Milne and Repatriation Commission - [2000] AATA 1146

DECISION AND REASONS FOR DECISION [2000] AATA 1146

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1417

GENERAL ADMINISTRATIVE DIVISION       )
           Re      TORIA MILNE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date22 December 2000
PlaceSydney

Decision The decision under review is set aside and in substitution therefore the Tribunal decides that: 1. The diagnosis of the condition Diverticular Disease of the Colon is changed to Irritable Bowel Syndrome to more accurately reflect the condition being claimed. 2. The Applicant's condition of Irritable Bowel Syndrome is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986. 3. Disability Pension is payable for Irritable Bowel Syndrome from and including 13 March 1996. 4. Disability Pension for all the Applicant's war-caused conditions is assessed at 100 per cent of the General rate from and including 13 March 1996.

..................[sngd]......................
Ms SM Bullock
Senior Member
Catchwords
VETERANS' AFFAIRS - Disability Pension - Entitlement - Non-Operational Service - Diagnosis - Irritable Bowel Syndrome - Assessment

Legislation
Veterans' Entitlement Act 1986 (Cth), ss 9, 13, 120, 120B

Cases
Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Toria Milne from a decision made by the Veterans' Review Board ("the Board"), which effectively held that the Applicant's conditions of diverticular disease of the colon and osteoarthrosis of the right hip, were not war-caused conditions. The Applicant was therefore not entitled to receive a Disability Pension pursuant to the Veterans' Entitlements Act 1986 (Cth).
The application for review lodged on 6 October 1998, was heard before the Tribunal on 2 November 2000. Mr Craig Colborne of Counsel represented the Applicant. Mr Richard Wallis represented the Repatriation Commission, the Respondent in this matter.
Mrs Milne is profoundly deaf. She does not communicate through sign language although she has taught herself to lip read. Although difficult for her, Mrs Milne provided oral evidence to the Tribunal. The Tribunal also took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents" - T1-T26) and the following exhibits:

Exhibit          Description Date
A1      Report of Dr G Miller , Consultant Physician.     27 June 2000
A2      Report of Dr LM Camus, Physician and Surgeon         24 May 2000
R1      Report of Dr G Marinos, Gastroenterologist       31 July 2000
R2      Audiogram by Ms J Williams, Audiologist          1 December 2000

The relevant procedural history of this matter may be summarised as follows:

On 17 June 1996, the Applicant lodged her claim for a Disability Pension with the Department of Veterans' Affairs. The Applicant claimed the following conditions: "diverticulitis; hearing; right hip" (T4). The medical names for the claimed conditions are: diverticular disease of the colon; bilateral sensorineural hearing loss; osteoarthrosis of the right hip.
On 20 January 1997, the Repatriation Commission made a decision accepting the Applicant's claim for bilateral sensorineural hearing loss. The Repatriation Commission, however, refused the Applicant's claims for diverticular disease of the colon and osteoarthrosis of the right hip. The Applicant then lodged an application for review to the Board on 21 February 1997.
On 21 February 1997, the Applicant lodged a further claim with the Department of Veterans' Affairs for "bowel problems" (T8). This further application, in relation to Irritable Bowel Syndrome, was deemed to be part of the Applicant's application for review to the Board and dealt with accordingly.
Further claims were made by Mrs Milne on 28 July 1997 for the conditions of arthritis, heart problems/angina and nerves and on 6 March 1998 for cancer of the colon, reflux, oesophagitis, total hip replacement and an increase in pension.
On 10 June 1997, the Board affirmed the Repatriation Commission's decision of 20 January 1997 (T22).
The Applicant then lodged an application for review to the Tribunal on 6 October 1998.

