Jakab and Repatriation Commission
[2005] AATA 689
•21 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 689
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/404
VETERANS’ APPEALS DIVISION )
Re STEFAN GEORG JAKAB Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 21 July 2005
Place Brisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]..........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – Meniere’s disease – inability to obtain appropriate clinical management-clinical onset – decision affirmed
Veterans’ Entitlements Act 1986 ss 5, 70, 120(4),196B
Repatriation Commission v Wedekind [2000] FCA 649
Re O’Brien and Repatriation Commission [2003] AATA 525
REASONS FOR DECISION
21 July 2005 Ms M J Carstairs, Member 1. This is an application by Stefan Georg Jakab (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 14 February 2003 affirming a decision of a delegate of the Repatriation Commission (the respondent) that the applicant ‘s Meniere’s disease was not due to his eligible defence service.
2. At the hearing, the applicant was represented by Mr J Schulz, advocate. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A2 for the applicant and R1 – R3 for the respondent.
BACKGROUND
4. The applicant is 60 years of age. He enlisted in the Australian Army at the age of eighteen and served between 23 September 1963 and 22 September 1969. His claim for the acceptance of Meniere’s disease however does not rely on that period of his service, but on a later period of service with the Royal Australian Air Force (the RAAF) between 30 November 1971 and 10 January 1986. The part of the applicant’s RAAF service occurring after 7 December 1972 is eligible defence service under the Veterans’ Entitlements Act1986 (the Act) and attracts the reasonable satisfaction standard of proof provided for under s120(4) of the Act, as referred to below at paragraph 22.
5. In 1995 the applicant was diagnosed with Meniere’s disease, a condition characterised by recurrent attacks of episodic vertigo, fluctuating sensorineural hearing loss, and tinnitus. The condition is often associated with nausea and vomiting and a sense of fullness in the affected ear. On 3 April 2000, he lodged a claim to have the condition accepted as related to his defence service. The claim was refused by the respondent and by the VRB. On 7 May 2003, Mr Jakab sought review of the decision rejecting his claim.
6. The issue for the Tribunal is whether Meniere’s disease is related to the applicant’s service, the connection being limited to whether there was an inability to obtain appropriate clinical management of the condition.
EVIDENCE
7. The applicant prepared a number of written statements (T4, p71-2, T5 p114 and exhibit A2) in which he stated that he believed that within six months of suffering a bout of viral pericarditis while he was on service, he started to experience the symptoms of Meniere’s disease, including mild tinnitus, attacks of vertigo, and inability to focus his vision. He said the attacks were random, and would occur in clusters for weeks at a time and then would disappear for several months. In his statement dated 23 June 2003 (exhibit A2) he referred to experiencing vertigo during his service which had commenced as a feeling of dizziness. The applicant recalled suffering increasing bouts of nausea.
8. The applicant’s service medical records included an entry dated 31 August 1976: vomiting diarrhoea dizziness (attachment “A” to exhibit A1); a complaint of cough head cold and fever on 2 October 1979 with headache, dizziness (attachment ‘C” to exhibit A1) and the records confirmed the occurrence of viral pericarditis in August 1980 (attachment “D” to exhibit A1).
9. The applicant said in oral evidence that he had suffered from dizziness a number of times during his service, particularly after he had the episode of viral pericarditis in 1980 (attachment “D” to exhibit A1). He said that he could recall waking up feeling dizzy but that the sensation went away by the time he arrived at work. He said that he also experienced a sensation of fullness in the ears, without hearing loss, and occasionally nausea, but when he mentioned these symptoms at the regimental aid post the symptoms were no longer present and his complaints were dismissed or attributed to alcohol consumption. He said that this discouraged him from reporting his symptoms and he feared being labelled a malingerer.
10. The applicant said that there were lengthy periods when symptoms were in remission, followed by periods where he would experience symptoms perhaps twice a week for a period of months. He said that the episode in 1995 was much more severe than any earlier symptoms.
11. When he was asked why he had not reported a lengthy history of symptoms to Dr R Hall, neurologist in 1995 (T4, p6), the applicant said that he saw Dr Hall very soon after the acute attack of Meniere’s disease in 1995 and his earlier symptoms paled when compared with the severity of the 1995 attack. He also said that Dr Hall had not asked him about any symptoms he might have experienced earlier than the acute attack.
12. When he was asked in cross-examination why he had reported only a five year history of Meniere’s disease when he was seen by doctors in 2000, the applicant said that he had accurately answered the length of the time from the formal diagnosis of the condition but this response did not reflect the longer period during which he had experienced the symptoms of the disease. In regard to those medical reports that connected Meniere’s disease to the occurrence of the applicant’s stroke in 1992, the applicant agreed that after the stroke he again experienced Meniere’s symptoms, but maintained that he had experienced those same symptoms during his service, but reiterated that he ceased reporting them for fear of being labelled a malingerer or an alcoholic.
13. In a report dated 21 October 1998 (T5 p 161-163) Dr P Baratosy, general practitioner, stated that the applicant‘s Meniere’s disease came on after he had a stroke in 1990.
