O'Neill and Repatriation - [2000] AATA 203

DECISION AND REASONS FOR DECISION [2000] AATA 203

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/691

VETERANS'     APPEALS        DIVISION         )
           Re      Christopher O'NEILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

Date15 March 2000
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that Mr O'Neill's diabetes mellitus is a defence caused disease.
  (Sgnd)   Joan Dwyer
  Senior Member
CATCHWORDS
DIABETES MELLITUS – whether defence caused disease – injury during service reducing ability to engage in adequate physical activity to compensate for caloric intake excessive for energy needs – decision set aside
Statement of Principles for diabetes mellitus – suggestion that Repatriation Medical Authority consider whether stress should be recognised as a factor connecting the disease with the circumstances of service

Keeleyv Repatriation Commission [1999] FCA 1103

REASONS FOR DECISION

15 March 2000 Mrs Joan Dwyer, Senior Member Mr C Ermert, Member Dr C Re, Member

This is an application for review of a decision of the Repatriation Commission made 22 September 1998 and affirmed by the Veterans' Review Board on 31 March 1999 rejecting Mr O'Neill's claim to have diabetes mellitus accepted as a defence caused disease under s 70 of the Veterans' Entitlements Act 1986 ("the Act").
Mr O'Neill appeared and gave evidence. Ms McCulloch, an advocate with the Department of Veterans' Affairs appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and the documents tendered during the hearing.
Mr O'Neill enlisted in the Royal Australian Air Force on 9 February 1982. He was discharged on 30 June 1996. He was diagnosed as suffering from diabetes mellitus on 28 July 1998. He lodged a claim to have the disease accepted as a defence caused disease on 6 August 1998. He explained that he believed his diabetes was related to his service. He wrote: [Tdocs p39]
The stress and pain I am experiencing awaiting an operation on my (R) Ankle (accepted defence caused), has been a major factor in the showing of this condition. I was tested every 2 years & did not show until major pain problems with my ankle.
Dr Carter, who is Mr O'Neill's Local Medical Officer wrote a letter dated 11 September 1998 supporting the link between stress and the onset of diabetes (T7 p47). Mr O'Neill's endocrinologist, Dr Ley, also answered a question on a medical form by indicating that stress was probably the principal cause of Mr O'Neill's diabetes (A1 questions 2 and 3). However the Statement of Principles ("SoPs") in respect of diabetes mellitus does not recognise stress as a factor. We suggest that perhaps the Repatriation Medical Authority should review the SoPs for diabetes mellitus, to consider whether that factor should be added.
Applying the Federal Court decision of Keeleyv Repatriation Commission [1999] FCA 1103 we are obliged to apply the SoP for diabetes mellitus, Instrument No. 48 of 1996 as amended by Instrument 188 of 1996. It is agreed that the only relevant factor is factor (b) in paragraph 5 of the SoP. It provides:
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person's relevant service are:
. . .
(b)in relation to type 2 diabetes mellitus, being obese for a period of at least ten years before the clinical onset of diabetes mellitus;
. . .
The definition of "being obese" was amended by Instrument No. 188 of 1996. It now provides:
"'being obese' means an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority's Statement about the causes of "being obese" signed by the Chairman of the Authority on 16 August 1996, attracting ICD code 278.0.
The measurement used to define "being obese" is the Body Mass Index (BMI).
The BMI = W/H2 and where:
W is the person's weight in kilograms and
H is the person's height in metres.
"Being obese" is considered to be present when the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. "Being obese" develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of "being obese" it must have resulted in a significant weight gain, of the order of a 20% increase in baseline weight, and in association with a BMI of 30 or greater;";
The Repatriation Medical Authority in its Statement about the causes of "being obese" stated:
The Authority has recently reviewed the "sound medical-scientific evidence" relevant to "being obese" and has decided upon a new definition for it. In considering this information, the RMA found that the causes of "being obese" are one or more of the following factors preceding "being obese":
(a)exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;
Once Mr O'Neill understood that his claim could not be accepted on the basis of stress, as he had originally submitted, he presented evidence and a very helpful submission addressing the requirements of the SoPs, so as to show that his obesity was related to his calorific intake during relevant service at a time when due to defence caused injury he could not undertake "adequate physical activity."
Mr O'Neill's evidence was that he attended a pre-enlistment Royal Australian Air Force (RAAF) medical on the day after his final year 12 exam on 30 November 1981. The record of that medical (p199 of R1) shows that his weight was 106.5kg. He was "overweight 6.5kg" and was advised that he needed to reduce weight. The form shows that he returned on 17 December 1981 when he was 102kg and on 7 January 1982 when he was 100kg. He was accepted for enlistment at that stage. The medical officer wrote:
"Now only 1kg above scale. Not considered significant in view of improved fitness."
Mr O'Neill gave evidence that he believed that the reason he was overweight on 30 November 1981 was that because of his intensive study for Year 12 he had reduced his sporting activity. He said he had played a lot of sport. He played basketball at one level below state level in South Australia and cricket and tennis at A grade suburban competition level and indoor cricket at B grade suburban competition level. He said once he knew he had to lose weight he resumed playing sport very frequently and went running with his brother. He was living at home with his mother at that stage. He explained that his mother was diabetic and had brought up the family to eat only a very healthy diet. He said his normal diet, when living at home, had a lot of salads, grilled fish and chicken and did not include cakes or sweet drinks. As R1 p199 shows he succeeded in losing 6.5kgs in about five weeks, which included the Christmas period.
Mr O'Neill started at 1 Recruitment Training Unit, Edinburgh on 9 February 1982. He said that he believed he had lost further weight in the month from 7 January to 9 February, but there is no record of him being weighed on 9 February 1982. He lived at home from 9 February as his home was four or five kilometres from the base. He said that the recruit training at Edinburgh was very physically demanding.
Mr O'Neill was transferred to the RAAF School of Technical Training at Wagga on 3 May 1982. He said that at Wagga the training was very intensive. There was no time for sporting activities, but the recruits led a very active life with Parades and PT every day and other active tasks. At Wagga Mr O'Neill lived in at the Barracks. He said they were not allowed to leave the base during their training.
On 8 November 1982 Mr O'Neill stepped on a "silent copper" during a training run and broke the 5th metatarsal of the right foot. We find from the records and his evidence, that was the start of a long period of pain and disability. At first Mr O'Neill was on crutches and in plaster for one month. When the plaster was removed he "did the best he could", but found he "was falling away on runs". He attempted to resume normal service life but found the pain to be very bad. He also noticed that the bone ends were sticking out of his foot. He returned to the doctor in May 1983. An X-ray dated 1 June 1983 (R1 p175) was reported, "fracture line has become more prominent . . . suggesting non-union."
Mr O'Neill saw an orthopaedic surgeon, Mr Nicholls on 6 July 1983. On 12 July 1983 Mr Nicholls performed an operation which he hoped would improve union of the bone.
Apparently that surgery was not successful. Two months later Mr O'Neill returned to Mr Nicholls complaining of increasing pain. Mr Nicholls described the pain as post operative and recommended that Mr O'Neill "exercise and get back to as much normal activity as he could." (R1 p169). Mr O'Neill said that he could not exercise and resume normal activity. He said he never did any more runs or PT at Wagga. He had a "chit" which excused him from PT. He did not even have to walk down to PT. He spent the time in the library. During parades he stood behind the parade with the "sick, lame and lazy".
In early 1984 Mr O'Neill, having completed his training course, returned to Edinburgh, where he again lived at home with his mother for a short time. He said he was still having pain. In February/March he did a further trade course at Williamstown base for five weeks. he then returned to Edinburgh where he once again lived off base.
Mr O'Neill said that at Edinburgh cricket, football, touch football and volleyball were all played competitively. Going on his earlier sporting achievements, he said he could have played in those teams and, bearing in mind service standards of fitness, could "have gone even higher" than he had done in his school days. However because of his injury, he said he was not able to play those sports at a competitive or, to him, meaningful level.
The medical records (R1 p165) show that in June 1984 Mr O'Neill weighed 122.60kg and was described as "overweight". That is his weight had increased by 22.60kg in the time he had been in the RAAF.
Mr O'Neill submitted that those facts established that the cause of "being obese" was factor (a) in the SoPs:
(a)exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;

