Re Carroll and Repatriation Commission - [2000] AATA 180

DECISION AND REASONS FOR DECISION [2000] AATA 180

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1042

VETERANS' APPEALS DIVISION )

Re John R CARROLL
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date8 March 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgnd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS - chronic sinusitis and Meniere's disease - whether war-caused or defence caused diseases - whether material before the Tribunal raises or points to a hypothesis connecting the chronic sinusitis with the circumstances of service - whether inability to obtain appropriate clinical management for chronic sinusitis - whether reasonable hypothesis connecting Meniere's disease with the circumstances of relevant service - whether contribution to or aggravation of Meniere's disease due to inability to obtain appropriate clinical management - decision under review affirmed
PRACTICE AND PROCEDURE - comment on Statement of Principles for Meniere's disease
Veterans' Entitlements Act ss 9(1) (a) and (b), 120(1) (3) and (4)

Deledio v Repatriation Commission (1997) 47 ALD 261

Ferriday v Repatriation Commission (1996) 42 ALD 526

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Wellington [1999] FCA 1552

Repatriation v Cook (1998) 52 ALD 1

REASONS FOR DECISION

8 March 2000 Mrs Joan Dwyer, Senior Member

This is an application for review of a decision of the Repatriation Commission, made 30 September 1997, refusing Dr Carroll's claim to have chronic sinusitis and Meniere's disease accepted as war-caused or defence-caused diseases. The decision of the Repatriation Commission was affirmed by the Veterans' Review Board ("the VRB") on 31 July 1998.
Dr Carroll appeared and gave evidence. Evidence, by telephone, was also given on his behalf by Professor Franz, his treating ear, nose and throat surgeon. Ms Chant, an advocate with Department of Veterans' Affairs (DVA), 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 also a detailed submission with supporting references attached, which was lodged by Dr Carroll. The attached references are referred to as attachments throughout these reasons. During the hearing an issue arose as to the interpretation of a hand-written diagnosis on a daily medical record dated 8 August 1967 (T30 p124 and attachment 22). After the hearing the Tribunal received a letter from the Department of Veterans' Affairs dated 17 December 1999 advising that the diagnosis was "viraemia", and an addendum to his original submission from Dr Carroll dated 24 December 1999. The Tribunal has had regard to those documents.
Dr Carroll served with the Royal Australian Navy ("RAN") from 6 February 1962 to 19 August 1988. According to the Certificates of Service (attachment 4) Dr Carroll had continuous full-time service from 15 July 1966 to 13 March 1973. A letter from the Department of Defence dated 28 March 1989 (T docs pp38–39) states that Dr Carroll had two separate periods of Continuous Full-Time Service with an intervening period between 14 July 1968 and 12 March 1972. That discrepancy was not material to the issues before the Tribunal. It was agreed that the periods which are "eligible service", and also "operational service" as defined in the Veterans' Entitlements Act 1986 ("the Act"), consist of five voyages to Vung Tau Harbour in HMAS Sydney and HMAS Yarra over the following dates:
8 April 1967 to 22 April 1967  HMAS Sydney
28 April 1967 to 14 May 1967  HMAS Sydney
19 May 1967 to 14 June 1967  HMAS Sydney
22 December 1967 to 1 January 1968          HMAS Yarra
1 November 1972 to 30 November 1972      HMAS Sydney

One voyage to New Zealand, while serving in HMAS Sydney, from 7 December 1972 to 13 March 1973, is "defence service" within the meaning of that term in s 68(1)(a) of the Act.

It is conceded, as a result of the Minister's determination of 23 December 1997 (attachment 5), that Dr Carroll is to be taken to have been allotted for duty in an operational area and thus to have rendered operational service, within the meaning of that term in s 6 of the Act, during the specified periods of operational service while serving in HMAS Sydney and HMAS Yarra. In respect of the period of defence service in HMAS Sydney, on the voyage to New Zealand from 7 December 1972 to 13 March 1973, the entitlement to pension derives from s 70(1) of the Act which provides for payment of pension in respect of incapacity from a defence-caused disease. Because Dr Carroll did not serve during World War II, it is only the precise periods of operational service or defence service, as defined, which can be considered in determining whether or not a disease is war-caused or defence-caused.
Dr Carroll has the following diseases accepted as war-caused:
1.bilateral sensori-neural hearing loss with tinnitus
2.migraine headaches
3.duodenal ulcer

On 14 May 1997 he lodged a claim to have chronic sinusitis and Meniere's disease accepted as war-caused or defence-caused diseases (T17 pp85–90).

Dr Carroll and his treating doctor, Dr Tribe gave the following information in the claim form (T docs p87):
Disability 1 How did service cause this disability?   Details provided by Dr Carroll Upper Respiratory Infection Sinus Ship and environment damp unventilated, crowded, musty conditions           Details provided by Dr Tribe Left Maxillary sinus problem became worse in 1992 when Dr Les Caust, ENT specialist, did drainage operation. Still suffers symptoms frequently (See letters 1991 and 1993)
When did you first become aware of the disability?                   (emphasis added)
Disability 2 How did service cause this disability?Meniere's Disease As part of a triad of conditions Deafness/Tinnitus/Meniere's First 2 already accepted by D.V.A.          Meniere's confirmed by Dr B Franz (see letter dated 2/5/97 attached) (see also audiology results)
When did you first become aware of the disability?

Under s 14 of the Act a veteran is entitled to pension in respect of war-caused injury or disease. The circumstances in which an injury or disease is to be taken to be war-caused are set out in s 9 of the Act. Dr Carroll's written submission does not state on which paragraph of s 9 he relies, but it would appear that it must be s 9(1)(a), (b) or (e) which provide as follows:
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 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;

Section 7(1)(a) of the Act provides that a person who has rendered operational service shall be taken to have been rendering eligible service while rendering operational service.

