Green and Repatriation Commission (Veterans' entitlements)

[2019] AATA 4615

Green and Repatriation Commission (Veterans' entitlements) [2019] AATA 4615 (8 November 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2018/3172

Re:Gary Green

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:8 November 2019

Place:Brisbane

The decision under review is affirmed.

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

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – disability pension – trigeminal neuropathy – trigeminal neuralgia – whether carcinoma removal caused injury or disease – causal relationship with surgery – reasonable satisfaction – discrepancies in versions of evidence between experts – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Repatriation Commission v Money [2009] FCAFC 11

Repatriation Commission v Smith (1987) 15 FCR 327

Whitworth v Repatriation Commission (2003) 78 ALD 126; [2003] FCA 1530

SECONDARY MATERIALS

Statement of Principles concerning trigeminal neuropathy (No. 80 of 2015), dated 19 June 2015

Statement of Principles concerning trigeminal neuropathy (No. 80 of 2015), Compilation No. 1, Compilation date: 18 September 2017

REASONS FOR DECISION

Senior Member Katter

8 November 2019

APPLICATION

1. The Applicant seeks a review of the determination of the Respondent dated 7 April 2017[1], that the Applicant’s trigeminal neuropathy was not related to defence service[2].

   [1]Exhibit 1, T Documents, T37, pages 115-118, Determination: trigeminal neuropathy not related to service.

   [2]           Exhibit 1, T Documents, T2, page 4, Application for Review of Decision.

   BACKGROUND

2. The Applicant served in the Royal Australian Air Force from 11 January 1967 until 22 February 1992[3].

   [3]           Exhibit 1, T Documents, T3, page 5, Section 37 Statement.

3. The Applicant’s eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) was from 7 December 1972 until 23 February 1992[4].

   [4]           Exhibit 1, T Documents, T37, page 117, Determination: trigeminal neuropathy not related to service;         T Documents, T39, page 123, Veteran Community Details Report.

4. On 16 February 2009 the Applicant had surgery to remove a basal cell carcinoma (“BCC”) from the right temple[5].

   [5]           Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, page 2, paragraph 4.

5. The Respondent accepted on 15 October 2009 that the Applicant has an accepted condition of non-melanotic malignant neoplasm of the skin[6].

   [6]Exhibit 1, T Documents, T39, page 125, Veteran Community Details Report; Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions, page 2, paragraph 3.3.

6. On 27 March 2017[7] the Applicant lodged a claim for disability pension for trigeminal neuropathy, stating in that claim[8]:

   “How do you believe your service caused, contributed to, or aggravated this disability?

   Due to surgery to remove BCC (service related) from right temple area. I was not warned of possible nerve damage and since have not been able to obtain appropriate clinical management.”

   [7]           Exhibit 1, T Documents, T37, page 115, Determination: trigeminal neuropathy not related to service.

   [8]           Exhibit 1, T Documents, T36, page 107, Claim for disability pension for trigeminal neuropathy.

7. On 7 April 2017 a delegate of the Respondent decided that the Applicant’s trigeminal neuropathy was not related to service[9]. The reasons for that decision dated 7 April 2017 stated relevantly that[10]:

   “On 27 March 2017, Mr Green, the veteran, lodged a claim for ‘Trigeminal Neuropathy’. I am satisfied that the appropriate medical diagnosis for the claimed condition is trigeminal neuropathy … For the purposes of determining this claim I find that Mr Green had eligible service as a Member of the Defence Forces during the period 7 December 1972 to 23 February 1992. Under the Act, where there is eligible service, I can only accept the claim if I am satisfied on the balance of probabilities that the claimed condition is related to that service …

   Please note that my decision is based on the relevant Statement of Principles applicable to your condition at the time you lodged your claim, and that the Statement of Principles relied upon to determine your claim may change over time … Mr Green has contended that his trigeminal neuropathy was caused by the            following: Due to surgery to remove BCC from right temple area, I was not warned of possible nerve damage and since have not been able to obtain appropriate            clinical management. I have determined trigeminal neuropathy using Statement of Principles … Instrument number 80 of 2015, which sets out the factors known to contribute to this condition … I have considered all relevant evidence and am reasonably satisfied that trigeminal neuropathy is not related to Mr Green’s eligible service.”

   [9]           Exhibit 1, T Documents, T37, page 115, Determination: trigeminal neuropathy not related to service.

   [10]          Exhibit 1, T Documents, T37, page 117, Determination: trigeminal neuropathy not related to service.

8. The Applicant applied for review to the Veterans’ Review Board on 3 August 2017 of the decision dated 7 April 2017[11]. The Veterans’ Review Board affirmed the decision under review in relation to trigeminal neuropathy on 13 April 2018[12].

