Iliopoulos and Repatriation Commission (Veterans’ entitlements)
[2015] AATA 670
•4 September 2015
Iliopoulos and Repatriation Commission (Veterans’ entitlements) [2015] AATA 670 (4 September 2015)
Division VETERANS' APPEALS DIVISION File Number
2014/2112
Re
George Iliopoulos
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 4 September 2015 Place Melbourne The decision under review is affirmed.
...........................[sgd].............................................
Egon Fice, Senior Member
Catchwords
DEFENCE AND WAR – Veterans’ Entitlements – Reasonable hypothesis test – Statement of Principles – No relevant Statement of Principles – Chronic irritable cough syndrome – Exposure to insecticides – Decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 9, 13, 120, 120A, 196B
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Commissioner for Government Transport v Adamcik (1961) 106 CLR 292
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)
Repatriation Commission v Dunn [2006] FCA 1703 (8 December 2006)
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Webb (1987) 76 ALR 131
Re Farley-Smith and Repatriation Commission (2012) 125 ALD 249
Re Robertson and Repatriation Commission (1998) 50 ALD 668Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262
Secondary Materials
Health Committee, New Zealand Parliament, Inquiry into the Exposure of New Zealand Defence Personnel to Agent Orange and Other Defoliant Chemicals during the Vietnam War and Any Health Effects of that Exposure, and Transcripts of Evidence (2004)
Little, William, H W Fowler and Jessie Coulson, The Shorter Oxford English Dictionary (Oxford University Press, 3rd revised ed, 1983) vol 1
Mordike, Dr John, Insecticide Deceit?: the Truth about Insecticides used at Nui Dat (3 September 2013) <
O’Keefe, Brendan, and F. B. Smith, Medicine at War: Medical Aspects of Australia’s Involvement in Southeast Asia 1950-1972 (Allen & Unwin, 1994)
Repatriation Medical Authority, Statement of Principles concerning Asthma, No. 60 of 2012, 27 August 2012
Repatriation Medical Authority, Statement of Principles concerning Irritant Contact Dermatitis, No. 110 of 2011, 19 August 2011
Taylor (ed), Elizabeth J, Dorland’s Illustrated Medical Dictionary (W.B. Saunders Company, 27th ed, 1988)Thomas (ed), Clayton L., Taber’s Cyclopedic Medical Dictionary (F.A. Davis Company, 17th ed, 1993)
REASONS FOR DECISION
Egon Fice, Senior Member
4 September 2015
Mr George Iliopoulos volunteered to complete National Service, enlisting in the Australian Army on 8 July 1970. He was discharged from the Army on 7 January 1972 after completing operational service in South Vietnam between 12 May 1971 and 21 October 1971.
Mr Iliopoulos injured his right ankle while on operational service in Vietnam and his disability claim for peritendinitis was accepted by the Repatriation Commission on 6 March 1973.
On 5 November 2012 Mr Iliopoulos lodged a further claim for the Disability Pension and for an increase in the Disability Pension. In addition to the peritendinitis in his right ankle, Mr Iliopoulos claimed he suffered from bronchial asthma and skin rashes.
On 16 April 2013 a Delegate of the Repatriation Commission decided that Mr Iliopoulos’ asthma was not related to his military service. The Delegate also determined that there was no medical condition present to answer his claim for skin rashes. Mr Iliopoulos’ claim for an increase in his disability pension was accepted and granted at 10% of the General Rate, effective from 5 November 2012.
Dissatisfied with the Delegate’s decision, Mr Iliopoulos sought review of that decision by the Veterans’ Review Board (VRB). On 1 April 2014 the VRB decided to affirm the decision refusing Mr Iliopoulos’ claim for bronchial asthma and skin rashes. However, it set aside the Delegate’s decision regarding the rate of pension which should be paid to Mr Iliopoulos, determining that he should be paid at 20% of the General Rate from 5 November 2012.
Mr Iliopoulos lodged an application with this Tribunal on 28 April 2014 seeking review of the VRB’s decision to refuse his claim for bronchial asthma and skin rashes, and also for failing to increase his rate of pension beyond 20% of the General Rate.
The issues I am required to determine are:
(a)whether Mr Iliopoulos has been diagnosed with bronchial asthma or, alternatively, irritant-induced asthma (RIIDS) or chronic irritant cough syndrome;
(b)whether there is a Statement of Principles (SOP) which applies to Mr Iliopoulos’ condition however diagnosed;
(c)if there is no SOP which applies to Mr Iliopoulos, whether the material before me points to some facts which support a reasonable hypothesis linking his medical condition to his operational service;
(d)whether Mr Iliopoulos has been diagnosed with a condition described as irritant contact dermatitis;
(e)if the answer to (d) above is in the affirmative, whether he satisfies the SOP dealing with that condition; and
(f)irrespective of whether I find that Mr Iliopoulos’ claimed conditions are war-caused, whether the rate of pension currently paid to Mr Iliopoulos should be increased above 20% of the General Rate.
ELIGIBILITY FOR PENSION
To be eligible for a disability pension a veteran must satisfy the eligibility criteria set out in s. 13 of the Veterans’ Entitlements Act 1986 (VE Act). Relevantly, it provides:
13 Eligibility for pension
(1) Where:
(a)…
(b) a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)…
(d) in the case of the incapacity of the veteran – pension by way of compensation to the veteran;
in accordance with this Act.
The expressions disease and injury are defined in s. 5D(1) of the VE Act as follows:
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.
Section 9 of the VE Act explains the meaning of the terms war-caused injuries or diseases in the following way:
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…
DIAGNOSIS AND CLINICAL ONSET
Prior to commencing the process of determining whether a disease or injury is war-caused, I must first determine the nature of the disease or injury from which Mr Iliopoulos claims he suffers. In making that decision, the standard of proof is that set out in s. 120(4) of the VE Act. It provides:
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
What is meant by the expression reasonable satisfaction was explained by the Full Court of the Federal Court (Beaumont J, with whom Northrop and Spender JJ agreed) in Repatriation Commission v Smith (1987) 15 FCR 327 where it said, at 335:
Even if the Tribunal is not bound by the traditional evidentiary principles, s. 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation.
If further support were needed, the Full Court of the Federal Court (French, Drummond and Carr JJ) in Repatriation Commission v Cooke (1998) 90 FCR 307 said, at 312:
In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s. 120(4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question.
That means I am required to decide the question regarding diagnosis and clinical onset of Mr Iliopoulos’ claimed conditions on the balance of probabilities.
As will become apparent presently, diagnosis in Mr Iliopoulos’ case is problematic. That is so particularly in respect of the claim regarding his persistent cough. It does not depend on attaching a particular medical label to his condition. As the Full Court of the Federal Court (Ryan, Marshall and Conti JJ) said in Repatriation Commission v Budworth (2001) 116 FCR 200 at 207 – 208:
This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label “Post Traumatic Stress Disorder”, may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s. 120(1) as qualified by s. 120(3).
