Perks and Repatriation Commission - [2000] AATA 345

DECISION AND REASONS FOR DECISION [2000] AATA 345

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/261

VETERANS' APPEALS DIVISION       )
           Re      BRUCE LEONARD PERKS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 3 May 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review which decided that varicocele is not war-caused.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member )
CATCHWORDS
VETERANS AFFAIRS – veterans' entitlements – varicocele – Statement of Principles factors considered – definition of 'arisen out of' considered – meaning of 'attributable to' considered -- inability to obtain clinical management – meaning of 'aggravation' considered
Veterans' Entitlements Act 1986 ss.9, 120, 120A
Statement of Principles No. 124 of 1996
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Yates (1995) 21 AAR 331
Re Petty and Repatriation Commission (1990) 11 AAR 458
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

REASONS FOR DECISION

3 May 2000 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Bruce Leonard Perks (the applicant) for review of that part of a decision of the Veterans' Review Board (VRB) dated 1 April 1998 (T4) which rejected varicocele as a war-caused disability.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T5), together with nine exhibits, five lodged by the applicant (Exhibits A1-A5) and four lodged by the respondent (Exhibits R1-R4). In addition, the Tribunal heard evidence from the applicant, who was represented by Mr P. Broderick of counsel. The respondent was represented by Mr G. Doube, a departmental advocate.
The issue before the Tribunal is whether the applicant's condition of varicocele is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 (the Act).
history of the application
The applicant served in the Australian Army between 6 March 1964 and 12 January 1972, rendering eligible service in Vietnam between 5 November 1968 and 26 November 1969.
On 19 August 1996 he lodged a claim for various conditions, including varicocele (T3/17). That condition was rejected by the Repatriation Commission in a determination dated 14 November 1996 (T2). This determination was affirmed upon review by the VRB by a decision dated 1 April 1998. The VRB stated (inter alia) in their reasons for decision (T4):
"…
The veteran was unable to explain how his left sided varicocele may have been caused by eligible service. In particular, there seems to be no explanation as to how Vietnam service may have affected his left renal vein.
…
…The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3)…
…"

legislation

Sub-section 9(1) of the Act provides (inter alia):
"9(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;
…
(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, 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."
Sub-sections 120(1) and (3) set out the relevant standard of proof:
"120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."
Sub-section 120(1) is read in conjunction with 120A(3) of the Act which provides:
"120A(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis."
The relevant Statement of Principles (SoP) in this case is No. 124 of 1996 which provides (inter alia):
"…
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting varicocele or death from varicocele with the circumstances of a person's relevant service are:
(a)suffering occlusion or narrowing of the ipsilateral testicular vein before the clinical onset of varicocele; or
…
(d)for left-sided varicocele, suffering occlusion or narrowing of the left renal vein before the clinical onset of varicocele; or
(e)suffering occlusion or narrowing of the ipsilateral testicular vein before the clinical worsening of varicocele; or
…
(h)for left-sided varicocele, suffering occlusion or narrowing of the left renal vein before the clinical worsening of varicocele; or
(j)inability to obtain appropriate clinical management for varicocele.
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(e) to 5(j) apply only to material contribution to, or aggravation of, varicocele where the person's varicocele was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…"