   [11]          Exhibit 1, T Documents, T38, pages 119-121, Request for reconsideration.

   [12]          Exhibit 1, T Documents, T41, pages 133-138, Reviewable Decision.

9. The Applicant applied to the Tribunal on 11 June 2018[13].

   [13]          Exhibit 1, T Documents, T2, pages 3-4, Application for Review of Decision.

   ISSUES

10. The issue is whether the trigeminal neuralgia[14] is a disease or injury caused by surgery to the Applicant to remove a defence-caused BCC[15]. That is, whether or not there is a connection between the surgery and the trigeminal neuropathy[16]. The Applicant and Respondent submitted that that issue was the only point of contention, in that there are no factual matters otherwise contested[17]. The Respondent does not dispute that the Applicant suffers from trigeminal neuropathy[18]. 

    [14]The Applicant did not distinguish neuralgia from neuropathy and used those descriptions at various times: see, for example, Transcript P-2, lines 38-42 and P-5, lines 42-46. 

    [15]          Transcript P-2, lines 38-42.

    [16]          Transcript P-5, lines 42-46.

    [17]          Transcript P-2, line 44 and P-5, lines 38-46.

    [18]          Respondent’s Statement of Facts, Issues and Contentions, page 3, paragraph 4.6. 

    THE ACT

11. Section 70 of the Act relevantly states:

    “Eligibility for pension under this Part

    (1) Where: 

    …

    (b)a member of the Forces … is incapacitated from a defence-caused injury or a defence-caused disease;

    the Commonwealth is, subject to this Act, liable to pay:

    …

    (d)in the case of the incapacity of the member – pension by way of compensation to the member; in accordance with this Act.

    …

    (5) For the purposes of this Act … 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 … of the member; … ”

12. Section 5D(1) of the Act defines the following:

    “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).

    incapacity from a defence-caused injury or incapacity from a defence-caused disease has the meaning given by subsection (2).

    incapacity from a war-caused injury or incapacity from a war-caused disease has the meaning given by subsection (2).

    injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

    (a)disease; or

    (b)the aggravation of a physical or mental injury.

    War-caused injury; war-caused disease; defence-caused injury; defence-caused disease

    (2) In this Act, unless the contrary intention appears:

    (a)a reference to the incapacity of a veteran from a war-caused injury or a war-caused disease; or

    (b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68(1)), from a defence-caused injury or a defence-caused disease;

    is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.”

13. The matter is to be decided to “reasonable satisfaction”: s 120(4) of the Act.

14. Section 120B of the Act states:

    “Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

    (1) This section applies to any of the following claims made on or after 1 June 1994:

    …

    (b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.

    Note 1: Subsection 120(4) is relevant to these claims.

    …

    (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 … 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.

    …”

15. There are Statements of Principles concerning trigeminal neuropathy: No. 80 of 2015, dated 19 June 2015 and a later Compilation No. 1, dated 18 September 2017.

    DR TODMAN

16. Dr Donald Todman, a neurologist, gave oral evidence at the Hearing[19].

    [19]          Transcript P-7, lines 4-6.

17. It was Dr Todman’s opinion that the “main triggering factor and cause” of the trigeminal neuropathy was the BCC surgery to the Applicant on 16 February 2009[20]. Dr Todman stated that the Applicant experienced pain in the “distribution of the trigeminal nerve very soon after having the surgery and that surgery was on the same side and would have affected nerve endings pertaining to that nerve. The pain increased over a period of weeks, perhaps up to three months, and [the Applicant] was diagnosed with having a neuralgia, which means a nerve-related pain, applicable to the trigeminal nerve”[21]. The Doctor had the opinion that the pathological pathway was that the surgery disturbed parts of the nerve in the trigeminal nerve distribution; a plausible mechanism by which some irritability in the nerve could develop after such a procedure when the procedure itself involved cutting through the skin and involved the terminal nerve endings of the trigeminal nerve[22]. 

    [20]          Transcript P-7, lines 31-34.

    [21]          Transcript P-7, lines 38-44.

    [22]          Transcript P-8, lines 2-7.

18. Dr Todman referred to a “cerebellar artery abnormality” of the Applicant, identified in an MRI; being very tiny arteries, branches of the superior cerebellar arteries which were close to the nerve entry zone into the brain but more prominent on the right side of the Applicant[23]. Dr Todman stated that the Applicant has had that abnormality for over 60 years and such abnormalities can be an underlying mechanism in the development of trigeminal neuropathy, but that such abnormalities represent a kind of vulnerability in the Applicant’s case, when some other cause, that is the surgery, may be the “triggering” event for it[24].

    [23]          Transcript P-8, lines 14-24.

    [24]          Transcript P-8, lines 28-34.

