McHenry and Repatriation Commission
[2006] AATA 532
•20 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 532
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/359
VETERANS' APPEALS DIVISION
Re: ELIZABETH EVA McHENRY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Ms Regina Perton, Member
Date: 20 June 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements – army service – osteoarthritis ‑ whether war‑caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 7, 9, 120, 120(4), 196B
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
20 June 2006 Regina Perton, Member
1. Elizabeth Eva McHenry is 82 years old. Mrs McHenry served in the Australian Army under her maiden name (Matthews) from 22 February 1943 to 16 October 1945. Her service has been accepted as eligible war service as defined in s 7 of the Veterans Entitlements Act 1986 (the Act).
2. On 19 December 2000, Mrs McHenry lodged a claim for a disability pension in relation to the osteoarthritis which affects her hands, knees and left hip. On 19 January 2001, a delegate of the Repatriation Commission refused the claim. On 8 February 2001, Mrs McHenry applied to the Veterans’ Review Board (VRB) for a review of the decision. On 29 May 2003, the VRB adjourned the hearing of the application pending further investigation. On 3 February 2004, the VRB affirmed the decision under review. Mrs McHenry then lodged an application for review of the decision with the Tribunal on 12 March 2004.
3. At the request of the parties, the Tribunal has not conducted a hearing and has determined this matter in their absence, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
4. The Repatriation Commission does not dispute that Mrs McHenry suffers from osteoarthritis of the hands, knees and left hip. The issue before the Tribunal is whether the condition arose out of, or is attributable to, Mrs McHenry’s service.
BACKGROUND
5. Mrs McHenry enlisted in the Australian Army on 22 February 1943. She had excellent typing skills and was posted to a position in Cipher Production. Part of her service was at Balcombe Military Camp where she was working and living in extremely cold and uncomfortable conditions. She, and others in similar roles, worked long hours. Mrs McHenry developed swollen and painful fingers and joints during her service. In July 1945, she was hospitalized for several weeks. The diagnosis at that time was rheumatoid arthritis.
6. Despite ongoing pain, Mrs McHenry did not seek medical treatment for the condition for some decades. She obtained pain relief through the use of over‑the‑counter medication and by keeping active. When she was diagnosed with rheumatoid arthritis she had been told that she would have to live with it and that was what she did. Her condition prevented her from continuing her work as a typist.
7. By 1991, Mrs McHenry’s condition had worsened. She applied for disability pension on 15 October 1991. She believed that she was suffering from rheumatoid arthritis on the basis of the 1945 diagnosis. Her application was unsuccessful.
8. Nine years after the first application, Mrs McHenry lodged the application that is the subject of this review.
EVIDENCE
9. In her claim form lodged on 19 December 2000, Mrs McHenry indicated that she suffered from osteoarthritis with the symptoms being pain stiffness swelling in all body joints. In response to the prompt question in the form asking how she believed her service caused, contributed to, or aggravated this disability, Mrs McHenry stated:
On service I contracted a bacterial infection on service consistent with a streptococcal infection. Such infection was likely contracted from persons I lived and worked with who had recently returned from unsanitary tropical areas. After hospitalisation for this condition I was discharged unfit for service and my demobilization documents show that my condition was accepted. I was granted a disability pension … at that stage. I have also had continuing symptoms throughout my life.
10. In a report dated 29 November 2000, addressed to Dr Shuttleworth, Mrs McHenry’s local doctor, Dr Romas, a rheumatologist, stated:
Upon reviewing her x-rays, there is certainly evidence of osteoarthritis, but no erosive rheumatoid disease and no chondrocalcinosis.
There is osteoarthritis at the basal thumb joints, knees and the left hip joint.
Inflammatory markers are normal, in keeping with osteoarthritis, not rheumatoid disease.
The low positive rheumatoid factor is of unknown significance.
The history of polyarthritis in her 20’s is consistent with an episode of post-Streptococcal reactive arthritis, not rheumatoid arthritis.
I see that the treatment of choice is an NSAID (Celebrex initially) and surgery for the left hip or knees may be indicated in future.
…
It appears that Mrs. McHenry does not want any treatment at this stage.
…
11. Dr G J Shuttleworth, Mrs McHenry’s general practitioner, completed a Department of Veterans’ Affairs (DVA) form in relation to osteoarthrosis on 29 December 2000. He indicated that Mrs McHenry had not suffered from a lengthy list of prior conditions printed on the form. He stated that the clinical onset of osteoarthrosis was in 1945. He answered no to a question asking whether Mrs McHenry had suffered from a trauma to the specified joint.
