Ryan and Repatriation Commission
[2008] AATA 493
•16 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 493
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200500156
) V 200500897
VETERANS' APPEAL DIVISION ) Re DOUGLAS RYAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member Date16 June 2008
PlaceMelbourne
Decision The Tribunal affirms the decisions under review.
…................[Sgd]........................
Miss E.A Shanahan
Member
VETERANS’ AFFAIRS – Dysthymic Disorder – diverticulosis – irritable bowel syndrome – hypertension - entitlement and assessment – extreme disablement adjustment rate – decisions affirmed.
Veterans’ Entitlement Act 1986 s120 (1), s120(3) s120A
Statement of Principles Instrument No 87 of 1997 – Diverticular Disease of the Colon
Statement of Principles Instrument No 103 of 1996 – Irritable Bowel Syndrome
Statement of Principles Instrument No 35 of 2003 – Hypertension
Statement of Principles Instrument No 17 of 2007 – Depressive DisorderStatement of Principles Instrument No 58 of 1998 – Depressive Disorder
Deledio v Repatriation Commission (1997) 47 ALD 261
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckle (1999) FCA 1273
Repatriation Commission v Gordon (1990) 26 FCR 569
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Repatriation Commission and Slattery
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Warren (2008) FCAFC 64
REASONS FOR DECISION
16 June 2008 Miss E.A. Shanahan, Member
d
1. Mr Ryan has sought review of two decisions of the Repatriation Commission (the Commission). The first, file number V2005/00156, related to a claim for an increase in pension due to heart problems, hearing problem, and stomach problem being service related. On 21 April 2004 a delegate of the Commission determined that the conditions of cerebral ischaemia and bilateral sensorial hearing loss were related to service and Mr Ryan’s disability pension was increased to 30 percent of the general rate from 14 August 2003. The delegate determined that the duodenitis, bilateral varicose veins, hypertensive heart disease, diverticular disease of the colon and chronic gastritis from which Mr Ryan suffered were not related to service. Following an application for review by Mr Ryan, on 17 January 2005 the Veterans’ Review Board (VRB) varied the Commission decision by amending the diagnosis of hypertensive heart disease to hypertension but otherwise affirmed the decision. Mr Ryan lodged an application for a review of the VRB decision with the Administrative Appeals’ Tribunal on 25 February 2005.
2. The second decision under review, file number V200500897, related to Mr Ryan’s application to the Commission on 18 November 2004, claiming that breathing problems and anxiety conditions were service related. On 18 November 2004 a delegate of the Commission determined Mr Ryan’s condition of emphysema was service related and his disability pension was increased to 100 percent of the general rate from 21 June 2004. The anxiety condition was in the interim diagnosed as a dysthymic disorder and was determined not to be service related. This decision was affirmed by the VRB on 7 September 2005. Mr Ryan lodged an application for a review of the VRB decision by the Administrative Appeals Tribunal with respect to the dysthymic disorder on 10 October 2005.
3. Mr Ryan was represented by Mr De Marchi, solicitor and the Commission by Ms J McCulloch, an advocate with the Department of Veterans’ Affairs. The hearing was held over four days; 15 March 2007, 16 March 2007, 7 September 2007 and 21 February 2008 with the delays caused by efforts to obtain more complete medical information. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents). The parties tendered the following documents.
The Applicant:
· Exhibit A 1 – Report of Dr Robert Marshall dated 30 August 2005.
· Exhibit A 2 – Report of Professor Myers dated 29 August 2005.
· Exhibit A 3 – Statement of Mr D. Ryan dated 7 June 2006.
· Exhibit A 4 – Statement of Mrs B. Ryan dated 7 June 2006.
· Exhibit A 5 – Supplementary Statement of Mrs B. Ryan dated 31 August 2006.
· Exhibit A 6 – Further Statement of Mrs B. Ryan dated 27 February 2007.
· Exhibit A 7 – Report of Dr Cole dated 14 June 2006.
· Exhibit A 8 – Lifestyle Questionnaire dated 27 October 2005.
· Exhibit A 9 – Report of Dr Quach dated 27 February 2007.
· Exhibit A10 – Clinical Notes of Dr Quach entitled Patient Summary.
· Exhibit A11 – Clinical Notes from the Kent Road Clinic.
The Respondent
·Exhibit R1 – The T-Documents concerning each application.
·Exhibit R2 – Report of Dr A.V. Incani dated 20 February 2006.
·Exhibit R3 – Clinical Notes of Dr Tsiglopoulos, pages 1- 48.
·Exhibit R 4 – Writeway Research Report dated 21 November 2005
·Exhibit R 5 – Report of Mr Naylor dated 18 November 2005
·Exhibit R 6 – Combined Impairment Assessment prepared by Dr Morgan dated 19 January 2007
·Exhibit R 7 – VRB Transcripts dated 17 January 2005 and 7 September 2005
·Exhibit R 8 – Report of Dr A.V. Incani dated 18 June 2007.
Mr Ryan, Mrs B. Ryan, Dr E. Cole, Associate Professor Myers, Dr R. Marshall and Mr W. Rothwell gave oral evidence.
4. The Applicant withdrew the claims for duodenitis, gastritis and hypertension prior to the hearing (Applicant’s Statement of Facts and Contentions, p3) and in the course of the hearing elected not to proceed with the claim for varicose veins but re-activated the claim for hypertension being service related.
Background to the Application
5. Mr Ryan, born on 9 January 1935, is now 73 years old. He enlisted in the Royal Australian Navy (the Navy) on 21 July 1952 and commenced service on 9 January 1953. He enlisted for a period of six years and was classified as an Ordinary Seaman. From 6 July 1954 he was classified as an Able Seaman. He was discharged on 8 January 1959. Following the enactment of the Veterans’ Affairs Legislation Amendment Act 1994, Mr Ryan’s service in the waters off Singapore and Malaya qualify as operational service. His actual operational service was for short periods of time totalling approximately 62 days. These took place in March 1956, September and October 1956 and March 1958 when his ship was part of the Far East Strategic Reserve. Initially he served as a gunner and then a radar operator.
6. Mr Ryan commenced smoking and drinking when he turned 21, his intake of alcohol and cigarettes escalating rapidly, smoking up to 30 cigarettes per day and drinking to the point of drunkenness when ashore. These habits calmed his nerves when in scary places such as the North Atlantic and in the waters off Malaya. Mr Ryan greatly decreased his alcohol intake after his marriage and stopped smoking in 1994.
7. The ships on which Mr Ryan served would be at sea for periods of one to four weeks and then in port for three to four days. Mr Ryan described his Navy diet in detail and said most of the vegetables available at sea were frozen, although fresh fruit and vegetables were available in port. Mr Ryan denied any bowel problems while in service but had noted frequent bouts of pain in the left side of the lower abdomen (LIF, left iliac fossa) commencing just before he left the Navy. This pain had persisted and was still present. Currently the pain lasts for approximately one week, may be associated with diarrhoea and then settles for periods of three to four weeks.
8. In 1996 Mr Ryan suffered an acute episode of dizziness, staggering and lack of co-ordination which settled in 10 to 15 minutes. He consulted a doctor two days after this event and was told he’d had a stroke. Since this event Mr Ryan claimed that his entire left leg has been numb and he suffers severe pain in the left temple. He has since become intolerant of noise, he has become less sociable preferring to stay at home, his memory and concentration have declined and he feels depressed. He has been prescribed Valium and Arapax.
