Reidlinger and Repatriation Commission - [2001] AATA 688

DECISION AND REASONS FOR DECISION [2001] AATA 688

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/563

VETERANS' APPEALS DIVISION          )
           Re      LEONARD JOHN REIDLINGER
  Applicant
           And    REPATRIATION COMMMISSION
  Respondent

DECISION

Tribunal Mr KL Beddoe, (Senior Member)

Date2 August 2001
PlaceBrisbane

Decision      The decision under review is affirmed.
  .      (Sgd) K L Beddoe
  Senior Member

Decision No. 688/2001
CATCHWORDS
Veterans' Affairs – whether Meniere's disease or post traumatic endolymphatic hydrops - reasonable satisfaction test - whether Meniere's disease defence caused -

Veterans' Entitlement Act 1986 s69, 70(5),120

Johnston v The Commonwealth (1982) 150 CLR 331
Keely v Repatriation Commission [1999] FCA 1103
Re Carroll and Repatriation Commission [2000] AATA 180
Re Chanter and Repatriation Commission [1999] AATA 920
Re EDC Applicant and Repatriation Commission AAT No.13562
Repatriation Commission v Wellington [1999] FCA 1552

REASONS FOR DECISION

2 August 2001 Mr KL Beddoe, (Senior Member)

By application received 23 June 1998 the applicant sought a review in this Tribunal of a decision of the respondent to reject a claim for sensorineural hearing loss of the left ear and Meniere's disease as defence-caused diseases. The respondent refused the claim on 11 August 1995 and the applicant sought review in the Veterans' Review Board ("the VRB"). On 12 February 1998 the VRB decided to affirm the decision of the Repatriation Commission.
The applicant appeared for himself and Mr Morison appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act"). Oral evidence was given by the applicant, Dr Anning, Ear, Nose and Throat Specialist; Ms Moore, the applicant's ex-wife and Dr Blaszczyk, Ear, Nose and Throat Surgeon, the applicant's current treating ear, nose and throat specialist.
Medical reports by Dr Anning; Dr Blaszczyk; Dr Black, Ear, Nose and Throat Specialist; Dr Grant, Senior Medical Officer Compensation and Dr Hodge, Ear, Nose and Throat Surgeon were tendered and marked as exhibits. Further medical documents were presented as a bundle and marked Exhibit 5. A statement provided by Ms Moore was marked as Exhibit C and a further bundle of documents was provided by the Queensland Police Department and marked Exhibit 2.
The applicant's accepted conditions are:
(a) right sensorineural deafness, and
(b) (paired organs and limbs policy ("pol")) left sensorineural deafness.
Rejected disabilities are:
(a)      iriodialysis,
(b)      partial loss of teeth,
(c)       refractive error, and
(d)      Meniere's disease.
The claim in respect of sensorineural hearing loss left ear was not pursued by the applicant. This disability was accepted by the respondent as part of its pol policy.
The main issues in this matter are:
(a)whether the applicant was suffering from Meniere's disease prior to the relevant period of service; and
(b)whether Meniere's disease is defence caused within the meaning of section 70 of the Veterans' Entitlements Act1986 (the Act").
Section 70(5) of the Act relevantly provides that:
"For the purposes of the Act…a disease contracted by [a member of the Forces] shall be taken to be a…defence-caused disease if:
(a)       ………………..
(b)       ………………..
(c)       ………………..

(d)       the… disease from with the member 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 … of the member, but not during such a period of service;

and, in the opinion of the Commission, the …disease was contributed to in a material degree by, or was aggravated by, any defence service…rendered by the member, being service rendered after the member …contracted that disease;…"

