Re Millen and Repatriation Commission
[2000] AATA 508
•23 June 2000
DECISION AND REASONS FOR DECISION [2000] AATA 508
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/805
GENERAL ADMINISTRATIVE DIVISION )
Re PETER TERRY MILLEN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr B.J. McMahon (Deputy President) Dr M.E.C. Thorpe (Member)
Date23 June 2000
PlaceSydney
Decision The decision under review is affirmed.
..............................................
BJ McMahon
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – disability pension – whether asthma should be accepted as disability – whether asthma war cause.
Veterans' Entitlements Act 1986
REASONS FOR DECISION
Mr B.J. McMahon (Deputy President) Dr M.E.C. Thorpe (Member)
The applicant lodged a claim for a disability pension and medical treatment in relation to a condition which was described as "breathing problems". This was diagnosed by Dr Jongbloed, the applicant's general practitioner, as chronic obstructive airways disease and asthma. Dr Jongbloed and a medical legal specialist, Dr Gianoutsos, are the only medical practitioners to diagnose the presence of asthma in the applicant. The claim (among others) was refused by the Commission and that refusal was affirmed by the Veterans' Review Board. As a result of the acceptance of other disabilities, the applicant's pension has currently been assessed at 40% of the general rate. He now seeks a review of the Commission's decision rejecting the claim described above.
The respondent agrees that the applicant suffers from a chronic airflow limitation but contends that it is not service related, in accordance with the relevant Statement of Principles. The applicant rejects this diagnosis.
He contends that he suffers from asthma, that he has always suffered from asthma, that he has received inappropriate clinical management for that disease and that it is service related within the meaning of the relevant Statement of Principles. Put shortly, the applicant's case depends upon acceptance of asthma or not.
The applicant served in the Royal Australian Navy from 21 September 1967 to 20 September 1979. During that time he had some eligible war service (including a 24 hour period in South Vietnam). The remainder of his term constituted defence service.
As a boy he had no respiratory problems before joining the Navy at the age of 22. His entry medical examination indicates an absence of any relevant symptoms. In answer to the specific question whether he had ever had asthma, he responded in the negative.
After doing his basic service training in 1967, he was sent for a short period on H.M.A.S. Anzac to Vietnam. He then transferred to H.M.A.S. Cerberus, where he trained as a Navy medic for 9 months. Having completed that training, he then went to H.M.A.S. Leeuwin, where he served for a further two years, carrying out general nursing duties.
In October 1971, he decided to take up the specialty of underwater medicine and was posted to H.M.A.S. Penguin at Balmoral in order to undertake the course. Prior to commencing his duties, he underwent a large chest x-ray on 21 October 1971 which produced normal results.
As part of his duties, it was necessary to complete a diving course. This was carried out in shallow water up to 60 feet in depth around Sydney Harbour. Mr Millen remembers his first dive. He was keen but nervous. He was not aware, however, of any adverse physical symptoms. He was instructed in both types of diving – with oxygen supplied by way of tanks or by way of hose. He gave evidence that he remembered enjoying diving for the first three years, despite a problem which he encountered even in the early days.
This arose from the fact that he has a small face. At that time, there was only one size for diving masks. He experienced problems in obtaining a snug fit. Consequently, water continually entered the mask. In common with all others who experienced similar problems, he was taught how to expel that water. This involved breathing oxygen through his nose. We were later told in evidence that the effect of mixing oxygen with seawater in those circumstances could be to aerate or nebulise the mixture into a gaseous substance which could be inhaled.
The course lasted for three months. Thereafter, he undertook an underwater medicine course for a further 6 months. During this time, he was taught treatment for decompression and worked in an appropriate chamber. It was still necessary to keep up his diving hours and to dive regularly each month. He did not experience any difficulties except for the usual problems with his face mask.
When the course was finished he was sent to H.M.A.S. Waterhen. There, he was the sole medical backup for a diving team which travelled widely carrying out various diving jobs. In 1972 and 1973, he was sent with this group to various jobs around Australia and also to other countries. In Papua New Guinea, the team was given the task of exploding ordnance left over from World War 2. During these trips, the applicant did some diving, but not as much as members of the team. He continued to have problems with his mask.
Three years after he commenced diving, he experienced a problem which was diagnosed as bronchitis. On 27 March 1974, his condition was noted at an examination. One year later, in April 1975, he was again reporting for a similar condition. His lung capacity, however, had diminished. It was contended at the hearing before us that the treatment he had been receiving for the previous year had been inappropriate as well as unsuccessful.
The 1974 incident is said to have arisen after a night dive. However, the evidence was that the symptoms did not manifest themselves until at least a week after that dive. Mr Millen did not, at that stage, understand that he suffered from asthma. He said "Some days later I came down with bronchitis".