Issues

Prior to the hearing, the Applicant's legal representative withdrew that portion of her claim that related to osteoarthrosis of the right hip and the Tribunal consented to this. Further, it was contended on behalf of the Applicant, that although she had a documented history of Diverticular Disease of the Colon, the correct diagnosis for Mrs Milne's claim was Irritable Bowel Syndrome.
On the basis of a report by Dr G Marinos, dated 31 July 2000 (Exhibit R1), the Respondent agreed that the correct diagnosis of the claimed condition is Irritable Bowel Syndrome (and this condition could be substituted for Diverticular Disease of the Colon). Indeed, the Respondent conceded that the Applicant does in fact suffer from Irritable Bowel Syndrome and the Respondent further accepted the impairment rating of 20 points as attributed to the Applicant by Dr Marinos. However, the Respondent did not concede that the disability is related to the Applicant's eligible war service.
Accordingly, the issue for determination by the Tribunal was confined to the question of whether the Applicant's Irritable Bowel Syndrome was war-caused and if so, what is the appropriate assessment of the rate of Disability Pension for all Mrs Milne's accepted conditions.
Legislation
The legislation relevant to a determination in this matter is contained within the Veterans' Entitlement Act 1986 (Cth) ("the Act").
As relevant, section 9 of the Act deals with war-caused injury and states:
"9 War-caused injuries or diseases
(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.
(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:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(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.
…"
Section 13 of the Act deals with the Commonwealth's liability to pay pension for incapacity and states:
"13 Eligibility for pension
(1) Where:
(a) the death of a veteran was war-caused; or
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
Section 120 sets out the standard of proof to be applied when determining matters under the Act. As relevant, for non-operational service, subsection 120(4) states:
"(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"

Accordingly, the relevant standard of proof, set out in subsection 120(4), is that the Tribunal must be reasonably satisfied before it makes any decision; in the circumstances of this case, the Tribunal must be satisfied that the Applicant's disease is a war-caused disease.
Further, in its consideration of the standard of proof set out in subsection 120(4), the Tribunal must have regard to section 120B and the relevant Statement of Principles. As relevant, section 120B provides:
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1:   Subsection 120(4) is relevant to these claims.
Note 2:   For hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)       there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)       a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

Statement of Principles

The Tribunal is required therefore to decide matters to its reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. The relevant Statement of Principles is Instrument Number 104 of 1996 concerning Irritable Bowel Syndrome.
Background
Before turning to the question of the Applicant's entitlement to pension for her bowel condition and whether she satisfies the relevant Statement of Principles, it is helpful to briefly outline her general background and service history. The facts contained below are by way of background information and are not in dispute:

Mrs Milne was born on 8 January 1926. She is currently 74 years of age.
The Applicant grew up in a coastal town in New South Wales and consumed a diet high in seafood and vegetables. She would eat meat only twice per week.
The Applicant enlisted in the Women's Auxiliary Australian Air Force ("the WAAF") as a clerk between 27 January 1944 and 7 February 1946 and this period was Mrs Milne's eligible war service.
For part of her service commencing on 8 March 1944, Mrs Milne lived in Hut 109 at Tocumwal with 24 other females.

