Marren and Repatriation Commission - [2001] AATA 722

DECISION AND REASONS FOR DECISION [2001] AATA 722

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1754

VETERANS' APPEALS DIVISION          )
           Re      Kenneth Joseph Marren
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms S M Bullock, Senior Member Dr J Campbell, Member

Date17 August 2001
PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that: 1. Mr Marren's conditions of constrictive pericarditis and staphylococcal empyema are war-caused. 2. Mr Marren is entitled to Disability Pension for these conditions from and including 27 February 1997. 3. The assessment of the correct rate of Mr Marren's Disability Pension is remitted to the Repatriation Commission.

..............................................
Ms S M Bullock
Presiding Member

CATCHWORDS
VETERANS' AFFAIRS – Entitlement - Operational Service - Reasonable Hypothesis - Constrictive Pericarditis - Staphylococcal Empyema

LEGISLATION
Veterans' Entitlements Act 1986ss 5D, 9, 13, 120(1), 120(3)

AUTHORITIES
Repatriation Commission v Bey (1997) 79 FCR 364
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Webb (1987) 13 ALD 421
Webb v Repatriation Commission (1988) 19 FCR 139
Repatriation Commission v Webb (1998) 51 ALD 575

REASONS FOR DECISION

Ms S M Bullock, Senior Member Dr J Campbell, Member
17 August 2001

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Kenneth Joseph Marren, ("the Applicant"), of a decision made by the Repatriation Commission ("the Commission") on 13 November 1996 (T2), as affirmed by the Veterans' Review Board ("the Board") on 6 October 1998 (T18), that the Applicant's conditions of constrictive pericarditis and staphylococcal empyema were not war-caused.
A hearing was held in Sydney before the Tribunal on 30 April 2001. The Applicant presented oral evidence to the Tribunal and was represented by Mr N Dawson of Counsel. The Respondent, the Commission, was represented by Ms R Henderson of Counsel. Taken into evidence were documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T20) and the following exhibits:
Exhibit Number     Description Date
Exhibit A1     Statement of the Applicant, Mr K J Marren        13 July 1999
Exhibit A2     Statement of Mr S Kerrigan, R L Wyburn and Associates, Solicitors 8 July 1999
Exhibit A3     Report of Professor J B Hickie, Emeritus Professor of Medicine, University of New South Wales, Cardiologist and Consultant Physician            24 May 1999
Exhibit A4     Echocardiogram undertaken by    Professor J B Hickie        9 April 1999
Exhibit A5     Dr D Richards, Consultant Cardiologist   13 October 1999

SERVICE HISTORY

The Applicant served in the Royal Australian Navy. He enlisted on 28 August 1965 and was discharged on 27 October 1972. The Applicant's eligible war service, which is also operational service, was from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 6 June 1966 in Vietnam (T3).
ISSUES
The issue in this matter is whether or not the Applicant's conditions of constrictive pericarditis and staphylococcal empyema are war-caused.
LEGISLATION
A decision in this matter requires consideration of the provisions of the Veterans' Entitlement Act 1986, ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:

"War-caused injuries or diseases

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;

(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…"

Section 13 of the Act deals with eligibility for pension.
The standard of proof for Mr Marren's operational service is that of the reasonable hypothesis applying subsections 120(1) and 120(3) of the Act which provide:

"Standard of proof

120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…"
10.Usually decision-makers are required to apply section 120A of the Act by assessing the reasonableness of hypotheses in accordance with any Statements of Principles issued by the Repatriation Medical Authority (RMA) or any relevant determination or declarations under the Act. In the Applicant's case, no Statements of Principles have been issued for the conditions of constrictive pericarditis or staphylococcal empyema. In such circumstances, the approach to be adopted by the Tribunal has been laid down by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

BACKGROUND

11.The following information is provided by way of background and the facts contained within are not disputed.

