Fowles and Repatriation Commission

[2004] AATA 1412

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1412

ADMINISTRATIVE APPEALS TRIBUNAL

VETERANS’ APPEALS DIVISION            N2003/840

Re: Michael George FOWLES

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member, Dr P.D. Lynch, Member

Date:             31 December 2004

Place:            Sydney

Decision:The Tribunal affirms the decision under review.

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

Veterans’ Affairs –  operational service – whether irritable bowel syndrome war-caused –– decision affirmed

Veterans’ Entitlement Act 1986, ss. 9, 120, 120A, 196B

Repatriation Medical Authority Statements of Principles:

-     Instrument No. 103 of 1996 concerning Irritable Bowel Syndrome

Repatriation Commission v Smith (1987) 15 FCR 327

Bull v Repatriation Commission (2001) 66 ALD 271

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Wellington (1999) 57 ALD 507

Repatriation Commission v Hill (2003) 69 ALD 581

REASONS FOR DECISION

P.J. Lindsay, Senior Member,      Dr P.D. Lynch, Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) dated 8 January 2002 that refused the claim by the applicant, Michael George Fowles, for acceptance of irritable bowel syndrome and melanosis coli as war-caused diseases under the Act.    

2. At the hearing Mr Fowles was represented Mr T Smith, advocate, Naval Association, and the Commission by Mr M Huthnance, of the advocacy section of the Department of Veterans’ Affairs (the Department). Mr Fowles, Mrs S Fowles, his wife, Mr B O’Keefe, consulting historian, and Dr M Gillies, gastroenterologist, gave evidence. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

background

3.      Mr Fowles served in the Royal Australian Navy from 14 January 1952 to 25 February 1958.  He had operational service in Korea during the period 17 July 1954 to 16 March 1955. 

4.      As the applicant’s claim for pension is related to a period of operational service, the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act.  The tribunal will determine pursuant to s.120(1), that his irritable bowel syndrome and melanosis coli or some other conditions for which a diagnosis may be made, were war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The tribunal will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting those conditions with the circumstances of his service: s.120(3).  Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA).  The Tribunal will refer to the relevant SoPs in force at the time of decision and to other SoPs in force on 8 January 2002, the date of the Commission’s decision (if any).

5.      The RMA has issued SoP 103 of 1996 concerning irritable bowel syndrome but has not issued a SoP in respect of melanosis coli.

evidence

6.      Mr Fowles said he grew up on a farm and left school at 13.  He described his diet on the farm as including beef, vegetables, milk and lamb.

7.      His operational service was in HMAS Shoalhaven, an anti-aircraft frigate.  Its role after the conclusion of the Korean War was to patrol off the coast of Korea, policing the armistice and deterring infringements. This period of the applicant’s service lasted for 265 days. He described the diet aboard the Shoalhaven as consisting almost entirely of dried food, such as powdered eggs and dried potatoes, and mince.  There was little variety. They ate fresh food very seldom. He recalled the ship only twice during this period taking on fresh food, while in port in Hong Kong and Kure, Japan. 

8.      After about a month had elapsed during his period of operational service, Mr Fowles developed constipation and diarrhoea, complaints that he had not previously suffered from. This evidence is consistent with his final medical examination prior to entry into the Navy, wherein he stated that, as at December 1951, he had not previously suffered from stomach or bowel trouble or chronic constipation (T3-15).

9.      He sought treatment on a number of occasions and was treated by the sick berth attendant.  While he knew there was a surgeon aboard Shoalhaven, Mr Fowles said that constipation and diarrhoea were not considered by the sick berth attendant to be serious conditions and did not warrant his being examined by the doctor. Mr Fowles said the sick berth attendant would speak with the surgeon and then give him the medications Coloxyl and paraffin for the constipation. He would take the tablets when needed. Quite understandably, he could not recall the frequency of his attendances at the sick berth in relation to his bowel dysfunction. His said it was explained to him that his symptoms were commonly experienced and such complaints did not really necessitate assessment by the doctor or time in hospital. By contrast he was admitted to hospital in Kure and Hong Kong to be treated for tonsillitis. He told the tribunal that the only time he was assessed by the medical officer during his period of operational service was when he had to be admitted to hospital for tonsilitis. When ashore, the applicant said he would try to obtain medication if required for his symptoms, which he described as constipation or diarrhoea. 

