LEONARD ARMSTRONG and REPATRIATION COMMISSION

[2009] AATA 114

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2007/3290

VETERANS'        APPEALS       DIVISION		)
Re		LEONARD ARMSTRONG

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Regina Perton

Date19 February 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements – osteoarthrosis of the left elbow ‑ whether veteran suffers from the condition – balance of probabilities – decision affirmed on different grounds to previous decision makers.

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

19 February 2009 Regina Perton       

1.       Leonard Armstrong served in the Royal Australian Navy (the navy) from 9 July 1967 to 13 August 1977.  His service included a period designated as operational service under the Veterans' Entitlements Act 1986 (the Act) from 14 September 1970 to 8 April 1971.  Mr Armstrong also has eligible defence service under the Act from 7 December 1972 to 13 August 1977.

2.       Mr Armstrong receives a disability pension at 90 per cent of the general rate.  He suffers from a number of medical conditions, several of which have been accepted by the Repatriation Commission (the Commission) as war-caused.  On 21 February 2006 Mr Armstrong lodged a claim to have additional medical conditions accepted as war-caused.  His claim concerning osteoarthrosis of the left elbow was rejected by the Commission and the Veterans’ Review Board (VRB).  Mr Armstrong is seeking review of that decision. 

LEGAL FRAMEWORK

3. Section 9 of the Act provides that where an injury or disease results from an occurrence while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.       In the circumstances of this case, where Mr Armstrong has rendered operational service, the issue of whether diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.

ISSUES

5.       The issues before the Tribunal are:

·What are Mr Armstrong’s medical conditions?

·Is he suffering from osteoarthrosis of the left elbow?

·If so, is the osteoarthrosis of the left elbow war-caused?

WHAT ARE MR ARMSTRONG’S MEDICAL CONDITIONS?

6.       The Commission or the VRB on review have accepted that Mr Armstrong’s medical conditions of laceration of the right wrist, lumbar spondylosis, tinea of the skin, osteoarthrosis of the right knee, osteoarthrosis of the left knee and bilateral tinnitus are war-caused. 

7.       Mr Armstrong believes that he is suffering from osteoarthrosis of the left elbow and has provided evidence supporting that belief.  A medical specialist engaged by the respondent suggests that he is not suffering from that condition.  The Tribunal is required to determine to its reasonable satisfaction whether Mr Armstrong suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).

IS MR ARMSTRONG SUFFERING FROM OSTEOARTHROSIS OF THE LEFT ELBOW? 

8.       Mr Armstrong, in his statement signed on 23 July 2007 and in his oral evidence, indicated that he suffered no problems with his left elbow before his tour of Vietnam.  He said that as a tall and skinny 19 year old, he received many knocks to his elbow while at sea but he suffered no significant injury or lasting symptoms until he struck his left elbow against a ladder or a bulkhead during operational service.  Mr Armstrong recalled that his ship was sailing in heavy seas and he suffered the blow as the ship lurched and he lost his balance.  He stated that he had an immediate sensation of acute pain in the left elbow with tingling into the lower arm and fingers.  The acute symptoms abated after three to four days.  Mr Armstrong stated that he suffered pain and an altered range of movements for approximately two weeks.  He indicated that he had suffered intermittent symptoms since, until about a decade ago when my arm locked.   He stated that he underwent x-rays which revealed bone fragments in the left elbow joint.  He said that his only explanation for the bone fragments being there was the incident in Vietnamese waters.  He could not recall any other discrete injury to the left elbow.

9.        Mr Armstrong reported the elbow injury to the sick berth attendant soon after it occurred.  He recalled the attendant looking at his elbow, moving it and telling him that he thought it would spontaneously improve.  The attendant advised him to come back if the symptoms did not improve within a few days.  The symptoms diminished within a few days and Mr Armstrong did not go back to the attendant.