The meaning of the expression clinical onset is not defined in the VE Act. The Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 (Robertson) referred to the evidence of two medical professionals, Professor Pitt and Dr King, regarding the meaning of the expression. Professor Pitt said, at 669 [20]:
Its general use in medicine is to indicate the ability to diagnose an abnormality using basic clinical tools which mean tools that are readily available to the medical practitioner. This would for instance include a history and examination, an electrocardiogram and also straightforward investigations such as a chest X-ray and even including more high technological procedures such as coronary angiography, CT scanning or magnetic resonance imaging.
Dr King said that the use of the word clinical together with onset implies something that a doctor can identify as the start of signs or symptoms of the disease process. He said, at 670 [22]:
Clinical onset I think is a medical concept of when a doctor or a patient becomes aware that they have a problem so the clinical onset, as I have said here, may be the symptoms or it may be that we have found that the patient has an abnormality on a cardiograph. I think perhaps a good example is the patient who is perfectly well and comes in and you find that they have high blood pressure, even though they have got no symptoms of it, the clinical onset of their high blood pressure is when the doctor discovers it, although they may have had it for years and years and years before.
The Tribunal summed up the evidence and said, at 670 [23]:
On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The meaning of the expression clinical onset as stated by the Tribunal in Robertson’s case was apparently accepted by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002) and by Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690.
Bronchial asthma claim
Mr Iliopoulos described one of his disabilities on his claim for Disability Pension as bronchial asthma. Dr Gregory Ward, Mr Iliopoulos’ General Practitioner, simply described his clinical diagnosis as cough, dyspnea. Dyspnea is defined in Dorland’s Illustrated Medical Dictionary, 27th edition as: difficult or laboured breathing. On his Claim Form, Mr Iliopoulos described the signs and symptoms as: uncontrolled coughing, shortness of breath, trouble doing anything physical, dizziness.
In a written statement of evidence provided by Mr Iliopoulos to the Tribunal which he signed on 28 April 2014, he said that he developed a cough immediately following his return to Australia at the end of his tour in Vietnam. He said he experienced an irritating cough which he believed related to exposure to cold air. He also said that frequently the cough developed into a fit which caused him to become incapacitated. Significantly, he said: I do not suffer breathlessness except as a consequence of coughing. In a further written statement which Mr Iliopoulos made on 25 February 2015, Mr Iliopoulos said that during his service in South Vietnam, when he was based at Nui Dat, there was regular spraying of vegetation with insecticides and pesticides. He also previously claimed that he was exposed to herbicides and particularly Agent Orange. Mr Iliopoulos said he suffered some coughing in Vietnam which was sporadic and put it down to head-colds. He did not pay much attention to the problem at that time.
Associate Professor Peter W Holmes, a respiratory and sleep disorders physician, examined Mr Iliopoulos and provided a report dated 5 July 2013. According to Dr Holmes, he had been asked for an opinion regarding a definite diagnosis of Mr Iliopoulos and his long-standing chronic persistent cough. Professor Holmes made the following findings:
·Mr Iliopoulos’ cough was long-standing and dated back to his return to Australia following service in South Vietnam;
·Mr Iliopoulos had tried many therapies over the years but the only modifying medication from which he received benefit was Durotuss. He received no relief from the standard asthma therapies of Ventolin and the asthma preventer Seretide;
·two sets of well performed lung function tests (done on 26 November 2012 and 1 July 2013) disclosed no evidence of airflow obstruction with no bronchodilator response and a normal diffusing capacity;
·Mr Iliopoulos’ cough was non-productive and has troubled him virtually every day and can wake him up from sleep at night;
·associated with his cough, Mr Iliopoulos gave a history of long-standing gastro-oesophageal reflux particularly after eating bread;
·Mr Iliopoulos did not seem to have any significant upper respiratory tract contribution to the cough nor did Professor Holmes notice any nasal obstruction, nose blowing or post nasal drip;
·the diagnosis of asthma was made as an explanation for his chronic persistent cough even though there was no subjective evidence to support a diagnosis of asthma. His family has no atopic disease and he had no hay fever or eczema;
·Mr Iliopoulos could not recall any foreign body inhalation;
·Mr Iliopoulos’ BMI was 37.4. There were no wheezes or crackles in either lung field. His throat revealed a narrow hypopharynx and he was known to snore at night so the possibility of obstructive sleep apnoea should be entertained; and
·on the information before him, Professor Holmes could not substantiate a diagnosis of asthma.
Mr Iliopoulos’ respiratory function analysis conducted by Eastern Respiratory Service on 26 November 2012 reported normal spirometry with no change after bronchodilator. Gas transfer was normal.
Professor Holmes provided a second report dated 10 July 2014 which was taken into evidence. He was asked by lawyers then acting for Mr Iliopoulos to determine whether there was a reasonable hypothesis connecting Mr Iliopoulos’ claimed condition with his service in Vietnam.
Professor Holmes said that the issue he had with the correspondence supplied to him was the assumption that Mr Iliopoulos had asthma. He said lung function tests performed on several occasions had not confirmed this diagnosis and therefore there would need to be an Aridol Bronchial Provocation Test performed in a Respiratory Laboratory to determine whether there was any increase in bronchial sensitivity (hyper reactivity) consistent with the diagnosis of asthma.
Professor Holmes was of the opinion that Mr Iliopoulos appeared to have a chronic refractory cough which had been present for many years. He said that only about 20% of patients with chronic refractory cough have an underlying problem identified. The remainder fell into a group known as refractory cough or cough irritation cough. Professor Holmes also said that one of the problems which arose in this case was that there was no premonitory event documented in Vietnam suggesting the cough arose as a direct result of chemicals Mr Iliopoulos encountered during his operational service.
Mr Iliopoulos was also examined by Dr Jonathan Burdon, a respiratory physician, on 7 August 2014. He diagnosed Mr Iliopoulos as suffering from a chronic persistent cough of unknown aetiology. Dr Burdon explained that the diagnosis was unclear. He said that Mr Iliopoulos’ symptoms had been thought to be caused by a number of different conditions, including asthma variants chronic reactive airways dysfunction syndrome (RADS) and chronic reactive upper airways syndrome (RUADS). He said asthma had been ruled out by careful lung function testing and that gastro-oesophageal reflux was unlikely because of lack of current symptoms. In fact, Dr Burdon’s opinion that gastro-oesophageal reflux was unlikely proved to be correct. Mr Iliopoulos was examined by a gastroenterologist, Dr Andrew Jakobovits, on 9 October 2014. Following the taking of an extensive history and examination, Dr Jakobovits determined Mr Iliopoulos did not have gastro-oesophageal reflux and therefore his cough was not related to it.
Dr Burdon did pose another possibility for the cause of Mr Iliopoulos’ persistent cough which he described as irritant-induced asthma (RIIDS). He explained this was a variant of RADS, in fact a low-level form of RADS said to occur after repeated moderate or high level exposures as opposed to a single massive exposure to an irritant as in RADS. Dr Burdon said it was possible that Mr Iliopoulos suffered from RIIDS.