The relevant standard of proof in respect of periods of defence service is reasonable satisfaction (section 120(4).
The applicant served in the Royal Australian Air Force ("the RAAF") from 1 October 1968 to 30 September 1974 as a transport driver. It was accepted that the applicant's eligible defence service covers the period from 7 December 1972 until 30 September 1974.
Prior to April 1971, the applicant had complained of episodes of vertigo averaging two every six months (T1, page 1). In April 1971, whilst serving in Darwin, the applicant suffered a disabling attack of vertigo. Dr Scott was the only medical officer at the base. Dr Scott stated in his report (T4, page 4) that the applicant had no tinnitus and evacuated the applicant by air to Sydney. The applicant was kept in No 3 RAAF Hospital, Richmond, New South Wales for 26 days. The applicant was examined in Sydney by Dr Mackay, an ear, nose and throat specialist and Dr Norson, a neurologist, and diagnosed with postural vertigo.
After this event, the applicant attended medical officers with complaints of headaches and dizziness. In particular, the applicant attended on 23 May 1972 complaining of giddiness when lying on his left side (T4, page 9). RAAF medical records also show that the applicant complained of fullness in his ears (T3, page 11, 15 March 1974). At no stage in his RAAF career was the applicant diagnosed with Meniere's disease.
Prior to his RAAF service, at the age of 17 years, the applicant had suffered a fractured skull as the result of a motor bike accident. The injury resulted in a loss of hearing in the applicant's left ear.
After discharging from the RAAF, the applicant worked as a plant operator and then as a police officer for 19 years until he was medically retired from the police force. The applicant was diagnosed as having Meniere's disease in about 1990 by Dr Blaszczyk, Ear, Nose and Throat Surgeon. On 20 January 1993, the applicant underwent a left endolymphatic saccus decompression. As a result, the applicant has to date suffered no further vertigo attacks but is completely deaf in the left ear.
The Medical Evidence
Dr Blaszczyk first saw the applicant on 5 December 1985. At that time, Dr Blaszczyk was of the opinion that the applicant's bilateral sensorineural deafness was due to acoustic trauma suffered in the RAAF and was superimposed on a mild hearing loss on the left side which was due to the applicant's motor vehicle accident at 17 years (Exhibit 5, report number 9).
Dr Blaszczyk was still of this opinion in 1990. In his report dated 21 March 1990 (Exhibit 5, report number 1), he stated that the applicant had a "moderate bilateral sensorineural". He opined (at paragraph 6) that:
"In my opinion this man has a bilateral sensori neural deafness consistent with acoustic trauma sustained while he was in the Airforce. The degree of hearing loss is the same in both ears except that the added hearing loss in [the applicant's] left ear at 4,000HZ can be presumed to be related to [the applicant's] motor bike accident."

In an open letter dated 31 December 1997 (T4, page 33, paragraphs 1 and 2), Dr Blaszczyk opined that:
"I have reviewed [the applicant's] previous files regarding his vertigo and as had been stated previously, in my opinion, [the applicant's] episodic attacks of vertigo in 1971 was the beginning of his Meniere's disease. His symptoms progressed until he underwent a left Endolymphatic Saccus Decompression for Meniere's disease in January 1993.
Initial long-term management consists of low salt diet and intermittent use of diuretics."

At paragraph 4 he continued:
"In summary, [the applicant] suffers from a condition called Meniere's disease which I think started during his service years, in particular, 1971. [S]urgical intervention such as an Endolymphatic Saccus Decompression would not have been warranted at that stage but elimination of salt from the diet and in particular, a low salt diet together with intermittent use of diuretics was the appropriate treatment at the time."

Clinical notes prepared by Dr Hodge, Ear, Nose and Throat surgeon, dated 18 September 1987 (Exhibit 5, report number 5) record that Dr Hodge saw the applicant in May 1985 and in March, April, June and July 1987. At paragraph (d) he states that:
"This gentleman was first noted in May 1985 to have a bilateral sensory neural hearing loss mild in the right and moderate in the left…"
At paragraph (e) it is further stated that the applicant's hearing had "deteriorated gradually over the years".
Dr Black, Ear, Nose and Throat Specialist, in clinical notes dated 9 March 1989 (Exhibit 5, report number 2)diagnosed the applicant with "bilateral sensorineural hearing loss" of severe degree and stated that:
"States he has had a hearing problem for more than 10 years. Has been unable to understand conversational speech & has used bineural aids for years.
Tinnitus is present & has been so for years. No great problem to him as he has adapted to it.
……..
Findings. Bilateral Sensorneural hearing loss of severe degree - … not typical of a noise induced loss. Tinnitus is not a real problem in this case at present."