He was treated at H.M.A.S. Penguin by Dr Carl Edmonds. Dr Edmonds is a world authority on illnesses associated with diving. He was also treated by Professor Colebatch, an academic medical practitioner with a similar high reputation. Neither of these doctors diagnosed asthma. Both of them considered the possibility.
In order to determine the reason for his decline in lung capacity and to assess his fitness for diving, he was again examined by a specialist, who reported:
"The reason for the airways becoming narrowed in Mr Millen is not clear from the present date. Mr Millen does not smoke, denies smoking cigarettes. There is no history of asthmatic episodes…"
On 24 October 1977, he was again examined by Dr Moses, a consulting physician who reported:
"Thank you for the opportunity of assessing this sailor.
It would seem that during his annual medical examination in 1975, a decreased FeV1 was discovered. In retrospect he had had breathlessness for years, though it did not trouble him a great deal. Extensive investigations were done in 1975, but no etiological cause for his problem was found. It would seem that over the last two years his respiratory function has remained the same, and his exercise tolerance is reasonable. The only new feature is that he has been having unexplained paroxysms of coughing for about fifteen minutes every couple of months.
I found today that his blood pressure was 120.70 and cardio-respiratory examination was normal. The remainder of the general physical examination was unremarkable.
This sailor's concern was to see whether there had been any progression of his respiratory disease. Unfortunately he lost the vitallograph recording en route. However, he seems to recall that the FeV1/VC ratio was 68% which is of course similar to before. I would suspect that his respiratory condition is stable at this stage, though of course it can be easily checked by repeating his recording. I note that he has managed to reduce his milk consumption down to an average of four pints per day, though of course this many people would still consider excessive. I wonder whether it would be worthwhile performing his alpha 1 antitrypsin because of its association with premature respiratory disease. I have not made any arrangements to review this man again, though I will be happy to do so at any stage."
It was not until approximately 1990 that Mr Millen was told that he had asthma. This was the opinion of his general practitioner. Prior to then, he had been treated by many doctors, some of them specialists of outstanding eminence. None of them prescribed a treatment which would have been appropriate for asthma. It was the opinion of Dr Gianoustos, given in evidence, that all these diagnoses and all these treatments were wrong. From the documents, he deduced that Mr Millen's respiratory problems should have been approached in a different way. The applicant has been employed by Boral for the past 14 years as a coal truck driver. He said in evidence that he works from a dry yard which is often cloudy with coal dust.
He was discharged in 1979. Shortly after that he first saw a doctor complaining of breathlessness. Although that was the cause of his visit, he now recalls that at that time, he was also coughing and wheezing. He now believes that he has asthma attacks of a mild nature about once a fortnight. His last severe attack was in November 1999 when he was admitted to Maitland Hospital for four days. Prior to ten years ago, he agrees that his symptoms were considerably less severe.
Dr Gianoutsos gave as his opinion the following:
"I believe this man has bronchial asthma. There was no family history of asthma nor anything to suggest he may have had asthma in childhood.
The only factor which I strongly suspect may have precipitated his asthma was the certainty of water leaks around his face mask when diving for the Navy during his period of eligible defence service. The mechanism whereby asthma may be precipitated by such an event is the hypertonic nature of the aerosolysed inhaled sea water acting as an irritant on the bronchial tree and causing a reaction. I could not detect anything else in his work environment whilst with the Navy which might have acted as a similar precipitant.
The perpetuation of his asthmatic situation and worsening with the passage of time may well indicate that he had a constitutional background potential for the development of asthma but I believe on the balance of probabilities that this was precipitated by his Navy diving and the inhalation of hypertonic saline. If there are other factors, otherwise unknown to me, I know not. I agree this man does not fulfil the criteria of emphysema nor that of chronic bronchitis or chronic airflow limitation but more that of asthma. I believe that asthma to have been precipitated by his eligible Defence service while diving and perpetuated to this day probably, as stated on the basis of having some constitutional tendency towards an asthmatic state not previously recognised. He is now clearly under treated and I would make recommendations to his medical advisers that more appropriate 1999 therapy be instituted."
Dr Tyler, a respiratory and general physician who examined Mr Millen on behalf of the respondent, disagreed. On the basis of his examination and some pulmonary function reports which he obtained, Dr Tyler gave his opinion as follows:
"I have also had the chance to review Peter Gianoutsos' report. As stated in my initial letter I do not believe that this man has bronchial asthma. I have not seen any data that suggests variable airflow obstruction. I have not seen spirometry which has shown changeable FEV in absolute terms. We have only had FEV ratios quoted in the literature to date.
I disagree that inhalation of sea water was likely to cause his asthma. Hypertonic saline in a concentration of 4.5% (equivalent to sea water) is used as provocation testing for asthma and in Royal Prince Alfred Hospital is often used to assess whether asthmatics are controlled. There is no data to suggest that hypertonic saline challenges cause asthma and I would think it is highly unlikely that aspiration of sea water would cause asthma in the longer term.