The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provide as follows:
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.
Note:   This subsection is affected by section 120A.
(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.
Note:   This subsection is affected by section 120A.
Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. As Dr Carroll's claim in this matter was made on 14 May 1997, s 120A applies. Sub-section 120A(3) provides as follows:
(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 a determination of the Commission under subsection 180A (2);
(b). . .
that upholds the hypothesis.

Section 120A(4) makes provision for the situation where there is no Statement of Principles ("SoP") in respect of a particular disease. That is not relevant to this review.

The description of a defence-caused disease is contained in s 70(5). The standard of proof in respect of a defence-caused disease, where the relevant service was neither peace-keeping service nor hazardous service, is found in s 120(4) of the Act which provides:
(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.

Section 120B, to which reference is made in the notes to s 120(4), has a similar operation in respect of claims arising out of "defence service" to s 120A which applies to claims in respect of operational service.

There are in force SoPs in respect of both chronic sinusitis and Meniere's disease. In respect of chronic sinusitis they are Instrument No 211 of 1995, in respect of operational service, and Instrument 212 of 1995 in respect of defence service. In respect of Meniere's disease they are Instrument No 27 of 1997 and Instrument No 28 of 1997.
In approaching the Tribunal's task it is necessary to bear in mind the guidance given by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 and by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as to the application of SoPs. The Full Court, at p205, approved the following passage from the reasons of Heerey J, at p275:
The particular claim ... has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not an issue at this point. The hypothesis will not be reasonable if it is.
(i)contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)(since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant.
The Full court in Deledio at p206 set out the course which the Tribunal is to take where the reasonable hypothesis standard of proof applies and where there is a relevant SoP:
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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.        If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP 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. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Because Dr Carroll's claim was lodged after 1 June 1994, s 120A(3) of the Act must be applied in so far as Dr Carroll's claim relates to operational service, and s 120B(3) of the Act must be applied in respect of that part of the claim which relates to defence service. In substance, in relation to operational service, s 120A provides that the Tribunal is to be satisfied that there is a reasonable hypothesis only if there is in force a Statement of Principles ("SoP") determined under s 196B(2) or (11) that upholds the hypothesis. Similarly s 120B(3) of the Act provides that the Tribunal is to be reasonably satisfied that a disease contracted by a person was defence-caused, only if the material before the Commission raises a connection between the disease and some particular service rendered by the person and there is in force a SoP determined under s 196B(3) or (12) that upholds the contention that the disease is, on the balance of probabilities, connected with that service. The SoPs set out the factors that "must as a minumum exist before" the Tribunal can find the requisite connection with service.
Thus the Tribunal must look at the SoPs in respect of the conditions of chronic sinusitis and Meniere's disease. It may only find that those diseases are war-caused or defence-caused if the relevant SoPs uphold that hypothesis, or uphold the contention that the diseases are connected with service.
The presentation of Dr Carroll's case was very confusing. His careful and detailed submission contained a number of reports as to conditions of service in the RAN during the relevant period and also a number of references from medical texts as to the nature of and treatment of the relevant diseases. Dr Carroll also provided information as to his medical history subsequent to service. What the submission lacked was a statement from Dr Carroll as to his own experience during service and the onset of any symptoms during service which he believed to be attributable to either of the two relevant diseases.
Another complication was that there is no record of Dr Carroll suffering from either of the relevant diseases in the service medical records. When the Tribunal tried to clarify Dr Carroll's evidence a number of inconsistencies became apparent. Dr Carroll seems to have focussed on matters which he regarded as errors on the part of the VRB. Many of those matters are irrelevant as this is a "de novo" hearing. The Tribunal does not look for errors on the part of the VRB but makes a fresh decision on the material it receives. But Dr Carroll seems not to have realised that, as to one matter at least, the source on which the VRB relied was the original claim form which he had completed on 7 May 1997 (T docs pp87-90). In his submission (p11), Dr Carroll expressed concern that Dr Naidoo, a DVA doctor, had written of his sinusitis at (T docs p103) "the condition only manifested itself in 1980 some seven years post discharge". Dr Carroll seems to have forgotten that he himself had stated in his claim form that he first became aware of that condition in 1980. However it is clear from Dr Middleton's record of consultations (attachment 28) that Dr Carroll did suffer from sinus problems at least as far back as September 1975. Dr Carroll gave evidence that he suffered sinus problems from about 1965. He said that Dr Middleton's notes prior to 1975 had been destroyed, but if they had been available they would have shown that he had suffered from sinus problems prior to 1975. I find that Dr Carroll wrote 1980 on his claim form in error and was suffering from sinus problems at least from 1975.
chronic sinusitis
Dr Naidoo (T20 p103) decided that the diagnosis of the claimed condition "upper Respiratory Infection Sinus" was "Chronic Sinusitis".
The claim to have chronic sinusitis accepted as war-caused must be considered in relation to the relevant SoPs. Instrument 211 of 1995 is the SoP which sets out the circumstances in which it can be said that a reasonable hypothesis has been raised connecting chronic sinusitis with circumstances of service. The relevant factors are in the same terms in Instrument 212 of 1995, which sets out the factors that must exist before it can be said that on the balance of probabilities chronic sinusitis is connected with circumstances of service. In each SoP there are only three relevant factors. They are:
(a)suffering from acute sinusitis immediately before the clinical onset of chronic sinusitis; or
. . .
(f)suffering from acute sinusitis immediately before the clinical worsening of chronic sinusitis; or
. . .
(i)inability to obtain appropriate clinical management for chronic sinusitis.
The terms "acute sinusitis" and "chronic sinusitis" are defined in paragraph 4 of the chronic sinusitis SoPs as follows:
"acute sinusitis" means an inflammation of the paranasal sinuses lasting for three months or less, due to a viral, bacterial or fungal infection of the sinus, attracting ICD code 461;
"chronic sinusitis" means inflammation of the paranasal sinuses lasting for at least three months, of infectious (bacterial or fungal) or non-infectious aetiology, characterised by persistence of sinus-related symptoms and persistent radiographic evidence of structural damage to the sinus, attracting ICD code 473;

