Frank De Chaufepie and Repatriation Commission
[2013] AATA 865
[2013] AATA 865
Division Veterans' Appeals Division File Number
2013/0485
Re
Frank De Chaufepie
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Dr J Chaney, MemberDate 3 December 2013 Place Perth The decision under review is affirmed.
.........................[Sgd].......................................
S D Hotop
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Australian Army from 1971 to 1991 – applicant’s Army service included eligible defence service – applicant suffered from acne and abdominal symptoms during service – applicant treated with isotretinoin for acne during service – applicant contracted ulcerative colitis in 2010 – Statement of Principles concerning inflammatory bowel disease (SoP) – SoP does not uphold contention that ulcerative colitis on balance of probabilities connected with defence service – applicant’s ulcerative colitis not defence-caused – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5 D(1), s 70 (5), s 120(4), s 120B(3) and s 196B (14)
Statement of Principles concerning inflammatory bowel disease No 20 of 2012
Instrument No 22 of 2001 concerning inflammatory bowel disease
REASONS FOR DECISION
Deputy President S D Hotop
Dr J Chaney, Member
3 December 2013
Introduction
Frank De Chaufepie (“the applicant”), who was born in March 1954, served in the Australian Regular Army from 31 March 1971 to 8 April 1991. He rendered “defence service”, for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 7 December 1972 to 8 April 1991.
On 21 July 2011 the applicant lodged with the Department of Veterans’ Affairs a claim for acceptance of “ulcerative colitis”, “hearing loss”, and “injury to left, right eye” as defence-caused disabilities for the purposes of disability pension under Part IV of the VE Act.
On 21 December 2011 a delegate of the Repatriation Commission (“the respondent”) accepted the applicant’s claim in respect of his right eye but refused his claim in respect of ulcerative colitis, hearing loss, and his left eye. On 2 May 2012, however, a delegate of the respondent decided that the applicant’s “sensorineural hearing loss” is service-related.
The applicant applied to the Veterans’ Review Board (“VRB”) for review of the respondent’s decision of 21 December 2011 in respect of ulcerative colitis and his left eye. On 15 November 2012 the VRB affirmed that decision in those respects.
On 1 February 2013 the applicant applied to the Tribunal for review of the VRB’s decision of 15 November 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T16, pp I–XV, 1–118) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (Exhibit R1);
·supplementary T Documents (T17, pp 119–162) filed by the respondent (Exhibit R2);
·Exhibits A1–A4 tendered by the applicant; and
·the oral evidence of the applicant.
The Issue
The applicant did not dispute the VRB’s decision insofar as it determined that the applicant’s left eye condition, namely “astigmatism left eye”, is not defence-caused.
It is, furthermore, common ground that the applicant suffers from ulcerative colitis.
Accordingly, the sole issue for the Tribunal’s determination is whether the applicant’s ulcerative colitis is a “defence-caused injury” or a “defence-caused disease”, for the purposes of Part IV of the VE Act.
The Applicant’s relevant service medical history
The following service medical history of the applicant appears from the T Documents and Exhibit A3, and is not in dispute.
