Nicholson and Repatriation Commission
[2008] AATA 614
•15 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 614
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0409
VETERANS’ APPEALS DIVISION ) Re WILLIAM NICHOLSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date15 July 2008
PlaceBrisbane (heard in Coolangatta)
Decision The Tribunal affirms the decision under review as it relates to the applicant’s claims for diabetes mellitus and anterior wedging (L1).
With reference to that part of the application for review that related to assessment of the applicant’s pension, the Tribunal directs, under s 42D of the Administrative Appeals Tribunal Act 1975, that the respondent re-assess the rate:
a. after obtaining an updated psychiatric report (and any other medical reports as thought necessary); and
b. taking into account the materials provided by the applicant at the hearing with respect to the restrictions on his mobility (exhibit A2 – photographs taken inside his home) and his submission referring to errors made in the course of the previous assessment (exhibit A4 – document headed “Statement for AAT”).
....................[sgd]..........................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – whether applicant’s condition of diabetes mellitus is war-caused or defence-caused – Tribunal affirms decision under review
VETERANS’ AFFAIRS – assessment – applicant in receipt of 100 per cent of general rate of pension – application for increase in pension to extreme disablement adjustment rate – Tribunal remits under s 42D of Administrative Appeals Tribunal Act 1975
Veterans’ Entitlements Act 1986 (Cth) ss 9, 70, 119, 120, 196B
Repatriation Commission v Deledio (1983) 83 FCR 82
Repatriation Commissionv Hill (2002) 69 ALD 581
Repatriation Commission v Bey (1997) 79 FCR 364
Critch v Repatriation Commission (1996) 43 ALD 574REASONS FOR DECISION
15 July 2008 M J Carstairs, Senior Member 1. William Nicholson suffers from diabetes mellitus and a condition described as “anterior wedging” said to be present at spinal level L1. He initially sought review of the rejection of both claimed conditions on the grounds that they should be accepted by the respondent for pension as being related to the circumstances of his service in the Australian Defence Force.
2. In addition to these two claims, Mr Nicholson sought review of his existing pension rate, believing it to be under-assessed at 100 per cent of the general rate, and maintaining it ought to be paid to him at the higher “extreme disablement adjustment” rate, payable under s 22 of the Veterans' Entitlements Act 1986 (the Act).
3. In the course of the hearing, however, Mr Nicholson said he no longer wished to proceed with the claim as it related to anterior wedging (L1). He explained that he accepts the opinion of Dr J Watson, orthopaedic surgeon, that any possible past fracture which he might have suffered at L1, would have resolved over time. Dr Watson has assured him, and Mr Nicholson now accepts, that the condition is neither serious nor in need of any treatment. It seems apparent, also, that even if the condition had been accepted it would not affect the rate of pension, as Mr Nicholson already receives pension with respect to lumbar spondylosis, affecting the whole of his lumbar spine. Accordingly, the decision with respect to “anterior wedging (L1)” will be as affirmed by the Veterans' Review Board.
4. There was also a new development at the hearing in Coolangatta with respect to Mr Nicholson’s assessment application. It became clear that some of the medical evidence needed updating, because some time had passed since Mr Nicholson lodged his application. There was risk that the medical evidence may not adequately reflect Mr Nicholson’s current state of health or level of impairment. This, therefore, is an appropriate case in which to use the Tribunal’s powers under s 42D of the Administrative Appeals Tribunal Act 1975 in order to remit that issue to the respondent for updated medical reporting and re-assessment, taking into account:
· photographs that Mr Nicholson produced at the hearing showing his living circumstances[1] which he believes amply demonstrate the consequences of his reduced mobility; and
· Mr Nicholson’s documented concerns about aspects of the previous assessment process (with reference in particular to lifestyle ratings) set out in his “Statement for AAT”[2].
[1] Exhibit A2.
[2] Exhibit A4.
5. Effectively this means that the matter before me relates only to the claim for diabetes mellitus. Mr Nicholson maintains that his claim ought to be granted on the basis that he has suffered from obesity, which he says is related to his service, and there is a link, further, between obesity and the development of diabetes.
WHAT IS THE LEGAL FRAMEWORK?
6. Mr Nicholson’s claim with respect to diabetes mellitus must be examined with reference to periods of both operational service and defence service, as he has had both kinds of service in the Defence Force. The overall periods of Mr Nicholson’s service were set out within the T- documents as follows[3]:
[3] Folio 174; T6.