12. In a DVA minute dated 17 January 2001, Dr Barbara Fitzgibbon, a Medical Officer (Compensation), stated:
…
I believe that the original diagnosis of rheumatoid was incorrect, in retrospect.
I note that in a medical opinion of 28/5/1992 it was stated that this diagnosis was confirmed by the presence of an elevated rheumatoid factor in recent blood test. However, the blood test result did not confirm the diagnosis of rheumatoid arthritis. It was positive at a very low level and was reported as “a mildly elevated value but not diagnostic for rheumatoid arthritis”. In fact, rheumatoid factor elevated at low levels is non specific and may be associated with a number of different conditions.
On the basis of the report of the rheumatologist, Dr Evan Romas (29/11/2000), she has evidence of osteoarthritis.
I can’t find any definite evidence of a likely Strep infection during service, however she did have infections during service – minor infections, much the same spectrum as would be found in the general community. e.g. She is recorded to have had gastritis (which may or may not have been infective), URTI, a flu-like illness, tracheobronchitis, conjunctivitis and blepharitis. Only the gastritis, conjunctivitis and blepharitis may have preceded the onset of her symptoms.
The description of the arthritis on service does not meet the description of a septic arthritis. She had mostly arthralgia (joint pain), with some swelling noted on some occasions.
…
An examination of her service medical notes indicates that the joints in which she complained of pain during service were elbows, wrists, fingers, knees and ankles. She presented on 25/7/1945 with a history of 12 months of pains in these joints, and continued to complain of pain up to the time of her Final Medical Board in September 1945. In the Final Medical Report, it is recorded that she suffered the joint pains intermittently in changeable weather. The medical case sheets covering the period 25/7/45 to 11/9/45 also indicated that the pains and swelling were intermittent.
Most instances of post infective arthritis would be much shorter lasting than Mrs McHenry’s, but the possibility of her joint pains being due to this condition can’t be entirely excluded.
…
13. In her application for review to the VRB lodged on 8 February 2001, Mrs McHenry stated that she was unhappy with the Repatriation Commission’s decision made on 19 January 2001 to refuse her application because:
It does not take into account my service caused infection which has caused my current problems. It does not refer to appropriate SOP conditions.
14. In a DVA minute dated 13 February 2001, Dr F J Morgan, Senior Medical Officer (Appeals), stated:
…
2. Current diagnoses (Dr Romas, 29/11/00).
OA thumbs
OA knees
OA L hip
3. Condition on service. Reactive arthritis, ReA (aka seronegative oligoarthritis or incomplete Reiter’s syndrome) with date of onset in mid 1944 ie about 12 months before admission to QVH in July 1945 (see Dr Romas). In my opinion this is not an inflammatory joint disease in terms of the OA SOP. Reiter’s syndrome falls within the definition, but not incomplete Reiter’s.
15. On 19 February 2001, a senior delegate of the Repatriation Commission wrote to Mrs McHenry affirming the earlier delegate’s decision and explaining Dr Morgan’s findings in greater detail. He referred the matter to the VRB.
16. The VRB conducted a hearing on 29 May 2003. The VRB’s decision indicates that the case was adjourned for further investigation.
…
One of the contentions put to the Board was that the claim might be upheld under risk factor 5(b) of SOP 82 of 2001… The Board notes that departmental medical officers Drs Morgan and Fitzgibbon disagree on this point. After examination of the definition of “inflammatory joint diseases” contained in the SOP and consideration of the rationale given by Dr Morgan…, the Board finds that, while inclining towards the opinion of Dr Morgan, it has insufficient medical knowledge to reach a concluded view on this matter and needs further advice.
…
17. On 5 June 2003, the VRB asked DVA to obtain a further report from Dr Romas on a specified series of questions. Dr Romas provided a report on 9 September 2003, which stated:
…Mrs McHenry is well known to me and I have seen her now on three occasions, the last being in July 2003.
In response to your questions, I would like to provide the following answers:
1.The veteran is now suffering from Osteoarthritis. The clinical features that indicate osteoarthritis include the symptoms of joint pain in her hands, left hip joint and knee, the restricted joint motion at these sites, joint crepitus, and abnormal x-rays which clearly document the changes of osteoarthritis in the basal thumb joints of her hands, the knees and left hip joints. The hip arthritis is very severe, and the hand and knee arthritis is somewhat less significant.
I am familiar with the DVA statement of principles for osteoarthritis, have reviewed these criteria, and do not consider that there is any causal connection between her war service and the development of this type of arthritis.
2. The clinical features do not support a diagnosis or rheumatoid arthritis, either previously or now. Mrs McHenry has no evidence of active synovial inflammation in her hands, her inflammatory markers are not elevated and the x-rays show no evidence of rheumatoid arthritis, either previously, or now.
