Hoey and Repatriation Commission
[2006] AATA 775
•11 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 775
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/131
VETERANS' APPEALS DIVISION )
Re NEVILLE HOEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member
Associate Professor Dr B Morley, MemberDate11 September 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review
.........[Sgd].......
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – claim for ischaemic heart disease – description of condition in Statements of Principles – no diagnosis of condition – decision affirmed
Veterans’ Entitlements Act 1986 ss 5D, 9, 14, 120, 120A
Keeley v Repatriation Commission (2001) 60 ALD 401
Repatriation Commission v Gorton (2001) 65 ALD 609
Fogarty v Repatriation Commission (2003) 37 AAR 363
REASONS FOR DECISION
11 September 2006 Mr RG Kenny, Member
Assoc Professor B Morley, Member
Background
1. Neville Hoey (“the applicant”) served in the Royal Australian Navy from 27 August 1965 until 7 May 1980. His service included periods in transit to and from and in South Vietnamese waters. On 9 February 2001, he lodged a claim for acceptance by the Repatriation Commission (“the respondent”) of “ischaemic heart disease” as being related to his service. That claim was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (“the Act”) and, on 30 March 2001, the respondent determined that, although Mr Hoey suffered from chest pain, there was insufficient medical evidence to support a diagnosis of ischaemic heart disease. That decision was affirmed by the Veterans’ Review Board on 19 February 2004 and, on 10 March 2005, Mr Hoey’s application for further review was received by the Administrative Appeals Tribunal (“the Tribunal”).
Hearing
2. Mr Hoey attended the hearing but was not represented. The respondent was represented by Mr J Kelly. Material before the Tribunal included documents (the T documents: exhibit 1) prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.
Issues and Legislation
3. It is common ground that Mr Hoey served in the Royal Australian Navy from 1965 to 1980 and that he completed periods of eligible war service in the form of operational service as those terms are defined in the Act. He also completed a period of defence service from 7 December 1972 until his discharge but no contentions were raised in respect of this part of Mr Hoey’s service. The issues for determination are whether Mr Hoey suffers from ischaemic heart disease such that it meets the definition of disease or injury as those terms are defined in sub-section 5D(1) of the Act which read:
“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.”
4. In the event that ischaemic heart disease is present in Mr Hoey, consideration will be given to the issue of whether any such condition is related to his operational service.
5. The standard of proof for determining diagnostic matters is provided in subsection 120(4) of the Act and this requires that such matters be determined to the Tribunal’s reasonable satisfaction which imports the civil standard of proof: see Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.
6. Subsection 9(1) of the Act provides that a condition will be taken to be war-caused if it resulted from an occurrence that happened when Mr Hoey was rendering operational service or if it arose out of, or was attributable to, any eligible service rendered by him. The standard of proof applicable to that determination is set out in subsection 120(1) of the Act which reads:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
7. The application of that provision is affected by the terms of subsection 120(3) and section 120A of that Act which require that consideration be given to any relevant Statement of Principles that has been published by the Repatriation Medical Authority (“RMA”).
Statement of Principles
8. When Mr Hoey’s initial claim was made, the Statement of Principles for ischaemic heart disease was Instrument No 38 of 1999. Since then, the RMA revoked that Instrument and replaced it with Instrument No 53 of 2003 which has since been amended by Instrument No 9 of 2004. Each provides a meaning for ischaemic heart disease and these are stated in different terms. The earlier Statement of Principles provides that ischaemic heart disease, for the purposes of that Statement of Principles, means:
“a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen which results from coronary atheroma or coronary vasospasm. Ischaemic heart disease may be evidenced by:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) cardiac failure,
attracting ICD-9-CM code 410, 411, 412, 413, 414.0, 414.10 or
414.8.”
9. The later Statement of Principles provides that ischaemic heart disease, for the purposes of that Statement of Principles, means:
“A cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.”
