Re O'Brien and Repatriation Commission

[2003] AATA 525

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 525

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2002/44

VETERANS' APPEALS  DIVISION		)
Re		JOSEPH O'BRIEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date4 June 2003              

Place Brisbane     

Decision  The Tribunal affirms the decision under review.

...............(Signed)................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – Meniere’s Disease – not war-caused

Veterans’ Entitlements Act 1986:

REASONS FOR DECISION

Deputy President Don Muller       

1.      This is an application by Joseph O’Brien to review a decision to reject a claim for medical treatment and pension for incapacity from Meniere’s Disease on the ground that the condition was not war-caused, within the meaning of that term in the Veterans’ Entitlements Act 1986 (the VE Act).

2. The Applicant served in the Australian Army from 28 January 1970 to 15 November 1971. He had eligible war service, which was also operational service, for the purposes of the VE Act, in Vietnam from 21 October 1970 to 16 September 1971.

3.      On 20 December 2001, the Applicant claimed disability pension for tinnitus, deafness right ear and Meniere’s Disease.  He cited the following possible causes of his disabilities:

“Field Engineer Duties, inc. explosives, well boring equip, machinery.  Camped next to N.Z. 8” Field Battery (Nui Dat, 9 months) Hand Grenade Explosion/Attack, small arms.”

4.      In support of his claim the Applicant supplied the following report by Dr. Tamhane, dated 18 October 2001.

“Thank you for asking me to see Joseph O’Brien whom I saw in the first week of August.  Since January this year Joseph has suffered from recurrent attacks of vertigo associated with nausea, vomiting and fluctuation of his hearing in the right ear.  He feels that the hearing in the right ear has gradually deteriorated and that is his main concern.  He has not noticed any hearing loss in the left ear but worries that the hearing in the left ear will also deteriorate and he will then not be able to carry on his professional obligations.  Since his first attack in January he has had about 4 or 5 attacks.  You will recall that he was investigated in the past and a diagnosis of right Meniere’s Disease was made.  His clinical picture more or less remains the same.  He has had a very prolonged period of inactivity.

On examination his ear, nose and throat examination is normal.  He did not have any spontaneous or head shaking nystagmus.  He was fairly stable on Romberg’s when I examined him.  His history is not suggestive of any benign paroxysmal positional vertigo.

An audiogram shows almost normal hearing in the left ear.  In the right he has a moderate flat sensorineural hearing loss.  The speech discrimination in both the ears is quite satisfactory.  His electronystagmogram has shown a right canal paresis on caloric tests.  His auditorty brainstem evoked responses and his MRI scan are normal and this rules out any retrocochlear pathology.

I think Joseph is going through a phase of activity with his right Meniere’s Disease.  I think he should eliminate all the salt from his diet and be very strict about it.  He should take Moduretic 1 tablet every day and once his symptoms have settled and his attacks have reduced in frequency and intensity he can start taking it every alternate day.  As far as the Sturgeron is concerned he should take the tablet if the Moduretic is not able to control his symptoms.”

5.      The Applicant was examined by Dr. Brummitt on 20 March 2003.  He reported thus:

“I saw Joseph on 20-03-03 following up his deafness, tinnitus and vertigo.

In the preceding six months he had had one episode of vertigo lasting thirty minutes.  He had forewarning of this.  He feels his hearing is unchanged and that he is coping well with his work as a teacher.

On examination he has exostoses in both ear canals and a normal tympanic membrane in both ears.

Audiogram done on 13-03-03 shows minimal high frequency hearing loss in the left (good) ear and severe sensori-neural hearing loss in the right (the bad) ear.  This is not significantly different from 21-08-02.

In summary he has moderate disability from hearing loss for which he has learned to compensate.  He is having very infrequent episodes of vertigo, the only one in the past six months he had forewarning of.

Thus I feel he is not putting himself or others at significant risk in continuing to work, and in particular, I feel he is at very small risk of sudden incapacitation due to vertigo.

I suggest that he has a further audiogram in six months to check that his hearing is not deteriorating.

He has been previously told that his problem with deafness and tinnitus would not be helped with hearing aids.

I believe that he could be helped and suggested that he see Australian Hearing Services to look into this.”

6.      The Respondent accepted the Applicant’s claim in relation to tinnitus in the right ear and sensori-neural hearing loss of the right ear, but rejected his claim for Meniere’s Disease.

7.      The aetiology of Meniere’s Disease is unknown.  Consequently, in practical terms, it is impossible to formulate a reasonable hypothesis to link a cause of the Applicant’s Meniere’s Disease with his service.  The Statement of Principles (SOP) for Meniere’s Disease determined by the Repatriation Medical Authority, number 77 of 2001, lists the following factor, solely, for the contribution to or aggravation of Meniere’s Disease.

“4.  The factor that must as a minimum exist in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Meniere’s disease or death from Meniere’s disease is inability to obtain appropriate clinical management for Meniere’s disease.”