Dr Anning, Ear, Nose and Throat Specialist, saw the applicant in person on 7 August 1998. In his report dated 18 August 1998 (Exhibit 1), Dr Anning was of the opinion that a diagnosis of "endolymphatic hydrops perhaps secondary to [the applicant's] trauma" was likely. Dr Anning did not believe that a finding of Meniere's disease could be sustained. In the last paragraph of that report he states:
"On the limited information that I have, this man's history may well be that of endolymphatic hydrops perhaps secondary to [the applicant's] trauma. Certainly the fact that he has clinically improved remarkably after saccus decompression would back up this diagnosis. However, if a diagnosis of Meniere's Disease requires a fluctuating hearing loss associated with tinnitus and episodic vertigo, the vertigo usually preceded by a feeling of pressure in the head or ear associated with the vertigo, then this gentleman's symptoms complex does not fit into classic Meniere's Disease syndrome."
Dr Anning produced a second report dated 15 March 2000 (Exhibit A). This report was made by referring to his documents supplied by the Department of Veterans' Affairs. In this report he restates his previous opinion. Additionally he states (paragraph 7):
"Salt limitation and diuretics have been shown to decrease the number of attacks in Meniere's disease though whether it makes a difference to the overall lifelong prognosis is doubtful. I can find no references to salt limitation in post-traumatic endolymphatic hydrops. As it is a similar condition, one would expect, however, that salt restriction may help and a large load of dietary salt could aggravate the situation."

In his oral evidence, Dr Anning re-stated his opinion that the applicant did not suffer from Meniere's disease but rather bilateral neurosensory hearing loss caused by exposure to noise, damage from physical trauma and/or cocclial degeneration of unknown cause. He also stated that he only saw the applicant once. He further stated that the applicant did not present with tinnitus or fluctuating hearing loss when he attended Dr Scott in Darwin in April 1971.
Dr Anning explained that after a vertigo attack, a person with Meniere's disease usually experiences a decrease in hearing which is partially restored shortly after the attack passes. He explained that hearing is however, never fully restored.
Dr Grant, Senior Medical Officer Compensation, prepared an internal report dated 14 July 1998 (Exhibit 3) from the applicant's RAAF medical records.
Paragraph 2 of Dr Grant's report appears to refer to information contained in an in-patient summary relating to the applicant dated 12 May 1971 and signed by a FltLt P.A. James, Medical Officer (T4, page 6). Dr Grant notes at paragraph 2 of his minute that the applicant "complained of reduced hearing". The Tribunal notes that the actual record does not infer that the applicant made any such complaint but that the file note reads "…[the applicant] has clinical impairment of hearing of the left ear;…".
At paragraph 4 of his minute, Dr Grant refers to the applicant's presenting with headaches and sleep disturbance on 23 May 1972 and comments that there was "associated sleep disturbance but there was no vertigo or visual changes reported." No mention is made of the giddiness experienced by the applicant when lying on his left side.
At paragraph 5 of that report, he noted that:
"At the medical board of 28 June 1972, a left hearing impairment was noted and attributed to trauma (the only episode of which was that 13 years earlier). The hearing loss was noted not to have changed over the past four years. There is no mention of vertigo or headaches."

