McClure and Repatriation Commission - [2000] AATA 579

DECISION AND REASONS FOR DECISION [2000] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/174

VETERANS' APPEALS DIVISION )

Re GEORGE ALEXANDER McCLURE
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date14 July 2000
PlaceCanberra

Decision The tribunal sets aside the decision under review and remits the matter to the respondent to assess the veteran's pension entitlement with the direction that the veteran's conditions of benign positional vertigo, bilateral varicose veins with venous eczema, and "restless leg" syndrome are accepted as war-caused conditions, and that deep venous thrombosis left side, deep venous thrombosis right side, and multiple pulmonary emboli are not.

...................(Sgd.).......................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veteran's pension – whether certain disabilities "war-caused" – conditions - bilateral varicose veins with venous eczema, deep venous thrombosis, and pulmonary embolism – "restless leg" syndrome – whether aggravation of congenital condition result of inability to obtain appropriate clinical management.
Legislation
Veterans' Entitlements Act 1986
Authorities
Repatriation Commission v Keeley [2000] FCA 532
Keeley v Repatriation Commission [1999] FCA 1103
Ogston v Repatriation Commission [1999] FCA 342

REASONS FOR DECISION

14 July 2000 Pamela Burton, Senior Member

This is an application for review of a decision of the Repatriation Commission dated 15 August 1997 rejecting the veteran's claim that his conditions of bilateral varicose veins with venous eczema, deep venous thrombosis left and right side, multiple pulmonary emboli and benign positional vertigo were war-caused. The Veterans' Review Board ("the VRB") reviewed the decision on 7 April 1998 and affirmed the decision except in relation to benign positional vertigo, which it decided was war-caused. That condition is therefore not the subject of this review.
Mr Crabb appeared on behalf of the veteran, and Mr Sylvestre appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various documents tendered by the parties. The veteran gave evidence and Dr David Hardman, vascular surgeon, gave telephone evidence on his behalf.
Pursuant to subsection 13(1) of the Veterans' Entitlements Act 1986 ("the Act") the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury. The Act requires that for a claim to be accepted the disability must be related to operational or eligible defence service.
The veteran served in the Australian Army from 23 February 1942 to 28 May 1946. In that time he served in excess of 12 months in New Guinea. As a consequence of his overseas service, it is not in dispute that the veteran's service constitutes "operational service" for the purpose of the Act.
The standard of proof applicable is set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions arising from operational service. The effect of the provisions is that the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McClure and Repatriation Commission

Details

AGLC: McClure and Repatriation Commission [2000] AATA 579
Case: [2000] AATA 579
Decision Date: 14 July 2000

CaseChat Overview and Summary

The case of McClure and Repatriation Commission involves a veteran who claimed that certain disabilities, namely bilateral varicose veins with venous eczema, deep venous thrombosis, and pulmonary embolism, were war-caused. The veteran also claimed to suffer from "restless leg" syndrome, which was suggested to be a result of his inability to obtain appropriate clinical management during his service. The matter was determined by a relevant tribunal which had to decide on the validity of the veteran's claims.

The legal issues in the case were whether the claimed disabilities were indeed war-caused and whether the veteran's inability to receive appropriate clinical management during his service had aggravated these conditions. The tribunal was required to consider the evidence presented by the veteran, the medical reports, and the Statements of Principles (SoP) that applied to the case.

The tribunal found that while there was insufficient evidence to support a reasonable hypothesis that the veteran's bilateral varicose veins with venous eczema were caused by or during his war service, there was evidence to suggest that the varicose vein condition was exacerbated by the amount of time the veteran was required to be on his feet in the course of his service. The tribunal also found that the veteran's varicose vein condition was aggravated by his inability to obtain appropriate clinical management during his service, which was a contributing factor to the aggravation of his condition. The tribunal accepted that a reasonable hypothesis was raised connecting the "restless leg" syndrome with the veteran's service. However, the tribunal found that there was insufficient evidence to support a hypothesis that the deep venous thrombosis and the pulmonary embolism were war-caused.