9. Mr Ryan has hypertension but was unable to recall when this was diagnosed. He also suffers from varicose veins, mainly in the right leg, and leg cramps. He expressed his fear of developing asbestos-related lung disease as a result of contact with asbestos on board ships. Mr Ryan attributed (incorrectly) his emphysema to his asbestos exposure.
10. Mr and Mrs Ryan moved to Taylors Hill Retirement Village in 2005 as neither could cope with their large home and garden. He now spends his day reading, sleeping and having coffee in the village centre. He no longer plays golf. He does attend Anzac Day reunions, watches the march and goes to Naval House to have a few beers with his friends. He did belong to the Glenroy RSL but since shifting to the retirement village he has not attended the Glenroy RSL, although he was contemplating doing so on Anzac Day 2007.
11. Investigation of Mr Ryan’s stroke in 1996 led to a diagnosis of transient ischaemic attack (TIA) arising in the vertebro-basilar arterial territory with five small areas of minimally increased intensity, most probably due to small vessel disease. (MRA 24 June 1996). There was no evidence of carotid artery plaque formation or obstruction on a Doppler Study (conducted on 29 January 1996).
12. Mr Ryan receives the disability pension at 100 percent of the general rate for the diseases of cerebral ischaemia, emphysema and bilateral sensorineural hearing loss. He seeks acceptance of hypertension, diverticular disease of the colon and a dysthymic disorder as service related which would qualify him for the extreme disablement rate of pension.
Evidence Before the Tribunal
mr douglas ryan
13. Mr Ryan had provided a statement dated 7 June 2006 (Exhibit A3). Mr Ryan’s evidence before the Tribunal is summarised above. Mr Ryan had great difficulty in remembering dates, events, his medical history and the dates of onset of his medical conditions and their treatment.
mrs beverley ryan
14. Mrs Ryan had provided three statements (Exhibit A4 dated 7 June 2006, Exhibit A5 dated 31 August 2006 and Exhibit A6 dated 27 February 2007).
15. In her first statement Mrs Ryan described her husband’s depression since his stroke in 1994 [sic] and his difficulty walking because of emphysema. She outlined his intolerance of noise, his poor memory, avoidance of social contact and his fear of developing cancer. She provided a list of Mr Ryan’s medications.
16. In her second statement she described the stroke of January 1994 [sic] and in the third statement she described an episode on or about 15 or 22 July 2005 when Mr Ryan could not walk properly. On the second occasion, she called an ambulance but Mr Ryan refused to go to the hospital. In 2006 she had taken him to hospital when a nurse at their retirement village recorded his blood pressure as being extremely high. He was observed in the emergency room of the hospital for one to two hours and then discharged.
17. In her evidence Mrs Ryan confirmed the contents of her statement but also mentioned Mr Ryan’s frequent episodes of abdominal pain for which he was intermittently prescribed antibiotics.
18. In response to a question posed by the Tribunal, Mrs Ryan said that the vast majority of their friends lived around the Moonee Ponds area so neither she nor Mr Ryan saw them since their shift to Taylors Hill because of the travelling distance involved. They did attend a weekly dinner at the village and frequently coffee meetings during the morning. Mrs Ryan could not remember exactly when Mr Ryan commenced treatment for hypertension but agreed that Avapro was commenced on 20 December 2004.
dr e. cole, psychiatrist
19. Dr Cole had provided a detailed report dated 14 June 2006 (Exhibit A7). He diagnosed a mild dysthymic disorder with onset within two years of the TIA of 1994 [sic] based on Mr and Mrs Ryan’s statements and the fact that in 2006 Mr Ryan was taking anti‑depressive medication. In his evidence he confirmed the content of this report. Dr Cole was not aware that Mr Ryan was first prescribed anti-depressants in 2004.
associate professor k. myers
20. Mr Myers had provided two reports and opinions relating to Mr Ryan’s varicose veins and in particular whether they satisfied the relevant Statement of Principles (the significance of which is explained below). Mr Myers gave evidence as to why in his opinion the Statement of Principles was satisfied. He construed the phrase suffering complete or partial obstruction of a vein draining the affected lower limb, as contained in Factor 5(b) of Instrument No 70 of 1998 concerning varicose veins, as equating to a physiological obstruction in the form of elevation of venous pressure in the lower limbs. The Tribunal did not agree with this interpretation as it seemed that the Statement of Principle was referring to extrinsic compression of the leg veins. Mr De Marchi undertook to speak to Professor Ken Donald (Chairman of the Repatriation Medical Authority) in an effort to clarify the intended meaning. Professor Donald confirmed the Tribunal’s interpretation and the Applicant abandoned the claim for varicose veins. (Transcript pg 67, 15 March 2007).
dr robert marshall (surgeon)
21. Dr Marshall’s particular expertise is gastroenterology. He had provided two reports, dated 30 September 2004 (T17, p148) and 30 August 2005 (Exhibit A1), wherein he expressed the opinion that Mr Ryan’s diverticulosis and bouts of diverticulitis were service related due to the lower fibre content of the diet during his service in the Navy.
22. In his evidence Dr Marshall described the pathophysiology of diverticulosis, describing the diverticula as little hernias of bowel mucosa projecting through the bowel wall. Uncomplicated diverticula are asymptomatic but tend to become inflamed secondary to inspissated faecal material resulting in symptomatic diverticulitis.
23. Dr Marshall had obtained the history of Mr Ryan having LIF pain and occasional alteration of bowel habit (Transcript p81, 16 March 2007). He felt that these symptoms met the clinical picture of diverticulosis. Mr Ryan had said that his pain had commenced 15 years earlier.
24. Dr Marshall was asked to comment on the possible diagnosis of irritable bowl syndrome (IBS) raised by Mr Ryan’s general practitioner in 1998 (Exhibit R3). He regarded the conditions of IBS and diverticulosis to overlap considerably, although in his opinion IBS was fundamentally a psychiatric disorder and a disease of the young whereas diverticulosis was a disease of people in their fifties or older. The exception to the statement that IBS was a psychiatric disorder was those patients who had been shown to have a deficiency of the nerve network in their colon (Transcript p85, 16 March 2007). Dr Marshall was not aware that Mr Ryan had been diagnosed as suffering from a dysthymic disorder.
25. Dr Marshall favoured the diagnosis of diverticulosis with bouts of diverticulitis but could not exclude the possibility of co-existent IBS.
26. Under cross-examination Dr Marshal was asked if he had considered IBS when he first saw Mr Ryan, given that he had been provided with the records of Dr Tsigopoulos who had raised the possibility of this diagnosis. Dr Marshall had not considered such a diagnosis as I don’t believe there is any such condition as irritable bowel syndrome as it is a psychological condition. Dr Marshall said he was speaking as a surgeon.