Service in the Australian Regular Army
- 09 July 1957 to 23 September 1957;
- 30 September 1957 to 29 September 1963;
- 28 September 1964 to 19 March 1971;
- 15 December 1971 to 14 December 1974;
Operational Service
- Malaya – 15 June 1960 to 17 June 1962;
- Vietnam – 27 May 1965 to 1 June 1966 ;
- Vietnam – 16 February 1970 to 7 January 1971.
7. As a consequence of his having two different kinds of service, as recognised under the Act, Mr Nicholson's claim attracts two different standards of proof:
§for Mr Nicholson’s operational service[4] any claim relating to that period is decided by applying the standard of proof to be found in sub-sections 120(1) and 120(3) of the Act.
§for the period of his eligible defence service (only the period between 7 December 1972 and 13 December 1974), the reasonable satisfaction standard of proof must be applied (found in sub-section 120(4) of the Act).
[4] Veterans’ Entitlements Act 1986 (Cth), s 6.
8. However, whether it is Mr Nicholson’s periods of operational or defence service that is in issue, the question of causation in each instance is similarly expressed in the Act. At sub-section 9(1)(b) of the Act (for operational service) and at sub-section 70(5) (for defence service), the terms of the legislation require that the disease or injury “arose out of or was attributable” to any relevant service. In addition, with operational service, section 9 of the Act provides war-causation in circumstances where injury or disease “resulted from an occurrence” that happened whilst the veteran was rendering operational service.
9. With respect to operational service, the question of whether Mr Nicholson’s diabetes mellitus was causally related to that service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio[5]. The Court there described the process as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person…
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11)…
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP…
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused… If the Tribunal is so satisfied, the claim must fail…
[5] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
10. With respect to Mr Nicholson’s defence service, it should be observed that it is only the period of 2 years 1972-1974, at the end of his time in the Army. Mr Nicholson did not identify any particular issues with respect to defence service different or distinct from those he raised with respect to his operational service. That is, in both periods he relies on matters to do with Army diet, especially the consumption of fatty and sweet foods. The test with respect to defence service, as will be shown below, is rather harder to meet than for operational service. The standard of proof is more generous towards the veteran who has operational service. Also, Mr Nicholson would have to show that that he was obese for 10 years before the onset of his diabetes.
IS DIABETES WAR-CAUSED OR DEFENCE-CAUSED?
11. Firstly, I should observe that there was no dispute (and I am able to readily accept on the medical evidence presented) that Mr Nicholson suffers from type 2 diabetes mellitus. It was diagnosed, it now seems clear, in 2004[6].
[6] Attachment to Exhibit A1.
12. In relation to the first step from Deledio, after considering Mr Nicholson’s evidence concerning Army diet and the evidence he presented about his becoming obese in the late 1990’s, there is a hypothesis positing a connection between the development of diabetes and the circumstances of the Mr Nicholson’s service. Therefore his claim satisfies the first step identified in Deledio.
13. In relation to the second step from Deledio there is in force a Statement of Principles under section 196B(2) of the Act with respect to diabetes mellitus, that is, Instrument No. 11 of 2004. That being so, Mr Nicholson’s claim satisfies the second step.
14. The Statement of Principles for diabetes mellitus has as one factor (essentially the equivalent of an hypothesis of connection with service):
5(b) in relation to type 2 diabetes mellitus, being obese for a period of at least five years before the clinical onset of diabetes mellitus;
The factor (5(b)) expresses what minimally must exist to constitute a reasonable hypothesis.
15. Equally, there is a Statement of Principles for diabetes with respect to the period of defence service, it being Instrument No. 12 of 2004. However, the factor, otherwise similarly expressed, requires the veteran to have been obese for a period of 10 years.
16. It should be observed that being “obese” is defined for the purposes of both Statements of Principles as being an increase in weight that results in a Body Mass Index (BMI) of 30 or greater.
17. Mr Nicholson’s hypothesis was that the Army diet he consumed for some 15 years of service (which he described being typically food cooked in copious amounts of fat) led to bad eating habits and food preferences in his later civilian life that ultimately led to his obesity in the 1990’s, prior to being diagnosed with diabetes[7]. With reference to his periods of operational service he said that the Army diet was spartan whenever they were serving in war zones (as it was also, he said, whenever they were on field exercises). But he also maintained that he gorged on chocolates and tins of condensed milk whenever possible in these circumstances. Mr Nicholson said that consuming chocolate was a comfort that helped with his symptoms of depression.
[7] Based upon material in Exhibit A1: “Request for an Appeal Hearing”.
