination by Ms Spencer, Professor Chambers was asked if it was possible to have a positive Romberg test on one day and negative the next. Professor Chambers said that this was possible but only in the presence of abnormal illness behaviour. In relation to Dr Kemp’s claim that peripheral neuritis did not develop in the hands until the lower limbs reached a certain level, Professor Chambers said this was totally incorrect. In regard to Mr Forrest’s gait, Professor Chambers said this was not classically neurological in terms of peripheral neuritis or nerve root problems but looked more like that of canal stenosis, of which there has been no evidence on MRI.
Professor Chambers advised there were no balance problems association with spinal osteoarthrosis or spondylosis unless there was a cauda equina lesion or canal stenosis, neither of which have been demonstrated. Professor Chambers had not seen the reports of Doctors Poon and Hogg but had seen the nerve conduction studies.
The Tribunal asked how often a spinal cord stimulator was inserted in the treatment of a patient such as Mr Forrest. He stated this was very, very rare and was usually only done for chronic pain syndromes where all other treatment had failed. The Tribunal also asked how effective cord stimulation was in the presence of a cerebral sensitisation syndrome. Professor Chambers said that the only way it could be effective was in altering the afferent load by which is meant the input to the cerebral cortex from peripheral stimuli which are carried via the axonal nerve fibres to the spinal cord and then to the brain.
DOCUMENTARY EVIDENCE
Dr Anthony Kemp’s reports
The relevant reports from Dr Kemp have been referred to in BACKGROUND TO THE APPLICATION. He had provided several reports to the DVA and the ongoing reports to the treating practitioner Dr Livingston between 2012 and 2017.
Dr Ronald Schnier
Dr Schnier is a highly qualified and experienced Director of MRI in a large diagnostic radiology service. He reviewed Mr Forrest’s MRI study of 10 March 2011, this having been reported by a Dr Firkin as showing arachnoiditis. This investigation had been ordered by Dr Kemp who provided the history of recalcitrant lumbar pain and minimal neurology and queried whether there was arachnoiditis or dural sleeve inflammation. While this investigation was said to have confirmed a diagnosis of arachnoiditis it also reported that the individual nerve roots appeared to exit without impediment (Exhibit R2, page 90).
Dr Wayne Spring, sleep disorder physician
Dr Spring had first seen Mr Forrest for poor sleep and excessive snoring in 2009 and originally felt this was purely snoring with very little evidence of sleep apnoea. Dr Spring prescribed a mandibular advancement splint to diminish the snoring. This proved to be totally ineffective. Mr Forrest underwent repeat testing in 2014 and on this occasion his test results had worsened. Dr Spring then prescribed continuous positive airways pressure assistance (CPAP) which commenced in November 2014. This led to improvement in the snoring, however Mr Forrest was having difficulty keeping the mask on his face and felt he was not getting enough air into his lungs. As investigations had shown excellent control using the CPAP Mr Forrest was encouraged to persist with the treatment.
General Practitioner’s Records
These have been referred to under BACKGROUND TO THE APPLICATION where relevant.
Report of Dr Robyn Horsley, Occupational Health Physician
Dr Horsley provided a report dated 30 April 2015, she having seen Mr Forrest the day before. Dr Horsley’s report is the most complete of any before the Tribunal, she having obtained a very detailed clinical history, performed a full physical examination and reviewed a great many reports of other practitioners and experts and addressed all of the diagnoses and provisional diagnoses. She also gave an explanation of various concepts such as peripheral neuritis in layman’s language. She identified all of Mr Forrest’s then current medication and the indication for such prescribing. The Tribunal has referred to the prescriptions earlier in this decision under background to the application and suggested that these interact with one another, this being based on Dr Horsley’s identification of the indications for the prescribing of these drugs.
Dr Horsley detailed Mr Forrest’s service, both in the Australian Army for 17 years and in the Reserve Service of the Airforce for 20 years. She noted that he and his wife had been living in Ballarat for about 10 years when she saw him. This would suggest that they shifted from Queensland in 2005, four years prior to his retirement. Dr Horsley recorded that when he was working at Amberley in Queensland, as he had been for the previous four years, he would work two weeks on and one week off and in his one week off he would return to Melbourne.