10.     Following his discharge from the Navy, the applicant said he consulted his family doctor to treat the constipation and diarrhoea.  The treatment involved taking similar medication to that prescribed while in the Navy.  He had surgery in 1974 for a  carcinoma of the colon which was treated by the removal of a malignant polyp. It was around this time that he was first informed of the diagnosis of irritable bowel syndrome.  Until then he thought his symptoms were simply of constipation or diarrhoea.

11.     Mr Fowles said he sees his gastrointestinal specialist Dr Meredith every three years. Dr Meredith has tried to get him off laxatives because they have caused another problem for him. He still experiences sudden episodes of diarrhoea. He is resigned to there being no cure for his diarrhoea and has learned to live with it. But his symptoms cause him emotional upset and this can affect relations with his wife and is detrimental to harmony at home.

12.     In a report dated 14 November 2002 (T11) Dr C Meredith, consultant in gastrointestinal and liver diseases, noted that Mr Fowles was referred in March 1994 with left-sided abdominal pain. He was taking laxatives for constipation. A colonoscopy in 1995 revealed melanosis coli and he was advised to continue with a high fibre diet and good daily hydration. Dr Meredith’s summary was that Mr Fowles has a constipation-predominant irritable bowel syndrome and had onset of symptoms while in service.

13.     The applicant’s wife Shirley Fowles gave oral evidence. She said her husband has been taking medication for his bowel problems since she has known him, which is over 49 years. She believes his symptoms are slowly deteriorating.

14.     The Commission arranged for Mr Fowles to be examined by Dr M Gillies, gastroenterologist, on 7 August 2003. Dr Gillies prepared a report (exhibit R1) where she took a history of his presenting with constipation while serving on the HMAS Shoalhaven. The history referred to his upbringing in the country. His diet was healthy with plenty of fruit and porridge for breakfast. It was during his service that he became constipated due to a diet that he had not experienced before, with little fruit and minimal fibre overall. In Dr Gillies’ opinion, the applicant then was given appropriate clinical treatment which was simply to give him cathartics, such as Coloxyl, paraffin. When he went ashore in Japan the local food did not agree with him and he had constipation or diarrhoea, so he avoided it and his low fibre diet did not improve. Dr Gillies noted that Celebrex (taken subsequent to service) causes him diarrhoea, which is indicative of a sensitive bowel.  

15.     Dr Gillies reported as follows:

With respect to the IBS symptoms, his initial symptoms during service were constipation but over the years, this evolved with episodes of alternating constipation and diarrhoea, abdominal pain, some episodes of faecal soiling and some episodes of severe constipation, when, currently for up to four days at a time, he does not open his bowels. …

In your opinion, could Mr Fowles satisfy any factors in the Statement of Principles?

Whilst technically, I do not believe he does satisfy the SOP, it is quite likely that the constipation which developed in a 20 year old with marked and sudden change in  diet, was the trigger for development of IBS. The IBS has continued to wax and wane and has become a chronic problem. With this I believe, has developed a degree of anxiety and one tends to aggravate  the other.

…

In Dr Gillies’ opinion Mr Fowles first began to have symptoms, which she stated were symptoms of constipation, during his period of operational service in 1954 to 1955. The diagnosis was irritable bowel syndrome, the constipation during service being the first manifestation of that condition. She added “Technically, he had a constipation predominant IBS.” Dr Gillies specifically stated that the clinical management given to him at the time of his operational service, the provision of a cathartic as relief for constipation, was appropriate clinical management. Dr Gillies stated that though Mr Fowles did not satisfy SoP 103 of 1996, it was quite likely that the sudden change in diet was the trigger for the development of irritable bowel syndrome.

16.     Dr Gillies stated that melanosis coli is an entirely benign condition and has no serious sequelae. In further explanation Dr Gillies said that melanosis coli is a consequence of the treatment that was used to overcome his constipation but is not, in itself, an ongoing problem and should be discounted.

17.     Under cross-examination Dr Gillies was quite definite in her view that Mr Fowles’ irritable bowel syndrome had its origin during his period of service. His avoiding local food in Japan because it gave him constipation or diarrhoea confirmed to her that irritable bowel syndrome was established. The prolonged change in diet experienced on Shoalhaven, extending for more than two months, and the consequent change in bowel movement, was a sufficient period in which the irritable bowel syndrome became established.  In re-examination Dr Gillies confirmed that the applicant’s prime discomfort during his operational service was constipation, but the condition later evolved into alternating episodes of constipation and diarrhoea.

