MacDonald and Repatriation Commission

[2000] AATA 1003

DECISION AND REASONS FOR DECISION [2000] AATA 1003

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos  V1999/1330 and 1332

VETERANS'      APPEALS      DIVISION         )          
           Re      KEITH CAMPBELL MacDONALD
  Applicant
           And    REPATRIATION COMMISSION  
  Respondent

DECISION

Tribunal       Mr B. H. Pascoe, Senior Member

Date16 November 2000

PlaceMelbourne

Decision      The Tribunal varies the decisions under review by affirming that part of the decision relating to ischaemic heart disease and osteoarthrosis of both knees and setting aside that part of the decision relating to osteoarthrosis of the left shoulder and in its stead amending the diagnosis to rotator cuff syndrome with secondary osteoarthrosis of the left shoulder and remitting the matter to the respondent for assessment with a direction that rotator cuff syndrome of the left shoulder was war-caused. 

....…(Sgd) B. H. Pascoe............
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – ischaemic heart disease – osteoarthrosis of knees and left shoulder – rotator cuff syndrome – whether Statement of Principles satisfied – diagnosis of left shoulder condition – whether suffered trauma – date of clinical onset – whether alcohol abuse or dependence
Veterans' Entitlements Act 1986

REASONS FOR DECISION

16 November 2000             Mr B. H. Pascoe, Senior Member            

1. This is an application to review two decisions of the Veterans' Review Board ("VRB") dated 15 September 1999.  The first assessed an entitlement to pension at 40% of the general rate and the second refused a claim for conditions of ischaemic heart disease, osteoarthritis of the left knee and rotator cuff syndrome of the left shoulder as being war-caused.  The VRB, in affirming the decision, amended the diagnosis of osteoarthritis of the left knee to osteoarthritis of both knees and rotator cuff syndrome to osteoarthritis of the left shoulder.  The respondent had accepted the claim for bilateral sensorineural hearing loss, chronic solar skin damage, asthma and allergic rhinitis.  The applicant is entitled to a pension at 40% of the general rate.

2. At the hearing, the applicant was represented by Mr D. De Marchi, a solicitor, and the respondent by Mr E. Nyhof, an advocate with the respondent.  Evidence was given by the applicant, Mr MacDonald; two psychiatrists, Dr E. Cole and Dr B. Kenny, and a cardiologist, Professor R. Harper.  In addition, the applicant tendered a report from Dr S. Hall dated 12 July 2000 and the respondent tendered the clinical notes of Dr B. Evans, the veteran's Local Medical Officer; an assessment under the Guide to the Assessment of Veterans' Rates of Pensions ("GARP") by Dr Evans and a Combined Impairment Assessment dated 26 July 2000 by Dr F. Morgan, Senior Medical Officer. The Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

3. Mr MacDonald served in the Royal Australian Air Force from 30 July 1942 to 10 December 1945 which constitutes eligible war service under the Veterans' Entitlements Act 1986 ("the Act"). As he served overseas, his service also constitutes operational service. Section 120(3) of the Act requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of the veteran's operational service. Under section 120A, if there is in force a Statement of Principles ("SoP") issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoPs here are:

• Instrument No. 140 of 1996 amended by Instrument No. 77 of 1997 concerning Ischaemic Heart Disease

• Instrument No. 83 of 1995 concerning Hypertension

• Instrument No. 5 of 1994 concerning Psychoactive Substance Abuse or Dependence

• Instrument No. 71 of 1995 amended by Instrument No. 236 of 1995 concerning Rotator Cuff Syndrome

In the statement of case filed for the applicant prior to the hearing, the hypothesis raised in relation to ischaemic heart disease was that Mr MacDonald suffered from war-caused alcohol dependence or abuse, which resulted in hypertension which resulted in ischaemic heart disease.  In relation to the shoulder, Factor 2(b)(v) of the SoP concerning osteoarthrosis was relied upon as "suffering a trauma to the relevant joint which has resulted in permanent ligamentous instability before the clinical onset of osteoarthrosis".  Alternatively, Factor 5(b) of the SoP concerning rotator cuff syndrome was relied upon as:

"performing activities with the hand on the affected side at or above the point of the shoulder (while standing or sitting);

(i)for at least two hours each day; and

(ii)for at least 65 days, all within a period of 120 consecutive days; and

(iii)if ceased, the activities ceased within the 30 days immediately before the clinical onset of rotator cuff syndrome."

In relation to osteoarthrosis of the knees, the applicant relied upon Factor 2(b)(vi) of the SoP concerning osteoarthrosis as "suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis".

