Hunt and Repatriation Commission (Veterans' entitlements)

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Hunt and Repatriation Commission (Veterans' entitlements) [2016] AATA 554 (29 July 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/6051

Re

Mr Gordon HUNT

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr Conrad Ermert, Member
Date 29 July 2016  
Place Melbourne

The Tribunal affirms the reviewable decision

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

Mr Conrad Ermert, Member

VETERANS AFFAIRS - Operational service - Hereditary Neuropathy with predisposition to Pressure Palsy (HNPP) - Carpal Tunnel Syndrome - whether caused by war-service - whether aggravated by war-service - satisfied beyond reasonable doubt - decision affirmed

Legislation

Veterans' Entitlements Act 1986

Cases

Bull v Repatriation Commission [2001] FCA 1832

Commonwealth Banking Corporation v Raymond William Percival 20 FCR 176

REASONS FOR DECISION

Mr Conrad Ermert, Member

29 July 2016

INTRODUCTION

  1. Mr Gordon Hunt, the Applicant, served in the Australian Army from 21 February 1966 to 20 February 1972.  He rendered operational service in Vietnam from 6 November 1969 to 6 May 1970.  Mr Hunt’s duties in Vietnam were those of a cash office clerk.

  2. On 21 December 2011 Mr Hunt submitted claims to the Repatriation Commission, the Respondent, for medical conditions to be accepted as war-caused disabilities.  The conditions included tomaculous neuropathy, mild gastritis and carpal tunnel syndrome left wrist.  On 14 May 2012 the Respondent rejected the claims.  Mr Hunt applied to the Veterans’ Review Board (VRB) for a review of the Respondent’s decision.  On 9 September 2014 the VRB affirmed the decision. 

  3. On 21 November 2014 Mr Hunt lodged an application for a review of that part of the VRB decision that relates to the condition of tomaculous neuropathy.

    HEARING

  4. Due to  difficulties in arranging for the attendance of the two principal medical witnesses, the hearing was listed on two separate dates, 9 June and 21 June 2016.  Ms Rachel Walsh of Counsel represented Mr Hunt.  Mr Ken Rudge of the Department of Veterans’ Affairs represented the Respondent.  I heard evidence from Mr Hunt, Dr Thomas Kraemer, Consultant Neurologist, and Associate Professor Brian Chambers, Consultant Neurologist.

  5. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

  6. For Mr Hunt I took into evidence the following:

    ·Exhibit A1 – Statement of Gordon Edward Hunt dated 11 September 2015;

    ·Exhibit A2 – Report of Dr Thomas Kraemer dated 1 November 2011;

    ·Exhibit A3 – Report of Dr Thomas Kraemer dated 16 February 2012;

    ·Exhibit A4 – Report MRI Left Wrist of Ballarat MRI dated 17 April 2012;

    ·Exhibit A5 – Report Dr Thomas Kraemer dated 26 April 2012;

    ·Exhibit A6 – Report of Dr Timothy J Day dated 12 July 2012;

    ·Exhibit A7 – Report of Dr Thomas Kraemer dated 31 July 2012;

    ·Exhibit A8 – Report of Professor Garth A Nicholson dated 13 November 2014;

    ·Exhibit A9 – DNA Analysis report by Professor Garth Nicholson dated 13 November 2014;

    ·Exhibit A10 – Report of Dr Thomas Kraemer dated 29 May 2013;

    ·Exhibit A11 – Report of Dr Thomas Kraemer dated 9 March 2016; and

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Details
Case
[2016] AATA 554
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Hunt against a decision of the Veterans Review Board (VRB) which affirmed the Repatriation Commission's decision to deny his claim for war-caused conditions, specifically HNPP (Hereditary Neuropathy with liability to Pressure Palsies) and Carpal Tunnel Syndrome. Mr Hunt had served in Vietnam between March 1969 and May 1970, working as a clerk in the cash office and performing duties that involved extensive use of an adding machine and wearing heavy webbing.

The legal issues before the Tribunal were whether Mr Hunt's HNPP and Carpal Tunnel Syndrome were "war-caused" within the meaning of the *Veterans' Entitlements Act 1986* (the Act). Specifically, the Tribunal had to determine if these conditions arose out of, or were attributable to, his eligible war service, or if they were contributed to in a material degree by, or aggravated by, that service, pursuant to sections 9(1)(b) and 9(1)(e) of the Act. The standard of proof required was that the Commission must be satisfied beyond reasonable doubt that there was no sufficient ground for determining the conditions were war-caused, unless a reasonable hypothesis connecting the conditions with his service was raised by the material before it, as per section 120 of the Act.

The Tribunal considered the evidence presented, including Mr Hunt's own testimony regarding his duties and the onset of his symptoms, and the opinion of Professor Chambers. While Professor Chambers did not believe Mr Hunt's webbing was relevant to his conditions, the Tribunal noted submissions that the use of the adding machine, wearing the webbing, and taking Dapsone could have brought on or aggravated the symptoms of HNPP. However, the Tribunal ultimately found that the material before it did not raise a reasonable hypothesis connecting Mr Hunt's conditions with his operational service.

