Linton and Repatriation Commission
[2004] AATA 924
•3 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/691
VETERANS' APPEALS DIVISION
Re: GRAHAM ALEXANDER LINTON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Member
Date: 3 September 2004
Place: Melbourne
Decision: The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS – veterans' entitlements - sarcoidosis - possible use of corticosteroids - whether appropriate clinical management - whether war‑caused
Veterans’ Entitlements Act 1986 s9, 120, 120A, 120(4), 120B
Lees v Repatriation Commission (2002) 74 ALD 68
REASONS FOR DECISION
3 September 2004 G.D. Friedman, Member
1. This is an application by Graham Alexander Linton (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 30 April 2002. The VRB affirmed a decision of the Repatriation Commission (the respondent) dated 13 July 2000 to refuse the applicant's claim for pension for sarcoidosis and affirmed a decision dated 9 April 2001 to increase the rate of pension to 40 per cent of the general rate.
2. At the hearing of this matter on 25 July 2003 and 17 November 2003 before Ms M.J. Carstairs, Member, and on 27 February 2004, 5 July 2004 and 6 August 2004 Mr D. De Marchi, solicitor, represented the applicant. Mr G. Purcell of counsel represented the respondent on 25 July 2003 and 17 November 2003, Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent on 27 February 2004 and Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, represented the respondent on 5 July 2004 and 6 August 2004.
3. The Tribunal received into evidence the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T18), as well as 8 exhibits (Exhibits A1‑A8) lodged by the applicant and 10 exhibits (Exhibits R1‑R10) lodged by the respondent.
BACKGROUND
4. The applicant was born on 2 August 1950. He enlisted in the Royal Australian Navy (the navy) on 10 July 1966 and served until 31 July 1979. His service on HMAS Sydney in Vietnam from 8 May 1969 to 30 May 1969; 17 November 1969 to 5 December 1969; and 16 February 1970 to 5 March 1970 constituted operational service as defined in the Veterans' Entitlements Act 1986 (the Act). He also had defence service, as defined in the Act, from 7 December 1972 to 31 July 1979.
5. The applicant first claimed for sarcoidosis, a lung condition, in May 1978 and on 26 June 1979. He made a second claim for bronchial asthma and sarcoidosis on 11 April 1990, which was rejected. On 1 September 1995 he again claimed for asthma and sarcoidosis and this claim was rejected by the respondent on 29 November 1995. On 14 October 1997 the applicant claimed for breathing problems, asthma and sarcoidosis, and this claim was rejected on 4 December 1997. The VRB reviewed the respondent’s decision of 29 November 1995 and on 10 August 1998 decided to consent to the withdrawal of the claim for sarcoidosis, and affirmed the decision with respect to asthma. The applicant sought review by the Tribunal, which concluded that the applicant had effectively withdrawn his claim for sarcoidosis.
6. On 8 March 2000 the applicant lodged a further claim for sarcoidosis, which was rejected on 13 July 2000. On 2 April 2001 the applicant lodged a claim for tinnitus, which was accepted on 9 April 2001 and the respondent assessed pension at 40 per cent of the general rate. On 10 August 2000 and 23 April 2001 the applicant lodged an application for review with the VRB against the decisions of 13 July 2000 and 9 April 2001. On 14 May 2002 the VRB affirmed the respondent’s decisions. On 4 July 2002 the applicant sought review of the VRB decision by the Tribunal.
7. On 27 July 2000 the Tribunal amended the claim for asthma to chronic airflow limitation and found that the condition was war-caused. The Tribunal found that the applicant was entitled to pension at 100 per cent of the general rate. The respondent appealed to the Federal Magistrates’ Court, and on 20 December 2001 the Court set aside the Tribunal’s decision and affirmed the respondent’s decision dated 29 November 1995.
8. On 30 April 2002 the VRB noted the decision of the Federal Magistrates’ Court, and made a decision on the basis of chronic bronchitis.
