Harvey and Repatriation Commission
[2008] AATA 829
•17 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 829
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3792
VETERANS APPEALS DIVISION ) Re KATHLEEN HARVEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Rear Admiral A R Horton AO, Member
Dr I Alexander, MemberDate17 September 2008
PlaceSydney
Decision The decision under review is set aside to the extent that the condition of varicose veins is accepted as war caused. The matter is remitted for assessment.
..................[Sgd]........................
Rear Admiral A R Horton AO
Presiding Member
CATCHWORDS
VETERANS AFFAIRS – claim for disabilities arising out of eligible service – world war 2 army service - decision under review relates to various medical conditions – claim for varicose veins only being pursued – evidence supports contention that a Statement of Principles factor has been met – decision in respect of varicose veins set aside
REASONS FOR DECISION
17 September 2008 Rear Admiral A R Horton AO, Member
Dr I Alexander, MemberBACKGROUND
1. Mrs Kathleen Mary Harvey (nee Burcher) (“the Applicant”) served in the Australian Army Medical Women’s Service (“the AAMWS”) from 29 March 1943 to 30 September 1946, this being eligible war service vide section 7 of the Veterans’ Entitlements Act 1986 (“the Act”). In November 2005 she lodged a claim under section 9 of the Act for various medical conditions diagnosed as right and left inguinal hernia, varicose of both legs, osteoarthrosis of both knees and umbilical hernia.
2. The claim for all conditions was refused on 22 February 2006, this decision being affirmed by the Veterans’ Review Board (“the VRB”) on 23 July 2007.
3. Mrs Harvey applied for review of the decision by the Administrative Appeals Tribunal on 13 August 2007. At a hearing before us on 18 August 2008, Mrs Harvey was represented by counsel, Ms Elizabeth Wood. Mr Tim O’Reilly represented the Repatriation Commission. The Tribunal took into evidence the section 37 (T) documents, statements of Facts and Contention by both parties, a report by Dr Peter J Tomlinson, General and Vascular Surgeon, dated 25 March 2008 (Exhibit A2) and the transcript of the VRB hearing of 23 July 2007 (Exhibit A3).
ISSUES
4. As agreed by both parties, the only condition before the Tribunal was that of varicose veins, Mrs Harvey having elected not to pursue the other conditions. The diagnosis of varicose veins is not disputed. As Mrs Harvey had eligible war service, the matter is to be determined under the provisions of section 120(4) of the Act, whereby the standard of proof is that of reasonable satisfaction, such standard of proof also being relevant to the assessment of the rate of any pension. Section 120B(3) is also relevant in that the Tribunal must be reasonably satisfied that the material before it raises a connection between the disease and service where there is in force a Statement of Principles (“SoP”) determined under section 196B by the Repatriation Medical Authority.
5. Both parties agreed that SoP Instrument No 71 of 1998 was relevant to this matter. Ms Wood contended that Mrs Harvey meets Factor 5(b) of the SoP, that is “suffering complete or partial obstruction of a vein draining the affected lower limb at the time of clinical onset of varicose veins of the lower limb”.
EVIDENCE
6. Mrs Harvey joined the AAMWS in March 1943 aged 19 years. After initial training at Ingleburn, she completed training as an Occupational Therapist (“OT”) at 113 Australian General Hospital, Concord, in December 1943. She subsequently served in that capacity until discharged as a Staff Sergeant in September 1946.
7. Mrs Harvey described her health on joining as very good. In elaboration of a statement made in conjunction with her claim (T4 page 20), she described her duties as providing occupational therapy services to patients as well as assisting as necessary in the general provision of services. The latter would involve assistance to nurses and the physical lifting and movement of patients.
8. Occupational therapy duties involved the provision of occupational training to individuals, the setting up and movement of resources such as spinning wheels, chairs, weaving looms, tables and working implements. She described having to carry quite heavy weights, positioning of patients for occupational therapy activities, and much standing and walking as well as squatting and kneeling. She stated that at various time her legs ached. At no stage had she thought it appropriate to seek medical attention. She recalled that her uniform required her to normally wear stockings, but these were not surgical stockings.