27. In light of Dr Marshall’s evidence the Tribunal and both parties decided to obtain a further report from Dr Incani regarding diverticulosis, IBS and their co‑existence.
mr rothwell (writeway report)
28. Mr Rothwell had served in the Navy for 34 years, retiring with the rank of Captain and as Director of Naval Communications in 1984. He had served on HMAS Quiberon (the Quiberon) with Mr Ryan and was able to recall Mr Ryan. Mr Rothwell has worked for Writeway Research since 2002. The respondent had asked Mr Rothwell to research Mr Ryan’s service records and also the diet supplied by the Navy during Mr Ryan’s operational service. In the context of fresh provisioning, Mr Rothwell had accessed the actual maximum times the ships concerned had been at sea. HMAS Queensborough (the Queensborough) was at sea for a maximum of nine days, HMAS Quadrant (the Quadrant) for five days or at the most eight days and the Quiberon for eight days. Thus there should have been good access to fresh food from various ports. Singapore and Hong Kong had always been good sources of fresh food (Transcript p131, 16 March 2007). Fresh fruit was available occasionally.
29. Mr Rothwell provided sample menus from naval records. While he had never been involved in food preparation himself, it was his duty to inspect the food as Officer of the Day.
30. Mr Rothwell’s enquiries, in particular the information provided by Mr Albert Naylor (Exhibit R5), indicated that the Navy was reviewing the sailors’ diet in the 1950s and the food did improve in the 1960’s. Overall, the food provided was the same during periods of operational and non-operational service.
31. Mr Rothwell spoke with and transcribed the statement from Mr Albert Naylor, retired Chief Petty Officer Cook, who had served as a cook on numerous ships including the Quadrant. Mr Naylor described naval food throughout the 1950’s as not dissimilar to that served in civilian cafeterias at the time, except that the serves were larger. There was a reasonable amount of fibre in the diet. The breakfast provided included cereal and porridge three times a week, cooked meats and eggs. The fresh fruit and vegetables were available for up to two weeks at sea. Lunch and dinner consisted of grills, roasts, stews, curries or Chinese dishes, sausages, steak, chops, pork and occasionally pies and rissoles. (Exhibit R 5). Mr Ryan’s description of the content of the meals he received during service accurately reflected that outlined by Mr Naylor.
Documentary Evidence
lifestyle questionnaire (exhibit a8)
32. This questionnaire was completed by Mr Ryan on 27 October 2005. It outlined his anxiety, depression, noise intolerance, poor sleep, relinquishment of any social life, inability to drive other than short distances, constant shortness of breath, constant right leg cramps and inability to perform any domestic activities. The Tribunal notes that in September 2004 Mr Ryan had told Associate Professor Myers that at that time he was still mowing his lawns and tending his large garden.
dr j. quach (report exhibit a9, clinical notes exhibit a10)
33. Dr Quach first saw Mr Ryan on 1 June 2006, some time after he had moved to the retirement village in Taylors Hill. She recorded a past history of chronic obstructive airways disease (COAD), colonic polyps (sic, there was only one), duodenitis and the recording of a vertebro-basilar TIA in January of 1996 (Report of Dr Edward Byrne). Dr Quach’s report states … From the old/transferred medical History CVA 1999 – right leg numbness since then … 17/8/2005 Anxiety Depression. The report lists Mr Ryan’s medications but provides no information as to treatment administered by Dr Quach or comment on Mr Ryan’s current status.
34. Dr Quach’s clinical notes regarding Mr Ryan do not add any information as they consist primarily of the monitoring of Mr Ryan’s blood pressure by nursing staff at the retirement village. The notes recorded medication with Avapro in June 2006, following which Mr Ryan’s blood pressure has been well controlled.
kent road clinic (clinical notes regarding mr ryan – exhibit a11)
35. Mr Ryan attended Dr Theo Hajicosta from 1 August 2005 to 29 June 2006 and on the latter date the doctor suggested that Mr Ryan attend a GP closer to his home in Taylors Hill.
36. At the first attendance Mr Ryan was assessed as well overall except for diverticular disease. Dr Hajicosta was apparently aware of Mr Ryan’s past history. On 1 August 2005 Mr Ryan’s blood pressure was recorded as 160/70.
37. Two weeks later Dr Hajicosta raised the possible diagnosis of IBS and recommenced Arapax for Mr Ryan’s depression. On 25 November 2005 Mr Ryan requested a referral to Dr Incani for further investigation of his diverticular disease and some diarrhoea as he was attempting to obtain an increase in his pension (Exhibit 11, p6 of Exhibit 9). This referral was not arranged until after 20 December 2005 when Mr Ryan complained of bright bleeding from the rectum. Dr Hajicosta diagnosed bleeding haemorrhoids. Other entries relate to minor or irrelevant problems. In a two year period Mr Ryan saw Mr Hajicosta on nine occasions.
clinical notes of dr arthur tsiglopoulos (exhibit r3)
38. It is probable these notes include some entries by Dr Kevin Sleigh. Dr Sleigh was Mr Ryan’s general practitioner prior to his retirement and is said to have seen Mr Ryan on 12 January 1996 after his TIA.
39. Mr Ryan’s first recorded visit was 25 October 1995 when he presented with a 10-day history of nausea and vomiting and a three-day history of diarrhoea. On this occasion Mr Ryan’s sigmoid colon was palpable and tender although a rectal examination was normal. A provisional diagnosis of giardia infection or IBS was made. Faecal cultures were negative.
40. On 12 January 1996 the history of numbness and tingling in the left arm, loss of balance and blurred vision lasting 10 to 15 minutes was obtained. This event had occurred on 10 January 1996. Examination revealed brisk reflexes in the left arm and decreased power in the left hand. A diagnosis of a TIA was made and investigations commenced. A CT scan of the brain was normal and a carotid and vertebral Doppler study showed antegrade basilar artery filling and no discrete plaque formation in the carotid arteries. Blood flow velocities were normal. Mr Ryan was referred to Dr J. Gurry and Professor E. Byrne, both of whom are neurologists.
41. Dr Gurry noted total resolution of all symptoms after 10 to 15 minutes and thought Mr Ryan’s pain in the face and head might be trigeminal neuralgia. In his opinion the only treatment required was daily aspirin. Dr Gurry recorded Mr Ryan’s blood pressure as 120/80.
42. Professor Byrne diagnosed a vertebro-basilar TIA with no residual signs or defects and occipital neuralgia. He recorded a blood pressure reading of 130/80. Professor Byrne arranged a magnetic resonance angiogram (MRA). This revealed minimal hyperintensity in five mid-brain areas and the radiologist concluded that there were no significant circulation abnormalities demonstrated.
43. Dr Sleigh reassured Mr Ryan after he obtained the MRA results.
44. The entry of 21 January 1998 states that a colonoscopy had been performed and was normal. Dr Sleigh diagnosed constipation and advised a high fibre diet and increased fluid intake. He had previously recommended a high fibre diet but Mr Ryan had not acted on this advice.
45. In 2000 Mr Ryan attended on three occasions and first complained of shortness of breath on exertion on 21 August 2000. The Tribunal assumes that on this occasion he saw Dr Tsiglopoulos as the hand writing of the notes changes at this point. Dr Tsiglopoulos recorded that Mr Ryan ceased smoking in 1992 or 1994. Examination of the chest and lungs was normal but a subsequent x-ray showed over inflation of the lungs suggestive of COAD. An Atrovent inhaler was prescribed.