19. Dr Todman stated that the “starting point” was the close time relationship between the development of symptoms and the surgery, “but also that there is a plausible biological mechanism in this and similar cases”[25]. The Doctor stated that if the surgery had not occurred hypothetically then the cerebellar loop was the likely antecedent cause of the trigeminal neuropathy[26]. Dr Todman stated that the BCC was removed from the right temple and that is in the border zone between the first and second divisions of the trigeminal nerve, involving both division nerve endings: the ophthalmic and maxillary[27]. Dr Todman stated that some injury to the distal branches of the nerve may set up pathways provoking pain that involve the whole nerve and this is well-known and acknowledged by all doctors, so that something of this nature that interferes with the distal ends of the nerve could provoke a problem that affects the whole nerve[28].

    [25]          Transcript P-10, lines 17-20.

    [26]          Transcript P-10, lines 30-32.

    [27]          Transcript P-11, lines 17-24.

    [28]          Transcript P-11, lines 25-37.

20. The Doctor agreed with the proposition that trigeminal neuralgia usually occurs between the fifth and sixth decades of life and is usually unilateral[29].

    [29]          Transcript P-11, line 47 and P-12, lines 1-2.

    DR DU PLESSIS

21. Dr Lodewicus du Plessis, a neurologist, gave oral evidence at the Hearing[30]. Dr du Plessis examined the Applicant on 19 February 2019[31].

    [30]          Transcript P-13, line 45.

    [31]          Transcript P-14, lines 6-7.

22. First, Dr du Plessis stated the BCC surgery was done in the first division, being in the ophthalmic division, with the current symptomatology as recorded for the Applicant being in the maxillary region[32].

    [32]          Transcript P-15, lines 6-12.

23. Secondly, Dr du Plessis further stated that the ‘actual underlying damage or area where the pathology was generated, as identified in the MR angiogram scan, originated in the right, deep in the centre of the head, where the trigeminal nerve exits from the brainstem at the front of the medullary region and that’s where the nerve “gets nipped”’[33]. Dr du Plessis stated that the MRA scan ‘confirmed it on both sides, but it is more significant on the right-hand side where the Applicant has the symptoms’[34].

    [33]          Transcript P-15, lines 13-18.

    [34]           Transcript P-15, lines 23-26.

24. Thirdly, Dr du Plessis stated that he could not find any evidence in any literature he reviewed of trigeminal neuropathy with other superficial injuries to the face[35].  

    [35]          Transcript P-15, lines 28-34.

25. As to the “tiny arteries” identified in the MRA, as referred to by Dr Todman[36], Dr du Plessis stated that they are prominent enough to be seen on the scan[37]. Dr du Plessis stated that the radiologist “confirmed the presence of superior cerebellar arteries extending to the region of the nerve entry route entry zones of the trigeminal nerves bilaterally, but particularly on the right side”[38]. 

    [36]          Transcript P-11, lines 3-4.

    [37]          Transcript P-16, lines 4-22.

    [38]          Transcript P-17, lines 18-23.

26. Dr du Plessis acknowledged that the arteries are a congenital condition and would usually be found from birth[39]. Dr du Plessis stated that as the person gets older, hardening of the vessel becomes a more prominent issue; with the Applicant being 68 years old and the BCC surgery being in 2009, “so the Applicant was already in the age when the hardening of the arteries has commenced … the time interval does not signify that it is definitely linked”[40]. Dr du Plessis further stated that the Applicant was of the age where atherosclerotic changes and hardening of the arteries was occurring and that 92 per cent of those cases that develop with trigeminal neuralgia are connected with those factors[41]. The Doctor stated that the “obvious cause which is more central at the bottom – at the base of the brainstem”[42], with the arteries touching the trigeminal nerve[43].

    [39]          Transcript P-17, lines 24-28.

    [40]          Transcript P-17, lines 42-48 and P-18, lines 1-5.

    [41]          Transcript P-18, lines 5-15.

    [42]          Transcript P-18, lines 15-20.

    [43]          Transcript P-18, line 47.

27. Dr du Plessis acknowledged that the Applicant developed a ‘stabbing’ pain in the area of the scar from the BCC and with medication it became quiescent for a while, but then recurred and developed to incorporate ‘pretty much what had been described as the distribution of the trigeminal nerve, with that occurring in a short time of the surgery’[44].

    [44]          Transcript P-18, lines 27-33.

28. The Doctor stated that after the area of the surgery had healed there was no evidence of any nerve deficit in that area and that he looked for a possible neuroma and/or sensory change and there was no evidence after the surgery[45]. Dr du Plessis further stated that the cause of the trigeminal neuropathy was not in the skin, but was at the trigeminal nerve root area where it exits from the brainstem at the pontocerebellar junction[46]. Further, that there was no ongoing nerve damage there and no clinical indication that the Applicant has any residual neuropathy in the area where the surgery was performed[47].