Dr Horsley reported that Mr Forrest had been diagnosed with spondylosis in 1970 having served in New Guinea with the Army from 1967 to 1969 in an administrative and instructing role. She recorded that Mr Forrest gave a history on returning from leave in 1970 that he experienced a seizing up of his back, following which he was admitted to the Repatriation Hospital in Adelaide and underwent spinal traction for a period of three weeks. The history given was that while in New Guinea he worked in the Highlands and there were often heavy aeroplane landings. He identified the latter as causing his back pain. Thereafter he had occasional physiotherapy but by November 2008 his back pain was more severe. He then started attending a chiropractor and continues to do so up to twice a week when necessary.
While in the Reserves Mr Forrest had not been required to undertake medical fitness examinations. The regulations were altered and in 2009 he was informed that he would not pass the medical requirements given his noted irritability and trouble with his feet. At that time neither his irritability nor his symptomatology in his feet had been fully diagnosed. In August 2009, Mr Forrest had seen the consultant physician Dr Hogg who made a diagnosis of peripheral neuropathy based on Mr Forrest’s then 10 year history of bilateral foot pain, burning in nature, exacerbated by walking, particularly on carpet surfaces and gait disturbance with loss of depth of perception in the feet resulting in falls.
Dr Hogg was aware of the nerve conduction studies of 2005 which had shown peripheral neuropathy. Mr Forrest’s psychological symptoms were also noted, these being considered by Dr Hogg to be due to PTSD or perhaps depression. Mr Forrest was found to be hypertensive and overweight. He had a good range of cervical and lumbar spine movement without any spinal or paraspinal muscle tenderness or dysfunction and straight leg raising of 70 degrees bilaterally. There was diminished pin prick sensation in the feet up to the distal calf with cutaneous hyperalgesia and ankle jerks were absent bilaterally.
Dr Hogg only had a plain x-ray of the lumbar spine which to his eye showed minor degenerative changes only. It was recommended that an antidepressant be prescribed with the current one increased in dosage, that the Pregabalin currently being given at 75 mgs at night be ceased. Tramadol was recommended if pain control was required. A referral to a pain management program was made.
In the history provided to Dr Horsley by Mr Forrest, he said he had stabbing pain in his eye, fingers, toes, front of the thigh with the latter radiating down to his feet bilaterally. His upper leg pain had settled since the spinal cord stimulator had been inserted. In addition to the pain in his feet he had a cold sensation and numbness. His sitting tolerance, standing tolerance and walking tolerance were all reduced although up until some months previously he had been walking one to two kilometres once a fortnight as part of a cardiac health program he had commenced in 2014.
Dr Horsley addressed all the accepted conditions but was incorrectly under the impression that right carpal tunnel syndrome was an accepted condition. She noted that Mr Forrest had attended a psychiatrist Dr Varma, who made the diagnosis of PTSD in 2009. Mr Forrest continued to see Dr Varma for three years but had not seen him since 2012. He did however see a psychologist, Dr Hyatt, on a fortnightly basis. Dr Horsley was not provided with any correspondence from the psychiatrist or psychologist.
Dr Horsley found Mr Forrest to be severely symptomatic from his PTSD. She performed a Beck Depression Inventory and a Beck Anxiety Inventory which revealed a very high depression score with an element of suicidal ideation. The Beck Anxiety Inventory gave a score of 35 which is suggestive of severe anxiety. Dr Horsley forwarded these results to Mr Forrest’s general practitioner as she considered he required further management of his PTSD and depression which was seriously impacting on his overall level of functioning.
Dr Horsley noted the correspondence from Dr Kemp over a period of five years and the results of the nerve conduction studies. She noted Dr Kemp’s opinion that there was some scepticism about the diagnosis.
