Richards and Repatriation Commission (Veterans' entitlements)

[2017] AATA 560

Richards and Repatriation Commission (Veterans' entitlements) [2017] AATA 560 (27 April 2017)

Division:Veterans' Appeals Division

File Number:           2015/1758

Re:Janet Richards

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:27 April 2017

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]...................................................................

Miss E A Shanahan, Member

REPATRIATION – Application for an increase in pension to either intermediate or extreme disablement adjustment rate – Veteran deceased in the course of the assessment period – wife as personal legal representative continuing claim – cause of death widespread metastatic carcinoma of the colon – claim that the terminal back pain was due to accepted condition of lumbar spondylosis – chemotherapy, radiotherapy plus further surgical intervention over a period of three and a half years – criteria for extreme disablement rate not met – decision affirmed

Legislation

Veterans’ Entitlements Act 1986

Cases

Raisbeck v Repatriation Commission (1993) 31 ALD 704
Re Chidley and Repatriation Commission [2011] AATA 905

Secondary Materials

Second Reading Speech Veterans’ Affair Legislation Amendment Bill 1988, Volume 163 20 October 1988, 2034

REASONS FOR DECISION

Miss E A Shanahan, Member

27 April 2017

1. On 27 August 2012 Mr John Richards lodged a claim with the Department of Veterans’ Affairs that his carcinoma of the colon and back problems were war-caused.  He also sought an increase in the rate of his pension to that of the intermediate rate or, in the alternative, the extreme disablement adjustment rate (EDA rate).  The Department accepted that the back problem, diagnosed as lumbar spondylosis with L4/5 disc degeneration, was war-caused because Mr Richards had been required to carry heavy weights during his service in Vietnam in 1968.  The Department rejected his claim for carcinoma of the colon.  Mr Richards’s pension continued at 100 per cent of the general rate.

2. The Department had accepted that Mr Richards suffered the following war-caused conditions:

   ·Post-Traumatic Stress Disorder;

   ·Lumbar spondylosis with L4/5 disc degeneration;

   ·muscle tension headaches;

   ·Erectile dysfunction;

   ·Bilateral sensorineural hearing loss;

   ·Keratoses follicularis; and

   ·Tinea.

   Of these accepted conditions, his major debilitating war-caused diseases were the post- traumatic stress disorder and the erectile dysfunction. 

3. Mr Richards sought a review of the decision with respect to the carcinoma of the colon and denial of the payment of pension at an intermediate rate.  On 28 June 2013 Mr Richards withdrew his application in relation to the carcinoma of the colon.  Mr Richards died from widespread metastatic carcinoma of the colon on 15 July 2014. 

4. Mrs Janet Richards, as Mr Richards’ widow and personal legal representative, continued his application for review by the Veterans’ Review Board (VRB).  On 4 December 2014 the VRB affirmed the original decision.

5. Mrs Richards lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 14 April 2015. 

6. At the hearing of this matter Mrs Richards was represented by Ms Fiona Ryan of counsel instructed by Williams Winter Solicitors. Mr Ken Rudge, a lawyer of the Advocacy Branch of the Repatriation Commission, appeared for the respondent. The respondent provided the Tribunal with the T-documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and both parties tendered further exhibits, a list which is appended to this decision.

7. Mrs Richards, Mrs Sarah Williams ,the deceased veteran’s daughter, Dr Laurie Warfe, the treating general practitioner, and the Richards’s neighbour, Mr Keiran McAuley, gave evidence for the applicant and Associate Professor Brian Brophy, neurosurgeon, gave evidence for the respondent.

8. As Mr Richards had lodged his original claim in August 2012 and was successful with respect to the back pain/spondylosis which was effective as of 27 May 2012, the assessment period under consideration is from 27 May 2012 until the time of Mr Richards’s death on 15 July 2014.  At the time the application was lodged Mr Richards was 65 years and 11 months old.  Mr Richards had sold his interest in the real estate agency Hall and Hall in December 2013.  However, as part of the sale he was required to continue to work as a consultant for eighteen hours per week to assist the new owners. 

   BACKGROUND TO THE APPLICATION

9. Mr Richards served in Vietnam for 11 months in 1968, performing the duties of a forward scout.  He had been confronted face-to-face with a young Viet Cong male and had been forced to shoot and kill this young man.  Mr Richards was diagnosed with post-traumatic stress disorder (PTSD) by Dr Pomorin, a psychiatrist, in 2004.  Dr Pomorin considered Mr Richards’s erectile dysfunction to be related in part to the anxiety component of his PTSD and also to his age. 

10. Despite PTSD, Mr Richards had a most successful career as a real estate agent in Mount Eliza.  He was held in high esteem by his employees and the local business community.  Unto the mid-1980s or later he was very active socially, playing tennis on a regular basis, albeit as a social event (despite his wife’s statement that he was an A Grade tennis player); and taking great delight in his gardening pursuits and  listening to classical music, which he also used to counteract his tinnitus. 

11. The family lived in in Mount Eliza, in what appears to have been a large house, with a tennis court.  They leased some 50 adjoining acres where they ran horses, as Mrs Richards and her children were active equestrians.  They also had 20 to 30 head of Angus cattle.  Mr Richards had in earlier years been involved in horse riding. From late 2013, when Mr Richards was severely disabled, he was unable to perform any animal husbandry tasks.

12. Mr Richards had received appropriate treatment for his accepted war-caused medical conditions.  He saw a psychiatrist on a regular basis, as well as his general practitioner, who provided various prescriptions including Viagra.  On 9 December 2008 Mr Richards first reported bleeding from his rectum to his general practitioner Dr Warfe.  Dr Warfe’s clinical notes state Mr Richards was to undergo a colonoscopy.  This does not appear to have occurred.  He presented again in October 2010 with further bleeding from his rectum.  He was referred for and underwent a colonoscopy and was found to have a large carcinoma of the left colon 60 centimetres from the anal verge.

13. Mr Richards was referred to Professor Adrian Polglase for definitive surgery. Prior to surgery, he underwent CT scanning of his abdomen, pelvis and chest as staging investigations.  The Tribunal has not been provided with the results of these CT scans. However, the Tribunal assumes they were clear, as on 7 November 2010 Professor Polglase performed a laparoscopic assisted left hemicolectomy.  A large partially necrotic and ulcerated carcinoma was resected along with a regional lymph node clearance.  On histopathology the left colonic mass was an adenocarcinoma that had invaded through the muscle coat of the bowel into the peri-colic fat and two satellite nodules were found outside the bowel in the abdominal mesentery fat.  Six of the twenty-two lymph nodes resected were involved with cancer and there was histological evidence of venous invasion. 

