John and Repatriation Commission - [2002] AATA 282

DECISION AND REASONS FOR DECISION [2002] AATA 282

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/376

VETERANS APPEALS DIVISION        )
           Re      OWEN JOHN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date19 April 2002
PlaceMelbourne

Decision      The decision under review is set aside and in substitution therefore IT IS DECIDED that the condition of varicose veins of the applicant's left leg is war-caused. The application is remitted to the respondent for assessment of pension.
  .......Sgd. Mr J. Handley............
  Senior Member
CATCHWORDS
Veterans' Entitlements - Application for acceptance of varicose veins of left leg - varicose veins of right leg previously accepted - whether applicant suffered deep vein thrombosis within 90 days before clinical onset - decision under review is set aside.
Re Videan & Repatriation Commission 1998 AATA 91
Re McLeod-Dryden & Repatriation Commission 1998 AATA 819
Repatriation Commission v Deledio 1998 49 ALD 193
Statement of Principles No. 70 of 1998; No 5 of 2001

REASONS FOR DECISION

19 April 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board ("VRB") of 30 January 2001, which (relevantly) affirmed a decision made by the respondent on 22 June 2000. The VRB decided in its affirmation that the condition of varicose veins of the applicant's left leg were not war-caused.
The applicant has the condition of varicose veins of his right leg accepted as war-caused. The respondent has also accepted bilateral sensori neural hearing loss and tinea as war-caused. The applicant presently receives Disability Pension at 100% of the General Rate.
At the Tribunal hearing, Mr Croyle appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
The relevant Statement of Principle (SoP), with respect to the condition of varicose veins, is Instrument No 70 of 1998. The factors which must exist as a minimum before a reasonable hypothesis is raised connecting the condition with service, were submitted as factors 5(a) and (b) which read as follows-
"(a) suffering from thrombosis of a deep vein draining the affected lower limb before the clinical onset of varicose veins of the lower limb; or
(b) suffering complete or partial obstruction of a vein, draining the affected lower limb at the time of the clinical onset of varicose veins of the lower limb;"
In relation to factor (a) above, both parties agreed that the applicant would need to satisfy a "sub - hypothesis" (refer McKenna v Repatriation Commission 1999 FCA 323). That is to say, if the applicant were to succeed under factor (a), he needs to satisfy an applicable SoP with respect to deep vein thrombosis. Mr Croyle submitted that the applicant relevantly would need to satisfy factors (m) or (n) of Instrument No. 5 of 2001, which is entitled "Deep Vein Thrombosis". Those two factors are found within the Instrument as follows-
"(m) For deep vein thrombosis in a lower limb only, suffering from varicose veins in the affected lower limb within the 90 days immediately before the clinical onset of deep vein thrombosis; or
(n) for deep vein thrombosis in a lower limb only, suffering superficial vein thrombosis of the affected lower limb within the 90 days immediately before the clinical onset of deep vein thrombosis".
Both parties agreed that the sub-hypothesis needs to be satisfied, if the applicant were to succeed under factor (a) of Instrument No. 70 of 1998. It was also agreed - and apparently Professor Myers who was to give evidence would also agree - that the conditions of deep vein thrombosis and varicose veins are different.
In the interpretation of the Statements of Principles and the applicable factors, in so far as it is necessary to comprehend what is meant by "clinical onset" I adopt the conclusions of the Tribunal in Re Videan & Repatriation Commission 1998 AATA 91, and Re McLeod-Dryden & Repatriation Commission 1998 AATA 819.
Owen Charles John
Mr John is presently 76 years of age, born on 22 October 1925. He was a member of the Royal Australian Navy between 9 December 1942 and 3 May 1946.
In evidence, Mr John said that he achieved the rank of Able Seaman and served in the Pacific. He said he worked "all over" ships. Principally, he was on his feet either walking, climbing, lifting, standing or undertaking physical work. He said he was engaged in a theatre of war, where sleep was not always possible and he worked long hours.
During service, Mr John recalled having sharp piercing pains in both legs, mainly around the back of his calves, and the back of his knees. He also noted raised veins around his calves and the back of his knees.
Later - and during service - he also observed swelling in his right leg and left leg adjacent to the area of raised veins. He said that these conditions were present prior to discharge.
With respect to the pain suffered, Mr John said that episodes would last for a few minutes but did not incapacitate him.
His right leg was first treated in 1958. Mr John said, however, that he did not then have left leg treatment because his veins were not then as prominent as they were in his right leg, but he did continue to have raised veins and swelling.
In cross-examination, Mr John was taken to page 4 of the VRB's decision, which is page (viii) of the T-documents. The VRB then recorded, "the veteran said he started developing small varicose veins in his left leg in the early 1950's". Mr John said that he did not recall saying this to the VRB, nor did he recall developing small varicose veins in his left leg in the 1950's.
The applicant was then taken to page 2 of the T-documents, where a document (which seems to be a summary from other records) records attendances of a medical officer on 5 May 1944 and 13 September 1944 for the conditions of "ulcer R calf" and "cellulitis R t leg" respectively. Mr John said that he did not then mention to the medical officer of the complaints in his left leg, because he did not think they were then important. He said that he did later suffer from cellulitis in his left leg and swelling, but had no recollection of advising medical officers of that condition.
On 15 November 1972 a medical officer apparently examined Mr John when an application for pension was made. The report of the examining medical officer is found at page 14 of the T-documents and-in part-it records the condition then present in the applicant's right leg. Scarring from recent surgery was also noted. An entry also exists namely "L leg NAD". Mr John said that he had no recollection of a doctor examining his left leg in 1972.