The tribunal concluded that the veteran's varicose vein condition was war-caused, and that the "restless leg" syndrome was also likely to be connected with his service. However, the claims for deep venous thrombosis and pulmonary embolism were dismissed. The tribunal's decision was based on the evidence presented and the relevant SoPs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no SoP in existence relating to pulmonary embolism. In the course of these proceedings it was suggested that the veteran suffers from "restless leg" syndrome, another condition which is also not the subject of a SoP. The veteran's evidence The veteran was born on 6 April 1918. He was nearly 24 when he enlisted in the Army. He had previously worked as a builder and he had been in the militia since the age of 18. There is no evidence of the veteran having experienced any varicose vein problems or leg pain prior to his service. He married his present wife a year or so after his discharge from the Army. The veteran joined the Engineers Corps on enlistment. After a period of training at Kapooka in New South Wales he was sent to the Northern Territory and South Australia. His Platoon was required to put down bores every 30 miles or so between Canaweal and Tennant Creek. The work involved standing on his feet and heavy lifting. In giving oral evidence he said that walking long distances between the bores caused leg pain and cramps at night. According to the veteran's statement (Exhibit D), it was at this time that he first experienced a problem with his legs. He had more trouble with his legs during his next activity when his Platoon was building an abattoir and holding yard. Medical attention was not available and an officer with a first aid certificate gave the veteran Aspirin and APC powders. The Platoon was then sent to Darwin to rebuild wharves that had been destroyed in air raids. This was also heavy work and the veteran had more leg trouble. At this time he was hospitalised in Darwin for a short time for an unrelated complaint (T18). He says he asked the doctor about his legs and was told that he had varicose veins and that nothing could be done for him. In giving oral evidence the veteran said that when serving in New Guinea in 1945 he formed part of a team building a wharf in Lae. He was in charge of the project which necessitated him to stand, lift, walk, and jump from bearer to bearer as the decking of the wharf was being put down. This heavy work contributed to his leg pain. He experienced pain and cramps in his legs at night, and suffered skin rash and ulcers on his legs. As to the ulcers, the veteran said "every one got them". His evidence is that he visited the RAP and ointment was applied and the leg was bandaged and it took a while for the ulcers to heal. The veteran did not stop work. He understood that the varicose vein problem and his peeling skin caused the ulcers. He said that in time the ointment worked and sometimes it took a month or so for the ulcers to clear up. During a second period of hospitalisation during his service, the veteran said that he asked the attending doctor about his leg condition, and again was told that nothing much could be done for him. Despite the persistence of pain and skin problems with his legs during and after his service, when the veteran was discharged from the army in 1946, he was declared fit. Some days after that he was hospitalised in Concord Hospital with malaria and had his appendix removed.

Decision

Reasons for decision

There is no recognition of the service activities themselves exacerbating the condition under the relevant SoP. The relevant factor requires the inability to obtain appropriate clinical management during the veteran's service having materially contributed to, or aggravated, the varicose veins of the lower limb. However, in the circumstances of the veteran's service, the two causes of the exacerbation are linked. The lengthy periods of standing and marching the veteran was required to do in his service aggravated his varicose vein symptoms. In the veteran's case, appropriate clinical management included surgery and, in the absence of surgery, elevating the feet at night and reducing the amount of marching and physical work. The failure to be advised to do the latter exacerbated the veteran's condition.Conclusions There is insufficient evidence to support a reasonable hypothesis that the veteran's bilateral varicose veins with venous eczema were caused by or during his war service. I accept that the veteran had an underlying genetic varicose vein condition, asymptomatic at the time he enlisted in the service. The symptoms of varicose veins, including the "restless leg" syndrome, manifested themselves and worsened during his service. It is likely that the varicose vein condition was exacerbated by the amount of time the veteran was required to be on his feet in the course of his service. This exacerbation was contributed to by his inability at that time to obtain appropriate clinical management of the condition. Consequently the veteran continued to carry out duties that required him to stand and march for lengthy periods, further exacerbating the condition. The veteran's varicose vein condition was thereby aggravated by his defence service and is therefore war-caused. Accepting that the "restless leg" syndrome is caused by the varicose vein condition, and that the veteran was unable to obtain appropriate clinical management of that condition during his service, and the varicose vein condition worsened, a reasonable hypothesis is raised under the SoP connecting the "restless leg" syndrome with his service. There is insufficient evidence to support the hypothesis that deep venous thrombosis left side, deep venous thrombosis right side is war-caused. I accept Dr Hardman's opinion that the veteran was not suffering from deep vein thrombosis when he saw him in 1999. Such a diagnosis is excluded under the relevant SoPs because there is no evidence of objective clinical confirmation of the diagnosis. In relation to the claimed condition of multiple pulmonary emboli, Dr Madden, in his report of 12 January 1998 (T16), stated that its cause in 1997 was "the long-standing varicose veins which developed superficial thrombophlebitis which in turn lead to the development of deep vein thrombosis." Dr May, in his report of 8 July 1999 (Exhibit B), connects the pulmonary embolism with the varicose vein condition. There is no SoP in relation to pulmonary emboli. However, Dr Hardman is of the opinion that the veteran's pulmonary emboli condition is not war-caused. He said, in his report of 6 August 1999 (Exhibit A), that the only history of pulmonary emboli is a recent history. Further, by the time Dr Hardman saw the veteran, he did not have the condition of multiple pulmonary emboli. I accept Dr Harman's opinion in this respect. He is a specialist in the field and must be preferred to the veteran's general practitioner, and to Dr May, a thoracic physician.