9. On 17 November 2003, in a decision on a preliminary issue, the Tribunal decided that the application before the Tribunal was limited to a claim for sarcoidosis.
EVIDENCE
10. In a written statement dated 26 May 2003 (Exhibit A2) the applicant said that after his discharge from the navy as permanently unfit, he was employed by the Department of Defence until 1997, when he accepted a redundancy package as a result of ongoing breathing difficulties. From 1 March 1999, he worked as a technical auditor until 16 May 1999. He said that he has not worked since, and believed that he was not capable of employment due to the effects of sarcoidosis and bronchitis.
11. In oral evidence the applicant stated that he commenced smoking in 1966 after joining the navy, smoking up to 40-60 cigarettes per day while on operational service, due to the apprehension and the stress of being in a war zone. He said that while serving on HMAS Sydney he was primarily working on the upper deck, and he inhaled fumes from the funnel. The applicant told the Tribunal that naval medical records in March 1971 indicated an abnormality in his chest x-ray, and it was decided to monitor him for sarcoidosis because his hilar nodes were affected. He stated that the condition was diagnosed in 1978, and was treated with corticosteroids, which he has continued with since then.
12. In a written report dated 30 June 2003 (Exhibit A1) Dr J. Hofland, consultant in rehabilitation medicine, stated:
In my opinion Mr Linton is unable to be gainfully employed due to his deteriorating breathing problems and has been so since 1997, when he took a voluntary redundancy package.
I am unable to determine how much of his breathing difficulty is due to sarcoidosis, chronic airway obstruction or asthma.
13. In a written report dated 2 October 2002 (Exhibit A4) Professor M. Pain, consultant respiratory physician, stated:
…
The issue of "appropriate medical management" of sarcoidosis during the years 1971-1975 is complex. Management of sarcoidosis is not entirely based on respiratory symptoms and I would maintain that his medical management was far below that which was considered appropriate for the period. …Whether corticosteroid therapy should have been commenced earlier than it apparently was is debatable and whether such earlier therapy would have delayed or stopped the development of fibrosis of the lungs is also arguable but such decisions, if made, are based on information which should have been available but was not.
14. In a written report dated 30 December 2002 (Exhibit A5) Professor Pain stated:
…
In relation to the appropriate management of sarcoidosis in 1971-75, the situation was not greatly different from the position today. The approach would involve
a.Confirmation of the diagnosis-often by a biopsy of a lymph gland
b.Assessment of organ involvement by performing lung function tests, eye examination (for evidence of uvetis), blood tests for calcium metabolism and kidney function.
c.Based on the above findings, a decision would be made as to the necessity for active therapy (corticosteroids) for a few months or whether careful observation of progress or deterioration was indicated.
d.There would be a general expectation of spontaneous improvement with eventual resolution. However, a small proportion of cases developed more permanent scarring with significant diffuse pulmonary fibrosis.
15. In a written report dated 19 May 2003 (Exhibit A6) Professor Pain concluded that the applicant has sufficient chronic respiratory impairment to prevent him working more than eight hours per week. He said that this was due to a combination of airflow obstruction and pulmonary involvement with sarcoidosis.
16. In a written report dated 15 September 2003 (Exhibit A7) Professor Pain stated:
With regard to the sarcoidosis, I believe this is not severe and is probably “burnt out”. It is possible that if he was treated with prednisolone when the initial sarcoidosis was made, he would have much less pulmonary fibrosis than he now exhibits.
Professor Pain attributed 80 per cent of the applicant’s impairment to chronic airflow limitation and 20 per cent to diffuse fibrosis due to sarcoidosis.
17. In oral evidence Professor Pain stated that J. Crofton and A. Douglas, Respiratory Diseases, Blackwell Scientific Publications, U.K., 1969 and 1975 was the standard textbook used in Australia in the 1970s. He said that the applicant would have derived some benefit from the use of steroids if his condition had deteriorated, and should have been managed appropriately. Under cross-examination Professor Pain agreed that at that time doctors were not in a position to make informed decisions about appropriate treatment, but that the use of steroids in consultation with the applicant was open to them. He noted that steroids have some adverse effects.