Those definitions are very difficult to apply when there is no record of sinus pain at any time during service, and when no X-rays of the sinus were taken during service. The evidence is that Dr Carroll does now have radiographic evidence of structural damage to the sinus. It was reported on 15 August 1991 (attachment 29). Thus he has chronic sinusitis as defined. But the SoP says nothing as to the characterisation of an inflammation which lasts for more than three months, where no X-ray has been performed. It would be inconsistent, with the "beneficial repatriation system" referred to by the Minister when introducing the Bill to allow for the system of SoPs (Hansard 9 June 1994, at 1808 as quoted by Heerey J in Deledio at p268), for such sinusitis to be neither acute sinusitis nor chronic sinusitis for the purposes of the Act.
Another difficulty in this matter arises from a form completed by Dr Tribe, who is Dr Carroll's treating doctor. Dr Tribe completed a medical report on a printed form on 30 September 1997 (T docs p104) . When asked, to give "Date of Onset" of "acute sinusitis" he wrote "20/10/92". It is clear, from attachment 28 that the date of onset of Dr Carroll's first attack of sinusitis was many years earlier than 1992. When asked to provide "Date of remission or cure (if appropriate)", Dr Tribe wrote "Since operation 28/6/1993 by Dr L Caust (radical antrostomy)".
Factor (a) in the chronic sinusitis SoPs, requires that there be material raising or pointing to Dr Carroll having suffered from acute sinusitis before the clinical onset or clinical worsening of chronic sinusitis. Because of the definitions of "acute sinusitis" and "chronic sinusitis", an attack of sinusitis or inflammation of the paranasal sinuses, lasting less than three months, or the first three months of chronic sinusisits can be characterised as "acute sinusitis". After that the condition is to be diagnosed as "chronic sinusitis". (subject to the issue as to radiographic evidence of structural damage to the sinus).
The Tribunal asked Dr Carroll, at trans. p17:
Now, what do you remember about your health problems, respiratory tract infection, sinusitis, migraine, nausea, vomiting, etcetera?

He replied

We would all go down on watch with handkerchiefs and sneeze our way through a four hour watch. Not only that, the Sydney wasn't the youngest ship in the fleet. She was built in 44, she was fairly old, and my part of the ship for maintenance work and what have you was usually in the heads and bathrooms, replacing washers and making sure that the toilets worked. I got a fair dose of everybody else's germs, I feel. I used to get terrible nauseating headaches. I sometimes thought I was being seasick but still turned to anyway.

Dr Carroll said that he had sinus pain predominantly in the left hand side. He added (trans. p18):

I virtually put up with it, mainly because we were very short handed and I didn't want to incur the wrath of the chief shipwright all that often. Seasick wasn't counted as an excuse for having time off.
MRS DWYER: Now, had you ever had these sort of symptoms before?
DR CARROLL: I'd had them when I was on Anzac in '65. I did spend a short period of time on Anzac as a supernumerary and I did experience that on Anzac.
MRS DWYER: When you say then and that, what symptoms are you talking about?
DR CARROLL: Well, the same symptoms as I've explained, that's the nausea, the sinus pain, the headaches.

Dr Carroll in his submission, at p5, wrote:
My first recollection of this problem being related to service was probably while serving aboard HMAS Anzac March/April 1965, and while still working aboard naval ships of various classes at times Naval Dockyard Williamstown soon after.
Neither the period while serving aboard HMAS Anzac in March and April 1965, nor that at the Naval Dockyard soon after, constitutes operational or eligible service. Nor are they defence service. It is necessary to consider the relevance of the evidence as to the onset of sinusitis in 1965. If sinusitis is acute for less than three months, and chronic if it continues longer than that, according to the definitions in the SoPs, and if Dr Carroll suffered fairly constant colds with sinus pain and headaches, then he may have developed chronic sinusitis possibly by late 1965. Alternatively he may have had various attacks of acute sinusitis all of less than three months in 1965 and then no more until he was posted to HMAS Sydney which according to the service records was from 20 February to 18 June 1967 (T docs p41).
I have noticed that the chronic and acute sinusitis SoPs all require that the relevant factor from paragraph 1 be related to any service rendered by the person. There is material raising or pointing to Dr Carroll having suffered acute sinusitis during any service rendered by him, even though his service "aboard HMAS Anzac March/April 1965 and while working aboard naval ships at . . Naval Dockyard Williamstown soon after" was neither operational nor defence service. It is only operational or defence service which is relevant to Dr Carroll's claim to have chronic sinusitis and Meniere's disease accepted as war-caused or defence caused diseases. SoPs more commonly refer to a factor being related to "relevant" service (see the SoPs in respect of Meniere's disease, Instruments 27 and 28 of 1997).
I have concluded that the different drafting style is not of any assistance to Dr Carroll. It does not allow me to take account of acute sinusitis suffered during the posting to HMAS Anzac. The Act does not provide for pension for all service related diseases. It only provides for pension in respect of war-caused disease (s 19(3)) or in respect of defence-caused diseases (s 70). The circumstances in which a disease is to be taken to be war-caused or defence-caused are set out in ss 9 and 70. Disease which does not fall within those legislative provisions can not be made pensionable simply by a somewhat imprecise use of language in a SoP. In fact s 196B(2) and (3) provide the legislative framework and authority for the SoPs. They may only apply in relation to specified forms of service which include operational and eligible and defence service. That limitation is recognised in paragraph 1 of the chronic and acute sinusitis SoPs. I am satisfied that the use of the term "any service" in paragraph 2 of each of the four sinusitis SoPs cannot widen the range of relevant service. Thus it is only acute sinusitis during operational, eligible or defence service which is relevant to this application for review. Dr Carroll's relevant service did not commence until 8 April 1967 and continued almost uninterrupted until 14 June 1967 and then recommenced on 22 December 1967 until 1 January 1968. There was a further one month in November 1972 and then approximately three months of defence service from 7 December 1972 to 13 March 1973. Thus the sinusitis in 1965 does not help Dr Carroll establish that his chronic sinusitis is war-caused or defence-caused.
Dr Carroll gave evidence that he also suffered sinusitis in association with head colds from the time he was posted to HMAS Sydney on 20 February 1967. He attached to his submission extracts from a number of reports of naval surgeons and Captains of ships confirming that upper respiratory tract infections were a recognised occupational hazard of service in HMAS Sydney and similar ships.
Surgeon Commander Haughton in April 1966 reported in respect of HMAS Melbourne. He discussed the spread of a virus infection in the ship which he attributed to partial recirculation of refrigerated air in office compartments. He wrote (T docs p113):
Upper respiratory tract infections are one of the occupational hazards of service in air-conditioned ships. This fact is supported by the experience of Medical Officers in such ships in H.M.A. Fleet, especially in Perth.

