LAURENCE ANDREW SOUTHERN and REPATRIATION COMMISSION
[2012] AATA 479
•26 July 2012
[2012] AATA 479
Division VETERANS’ APPEALS DIVISION File Number
2011/3023
Re
LAURENCE ANDREW SOUTHERN
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 26 July 2012 Place Perth The decision under review is affirmed.
................[sgd]..............................................
S D Hotop, Deputy President
CATCHWORDS
VETERANS' AFFAIRS - veterans’ entitlements - disability pension - applicant rendered defence service in Australian Army from 1980 to 2001 - applicant overweight on enlistment and thereafter - applicant contracted diabetes in March 2010 - applicant's being overweight not related to defence service - applicant’s diabetes not defence-caused - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B (14)
Statement of Principles concerning diabetes mellitus No 90 of 2011
Statement of Principles concerning diabetes mellitus Instrument No 12 of 2004
CASES
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
Deputy President S D Hotop
26 July 2012
Introduction
Laurence Andrew Southern (“the applicant”), who was born in September 1956, served in the Australian Regular Army from 19 August 1980 to 16 December 2001.
The applicant rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 25 August 1994 to 21 February 1995, and “defence service”, for the purposes of Part IV of the VE Act, from 19 August 1980 to 24 August 1994 and from 22 February 1995 to 16 December 2001. He has been a member of the Army Reserves (Active) from 17 December 2001.
The applicant currently receives a disability pension under the VE Act, at the rate of 100% of the “general rate”, in respect of the following disabilities which have been accepted as service-related:
·right chondromalacia patella
·recurrent subluxation of the ankles
·injury of the finger (right thumb)
·bilateral carpal tunnel syndrome
·bilateral sensorineural hearing loss
·labral avulsion of the left shoulder
·lateral epicondylitis of the left elbow
·sprain or strain of the back region with sciatica
·chondromalacia patellae of the left knee
·localised osteoarthrosis of the right shoulder
·sprain or strain of the right wrist
·rotator cuff syndrome of the right shoulder
·cervicothoracic scoliosis
·strain of the radial collateral ligament of the p.i.p joint of the left index finger.
On 7 May 2010 the applicant lodged with the Department of Veterans’ Affairs a claim for disability pension in respect of “complications of diabetes mellitus”. In the claim form it is stated that the applicant first consulted his general practitioner in relation to diabetes mellitus on 22 March 2010.
On 22 September 2010 a delegate of the Repatriation Commission (“the respondent”) decided that the applicant’s diabetes mellitus is “not related to service”.
On 7 February 2011 the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision of 22 September 2010.
On 25 July 2011 the applicant made an application to the Tribunal for review of the delegate’s decision as affirmed by the VRB on 7 February 2011.
On 3 August 2011 the Tribunal, pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), extended the time for the lodging of the applicant’s application for review until 25 July 2011.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T8, pp I–VIII, 1–105) lodged by the respondent in accordance with s 37 of the AAT Act; and
·the oral evidence of the applicant.
Relevant Background Material
The T Documents include medical records regarding the applicant which contain the following relevant information:
· at his enlistment medical examination on 18 July 1980, the applicant’s height was recorded as 157 cms and his weight was recorded as 65 kgs, and he was found to be fully fit for service (T4, p 46);
· on 26 June 1996 a random glucose test, conducted for the purpose of investigating a complaint by the applicant of “pins and needles both hands”, produced a result of 5.4 mmol/L (the normal range being 3.9–5.8 mmol/L) (T4, p 30);
· on 26 July 1996 a fasting glucose test produced a result of 6.6 mmol/L (T4, p 31);
· on 31 July 1996 a fasting glucose test produced a result of 5.7 mmol/L, the report noting that the applicant’s father and brother are diabetics (T4, p 32);
· at his discharge medical examination on 20 September 2001, his height was recorded as 160 cms and his weight was recorded as 72 kgs, a urinalysis was negative for sugar, and it was noted that he suffered from “bilateral hearing loss” and left shoulder pain (T4, p 42);
· in an Army Reserves Annual Health Assessment form, dated 1 May 2003, the applicant’s height and weight are recorded as, respectively 160 cms and 75 kgs, and his “BMI” is recorded as 29 (T7, p 89);
· in an Army Reserves Annual Health Assessment form, dated 28 September 2004, the applicant’s weight is recorded as 76 kgs and his “BMI” is recorded as 30 (T7, p 85);
· in an Army Reserves Annual Health Assessment form, dated 31 January 2006, the applicant’s weight is recorded as 77 kgs and his “BMI” is recorded as 30 (T7, p 82);
· in an Army Reserves Annual Health Assessment form, dated 24 January 2007, the applicant’s weight is recorded as 80.5 kgs and his “BMI” is recorded as 31.5 (T7, p 78);
· in an Army Reserves Annual Health Assessment form, dated 24 February 2008, the applicant’s weight is recorded as 80 kgs and his “BMI” is recorded as 31.2 (T7, p 71);
· in an Army Reserves Annual Health Assessment form, dated 3 March 2009, the applicant’s weight is recorded as 75 kgs and his “BMI” is recorded as 29.5 (T7, p 68);
· in an Army Reserves Annual Health Assessment form, dated 9 March 2010, the applicant’s weight is recorded as 75.3 kgs and his “BMI” is recorded as 29.4 (T7, p 65);
· on 24 March 2010 a fasting glucose blood test produced an “elevated” fasting glucose level, and a repeat test was suggested (T7, p 97);
· on 10 April 2010 fasting and 2-hour sample blood tests produced “results consistent with Diabetes Mellitus” (T4, p 27);
· on 12 April 2010 a diagnosis of “Diabetes Mellitus – Type II” was made by the applicant’s general practitioner (T4, p 29).