Ratio Decidendi

Legal Principle Established

Dr Hardman accepted that the veteran's route marches exacerbated his varicose vein condition. He thought that the veteran's linking of the various route marches to the restless legs indicated that the long periods of physical labour exacerbated his varicose vein condition and brought forward the time of the appearance of the restless leg symptoms. Consideration of the relevant Statement of Principles Factors 5(a) and 5(e) in SoP No. 70 of 1998 relating to varicose veins require that the veteran suffered from thrombosis of a deep vein draining the affected lower limb before the clinical onset or worsening of varicose veins of the lower limb. Factor 5(j) requires an "inability to obtain appropriate clinical management for varicose veins of the lower limb". Similar factors were required in SoP No. 3 of 1995, factor 1(b) requiring thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins, and factor 1(e) being in similar terms to factor 5(j) of the later SoP. Dr Hardman doubted that the veteran suffered from deep vein thrombosis when he saw him in 1999. He pointed out that such diagnosis is excluded under SoP No. 43 of 1998 in relation to deep vein thrombosis unless the diagnosis is made in an objective manner. The factors are similar in SoP No. 31 of 1997 and SoP No. 83 of 1996; both revoked by the later SoP. In the veteran's case there is no evidence of objective confirmation of the diagnosis such as an ultrasound scan. In relation to the veteran's claimed condition of deep vein thrombosis, I accept Dr Hardman's evidence that such diagnosis is excluded under the relevant SoP relating to deep vein thrombosis in the veteran's case, and I am therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). To come within the past or current SoPs for varicose veins the veteran must have been unable to receive appropriate clinical management of his condition during his war service. It has been pointed out that once back in civilian life, the veteran still did not receive appropriate clinical management of his condition until recent times. I do not think anything turns on that, even if it is the fact. First, I am satisfied that a reasonable hypothesis has been raised that by the time of his discharge from the Army, the veteran had already developed "restless leg" syndrome as a result of a worsening of his varicose vein condition. Second, whether or not the veteran received appropriate clinical management of his condition on discharge from the army is not relevant to the issue of whether or not the relevant conditions were aggravated by his inability to receive appropriate clinical management when he was in the army. On the material before me a reasonable hypothesis is raised that lengthy periods of standing can contribute to or aggravate a congenital varicose vein condition. The veteran was required to stand and walk for lengthy periods during his war service. The appearance of ulcers and eczema possibly evidenced the aggravation of the condition. The history of his restless legs in bed at night, which, on the evidence is associated with varicose veins, satisfies me that factors in his war service aggravated his varicose vein condition, which was asymptomatic before his service. The varicose veins were suffered or contracted before or during (but not arising out of) the relevant service, and required clinical management.