18. In a written report dated 10 April 2000 (Exhibit A8) Dr D. Hart, consultant respiratory physician, stated:
…
1.I cannot comment on what would have been the normal medical practice between 1971 and 1975 as I did not in fact graduate until 1975 however I have had the opportunity to discuss this issue with a number of older physicians during the preparation of this report and I believe that the practice was likely to have been to withhold corticosteroids in asymptomatic patients unless the chest x-ray showed very marked abnormalities which was not the case at the time in question with Mr. Linton.
2.Once pulmonary fibrotic change developed in 1975 there would undoubtedly have been some physicians who would have recommended steroid treatment in the hope that his may have prevented further damage but given that he was still at that time asymptomatic my opinion is that the majority of physicians would have withheld steroid treatment awaiting the development of symptoms.
3.Even today there is uncertainty as to whether the administration of steroids in sarcoidosis has the ability to prevent permanent lung scarring. There are no robust clinical trials which might provide a basis on which to answer this question scientifically. My opinion is that although it is “possible”…that earlier treatment with corticosteroids may have prevented the development of fibrosis I do not believe that there is any evidence which could allow this possibility to reach "on the balance of probability" test.
4.Withholding of corticosteroid treatment at the time when Mr Linton was asymptomatic certainly did not amount to inappropriate clinical management.
19. In a written report dated 27 March 2003 (Exhibit R8) Professor H. Peach, consultant in public health, stated that in the mid-1970s there was no Australian textbook on respiratory disease, so physicians at the time probably used Crofton and Douglas. He noted that Crofton and Douglas point out that other authorities shared their view, that it had not been proved that corticosteroid therapy prevents the development of pulmonary fibrosis in every case. He stated:
It therefore seems unlikely that many or most men with asymptomatic hilar lymphadenopathy of the veteran’s age would have been treated with corticosteroids in the early 1970s when there was a high expectation that the condition would resolve spontaneously and the benefit of corticosteroids had not been proved.
Professor Peach concluded:
The non-treatment of pulmonary infiltration without symptoms was correct according to a set of rules at the time and was right for the occasion, when the available studies suggested troublesome symptoms was the only indication for steroids. I conclude that non-treatment of the Veteran’s condition with steroids did not amount to inappropriate clinical management.
20. In a written report dated 17 April 2003 (Exhibit R9) Professor Peach commented on the report by Professor Pain (Exhibit A5). He referred to other publications available in the 1970s and concluded:
As explained in my report on the 27 March, not treating the Veteran with corticosteroids following the discovery of hilar lymphadenopathy when there was no parenchymal involvement and he was asymptomatic was in accord with the statements made by Crofton and Douglas, Harrison’s, [Harrison’s Principles of Internal Medicine, McGraw Hill, 1970 and 1980], Cumming and Semple [Disorders of the Respiratory System, Blackwell Scientific Publications, 1973], and Mitchell and Scadding [State of Art 1974-1975, American Lung Association, 1976] about whether corticosteroids should be used in these circumstances. It was also in accord with the statements made by Crofton and Douglas about treatment specifically if hilar lymphadenopathy persisted.
Using chest x-rays alone to monitor the progressing or resolution of the involvement of the lung parentchyma was in accord with what Crofton and Douglas said was the commonest criterion for doing so in the early 1970s.
20. In a written report dated 23 March 2004 (Exhibit R11) Professor Peach presented an overview of the studies carried out into the benefits of corticosteroids in the management of pulmonary sarcoidosis during the 1970s. He noted that the first controlled trials were carried out in 1967 in London and Paris, but were inconclusive because patients were assessed after completing their treatment, so no long-term effects could be established. He stated:
The trials published in the world literature between 1970 and 1975 gave no reason for doctors to believe that steroids would alter the long-term outcome of pulmonary sarcoidosis. The trials would have favoured the view that steroids should not be used more widely in the management of pulmonary sarcoidosis.