Dr Burdon provided a supplementary report dated 8 September 2014. It appears he was asked whether Mr Iliopoulos’ condition fell within the SOP dealing with asthma which included RADS. The SOP, No. 60 of 2012, defines RADS as an asthma-like condition satisfying a number of criteria. Of particular relevance to Mr Iliopoulos’ case is the reference to onset of symptoms after a single exposure incident or accident and inhalation of very high concentrations of a substance with irritant properties. In addition, the definition requires the onset of symptoms within 24 hours after the acute exposure, with persistence of symptoms for at least three months. Dr Burdon said that in his opinion, Mr Iliopoulos’ situation did not strictly speaking fall within the category of RADS. He nevertheless repeated that RIIDS is a variant of RADS, being regarded as a low-level form of that disease, following low-level exposures from over a period of time with symptoms which occur subsequently. He also based his opinion on Mr Iliopoulos telling him that he had been exposed to insecticides and defoliants such as Agent Orange while in Vietnam. Dr Burdon accepted that those toxic substances were responsible for his clinical condition.
In a further report dated 8 May 2015, Professor Holmes responded to the reports prepared by Dr Burdon. He first noted that the terminology RIIDS, RADS and RUDS were outdated and never widely used in Australia. He said that RIIDS was used to describe the development of asthma as a result of a single toxic irritant exposure such as a swimming pool chemical. One needed to document the exposure with the development of symptoms and that had not occurred in Mr Iliopoulos’ case. Professor Holmes said that RADS was used to describe asthma related to ongoing irritant exposure in the workplace. He noted that once again, the exposure and subsequent development of symptoms needed to be synchronous and there was no evidence for asthma in Mr Iliopoulos’ case.
Importantly, Professor Holmes pointed out that diagnosis of asthma in Mr Iliopoulos’ case was made as an explanation for his chronic persistent cough. There was no subjective evidence to support a diagnosis of asthma in his case. Significantly, Mr Iliopoulos did not report any breathlessness. He then said:
I think Dr Burdon and I have similar thoughts about this situation but are simply using different terms to describe the fact that this gentleman has Chronic Irritable Cough Syndrome.
In his oral evidence in chief, Dr Burdon agreed that Mr Iliopoulos did not meet the definition describing RADS in the SOP for asthma. However, he maintained that Mr Iliopoulos may have what was commonly described as RIIDS. That is, lower exposure to an irritant over a period of time. Dr Burdon also agreed that Mr Iliopoulos’ condition could properly be described as Chronic Irritable Cough Syndrome. He effectively agreed with Professor Holmes that Mr Iliopoulos did not have asthma particularly as provocative tests for that disease were negative. However, and although this appeared to be somewhat equivocal, in cross-examination Dr Burdon agreed that in his opinion Mr Iliopoulos had RIIDS which was in the asthma spectrum despite the fact that he did not have asthma in the form commonly referred to.
In my opinion, the evidence of Professor Holmes and Dr Burdon clearly points to Mr Iliopoulos having a chronic dry cough condition of uncertain aetiology. What also appears quite clearly from the evidence is that Mr Iliopoulos does not have asthma as that condition is defined in the SOP. In particular, Mr Iliopoulos did not disclose symptoms of wheezing, breathlessness, chest tightness and coughing. In fact, although Mr Iliopoulos said that he became breathless, that was in the context of having a coughing fit. It was the coughing which made him breathless rather than him experiencing breathlessness which caused coughing. Furthermore, the respiratory function tests conducted by Eastern Respiratory Service (Dr P Fogarty) on 26 November 2012 disclosed normal spirometry with no change after bronchodilator. That test strongly points to Mr Iliopoulos not having asthma. Also, Mr Iliopoulos does not meet the criteria for RADS set out in the SOP. Neither doctor diagnosed RADS. Although Dr Burdon described Mr Iliopoulos’ condition as RIIDS, and Professor Holmes suggested that terminology was now outdated, both medical professionals agreed that Mr Iliopoulos suffered from a chronic cough. In fact, it is safe to say that Dr Burdon would not disagree with the diagnosis of Chronic Irritable Cough Syndrome. In his evidence in chief Dr Burdon said the condition RIIDS and Chronic Irritable Cough Syndrome overlapped. Accordingly, I find, on the balance of probabilities, that the correct diagnosis of Mr Iliopoulos’ medical condition is Chronic Irritable Cough Syndrome. He does not have asthma.
As for the date of clinical onset of this condition, Mr Iliopoulos said in evidence that it occurred within months after his return from operational duty in South Vietnam. Mr K Rudge, an advocate for the Repatriation Commission, referred to an entry on a medical attendance and treatment card made while Mr Iliopoulos was at 2 Recruit Training Battalion (RTB) on 14 July 1970, that is, prior to his posting to South Vietnam. The entry simply states: Also dry cough 3/7. When asked about this entry in cross-examination, Mr Iliopoulos said that he didn’t know the basis for the cough, but thought it could have simply been that he had a cold. Mr Rudge also referred to a Medical History Sheet which is signed by Mr Iliopoulos on 19 July 1973 with the entry stated: Chest 4/12 ago – NAD. That document also contains a report following Physical Examination which describes his chest/ventilation as: Good.
Mr Iliopoulos lodged a claim for medical treatment and war pension which is dated 5 June 1973. Mr Iliopoulos made no mention of his dry cough problem on that application. In the course of his cross-examination, Mr Iliopoulos said that he did not have the cough at that time. He said that it became a problem in 1974 – 1975. His pre-discharge medical examination done on 30 November 1971 records his chest and lungs as being normal. In cross-examination Mr Iliopoulos said that he treated any cough that he had prior to discharge as being the result of a cold.
In his witness statement dated 25 February 2015 Mr Iliopoulos stated that following his return to Australia, his mother noticed and informed him that he had been coughing all night. He said he relieved the symptoms by sucking lozenges and taking cough medicine. Mr Iliopoulos also said that his initial general practitioner, Dr Barker, sent him off to have tests to ascertain what the matter was as he suspected Mr Iliopoulos was allergic to pollen. However, Dr Barker could not diagnose his condition and apparently he was sent to a number of centres for x-rays and other tests without a conclusive diagnosis.
In his earlier witness statement dated 28 April 2014, Mr Iliopoulos said that Dr G Ward had been treating him since about 2002. He took over the practice of Mr Iliopoulos’ previous general practitioner, Dr Barker. Dr Ward diagnosed his symptoms as asthma.
Applying what was said by the Tribunal in Robertson, it seems to me that Mr Iliopoulos became aware of his chronic cough condition in about 1974/1975. His evidence was that he consulted Dr Barker, but despite x-rays and further tests, no conclusive diagnosis was made. This is despite the fact that he was aware of symptoms which should have enabled a doctor to say a disease was present at the time, even if that disease could not be identified. In those circumstances, I find, on the balance of probabilities, that the clinical onset of Mr Iliopoulos’ Chronic Irritable Cough Syndrome was in 1974/1975.
Skin rash
In his witness statement dated 28 April 2014 Mr Iliopoulos claimed dermatitis affected his right leg. He said he suffered no dermatological problems to his right leg until immediately following his return to Australia from South Vietnam.
Mr Iliopoulos’ pre-discharge medical examination record records his skin condition as being normal. He made no mention of a skin condition in his claim made on 5 June 1973 and there is no record of such a condition in his medical history sheet which he dated
19 July 1973. There is a reference to ring worm said to have occurred on 18 May 1972 in his claim for medical treatment and war pension dated 5 June 1973. It is unclear whether this is also a reference to his skin condition.Mr Iliopoulos was examined by Dr Peter A Berger, a dermatologist, on or about 13 August 2013. According to Dr Berger, Mr Iliopoulos said he had an itchy right lower leg which, as a consequence, he scratches and small ulcers appear from time to time. He described no past personal or family history of eczema or any other skin condition or allergy.