Evidence Of Mrs Milne

Mrs Milne's evidence to the Tribunal was that she began to experience abdominal pain and problems with her bowel movements approximately three to four months after she commenced her service at Tocumwal.
The Applicant described the living conditions at Tocumwal as very difficult, for example, there were 24 women living in a divided hut. In particular, she described the food at the base as "terrible" and "fatty"; Mrs Milne told the Tribunal that the veterans ate a lot of minced meat at lunch and dinner time and, "greasy" bacon and eggs for breakfast. She was not used to this diet and it upset her stomach.
The Applicant related that many of the women complained about the quality and type of food and that they left the base whenever they could in order to get a meal in town. The Applicant stated that she felt guilty at the time complaining about service food because she thought of her brothers and the other (World War II) service men overseas. She felt that she was lucky in that she at least had food to eat.
Nonetheless, Mrs Milne also stated that from approximately four months after she began her service, she always felt bloated and experienced much discomfort and pain with diarrhoea and constipation. Her bowel movements were very irregular.
The Applicant consulted the army doctor several times during this period and she was advised that the cramps and bowel problems were "colic". The medical officer gave her "white chalky liquid medicine" each time, however, her problems continued. There were approximately eight other women who experienced similar problems to Mrs Milne but she always seemed to suffer the worst.
The Applicant wrote to her mother about her bowel problems and her mother sent her cod liver oil to try to help her. Mr Milne's mother also advised her to try to eat as little of the service food as possible and the Applicant did this. She also ate cornflour as advised by her mother.
Approximately six to eight months after joining the army, Mrs Milne recalled that she and a number of other women ate a meal, following which they all had a severe bout of diarrhoea. The Applicant's evidence, however, is that she suffered a much more severe case than the other women; to support this, the Applicant stated that she was allowed two days off duties to recover whereas the other women did not require any time off.
After this incident, the Applicant continued to experience severe discomfort and problems with her bowel movements. The Applicant estimated that for half of her time during service she experienced these pains. The Applicant felt bloated, experienced either constipation or diarrhoea and had painful cramps. Her bowel motions were very painful, she also had mucous in her stools and would stain her pants.
Mrs Milne acknowledged that she did not record her bowel problems in her discharge papers. She told the Tribunal that she wanted to leave the WAAF as quickly as possible without complication so she could join her husband.
The Applicant related to the Tribunal that since leaving the service these pains and bowel problems have become worse with time and that she has consequently had to live with these conditions for all her life.
In response to questioning during cross-examination, Mrs Milne whilst admitting that she had always suffered from severe menstruation pains, asserted that she could properly distinguish between "period pains" and "bowel problems". The Applicant described the differences in the discomfort from the two pains and generally pointed out that menstruation cramps were felt lower in the abdomen, whereas her stomach cramps made her feel bloated and as though her "stomach was up under my breasts".
Mrs Milne also related to the Tribunal that although she had a hysterectomy when she was approximately 30, her "bowel problems" have remained with her and become worse throughout her life. The Applicant related to the Tribunal that she always feels bloated and nauseous; the Applicant is thin and not able to put on weight because her food "passes through"; she feels very tired and is constantly in a state of pain and discomfort. Further, her bowel motions are very painful and she is not always able to control her bowels, which is very humiliating and has resulted in the Applicant being wary of going out in public. The Applicant is very concerned to keep her hygiene at a high standard; the Applicant wears pads everyday and especially when she is going out because of her constant and very real need to control leakage.
The Applicant's personal life has also been affected. The Tribunal notes Mrs Milne's evidence that her first husband was not very understanding of her condition, which caused her embarrassment and humiliation. Further, whilst the Applicant's second husband was a great help and comfort to her, the Applicant has been a widow since his death 23 years ago. The Applicant stated that she cannot imagine entering into a new relationship or finding a partner who would be understanding of her physical problems.
The Applicant stated also that being deaf "is a very lonely world" and that her deafness, coupled with her bowel problems, has meant that she has had to live a very lonely and isolated life.
The Tribunal further noted the Applicant's evidence that her primary companion and carer is her daughter Toria Lyn. Toria Lyn suffers from a disability and uses crutches to walk. The Applicant stated that she and her daughter "take care of one another". The Applicant also has Homecare to assist her with cleaning and other domestic chores.
The Applicant is involved with her local community through various voluntary roles which she has undertaken; for example, the Applicant is the Vice president of the RSL sub-branch at Long Jetty, New South Wales.
Medical History
Dr M Thomas, Consultant Physician and Gastroenterologist, has noted the following medical history over many years: diverticular disease; a number of colectomies; intermucosal adenocarcinoma; hysterectomy; total right hip replacement; lower spinal fusion; bladder repair; elbow replacements; reflux and oesophageal spasm; and dense adhesions from previous abdominal surgery.

Dr G Miller, Consultant Physician, examined Mrs Milne and provided a report dated 27 June 2000 (Exhibit A1). In his report, Dr Miller provided a brief medical history in which he states that the Applicant described on service, "recurrent attacks of loose liquid bowel motions" which would "last for several days". Further:
"…The diarrhoea was associated with abdominal pain and was relieved by opening her bowels, only to have the pain recur. The attacks of looseness would then be followed by one to two days of constipation and the attacks would be irregular but would last at least 50% of the time. She had the feeling that she had not opened her bowels properly, she noticed that she passed mucus, often she would soil herself with mucus on her panties and she had to wear pads. She suffered from unpleasant and uncontrollable flatulence and always felt bloated"(Exhibit A1, p 2).

The Tribunal noted that this account which was provided to Dr Miller is consistent with the evidential history presented to the Tribunal by the Applicant during her oral evidence at the hearing.
Turning to the issue of diagnosis, Dr Miller reported that:

"Although Mrs Milne has a documented history of diverticular disease of the colon, diagnosed in the early 1960's, she has a past medical history consistent with irritable bowel syndrome dating back to her service at Tocumwal in 1944" (Exhibit A1, p 4).

