Judge and Repatriation Commission - [2002] AATA 420

DECISION AND REASONS FOR DECISION [2002] AATA 420

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/335

VETERANS' APPEALS DIVISION       )
           Re      DAVID BRIAN JUDGE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date31 May 2002
PlaceAdelaide

Decision      The Tribunal sets aside the decision under review insofar as it determined that the veteran's multiple myeloma was not defence-caused, and substitutes a decision that the veteran's myeloma was defence-caused, with effect from 18 September 1998.
      (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – whether veteran's condition of and death from multiple myeloma was defence-caused – whether veteran is entitled to medical treatment and pension for incapacity
Veterans' Entitlements Act 1986 sections 70, 120, 120B
Statement of Principles No. 73 of 1999

REASONS FOR DECISION

31 May 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) dated 30 November 1998 which refused a claim by Mr Judge (the veteran) for medical treatment and pension for incapacity from multiple myeloma on the grounds that the condition was not defence-caused. The Veteran's Review Board (VRB) affirmed the decision of the Commission on 16 June 2000. The veteran died on 29 July 2001, and his widow, Mrs Judge (the applicant) is continuing the application.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Broderick represented the applicant, who gave oral evidence. Mr Doube represented the Commission.
The veteran, who was born on 15 August 1943, was 57 years of age when he died on 29 July 2001. He served with the Royal Australian Air Force (RAAF) from 20 April 1970 until 11 August 1997. His eligible service is defence service from 7 December 1972 to 11 August 1997. The standard of proof is that of reasonable satisfaction in accordance with section 120(4) of the Veterans' Entitlements Act 1986 (the Act), which provides:
"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B"
On 14 August 1998, the veteran lodged a formal claim for pension in respect of, inter alia, multiple myeloma; and in accordance with section 120B of the Act, reasonable satisfaction is to be assessed by reference to the appropriate Repatriation Medical Authority Statement of Principles (the relevant SoP). Section 120B of the Act provides:
"(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2:For hazardous service and member of the Forces see subsection 5Q (1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)      there is in force:
(i)a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)      the kind of injury suffered by the person; or
          (b)      the kind of disease contracted by the person; or
          (c)      the kind of death met by the person;
          as the case may be."
In this matter the relevant SoP for the condition of Myeloma, is Instrument No 73 of 1999. Myeloma is defined in the relevant SoP as:
"… a form of plasma cell malignancy derived from a single clone of plasma cells, attracting ICD-10-AM code C90. This definition includes plasma cell leukaemia, multiple myeloma and solitary plasmacytoma of bone or extramedullary site."
The applicant contends that the veteran suffered multiple myeloma during his relevant defence service; that he did not receive appropriate clinical management for his condition of multiple myeloma during the period of his defence service; that he suffered a material contribution to, or aggravation of, his multiple myeloma as a result of the inappropriate clinical management of the condition during his defence service; and that thus factor 5(c) of the relevant SoP is satisfied. Factor 5(c) and paragraph 6 of the SoP read:
"…
(c)inability to obtain appropriate clinical management for myeloma.
Factors that apply only to material contribution or aggravation
6.Paragraph 5(c) applies only to material contribution to, or aggravation of, myeloma where the person's myeloma was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers."
Section 70(5)(d) of the Act provides:
"(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
…
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…"
The Commission argues that the veteran's condition of multiple myeloma was only diagnosed after his eligible defence service had concluded. As such, it was not possible that the condition was contributed to, or aggravated by, inappropriate clinical management during eligible defence service. Clinical management of the condition only commenced after eligible defence service.
The veteran was 26 years of age when he joined the RAAF, after working as a stock agent, wool classer and as an assistant manager at Reliance Agencies. He trained at RAAF Base Edinburgh in South Australia and was posted on 14 December 1970 as an air movements and motor transport officer at Point Cook and Tottenham in Victoria. He progressed through the ranks to become Commanding Officer at RAAF Base Edinburgh from December 1984 to December 1987 and from 9 November 1993 until he accepted an offer of early retirement on 11 August 1997, he was a Group Captain Officer Commanding at RAAF Base Wagga Wagga.