applicant's evidence

The applicant told the Tribunal that his service in Vietnam was different to most medical officers in that he was effectively deployed in the field at all times. He stated that his busiest time was at the base, as he was responsible for keeping the battalion battle ready.
He told the Tribunal that in his capacity as a medical officer he noticed that field officers developed more varicoceles than one would expect to see. As a result, he examined himself sometime during his year in Vietnam (most likely in the first half of the year) and found that he had a varicocele himself.
He stated that his varicocele has not changed much over thirty years and such a condition does not resolve without surgery.
He told the Tribunal that the appropriate clinical management of varicocele is to wear supportive underwear. He stated that he was unable to do so because of the rashes one would get in Vietnam if wearing that type of underwear. He further stated that supportive underwear was totally impractical in Vietnam. Hence, his advice to himself was the same as to the soldiers he treated, namely, that they simply had to put up with the discomfort resulting from the varicocele.
He stated that he did not have a medical examination upon returning to Australia, and did not mention the varicocele problem to various doctors in 1971 or 1972 because he had more serious problems at that time. He told the Tribunal that he was not surprised that the examination on 27 May 1971 (Exhibit R2) did not reveal the varicocele as it may have been a cursory examination. He contended that this assertion was supported by the fact that NAD (no abnormalities detected) was listed for ENT (ear nose and throat) on the examination form when ENT problems were his main complaint at the time. He further stated that contemporaneous specialist opinions in relation to his ENT problems would certainly not have listed NAD.
applicant's submissions
Mr Broderick submitted, on behalf of the applicant, that it is reasonable that the applicant's special job requirements in Vietnam caused the varicocele to develop. He further submitted that it was consistent with the type of person that the applicant was and the varicocele being a low grade problem that he would not have mentioned it in 1971 or 1972 given the scope of his other problems.
He submitted that "inability to obtain medical treatment" should be taken to include the situation whereby although available, it was simply not feasible to wear underwear due to the conditions and resultant rashes suffered by veterans in Vietnam.
He submitted that factors 5(j) and 6 of the SoP are satisfied in that a reasonable hypothesis could be drawn between the inability to obtain the appropriate clinical treatment and an aggravation of the applicant's varicocele condition, which itself arose out of his service in Vietnam.
respondent's submissions
Mr Doube submitted, on behalf of the respondent, that there are no documents supporting the applicant's contention that the varicocele first arose in Vietnam, and that the medical examination conducted on 27 May 1971 (Exhibit R2) specifically noted that no abnormality was detected, supporting the contention that the varicocele arose between May 1971 and April 1972, at which latter time its presence is recorded (Exhibit A5).
He submitted that none of the SoP factor 5 requirements could be met by the applicant. In respect of 5(j) in particular, he submitted that the applicant was able to obtain the appropriate management (ie supportive underwear) but chose not to avail himself of it due to other factors.
He submitted that in any event, it could not reasonably be said that any failure to obtain clinical management resulted in a material contribution to, or aggravation of the applicant's varicocele.
discussion and findings
By virtue of sections 120 and 120A of the Act, the Tribunal needs to be satisfied that there is a reasonable hypothesis connecting the applicant's varicocele condition to his operational service, having reference to the relevant SoP.
In considering the relevant SoP, factor 6 therein must be taken into account. Factor 6 of the SoP provides that factors 5(e) to (j) apply only to cases where a material contribution or aggravation argument is being raised (referencing sub-section 9(1)(e) of the Act), and not in cases were it is alleged that the condition "arose out of" the person's relevant service (ie claims pursuant to sub-section 9(1)(b) of the Act). The Tribunal notes that the SoP is silent on "attributable to", which also appears in sub-section 9(1)(b) of the Act.
The Tribunal must consider whether there is a reasonable hypothesis supporting the contention that the applicant's varicocele condition "arose out of his service", or whether it simply developed "during his service".
In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court considered the meaning of the comparable phrase "has arisen out of", concluding at p150 (inter alia):
"…
In s 101(1)(b) the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.
The Act does not say death which is "caused by" or "results from" his war service – phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".
…"
The Tribunal also notes that "attributable to" appears in sub-section 9(1)(b) of the Act although not in the SoP. This phrase finds definition in Law at p151 (inter alia):
"…
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. …"
