Ronald Coughlan and Repatriation Commission
[2013] AATA 485
[2013] AATA 485
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3626
Re
Ronald Coughlan
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Professor Robin Creyke, Senior Member
Date 9 July 2013 Place Perth The Decision under review is Affirmed
...(Sgd) Robin Creyke......................
Professor Robin Creyke, Senior Member
CATCHWORDS
Veteran's Entitlements - Claim for Disability Pension due to Cerebral Ischaemiam Hypertension and Type II Diabetes Mellitus - Whether the Material Raises a Reasonable Hypothesis that the Claimed Conditions arose out of or were Attributable to Operational Service - Whether the Tribunal is Reasonably Satisfied that the Claimed Conditions arose out of or were Attributable to the Applicant's Eligible War Service or Defence Service - Applicant Unable to Satisfy any of the Relevant Tests
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
Repatriation Medical Authority, Statement of Principles concerning Hypertension, Instrument No 35 of 2003 as amended
Repatriation Medical Authority, Statement of Principles concerning Hypertension, Instrument No 36 of 2003 as amended
Repatriation Medical Authority, Statement of Principles Concerning Diabetes Mellitus, Instrument No 89 of 2011
Repatriation Medical Authority Statement of Principles Concerning Diabetes Mellitus, Instrument No 90 of 2011
Repatriation Medical Authority, Statement of Principles concerning Cerebrovascular Accident, Instrument No 51 of 2006Repatriation Medical Authority, Statement of Principles concerning Cerebrovascular Accident, Instrument No 52 of 2006
CASES
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Bendy (1989) 18 ALD 144
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Milenz (2006) 93 ALD 107
Humphrey Earl Ltd v Speechley (1951) 84 CLR 126
Roncevich v Repatriation Commission (2005) 222 CLR 115Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
Professor Robin Creyke, Senior Member
Mr Ronald Coughlan, born 1926, submitted a claim for disability pension for stroke (cerebrovascular accident) due to cerebral ischaemia, hypertension and Type II diabetes mellitus on 16 January 2012. On 21 March 2012, a delegate of the Repatriation Commission decided that the claimed conditions were neither war-caused, nor defence-caused.
The rejection was upheld by the Veterans’ Review Board (Board) on 16 April 2012. Mr Coughlan sought further review of that decision by the Tribunal on 22 August 2012.
The matter was heard in Perth on 20 June 2013.
Background
Mr Coughlan, served in the Australian Army from 18 June 1945 to 3 July 1974. He has the following periods of relevant service:
·18 June 1945 to 23 July 1948: eligible war service (World War 2)
·28 September 1966 to 4 December 1966: operational service (Vietnam);
·7 December 1972 to 3 July 1974: eligible defence service.
Medical examinations on service revealed the following concerning Mr Coughlan:
·19 July 1944 (initial medical): he was 5’10” and weighted 151 lbs. No abnormality was detected in his urine.
·11 June 1945: weight 151 lbs, blood pressure not recorded.
·5 January 1948 (discharge from wartime forces): he was 148 lbs; blood pressure 135/75; his urine contained neither sugar nor albumen.
·9 November 1951: blood pressure 148/85.
·24 January 1954 (on admission to hospital): blood pressure was 140/100.
·25 June 1957: blood pressure 160/90
·16 June 1958: medical certificate showed blood pressure 140/85 .
·14 July 1959, 9 June 1960: blood pressure was 150/98.
·13 June 1960: blood pressure was 150/90.
·13 June 1962: blood pressure 150/90.
·11 June 1963: blood pressure was 185/100 .
·26 June 1963: outpatient record showed blood pressure 160/90, reduced to 140/84 after rest; the doctor recommended that the annual medical should keep an eye on his blood pressure.
·9 June 1964: blood pressure was 165/90.
·25 June 1970 (medical examination for promotion): he was 69.75 inches tall and weighed 204 lbs; his blood pressure was 150/90. No medication was listed for blood pressure or diabetes.
·28 November 1972 (periodic medical board): 177.5cm and weighed 94.9kg; his blood pressure was 150/90. He was advised to lose weight.
·7 August 1973: A Medical Board conducted on that date noted a reduction in Mr Coughlan’s weight to 84.6kg since 28 November 1982. Initially his blood pressure had been 180/120, settling to 160/105. He was referred to a physician. The record was ‘labile hypertension’ leading to 0%-5% incapacity.