The veteran was at RAAF Base Fairbairn in 1982, when he developed quite a severe rash on his face and other parts of his body. The rash did not respond to treatment, and the condition was diagnosed subsequently as urticaria with unknown triggering factors. Dr Cassar, Consultant Physician, recommended on 27 April 1982, that the veteran be referred to Professor Penny, Immunologist, at St Vincent's Hospital in Sydney. Professor Penny examined him on 30 June 1982, and reported that the veteran had suffered recurring urticarial eruptions since 1967, a period of 15 years. The lesions were steroid responsive, and Prednisolone had been prescribed. Professor Penny recommended admission to Hospital for skin biopsies, looking for a confident diagnosis of lupus, and also to attempt to confirm the presence of Sjorgen's Syndrome. He stated that therapeutic strategies would be implemented then, rather than intermittent high dose steroids.
The veteran was admitted to St Vincent's Hospital, Sydney, on 14 July 1982, and discharged on 20 July 1982. Dr Roberts, in the Hospital's Haemotology Department, reported that the results of the bone marrow test showed "No diagnostic changes. Borderline plasmacytosis". Dr Blackie, Immunology Registrar, stated in the Discharge Summary that with a diagnosis of urticaria and benign IgG lambda paraprotein, the veteran had suffered from:
"… a discoid lupus rash since 1967. More recently, he has complained of arthralgia and morning stiffness involving knees and ankles and keratoconjunctivitis sicca. An IgG paraprotein of 13 gm/1 was noted as an Outpatient.
…
The final opinion was that this man had a benign monoclonal paraproteinaemia which is unassociated with his urticaria. There was no obvious precipitating agent for his chronic urticaria. This has been managed by placing him on an exclusion diet with challenges and he is to be followed up in the Outpatients Department to assess his response to this regime."
[T4/23-24]
On 27 October 1982 Professor Penny reported to Dr Baro at RAAF Base Fairbairn, in the following terms:
"Just a final report on David Judge. He has a benign monoclonal gammopathy, IgG lambda of 14 gms./1. with no evidence of multiple myeloma. He has chronic discoid L.E. of the face which is stable and he has urticaria of no underlying mechanism although there was a suggestion that tartrazine and coccine may have triggered it. However he is best controlled not on a diet but on H1 and H2 blockers in the form of Zadine and Cimetidine. We would like to review him in six months time." [T4/25]
On 22 April 1983 Professor Penny reported again in the following terms:
"Mr. Judge came back for review. We have not been able to identify any further trigger factors, he went onto a diet exclusion and then tried a number of foods without being able to trigger his urticaria.
Features related to his benign monoclonal gammopathy have not altered with no development of bone pain or any other systemic features and his cutaneous discoid lupus is under control.
I will review him in six months." [T4/26]
On 24 October 1983 Professor Penny reported in the following terms:
"David Judge came back for review.
His monoclonal gammopathy is being reviewed on this occasion but he is certainly not symptomatic from it. His angio-oedema has been spectacularly controlled on H1 and H2 blockers Zadine and Tagamet and these doses are now down to one Zadine daily and Cimetidine i b.d.
For his tentative discoid L.E. I am concerned about the extension of the skin lesions so it has been my recommendation to start Plaquenil 200 mgs. daily. I have asked him to photograph his face and to review it in six months. In the meantime you could perhaps kindly get his eye checked for any corneal or retinal effects of Plaquenil and the dose could be increased to ii daily if necessary." [T4/27]
The applicant gave evidence, which I accept, that the veteran was not told of the 1982 diagnosis of benign monoclonal gammopathy, nor of the existence of a paraprotein. It is not in dispute that some patients with benign monoclonal gammopathy go on to develop myeloma. Harrison's Principles of Internal Medicine, Thirteenth Edition, Volume 2, Part 11, Section 1 Disorders of the immune system, Plasma Cell Disorders, reads, in part, at page 1621:
"MULTIPLE MYELOMA Definition Multiple myeloma represents a malignant proliferation of plasma cells. The terms multiple myeloma and myeloma may be used interchangeably. The disease results from the uncontrolled proliferation of plasma cells derived from a single clone. The tumor, its products, and the host response to it result in a number of organ dysfunctions and symptoms of bone pain or fracture, renal failure, susceptibility to infection, anemia, hypercalcemia, and occasionally clotting abnormalities, neurologic symptoms, and vascular manifestations of hyperviscosity.