At page 24 of the T-documents, is a page from the application made to the respondent for acceptance of varicose veins of the left leg. Under the subheading of "reasons for this application" Mr John has recorded - in part - "previously I only had problems with my right leg now I have varicose veins in both legs". Mr John denied the suggestion put to him that the language of the claim form would suggest that the varicose veins in his left leg did not exist until recently, or that he had not had any prior varicose veins in his left leg. Mr John said that he could not explain what he intended to mean by the language used in the form, particularly by the use of the word "now".
Mr John noted the medical history summarised by Doctor Senini who recorded varicose veins in the right leg from 1959. The first time, however, that the applicant's left leg is recorded - for any condition - is at 1979 and then for the condition of odema.
Despite this, Mr John said that an entry in a repatriation medical report of 30 July 1959 (supplementary T-documents at page 10), recording "very slight swelling of left leg" on examination, were the "problems" that he had during service. He said that swelling that was then observed on examination existed during service, but was relieved by rest. Mr John recalled that pain and swelling usually occurred in the afternoons, but it was never reported.
Kenneth Arthur Myers
Doctor Myers is a vascular surgeon who provided two reports for the applicant's solicitors following consultation on 17 May 2001. The reports are dated 11 June 2001 and 29 November 2001. Both reports were received into evidence.
In the first report Doctor Myers concluded that in his experience it was "common for one leg to be more severely affected than the other and to have different rates of progression of varicose veins". He said that it did not "seem logical …. to accept the varicose veins in one leg and not the other given that the underlying factors that would predispose to the development during the course of war-service on one side would surely be similarly acting on the venous system on the other side. He reported that it was his "strong opinion that he has bilateral varicose veins that can be attributable to war service and that the right leg has developed more rapidly than the left and has led to a concentration of efforts for treatment on that side over many years but that the condition has probably always been bilateral".
In his second report Doctor Myers reported that there was "no evidence of a deep vein thrombosis occurring during the course of his service with the navy. However he has evidence now of deep venous insufficiency that is undoubtedly a consequence of the past deep vein thrombosis. I consider that it is likely that this occurred during the course of service with the navy. If it is accepted that the patient must have had a past deep vein thrombosis and that the most likely time of recurrence of the deep vein thrombosis is during the course of service with the Navy then the Statement of Principles would allow an extension of this argument to state that such an event would predispose him to the development of varicose veins".
In evidence, Dr Myers said that varicose veins occur because veins are subject to the pressure of gravity. When a person stands, the veins weaken, which precipitate swelling. In turn there is blood flow from the legs, due to the pressure of gravity. He said the valves in the veins are widened and become incompetent. Eventually the leg swells and the veins become raised and visible. He said that standing or "being on your feet" are the most important factors in the development of the condition of varicose veins.
To the extent that one of the factors in issue concerns a thrombosis, Doctor Myers described this condition as being an aggregation of blood clots, usually in the deep veins, but sometimes in the superficial veins. He said if a thrombosis is present valves are destroyed.
With respect to factors 5(m) & (n) of Instrument No. 5 of 2001, Doctor Myers said that the "most common and significant factor with respect to deep vein thrombosis is the reduction in the rate of blood flow in a deep vein where the vein is varicose". As to the presence of deep vein thrombosis in a superficial vein, Doctor Myers said that there was a 15 to 20% risk of it developing into a deep vein thrombosis.
At the present time, Doctor Myers said that varicose veins can be diagnosed by the use of ultrasound. Before that technology was available, Doctors would diagnose by clinical judgement by observing or testing for pain, swelling and tenderness. He acknowledged that frequently all or some of the symptoms would be absent. He said that a description of piercing pain, swelling and raised veins should cause a suspicion of the presence of a deep vein thrombosis. He said that the applicant now has signs of "champagne bottle leg" in both legs, which is consistent with prior deep vein thrombosis.
Doctor Myers was then taken to his report of 29 November 2001, where he recorded "clearly there was no evidence of a deep vein thrombosis occurring during the course of his service with the Navy". Doctor Myers said that he intended the meaning of the statement to be that there was no medical evidence available to him of any opinion expressed by a doctor of the presence of deep vein thrombosis during service. However, it was his opinion that the applicant's present appearance suggested that he suffered post thrombotic syndrome which was consistent with pre-existing deep vein thrombosis. He said that whilst he could not be sure, he was confident that the applicant's complaint of pain and swelling during the day and night, in service, was compatible with deep vein thrombosis. Additionally, he said if the applicant had varicose veins at or about that time, he would then have had venous disease, which would be associated with deep vein thrombosis.
With respect to factor (b) of Instrument No. 70 of 1998, Doctor Myers said that he was confident the applicant would satisfy this factor. He said it was not necessary in the interpretation of this factor to demonstrate the presence of a 'thrombosis', but only that there was an obstruction. He said the 'obstruction' would be to the outward flow of blood within the veins of the lower limb.
As to his comments in his first report, that it is common to have varicose veins in both legs but one worse than the other, he said in his experience Doctors tend to concentrate on the worst leg when treating for varicose veins.