46. In April 2001 Mr Ryan complained of intermittent abdominal pain and mild constipation and was found to be mildly tender in the LIF. Dr Tsiglopoulos diagnosed diverticulosis. Mr Ryan’s blood pressure on 25 May 2001 was recorded as 130/80. Mr Ryan’s pain in the right temple was considered possibly due to temporal arthritis.
47. On 13 July 2001 Dr Tsiglopoulos made a diagnosis ofdiverticulitis and prescribed antibiotics. He noted a further bout of LIF pain but with normal bowel habit on 11 June 2002 and diagnosed diverticulitis.
48. On 18 July 2002 Mr Ryan reported five to 10 seconds of unsteadiness on his feet. No abnormal signs were found.
49. On 24 July 2002 Mr Ryan complained for the first time of paresthesia in the form of numbness in his left thigh present for a period of two months. On examination no abnormality was detected and in particular sensation was normal.
50. A further episode of diverticulitis, diagnosed by Mr Ryan, was recorded when he attended Dr Tsiglopoulos on 11 March 2003.
51. In April 2004 Mr Ryan again complained of shortness of breath on exertion and chest pain. Physical examination was normal and the blood pressure was recorded as 120/80. As Dr Tsiglopoulos could not exclude a cardiac origin for the pain. A Thallium exercise scan was performed and produced a normal result. Mr Ryan continued to complain of occasional shortness of breath and was referred to a cardiologist, Dr Warren, who performed several investigations, all of which were negative for ischaemic heart disease. It was noted that Mr Ryan was stressed at the time, the stress relating to his social situation and the caring for a foster child. Mrs Ryan had fostered children for many years.
52. On 11 November 2003 Mr Ryan requested a referral for a coronary angiography as his brother was in hospital in preparation for a quadruple coronary artery bypass grafting. The coronary angiography was performed in December 2003 and revealed no haemodynamicly significant coronary artery disease. At the time of angiography Dr Warren noted Mr Ryan was hypertensive and prescribed the drug Tritace to lower the blood pressure. Mr Ryan did not take the prescribed medication. He did however attend Dr Tsiglopoulos for blood pressure monitoring. On 5 December 2003 his blood pressure was 130/80.
53. Dr Incani had performed a gastroscopy and a colonoscopy in June 2003 at which time diverticulosis was diagnosed. Dr Tsiglopoulos advised Mr Ryan to commence a high fibre diet, based on the colonoscopy findings.
54. On 15 July 2005 Mr Ryan suffered an episode of abdominal pain with diarrhoea, and once more a diagnosis of diverticulitis was made and antibiotics administered. On this occasion Dr Tsiglopoulos considered that Mr Ryan’s left-sided facial and temporal pain was due to trigeminal neuralgia.
55. On 2 August 2004 Mr Ryan attended with abdominal pain but no abnormality in bowel function. Flagyl was prescribed and Dr Tsiglopoulos noted that Mr Ryan was not eating a high fibre diet.
56. Blood pressure monitoring continued in the latter months of 2004 and was recorded as 140/80 on 28 October, 160/80 on 29 November and again 160/80 on 20 December 2004. As a result of this sustained (one month) elevation of blood pressure Avapro 150 milligrams daily was commenced and this was increased on 18 January 2005 to 300 milligrams per day. On 24 February 2005 the blood pressure was recorded as 130/80.
57. The Tribunal noted that there was a period from 30 January 1998 until 24 August 2000 when Mr Ryan did not attend Dr Tsiglopoulos. At the request of the Tribunal, Mr De Marchi made enquiries of Mr Ryan, Mr Ryan’s wife and Mr Ryan’s daughter as to whether he had attended another general practitioner during this period of two and a half years. They denied he had attended another practitioner.
dr a. incani
58. Dr Incani’s first report (20 February 2006, Exhibit R2) includes the history given by Mr Ryan that he had suffered from hypertension for 11 years, had a mild cerebro- vascular accident with mild hemiparesis with good recovery in 1996, COAD, memory loss of late, hearing loss and exposure to asbestos. Dr Incani did not record any bowel symptoms or abdominal pain. Dr Incani had been asked to perform a gastroscopy and colonoscopy and did so on 16 June 2003 diagnosing mild gastritis and duodenitis, diverticulosis and a colonic polyp (early tubular adenoma with low grade dysplasia).
59. Dr Incani concluded that Mr Ryan had suffered a TIA, with minimal vascular disease, from which he had fully recovered, mild to moderate COAD, mild gastritis, mild essential hypertension and minimal coronary artery heart disease.
60. As Mr Ryan had given evidence that he first developed LIF pain in 1972 and both Dr Sleigh and Dr Tsiglopoulos had queried a diagnosis of IBS, Dr Incani was asked by the Respondent, with the applicant’s agreement and as directed by the Tribunal, to provide a further report in which he gave consideration to the possibilities of early IBS leading to diverticulosis, given the latter is a disease of the older age group, and whether the two conditions could co-exist.
61. Dr Incani reviewed Mr Ryan on 16 May 2007. On this occasion Mr Ryan said he had suffered from abdominal pain, particularly in the LIF, for 20 years. Dr Incani considered IBS to be a diagnosis of exclusion as there were no specific tests for the condition. Diverticular disease tends to be a common disease in the older age group and one quite often finds that IBS symptoms precede diverticular disease, particularly in persons who have a low fibre diet. IBS and diverticular disease quite often co-exist. Dr Incani confirmed the presence of diverticular disease in a colonoscopy in June 2003 and concluded Mr Ryan suffered IBS at age 24 and then proceeded to develop diverticular disease at a later stage in life. Dr Incani provided extracts from four medical articles concerning IBS published between 1991 and 1999. These publications related to the classification of functional bowel disorders and their symptomatology, the incidence of IBS in a selected American community, a cohort of 4,581 Danes with abdominal symptoms and a similar study involving adult patients with IBS in the United States, United Kingdom and The Netherlands. These studies reveal that IBS is a common disorder and that in order to diagnose functional bowel disorder such as IBS, symptoms must be present for at least 12 weeks during the preceding 12 months in the absence of a structural or biochemical explanation. These publications did not greatly assist the Tribunal.
transcripts of the veterans’ review board hearings of 17 january 2005 and 7 september 2005 (exhibit r7)
62. The Tribunal has read both transcripts. They do not add anything to the evidence outlined above, other than that Mr Ryan claimed to have suffered a second TIA in July 2002. This presumably relates to the report of Dr Tsiglopoulos that there was a 15 second episode of unsteadiness on the feet on 18 July 2002.
The T-Documents (exhibit r1)
63. The vast majority of the reports contained in the T-Documents have been considered above with the exception of the report of Dr N. Rose, psychiatrist, who on 8 November 2004 diagnosed Mr Ryan as suffering from a mild dysthymic disorder which may be related to the stroke of 1996 (T17, p119-122). At the time of this consultation Dr Rose considered Mr Ryan’s current psychiatric status to be normal and the claimed deterioration in concentration and memory were not verified on mental state examination. Dr Rose recommended anti-depressive medication with the expectation that all depressive symptoms would resolve. Dr Rose stated …there have been no problems with functional effect, occupation, domestic situation, social interaction or leisure activities. (T17, p122 of V200500156).
respiratory function tests
64. The T-Documents contain the results of respiratory function tests performed on 27 November 2003. The report states there was normal base line spirometry. The forced vital capacity (FVC) improved with bronchodilator administration suggesting some underlying airflow obstruction. Respiratory function testing was repeated on 14 November 2004 and was reported to show mild airflow obstruction.