14. In view of these findings Mr Richards was referred to Associate Professor Gary Richardson for adjuvant chemotherapy given the presence of lymphatic, venous and peritoneal metastases.  Chemotherapy was commenced in late November or early December 2010 and was continued for six months.  Mr Richards tolerated the chemotherapy reasonably well, except for the development of neurotoxicity due to the chemotherapeutic agent Oxaliplatin.  This had to be ceased in April 2011.  In June of that year, CT scanning of the chest, abdomen and pelvis showed no evidence of recurrent disease.  The plan was that Mr Richards be reviewed six monthly.

15. When Mr Richards was seen again on 23 December 2011, a further CT scan revealed retroperitoneal tumour resulting in obstruction of the left ureter.  This was clearly recurrent disease and a further course of chemotherapy was instituted after ureteric stents were inserted by an urologist.  A different course of chemotherapy was provided and rapid response was experienced.  Repeat investigations had however revealed numerous liver metastases from the cancer of the colon.  Chest x-ray also showed nodularity which was thought to probably represent metastases.  Mr Richards did respond to the new chemotherapy regime although he experienced immediate side-effects after his intravenous chemotherapy. Following eight courses of treatment over a period of some months he was reinvestigated in April 2012 and found to have had an excellent response with only two small residual peritoneal deposits being demonstrated.  He was able to perform all the activities of daily living and his performance status was classified as normal. 

16. Treatment was continued.  But in July 2012 Mr Richards noted increasing lower back pain which did not radiate to his legs and had not caused any neurological symptoms or signs.  An MRI of Mr Richards’s lumbosacral spine was arranged and undertaken in August 2012.  This showed what Associate Professor Richardson described as relatively minor changes with some disc protrusion at L4/5 and mild bilateral facet joint arthropathy.  On completion of this cycle of chemotherapy Mr Richards travelled overseas for five weeks. During one flight he experienced a panic attack that responded to oxygen inhalation.  On return from his travels he was considered by Professor Richardson to be well.

17. In April 2013 Mr Richards returned to see Professor Richardson with increasing lower abdominal and back pain and CT scanning revealed recurrence of the retroperitoneal deposits of cancer which in Associate Professor Richardson’s opinion was the cause of his worsening symptoms.  A further course of chemotherapy was commenced. 

18. In June 2013 Mr Richards was reviewed by Professor Richardson’s registrar and reported that restaging on 31 May had confirmed the pre-existing hepatic metastases, retroperitoneal metastases which had increased in size and multiple pulmonary nodules, including new small nodules which could represent metastatic disease.  Chemotherapy was continued.  As of 18 June 2013, Mr Richards was able to carry out his normal activities of daily living although he had been noted to be struggling psychologically and was seeing a psycho-oncologist.  According to Professor Richardson, Mr Richards was still able to work  as a real estate agent. 

19. In July 2013 Mr Richards developed lower abdominal pain, particularly in the right groin.  A further CT/PET (positron emission tomography) scan was ordered.  This revealed several metastases in the mesentery of the abdominal cavity and further metastases in the liver. Given the level of abdominal pain relating to the peri-umbilical mass, palliative radiotherapy was arranged and analgesia in the form of morphine mixture was increased.  With chemotherapy, the abdominal and back pain and  the pain in the right groin was said to have largely settled. 

20. In early December 2013 Mr Richards again complained of back pain radiating to his right hip.  Further scanning was arranged, given Mr Richards’s past history of degenerative lumbar spinal disease.  However, by January 2014 his renal function had deteriorated dramatically and was considered to be due to obstruction of his right ureter by retroperitoneal deposits of carcinoma.  A month or so prior to this report, Professor Richardson had considered that the back pain might respond to physiotherapy or an epidural injection.  By late January 2014 Mr Richards was in acute renal failure and delirious due to ureteric obstruction.  Further stenting of both ureters was contemplated.  His narcotic medication was reviewed and inpatient care recommended. 

21. Mr Richards gradually improved and by February 2014, as reported by Professor Richardson, was able to resume his normal activities of daily living and had been mowing his lawns using a ride-on mower.  He was said to be walking up to three kilometres per day.  His psychiatric state had also improved and this improvement was maintained over the following weeks.  Mr Richards was able to resume driving his car.  Chemotherapy was continued throughout this period and it is reported that Mr Richards was still able to walk two to three kilometres per day in April 2014. 

22. However, in late May 2014 Mr Richards required admission to hospital because of increasing mental confusion and lethargy.  He was found to be in acute renal failure again due to bilateral ureteric stent compression.  A nephrostomy and later bilateral ureteric stenting was performed.  While in hospital, Mr Richards developed evidence of bowel obstruction and further investigation revealed compression of the remaining large bowel.  Investigation by the urologist, Mr Redgrave, confirmed that the ureteric stent obstruction was due to retroperitoneal secondaries.  The stents were replaced with metal compression-resisting prostheses. 

23. In late May 2014 Dr Keith Noack, a gastroenterologist, performed a colonoscopy which revealed stricture of the colon at 20cm from the anus and irregularity of the colon more proximally, which was considered to be due to peritoneal malignant deposits.  A 9cm metal stent was inserted to bridge the stricture.

24. Chemotherapy was ceased after this last intervention and Mr Richards was advised to visit his son in Broome, a trip he had been planning for some time.  The trip was undertaken but Mr Richards became unwell and was readmitted to hospital on 23 June 2014 for palliative care. He died on 15 July 2014 from widespread metastatic colonic carcinoma. 

25. As previously stated, DVA did not accept Mr Richards’s carcinoma of the colon was a war‑caused disease. 

    EVIDENCE BEFORE THE TRIBUNAL

    Mrs Janet Richards

26. Mrs Richards’s evidence is summarised under BACKGROUND TO THE APPLICATION she having confirmed  her husband’s symptomatology throughout their married life, including the symptoms of PTSD, hearing defect, Tinea and fungal infection of groins and the development of carcinoma of the colon.  It was her evidence that Mr Richards had suffered from back pain since the 1980s and frequently localised this to the right sacroiliac joint region. At times she had noted he walked with a limp but could not recall which leg was involved in the limp. 

27. Mrs Richards disagreed with Professor Richardson’s reports of March 2014 stating that Mr Richards was capable of walking three to four kilometres per day.  She believed he needed assistance in every facet of daily living and could walk only short distances.  She agreed that her husband’s back pain varied in intensity and was greatly improved after each bout of chemotherapy.  She denied that he had ever suffered from referred pain to the lower limbs in the form of sciatica or real shooting pain, merely pain and a rash in his right groin.  The right groin rash was diagnosed Keratosis Follicularis and had been accepted as a war-caused condition.  In relation to her husband’s back pain, Mrs Richards gave evidence that they had had to obtain stiff-backed chairs and a sofa 12 to 18 months before he died and that when he drove his car he required a cushion behind his back. 