18.     Brendan O’Keefe, consultant Military Historian, provided the respondent with a report dated 11 March 2004 (exhibit R2).  Mr O’Keefe was asked to research the applicant’s claim that he was unable to obtain proper medical treatment for his irritable bowel syndrome during his period of operational service in HMAS Shoalhaven.  On researching the Navy Lists Mr O’Keefe found that a medical officer, Surgeon Lieutenant M.F. Cleary, was posted to the Shoalhaven on 3 June 1954. Mr O’Keefe noted references to the medical officer in the ship’s Reports of Proceedings for the months of July and August 1954 and February 1955. The Reports of Proceedings for August 1954 recorded Dr Cleary performing an appendectomy with assistance from the Sick Berth Attendant and an able seaman.

19.     Mr O’Keefe noted that during the period in question, the Shoalhaven carried out five patrols on the western side of the Korean peninsula.  On all occasions, the Shoalhaven was serving with and the commander of a small fleet of other vessels.  In these voyages Mr O’Keefe reported that the ship was never far from land. The report referred to a number of medical emergencies, mainly involving appendicitis, that were experienced during the Shoalhaven’s tour of duty from July 1954 to March 1955. In Mr O’Keefe’s summation “This series of episodes indicates that the captain of HMAS Shoalhaven took special measures to expedite the treatment and hospitalisation of members of the ship’s company when they became seriously ill.  When time did not permit the ship to land a member of the crew for treatment, the ship’s medical officer provided treatment, assisted by the sick berth attendant and other member’s [sic] of the ship’s company.” (Exhibit R2)

20.     In cross-examination Mr O’Keefe agreed that the Reports of Proceedings attached to his report (exhibit R2) described the ship’s victualling as being merely ”satisfactory” and “monotonous”, the variety of meats available in Kure was limited yet the availability of fresh food in Hong Kong was the subject of favourable mention. In his experience as an historian, such comments in Reports of Proceedings indicated that the food was the standard fare of the day in the Navy. 

consideration

21.     The respondent does not dispute that Mr Fowles suffers from irritable bowel syndrome but relying on Dr Gillies’ opinion, contends that the melanosis coli is unrelated to the irritable bowel syndrome and of little consequence. We are reasonably satisfied (Repatriation Commission v Smith (1987) 15 FCR 327) with Dr Gillies’ diagnosis and find accordingly.

22.     In reviewing the respondent’s decision of 8 January 2002, the tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

23.     At step 1, the tribunal must take into account all the material before it.  The hypothesis relied on is that the high fat / low fibre diet Mr Fowles was given during his period of operational service that established his irritable bowel syndrome and in this regard he cited the evidence of Dr Gillies. Mr Fowles was unable to obtain appropriate clinical management for his bowel problems while serving in HMAS Shoalhaven. Those problems progressed to the extent that he developed irritable bowel syndrome. There was also the evidence that the applicant suffered from diarrhoea while on Shoalhaven and that those symptoms occurred within six months of the onset of irritable bowel syndrome. Mr Smith submitted therefore that the material raises a hypothesis connecting Mr Fowles’ irritable bowel syndrome with the circumstances of his period of operational service and we agree.

24.     As to step 2, the parties do not dispute that the relevant SoP is Instrument No. 103 of 1996 concerning Irritable Bowel Syndrome.  Under the SoP, one of the factors set out therein must be related to the veteran's service for the condition to be regarded as war‑caused. 

25.     In relation to step 3, it is apparent that only some parts of the hypothesis are consistent with factors in the SoP, namely factors 5(c) and 5(f) which read:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting irritable bowel syndrome or death from irritable bowel syndrome with the circumstances of a person’s relevant service are:

…

(c) suffering an episode of severe diarrhoea within the six months immediately before the clinical onset of irritable bowel syndrome;

or …

(f) inability to obtain appropriate clinical management for irritable bowel syndrome.

The following definition in the SoP is relevant:

“episode of severe diarrhoea” means the acute onset of an illness characterised by the passage of frequent loose watery motions accompanied by a marked urgency to defaecate, caused by an infective organism, and of sufficient severity to warrant medical attention, or in the absence of medical intervention, lasting at least four days;

We must form an opinion as to the reasonableness of the hypothesis.  Mr Smith submitted that there is material that supports what are essentially a series of alternative hypotheses. While proof of facts is not an issue at this stage of our decision-making, if the hypothesis does not fit within the template of the SoP, it is not a reasonable hypothesis.  The Full Federal Court in Bull v Repatriation Commission (2001) 66 ALD 271 has provided the following guidance for determining whether a hypothesis is reasonable (at 276):

It is important to understand the following about East [East v Repatriation Commission (1987) 16 FCR 517]. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis … .

