Mason and Repatriation Commission

[2001] AATA 262

DECISION AND REASONS FOR DECISION [2001] AATA 262

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V99/680

VETERANS' APPEALS  DIVISION       )          
           Re      JAMES MASON    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs Joan Dwyer,     Senior Member Mr W McLean,     Member        

Date19 March 2001

PlaceMelbourne

Decision      The Tribunal varies the decision under review to provide by consent that Mr Mason is entitled to pension at 80% of the general rate with effect from 8 September 1997. In all other respects the decision under review is affirmed. 
  (Sgd)  Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – whether ventricular extrasystole is a war-caused disease – whether hypothesis raised as to disease being war-caused under any of the provisions of s 9 of the Act
Veterans' Entitlements Act 1986 ss 5D(1), 9(1)(b), 9(1)(d), 9(1)(e), 9(1)(e)(ii), 9(2)

Repatriation Commission v Bey (1998) 47 ALD 481

REASONS FOR DECISION

19 March 2001        Mrs Joan Dwyer,     Senior Member Mr W McLean,     Member                    

1. This is an application for review of a decision of the Repatriation Commission made 26 February 1998 and affirmed by the Veterans Review Board on 30 March 1999. The decision refused to accept the condition of ventricular extrasystole as war-caused within the meaning of that term in s 9 of the Veterans Entitlements Act 1986 ("the Act"). Mr De Marchi, solicitor, appeared for Mr Mason. Mr Hall, an advocate with the Department of Veterans Affairs, appeared for the Repatriation Commission. Mr Mason gave evidence. Evidence on his behalf was also given by Dr Rosenbaum. The Repatriation Commission called Dr Morgan. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the exhibits lodged during the hearing.

2. At the commencement of the hearing the parties' representatives informed the Tribunal that they had agreed that whether or not ventricular extrasystole was accepted as war-caused, Mr Mason's rate of pension in respect of previously accepted conditions should be increased to 80% of the general rate from 8 September 1997.  That rate was agreed to on the basis of the following agreed impairment points, together with an agreed lifestyle rating of four. 

   Generalised anxiety disorder   22
   gastro-oesophageal reflux   5
   conjunctivitis   5
   chronic solar skin damage   10
   additional rating for skin damage    2
   combined impairment rating on Table 18                40

It was also agreed that if Mr Mason succeeded in respect of the ventricular extrasystole, the appropriate impairment rating would be two, which would not affect the rate of pension.

1. The Tribunal had before it reports from Dr Rosenbaum for the applicant and from Professor Harper for the respondent.  They are both cardiologists.  In substance their opinions did not conflict.  They both expressed the following opinions:

   (a)ventricular extrasystole is a congenital or intrinsic condition;

   (b)the cause of the condition is essentially unknown;

   (c)when people are anxious the frequency of ventricular premature beats may increase;

   (d)people are more likely to become aware of ventricular premature beats when they are anxious.

2. Mr De Marchi submitted that as Mr Mason has generalised anxiety disorder as an accepted war-caused condition the Tribunal should find that Mr Mason's ventricular extrasystole with premature or ectopic beats is a war-caused condition. Mr De Marchi at first did not seem prepared to point the Tribunal to the relevant paragraph or paragraphs in s 9 of the Act. When the Tribunal asked him to do so he relied on ss 9(1)(b), 9(1)(d) and 9(e)(ii). Section 9(1)(b) provides:

   (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:

   . . .

   (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;

3. There was no evidence to support a hypothesis that this congenital or intrinsic condition was attributable to war service.  Professor Harper wrote (R1 p2):

   In summary, I have little doubt that Mr Mason has had long-standing benign ventricular ectopic beats.  Ventricular ectopic beats can sometimes be a consequence of heart disease and may occur for example, after myocardial infarction (heart attack) or when the heart has been damaged for other reasons.  Very often however, ventricular premature beats are a completely benign phenomena and occur in otherwise healthy people.  In these cases, the ventricular ectopic beats tend to occur at a relatively early age and may be present for many years without leading to serious problems.  I am sure that this is the situation in Mr Mason's case.  His first symptoms of palpitations occurred in 1948 when he was aged 23 and have persisted over fifty years without resulting in any serious disorder. 
   The cause of so-called benign ventricular premature beats is essentially unknown.

4. Dr Rosenbaum said the veteran would have had a basic abnormality which predisposed him to ectopic beats.  He said the condition is congenital and has nothing to do with service.  He wrote (T14 p58):

   2.The following concerns the diagnostic category "ventricular ectopic beats".  This condition is non-specific, can be caused by various cardiac abnormalities but frequently occurs without obvious cause.

   It can be argued that this condition is made worse by anxiety and depression and on this basis it should be claimed that the anxiety [h]as acted to worsen the ectopic beats.