10.     Other injuries recounted by Mr Armstrong in his oral evidence included an injury to his right wrist while serving in Darwin.  Mr Armstrong said that he has had problems from time to time with his left elbow.  He said that there was an occasional dull ache and some tingling and that it did not bother him very much.  Mr Armstrong said that he enjoyed landscaping and sometimes it left him with left elbow pain.  Mr Armstrong said that he could not recall the injury to his left elbow until his daughter prompted his memory and then he could remember knocking it during his service in Vietnamese waters. 

11.     Mr Armstrong said that he had surgery on his left elbow in 1998 due to a tingling sensation, which subsequently settled.  He said that he had another operation in recent years after his left elbow became stiff again.  He said he was diagnosed with early arthritis in his left elbow in around 1998.  

12.     Under cross-examination, Mr Armstrong said that he could not remember having problems with, or x-rays of, his right elbow.  

13.     Mr Richard A McArthur, orthopaedic consultant, provided reports dated 7 February 2007 and 4 August 2008 and gave oral evidence at the request of the applicant’s representatives.  Mr McArthur initially examined Mr Armstrong on 18 January 2007 in relation to his claims for lumbar spondylosis and osteoarthrosis of the left elbow, the Commission having now accepted the former condition as war-caused. 

14.     In the first report, Mr McArthur stated::

….

Since the injury in 1971 Mr Armstrong has always been aware of some discomfort in the left elbow which has varied in intensity.  Lifting has aggravated this pain.  Five years ago the left elbow “locked”.  X-rays obtained by his local doctor identified osteoarthrosis with loose body formation.  Mr Armstrong was referred to an orthopaedic surgeon who performed arthroscopy and removed three loose bodies.

Mr Armstrong enjoyed reasonable symptomatic relief of the pain and locking however two years ago the pain recurred and a second X-ray demonstrated further loose bodies.  However at repeat arthroscopy in April 2006 the loose bodies were not detected. 

Mr Armstrong continues to experience mild chronic pain in the left elbow however there has been no further locking. The pain is made worse by activity.  Mr Armstrong was not aware of any loss of movement.

…

Films of the left elbow indentified a loose body in the anterior radio-ulnar joint.  Osteophyte formation was evident in the medial humero-ulnar articulation.  The joint spaces were well preserved.

Reports of previous X-rays of the left elbow were available.  A CT arthrogram performed at South Eastern Private Hospital radiology on 10.02.1998 identified an ossified loose body in the posterior recess measuring 9x4mm’s. 

Plain films obtained on the 4.05.2004 identified two small loose bodies in the elbow joint measuring 1mm and 2mm in size.  Minimal degenerative changes were also noted.

Arthroscopy of the left elbow performed on 9 December 1998 identified minor degenerative change in the humero-ulnar joint with a large loose body in the posterior compartment.  The loose body was removed. 

A second arthroscopy of the left elbow carried out on 26.04.2006 identified a full thickness chondral injury on the surface of the trochlea with small fragments of articular cartilage in the posterior compartment of the elbow.  No loose bodies were seen…

Nerve conduction studies performed on the left ulnar nerve on 26 February 2007 reported …Left ulnar nerve function therefore was essentially normal.

15.     In his report dated 4 August 2008, Mr McArthur reported that Mr Armstrong continues to experience a dull ache in the left elbow which varies in intensity.  He stated that lifting and carrying items such as a bag of groceries aggravates the elbow pain.  Mr McArthur reported that Mr Armstrong takes Panadol Osteo for relief when his left elbow aches intermittently at night.  He stated that Mr Armstrong complained of intermittent tingling radiating from his inner left elbow along the medial forearm to the little and ring fingers.   Mr McArthur stated that on examination, the alignment of the left elbow was normal but that the left ulnar nerve remained sensitive to percussion.  Mr McArthur gave the opinion that Mr Armstrong has osteoarthrosis in the left elbow.  He noted that the VRB had accepted the diagnosis.  He stated that Mr Armstrong has a mild left ulnar neuropathy.  He indicated that there appears to be a direct relationship between ulnar neuropathy at the level of the elbow to osteoarthrosis of the elbow and that this would appear to be [the] case with Mr Armstrong.