Further, Peter brought in some records of spirometry performed on 25th March 1975, 20th July 1976 and 21st August 1978 and these show an FEV1/VC of 2.45/3.55, 2.55/2.55 and 2.4/3.4 respectively. On all of these traces the FVC is a very slight underestimate due to the trace being ceased before exhalation was completed. The error however would have only been of a few hundred mls in the FVC.
I have reviewed the recent discharge summary from Maitland Hospital. The spirometry was measured by a physiotherapist and was performed the day prior to discharge and was not significantly different from the values obtained at my visit measuring 1.9/2.8.
In summary then, I have not seen objective evidence of asthma in Mr Peter Millen. The severity of his symptoms is out of proportion to any impairment of lung function that has been demonstrated. This was particularly so on the initial day that I saw him when he had both some upper airway dysfunction after the effort of spirometry and then hyperventilated during the consultation.
His spirometry is consistent with very mild airflow obstruction or dysynapsis and these minor changes again do not explain the severity of breathlessness he is experiencing.
I have not been able to demonstrate anything in his Navy Service that would have caused asthma.
I suspect, but I have been unable to confirm at this stage, that his severe attacks of breathlessness are more likely due to hyperventilation and upper airway dysfunction."
Whether or not Mr Millen suffers from asthma, he must, in order to succeed, show that the causative factors are to be found in the relevant Statement of Principles. This is set out in Instrument Number 60 of 1996 as follows:
"4Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by that person.
5The factors that must exist before it can be said that, on the balance of probabilities, asthma or death from asthma is connected with the circumstances of a person's relevant service are:
(a)for the first episode of asthma only, being exposed to occupational antigens within the 24 hours immediately before the clinical onset of asthma; or
(b)being exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma; or
(c) inability to obtain appropriate clinical management for asthma.
6Paragraphs 5(b) to 5(c) apply only to material contribution to, or aggravation of, asthma where the person's asthma was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(3) or 70(5)(d) of the Act refers.
…
"nonantigenic stimuli" means exposure to cold, emotional stress, exercise, drugs (including beta blockers), respiratory infection or inhaled irritants such as ozone, sulphur dioxide, mustard gas or smoke, including cigarette smoke;"
Some attempt was made to demonstrate compliance with the Statement of Principles with reference to paragraph 5(c). Whether or not the early diagnoses and treatments were correct for Mr Millen's condition at the time is, in our opinion, irrelevant. The paragraph does not invite an inquiry as to the appropriateness of a claimant's clinical management. It requires a claimant to show an inability to obtain that management. This would commonly arise in conditions of active service. Mr Millen has had a demonstrated ability to obtain clinical management from medical practitioners of the highest reputation who undertook examination for serious and focussed reasons to determine his continuing ability to dive. Whether they misdiagnosed his condition is irrelevant. Mr Millen was not deprived of the opportunity to obtain appropriate clinical management.
It was then sought to show that his present condition was caused by factors set out in paragraph 5(b). It was sought to show that the mixture of oxygen and sea water was an inhaled irritant of a kind described in the definition of non-antigenic stimuli. In our opinion, this cannot succeed. Although the use of the words "such as" indicates that the substances named in the definition are not the only substances that can provide an irritant falling within the terms of the definition, they do, however, form a class. It was Dr Gianoutsos' evidence that hypertonic saline solution was different in its reaction from the other named substances. They had "a more direct effect on the cell itself". The mechanism contended for by Dr Gianoutsos merely "caused cells to disrupt and discharge substances into the airwaves". It was Dr Gianoutsos' opinion that hypertonic saline solution should itself be added to the definition. In our view, this indicates an opinion that it is not already there either expressly, or by implication. A genus is established by the use of the words "ozone, sulphur dioxide, mustard gas or smoke, including cigarette smoke". Hypertonic saline solution falls outside that genus and, accordingly, is not a substance contemplated by paragraph 5(b).
Even if it were, however, the evidence was that there was no clinical worsening of the applicant's condition (assuming it to be asthma) within 24 hours after exposure. He was continually exposed for three years between 1971 and 1974. Even after the night dive in 1974, the clinical worsening (the apparent contraction of bronchitis) did not occur until some days later.
In our view, it is not necessary to determine whether Mr Millen has asthma. Even assuming that he did, he has not demonstrated that the condition can be regarded as service related within the meaning of the relevant Statement of Principles.
Accordingly, the decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.J. McMahon (Deputy President)
Dr M E C Thorpe (Member)Signed: .....................................................................................
Dominika Rajewski, AssociateDate of Hearing 13 June 2000
Date of Decision 23 June 2000
Representative for the Applicant Mr Brian Winship (Rockliffs Solicitors)Representative for the Respondent Ms Melinda Doggett (Department of Veterans' Affairs)
8
0
0