James Stuart Sheppard and Repatriation Commission
[2014] AATA 449
•4 July 2014
[2014] AATA 449
Division VETERANS' APPEALS DIVISION File Numbers
2012/5031
2013/1738
Re
James Stuart Sheppard
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 4 July 2014 Place Melbourne Application 2012/5031:The Tribunal affirms the decision under review.
Application 2013/1738: The Tribunal affirms the decision under review.
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G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – pilonidal sinus – diabetes mellitus – morbid obesity – sleep apnoea – whether conditions related to service – decisions affirmed
Legislation
Administrative Appeals Tribunal Act 1975 s 34J
Veterans' Entitlements Act 1986 ss 120(4), 120B
REASONS FOR DECISION
G. D. Friedman, Senior Member
4 July 2014
James Sheppard served in the Australian Army (the army) from 21 November 1990 until 17 October 1993. He is currently receiving disability pension at the rate of 40 per cent of the general rate for an accepted condition of chondromalacia patellae (softening of the cartilage of the underside of the kneecaps), and claims that his medical conditions of pilonidal sinus, diabetes mellitus and morbid obesity (Application 2012/5031), and sleep apnoea (Application 2013/1738) are related to his service. His applications were refused by the respondent and the Veterans’ Review Board.
Under s 34J of the Administrative Appeals Tribunal Act 1975 and with the consent of the parties the Tribunal decided to review the decision by considering the material lodged by the parties and without holding a hearing.
LEGISLATIVE FRAMEWORK
The period of Mr Sheppard’s service in the army constitutes defence service under the Veterans’ Entitlements Act 1986 (the Act).
Section 120(4) of the Act requires the Tribunal to decide whether a veteran’s medical conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the SoPs.
The relevant SoP concerning diabetes mellitus is SoP No. 90 of 2011. Factor 6(b) provides:
(a)for type 1 diabetes mellitus only, being treated with interferon alpha within the six months before the clinical onset of diabetes mellitus;
(b)for type 2 diabetes mellitus only,
(i)being overweight for a period of at least five years before the clinical onset of diabetes mellitus;
Paragraph 9 defines being overweight as:
"being overweight" means an increase in body weight by way of fat accumulation which results in at least one of the following:
(i)a Body Mass Index (BMI) of 25 or greater; or
(ii)a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;
The BMI = W/H2 and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
[Emphasis in original]
The relevant SoP concerning morbid obesity is SoP No. 32 of 2003. Factor 5(b) provides:
(b) undergoing treatment:
(i) with a drug from the specified list; or
…
and which drug cannot be ceased or substituted, at the time of the clinical onset of morbid obesity;…
Paragraph 8 defines undergoing treatment with a drug from the specified list as:
therapeutic administration of one of the following drugs:
…
(xv) Insulin
The relevant SoP concerning sleep apnoea is SoP No. 14 of 2005. Factor 5(b) provides:
(b) being obese at the time of the clinical onset of sleep apnoea;
ISSUES
On 18 December 2012 Mr Sheppard’s advocate, Mr John Horan withdrew the claim for pilonidal sinus. The parties agreed that Mr Sheppard suffers from diabetes mellitus, morbid obesity and sleep apnoea. The issues before the Tribunal are whether these conditions are defence-caused.
IS DIABETES MELLITUS DEFENCE-CAUSED?
In documents lodged with the Tribunal Mr Sheppard submitted that his accepted condition of chondromalacia patellae prevented him from undertaking physical activity to compensate for his calorific intake, and the condition caused obesity which led to diabetes mellitus type 2.
Mr Sheppard explained that when he enlisted in the army in 1990 he was tall (188 cm) and thin. He trained as a cook and qualified in November 1991. After his marriage on 28 January 1993, he lived away from the army base. He emphasised that during his service he suffered from knee problems, causing him to gain weight because of his restricted ability to exercise. He said that the weight gain was also due to poor eating habits resulting from his employment as a cook, because he worked long hours and rarely prepared proper meals for himself after cooking for others all day. He said that his work involved constant lifting and carrying of food and kitchen equipment.
He said that he was discharged from the army in 1993 as medically unfit because of his knee condition and weight which was 104 kg, giving a Body Mass Index (BMI) of 30 which was considered to be obese. He explained that following discharge he became depressed because his dream of a career in the army had ended, although he acknowledged that he had not sought or received treatment for a psychiatric or psychological condition. He sought solace and comfort in eating and this, together with an inability to exercise because of his knee condition, caused him to continue to gain weight.