16.     Mr McArthur was asked, when he was giving oral evidence, how he made the diagnosis of osteoarthrosis.  He said that there was a history of pain in the elbow joint; secondly the examination revealed restriction of movement; and thirdly, there were the x-rays, CT scan and the arthroscopy.  He said that the evidence from all fits in with the diagnosis of osteoarthrosis.    Mr McArthur was told that the report of an x-ray taken on 25 February 1997 of the elbow coincided with a report from Mr Armstrong’s then general practitioner, Dr Milecki, that Mr Armstrong had problems with his right elbow at that time.  Mr McArthur was then asked if that would result in a change of opinion about the diagnosis of the left elbow injury and its connection with Mr Armstrong’s war service. Mr McArthur stated (transcript page 6):

…Well, that is a difficult question to answer having just been confronted with this issue for the first time.  I think it would be a [sic] unusual to have loose bodies in both elbows.  The most likely cause for the loose bodies would be osteoarthrosis in both elbows…

17.     At the conclusion of his oral evidence, Mr McArthur stated that it remained his opinion that Mr Armstrong suffers from osteoarthrosis of the left elbow.

18.     Professor Stephen Hall, a specialist rheumatologist, provided reports dated 23 April 2008 and 21 October 2008 and gave oral evidence.  The latter report was prepared after he had viewed Mr McArthur’s second report.  In the earlier report, Professor Hall stated:

...

PHYSICAL EXAMINIATION

There were arthroscopic scars over the left elbow…

There was a reduced sensation to pin prick over the ulnar aspect of the left little finger extending into the lower forearm.  Muscle power was well preserved and there was no wasting.  He was tender in the ulnar groove.

I note the operative report of Mr. Peter Moran of 28.4.2006 which showed no evidence of any loose bodies in the left elbow, a healed full thickness condral tear on the surface of the trochlea and areas of hypertrophic synovium.

Specifically, there is very little in the way of established structural injury in the left elbow.

This operative finding is in keeping with his clinical signs which suggest very little abnormality in the left elbow related to the elbow joint.  He does have some signs consistent with a left ulnar neuropathy.

…

He does not have established osteoarthritis of the elbow.  He has suffered a mild condral injury to the elbow, but his latest arthroscopy performed by Mr. Moran shows very little in the way of injury.

…

19.     Asked to explain the nature of the work of a rheumatologist, Professor Hall said that the bulk of the work consisted of dealing with referrals relating to osteoarthritis (around 30 per cent), rheumatoid arthritis (some 10 to 15 per cent), back and neck pain (another 10 to 15 per cent), muscular pains (another 20 per cent) and then other conditions.  Professor Hall stated that the bulk of my working day for the last 27 years has consisted of dealing with osteoarthritis.  In response to a question about the relationship between the practices of orthopaedic surgeons and rheumatologists, Professor Hall indicated that the former specialise in operative interventions and the latter in non-operative interventions.  He said that in the course of a working week, he would refer about 20 out of 180 people to a surgeon for surgery or a surgical opinion. 

20.     Professor Hall examined Mr Armstrong on 13 March 2008 at the respondent’s request.  Asked to comment on Mr McArthur’s opinion, that there appeared to be a direct relationship between Mr Armstrong’s ulnar neuropathy and his osteoarthrosis of the left elbow, Professor Hall stated that (transcript page 19):

