JRKH and Military Rehabilitation and Compensation Commission
[2014] AATA 883
•27 November 2014
[2014] AATA 883
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/2503
Re
JRKH
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Dr M Denovan, MemberDate 27 November 2014 Place Brisbane The decision under review is varied so as to affirm the original determination of the Commission in respect of suppression of hypothalamic pituitary gonadal axis and low testosterone levels.
.........................[Sgd]...............................................
Deputy President I R Molloy
Dr M Denovan, Member
CATCHWORDS
COMPENSATION – Service injury or disease – Low testosterone levels – Suppression of hypothalamic pituitary gonadal axis – Establishing diagnosis – Standard of proof – Medical evidence – Reviewable determination as varied affirmed.
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth), ss 5, 23, 319, 335, 337
Veterans’ Entitlements Act 1986 (Cth), ss 119-120B
CASES
Repatriation Commission v Cooke [1998] FCA 1717
Repatriation Commission v Deledio (1998) 83 FCR 82
Kaluza v Repatriation Commission [2011] FCAFC 97
SECONDARY MATERIALS
The Royal College of Pathologists Australasia Manual
REASONS FOR DECISION
Deputy President I R Molloy
Dr M Denovan, Member27 November 2014
On 9 July 2012 the applicant made a claim under s 319 of the Military Rehabilitation and Compensation Act 2004 (Cth) (“the MRC Act”) for acceptance by the respondent
(“the Commission”) of liability for an injury or disease related to warlike service described as low testosterone levels.
On 22 October 2012 the respondent made a determination rejecting liability. The reason for rejecting liability was that a confirming diagnosis had not been established.
On 28 March 2014 the Veterans’ Review Board varied the Commission’s determination to include a diagnosis of suppression of the hypothalamic pituitary gonadal axis. The Board otherwise affirmed the earlier determination.
The applicant applies to the Tribunal for a review of the determination of the Board
(“the reviewable determination”).
BACKGROUND
The applicant was born on 9 June 1973. He was married in 2001 and has two children aged eight and nine.
The applicant enlisted in the Australian Regular Army on 6 January 2004 and was discharged on 26 April 2010.
Prior to enlisting the applicant had a number of occupations including salesman. Since leaving the Army he has worked as a fitness instructor.
In the Army the applicant was a commando. He was deployed to East Timor in 2006, and to Afghanistan in 2009.
The applicant returned from deployment to East Timor in August 2006. He says that on his return he was a “bit more agitated” than previously.
His wife describes him at this time as “highly anxious and stressed”. One change was that he would raise his voice in anger to her and the children.
She also recounts he was experiencing chest pains and took numerous tests over an
18 month period. At one point he sought emergency medical treatment fearing a heart attack.
The applicant was in Afghanistan from March to July 2009. Both the applicant and his wife describe further changes in his behaviour when he returned from Afghanistan.
In particular he was more aggressive and “reactive”. The applicant describes putting his fist through a wall and destroying things around the house.
His libido was diminished and he suffered slight erectile dysfunction. He slept a lot and was washed out. He was more distant from his wife and felt that she was always angry with him.
The applicant’s wife says his behaviour and moods after his return from Afghanistan were a cause of great stress. She was considering separation and divorce.
Sometime after his discharge from the Army the applicant went on an overseas trip with a friend. He says the friend was taking a hormone supplement and gave him a bottle of his tablets.
The applicant says the tablets made him feel more energised. His wife says that after his trip away he was no longer aggressive and reactive. She describes a massive improvement.
She says that when she mentioned this to the applicant, he told her he had been taking a prescription drug, DHEA (Dihydrotestorne), but did not have a prescription for it.
The applicant’s wife says the applicant continued taking DHEA off and on. She says when he ceased taking the DHEA she would notice a change within 24 hours. He would revert to being reactive and aggressive.
She says she then started research on DHEA. She says that as a result she made arrangements for the applicant to see an endocrinologist.
The applicant’s general practitioner records that he saw the applicant with his wife on
21 July 2011. Both the applicant and his wife wanted a referral to an endocrinologist.
According to the general practitioner’s notes the applicant’s wife was adamant DHEA had improved his mood. The general practitioner referred the applicant to Dr Strakosch, consulting endocrinologist.
Before seeing the endocrinologist the applicant, on 24 August 2011, underwent a testosterone test. The pathology result was “Testosterone 12.2”.
Dr Strakosch first saw the applicant in October 2011. The referral was described by
Dr Strakosch “for review of emotional instability after deployment as a [sic] Australian Army commando.”[1]
[1] T3, Letter dated 14 October 2011.