10. Mr Hoey is entitled to the benefit of whichever of these meanings is expressed in the more favourable terms: see Keeley v Repatriation Commission (2001) 60 ALD 401 at 415, 422 and Repatriation Commission v Gorton (2001) 65 ALD 609.
Medical and other Evidence
11. Medical evidence was given at the hearing by Dr Peter Grant, Senior Medical Officer Compensation with the respondent. In addition, Mr Hoey’s treating cardiologist, Dr Richard Ayres, gave evidence by telephone. The following documentation was also in evidence:
·a report, dated 21 October 1998 (exhibit 1 folios 15-16), from consultant physician Dr Frank Ekin;
·reports, dated 14 September 1999 (exhibit 1 folios 17-18), 27 July 2001 (exhibit 1 folios 42-43), and 9 October 2005 (exhibit 4), from cardiologist Dr David Cross;
·a coronary angiography report, dated 8 December 1999 (exhibit 1 folio 19), from Dr David Seaton;
·a report, dated 19 March 2001 (exhibit 1 folio 14), from Dr N S Jones;
·opinions, letters, minutes, and reports, dated 22 May 2001 (exhibit 1 folio 35), 13 July 2001 (exhibit 1 folio 49), 19 July 2001 (exhibit 1 folio 48), 10 August 2001 (exhibit 1 folio 40), 22 June 2006 (exhibit 6) and 22 May 2006 (exhibit 9) from Dr Grant;
·a certificate, dated 14 June 2001 (exhibit 1 folio 53), from general practitioner Dr Riitta Partanen;
·a report, dated 30 July 2001 (exhibit 1 folio 44), from consultant orthopaedic surgeon Dr H J K Khursandi;
·reports, dated 4 August 2003 (exhibit 2) and 22 May 2006 (exhibit 3), from Dr Ayres;
·a myocardial perfusion study report, dated 19 August 2003 (exhibit 5), from Dr E O P Jones; and
·a report, dated 22 February 2006 (exhibit 8), from cardiologist, Associate Professor David Colquhoun.
12. On 19 March 2001 the applicant’s then general practitioner, Dr Jones of Maryborough, advised the respondent that Mr Hoey had first presented to that practice in October 1998 with "chest pains and an irregular heart beat" (exhibit 1 folio 14). For these complaints, he was referred to consultant physician Dr Frank Ekin and, nearly a year later, he was assessed by cardiologist Dr David Cross who arranged his coronary angiography in Royal Brisbane Hospital in December 1999. Subsequently, Dr Jones first saw Mr Hoey in April 2000. Dr Jones recorded that Mr Hoey had "never complained of cardiac symptoms" between April 2000 and March 2001 (exhibit 1 folio 14).
13. When Dr Ekin saw Mr Hoey in October 1998, he noted his complaints of palpitations, slight breathlessness and more recent retrosternal discomfort (exhibit 1, folios 15-16). His physical examination and ECG findings were normal. Holter monitoring revealed "up to 10 minutes of severe interference per hour, but the majority of the 24-hour recording was good". His exercise test was discontinued after six minutes eight seconds because of breathlessness and minor chest discomfort. His blood pressure became elevated, and there was a "horizontal (ECG) ST depression". Dr Ekin concluded that Mr Hoey possibly had “silent (ie asymptomatic) IHD (ischaemic heart disease)”, for which he had risk factors, but that his presenting chest pain was “likely to be musculoskeletal" in origin.
14. Nearly a year later, on 14 September 1999, Dr Cross noted Mr Hoey’s two complaints of chest pain and "irregular pounding in his heart" (exhibit 1 folios 17-18). The latter had improved by his taking the medication atenolol, but was still "troublesome". He had a background history of reflux oesophagitis, the pain of which Mr Hoey said had felt “quite distinct” from his “current pain”. Dr Cross remarked that he also had "a number of musculoskeletal problems". Referring to Dr Ekin’s previous exercise stress test, he was “not convinced” that this was positive. He concluded "on balance I think that the pain is probably not cardiac but agree we need to get to the bottom of matters". Accordingly, he arranged a coronary arteriography on Mr Hoey at Royal Brisbane Hospital. This was performed three months later and was reported by Dr Seaton (exhibit 1 folio 19) to show two left circumflex artery lesions of 10% and 20% narrowing respectively, and two right coronary artery narrowings of 30-40% and 20% stenoses respectively. Dr Seaton concluded that Mr Hoey had “minor coronary artery disease”.
