Ireland and Repatriation Commission
[2005] AATA 232
•5 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 232
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/34
VETERANS’ APPEALS DIVISION ) Re TERRENCE IRELAND Applicant
And
THE REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms Narelle Bell, Senior Member Date5 January 2005
PlaceSydney
Decision The decision under review is affirmed.
............[sgd].....................
Ms Narelle Bell
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2003/34
VETERANS’ APPEALS DIVISION )
Re: TERRENCE IRELAND
Applicant
And: REPATRIATION COMMISSION
Respondent
ORDER TO AMEND WRITTEN DECISION [2005] AATA 232
TribunalMs N Bell, Senior Member
Date18 March 2005
PlaceSydney
WHEREAS:
1.The Tribunal released a written decision in this matter, which was dated 5 January 2005.
2.It has come to the Tribunal’s attention that there was an error in the decision.
3.The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.
NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:
To be inserted after paragraph 3:
(4)I note that the decision under review encompasses the conditions of allergic rhinitis and lumbar spondylosis as well as restless leg syndrome. I also note that Mr Ireland does not wish to pursue the aspect of his claim that concerned allergic rhinitis and that the Reparation Commission has conceded that his lumbar spondylosis is war caused.
The Tribunal’s Decision is to be amended to:
(5)The aspects of the reviewable decision that refused the Applicant’s claims for allergic rhinitis and restless leg syndrome are affirmed;
(6)The aspect of the reviewable decision that refused the applicant’s claim for lumbar spondylosis is set aside and in substitution therefor the Tribunal decides that the applicant’s lumbar spondylosis is war caused and the claim is remitted to the Respondent for assessment.
..........[sgd]........
Ms N Bell
Senior Member
VETERANS’ AFFAIRS – restless leg syndrome – whether due to iron deficient diet whilst in Navy – accrued rights - whether statement of principles apply – whether reasonable hypothesis met by applicant.
Veterans Entitlement Act 1986
Byrnes v Repatriation Commission (1999) 177 CLR 564
Repatriation Commission v Webb [2000] FCA 1635Repatriation Commission v Thompson [2001] FCA 341
Keeley v Repatriation Commission [1999] FCA 1103.
REASONS FOR DECISION
5 January 2005 Ms Narelle Bell, Senior Member
1. Mr Ireland, born on 23 March 1940, served in the Royal Australian Navy from 28 May 1958 to 28 May 1967. There is no dispute that he had 99 days of operational service during that period as follows:
·7 April 1960 to 28 April 1960;
·6 May 1960 to 20 May 1960;
·6 June 1960 to 16 June 1960;
·28 February 1962 to 16 March 1962;
·24 May 1964 to 16 June 1964;
2. Mr Ireland suffers from, among other conditions, restless legs syndrome, a condition that causes abnormal sensations in his legs and the urge to move his legs spontaneously.
3. Mr Ireland sought to have his restless legs syndrome accepted as war-caused under the Veterans’ Entitlement Act 1986 (“the Act”) and that claim was rejected by the Repatriation Commission on 26 April 2002. That rejection was affirmed by the Veterans’ Review Board on 29 November 2002.
4. Eligibility for a Disability Pension arises if war service has been the “cause” of the disability claimed. Section 9 of the Act provides for the basis on which war service maybe regarded as being the “cause” of the claimed disability. In particular, and most relevant to this application, s 9(1)(b) of the Act provides for eligibility where a disability “arose out of” or “was attributable to” eligible war service.
5. The standard of proof to be adopted in considering whether a condition is “war-caused” is set out in s 120 of the Act. Where the relevant service was operational service the relevant standard of proof is “reasonable hypothesis”.
6. The first step to be taken in applying that standard of proof is summarised by the High Court in Byrnes v Repatriation Commission (1999) 177 CLR 564 as to, first, ascertain whether all or some of the facts raised by the material before the Tribunal give rise to a reasonable hypothesis connecting the veteran’s condition with war service.
7. In those cases where there exists a Statement of Principles, s 120A of the Act operates to define “reasonable hypothesis” by reference to the applicable SoP. In the case of Mr Ireland’s claim, there was no Statement of Principles in place when the primary decision was made in April 2002. A Statement of Principles was determined, however, on 12 August 2003. Therefore the law, in effect, changed with regard to Mr Ireland’s circumstances after the primary decision was made and its retrospective application would have a negative effect on Mr Ireland and thus impact on his accrued rights (Repatriation Commission v Thompson [2001] FCA 341). At the same time, however, I note that a SoP does constitute a medical and scientific template, to which some regard must be had. In this respect I note the Federal Court’s decision in Keeley v Repatriation Commission [1999] FCA 1103.
8. There is no dispute that Mr Ireland does not meet any of the factors contained in the Statement of Principles and he relies instead on a hypothesis based on a “non Statement of Principles” condition.