28. Mrs Richards estimated her husband’s erectile dysfunction had been present for years and that all sexual activity had ceased at the end of 2012.  She also advised that her husband had stopped gardening 12 months before he died.  Previously he had always mown the lawns and tended the flowerbeds.  Mrs Richards told the Tribunal that her husband’s  former employees still continued to visit her and assist in the gardening.  During the 12 months prior to her husband’s death Mrs Richards had assumed responsibility for any long-distance driving such as visiting their daughter, who lives in the Macedon/Gisborne area. 

    Mrs Sarah Williams

29. Mrs Williams provided a statement dated 9 June 2015. In her evidence she confirmed that as a  child she had been told that when playing tennis she should hit the ball directly back to her father as he could not run to return it.  She had noted that after spraying two acres with Roundup in the 1990s her father had complained of backache.  She confirmed that in the last year or two before her father’s death their mother drove to Gisborne and, as she described it, her father would hobble inside and fall asleep.  In general her father’s mobility had been limited in the last year of his life and he was no longer able to walk the one kilometre circuit around her country property. She disagreed with Professor Richardson’s report that as of March 2014 her father was walking three to four kilometres per day.  Referring to Mr Richard’s long-standing tinnitus Mrs Williams confirmed her mother’s evidence that he listened to television, the radio or classical music in order to dampen his tinnitus.

    Dr Laurie Warfe, treating general practitioner

30. Mr Richards had attended Dr Warfe from late 2007.  Dr Warfe provided two reports to Mrs Richards‘ solicitors and his clinical records had been summonsed.

31. Dr Warfe gave his evidence by telephone, confirmed the contents of his reports.  He said that he had first seen Mr Richards in 2007, at which time he was attending predominantly for the prescribing of anti-depressants and Viagra.  These medications had originally been prescribed by Dr Pomorin for Mr Richards’s PTSD condition.  Dr Warfe was of the opinion that Mr Richards’s PTSD was well controlled and stable during the time he treated him and only became problematic in terms of symptoms when Mr Richards was extremely stressed or suffering from an acute illness.  This excellent control had enabled him to work full time as a real estate agent.  While Dr Warfe had diagnosed spondylosis of the lumbosacral spine with L4/5 disc degeneration, he agreed that his notes recorded a complaint of low back pain for the first time on 9 December 2011. 

32. In examination-in-chief Dr Warfe could not recall entries in Mr Richards’ medical records relating to muscle wasting and coccygeal pain of 28 December 2012; but as far as he could recall Mr Richards’ site of back pain remained the same throughout his illness; although the pain that Dr Warfe had associated or attributed to lumbar spinal spondylosis was supervened by metastatic malignancy and the L4/5 pain lessened in comparison.  Dr Warfe was asked to comment on the serial CT scans and the single MRI (magnetic resonance imaging) scan involving Mr Richards’ lumbosacral spine and was of the opinion that the CT scans of 3 December 2013 and that of 9 December 2011 showed essentially the same changes i.e. the changes had not progressed. 

33. In his cross-examination, Mr Rudge took Dr Warfe to the radiology reports and the fact that following the CT scan in 2011, Mr Richards had been reassured as the changes were considered minor given that he was 65 years old.  Dr Warfe could not comment as these reassurances as they had been given by another general practitioner.  Dr Warfe was aware of Associate Professor Brophy’s review of the 2012 MRI and his opinion that this had shown minor disease and indicated that the back pain arose from metastatic carcinoma; but Dr Warfe rejected this suggestion on the basis that Associate Professor Brophy was not a treating doctor.   Mr Rudge pointed out that the first entry in Dr Warfe’s notes of back pain were made 12 months after the carcinoma had been diagnosed. Dr Warfe did not have an explanation; nor could he comment on the temporal relationship between Mr Richards improvement in his back pain during courses of chemotherapy and relapses in this pain intensity after chemotherapy had ceased.  Dr Warfe said the back pain may have been due to cancer spread or degenerative disease. 

    Mr Keiran McAuley

1. Mr McAuley gave his evidence by telephone.  He was Mr Richards’ next door neighbour and had purchased his property through Mr Richards’ real estate agency.  He first become aware of Mr Richards’s back pain when the two of them were repairing fencing in an adjoining paddock in about 2009.  Under cross-examination, Mr McAuley said Mr Richards’ pain onset had occurred after an hour or more of heavy fencing work. 

2. In about 2013 Mr McAuley had observed that Mr Richards was having difficulty getting out of low chairs and that he was no longer able to use his ride-on mower. On occasion Mr McAuley had mown the lawns when asked to by Mrs Richards, and he had done it once at Mr Richards’ request, although Mr Richards was not keen for others to ride his mower.

   Associate Professor Brian Brophy

3. Associate Professor Brophy provided two reports at the request of the Respondent and gave evidence in person.  Professor Brophy had been provided with all relevant medical reports and the actual films of the MRI. His assessment was based solely on the medical reports and the investigations. 

4. In his evidence Professor Brophy addressed the earlier radiological findings, which in his opinion were mild, aged-related, degenerative changes of the lumbosacral spine.  On clinical grounds there were no reports of radiculopathy or spinal claudication and this formed the basis of his final opinion that Mr Richards’ severe pain in the lower lumbar and sacral region was secondary to spread from the carcinoma of the colon.  This opinion was supported by the fact that at the time of resection in 2010, Mr Richards’ carcinoma was a Dukes C on staging with recurrent disease being demonstrated shortly thereafter, commencing with left ureteric obstruction in 2011 due to retroperitoneal malignant deposits. 

5. For the benefit of the legal representatives, Professor Brophy, at my request, described the anatomy of the retroperitoneal space.  He gave evidence that the PET/CT (positron emission tomography combined with computerised tomography) of 8 October 2013 had revealed a large posterior malignant pelvic mass, the malignancy being delineated by the PET component of this investigation.  This mass was situated immediately in front of the sacrum.

6. Being an experienced spinal neurosurgeon with the expertise to interpret such studies, as well as reading the reports Professor Brophy looked at the MRI films himself.  In his opinion the changes in Mr Richards’s bony vertebral column were very minor for his age and he did not anticipate that they would have further deteriorated over the next 12 months, particularly as Mr Richards had been reported on several occasions to have been walking several kilometres a day and mowing lawns until late 2013, some six months before he died.  This was further supported by the correspondence between Mr Pravin Ranchod, colorectal surgeon, and the Oncology Unit dated 26 June 2014. Mr Ranchod had seen Mr Richards with a view to performing a colostomy as there had been progressive persisting malignant bowel obstruction and in particular narrowing of the colorectal stent recently inserted. The colostomy was being considered purely for palliation and symptom control given Mr Ranchod’s comment that he found Mr Richards to be systemically well and able to cope with such a procedure.  The decision as to whether to proceed to colostomy was to be made by the patient and his family.