On physical examination Dr Horsley reported that Mr Forrest had a flat affect, that he was overweight with a BMI of 36 and that he had a seven centimetre scar over his lumbar spine which to her eye looked like back surgery. He denied he had any surgery to his back. There was no paraspinal muscle spasm, forward flexion was 70 degrees and extension was 20 degrees. Lateral flexion and rotation were about 50 per cent of the normal range. The implanted stimulator battery in the left buttock was noted and on measurement of thigh and calf circumferences of both lower limbs the right was slightly greater than the left. Straight leg raising was 70 degrees and slump test which is less prone to patient minimisation was normal at 90 degrees bilaterally.
Dr Horsley reported reduced light touch sensation down the lateral aspect of both thighs, the medial aspect of the left calf and the dorsum and soles of both feet. Pin prick was reduced over the dorsum and soles of both feet. There was some blunting of pin prick in the lateral thighs. Vibration sensation was diminished over the right knee and there was no vibration sensation over the left or right great toes. Proprioception was reportedly significantly impaired in both great toes and Dr Horsley could not illicit reflexes at the knees or ankles. The Romberg test was negative.
Dr Horsley made a diagnosis of mechanical back pain, peripheral neuropathy/small fibre neuropathy, restless legs syndrome and sleep apnoea. She also considered that he suffered from a chronic pain syndrome and understood his diabetes to be well managed. She was led to believe the sleep apnoea was well controlled with a CPAP machine. Dr Horsley acknowledged the diagnosis of PTSD which she considered to be inadequately treated. In assessing Mr Forrest’s daily functioning all conditions were taken into account except for his tinea and bilateral sensorineural hearing loss which did not impact on his general level of function.
Dr Horsley devoted considerable time and detail to a discussion of peripheral neuropathy. She explained the common causes as diabetes, vitamin deficiency, chemotherapy, traumatic injury, radiation therapy, excessive alcohol intake and that it could involve one nerve or multiple nerves. She noted a small fibre neuropathy resulted in burning pain, shooting pain and hyperaesthesia. She stated that the diagnosis was primarily determined by history and examination assisted by functional neurological testing. In peripheral small fibre neuropathy there was near normal physical neurological examination and normal sensory findings on examination which could lead to diagnostic confusion. She also addressed the condition of arachnoiditis but given that it had been subsequently excluded her comments are not included.
Dr Horsley concluded that the primary non-service related disability is Mr Forrest’s peripheral neuropathy/small fibre neuropathy. She considered it difficult to separate out the spondolytic element which was being treated with his spinal cord stimulator, his idiopathic and equivocal arachnoiditis and his peripheral neuropathy/small fibre neuropathy. She found that Mr Forrest had no capacity for work and advised that Mr Forrest be assessed by a neurologist.
Mr Forrest was seen by Professor Chambers some six months later.
The Reports of Dr Poon, neurologist
Dr Poon had seen Mr Forrest in 2008 and assessed previous data from 2005. His reports have been referred to under BACKGROUND TO THE APPLICATION. The nerve conduction studies performed by Dr Poon and earlier were all consistent with a diagnosis of peripheral neuropathy.
RELEVANT LEGISLATION
The legislation attracted by this application is in s 22 of the Veterans’ Entitlement Act 1986 (the Act) and states:
22 General rate of pension and extreme disablement adjustment
(1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.
(2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.
(3)For the purposes of this section, the maximum rate per fortnight is $338.94 per fortnight.
(4)Where:
(a)either:
(i) the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or
(ii) a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);
(b)the veteran has attained the age of 65;
(c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the Approved Guide to the Assessment of Rates of Veterans’ Pensions; and
(d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;
the rate at which pension is payable to the veteran is $510.40 per fortnight.
(5)For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:
(a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;
(b)amounts are being deducted from the pension under section 30P, 79 or 205; or
(c)the pension has been suspended under subsection 31(6).