26.     Taking first the inability to obtain appropriate clinical management for irritable bowel syndrome, the applicant said that he when he went to see Lieutenant Surgeon Cleary about the constipation, he never got beyond the sick berth attendant. There was some screening of complaints. Mr Fowles said that constipation and diarrhoea were regarded as complaints that could be treated with medication. He was given Coloxil and paraffin. His evidence was that on discharge from the Navy, his own doctor continued to provide the same medications when he complained of bowel problems. Dr Gillies’ evidence was that in 1954 the provision of a cathartic was appropriate treatment to relieve constipation. The respondent submitted that whether clinical management is appropriate must be judged by reference to contemporary medical standards, not current medical standards (Repatriation Commission v Wellington (1999) 567 ALD 507). We accept the respondent’s submission. The material before us, especially the opinion of Dr Gillies, does not raise a reasonable hypothesis connecting the applicant’s irritable bowel syndrome with his service by virtue of inability to obtain appropriate clinical management of his condition.

27.     In relation to factor 5(c), the material includes the applicant’s evidence that he complained about constipation and diarrhoea while serving in HMAS Shoalhaven on operational service. The duration of the episodes of either constipation or diarrhoea was not mentioned. Dr Gillies’ history referred mostly to constipation and she provided a technical diagnosis of the condition at the time of its clinical onset as being constipation predominant irritable bowel syndrome, which she said occurred while Mr Fowles was on operational service. Mr Fowles’ evidence was that the medications he was given were Coloxyl and paraffin. Dr Gillies reported that these are cathartics or laxatives for treating constipation. Other doctors have recorded an emphasis on constipation, not diarrhoea. Dr Meredith’s report of 14 November 2003 also referred to the current irritable bowel syndrome as being constipation predominant. The Commission requested a psychiatric assessment from Dr A White as a consequence of Mr Smith’s opening that linked the applicant’s anxiety with irritable bowel syndrome (an argument he later withdrew). Dr White’s report dated 29 March 2004 (exhibit R3) contained a history that the applicant “ … does …  state  that he suffers from Irritable Bowel Syndrome which he attributes to developing constipation due to the Naval and Korean diet in the 1950’s. He has been constipated ever since but, as I understood him, believes that his constipation can be directly attributed to his Naval service.”

28.    In completing the disability pension claim form (T4), Mr Fowles described his symptoms as abdominal pains that were relieved by defecation. Dr Gillies’ oral evidence confirmed that, although the applicant experienced some diarrhoea while in Japan, which in conjunction with his constipation she saw as a pointer to the clinical onset of irritable bowel syndrome that had its origin in the radical change in his diet that was high in fat and low in fibre, it was not until years later that the condition evolved into severe diarrhoea alternating with constipation. She referred to constipation being his prime discomfort and problem while on operational service. The applicant’s service medical records were discussed by the Veterans’ Review Board in its review of the respondent’s decision. The Board noted (T12-60) that there was reference to a range of ailments during his period of operational service, but no record of treatment for either diarrhoea or for that matter constipation, which is surprising if there had been severe episodes of diarrhoea as defined in the SoP.

29.    We are mindful of the following passage from the Full Court of the Federal Court’s judgment in Repatriation Commission v Hill (2003) 69 ALD 581:

… the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service.  In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.(at 597)

In relation to factor 5(c) of SoP 103 of 1996 as raised in this matter, it is necessary that the evidence points to an episode of severe diarrhoea, which must have occurred within six months of clinical onset of irritable bowel syndrome. The material does not point to the factor being met and the hypothesis is therefore not reasonable.  We are of the opinion that the RMA should consider amending this SoP so that it makes provision for veterans whose constipation (as well as diarrhoea) manifests or evidences their irritable bowel syndrome.

30.     Mr Fowles’ high fat / low fibre diet while on HMAS Shoalhaven is not listed as a factor in SoP 103 of 1996 that may raise a reasonable hypothesis connecting his irritable bowel syndrome with his service.  Again, we suggest the RMA should consider including a factor in the SoP that links irritable bowel syndrome to change in a veteran’s diet during a period of relevant service. 

31.     Accordingly, an hypothesis connecting irritable bowel syndrome with service, is not upheld by the template in the SoP. It follows that the decision under review should be affirmed.

I certify that the preceding 31 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member and Dr P.D. Lynch, Member:

Signed:         

............................................................................

(Associate)

Dates of Hearing  14 January, 7 September and 5 November 2004
Date of Decision  31 December 2004
Applicant’s Representative      Mr T Smith

Respondent’s Representative  Mr M Huthnance, Dep’t of Veterans’ Affairs.