7. Under cross-examination, Professor Brophy agreed that it was correct to consider all possible causes of the  Mr Richards’ back pain. While he had not seen the CT of 2013 which showed a broad based disc bulge L4/5, he said one could assume it was the source of the pain but doing so would, in his opinion, be very wrong as there were multiple factors to be considered.  He confirmed that he had taken into account the statement of both Sarah Williams and Mrs Richards, regarding Mr Richards’ tennis playing restrictions and Mr McAuley’s evidence as to Mr Richards experiencing back pain after one hour of erecting fencing. He had however noted there was very little in the way of documentation of any back pain in the treating general practitioner’s medical records.

8. Professor Brophy confirmed that the GARP (Guide to the Assessment of Rates of Veterans’ Pensions Fifth Edition) rating that he had provided in his report of 10 December 2015 (Exhibit R5) had been based on the general practice and oncology records and had only been estimated in terms of spinal, that is bone and disc, pathology at a total of 10 points. This contrasted with Dr Rossiter’s estimate of 15 points and that submitted by Ms Ryan of 50 points under the Chapter 3 Tables.   

9. On re-examination Professor Brophy was taken to an entry of 4 December 2013 where Mr Richards had been admitted as a day case for a CT-guided epidural injection because of his back pain and this had been coded as being performed for lumbar canal stenosis (page 62, Exhibit R2).  Professor Brophy again stated that there was no evidence of canal stenosis in any of the imaging performed and that the use of epidural and spinal steroid injections was a commonly performed procedure that lacked any scientific support. 

   DOCUMENTARY EVIDENCE

10. The Tribunal has been provided with a great deal of documentary evidence including all of the reports from the treating oncologist, Professor Richardson commencing on November 2010.

11. The Tribunal has been provided with apparently the complete record of Cabrini Health Day Oncology (Brighton) (112 pages, Exhibit R2), the results of blood tests and radiology throughout the period of Mr Richards’ treatment (105 pages, Exhibit R4) and the record of communications and some results from Oncology Clinics Victoria, in particular those of Professor Gary Richardson (71 pages, Exhibit R3). Mr Richards attended this oncology clinic from November 2010 until July 2014. Mr Richards died while an inpatient at Cabrini Hospital, Brighton.

12. From late 2010 until July 2014 Mr Richards had five courses of chemotherapy.  The first was a 12-week course between December 2010 and May 2011, the chemotherapeutic agents being given intravenously at two weekly intervals.  The second course ran from January 2012 to 29 May 2012 and was again for 12 treatments.  The third course was from July 2012 to January 2013, a total of eight treatments at two weekly intervals using a different drug regime.  The fourth course, initially planned for six treatments commencing on 10 April 2013, was continued for two or perhaps three additional treatments.  The fifth course commenced on 4 February 2014 and appears to have ceased in May 2014; after which time palliative treatment was provided.  In all there appear to have been 48 attendances for chemotherapy treatment and several short term admissions prior to the final admission.

13. Throughout the period of chemotherapy Mr Richards developed several complications. The first of these was peripheral neuritis attributed to the drugs used. This caused tingling or paraesthesia, pain and numbness in his feet. He also developed blisters and ulceration of the feet and a follicular pustular rash involving his face and trunk, these being  well‑documented side effects of treatment with the chemotherapeutic agent Cetuximab.

14. There appears to be a pattern in that he improved with each course of chemotherapy but relapsed with signs of increasing metastases from his carcinoma of the colon at reducing intervals - e.g. there was a six month interval between his first and second courses, a two month interval between courses three and four, and an apparent two month remission period between courses four and five. 

15. On every occasion that Mr Richards presented for chemotherapy he was assessed by the oncology nursing staff who completed a questionnaire according to protocol.  This questionnaire is detailed and amongst the questions asked is one related to the presence of any musculoskeletal symptomatology. In the forty-eight reported attendances and three more detailed assessments Mr Richards admitted to suffering from back pain on five occasions.  On two of those occasions it was coccygeal pain which investigation showed to be associated with degenerative changes in the coccyx; and on three occasions it was lumbosacral. The latter was rated as being two out of 10 on the visual analogue scale.  The remaining three reports of back pain occurred in 2014 and the pain was said to be controlled by Panadol. On 29 April 2014 Mr Richards admitted to occasional backache.  There had been a complaint of back pain on 12 November 2013.  These questionnaires, and in particular the admission forms, also assessed Mr Richards’s ability to move when seated or in bed. The form he completed on 4 December 2013 stated he did not need any assistance in moving or when lying in bed.  When seen by Professor Richardson on 3 December 2013, Mr Richards had informed him of this back pain.  Following which, he underwent further radiological investigation and on 4 December 2013 an epidural injection of long acting local anaesthetic and cortico-steroids at the L4/5 level was performed. When telephoned on 5 December 2013, Mr Richards was unsure if this had helped in any way. He continued to take his Panadol and morphine mixture as usual. 

16. In relation to this complaint of back pain, Professor Richardson had written to Dr Warfe on 12 November 2013 reporting that Mr Richards continued to have some back pain radiating into his right hip, although his abdominal and right groin pain had improved significantly with both radiotherapy and the use of Lyrica. Professor Richardson concluded that this residual back pain was related to what he termed a prolapsed disc previously diagnosed.  He had referred Mr Richards for physiotherapy but advised that an epidural injection might be required.  The Tribunal notes that Mr Richards had a broad based bulge as opposed to a prolapse of any disc.  A repeat CT scan of the lumbosacral spine was ordered and the CT scan of 3 December 2013 concluded there was a broad based disc bulge at L4/5 with bilateral L4/5 arthropathy and mild bilateral subarticular recess narrowing with potential compromise of the traversing bilateral L5 nerve roots.  There was no significant canal stenosis.  In effect, this did not reveal any change from the original CT spinal scan of 2011. 

17. In numerous reports from Professor Richardson to Dr Warfe and other treating doctors, Professor Richardson had recorded the evidence of progressive retroperitoneal disease as determined by PET/CT scanning. The latter had on 30 July 2013 shown a large left sided mass at the brim of the pelvis on the left side and mesenteric nodules at the umbilical level.  The scans throughout this period had shown progression of both the liver and pulmonary metastases.