…There are many reasons why people get ulnar neuropathies, and in most cases, we have no idea.  They just happen.  And because medicine is obsessed with classification, we even have a term for “we have no idea”, which is idiopathic…If we don’t know, we call it “idiopathic”…and that’s what - what most case of ulnar neuropathy would be assessed as.  There is – and I totally agree with Mr McArthur that amongst the causes of an ulnar neuropathy is osteoarthritis. The mechanism by which that occurs is that when one starts to develop severe osteoarthritis, you lose the ability to fully extend the elbow. You develop what’s called a fixed flexion contracture, that the cartilage is so damaged that you can’t straighten it beyond a certain level.  The ulnar nerve runs behind the elbow.  If you imagine the point of the elbow, the inner bone, there is a little groove in between and the ulnar nerve runs there.  If you can’t straighten your elbow, then that ulnar nerve remains on the stretch, and that causes scarring and fibrosis within the nerve.  So in cases of severe osteoarthritis in the elbow, with a fixed flexion contracture, that statement would be entirely correct, that osteoarthritis is likely to be the cause of an ulnar neuropathy.  Having said that, both Mr McArthur and I are agreed that Mr Armstrong had zero full extension, so there was no question in either of our minds that he had a fixed flexion contracture.  And because there is no fixed flexion contracture to explain why he might have some tethering of the ulnar nerve, I really can’t accept the conclusion that he draws, that that appears to be the case with Mr Armstrong.  We’d say “Yes, osteoarthritis” when you got a significant flexion contracture.  It’s certainly a cause of ulnar neuropathy.  But not in this case.

21.     Professor Hall commented on the significance of extracts from radiologists’ reports of x-rays; a letter written by Mr McMahon in December 1998 to Dr Milecki; the clinical notes of the McDonald Street Medical Centre, a general practice attended by Mr Armstrong in recent years; and other documents.  Professor Hall commented that the latest available radiologist report in 2007 did not show any evidence of osteoarthritis.  He said that Mr Armstrong may well have had or may still have a loose chip of bone in his elbow that sometimes gives him discomfort but that this did not add up to osteoarthritis.  He maintained his opinion following thorough cross-examination.

22.     No other medical witnesses gave oral evidence.  Ms Ryan, counsel for Mr Armstrong, submitted that he met the definition of osteoarthrosis in the relevant Statement of Principles (SoP) concerning Osteoarthrosis, Instrument Number 31 of 2005.  The definition of osteoarthrosis at paragraph 3(b) in the SoP is:

For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.

23.     As stated earlier, the Tribunal must decide on the balance of probabilities whether Mr Armstrong is suffering from a particular medical condition before it proceeds to the four Deledio steps.   The Tribunal must decide whether it prefers the opinions of Mr McArthur and others over that of Professor Hall in light of the evidence presented. 

24.     Professor Hall, a rheumatologist, provided a comprehensive description to the Tribunal of a possible relationship between difficulties with the ulnar nerve and osteoarthrosis of the elbow.  While he agreed with Mr McArthur’s assertion that there could be a relationship between the two, he was strongly of the opinion that it did not apply in Mr Armstrong’s case.  Professor Hall specializes in diagnosing and treating patients suffering from osteoarthritis and has done so for almost three decades.  The Tribunal acknowledges that Mr McArthur is also a person whose opinion is valuable.  He operatively treats patients and is likely to refer those who do not need or want surgical interventions to specialist rheumatologists.  Mr Armstrong was originally referred to Mr McArthur for the left elbow condition and lumbar spondylosis, the latter condition having eventually been accepted as war-caused.  However, in relation to the matter before this Tribunal, the Tribunal prefers the opinion of Professor Hall in terms of diagnosis of the condition, given his specialisation in treating osteoarthritis and his academic research and teaching on the topic.

25.     The Tribunal finds, on the balance of probabilities, that Mr Armstrong does not suffer from osteoarthrosis of the left elbow.  There is therefore no requirement to deal with the relevant legislative provisions or case law in assessing whether such a condition was war-caused.

DECISION

26.     The Tribunal affirms the decision under review.

I certify that the twenty-six [26] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton, Member

(sgd) Cassie Renfrew

Clerk

Date of hearing:  21 November 2008
Date of decision:  19 February 2009
Counsel for the applicant:                   Ms F Ryan
Solicitor for the applicant:  Williams Winter

Advocate for the respondent:              Ms J McCulloch

Department of Veterans’ Affairs