9. Mr Ireland contends that the material before the Tribunal points to a hypothesis that his dietary intake while on HMAS Melbourne gave rise to an iron deficiency which in turn gave rise to restless legs syndrome. In particular he contends that this hypothesis is pointed to by a temporal connection, his evidence in relation to his diet on HMAS Melbourne and the indication given in the later Statement of Principles that iron deficiency can give rise to restless legs syndrome.
10. The hypothesis sought to be raised by Mr Ireland can be divided into two components as follows:
(a) Mr Ireland’s diet on the HMAS Melbourne gave rise to an iron deficiency; and
(b) his iron deficiency led to restless legs syndrome.
11. The Full Federal Court in Repatriation Commission v Webb [2000] FCA 1635 held that the correct approach is to ask, in relation to each sequential part of a hypothesis, whether the facts point to that part of the hypothesis being reasonable and if that is so, then the overall hypothesis may be considered reasonable.
12. I turn first then, to the component of the hypothesis that hypothesises that Mr Ireland’s diet on the HMAS Melbourne led to an iron deficiency.
mr ireland’s condition
13. Mr Ireland’s evidence was that he first experienced the symptoms of restless leg syndrome, including, feeling as if “his leg muscle wanted to jump” and that his skin “felt like things were crawling up and down them”, at the time of the Admiral’s Parade on HMAS Melbourne in April 1960. I note, in this regard, that Mr Ireland’s first period of operational service began on 7 April 1960.
14. Mr Ireland described a conversation he had on the first day he sailed on the HMAS Melbourne, heading for Jervis Bay, with a cook he had befriended, in which he was told about cooks vomiting into cooking pots of hotpots, stews and casseroles. Mr Ireland said that he decided then not to eat meat dishes that had been cooked in pots. He did eat steak and chops, when they were served, and salad, vegetables and bread.
15. He claimed he was very thin during his service.
16. Dr Sharpe, Consultant Neurologist, treated Mr Ireland for a short period over two or three consultations. In his report dated April 2003 he said:
The underlying cause of this condition is unknown. It is said to occur in approximately five to ten per cent of the population and in about 30 or more per cent of the disease is thought to be familial possibly auto-somal dominant.
In general the condition is not associated with abnormal neurological signs though it can be associated with some sensory neuropathies especially that associated with renal failure. However, those patients can usually be separated from the more typical idiopathic restless leg syndrome. There are also a number of associations that have been described in association with restless leg syndrome. These include anaemia, especially iron deficiency anaemia, deficiencies of ferritin, folate and B12. The use of caffeine and alcohol has also been reported as well as conditions such as diabetes, rheumatoid arthritis, amyloidosis, Sjogren’s syndrome, lumbar sacral plexus lesions and idiopathic poly-neuropathy. Parkinson’s disease, chronic obstructive pulmonary disease, partial gastrectomy, carcinoma, venous insufficiency, hypothyroidism and withdrawal from various sedatives. Drugs such as neuroleptic along with lithium, beta-blockers, and tricyclide antidepressants and anticonvulsants, have all been incriminated. Many of the above reported associations rely on small series or case reports only and a direct association should be viewed with some caution.
17. Dr Sharpe’s evidence was that the underlying cause of restless syndrome remains unknown, although there are, as noted above, some strong associations with iron deficiency anaemia. However, he said that the majority of people suffering from restless leg syndrome do not have a secondary associated condition.
18. Dr Sharpe said that if an associated condition is treated then the restless leg syndrome will improve and so he would expect that, if Mr Ireland’s restless leg syndrome is linked with iron deficiency, then the resolution of iron deficiency would lead to an improvement of his restless leg syndrome.
19. Dr Sharpe said that symptoms of iron deficiency anaemia are tiredness and lack of energy. Weight has no relationship with anaemia or iron deficiency. Dr Sharpe’s attention was drawn to the results of a blood test done on Mr Ireland in April 1963 which showed his haemoglobin at 14.5 milligrams and concluded that red cells and platelets appear normal and that there were no atypical cells. Dr Sharpe said that is a normal result for an adult man and no iron deficiency or anaemia is indicated. Dr Sharpe was also referred to the result of a full blood count taken of Mr Ireland on 27 April 1964 which, he said, showed a normal blood count and no abnormalities consistent with anaemia.
20. Dr Sharpe said that he did not administer a blood test for Mr Ireland when treating him because he had had restless leg syndrome for 40 years and had no signs of iron deficiency. He formed the view about Mr Ireland that he had idiopathic restless leg syndrome. He considered that if Mr Ireland had had restless leg syndrome for so long and it was caused by iron deficiency he would expect any iron deficiency to present itself in some way. He noted that Mr Ireland’s restless legs syndrome has become worse over the years even though his diet has improved.
21. Ms Ruth English, Nutrition Consultant reported, on 2 April 2004, that the nutrition evidence from analysis of Mr Ireland’s diet, according to his advice of consumption during the relevant period, indicates an intake of iron of 16.9 milligrams per day during operational service. Ms English said that intake of iron is 141 per cent in excess of the Australian recommended dietary intake for adult males of seven milligrams per day. She considered that with this level of intake of iron, Mr Ireland did not fall into the documented categories of individuals or groups at risk for the first stage of primary iron deficiency.
