Rowe and Repatriation Commission - [2001] AATA 473

DECISION AND REASONS FOR DECISION [2001] AATA 473

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1329

VETERANS'     APPEALS      DIVISION           )
           Re      GEORGE ROWE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Miss E. A. Shanahan, Member

Date31 May 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.........(Sgd) E. A. Shanahan........
Member
CATCHWORDS
VETERANS' AFFAIRS – whether the development of varicose veins and ischaemic heart disease were war-caused within the meaning of the Act – whether material raises sufficient evidence on the balance of probabilities – application of Statements of Principles No 141 of 1996, No 81 of 1998, No 39 of 1999 and No 4 of 1995
Veterans' Entitlements Act 1986 ss. 120(4), 120B
Deledio v Repatriation Commission (1998) 49 ALD 193
Keeley v Repatriation Commission (1999) FCA 1103
Repatriation Commission v Keeley (2000) FCA 532

REASONS FOR DECISION

31 May 2001 Miss E. A. Shanahan, Member

This is an application for review of a decision of the Veterans' Review Board ("VRB") dated 22 September 1999 and a further decision on the same date whereby the VRB increased the applicant's general rate of pension to 40 per cent. The VRB decision denying the applicant's claim for varicose veins of the left and right legs and ischaemic heart disease confirmed a decision of the Repatriation Commission dated 8 May 1998. The original claim had been modified on presentation to the VRB with the claim for macular degeneration and post traumatic stress disorder being withdrawn. This application is concerned with the decision regarding the varicose veins of both legs, ischaemic heart disease and asthma.
The applicant was represented by Mr M. O'Brien of counsel and the Repatriation Commission by Mr R. Douglass, an advocate of the Commission. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and received additional documents from both parties. The applicant tendered a report of Associate Professor K. Myers, dated 4 April 2000 (Exhibit A1); a smoking history statement of Mr G. Rowe, the applicant, dated 31 January 2000 (Exhibit A2); a medical certificate dated 28 March 2001 and issued by Dr J. Buonopane (Exhibit A3); the Royal Melbourne Hospital discharge summary of the applicant, dated 27 March 2001 (Exhibit A4) and the applicant's hand-written letter, received by the Tribunal on 27 March 2001 (Exhibit A5). The respondent tendered an echocardiography report by Dr M. Rosenbaum, dated 1 December 2000 (Exhibit R1); the clinical notes of Dr Buonopane, under cover of a letter dated 2 March 2000 (Exhibit R2); the report of Professor R. Harper, dated 31 March 2000 (Exhibit R3) and a Repatriation Department medical history sheet dated 22 November 1967 (Exhibit R4). The Tribunal acceded to the applicant's request that he give his evidence by telephone as he had found his appearance before the VRB very frightening. Associate Professor Myers gave evidence to the Tribunal in person. It was agreed that the remaining medical reports would be relied upon and no further medical witnesses called.
Background to the Application
At the commencement of proceedings, Mr O'Brien, counsel for the applicant, requested that the claim for asthma be withdrawn as the applicant accepted that his respiratory problems were due to chronic simple bronchitis. The review was therefore confined to the question of whether or not the applicant's ischaemic heart disease and varicose veins of both legs were war-caused in accordance with the Veterans' Entitlements Act 1986 ("the Act").
The applicant was born on 16 February 1923 and served in the Australian Air Force from 4 September 1942 to 26 March 1946. This constitutes eligible war service as defined but the veteran did not have operational service. Subsection 120(4) of the Act is thus attracted and the standard of proof relevant is whether, on the balance of probabilities, the claimed conditions were war-caused. The applicant lodged his claim for a disability pension and medical treatment on 5 March 1998. Section 120B of the Act is thus also attracted and the Tribunal must reach its decision in accordance with the relevant Statements of Principles ("SoPs") issued by the Repatriation Medical Authority ("RMA"). The relevant SoPs are Instrument No. 4 of 1995 concerning varicose veins, Instrument No. 141 of 1996, as amended by No. 78 of 1997, concerning ischaemic heart disease and Instrument Nos. 81 of 1998 and 39 of 1999 regarding ischaemic heart disease and the smoking factor. It was contended before the VRB that the applicant had experienced a single episode of chest pain in 1965 which had been treated by his then general practitioner, Dr Watt of Essendon. The applicant had been told that he had suffered from a heart spasm from which he fully recovered. The evidence as to the applicant's smoking history had been confusing in that he had told the VRB he ceased smoking in about 1958 whereas his smoking questionnaire indicated that he had ceased in 1985. During his RAAF service the applicant underwent excision of a vein in the left leg. It was the applicant's evidence that he had injured this leg some three months prior to his enlistment in the RAAF and following excision of the abnormality had not suffered any problems with either leg until he developed bilateral varicose veins in the 1950s. The VRB had found that the applicant did not meet the requirements of SoP No. 4 of 1995, none of the risk factors being present and, on the veteran's evidence, the changes in his left leg, for which he underwent surgery, had pre-existed his enlistment. With respect to the claim for ischaemic heart disease, the VRB concluded there was insufficient evidence to conclude that the "heart spasm", occurring in 1965, was due to ischaemic heart disease within the diagnostic criteria of the SoP.
Evidence before the Tribunal
The applicant gave evidence by telephone. He confirmed that he had had an operation on his left leg in December 1942 but stated that this operation had not been performed for varicose veins but because he had a clot of blood in the vein as the result of a motorcar accident prior to enlistment. He admitted his leg had been aching at the site of the clot. He had been examined by the service medical officer and advised that the clot needed to be removed. Surgery had been conducted on 17 December 1942. He denied any further problem with veins in his leg until the 1960s when his general practitioner had referred him to the Royal Melbourne Hospital for varicose vein surgery. The varicose veins had been of gradual onset. He agreed that his discharge medical examination had not revealed the presence of varicose veins. The applicant gave evidence that he had no further problems with his varicose veins until recently although he had always been conscious of the cosmetic appearance. He had been advised he might require further surgery in one to two years time as his left leg was deteriorating.
The applicant gave evidence that he started smoking at age 19 or 20 shortly after he joined the Air Force, he started smoking a few cigarettes per day and increased to three to four packs of 20 per week. Following discharge from the RAAF he continued to smoke at the same level but reduced in approximately 1965. He confirmed his smoking questionnaire. He had ceased smoking in 1985 although he had been smoking at the rate of only two packs per week.
The applicant confirmed that, in 1965, he had an episode of severe central chest pain whilst working at TAA. An ECG had been performed by his general practitioner, Dr Watt, and he was told he had heart trouble. He was put on a diet low in fat and was told to drink skim milk. He had two weeks off work, was given sublingual anginine but did not need to use it and remained free of chest pain until 2001. He had, however, noted shortness of breath on exertion for many years and this symptom was unaltered by cessation of smoking. He felt he had been more short of breath since his retirement in 1983 and reported that he had had to stop playing golf in 1984 or 1985 because of dyspnoea. In February 2001 the applicant had developed retrosternal pain which he thought was indigestion. He then developed lightness in the head, chest pain and heaviness in both arms. He was sent for an electrocardiogram, following which he was immediately transferred to the Royal Melbourne Hospital and was an inpatient for a period of one week. A stress test had been performed on 22 March 2001 and he had been advised by a cardiologist that he had severe coronary artery disease and needed an angiogram. He was later advised on 27 March 2001 that he would have to have a balloon angioplasty or perhaps bypass surgery. In the interim, he was to avoid doing anything too strenuous. The applicant confirmed in cross-examination that a diagnosis of cancer of the prostrate had been made in 1999 and a diagnosis of hyper-cholesterolemia in 1997.
Associate Professor K. Myers gave evidence to the Tribunal in person. He confirmed his earlier report but, in giving oral evidence, was of the opinion that it was not probable that the 1965 episode of chest pain was a myocardial infarct. He felt that the surgery performed in 1942, i.e. stripping of the long saphenous system, suggested the presence of varicose veins even though the applicant had denied this diagnosis.
Professor Harper, in his report dated 31 March 2000 (Exhibit R3), was of the opinion that the applicant did not suffer from coronary artery disease although he could not entirely exclude the possibility that the episode of chest pain in 1965 was due to coronary artery disease. The Repatriation Department medical history sheet, dated 22 November 1967, confirms recurrent bilateral varicose veins and dates the operation on the right leg as 1960. It also notes the operation performed in 1942.
The reports of Dr J. Buonopane relate primarily to the applicant's chronic bronchitis. The report of Dr Buonopane, dated 28 March 2001 (Exhibit A3), advises that the applicant's recent inpatient stay at the Royal Melbourne Hospital has confirmed the presence of ischaemic heart disease.
The T documents contain the report and opinion of Dr M. Rosenbaum, dated 4 December 1998. He was of the opinion that the most likely explanation for the episode of chest pain in 1965 was the presence of coronary artery disease. In his subsequent report regarding the echocardiogram performed on 5 December 2000, Dr Rosenbaum concluded that left ventricular function was normal, there were no wall motion abnormalities nor any valve lesions, i.e. the examination was essentially normal. An ECG performed by Dr Rosenbaum in 1998 was also normal. The parties agree that the applicant now has severe coronary artery disease delineated by angiography and presenting symptomatically early in the year 2001.
Relevant Legislation
The relevant legislation is contained in:
"120(4)     Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:    This subsection is affected by section 120B.
…
120B   (1)       This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1:   Subsection 120(4) is relevant to these claims.
Note 2:   For hazardous service and member of the Forces see subsection 5Q(1A).
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."