1. Two statements by Mr MacDonald, dated 7 February 2000, were filed prior to the hearing.  One related to alcohol use and the other to the left shoulder and knees.  In these statements, it was said:

   "1.I served in the Royal Australian Air Force from 30th July 1942, to 10  December 1945.  I served on Morotai and have rendered operational service.

   2.I was 18 years of age when I joined the RAAF.  I was a non drinker prior to joining up.  Alcohol was never drunk in the house.

   3.When I was stationed at Shepparton I was introduced to beer by my mates, and I was only drinking socially at that stage.

   4.While on Morotai we were issued with 2 large bottles (26oz) of beer per week.  I drank my beer with gusto as it gave me some relief from the tension and anxiety associated with operational service.  We were always under surveylance [sic] by the Japanese and were bombed on several occasions.  Some of my mates were wounded.

   5.After discharge I continued to drink quite heavily, about 4-6 pots of beer per day.  On weekends or on special occasions I would drink much more than this.  This afforded me great relief from the tensions associated with my memories of the war.  I spent many years being unable to sleep or having nightmares.

   6.This pattern of drinking has continued since the war, and I still drink this amount today.

   7.I have suffered from hypertension for the last 20 years or so."

and

"CLAIM FOR OSTEOARTHROSIS LEFT SHOULDER

1.I served in the Royal Australian Air Force from 30th July 1942 to 10  December 1945.  I served on Morotai and have rendered operational service.

2.My duties in the RAAF was that of an Aircraft Fitter.  Except for basic training this was my occupation throughout my service.  This involved working on aircraft engines and fuselages which comprised working with arms suspended in the air about shoulder height for a lot of the time.  Also lying down and reaching inside the engine to work on it, in very uncomfortable positions.  My shoulders were extremely sore from my time in the service, with the pain becoming progressive [sic] worse over the years.

3.I resisted going to the Doctor about my shoulder pains until about 20 years ago when the condition was officially diagnosed.

CLAIM FOR OSTEOARTHROSIS KNEES

1.I have had many minor traumas to my knees during the war, but one particular incident occurred while on Morotai when playing football, when I was hit in the chest very heavily by the football.  I went down onto my knees hard.  This matter was reported and I was on light duties for a few days.  My knees have been sore since that time, but have become progressively worse since then."

1. In his oral evidence, Mr MacDonald said that he commenced smoking also during service.  Initially, consumption was between one and six cigarettes per day but, by the end of service, had increased to 40 per day.  This level continued after service until he stopped smoking in 1956.  Mr MacDonald confirmed his statement regarding alcohol use but amended the stated daily consumption from 4-6 pots of beer to 4-6 7oz glasses.  He said that he purchased his first car in 1955 and, on several occasions, drove while under the influence of alcohol.  He had not been involved in any accidents nor stopped by police and gave no thought to any problem.  At times his wife had queried whether he should be driving after drinking.  Mr MacDonald confirmed that, after drink driving laws with .05 limits came in, he ceased driving after drinking.  He did not believe that his alcohol consumption constituted any problem or had caused any difficulties at work or socially.  He had never been told by a doctor to reduce or stop drinking.

2. Mr MacDonald said that he had first noticed chest pains in about 1970.  These increased gradually over the years until he suffered a heart attack in 1989.  He believed that he had told Dr Evans of the chest pains and was surprised that the doctor had not noted the symptoms until 1984.  He accepted that Professor Harper had taken a history of chest pains being reported to his doctor in 1984 but thought that he had mentioned earlier chest pains.  He could not recall seeking any medical attention for his shoulder during service nor the date when he first consulted a doctor about his shoulder or knees.  He accepted that the sick parade notes after the football incident referred to an injury to his ribs but maintained that he did hurt his knee which was treated with ointment by a doctor who was playing in the same football match.  Mr MacDonald did not dispute the statement made in a report by Dr Evans in November 1977 that the onset of the osteoarthrosis in the knee and shoulder was "approx. 4 years ago".  The Tribunal notes that while Dr Evans refers to the date of onset of osteoarthrosis of the shoulder he also stated that radiological reports indicated long standing rotator cuff disease.  Mr MacDonald could not recall when his hypertension was first diagnosed.

3. Professor Harper examined Mr MacDonald on 12 April 2000 and provided a report dated 17 April 2000.  He was of the opinion that the clinical onset of ischaemic heart disease was in 1984.  While he said that hypertension was an unequivocal risk factor for ischaemic heart disease, he considered it unlikely that, if hypertension had been present for some 20 years, it would be the cause of a heart attack.  Professor Harper could find no evidence of alcohol dependence or abuse.