In cross-examination, Doctor Myers said that an examining doctor would have seen and felt varicose veins if present. A blue discolouration and bulging, in his experience, would have been apparent to any treating doctor. He noted that the applicant had had surgery to his right leg with respect to his varicose veins, but there was no reference made until many years later of the presence of varicose veins in the left leg. He said that he would have been disappointed if a Doctor had not commented on the presence of varicose veins, if it was visible to the patient.
Doctor Myers agreed that overnight rest might resolve the swelling in the legs however, varicose veins do not resolve in the same manner.
Doctor Myers agreed that the activity of standing and walking is a normal everyday occurrence for all humans, as all humans are also exposed to the affect of gravity and thereby predisposed to the risk of development of varicose veins. Nonetheless, it was his opinion that the applicant's left leg varicose veins were related to service, because of the duration of standing and the strain to the applicant's legs during service. In those circumstances, he said the applicant was more likely to suffer varicose veins than other members of the community.
Submissions
Mr Croyle submitted on the basis of the evidence of the applicant and Doctor Myers that the decision under review should be set aside. He said that the first three stages of the analysis in Repatriation Commission v Deledio (1998 49 ALD 193 at 206) were established. Also, that the respondent could not in the circumstances of this application, be satisfied beyond reasonable doubt that a connection with service did not exist.
Mr Croyle reaffirmed the well-known Repatriation principles of veterans not having to prove, but only having to "point to" material which upholds the hypothesis as being reasonable. He said that the applicant having to stand was a major factor in the causation and/or the pathology of varicose veins. It followed that varicose veins were present within 90 days of the clinical onset.
Mr Douglass submitted that for either factor 5(a) or (b) of Instrument No. 70 of 1998 to apply a clinical onset during service was required. Noting that the applicant ceased his operational service on 8 April 1946, there is nothing, he said, which pointed to varicose veins in the left leg prior to discharge.
The respondent submitted that the applicant's recollection of swelling, pain and raised veins was insufficient to constitute clinical onset. Alternatively, if varicose veins were present during service, the applicant would also need to demonstrate that he suffered a thrombosis of a vein.
The respondent submitted that the act of standing and walking was a natural event, to which all humans would at some time be engaged. It follows that soldiers having to march would succumb to or be at high risk of varicose veins and if this was so, it would be referred to in the Statement of Principles.
It was submitted that factor (a) could not be satisfied, because there is no material pointing to deep vein thrombosis in service. Consequently, on the evidence of Dr Myers, a medical officer would not have diagnosed deep vein thrombosis in the applicant's left lower leg. It followed that factor (m) of Instrument No. 5 of 2001 could therefore not apply.
Additionally, Mr Douglass submitted that there was no material pointing to the clinical onset of superficial vein thrombosis during service.
In reply, Mr Croyle submitted that although Dr Myers had said that a diagnosis of deep vein thrombosis and or varicose veins could not be proved in service (because there was no medical evidence available that he could rely on), he said that Dr Myers' evidence of deep vein thrombosis and varicose veins were 'occurring' (in service).
Mr Croyle submitted, with respect to factor (b), that the starting point was to determine whether the applicant suffered a complete or partial obstruction of vein draining the lower left leg at the time of clinical onset.
It was submitted with respect to factor (a), that the factual scenario supports a finding that a deep vein thrombosis draining the affected lower limb did occur before the clinical onset of varicose veins because of having to stand and pressure upon the applicant's legs arising out of his service.
Conclusion & Reasons For Decision
The applicant said in evidence that he suffered pain and swelling and observed varicose veins in both legs during service. He also said that his right leg was worse and surgery was first undertaken to that leg because the varicose veins in his left leg were not as "prominent".
The documents suggest at one level that the applicant did not have any varicose veins or venous insufficiency in his left leg until many years after service. The first medically recorded observation of anything untoward in the applicant's left leg was on 30 July 1959 (supplementary documents at page 10), when a medical officer reported "very slight swelling of left leg". The records of Doctor Senini suggest that the applicant's history of varicose veins in his left leg did not occur before 1979.
Doctor Senini however reported on 24 May 2000, in support of the applicant's claim for acceptance of left leg varicose veins, that the applicant had varicose veins in both legs and the clinical onset was "approx 1940". That notation is consistent with the applicant's evidence at the hearing of the presence of signs and symptoms pointing to varicose veins in his left leg during service.
This would also be consistent with the evidence of Doctor Myers, namely, in his experience persons do not suffer varicose veins in one leg but, tend to suffer them in both legs. This is also consistent with the mechanical and/or pathological basis of having to stand and be exposed to stress or strain.
The language adopted in the claim form at page 24, where the applicant records "now I have varicose veins in both legs", is capable of being interpreted as the varicose veins in the left leg being of recent origin. In fairness, an alternative interpretation is that that word "now" refers to varicose veins being present at the time of claim. However, on the evidence, the presence of varicose veins in the left leg at an earlier date cannot be excluded. In fairness also, the applicant said that he did not complete the form although he did acknowledge that he signed it. He said in evidence that he could not recall reading it before it was signed.
On the basis of the applicant's evidence and that of Doctor Myers, - both oral and in his reports - it appears that the applicant did suffer a deep vein thrombosis during service. Piercing pain with swelling and raised veins is consistent with a diagnosis of deep vein thrombosis. That the applicant now presents with "champagne bottle leg" is also consistent - on the evidence of Dr Myers - of prior deep vein thrombosis.