Application of the Relevant Statements of Principles to the material before the Tribunal

There was some debate as to which SoP was relevant to the applicant's case on the basis of the Federal Court decisions in Keeley v Repatriation Commission (1999) FCA 193 and the appeal to the Full Federal Court on this matter. However, all of the SoPs relating to ischaemic heart disease, whether they be Instruments of 1996, 1998 or 1999, in relation to the smoking factor, require a clinical onset within 10 years of cessation of smoking. The Tribunal accepts the applicant's evidence that he ceased smoking in 1985. The Tribunal also accepts that the applicant has documented and delineated ischaemic heart disease from the date of March 2001. The applicant fails to meet the risk factor relating to smoking unless the episode in 1965 was indicative of coronary artery disease. While it is possible that this episode was of coronary artery origin there is, unfortunately, no evidence to support the proposition and the balance of medical evidence is that this was not a coronary artery occlusive event. While Associate Professor Myers was of the opinion that the applicant had varicose veins dating from 1942, the applicant's oral evidence refutes this conclusion.
Decision
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the fourteen (14) preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E. A. Shanahan, Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  29 March 2001
Date of Decision  31 May 2001
Counsel for the Applicant        Mr M. O'Brien
Solicitor for the Applicant         De Marchi & Associates
Solicitor for the Respondent    Mr R. Douglass, departmental advocate