4. Dr Hall examined Mr MacDonald on 11 May 2000 and provided a report dated 12 July 2000.  He was not called to give evidence. In his report, Dr Hall stated:

   "…
   I think it reasonable to conclude that his work as a plumber would have materially contributed to the development of his rotator cuff disease.  However, I do believe that it is highly likely that at least in part his experience with the Royal Australian Air Force would also have contributed to the development of what clinically is bilateral rotator cuff disease almost certainly complicated by secondary osteoarthritis.  Typically, osteoarthritis in the shoulder develops as a consequence of a long-term consequence of rotator cuff tears.
   …"

5. Dr Cole examined Mr MacDonald on 23 March 2000 and provided a report dated 31 March 2000.  He was of the opinion that Mr MacDonald "is suffering from a chronic post-traumatic stress disorder of mild to moderate degree".  He considered that drinking had "not led to any obvious work related, social or family problems" but it may be regarded by some as an excessive amount.  In his oral evidence, Dr Cole accepted that, if Mr MacDonald had not driven after drinking in recent years, it may be difficult to satisfy the relevant SoP on psychoactive substance abuse or dependence.

6. Dr Kenny examined Mr MacDonald on 4 April 2000 and provided a report dated 6 April 2000.  He was of the opinion that Mr MacDonald "has a mild post-traumatic stress disorder, of little clinical significance, disrupting his life to a minimal extent and not warranting treatment".  He did not see him as demonstrating substance abuse or dependence.  Dr Kenny said in his oral evidence that he believed it was not uncommon in the 1950s for people to drive while under the influence of alcohol and the fact that Mr MacDonald stopped such a practice after specific drink driving laws were introduced was significant.

7. It was submitted for the applicant that he satisfied the SoP for ischaemic heart disease.  It was argued that the clinical onset was in 1970 when Mr MacDonald first noticed chest pain and this was within 15 years of ceasing to smoke.  Alternatively, it was said that Mr MacDonald suffered from alcohol abuse or dependence which satisfied the SoP for hypertension which, in turn was a factor in ischaemic heart disease.  Mr De Marchi maintained that the SoPs for rotator cuff syndrome and osteoarthrosis were satisfied.  For the respondent it was submitted that the clinical onset of ischaemic heart disease was 1984 with no evidence of any earlier complaint.  It was submitted further that Mr MacDonald did not suffer from alcohol  abuse or dependence and did not satisfy either the SoP for hypertension or the SoP for ischaemic heart disease.  Mr Nyhof argued that there was no evidence of the clinical onset of osteoarthrosis occurring until at least 1993 and no evidence of trauma to the shoulder or knees to satisfy the relevant SoP.  If the shoulder condition was rotator cuff syndrome, it was said that there was no evidence of the clinical onset within 30 days of ceasing the activities set out in Factor 5(b) of the relevant SoP.  The respondent was prepared to concede that Mr MacDonald's smoking and drinking were war-caused.

8. In relation to the claim for ischaemic heart disease the applicant is relying on satisfying either Factor 5(a) or 5(c), that is "the presence of hypertension before the clinical onset of ischaemic heart disease" or the clinical onset being within 15 years of cessation of smoking.  To satisfy 5(a), the applicant has to satisfy a factor in the SoP concerning hypertension.  The factor relied on was 1(b) "suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension".  In Instrument No. 5 of 1994, psychoactive substance abuse or dependence means:

   "… a maladaptive pattern of use, attracting ICD code 303 or 304, that is indicated by either:

   (a)continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

   (b)recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated)."

There is no evidence of any recurrent social, occupational, psychological or physical problem caused by use of alcohol and, on the contrary, all the evidence points to no particular problem.  Mr De Marchi sought to make much of Mr MacDonald's admission that he, at times, many years ago, drove his car while under the influence of alcohol.  However, it is clear that, when he recognised that this was hazardous, he stopped.  Neither psychiatrist found any evidence of alcohol abuse or dependence and neither does this Tribunal.

1. To satisfy Factor 5(c) of the SoP concerning ischaemic heart disease, the Tribunal has to be satisfied, on the balance of probabilities, that the clinical onset of ischaemic heart disease was no later than 1971, being 15 years after cessation of smoking.  The only evidence of this was Mr MacDonald's somewhat hazy recollection of chest pains in 1970.  On the other hand, there is no objective evidence of any concerns until 1984 when he reported them to Dr Evans.  I am not satisfied, on the balance of probabilities, that Mr MacDonald was aware of a possible problem much less to a stage where a doctor may have diagnosed a heart problem before the 1980s.  Consequently, I am satisfied that Mr MacDonald does not satisfy the SoP for ischaemic heart disease.