The first two stages of Deledio are obviously met. The third stage is also satisfied, as there is material raised which points to the hypothesis being reasonable because it is consistent with the template found within (in this case) relevant Statements of Principles. The hypothesis raised by the applicant contains a combination of factor 5(a) of Instrument No. 70 of 1998 & 5(m) of Instrument No. 5 of 2001.
The material (being the applicant's description, observation and complaints of pain) points to the presence of deep vein thrombosis in the applicant's lower left limb during or throughout service and within a period of 90 days immediately before the clinical onset. Because that sub-hypothesis (factor 5(m)) has been raised, it permits factor 5(a) to be raised. The material points to a connection with the service. The hypothesis is, therefore, reasonable.
In so far as the fourth stage of Deledio is concerned, I cannot be satisfied that the injury or disease is not war-caused. Despite the apparent absence of the left leg being reported or recorded (as was the right leg), I am satisfied the applicant is a witness of truth. The passage of time and deficiency of memory may also affect his ability to explain the reporting deficiencies. I am also satisfied the evidence of Dr Myers is sound and is to be preferred. On the material raised by these proceedings I am satisfied and find as a fact that the Veteran suffered from varicose veins in his left leg within the 90 days immediately before the clinical onset of the deep vein thrombosis. The applicant's claim must therefore succeed. The decision under review will be set aside.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ......C. Irons ...................................
  Secretary
Date/s of Hearing  15 March 2002
Date of Decision  19 April 2002
Counsel for the Applicant        Ms M. Chapman
Solicitor for the Applicant
Counsel for the Respondent    Mr R. Douglass
Solicitor for the Respondent