Mrs McHenry has a positive test for rheumatoid factor, which may be diagnostically confusing to the non-expert. The absolute level of rheumatoid factor is quite low and the finding of rheumatoid factor (which is an auto-antibody to immunoglobulin) by itself cannot confirm a diagnosis of rheumatoid arthritis. A positive rheumatoid factor is a frequent finding in normal elderly women, and it can be due to other autoimmune diseases, chronic infection or inflammation.
…
3. Mrs McHenry does not suffer from classic reactive arthritis now and has no direct sequelae of reactive arthritis.
4. Mrs McHenry has the interesting history of an episode of arthritis in her early 20’s while in active service.
I reviewed the original medical records dated July 1944.
These confirmed that Mrs McHenry presented to the medical officer with an inflammatory polyarthritis affecting her hands, wrist, knees and ankles.
The medical officer at the time documented joint tenderness and swelling, which are consistent with an inflammatory polyarthritis. No rash or infection was documented.
The documentation appears to confirm that impression that this was a self limited episode of arthritis lasting less than 6-weeks, although Mrs McHenry reports joint pains persisting for a year or more.
The episode was clearly not rheumatoid arthritis as rheumatoid arthritis is characterised by persistence of synovial inflammation and structural bone and cartilage damage and deformity over decades. This is not what subsequently happened to Mrs McHenry.
The confusion arises partly because of the imprecise use of the medical term “rheumatoid arthritis” in the 40’s, which was a term used to refer to what we would now regard as many different types of arthritis.
…
In summary, although I can only speculate about the cause of her polyarthritis in 1944, based on the information provided, I am certain that it was not rheumatoid arthritis. Nor was the arthritis followed by any permanent injury or effects that are relevant today, here and now.
To be sure, Mrs McHenry has very significant osteoarthritis; however based on all of the considerations, a reasonable connection to her war service or the 1944 episode of arthritis during her service cannot be made.
18. The VRB affirmed the Repatriation Commission’s decision on 3 February 2004.
19. Mrs McHenry provided an undated statement in which she provided details of her army service including the inadequate accommodation and difficult working conditions. She described the symptoms that preceded her hospitalisation in July 1945. She recounted the pain and weakness she has increasingly experienced over the years and the impact on her life choices and lifestyle. She described her work and family history and how her condition has affected her husband who has cared for her. Her husband’s health has deteriorated and her son and his family have now moved closer to help care for both of them.
20. Mr McHenry provided a statement dated 26 August 2004 in which he described the pain his wife has experienced every day since her discharge from the army. He stressed that when she enlisted, his wife was medically classed “A” and when she was discharged she was medically classed “D”.
21. Dr P Huguenin, a doctor at the same clinic as Dr Shuttleworth, provided a report dated 23 April 2004, in which he stated It appears that the initial episode whilst serving in WW2 has been a definite contributor to the current osteoarthrosis that it is now agreed that Betty suffers from. Dr Huguenin prepared a letter of referral on 1 September 2005 to the Caulfield Pain Management Centre in which he indicated that his patient suffers from arthritis since 1945.
22. DVA sought further comments from Dr Romas and he provided a report dated 12 April 2005. Dr Romas indicated that he had read the VRB transcripts, the submissions and further service and medical records provided since his previous report. Dr Romas’s comments include:
…
1.Mrs McHenry was admitted to QVH on 25th July 1945. Her presentation was characterised by muscle and joint pains mainly in her hands, wrists, knees and ankles. Reference is made to puffy hands and ankles however there is no documentation of persistent or progressive joint swelling (synovitis) typical of the classic inflammatory joint diseases. Of note, migratory arthritis was not documented, her ECG was normal and the ESR was not elevated, these all being evidence against rhematic fever. Further, no throat, genital or urinary infection was documented. In 1945, her illness was diagnosed as rheumatoid arthritis…The notations end on 24th September 1945. Clearly, the record is incomplete; however the patient was not seriously ill, her condition was not progressive and the main feature was joint pain (arthralgia), which is not the same as arthritis.
…
2.Mrs McHenry describes continual joint symptoms following her war service leading up to the present. I would point out that joint pain (arthralgia) and muscle pain (myalgia) are ubiquitous in the general community, especially in women and these do not necessarily constitute disease (ie: arthritis). Mrs McHenry has described persistent joint pains over 60 years, and through most of that time she did not seek or require formal medial attention, having been able, like the majority of the population, to self manage her aches and pains. Self management of these symptoms is admirable and appropriate. Her history of continuity of these symptoms does not lead me to alter my opinion.