…
Pathogenesis and clinical manifestations (Table 280-1) Bone pain is the most common symptom in myeloma, affecting nearly 7 percent of patients. The pain usually involves the back and ribs, and unlike the pain of metastatic carcinoma, which often is worse at night, the pain of myeloma is precipitated by movement. Persistent localized pain in a patient with myeloma usually signifies a pathologic fracture. The bone lesions of myeloma are caused by the proliferation of the tumor cells and the activation of osteoclasts which destroy the bone. …
…
Diagnosis and staging
…
The most difficult differential diagnosis in patients with myeloma involves their separation from people with benign monoclonal gammopathies or monoclonal gammopathies of uncertain significance (MGUS). MGUS are vastly more common than myeloma, occurring in 1 percent of the population over age 50 and in up to 10 percent over age 75. Patients with MGUS usually have fewer than 20 g/L (2 g/dL) of M components, no urinary Bence Jones protein, less than 5 percent marrow plasmacytosis, and no anemia, renal failure, lytic bone lesions, or hypercalcemia. When bone marrow cells are exposed to radioactive thymidine in order to quantitate dividing cells, patients with MGUS always have a labeling index of less than 1 percent and patients with myeloma always have a labeling index of greater than 1 percent. Other discriminators include plasma cell acid phosphatase and b-glucuronidase, both of which are low in MGUS patients, and the salmon calcitonin stimulation test, which is positive only in patients with active ongoing bone destruction. Only about 11 percent of patients with MGUS go on to develop myeloma. Typically, patients with MGUS require no therapy.
The clinical evaluation of patients with myeloma includes a careful physical examination searching for tender bones and masses. It is paradoxic that only a small minority of patients have an enlargement of the spleen and lymph nodes, the physiologic sites of antibody production. Chest and bone radiographs may reveal lytic lesions or diffuse osteopenia. A complete blood count with differential may reveal anemia. …"
The applicant maintains that the veteran did not receive appropriate clinical management of his condition. It is clear from the medical records that there was no ongoing monitoring of the veteran's condition after October 1983, despite Professor Penny's recommendation, and an appointment being made for 17 April 1984 at St Vincent's Immunology Clinic. The consultation did not take place. She maintains that the failure to at least monitor the veteran's condition amounted to inappropriate clinical management.
Subsequent to the VRB decision, the veteran wrote to Professor Penny who replied on 25 January 2001 in the following terms:
"I have assessed your information and am quite concerned about the letter. In fact you would have been told I understand that investigations were undertaken because of your urticaria in 1982 and an abnormal protein was found for which a bone marrow examination was undertaken. We would never have undertaken a bone marrow examination in the absence of explaining the you the reason. Your discharge summary in 1982 which was forwarded to Dr Baro at Fairbairn informed him that you did have a paraprotein but a bone marrow and trephine were normal and there was no evidence at that stage of myeloma. The follow up of a paraprotein in the ordinary course of events when you were last seen by us in 1983 again involved a follow up protein for which a note had been put in your file to further watch. The paraprotein was again noted and advice was given to watch this, that is what I have written in the notes and since 1983 the last time you were seen it is very difficult after eighteen years to imagine that you were not advised of the paraprotein. You certainly did not have cancer and my notes indicate that certainly your doctors namely Dr Baro were advised of the paraprotein without evidence of myeloma and that you were asked to be reviewed on a regular basis for this following the last visit in April 1993 [sic].
I believe it would have not been possible for me to avoid indicating to you this protein abnormality, certainly you didn't have cancer then. These were notes that I had written in my file and would be ordinary clinical practice. It is well known for patients to be observed for such a long time before a diagnosis of myeloma was eventually made.