·16 August 1973: The clinical notes of the referring doctor showed blood pressure of 180/120 settling to 160/105. Dr GW Cooper, following the referral, reported blood pressure after short rest was 230/160 which settled with further rest to 190/120. He also suggested a trial of Valium 2mg tds and that ‘in view of this hypertension, I think it reasonable to arrange for an intravenous pyelogram and x-ray of the chest’ and to see him again in one month. He also recorded ‘light alcoholic intake’, no family history of hypertension, and ‘he denied any excessive nervous stresses’.
·13 September 1973: blood pressure was 130/85 after rest. Dr Cooper said his hypertension was labile and required no treatment other than a small dose of valium for four to six weeks.
·19 June 1974: Dr DL Gulland, physician recorded ‘hypertension was first discovered in July 1973’ with a drop to normal after some treatment. His general health was good, he was mildly obese and plethoric. Blood pressure was 200/120, settling to 185/115. Dr Gulland considered he had ‘significant hypertension’ which would require ‘continuous treatment’.
·24 June 1974: A Medical Board examination prior to discharge recorded Mr Coughlan’s height as 180cm, weight was 94kg, his blood pressure as 190/120. The examining doctors found him overweight but by less than 15 per cent and noted he was suffering from symptomless hypertension.
Mr Coughlan’s posting was to an Ordnance Corps where he was tasked with clerical and administrative work as a work-study operator. Notably he was involved in introducing a computer based accounting system, a novelty for the armed forces. This involved him in considerable travel around Australia, and was also the reason he was posted to Vietnam.
Legislation
The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act). The relevant parts of the Act are Part II concerning the disability pension arising as a consequence of operational service, and Part IV concerning disability pension arising from eligible or defence service.
In applying the standards of proof, Mr Coughlan’s conditions will be related to his service only if the material raises a connection between his condition and his service, and there is in force a relevant Statement of Principles (SoP) that upholds the contention that his condition is, according to the relevant standard of proof, related to his service.[1]
[1] Veterans’ Entitlements Act 1986 (Cth) (Act) s 120B2), (3),.
The standard of proof for conditions which arose during operational service is the reasonable hypothesis standard;[2] the standard of proof for eligible war service or defence service is the reasonable satisfaction standard.[3] The relevant Statements of Principle for the claimed conditions, depending on which standard of proof applies, are set out in the table.[4]
[2] Acts 120(1), (3).
[3] Act s 120(4).
[4] Act ss 120A, 120B.
Section 196 (14) provides:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or …
(d) it was contributed to in a material degree by, or was aggravated by, that service; or …
(f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service.
Disability
Reasonable hypothesis
Reasonable satisfaction
Hypertension
No 35 of 2003, amended by No 3 of 2004 and No 11 of 2008
No 36 of 2003 (amended by No 4 of 2004 and No 12 of 2008)
Cerebrovascular accident
No 51 of 2006 (amended by No 123 of 2011)
No 52 of 2006 (amended by No 124 of 2011)
Diabetes mellitus (Type II)
No 90 of 2011
No 89 of 2011.
Issues
The issues are:
·Whether the Tribunal is satisfied that the material raises a reasonable hypothesis that the claimed conditions arose out of or were attributable to, or were contributed to in a material degree, or aggravated by, the particular circumstances of Mr Coughlan’s operational service.
·Whether the Tribunal is reasonably satisfied on the material that the claimed conditions arose of or were attributable to, or were contributed to in a material degree or aggravated by, the circumstances of Mr Coughlan’s eligible war service or his defence service.
Consideration
Mr Coughlan lodged his application for acceptance of liability for the three conditions on 16 January 2012. Accordingly, the relevant Statements of Principles are those listed at paragraph 11 of these reasons, being the Statements of Principles in force at the time of the Tribunal’s decision, as well as at the time of the Commission’s decision.[5]
[5] Repatriation Commission v Gorton (2001) 110 FCR 321.
Mr Coughlan made a claim for three conditions, stroke (cerebrovascular accident), hypertension and diabetes mellitus on 16 January 2012. As his application is within time, his date of effect is the earliest date the Board could have chosen, namely 21 November 2011.[6] He claimed that his stroke was due to his diabetes and hypertension.
[6] Act s 177(2)(a).