3.The diagnosis is Osteoarthrosis affecting the basalt thumb joints of the hands, the knee joints and the left hip joint.
4.The onset of her osteoarthrosis cannot be known with certainty. The only method by which the onset could be known is if Mrs McHenry was under constant and regular medical care 9which she was not) together with appropriate x-rays… More likely than not, her osteoarthrosis started insidiously in her late 50’s or early 60’s. The cause of her osteoarthritis is more likely than not, linked to the effects of ageing and genetics…
5.In my opinion, there are no identifiable precursor conditions which have led to Mrs McHenry’s osteoarthrosis.
…
7. On the balance of probabilities, none of the current diagnosed conditions… can be related to Mrs McHenry’s war service.
...
23. The Tribunal was provided with five reports, with copies of pertinent military and meteorological records attached, prepared by Mr Robert K Piper of Military Aviation Research Services dated 24 December 2004, 18 February 2005, 15 March 2005, 6 May 2005 and 14 December 2005. These corroborate the nature and conditions of service as described by Mrs McHenry.
CONSIDERATION OF THE ISSUES
24. Section 9 of the Act sets out the circumstances in which a disease suffered by a veteran can be considered a war-caused disease. It provides:
9(1) Subject to this section and section 9A, 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.
but not otherwise.
25. For claims made after 1984, it is necessary to apply any relevant Statement of Principles (SoP) issued by the Repatriation Medical Authority. Where there is an SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant’s condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant’s service (s 120B(3)(b)). The relationship to service must be one of the relationships prescribed in s 196B(14) of the Act.
26. Section 196B(14) of the Act provides:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service…
27. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP.
28. There is no dispute between the parties that Mrs McHenry has rendered eligible war service, so that s 120(4) and s 120B of the Act apply. This means that the Tribunal must decide the matter to its reasonable satisfaction.
29. The parties agree, and the Tribunal finds, that Mrs McHenry suffers from osteoarthritis of the hands, knees and the left hip.
30. The current SoP for osteoarthrosis is Instrument N° 32 of 2005. At the time of the VRB’s decision, it was Instrument N° 82 of 2001. At the time the Repatriation Commission made its decision, it was Instrument N° 42 of 1998 as amended by N° 20 of 1999. In accordance with the Full Federal Court decision in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal applies the current SoP. However, the Tribunal is also required to apply the SoP in force at the time of the Repatriation Commission and VRB decisions if it is beneficial to Mrs McHenry. All three SoPs contain the same factors which were originally contended as being relevant to Mrs McHenry’s condition, albeit with different numbering and slightly different wording.
31. Osteoarthrosis is defined in paragraph 3(b) of Instrument N° 32 of 2005:
For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.
32. In relation to osteoarthrosis, there are twenty-nine different factors that may result in a finding that the circumstances of a person’s relevant service are connected with the condition.
33. Dr Romas, a rheumatologist, is of the strong opinion that Mrs McHenry does not meet any of the factors set out in the relevant SoPs. He has provided extensive expert commentary to substantiate his view. Dr Shuttleworth in December 2000 did not select any particular factor that was set out in the DVA form. Dr Fitzgibbon was equivocal. Dr Morgan could find no relevant factor. Dr Huguenin indicated that the initial episode of arthritis during the war was a contributor to Mrs McHenry’s current condition but his short report appears to be a recital of information provided by his patient. Taking all the evidence into account the Tribunal prefers Dr Romas’s opinion, which is based on extensive perusal of medical records and reports as well as his specialist training to those reports supportive of Mrs McHenry’s contention.
34. The Tribunal has considered all the factors in the relevant SoPs. The Tribunal is not reasonably satisfied that Mrs McHenry’s osteoarthrosis meets any of the factors set out in the SoPs. Therefore, the Tribunal finds that Mrs McHenry’s osteoarthrosis was not war-caused.
35. There is one further matter that the Tribunal must address. Mr Dalmau, on 14 November 2005 submitted that Mrs McHenry is suffering from a chronic pain condition which arose out of her eligible service. The Repatriation Commission submitted that there is no jurisdiction for the Tribunal to consider an alternative diagnosis as there has been no claim lodged for that condition. The Tribunal concurs with the Repatriation Commission’s submission. Mrs McHenry’s claim for pension concerned her condition of osteoarthritis and the evidence clearly indicates that she suffers from that condition. The Tribunal does not believe that it would be appropriate, for legal or medical reasons, for it to consider a chronic pain condition as an alternative diagnosis.
DECISION
36. The Tribunal affirms the decision under review.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Date of hearing: On the papers
Date of decision: 20 June 2006Advocate for applicant: Mr P. Dalmau
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
0
1
0