At paragraphs 6, 7 and 8, Dr Grant noted:
"In the interim, [the applicant] attended for treatment of headaches on 22 March 1973, and he was referred to an opthalmologist five days later. The pain was described as being behind the eyes. [The applicant] was subsequently treated for depression on 7 May 1973. On 14 May 1973, he reported becoming dizzy every day. A blood pressure reading of 130/70 was recorded. He attended again on 4 February 1974 with an injured left finger and he again reported problems with headaches. These problems appear to have resolved by the medical board of 5 September 1974.
This new information is highly significant to both rejected conditions. On the balance of probabilities, the left hearing loss is most likely due to pre-service trauma, in my opinion. There is also a good possibility of major noise exposure post-dating service including from gun fire as outlined in Dr Jim Rodney's report of 1 May 1995 wherein he describes [the applicant] being hit in the chest with a ricocheting bullet.
The history also suggests that the [applicant] suffers for post-traumatic vertigo rather than Meniere's disease. It is recommended he be referred to Dr Anning for an opinion as to the appropriate diagnosis of both claimed conditions and for his opinion as to whether or not there is a probable link to service."

The Tribunal did not have medical records from 2 January 1973 to 15 March 1974 before it. The entry after 2 January 1973 in the records provided (T4) is dated 24 May 1973 and appears to be a stamp indicating that the applicant had been posted to Headquarters Support Command which the Tribunal understands is located in Melbourne.
A further minute from Dr Grant, dated 20 March 2000 (Exhibit 4), advised (at paragraphs 1 and 2), that:
"In view of the advice of Dr Anning in his report of 15 March 2000, I recommend that a diagnosis of "post-traumatic endolymphatic hydrops" be applied to this appeal rather than "Meniere's disease".
It follows that the most likely cause was the accident at 17 years of age. Dr Anning points to possible short-term gains from salt limitation on the diet but he is unaware of any studies that have shown a consistent improvement in the overall prognosis for Meniere's disease as a result."

Dr Grant was satisfied that Dr Anning's report supported the respondent's contentions and did not support the claim of probable aggravation by RAAF service.
The Applicant's Contentions
The applicant contended that he first contracted Meniere's disease in 1971 in Darwin whilst in the RAAF. He further submitted that at that time, he should have been started on a low salt diet and prescribed diuretics. This should have then been followed by psychiatric treatment. The failure by the RAAF to correctly diagnose and treat the applicant's Meniere's disease exacerbated his symptoms. Appropriate medical treatment at that time may have prevented the full extent of his eventual hearing loss.
The applicant told the Tribunal that the vertigo attack he suffered in 1971 occurred at 3am. He stated that he could not get up off the floor and lay, unable to call out, for three hours until his wife found him at 6am the next morning. By the time he was flown to Sydney the attack had passed.
The applicant said that when he had that attack, he told Dr Scott that he also suffered nausea and that he had the sound of "a busy tone" in his ears, but that Dr Scott denied tinnitus.
He related that he remained in hospital without being seen by a doctor until two or three weeks after the event. They found no neurological abnormality was found but it was suggested that Dr Scott treat the applicant for epilepsy.
The applicant stated that Dr Scott did not advise the applicant of this nor did he treat the applicant for epilepsy.
It was further stated that the applicant attended on Dr Scott after suffering further attacks of vertigo and fullness in the ears. The applicant could not explain why these were not mentioned in records but did state that his medical records were incomplete. In particular, one incident when he had a serious reaction to an incorrect injection given by Dr Scott, was not recorded. However, his wife (Ms Moore) had been called to his bedside at the time.
The applicant related how at 17 years old, he had fallen off the back of a motor bike and sustained a fractured skull. He made a complete recovery after hospitalisation and made no secret of this to the RAAF. When questioned why on the enlistment medical questionnaire there was written 'no' against head injury/concussion the applicant stated that he had told the orderlies but they were processed in great numbers so it could have been an administrative error.
During his RAAF service, the applicant stated that he was required to take salt tablets and extra salt during his RAAF service. He was required to work inside aeroplanes in hot conditions. He also stated that he believed he had to attend on RAAF doctors not civilian doctors and that if there was anything to be found the RAAF doctors would find it.
The applicant urged the Tribunal to give more weight to the medical evidence of Dr Blaszczyk who was his treating doctor and diagnosed Meniere's disease after clinical investigation. The applicant stated that Dr Anning had only seen the applicant once and Dr Anning's second report was based on the reports he had been given.
The applicant relied on a medical paper (T4, page 39, paragraph 1) which states that endolymphatic hydrops causes Meniere's disease.
In cross-examination, the applicant told the Tribunal that he had seen other doctors in Sydney and Melbourne (apparently RAAF doctors) about dizzy turns but no-one followed up. All the doctors said there was nothing wrong. He stated that he didn't need time off work either in the RAAF or the Police Force once the attacks were over.
Ms Moore provided a statement dated 2 May 2001 (Exhibit C) to the Tribunal wherein she stated that she was happily married to the applicant at the time they were posted to Darwin. It was during this posting that she found her husband in April 1971 collapsed on the bathroom floor, unable to stand, and complaining of vertigo, nausea and ringing in his ears.
Further, the witness provided in her statement that her husband, the applicant was not given ongoing medication or follow up appointments to monitor his condition and his vertigo and tinnitus continued.
In her oral evidence Ms Moore told the Tribunal that she remembered the applicant telling her at the time of the attack that he had a feeling of fullness in his ears. After some prompting by the applicant, she also remembered that at these times, the applicant used to describe a noise in his ears as 'the sound of silence". She stated that her husband was investigated for a brain tumour and no signs were detected.
Ms Moore also vividly remembered an incident in Darwin when she was called to the medical unit where she found her husband lying on a bed and looking extremely ill. She stated that the applicant had apparently been given the wrong injection and the doctor had to send to Darwin for an injection to reverse the effects of the initial injection.