His diabetes and hypertension come within the meaning of a ‘disease’, that is, ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.[7] They are physical disorders, defects of morbid conditions of gradual development, and the Tribunal so finds.
[7] Act s 5D(1).
His stroke, according to the report, dated 25 August 2009, of Dr AA Klimaitis, consultant physician, appears to have been due to an embolism, that is, the sudden lodging of an embolus in the blood stream causing a blockage. It was diagnosed as cerebral ischaemia,
There is some doubt as to the cause of Mr Coughlan’s stroke. Dr Yin said it was due to atrial fibrillation caused by hypertension. Whether due to hypertension or an embolus, the atrial fibrillation, or slowing or irregularity of the beat of the heart, can cause pooling of blood leading to clots, which in turn can block the arteries, in turn causing a stroke. The blockage can be gradual or a sudden event. In Mr Coughlan’s case, the description of his stroke, a fall while out walking, is consistent with a finding that the causative event was sudden, not a gradual worsening. However, since the definition of ‘disease’ includes a physical disorder, defect, or morbid condition of sudden development, Mr Coughlan’s stroke is also capable of falling within the definition of ‘disease’.
It was common ground that Mr Coughlan suffers or has suffered from each of the three claimed conditions and the Tribunal is satisfied that this concession was appropriate.
The Tribunal notes that Mr Coughlan’s periods of eligible war service and operational service are relatively short. His eligible war service was just over three years from 18 June 1945; his operational service in South Vietnam in 1966, was just under ten weeks, and his eligible defence service, was for 19 months from 7 December 1972.
As he has operational service, eligible war service and eligible defence service, in establishing whether any of his three claimed conditions arose out of or were attributable to service[8] the relevant Statements of Principles for each of his claimed conditions must be taken into account. The Statements of Principles contain factors appropriate to satisfy either the reasonable hypothesis standard of proof,[9] or the reasonable satisfaction standard of proof.[10] Mr Coughlan must be able to establish that the circumstances of his service meet one or more of the factors in the relevant Statements of Principles. In this application, the Statements of Principles for the three conditions include either alcohol consumption or obesity/being overweight, or both, as factors. It follows that there is an interrelationship between the relevant Statements of Principles.
[8] Act ss 9, 70.
[9] Act s 120A.
[10] Act s 120B.
The Tribunal notes that for an injury or disease to have arisen out of, or be attributable to eligible war service the conditions of service must contribute in more than a minimal way to the condition.[11] Further that contribution must be shown to be greater in extent than would occur in civilian life.[12]
[11] Repatriation Commission v Bendy (1989) 18 ALD 144.
[12] Ibid.
For a disease or injury to be aggravated by service (s 9(1)(e)), there must be a pre-existing injury or disease. Mr Coughlan’s hypertension was not present prior to his service from 1945. The Tribunal has rejected Dr Storer’s comment that Mr Coughlan was taking medication for his hypertension while in Vietnam in favour of a finding that the clinical onset of his disease of hypertension did not occur until 1973. So his condition of hypertension cannot have been aggravated by his service since the clinical onset did not occur until at the earliest just prior to his discharge in 1974.
All the relevant Statements of Principles also use the expressions ‘date of clinical onset’ or ‘clinical worsening’. The meaning of those terms has been explored in the cases.
‘Date of clinical onset’
The expression ‘clinical onset’ is not defined in the Act. In Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J summarised the effect of the decision of the Full Federal Court in Lees v Repatriation Commission in the following way:
·The meaning of the expression ”clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either: when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
·when a finding is made on investigation which is indicative to a doctor that the disease is present.
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.[13]
[13] Kaluza v Repatriation Commission [2010] FCA 1244 at [92]-[93].
Stroke
According to Dr David Storer, who completed the Medical Report element of the claim for pension by Mr Coughlan, he suffered a stroke on 17 August 2009. The history is that he was walking in the park, suddenly became dizzy, staggered and then fell. Accordingly, that is the date of onset of that condition.
Diabetes Mellitus (Type II)
According to Dr Storer Mr Coughlan’s diabetes mellitus, Type II was first diagnosed on 19 January 1991. So although Mr Coughlan stated that he first noted symptoms in 1990, the Tribunal prefers the clinically based views of Dr Storer, and finds that 19 January 1991 was the date of onset of this condition.