SUBMISSIONS
In the course of submissions Ms Spencer drew the Tribunal’s attention to what she perceived to be an error in the Transcript of 23 March 2017. Dr Kemp had been quoted as saying he believed a certain outcome was likely, whereas she thought he had said unlikely. Following the hearing the Tribunal listened to the audio tape of the transcript as did the associate and we were both convinced that Dr Kemp used the work unlikely.
In her submissions Ms Spencer dealt with the medical evidence and the evidence contained in the redacted transcript. She relied on the opinion of Dr Kemp that the spondylosis was the major cause of Mr Forrest’s back pain and lower limb dysfunction, while accepting that Mr Forrest did have peripheral neuropathy affecting predominately his lower limbs but also his upper limbs. She submitted that the disability impacting on lifestyle did not have to be solely due to the accepted conditions, only a contributor. Emphasis was also placed on Dr Horsley’s report wherein she had concluded that the neuropathic elements treated by the spinal cord stimulator were difficult to separate from the idiopathic and equivocal arachnoiditis and the peripheral neuropathy/small fibre neuropathy.
Ms Spencer reiterated the lifestyle ratings that had been included in the applicant’s Statement of Facts and Contentions, resulting in an average of 6 which would meet the requirements for the extreme disablement allowance.
Mr Rudge for the Commission
Mr Rudge relied primarily on the opinion of Professor Chambers who found the major problem impacting on Mr Forrest’s incapacity in terms of his walking ability, his driving capacity and the frequency of his falls derived from his peripheral neuropathy. It was pointed out that the diagnosis of this condition had been confirmed by Dr Poon, a neurologist based on 2005 testing and by his own testing in 2008, by Dr Hogg in 2009 and the diagnosis had not been refuted by Dr Kemp. Similarly, Dr Horsley had confirmed the presence of a major contribution to Mr Forrest’s incapacity and lifestyle estimations by his non-accepted peripheral neuritis.
Mr Rudge addressed all of the lifestyle parameters and submitted that the appropriate lifestyle assessment in relation to personal relationships was 4 and resulted predominately to Mr Forrest’s PTSD. This estimation was supported by his relationship with his daughter and son, the son normally visiting once a week, the weekly visits from a couple who were friends of both Mr and Mrs Forrest, Mr Forrest’s weekly contacts with the shopkeeper/newsagent and his frequent contact with the neighbour Rohan and his wife and child.
In terms of mobility the evidence suggested major difficulty with his balance resulting from the peripheral neuropathy as had been opined by several neurologists.
In terms of recreational activities, it was again submitted that the major impact resulted from the peripheral neuropathy as Mr Forrest could no longer play golf or tennis because of his balance problems and his hobby of restoring toy cars had been abandoned because of the neuropathic changes in both hands.
Mr Rudge contended that the domestic impact was considerable from the point of view of Mr Forrest’s accepted back pain arising from spondylosis shown not to have caused a radiculopathy. In fact the spondylosis had been described radiologically as mild and by Professor Chambers as consistent with Mr Forrest’s age. A point assignment of 5 was considered appropriate. This resulted in an average lifestyle rating of 4.
In response Ms Spencer submitted that it was the back pain arising from the spondylosis which had most probably given rise to the central pain sensitisation. She rejected Professor Chambers’ opinion that this was merely a hypothesis not a proven relationship. She submitted that the mobility rating should be 6 as both the spondylosis, the back pain and the PTSD contributed to his inability to drive. Similarly, in terms of recreation both the back pain and PTSD alone impacted on his incapacity to engage in previous sports and activities. Ms Spencer agreed that the domestic figure was 5 or possibly 6.
TRIBUNAL’S DELIBERATIONS AND DECISION
It is not contested that Mr Forrest is totally incapacitated for any form of work. He has multiple documented medical conditions, the majority of which are not accepted as being war-caused. He receives a disability pension at 100 per cent of the general rate. As he ceased work at the age of 61 and did not lodge his application for the extreme disablement allowance or any other appropriate increase in pension until he was 66 he does not qualify for the special or intermediate rate.