21. Professor Peach reported that, apart from a 1976 study, that mainly involved African-Americans, the majority of controlled studies were undertaken after 1978. He said that today there are so many drugs on the market that it had become impossible for individual doctors to find, read and appraise all the controlled trials involving a particular drug. He referred to an appraisal of the better controlled trials:
They concluded that, even at the turn of the millennium, whereas it could be said that oral steroids improved the chest x-ray and a global score of chest x-ray, symptoms and spirometry over 6 to 24 months, there is little evidence of an improvement in lung function and that there are no data beyond 2 years to indicate whether oral steroids have any modifying effect on long-term disease progression.
22. In oral evidence Professor Peach noted that in the 1970s there was no relevant Australian textbook, and there was some confusion among doctors. He said that decisions by medical professionals were based on clinical judgments in individual cases, and that some practitioners favoured the use of steroids to treat sarcoidosis, while others did not. Under cross-examination Professor Peach agreed that in the early 1970s the applicant should have been told that he was suffering from sarcoidosis, and that the use of steroids might have been appropriate if symptoms had been discovered in the applicant’s limbs, eyes, heart or kidneys. He also agreed that the initial investigation was inappropriate and deficient, as an x‑ay should have been followed by referral to a medical officer for possible treatment involving steroids.
23. Professor Peach said that in the unlikely event that steroids had been recommended for the applicant after his first presentation, there is nothing to suggest that his sarcoidosis would have resolved, because the 1971 x-ray showed the lungs to be clear.
CONSIDERATION OF THE ISSUES
24. Section 9(1) of the Act provides:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
25. The relevant Statements of Principle (SoP) for sarcoidosis are N° 288 of 1995 (operational service) and N° 289 of 1995 (eligible war service other than operational service). The only risk factor in paragraph 1(a) of the SoPs is:
inability to obtain appropriate clinical management for sarcoidosis
Paragraph 3(a) of the SoPs state:
3. The factor set out in paragraph 1(a) applies only where:
(a)the person's sarcoidosis was contracted before a period, or part of a period, of service to which the factor is related;
…
26. The effect of paragraph 3(a) of the SoPs is that clinical onset of the condition occurs before a relevant period of service. Clinical onset is either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time (Lees v Repatriation Commission (2002) 74 ALD 68). In his report dated 27 March 2003 Professor Peach stated that in March 1971:
Routine mobile chest x-ray first noted at a routine medical to be abnormal with hilar glands slightly prominent but with clear lung fields.
After an assessment of this report and the applicant’s medical history the Tribunal finds that the earliest date of clinical onset of sarcoidosis was March 1971, about one year after 5 March 1970, which was the last day of the final period of operational service rendered by the applicant.
27. Therefore, the Tribunal finds that the applicant is unable to satisfy paragraph 3(a) of SoP N° 288 of 1995. The only applicable SoP remaining is N° 289 of 1995, which applies to the applicant’s eligible defence service from 7 December 1972. Section 120(4) and s 120B of the Act apply, so the Tribunal must decide, to its reasonable satisfaction, whether the material before it connects sarcoidosis with the circumstances of the applicant‘s eligible defence service.
28. Mr De Marchi noted, from the naval medical records, that in March 1971 the applicant’s chest x-ray was normal, although his hilar nodes were affected so it was decided to observe him for any signs of sarcoidosis. Mr De Marchi said that, by November 1975, x-rays reported infiltration in the right upper lobe. He said that no treatment was offered, and the applicant was not informed of any abnormality. He said it was not until 1978 that sarcoidosis was confirmed, and at that time steroid treatment was decided upon. Mr De Marchi submitted that this delay of about seven years amounted to inappropriate clinical management.