18. Turning then to the claim as it relates to Mr Nicholson’s operational service, the third step from Deledio requires consideration of whether the hypothesis is reasonable. In Repatriation Commission v Hill[8] the Federal Court held that to be reasonable the material must raise or point to the hypothesis, which must then fit with the relevant Statement of Principles. In Repatriation Commission v Bey[9] the Court held that “‘a reasonable hypothesis’ involves more than a mere possibility”, and “is pointed to by the facts, even though not proved upon the balance of probabilities”. It is recognised that in some cases the hypothesis may assume the occurrence or existence of a fact, and this will not of itself make the hypothesis unreasonable: Critch v Repatriation Commission[10]. But the task is to consider all the evidence, not making findings of fact at this stage, but considering whether the evidence points to the connection posed in the hypothesis.
[8] Repatriation Commission v Hill (2002) 69 ALD 581 at 582.
[9] Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373.
[10] Critch v Repatriation Commission (1996) 43 ALD 574.
19. I have come to the conclusion that the hypothesis here is not reasonable and so Mr Nicholson’s claim fails at the third step of Deledio. There are, as I see it, several problems with Mr Nicholson’s case at this third step. The problems include that Mr Nicholson asks that I assume a number of facts favourable to his hypothesis, because his case lacks better evidence, such as might be produced in medical reports or other supportive material. However even if I proceed by assuming some facts, the evidence taken as a whole does not point to the necessary connection between obesity and operational service.
20. Mr Nicholson asks that I assume from several photographs he produced of himself, taken at different points of time in the years 1999 to 2007 (but excluding 2006), that he was obese in the photographs taken in the years 1999 to 2004, but lost weight later. He maintains that there is an observable difference in how his clothes fit him at different times. In 2004, after he was diagnosed with diabetes, his doctor required him to go on a strict diet, and change his eating habits. He then lost weight quite rapidly. Mr Nicholson was able to confirm, because he had weighed himself on a machine that produced printed records, that his BMI readings recorded in 2005 and 2007 were below 30 (that is, not obese). However Mr Nicholson had no weights recorded for the earlier photographs (1999- 2004). He asked that I infer that he would have had a BMI reading of 30, and hence was obese, in the period of 5 years before the onset of diabetes in 2004, by observation of how he looked in photographs taken at various times in that 5 year period and then comparing photographs taken after 2005.
21. This kind of evidence is rather unsatisfactory, as the Veterans' Review Board observed. It might well be that Mr Nicholson looks heavier in the earlier photographs, but it is impossible for me to confirm whether in any particular photograph he would have registered a BMI of 30. (I note also that Dr K McClelland, Mr Nicholson’s general practitioner, who has treated him for some time, has reported that Mr Nicholson did not have a history of obesity). One medical record suggested that Mr Nicholson was not obese in 2001[11]. That doctor recorded Mr Nicholson’s height as 167cm and his weight as 80kg, which results in a BMI well below 30. However, Mr Nicholson maintains that his correct height is in fact 162cm, and applying that height to the formula would produce a BMI reading of 30.5 in 2001 – that is in the obese range.
[11] Folio 184 ; T4.
22. I would also observe that the independent evidence of Mr Nicholson’s height being 162cm amounts to one instance only. In every other instance – including in the Army medical records, where his height was taken on some eleven occasions - his height is shown as 166cm or slightly more (converted, where necessary, from feet and inches in the earlier medical reports). It is indeed probable that with age Mr Nicholson may now be shorter. Indeed Mr Nicholson seeks to rely on a height measurement of 162cm as recorded by Dr K McClelland in 2006[12]. However that one instance is rather at odds with every other record of Mr Nicholson’s height.
[12] Folio 54; T4.
23. Despite the reservations which I have with Mr Nicholson’s photographic evidence and the inferences he asks be drawn from them, and with respect to his true height, I do take into account that section 119 of the Act urges some flexibility where records are absent. And, as mentioned, a hypothesis may yet be reasonable although based on an assumed fact. For that reason I am prepared to assume, as Mr Nicholson asks, that he reached obese weight readings (30 BMI) from 1999 for 5 years. Factor 5(b), it will be recalled, refers to a period of 5 years. In Mr Nicholson’s case this is from August 1999 to August 2004, when he was diagnosed with diabetes.