Further,

"Mrs Milne did not know the difference between the symptoms of irritable bowel syndrome and diverticular disease, in fact she did not understand what diverticular disease was at all. It was apparent to me, during the history, that what she thought was diverticular disease was in fact symptoms of irritable bowel syndrome which first became apparent in Tocumwal in 1944…" (Exhibit A1, p 5).

Dr Miller considered that Mrs Milne satisfies the Statement of Principles for Irritable Bowel Syndrome, Instrument number 104 of 1996. He considered that 10 impairment points is the appropriate rating pursuant to Table 6.1.8 of the Guide to the Assessment of Rates of Veterans' Pensions ("the Guide")
The Tribunal's consideration of whether Mrs Milne satisfies the Statement of Principles is set out below. In dealing, at this stage, only with the medical evidence and without asserting any findings, the Tribunal considers it necessary to comment that whilst the Applicant's present claim before the Tribunal is for Irritable Bowel Syndrome, there is medical evidence that she does in fact have another condition, namely, Diverticular Disease of the Colon. Indeed, it appears that the Applicant has a number of gastrointestinal problems, however, the Tribunal is only concerned here with the issue of determining whether a causal relationship exists between Irritable Bowel Syndrome and the Applicant's eligible war service.
Dr G Marinos, Gastroenterologist, also examined Mrs Milne and provided a report dated 31 July 2000 (Exhibit R1). In that report, Dr Marinos stated that the Applicant has many gastrointestinal conditions, including: Colorectal Carcinoma, Gastro-Oesophageal Reflux Disease, Diverticular Disease of the Colon and Irritable Bowel Syndrome.
It should be noted, however, that Dr Marinos was asked to examine the Applicant for the purpose of giving an opinion regarding Diverticular Disease and to determine if it is linked to her service. That is, Dr Marinos was looking at the issue of Diverticular Disease, whereas the Tribunal, in light of the amended diagnosis of Mrs Milne's claimed condition, is primarily concerned with the issue of Irritable Bowel Syndrome. Nonetheless, Dr Marinos diagnosed the Applicant with Irritable Bowel Syndrome and made the following observations which are of assistance to the Tribunal; he stated:

"Mrs Milne has been troubled with severe recurrent lower abdominal pain, uncomfortable abdominal distension and faecal incontinence for many years. Her symptoms have generally been recalcitrant to any treatment and have required many admissions to her district hospital for pain relief (approximately 5-10 admissions per year)...
In my opinion Mrs Milne has had severe complicated Diverticular Disease that began at an unusually young age. It is highly likely that her diet, stress and change in environment during her defence service all contributed to her developing such severe diverticular disease at such a young age…."

Evidence was also provided by way of a report from Dr L.M. Camus, Physician and Surgeon, who has been treating Mrs Milne since 27 July 1989. Dr Camus noted a history of diarrhoea with mucus, rectal bleeding, haemorrhoidectomy, constipation, intramucosal adenocarcinoma and right hemicolectomy.
Submissions
Counsel for the Applicant contended that the Applicant could not differentiate between the symptoms of Irritable Bowel Syndrome and Diverticular Disease and that the symptoms thought to be related to the Diverticular Disease were in fact symptoms related to Irritable Bowel Syndrome. Thus, notwithstanding the fact that Mrs Milne had made an application for Diverticulitis, it is not for the Applicant to diagnose her own condition. Indeed, the Applicant's written submissions state that "The Department should have undertaken appropriate enquiries to properly diagnose the condition suffered by the Applicant" (at point B8).
Counsel further contended that since the Respondent had accepted the diagnosis of Irritable Bowel Syndrome, the real issue for determination by the Tribunal centred upon whether what happened on service satisfies the Statement of Principles.
With respect to the Statement of Principles concerning Irritable Bowel Syndrome, Counsel sought to rely upon factor 5(b) of Instrument 104 of 1996. Mr Colborne submitted that the Applicant satisfies this criterion in that she had 15 to 20 occurrences of diarrhoea on service and there were at least two of these, which were severe enough to warrant time off duties and medical attention. Factor 5(b) states:

"(b) suffering an episode of severe diarrhoea within six months immediately before the clinical onset of irritable bowel syndrome;…"