It is also agreed that the only issue before the Tribunal is the appropriate lifestyle rating. Mr Forrest contends that he meets an average lifestyle rating of 6 and therefore satisfies the requirement of s 22 of the Act. The Commission in their submissions estimated the average lifestyle rating at 4, Dr Hayman for the Commission at 5 and the VRB also at 5.
The determination is reliant primarily on the medical evidence before the Tribunal. In assessing the medical evidence the Tribunal is required to reach its determination in accordance with the Guide to the Assessment of Rates of Veterans’ Pension (No 2) 2016 (the Guide) this being the Guide in force at the time the decision is made (Re Anderson and Repatriation Commission (1998)). In the introduction the Guide states that:
Its provisions are binding on the Repatriation Commission, the Veterans’ Review Board and the Administrative Appeals Tribunal. (Page 1 of Introduction)
The instructions to the Guide state:
In making an assessment the clinical features of war-caused or defence‑caused injuries or diseases are to be taken into account.
Throughout the Guide and in relation to the lifestyle effects assessment the Guide repeatedly refers to these assessments in terms of the accepted conditions only. The accepted conditions that significantly impact on Mr Forrest’s lifestyle are his diagnosed PTSD and, as he claims, his lumbar spondylosis. His non-service related disabilities that have the greatest impact are the anxiety disorder (separate from the PTSD), diabetes and the peripheral neuropathy.
Mr Forrest attributes his chronic pain, lack of mobility and sleep problems to his lumbar spondylosis. He first complained of back pain in 1970 while serving in the Australian Army. He was treated in a South Australian hospital with spinal traction for a period of three weeks. The history given is one of continuing back pain for four decades. The term spondylosis is an alternative term for osteoarthrosis of the spine. In the case of the lumbar spine it is a degenerative condition affecting the joints of the spine, the cartilages and the discs that undergo desiccation and loss of height.
Mr Forrest has had many plain x-rays of his lumbar spine and in 2011 a MRI revealed evidence of osteoarthrosis said by several experts to be consistent with his age. At that time a radiological diagnosis of arachnoiditis was also made. The requesting doctor, Dr Kemp had raised the possibility of this condition. This diagnosis has been negated by Dr Schnier the neuro-radiologist and Professor Chambers, neurologist. Despite there being no evidence of any nerve root compression, either by a disc or foraminal stenosis Dr Kemp has described Mr Forrest as suffering from sciatic pain. It is noted that Mr Forrest has, on occasion, described the pain as starting in his feet and passing, like an electric shock, to his back and sometimes to his skull. That description is not consistent with the descriptions or characteristics of sciatica in the medical literature.
In late 2011 Mr Forrest underwent the implantation of a spinal cord stimulator/modulator in the hope of controlling his pain. The pain physician who inserted the modulator, Dr Paul Verrills, in his operative report stated that the indication for the implantation was failed back surgery syndrome. The electrodes for the modulator were inserted at the T8/T9 thoracic spinal level. There is no record of Mr Forrest ever undergoing spinal back surgery, although Dr Horsley reported the presence of 7cm vertical incision scar over the lumbar spine. Mr Forrest has derived some benefit from the modulator and believes it has been beneficial in reducing his pain.
In 2005 Mr Forrest was diagnosed as having bilateral lower limb peripheral neuritis. The diagnosis was later affirmed by Dr Poon, a neurologist. Mr Forrest gave a history of approximately five years of burning pain in his feet, associated with loss of sensation or as he termed it deadness in his feet. He also described occasional lancinating pain from the feet toward the upper thigh. At the time Dr Poon examined Mr Forrest, he found a diminution in vibration and cold appreciation in both lower limbs to a mid-shin level. Ankle jerks were absent. Dr Poon had obtained the nerve conduction studies done in 2005 and repeated these when he saw him in 2008, leading to a diagnosis of axonal polyneuropathy that had worsened in the intervening three years. No obvious cause for the polyneuropathy was identified in 2008.