The applicant relied on Johnson v The Commonwealth (1982) 150 CLR at 341 to support his submission that the failure to diagnose the applicant's condition itself constitutes aggravation and lack of appropriate medical management.
The Respondent's Contentions
The respondent submitted that Instrument No 258 of 1995 is the relevant SoP for Meniere's disease. However, it was also submitted that Meniere's disease is not the cause of the applicant's hearing loss but rather the applicant's hearing loss is due to post traumatic endolymphatic hydrops.
The respondent submitted that section 120A(3) of the Act does not apply to such a claim because the Repatriation Medical Authority ("the RMA") has not given notice under section 196G that it intends to carry out an investigation in respect of post traumatic endolymphatic hydrops under subsection 120A(2). In addition, the RMA has not determined a Statement of Principles or declared that it does not propose to make such a Statement of Principles in respect of that kind of disease. Reasonable satisfaction is required without recourse to a statement of principles in this case.
The respondent agreed that the applicant's claim falls to be determined pursuant to section 120(4) of the Act, which requires the Tribunal to decide the matter to its reasonable satisfaction. The Tribunal was urged to consider that the applicant's hearing loss is due to post traumatic endolymphatic hydrops as a result of his head injury at 17 years.
Further, the respondent submitted that there was no evidence that the applicant had not received appropriate clinical management for his condition during his eligible service whether it was called Meniere's disease or post traumatic endolymphatic hydrops. The applicant was flown to Sydney and investigations were carried out.
The respondent contended that, should the applicant succeed, the earliest date of effect is 26 March 1995.
Consideration
The Tribunal must rely on the limited medical evidence presented to decide whether the applicant is currently afflicted with Meniere's disease or as contended by the respondent, with post-traumatic endolymphatic hydrops.
The Tribunal acknowledges the papers provided by the applicant but notes that they were published in 1993. In addition, the Tribunal has not been provided with evidence of the recognised qualification of the writers. These documents assist the Tribunal with the state of medical knowledge at the time the applicant claims to have first shown evidence of having Meniere's disease.
On the medical evidence presented to the Tribunal, it is apparent that the diagnosis of Meniere's disease is an extremely difficult one to make, even for specialists. In this matter, the Tribunal has only the opinions of Dr Blaszczyk and Dr Anning to assist it.
Neither Dr Hodge nor Dr Black has provided the Tribunal with an opinion in this regard and Dr Grant has merely looked over the applicant's RAAF medical records and relied on Dr Anning's opinions. The opinion of Dr Black, that the applicant's hearing loss was not typical of a noise induced loss, appears to be at odds with Dr Grant's conclusion of a link to major noise exposure post-service, although it is, to a small degree supportive of both the applicant's and the respondent's contentions.
The Tribunal is not satisfied that the opinions of Dr Grant can be attributed any significant weight, as it appears to be based on limited and selective second hand information. Dr Grant supports his theory of hearing loss associated with major noise exposure post-service by referring to a report of Dr Rodney, psychiatrist (T4, page 20) dated 1 May 1995 (T4, page 2 paragraph 7). Dr Grant apparently relies on an entry in that report which states that the applicant was hit in the chest with a ricocheting bullet. The Tribunal is unable to draw any inference regarding hearing loss from this limited information.
In addition, this contention is not supported by the applicant's evidence that he only used the firing range in the police force on five occasions due to his inability to hear instructions and that he wore hearing protection on those occasions. The applicant presents as a creditable although somewhat anxious witness. The Tribunal accepts that his anxiety is associated with his frustration with his hearing loss and with his perhaps perceived lack of progress in this matter.