Hypertension
The date of clinical onset of Mr Coughlan’s hypertension is more problematic. Hypertension is defined in the relevant Instrument (No 35 of 2003) as:
… a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg or where the diastolic reading is greater than or equal to 90mmHg; or the regular administration of antihypertension therapy to reduce blood pressure.
The definition excludes temporary elevations in blood pressure, as emphasised by the requirement that the blood pressure reading be the ‘usual’ reading.
According to his defence medical records Mr Coughlan had readings above either 140 systolic or 90 diastolic from as early as 1951. Mr Coughlan said in evidence that during service a couple of doctors had said his blood pressure was up a bit. However, it was not until August 1973 that a defence doctor was sufficiently concerned to refer him to a physician. The physician did recommend medication at that time, but only for two months. However, on 19 June 1974, Dr Gulland, physician, said he considered Mr Coughlan had ‘significant hypertension’ and that this would require continuous treatment. That diagnosis was confirmed at his Medical Board prior to discharge on 24 June 1974, when his blood pressure was recorded as 190/120. Accordingly the Tribunal finds that the date of onset of Mr Coughlan’s hypertension was 19 June 1974, just two and a half weeks prior to his discharge on 7 July 1974.
At the hearing Mr Coughlan said he had first started taking tablets for his hypertension on a regular basis after he left service. He could not recall the year, but he confirmed that he has been on medication continuously since then and he monitors his blood pressure regularly.
Dr David Storer, Mr Coughlan’s general practitioner, did not state when he was first consulted about the condition, but he noted Mr Coughlan was on medication for his blood pressure from 1966 (when he served in Vietnam). However, his records concerning blood pressure only go back to 1988 when Mr Coughlan’s blood pressure was 170/95 and the Tribunal has assumed that the information about medication as early as 1966 was provided by Mr Coughlan and was inaccurate. Accordingly the Tribunal has discounted this suggestion.
‘Clinical worsening’
The expression ‘clinical worsening’ is also not defined in the Act. However, in Repatriation Commission v Milenz the Federal Court said:
Whether there has been a clinical worsening of a particular depressive disorder …was a diagnostic question that addressedthe features and symptoms of that disorder as defined in the SoP and required a clinical judgment be made.[14]
A depressive disorder is a disease, so the comment applies also to the clinical onset of the diseases claimed by Mr Coughlan.
Causation of Mr Coughlan’s medical conditions
[14] Repatriation Commission v Milenz (2006) 93 ALD 107 at 115-116.
Hypertension
Mr Coughlan claims that his stroke was caused by his hypertension and his diabetes mellitus Type II, and that in turn the two conditions were due to service.
The relevant Statement of Principles for Hypertension are Instrument No 35 of 2003 as amended and Instrument No 36 of 2003, as amended. It follows from his claim that the factors relied on by Mr Coughlan are factor 5 in Instrument No 35 of 2003:
(a) being obese at the time of the clinical onset of hypertension; or
(b) consuming an average of at least 300 grams of alcohol per week for a continuous period of at least six months before the clinical onset of hypertension; or
…
(p) being obese at the time of the clinical worsening of hypertension; or
(q) Consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical worsening of hypertension.[15]
[15] Instrument No 35 of 2003, as amended
The relevant factor in Instrument No 36 of 2003, as amended, is consuming an average of at least 500 grams of alcohol per week for a continuous period of at least the six months prior to the clinical onset/clinical worsening of hypertension.[16]
[16] Instrument No 36 of 2003 as amended..
Both Instruments state that levels of consumption of alcohol are ‘measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink’.[17] ‘Being obese’ is defined in both Instruments to mean ‘an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater’. The definitions note that the Body Mass Index is identified by dividing the person’s weight in kilograms by their height in metres squared.[18]
[17] Instrument No 35 of 2003, cl 8; Instrument No 36 of 2003, cl 8.
[18] Ibid.
Alcohol consumption
Mr Coughlan, who was born in 1926, was only 19 when he enlisted. The legal drinking age was then 21 years and he was not a drinker when he joined the Army. However, during World War II there was an exemption for members of the forces so they could drink prior to reaching 21. Mr Coughlan said in the Alcohol Questionnaire on 8 February 2012, that his drinking commenced not long after he enlisted.