Mr Colborne further submitted that Mrs Milne's episodes of severe diarrhoea met the definitional requirements of the Statement of Principles as confirmed by Mrs Milne's evidence and objective medical evidence.
In relation to Mrs Milne's omission in recording her severe diarrhoea/bowel problem on discharge, Mr Colborne noted that her explanation was reasonable, credible and commonly expressed by veterans wishing to leave the service at the end of World War II.
Further, Mr Colborne contended that Mrs Milne's menstrual problems produced entirely different symptoms to that of her bowel problems and she was easily able to distinguish the effects of these two conditions.
The Tribunal should note, Mr Colborne submitted, that other women experienced similar but less severe bowel and diarrhoea symptoms and that living all together in a hut, it was difficult to stop infection.
Mr Colborne concluded that on all the evidence, the Tribunal could be reasonably satisfied that Mrs Milne satisfied the diagnostic criteria contained within the Statement of Principles for a diagnosis of Irritable Bowel Syndrome and that further, Mrs Milne's circumstances met factor 5(b) of the relevant Statement of Principles. The diet conditions on service caused the diarrhoea. There were no medical reasons found for the diarrhoea other than Irritable Bowel Syndrome. These conclusions are supported by Dr Miller's opinion which is that the symptoms of Irritable Bowel Syndrome first became apparent in Tocumural in 1944 and that Mrs Milne had an episode of severe diarrhoea on service (Exhibit A1) likely, on Mrs Milne's evidence, to be as early as March 1944.
In relation to the issue of the assessment of the appropriate rate of Mrs Milne's Disability Pension, by letter of 12 December 2000, Mr Colborne submitted that following the results of an audiogram undertaken by Australian Hearing on 1 December 2000 (Exhibit R2), he agreed with the Respondent's assessment of Mrs Milne's bilateral sensorineural hearing loss of 41 points and tinnitus at 10 points. If the Tribunal accepted Mrs Milne's condition of Irritable Bowel Syndrome as war-caused, Mr Colborne submitted that the impairment rating of 20 points, based on Dr Marino's assessment (Exhibit R1), was appropriate. The combined impairment rating is 58 points and Mr Colborne concurred with the Respondent's Lifestyle rating of 4 points. Mr Colborne concluded that the appropriate rate of pension should be 100 per cent of the General rate, with effect from 13 March 1996.
On behalf of the Respondent, Mr Wallis submitted that whilst it is accepted that the Applicant suffers from Irritable Bowel Syndrome and that the correct Statement of Principles is 104 of 1996, it is very difficult to separate the Applicant's Irritable Bowel Syndrome from her other abdominal pains.
Further, Mr Wallis pointed out that the Tribunal has to be satisfied, on the balance of probabilities, that the Applicant satisfies factor 5(b) of the Statement of Principles. That is, that the Applicant suffered an episode of severe diarrhoea within six months immediately before the clinical onset of Irritable Bowel Syndrome. The Respondent contended that the relevant authority in determining the standard of proof to be applied in this matter is Briginshaw v. Briginshaw (1938) 60 CLR 336. The Respondent submitted that the medical history on service does not satisfy the clinical features raised by factor 5(b).
The Respondent also stated that a causal connection needed to be shown to exist between the Applicant's condition and her war service. While not conceding the point, the Respondent did agree that, based on the report provided by Dr Marinos, a causal connection did appear to exist in that upon entering the army the Applicant's diet was vastly altered and she did suffer diarrhoea.
Mr Wallis submitted that the Applicant's medical records from the time of service record instances of dysmenorrhoea, which is defined as "the colicky lower abdominal pain of ovulatory menstruation". Thus, he contended that the Applicant may have been misdiagnosed and that what was thought to be "colic" or "bowel troubles" during the Applicant's war service, was actually pain associated with menstruation.
In the alternative, Mr Wallis submitted that if the Tribunal did consider the symptoms on service were from Irritable Bowel Syndrome, then it has to determine the date of onset in order to ascertain if the symptoms of severe diarrhoea occurred within six months of the date of onset.
Having received a new audiogram dated 1 December 2000 (Exhibit R2), Mr Wallis submitted by letter of 11 December 2000, that the appropriate rating for Mrs Milne's hearing loss is 41 points and 10 points for tinnitus. If the Tribunal accepted Mrs Milne's condition of Irritable Bowel Syndrome, Mr Wallis submitted that the appropriate rating is 20 points as assessed by Dr Marinos. These impairments produce a combined impairment rating of 58 points which, with the lifestyle rating submitted as appropriate at 4 points, would provide for a Disability Pension at 100 per cent of the General rate with effect from and including 13 June 1996.
Findings
Entitlement
The Tribunal commends both Mr Colborne and Mr Wallis in their cooperation and efforts to ensure that Mrs Milne could understand what was being said during the proceedings and to maximise her ability to provide evidence. The Tribunal has reached a decision in this matter taking into account the oral and written evidence, the respective submissions of the Applicant and Respondent and by applying the relevant legislation and case law to the particular facts and circumstances of the Applicant.
The Tribunal considers that Mrs Milne provided frank and truthful evidence. She was able to relate to the Tribunal sensitive personal details in a dignified manner and she endeavoured to participate in the hearing despite her hearing impediment.
There is no dispute in this matter that the Applicant suffers from Irritable Bowel Syndrome. She also suffers from Diverticular Disease of the Colon. The Tribunal finds that the claim, which is the subject of this review, relates to a condition properly diagnosed as Irritable Bowel Syndrome. There is no dispute between the parties on this particular issue. Accordingly, the Tribunal varies the diagnosis of the claimed condition from Diverticular Disease of the Colon to Irritable Bowel Syndrome.