Surgeon Commander Haughton also commented on the confined living space in hot, poorly ventilated Mess Decks (T docs p113-114):

For a bacterial or viral infection to assume epidemic proportions within the community of a ship there must be sufficient susceptible individuals. Normal, healthy individuals may have their resistance to disease lowered by bad living conditions. That this is the case in Melbourne there is no doubt. In the period between Singapore and Hong Kong, long hours were worked in hot, humid conditions with poor facilities for adequate rest and sleep. Particularly in the case of Machinery Space watch-keepers who have the worst working conditions in the ship.

Dr Carroll gave evidence that those comments would apply just as well to his service in HMAS Sydney.

Dr Carroll, in his written submission also referred to a June 1964 report on HMAS Sydney by Captain Stevenson (attachment 14) which raised similar concerns about health in a crowded ship with poor ventilation. Captain Stevenson described a high incidence of infectious diseases which he attributed to, "the hot humid crowded conditions of the mess decks": Similarly, in October 1971 Captain Scrivener reported on HMAS Sydney (attachment 16), "a large number of persons reported with upper respiratory tract infections . . .".
Dr Carroll in his submission also referred to a publication "Medicine at War", (1994) Vol 3, of the Official History of Australia's Involvement in South East Asian Conflicts 1948-1975 (attachment 20) which stated:
From a medical viewpoint, the crowding and lack of ventilation in living areas contributed to the rapid spread of upper respiratory tract infections, most of the ships' MO's reporting outbreaks and recurrences of these illnesses.
I find that upper respiratory tract infections were common among men serving in ships such as HMAS Sydney and HMAS Yarra. From the fact that Dr Carroll did not attach to his submission any reports as to conditions in HMAS Sydney during his periods of operational or defence service, I conclude there is no material raising the hypothesis that upper respiratory infections were unusually prevalent during those periods of service. Nonetheless they could well have been common and I accept Dr Carroll's evidence that he suffered such infections during his service.
The Tribunal endeavoured to assist Dr Carroll in the giving of evidence as to the development and pattern of his sinusitis during service, however his evidence was confusing. At trans. p5 the Tribunal in preliminary discussion raised the issue of when Dr Carroll "started to suffer from chronic sinusitis". He replied:
I can probably answer that fairly well straightaway. I had been posted from Sydney onto Yarra by helicopter and I had been on that ship for about a week and I was turned into the sick bay for two days.
That incident is documented in the records (attach 22 and T docs p124) as having occurred on 8 August 1967. Thus it is much later than the service aboard HMAS Anzac in March/April 1965 and also after much of the service in HMAS Sydney. It is not during a period of operational or eligible service. An additional difficulty is that the medical record by Surgeon Lieutenant Barker does not refer to sinusitis. It notes a one day history of "coryzal symptoms". According to Black's Medical Dictionary 39th edition , G Macpherson (ed) A & C Black Ltd, London (1999), "CORYZA" is the technical name for a cold. The Daily Medical Record reads as follows:
DIAGNOSIS
Viraemia
Physical Examination, Symptoms and Treatment
A history of Coryzal, symptoms with onset of muscular aches yesterday
o/e Throat – N.A.D.
Nasal passages – mildly congested
Chest – clinically clear.

The record notes that three medicines were prescribed.

Dr Carroll in his Addendum to Original Submission dated 24 December 1999 claimed that the prescriptions noted on the Daily Medical Record (T30, p124 and attachment 2) were consistent with him suffering sinusitis on 8 August 1997. He wrote:
Medication given at the time as a result of this diagnosis by Surgeon Lieutenant Barker, consisted of the following:
'Neosynephrine Nasal Drops' – (Phenylephrine)
'Aspirin' – (Acetylsalicyclic Acid) – Action with Phenylephrine
'Hibitane Lozenges' – (Chlorohexidine) – 'Nasalate' (with Phenylephrine) (emphasis added)

It is clear from looking at the Daily Medical Record that the passage quoted above from Dr Carroll's Addendum contains both transcription of the medicines prescribed, which I have emphasised, and Dr Carroll's comments on those medications.
Dr Carroll wrote:

With reference to the British Medical Association publication, 'New Guide to Medicine & Drugs' (1997) Phenylephrine is described as: 'One of the most common nasal decongestants and is included in a variety of topical preparations to relieve the symptoms of hay fever and head colds.' (p.364)
With reference to the publication, 'The Australian Drug Guide' (3rd Ed.) (1995) Phenylephrine is described as being one of a group of recommended 'Vasoconstrictors': 'Used for their ability to constrict local blood vessels and so partly relieve congestion and watery discharge from the nose and respiratory tract in colds, hay fever, sinusitis or flu, usually combined with simple analgesics, ---.' (p.555)

