Kuhl and Repatriation Commission

[2006] AATA 629

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 629

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/150

VETERANS' APPEALS DIVISION		)
Re		DESMOND JAMES KUHL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date17 July 2006

PlaceAdelaide

Decision The Tribunal:
1.  varies the decision to the extent that the appropriate diagnosis of Mr Kuhl’s skin condition is discoid eczema; and
2.  affirms the decision under review as varied.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – discoid eczema – no statement of principles – stress of operational service – exposure to chemicals – decision affirmed

Veterans’ Entitlements Act 1986 ss 120(1) & (3)

Repatriation Commission v Bey (1997) 79 FCR 364
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

17 July 2006   Mr J G Short (Member)    

1.      Mr Desmond Kuhl suffers from a skin condition which the parties agree is appropriately diagnosed as discoid eczema.  There are no relevant statements of principles for this condition.  Mr Kuhl asserts that his condition may be relevantly related to his operational service in South Vietnam through his experiences of stress or being sprayed with defoliate chemicals or exposed to chemicals through some other means.

2.      In Repatriation Commission v Bey (1997) 79 FCR 364, the Full Court of the Federal Court detailed an appropriate method for applying ss 120(1) and (3) of the Veterans’ Entitlements Act 1986 (the VE Act). The Court said that the first step was to identify any hypothesis linking the veteran’s eligible war service with his disease or injury. The second step is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. Proof of facts and onus of proof are not in issue at this point. If the hypothesis is considered reasonable, then the decision-maker must then apply s 120(1) of the VE Act and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt.

3.      In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court said that a hypothesis would not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. The High Court shed further light on these issues in Bushell v Repatriation Commission (1992) 175 CLR 408 where, in the joint judgment of Mason CJ, Deane and McHugh JJ, it was stated:

“… a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’.  Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’.”

link with emotional stress

4.      Mr Kuhl contended that one of the possible connections between his skin condition and his service was through emotional stress experienced while in South Vietnam.  Mr Kuhl also suffers from post-traumatic stress disorder (PTSD).  This is a condition accepted by the respondent (the Commission) as war-caused.

5.      Mr Kuhl called dermatologist, Dr Romuald Czechowicz.  Dr Czechowicz had provided a number of reports, the most recent of which was dated 17 October 2005.  This report included the following comment:

“… Usually the pattern of inflammation on the skin seen with discoid eczema is endogenous and the cause of which is uncertain, stress is known to be an aggravating factor to this condition. …”

6.      In evidence before me, Dr Czechowicz was asked whether there had been any recent studies in relation to the possible causes or correlation of symptoms in respect of, discoid eczema.  Dr Czechowicz replied:

“I am not aware of good evidence to date that shows that there is a good obvious trigger between x or y that is a likely candidate for this.  That is why it really predominantly falls in a category of endogenous as a general rule, but there must be something there, but as I say, in 21^st century medicine, there is many things we don’t understand, I guess, is the bottom line.”

7.      The tenor of Dr Czechowicz’ evidence in relation to stress was that stress had at one time been implicated in the cause or experience of discoid eczema.  However, his view was that stress did not permanently alter the course the disease may take and that there was no evidence to implicate stress as a causal factor.  Dr Czechowicz did note that the onset of Mr Kuhl’s discoid eczema was reported by Mr Kuhl as having occurred during his time in South Vietnam.

8.      The Commission called Dr Spedding to provide evidence.  Dr Spedding is an  epidemiologist.  He said that he had researched the causes of discoid eczema.  He said that the only reference he had been able to find to emotional stress was a comment in a lesser known journal from Penn. Medical in 1954.  He said however that he was unable to locate any support for this contention in any material published over the ensuing half century.  He concluded that stress was not a causal factor.  He went on to say:

“Current medical opinion does not include stress, anxiety or any psychiatric condition in the list of factors that might trigger a temporary flare up of the condition.”

9.      I have had regard to all of the material before me and have reached the view that the material does not raise more than a mere possibility of a nexus between discoid eczema and stress.  The material in support of such an association does not in my view reach the status of a reasonable hypothesis. 

chemical exposure

10.     Mr Kuhl contended that discoid eczema may have been caused through being sprayed with defoliate chemicals or in some other way being exposed to chemicals during his period of operational service in South Vietnam.