Consequently, the Tribunal affirmed the reviewable decision of the VRB, finding that Mr Hunt's HNPP and Carpal Tunnel Syndrome were not established as war-caused conditions under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I must determine whether Mr Hunt’s HNPP and Carpal Tunnel Syndrome are war-caused within the meaning of the Act.EVIDENCEMr Hunt Mr Hunt confirmed the following facts contained in his statement dated 11 September 2015:·he served in Vietnam from 6 March 1969 to 6 May 1970;·he was in Nui Dat from November 1969 to March 1970;·he was in Saigon from March to May 1970; and·he was employed as a clerk in the cash office. Mr Hunt stated that, as part of his duties in Vietnam, he used an adding machine. He said the machine had mechanical keys which he had to push hard. He then had to pull a handle with his left hand to enter the transaction. He estimated that he would pull the handle more than 50 times every hour. He said that while he was stationed in Nui Dat he used the adding machine between four and six hours per day. When he was in Saigon he used the adding machine up to eight hours per day. He said he worked seven days per week in both locations. Mr Hunt said he has not used an adding machine since leaving Vietnam. Mr Hunt described the webbing he wore each day on his way to and from his place of work. He said it comprised a waist belt with braces over each shoulder, joined at the back below the neck. Attached to the belt were two water bottles and pouches containing 200 to 300 rounds of ammunition. Mr Hunt said the webbing weighed approximately 10 kilograms. At Nui Dat he would wear it while walking about 200 metres each way. In Saigon he would wear it while travelling in the back of a truck for about half an hour each way. He said he would be wearing the webbing when he jumped off the back of the truck, a height about a metre and a half. He said the webbing was not comfortable. Mr Hunt said he had not worn webbing since leaving Vietnam. When asked whether he experienced symptoms of HNPP while in Vietnam Mr Hunt said he would wake up with the feeling of pins and needles in his hands, mainly his left hand. He said the feeling would last for hours. He first noticed the symptoms in Nui Dat. They occurred infrequently and would gradually go away. He said they later became a permanent symptom. Mr Hunt described two specific incidents of paralysis in his left arm and right leg. The first incident was in May 1970. On waking up his left arm was paralysed. He sought treatment on his first day back from leave. The symptoms gradually improved but then he suffered the second incident in August 1970. This time his right leg was affected as well as his left arm. He had difficulty walking and could not drive the car. He sought treatment from a medical centre. Mr Hunt said he could not relate either incident to any activity. He specifically denied the suggestion in the report of Professor Chambers that he had been binge drinking. He said that on the first occasion he had been staying with his future in-laws and on the second occasion he was travelling at the time. Under cross-examination Mr Hunt corrected his statement regarding the pins and needles sensation saying that the feeling was not “infrequent” but did not occur in a regular pattern. He agreed that he had them before going to Vietnam but they lasted for only minutes. He agreed that he had suffered paralysis in his leg for three days at age seven when he had the measles. He said he had had no similar problems from that time to 1966.

Decision

Reasons for decision

Accordingly, the reviewable decision of the VRB is correct.DECISION The Tribunal affirms the reviewable decision of the VRB.

Ratio Decidendi

Legal Principle Established

Professor Chambers agreed he had heard no history of the webbing worn by Mr Hunt in Vietnam but he did not think it was relevant to Mr Hunt’s conditions. Had there been an effect, he would have expected to see a different type of pressure palsy.TRIBUNAL CONSIDERATION Section 9(1) of the Act states relevantly that an injury suffered by a veteran or a disease contracted by a veteran shall be taken to be war-caused if:(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)The injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…(e)The injury suffered, or disease contracted, by the veteran:(i) Was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service:And, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran; being service rendered after the veteran suffered that injury or contracted that disease; The standard of proof to be applied in the case of operational service is prescribed in section 120(1) of the Act which states relevantly:Where a claim under Part II for a pension in respect of the incapacity from injury or disease of the veteran … relates to the operational service rendered by the veteran, the Commission shall determine that … the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) states relevantly:In applying subsection (1) … the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)That the injury was a war-caused injury … ;(b)That the disease was a war-caused disease …; or(c)…As the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A. In this matter two conditions are in contention: HNPP and Carpal Tunnel Syndrome. I will consider each condition in turn.HNPP Ms Walsh contends that Mr Hunt’s HNPP arose out of or was attributable to his operational service satisfying section 9(1)(b) of the Act. In the alternative, Ms Walsh contends that his HNPP was contributed to in a material degree or was aggravated by his operational service satisfying section 9(1)(e) of the Act. Ms Walsh submits that the evidence points strongly to a reasonable hypothesis connecting the condition with Mr Hunt’s operational service. She refers to the evidence of Dr Kraemer that the use of the adding machine in the way described, wearing the webbing including when jumping off the truck, and taking Dapsone brought on the symptoms of the HNPP disease, thus aggravating the underlying condition.