Mr Coughland said his standard consumption was ‘6-8 std drinks week days regularly, 8-10 std drinks at weekends, and ‘at parties 10 +’. He confirmed he ceased drinking in January 1991 when he was diagnosed with diabetes mellitus. His reasons for drinking he said were ‘relaxation’ but that ‘this developed into a regular habit that I found hard to control’. Other reasons were as ‘consolation’ for himself when regularly away from home, to socialise. He said that after Vietnam he continued to drink excessively.
Dr Storer said Mr Coughlan’s alcohol consumption commenced in 1945, ceased in 1991, and comprised ‘10+ bottles (large brown)/week’. Dr Storer denied that Mr Coughlan’s consumption was due either to a psychiatric condition, or to using alcohol as self-medication.
This was confirmed by Mr Coughlan who stated in the ‘Requests for Reviews under Sections 31 and 136 of the Veterans’ Entitlements Act 1986 (Cth)’ that he ’increased his consumption markedly in SVN [South Vietnam] in 1966 to approx. 10 drinks a day and more on occasions when on R & C’. He also said ‘I continued to consume the same amount of alcohol for a further 8 years until discharge in 1974’. His evidence was that ‘I continued to consume alcohol at this rate until 1991 when diagnosed with Diabetes Type II. I then ceased drinking’.
At the hearing, Mr Coughlan confirmed this information. He said he drank more when travelling than when at home. He did not drink when training and said he undertook multiple courses while in the Army. He also said he would not drink when undertaking intensive work which he did while in Vietnam, and at other times post-Vietnam. When at home he said he would probably have three to four beers at work and then a further bottle or two of beer when he got home, and more on weekends. Mrs Coughlan, who gave evidence, confirmed the evidence as to his consumption at home. She also noted that after Vietnam Mr Coughlan was drinking more and that his consumption remained at this level until he was discharged.
In the six months prior to the clinical onset of his hypertension in June 1974 Mr Coughlan said he was working intensively. During his last twelve to eighteen months of service, he was involved in training successors to take over from him when he left the Army. The Tribunal infers, given his evidence of reduction of alcohol consumption when doing intense work, that his consumption reduced during this period.
The Tribunal is satisfied that Mr Coughlan’s consumption was varied, depending on whether he was travelling or at home, or working intensively, or on training, and that his drinking increased during and after his service in Vietnam. There is some inconsistency in the evidence as to levels of consumption. That is not surprising given the length of time involved since he was on service.
His suggested average consumption of ten bottles of beer a week amounts to consumption of some 260 grams of alcohol. At the same time, Mr Coughlan’s evidence to the Tribunal was that, unless on training, or during periods of intense work, he might have 4 standard drinks daily at work and a bottle when he got home. That amounts to some 330 grams of alcohol a week, without taking into account his weekend drinking. So Mr Coughlan was drinking between 260 grams and in excess of 300 grams of alcohol a week.
The clinical onset of Mr Coughlan’s hypertension was 19 June 1974. During the six months prior to 19 June 1974 Mr Coughlan’s service was eligible war service, so it is the reasonable satisfaction, not the reasonable hypothesis, standard of proof which applies. That means that it is only the factor for alcohol consumption in Instrument No 36 of 2003 which is relevant. Mr Coughlan’s consumption in the six months prior to 19 June 1974 did not reach the level of drinking in excess of 500 grams of alcohol a week. Accordingly the Tribunal is not reasonably satisfied that his alcohol consumption met the relevant level for hypertension in factor 5 in Instrument No 36 of 2003.
In any event, the Tribunal is not satisfied that this level of consumption was due to the conditions on service. The Tribunal accepts that Mr Coughlan’s work involved considerable amounts of travel and placed significant responsibility on him. However, his evidence was that he drank for relaxation and to socialise, or to console himself while away from home, rather than due to the stresses of work on service. Mr Coughlan’s evidence was that he had generally enjoyed his time in the Army. That is confirmed by the Report on 16 August 1973 of Dr Cooper who noted that Mr Coughlan ‘denied any excessive service stresses’.
That means the Tribunal is not able to be satisfied that his drinking was ‘related to’ the conditions of service, that is, ‘it arose out of, or was attributable to, that service’.[19] To be attributable to service the connection with service must be more than temporal and the condition must have arisen out of or been attributable to ‘an activity that the person was reasonably required, expected or authorised to do to carry out … duties’.[20] It cannot be said that drinking for relaxation or to socialise is an activity ‘reasonably required, expected or authorised’ in order to undertake clerical or administrative duties on service. In those circumstances, the Tribunal is satisfied that the whole of the material does not raise a reasonable hypothesis connecting Mr Coughlan’s hypertension with the circumstances of the particular service rendered by him.[21]
[19] Act, s 196B(14)(b).