On examination, Dr Berger recorded that both legs were basically similar. There was no overt evidence of dermatitis or any other significant skin problems. Dr Berger said Mr Iliopoulos’ skin was certainly dry but at that time, it being winter, this was to be expected. Dr Berger recorded that the skin on Mr Iliopoulos’ right lower leg was fairly dry and he had one small healing ulcer which was consistent with an excoriation. He also had a few small areas of post inflammatory hyperpigmentation.
In a supplementary report dated 17 October 2014 Dr Berger referred to the diagnosis of ringworm explaining that it referred to a fungal (dermatophyte) infection of the skin. Dr Berger explained that eczema often presents with discoid or ring-like lesions very similar to this fungal infection. He concluded that Mr Iliopoulos suffered with what is termed asteatosis or extreme dryness of the skin. As the skin is itchy, Mr Iliopoulos scratched it and developed small ulcers.
Dr Berger diagnosed Mr Iliopoulos with a neurodermatitis/asteatosis, probably related to stress although he believed it was most unlikely it was related to Mr Iliopoulos’ army service. He also said that after 40 years of having this condition, it had become a habit (I believe a reference to scratching the area with his hand) and that it would be difficult to him to overcome.
There being no evidence to the contrary, I find, on the balance of probabilities, that Mr Iliopoulos has neurodermatitis/asteatosis in both of his legs.
The only evidence of onset of this disease was Mr Iliopoulos’ evidence that he noticed the skin condition after returning from his operational service in South Vietnam. In fact, Mr Iliopoulos’ evidence was that he noticed the condition in the right lower leg but made no reference to his left leg. However, given that Dr Berger found that both his legs were basically similar, it is likely that he had dry skin problems in both legs which commenced some time shortly after his return from operational service. Accordingly, on the balance of probabilities, I find Mr Iliopoulos’ clinical onset of neurodermatitis occurred in about 1974 or 1975.
WERE MR ILIOPOULOS’ MEDICAL CONDITIONS WAR-CAUSED
Mr D De Marchi, who appeared on behalf of Mr Iliopoulos, submitted that the hypothesis connecting Mr Iliopoulos’ Chronic Irritable Cough Syndrome and his neurodermatitis/asteatosis with his operational service was his exposure to herbicides and insecticides while based at Nui Dat between May 1971 and October 1971. There was no issue about the fact that the material before me points to a hypothesis linking Mr Iliopoulos’ operational service with his claimed medical conditions.
I had in evidence before me an extract from the text Medicine at War by Brendan G O’Keefe with FB Smith dealing with the health debate. That text is said to be the third volume of the official history of Australia’s involvement in South East Asian conflicts from 1948 – 1975. The third volume covers the medical aspects of Australia's involvement in Southeast Asian conflicts from 1950 – 1972. The authors describe, in some detail, the use of Agent Orange as well as a number of other herbicides and insecticides in South Vietnam. The authors state, at 286:
Agents Orange, White and Blue were aerially sprayed by the Americans and the Republic of Vietnam forces beyond the areas of allied bases. At the perimeters of the Australian camps the grasses and shrubs were attacked with other chemicals by hand sprays or occasionally from helicopters. Before April 1967 the standard weedkiller was borate chlorate, a mixture of sodium borate and sodium chlorate. Around 6850 pounds of it had been consumed in Vietnam, mainly at Nui Dat, between September 1966 and September 1967 and a further 350 pounds between that date and January 1971 (emphasis added).
As for the spraying of insecticides, the authors state, at 287 – 288:
Ground level ‘fogging’ of huts and tents with malathion in distillate sprayed from a tank on a truck or from backpacks occurred about twice weekly at Nui Dat and Vung Tau and twice daily at fire support bases. Spraying was less intense during the dry months.… DDT, in kerosene, was sprayed around tents and buildings to stop fleas and was used in conjunction with rat baits. Lindane, chlordane and diazinon were regularly applied around buildings and under floors to kill termites and spiders.
According to the authors, the authoritative record of large scale aerial spraying in Operation Ranch Hand of herbicides indicates the spraying in Phuoc Tuy province, where Nui Dat is situated, ceased in 1968 (pages 306 – 308). Furthermore, and significantly for the purposes of this case, the authors state that Agent Orange was banned in Vietnam in April 1970; that the US authorities finally ended all herbicide spraying in February 1971 and that other allied herbicide applications stopped in that month (page 288).
However, the use of insecticides was more widespread and its effect more immediate. The authors state, at 313:
Malathion had a nasty smell and often caused short-term headaches and nausea. But experience of twenty years’ heavy spraying programs in Africa with no recorded long-term ill effects convinced Professor Holmstedt that malathion was safe. DDT was only mildly toxic to humans but it did accumulate in animal fats and through the food chain. Its real toxicity, Holmstedt remarked, came from the kerosene used as its solvent. Prolonged inhalation could cause pneumonitis, an incurable inflammation of the lungs, which could be fatal. No case of pneumonitis was recorded among veterans.
I also had in evidence a paper titled Insecticide deceit?: The truth about insecticides used at Nui Dat by Dr John Mordike. Dr Mordike distinguished knockdown insecticides from residual insecticides. He explained that to be effective, residual insecticides required a high degree of toxicity and needed to be persistent, that is, long-lasting (page 3). He said that all area spraying and fogging at Nui Dat was executed with residual insecticides alone. The residual insecticides used by the army in Vietnam included dieldrin, chlordane, lindane, diazinon, DDT and malathion. All of these substances are toxic to varying degrees, the first three being extremely toxic.
Dr Mordike reported that in the wet season of 1971 at Nui Dat, extensive residual insecticide spraying was conducted (pages 4 – 5). He said, at page 5:
Veterans who served at Nui Dat in 1971 recall that, each week, the aerial spraying was executed by Iroquois helicopters from 9 Squadron RAAF. Documents show that the helicopter spraying commenced on 25 May 1971.
My research has revealed that the documented medical advice given to the Commander 1 ATF, like the Commander’s subsequent Routine Order, failed to specify a particular insecticide to be used in the aerial and ground spraying or fogging dispersal campaign. The medical advice simply stated that the class of Residual Insecticides was to be used in both aerial and ground dispersal. The lack of specific advice opened the door for the use of dangerous insecticides.
Following completion of the hearing, I allowed Mr De Marchi to lodge further materials and to make written submissions about the use of herbicides and insecticides in Vietnam. Mr K Rudge, legal advocate with the Department of Veterans’ Affairs, did not object to the additional material. Mr De Marchi lodged the following materials:
·report by the Health Committee, New Zealand Parliament, titled Inquiry into the Exposure of New Zealand Defence Personnel to Agent Orange and Other Defoliant Chemicals during the Vietnam War and Any Health Effects of that Exposure, and Transcripts of Evidence (2004);
·untitled, undated document dealing with the specifications for the Fairchild C – 123 Provider Transport Aircraft;
·article by Susan Hammond and Charles Bailey titled Frequently Asked Questions About Agent Orange/Dioxin;
·article titled Lockheed C – 130 Hercules Tactical Transport (1956);
·Order Paper and Questions in the New Zealand Parliament (2003) regarding the quantities of chemical defoliant used in the province where New Zealand Army units operated during their involvement in the Vietnam war;
·article titled Chlorine Gone Wild dealing with Agent Orange, undated.