Mr Marren was born on 25 November 1946.
Mr Marren left school at the age of approximately 15 years after completing first form at secondary school. He was employed for approximately two years in a timber yard as a tallyman counting wood. Between 1965 and 1972, Mr Marren served in the Royal Australian Navy as a steward. For the period 25 April 1966 to 6 May 1966 and 30 May 1966 to 6 June 1966, the Applicant served in HMAS MELBOURNE also as a steward.
On 1 February 1967, Mr Marren was admitted to RANH PENGUIN with a "sore throat and tender cervical glands". A diagnosis of acute tonsillitis was made. The Applicant was prescribed penicillin and after three days was symptomless. He was discharged back to duties on 6 February 1967 (T3, p35; T20).
On 27 October 1972, Mr Marren completed a "Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy". Mr Marren recorded that he had no disabilities at the time of his discharge but had a left and right hernia in November 1971. Mr Marren did not claim any disabilities due to or aggravated by his service (T3, p12).
Mr Marren lodged a claim for Disability Pension on 13 June 1996 for the conditions of: "Post Traumatic Stress Disorder and Alcohol Abuse; Hearing Loss and Ringing in the Ears; Lung Disability due to Smoking; Calcification of the Heart" (T4, P52). The Applicant claimed in relation to the lung disability that he first became aware of this condition in 1969 and did not record any date for first becoming aware of the calcification of the heart disability.
In an Alcohol Questionnaire, completed on 11 June 1996 (T5), Mr Marren noted the commencement of his drinking alcohol occurred in 1969 after service in Vietnam. He commenced drinking, he noted, to relieve stress and calm his nerves.
In the "Claimant Report – Cigarette Smoking", completed by Mr Marren on 11 June 1996 (T6), he noted that he commenced smoking in 1969 in Vietnam at the rate of 40 cigarettes per day. Mr Marren commenced smoking to relieve stress and calm his nerves, he recorded. The Applicant further noted that he was ordered to stop smoking due to his lung problems.
On 30 January 1996, Dr M P Feneley, Associate Professor of Medicine, University of New South Wales and Cardiologist, reported that Mr Marren had been under his care for the past eight years for the condition of constrictive pericarditis. Associate Professor Feneley reported that the Applicant's symptoms of breathlessness and swelling increased significantly in 1995 culminating in a decision to attempt a surgical correction of his constrictive pericarditis. The procedure involved removing a layer of heavy calcification from around the Applicant's heart. The procedure was performed on 8 September 1995. There was evidence of improvement after the procedure, although at the time of reporting in 1996, the Applicant still suffered significantly from severe shortness of breath, particularly from anything other than very minor exertion (T8).
On 1 April 1996, Associate Professor D H Bryant, reported that Mr Marren was recently admitted to St. Vincent's Hospital, Darlinghurst, for treatment of a right sided staphylococcal empyema which developed against a background of previous calcific constrictive pericarditis which had required pericardectomy (T9).
On 13 November 1996, the Commission refused Mr Marren's claim for constrictive pericarditis and staphylococcal empyema, but accepted his claim for post traumatic stress disorder. The Applicant was assessed at 50 per cent of the General rate with effect from 13 March 1996 (T2).
On 27 August 1997, the Applicant lodged an application for review to the Board in relation to the Commission's decision. (T12).
On 24 February 1998, Associate Professor Feneley confirmed that Mr Marren had been under his care since April 1995, having had documented constrictive pericarditis since April 1989. As at 1998, Associate Professor Feneley noted that Mr Marren's condition had improved but still required extensive medical therapy to control his fluid congestion and to prevent atrial fibrillation both of which are complications of constrictive pericarditis. Associate Professor Feneley noted:
"Constrictive pericarditis is an insidious condition that takes many years to manifest signs and symptoms following the initiating event. The initiating event used most commonly to be tuberculosis, but most cases in the developed world are now thought to follow viral pericarditis many years before presentation. [The Applicant] has not had tuberculosis. The cause of his constrictive pericarditis is uncertain, but is presumed to be post-viral in origin. Given that [the Applicant] was already shown to have a heavily calcified pericardium in 1989, it is certainly consistent with the known natural history of this disease that the original episode of pericarditis could have occurred during his period in Vietnam. Unfortunately, in most documented cases of constrictive pericarditis, the original episode of acute pericarditis is not associated with any symptoms". (T16)
On 2 April 1998, Associate Professor Bryant reported that it was possible that Mr Marren had contracted constrictive pericarditis while in Vietnam, although there was no direct evidence of this (T15).
On 15 April 1998, Mr Marren provided a statement to the Department of Veterans' Affairs. He noted that during his service in South East Asia in 1966, servicemen were exposed to diseases not common in Australia. Mr Marren's illness was advanced when diagnosed in 1989 and Mr Marren suggested this indicated that he had contracted constrictive pericarditis many years before its first diagnosis (T14).
On 6 October 1998, the Board affirmed the Commission's decision. The Board noted the opinion of the Departmental Medical Officer ("DMO"), Dr H Bashir, who on 11 October 1996, noted that constrictive pericarditis is a disorder characterised by fibrous thickening of the pericardium, the sac around the heart. Dr Bashir noted that fibrosis is progressive and fibrous tissue often becomes calcified, constricting the movement of the heart. Dr Bashir opined that in most cases, the cause of the condition is unknown. Dr Bashir further noted that tuberculosis used to be a common cause but is rarely seen these days. The condition may complicate Rheumatoid Arthritis. In the Applicant's case, Dr Bashir opined that the cause is unknown and there is no known association with tobacco smoking, alcohol consumption, or psychogenic stress (T10). The Board also had the benefit of the opinions of Associate Professor Feneley and Associate Professor Bryant. The Board concluded that these opinions amounted to "…nothing more that (sic) mere conjecture and do not provide the basis for a reasonable hypothesis of a link with operational service". The Board further noted the principles established in Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra), concluding that the hypothesis was "not tenable", "too remote" and "too tenuous" for the conditions of staphylococcal empyema (T18).
On 7 December 1998, Mr Marren lodged an application for review to the Tribunal (T1). The Applicant's reasons for the application were that the Board had ignored the connection that constrictive pericarditis takes up to 20 or so years to manifest. The Applicant noted in his application for review that the disease was first found in "1986" and he had service in Vietnam in 1966.