15. On 22 May 2001 Dr Grant (exhibit 1 folio 35) quoted Dr Cross' use of the term "coronary artery disease" to apply "when coronary atheroma has caused sufficient blockage to one or more coronary arteries so as to cause an imbalance between supply and myocardial demand for oxygen". Therefore, Dr Grant opined that Mr Hoey’s coronary angiographic findings in late 1999 were best termed “asymptomatic coronary atheroma” and that it was "incorrect to have used the term coronary artery disease' at that time". However, on 14 June 2001, Mr Hoey’s then general practitioner, Dr Riitta Partanen, also of Maryborough, provided a certificate (exhibit 1 folio 53) diagnosing his “angina/ischaemic heart disease” which required “Sublingual nitro-lingual spray”. To clarify whether Mr Hoey indeed had “clinically significant coronary heart disease on the balance of probabilities”, Dr Grant, in his letter of 13 July 2001 (exhibit 1 folio 49), requested Dr Cross to arrange for Mr Hoey to undergo further exercise testing. In his minute of 19 July 2001 (exhibit 1 folio 48), Dr Grant reiterated his opinion that “objective evaluation to date is not sufficient to confirm the diagnosis of ischaemic heart disease as required by the relevant Statement of Principles”.
16. On 27 July 2001, Dr Cross reviewed Mr Hoey and, as requested by Dr Grant, performed his repeat exercise stress test (exhibit 1 folios 42-43). He first recorded a “variety of chest pains, none of which I think are likely to represent myocardial ischaemia". Although Mr Hoey developed lower left chest pain during this repeat exercise stress test, there were no accompanying ECG changes and, therefore, Dr Cross remarked that this chest pain was "unlikely to represent myocardial ischaemia. He opined:
"... although he undoubtedly has coronary atheroma, he probably does not meet the definition of ischaemic heart disease in the Statement of Principles as he has not suffered myocardial infarction, angina, arrhythmia with ECG evidence of myocardial ischaemia, or cardiac failure as a result of his atheroma."
17. Mr Hoey also was seen on 30 July 2001 by orthopaedic surgeon, Dr Khursandi (exhibit 1 folios 44-47). He concluded that Mr Hoey had cervical spondylosis with limited cervical spinal movements, but no nerve root compression, as well as rotator cuff tendonitis of both shoulders.
18. In his opinion of 10 August 2001 (exhibit 1 folio 40), Dr Grant made the following points:
·Dr Cross’ review of Mr Hoey had shown insufficient coronary atherosclerosis to be considered a disease or injury.
·Mr Hoey described “several different types of chest pain”.
·Dr Cross had made no diagnosis for Mr Hoey’s “either type of chest pain”.
·Mr Hoey had taken voluntary redundancy from Telstra due to chronic fatigue syndrome which seemed to him to be Mr Hoey’s “most likely cause of any ongoing incapacity and disability”.
19. After Mr Hoey moved to Meringandan in 2003, Toowoomba cardiologist, Dr Ayres, reported to his new referring general practitioner, Dr Hopson, after his consultation with him. He noted his previous cardiac history and investigation results, including his coronary angiography findings in December 1999. He observed:
“His symptoms really haven’t altered since then. He has episodes of chest pain/tightness about every two weeks, occasionally radiating to the shoulders. These episodes come on with anxiety and lifting but may also occur when walking uphill. His pains settle with GTN (glyceryl trinitrate) in about 15 minutes. There has been no change in the pattern of his symptoms. He last saw David Cross over two years ago.”