The Applicant’s Evidence
The applicant gave oral evidence to the following effect:
·he sought medical help in March 2010 because he had lost about 17 kilograms in weight over the previous 8 – 10 months and he did not know the cause;
·he had had back pains and he was tested for kidney stones and it was then discovered that he had diabetes;
·during his service he had previously had problems keeping his weight down and he attributes this to inactivity because of his accepted service-related conditions;
·his father (since deceased) had type 2 diabetes and his brother has had diabetes since birth;
·when he enlisted in the Army he weighed 65 kilograms;
·during his service he put on weight but he regarded this as “muscle weight” as a result of the physical exercise and pack-work that he had been doing;
·he left the Regular Army in 2001 and he then joined the Army Reserves (Active Reserves) but he has not participated in any Reserves activities for at least the last 12 months;
·on discharge from the Regular Army he weighed 72 kilograms and his weight went up to 80 kilograms by February 2008;
·he subsequently saw a dietician who advised him to get his weight down to 60 kilograms and put him on a diet;
·as a result of that diet he now weighs 65 kilograms – he does not want to get down to 60 kilograms because it would make him look “too skinny”;
·he failed a basic fitness assessment in 1995 – although he was not told the reason, he suspects that it was because of his disabilities regarding his knees, ankles and neck and possibly also because of his back/sciatica condition;
·he passed a basic fitness assessment in 1996;
·even when his weight got up to 80 kilograms he did not regard himself as overweight because he was of “stocky” build and he regarded it as muscle bulk as a result of his trying to maintain his fitness;
·he has needed to maintain his fitness in order to retain his job and he has done this by walking and exercising;
·he was never told by Army medical/health personnel that he was overweight – he always regarded it as “muscle weight”;
·his accepted conditions include painful knees, painful ankles, shoulder and neck problems, lower back pain and occasional sciatica, and these conditions have limited his ability to exercise and engage in physical activities because, if he “over-exerts” himself, he suffers pain;
·he was able to pass fitness tests because he purposely trained to pass them and concentrated on passing them and did not “go overboard”;
·he was fit when he joined the Army but, as a result of the injuries he suffered in the Army, he became less fit;
·he started to have problems maintaining his fitness when he injured his ankles early in his service and exercising then became difficult for him;
·these problems continued throughout his service as he suffered various injuries.
The Issue
The applicant does not contend that his diabetes mellitus is related to his “operational service”. Accordingly, the only issue for the Tribunal’s determination is whether the applicant’s diabetes mellitus is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act.
The Relevant Legislation
The VE Act
Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly 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:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) as follows:
“ 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.”
Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(4)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.
…”
Section 120B relevantly provides:
“ …
(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.
…”
Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).”
Section 196B(14) relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
…”
The Statement of Principles
Pursuant to s 196B(3) of the VE Act, the Authority has determined Statements of Principles (“SoPs”) concerning Diabetes Mellitus. The relevant SoP which is presently in force is:
·Statement of Principles concerning diabetes mellitus No 90 of 2011 (“the current SoP”).
The SoP which was in force until it was revoked by the current SoP is:
·Statement of Principles concerning diabetes mellitus Instrument No 12 of 2004, as amended by Instrument No 10 of 2008 (“the former SoP”).