29. Mr De Marchi referred to a report dated 22 February 1999 in which Professor Hart noted that the applicant suffered from pulmonary sarcoidosis, first detected in 1971, but not treated until diagnosed by biopsy in 1979. He referred to the evidence from Professor Pain and submitted that appropriate clinical management would have included informing the applicant of his condition and carrying out x-rays. He submitted that sarcoidosis caused fibrotic changes, so that there was a connection between sarcoidosis and fibrosis suffered by the applicant. Mr De Marchi submitted that Professor Peach had conceded that there was some inappropriateness in clinical management. For instance, he said that the applicant might have requested a transfer or a discharge if he had been aware of the nature of is medical condition.
30. In relation to research carried out in the 1970s Mr De Marchi referred to the second edition of Crofton and Douglas (R11) in which the authors state, at 417:
A few patients who, for a variety of reasons, were not treated with corticosteroids early in the disease now have serious respiratory disability from pulmonary fibrosis. These patients have also developed the features of chronic bronchitis over the years.
At page 422 the authors state:
There is no known cure for sarcoidosis. Nevertheless corticosteroids can, in nearly every case, suppress the manifestations of active sarcoidosis. A possible exception is sarcoidosis affecting the central nervous system. In general corticosteroids are indicated when vital organs are involved or if there is important systemic upset.
31. Mr De Marchi submitted that, in all the circumstances at the time, the applicant should have been treated with steroids, or given the option of undergoing that treatment.
32. Ms McCulloch submitted that the terms appropriate and management in the SoP require strict definition if they are to be used effectively and consistently. She noted that Professor Peach in his report of 17 April 2003 (R9) states that, according to the Oxford Reference Dictionary compiled during the early 1980s, managing sarcoidosis would have meant having (the condition) under effective control. Effective control of sarcoidosis would have meant actually keeping it within bounds. Professor Peach also states that according to the Oxford Reference Dictionary appropriate management of sarcoidosis would have meant suitable or proper management. Suitable management of sarcoidosis would have meant management which was right for the purpose, that is, of keeping sarcoidosis within normal bounds. Proper management of sarcoidosis would have meant management which was according to rules or in conformity with standards or conventions.
33. Ms McCulloch stated that in his report Professor Peach explained that statements of what could, must, or should have been done in the early 1970s to keep sarcoidosis within bounds may be found in textbooks and reviews published before or during the 1970s. He also explained that these sources might also provide information about what was done in many or most instances, what was generally accepted or proven practice at the time, examples or principles to which doctors should have conformed at the time, any specified levels of excellence, and those practices which were generally agreed to by the majority of doctors.
34. Ms McCulloch drew the Tribunal’s attention to Professor Peach’s report dated 27 March 2003 (R8) in which he stated that he had been unable to find a standard Australian textbook on respiratory diseases that was in print before or during the 1970s. Ms McCulloch noted his conclusion that physicians in Australia must have looked to standard textbooks from overseas for the level of excellence required of them in treating sarcoidosis or for examples or principles in treating sarcoidosis, to which they should have been conforming at the time.
35. In relation to texts that were available during the 1970s Ms McCulloch referred to Crofton and Douglas, which she said remains a standard text. She stated that the authors were eminent members of the Department of Respiratory Diseases and Tuberculosis at the University of Edinburgh. Other texts were Harrison’s Principles of Internal Medicine, which is one of today’s standard textbooks and was in its fourth edition in 1970, with a section on sarcoidosis; Cumming and Semple’s Disorders of the Respiratory System, 1973, a monograph on diseases of the respiratory system from the University of Birmingham and London University medical schools and was intended for medical students, postgraduate students and general practitioners; and Mitchell and Scadding’s State of the Art Review of Sarcoidosis, which was published by the American Lung Association and comprised a continuing series of articles to provide physicians with authoritative reviews of selected topics in lung disease, particularly those where new developments or discoveries needed to be publicised.
