MacGregor and Repatriation Commission

[2005] AATA 769

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 769

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/745

VETERANS'  APPEALS  DIVISION		)
Re		John MacGregor

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Ms N Bell, Senior Member and Dr I Alexander, Member

Date11 August 2005

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell, Senior Member

(Presiding)

VETERANS’ DIVISION – Eligible Service – Claim for Allegation of Aggravation of Congenital Bilateral Talipes Equino Varus – Statement of Principles No.82 of 2001 – Tribunal not Satisfied that Service Contributed to, or Aggravated Condition.

Veterans’ Entitlements Act 1986

Statement of Principles No.82 of 2001

REASONS FOR DECISION

11 August 2005 Ms N Bell, Senior Member, Dr I Alexander, Member

1.      Mr MacGregor was born in 1919 with congenital bilateral talipes equino varus (club feet).  In 1938, as a cadet engineer and student at Melbourne University, he enlisted in the Melbourne University Rifle Regiment.  In 1940 he attended full time camps in which he undertook extensive marches of 20 to 25 miles per day, wearing army issue boots.  This service was eligible but not operational service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).  From December 1942 to December 1943 he had operational service in Australia and the south-west Pacific theatre laying submarine cable between the Australian mainland and Papua New Guinea.  Mr MacGregor relies, in this application, on his militia service from 17 January 1940 to 18 March 1940, as part of the Melbourne University Rifle Regiment.

2.      Mr MacGregor has had a number of conditions accepted by the Commission as being due to his service.  On 11 March 2002 he made a claim for a pension increase in respect of incapacity from “double talipes equino varus” and “respiratory problems”.  The Commission rejected the claim on 23 May 2003 and on 11 May 2004 the Veterans’ Review Board varied the diagnosis of bilateral congenital talipes equino varus to congenital talipes equino varus with osteoarthrosis and affirmed the rejection of that condition and of the condition of “respiratory problems”.  In this application Mr MacGregor is pursuing the condition of congenital talipes equino varus with osteoarthrosis alone.

3.      There is no dispute that Mr MacGregor suffers from congenital bilateral talipes equino varus with osteoarthrosis.  While there is no Statement of Principles applicable to talipes equino varus, SoP No.82 of 2001 applies with respect to osteoarthrosis arising out of eligible service.  Mr Macgregor contended that factor 5(d) of that SoP is satisfied.  That factor provides:

“The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service are:

… (d)   for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint.”

4.      This factor requires Mr MacGregor’s disordered joint mechanics to have arisen out of or, at the least, to have been aggravated by, the circumstances of his  service.  We note that both parties’ medical witnesses, Professor Sambrook, Professor of Rheumatology, for Mr MacGregor and Dr Millons, Orthopaedic Surgeon, for the Commission agree that bilateral talipes equino varus amounts to disordered joint mechanics and that the condition in Mr MacGregor is congenital.  The question remains, therefore, whether Mr MacGregor’s disordered joint mechanics was made worse by the circumstances of his service and, more specifically, the route marches he undertook.

Evidence of Mr MacGregor

5.      Mr MacGregor said he had surgery on his feet as a child and wore “irons” for approximately one year when he was six.  He said that although he was never allowed to play sport and was quite “skinny” as a child, later in his childhood he did strength training to build up his upper body and rode a bike which developed his thighs.  He said he had few problems with his feet.

6.      Mr MacGregor said he had no medical examination for entry into the Melbourne University Regiment and none when war broke out.  By then he had entered the Commonwealth Public Service as a cadet engineer and so was prevented from joining the Army.  He said he was, however, called up for some full-time camps.  On those camps, which spanned some three weeks, he was required to take part in extensive route marches of between 20 and 25 miles per day along the mainly level terrain of the Mornington Peninsula, whilst carrying a pack and wearing Army issue boots.  They would march all day, with brief stops every hour.  He said he coped at first but noticed pain in his feet and legs after the first few days.  He said that, as a child, he had walked to school for about 1 mile and experienced some pain in his feet but that the pain he felt on route marches was quite different, albeit in the same area.  He was eventually provided with a bicycle.

Medical Evidence

7.      Professor Sambrook, in his report dated 29 November 2004, said it is possible that any excessive activity he performed as part of his military service could have lead to some aggravation of his condition.  However he added that it is true that Mr MacGregor would inevitably have developed some degree of osteoarthrosis of his ankles, feet and knees because of his underlying congenital condition.  In his report of 28 January 2005, Professor Sambrook revised his opinion to say he considers it more probable than not that the long route marches led to some aggravation of the underlying congenital deformities.  He said the aggravation of the underlying condition would have arisen out of the maldistribution of excessive loading forces during the marches.

8.      In oral evidence Professor Sambrook said Mr MacGregor told him that he suffered more symptoms in his feet and legs after service than before service.  Professor Sambrook speculated that the action of intense forces across a joint that acts abnormally may damage the cartilage.  He said damage to the cartilage means that the joint mechanics could become even more disordered than they already were.

9.      Dr Millons, in his report dated 23 November 2004, stated that in his opinion, Mr MacGregor’s bilateral congenital talipes equino varus and osteoarthrosis was not caused by, contributed to, nor aggravated by his service.  In his report of 24 February 2005, Dr Millons said it is more probable than not that Mr MacGregor’s osteoarthrosis is age related with some contribution from the altered joint mechanics consequent upon his talipes equino varus.

10.     In oral evidence Dr Millons said that Mr MacGregor’s joint mechanics, which were already disordered, were not affected by service and the condition itself had not changed.  He said that if any changes to the underlying condition had occurred they would have developed over a period of years and he noted the short period over which the route marches took place.  He also said that, had there been an acute injury, signs and symptoms would have been apparent.  He further noted that there is no evidence of any damage to cartilage and that such damage could not arise out of 3 weeks of activity of the kind experienced by Mr MacGregor.  He added that if Mr MacGregor had damaged his cartilage he would not have been able to walk.

11.     The reports of Drs Sullivan, Ashwell, Evans and Pearce, contained in the T-documents, do not address the issue of a change to the underlying condition.

Consideration

12.     We are not persuaded by Professor Sambrook’s suggestion of an aggravation of Mr MacGregor’s disordered joint mechanics by way of damage to the cartilage in Mr MacGregor’s ankle.  We note, and prefer, Dr Millons’ view that such damage would have had a far greater effect on Mr MacGregor than he experienced during the route marches, that is, that he would not have been able to walk.  We also note the absence of any evidence of damage to cartilage and Professor Sambrook’s view that Mr MacGregor would inevitably have developed osteoarthrosis of his ankles, feet and knees because of his underlying congenital condition.

13.     We also note, and prefer, Dr Millons’ view that any changes to the underlying condition would have occurred over many years rather than the three weeks of route marches undertaken by Mr MacGregor.   

14.     We are not, on the balance of probabilities, satisfied that Mr MacGregor’s disordered joint mechanics were made worse by his service and it follows that he does not satisfy factor 5(d) of the SoP.  Consequently, his osteoarthrosis is not service related.

Decision

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr I Alexander, Member.

Signed:         ..........[Linda Blue].........................
  Associate

Date of Hearing  7 June 2005
Date of Decision  11 August 2005
Advocate for the Applicant       Legal Aid Commission of New South Wales
Solicitor for the Respondent     Department of Veterans’ Affairs