There are a number of problems with the additional articles referred to by Mr De Marchi. The Report of the Health Committee contains selective extracts from evidence given by New Zealand veterans. While those veterans refer to being sprayed with defoliant in Phuoc Tuy province, there is no mention of Nui Dat. Furthermore, the veterans do not refer to any dates when that spraying took place. One of the veterans refers to his tour of duty between July 1970 and May 1971 (page 53). However Mr Iliopoulos only arrived in South Vietnam in May 1971. The article does not mention any spraying taking place in 1971. The evidence given by the veterans refers to being sprayed by American C123 aircraft flying in close formation at about 200 feet altitude. The problem is that the official and authoritative record of aerial spraying of herbicides indicates there were no herbicide spraying flights recorded over Phuoc Tuy Province after 30 June 1968 and certainly the last spraying flight which may have involved any Australian soldiers was on 20 September 1969 (Medicine at War, page 307). Only one veteran reported ground spraying taking place in late July 1970 (page 178). His evidence does not disclose where that spraying took place.
The problem with evidence given by veterans to the New Zealand Parliament is that the statements made are self-serving. There is a serious problem with such statements in the very emotional atmosphere of the debate regarding the effect of herbicides on veterans in the course of the Vietnam War. As Brendan O‘Keefe states in Medicine at War, Agents Orange, White and Blue were aerially sprayed by the Americans and the Republic of Vietnam forces beyond the areas of allied bases. At the perimeters of the Australian camps the grasses and shrubs were attacked with other chemicals by hand sprays or occasionally from helicopters (page 286).
A Royal Commission on Agent Orange was established by the Labour Government in May 1983 (pages 298 and 301). The Commission was chaired by Justice Phillip Evatt. There were a number of serious problems with the evidence given by veterans at the Royal Commission. Medicine at War outlines some of those including a veteran who swore he had flown helicopter crop destruction missions in 1966 – 1967. He could not detail the dates of these missions and then admitted that he could only vaguely recall seeing some drums with orange bands which he admitted he had never used or loaded onto his aircraft (page 308). Another veteran produced photographs purporting to show before and after effects of Agent Orange on rubber trees at Nui Dat. He was found to have altered the dates stamped on the mounts to fit the dates of his allegations and he did not pursue that line of evidence. Another veteran who was based at Nui Dat in 1969 – 1970 said he had indiscriminately mixed Agents Orange, White and Pink, reglone and Hyvar as herbicides for hand spraying of the perimeter zone. He also claimed to have placed drums of herbicide in crop areas which were then sprayed with petrol and diesel and blown up. Although such an explosion would have involved significant organisation and been sufficiently spectacular to have attracted attention, no evidence was available to corroborate those assertions. There was also evidence from so-called experts and one in particular, Mr John Evans, had set himself up as an organiser and expert witness in chemical tort cases. Although he claimed that his previous work at CSIRO dealt with Agent Orange and in particular dioxins, this claim was false and he had never seen Agent Orange. He had never experimented with any of those substances or published a paper about them despite his claims to have done so (pages 310 – 311).
In his written submissions, Mr De Marchi referred extensively to the report from Dr Mordike. He submitted that Dr Mordike’s article is evidence that the Commander of the 1st Australian Task Force ordered ground and aerial spraying of residual insecticides and herbicides on and over Nui Dat on 15 May 1971. With respect to Mr De Marchi, that submission is both wrong and misleading. In fact, because it is repeated several times in his submissions, I am concerned that Mr De Marchi may have attempted to mislead the Tribunal. Dr Mordike’s article is about the use of insecticides at Nui Dat. That is plain enough from its title. The Routine Order issued by the Commander of 1 ATF on 15 May 1971 clearly states that the subject matter was: Medical – Prevention of Insect-Borne Diseases. Mr De Marchi stated in his submission (emphasis added):
In his report, Dr Mordike refers to a formally published Australian Army order authored by Brigadier B.A. McDonnell, the Commander of 1st Australian Task Force in Nui Dat. According to Dr Mordike, the Order, entitled “Routine Order Part 1, Serial 28, Number 111” ordered ground and aerial spraying of residual insecticides and herbicides on and over Nui Dat on 15 May 1971, meaning that spraying must have occurred after that day, and indeed at the time the applicant was present.
As is clear from the title to Dr Mordike’s article, he was concerned only with the spraying of insecticides, not herbicides. His article says this about the Order referred to by Mr De Marchi (page 5):
In the introductory paragraph, the Order explained that insect-borne diseases had caused high manpower loss in previous wet seasons and, therefore, a coordinated campaign had been designed for 1971 to combat the insect threat. Spraying insecticide from Australian aircraft was to be the centrepiece of the campaign. In previous years, US fixed-wing aircraft had sprayed insecticide over Nui Dat.
There is no mention whatsoever of the spraying of herbicides. In that respect,
Mr De Marchi’s written submission is wrong and misleading. Dioxin, which is found in Agent Orange, is a by-product which results from the production of a herbicide, not an insecticide. There was nothing in all of the material before me which supported Mr De Marchi’s claim that Agent Orange was sprayed around the perimeter of Nui Dat during the period when Mr Iliopoulos was based there. In fact, as I have stated above at [50], allied forces herbicide applications stopped in February 1971. Although Mr Iliopoulos’ evidence was that he observed large aircraft spraying over the Nui Dat base, he did not identify the substance which was being sprayed.
Furthermore, Mr De Marchi submitted that Mr Iliopoulos could have been affected by herbicide spraying which had occurred at Nui Dat prior to his arrival in Vietnam. He referred to the article, Chlorine Gone Wild in which it is stated that the half-life of dioxin varies depending on where it is found. That article states that in surface soil which has been fully exposed to sunlight, the half-life of dioxin is between 1 and 3 years. Mr De Marchi also mentioned that in sediment, the half-life can be more than 100 years. While those statements accord with what is stated in the article, Mr De Marchi omitted to state that the article also states that dioxin is not absorbed by plants nor is it water-soluble. It also states that dioxin continues to adversely affect people who eat dioxin-contaminated fish, molluscs and fowl produced around point sources of dioxin called dioxin “hot spots”. These so-called hot spots are places where excessive herbicide was simply dumped. There are 38 fully recorded dumpings of herbicide but none of those occurred near Australian installations (Medicine at War, page 309). Furthermore, O’Keefe in his text Medicine at War states that expert toxicologists excluded possible Agent Orange poisoning through skin contact or ingestion. Dioxin bonded readily to leaves and would not rub off onto a soldier’s bare arms or face as he pushed through foliage (page 309). According to O’Keefe, in sunlight, dioxin biodegrades within 24 to 30 hours. It remained inert in water and was unlikely to enter the food chain. If fish consumed it, it would concentrate up to 90% in the liver or viscera, which were rarely eaten by humans. A man would need to eat one to two kilograms of contaminated fish daily over a lifetime to exceed the no-effect level.
