Iliopoulos and Repatriation Commission (Veterans’ entitlements) - [2015] AATA 670

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 668
Seltsam 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, 3^rd 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, 27^th ed, 1988)
Thomas (ed), Clayton L., Taber’s Cyclopedic Medical Dictionary (F.A. Davis Company, 17^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] AATA 670
Decision Date: 4 September 2015

CaseChat Overview and Summary

The case involved Mr Iliopoulos, who sought to establish a causal link between his medical conditions and his service in South Vietnam. The matter was heard in the Administrative Appeals Tribunal, where the primary issue was whether Mr Iliopoulos' conditions, specifically chronic irritable cough syndrome and a skin condition affecting his lower legs, were related to his operational service. The tribunal had to determine if Mr Iliopoulos' hypothesis of a connection between these conditions and his exposure to insecticides during service was reasonable, particularly in the absence of relevant Statements of Principles (SOP) from the Repatriation Medical Authority.

The legal issue centred on the application of the reasonable hypothesis test, a principle used to assess whether a veteran's condition is linked to their service. This test requires that the hypothesis be supported by evidence pointing to facts that establish a connection. In this case, the tribunal had to evaluate whether the evidence, including medical opinions and the lack of shared conditions among other service personnel, sufficiently supported Mr Iliopoulos' claims.

The tribunal concluded that the hypothesis regarding Mr Iliopoulos' chronic irritable cough syndrome was not reasonable due to the lack of evidence linking it to his service. There was no indication that other service members shared similar conditions, nor were there epidemiological studies suggesting a connection between exposure to insecticides and chronic irritable cough syndrome. Similarly, the hypothesis regarding his skin condition was deemed unreasonable because it was not supported by evidence of shared conditions among peers or relevant studies. Consequently, the tribunal affirmed the decision under review, finding that Mr Iliopoulos' conditions were not war-caused.

The tribunal's decision was grounded in the absence of evidence supporting a reasonable hypothesis connecting Mr Iliopoulos' medical conditions to his service in South Vietnam. The tribunal upheld the decision under review, affirming that his chronic irritable cough syndrome and skin condition were not war-caused.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2014/2112
Re	George Iliopoulos
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	4 September 2015
Place	Melbourne