Dr Grant's minute of the 14 July 1998 evidences inconsistencies, omissions and unsupported references with regard to dates and data from the applicant's medical records and, if not misinterpretation, selective data retrieval and a loose interpretation of comments made in those reports. Dr Grant has made references to medical records which are not before this Tribunal.
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 operation service addressed under s120(1) are facts to be established to the reasonable satisfaction of the Commission."
Dr Anning is unconvinced that the applicant is suffering Meneire's disease because he says the applicant symptoms do not fit the classic picture (Exhibits 1 and A). Dr Anning has examined the applicant on one occasion and referred to RAAF medical records which were made contemporaneous to the applicant's 1971 vertigo attack to reach this conclusion. In particular, he has relied on the comment of Dr Scott (T4, page 4) where Dr Scott says, "…vertigo without tinnitus or hearing loss".
Dr Anning did not present any evidence to support his diagnosis of post-traumatic endolymphatic hydrops. He did state that the fact that the endolymphatice saccus decompression assisted the applicant with vertigo symptoms was relevant to his diagnosis. However, Dr Anning did not state how this was relevant. The Tribunal notes that the operation was carried out on the basis that the applicant was suffering from Meniere's disease and was to relieve that symptom associated with that disease. For these reasons, the Tribunal is not satisfied that Dr Anning's method of diagnosis is appropriate, accurate, or even reliable.
Dr Blaszczyk has based his opinion on an ongoing doctor/patient relationship over a 16 year period and made his initial diagnosis of Meniere's disease after a period of five years of consultations.
Prior to 1990, Dr Blaszczyk's opinion and that of Dr Anning's overlapped with regard to acoustic trauma hearing loss but changed with familiarity with the applicant's symptomology. For these reasons and the fact that Dr Anning has not had the opportunity to reconsider his opinion in the same circumstances as Dr Blaszczyk, the Tribunal gives greater weight to the opinion of Dr Blaszczyk.
The relevant SoP for the condition of Meniere's disease is Instrument No 258 of 1995 (Keely v Repatriation Commission [1999] FCA 1103). Meniere's disease is defined in clause 4 of that SoP as:
"…a condition characterised by sudden and recurring episodes of vertigo with nausea and vomiting, together with hearing loss and tinnitus, attracting ICD code 386.0."
The Tribunal is satisfied that by reference to this definition and on the medical evidence presented, in particular, on the opinion of Dr Blaszczyk, the applicant's current condition should be diagnosed as Meniere's disease.
For the applicant to succeed in his claim, he must show that it is more likely than not that Meniere's disease is related to relevant service (paragraph s120(4) & 120B). In addition, the applicant must satisfy Paragraph 1(a) of that SoP which sets out the factor which must be satisfied to connect, on the balance of probabilities, the applicant's relevant service with Meniere's disease. This factor requires that the applicant must have been unable to obtain appropriate clinical management for Meniere's disease during his relevant period of service - that is from 7 December 1972 until 30 September 1974.
Finally, there must be material raising the hypothesis that the inability to obtain appropriate clinical management contributed to or aggravated the disease (paragraph 3 (b) of Instrument No 258).
In ReCarroll and Repatriation Commission [2000] AATA 180 (8 March 2000) at page 19 (paragraph 68), the Tribunal stated:
"There is however a real question as to whether he suffered from Meniere's disease during his relevant … defence service which is "part of the question of causal connection" between the disease from which he now suffers and service." [The applicant] 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 appropriated clinical management for Meniere's disease"."