Turning firstly to the issue of the clinical onset of Irritable Bowel Syndrome, the Tribunal finds that based on the expert medical opinion of Dr G Miller, that although Mrs Milne has a documented history of Diverticular Disease of the Colon, diagnosed in the early 1960's, she has a past medical history consistent with Irritable Bowel Syndrome dating back to her service in Tocumural in 1944 (Exhibit A1). Based on medical opinion and Mrs Milne's evidence, the Tribunal finds that the onset of Mrs Milne's Irritable Bowel Syndrome was between March 1944 and April 1945 during Mrs Milne's eligible war-service.
For the Applicant's claim to be successful, the Tribunal needs to be reasonably satisfied that her condition of Irritable Bowel Syndrome is, on the balance of probabilities, connected with her war-service. In order to reasonably satisfy itself as to whether there is such a connection, the Tribunal has had regard to the relevant Statement of Principles being Instrument Number 104 of 1996, concerning Irritable Bowel Syndrome. The Tribunal considers the relevant factor is factor 5(b).
The Tribunal accepts that Mrs Milne suffered at least two severe bouts of diarrhoea within the six months immediately before the clinical onset of irritable bowel syndrome. The first severe bout of diarrhoea occurred in March 1944 and another occurred a short time later when a group of women unable to eat the food in camp ate the same food in a local restaurant. Further, the Tribunal notes that the fact that these incidents of diarrhoea occurred is uncontested by the Respondent.
The available medical records, which outline the Applicant's medical history during service, indicate that Mrs Milne was suffering recurrent lower abdominal pains, nausea and diarrhoea (p 24,25,26, 46, 48 and 49 of the T-Documents). It is clear that the Applicant did not have bowel problems when she entered the army. Her "Entry Examination Board Record" shows that she was asked whether she suffered from the following conditions: "disease or disability", "indigestion or pain after food" and "stomach or bowel trouble". Mrs Milne answered "No" to each of these questions and the Tribunal accepts that this was correct at the time. The Tribunal further accepts that upon her discharge from service the Applicant failed to state her true medical conditions on the "Medical Examination Prior to Discharge" form because she wanted to get out of the WAAF and join her husband in civilian life.
The Tribunal further accepts that Mrs Milne is able to distinguish between pain associated with menstruation and Irritable Bowel Syndrome.
The Tribunal was directed in its consideration of this matter, to the case of Briginshaw v Briginshaw (supra). Mr Wallis for the Respondent contended that there is a distinction between "probabilities" and "mere possibility". In so far as it is relevant, Briginshaw provides:
" Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect references".
The Tribunal is satisfied on the evidence before it, that there is more than a "mere possibility" that Mrs Milne's Irritable Bowel Syndrome is related to her war service. There is nothing "inherently unlikely" in the Applicant's claim. Further, the Tribunal finds that, having regard to the passage of time since these events occurred, there is nothing "inexact", "indefinite" or "indirect" in Mrs Milne's testimony.
Accordingly in all the circumstances and for the reasons expressed above, the Tribunal determines that factor 5(b) is raised by the evidence. Thus the Tribunal is reasonably satisfied that there is a connection between Mrs Milne's condition of Irritable Bowel Syndrome and her service, as required by the Act.
In relation to the part of the decision under review concerning entitlement, the decision under review is set aside pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal substitutes its decision that Mrs Milne is qualified for a Disability Pension for Irritable Bowel Syndrome and the Commonwealth is liable to pay pension for incapacity arising from the claimed condition from and including 13 March 1996.
Assessment
Mrs Milne had an audiogram on 1 December 2000. As far as the Tribunal is able to ascertain from the papers available to it, there has been no up-to-date hearing test since the Commission's decision of 20 January 1997. At that time, Mrs Milne's hearing loss was rated at 45 points. It is not clear to the Tribunal from the available evidence whether this rating included a rating for tinnitus, which Mrs Milne clearly has. The audiogram of 1 December 2000 reports severe sensory neural hearing loss bilaterally with bilateral severe continuous tinnitus (Exhibit R2).
The Tribunal has applied the scales contained within Chapter 7 of the Guide to the current audiogram and agrees with Counsel and Mr Wallis that the hearing impairment is 41 points. From Table 7.1.11 for Tinnitus, the Tribunal finds that the appropriate rating for this condition is 10 points to reflect that Mrs Milne has severe tinnitus bilaterally present every day.
In relation to Mrs Milne's Irritable Bowel Syndrome, the Tribunal finds that based on Mrs Milne's evidence and the opinion of Dr Marinos, the appropriate assessment is 20 impairment points from Table 6.1.8 for Disorders of the Large and Small Bowel, to reflect the severe and unremitting symptoms, including pain and diarrhoea, experienced by Mrs Milne and the interference in her everyday activities.
The Tribunal also finds that Mrs Milne is greatly embarrassed by her Irritable Bowel Syndrome. The problem of soiling, frequency of diarrhoea and pain, in addition to her severe hearing loss causes her to avoid public places. If she does venture out, Mrs Milne is always afraid she might have an accident, soil herself or experience great pain. In such circumstances the Tribunal considers that the appropriate rating is 10 points from Table 17.1, for Disfigurement.
Mrs Milne's impairment ratings may be summarised as follows:
Condition     Table Impairment Points
Bilateral Sensorineural hearing Loss      Scales 7.1.3-7.1.8    41
Tinnitus        7.1.11 10
Irritable Bowel Syndrome   6.1.8   20
Disfigurement          17       10
Combined Impairment Rating Scale 18.1   62 rounded to 60