5. Although both cardiologists said that anxiety may increase the number of beats or cause an increased awareness of the beats, neither said that the ventricular extrasystole with ectopic or premature beats was attributable to anxiety.  Although Mr Mason has an accepted anxiety condition and said he suffered anxiety during service he said he was not aware of any ectopic beats until 1948 which was two years after his discharge.  We find there is no evidence raising a hypothesis that the disease is war-caused under s 9(b) of the Act.

6. Section 9(1)(d) of the Act must be read with s 9(2) of the Act. They provide:

   (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:

   . . .

   (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;

   (2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:

   . . .

   (b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.

7. We find that ventricular extrasystole with ectopic or premature beats is not to be deemed to be a war-caused disease under s 9(1)(d) of the Act. There was no medical evidence that the disease would not have been contracted but for Mr Mason's having rendered eligible war service or but for changes in his environment consequence upon his having rendered eligible war service. Prof Harper wrote (R1 p2):

   I am sure that he would have had this phenomena irrespective of whether he would have served in the war or not.

Dr Rosenbaum did not disagree with that view. 

1. The final submission of Mr De Marchi relied on s 9(1)(e) of the Act which provides:

   (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:

   . . .
   (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.

2. Mr Mason's evidence was that the first time he was aware of any unusual heart beat or palpitation was when he was in bed at night in 1948.  Subsequently in about 1952 he saw Mr Cahill, a cardiologist, about the problem and about his indigestion.  There was no evidence as to when the condition was first diagnosed as ventricular extrasystole, as we did not have a report from Mr Cahill.  Mr Mason said that he is only aware of the problem when he is anxious or trying to run and he has no problem if he is not stirred up.

3. For s 9(1)(e) to apply there would have to be evidence raising or pointing to the hypothesis that Mr Mason contracted the disease, namely ventricular extrasystole with ectopic or premature beats, while he was rendering eligible service, paragraph 9(1)(e)(i) or before the commencement of the period of his eligible war service, paragraph 9(1)(e)(ii):

   and in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or aggravated by, any eligible war service.

4. There is no evidence that Mr Mason contracted a disease of ventricular extrasystole during or before eligible war service.  On his own evidence he had no symptoms of the disease during service.  The service entry and discharge medicals (T3 pp18, 21 and 22) showed that blood pressure readings were taken on entry and discharge and no abnormality was detected.  Professor Harper wrote:

   I should also add that it is possible that he did have ventricular premature beats before and during war service of which he was not aware.  There is no reliable way of proving or disproving this.  The only indirect evidence would be if an irregular pulse had been noted at any stage during his war service.  I understand that this is not the case.

5. The evidence leaves it open that Mr Mason may have had ectopic beats due to his ventricular extrasystole during service, but if he did he was unaware of it.  He gave no history of having unusual beats during service.  There is no medical evidence pointing to that possibility rather than simply leaving it open, as discussed by the Full Court in Repatriation Commission v Bey (1998) 47 ALD 481. In fact, there is evidence to say that some ectopic beats can be normal. They are a problem only if they are frequent or excessive. There is no evidence of that during service. A definition of disease is set out in section 5D(1) of the Act and reads as follows:

   (1)       In this Act, unless the contrary intention appears:

   disease means:

   (a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

   (b)the recurrence of such an ailment, disorder, defect or morbid condition;

   but does not include:

   (c)the aggravation of such an ailment, disorder, defect or morbid condition; or

   (d)       a temporary departure from:

   (i)the normal physiological state; or

   (ii)the accepted ranges of physiological or biochemical measures;

   that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).

6. There is no evidence pointing to Mr Mason suffering the disease of ventricular extrasystole with ectopic beats during service. The only evidence points the other way. Even though he had anxiety during service, he did not experience ectopic beats in spite of the fact that the evidence establishes that anxiety may increase the frequency of beats or the awareness of beats. Further, the medicals do not record any irregularity of pulse. There is no material raising or pointing to Mr Mason having the disease of ventricular extrasystole during service. We find there is no reasonable hypothesis raised under s 9(1)(b), (d) or (e) of the Act.

7. Dr Rosenbaum and Professor Harper did both say that the war-caused generalised anxiety disorder may, in 1948, have caused Mr Mason to have more frequent ectopic beats or to be more aware of his ectopic beats.  That evidence does not raise a hypothesis that the condition is war-caused within s 9(1) of the Act.  We do not find ventricular extrasystole with ectopic or premature beats to be a war-caused disease.

8. As requested by the parties we will vary the decision under review to provide that Mr Mason is entitled to pension at 80% of the general rate from 8 September 1997.  In all other respects the decision under review will be affirmed.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Mr W McLean, Member

   Signed:         Anne O'Rourke
     Associate

   Date/s of Hearing  14 August 2000 and 19 March 2001
   Date of Decision  19 March 2001
   Counsel for the Applicant        Nil
   Solicitor for the Applicant         Mr D De Marchi
   Counsel for the Respondent    Nil
   Solicitor for the Respondent    Nil
   Departmental Advocate           Mr A Hall