That material raises a hypothesis that Dr Carroll may have been suffering from sinusitis on 8 August 1967 even though it was not noted by surgeon Lieutenant Baker. But even if the material is accepted as raising that possibility, it is difficult to see how it assists Dr Carroll in satisfying the requirements of the relevant SoPs.
Dr Carroll claimed in his submission at p24:
This Applicant firmly believes that he meets the criterion of factors 1(a), 1(f), and 1(j) of the Statement of Principles, Instrument No. 211 of 1995 dealing with Chronic Sinusitis. In that he was, due to service:
(a)suffering from acute sinusitis immediately before the clinical onset of chronic sinusitis; and,
(f)suffering from acute sinusitis immediately before the clinical worsening of chronic sinusitis; and,
(j)unable to obtain appropriate clinical management for chronic sinusitis.
This Applicant also firmly believes that he has suffered from Acute Sinusitis whilst on service and that he meets the criterion of factors 1(a) and 1(f) of the Statement of Principles, Instrument No. 209 of 1995 dealing with Acute Sinusitis. In that he was, due to service:
(a)suffering from viral respiratory tract infection immediately before the clinical onset of acute sinusitis; and,
(f)unable to obtain appropriate clinical management for the acute sinusitis.
This Applicant also firmly believes that he suffered many episodes of viral upper respiratory tract infections that steadily worsened during service.
However, Dr Carroll did not address the issue of the history or chronology of his sinusitis, although that seems to be what the SoPs require, at least so far as is possible on the records available.
There are no medical records showing that Dr Carroll suffered from sinusitis during service. He said that not all occasions when a sailor reported to sick bay were recorded. He pointed out, at p5 of his submission, that the Fleet Medical Officer, Commander Haughten, had written in a report in April 1966 (attachment 11) paragraph 1 "Records of daily attendance without admission are not kept".
In order to try and identify when Dr Carroll may have suffered from either acute sinusitis or chronic sinusitis, the Tribunal asked him whether he had reported his sinus problem to a sick bay attendant or doctor. He replied (trans. p19):
The Petty Officer Sick Berth Attendant used to live in our mess and he would provide us with a bowl of Panadol and the Panadol would sit on the mess table and you took them whenever you wanted to in preference to going down and seeing the doctor, even if you did go down to the sick bay you very rarely got to see the doctor. The SBA would say, yes, you've got this headache again or sinus pain again. He'd just give you a couple of Panadol and send you on your way.
In spite of that evidence Dr Carroll in his submission, at p2, provided a list of unrecorded sick bay attendances (submission p2) which included attendances in HMAS Sydney in April, May and June 1967 reporting "Headaches, cold symptoms, sinusitis". He also referred to a sick bay attendance in HMAS Yarra reporting "Cold symptoms, sinusitis" over a period which included operational service.
Dr Carroll did not explain, when asked by the Tribunal, how he remembered details of unrecorded sick bay attendances over 30 years ago. But the material before the Tribunal does include his evidence that during periods of operational and defence service he did attend sick bay, reporting sinusitis, as set out in his submission and confirmed by him in evidence. The question therefore is whether that material raises a reasonable hypothesis which is consistent with the template in the relevant SoPs.
The material set out by Dr Carroll as to attendances at sick bay in HMAS Sydney reporting "headaches, cold symptoms, sinusitis" does raise the hypothesis that from some time in April 1967 (the commencement of his operational service) Dr Carroll suffered from acute sinusitis which he also suffered in May and June, until the end of his 1967 operational service in HMAS Sydney. The operational service ceased on 14 June 1967. His evidence that he had sinusitis on 8 August 1967, even though it is not noted on the Daily Medical Record, could be consistent with acute sinusitis having lasted close to three months if it commenced shortly after the operational service began and continued throughout that service, but it does not raise or point to the clinical onset of chronic sinusitis during relevant service. That raises one problem for Dr Carroll. The lack of persistent, or indeed any, radiographic evidence of structural damage to the sinus is another difficulty.
As set out in paragraph 13 of these reasons, the Full Court in Deledio at p206 set out the steps the Tribunal must take in a matter such as this. The first step is 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. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
The material before the Tribunal does point to a hypothesis of Dr Carroll suffering colds with sinusitis during his naval service from 1965 to 1973 and the sinusitis continuing after his full-time naval service ceased.
As already discussed there are SoPs in force in respect of chronic sinusitis. Step 3 as explained by the Full Court is as follows:
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. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
The SoPs in respect of chronic sinusitis contain three possibly relevant factors. The hypothesis raised by the evidence and submission of Dr Carroll does not fit either factor (a) or factor (b) in the "template" to be found in the SoP. The material does not raise any hypothesis of a particular period of acute sinusitis during relevant service "immediately before" the clinical onset or clinical worsening of chronic sinusitis. Thus the hypothesis set out in paragraph 46 must be deemed not to be "reasonable".
Dr Carroll also relied on a secondary hypothesis in regard to his chronic sinusitis. In his submission he set out passages from medical texts, which he submitted raised a hypothesis based on factor (j) "inability to obtain appropriate clinical management for chronic sinusitis".

The material on which Dr Carroll relied included an extract from the British Medical Association, Complete Family Health Encylopedia (1995) attachment 27. It states as to sinusitis:
The disorder is usually the result of a bacterial infection that develops as a complication of a viral infection such as the common cold.

It also suggests under the heading Diagnosis and Treatment:

Antibiotic drugs are given immediately to combat the infection.

However that is not the universal view. Tanowitz H and Miller MH, Bacterial Sinusitis 1994 (attachment 30), says as to treatment:

In many patients, symptoms of sinusitis resolve without medical therapy.
Nevertheless medical therapy directed at promoting drainage, and antibacterial agents, are often indicated.

Marshall S, "Ear Nose and Throat Nursing" (1967) (attachment 35), was published during one of the relevant periods of service. It does include a recommendation of surgical treatment for chronic sinusitis in certain circumstances.