36. Ms McCulloch submitted that the Tribunal should compare the management of the applicant’s condition of sarcoidosis during the 1970s with statements in these authorities about what could, must, and should have been done; what was done in many or most instances; what was generally accepted or proven practice at the time; examples or principles to which doctors should have conformed at the time; any specified level of excellence and those practices which were generally agreed to by the majority of doctors.
37. In respect of the applicant’s service, Ms McCulloch noted that the service comprises five periods: pre-1970, 1971, 1971 to November 1975, the remainder of 1975 and 1975 to 1979. She said that in the pre-1970 period the applicant had an engagement chest x-ray that was said to be normal. She noted that in 1971 a routine chest x-ray was reported as showing slightly prominent hilar glands but with clear lung fields. No further investigations were undertaken and the applicant was not prescribed corticosteroids, but was monitored over the following four years with repeat chest x-rays. She stated that at that time references by Crofton and Douglas, Harrison’s, Cumming and Semple and Mitchell and Scadding about the investigation or treatment of sarcoidosis were influenced by the state of knowledge of the condition.
38. Ms McCulloch stated that Crofton and Douglas concluded that enlargement of the hilar lymph glands would resolve spontaneously within 2 years in 90 per cent of patients, particularly younger ones. She said that Harrison’s stated that sarcoidosis was frequently asymptomatic, and often underwent complete, spontaneous remission with subsequent normal life expectancy, while Cumming and Semple pointed out that hilar lymphadenopathy was the most common manifestation, with spontaneous resolution occurring in 90 per cent of patients within 2 years. She stated that Mitchell and Scadding advised that many patients presented few or no symptoms and the natural course of the disease in many cases was toward resolution with little or no residual disability. Ms McCulloch submitted that reliance on x-rays or the appearance of symptoms was in accord with the recommended practice at the time by Crofton and Douglas and Mitchell and Scadding.
39. In respect of a failure in 1971 to treat the applicant with corticosteroids, Ms McCulloch submitted that corticosteroids would not have been used because the applicant was asymptomatic. Crofton and Douglas state that, because of the favourable prognosis, unless other key organs were involved, hilar glandular enlargement, even if a persistent feature did not require treatment. Harrison’s states that asymptomatic hilar adenopathy did not require treatment. She said that Cumming and Semple state that because of the benign prognosis for patients with hilar lymphadenopathy alone, steroids were not indicated if lymphadenopathy was the only manifestation of the disease. Finally, Ms McCulloch submitted that, while Mitchell and Scadding state that the decision to use corticosteroids in the management of pulmonary sarcoidosis should have been based on the effect on function, that was generally reflected in symptoms, rather than on radiographic appearances.
40. The respondent accepted that an eye examination and measurement of blood calcium and calcium excretion should have been performed in 1971, to exclude the possibility that the applicant had sarcoid involvement of the eyes or kidneys. However, because the eye examination and blood calcium and calcium excretion were all normal when they were eventually performed, Ms McCulloch said that having this information in 1971 would not have changed the course of events. She noted that the x-ray was repeated in June 1973 and June 1975. On both occasions the appearance of the chest x-ray was unchanged.
41. Addressing the period between 1971 and November 1975, during which the applicant’s hilar lymphadenopathy had persisted, Ms McCulloch submitted that given that the applicant had been seen and examined by a medical officer in May 1975, that he had not reported any symptoms to the medical officer and that he had been found to have a clear chest, it was appropriate not to have treated him with corticosteroids during the period. She said that this approach was consistent with the views expressed in Crofton and Douglas, Harrison, Cumming and Semple and Mitchell and Scadding. Ms McCulloch noted that in November 1975 the applicant’s chest x-ray was reported as showing fibrosis in addition to the hilar lymphadenopathy. Corticosteroids were not prescribed, but Ms McCulloch stated that, in view of the lack of symptoms and the need to weigh up the possible risks and benefits of prescribing steroids, this was appropriate treatment.