Mr Sheppard continued to work long hours as a chef in hotels and other establishments until 1999 when his surgeon advised him to cease because of the effect on his knees of long hours and the lifting and carrying involved. He said that his weight gain led to the development of diabetes mellitus type 2 in about May 2001. He said that he was self-injecting insulin four times each day and in 2002 he was given oral medication for a period of time but on medical advice he resumed taking insulin. He found work as a security guard until 2005 when he commenced as a prison officer with the Office of Corrections. He said that his duties involve less physical activity but he has restrictions on his movement and experiences some difficulty walking.
Documents from Mr Sheppard’s attendances at his local medical practice between 2009 and 2013 are inconsistent in their diagnoses of the type of diabetes mellitus suffered by him. In a report dated 2 October 2009, Dr L Rivera-Woll, locum to Dr R Arnott, endocrinologist, stated that Mr Sheppard was diagnosed with diabetes mellitus type 1 in 2002 and he commenced taking insulin. He had a family history of diabetes type 2. Dr Arnott reviewed Mr Sheppard in January 2010 and noted that Mr Sheppard was contemplating a low carbohydrate and high protein diet which might be beneficial with respect to diabetes. Dr Arnott stressed the importance of monitoring blood glucose readings frequently, and said that Mr Sheppard…may even need to decrease his insulin dose if he is following this diet.
In a Diagnostic Report - Diabetes Mellitus completed on 7 February 2012 in connection with Mr Sheppard’s application for an increase in disability pension, Dr P Carter, general practitioner, diagnosed diabetes mellitus type 2 with a date of clinical onset as May 2002. On 25 April 2012 Dr E Janus, consultant physician, reported that Mr Sheppard had negative GAD antibodies and therefore the diagnosis was diabetes mellitus type 2. In a further report dated 23 December 2013 Dr Janus noted that in 2002 Mr Sheppard developed diabetes mellitus which was strongly suggestive of type 1 and which responded to insulin for twelve months. However Mr Sheppard was able to manage on oral agents without insulin between 2003 and 2004, before resuming insulin injections. Dr Janus noted that GAD antibodies were negative between 2003 and 2010. He said:
…Positive GAD antibodies indicate Type 1 but not all Type 1 patients have GAD antibodies. Type 2 patients generally don’t have GAD antibodies.
More recent poor control could occur in either type 1 or type 2 and does not help us distinguish.
The marked obesity before onset of diabetes and subsequently is more suggestive of type 2 but again does not prove that.
Service documents before the Tribunal show that on 18 February 1991 Mr Sheppard reported a painful knee (with swelling and bruising) after a 5 km run. He was found to be fit for restricted duty, with No running, Drill able to swim. On 6 June 1991 during a hospital admission for excision of a pilonidal sinus he was recorded as Activity/Movement: PT 5 X per week. In a Notification of medical assessment dated 26 February 1993 specific restrictions included No marching or running. Can swim for PT… A Nursing report dated 13 March 1993 included reference to …for weight reduction diet. A Medical attendance and treatment report dated 15 March 1993 assessed Mr Sheppard as Fit for full duty but noted that he Must lose 20 kg in (sic) next 6 months.
In a Patient referral and report dated 17 May 1993 the army dietitian noted the referral for diet advice to lose weight. She recorded:
Diet history reveals irregular eating habits and a high sugar intake. We discussed the principles of a weight reduction programme and I recommended:
1) 5,000 KJ low fat meal plan.
2) spread food evenly throughout the day.
3) reduce evening meal.
4) avoid high sugar drinks + [increase] water intake.
I shall review his progress in 2 weeks.
On 31 May 1993 the dietitian recorded:
Wt: 108 kg. [decreased] sugar + fat in diet. Eating more regularly. Wt stable. To [increase] exercise or reduce serve sizes a little.
An Inpatient summary of a hospital admission on 17 June 1993 for arthroscopy of a knee joint recorded: Pte Sheppard has again been told the importance of losing weight, but has made no progress…On 25 June 1993 a Medical Board Examination recorded Mr Sheppard’s weight as 104 kg and noted: …105 kg Mar 93. Advised to lose wt but doing so very slowly. Seeing dietician. On 15 October 1993 the Final Medical Board report noted that Mr Sheppard suffered from Bilateral chondromalacia patellae, aggravated by obesity.