Legislation
65. As Mr Ryan has rendered operational service, s 120(1) and s120(3) of the Veteran’s Entitlement Act 1986 (the Act) are applicable. Section 120(A) requires the Tribunal to apply any relevant Statements of Principles to the claimed diseases or injuries. The parties and the Tribunal agreed that the relevant Statements of Principles were:
· Instrument No 87 of 1997, concerning Diverticular Disease of the Colon
· Instrument No 103 of 1996, concerning Irritable Bowel Syndrome
· Instrument No 35 of 2003, concerning Hypertension
· Instrument No 17 of 2007, concerning Depressive Disorder
· Instrument No 58 of 1998, concerning Depressive Disorder
66. Section 120(1) and s 120(3) state:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
67. Section 196B(2) is also relevant and states:
196B Functions of Authority
(2) If the Authority is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(ca) warlike or non‑warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
68. The Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 relating to the reasonable hypothesis standard of proof. The series of steps are as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
69. The Applicant relied upon the following factors in the relevant Statement of Principles:
Factor 1(b) of Instrument No 87 of 1997, concerning Diverticular Disease of the Colon, which states:
changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; or; …
70. Factors 5(b), 5(c), 5(d) and 5(e) of Instrument No 103 of 1996, concerning Irritable Bowel Syndrome. These state:
…
(b)suffering an episode psychiatric condition within the six months immediately before the clinical onset or irritable bowel syndrome; or
(c)suffering an episode of severe diarrhoea within the six months immediately before the clinical onset of irritable bowel syndrome; or
(d)suffering a specified psychiatric condition within the six months immediately before the clinical worsening or irritable bowel syndrome; or
(e)suffering an episode of severe diarrhoea within the six months immediately before the clinical worsening or irritable bowel syndrome; or …
71. Factor 5(o) of Instrument No 35 of 2003, concerning Hypertension which states:
…
(o)suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension; or …
72. Factor 6(f), 6(g) and 6(h) of Instrument No 17 of 2007, concerning Depressive Disorder states:
…
(f)experiencing a category 2 stressor within the one year before the clinical onset of depressive disorder; or
(g)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; or
(h)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder; or …
73. Factor 5(d) of Instrument No 58 of 1998, concerning Depressive Disorder states:
…
(d)having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or …
Submissions
applicant
74. Mr De Marchi identified the factors in the various Statements of Principles (SoP) on which the Applicant relied. These have been outlined under the heading Legislation. He submitted that the question of assessment of the rate of pension was a matter for the Tribunal and should not be remitted to the Respondent, whatever the Tribunal’s decision. He argued that with respect to the diagnoses of the kinds of disease from which Mr Ryan suffered, the diagnostic criteria outlined in each of the relevant Statement of Principles should be ignored by the Tribunal. Instead reliance should be placed entirely on the opinions of the expert medical witnesses.
75. The hypotheses raised were multiple and complex. With respect to Mr Ryan’s colonic disease there were two alternative hypotheses:
1. That restricted access to fresh food and low fibre content food during Mr Ryan’s operational service have contributed to the subsequent development of diverticular disease.
2. That at the time of discharge from the Navy, Mr Ryan had complained of LIF pain indicative of irritable bowel syndrome, which had over the ensuing years increased the likelihood of developing diverticular disease and had continued after the development of the diverticular disease so that his current symptoms were due to both conditions.
76. Mr Ryan’s accepted conditions of a TIA and emphysema had been attributed to his service related smoking habit. As a corollary to this, further hypotheses were raised. First that the conditions of TIA and emphysema had resulted in depression (dysthymic disorder) in early 1996; and secondly that the depression had led to the development of hypertension with the date of onset being 20 November 2003.
77. Should the Tribunal accept that the conditions of depression, hypertension and diverticular disease were all service related, then Mr Ryan’s overall disability rating would be greater than 70 and his lifestyle rating as outlined in the questionnaire was greater than 5 impairment points. Such ratings would attract a pension at the extreme disablement adjustment rate.
78. In his opening address to the Tribunal Mr De Marchi had advised the Tribunal there was no substantial evidence from Mr Ryan regarding his dietary intake prior to service. In order to meet the requirement of a service related reduction to less than 50 percent of the usual dietary fibre for the individual for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon, it was to be assumed that such had been the case, as Mr Ryan was reared on a dairy farm in Port Fairyand where he would have had access to a high fibre content diet.
respondent
79. Ms McCulloch accepted the diagnosis of dysthymic disorder with a clinical onset of 3 March 1996 and the diagnosis of hypertension with a clinical onset of 20 November 2003. However, Ms McCulloch submitted that neither the depression nor the hypertension were service related as the relevant SoP’s were not met. Mr Ryan relied primarily on the medical conditions of transient ischaemic attack and emphysema as being serious medical conditions; serious enough to satisfy Factor 6(f), 6(g) or 6(h) of Instrument No 17 of 2007 concerning depressive disorder or Factor 5(d) of Instrument No 58 of 1998 concerning depressive disorder. The latter factor requires the applicant to have had a major illness or injury within the two years immediately before the clinical onset of depressive disorder. By definition, the transient ischaemic attack had not been life-threatening, the episode having lasted only 10 to 15 minutes with expert medical testimony that Mr Ryan had fully recovered from the effects of this incident. The emphysema had been described as borderline normal or, at the most, extremely mild. Mr Ryan’s CT scan of the brain had been normal and the magnetic resonance angiogram (MRA) had shown only five very small areas of increased intensity. The Carotid Doppler had also been within normal limits for Mr Ryan’s age and showed no discrete plaques or narrowing of the carotid arteries. Dr Gurry and Professor Byrne had diagnosed a vertebro-basilar ischaemic episode, although the Doppler study had shown antegrade flow in the vertebral arteries ie no evidence of obstruction. Dr Tsigopoulos had conducted an examination for cognitive and motor defects and found no evidence of either. A thalium exercise test on 1 September 2003 was reported as normal, Mr Ryan did not suffer any shortness of breath during the performance of this investigation. The Respondent contended that the lung function tests which Mr Ryan had undergone in pulmonary function laboratories did not reveal severe or medically significant compromise of lung function.
80. Ms McCulloch submitted that the diagnoses of irritable bowel syndrome was in doubt as Mr Ryan had given extremely variable histories to various doctors. He had told Dr Marshall he had suffered from pain in the LIF for 15 years, told Dr Incani this pain had been present for 20 years and informed the Tribunal that he first suffered it in 1972. There was no evidence that Mr Ryan had suffered from a psychiatric disorder prior to the development of this abdominal pain (Factor 5(b) of SoP Instrument No 103 of 1996 nor did he meet the requirements of Factor 5(c), 5(d) or 5(e) of the same SoP.
81. Ms McCulloch pointed out that Mr Ryan’s periods of operational service had been of very short duration, totalling 62 days in 1956 and 1958; and that access to fresh food was available in many of the ports visited during this period of operational service.