Certainly in my practice anybody undergoing an invasive procedure such as a bone marrow would be indicated as why that was undertaken and what regular follow up would be. Of course after eighteen years it wouldn't be possible to guarantee the precise text of what was discussed with you then. I do however thank you for drawing my attention to the issue and I am sorry that if in any way this has caused difficulty or distress to you. I hope your procedure has done well and that you will have a good response to your treatment."
On the applicant's evidence, the veteran was playing with their son, in 1985, when he suffered some major pain in his chest, which he put down to a torn cartilage. The pain persisted for 6 to 8 weeks. She said in evidence that in January 1994 he suffered severe chest pain in the rib area. The veteran's clinical records disclose that he attended hospital outpatients on 4 January 1994 and 27 January 1994, when pain was recorded as persisting "despite intensive physiotherapy".
The applicant gave evidence also that in late July, during the 3 weeks immediately prior to his resignation from the RAAF, the veteran, who had been offered a redundancy package at short notice, was preoccupied with the detail necessary to hand over his duties with a narrow deadline. He was however, experiencing quite severe hip pain and swelling in his feet, but did not seek medical attention because he, in her words, "did not have the time", and thought that he had strained something in his hip, and did not see it as a health problem. The VRB noted the veteran stating that in about September 1997, one month after his discharge, he developed a right hip problem and soreness around his ribs. I accept the applicant's evidence however, that the hip problem occurred prior to his discharge from the RAAF and her misgivings about the accuracy of the evidence the veteran gave at the VRB Hearing, in the light of his admission to Hospital later that same day for treatment of deep vein thrombosis.

The veteran and the applicant returned to Adelaide after his retirement, and he continued his fitness program, walking 5 kilometres per day. The applicant said in evidence that after a few weeks the pain in his hips and chest was such that he could not walk for more than 10 minutes. He consulted his General Practitioner in November 1997 and was advised to rest. His condition continued to deteriorate until in June 1998, blood tests and x-rays taken at the Wakefield Street Hospital disclosed that he had numerous spinal fractures and bony lesions, including a bony lesion in the rib. These investigations led to the diagnosis of multiple myeloma.
The applicant said in evidence, that as a trained nurse, if she had been aware of the diagnosis of benign monoclonal gammopathy, and the prudence of follow up testing, she and the veteran, who was also health conscious, would have ensured that monitoring of the condition took place. Her evidence, at page 5 of the Extract of Transcript, on the afternoon of the Hearing, summarises her position succinctly:
"MISS PURCELL: Now, before you finish, is there anything that you remembered over lunch-time or something you want to emphasise in your evidence because this is your opportunity?---I think what I have been trying to get across is that – the very nature of this disease is the bone deformities and fractures and all those other terrible things that happen to their bones occurs really rapidly and really – if disease is not treated early. There is medication that we can give and indeed David eventually went onto that, that we can give to stop further skeletal events occurring and I know that David's length of life probably would not have been any longer or it may have been a little bit longer if he had not have had the – if he had started treatment earlier but at least he would have had a better qualify of life without the fractures that occurred because we could have given him this drug, that stops the fractures.
By then it was already - - - ?---By then it was already too late. We gave him this drug to stop further skeletal fractures occurring and in the 3 years that I nursed him he only developed one other skeletal events, which was quite minor in an arm. Most of the times this drug which he – because of his height – he wasn't a big man but he was a tall man – we actually gave him fortnightly to try and stop any further deterioration to his bones and that is approximately double the dose he was taking. That in turn caused major kidney problems for him as well. So it sort of went from one organ to another.
Had a cumulative effect?---Yes. So that is all I would like to get across to you."
It is one of the Commission's submissions that although the veteran had the condition of benign monoclonal gammopathy in 1983, he was not suffering from multiple myeloma when he left the RAAF on 11 August 1997. He had passed medical fitness tests in August 1996 and multiple myeloma was not diagnosed until June 1998. Factor 5(c) of the relevant SoP regarding the inability to obtain appropriate clinical management for myeloma, applies only where the person's myeloma was suffered or contracted before, or during the person's relevant service.