The applicant told Dr Strakosch that on return from Afghanistan he “was very irritable and his wife felt that he was a changed man”. He told Dr Strakosch he started DHEA tablets and noticed an immediate improvement.
Dr Strakosch reported: “Investigations showed testosterone was low/normal at
12.2, LH 5 and DHEAS was normal.” Dr Strakosch’s assessment was “suppression of the hypothalamic pituitary gonadal axis related to [Posttraumatic Stress Disorder]”. [2]
[2] Ibid.
Dr Strakosch prescribed Primosteston Depot 250 mg IMI (intramuscular injection) for nine weeks. He then prescribed Reandron. The applicant continues to take Reandron, which he self-injects, usually on a six-weekly basis.
Whilst taking the Reandron the applicant continued taking DHEA supplied by his friend. In March 2013 he consulted his general practitioner because the supply from his friend had “run down”.
The general practitioner contacted Dr Strakosch in May 2013 to discuss DHEA in regard to its use in hypothalamic pituitary axis suppression. He notes Dr Strakosch as saying to his knowledge there was no supporting evidence in cases such as these especially when already using exogenous testosterone.[3]
[3] Exhibit 3, page 14.
Since May 2013 the applicant has been taking DHEA on prescription from his general practitioner as well as injecting Reandron. He has not seen Dr Strakosch for 18 months.
The applicant says that about six months after he commenced the Reandron he was diagnosed with Posttraumatic Stress Disorder (“PTSD”). The respondent has accepted liability for his PTSD.
The applicant’s wife says that if he forgets to take Reandron on schedule then his moods change. He goes back to being reactive and angry.
DIAGNOSIS
Under s 23 of the MRC Act the Commission must accept liability for an injury or disease for which a claim is made under s 319 if it is a service injury or disease and none of the exclusions in Part 4 of the MRC Act apply.
Section 5(1) of the MRC Act provides:
…
“disease” means:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
…
“injury” means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.
Chapter 7, Part 2, of the MRC Act governs the determination of claims under
the MRC Act. The standards of proof that apply in determining issues under
the MRC Act are found in s 335.Neither the applicant nor the Commission has any onus of proving any matter that is or might be relevant to the determination of a claim.[4] The process for determining claims mirrors that set out in the Veterans’ Entitlements Act 1986 (Cth).[5]
[4] Section 337, Military Rehabilitation and Compensation Act 2004 (Cth).
[5] Veterans’ Entitlements Act 1986 (Cth), ss 119-120B.
The first question is whether the applicant is suffering from the injury or disease as claimed (or some other injury or disease). Under s 335(3) of the MRC Act the diagnosis is to be established to the Tribunal’s reasonable satisfaction: Repatriation Commission v Cooke.[6]
[6] [1998] FCA 1717.
Only after the diagnosis is established should the Tribunal proceed through the four steps explained by the Full Court of the Federal Court in Repatriation Commission v Deledio:[7] Cooke (supra); Kaluza v Repatriation Commission.[8]
[7] (1998) 83 FCR 82.
[8] [2011] FCAFC 97 at [15].
The applicant relies on the evidence of Dr Strakosch who, following his initial consultation, expressed the view that the applicant “has suppression of the hypothalamic pituitary gonadal axis related to PTSD”, and prescribed Primosteston Depot and subsequently Reandron.
This is somewhat surprising for several reasons. First, investigations, as Dr Strakosch reported, showed the applicant’s testosterone level to be within the normal range albeit “low/normal”.
Secondly, Dr Strakosch assessed suppression of the hypothalamic pituitary gonadal axis related to PTSD. Yet there had been no previous diagnosis of PTSD.
PTSD was part of Dr Strakosch’s own diagnosis based on his initial and relatively brief consultation. Dr Strakosch said most of the information he obtained from the applicant is contained in his letter of 14 October 2011, which is a few short paragraphs.
To this may be added that the Health Commission recommends that there be two tests carried out before making a diagnosis of suppression of the hypothalamic pituitary gonadal axis. Similarly the suppliers of Reandron suggest two test results before that medication is prescribed, and also say that an indication for Reandron is a testosterone level under eight.
Dr Strakosch said he thought a better gauge of these matters was a person such as the applicant who responds to the medication. As to suppression of the hypothalamic pituitary gonadal axis being related to PTSD, Dr Strakosch said this was almost expected.
Dr Strakosch did not think the lower end of the normal testosterone range was normal for a fit soldier. However he acknowledged that physical training could lead to a drop in testosterone.
He said that DHEA was a weak hormone treatment which can be converted by the body to testosterone. It was not something he prescribed for males. He agreed that the medication could have a placebo effect. He agreed that testosterone levels drop during the day so that tests should ordinarily be undertaken in the morning.