82. While Ms McCulloch accepted that Mr Ryan did not socialise in the last 12 to 18 months, it was contended that this related to the Ryan’s move from their home in Monee Ponds to Taylors Lake and the geographical isolation from their long-standing friends. Mr Ryan had never been a person to lead a very active social life and there was evidence certainly that in 2004 he was still engaged in gardening and lawn mowing and in 2007 he anticipated attending the ANZAC Day ceremonies and post march social activities. Ms McCulloch contended that a lifestyle rating of six was not attracted. Ms McCulloch requested that whatever the Tribunal’s decision, Mr Ryan’s application should be remitted to the Commission for pension assessment.
The Tribunal’s Deliberations
83. Before proceeding to consider all of the raised hypotheses in accordance with the steps of Deledio, the Tribunal must make a preliminary determination to its reasonable satisfaction as to the diagnosis of the injuries or disorders from which Mr Ryan suffers and the date of their clinical onset (Cooke). Mr Ryan has the accepted conditions of TIA, emphysema and sensorineural deafness. The Tribunal finds that he suffers from diverticular disease with the date of diagnosis in late 2001; a possible diagnosis of irritable bowel syndrome which, if in fact present, may have its onset in 1972; a dysthymic disorder (mild depression) with onset in March 1996; cerebro vascular disease (small vessel disease) with the clinical onset being 10 January 1996 and hypertension diagnosed on 20 November 2003. Mr Ryan’s original claim for anxiety disorder has, on the basis of psychiatric evidence, been reclassified as mild dysthymic disorder.
84. The hypotheses raised relate to Mr Ryan’s diverticular disease of the colon with or without irritable bowel syndrome and the development of a dysthymic disorder secondary to his accepted TIA and emphysema; the dysthymic disorder in turn leading to hypertension.
85. The hypotheses raised may be described as:
1. In relation to Mr Ryan’s diverticular disease of the colon;
(i)Mr Ryan has developed diverticular disease of the colon as a result of a greater than 50 percent reduction in his normal intake of dietary fibre for a continuous period of 90 days before the clinical worsening of diverticular disease of the colon;
(ii)Mr Ryan developed irritable bowel syndrome as evidenced by lower abdominal pain in the few months preceding his discharge from the Navy and this in turn hastened the onset of diverticular disease and continues to co-exist with his diverticular disease.
2. In relation to Mr Ryan’s Dysthymic Disorder:
(i)Mr Ryan’s transient ischaemic episode of 1996, compounded by the development of emphysema thereafter, constitutes a life- threatening or major illness leading to the development of a dysthymic disorder.
3. In relation to Mr Ryan’s Hypertension
(i)Mr Ryan’s hypertension has developed as a consequence of his psychiatric disorder.
86. The Tribunal has intentionally separated the various sub-hypotheses of the more general hypotheses advanced by the Applicant given the decision of the Full Court of the Federal Court in McKenna v Repatriation Commission (1999) 86 FCR 144.The Court concluded that where a hypothesis included sub-hypotheses, each sub-hypothesis is required to be supported by an SoP. This approach included or might include, a re-examination of any disease or injury from which the sub-hypotheses flowed. In Mr Ryan’s case this involves a reconsideration of whether his TIA and his emphysema are service related and of a severity to meet the requirements of the relevant SoP.
Application of the Four Steps of Deledio
87. Having considered all the material before it the Tribunal determines that that material does point to hypotheses connecting the diseases with the circumstances of service rendered by Mr Ryan. Therefore, step one of Deledio is satisfied.
88. Statements of Principle are in force as determined by the Repatriation Medical Authority (RMA) under s 196B(2), for all of the diseases forming part of the hypotheses and sub-hypotheses. Therefore, step two of Deledio is satisfied.
89. The Tribunal is next required to form an opinion as to whether the hypotheses raised are reasonable ones; and it will be so if each hypothesis is consistent with the template to be found in the SoP. Each of the six disease states that have been diagnosed or regarded as a possible diagnosis will be considered under the relevant SoP.
diverticular disease
90. The Applicant has relied on Factor 1(b) of Instrument No 87 of 1997 concerning diverticular disease of the colon. This states:
“(b) changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; …
There is no material before the Tribunal regarding Mr Ryan’s dietary fibre intake prior to service; after service or in the immediate period prior to the diagnosis of diverticulosis in 2001. The material indicates that Mr Ryan’s longest period of operational service was 33 days and the time out of port was less than four weeks. The material does contain information regarding naval diet during periods of operational and non-operational service stating that the diet was the same with the exception of the unavailability of fresh fruit after two weeks at sea. It is thus not possible to quantify any reduction in dietary fibre intake during Mr Ryan’s operational service in order to meet the SoP requirement of at least a 50 percent reduction in fibre intake. The hypothesis with regard to diverticular disease does not meet the template of the SoP.
irritable bowel syndrome
91. The possibility of Mr Ryan suffering from irritable bowel syndrome has been raised in the material before the Tribunal. Mr De Marchi has indicated that this could be a stand alone diagnosis or part of a more complex hypothesis associated with the development of diverticular disease. Instrument No 103 of 1996, concerning irritable bowel syndrome, states that this terminology:
means a heterogeneous group of disorders of diverse symptomatology in which abdominal pain is associated with defecation or changes in bowel habit, and with features of disordered defecation and with distention, and which is characterised by the following symptom criteria:
At least three months, continuous or recurrent symptoms of:
(A) Abdominal pain or discomfort which is
· relieved by defaecation;
· and/or associated with a change in frequency of stool;
· and/or associated with a change in consistency of stool;
plus
(B)An irregular pattern of defaecation at least 25% of the time, consisting of two or more of the following:
· altered stool frequency;
· altered stool form (lumpy/hard or loose/watery);
· altered stool passage (straining, urgency, or feeling of incomplete evacuation); passage of mucus;
· bloating or feeling of abdominal distension,
The material before the Tribunal indicates that Mr Ryan first noted abdominal pain or discomfort in his LIF in 1972, commencing a few months prior to his discharge. This symptom is insufficient to satisfy the definition of irritable bowel syndrome contained in Clause 2(B) of the SoP rendering the hypothesis unreasonable.
92. Even had the diagnostic criteria clause been satisfied, the material before the Tribunal does not meet the template regarding the factors that must as a minimum exist before it can be said that a reasonable hypothesis can be raised connecting irritable bowel syndrome with the circumstances of Mr Ryan’s relevant service. The factor relied on by the Applicant was Factor 5;
(b)suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome; or
(c)suffering an episode of severe diarrhoea within the six months immediately before the clinical onset or irritable bowel syndrome; or
(d)suffering a specified psychiatric condition within the six months immediately before the clinical worsening or irritable bowel syndrome; or …
Both hypotheses relating to irritable bowel syndrome failed to meet the template provided by the SoP and therefore fail at step three of Deledio.
93. Mr De Marchi had submitted that the SoP had no role to play in determining the diagnostic criteria for any disease and that the Tribunal must reach a diagnosis on the evidence of expert medical testimony. The Tribunal did not agree with this argument, since to ignore the diagnostic criteria when contained in the SoP would render many SoP’s ineffectual in the decision-making process.
