Kerr and Repatriation Commission

[2004] AATA 848

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 848

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/805

VETERANS' APPEALS  DIVISION		)
Re		ALBERT KERR

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date16 August 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

................[Sgd].........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pensions and benefits – veteran claims ischaemic heart disease is related to service – whether Tribunal is reasonably satisfied as to diagnosis – decision affirmed

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Budworth (2001) 66 ALD 285

REASONS FOR DECISION

16 August 2004 Senior Member McCabe    

1.      This is an application for review of a decision of the Veterans’ Review Board (the VRB) dated 2 June 2000 that determined the applicant’s condition of ischaemic heart disease was not related to his service.  The VRB affirmed an earlier decision of the respondent made on 4 February 2000.

2.      The matter was heard over the course of two days: 23 July 2003 and 13 April 2004.  The applicant was represented by Mr Wall.  The respondent was represented by Mr McAninly, a departmental advocate. 

3. The documents compiled pursuant to s 37 Administrative Appeals Tribunal Act 1975 were before the Tribunal.  A number of other documents were also tendered in evidence:

·Three statements of the applicant dated 19 May 2001, 22 October 2001, 23 July 2003;

·Four reports of Dr Campbell dated 18 February 2002, 4 June 2002, 18 November 2002, 29 January 2004;

·A report of Dr Kelly dated 3 April 2003;

·A letter from Dr McCarthy dated 11 January 2001;

·Three reports of Dr Rivers dated 7 August 2002, 18 October 2002, 17 November 2003;

·A report of Dr Rose dated 23 September 2002; and

·A report prepared by Writeway Research Service dated 20 October 2003.

The Tribunal also heard oral evidence from:

·The applicant;

·Dr Rivers;

·Dr Rose; and

·Dr Campbell.

The applicant’s story

4.      Mr Kerr was in the Army. He worked in a field engineering unit which spent long periods in remote locations. He rendered operational service from 4 June 1965 to 29 November 1965 and from 30 March 1967 to 12 February 1968.  He also rendered eligible defence service from 7 December 1972 to 12 December 1977.  He says living conditions he experienced while on operational service and eligible defence service caused his ischaemic heart disease.

5.      Mr Kerr says that while on operational service in Borneo and Vietnam he lived in a tent.  He says all five of his tent-mates smoked. He did not smoke.  The tents were sealed down at night to prevent light escaping.  He would go to bed at 8 o’clock.  The other men would typically come back to the tent at 9 o’clock and commence smoking.  He says if they were ever woken in the night they would commence smoking.

6.      The effect of this was a visible pall of smoke which hung in the air.  It would only take two smokers to create the pall of smoke in the enclosed area of the tent.

7.      He says these conditions were replicated when he returned to Australia (on eligible defence service).  He spent a great deal of time working at the defence facilities in Shoal Water Bay and Tin Can Bay.  He lived in a tent for months at a time. At night the tent flaps would be pulled down to protect the men from the cold or mosquitoes.  Many or all of his tent-mates were smokers.

The medical evidence

8.      Mr Kerr says he first began to suffer pains in his chest and shortness of breath in 1966.  He approached Dr Trappatt in 1967 and complained of symptoms.  Dr Trappatt said he needed to lose weight. He did so, but he says his condition did not improve.

9.      Five years after discharge from the Army in 1977 Mr Kerr says his chest pain and shortness of breath became intolerable.  He says he saw Dr Robinson in 1982 who diagnosed angina. Dr Campbell’s report of 18 February 2002 suggests the applicant also suffered from hypertension in 1977.

10.     Dr Campbell says the applicant now suffers from ischaemic heart disease. He notes Mr Kerr’s pain has been “somewhat atypical” and he has an interventricular conduction defect. It has therefore been difficult to reach a diagnosis – and Dr Campbell says it is likely the diagnosis of ischaemic heart disease has been delayed. There was no reliable scientific testing performed until comparatively recently so one cannot be certain when the ischaemic heart condition began but one cannot exclude the possibility it commenced during the 1970s given the history of ongoing pain. Indeed, Dr Campbell thinks onset during the 1970s following extensive exposure to smoke is the most likely explanation of what has occurred. Dr Campbell noted the applicant now suffers from hypertension, cardiac failure and diabetes.

11.     Dr Kelly, a thoracic surgeon, said there was no evidence of respiratory disease.

12.     Dr Rivers is a cardiologist. He examined the applicant at the respondent’s request. He questions why the applicant’s condition had not been more thoroughly investigated. He said in his report of 7 August 2002:

It would seem on a first principle basis highly unlikely that the patient has had ischaemic heart disease for 40 years, but I cannot exclude this, as he has never been thoroughly investigated.

13.     Dr Rivers was not convinced the applicant suffered from ischaemic heart disease at the time of his report, but conceded it was possible. The applicant subsequently had a thallium scan with a view to reaching a confirmed diagnosis. Dr Rivers reviewed the results of the scan and concluded in his report dated 18 October 2002 that Mr Kerr did not have ischaemic heart disease. Dr Rivers said while thallium scans were not 100% accurate (in the hands of a good operator, a thallium scan had a 10% error rate), the results of the scan confirmed his

…clinical impression that the symptoms are atypical for myocardial ischaemia….[I] think it is quite unlikely this man has chronic chest pain due to coronary artery disease…

14.     In a subsequent letter dated 17 November 2003, Dr Rivers declined to diagnose the condition because it had not been adequately investigated. He suggested his chest pain might be related to anxiety.

The Law

15.      The Tribunal must settle on a diagnosis before it commences the analysis required by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Tribunal is required to decide this matter to its reasonable satisfaction: s 120(4) Veterans’ Entitlements Act 1986; Repatriation Commission v Budworth (2001) 66 ALD 285.

16.     Given the evidence of Dr Rivers and the results of the thallium scan, I cannot be satisfied the applicant suffered from ischaemic heart disease prior to 2002. While the thallium scan is not fool-proof, Dr Rivers believed it supported his own clinical impression that the applicant did not suffer from ischaemic heart disease. I note his view that the condition was unlikely to have persisted since the 1960s. It is certainly possible. Dr Campbell says it is the most likely explanation in this case, but that is in the absence of further and more conclusive investigation.

17.     The Tribunal is left in a position where the applicant has had unexplained chest pain over a long period of time. The diagnosis of ischaemic heart disease is not made out to the Tribunal’s reasonable satisfaction. The material before the Tribunal does not suggest the applicant suffers from a compensable condition.  The claim must fail at this point.  It is unnecessary to proceed to consider the circumstances of his service.

conclusion

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         [Sgd]
  Associate: Thomas Ritchie

Date/s of Hearing: 23 July 2003, 13 April 2004
Date of Decision: 16 August 2004
The applicant was represented by Mr Wall
The respondent was represented by Mr McAninly, a departmental advocate