22. I also note that Ms English took a comprehensive history from Mr Ireland of his diet during his operational service period. The history provided by him indicates consumption of steak, sausages, lamb chops or chicken four times a week.
23. Ms Joanne Haymon, Consultant Dietician-Nutritionist was unable to do a nutritional analysis of Mr Ireland’s intake during his period of service. However she conducted an analysis of Mr Ireland’s eating pattern after his discharge from the Navy and concluded that his average iron intake was 10.23 milligrams of iron. She concluded that it is very unlikely that Mr Ireland would have been iron deficient after discharge from the Navy as he had a more than adequate iron intake in his diet.
Is the hypothesis Reasonable?
24. In considering the reasonableness of the hypothesis raised, I had regard to a number of decisions of the High Court and Federal Court.
25. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said at 414:
“… a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature” (Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 306). Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or tenuous (East v Repatriation Commission (1987) 16 FCR 517 at 532).
26. In East v Repatriation Commission (1987) 74 ALR 518 the Full Federal Court said:
“A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
27. In Bull v Repatriation Commission (2001)188 ALR 756 at 761 the Full Federal Court said of the decision in East (supra):
"[18] It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis …”
28. In Elliott v Repatriation Commission [2002] FCA 26 Stone J discussed the way in which the Tribunal must consider and analyse the material before it when considering whether a reasonable hypothesis exists (at pars 25 –26) :
“In attempting to determine if the material before the Commission raises an hypothesis connecting the veteran’s condition with the particular service, and if any such hypothesis is reasonable, the Tribunal was required to consider and analyse that material. This exercise is not concerned with the truth of the assertions in the material and should not be confused with an exercise in fact finding. The task is similar to scrutinising a pleading to determine if the elements of the alleged cause of action have been pleaded. A statement of claim may be struck out as failing to disclose a cause of action without any consideration of whether the facts pleaded can be substantiated. A hypothesis can be dismissed as not reasonable if the material before the Commission does not raise the essential elements of the hypothesis.”
29. When applying these principles and considering whether the material before the Tribunal raises a hypothesis of the kind asserted by Mr Ireland and whether the hypothesis is reasonable, I am mindful of the following matters:
·At the time, described by Mr Ireland, of the clinical onset of his restless legs syndrome, Mr Ireland had experienced only a few days of operational service;
·Scientific analysis of Mr Ireland’s dietary intake as reported by him indicates that it would not give rise to an iron deficiency;
·Dr Sharpe’s view is that Mr Ireland’s restless legs syndrome is idiopathetic rather than associated with a secondary condition, given that his condition has become worse over the years and no iron deficiency has presented itself either now or closer to the time of the onset of the syndrome, as indicated by blood tests in 1963 and 1964.
30. I am also mindful of the submissions of Mr Vincent on behalf of Mr Ireland to the effect that, given that little is known about the causes of restless legs syndrome, it is appropriate to look to the later Statement of Principles as an indicator or guide as to available hypotheses. Mr Vincent submitted that the correct approach is to note that of the five factors or known associations listed in the Statement of Principles, the only one that fits with Mr Ireland is iron deficiency. Mr Vincent submitted that in the face of Mr Ireland’s evidence that he did not eat iron rich foods this is consistent with iron deficiency and the absence of any test results of the kind contemplated by the Statement of Principles leaves open the hypothesis.
31. However, I note that the Statement of Principles, which has no application here in the usual sense, requires a level of iron deficiency that is very specific and so does not contemplate a connection between iron levels and restless legs syndrome in the vague order urged by Mr Vincent.
32. I also note that blood test results are available which would be expected to flag iron deficiency if it were present, but do not. In addition, there is the analysis done by Ms English which indicates an iron intake, at the relevant time, well above the recommended dietary intake for adult males. There is the evidence of Ms Haymon that Mr Ireland’s iron intake after discharge was also well above that recommended intake. There is the persistence and worsening of the condition since discharge. Finally, there is Dr Sharpe’s opinion as summarised above.
33. All of this material stands against the material presented in the evidence of Mr Ireland. His evidence points only to a reason for and the practice of not eating some meat dishes followed by the onset of restless legs syndrome.
34. I consider that, when the whole of the material before me is taken into account, the hypothesis put by Mr Ireland, and in particular, the component of the hypothesis that has him as iron deficient when he developed the condition, is too tenuous and remote to be reasonable. The material does not point to the hypothesis.
35. For these reasons, I consider that Mr Ireland’s restless legs syndrome is not war caused.
Decision
36. The decision under review is affirmed.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: .........[Linda Blue]...........................
AssociateDates of Hearing 4 & 5 November 2004
Date of Decision 5 January 2005
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Ms R Kemp
Representative for the Respondent Ms S Kenny
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