This means that three conditions all have to be met before pension and medical expenses would be payable to the Applicant for Meniere’s Disease, pursuant to the VE Act.

(a)The condition must have existed during service, and

(b)The Applicant, during service, must have been unable to obtain appropriate clinical management of the condition because of his service, and

(c)The lack of appropriate clinical management must have made the condition worse than it otherwise would have been.

8.      There is no evidence that the Applicant suffered from Meniere’s Disease before the 1990s.  The Applicant claims that in 1970 he felt dizzy after doing some somersault dives and that his dizziness could have been because of Meniere’s Disease.  The Tribunal regards that proposition as fanciful.

9.      There is no evidence before the Tribunal as to what treatment would have been regarded as “appropriate clinical management” in 1970.  Indeed, there is no clear statement as to what is currently regarded as appropriate clinical management for Meniere’s Disease.

10.     There is no evidence that the Applicant’s service in 1970 would have prevented him from obtaining appropriate clinical management if there was such a thing, and if he had Meniere’s Disease at the time.

11.     There is no evidence that the Applicant’s Meniere’s Disease is worse now than it would have been if the other factors listed above had existed in 1970.

12.     There is no reasonable hypothesis which relates the Applicant’s Meniere’s disease to his service in Vietnam.

13.     The Applicant’s Meniere’s Disease is not war-caused.

14.     The Applicant submitted that because his tinnitus and sensorineural deafness has been accepted as war-caused, it is illogical to reject his claim for Meniere’s Disease because they are all linked.  He relied on the SOP for tinnitus and the SOP for sensorineural deafness.  In particular, the following factors are relevant to this review.

“Factors (No. 26 of 2001)

5.      The factors that must exist before it can be said that, on the balance of probabilities, tinnitus or death from tinnitus are connected with the circumstances of a person’s relevant service are:

(a)being exposed to an impulsive noise of at least 140 dBA without adequate ear protection within the 48 hours immediately before the clinical onset of tinnitus;  or

(b)being exposed to noise of at least 85 dBA as an 8-hour time-weighted average (TWA) with a 3-dB exchange rate without adequate ear protection for one year immediately before the clinical onset of tinnitus;  or

…

(d)suffering from sensorineural hearing loss at the time of the clinical onset of tinnitus;  or

…

(f)undergoing a course of treatment with salicylate or quinine derivatives, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of tinnitus;  or

….

(k)suffering from Meniere’s disease at the time of the clinical onset of tinnitus;  or

….

(n)being exposed to an impulsive noise of at least 140 dBA without adequate ear protection within the 48 hours immediately before the clinical worsening of tinnitus;  or

…

(o)being exposed to noise greater than 85 dBA as an 8-hour time-weighted average (TWA) with a 3-dB exchange rate without adequate ear protection for one year immediately before the clinical worsening of tinnitus;  or

…

(q)suffering from sensorineural hearing loss at the time of the clinical worsening of tinnitus;  or

…

(s)undergoing a course of treatment with salicylate or quinine derivatives, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical worsening of tinnitus;  or

…

(w)suffering from Meniere’s disease at the time of the clinical worsening of tinnitus;  or

Factors (No. 30 of 2001)

5.The factors that must exist before it can be said that, on the balance of probabilities, sensorineural hearing loss or death from sensorineural hearing loss is connected with the circumstances of a person’s relevant service are:

(a)being exposed to an impulsive noise of at least 140 dBA without adequate ear protection before the clinical onset of sensorineural hearing loss;  or

(b)being exposed to noise of at least 85 dBA as an 8-hour time-weighted average (TWA) with a 3-dB exchange rate without adequate ear protection for a cumulative period of at least one year before the clinical onset of sensorineural hearing loss;  or

…

(d)undergoing a course of salicylate or quinine derivatives, for a condition for which the drug cannot be ceased or substituted, at the time of the clinical onset of sensorineural hearing loss;  or

….

(g)suffering from Meniere’s disease at the time of the clinical onset of sensorineural hearing loss;  or

(zd)suffering from Meniere’s disease at the time of the clinical worsening of sensorineural hearing loss;  or”

15.     The above Statements of Principles indicate that Meniere’s Disease may cause or aggravate sensorineural deafness and tinnitus but sensorineural deafness and tinnitus do not cause Meniere’s Disease.  If the Applicant’s sensorineural deafness and tinnitus are linked to his Meniere’s Disease, they are not war-caused.

16.     The Respondent has given the Applicant the benefit of the doubt and found that his tinnitus and sensorineural deafness may have been caused by one or other of the factors set out in paragraph 14 above, apart from Meniere’s Disease, while on service.

17.     The decision to reject the claim for pension for Meniere’s Disease is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .......................................................................................

C. O’Donovan, Associate

Date/s of Hearing  29 May 2003
Date of Decision  4 June 2003
Applicant  Mr. O'Brien, himself
Respondent  Mr. G. Doube, departmental advocate