In 2009 Mr Forrest was assessed by a pain physician Dr Hogg, who found a normal range of cervical and lumbar spine movement with no spinal or paraspinal muscle tenderness or dysfunction and normal straight leg raising. Dr Hogg confirmed diminished pin prick in the feet to the level of the distal calf and cutaneous hyperalgesia. He also found the ankle jerks to be absent bilaterally. A pain management course was recommended by Dr Hogg.
Mr Forrest was found to have an abnormal glucose tolerance test, not frankly diabetic, in late 2009.
In 2010 Mr Forrest was referred to Dr Anthony Kemp who recorded progressive numbness and a sensation of deadness and burning in Mr Forrest’s feet at night, this having been present for at least five years. In addition Dr Kemp noted chronic pain affecting the lower limbs. This he attributed to lumbar spondylosis. Dr Kemp was provided with four nerve conduction studies performed in the preceding five years all of which had been interpreted by certified neurologists as showing mild to moderate sensory greater than motor axonal neuropathy in the lower limbs.
In the initial visits Dr Kemp did not find any evidence of sensory loss, abnormal proprioception or loss of reflexes. Dr Kemp postulated that Mr Forrest had small fibre peripheral neuropathy as yet undiagnosed.
By 2012 Mr Forrest’s glucose tolerance test was frankly diabetic and Dr Kemp undertook the treatment of his diabetes. The monitoring with blood HbA1C levels reveal that control has not been ideal over the years. Dr Kemp also reported the presence of sleep apnoea in 2010 that impacted on his poor sleep associated with the then undiagnosed accepted condition of PTSD.
Dr Kemp’s written reports were regrettably inconsistent and at times contradictory. In his first report of 2 November 2010, having then seen Mr Forrest on four occasions between 6 July 2010 and 2 November 2010, he acknowledged the findings and reports of Dr Poon in 2009 and the four nerve conduction studies all of which had revealed what Dr Kemp considered to be mild to moderate sensory greater than motor axonal polyneuropathy of the lower limbs. Dr Kemp had reported finding intact ankle, knee and plantar reflexes and full muscle strength in Mr Forrest’s lower limbs but tenderness above and below the knee in the major muscle groups. In terms of sensory findings there was hyperalgesia in the toes, in other words they were extremely sensitive to touch, but there was intact vibration sensation, proprioception and a negative Romberg test. Dr Kemp then concluded that Mr Forrest had adequate documentation of a neuropathic process. He was hopeful that these symptoms would respond to measures identical to those undertaken with diabetic patients with small fibre peripheral neuropathies.
On 8 March 2011 Dr Kemp recorded the absence of Mr Forrest’s ankle jerks, numbness of his toes with the Romberg’s test remaining negative. In the report of 12 August 2013 to Dr Livingston, Dr Kemp said:
He certainly has a peripheral neuropathy on sensorineural multimodal testing and the quality of the pain suggests a small fibre peripheral neuropathy component.
In 23 July 2014 Dr Kemp confirmed the loss of ankle jerks, noted that the right knee jerk was diminished and there was loss of sensation in both feet to pin prick and light touch to the mid-foot level.
On 28 January 2015 in a letter to Dr Livingston, Dr Kemp considered Mr Forrest’s peripheral neuropathy to be clinically stable with no progression in the last year or two. In this letter it was suggested that the major problem related to Mr Forrest’s back. The letter reported that Mr Forrest was concerned about the opinions and reports that Dr Livingston had made to the DVA. Whether this influenced Dr Livingston’s further reports is unknown.
In his report to William’s Winter Solicitors on 31 March 2016 (Exhibit A3) Dr Kemp stated that Mr Forrest’s pain and the hypersensitivity in his feet had abated with the passage of time. He also opined that the peripheral neuropathy did not explain the proximal lower limb symptoms and thus he had no better explanation for these symptoms than lumbar spine disease, assuming there was an organic cause in the first place.