APPLICANT'S EVIDENCE

12.Mr Marren told the Tribunal that whilst serving in HMAS MELBOURNE in Vietnam in 1966, like just about everyone else serving in the ship, he developed a cough. The cough was persistent and concerned him, Mr Marren told the Tribunal. He could not recall if he told anyone about the cough during the first year of its existence because he stated that he could not remember that far back. Mr Marren described the cough as persistent and "niggling" at first, worse at night and years later worsening during winter. The Applicant stated that he and other crewmembers thought that their cough might be due to a virus, the fumes from aviation gas or from cigarette smoking, which the Applicant told the Tribunal he commenced in 1966. This commencement date, the Tribunal noted, differed from the date of commencement in 1969 which he recorded in his Smoking Questionnaire (T6). The Applicant explained to the Tribunal that his cough was associated with an irritation at the back of his throat. He told the Tribunal that the nature of the cough did not change over the years. He did not consider that is was bronchial but more like an irritation.
13.Mr Marren informed the Tribunal that he attended the sick bay of HMAS MELBOURNE and was given "Aspro" to gargle for his cough. He was not examined by a Lieutenant-Surgeon. Back in Australia, Mr Marren noted that he attended the Garden Island Dockyard Medical Centre and was given a decongestant. Again he was not examined by a Lieutenant-Surgeon. The Applicant noted that he had had tonsillitis in February 1967. While agreeing that the hospital records for HMAS PENGUIN in 1967 recorded no previous history of sore throat or cough in Vietnam, Mr Marren informed the Tribunal that he did not recall what he might have told medical authorities at that time about his symptoms. Mr Marren agreed that his condition was treated with antibiotics and he recovered. The Applicant stated that he had a persistent cough continuing following his discharge from the Navy, despite there being no record of this.
14.Mr Marren told the Tribunal that he reported his persistent cough to Dr Michelmore, his General Practitioner, who then treated him with antibiotics. The Applicant stated that he had a number of blood tests and X-rays and Dr Michelmore also suggested that he give up smoking. The Applicant stated that the cough persisted while he was working on the railways and he was treated with more antibiotics.
15.Mr Marren stated that he had not told Professor J B Hickie, Emeritus Professor of Medicine, University of New South Wales, Cardiologist and Consultant Physician, of the cough. Professor Hickie had examined Mr Marren on 28 April 1999 and had asked him if he had been a prisoner-of-war, but he had not specifically asked him about a persistent cough. The Applicant told the Tribunal that Professor Hickie had prompted him to remember that he had experienced a persistent cough from his time in Vietnam. Doctor D Richards, Consultant Cardiologist, had on the other hand, asked the Applicant whether he had had a cough.
16.Since heart surgery, Mr Marren has noted that his symptoms of constrictive pericarditis have been relieved for the past five years.
17. The Applicant concluded that when he ceased smoking, he had not noticed a change in his cough and the irritation was low in the back of his throat.

