Gilkinson and Repatriation Commission

[2008] AATA 364

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 364

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2006/0296

VETERANS’ APPEALS DIVISION		)
Re		DAVID GILKINSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
 Dr M E C Thorpe, Member

Date6 May 2008

PlaceSydney

Decision The decision under review is affirmed.

.................[sgd]....................

M  D Allen

Presiding Member
CATCHWORDS

VETERANS’ ENTITLEMENTS –  review of decision of veterans’ review board affirming prior determination by respondent that applicant’s condition of sleep apnoea was not related to service – delidio principles – whether material raises reasonable hypothesis connecting disease suffered by applicant with circumstances of service – hypothesis must conform to a statement of principles – civil standard of proof – evidence said to establish a hypothesis connecting disease suffered with circumstances  of service disproved beyond reasonable doubt – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 sections 6C, 68, 120A, 120(1), 120(3) and 120(6)

CASE LAW

Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
Meehan v Repatriation Commission (2001) 64 ALD 366
Benjamin v Repatriation Commission (2001) 70 ALD 622
Kattenberg v Repatriation Commission (2003) 73 ALD 365

REASONS FOR DECISION

6 May 2008 Senior Member M D Allen
Dr M E C Thorpe, Member

1.      By application made the 21st day of March 2006, the Applicant sought a review of the decision of the Veterans’ Review Board, affirming a prior determination by the Respondent that his diagnosed condition of Sleep Apnoea was not related to service, and that continued his Disability Pension at 80 per cent of the general rate.

2.      In these proceedings, the Applicant contended that his Sleep Apnoea was causally related to his operational service, and that he was entitled to a pension at the special rate.

3. The Applicant has periods of “operational service’, as that term is defined in section 6C of the Veterans’ Entitlements Act 1986, being 10 trips he spent as a crew member of HMAS Sydney when that vessel journeyed to South Vietnam in the years 1970-1972.

4. In addition to his operational service, the Applicant had a period of defence service as defined in section 68 VEA from 7 December 1972 to 9 July 1977.

5.      As the Applicant had operational service, so far as refers to any incapacity alleged to have arisen out of the circumstances of that service, the standard proof is that mandated by subsections 120(1) and (3) VEA. 

6. Subsections 120(1) and (3) VEA provide that any disease suffered by a veteran, and claimed to be war-caused, shall be accepted as being so caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to s 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles issued by the Repatriation Medical Authority.

7.      Subsection 120(6) VEA provides neither party to this review bears any onus of proof. 

8.      The manner in which the Tribunal must approach its task where a SoP exists, was set forth by the Full Court of the Federal Court in Repatriation Commission v Delidio (1998) 83 FCR 82. The so-called Delidio principles are now so well known as to not require recapitulation here. 

9. Insofar as the Applicant had a period of defence service, the standard of proof in relation to that service is to the Tribunal’s “reasonable satisfaction”: ss 120(6) VEA. In the circumstances of this matter, the question as to whether anything in the Applicant’s defence service operated upon his diagnosed condition was not raised by the material before us.

10.     There is no dispute that currently the Applicant does suffer from Sleep Apnoea.  Instrument No. 13 of 2005 (which SoP is more favourable to the Applicant than Instrument No. 39 of 1997, the Instrument in force at the time the Respondent made its decision in this matter), lists the following factors as raising a reasonable hypothesis connecting Sleep Apnoea with service, namely

5.

a)Having chronic obstruction of the upper airways at the time of the clinical onset of Sleep Apnoea;

b)being obese at the time of the clinical onset of Sleep Apnoea; or

….

s)consuming an average of at least 30 grams of alcohol per day for at least the six months before the clinical worsening of Sleep Apnoea.

11.     Clause 8 of the SoP defines Chronic Obstruction of the Upper Airways as meaning on-going obstruction at the level of the nose, naso-pharynx, oro-pharynx, hypo-pharynx or larynx.

12.     The Applicant’s primary submission was that his Sleep Apnoea was caused by, or contributed to, by his obesity and Chronic Sinusitis.

13.     Instrument No. 13 of 2005 defines “being obese” in the following terms, namely:

being obese means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.

The BMI equals W/H² and where:

W is the person’s weight in kilograms and

H is the person’s height in metres.