2. In relation to osteoarthrosis of the knees, Mr MacDonald needs to satisfy Factor 2(b)(vi) of the SoP concerning arthritis and "suffering a trauma" to the knees.  The definition of "trauma to the relevant joint" in the SoPs is:

   "…a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred."

In his statement before this Tribunal, Mr MacDonald said that he "went down onto my knees hard" when playing football on Morotai.  He was not able to say that he had pain, swelling, tenderness and altered mobility or range of movement of the knees at all, much less lasting for at least a week.  The sick parade record dated 4 June 1945 refers to a bruised second right rib only with no reference to knees.  At the VRB hearing, Mr MacDonald said that he could not remember any major trauma affecting his knees during his period of service.  On the basis of the evidence, the Tribunal cannot be satisfied that the injury referred to by Mr MacDonald satisfies the requirements of the SoP to have suffered a trauma to the knee.

1. The first issue in dealing with the left shoulder condition is the appropriate diagnosis.  Initially, Mr MacDonald claimed for "shoulder problems".  The respondent's determination of 28 February 1998 stated that the medical name for the claimed condition was "rotator cuff syndrome of the left shoulder".  The VRB amended this diagnosis to "osteoarthrosis of the left shoulder" on the basis of a report of Dr Quirk, an orthopaedic surgeon, dated 17 September 1998 (T34) which stated that Mr MacDonald was suffering from that condition.  Dr Evans, the local medical officer referred to the condition as osteoarthrosis but noted that the radiological investigation indicated long standing rotator cuff disease.  Dr Hall, in his report, stated that Mr MacDonald had "bilateral rotator cuff disease almost certainly complicated by secondary osteoarthrosis.  Typically, osteoarthrosis in the shoulder develops as a consequence of a long-term consequence of rotator cuff tears."  From this it would appear that Mr MacDonald's condition is more accurately described as rotator cuff syndrome overlaid by or with secondary osteoarthrosis.  I am satisfied that Mr MacDonald satisfied the first part of 5(b) of the SoP concerning rotator cuff syndrome in the activities he performed servicing aircraft and for the times set out.  The difficulty is whether the clinical onset was within 30 days of ceasing such activities.  On balance, I am satisfied that Mr MacDonald had the symptoms from that time and his failure to complain or seek medical treatment until very much later does not mean that the clinical onset was later than 30 days from ceasing those activities.  Having found that the condition of rotator cuff syndrome was war-caused, there are two further difficulties.  The SoP for osteoarthrosis does not appear to include rotator cuff syndrome as a recognised factor.  This SoP refers to "contracting significant inflammatory joint disease" or "having a malalignment of the relevant joint" or "suffering an intra-articular fracture of the relevant joint" or "suffering a depositional joint disease in the relevant joint".  No medical evidence was provided to demonstrate whether or not rotator cuff syndrome, at times referred to as a disease, satisfies any of these descriptions.  If it does, then the osteoarthrosis of the left shoulder is also war-caused.  The second difficulty is that, if rotator cuff syndrome is not recognised as a factor in osteoarthrosis by the SoP, there is no separate impairment assessment for rotator cuff syndrome.  The appropriate course is to remit this matter to the respondent for assessment.  The overall assessment of the left shoulder condition was assessed by Dr Quirk and Dr Morgan at 20 points using Tables 3.1.1 and 3.1.2 of GARP.  Dr Hall assessed 10 points using Table 3.1.1 and 30 under Table 3.1.2.  The appropriate rating appears to be 20 points subject to age adjustment under Table 3.6.1.

1. It follows from the foregoing that the decision under review in relation to ischaemic heart disease and osteoarthrosis of the knees should be affirmed and, in relation to osteoarthrosis of the left shoulder, the diagnosis should be amended to rotator cuff syndrome with secondary osteoarthrosis of the left shoulder and the matter remitted to the respondent for assessment with a direction that rotator cuff syndrome is war-caused.

   I certify that the sixteen (16) preceding paragraphs are a true copy of the reasons for the decision herein of

   Mr B. H. Pascoe, Senior Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  19 September 2000
   Date of Decision  16 November 2000
   Solicitor for the Applicant         Mr D. De Marchi
   Solicitor for the Respondent    Mr E. Nyhof, departmental advocate