42. Ms McCulloch referred to Professor Peach’s report dated 23 March 2004 (R8), in which he concluded that the trials published in the world literature between 1970 and 1975 gave no reason for doctors to believe that steroids would alter the long-term outcome of pulmonary sarcoidosis. The trials would have favoured the view that steroids should not be used more widely in the management of pulmonary sarcoidosis.
43. In respect of the period 1975 to 1979 Ms McCulloch noted that in February 1978 the applicant was assessed by Dr I. Brodziak, a consultant physician, who considered the applicant’s sarcoidosis did not need treatment. He advised the applicant to lose weight and stop smoking. Ms McCulloch submitted that, in the circumstances, it was appropriate for Dr. Brodziak not to prescribe steroids.
44. Ms McCulloch submitted that, similarly, in June 1978 Dr Martin, a consultant respiratory physician, examined the applicant and was aware of the chest x-ray showing bilateral hilar lymphadenopathy with irregular scattered pulmonary opacities, lung function tests showing a combined obstructive and restrictive pattern and the now completely normal renal function tests. She said that Dr Martin decided to continue monitoring the applicant rather than prescribe steroids, and this too was appropriate in the circumstances.
45. On the question of whether corticosteroids would have altered the course of the applicant’s sarcoidosis, Ms McCulloch submitted that Professor Peach, in his report dated 23 March 2004, had reviewed the evidence on the effectiveness of corticosteroids in the management of sarcoidosis and had stated that controlled trials were needed to establish whether there was any benefit from treating pulmonary sarcoidosis with steroids. She noted that only a few such controlled trials had been conducted during the 1970s but many have been conducted since, and these have concluded that there is little evidence of an improvement in lung function; and that there is no data beyond two years to indicate whether oral steroids have any modifying effect on long-term disease progression.
46. In respect of managing sarcoidosis in the 1970s, Ms McCulloch referred to J.F. Cade and M.C.F. Pain, Essentials of Respiratory Medicine, Blackwell Scientific Publications, 1988 (R12), in which the authors state (at 115):
Treatment is not required in many patients because the disability is mild and remission is usual. Corticosteroids can suppress the manifestations of acute sarcoidosis but whether they alter the long-term outcome remains unproven. Most clinicians, however, would use a prolonged course of corticosteroids in Stage II or III disease with dyspnoea and abnormal lung function and in serious extra pulmonary disease.
She submitted that, following the authors’ opinion, in the 1980s most clinicians would prescribe steroids in stage II and stage III but not in stage I of the disease (hilar lymphadenopathy only); and only when there was dyspnoea and abnormal lung function but not if the disability was mild; and any course of steroids would be a prolonged course.
47. In respect of Professor Pain’s evidence, Ms McCulloch noted that in the period 1971 to 1979 he was a newly-qualified specialist and that he would have been aware of the various textbooks available in the 1970s. She referred to his evidence to the Tribunal that:
It was well recognised that probably five per cent of subjects with asymptomatic sarcoidosis were at risk from other organ involvement or would go on to progressive inflammation in the lungs resulting in pulmonary fibrosis. So there were clear cut indications for corticosteroid therapy basically since I was a medical student.
She stated that while all of the available authorities stated that patients with actual sarcoid involvement of the vital organs, such as the eyes and kidneys, should be treated with corticosteroids, none suggested that patients should be treated with steroids because they were simply at risk of developing sarcoid involvement of those organs. Ms McCulloch added that, according to Professor Pain, the risk of an asymptomatic young man with hilar lymphadenopathy becoming disabled through pulmonary fibrosis was only 5 per cent. She submitted that none of the authorities suggested that corticosteroids should be prescribed for an asymptomatic patient with hilar lymphadenopathy alone.
48. Ms McCulloch noted that there is no written record of the applicant being told about his condition between 1971 and 1975. However, in 1975 he was told about his condition and he said he was asymptomatic. Thereafter, he was asked about symptoms and admitted to dyspnoea when playing football. She said that there was no evidence that his not knowing that he had sarcoidosis led to a delay in him reporting breathlessness. Ms McCulloch submitted that the dyspnoea was believed by Dr Brodziak and Dr Martin to be due to the applicant being overweight, a heavy smoker and having mild exercise-induced asthma.