    [45]          Transcript P-19, lines 20-30.

    [46]          Transcript P-19, lines 10-30.

    [47]          Transcript P-19, lines 20-30.

    CONSIDERATION

29. In Repatriation Commission v Money [2009] FCAFC 11 at [86] per Dowsett J, it was stated that:

    “Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles ‘upholds the contention’ that the disease is, on the balance of probabilities, connected with such service. If that           question is answered in the affirmative, the Commission may proceed to consider whether it is reasonably satisfied as to the relevant causal link contemplated by s 70.”

30. Therefore, there is to be “reasonable satisfaction” as to whether the material before the Tribunal raises a connection between the injury or disease of the Applicant and some particular service rendered.

31. As referred to above, the evidence of Dr du Plessis was that after the BCC surgery had healed there was no evidence of any nerve deficit in that area and that he looked for a possible neuroma and/or sensory change and there was none after the surgery[48]. Dr du Plessis further stated that the actual underlying damage or area where the pathology is being generated, as identified in the MR angiogram scan, originated in the right, deep in the centre of the head where the trigeminal nerve exits from the brainstem at the front of the medullary region[49]. Dr du Plessis stated that the radiologist “confirmed the presence of superior cerebellar arteries extending to the region of the nerve route entry zones of the trigeminal nerves bilaterally, but particularly on the right side”[50]. 

    [48]          Transcript P-19, lines 20-30.

    [49]          Transcript P-15, lines 13-18.

    [50]          Transcript P-17, lines 18-23.

32. As referred to above, Dr Todman had the opinion that the pathological pathway was that the surgery disturbed the parts of the nerve in the trigeminal nerve distribution; a plausible mechanism by which some irritability in the nerve could develop after such a procedure, when the procedure itself involved cutting through the skin and involved the terminal nerve endings of the trigeminal nerve[51]. 

    [51]          Transcript P-8, lines 2-7.

1. In Whitworth v Repatriation Commission (2003) 78 ALD 126; [2003] FCA 1530, Ryan J stated at [14]:

   “It is apparent from that evidence that [the] Dr … could go no further than to express a belief in a ‘real possibility ... ’; that one could only say there was a possible connection ... and that, as there is no clinical evidence supporting or contradicting the theory, it ‘can’t be excluded’. That evidence clearly does not satisfy the test in East as refined in Bull. Merely because a theory cannot be excluded as impossible, fanciful or contrary to the known facts does not entail it is reasonable. There must be some material pointing to it.”

2. In Repatriation Commission v Smith (1987) 15 FCR 327 at 335, Beaumont J stated relevantly:

   “... There is … a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 4 AAR 344; Re Easton and Repatriation Commission (1987) 6 AAR 558; Re Repatriation Commission and Falkner ((1987) 12 ALD 87).”

3. There is a distinction of substance to be drawn between the probability that the MR angiogram scan “confirmed the presence of superior cerebellar arteries extending to the region of the nerve route entry zones of the trigeminal nerves bilaterally, but particularly on the right side”[52], in circumstances where there is no evidence of any nerve deficit in the area of the surgery[53] and the possibility of the surgery disturbing parts of the nerve in the trigeminal nerve distribution[54]. Further, there was no evidence from Dr Todman or otherwise that contradicted the evidence as to the MR angiogram scan[55], where there was no evidence of any nerve deficit, neuroma and/or sensory change in the area of the BCC surgery[56].  

   [52]          Transcript P-17, lines 19-23. 

   [53]          Transcript P-19, lines 20-30. 

   [54]          Transcript P-8, lines 1-7. 

   [55]          Transcript P-17, lines 18-23. 

   [56]          Transcript P-19, lines 20-30. 

4. The evidence therefore does not raise a connection between the Applicant’s trigeminal neuropathy and his defence service. The material before the Tribunal does not raise a connection between the injury or disease of the Applicant and some particular service rendered. The Applicant therefore does not satisfy the requirement of s 120B(3)(a) of the Act and it is therefore unnecessary to further consider the Statement of Principles. The Tribunal finds that the Applicant’s trigeminal neuropathy/neuralgia is not a defence-caused injury or disease for the purposes of s 70 of the Act.

   DECISION

5. The decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

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

Associate

Dated: 8 November 2019

Date of Hearing:	30 September 2019
Counsel for the Applicant:	Mr Anthony Harding
Solicitors for the Applicant:	Terence O'Connor Solicitor
Advocate for the Respondent:	Mr Ben Dube
Solicitors for the Respondent:	Sparke Helmore Lawyers