20. Dr Ayres also noted that Mr Hoey’s “other problems” included “a recent TIA (transient ischaemic attack in the cerebrovascular circulation)”. Dr Ayres concluded that Mr Hoey had "known minor coronary artery disease with stable symptoms". He spoke to Mr Hoey about his coronary artery and cerebrovascular circulatory risks by continuing to smoke. He referred Mr Hoey for myocardial perfusion scan using Persantin (Sestamibi) and he indicated to Dr Hopson that, if this scan were abnormal, Mr Hoey then should have a repeat coronary angiography examination.
21. On 19 August 2003, Dr Jones, physician in nuclear medicine, reported Mr Hoey’s myocardial perfusion study (exhibit 5) to show changes supporting "myocardial ischaemia involving the inferoseptal wall on the left ventricle extending from the mid ventricle to the base." No coronary angiography study was then arranged.
22. In his report of 9 October 2005 to Mr Hoey’s then solicitors (exhibit 4), Dr Cross examined the issue of whether Mr Hoey's condition met the definition of ischaemic heart disease as set out in the Statements of Principles referred to above noting that both of them “indicate that ‘ischaemic heart disease’ means a ‘cardiac disability’”. He referred to his report of 27 July 2001, that there "was no good evidence at that time" that Mr Hoey’s then symptoms were related to his coronary artery disease. He reviewed the reports of Dr Ayres (4 August 2003) and Dr Jones (19 August 2003). The latter indicated "an area of heart muscle... starved for blood during exercise... (correlated) with a narrowing in the right coronary artery... with the most severe stenosis at the time of angiography in 1999". He concluded that this scan provided "credibility to the suggestion that Mr Hoey has coronary narrowings of a sufficient degree to impair blood flow to the heart". However, Dr Cross referred to doubts he had in 2001 that Mr Hoey’s described symptoms were due to coronary artery disease and noted that Dr Ayres had agreed with this in 2003. Dr Cross concluded:
"... There is no way to absolutely prove whether chest discomfort suffered by a patient is or is not related to coronary artery disease. This is a decision that can really only be made by an experienced cardiologist taking a history from the patient.... I must also stress that my impression of Mr Hoey's clinical history is based on interviews conducted more than four years ago".
23. On 22 February 2006 (exhibit 8), cardiologist, Associate Professor Colquhoun, reported to the respondent that he had examined Mr Hoey on that day. He had reviewed previous correspondence and reports from Dr Ekin, Dr Cross, and Dr Ayres. He noted that Mr Hoey’s symptoms had continued for the past seven years, having been "a little more frequent" lately. Mr Hoey had undergone a stress echocardiogram test earlier that day, on which Dr Andrew Rainbird had reported "possible ischaemia in the inferior (heart) wall". Dr Colquhoun remarked that, in the past, Mr Hoey had not had "sufficient obstructing coronary disease to cause classic angina". Earlier in his report, Dr Colquhoun stated that, as a rule “70% luminal narrowing is needed for myocardial ischaemia to occur on exercise". He thought that Mr Hoey "may very well have some chest pain due to microvascular ischaemia". He added that Mr Hoey “… was a little anxious and angry regarding his chest pain… and has made the assumption (reasonable for a non-medical person) that, because there is some narrowing (though mild), that his heart arteries are the cause of his chest pains.” Dr Colquhoun noted that Mr Hoey was to be reviewed by Dr Ayres, and suggested possibly repeating his coronary angiography, perhaps followed by a cardiac MRI scan. He concluded his report:
"... The nuclear imaging (myocardial perfusion scan) can give false positive [sic] and the stress echo today with Dr Rainbird also was a little difficult to interpret".
24. On 27 April 2006, Dr Ayres repeated Mr Hoey’s coronary angiogram studies, and, on 22 May 2006 (exhibit 3), he wrote to Dr Peter Grant:
"Although he does have coronary artery disease based on his angiographic findings, the minor degree of coronary artery disease demonstrated is insufficient to explain his symptoms of chest pains. By definition therefore he does not have 'ischaemic heart disease'".