A Medical Board Examination Record, dated 8 March 1971, for the purpose of the applicant’s enlistment, notes that he had acne scars on his face and back. (T3, pp 14–16)
On 4 March 1974 the applicant complained of “waves of epigastric pain lasting 15 minutes, for 4 hours …” (T3, p 18)
On 4 April 1974 the applicant was admitted to hospital “with a four hour history of severe colicky central abdominal pain” but all investigations were “normal” and he “settled rapidly on bed rest and fluids” and was discharged as fit for all duties on 8 April 1974. (T3, p 21)
On 21 November 1975 the applicant underwent a barium meal investigation in relation to his “long history of intermittent colicky abdominal pain of unknown aetiology” which found “no evidence of any lesion … in the oesophagus, stomach or duodenum” and “no abnormality … in the lower small bowel”. (T3, p 26)
Medical records note that the applicant was referred to a dermatologist on 30 April 1976 and on 1 May 1976 he was diagnosed by a dermatologist with “severe pustule cystic acne” on his face, back and chest and was prescribed antibiotic medication and acne lotion. He was thereafter periodically reviewed by dermatologists in the period from July 1976 to November 1984. (T17, pp 121–157)
In mid 1985 Dr Phillip Swarbrick, Dermatologist, noted that the applicant had “been on long term antibiotics with some control but continue(d) to get outbreaks” and he prescribed Roaccutane medication for the treatment of the applicant’s acne. (T17, p 159)
On 9 August 1985 Dr Swarbrick noted that the applicant had been “on Roaccutane” for one month with “some improvement”. (T17, p 160)
On 6 September 1985 and 7 October 1985 Dr Swarbrick noted that the applicant was “on Roaccutane” and that his cystic acne condition was much improved. (T17, pp 62, 161)
On 8 November 1986 the applicant attended an Area Medical Officer who diagnosed “food poisoning”, prescribed medication, and found him to be fit for full duty. (Exhibit A3)
A Medical Board Examination Record, dated 11 August 1988, referred to (inter alia) the applicant’s acne condition and noted that he had not been on medication since 1985 but that he had previously been on Roaccutane with good effect. (T3, p 33)
On 14 June 1989 the applicant sought medical treatment, having experienced “indigestion” for the previous four days with “retrosternal and epigastric burning” and “some waterbrash”. He was given Mylanta and Gaviscon and was reported to be fit for full duty. (T3, p 37)
On 11 July 1989 the applicant presented for medical treatment complaining of “stomach pain” which was queried as being due to “gastric reflux”. He was reported to be fit for full duty. (T3, p 35)
On 3 December 1990 the applicant presented for medical treatment with suspected “food poisoning”, having experienced “vomiting, diarrhoea, stomach cramps, cold and hot sweating”. He was reported to be not fit for duty on that day. (T3, p 41)
In a Medical History Questionnaire, dated 5 February 1991, which was completed by the applicant for the purpose of his discharge, he indicated that he had not suffered from (inter alia):
·frequent indigestion;
·heartburn;
·ulcer of stomach;
·ulcer of duodenum;
·passing blood through bowels;
·frequent diarrhoea;
·frequent dysentery;
·severe constipation. (T3, pp 12–13)
The Applicant’s Evidence
The applicant gave evidence as follows:
·from 1974 he was taking “massive doses” of antibiotics for his acne and he was having “stomach problems” from that time;
·he started taking Roaccutane in mid 1985 and took it for several months in the latter half of 1985;
·while he was taking Roaccutane he experienced abdominal pain but that did not concern him because he had experienced abdominal pain in the past;
·he cannot say whether his abdominal symptoms became worse while he was taking Roaccutane;
·he continued to experience stomach problems from 1986 to 1989 and he would go to the RAP [Regimental Aid Post] for treatment and would be given Mylanta;
·his stomach problems got worse in 1989;
·after he was discharged in 1991 he continued to have stomach problems but he did not bother seeking medical treatment because he had had such problems throughout his service but there had been no specific diagnosis of his abdominal condition – he “just learned to live with it”;
·however, in 2010 he experienced all of the symptoms he had previously experienced, including stomach cramping and diarrhoea, but more severely, together with bleeding, and he “knew there was something wrong”;
·he then consulted his general practitioner who referred him for a colonoscopy;
·he had a colonoscopy in 2010 performed by Dr Chin which showed ulcerative colitis and this was confirmed by a second colonoscopy in 2011 performed by Dr Brand.
Additional Evidence Tendered by the Applicant
The applicant tendered in evidence a letter from Dr Gino Caravella, dated 14 October 2013, which states as follows:
“ I have been caring for Mr Frank De Chaufepie for the past 4 years. In 2010 he had Ulcerative Colitis diagnosed by colonoscopy and biopsy. Upon reviewing his past history I learnt that he was provided with several types of antibiotics for acne during his service years for his acne vulgaris. In addition he was given roaccutane in 1980’s when that became available.
Upon perusing the medical literature I discovered that roaccutane is associated with causing IBD in patients without a prior history of intestinal disorders. Doxycycline that was also prescribed during his army service days has also been linked at times with enterocolitis. He has no family history of Colitis/IBD.
I conclude that it is highly probable that his treatment for acne with extensive causes [sic] of doxycycline and subsequent isotretinoin may well have triggered off his current colitis problem.
…” (Exhibit A1)
The applicant also tendered in evidence a Consumer Medicine Information leaflet concerning Roaccutane which states that Roaccutane “contains the active ingredient isotretinoin”. (Exhibit A4)
The applicant tendered in evidence a statutory declaration of Susan Mary De Chaufepie (his former wife) dated 26 September 2013 (Exhibit A2). In her statutory declaration Ms De Chaufepie refers to the applicant’s longterm taking of antibiotics, followed by a course of Roaccutane for several months in 1985, and his subsequently suffering “severe abdominal pain and spasming on several occasions, during which time he sought medical treatment”.