Mr O'Neill said that for most of the period of his service to June 1984 he had been eating service rations on RAAF bases. Prior to his injury he was able to exercise, and so that was not a problem, but after the injury because of the limitations on his ability to perform PT and resume high level competitive sports his food intake was excessive for his energy needs and he could not compensate by adequate physical activity for that excessive caloric intake. Mr O'Neill's weight gain by June 1984 was at least 20% of his "baseline weight". That term is defined in the statement about the causes of "being obese" as the weight level prior to the effect of the particular factor specified. We find that 100kgs was Mr O'Neill's "baseline weight". There are no readings between enlistment and June 1984. Mr O'Neill said that he thought he would have lost further weight before enlistment on 9 February 1982, but there is no evidence to show that. Nor is there any evidence of any weight change between enlistment and the injury.

The record of weight and the graph prepared by Ms McCulloch show that from June 1984 Mr O'Neill was obese as defined (i.e. Body Mass Index over 30) at all times during his service. We find that he remained obese in spite of efforts to lose weight. He could not resume his former sporting activity due to further surgery in late 1984 and 1985 and pain when he attempted sporting activities. Thus he was obese during service for a period of 12 years from June 1984 to June 1996. Exhibit R5 shows that he remained obese until 5 August 1996 which was after the clinical onset of his diabetes in July 1998. Thus he meets the 10 years of service related obesity for a period of at least ten years required in paragraph (b) of the SoPs.
We find that the facts relied on by Mr O'Neill are established by his evidence and in the records to which he referred us. We are satisfied that he meets the requirements of the SoPs to have diabetes mellitus accepted as a defence caused disease. He was obese for a period of at least ten years before the clinical onset of his diabetes. We find that obesity was related to his service because factor (a) in the Statement about the causes of being obese preceded "being obese". Mr O'Neill was found to be obese as defined in June 1984. Prior to that he had been living in RAAF barracks for most of his service life which included the time after his injury. He had been exposed to a service environment which encouraged calorific intake which was excessive for his energy needs, which were reduced due to his injury, and the caloric intake could not be compensated by adequate physical activity due to the effects of that injury. Those factors resulted in a weight gain of at least 20% of Mr O'Neill's "baseline weight."
The decision under review will be set aside. In substitution we find that Mr O'Neill's diabetes mellitus is a defence caused disease.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer, Mr C Ermert, Member and Dr C Re, Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  15 March 2000
Date of Decision  15 March 2000
Counsel for the Applicant        Nil
Solicitor for the Applicant         Nil - Self Represented
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Ms J McCulloch