The current SoP relevantly states:
“ …
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that diabetes mellitus and death from diabetes mellitus can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:
…
(b) for type 2 diabetes mellitus only,
(i)being overweight for a period of at least five years before the clinical onset of diabetes mellitus; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
‘being overweight’ means an increase in body weight by way of fat accumulation which results in at least one of the following:
(i) a Body Mass Index (BMI) of 25 or greater; or
(ii)a waist circumference of greater than 80 centimetres in women or greater than 94 centimetres in men;
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
…
‘relevant service’ means:
…
(b) defence service (other than hazardous service) under the VEA: or
…
‘type 2 diabetes mellitus’ means a form of diabetes mellitus caused by variable degrees of insulin resistance and impaired insulin secretion.
…”
Analysis
On the basis of the medical evidence before it, the Tribunal is reasonably satisfied, and finds, that:
·the applicant suffers from “type 2 diabetes mellitus”, within the meaning, and for the purposes, of the current SoP;
·the “clinical onset” (within the meaning of the current SoP) of the applicant’s type 2 diabetes mellitus occurred in March 2010.
The Tribunal also finds that the applicant’s type 2 diabetes mellitus is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
Pursuant to s 120(4) and s 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s type 2 diabetes mellitus is defence-caused only if the relevant SoP “upholds the contention that the … disease … is, on the balance of probabilities, connected with” his defence service.
Pursuant to clause 6(b)(i) of the current SoP, the relevant factor that must exist before it can be said that, on the balance of probabilities, the applicant’s type 2 diabetes mellitus is connected with the circumstances of his defence service is:
“ … being overweight for a period of at least five years before the clinical onset of diabetes mellitus”.
The Tribunal is reasonably satisfied, and finds, on the basis of the evidence before it (see paragraph 10 above), that the applicant had a “Body Mass Index” (“BMI”) of over 25 at the time of his enlistment in, and at the time of his discharge from, the Regular Army, and subsequently from 2003 to 2010 (when the clinical onset of his type 2 diabetes mellitus occurred), and, accordingly, that he was “overweight” (as defined in clause 9 of the current SoP) for the whole of that period. The factor referred to in subpara (b)(i) of clause 6 of the current SoP therefore exists in the applicant’s case.
The critical question, however, is whether that factor is “related to” the applicant’s defence service, as required by clause 5 of the current SoP.
Section 196B(14) of the VE Act sets out (in paras (a)–(g) various alternative circumstances in which a “factor causing, or contributing to, [a] … disease … is related to service”, for the purposes of SoPs determined under that section. In the present case, paras (a), (c), (e) and (g) of s 196B(14) are clearly inapplicable. As regards paras (b), (d) and (f) of s 196B(14), the question is whether the relevant “factor”, namely, the applicant’s “being overweight for a period of at least five years before the clinical onset of diabetes mellitus” in 2010:
·“arose out of, or was attributable to,” his defence service (para (b)); or
·“was contributed to in a material degree by, or was aggravated by,” his defence service (para (d)); or
·“would not have occurred … but for the rendering of” his defence service “or … but for changes in [his] environment consequent upon his … having rendered that service” (para (f)).
The applicant’s case, in a nutshell, is that certain of his accepted service-related disabilities, including disabilities related to his ankles, knees, lower back, shoulders and neck which he sustained from the early 1980s onwards, prevented or restricted him from being able to exercise and engage in physical activities generally to a sufficient extent to be able to keep his weight down within necessary limits and that this resulted in his subsequently contracting diabetes mellitus.
Although it is common ground that the applicant sustained the abovementioned service-related disabilities, there is no medical evidence before the Tribunal regarding the precise nature and extent of any of those disabilities or the subsequent impact (if any) of any of those disabilities on the applicant’s physical mobility generally or, in particular, his capacity to engage in physical exercise.
There is, on the other hand, evidence before the Tribunal that the applicant has been assessed as fit throughout the period of his ongoing service with the Army Reserves from 2002 (T7, pp 65–90). The Tribunal notes, in particular, a completed “Five Yearly Comprehensive Preventive Health Examination” form, dated 24 January 2007, in which it is indicated that (inter alia) the applicant:
·did not have “any persistent muscular pain or weakness”;
·did not have any “current illnesses or injuries”;
·was not troubled by any health problems other than occasional stress;
·exercised “5 days per week”, completing “5 sessions” (each equalling 30 minutes of exercise) per week.
It is also indicated in that form that a clinical examination of the applicant was entirely normal – including examination of his neck, upper extremities, lower extremities, spinal system and gait - and that the applicant was “in good health”, and that the medical officer who conducted that examination recommended that the applicant was “cleared for full specialist duties without restrictions”. (T7, pp 74–81)
The Tribunal also notes a Department of Defence “Medical Employment Classification Record”, dated 1 October 2010, which (as indicated in that document) was conducted because of the applicant’s having developed diabetes and hypertension in March 2010, which indicated that the applicant had passed a basic fitness assessment on 25 September 2010 and that he was fit for “primary duties” and “general service duties” and, furthermore, that he was fit for “operational deployment” but “needs medications” (T7, pp 60 – 64).