The Relevant Legislation
The VE Act
Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:
“ …
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) of the VE Act as follows:
“ disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
Section 120B of the VE Act relevantly provides:
“ …
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).”
Section 196B(14) relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…”
The Statement of Principles
Pursuant to s 196B(3) of the VE Act, the Authority has determined Statement of Principles concerning inflammatory bowel disease No 20 of 2012 (“the SoP”) which is presently in force.
The SoP relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about inflammatory bowel disease and death from inflammatory bowel disease.
(b)For the purposes of this Statement of Principles, ‘inflammatory bowel disease’ means a chronic, autoimmune disorder of the gastrointestinal tract, characterised by diarrhoea and abdominal pain and sometimes associated with extra-intestinal manifestations, including peripheral arthritis, episcleritis, aphthous stomatitis, erythema nodosum and pyoderma gangrenosum. This definition includes ulcerative colitis, Crohn’s disease and inflammatory bowel disease of unspecified type, but excludes bowel inflammation secondary to vascular insufficiency, food allergy, radiation, infection or gastrointestinal toxins.
(c)Inflammatory bowel disease attracts ICD-10-AM code K50 or K51.
(d)In the application of this Statement of Principles, the definition of ‘inflammatory bowel disease’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that inflammatory bowel disease and death from inflammatory bowel disease can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, inflammatory bowel disease or death from inflammatory bowel disease is connected with the circumstances of a person’s relevant service is:
…
(d)being treated with a drug from a class of drugs in the specified list, for at least the seven days before the clinical onset of inflammatory bowel disease; or
…
(g)being treated with a drug or a drug from a class of drugs in the specified list, for at least the seven days before the clinical worsening of inflammatory bowel disease; or
…
Factors that apply only to material contribution or aggravation
7.Paragraphs 6(f) to 6(j) apply only to material contribution to, or aggravation of, inflammatory bowel disease where the person’s inflammatory bowel disease was suffered or contracted before or during (but not arising out of) the person’s relevant service.
…
Other definitions
9.For the purposes of this Statement of Principles:
‘a drug or a drug from a class of drugs in the specified list’ means:
(a) isotretinoin;
(b) non-steroidal anti-inflammatory drugs; or
(c) tumour necrosis factor antagonists;
…
‘relevant service’ means:
(a) eligible war service (other than operational service) under the VEA;
(b) defence service (other than hazardous service and British nuclear test defence service) under the VEA; or
(c) peacetime service under the MRCA;
…”
Analysis
The Tribunal notes at the outset that ulcerative colitis is, by clause 3(b) of the SoP, included within the definition of “inflammatory bowel disease”, the subject of the SoP.
As previously mentioned, it is common ground that the applicant suffers from ulcerative colitis. The Tribunal, on the basis of Dr Caravella’s letter of 14 October 2013 (Exhibit A1), so finds. The Tribunal also finds that the applicant’s ulcerative colitis is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
It is also common ground that Roaccutane contains isotretinoin, and the Tribunal, on the basis of Exhibit A4 (referred to in paragraph 26 above), so finds.
Pursuant to ss 120(4) and 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s ulcerative colitis is “defence-caused” only if:
·the material before it raises a connection between that “disease” and his “defence service”; and
·the SoP “upholds the contention that [that] … disease … is, on the balance of probabilities, connected with that service.”
There is no dispute that the material before the Tribunal “raises a connection” between the applicant’s ulcerative colitis and his “defence service”, within the meaning of s 120B(3)(a) of the VE Act. The critical question is whether the SoP “upholds the contention” that the applicant’s ulcerative colitis “is, on the balance of probabilities, connected with that service”, within the meaning of s 120B(3)(b) of the VE Act.
The only factor in clause 6 of the SoP on which the applicant sought to rely was the factor set out in para (d), although, in the course of the hearing, the possible application of para (g) was also raised.
A critical finding which must be made by the Tribunal for the purposes of para (d) of clause 6 of the SoP is the time of the “clinical onset” of the applicant’s ulcerative colitis.