14. In a report dated 5 July 1995 (T4 p6-7) Dr Hall confirmed the diagnosis of Meniere’s disease. Dr Hall stated that the applicant had told him that in the previous year he had experienced once a week a continuous feeling of pressure in his right ear accompanied by low pitched buzzing which increased in intensity. Then, the applicant told Dr Hall, for a period of four months the deafness and buzzing had worsened, and had been associated with vertigo, nausea, and vomiting, which required bed rest.
15. In a report dated 27 April 2000 (T4 p38), Dr M Menzies, ear nose and throat surgeon, stated that the applicant gave a five year history of right-sided Meniere’s disease, and had noticed more recently a slight hearing loss, accompanied by tinnitus, on the same side.
16. In a report dated 31 May 2000 (T4 p44), Dr S Hamwood, general practitioner, noted that the applicant had suffered a stroke secondary to cerebral ischaemia in 1990 and stated that the applicant developed Meniere’s disease some two years after.
17. In a report dated 11 April 2002 (T4 p93) Dr W Gibson Professor of Otolaryngology stated that Meniere’s disease is thought to be linked to viral infection and studies note a genetic predisposition to develop the disease. In a report dated 10 April 2002, (T4 p66) Dr A Parker, otolaryngologist, stated that there are certain viruses with a suggested connection with Meniere’s disease but that the applicant had not suffered these particular viruses. He said however that as aetiology of the disease is unknown there might be the possibility of a connection with the pericarditis that the applicant had on service.
18. In a subsequent report dated 10 December 2002 (T4, p100) Professor Gibson said that the cause of the disease is unknown and experts regard it as multifactorial disorder. He ruled out any connection of Meniere’s disease with the viral pericarditis that the applicant suffered during his service because he had no vertigo-like symptoms that might suggest a viral labyrinthitis. He said that if there had been, this could suggest that the virus had reached the inner ear, which sets up the chain of inner ear symptoms that compromise the ear’s functioning and are thought to lead to Meniere’s disease after certain viral conditions. Professor Gibson also ruled out any connection with an allergic reaction suffered by the applicant on service in 1979.
19. In a medical report dated 8 March 2005 (R1), Dr F Anning, ear nose and throat specialist, stated that he had reviewed the applicant’s file papers and noted that the applicant gave three histories related to onset of his symptoms. The first history was that his illness came to the fore in 1995 when he was referred to Dr M Jay who diagnosed Meniere’s disease. The other two histories given by the applicant indicated the presence of vague vertigo-like symptoms earlier, but without dizziness.
20. Dr Anning stated that the applicant had two probable viral infections during his defence service, but the applicant made no complaint then of Meniere’s-like symptoms. In oral evidence Dr Anning said that based on his clinical experience Meniere’s disease presents as an acute episode that is totally incapacitating, just as the applicant had in 1995. Dr Anning stated that the disease is very difficult to diagnose as it is totally unpredictable and can return after a lengthy period where the person is symptom free. Dr Anning concluded that the probable onset of the applicant’s Meniere’s disease was 1995 and it could not have been diagnosed, nor could it have been treated, before then.
21. Dr Anning said that dizziness is a non-specific term, and a non-specific symptom. In oral evidence he said that there were other reasonable explanations apart from Meniere’s syndrome for the dizziness reported in the applicant’s medical records when he had upper respiratory tract infections and an electrolyte disturbance. Dr Anning commented that the applicant’s evidence that during his service he would awake feeling dizzy but that this would disappear by the time he reported for work was not typical of the dizziness experienced by Meniere’s disease. He said that the dizziness the applicant suffered during his service was not connected with his Meniere’s syndrome.
22. Dr Anning said that audiology report dated 10 February 1981 (attachment “E” to exhibit A1) showed the applicant had no significant loss of hearing. He noted that the test used was a subjective one, which can lead to quite different results even if the test is repeated the same day. Dr Anning also said that the hearing loss typical of Meniere’s disease shows in the low tones, whereas the applicant’s results in the 1981 audiology report were of a minor loss in the high tones.
23. Dr Anning said that there are recognised modes of treatment for Meniere’s disease, but as it is a highly variable disease that hits randomly and may disappear for years at a time, there was no evidence that medical treatment has any effect on its progress and there is no cure.
CONSIDERATION OF THE ISSUES
24. Section 70(5) of the Act deals with defence-caused injury and disease. Section 120(4) of the Act sets out that the standard of proof to be applied where the applicant relies on defence service is that of reasonable satisfaction. As the applicant’s claim was lodged after 1 June 1994, the Tribunal is required to apply s120B of the Act and any applicable Statements of Principles (SoPs) issued by the Repatriation Medical Authority. For the purposes of formulating the SoPs the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence, based on generally accepted practice, concerning the connections between service and injury or disease.
25. Section 196B(14) provides for those connections with service and states:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…..
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
……
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service;
……..
26. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act.