25. On 22 June 2006 (exhibit 6), Dr Grant wrote to the respondent advising of Dr Ayres' findings and conclusions, including that the coronary angiogram "changes are not distinctly different from those of 1999". To that document, Dr Grant appended an extract from the 'Oxford Textbook of Medicine' Volume 2, 3rd Edition, page 2320, the section commencing with the heading "The pathology of angina". The opening paragraph of the first subject, entitled "Stable angina", commences with the statement: "Stable angina is caused by segments of stenosis of more than 50 percent in diameter in one, two, or three of the major coronary arteries". Dr Grant opined that Mr Hoey’s diagnosis should remain "atypical chest pain with no identifiable clinical cause", and that this matter should be dealt with as "chest pain - no incapacity found".
26. In his evidence, Mr Hoey told the Tribunal that he suffered angina pain on average twice a week, relieved by nitrolingual spray. He said that he also was taking the medications Noten, Lipitor, Tritace, Plavix, Kalma, Celebrex, Codeine, and Paracetamol. He confirmed that, about three years ago, he had a "mild stroke" during which he temporarily lost the power of speech. He had stopped driving trucks because of this TIA (ie transient ischaemic attack in the cerebrovascular circulation).
27. Dr Grant, in his evidence, confirmed his view that Mr Hoey clearly has atheroma of his coronary arteries but not ischaemic heart disease as defined by either of the relevant Statements of Principles. On the basis of the information he had received from several cardiologists, and cardiological investigations on Mr Hoey, he considered that Mr Hoey’s chest pain was not due to myocardial ischaemia. During cross examination, Dr Grant was asked the meaning of the term ‘atypical chest pain’, replying that the pattern of the pain is not that of any recognised disease. Dr Grant was also asked to comment on Dr Cross’ remark in his report of 9 October 2005, paragraph 7 (exhibit 4) that Mr Hoey’s “(myocardial perfusion) scan does give some credibility to the suggestion that Mr Hoey has coronary narrowings of a sufficient degree to impair the blood flow to the heart”. Dr Grant replied by referring to the penultimate paragraph in that report, to Dr Cross’ statement:
“Although it is certainly possible that a patient with the degree of coronary atherosclerosis evidenced by Mr Hoey could develop chest discomfort… the vast majority of patients with this degree of disease would not experience symptoms”.
28. When then taken to Dr Jones’ report of his myocardial perfusion scan (exhibit 5), describing mild hypoperfusion, Dr Grant referred to the further observation made by Dr Jones that the ejection fraction of the left ventricle was normal. Therefore, he considered this “mild hypoperfusion” to be a “false positive” result. He was also asked about Dr Ekins’ remark in his report of 21 October 1998 (exhibit 1 folios 15-16) about Mr Hoey possibly having “silent ischaemic heart disease”. Dr Grant referred to his discussion of this with Dr Cross (as recorded in exhibit 1 folio 35) acknowledging that he could not explain the ST segment changes on his stress testing by Dr Ekin. He added that no ischaemic changes were seen on his later cardiac stress test of 27 July 2001.
29. In his evidence, Dr Ayres gave his opinion that Mr Hoey has “minor coronary heart disease”, but that he does not have “ischaemic heart disease” as defined by either of the relevant Statements of Principles. When cross-examined about the significance of the mild hypoperfusion showing on his myocardial perfusion scan, Dr Ayres stated that this examination is of “limited specificity”. He referred to his coronary angiographic findings in Mr Hoey as still constituting only "minor" coronary heart disease. His response to a question from the Tribunal was that he placed greater weight on the findings of Mr Hoey’s coronary angiographic studies than on his myocardial perfusion study.
Consideration - Diagnosis
30. The Tribunal is reasonably satisfied that Mr Hoey suffers chest pain, and that it is relieved by nitrolingual spray. The issue for the Tribunal is whether his chest pain is derived from coronary heart disease. The pertinent evidence available to the tribunal on this question consists of the opinions of Dr Cross, Dr Colquhoun and Dr Ayres; the findings on Mr Hoey's coronary angiogram examinations in 1999 and 2006; and the findings on Mr Hoey's myocardial perfusion scan in 2003.