Although Mr Iliopoulos claimed that he was exposed to Agent Orange spraying in 1971 while based at Nui Dat, that claim must obviously be doubtful given the historical records to which I have referred above and the fact that at no point in his evidence did he identify coming into contact with Agent Orange. However, the spraying of residual insecticides using extremely toxic substances requires closer attention.
When questioned in the course of his oral evidence as to whether residual insecticides were irritants as well as being toxic, Dr Barton replied they were. For that reason, it is reasonable to say that the material before me in this matter raises a hypothesis connecting Mr Iliopoulos’ operational service with the conditions he claims were caused by that service. The question then becomes whether that hypothesis is reasonable.
The relevant provisions in the VE Act dealing with standard of proof are found in s. 120 and 120A. Section 120(1) applies to Mr Iliopoulos because he had operational service. It provides:
(1) 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.
Note: This subsection is affected by section 120A.
My first task is to determine whether the causal hypothesis advanced by Mr Iliopoulos is reasonable. That is because s. 120(3) of the VE Act provides that:
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, 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 or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
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.
I must also bear in mind the distinction between a mere hypothesis and a reasonable hypothesis. As the Full Court of the Federal Court said in East v Repatriation Commission (1987) 16 FCR 517 (East), in order to find a reasonable hypothesis, the material must point to and not merely leave open a hypothesis as a reasonable hypothesis. It need not be proved to be correct as a matter of fact. However, it cannot be merely a possibility or a supposition.
Section 120A of the VE Act provides that the reasonableness of a hypothesis is to be assessed by reference to the SOPs. It applies to a claim made on or after 1 June 1994 which relates to the operational service rendered by a veteran. In other words, it applies to Mr Iliopoulos’ claim.
Section 120A(3) provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
However, that section is qualified by s. 120A(4) of the VE Act. It provides that s. 120A(3) does not apply to a claim in respect of the incapacity from injury or disease of a person if the Authority has neither determined a SOP under s. 196B(2) nor declared that it does not propose to make such a SOP in respect of the kind of injury suffered by the person or the kind of disease contracted by the person as the case may be.
Having searched the Repatriation Medical Authority (RMA) website regarding SOPs and those matters under investigation, I am satisfied that the RMA has not made a SOP dealing with chronic irritable cough syndrome or, for that matter, RIIDS; nor has it declared that it does not propose to make such a SOP. The RMA has not made a SOP dealing with asteatosis nor has it declared that it does not propose to make an SOP in respect of that disease. In those circumstances, I find myself in the position which existed prior to the introduction of SOPs. I am guided by cases dealing with veterans claims made prior to 1 June 1994.
A hypothesis is merely a proposition made as a basis for reasoning without the assumption of its truth. Regardless, a hypothesis must have a sound basis. As the High Court of Australia (Mason CJ, Deane, McHugh JJ) said in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) at 412: There is no presumption that the injury, disease or death of a veteran was war-caused: s. 120(5). Section 120(5) remains in a form identical to that in 1992. The Court pointed out that the purpose of s. 120(3) is to ensure that a claim to which s. 120 applies is not met unless there is some material which raises the relevant causal hypothesis (at 413).
In determining whether a hypothesis is reasonable, the Court said, at 414:
The material will raise a reasonable hypothesis within the meaning of s. 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.… However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s. 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.…
The Court also referred to its decision in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 (Adamcik) and quoted the following passage at 414 – 415:
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature” (13) [Adamcik at 306]. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous” [14] [East at 532].
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s. 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s. 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
Brennan J in Bushell’s case cited with approval at 428 the decision of the Full Court of the Federal Court in East and the decision of Beaumont J in Repatriation Commission v Webb (1987) 76 ALR 131 where his Honour said, at 135:
It is hardly necessary to observe that the question whether an hypothesis is ‘reasonable’ is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions.… It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease. The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather, it is a case of determining whether the particular theory has a rational foundation.
Having determined that a hypothesis raised by a veteran is reasonable, the claim must then be dealt with in accordance with s. 120(1) of the VE Act. It is only then that I should embark upon a fact-finding exercise. As the High Court said in Bushell, at 416:
The Commission will be satisfied beyond reasonable doubt “that there is no sufficient ground for making [the] determination” if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination.… Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of
s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist [16].
A similar approach was taken by the High Court of Australia (Mason CJ, Gaudron and McHugh JJ) in Byrnes v Repatriation Commission (1993) 177 CLR 564 where their Honours said, at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved [10], either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis [11].
I should add an important qualification to what was said in Byrnes regarding the assumption of the occurrence or existence of a fact. The Court in that case said that such an assumption did not make the hypothesis unreasonable. However, as Nicholson J said in Repatriation Commission v Dunn [2006] FCA 1703 (8 December 2006) (Dunn) at [46]:
If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed; that is, the fact of connection.
In applying that statement to Mr Iliopoulos’ case, even if there was no dispute about his claimed exposure to insecticides or herbicides while based at Nui Dat, it cannot be assumed that the exposure resulted in him developing a chronic irritant cough syndrome. Similarly, it cannot be assumed that his exposure to insecticides or herbicides resulted in the development of his rash on both lower legs. I need to examine carefully the hypothesis put forward by Mr Iliopoulos to determine whether the material points to some fact or facts which support his hypothesis. His hypothesis will not be reasonable if it is contrary to proven scientific facts or to the known phenomena of nature; or if it is obviously fanciful, impossible, incredible, not tenable, too remote or too tenuous.
Chronic irritable cough syndrome
The only evidence of connection between this medical condition and Mr Iliopoulos’ operational service is his exposure to insecticides at Nui Dat in 1971. Although Mr Iliopoulos claimed he was also exposed to Agent Orange, the literature in evidence discloses that the use of this defoliant ceased in 1968. Mr Iliopoulos said in evidence that he saw spraying from large high-flying aircraft. Luscombe Field was an airstrip located in the northern half of Nui Dat base. It was capable of accommodating C123 and C130 aircraft, both of which were used for that purpose. Therefore, I do not doubt that Mr Iliopoulos observed large aircraft taking off and landing at the base. However, to suggest they were spraying while flying at considerable altitude appears to be, logically, incorrect. There is a photograph in the text Medicine at War (page 286) showing three aircraft engaged in spraying defoliants in South Vietnam. They are clearly at low altitude, between about 150 to 250 feet. Furthermore, the evidence from the New Zealand veterans refers to aircraft flying in formation at about 200 feet altitude. Spraying at altitudes any higher than this would result in considerable spray drift onto locations which were not intended to be covered. Mr Iliopoulos’ evidence regarding exposure to defoliant spray from highflying aircraft is both illogical and contrary to all of the other evidence before me. The evidence before me does however disclose that C123 aircraft were also used for spraying insecticides (see Medicine at War, page 287).