27. At the time of Mr Jakab’s claim, the applicable SoP for Meniere’s disease was Instrument No 28 of 1997. It is now Instrument No 78 of 2001 and this is the SoP which the Tribunal applies. In accordance with s196B of the Act, clause 4 of the current SoP provides (as did the earlier SoP in essentially identical terms as now appear in clause 5) that :
4.The factor that must exist before it can be said that, on the balance of probabilities, in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Meniere’s disease or death from Meniere’s disease is inability to obtain appropriate clinical management for Meniere’s disease.
28. Mr Schulz submitted that the evidence showed that the symptoms of Meniere’s disease were present during the applicant’s service because the applicant experienced dizziness, vertigo, and vomiting in 1976, had an acute allergic reaction to a viral infection in 1979 and reported dizziness again on 2 October 1979. He said that in February 1981 the applicant presented with dizziness, tinnitus and fullness of the ear and that a hearing test at that time showed a hearing loss, of a transient kind, as it did not show when he was next tested in April 1981. He submitted that the February audiology report objectively demonstrated a hearing loss, and the Tribunal should prefer this evidence to Dr Anning’s interpretation that this result should be disregarded. Mr Schulz also referred to the applicant’s evidence that his complaints of dizziness were not given any credence when he reported them, and he was discouraged from continuing to report his symptoms.
29. Mr Schulz submitted that a diagnosis of Meniere’s disease could have been made at the time of the applicant’s service with his history of symptoms and that there was a subsequent failure to diagnose and treat them. In other words, he said the factor in the SoP was met as the applicant was not diagnosed, and was unable to obtain appropriate clinical management of his condition.
30. Mr Williams submitted that the condition of Meniere’s disease did not arise during the applicant’s eligible service and as a result the applicant’s claim cannot succeed: Re O’Brien and Repatriation Commission [2003] AATA 525. (O’Brien) Mr Williams said that the onset of the condition was most likely when the acute attack occurred in 1995 and not earlier. He submitted that the Tribunal should prefer the evidence of Dr Anning that the applicant did not have the full constellation of symptoms required to establish a diagnosis any earlier than 1995.
31. Mr Williams further submitted that if the condition were present during eligible service, inability to obtain appropriate clinical management for the condition cannot be satisfied since specialist medical opinion supports the view that treatment regimes may only ameliorate symptoms of the condition.
32. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
33. In Repatriation Commission v Wedekind [2000] FCA 649 at (para12), (Wedekind) Kenny J stated, in terms that have a general application to factors in SoPs that refer to inability to obtain appropriate clinical management :
12. In summary, before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service.
34. In Re O’Brien and Repatriation Commission [2003] AATA 525 at (para 4) the Tribunal applied this approach, stating that it is necessary to show that
§ the medical condition existed during service;
§ the person was unable to obtain appropriate clinical management for it; and
§ the lack of appropriate clinical management made the condition worse than it otherwise would have been.
35. The medical evidence in this case all points to onset of Meniere’s disease many years after the applicant’s defence service. There is some variation in the reports about the date of onset; however no report dates the clinical onset prior to 1992.
36. Clinical onset is 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 (Lees v Repatriation Commission [2002] FCAFC 398 at para 13). The Tribunal accepts Dr Anning’s evidence that the constellation of symptoms must be present for a diagnosis to be made and that on the evidence in the applicant’s case clinical onset cannot be dated with confidence earlier than 1995.
37. The applicant now recalls symptoms during his service, however the Tribunal agrees with Dr Anning that memory can be unreliable when reporting symptoms that occurred a long time ago. No medical practitioner had taken a history from the applicant where he refers to the lengthy history of symptoms occurring during defence service as he now states was present. The Tribunal does not accept, as the applicant asks be accepted, that this was simply the result of doctors not asking him questions about his earlier experience of symptoms. The Tribunal does not accept that the applicant had all the necessary symptoms during his service that would allow a diagnosis now of Meniere’s disease during service.
38. The Tribunal accepts the evidence of Professor Gibson and Dr Anning that there was no connection between Meniere’s disease and viral episodes or with an allergic reaction during service. The Tribunal also accepts Dr Anning’s evidence that dizziness is a non-specific symptom that can be explained by a number of medical conditions, and in the applicant’s case was better explained by the medical conditions identified at the time. The Tribunal accepts Dr Anning’s evidence that the hearing loss recorded in 1981 was not related to the development of Meniere’s disease.
39. In applying the evidence in regard to the applicant’s circumstances to the test set out by Kenny J in Wedekind, and applied by the Tribunal in O’Brien, the Tribunal is reasonably satisfied that the applicant did not have the constellation of symptoms of Meniere’s disease during his service. Being so satisfied there is no need for the Tribunal to proceed to consider issues relating to clinical management of Meniere’s disease. For the claim to succeed it is necessary for Meniere’s disease to be present before the end of service: O’Brien. For the reasons given above the Tribunal is reasonably satisfied that the condition was not present during service. Therefore the evidence, taken overall, does not point to factor 4 of the SoP for Meniere’s disease being met (or the equivalent factor 5 in the earlier SoP) and the claim must fail.
DECISION
40. The Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 26 May 2005 [Maroochydore]
Date of Decision 21 July 2005 [Brisbane]
For the Applicant Mr J Schulz, Advocate
For the Respondent Mr B Williams, Departmental Advocate
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