RECENT MEDICAL EVIDENCE
Dr J B Hickie, Emeritus Professor of Medicine, University of New South Wales, Cardiologist and Consultant Physician.

On 24 May 1999, Professor Hickie reported that he had examined Mr Marren on 28 April 1999 (Exhibit A3). Professor Hickie reported a history in April 1989 of the Applicant attending St George hospital for treatment of spurs on his heels and of being diagnosed by that treating doctor, who noticed distended veins in Mr Marren's neck, as having constrictive pericarditis. Professor Hickie noted the Applicant's cessation of smoking in 1972 and of his father's dying at age 29 years of a blocked heart valve. The Applicant's mother died at age 55 years of a cerebral haemorrhage. A brother was noted by Professor Hickie as having kidney disease and a nephew has suffered from a cardiac arrhythmia and has also had an ablation. Professor Hickie reported that the Applicant did not remember any serious injury in Vietnam and his chest X-ray in 1972 was clear.
Professor Hickie noted that the Applicant had classical constrictive pericarditis documented since April 1989 and this condition is still present despite surgical resection of the pericardium in September 1995. The Applicant has diminished function of his right lung due to either thickened right pleura or a chronic right pleural effusion.

Professor Hickie described constrictive pericarditis as a chronic inflammatory condition that takes many years to develop. He noted that the initiating event in the past was most commonly tuberculosis, but is at present thought to be viral pericarditis and in occasional cases, trauma to the pericardium or post cardiac surgery. Professor Hickie stated that the cause of the Applicant's constrictive pericarditis "is uncertain", but it could be post-viral in origin. Professor Hickie noted that he had reviewed the Applicant's daily service medical records and could not find any record of a previous acute viral infection. Professor Hickie noted acute tonsillitis from 1-6 February 1967. This condition was a classic tonsillar infection, Professor Hickie noted, with the Applicant having a sore throat, palpable enlargement of the cervical lymph glands and a temperature of 38.4°C. Professor Hickie noted that tonsillitis is usually bacterial in origin and the condition responded to treatment with penicillin.
Professor Hickie concluded:
"…He was shown to have a heavily calcified pericardium in 1989 when the diagnosis was first made. This would be consistent with the natural history of this disease, and the original episode of pericarditis would have had to have occurred many years before, which could have been during the period of his service in Vietnam. In most patients with constrictive pericarditis the original episode of acute pericarditis is often not associated with any symptoms and often not documented. It would be a reasonable hypothesis to connect his present disabilities with his service in Vietnam." (Exhibit A3)

Dr D Richards, Consultant Cardiologist

On 13 October 1999, Dr Richards reported on the Applicant, having also examined him on 13 October 1999 (Exhibit A5).
The Applicant had reported a history to Dr Richards of sore throat, cough and dyspnoea during the periods of his service in Vietnam from 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966. These symptoms, Dr Richards understood, were common amongst the Applicant's colleagues. The symptoms were thought to be due to either viral infection, exposure to aviation gas or other compounds. Dr Richards noted a history of Mr Marren receiving aspirin from a sick bay attendant. He sought medical attention on several occasions with tonsillitis being diagnosed in 1967.
Dr Richards opined that Mr Marren has constrictive pericarditis which probably began with an acute inflammation approximately 20 years before his surgery in 1995, that is, in 1975. Dr Richards concluded:
"It is my opinion that a reasonable hypothesis exists to link pericarditis with probable viral infection during his period of eligible service in 1966. …
Although he did not report pleuritic chest pain at the time, it is my opinion that a viral infection during his eligible service caused pericarditis which led to chronic constrictive pericarditis and his present morbidity."(Exhibit A5).