18. Shortly after the review in December 2013 Mr Richards presented in acute renal failure with mental disorientation. He was admitted to Cabrini Hospital (Malvern) for further investigation. The acute renal failure was confirmed as due to bilateral hydronephrosis secondary to obstruction of both ureters by retroperitoneal tumour as had been the case in mid-2013 and given rise to intermittent right loin pain.  The stents had required changing as a result of encrustation on several occasions. 

19. As previously noted, Mr Richards was admitted to Cabrini Hospital Malvern on 7 January 2014 with acute renal failure and underwent urgent right nephrostomy. The nephrostomy was performed percutaneously. This involves a small incision in the loin over the kidney and insertion of a guide wire and then a 9 French catheter to drain urine from the pelvis of the kidney.

20. Mr Richards was to resume chemotherapy.  However, on 12 May 2014 he suffered a fall, hitting his head and became mentally confused.  He was readmitted to hospital were a CT scan of the brain was performed. This was normal and once more he was found to be in acute renal failure.  A right nephrostomy was performed on 14 May 2014.  The ureteric stents were then replaced with metallic stents to prevent further compression.

21. On 16 May 2014 Mr Redgrave wrote that it was clear that there was malignant infiltration of Mr Richards’ retroperitoneum causing marked compression of the ureteric stents.  On this basis he had removed the previously inserted non-rigid stents and replaced them with metallic resonance core stents.

22. Professor Richardson’s letters to Dr Warfe both before and after November 2013 attribute all Mr Richards’s symptoms to his widespread malignancy and particularly the retroperitoneal deposits of tumour. 

23. Mr Richards’s renal failure and the decompression of his bilateral hydronephroses were sufficiently improved for him to visit his son in Broome for a period of 10 to 14 days. Prior to going to Broome, Mr Richards had undergone insertion of a large bowel stent as he had developed a large bowel obstruction due to malignant stricturing of the bowel between 10 and 20 centimetres from the anal verge.  Further investigation in late June 2014 demonstrated further large bowel obstruction due to extrinsic compression.

24. Mr Pravin Ranchod considered that a palliative colostomy was appropriate as Mr Richards was now resistant to chemotherapy and had extensive peritoneal and mesenteric disease.  As there are no further entries regarding this offered treatment, it is assumed that it was refused and that Mr Richards thereafter was treated with palliative care.  It is noted that on 1 July 2014 under ultrasound control, 2900 ml of ascites was aspirated from Mr Richards’s peritoneal cavity.

25. Mr Richards’ Certificate of Death completed by Dr K Morris, the oncology registrar, certified the cause of death as metastatic carcinoma of the colon of four years duration. 

    Combined Impairment Report dated 4 January 2013 prepared by Dr Iain Rossiter

26. Dr Rossiter provided a detailed report, based on data provided by Dr Warfe, on 17 December 2012, with reference to the various investigations.  These estimations were made in accordance with GARP and provided a total impairment rating (rounded) of 65 points, these 65 points, adjusted for age where applicable, were as follows:

Summary
Hearing and Tinnitus  (5, 4)		9 points
Emotional and Behavioural		38 points
Spine and Limbs – Thoraco-Lumbar Spine		8 points
Spine and Limbs –Lower Limbs/Sciatica		5 points
Spine and Limbs – Resting Joint Pain		2 points
Skin Disorders		5 points
Disfigurement & Social Impairment		2 points
Activities of Daily Living		10 points
Sexual Function		10 points
Total Impairment (rounded):		65 points

Veterans’ Review Board Decision (VRB)

1. The VRB also made calculations as to Mr Richards’s combined impairment rating as follows:

Accepted Disability		Table	Ratings
Lumbar spondylosis
Loss of function, walking	3.2.2	5
Loss of spinal function, 25%	3.3.1	(10) 8
Resting joint pain	3.4.1	5
Post-traumatic stress disorder	Ch 4	38
Hearing loss of 7.9%	Ch 7	4
Tinnitus	7.1.11	5
Erectile dysfunction	10.1.1	10
Skin: keratosis follicularis, tinea	11.1	5
Muscle tension headaches	16.3	10
Disfigurement and social impairment	17.1	5
Combined impairment rating	18.1	65

This clearly also gives a combined impairment rating of 65.  The VRB have continued Mr Richards’s pension at 100 per cent of the general rate, having found his combined impairment rating at 65 and his lifestyle rating on average at 5.  On both counts, Mr Richards fell short of the requirements of s 22 of the Act in order to satisfy the extreme disablement adjustment payment. 

RELEVANT LEGISLATION

1. Section 22 of the Act is concerned with  extreme disablement adjustment (EDA) and provides:

   22  General rate of pension and extreme disablement adjustment

   (1)This section applies to a veteran who is being paid, or is eligible to be paid, a pension under this Part, other than a veteran to whom section 23, 24 or 25 applies.

   (2)Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war caused injury or war caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war caused injury or war caused disease, or both, as the case may be.

   (3)For the purposes of this section, the maximum rate per fortnight is $338.94 per fortnight.

   (4)Where:

   (a)either:

   (i)     the degree of incapacity of a veteran from war caused injury or war caused disease, or both, is determined under section 21A to be 100% or has been so determined by a determination that is in force; or

   (ii)     a veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the maximum rate per fortnight specified in subsection (3);

   (b)the veteran has attained the age of 65;

   (c)the veteran has an impairment rating of at least 70 points and a lifestyle rating of at least 6 points, each determined in accordance with the approved Guide to the Assessment of Rates of Veterans’ Pensions; and

   (d)the veteran is not receiving a pension at a rate provided for by section 23, 24 or 25;

   the rate at which pension is payable to the veteran is $510.40 per fortnight.

   (5)For the purpose of subsection (4), a veteran who has been granted a pension at a rate specified in subsection (3) or provided for by section 23, 24 or 25 shall be taken to be receiving a pension at the rate specified in, or provided for by, the provision concerned even if:

   (a)the rate has been reduced, or the pension is not payable, because of section 26, 30C, 30D or 74;

   (b)amounts are being deducted from the pension under section 30P, 79 or 205; or

   (c)the pension has been suspended under subsection 31(6).

2. The EDA was introduced in 1988 and in the Second Reading Speech, Veterans’ Affairs Legislation Amendment Bill 1988, it was said that the purpose of the EDA was to assist those frail, aged Veterans who are not adequately compensated by the present disability pension structure and who are severely incapacitated by the war or defence caused disabilities.

   SUBMISSIONS

3. Ms Ryan limited her submissions to the question of extreme disablement adjustment in relation to the late Mr Richards’ accepted condition of lumbar spondylosis resulting in back pain.  She contended that the Tribunal should consider the lumbar back pain during the assessment period which ran from 27 August 2012 to the date of Mr Richards’ death on 15 July 2014.  At the time he had applied for the EDA Mr Richards was aged 66 and had been determined not to meet the criteria of s 23 or s 24 of the Act in relation to the intermediate or special rate of pension. 