9. After service, Mrs Harvey worked as an OT until 1998, then at a childrens’ centre at Mt Druitt until retirement – from paid work – in 2004. In response to Mr O’Reilly, she confirmed that over the years the frequency of work diminished, the last period being one day a week. Mrs Harvey has been attending Dr Frances Knowles for many years. About 5 years ago she was referred to a Dr Harris and subsequently underwent vascular surgery on one leg. She stated that in her view this was not very successful, however she is contemplating surgery to the other leg. No records in respect of the above are available to us.
10. Service records in respect of varicose veins are sparse but explicit, and were not challenged by the Respondent. The entry medical (T3 page 6) makes no reference to varicose veins or any disease or illness that might be associated with such a condition. The Medical Examination Prior to Discharge Form dated 9 September 1946 notes the medical officers comment “mild varicose both legs” and Mrs Harvey’s claim hinges on that confirmation that the condition developed during service.
11. Dr Tomlinson noted in his report that “Mrs Harvey gives no family history of varicose veins”, or deep vein thrombosis.His conclusions were:
Kathleen Harvey did not have varicosities when entering the Armed Forces 3½ years [before this (discharge in 1946)]. I do believe that the onset of the varicose vein occurred from between March 1943 and 3½ years later at the time of discharge from the Armed Forces.
I do believe that her occupation as an occupational therapist would have exacerbated and led to her developing her varicosities.
12. In oral evidence, Dr Tomlinson provided a clear and detailed explanation as to the pathophysiology of varicose veins. He explained that varicose veins generally develop as a consequence of the incompetence of the valves at the junction between the superficial and deep veins of the lower limb, particularly at the sapheno-femoral junction. As a result of this valve incompetence, the distal veins of the lower limb are exposed to repeated abnormal pressure and volume particularly during long periods of standing and during episodes of heavy lifting where there is elevation of intra-abdominal pressure. Dr Tomlinson went on to explain that the effect of this pressure and volume is to create a physiological or functional obstruction of the normal blood flow. Over time this leads to a loss of normal venous smooth muscle tone and elasticity which eventually causes the veins to dilate and become varicose veins.
13. Dr Tomlinson opined that varicose veins occur more commonly in women and that relevant factors included genetic predisposition, pregnancy, thrombosis and occupations, such as nursing and checkout cashiers, being associated with long periods of standing and/or heavy lifting. In response to a question from the Tribunal, Dr Tomlinson commented that in his experience more than 90% of cases of varicose veins of the lower limbs can be attributed to valve incompetence and tend to occur in women who are in their late 20s or early 30s.
CONSIDERATION AND CONCLUSIONS
14. We note that the term varicose veins of the lower limb is defined in Instrument No 71 of 1998 as meaning “dilatation, lengthening and tortuosity of a subcutaneous superficial vein or veins of the lower limb such as the saphenous…”
15. The Respondent submitted that Factor 5(b) of Instrument No 71 was not satisfied as there was no evidence of obstruction of a vein at the time of the clinical onset – which he accepted would have occurred prior to the discharge medical in September 1946 – of the varicose veins of the lower limb.
16. In our view, the Respondent appeared to take a somewhat literal and narrow interpretation of this factor, with a suggestion that the obstruction should be mechanical and identifiable by some form of objective evidence. We believe this approach misconstrues the evidence of Dr Tomlinson and is inconsistent with both the cause and natural history of varicose veins in the lower limb.
17. In simple terms, Mrs Harvey would not have had varicose veins if there had been no functional obstruction of the blood flow from her lower limbs. That is, the criteria in Factor 5(b) had to exist. The evidence of obstruction is that she had varicose veins at the time of her discharge from the army, a fact that is not in dispute. Further, the work that she did as an OT in the AAMWS is clearly consistent with the type of work Dr Tomlinson described as predisposing to varicose veins.
18. We are of the opinion, to our reasonable satisfaction, that the condition of varicose veins of both the left and right legs is connected with the eligible war service of Mrs Harvey, and hence the decision in respect of that disease is set aside, the date of effect being 11 August 2005. The matter is remitted for assessment of the rate.
I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member, and Dr I Alexander, Member
Signed: ...................[Sgd]...........................
Ms R Prasad, AssociateDate of Hearing 18 August 2008
Date of Decision 17 September 2008
Counsel for the Applicant Ms E Wood
Representative for the Applicant Ms A Toliopoulos, Legal Aid Commission
Representative for the Respondent Mr T O'Reilly
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