[20] Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133 per Dixon J, upheld in Roncevich v Repatriation Commission (2005) 222 CLR 115.
[21] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
The same reasoning means that Mr Coughlan cannot claim that the circumstances of his service related to his consumption of alcohol ‘for a continuous period of at least six months before the clinical worsening of hypertension’ (factor 5(q)).
At the hearing Mr Coughlan acknowledged that he was slim when he first enlisted (151 lbs) and in the initial years of his service. However, his weight then gradually increased and by 1970 he was 204 lbs or 92.5kg. He said the increase was due to his drinking, not his diet which was ‘good’. In 1972 at his annual medical when he was 94.9 kg he was advised to lose weight. He did so and by 1973 he had reduced his weight to 84.6kg. However, by 1974 Dr Gulland noted he was ‘mildly obese’ in June 1974, and his medical discharge certificate found him to be overweight at 94 kg, but by less than 15 per cent.
The medical records show that his BMI was:
·21.81 (1944)
·29.48 (1970)
·30.12 (1972)
·26.85 (1973)
·29.01 (1974).
These figures indicate that he increased his weight from 1970. However, his BMI did not exceed 30. The relevant factor of ‘being obese’ in both Instrument No 35 of 2003, as amended and Instrument No 36 of 2003, as amended for hypertension is defined as having a BMI of 30 or greater. Mr Coughlan’s weight did not attain that level. Accordingly he cannot bring himself within the factors in either \Statements of Principles, as amended.
Diabetes Mellitus
Mr Coughlan said he was diagnosed with diabetes in 1991, but claimed he first noticed his diabetes mellitus symptoms in 1990. However, in 1991, he became ill from the condition and he said he lost 5 stone in a matter of weeks and that this has subsequently affected his general health. The Tribunal has found that the date of clinical onset of his diabetes condition was 19 January 1991.
The medical evidence by Dr Storer was that he was first consulted about the condition on 19 January 1991. Dr Storer records Mr Coughlan was on medication for about three months from January 1991 till April 1991. Thereafter his diabetes was controlled by diet.
The defence medical records indicate that no abnormalities were detected in Mr Coughlan’s urine in his first period of service to 1948. Nor is there any record of diabetes in the next twenty years. In 1970, the medical noted he was not taking any medication for diabetes.
The only relevant factors in the Statement of Principles for Diabetes Mellitus are in the case of Type II diabetes, ‘Being overweight for a period of at least five years before the clinical onset of diabetes mellitus’,[22] or ‘being overweight for a period of at least five years before the clinical worsening of diabetes mellitus’.[23] The factor is identical in both Instrument No 90 of 2011 and Instrument No 89 of 2011 applying to each of the two standards of proof. The expression ‘Being overweight’ is defined. It means ‘an increase in body weight by way of fat accumulation which results in at least one of the following: (i) a Body Mass Index (BMI) of 25 or greater; or (ii) a waist circumference of greater than … 94 cm in men’. The BMI formula is the same as for hypertension.
[22] Instrument No 90 of 2011, cl 6(b)(i).
[23] Instrument No 90 of 2011 cl 6(b)(i), 6(j)(i)
The date of onset of Mr Coughlan’s diabetes mellitus Type II is 19 January 1991. Five years prior to that date is 19 January 1986. Mr Coughlan had retired from the Army by then as he was discharged in 1974.
The evidence establishes that Mr Coughlan had a BMI of 25 or greater from at least 1970. There is no service medical record after 1974. However, Mr Coughlan indicated he did not lose weight until he stopped drinking in 1991 after being diagnosed with diabetes. His evidence was that his alcohol consumption which he said was the principal reason he put on weight did not reduce in the seven years post service. So the Tribunal has inferred that his BMI remained in excess of 25 until 1991.
The Tribunal notes that his waist circumference in 1972 was 94cm. However, in 1973 it was shown as 89cm, but his medical board report on 20 June 1974 recorded his waist measurement as 96cm. So, apart from the apparently aberrant record in 1973, he also would have met that element of the definition of ‘being overweight’ as well.