SUBMISSIONS

25.Mr Dawson submitted that both Professor Hickie and Dr Richards provided opinions that there is a reasonable hypothesis established which links a viral condition experienced during Mr Marren's Vietnam service leading to the original acute pericarditis, which then lead to chronic constrictive pericarditis years later.
26.Mr Dawson submitted that Mr Marren has been consistent in the history provided to the Tribunal, to the Board and to the medical experts in relation to his having a persistent cough. In Mr Dawson's submission, Mr Marren's cough was symptomatic of a viral infection experienced during operational service.
27.Referring to the High Court and Federal Court authorities concerning the provision of expert evidence, principally in the cases of Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra) and later in Repatriation Commission v Bey (1997) 79 FCR 364, Mr Dawson submitted the Tribunal could not do other than accept the expert medical opinions that a reasonable hypothesis has been raised by Professor Hickie and Dr Richards. Mr Dawson contended that Professor Hickie and Dr Richards are two highly respected medical experts whose opinions are based on the same evidence from Mr Marren which was provided to the Tribunal.
28.The Tribunal was further referred to the Federal Court decision in Repatriation Commission v Webb (1987) 13 ALD 421, in which Beaumont J noted:
"…a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions. The point sought to be achieved by the introduction into s120 of the notion of a "reasonable" hypothesis is the distinction between a theory that is rationally based, on the one hand, and an opinion or view that is irrational, absurd or ridiculous, on the other. It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease."

The Full Federal court in Webb v Repatriation Commission (1988) 19 FCR 139 did not disagree with this passage in Beaumont J's judgment.

Mr Dawson submitted that the opinions offered by Professor Hickie and Dr Richards provide a rationally based hypothesis and it would be rare for a Tribunal to put aside such opinion.
Referring to subsection 120(1) of the Act, Mr Dawson submitted that given the facts in Mr Marren's case, the Tribunal could not be satisfied beyond reasonable doubt that these facts did not support the reasonable hypothesis asserted by Professor Hickie and Dr Richards. Both experts had the same evidence and the same facts as had been provided to the Tribunal and both doctors had accepted them as supporting their reasonable hypothesis.
Mr Dawson submitted that the condition of constrictive pericarditis should be determined by the Tribunal to be war-caused with Disability Support Pension being paid from and including 27 February 1997.
In relation to the condition of staphylococcal empyema, which was secondary to constrictive pericarditis arising out of surgery for that condition, Mr Dawson submitted that this condition also should be accepted by the Tribunal as being war-caused.
Mr Dawson submitted that pension should be assessed at 100 per cent of the General rate.
Ms Henderson, for the Respondent, referred the Tribunal to the joint judgment of Mason CJ, Deane J and McHugh J in Bushell v RepatriationCommission (supra) in which at page 414 of the judgment, their honours stated that:
"…However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature" (ibid, at p306). Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran's claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
If the material does raise a reasonable hypothesis of a connexion between the service and the injury, disease or death, the claim must be dealt with in accordance with s.120(1). That is to say, the Commission must determine that the injury, disease or death was war caused "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". The use of the terms "the material" and "raise" strongly suggests that sub-s.(3) is not concerned with the proof or satisfaction of a claim but with whether there is some "material" which calls for a determination under s.120(1). The phrase "[i]n applying sub-section (1) or (2) (emphasis added) in s.120(3) also suggests that s.120(1) is the governing provision."
The Tribunal was further referred to East v Repatriation Commission (1987) 16 FCR 517 at 533 and the issue of raised facts in which it was concluded that:
"... A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
Ms Henderson submitted that the Tribunal must carefully consider the evidence upon which the experts Professor Hickie and Dr Richards base their reasonable hypothesis. Ms Henderson submitted that what Professor Hickie and Dr Richards both assert is a tenuous and remote hypothesis.
Referring to Repatriation Commission v Bey (supra), in which evidence was received from Dr Mackay, an eminent immunologist and Dr Hall, the Court concluded that neither doctor put forward evidence or factors which pointed to the hypothesis advanced by Mr Bey. Further, the Court noted that neither expert went further than to suggest the cause of a disease was a possibility. The Court concluded that the Primary Judge had erred in law in concluding that the mere possibility of a connection between war service and Mr Bey's disease constituted a reasonable hypothesis. The Full Court in Repatriation Commission v Bey (supra) asserted the authority established by East v Repatriation Commission (supra), Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra) that a reasonable hypothesis involves more than a mere possibility. It must be a hypothesis pointed to by the facts even though not proved upon the balance of probabilities.