Dr Kemp’s oral evidence was essentially to the same affect, although he did eventually agree that Mr Forrest had a documented peripheral neuropathy, the nerve conduction tests being objective evidence of this, as was Mr Forrest’s description of numbness and burning sensation in his feet. Dr Kemp agreed with Professor Chambers’ suggestion or hypothesis that Mr Forrest’s pain was secondary to peripheral neuropathy with pain amplification due to central sensitisation. In his evidence Dr Kemp rejected any suggestion that Mr Forrest’s falls were due to his peripheral neuropathy. Based on the history given, Dr Kemp understood that Mr Forrest frequently suffered from his muscles just freezing, losing control and falling. When asked where the pain was actually felt he said he did not know and he had never seen Mr Forrest fall.
Dr Kemp’s evidence and explanation as to the neurology and essential anatomy underlying changes in proprioception (Transcript page 89, paras 24-26) and in particular what he called the cerebellar column down the spinal cord do not correspond with any text book of anatomy description of the spinocerebellar tracts and their function (Gray’s Textbook of Anatomy).
Associate Professor Chambers’ reports record definite signs in the lower limbs only consistent with a diagnosis of peripheral neuritis. These being the burning nature of the pain in Mr Forrest’s feet, coldness and lack of sensation and his difficulty feeling where his feet are on the pedals of a car when driving. Physical examination confirmed the absence of muscle wasting, normal tone and the absence of ankle jerks. Sensory testing revealed diminution in touch, pin prick, temperature recognition, vibration and joint positional sense. A clearly definable sensory level of change was not present. Romberg’s test was positive.
Professor Chambers considered the peripheral neuropathy to be of diabetic origin although there was exaggerated illness behaviour and a substantial psychogenic component to the symptoms. Professor Chambers maintained his opinion throughout his further written reports. He had viewed and interpreted the MRI studies and excluded the presence of arachnoiditis.
In his evidence before the Tribunal Professor Chambers maintained his diagnosis of peripheral neuropathy with an associated central pain sensitisation and in his opinion the symptoms Mr Forrest described was a classic description of peripheral neuropathy. In relation to the upper limbs, he believed the loss of sensation in the hands was probably due to a peripheral neuropathy. Treatment of the pre-existing carpal tunnel syndromes had been determined by the operating surgeon to have been effective. There was no evidence of any muscle weakness in the hands or wrists as would be expected in persistent carpal tunnel syndrome, although there was wasting of the thenar muscles.
The Tribunal notes that Dr Horsley, who performed the most detailed examination and took the most complete clinical history had concluded that Mr Forrest’s daily functioning is primarily impacted upon by neuropathic pain, the exact nature of which was in dispute. It was for this reason that she recommended that Mr Forrest be assessed by a neurologist, hence the referral to Professor Chambers. Dr Horsley expressed her concern as to the poor control of Mr Forrest’s PTSD and depression and recommended that he be seen by a psychiatrist and his treatment adjusted. She made the diagnosis of peripheral neuropathy due to small fibre degeneration.
In summary the medical evidence before the Tribunal is that the diagnosis is one of peripheral neuropathy or peripheral neuritis first made in 2005. Mr Forrest had originally claimed this was due to exposure to toxins in Vietnam. In his consideration of the causes of peripheral neuritis Professor Chambers had advised that when caused by toxins the neuropathy appeared immediately after exposure and thus any question of exposure to toxins in Vietnam appears to have been ruled out.
Dr Poon confirmed the diagnosis in 2008 and repeated the original conduction studies, all of which confirmed the presence of an axonal defect attributable to peripheral neuritis. In 2009 and 2010 Dr Hogg, a pain management physician, also made a diagnosis of peripheral neuritis. On this occasion Dr Hogg attributed this to a pre-diabetic state, Mr Forrest having been shown to have an abnormal glucose tolerance test, albeit not frankly diabetic. Initially Dr Kemp did not find any evidence of a peripheral neuritis but within 12 months he detected objective signs of such a condition. By this time Mr Forrest had had four nerve conduction studies all of which resulted in a diagnosis of axonal degeneration causing a neuropathy in the lower limbs.