The article by Dr Mordike regarding the spraying of insecticides clearly establishes the use of residual insecticides during the 1971 wet season, commencing in May. The Routine Order referred to by Dr Mordike states that residual insecticide spraying by fixed and rotary-wing aircraft would take place initially at fortnightly intervals and later at weekly intervals. Given that Mr Iliopoulos was based at Nui Dat between May 1971 and September 1971, I accept that the evidence is consistent with him being exposed to sprayed residual insecticides while on operational duty in South Vietnam. Relying on what Dr Mordike said regarding the insecticides used in the course of that spraying, I also accept that the material before me establishes that the substances to which Mr Iliopoulos was exposed were toxic. Also, given the evidence of Dr Burdon, the material before me discloses that the residual insecticides to which Mr Iliopoulos was exposed were irritants.
Despite the material before me disclosing that Mr Iliopoulos may have been exposed to residual insecticides while based at Nui Dat, that does not necessarily result in it pointing to a connection between his exposure and his chronic irritant cough syndrome. That is because, as Nicholson J said in Dunn, I cannot assume a connection between exposure and his medical condition. There must be something which points to that connection.
The hypothesis of connection between Mr Iliopoulos’ chronic irritant cough syndrome and exposure to residual insecticides in South Vietnam was put forward by Dr Burdon, a respiratory physician. In his first written report dated 11 August 2014, Dr Burdon described Mr Iliopoulos as suffering from a chronic persistent cough of unknown aetiology. He said that diagnosis was unclear. He examined the possibilities of Mr Iliopoulos having a number of asthma variants including RADS and RUADS but discounted those conditions because coughing and other symptoms were expected to occur at the time of, or within a few hours of exposure to toxic fumes or vapours. He also referred to irritant induced asthma (RIIDS) and believed it was possible that Mr Iliopoulos suffered from this condition. Although Dr Burdon referred to an article by M Alberts and GA do Pico titled Reactive Airways Dysfunction Syndrome – Chest 1996, a copy of that article was not put into evidence. Nevertheless, Dr Burdon said the article described the occurrence of irritant induced asthma after repeated moderate or high level exposures as opposed to a single massive exposure to an irritant. On that basis, he simply said it was possible that Mr Iliopoulos suffered from RIIDS.
In his second written report dated 8 September 2014, Dr Burdon focused on the SOP for asthma, and in particular its reference to RADS. He was of the opinion that RIIDS should be regarded as a low-level form of RADS which could follow low level exposures to irritants over a period of time with the symptoms occurring subsequently. He concluded:
Given that Mr. Iliopoulos was exposed to insecticides and defoliants such as Agent Orange and that these are toxic substances I would accept that such exposure was responsible.
While I accept that Dr Burdon is an expert in his field, which is the respiratory system, I did not have evidence that he was a medical practitioner who was eminent in that field of knowledge. The Shorter Oxford English Dictionary defines eminent as: 2. Of persons a. Exalted in rank or station… b. Distinguished in character or attainments. Therefore, just because Dr Burdon expressed the opinion that Mr Iliopoulos’ exposure to insecticides was responsible for his irritant cough, that does not result in a finding that the hypothesis of connection must be reasonable. For example, Australian forces were based at Nui Dat between 1966 and 1972. Both herbicides and insecticides were used throughout that period on and around the perimeter of the base. Thousands of soldiers and airmen spent time at the base and were exposed to those chemicals. However, other than Mr Iliopoulos, not one further example of a person experiencing chronic irritant cough syndrome after being stationed at Nui Dat was presented to me. Logically, if exposure to the insecticides or herbicides used at Nui Dat was capable of causing the problem now experienced by Mr Iliopoulos, it is reasonable to expect that there are others with the same problem.
I of course accept that a hypothesis may be regarded as reasonable even where an association between the claimed disease and operational service cannot be demonstrated. The connection need not be proved. It would be a very different matter if there were epidemiological studies which pointed to a connection. Epidemiological studies are not, by themselves, directed to the circumstances of an individual case. Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262 explained the value of such studies. His Honour said, at 274 – 275:
79 Evidence of possibility, including expert evidence of possibility expressed in opinion form and evidence of possibility from epidemiological research or other statistical indicators, is admissible and must be weighed in the balance with other factors, when determining whether or not, on the balance of probabilities, an inference of causation in a specific case could or should be drawn. Where, however, the whole of the evidence does not rise above the level of possibility, either alone or cumulatively, such an inference is not open to be drawn.
I am mindful of the fact that in determining whether Mr Iliopoulos has raised a reasonable hypothesis connecting his chronic irritant cough syndrome with exposure to herbicides or insecticides, I am not to determine that to be the case on the balance of probabilities. I am required to determine whether the hypothesis is contrary to proven scientific facts or to the known phenomena of nature; and that it is not obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. Therefore, if I had before me evidence of epidemiological studies which disclosed a statistically significant connection between exposure and disease, I could reasonably draw an inference of connection and hence find that the hypothesis was reasonable. I did not have before me in evidence any such studies.
I should refer to the Tribunal (of which I was a member) decision in Re Farley-Smith and Repatriation Commission (2012) 125 ALD 249. That case involved the determination of exposure to benzene and a causal connection with myelofibrosis. We had in evidence numerous studies, both single case and epidemiological. We had evidence from Professor Peach who specialised in molecular epidemiology. He made the following important points regarding such studies and the causative connection, at 282:
(a)reports of individual patients (single case studies) merely leave open and do not point to a hypothesis that myelofibrosis can be caused by benzene exposure;
(b)reports of individual patients do not give any acceptability or credibility to a hypothesis;…
Professor Pearce also referred to an article published in the journal Occupational Medicine which involved a petrol station attendant who developed myelofibrosis. He had worked in that occupation for 17 years. The authors of the article said:
When observing a single case in relation to a particular exposure, there is considerable doubt as to whether there is a causal connection or not. Epidemiological studies would be desirable but sufficient numbers of cases are not easily attributable for this relatively rare disease.
Applying the logic expressed by Professor Pearce and the many case studies with which I am familiar where the cause and effect relationship was under close scrutiny, Mr Iliopoulos’ exposure to irritants while based at Nui Dat does not, by itself, point to a causal connection. At its highest, it does not rise above a mere possibility. In his written reports, Dr Burdon did not go further than to say that he was of the opinion that there was a possible connection. When asked in evidence-in-chief about how he had arrived at his diagnosis, Dr Burdon said that he questioned Mr Iliopoulos about what he had been exposed to while in South Vietnam and upon being told that he had been exposed to defoliants and insecticide, he said that was a possible cause of his coughing. Respectfully, that evidence by itself does not point to a causal connection. Accordingly, I find on the material which was before me on the hearing of this matter that the hypothesis of connection advanced by Mr Iliopoulos between his chronic irritant cough syndrome and exposure to irritants while based in South Vietnam is not reasonable. It does not point to a hypothesis that chronic irritable cough syndrome may be caused by exposure to insecticides, or for that matter, herbicides. The association made by Dr Burdon is too remote or too tenuous.
Skin rash
In his first report dated 13 August 2013, Dr Berger diagnosed Mr Iliopoulos with neurodermatitis, probably related to stress. While Dr Berger did not mention that he had been told about Mr Iliopoulos’ claimed exposure to herbicides and insecticides while in South Vietnam, he did say that on examination, there was no overt evidence that Mr Iliopoulos had dermatitis or any other significant skin problems. As for the small healing ulcer on his lower right leg, Dr Berger put that down to excoriation or, simply, scratching the leg.