38.Referring to the evidence, Ms Henderson noted that Professor Hickie reported no evidence on his examination of Mr Marren's records of acute viral illness in Vietnam. Professor Hickie then proceeded to advance a reasonable hypothesis in the "language of possibility", contended Ms Henderson. There was no evidence in the material of Mr Marren having a history of acute viral infection during his Vietnam service. There were therefore no raised facts to support the existence of a viral illness or infection during this service. The fact that Mr Marren had a niggling cough in Vietnam did not of itself raise any evidence of a viral infection, Ms Henderson submitted.

Referring to Dr Richard's report of Mr Marren having a history of a sore throat, dyspnoea as well as a cough, Ms Henderson contended that there was no evidence before the Tribunal from the Applicant or in any of the other evidence of the Applicant's having a sore throat or dyspnoea in Vietnam. The only evidence of a sore throat occurred in 1967 when Mr Marren was diagnosed as having tonsillitis which is a bacterial infection and was treated successfully with penicillin. Ms Henderson submitted that Dr Richards was not given evidence of Mr Marren having a cough until some many years after Mr Marren's Vietnam service. Further, Ms Henderson contended that Dr Richards' report did not provide any explanation as to why he believed Mr Marren had a viral infection in Vietnam. Ms Henderson submitted that there was therefore no reasonable hypothesis raised which was supported by the facts and evidence available to the Tribunal. Accordingly, the Tribunal could not be satisfied beyond reasonable doubt that there are any raised facts or material sufficient for making a determination that Mr Marren's condition of constrictive pericarditis and secondary condition of staphylococcal empyema were war-caused. In such circumstances, the decision under review should be affirmed, Ms Henderson concluded.

FINDINGS

The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The hypothesis put by Mr Marren is that a cough he experienced from the time of his service in Vietnam between 25 April 1966 to 6 May 1966 and from 30 May 1966 to 9 June 1966, was symptomatic of a viral infection he experienced on eligible service. It was further hypothesised that the viral infection caused an acute or original episode of pericarditis which then led to chronic constrictive pericarditis diagnosed in 1989. Both Professor Hickie and Dr Richards advance as a reasonable hypothesis that the original episode of pericarditis would have had to have occurred many years before the diagnosis of the condition and this could have occurred during Mr Marren's eligible service. The Tribunal notes Professor Hickie's general statement regarding medical knowledge concerning the condition of constrictive pericarditis, that the initiating event for this condition in the past was thought to be tuberculosis, but current medical thinking is that the initiating event is thought to be viral pericarditis. Professor Hickie further noted that in most patients with constrictive pericarditis, the original episode of acute pericarditis is often not associated with any symptoms.
The Tribunal also notes Associate Professor Feneley's opinion that the original episode of acute pericarditis is not associated with any symptoms and given the natural known history of this disease, the original episode of Mr Marren's pericarditis could have been during his period of service in Vietnam (T16).
Associate Professor Bryant noted that while no evidence of mycobacterial infection was found, it was possible that Mr Marren's pericarditis was due to a tuberculosis infection which had spontaneously resolved by the time of his presentation or diagnosis. Associate Professor Bryant postulated that it was possible that this infection was contracted while on service in Vietnam, although he noted that there was no direct evidence to support such a diagnosis of tubercular infection.