94. Deputy President Forgie considered the effect of the diagnostic criteria contained in a SoP in Re Slattery and Repatriation Commission [1998] 52 ALD 90. The case concerned the alternative diagnoses of PTSD and generalised anxiety disorder. DP Forgie deferred to expert medical opinion to determine the exact diagnosis, given that both conditions were of the same genus, being classified as anxiety disorders in the Diagnostic and Statistical Manual of Mental Disorders (DSM IV).
95. In Benjamin v Repatriation Commission [2001] FCA 1879 the Full Court of the Federal Court, (Moore, Emmett and Allsop JJ) at paragraph 41 said in relation to the primary decision that:
The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.
and at paragraph 50:
The primary judge correctly held that the Tribunal erred in regarding itself as bound to apply the definition in SoP 15 of 1994.
96. Both of these decisions relate to claims for service related post-traumatic stress disorder. In order to make such a diagnosis a psychiatrist must have accepted that the claimed traumatic event is a “stressor”—“of an extreme (i.e.life threatening) nature and the person’s response to the event “must involve intense fear helplessness or horror”. (Benjamin, paragraph 26 where the Full Court quoted DSM 1V in relation to diagnosis). As these assessments of both the stressor and the person’s response fall primarily to the Commission or the Tribunal to decide it is not surprising that this has become a difficult area. This Tribunal does not believe that the same difficulty arises or should arise in physical diseases as opposed to psychiatric disorders.
97. In the very recent decision of Repatriation Commission v Warren (2008) FCAFC 64 the Full Court of the Federal Court addressed the effect of the diagnostic criteria contained in the SoP and said at paragraph 24:
While s 196B(2) … speaks only of the relationship or connection between kinds of injury or disease and service, it empowers the Authority to make SoPs setting out ‘the factors that must as a minimum exist’ as well as ‘which of those factors must be related to service rendered by a person’ before it can be said that there is a reasonable hypothesis of connection. The former is apt to suggest criteria against which the clinician’s diagnosis is to be tested for the purposes of entitlement to pension.
and at paragraph 25:
… The possibility must be acknowledged, however, that the clinician’s diagnosis will not be supported by the SoP. … If the clinician’s diagnosis of PTSD is not upheld by the SoP for the kind of disease known as PTSD, there will not be a reasonable hypothesis connecting Mr Warren’s disease with his service for the purposes of s 120(3) of the VE Act.
98. The decision in Warren was handed down after the hearing of Mr Ryan’s case but before the decision was reached.
transient ischaemic attack
99. This disease was accepted as service related by the Commission on 18 August 2003. At that time the relevant SoPs was Instrument No 52 of 1999 (as amended by Instrument No 30 of 2002 and Instrument No 57 of 2003) all concerning cerebrovascular accident.
100. The SoP does not contain diagnostic criteria. The factor that must at the minimum exist before it can be said that a reasonable hypothesis has been raised connecting the cerebrovascular accident with the circumstances of Mr Ryan’s relevant service was Factor 5(k)(i); that is smoking of at least five cigarettes per day for at least five years before the clinical onset of the cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation. Mr Ryan had a service related smoking habit meeting these requirements having ceased smoking in 1994, two years prior to his TIA.
101. Therefore, the requirements of step three of Deledio are satisfied rendering the hypothesis with respect to the TIA reasonable.
emphysema
102. Mr Ryan’s claim that his emphysema was service related was accepted by the Commission on 21 June 2004. The relevant SoP at that time was Instrument No 74 of 1997. The SoP defines emphysema in physiological rather than clinical terms and relies primarily on functional assessment of the emphysema utilising pulmonary function testing to demonstrate pulmonary obstruction. (Clause 2(c)) Mr Ryan’s pulmonary function testing met the delineated lung volumes as stated in Clause 2(c)(i). The factor relied on to link Mr Ryan’s emphysema to his relevant service was Factor 5(b)
…
smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or …
Thus, step three of Deledio is satisfied as the hypothesis raised matches the template of the emphysema SoP then current.
103. Mr Ryan has submitted that his emphysema is a major illness of a severity to meet the requirements of Factor 5 (d) of SoP No 58 of 1998 concerning depressive disorder. The formal lung function tests are reported as showing a mild obstructive defect. This does not equate to a serious illness or injury that is life-threatening or seriously disabling.
dysthymic disorder
104. Mr Ryan relied on Instrument No 17 of 2007, concerning depressive disorder, and Instrument No 58 of 1998, concerning depressive disorder. Mr De Marchi left it to the Tribunal to determine which of these two SoP were to the greater advantage of the Applicant (Repatriation Commission v Keeley (2000) 98 FCR 108). The Tribunal is of the opinion that the SoPs are equally beneficial to the Applicant’s claim. The Applicant relies on Factors 6(b), 6(c) and 6(h) in Instrument No 17 of 2007. Factor 6 is:
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
…
(h)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the five years before the clinical onset of depressive disorder; or …
For the purposes of this SoP a category 1A stressor means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
A category 1B stressor means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
These events obviously relate to experiences occurring during operational service.
105. Factor 6(h) would be attracted if Mr Ryan’s medical illnesses were life- threatening or had resulted in serious physical or cognitive disability. Having examined all the material before it the Tribunal cannot find any evidence that these criteria could be met.
106. Instrument No 58 of 1998 concerning depressive disorder defines, in clause 2(b)(ii), the clinical criteria of a dysthymic disorder relying on the definition from DSM-IV. It is described as a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of symptoms used to diagnose major depression such as neurovegitative signs, social withdrawal, cognitive impairment and suicidal ideation.
107. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised, and upon which the Applicant relies, is Factor 5(d):
having a major illness or injury within the two years immediately before the clinical onset of depressive disorder; or …
Clause 8 of SoP 58 of 1998 defines a major illness or injury as meaning
A serious illness or injury that is life-threatening or seriously disabling.
108. The material before the Tribunal indicates that Mr Ryan rapidly recovered from the TIA and certainly Dr Gurry and Professor Byrne found no abnormal neurological signs. Both opined that Mr Ryan had fully recovered from his TIA when they saw him. Dr Tsigilopoulos’ cognitive and physical assessments record no abnormality, neurologically or cognitively (T 104-117, V2005/156)
109. The term transient when used as an adjective, is defined (Australian Concise Oxford Dictionary, 3rd Edition) as of short duration; momentary; passing; impermanent and is so used in medical terminology. A TIA is completely reversible. An ischaemic episode that is not of short duration and results in persisting neurological signs is termed a cerebro-vascular accident. By definition, a TIA cannot be life-threatening. There is nothing in the material before the Tribunal to indicate that Mr Ryan suffers any neurological or cognitive disablement secondary to his TIA. The brain CT and the MRA did not reveal any significant carotid or basilar artery disease. Some 12 years after the TIA Mr Ryan is free of neurological signs and has not experienced a further medically documented TIA. In 2002 he did experience a 15 second episode of dizziness that was not considered significant.
110. Therefore, step 3 of Deledio is not satisfied.
hypertension
111. The Applicant relied on Instrument No 35 of 2003 concerning hypertension. The SoP defines hypertension as meaning:
… permanently elevated blood pressure, evidenced by:
(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.