49. Ms McCulloch concluded that the management of the applicant’s condition was not inappropriate, except in one or possibly two respects that would not have influenced the course of his disease. Therefore, the decision should be affirmed.
50. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.
51. The Tribunal agrees with Professor Pain that the question of appropriate management of sarcoidosis during the 1970s is complex. The Tribunal notes that under cross-examination Professor Pain agreed that at that time doctors were not in a position to make informed decisions about appropriate treatment, although the use of steroids was open to them. The Tribunal also notes Professor Hart’s view that the practice during the 1970s was probably to withhold the use of corticosteroids in asymptomatic patients unless the chest x-ray showed marked abnormalities, which was not the case with the applicant. Professor Hart concluded that withholding of corticosteroid treatment at the time the applicant was asymptomatic did not amount to inappropriate clinical treatment.
52. In respect of the evidence from Professor Peach, the Tribunal takes into account that during the 1970s there was no Australian textbook on respiratory disease, and Australian physicians probably relied on Crofton and Douglas. The Tribunal notes that Crofton and Douglas express the view that in general corticosteroids are indicated when vital organs are involved or if there is important systemic upset. However, the Tribunal accepts Professor Peach’s evidence that Crofton and Douglas and other authorities were of the view that patients with asymptomatic hilar lymphadenopathy were unlikely to have been treated with corticosteroids, when there was an expectation that the condition would resolve spontaneously, and the benefit of corticosteroids had not yet been proven.
53. The Tribunal accepts the evidence from Professor Peach that the first clinical trials of the use of corticosteroids in the treatment of sarcoidosis were held in 1967 but were inconclusive, and that trial results published between 1970 and 1975 gave doctors at the time no reason to believe that steroids would alter the long-term outcome of pulmonary sarcoidosis.
54. There is no doubt that with the benefit of hindsight the applicant should have been given more complete information and a range of options for treatment of his sarcoidosis. However, the Tribunal accepts Ms McCulloch’s submission that in 1971 the applicant’s chest x-rays showed slightly prominent hilar glands but clear lung fields, and that he was monitored over the next four years with further x-rays, but was asymptomatic. The Tribunal also accepts Ms McCulloch’s submission that the decision not to treat the applicant with corticosteroids during the 1970s was consistent with the views expressed in the available authorities, particularly in view of the need, at that time, to weigh up the possible risks and benefits of prescribing steroids.
55. The Tribunal takes into account that in February 1978 the applicant was treated by Dr Brodziak, who considered that the applicant’s sarcoidosis did not require treatment with steroids. The Tribunal also notes that Dr Martin did not prescribe steroids.
56. In reviewing the evidence concerning the practices in respiratory medicine during the 1970s the Tribunal accepts Ms McCulloch’s submission that the authorities available at the time are consistent in their views that a person with hilar lymphadenopathy and no symptoms would not necessarily benefit from treatment with corticosteroids. On balance, the Tribunal is reasonably satisfied that the applicant did not have an inability to obtain appropriate clinical management for sarcoidosis. As a result, he does not satisfy the risk factor in paragraph 1(a) of SoP N° 289 of 1995. Therefore, the Tribunal finds that the material does not connect sarcoidosis with the circumstances of the applicant’s eligible service.
DECISION
57. The Tribunal affirms the decision under review.
I certify that the fifty‑seven [57] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 25 July 2003, 17 November 2003, 27 February 2004, 5 July 2004 and 6 August 2004
Date of decision: 3 September 2004
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & AssociatesCounsel for respondent: Mr G. Purcell (25 July 2003 and 17 November 2003)
Advocate for respondent: Mr K. Rudge (27 February 2004)
Ms J. McCulloch (5 July 2004 and 6 August 2004)
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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