In his second report dated 17 October 2014, Dr Berger referred to a diagnosis of ringworm infection of the skin. He said it was possible that this related to a condition Mr Iliopoulos may have had following his Vietnam service although it was unlikely. However, Dr Berger said that currently (October 2014), Mr Iliopoulos suffered from asteatosis or extreme dryness of the skin. His skin was therefore itchy and scratched by him, resulting in the development small ulcers. Asteatosis is defined in Taber’s Cyclopedic Medical Dictionary, 17th edition, as: Any disease condition in which there is persistent scaling of the skin, suggesting scantiness or absence of sebaceous secretion. The Dictionary also suggests the following aetiology: Local form may be caused by frequent contact with irritants.
Although the above material is somewhat scant, I accept that it supports a hypothesis linking Mr Iliopoulos’ skin rash with his operational service in South Vietnam. Therefore, the next step is for me is to determine whether there is a SOP which deals with his condition. The Repatriation Medical Authority has determined a SOP concerning Irritant Contact Dermatitis (No. 110 of 2011). The SOP defines irritant contact dermatitis in the following way (cl. 3(b)):
irritant contact dermatitis means inflammation of an area of the skin resulting from direct contact with a chemical or biological agent. Irritants act by direct chemical or physical action on the skin, leading to disruption of the skin barrier, damage to epidermal cells and release of pro-inflammatory mediators, and induction of the innate immune system. This definition excludes allergic contact dermatitis, photocontact dermatitis, systemic contact dermatitis, urticaria and dermatitis due to exposure to extremes of weather, solar radiation (for example, solar skin damage) or other radiation or friction.
While I accept it is not clear from the definition and from Dr Berger’s diagnosis that Mr Iliopoulos has irritant contact dermatitis, the fact that Dr Berger has also described the condition as asteatosis, which may be caused by frequent contact with irritants, I should examine the possibility of its application.
Where there is a SOP dealing with the medical condition diagnosed, a hypothesis will be reasonable if it satisfies the template set out in the SOP. In other words, as is stated in clause 4 of the SOP, there is sound medical-scientific evidence indicating that irritant contact dermatitis can be related to relevant service provided that the factors set out in clause 6 are related to the service rendered by the veteran. The factors are:
(a)having direct cutaneous exposure of the affected area to an irritant within the three days before the clinical onset of irritant contact dermatitis; or
(b)having direct cutaneous exposure of the affected area to an irritant within the three days before the clinical worsening of irritant contact dermatitis; or
(c)inability to obtain appropriate clinical management for irritant contact dermatitis.
The problem for Mr Iliopoulos is that even if the SOP is applicable to his condition, because the clinical onset according to him was in about 1974 or 1975, he cannot satisfy the necessary factors set out in the SOP. Accordingly, I would find that his hypothesis is not reasonable.
In any event, if I am wrong about the application of the SOP and that it is not applicable to his condition, I would nevertheless arrive at the same conclusion. That is because, given the lack of any evidence of connection regarding Mr Iliopoulos’ skin condition with his operational service in South Vietnam, there is no other material which points to some fact or facts which might support this hypothesis. I did not have before me any evidence disclosing that any other service men or women based at Nui Dat between 1966 and 1972 suffered from the same or a similar condition. Nor did I have any evidence of any epidemiological studies which have examined exposure to chemical irritants and the onset of skin rashes like that described by Mr Iliopoulos. Like his claimed chronic cough condition, a single occurrence of the medical condition which Mr Iliopoulos has does not point to a causal connection with exposure to herbicide or insecticide. It follows I must find that his hypothesis of connection regarding the rash he has on his lower legs cannot be regarded as reasonable. It is too remote or too tenuous.
CONCLUSION
I have found that Mr Iliopoulos does not suffer from bronchial asthma or RADS. Although it is possible he has an irritant induced asthma (RIIDS), it is not clear that this condition is significantly different to RADS. There was a difference of opinion between Professor Holmes and Dr Burdon about that. However, I have found that the most likely correct diagnosis of Mr Iliopoulos’ medical condition is chronic irritable cough syndrome. While that may produce symptoms similar to asthma, he does not have asthma as such. I have found that the onset of Mr Iliopoulos’ chronic cough was in about 1974 or 1975.
Because the Repatriation Medical Authority has not made a SOP dealing with chronic irritable cough syndrome, Mr Iliopoulos’ hypothesis of connection regarding his operational service and his medical condition can only be reasonable if the material before me points to some fact or facts which support the hypothesis. It cannot be reasonable if it is not tenable, too remote or too tenuous. Because I had no evidence before me indicating that Mr Iliopoulos’ condition was shared by other service personnel based at Nui Dat between 1966 and 1972, or that there were epidemiological studies pointing to a connection between exposure to insecticides or herbicides and chronic irritant cough syndrome, he was unable to point to a fact or facts supporting his hypothesis. For those reasons, I have found that his hypothesis of connection regarding chronic irritable cough syndrome and operational service cannot be regarded as reasonable. Accordingly, I find that Mr Iliopoulos’ chronic irritable cough syndrome was not war-caused.
Mr Iliopoulos also lodged a claim regarding a skin condition which affected both lower legs. The only dermatologist who examined Mr Iliopoulos, Dr Berger, diagnosed him as having neurodermatitis/asteatosis. Dr Berger suggested his condition might be stress induced. He found there was no overt evidence of dermatitis or any other significant skin problems other than the fact that Mr Iliopoulos’ skin was dry. That dryness caused him irritation which he appeared to relieve by frequent scratching. Although Dr Berger did not diagnose irritant contact dermatitis, Taber’s Medical Dictionary suggests that asteatosis may be caused by frequent contact with irritants. For that reason, I first proceeded by examining the relevant SOP.
The SOP factors, whose presence must be related to service, were not present in Mr Iliopoulos’ case. Therefore, if the SOP applied to Mr Iliopoulos’ skin condition then his hypothesis would not be reasonable. In the event that I am wrong about that, I also dealt with this condition on the basis that there was no relevant SOP. However, I have arrived at the same conclusion. There was no material before me which pointed to a fact or facts which might support his hypothesis. In those circumstances, his hypothesis cannot be reasonable as it is too remote or too tenuous.
Although Mr De Marchi submitted that irrespective of my findings regarding his chronic cough and skin condition, I should in any event review the rate of pension currently paid to Mr Iliopoulos or remit the matter to the Repatriation Commission for reassessment, I find it unnecessary to do so. I had no evidence before me which would cause me to doubt the decision made by the VRB that his rate of pension should be paid at 20% of the General Rate.
I find that the decision made by the VRB on 1 April 2014 refusing Mr Iliopoulos’ claim for bronchial asthma and skin rashes was the correct decision. I also find that the VRB’s decision regarding the rate of pension which should be paid to Mr Iliopoulos was correct. I affirm those decisions.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member ................................[sgd]........................................
Associate
Dated 4 September 2015
Dates of hearing 20 July 2015 - 22 July 2015 Date final submissions received 10 August 2015 Advocate for the Applicant Mr D De Marchi Solicitors for the Applicant De Marchi & Associates Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
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