However, he also had to show that the factor was ‘related to’ service. Mr Coughlan’s evidence in his written application was that his travel obligations were ‘conducive to excess eating’ as well as ‘drinking’. At the hearing, however, he said his diet was ‘good’ and that he had lots of vegetables and that he has walked daily for about 30-35 minutes. He ceased playing squash on a regular basis when he left the Swan Barracks in the late 1950s but would occasionally have a social game thereafter.
The tribunal is satisfied that his diet was sensible and he did regular walking for exercise which has continued. So it was his drinking which principally led to his weight gain. As the Tribunal has found that Mr Coughlan’s pattern of alcohol consumption was not ‘related to service’, it follows that his gain in weight due to his drinking, leading to his diabetes mellitus Type II was also not related to service. In those circumstances, the Tribunal cannot reasonably be satisfied that on the whole of the material there is there a connection between Mr Coughlan’s diabetes mellitus with the circumstances of the particular service rendered by him.[24]
[24] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
Stroke (cerebrovascular accident)
Mr Coughlan suffered a stroke in 2009 and consulted Dr Storer on 17 August 2009. So that is the date of onset of the condition. Mr Coughlan is on warfarin for the condition and on his evidence has been on medication for the condition since he left the forces in 1974.
The contemporaneous medical evidence contains a report by Dr Philip Currie, cardiologist, dated 24 August 2009, which recorded ‘atrial ectopy’, that is, small changes to the heartbeat rhythm, as an indicator of the condition. A further echocardiogram on 2 February 2011 by the same cardiologist referred to atrial fibrillation as being involved. Dr Klimaitis said the stroke was apparently due to an embolism, that is, the sudden lodging of an embolus in the blood stream causing a blockage.
Dr Yohan Yin, Departmental Medical Officer, DVA, concluded in a report on 19 January 2012, that Mr Coughlan’s stroke was due to cerebral ischaemia, that is, a restriction in the blood supply. Such a restriction can lead to a pooling of blood which in turn can lead to a clot or embolus in the blood stream resulting in a stroke. In a later report dated 4/ March 2012,[25] Dr Yin noted that Mr Coughlan’s stroke was ‘due to a cerebral embolus which in turn could only be due to atrial fibrillation’. According to Dr Yin Mr Coughlan was found to have atrial fibrillation in May 2010, which he said was ‘almost certainly secondary to his long-standing hypertension’. The diagnosis of the condition considered by the Board refers to cerebral ischaemia.
[25] The date is difficult to discern.
Instrument No 51 of 2006 for cerebrovascular accident (stroke) states that ‘For the purposes of this Statement of Principles “cerebrovascular accident” means cerebral ischaemia or intracerebral haemorrhage presenting as a transient ischaemic attack or stroke’.[26] In order to meet the criteria in the relevant Statement of Principles for cerebrovascular accident, Mr Coughlan is relying on the following factors:
·having hypertension at the time of the clinical onset of cerebrovascular accident;[27] or
·drinking an average of 250 grams of alcohol per week, for at least the one year before the clinical onset of cerebrovascular accident;[28] or
·having diabetes mellitus at the time of the clinical onset of cerebrovascular accident’[29]
[26] Instrument No 51 of 2006, cl 3(b).
[27] Instrument No 51 of 2006, cl 6(a).
[28] Instrument No 51 of 2006, cl 6(f).
[29] Instrument No 51 of 2006, cl 6 (o)(iv).
The stroke was in August 1991. Mr Coughlan’s evidence was that he ceased drinking alcohol completely following the diagnosis of his diabetes in January 1991. Accordingly he cannot establish that he was drinking at least 250 grams of alcohol for at least one year prior to the stroke in August 1991.
Mr Coughlan did have hypertension at the time of clinical onset of his stroke in August 1991. He also was suffering from diabetes mellitus in August 1991. However, since the Tribunal has found that his hypertension and his diabetes were not ‘related to’ his service, it follows that his stroke can also not be related to his service to the requisite degree.
That means, none of Mr Coughlan’s claimed conditions fall within the relevant factors in the relevant Statements of Principles. Accordingly, the decision under review is affirmed.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Professor Robin Creyke, Senior Member ...(Sgd) M Sunits...............
Administrative Assistant - Legal
Dated 9 July 2013
Date of hearing 20 June 2013
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