The factor relied upon by the Applicant in order to link his hypertension with his relevant service is Factor 5(o) of the SoP which states:
…
suffering from a clinically significant depressive disorder for the six months immediately before the clinical onset of hypertension; …
Clause 8 of the SoP defines a clinically significant depressive disorder as meaning:
any depressive disorder attracting a diagnosis under DSM IV sufficient to warrant ongoing management by a psychiatrist, counsellor or General Practitioner;
112. As Mr Ryan’s claim for hypertension relies on him having a clinically significant depressive disorder and his depressive disorder is reliant on his accepted TIA and emphysema being major illnesses, it is not necessary for the Tribunal, in light of its findings that the TIA and the emphysema are not life-threatening or disabling diseases, to consider the hypertension claim further.
113. The Tribunal has found the question of whether Mr Ryan’s accepted conditions of TIA and emphysema meet the definition of a major illness (Clause 8 of SoP No 58 of 1998 and 6(h) of SoP No 17 of 2007) difficult and has determined to proceed to findings of fact (Deledio step 4) to test its decision that Mr Ryan’s claim has failed at Deledio step 3. The Tribunal accepts that Mr Ryan perceives his accepted conditions to be serious and disabling, although his major fear is of developing an asbestos-related disease.
114. The Australian Concise Oxford Dictionary ( 3rd Edition) defines the word major as important, large, serious, significant and the current edition of the Macquarie Dictionary as greater, as in size, amount, extent, importance, rank. The term life-threatening has been given its face value of likely too or may result in death. .
115. The Tribunal must rely on the evidence of the medical experts in order to assess whether the accepted diseases are major.
transient ischaemic attack
116. Dr Gurry, Professor Byrne, Dr Incani, Dr Rose and Dr Cole have, in the course of their medical reports and opinions, referred to the TIA suffered in January 1996 by Mr Ryan.
117. Dr Gurry described the episode of loss of balance and feeling a little queer with some left arm numbness but no weakness, as lasting 10 to 15 minutes before full recovery. He did not find any abnormalities on examination, noted that a CT scan of the brain was normal and the carotid doppler ultrasound showed thickening of the carotid arteries but no plaque formation and no reduction in flow velocity. Dr Gurry did not comment on the severity of the episode, did not think further investigation was warranted and advised treatment in the form of low dose aspirin at the rate of one tablet daily. (R3, p29)
professor byrne
118. Professor Byrne obtained a similar history to that of Dr Gurry except that he was told the episode lasted for approximately 30 minutes and then improved. Physical examination revealed no abnormality and, as before, it was noted that the CT scan of the brain was normal. Professor Byrne diagnosed a vertebro-basilar TIA and recommended a magnetic resonance angiogram which showed minimal punctate hyper-intensity in the mid-brain areas. No major vessel circulatory pathology was demonstrated. Once again the treatment recommended was aspirin. (Tribunal note: punctate hyperintensity is indicative of areas of fibrosis). Professor Byrne did not comment as to the severity, except to say that Mr Ryan has small vessel problems which is re-assuring.
119. Dr Incani noted that Mr Ryan had suffered from a mild cerebral vascular accident with good recovery (Exhibit R2). Dr Rose, psychiatrist, recorded that Mr Ryan had suffered a slight stroke in 1996. Dr Cole in 2006 obtained the history that Mr Ryan had suffered a stroke 12 years previously in which his right arm and leg were numb but noted that Mr Ryan was not admitted to hospital. Dr Cole’s only comment regarding Mr Ryan’s TIA was made in the course of his evidence before the Tribunal were he said a stroke is a rather nasty thing to have, you know, irrespective of what the, you know, exact pathology or clinical features might have been (Transcript 15 March 2007, p48).
emphysema
120. Mr Ryan has never been referred to a respiratory physician for assessment of his emphysema. Dr Jamieson is a consultant respiratory physician and he interpreted the pulmonary function tests performed on Mr Ryan on 4 November 2004 (T11,p59, V2005/897). He did not see Mr Ryan. Dr Jamieson concluded in his report that spirometry shows mild airflow obstruction with some improvement in volumes following inhaled bronchodilator. The pulmonary function tests performed in the general practitioners’ rooms on 2 December 2003 (T7,p156,V2005/156), using a vitallograph, are not regarded as being of the same standard as those performed in a formal pulmonary function laboratory; and this is confirmed by the marked difference in lung volumes recorded on 2 December 2003 and 27 November 2003. Respiratory function tests performed on 27 November 2003 were again interpreted by Dr Jamison and the report states: Baseline spirometry is within normal limits, but there is a significant improvement in FVC (forced vital capacity) following inhaled bronchodilator suggesting some underlying airflow obstruction. (T18,p82, V2005/897). On 1 September 2003 Mr Ryan had undergone an exercise thallium test as part of an investigation for coronary artery disease. This test was negative for myocardial ischemia at a high level of hemodynamic stress. This test performed on a treadmill was ceased after 4 minutes of vigorous exertion due to fatigue and dyspnoea. All investigations indicate that Mr Ryan’s emphysema is of mild severity. Doctors Incani, Rose and Cole had noted that Mr Ryan had been diagnosed with emphysema but did not comment on its severity.
dysthymic disorder
121. Both psychiatrists agree with respect to diagnosis. Dr Rose considered the condition to be mild and no cognitive defect was detected. In his opinion it might be related to the stroke; however, on the date on which Mr Ryan was seen, 8 November 2004, his psychological status was assessed as being normal. Dr Rose recorded that Mr Ryan had no problems with functional effects, occupation, domestic situation, social interaction or leisure activities at this time. Given the past history of depressive symptoms, Dr Rose suggested that anti-depressants may be of some benefit.
122. Dr Cole likewise diagnosed a mild dysthymic disorder which he attributed to the TIA and the fear of developing asbestos-related lung disease. He found Mr Ryan’s memory to be intact except for dates. No suicidal ideation was evident. Dr Cole considered Mr Ryan’s dysthymic disorder to be clinically significant as Mr Ryan was taking an anti-depressant and was seeing his general practitioner on a monthly basis.(Transcript 15 March 2007, p46-47)
123. Dr Tsiglopoulos had performed a cognitive assessment on 28 October 2004 which was reported as normal (T17, p107) and a cerebrovascular assessment on the same day. No symptoms of cerebral ischemia were described and Mr Ryan’s ability to use all four limbs was normal. (T17, p110-117).
124. There is no evidence or opinion that Mr Ryan’s TIA was life-threatening or seriously disabling other than Dr Cole’s opinion that Mr Ryan met the requirements of Factor 5(d) of SoP 58 of 1998.
125. The Tribunal is satisfied beyond reasonable doubt that Mr Ryan’s dysthymic disorder, hypertension, diverticular disease and possible IBS were not service related (S120(1)) as interpreted by the Full Court of the Federal Court in step 4 of Deledio).
126. The Tribunal affirms the decision under review.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Miss E.A. Shanahan, Member
Signed: .............[Sanjiv Shah].................
AssociateDates of Hearing 15 and 16 March 2007, 7 September 2007, 21 February 2008
Date of Decision 16 June 2008
Solicitor for the Applicant Mr D DeMarchi
Solicitor for the Respondent Ms J McCulloch
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