Although the evidence before the Tribunal confirms that the applicant has experienced intermittent abdominal pain and associated abdominal symptoms, including cramping and diarrhoea, since 1974, no specific medical diagnosis of his abdominal condition was made before 2010. The Tribunal infers from the applicant’s own evidence that his abdominal condition, after his discharge from the Army in 1991, was not sufficiently severe for him to seek medical attention until 2010 when he experienced very severe abdominal symptoms, together with rectal bleeding.
Having regard to the whole of the evidence before it, the Tribunal is satisfied that the applicant was suffering from abdominal symptoms in the period 1974–2009 but it is not satisfied that those symptoms were such as to warrant a medical diagnosis of ulcerative colitis or other inflammatory bowel disease in that period.
There can be no dispute, however, having regard to the medical evidence before the Tribunal, that the applicant was suffering from ulcerative colitis in 2010.
In the claim form lodged by the applicant on 21 July 2011 (referred to in paragraph 2 above), Dr Luciano Marino provided a diagnosis of ulcerative colitis and he indicated that the basis for that diagnosis was two colonoscopies – one performed on 6 December 2010 by Dr M Chin, the other performed on 9 June 2011 by Dr G R Brand (see T5, p 49). Dr Caravella, in his letter of 14 October 2013 (see paragraph 26 above), confirmed that in 2010 the applicant had ulcerative colitis as “diagnosed by colonoscopy and biopsy”.
On the basis of the medical evidence before it, the Tribunal finds that, for the purposes of para (d) of clause 6 of the SoP, the “clinical onset” of the applicant’s ulcerative colitis occurred in 2010.
On the basis of the medical evidence before it, the Tribunal also finds that the applicant was “treated with a drug or a drug from a class of drugs in the specified list”, namely, isotretinoin, within the meaning of para (d) of clause 6 of the SoP, in the period July–November 1985.
Paragraph (d) of clause 6 of the SoP, however, requires that the person have been “treated with a drug or a drug from a class of drugs in the specified list, for at least the seven days before the clinical onset of inflammatory bowel disease”. In the Tribunal’s opinion, the phrase “for at least the seven days before …” (emphasis added) in para (d) must be taken to refer to the period of at least seven days immediately before the clinical onset of inflammatory bowel disease, rather than to any period of at least seven days at any time before the clinical onset of inflammatory bowel disease. In the Tribunal’s opinion, the presence of the definite article “the” in that phrase requires that the phrase be so construed.
In the present case, the applicant was treated with the relevant drug, namely, isotretinoin, for approximately five months in the latter half of 1985 – some 25 years before (as the Tribunal has found) the “clinical onset” of ulcerative colitis. Accordingly, the factor set out in para (d) of clause 6 of the SoP is not satisfied in this case.
Although (as previously mentioned) the possible application of the factor set out in para (g) of clause 6 of the SoP was also raised at the hearing, in the Tribunal’s opinion that factor cannot apply in this case because the applicant’s ulcerative colitis was not suffered or contracted by him before or during his defence service: see clause 7 of the SoP. In any event, there is no medical evidence before the Tribunal which indicates that there has been a “clinical worsening” (as required by para (g)) of ulcerative colitis or other inflammatory bowel disease in the applicant’s case.
Conclusion
The Tribunal concludes, therefore, that the SoP does not uphold the contention that the applicant’s ulcerative colitis is, on the balance of probabilities, connected with his defence service, within the meaning of s 120B(3) of the VE Act.
For the sake of completeness, the Tribunal notes that the relevant Statement of Principles which was in force when the respondent made its decision on 21 December 2011 was Instrument No 22 of 2001 concerning inflammatory bowel disease. The Tribunal, having considered the provisions of that Statement of Principles, likewise concludes that that Statement of Principles does not uphold the contention that the applicant’s ulcerative colitis is, on the balance of probabilities, connected with his defence service, within the meaning of s 120B(3) of the VE Act. The Tribunal notes that the applicant did not seek to rely on that Statement of Principles.
Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of the VE Act, that the applicant’s ulcerative colitis is a “defence-caused disease” for the purposes of Part IV of that Act.
Accordingly, the Tribunal determines that the applicant’s ulcerative colitis is not a “defence-caused injury” or a “defence-caused disease” under s 70(5) of the VE Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr J Chaney, Member.
..........................[Sgd]......................... Administrative Assistant
Dated 3 December 2013
Date of hearing
4 November 2013
Representative of the Applicant
Mr B Cooper
Representative of the Respondent
Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs
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