Turning to the consideration of Mrs Milne's Lifestyle rating, the Tribunal determines that from all available evidence the appropriate Lifestyle rating is 4 points found in the shaded area of Scale 23.1 of the Guide. In reaching this finding, the Tribunal carefully considered the impact of Mrs Milne's conditions on her lifestyle and considers that the level of medical impairment is most appropriately reflected by a Lifestyle rating of 4 points.
Thus, an Impairment rating of 60 points with a Lifestyle rating of 4 points, produces a Disability Pension at 100 per cent of the General rate with effect from 13 March 1996, which is a date not more than three months prior to the date Mrs Milne's claim was received by the Department and is the earliest date allowable under the Act.

In all the circumstances and for the reasons set out above, the decision under review is set aside and in substitution therefore the Tribunal decides pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 that:
1.The Diagnosis of the condition of Diverticular Disease of the Colon is changed to Irritable Bowel Syndrome.
2.Irritable Bowel Syndrome is war-caused as detailed in section 9 of the Act.
3.Disability Pension is payable for Irritable Bowel Syndrome pursuant to section 13 of the Act from and including 13 March 1996.
4.Disability Pension for all Mrs Milne's war-caused conditions is assessed at 100 per cent of the General rate from and including 13 March 1996.
I certify that the 74 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member
Signed:         ................................[sngd].............................................
  Sharonne Brainenberg, Associate
Date of Hearing  7 November 2000
Date of Decision  22 December 2000
Representative for the Applicant   Mr Craig Colborne of Counsel
Representative for the Applicant   Richard Wallis, Solicitor