4. Ms Ryan addressed the evidence before the Tribunal relating to Mr Richards’s low back pain and the attracted impairment rating and lifestyle ratings as required by s 22(4)(c) of the Act.  She submitted that the Tribunal should give the greatest weight regarding the cause of Mr Richards’s low back pain to the evidence of Dr Warfe, the letter dated 12 November 2013 from Professor Richardson suggesting the back pain may be due to spondylosis and assign little weight to the opinion of Professor Brophy as he had not seen or treated the veteran.  This submission was made despite the fact that Dr Warfe, the general practitioner, had not made any entries regarding the presence of back pain for many years and there were no entries relating to examination of Mr Richards’ lumbosacral spine including an estimation of the range of movement of the spine. 

5. Ms Ryan also referred to the evidence of Mr Richards’s daughter Mrs Williams and his neighbour Mr McAuley with respect to Mr Richards’s observed levels of back pain.  It was argued that the accepted condition of lumbar spondylosis only had to be a contributing factor in terms of Mr Richards’s extreme disablement and not a solitary or alone factor and attracted the standard of proof of on the balance of probability.  

1. Ms Ryan presented the Tribunal with her assessment under the GARP of both the level of impairment and lifestyle ratings.

2. The Impairment Ratings were provided in the Applicant’s Statement of Facts and Contentions with a total in excess of the requisite 70 points.  This total was constituted to by an impairment rating of 16 for lumbar spondylosis with L4/5 disc degeneration; at least 50 points for the general considerations of referred pain, activity level and need for assistance under Table 3.2.2 being immediately prior to death;; 15 points under Table 3.4.1 for discomfort when seated; 10 points under for loss of hearing under Table 7.1.9 (4 points) and Tinnitus assessed under 7.1.11 (10 points).  In relation to the other accepted conditions, it was contended that the Keratosis Follicularis attracted 10 points under Table 11.1; Mr Richards PTSD under Tables 4.1 to 4.8 attracted a rating of 42 points; Erectile Dysfunction of 10 points, Headache under Table 16.3 of 10 points and Disfigurement and Social Impairment under Table 17.1 of 5 points. This gave an impairment rating after applying the combined values chart of well in excess of 70 points.

3. In terms of the lifestyle rating, Ms Ryan submitted that the rating should be 6 - on the basis that at least by the time of Mr Richards’ death, his personal relationships were affected to a level of 5, his mobility 6, his recreational community activities 6, and his domestic activities 6. 

4. The Tribunal thinks it is appropriate to reiterate the impairment rating and lifestyle rating estimated by the Department Medical Officer, Dr Iain Rossiter, in January 2013 given Dr Rossiter’s lengthy experience in such matters.  This assessment was made essentially on the reports and evidence contained in Dr Warfe’s clinical notes and provided an impairment rating of 9 points for the  hearing defect and tinnitus, 38 points for emotional and behavioural aspect (PTSD), 8 points for spine and limbs (thoracic lumbar spine), 5 points for lower limbs and sciatica, 2 points for resting joint pain, 5 points for skin disorders, 2 points for disfigurement and social impairment, 10 points for activities of daily living, and 10 points for sexual function  Rounded up in accordance with GARP, and allowing for age factors, this produced a total impairment rating of 65 points.  These are detailed in the T-documents at T8.  Dr Rossiter did not address the lifestyle rating  because, on his calculations, Mr Richards did not meet the required impairment rating of 70 points. 

   RESPONDENT SUBMISSIONS

5. Mr Rudge agreed that the only issue before the Tribunal was the estimation of the late Mr Richards’s impairment rating and lifestyle rating in order to determine if he qualified for the EDA.

6. Mr Rudge submitted that the Tribunal should look at the situation before and after Mr Richards was diagnosed with carcinoma of the colon.

7. Mr Rudge contended that before the diagnosis of the carcinoma of the colon Mr Richards had lived an active working life, was extremely successful as a real estate agent and it was clear from the evidence that his staff respected and loved him.  He loved to garden and was very possessive of his ride-on mower, which he used regularly until at least 2009 and occasionally thereafter.  He was involved in the husbandry of the cattle he and his wife ran on the adjoining leased 50 acres and had been earlier been active in the rearing and riding of horses.  While there was evidence that he developed back pain after one hour of fencing, this was not surprising given these tasks were performed at the age of 63. 

8. At the time of Mr Richards’ application for  an increase in pension and acceptance of carcinoma of the colon and lumbar spondylosis as being war-caused, Dr Rossiter had undertaken an impairment rating in accordance with GARP and concluded that Mr Richards did not meet the 70 point impairment rating required.  Based on the lifestyle questionnaire completed by Mr Richards and dated 19 September 2013, the VRB had assessed Mr Richards’s lifestyle rating at 5, having accepted the combined impairment rating of Mr Richards accepted war-caused medical conditions at 65 points.  The VRB considered ratings of 5 for mobility and domestic and employment activities as being generous, as was a rating of 4 for personal relationships.

9. Mr Rudge addressed the evidence before the Tribunal and submitted that there were no entries relating to back pain in Dr Warfe’s notes from the time he first saw Mr Richards in 2007 until late 2011 and no medication for back pain was prescribed until 2012 when a prescription was given for Voltaren.  In addressing the evidence of the Victorian Oncology Service and in particular the letters of Professor Richardson, Mr Rudge argued that there were no entries relating to back pain until November 2013 when Mr Richards had reported back pain radiating to his right hip; although Professor Richardson had commented on back pain on 21 August 2012 but after an MRI regarded the radiological changes as so mild as to be insufficient to be the cause of pain.  The Oncology Service records also revealed that early in 2013 Mr Richards had reported increasingly severe abdominal pain and a CT scan of his abdomen had shown retroperitoneal disease which Professor Richardson stated was clearly causing his symptoms. (page 41, Exhibit R3)

10. The Respondent relied on the opinion of Professor Brophy with respect to Mr Richards’ lumbar spine pathology.  The only measure of any reduction in the range of movement of Mr Richards’ spine was in the report of Dr Warfe accompanying the original claim of 27 August 2012.  This stated that there was a 25 per cent reduction.  Professor Brophy had been quite clear in rejecting any evidence that there was an objectively supported diagnosis of prolapsed L4/5 disc, having reviewed the MRI scans himself. 