Mr Forrest’s current symptomatology has been referred to by Professor Chambers and to a lesser extent Dr Horsley as being absolutely characteristic of peripheral neuritis in terms of the symptoms of burning pain, loss of sensation and in particular proprioception and the absence of reflexes. The evidence in relation to Mr Forrest’s accepted condition of lumbar spondylosis is that changes on MRI are mild. The Tribunal accepts that they may have worsened or deteriorated since the MRI of 2011. There is no reason why Mr Forrest could not have a CT scan of his spine. Although this is regarded as inferior to an MRI it would provide further information. The vast majority of opinions given since the diagnosis of PTSD in 2010 is that this condition would contribute to Mr Forrest’s pain concepts in that, his recently mooted diagnosis of central pain sensitisation is more likely in someone with a psychological disorder.
The condition of central pain sensitisation is not an accepted disability and to the Tribunal’s knowledge the concept of central pain sensitisation is a new concept, considered at this stage to be hypothetical. It is based on studies performed in mice submitted to spinal cord transection and therefore have no sensory afferent input from the lower limbs. The mice show cerebral cortical changes on functional MRI scanning of their brains. It has been postulated that there is a change in the threshold of pain awareness at both the central cerebral and peripheral spinal levels (Re Kruljac and Australian Postal Corporation [2018] AATA 171, evidence of Dr Clayton Thomas).
The Tribunal notes in particular Dr Horsley’s comments regarding Mr Forrest’s PTSD status and the requirement for further treatment. The Tribunal, while not considering these comments to be in any way relevant to the decision, is aware that the medication Catapres (Clonidine) is contraindicated where the patient is taking antidepressants as there is an up to 10% incidence of adverse responses when these drugs are used in combination (product information available on the TGA website.)
The Tribunal finds that Mr Forrest’s well documented peripheral neuropathy is most probably due to his non-accepted condition of diabetes, and is the major cause of his mobility difficulties impacting on his recreational and domestic activities. The Tribunal accepts the VRB lifestyle rating of an average of 5, although this is probably generous and a more exact figure may be an average rating of 4. The personal relationship rating of 6 is accepted but with some concerns as the evidence of Mrs Forrest as recorded in the Transcript of 23 March 2017 was that Mr Forrest saw his son and grandchildren on a weekly basis, saw a couple who were friends of he and his wife twice a week and conversed and had good rapport with neighbours. He visited his local newsagent once a week and had a good relationship with the proprietor. Mr and Mrs Forrest ate out at restaurants when they had to travel for medical appointments which seemed to have occurred once a week and when they were required to come to Melbourne for expert opinions and DVA matters.
The Tribunal affirms the decision under review.
I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member
......[sgd]..................................................................
Associate
Dated: 4 April 2018
Dates of hearing: 23 March 2017, 23-24 October 2017 Counsel for the Applicant: Ms Fiona Spencer Advocate for the Applicant: Ms Sophia McMahon Solicitors for the Applicant: Williams Winter Advocate for the Respondent: Mr Ken Rudge - Department of Veterans' Affairs APPENDIX
Applicant
A1Statement of Applicant dated 6 October 2015
A2Report of Dr Kemp dated 30 November 2015
A3Report of Dr Kemp dated 31 March 2016
A4Statement of Rae Forrest (including letter dated 8 July 2014) dated 20 May 2016
Respondent
R112 pages of documents, including the report of Dr Kemp dated 28 January 2015, received by Tribunal on 27 February 2015
R2Bundle of documents from UFS
R3T-documents
R4Letter of Associate Professor Chambers dated 7 September 2015
R5Letter of Associate Professor Chambers dated 6 October 2015 with attached documents numbering 21 provided by Mr Forrest
R6Report of Associate Professor Chambers dated 8 February 2016
R7Report of Associate Professor Chambers dated 7 July 2016
R8Report of Dr Horsley dated 30 April 2015
R9Report of Dr Shnier dated 16 September 2016
R10CV of Dr Ronald Shnier
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