11.     Mr Kuhl referred to the report of Dr Czechowicz of 17 October 2005 where Dr Czechowicz stated:

“Given the statement of Desmond Kuhl it is possible that the chemical this man was exposed to while in Vietnam on active service may have caused or contributed to the onset of his eczema.”

12.     Dr Czechowicz said that in making this statement he was not referring to any particular chemical.  He had noted Mr Kuhl’s statement to him, to the effect that on two or three occasions each week he witnessed, and was exposed to, defoliate spraying.  This was an assertion which was disputed by a witness from the Commission, Mr Hugh Conant.  For the moment however this dispute is not relevant to my consideration.

13.     Dr Czechowicz elaborated on his assertion in relation to chemicals by saying:

“… I guess the way I have sort of worded it here is that we have talked about this before, that if you have got – you know, there is genetic tendency or whatever, something, somehow might trigger the process off. …”

14.     In cross-examination, Dr Czechowicz was asked specifically if he was aware of any studies which showed a correlation between exposure to defoliate chemicals and contracting or in aggravating, discoid eczema.  Dr Czechowicz replied:

“I must admit that that specific statement you have asked me, I would have to go and search the literature because there may be something that I am unaware of but nothing comes to mind. …”

Dr Czechowicz concluded by agreeing that the cause of discoid eczema was unknown.  He said:

“… there must be something inside us but who knows what it is, and that is in the majority of people, what we would say for this form.”

15.     The clearest explanation of Dr Czechowicz’ view came in his agreement to a statement I put to Dr Czechowicz in which I attempted to clarify his evidence in relation to any nexus between discoid eczema and chemicals.  Dr Czechowicz said that there is a possibility that contact with a chemical lowered a person’s resistance and consequently whatever process brings about discoid eczema, may have been more readily unmasked.

16.     Dr Spedding’s evidence was to the effect that he had been unable, after conducting his epidemiological research, to identify any reasonable hypothesis linking chemicals with discoid eczema.

17.     Both medical witnesses were consistent to the extent that both described the cause of discoid eczema as unknown and identified it as an endogenous condition.  Both agreed that the usual course of the condition was to wax and wane over the years.

18.     It is not necessary to prove or even suggest any particular process by which a link between a particular condition and service may be established, in order for an hypothesis to be considered reasonable.  I accept that there is likely to have been a correlation in time between the onset of Mr Kuhl’s discoid eczema and his operational service.  However, I do not consider that the material before me, when considered as a whole, raised more than a mere possibility of a relationship via chemicals and/or stress.  I have reached this view in full appreciation of the guidance provided by the High Court to the effect that at this stage of the consideration of the material, conflict with other medical authority is irrelevant.  Nevertheless I consider that the material raises no more than a mere possibility of a nexus which I consider to be too remote and too tenuous to form a reasonable hypothesis.

19.     If I am wrong, and the material does raise a reasonable hypothesis of a nexus with stress, then I would not be satisfied, beyond reasonable doubt, that a necessary element of that connection, particularly stress experienced by Mr Kuhl while in South Vietnam, did not occur.  Similarly, if I am wrong in my consideration of the submission made in respect of chemical exposure, then I would not be satisfied beyond reasonable doubt, that Mr Kuhl was not exposed to chemicals in the form of insecticides during his period in South Vietnam.  I would be satisfied beyond reasonable doubt that he was not directly exposed, by spraying, to defoliates.

20.     After reviewing all the material before me, I was not satisfied that the material before me gave rise to a reasonable hypothesis linking Mr Kuhl’s experience of discoid eczema with his operational service.  I was however satisfied that Mr Kuhl suffers from discoid eczema and consequently I will vary the decision to include a diagnosis of discoid eczema.  I will affirm the decision as varied in relation to that condition.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .....................................................................................
  Associate

Dates of Hearing  14/15 March 2006, 8 June 2006 & 14 June 2006
Date of Decision  17 July 2006
Counsel for the Applicant         Mr S Ower
Solicitor for the Applicant          Tindall Gask Bentley
Advocate for the Respondent   Mr G Doube, DVA