Although this case dealt with later SoPs covering Meniere's disease (Instruments No 27 and 28 of 1997), the relevant factor required to be satisfied in that matter is the same factor required to be satisfied in Instrument No 258 of 1995.
Dr Blaszczyk is of the opinion that the applicant was suffering from Meniere's disease in 1971 when the applicant experienced his severe episode of vertigo (Exhibit B). Dr Anning disagrees with Dr Blaszxzyk's opinion by reference to Dr Scott's contemporaneous comments that the applicant did not exhibit the classical symptoms of this disease at that time. The Tribunal notes that Dr Anning saw the applicant 27 years after the event and also relies on the applicant's lack of perception of hearing loss at that time although the applicant's hearing was not tested.
The Tribunal has already noted that before sending the applicant to Sydney Dr Scott recorded in the applicant's medical documents that the applicant suffered from "episodic giddiness without tinnitus or deafness (although ref. audio)" (T4, page 4). This bracketed comment indicates to the Tribunal that although the applicant may have advised that he had not noticed a loss of hearing, a contemporary audiogram may have indicated differently. It is unfortunate that this reference was not explored further by the parties and because of this the Tribunal can only surmise that hearing loss may have been associated with this episode.
A report, apparently on the applicant's condition while in at No.3 Hospital, Richmond reports that an audiogram performed on 7 May 1971, revealed "a mild sensori-neural hearing loss in the left ear" (T4, page 6, paragraph 4). On the evidence presented, the Tribunal is unable to say that this hearing loss was that loss already afflicting the applicant on entry into the service or additional to it. That audiogram has not been provided to the Tribunal.
The Tribunal notes that in a RAAF medical record dated 28 June 1972 (T4, page 7), it is stated that the applicant's hearing loss in his left ear had not changed in four years and provides audiogram results. However, an audiogram dated 29 August 1968 shows different results at the various frequencies for both ears (T4, page 2). This discrepancy cannot be explained.
The Tribunal accepts that the applicant advised Dr Scott that he had a "buzz" in his ears and nausea at the time of his vertigo attack in April 1971. Whether because he was focussing on the fact of the applicant's prior head injury, because of the early hour of the distress call or for another reason, the Tribunal also accepts, from the applicant's evidence of previous omissions, that Dr Scott may not have recorded these symptoms. In addition, the Tribunal is aware that the "buzzing" heard by the applicant may indeed equate to "ringing" in the ears. However, the Tribunal is unable from this evidence to find that the applicant was or was not suffering from tinnitus at this time.
From the medical evidence provided by both Dr Blaszczyk and Dr Anning, the Tribunal is satisfied that Meniere's disease was open to be diagnosed in 1971. In this matter, Dr Blaszczyk has opined that the applicant's condition began in 1971 and was marked by the episodic attacks of vertigo.
The Tribunal also notes that a period of five years of an unreported number of consultations was required from around 1985 to 1990 to allow Dr Blaszxzyk to diagnose the applicant's condition. It is quite apparent to the Tribunal that in the applicant's case, a single consultation was insufficient to provide sufficient criteria on which to base a diagnosis.