Dr Carroll, in support of the submission that factor (j) was raised by the material before the Tribunal, argued that appropriate clinical management for his chronic sinusitis during service from 1967 to 1973 would have been the treatment performed by Dr Caust in 1992, that is to say a drainage operation. There is no material supporting that claim. The medical records of Dr Middleton (attachment 28), show attendances for sinusitis from at least 1975 onwards (Dr Middleton's earlier records were not available). Yet it seems to have taken 15 years of clinical management before Dr Middleton or Dr Tribe referred Dr Carroll to Mr Caust, an ENT specialist, in 1991, and another year before a drainage operation was performed in 1992. There is no material pointing to appropriate clinical management having been a drainage procedure prior to 13 March 1973, when the last relevant period of service ended.
Although the extracts provided by Dr Carroll (attachments 27, 30 and 35) describe the treatment of acute and chronic sinusitis, there is no material before the Tribunal suggesting that at any stage during Dr Carroll's service it would have been appropriate for any particular clinical treatment to be administered for management of chronic sinusitis. Dr Carroll at p2 of his written submission stated that from July 1967, which was not a time when Dr Carroll was rendering operational service, he was given "analgesics and nasal sprays". There is no material suggesting that treatment would have been appropriate earlier, or that other treatment would have been more appropriate at that time. There is material establishing that after his service, when Dr Carroll was attending Dr Middleton because of his sinusitis (attachment 28), antibiotics were prescribed on five occasions between 9 September 1975 and 29 May 1991, when Dr Tribe referred Dr Carroll to Mr Caust. That material does not however raise a hypothesis that such antibiotics or referral would have been appropriate clinical management at any time during service.
Dr Carroll was referred to two ENT (attachment 66) surgeons during service. He saw Mr Freeman on 10 May 1966, approximately one year before his first period of operational service, and, on his evidence, one year after the onset of his sinusitis problems in April/May 1965. He saw Mr Szasz on 25 September 1972 (attachment 57) shortly before his period of defence service. Both attendances appear to have been in respect of hearing loss, but if sinusitis was a problem there would appear to be no reason why it could not have been mentioned to those specialists.
I am unable to find that the material before the Tribunal raises or points to a hypothesis connecting "chronic sinusitis with the circumstances of [Dr Carroll's] service", which fits any of the templates contained in the relevant SoPs. Thus I find that the material does not raise a "reasonable hypothesis" and the claim to have chronic sinusitis accepted as a war-caused or defence-caused disease within the meaning of those terms in the Act must fail.
meniere's disease
Dr Carroll gave evidence that from the time when he started to suffer from colds and sinusitis while serving in HMAS Anzac, he used to get terrible headaches with vomiting, which were attributed to sea sickness, as well as sinus pain on the left hand side. He said those are the same symptoms that have now been diagnosed as Meniere's disease. Ms Chant asked him when the migraines had begun. He replied (trans. p43):
As long as I can remember

When the Tribunal attempted to clarify whether Dr Carroll meant as far back as childhood, he said that he had had migraine headaches "From very early days in the shipyards". He then specified the late 50's and early 60's as the relevant period.

The SoPs in respect of Meniere's disease, Instruments No 27 and 28 of 1997 contain only one factor which may be considered in deciding whether there is a reasonable hypothesis, or whether the evidence supports the view that it is more probable than not, that there is a connection between Meniere's disease and "relevant service". Relevant service is defined in each SoP so as to refer to the form of service to which that SoP relates. The only factor in each SoP is paragraph 5(a) which is as follows:
(ii)The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Meniere's disease or death from Meniere's disease with the circumstances of a person's relevant service is:
(a)inability to obtain appropriate clinical management for Meniere's disease.

Paragraph 6 of the operational service SoP provides:

6.Paragraph 5(a) applies only to material contribution to, or aggravation of, Meniere's disease where the person's Meniere's disease was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) or 70(5A)(d) of the Act refers.

The equivalent paragraph in the SoP which applies to defence service does not make reference to paragraph 70(5A)(d).

Of the legislative provisions specified in paragraph 6 of the SoP, paragraphs 9(1)(e) and 70(5)(d) are those which are relevant to this review. They contain a requirement that a disease to which the paragraph applies be contributed to or aggravated by eligible war service. As the only factor recognised by the SoPs is inability to obtain appropriate clinical management for Meniere's'disease, what is required is contribution to or aggravation of the disease resulting from the inability to obtain appropriate clinical management. The relevant paragraphs provide:
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:
. . .
(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;
70 Eligibility for pension under this Part
. . .
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
. . .
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of 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 defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
. . .
For Dr Carroll to succeed in establishing that his Meniere's disease is a war-caused or defence-caused disease, there would need to be material raising the hypothesis that he suffered Meniere's disease during relevant service and that he was unable to obtain appropriate clinical management for that disease during that relevant service. In addition there would need to be material raising the hypothesis that the inability to obtain appropriate clinical management contributed to or aggravated the disease. Dr Carroll expressed the opinion that the headaches and nausea, which were attributed to sea sickness during service, and which he said he had continued to suffer since, were early symptoms of his Meniere's disease.
Dr Carroll also pointed to the fact that one outpatient record before the Tribunal (attachment 57) does show that on 25 September 1972, Mr Szasz, an ENT specialist, examined him and prescribed a medication known as Serc. The record reads:
Complains of constant tinnitus left ear 'like riveter' for 8 years. Has headaches over left eye and in left side of neck below ear intermittently for 3 years
SUGGEST
(1)hearing conservation programme
(2)try Serc 4mg tds for 4 weeks review in three months.

Dr Carroll relied on Dr Tribe's letter of 3 April 1998 (attachment 53 and T28 p118) stating "The only medical indication for using Serc is for Meniere's disease" Dr Carroll produced a reference in Shepherd L and Hawkridge A, Tinnitus Learning to Live With It (1987) p.70, (attachment 52), supporting that opinion. It states "Serc has not been found of help in other [i.e. not due to Meniere's disease] forms of tinnitus". Similar views were expressed in attachments 51 and 53.

Professor Franz did not agree with Dr Tribe that Serc is only prescribed in cases of Meniere's disease. He said at trans. pp52–53:
You can use it for the treatment of tinnitus; you can use it for the treatment of hearing loss. And also you can use it – you use it – actually it is a medication to improve the circulation of the inner ear and any condition that gives you the impression there might be a benefit to increase the circulation of the inner ear you give Serc. And certainly a typical situation would be for Meniere's disease, but it would also . . . . in vertigo, or it would be for a sudden hearing loss. It would be for a noise induced hearing loss as well. So there are various conditions for which you can use Serc.