44.The Tribunal notes the observations by the High Court in Bushell v Repatriation Commission (supra), that it would be rare that a hypothesis could be said to be unreasonable when put forward by a medical practitioner eminent in his or her field. The Tribunal also notes Ms Henderson's submissions that the hypothesis put by Professor Hickie and Dr Richards is too tenuous and based on mere possibility or inference as discussed in Repatriation Commission v Bey (supra). Associate Professor Bryant and Associate Professor Feneley have also proposed a reasonable hypothesis that Mr Marren's condition of constrictive pericarditis was initiated on service in Vietnam. There are four independent medical experts, prominent in their field, postulating as a reasonable hypothesis that Mr Marren had an initiating episode of pericarditis during his Vietnam service. All the medical experts providing opinion in this matter are in agreement in relation to the existence of this reasonable hypothesis. While the weight of medical opinion may not be necessarily determinative of the acceptance of a reasonable hypothesis, in this case, the Tribunal does accept the opinions and their underlying reasons as proposed by Professor Hickie, Associate Professor Bryant, Associate Professor Feneley and Dr Richards, that a reasonable hypothesis is raised that Mr Marren's condition of constrictive pericarditis is linked to his eligible war-service. Accordingly, the Tribunal finds that pursuant to subsection 120(3) of the Act, it is not fanciful, too remote or untenable to hypothesise that Mr Marren had a viral infection during his eligible service, which led to the original episode of pericarditis, leading on to chronic constrictive pericarditis some 23 years later.
45.The Tribunal also notes Byrnes vRepatriation Commission (supra), which provides authority for the proper construction of subsection 120(3) and subsection 120(1) of the Act. (Note also: Repatriation Commission v Webb (1998) 51 ALD 575; Repatriation Commission v Deledio (1998) 83 FCR 82). A decision-maker is required to consider whether all or some of the facts raised by the material give rise to a reasonable hypothesis connecting the claimed condition with war service. If a reasonable hypothesis is established, pursuant to subsection 120(3) of the Act, then subsection 120(1) is to be applied in relation to any facts which support the hypothesis. A claim would succeed at this point unless one or more of the facts necessary to support the raised reasonable hypothesis are disproved beyond reasonable doubt or, the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt. The Tribunal further notes that in Bushell v Repatriation Commission (supra), the Court concluded at 416 that if a decision-maker is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the decision-maker, or because the raised facts depend on inferences which the decision-maker is satisfied cannot be drawn, then the decision-maker will be satisfied that there is no sufficient ground for making the determination that a condition or the death of the veteran is war-caused. The Tribunal turns now to apply subsection 120(1) of the Act to determine whether or not it can accept sufficient of the facts as are necessary to support the raised hypothesis.
46.Mr Marren's history to Dr Richards was that during service in Vietnam he suffered from a cough, sore throat and dyspnoea. The Applicant's oral evidence to the Tribunal and evidence in his written statement was that he had a persistent cough in Vietnam which he thought could have been viral in origin, related to his smoking or the use of aviation fuel on board HMAS MELBOURNE. Professor Hickie noted no persistent cough nor did Associate Professors Bryant or Feneley. Further, there is no record on discharge of Mr Marren having any persistent cough nor is there evidence of this condition recorded in any of his daily service medical records as is also noted by Professor Hickie. Mr Marren was however treated during a period of non-eligible service for acute tonsillitis. As noted by Professor Hickie, tonsillitis is a bacterial infection and in Mr Marren's case, was successfully treated by antibiotics. Dr Richards' evidence of sore throat and dyspnoea are therefore not reported by the Applicant to the Tribunal or by any other doctors. The Tribunal is not certain as to how Dr Richards arrived at this history.