On this basis, the Tribunal accepts that from Dr Blaszczyk's opinion and the fact that the applicant has been diagnosed with Meniere's disease on the basis of similar symptoms he says he was experiencing in 1971, it is open to find that it is more likely than not the applicant suffered Meniere's disease during his relevant service.
Accepting that the applicant first showed the symptoms of Meniere's disease before or during his relevant service, the Tribunal must consider the state of knowledge regarding Meniere's disease at the time the applicant claims that he first should have been diagnosed – Repatriation Commission v Wellington [1999] FCA 1552; Re Chanter and Repatriation Commission [1999] AATA 920 - to decide if the applicant was unable to obtain appropriate medical treatment.
The respondent contends that the best available treatment was provided to the applicant in 1971 and in the relevant period.
Dr Anning has stated that a low salt diet and diuretics were the appropriate treatment for Meniere's disease or even hydrops (although this latter comment was apparently a generalisation and unproven hypothesis) in 1971. Dr Blaszczyk supports this view. Neither of these treatments were recommended to the applicant during his relevant service.
It was the applicant's understanding that he had to attend service doctors. The Tribunal accepts that indeed the applicant did so. The Tribunal is satisfied that on occasions after the 1971 episode, the applicant reported to various medical officers his symptoms of vertigo, dizziness and fullness in the ears. However, the Tribunal is not satisfied, on the evidence contained in the medical records, that these complaints were necessarily in a form that would easily lead to a suspicion that the applicant was suffering from Meniere's disease.
The Tribunal is therefore satisfied that no doctor who saw the applicant on later occasions, even if they read the applicant's previous notes or only dealt with the symptoms presented in isolation, would have necessarily concluded a need for follow up. This is particularly so where an ear, nose and throat specialist had seen the applicant earlier.
Although no evidence was produced to the Tribunal regarding how quickly or easily Meniere's disease could have been diagnosed if it had existed in 1971, it is apparent from the length of time it took for Dr Blaszczyk to diagnose the applicant that it is not the case that a simple or singular procedure would have detected the disease. In addition, the applicant's previous head injury was a significant event which may have added to the applicant's symptoms and understandably distracted medical opinion.
In Re EDC Applicant and Repatriation Commission Decision No.13562 AAT Q97/119 (21 December 1998), the applicant was suffering from breast cancer which went undiagnosed by RAAF doctors for 10 years (from 1977 to 1987) despite the applicant's repeated voiced concerns to these doctors about a sore lump in her breast.
However, in that matter, evidence was produced to show that the correct clinical management of a breast lump would have involved a mammogram rather than a mere physical examination even in 1971. The disease was readily and easily diagnosable from the time the applicant in that matter first reported her symptoms.
In the present case the Tribunal finds that a failure to diagnose the applicant in the circumstances of the case does not constitute inappropriate clinical management.
Further, in this matter there is no material which raises the issue of the hypothetical inability to obtain appropriate clinical management contributing to or aggravating Meniere's disease, if it was already in existence during service, in the relevant period as required by section 70(5)(d).
After the episode in 1971, there is no report of other such serious episodes of vertigo nor of tinnitus. No further hearing loss was reported and fullness in the ears is only mentioned on one occasion in his RAAF medical documents (15/3/72, T4, page 11). The applicant attended Dr Blaszczyk for the first time on 5 December 1985, well after the relevant period complaining of a gradual onset of deafness "for a number of years" and was later associated "with recurrent episodes of vertigo" (T4, page 23, paragraph 1).
In Johnson v The Commonwealth (1982) 150 CLR at 341 Gibbs CJ, Mason, Murphy and Wilson JJ found that:
"Whatever might have been the course of events if [the applicant] had remained a civilian, it seems plain to us, on the basis of the findings of the Tribunal, that the course taken by the disease between 1970 and 1974 was a direct consequence of the failure in 1970 to diagnose its presence and thereafter to provide appropriate treatment. That failure occurred in the course of his employment and in our opinion was related directly to it. No further conclusion is necessary to establish that the employment was a contributing factor to the aggravation of the disease." [emphasis added]
In that case, and in that of Re EDC, an aggravation of the disease was found to be directly related to the failure to diagnose. In this matter, the Tribunal is unable to find that any aggravation occurred in the relevant period.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Mr KL Beddoe, (Senior Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  2 May 2001
Date of Decision  2 August 2001
Applicant  In person
For the Applicant  Mr Morison