11. Mr Rudge pointed out that the medical reports indicated that Mr Richards had been able to walk one kilometre one month prior to his death and he certainly travelled to Broome in that time frame.  He relied on the estimations of Dr Rossiter with respect to impairment ratings in accordance with GARP and the lifestyle ratings of the VRB.  In particular.  He argued that the psychiatric condition rating before the onset of Mr Richards’ colonic carcinoma was 16, in contrast to the Mrs Richards’ estimation of at least 50 points. While Mr Rudge conceded that Mr Richards was extremely disabled in the last two months of his life as a result of widespread metastatic carcinoma, he maintained that his lifestyle rating immediately prior to this had been correctly assessed at 3.

12. In response to the Respondent’s submissions, Ms Ryan again submitted that Mr Richards’ lumbar spondylosis did not have to be the only cause of his back pain; only a contributing cause.  With respect to the Respondent’s lifestyle rating estimations, Mr Ryan drew the Tribunal’s attention to the entries and reports made by Professor Richardson at page 43 of Exhibit R3, recording the development of recurrent panic attacks occurring at night.  These had settled since Ativan had been prescribed.  She also drew attention to the fact that Mr Richards had been referred to the Oncology Clinics Victoria psychologist to help deal with his psychological issues.  The Tribunal notes that this apparent deterioration had been attributed on 7 May 2013 to the stress placed on Mr Richards by his wife, who had been difficult throughout his illness. 

    TRIBUNAL’S DELIBERATIONS

13. The Tribunal’s determination is primarily dependant on the medical records, medical reports and opinions in order to determine whether the Mr Richards’ claim for EDA, continued posthumously by his widow, was due at least in part to his accepted war‑caused conditions.  The Tribunal accepts that Mr Richards had radiologically mild lumbar spondylosis with L4/5 disc bulge/protrusion.  However, the symptoms which may be attributable to these changes were not recorded by the treating general practitioner until 11 October 2011, when it was diagnosed as a back strain.  The Tribunal does note that both Mrs Richards and her daughter, Mrs Williams, reported that he suffered from low back pain for many years.  Mrs Richards’ evidence being that such was the case since she had first met him; and his daughter’s evidence of her awareness since about 1986.  Despite the family’s report of symptoms, it would appear that Mr Richards remained active in terms of his work duties, his gardening and his regular social games of tennis, the latter at least  until about 1990.

14. The first recording of back pain by Dr Warfe was nearly one year after Mr Richards had been diagnosed with the Dukes C carcinoma of the colon.  The classification of Dukes C was attracted by the fact that Mr Richards had a large bulky and ulcerated primary carcinoma with direct spread to the peritoneum overlying the large bowel, metastases in the lymph nodes and histological evidence of direct venous invasion.  In this interval, Mr Richards had undergone 11 months of chemotherapy and several CT scans had revealed liver, lymph node and lung metastases; and by December 2011, CT scanning had shown retroperitoneal deposits in what was described as the root of the mesentery.  The root of the mesentery is an anatomical structure arising from the posterior abdominal wall, where the peritoneum is reflected over the superior mesenteric artery and is intimately related to the second, third and fourth number vertebrae, the abdominal aorta and inferior vena cava, the lymphatic duct, the lumbar spine and both ureters. (see any recent edition of Grey’s Anatomy) In December 2011 Mr Richards’s left ureter was obstructed by extrinsic compression which according to the radiologists was due to retroperitoneal malignant invasion. 

15. Mr Richards had been reported by Professor Richardson to have developed neurotoxicity from the chemotherapeutic agent as early as 2011 and this was recorded in Dr Warfe’s clinical notes in July 2011.  This neurotoxicity involved the peripheral nerves in Mr Richards’s lower limbs, giving rise to numbness, tingling and pain. He also developed another well-documented side effect of the chemo-therapeutic agent being used, in the form of ulcers on both feet.  Mrs Richards and her daughter both described Mr Richards’ foot pain and tingling and his limited walking distance and his need to wear soft shoes as opposed to his normal R. M. Williams boots.  While they attributed this change to his spondylosis and possible sciatica there is no recorded history of Mr Richards having suffered from sciatica, that is pain radiating from his back to below his knee in either lower limb; and this was specifically recorded by Dr Warfe, his treating general practitioner, and addressed by Professor Brophy in his report upon not finding any evidence in the medical records of sciatica being diagnosed. In contrast the Oncology Clinic records document the symptoms described by Mrs Richards as being due to neurotoxicity (a peripheral neuritis) due to the chemotherapy (Cetuximab) agent being administered.

16. Mr Richards was documented as having  liver and peritoneal metastases as of 22 December 2011 (Exhibit R3, page 45) and while the deposits varied in size they responded incompletely to chemotherapy as his serum cancer markers in the form of CEA estimations remained elevated.  By 21 December 2011 he was suffering from left hydro‑nephrosis due to ureteric obstruction by retroperitoneal malignant deposits and required insertion of a stent. 

17. The Oncology Day Procedure Unit where Mr Richards received his five courses of chemotherapy and the Oncology Clinics Victoria records, in particular the letters of Professor Richardson provide documentary evidence of Mr Richards’s treatment and progress over three and a half years.

18. Throughout the period of Mr Richards’ chemotherapy, he underwent numerous radiological investigations relating  to his back and his metastatic carcinoma.  While many of the investigations were primarily to assess the progress of the metastatic carcinoma, the CT scan of 9 December 2011 and the MRI of 1 August 2012  were directed purely at Mr Richards’s lumbosacral spine. The CT scan was reported as showing only a broad based disc bulge and the MRI a shallow protrusion of L4/5 disc with mild bilateral facet joint arthropathy at L4/5.  These changes were described as mild and this has been verified by Associate Professor Brophy, who viewed the MRI scans.  There has been no objective evidence of any progression of Mr Richards’s spondylosis throughout the assessment period. 

19. In contrast, the radiological evidence relating to the malignancy in the retroperitoneal area has revealed progressive disease resulting in three episodes of ureteric obstruction and progressive pre-sacral pelvic disease considered to have caused the right groin and hip pain and later pain on the left.  This degree of retroperitoneal disease has fluctuated according to the treatment but has never resolved; and the description of it being in the root of the mesentery predominantly would explain both the ureteric obstruction and pain in the lumbosacral region bilaterally. Mr Richards underwent radiotherapy to this area in September 2013 under the direction of Dr David Blakey, a radiation oncologist, with the resultant diminution in his then anterior abdominal pain; and he was offered radiotherapy for his more posterior pain given the findings of the PET scan of August 2013.