Dr John Norman, Senior Consultant Haematologist/Oncologist at the Queen Elizabeth Hospital, treated the veteran from July 1998 onwards and has provided several reports. He reported on 14 August 2000 in the following terms:
"I have studied the clinical history of Mr David Judge from 1982 onwards and make this statement from my knowledge and experience in the diagnosis and treatment of multiple myeloma.
Given his clinical history since 1997 of sore ribs, a sore hip (October/November 1997), and a painful spine for which he sought massage and chiropractic treatment (January to June 1998) and given the aggressive nature of his disease on presentation to me in July 1998 together with his past history of "benign" monoclonal gammopathy (diagnosed in 1982), it is highly probable that his multiple myeloma was active prior to his discharge from the RAAF in August 1997. This would have been evident from routine assessments such as paraprotein assay and plain x-rays of the painful bones." [Exhibit A4]
Dr Norman's report of 24 September 2001 reads as follows:
"In reply to your letter of the 21st September and in particular to the questions you asked – my "opinion as to the estimated time of clinic[al] onset of Mr Judge's condition of multiple myeloma" – as I have stated before the answer to that question is probably entirely speculative and in fact depends partly on one's definition of the term "clinical onset" – if this means the time of commencement of symptoms due to the disease then it would be late in 1997. If it means the appearance of his paraprotein then it of course means when the paraprotein was initially discovered. One could in fact argue that the first symptoms in relation to his B cell disorder was the onset of his urticaria. One could also argue that the pain in his 10th rib in January 1993 could have been the clinical onset of his disease but we have no evidence of this. The pain also resolved spontaneously.
The answer to the question "what would have comprised appropriate clinical management for multiple myeloma once the disease had been diagnosed" – this depends very much on the extent and severity of the disease at the time and what was routine practice at that time. If he had been proven to have multiple myeloma by the usual criteria at that time and if a painful bony lesion were present the first choice of treatment probably would have been oral chemotherapy with a combination of Melphalan and Prednisolone given orally and intermittently. If he had no demonstrable or symptomatic bony lesions at the time and if the disease, although present, had not had any impact on other organ function one may have simply observed for a period of time to see if the disease were progressive and if so at what rate.
As you can see many of these questions are in fact moot and depend on questions that we cannot retrospectively answer.
I would however, repeat that, had there been a heightened awareness both in the patient himself and in his usual medical carers of the possibility of progression of this disease causing the advanced bony destruction with which he eventually came into my care, this severely painful problem may have been at least delayed for several years." [Exhibit A6]
A perusal of the veteran's clinical records discloses the report of focal tenderness in the 10th rib on 4 January 1994, and the applicant has given evidence of the veteran suffering hip and rib pain in late June/early July 1997. Taking into account her evidence and the views of Dr Norman, I am reasonably satisfied on the whole of the evidence, that the clinical onset of the veteran's multiple myeloma occurred in either 1994, or June/July 1997, during the veteran's relevant service. Professor Penny had requested in 1983, that the veteran be reviewed on a regular basis in the light of the protein abnormality. These reviews did not take place. The diagnosis was not made therefore; and the appropriate clinical management of the veteran's multiple myeloma was not undertaken.
I am reasonably satisfied that the material before the Tribunal raises a connection between the veteran's multiple myeloma and the particular service rendered. I am reasonably satisfied, on the whole of the evidence, that the veteran's multiple myeloma was suffered during his relevant service, and that he was unable to obtain appropriate clinical management for multiple myeloma. Factor 5(c) of the relevant Statement of Principles has been satisfied.
For these reasons, the Tribunal sets aside the decision under review insofar as it determines that the veteran's multiple myeloma was not defence-caused, and substitutes a decision that the veteran's multiple myeloma was defence-caused, with effect from 18 September 1998.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 November 2001
Date of Decision  31 May 2002
Counsel for the Applicant        Mr Broderick
Solicitor for the Applicant         Lempriere Abbott McLeod
Counsel for the Respondent    Mr Doube
Solicitor for the Respondent    DVA