Rowe and Repatriation Commission

Case [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     

  1. 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modified on presentation to the VRB with the claim for macular degeneration and post traumatic stress disorder being withdrawn.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.

  2. 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…

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Rowe and Repatriation Commission [2001] AATA 473
Case
[2001] AATA 473
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) was a review of a decision by the Veterans' Review Board (VRB) concerning the claim of Mr G. Rowe for a disability pension and medical treatment. Mr Rowe sought to establish that his varicose veins and ischaemic heart disease were war-caused, entitling him to benefits under the Veterans' Entitlements Act 1986. The central legal issues before the Tribunal were whether Mr Rowe's varicose veins and ischaemic heart disease were indeed war-caused and, if so, whether the evidence presented met the statutory standard of proof on the balance of probabilities. The Tribunal had to apply relevant Statements of Principles (SoPs) issued by the Repatriation Medical Authority to determine the validity of Mr Rowe's claims.

The Tribunal found that while Mr Rowe's ischaemic heart disease was documented from March 2001, there was insufficient evidence to conclude that the 1965 episode of chest pain was indicative of ischaemic heart disease. Additionally, despite the applicant's claim that he ceased smoking in 1958, the evidence showed that he actually quit in 1985, which did not meet the clinical onset criteria within 10 years of cessation of smoking as required by the SoPs. Regarding the varicose veins, the Tribunal accepted Mr Rowe's evidence that the condition in his left leg, for which he underwent surgery, pre-existed his enlistment, and there was no evidence to support that the varicose veins were war-caused. Therefore, based on the evidence and applicable legal standards, the Tribunal upheld the VRB's decision that Mr Rowe's claims were not substantiated.

The Tribunal's decision was affirmed, and Mr Rowe's application for a disability pension and medical treatment was denied. The Tribunal certified that the provided paragraphs accurately reflect the reasons for the decision.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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, MemberSigned: ..................................................................................... Personal AssistantDate/s of Hearing 29 March 2001Date of Decision 31 May 2001Counsel for the Applicant Mr M. O'BrienSolicitor for the Applicant De Marchi & AssociatesSolicitor for the Respondent Mr R. Douglass, departmental advocate

Ratio Decidendi

Legal Principle Established

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