20. Professor Richardson had throughout the course of Mr Richards’ chemotherapy provided regular reports to all other treating doctors from 16 November 2010 until 29 May 2014.  As is the normal practice for chemo-oncologists, he frequently included in his reports and letters, particularly those to Dr Warfe, his estimation of Mr Richards’ current ECOG performance status.  ECOG is an acronym for the Eastern Co‑operative Oncology Group and is a functional measure of the capacity of patients undergoing chemotherapy with a rating from zero to five.  Zero represents fully active, able to carry out all pre-disease performance without restriction; ECOG Grade 1 is defined as restricted in physically strenuous activity but ambulatory and able to carry out work of a light or sedentary nature and thereafter there are decreasing levels of impaired function and ECOG Grade 5 is dead. (American Journal of Clinical Oncology 5:649-1982).

21. Over the three and half year period when Professor Richardson treated Mr Richards, he made several ECOG assessments, all of which were either zero or one.  In his letter dated 18 March 2014 he stated that Mr Richards’ ECOG performance status was normal at zero.

22. In relation to Mr Richards’ PTSD, Dr Warfe, in his evidence before the Tribunal, stated that this had been generally very stable throughout with only occasional exacerbations due to stress, mainly related to Mr Richards relationship to Mrs Richards.  Mr Richards’ medication for his PTSD remained unchanged from 2004 and consisted of a small dose of the anti‑depressant Dothep.  For short periods Dr Warfe had prescribed an anti-anxiety medication without benefit.

23. Based on the medical evidence provided, the Tribunal accepts Dr Iain Rossiter’s impairment rating of 65 points (as assessed on 4 January 2013) except for the 5 points assigned for sciatica.  The Tribunal therefore arrives at a total of 60 points.  The Tribunal also accepts Mr Rudge’s submission, that while Mr Richards was extremely disabled from late May 2014, this was due to his progressive metastatic malignancy, secondary to the primary carcinoma of the colon, which is not an accepted condition.  It was not due, on the evidence, to any change in his pre-existing lumbosacral spondylosis.  By April/May 2014 Mr Richards had developed evidence of increasing retroperitoneal, peritoneal and pulmonary metastases and subsequently extensive omental disease, bowel obstruction and malignant ascites.

24. Mrs Richards has placed great reliance on Professor Richardson’s report to the general practitioner, dated 12 November 2013, in which he states that Mr Richards had some residual back pain radiating into his right hip despite a good response to chemotherapy (4^th course) and attributed this residual pain to what is described as his prolapsed disc rather than metastatic disease.  On this basis Professor Richardson had referred Mr Richards for physiotherapy, and if this was not beneficial, an epidural injection.  In the report preceding this opinion and dated 22 October 2013, Professor Richardson had advised that Mr Richards abdominal, back and right groin pain had settled with pain medication.  And in his letter of 5 December 2013 Professor Richardson advised that he was obtaining further scans and had ordered an epidural injection.  The CT lumbosacral scan of 3 December 2013 scans did not show any progression of the underlying spondylosis since 2011, with only a minor disc bulge at L4/5. The epidural injection had not provided any definite benefit 24 hours after its performance. (R2, page 71). Similarly, the reference by Professor Richardson to a L4/5 disc prolapse causing Mr Richards pain, in the letter of 21 August 2012, was refuted by the MRI of 1 August 2012 that showed minor changes with a shallow disc protrusion at L4/5 and minor facet joint arthropathy.  The Tribunal notes that on 21 August 2012 the Day Procedure Oncology Unit documented Mr Richards’s skeletal pain as being coccygeal.   

25. On 7 January 2014 Professor Richardson reported that Mr Richards’ kidney function had deteriorated dramatically due to the development of obstruction of his ureteric stents indicative of progressive metastatic involvement.  Thus, given the timeframe of these letters and the various investigation results, it is on the balance of probability, evident that the progression of Mr Richards’ pain related to the progression of the retroperitoneal metastatic disease.

26. The Tribunal does not accept Mrs Richards’ estimation of the impairment rating in relation to the PTSD, given Dr Warfe’s evidence that it was well controlled.  The evidence indicates that Mr Richards, until the diagnosis of his carcinoma, had good work and social relationships. While he did experience some nightmares and some reliving of his war‑time experiences, the evidence suggests he coped extremely well.

27. The Tribunal relies primarily on the report of Professor Brophy in relation to the documented objective lumbosacral spinal changes which he considered to be mild and age-related.  Professor Brophy had viewed the MRI scans himself, and as a spinal neurosurgeon, is well qualified to do so. Professor Brophy had estimated Mr Richards’s Impairment Rating (in accordance with GARP) for the spondylosis as 10 points.

28. The Tribunal accepts Professor Richardson’s opinion as of 29 April 2014, that:

    John remains clinically very well.  He had some mild intermittent back pain following moving wood which came on in the last three to four days.  He is not taking any medication for this.  Otherwise he has been well with a good appetite and no episodes of nausea of vomiting.

    And said further:

    John’s disease remains under good control and we will rescan him after Cycle 8.

    Two weeks later, Mr Richards was admitted to hospital with acute renal failure due to obstruction of his bilateral ureteric stents, a large bowel obstruction requiring stenting, left residual colon incomplete obstruction due to extrinsic compression and wide spread multiple peritoneal deposits.  Apart from a short period of about 10 days when he was able to travel Broome to see his son, he was readmitted to hospital as his malignancy progressed and thereafter received palliative care. Mr Richards was terminally severely disabled as a result of his malignant condition.

29. The Tribunal places greatest weight on and therefore accepts Professor Richardson’s estimation of Mr Richards’s ECOG status as being zero (normal) or 1 throughout the period up to May 2014.  The Tribunal agrees with Mr Rudge that Mr Richards’s lifestyle weighting, rounded off to the nearest whole number, was 3.  As a result, Mr Richards did not qualify for the EDA; and whether  he met an impairment rating of 70 points, for which the Tribunal does not find support, is irrelevant.

1. The Tribunal affirms the decision under review.

96.     I certify that the preceding 95 (ninety‑five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

........................................................................

Associate

Dated: 27 April 2017

Dates of hearing:	19 & 20 December 2012
Counsel for the Applicant:	Ms Fiona Ryan
Solicitors for the Applicant:	Williams Winter
Advocate for the Respondent:	Mr Ken Rudge - Department of Veterans' Affairs

97.

APPENDIX

APPLICANT

A1Statement of Janet Richards dated 9 June 2015

A2Statement of Sarah Williams dated 9 June 2015

A3Report from Dr Laurie Warfe dated 23 February 2016

A4Clinical Notes from Medical One Frankston

A5Statement of Keiran McAuley dated 21 October 2016

RESPONDENT

R1T-Documents

R2Oncology records of Mr Richards dated 04/11/11 and received 12 February 2016

R3Copy of Oncology Reports dated 1 Oct 2015

R4Copies of Radiological reports/tests dated 12 February 2016 (received)

R5Medical report of A/Prof Brophy dated 10 December 2015

R6Medical report of A/Professor Brophy dated 29 September 2016