Having regard, in particular, to the evidence referred to in paragraphs 25 and 26 above, the Tribunal is not satisfied that the applicant’s abovementioned service-related disabilities, either individually or collectively, have at any material time significantly restricted the applicant from engaging in physical exercise or have otherwise contributed to his being “overweight” (within the meaning of the current SoP).
The Tribunal notes, furthermore, that he applicant was “overweight” (within the meaning of the current SoP) when he enlisted in the Regular Army in August 1980 and when he discharged in December 2001, and that he has continued to be “overweight” – peaking in January 2007 when his weight was recorded as 80.5 kilograms and his BMI as 31.5 – during his Army Reserves service from 2002 (see paragraph 10 above). The Tribunal notes the applicant’s evidence that, following his adherence to a diet recommended by a dietician, he now weighs 65 kilograms. The Tribunal also notes, however, that, at that weight, the applicant remains “overweight” (as defined in clause 9 of the current SoP), with a BMI of 25.4.
Having regard to the whole of the evidence before it, the Tribunal is unable to determine, on the balance of probabilities, what factor or factors have caused or materially contributed to the applicant’s being “overweight” (as defined in clause 9 of the current SoP) throughout the period from at least August 1980 (when he enlisted in the Regular Army) to March 2010 (when he contracted type 2 diabetes mellitus).
Accordingly, although the applicant was “overweight for a period of at least five years before the clinical onset of diabetes mellitus”, within the meaning of clause 6(b)(i) of the current SoP, the Tribunal is not satisfied, on the balance of probabilities, that the applicant’s “being overweight” for that period:
·arose out of, or was attributable to, his defence service; or
·was contributed to in a material degree, or was aggravated by, his defence service; or
·would not have occurred but for his rendering defence service or but for changes in his environment consequent upon his having rendered that service;
within the meaning of, respectively, paras (b), (d) and (f) of s 196B(14) of the VE Act, or was otherwise “related to” his defence service, within the meaning of s 196B(14).
The Tribunal finds, therefore, that the factor set out in subpara (b)(i) of clause 6 of the current SoP, which exists in this case, is not “related to” the applicant’s defence service, within the meaning of clause 5 of that SoP.
It is common ground that none of the other factors set out in clause 6 of the current SoP exists, or is applicable, in the applicant’s case.
The Tribunal concludes, therefore, that clause 5 of the current SoP – which requires that “at least one of the factors set out in clause 6” be “related to the relevant service” – is not satisfied in the applicant’s case. It follows that the current SoP does not uphold the contention that the applicant’s type 2 diabetes mellitus is, on the balance of probabilities, connected with his defence service, within the meaning of s120B(3) of the VE Act.
That conclusion makes it necessary for the Tribunal to consider and determine, for the purposes of s 120(4) and s 120B(3) of the VE Act, whether the former SoP – being the relevant SoP which was in force when the respondent made its decision in this matter on 22 September 2010 – upholds the contention that the applicant’s type 2 diabetes mellitus is, on the balance of probabilities, connected with his defence service: see Repatriation Commission v Gorton (2001) 110 FCR 321.
The former SoP relevantly stated:
“ …
Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that diabetes mellitus and death from diabetes mellitus can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:
…
(b)in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus; or
…
Other definitions
8.For the purposes of this Statement of Principles:
…
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
…
‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
…
‘type 2 diabetes mellitus’ means non-insulin dependent diabetes mellitus.
…”
Having regard to the relevant evidence in this matter (see paragraph 10 above), that evidence does not support the proposition that the applicant was “obese for a period of at least 10 years before the clinical onset of diabetes mellitus”, within the meaning of clause 5(b) of the former SoP. The applicant does not contend to the contrary. Accordingly, the Tribunal finds that the factor set out in clause 5(b) of the former SoP does not exist in this case.
It is common ground that none of the other factors set out in clause 5 of the former SoP exists, or is applicable, in this case.
The former SoP, therefore, likewise does not uphold the contention that the applicant’s type 2 diabetes mellitus is, on the balance of probabilities, connected with his defence service, within the meaning of s120B(3) of the VE Act.
Conclusion
Because neither of the relevant SoPs upholds the contention that the applicant’s type 2 diabetes mellitus is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to s 120B(3) of the VE Act, cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s type 2 diabetes mellitus is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of that Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of
Deputy President SD Hotop........[sgd D Brodie]...........................................
Administrative Assistant
Dated 26 July 2012
Date of hearing 12 June 2012 Representative of the Applicant Mr T Robbins Representative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans' Affairs
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