The Tribunal found the applicant to be a credible witness. There was some dispute as to clinical onset of the varicocele, however as the Tribunal found the applicant to be credible, it prefers his evidence that he first detected the problem during his service in Vietnam.
The Tribunal notes the applicant's contention that the belt and webbing, constipation and carrying other heavy weights are all factors which may have caused higher incidence of varicocele in field officers and people in like positions (such as himself). Dr P.D. Byrne, General Surgeon, supports the proposition that "there was an increased amount of intra abdominal pressure because of the tightness of his field equipment and webbing" (Exhibit A2). It seems reasonable to conclude that the resultant intra abdominal pressure would be such that it could be said that there is a consequential relationship between that pressure and the development of the varicocele and the Tribunal so finds. It therefore fits the definition of "arose out of" as contemplated by Law and sub-section 9(1)(b) of the Act.
In order to satisfy sub-section 9(1)(b), sections 120 and 120A of the Act direct the Tribunal to the SoP. The SoP in this case, by reason of factor 6, excludes factors 5(e) to (j) from consideration in respect of varicocele "arising out of" the person's relevant service. The applicant is in the unfortunate position of not being able to prove the existence of either factors 5(a) or (d) at this point in time, as there is simply no documentation or proof available. Accordingly, the Tribunal cannot be satisfied that there is a reasonable hypothesis in accordance with the SoP, despite its conclusion that the varicocele arose out of his service.
In the alternative it could be said that the applicant's eligible service has a causative, instead of a consequential relationship to the varicocele thereby making it "attributable to" the eligible service. As the SoP is silent on "attributable" conditions, it is possible that factor 5(j) could be contemplated in such a situation.
It is difficult to envision a scenario whereby "arising out of" would not be satisfied but "attributable to" would, given the definitions extended to these terms in Law, but nevertheless, the Tribunal considers it appropriate to canvas 5(j) in this case for the sake of completeness. Even if it were to be said that the varicocele did not arise out of, or was not attributable to, the applicant's service, however instead falling under sub-section 9(1)(e) of the Act, the Tribunal considers that the applicant would still have difficulty satisfying the SoP.
The Tribunal accepts that the applicant was unable to obtain the appropriate clinical management, in that he was unable to avail himself of supportive underwear. In this regard the Tribunal prefers Mr Broderick's construction of "inability to obtain". This means that although available, because of the prevailing circumstances of his service, he was not able to wear appropriate underwear.
In order to satisfy sub-section 9(1)(e) of the Act, it is necessary that the hypothesis reasonably demonstrate that the eligible war service rendered after development of the varicocele materially contributed to, or aggravated the varicocele. Depending upon how the SoP is interpreted, it requires that it be demonstrable that either the inability to obtain clinical management aggravated, or materially contributed to, the varicocele, and/or that the eligible service after development of the varicocele materially contributed to, or aggravated the varicocele.
The Tribunal is not satisfied that either the inability to obtain appropriate clinical management or the applicant's eligible service after development of the varicocele materially contributed to, or aggravated the applicant's varicocele. On the applicant's own evidence, it has been much the same for the past thirty years. Once he had it, he had it, and neither the lack of underwear or the applicant's service after its development made it worse. The advice he gave himself (along with other veterans) was that it was simply something to be endured.
Whilst the inability to wear supportive underwear may have exacerbated the temporary symptoms felt by the applicant, this does not accord with the notion of "aggravation" as contemplated by the various authorities on this issue (see Repatriation Commission v Yates (1995) 21 AAR 331 at p339, Re Petty and Repatriation Commission (1990) 11 AAR 458 at p461-2, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at p629-630 and Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at p593) for it did not actually make the condition worse. The Tribunal has no evidence before it that the inability to wear underwear actually made the varicocele condition worse, as opposed to temporarily exacerbating the symptoms felt.
The Tribunal cannot be satisfied on either construction that there is a reasonable hypothesis which satisfies the SoP. Accordingly, the applicant cannot be said to have satisfied section 9 of the Act and the Tribunal so finds.
decision
For the reasons given and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review which decided that varicocele is not war-caused.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  10 April 2000
Date of Decision  3 May 2000
Counsel for the Applicant        Mr P. Broderick
Solicitor for the Applicant         Lempriere Abbott McLeod
Counsel for the Respondent    Mr G. Doube
Solicitor for the Respondent    DVA