24. However, even allowing for the assumption that Mr Nicholson reached the required level for the 5 year period, it does not seem to me that any obesity in Mr Nicholson’s case bears the necessary connection to war service. All Statements of Principles are framed in order to comply with section 196B of the Act, and refer to the “factors that must be related to service rendered”. The evidence did not point to any of the recognised connections, which will be causal or contributory connections. There was no independent evidence either about the content of an Army diet, nor evidence concerning whether the content of that diet would lead inevitably to obesity in a veteran’s senior years, when it is well recognised that due to reduced activity many people simply put on weight.
25. In considering whether an injury or disease arose out of or was attributable to service, the causal connection need not be more than a contributing cause. However, it must be more than a temporal connection. However, here there is no evidence even of temporal connection at any point in Mr Nicholson’s service. Mr Nicholson freely acknowledged that he had never been obese while serving. This was confirmed by his medical records which gave a comprehensive account of his weight on service. Mr Nicholson agreed that he was very fit when he served as an infantryman and observed that the very nature of an infantryman’s work with the high level of fitness required, meant that he would not be obese then. Mr Nicholson also observed that in Vietnam the men were particularly lean.
26. It should also be noted that when Mr Nicholson re-enlisted on the last occasion (which was a brief period of service in the RAAF) he was then aged 40, but nevertheless was assessed at a high level of fitness. Mr J Kelly who appeared for the Repatriation Commission pointed out that Mr Nicholson's BMI when he re-joined the RAAF at 40 years of age was even lower than when he left the Army some 4 years earlier. Mr Nicholson explained that he was doing a lot of cross-country running at that time.
27. Nevertheless, Mr Nicholson maintains that the food provided to soldiers as service rations, being cooked in great quantities of lard led him to a lifetime habit of eating fatty food. He also maintains, as mentioned, that he developed a sweet tooth from the chocolate provided to them in the field. He said that this gave comfort in the context of the rigours of service life especially during operational service. However, the difficulty with Mr Nicholson’s submission is that there was no evidence that army rations, even if they had been as fatty as he described, had any significant effect on Mr Nicholson's weight. This suggests that the Army’s requirements for high fitness levels balanced out any diet issues that might have been present. The diet was not having any significant effect on Mr Nicholson's weight then. There was no other evidence about Army diet or rations in the field apart from Mr Nicholson’s observations of its deficiencies.
28. It is important to bear in mind that Mr Nicholson’s last period of service was some 25 years before he became obese – if indeed he ever reached a BMI of 30, that being an assumed fact for the purposes of considering the hypothesis.
29. At the third step of the Deledio it is necessary that the evidence taken as a whole points to each of the elements expressed in the factor. Here, even the matter of when, if ever, Mr Nicholson reached a BMI of 30 remains a matter of speculation and conjecture.
30. As set out in Repatriation Commission v Hill[13] it is necessary that the material raising the hypothesis contains all the elements prescribed by the Statement of Principles. The evidence taken as a whole in this case, even if we assume Mr Nicholson was obese for the necessary 5 years before the onset of diabetes, does not point to a connection between his weight gain close to 30 years after his periods of operational service, and 25 years after his last defence service. This means the hypothesis is not a reasonable hypothesis and his claim must fail at the third step of Deledio.
[13] Repatriation Commission v Hill (2002) 69 ALD 581.
31. With respect to the two years of eligible defence service (1972 – 1974) the test set out within the Statement of Principles is more stringent again, requiring obesity, related to service, for a period of 10 years before the clinical onset of diabetes. Mr Nicholson did not produce evidence that he was obese for that length of time, and did not identify any particular factors in his period of defence service other than as already discussed for his operational service. His claim, not having succeeded under the less demanding tests related to operational service, cannot succeed, on the evidence here, in relation to defence service.
32. For these reasons, I affirm the decision under review as it relates to Mr Nicholson’s claim for diabetes mellitus.
DECISION
33. The Tribunal affirms the decision under review as it relates to the applicant’s claims for diabetes mellitus and anterior wedging (L1).
34. With reference to that part of the application for review related to assessment of the applicant’s pension, the Tribunal directs, under s 42D of the Administrative Appeals Tribunal Act 1975, that the respondent re-assess the rate:
§ after obtaining an updated psychiatric report (and any other medical reports as thought necessary); and
§ taking into account the materials provided by the applicant at the hearing with respect to the restrictions on his mobility (exhibit A2 – photographs inside his home) and his submission referring to errors made in the course of the previous assessment (exhibit A4 – document headed “Statement for AAT”).
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.
Signed: ...........................[sgd]..........................................................
Joan, Torbey AssociateDate of Hearing 9 July 2008
Date of Decision 15 July 2008
The applicant was self-represented
Advocate for the Respondent Mr J Kelly
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