After considering all the material including the medical reports the Tribunal finds that the type of diabetes mellitus suffered by Mr Sheppard is unclear. Even if the Tribunal finds that a diagnosis of type 2 is preferable (factor 6(b) of SoP No. 90 of 2011), and even if the Tribunal finds Mr Sheppard had been overweight for a period of at least five years before the clinical onset of diabetes mellitus (factor 6(b)(i)), there must be a connection with service before he can succeed in his application in respect of diabetes mellitus.
The material shows that Mr Sheppard’s condition of chondromalacia patellae became increasingly symptomatic from about November 1991 as a result of exercise that he was required to undertake in the army. In response he was excused from running and he gained weight during his service because of a lack of exercise and the consumption of excessive amounts of calories and a high sugar intake. The documents indicate that he was capable of performing appropriate types of exercise (such as swimming), and was given specific advice about weight reduction by a dietitian. In March 1993 he was told to lose 20 kg. In May 1993 the dietitian noted that irregular eating habits and high sugar content, rather than the knee problems, had contributed to the weight gain. In June 1993 he had not made significant progress and his weight continued to increase. The medical examination prior to discharge noted that Mr Sheppard’s obesity aggravated his knee condition rather than caused it.
The Tribunal finds that Mr Sheppard developed pain in his knees during his army service. His obesity was caused by poor choices regarding the type and quantity of food he consumed, and a lack of exercise despite recommendations of appropriate types of physical activity. Mr Sheppard acknowledged that after leaving the army he was overweight and he continued to work in physically-demanding occupations as a chef, security guard and later a prison officer before the onset of diabetes mellitus in about 2002. He conceded that he became depressed or anxious about the end of his military career, and this may have contributed to his weight gain, but he has had no diagnosis or treatment.
In the circumstances the Tribunal is not reasonably satisfied that Mr Sheppard’s defence service from 1990 to 1993 was responsible for his weight gain and for him being overweight for at least five years before the clinical onset of diabetes mellitus in about 2002. Therefore, the Tribunal finds that Mr Sheppard’s diabetes mellitus is not defence-caused.
IS MORBID OBESITY DEFENCE-CAUSED?
Mr Sheppard stated that, for reasons similar to those given in respect of obesity leading to the development of diabetes mellitus, his excessive weight gain was a consequence of his defence service, and the use of insulin for his diabetes mellitus contributed to the development of morbid obesity in about 2011. He confirmed that he was using insulin in 2011.
Dr Carter stated in a report dated 21 March 2013 that Mr Sheppard had attended therapy sessions at the local medical clinic to deal with his morbid obesity. Dr Carter concluded that the condition was the result of comfort eating arising from anxiety/depression following the end of Mr Sheppard’s military career.
The Tribunal finds that the date of clinical onset of morbid obesity was about 2011. For reasons given in respect of diabetes mellitus, the Tribunal finds that Mr Sheppard’s excessive weight gain leading to morbid obesity was not a consequence of his defence service. The Tribunal also accepts the opinion of Dr Carter that the condition arose from Mr Sheppard’s decision to indulge in comfort eating after the end of his military career. Further, any weight gain due to the use of insulin for a non-accepted condition supports the conclusion that the condition was not causally related to service. Therefore the Tribunal finds that Mr Sheppard’s morbid obesity is not defence-caused.
IS SLEEP APNOEA DEFENCE-CAUSED?
Mr Sheppard stated that his obesity had caused sleep apnoea. He noted that after his diagnosis of morbid obesity he had experienced a sleeping disorder that included excessive snoring, disturbed sleep and excessive daytime sleepiness.
Dr V Wadhwa, consultant sleep and respiratory surgeon, conducted a sleep study on 3 October 2012 and noted a BMI of 42.2. He diagnosed moderate obstructive sleep apnoea. Consequently the Tribunal finds that the date of clinical onset of sleep apnoea is 3 October 2012.
Although Mr Sheppard was obese at the time of clinical onset of sleep apnoea (factor 5(b) of SoP No. 14 of 2005), for the reasons given in respect of diabetes mellitus and morbid obesity the Tribunal finds that Mr Sheppard’s obesity and morbid obesity were not a consequence of his defence service. Therefore the Tribunal finds that Mr Sheppard’s sleep apnoea is not defence-caused.
DECISION
Application 2012/5031:The Tribunal affirms the decision under review.
Application 2013/1738: The Tribunal affirms the decision under review.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member
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Associate
Dated 4 July 2014
Date of hearing 1 July 2014 Advocate for the Applicant Mr J Horan Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans' Affairs
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