However Professor Franz said that if Serc was prescribed during service, the doctor prescribing it probably suspected Meniere's disease coming on at that stage.

The diagnosis of Meniere's disease was not made until 2 May 1997 when it was diagnosed by Professor Franz as "early Meniere's disease." Professor Franz on 2 May 1997 (T docs p93) wrote to Dr Tribe stating that the clinical and audiological findings were consistent with a noise induced hearing loss and early stages of Meniere's disease affecting the left ear. The history given in the report indicates that Dr Carroll had reported to Professor Franz that he had recently felt giddy and nauseated with hissing noises in the left ear. He had not reported having had those symptoms since service, but only in more recent times.
Further, a report from Mr Caust to Dr Middleton, dated 19 April 1994, (T docs p97) contains the comment, "Apparently he does suffer from tinnitus also, but vertigo is not a feature of the disability." Dr Caust said that Dr Carroll's bilateral sensori neural hearing loss was typical of loss caused by noise exposure.
Both those medical opinions suggest that the clinical onset of Meniere's disease is recent and after all relevant service had ceased. In his evidence, Professor Franz confirmed that in his opinion Dr Carroll had "the early stages" of Meniere's disease in April 1997. Part of the history which he obtained from Dr Carroll described the balance problem as being more recent than problems of giddiness and hissing noises. Professor Franz said that it was his understanding that Dr Carroll did not suffer from typical classical Meniere's disease but rather from secondary Meniere's disease which he described a "a condition that gradually develops" (trans. p49). He said it was his view that cases of secondary Meniere's disease are frequently associated with problems of the upper cervical spine. Professor Franz was of the opinion that Dr Carroll had "a functional disorder of the upper cervical spine which was suited to eventually develop into Meniere's disease" (trans. p49, emphasis added). He said the fact that the insertion of a ventilation tube into the ear had made Dr Carroll feel better could be regarded as proof that "this is a typical case of secondary Meniere's disease developing as the basis of a neck problem" (trans. p49).
The incident in the history to which Dr Franz referred as causing the "functional disorder of the upper cervical spine" was apparently an incident which occurred on 13 November 1972 while Dr Carroll was serving in HMAS Sydney during a period of operational service. The Daily Medical Record (T docs p48) shows that Dr Carroll attended with tension headache of traumatic origin, complaining of headache after a blow with a brake handle from the capstan. However the SoP does not recognise head or neck injury as a relevant factor.
It is interesting that the head injury occurred after 25 September 1972, which is the date when Mr Szasz prescribed Serc. If that prescription indicates that Dr Carroll might have had early Meniere's disease in 1972, Professor Franz's suggestion as to the causation of the condition is not relevant. If Professor Franz is correct in diagnosing early secondary Meniere's disease in 1997, the prescription of Serc is not relevant.
There is conflicting evidence as to whether Dr Carroll suffered Meniere's disease during operational or defence service. The only material raising or pointing to that hypothesis is the evidence that Serc was prescribed in September 1972. That was not during a period of operational or defence service. In fact it was almost five years after Dr Carroll's most recent period of operational service. It was however shortly before periods of operational and defence service. If Dr Carroll suffered from Meniere's disease in September 1972, the material raises the hypothesis that he would also have suffered from that disease between November 1972 and March 1973.
In Repatriation v Cook (1998) 52 ALD 1, the Full Court of the Federal Court held that the issue whether a disease exists, even in a reasonable hypothesis case, is to be decided to the reasonable satisfaction standard. Their Honours quoted with approval from the decision of Lee J in Ferriday v Repatriation Commission (1996) 42 ALD 526 at 533 where his Honour said:
Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s120(1) are facts to be established to the reasonable satisfaction of the Commission. (emphasis added)
There is no doubt or challenge about the fact that Dr Carroll now suffers from Meniere's disease as diagnosed by Professor Franz in April 1997. There is however a real question as to whether he suffered from Meniere's disease during his relevant operational or defence service which is "part of the question of causal connection" between the disease from which he now suffers and service. Dr Carroll needs to have been suffering from Meniere's disease during "relevant" service, in order for the material to raise the only hypothesis capable of being deemed "a reasonable hypothesis" under the SoPs, namely "inability to obtain appropriate clinical management for Meniere's disease".
The authorities are clear that at the stage of considering whether or not a reasonable hypothesis is raised, "no question of fact finding arises". (Repatriation Commission v Deledio p206). The comments of the Full Court in Cook [see paragraph 67] apply only to "[f]acts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120(1)" (emphasis added).In this matter there is no issue about the fact that Dr Carroll does now suffer from Meniere's disease. Whether he suffered from that disease during relevant service is part of the question of causal connection between the condition and service. Thus for the purpose of deciding whether or not a reasonable hypothesis is raised, I must accept that the material raises a hypothesis that Dr Carroll may have suffered from Meniere's disease during relevant service. He may have been suffering from that disease during periods of operational and defence service before and after 25 September 1972 when Serc was prescribed.
The next issue is whether there is also material before the Tribunal raising the hypothesis that Dr Carroll was unable to obtain appropriate clinical management for Meniere's disease during relevant service. Dr Carroll relied on two matters. The first was the outpatient record (T docs pp59–60) of an attendance upon Mr Freeman, a consultant ENT specialist, on 10 April 1966. Mr Freeman wrote:
There is a sharp loss at 4000cps. – left ear with slight similar change in right ear. These defects are consistent with damage to the inner ear – almost certainly the consequence of rifle shooting.
Strictly speaking, he does not conform with standard two in the left ear, but as he has been serving for some time with the RANR and wishes to transfer to the R.A.N., perhaps he can be accepted for his branch with this hearing defect.
I suggest referring this matter to the M.D.G. for approval and he should wear ear defenders whenever he is exposed to loud noise.
He should also have an annual audiogram. (emphasis added)
It seems that there was no description of symptoms of Meniere's disease given to Dr Freeman. It was Dr Carroll's evidence that he was not provided with ear defenders and that he did not have annual audiograms from 1966 as recommended by Mr Freeman. He does have bilateral sensori neural hearing loss with tinnitus accepted as war-caused. That is in accordance with Mr Freeman's opinion that it was almost certainly the consequence of rifle shooting.
The question for the Tribunal is whether the failure to provide ear defenders and annual audiograms raises or points to an inability to obtain appropriate medical treatment for Meniere's disease. Dr Carroll in his submission referred to Polson L, (ed) Understanding Meniere's Disease 1997 (attachment 42) which states:
The symptoms of Meniere's disease are similar to those of other conditions and this book emphasises the importance of obtaining a correct diagnosis as early as possible to minimise the impact on hearing and vestibular function, and obtain control of symptoms.
Dr Carroll pointed out in his submission that fluctuating hearing loss is recognised as a symptom of Meniere's disease, and that the few audiograms which he did have during service do indeed show fluctuation, rather than cumulative hearing loss as would be expected as a result of noise exposure. He set out his audiogram results at page 19 of his submission:
Audiogram Results 27 08 1964 – 6.5% loss
Audiogram Results 10 05 1966 – 4.3% loss
Audiogram Results 29 02 1972 – 8.5% loss
Audiogram Results 06 07 1972 – 20.6% loss
Audiogram Results 12 09 1972 – 14.9% loss