Ms Henderson has submitted that there are no facts within the material to support a reasonable hypothesis. The Tribunal accepts Mr Marren's evidence that he had a cough on service in Vietnam and that he continued to be treated for it by Dr Michelmore. The fact that this was not recorded in daily medicals is not indicative that he did not have such a problem, as minor symptoms such as this were not necessarily recorded, especially if the treatment was the provision of an Aspro from time to time.
Much has been made of Professor Hickie, Associate Professor Bryant and Associate Professor Feneley not recording Mr Marren as having any symptom of a virus, such as a cough. This is not fatal to Mr Marren's case, in the Tribunal's view, when regard is had to Professor Hickie's and Associate Professor Feneley's statements of the initial presentation of pericarditis as being symptomless.

While the Tribunal notes that the existence of a cough in Vietnam has only recently been brought to light, principally through Dr Richards' examination of Mr Marren, the Applicant cannot be criticised for not reporting this symptom earlier. He is not a doctor and cannot be expected to have been aware of or had the diagnostic skills to ascertain the possible relevance of a cough to the onset of pericarditis.
It may also be the case that the cough was not indicative of a viral infection and the onset of pericarditis was symptomless as is noted by the expert opinion. Whether the cough in Vietnam was indicative of a viral infection or whether Mr Marren contracted a virus with no apparent symptom which he could remember some 35 years later, given the known aetiology of constrictive pericarditis, as reported by four medical experts, of an onset of the condition some many years prior to its presentation, the Tribunal finds that there are no facts present which are capable of disproving the reasonable hypothesis beyond reasonable doubt.
In so finding, it is recognised that this matter has been a difficult one to determine. Noting the type of disease being claimed with knowledge of its aetiology still developing, decisions about causation have had to be made on the available material. Mr Marren should not be disadvantaged by the state of medical knowledge about this condition. In the circumstances, having reviewed the whole of the material before it and for all the reasons given, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining that Mr Marren's condition of constrictive pericarditis was war-caused.
In relation to the condition of staphylococcal empyema, as the Tribunal understands Associate Professor Bryant's report of 2 April 1998, this condition occurred secondary to the Applicant's pericardectomy in September 1995 arising out of his constrictive pericarditis (T15). As the Tribunal has found that Mr Marren's constrictive pericarditis is war-caused, it follows that there is a reasonable hypothesis raised pursuant to subsection 120(3) of the Act, that staphylococcal empyema is linked through Mr Marren's constrictive pericarditis to his Vietnam service. This hypothesis is not fanciful, tenuous or remote. Applying subsection 120(1) of the Act, Mr Marren's staphylococcal empyema unfortunately occurred in the context of a surgical procedure for constrictive pericarditis. Had this war-caused condition not required surgery, Mr Marren would not have suffered the staphylococcal empyema. In such circumstances and in consideration of the facts, the Tribunal is not satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act, that there is no sufficient ground for determining the Applicant's condition of staphylococcal empyema was war-caused.
In relation to the assessment of Mr Marren's newly accepted war-caused conditions, the Tribunal considers that in light of the requirements of the "Guide to the Assessment of the Rate of Veterans' Pensions" it is appropriate to remit the matter for up-to-date assessment by the Commission. The assessment material available to the Tribunal is some years old. There is also the previously accepted condition of post traumatic stress disorder which should also be assessed up-to-date.
In conclusion, and for all the reasons discussed above, the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that the decision under review is set aside as it relates to the conditions of constrictive pericarditis and staphylococcal empyema. In substitution therefor the Tribunal decides that:
1.Mr Marren's conditions of constrictive pericarditis and staphylococcal empyema are war-caused.
2.Disability Pension is payable for the conditions of constrictive pericarditis and staphylococcal empyema from and including 27 February 1997.
3.The assessment of the correct rate of Mr Marren's Disability Pension is remitted to the Repatriation Commission.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J Campbell, Member
Signed:         .....................................................................................
  Stella Vaughan, Associate
Date of Hearing  30 April 2001
Date of Decision  17 August 2001
Counsel for the Applicant        Mr N Dawson
Solicitor for the Applicant         R L Whyburn and Associates, Solicitors
Counsel for the Respondent    Ms R Henderson
Solicitor for the Respondent    Ms A Nanson, Australian Government Solicitor