14.     Whereas the Applicant’s service medical records disclosed that he did become obese whilst in the Navy, the first record of this is in 1971.  A medical examination on 7 June 1971 simply records the Applicant as “obese”.  Other medical examinations prior to that date record an increase in both weight and height, from the time the Applicant joined the Navy aged 15 years. 

15.     In the opinion of Professor Breslin, thoracic physician, who was called by the Respondent, the clinical onset of the Applicant’s Sleep Apnoea was in 1968, when other sailors had remarked on the Applicant’s snoring.  In particular, Professor Breslin referred to the history that the Applicant’s parents were snorers.  Cross-examined, he stated that it was more probable than not that the clinical onset of the Applicant’s Sleep Apnoea was in 1968, but he could not rule out that it was whilst a crew member of HMAS Sydney, and daytime sleepiness as well as complaints about his snoring were experienced.

16.     Given Professor Breslin’s evidence, we are satisfied that the clinical onset of the Applicant’s Sleep Apnoea was in 1968 when, according to the Applicant’s evidence, snoring was first remarked upon.  However, given the concession by Professor Breslin that he could not rule out a clinical onset in 1970-1971, when aboard HMAS Sydney, then a reasonable hypothesis has been raised, that the clinical onset was during a period of operational service. 

17.     As it was pointed out in Repatriation Commission v Cooke (1998) 90 FCR 307 at 311, the reasonable doubt standard of proof applies to those facts necessary to establish causation, and in this matter clinical onset is one such fact. If the Tribunal is able to say that there is material before it sufficient to raise the hypothesis that clinical onset was (in this case) during operational service, that is enough for the purpose of the so-called third Delidio step.  That being said, in referring to Cooke (supra), we must state that the case cited by counsel for the Applicant, namely Meehan v Repatriation Commission (2001) 64 ALD 366, cannot stand following the decision of the Full Court of the Federal Court in Benjamin v Repatriation Commission (2001) 70 ALD 622.

18.     At the time the Applicant was first noted to be obese, he had 92 days of operational service.  Prior to that time, the Applicant’s medical records show a progressive weight gain from his time of enlistment to the time until discharge in 1977.

19.     In a report dated 15 June 2007, Dr Volker PhD, a dietician, stated:

“shift work, plentiful supply of food and alcohol and low levels of physical activity all contributed to the veteran’s weight gain.  The veteran was 57.2kg in May 1965 and 87.5 kg in March 1969.  This represents a gain of 30.3kg in 55 months.  This translates to a gain of over half kilo/month.  The veteran was already over-weight and well on his way to being obese (BMI >30 in 1969).  Obesity does not occur instantly, it takes time to accumulate excess energy storage.  The adverse health effects of over-weight and obesity develop as gradually as the weight is gained.”

20.     As can be ascertained from the report of Ms Volker, the Applicant’s obesity was well on the way to being established prior to his operational service.  As Ms Volker pointed out in her evidence to the Tribunal, the Applicant, because he had access to unlimited amounts of food whilst undergoing recruit training at HMAS Leeuwin, became used to eating.  This, of course, had nothing to do with operational service.

21.     For the Applicant, it was submitted that operational service had made a contribution to his obesity and Kattenberg v Repatriation Commission (2003) 73 ALD 365 was authority for the proposition that, if operational service contributed to a material degree to his obesity, then that was sufficient connection with operational service.

22.     We are satisfied beyond reasonable doubt that the Applicant’s obesity was not connected with his operational service.  What is clear from the Applicant’s medical records, is that he was well on the way to being obese before operational service.  There was nothing that occurred during his operational service, prior to the assumed clinical onset of Sleep Apnoea in 1970-1971, that in any way caused or contributed to his obesity over and above the existing fact that the Applicant was eating to excess and not exercising sufficiently.

23.     The second basis upon which the Applicant implicated operational service in his commencing to suffer Sleep Apnoea, was chronic obstruction of the upper airways at the time of clinical onset. 

24.     Ear, nose and throat physician, Dr Scoppa, obtained from the Applicant a history of rhino-sinusitis that started in childhood.  In his report of 25 August 2006, Dr Scoppa stated:

“Mr Gilkinson gives a history of having suffered from symptoms of probable allergic rhinitis for many years prior to joining the Navy.  He states that these pre-existing symptoms flared up from time to time during service….