Dr Carroll also claimed that a low salt or salt free diet is appropriate clinical management for Meniere's disease and that he was not given a low salt diet during service, and during service in the tropics he was required to take salt tablets. Professor Franz gave evidence that a high salt diet is a factor which can cause or contribute to the development of Meniere's disease. The publication by the Victorian Deaf Society (T29 p119–120) sets out several factors linked with Meniere's disease one of which is a high salt intake. The treatment recommended in that document is bed rest and an injection of Stematil, together with dietary measures involving reducing cholesterol, reducing fluid intake, ceasing alcohol and ceasing the eating of salt. The publication states: "A salt-free diet is most important, as salt increases fluid retention." Other suggested treatments are diuretics, vasodilators such as Serc, balance mechanism suppressors e.g. Stematil, antihistamines and tranquillisers e.g. Valium.
None of the recommended treatments other than the one prescription of Serc were given to Dr Carroll during his service. That is hardly surprising as it seems from the medical records that he did not complain of symptoms such as to lead to a diagnosis of Meniere's disease, even when he saw the three ENT Surgeons Mr Freeman in 1966, Mr Szasz in 1972 and Mr Caust in 1991. However the material before the Tribunal does raise a hypothesis of Meniere's disease at the time of and during operational and defence service after the prescription of Serc, and of an inability to obtain appropriate clinical management of Meniere's disease, in that there were no steps taken to measure hearing loss, or to protect Dr Carroll from further hearing loss and he was expected to take salt tablets when in the tropics.
The problem for Dr Carroll is that there is no material raising or pointing to the hypothetical inability to obtain appropriate clinical management making any contribution to or playing a part in any aggravation of Meniere's disease. If Dr Carroll had that disease in 1972, it seems not to have progressed at all until the late 1990's in that it was diagnosed as "early stages" of the disease by Professor Franz in 1997. There is no evidence of any contribution or aggravation as required by s 9(1)(e) of the Act.
In Repatriation Commission v Wellington [1999] FCA 1552, Marshall J considered the requirements of s 9(1)(e) of the Act. Paragraph 3(b) of the SoP in respect of diverticular disease of the colon, which was in issue in that matter, was in similar terms to paragraph 6 of the relevant SoPs in this matter.
The Repatriation Commission in Wellington contended that the Tribunal had erred in law by failing to have regard to paragraph 3(b) of the SoP which required it to consider whether the disease was "contributed to in a material degree" or "aggravated by, any eligible war service rendered after the veteran suffered that injury or contracted that disease."
On appeal, Marshall J, at paragraphs 18 and 19, said that the submission made on behalf of the veteran, that the disease was contributed to by service, because service was "the absolute cause" of the disease, missed the point. His Honour explained "the disease must first become apparent during war service and then that war service must contribute to the disease, in effect its progress, in a material way." He concluded that there was no evidence upon which the AAT could find that service had aggravated the disease or contributed to it in a material way, after it had been contracted. Similarly there is no material in this matter raising or pointing to any aggravation of Meniere's disease, if it was already in existence during service, by reason of the inability to obtain appropriate clinical management during subsequent service. The claim to have Meniere's disease accepted as a war-caused disease must fail.
There is however one matter arising from the material before the Tribunal as to which it is appropriate for some comment to be made. Professor Franz's evidence as to the development of secondary Meniere's disease leads to the conclusion that an injury to the head or neck can be linked with the development of Meniere's disease. That evidence is supported by a document attached by Dr Carroll to his submission which is an extract from an article on Secondary Meniere's disease by Liard and others. It states that a particular otologic insult to the ear can develop into full Meniere's symptomatology six months to 29 years after the initial otologic or systemic lesion. Similarly, the publication of the Victorian Deaf Society on Meniere's disease (attachment 54), also refers to a head injury severe enough to cause concussion as one of the factors linked with Meniere's disease.
Thus there is medical material suggesting that Meniere's disease may be linked with head injury. That hypothesis cannot be found to be reasonable as the SoPs for Meniere's disease do not include head injury as a factor, or indeed any factor at all, as capable of raising of a reasonable hypothesis linking the contraction or development of Meniere's disease with service. Perhaps Dr Carroll or one of the Ex-Servicemen's Associations may decide to request a review by the Repatriation Medical Authority under s 196E of the Act of the SoPs for Meniere's disease.
The decision under review will be affirmed.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dwyer
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  17 November 1999
Date of Decision  8 March 2000
Counsel for the Applicant        Nil
Solicitor for the Applicant         Self Represented
Counsel for the Respondent    Nil
Solicitor for the Respondent    Nil
Departmental Advocate           Ms T Chant