The applicant undertook a second testosterone test on 21 March 2012, with pathology of 10.9nmol/L. However this was taken at 5 pm. The next test was 9.7nmol/L on
31 July 2012. The time of this test is unknown. Subsequent test results of respective nmol/L levels, including dates and times, were:
·18.2 on 30 October 2012 at 11:15 pm;
·22.1 on 19 February 2013 at 2:45 pm;
·19.2 on 24 July 2013 at 11:00 am;
·18.2 on 4 September 2013 at 9:40 am; and
·13.1 on 30 January 2014 8:50 am.
On 11 September 2012 Dr Nicoll, Compensation Medical Adviser, described the applicant’s situation as atypical, since the reported low testosterone level of 12.2nmol/L was within the normal range. He referred to Table 7 “Reference intervals for testosterone and related androgens (serum)” in The Royal College of Pathologists Australasia Manual, which indicates a range of 8-35 nmol/L for an adult male.
Dr Nicoll concluded that as the applicant’s levels of testosterone and lutenizing hormone were within the normal range, there was no injury or disease “and as such there does not seem to be a suppressed pituitary gonadal axis.”[9]
[9] T9, Report Dr Nicoll dated 11 September 2012.
Dr Stephen Stening, urologist, assessed the applicant on 10 September 2013. He noted the applicant was taking the following medication: DHEA 25-50 mg a day;
Reandron IMI every six weeks; Efexor 75-150 mg/day; Diazepam 1.25mg as required; and Sildenafil (Viagra) as required.In his report dated 12 October 2013,[10] Dr Stening concluded the applicant's erectile dysfunction is minor; erectile dysfunction is not primarily caused by a low/normal serum testosterone; there are no vascular neuropathic or hormonal risk factors evident; serum PSA and prolactin levels are normal; and sexual drive and mild erectile dysfunction symptoms could be related to psychosexual factors and aggravated by side effects of psychotropic medication.
[10] T16, page 52.
He said that testosterone tests revealed variable levels which are either low/normal and on one occasion slightly below normal. Dr Stening said the lower range of normal is 10. He said the applicant’s tests were at the lower level, either within normal limits or very near. He did not accept it was reasonable to assume that low testosterone was the cause the applicant’s symptoms when he returned from Afghanistan. He said Reandron was rarely used as a treatment for erectile dysfunction.
The Commission concedes that low levels of testosterone could be classified as a disease, but submits the applicant’s testosterone levels are not below the normal range, so as to establish disease within the meaning s 5(1) of the MRC Act. Reliance was placed on the applicant’s pathology results, and the reports of Dr Nicoll and Dr Stening.
The applicant relied on the evidence of himself, his wife, and Dr Strakosch. It was submitted that what is normal in terms of testosterone levels varies between individuals, and the test results were not normal for the applicant.
The submission seems to be that the applicant’s testosterone levels are not what should be expected of a man of his apparent physical fitness. This reflects in part what
Dr Strakosch said.
However, as Dr Strakosch acknowledged, physical fitness is not necessarily an indicator of testosterone levels. Tests of elite male athletes, for example, can return notoriously low levels of testosterone.
As to the expert evidence we prefer that of Dr Stening and Dr Nicoll over Dr Strakosch’s evidence.
Having regard to all of the evidence we are not satisfied as to the applicant’s diagnosis of low testosterone levels or suppression of the hypothalamic pituitary gonadal axis such as to constitute an injury or disease within the meaning of s 5(1) of the MRC Act.
CONCLUSION
In the reviewable determination the Board varied the Commission’s determination to include a diagnosis of suppression of the hypothalamic pituitary gonadal axis.
On our reading of the Board’s reasons it appears that, at the invitation of the applicant’s representative, the Board changed the claimed diagnosis to include suppression of hypothalamic pituitary gonadal axis in addition to or in substitution for low testosterone levels. However we are not convinced the Board expressly addressed the existence of either condition.[11]
[11] T1, page 5, paragraph 5.
DECISION
We consider that the reviewable determination should be varied so as to affirm the original determination of the Commission in respect of suppression of hypothalamic pituitary gonadal axis and low testosterone levels.
I certify that the preceding 61 (sixty -one) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy and
Dr M Denovan, Member............................[Sgd].............................................
Associate
Dated 27 November 2014
Date of hearing 7 October 2014 Solicitors for the Applicant Peter Wallace, Wallace Davies Solicitors Solicitors for the Respondent Matylda Gostylla, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Standard of Proof
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Medical Evidence
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Compensatory Damages
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