Dr Scoppa continued:

“the type of generalised severe and widespread sinusitis from which Mr Gilkinson suffers (as seen on his CT scans) is generally accepted to be of unknown origin and occurs in persons with genetic pre-disposition to atopic diseases such as allergic rhinitis and asthma, and Mr Gilkinson appears to fall into this category in view of the history of naso allergies.  It is also well known that atopic persons are more sensitive to the effects of inhalation of irritants and chemicals and that such exposure can cause or contribute to the causation of chronic rhinitis. 

25.     Discussing the Applicant’s Sleep Apnoea, Dr Scoppa stated in evidence that, if the nose was blocked because of rhino-sinusitis, then Sleep Apnoea would be worse during that period. 

26.     Professor Breslin also commented on the Applicant’s Chronic Sinusitis.  He also obtained a history of the Applicant suffering rhinitis most of his life, including as child.  He opined:

“Based on the history there are a number of important facts:-

1.This man has had nasal symptoms prior to joining the Navy and this is evidenced by the many years of nasal stuffiness mentioned in 1968; as he joined the Navy in 1965, this would strong suggest that his nasal symptoms pre-dated joining the Navy.

2.There is no evidence that his nasal symptoms worsened in the Navy as for example in 1976 his nasal examination was normal with no evidence of upper airway obstruction and no evidence of nasal abnormality on examination by an ENT surgeon on the 12 August 1976.”

27.     In a later report dated 7 June 2007, Professor Breslin stated:

“… nonetheless from an obstructive Sleep Apnoea point of view the critical thing is not whether or not he has sinusitis but whether or not he has nasal narrowing and obstruction and the objective evidence of the examination in 1976 was there was no nasal obstruction (in other words, if he had sinusitis it was not causing nasal obstruction at that time at least).  Dr Scoppa is of the view that his chronic rhinitis may have been made worse by chemical and toxins inhaled during operational service.  There is no objective evidence for this, but I am unable to exclude it.  What there is objective evidence for, is that at ENT examination in 1976 there was no evidence of nasal obstruction and no comment about nasal symptoms on discharge medicals.”

28.     Having regard to factor 5(a) of the SoP and the evidence of Professor Breslin, we are satisfied beyond reasonable doubt that, during his Naval service and, in particular, during operational service, the Applicant did not have a chronic obstruction of the upper airways, as opposed to intermittent periods when rhinitis was present.

29.     Factor 5(s) refers to the consumption of alcohol prior to the clinical worsening of Sleep Apnoea.  There is no evidence that the Applicant’s Sleep Apnoea became worse because of alcohol intake.  Professor Breslin pointed out that Sleep Apnoea will be more pronounced after a period of drinking, but the condition itself will not be worse.

30.     Notwithstanding Professor Breslin’s evidence, factor 5(s) allows for a clinical worsening.  However, there is no evidence that the Applicant’s Sleep Apnoea became clinically worse due to his alcohol intake or that the Applicant’s alcohol intake was in anyway referable to his operational service.  His evidence to the Tribunal was that he started to drink alcohol in 1966-1997, whilst aboard HMAS Melbourne.  Then, later at HMAS Cerberus, he regularly drank in the sailors’ canteen.  Whilst onboard HMAS Sydney, there was a beer issue most nights and, when ashore, he would drink to get drunk.  Although he stated that the trips to Vietnam involved “stress” by which he meant a general apprehension, and that it was hot and uncomfortable, we are satisfied beyond reasonable doubt that there was nothing connected with the Applicant’s operational service that caused him to drink more than he would have otherwise done, or to increase his intake of alcohol.  We are, therefore, satisfied beyond reasonable doubt that the facts necessary to support an hypothesis of alcohol caused aggravation of Sleep Apnoea, have been negatived beyond reasonable doubt.

31.     Although we accept that the Applicant does have Sleep Apnoea, we are satisfied, beyond reasonable doubt, that the factual basis of any hypothesis connecting that disease with his operational service has been negatived beyond reasonable doubt, therefore, the decision under review is affirmed.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe

Signed:   [sgd]             .....................................................................................

Mwela Kapapa, Associate

Date/s of Hearing  7 – 9 April 2008
Date of Decision   6 May 2008
Counsel for the Applicant          Mr C Colborne
Solicitor for the Applicant           Legal Aid Commission
Counsel for the Respondent     Mr G Purcell
Solicitor for the Respondent      Department of Veterans’ Affairs