31. Dr Cross, on 27 July 2001 (exhibit 1 folios 42-43), referred to Mr Hoey’s coronary arteriogram of 1999 (exhibit 1 folio 19) as showing “quite widespread mild coronary atherosclerosis but no focal lesions of more than 50% diameter stenosis”. He stated that, although Mr Hoey "undoubtedly has coronary atheroma, he probably does not meet the definition of ischaemic heart disease in the Statement of Principles as he has not suffered myocardial infarction, angina, arrhythmia with ECG evidence of myocardial ischaemia, or cardiac failure as a result of his atheroma". In exhibit 4 on 9 October 2005, he referred to his opinion of 27 July 2001 “that there was no good evidence at that time that any of Mr Hoey’s described symptoms were related to his coronary artery disease… (but) it is possible that the situation may have changed”. Having then reviewed the reports from Dr Ayres (exhibit 2) and Dr Jones (exhibit 5), he concluded that Mr Hoey's myocardial perfusion scan result, with the findings in his right coronary artery on his coronary angiogram in December 1999, provided "credibility to the suggestion that Mr Hoey has coronary narrowings of a sufficient degree to impair blood flow to the heart". However, he went on to say that “there is no way to absolutely prove whether chest discomfort suffered by a patient is or is not related to coronary artery disease" and that “the vast majority of patients with this degree of disease would not experience symptoms”. In summary, on the basis of the information available to Dr Cross in October 2005, he continues to have doubts that Mr Hoey’s chest pain was attributable to his coronary artery disease.
32. Dr Colquhoun, on 22 February 2006 (exhibit 8), stated that Mr Hoey “certainly in the past did not have sufficient obstructing coronary disease to cause classic angina”. He thought that “he may very well have some chest pain due to microvascular ischaemia”, its response to Nitroglycerine being "suggestive”. He recommended that he have a repeat coronary angiography arranged, ie to evaluate Mr Hoey’s present degree of obstructing (atheromatous) coronary artery disease, at his pending review by his treating Cardiologist Dr Ayres. In short, Dr Colquhoun, although not persuaded, left open the possibility that his coronary artery disease might be causing Mr Hoey’s chest pain, subject to the results of Dr Ayres’ pending review with review coronary angiography. It was following that review of Mr Hoey that Dr Ayres concluded, writing to Dr Grant, and stating to the Tribunal, that Mr Hoey has minor coronary heart disease, but not sufficient to explain his symptoms of chest pain, and therefore not causing ischaemic heart disease as defined in either of the relevant Statements of Principles. He advised the Tribunal that his findings on Mr Hoey’s review coronary angiogram studies of 27 April 2006 indicated this and that he said that he placed greater weight on this result than on that of his myocardial perfusion scan result of 19 August 2003.
33. Accordingly, the Tribunal finds that the consensus view of the three cardiologists, Drs Cross, Colquhoun, and Ayres, and as confirmed and established by Dr Ayres’ review coronary angiogram findings in April this year, is that Mr Hoey’s coronary heart disease, in the words of his treating Cardiologist Dr Ayres, is not sufficient to explain his symptoms of chest pain.
34. The two definitions of ischaemic heart disease in the relevant Statements of Principle for Ischaemic Heart Disease are set out above. For Instrument No. 38 of 1999, the Tribunal determines that, because Mr Hoey’s chest pain is not caused by his mild coronary heart disease, the requirements of the definition in that Instrument are not satisfied. For Instrument No. 53 of 2003 (as amended), the Tribunal determines that, because of the cardiologists’ consensus view that Mr Hoey’s coronary heart disease does not explain his chest pain, and in the absence of any other evidence of it causing any other cardiac disability, the requirements of this Instrument also are not satisfied.
35. The Statements of Principles, as well as referring to atherosclerosis and thrombosis of the coronary arteries causing ischaemic heart disease, mention “vasospasm” of these arteries. In the many specialist and other reports in evidence, there is no evidence of the presence of this phenomenon in Mr Hoey.
36. Mr Hoey may eventually develop ischaemic heart disease, especially if he continues smoking. However, at present there is no diagnosis of ischaemic heart disease as defined in either of the relevant Statements of Principles such that it constitutes a disease or injury in Mr Hoey.
Decision
37. The Tribunal affirms decision under review
Additional comment by Associate Professor Dr B Morley
The two Statements of Principles relevant to ischaemic heart disease make it clear that a diagnosis of coronary heart disease does not necessarily mean that a veteran has ischaemic heart disease. The observation of Dr Colquhoun in exhibit 8 is noted viz that Mr Hoey “has made the assumption (reasonable for a non-medical person) that because there is some narrowing (though mild) that his heart arteries are the cause of his chest pains”. Therefore, it is recommend that the Repatriation Medical Authority, for the sake of the better understanding by veterans of this cause and effect relationship, amend the relevant Statement of Principle include more specific categorisation by which coronary heart disease is to be accepted as causing ischaemic heart disease. Relevant to that recommendation are the following:
·Associate Professor Colquhoun’s opinion that, as a rule, 70% luminal narrowing (of the coronary arteries) is needed for myocardial ischaemia to occur on exercise (exhibit 8);
·Dr Cross’ observation that Mr Hoey’s 1999 coronary arteriogram showed “quite widespread mild coronary atherosclerosis but no focal lesions of more than 50% diameter stenosis” (exhibit 1 folio 42);
·Dr Seaton’s reference to Mr Hoey’s 1999 coronary arteriogram findings of two left circumflex artery lesions of 10% and 20% narrowing respectively, and two right coronary lesions of 30-40% and 20% stenoses respectively (exhibit 1 folio 19); and
·The extract from the ‘Oxford Textbook of Medicine’ 3rd Edition, Volume 2, stating that “Stable angina is caused by segments of stenosis of more than 50 per cent in one, too, or three of the major coronary arteries” (attachment to exhibit 6 by Dr Grant’s).
This may well prove to be an exacting task for the Repatriation Medical Authority. However, such clarification would have substantially expedited the proceedings in this applicant’s case. It could have at least shortened the several years’ duress endured by Mr Hoey in the prosecution of his claim. This is without also taking into account that, as pointed out by the Commission’s advocate, Mr Hoey’s medical progress may not yet have been concluded.
One other provisional recommendation is also made, this to the Department of Veterans’ Affairs. The Commission’s advocate remarked, in his final submission, on the prospect of this applicant eventually developing ischaemic heart disease as defined by the relevant Statements of Principle if he continues smoking. Also, in exhibit 2, his treating cardiologist Dr Ayres, three years ago, warned Mr Hoey of his risks of “developing more significant coronary artery disease by his smoking habit”. In addition, he also pointed out the relevance of his habit to the occurrence of his recent TIA (transient ischaemic attack in his cerebrovascular circulation). With regard to the latter, the role of smoking is accepted in the causation of cerebrovascular accident, and of carotid arterial disease, in the Statements of Principles, respectively, in factor (k) of Instrument No. 53 of 1999 as amended, and in factor 5(d) in Instrument No. 10 of 2003). Put bluntly, Mr Hoey’s smoking habit is his sword of Damocles. No evidence was presented that Mr Hoey has attended any of the Department of Veterans’ Affairs rehabilitation facilities for substance dependency and abuse. Should such be the case, it is recommended that the Department’s staff, in collaboration with Mr Hoey’s treating doctors and Mr Hoey himself, implement the appropriate referral.
I certify that the first 36 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member and Associate Professor Dr B Morley, Member.
Signed: Ben Christoffel
Legal Research Officer
Date/s of Hearing 17 August 2006
Date of Decision 11 September 2006
The Applicant was self represented
For the Respondent Mr J Kelly, Departmental advocate
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