Somerset and Repatriation Commission
[2004] AATA 1077
•15 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1077
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/414
VETERANS' APPEALS DIVISION )
Re EDWARD SOMERSET Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date15 October 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...........................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – Meniere’s disease – applicant claims disease caused by war service – gelignite explosion – diagnosis – clinical onset - hypothesis raised by applicant does not fit the template in the Statement of Principles –Tribunal not satisfied that disease is connected to war service - decision affirmed
Veterans’ Entitlements Act 1986 ss 7, 120(4), 120B(3), 196B(3), 196B(14)
Repatriation Commission v Smith (1987) 15 FCR 327
Re O’Brien and Repatriation Commission [2003] AATA 525
Repatriation Commission v Wellington (1999) 57 ALD 507Repatriation Commission v Wedekind [2000] FCA 649
REASONS FOR DECISION
15 October 2004 Mr IR Way, Member 1. This is an application by Edward Somerset for review of a decision of the Repatriation Commission dated 20 August 1999 which refused Mr Somerset’s claim for Meniere’s disease. This decision was affirmed by the Veterans’ Review Board (“VRB”) on 15 February 2001.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6) and other documentary evidence as follows:
Exhibit A1 Medical Paper regarding Trauma and Meniere’s syndrome
Exhibit A2 Report of Dr P Grant dated 19 February 2002Exhibit A3Statutory Declaration of Geoffrey John Wockner, 9 May 2002
Exhibit A4Statement of Service and Discharge of applicant
Exhibit A5Bundle of Service Documents of applicant
Exhibit R1Report of Dr Ross Harrington dated 13 July 2001
Exhibit R2Report of Dr Ross Harrington dated 16 October 2001
Exhibit R3Report of Dr Ross Harrington dated 21 May 2003
Exhibit R4Report of Dr Frank W Anning dated 13 December 2002
Exhibit R5Report of Dr Frank W Anning dated 6 May 2003
Exhibit R6Transcript of VRB proceedings
Exhibit R7Report of Dr P Grant dated 15 April 2002
3. The applicant was represented by his wife, Mrs Joy Somerset. Both Mrs Somerset and Mr Somerset gave oral evidence and evidence was given by telephone by Dr F Anning. Mr B Williams represented the respondent.
Background to the Claim
4. The applicant was born on 15 December 1924 and served in the Royal Australian Air Force in Australia from 21 December 1942 to 11 January 1944, during World War II. This period of service constitutes eligible war service as defined in section 7 of the Veterans’ Entitlements Act 1986 (“the Act”). As such, the standard of proof to be applied in this case is prescribed by subsection 120(4) as affected by section 120B of the Act. The Tribunal must determine it its reasonable satisfaction the question whether the veteran suffers from war-caused Meniere’s disease, applying the civil standard of proof of the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 355.
5. Subsection 120B(3) of the Act provides in part:
“(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); …;
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
6. Where there is a Statement of Principles (“SoP”) made under subsection 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran’s disability and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran’s disability is, on the balance of probabilities, connected with the veteran’s service. This last question must also be determined to the reasonable satisfaction of the Tribunal.
7. The relevant SoP in this case is Instrument No 78 of 2001, Meniere’s disease.
8. Instrument No 78 of 2001 relevantly provides as follows:
“Basis for determining the factors
3. After examining the available sound medical-scientific evidence the Repatriation Medical Authority is of the view that it is more probable than not on the sound medical-scientific evidence available, that the only factor that can be related to the cause of or material contribution to or aggravation of Meniere’s disease or death from Meniere’s disease and which can be related to relevant service is that set out in clause 4.
Factors that must be related to service
4. The factor that must exist before it can be said that, on the balance of probabilities, in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Meniere’s disease or death from Meniere’s disease is inability to obtain appropriate clinical management for Meniere’s disease.
…
Other definitions
6. For the purposes of this Statement of Principles:
…
‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);”
9. The relationship to service required by the SoP must be one of the relationships prescribed in subsection 196B(14) of the Act.
“(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
10. The applicant’s accepted disabilities are:
§ Bilateral sensori-neural hearing loss with tinnitus
§ Chronic sinusitis
§ Asthma
§ Acquired cataract in the left eye
Applicant’s Evidence and Submissions
11. In his claim for disability pension and medical treatment for vertigo lodged on 4 August 1999 the applicant stated:
“The roaring, ringing & pain in ears increases until it is unbearable. I suffer dizziness, lack of balance, nausea, sometime vomit & I do suffer loose bowels. The sinus ache, head pain behind the eyes. The left eye in particular becomes very puffy & tenderness increases accross [sic] the side of face. I ache around & behind the eyes, accross [sic] the temple, & around the side of the head.
The ears become very tender to touch; pain & soreness increases & reaches the top of my head. Head is very cold at night & always must have top covered at night. Can’t tolerate wireless, T.V. any loud noises – or the hearing aid – Relief only with repeated doses of antibiotic inhalations & sinus tablets & lie down in a darkened room. Now have to wear darkened ‘coverall’ glasses over prescription glasses which are tinted. Any form of motion increases the nausea. I have for many years used inhalation daily. When vertigo & sinus is bad I loose [sic] all sense of smell & taste.”
12. The Tribunal notes that the applicant’s LMO, Dr Juhasz, gave a provisional diagnosis of Meniere’s disease, based on the applicant’s claim and investigation by Dr R Harrington.
13. Mrs Somerset told the Tribunal that she first met Mr Somerset in 1946 and that they were married in 1952. She said the applicant’s first attack of vertigo and nausea occurred early in 1947 when she and Mr Somerset attended a friend’s wedding. She described the applicant, at that time, being unsteady on his feet, nauseated and with a very slow pulse. She said he recovered after lying down and that next morning he went to a local doctor because they thought he might have had a heart attack. She said that subsequent examinations showed he had a greatly enlarged heart but no reason was found for his condition. She said there were no records of this incident as they had been lost when their home burnt down.
14. Mrs Somerset also described the applicant suffering what she called a “drop attack” in 1969/70, when she found her husband on the floor, disorientated and with a very slow pulse. Subsequent medical examinations showed the applicant no longer had an enlarged heart, he had not suffered from a heart attack and there was no apparent reason for what had happened to him.
15. It was Mrs Somerset’s contention that the cause of the condition being suffered by the applicant was the incident he suffered in training at Shepparton during World War II, when he was “blown up” by a half stick of gelignite simulating enemy attack, which was thrown into the back of a tent which the applicant occupied. The evidence of Mr Somerset, Geoffrey John Wockner (Exhibit A3) and the applicant’s service records support such an incident occurring in Shepparton in mid-1943.
16. In his statement dated 14 November 1999 (T3/M) Mr Somerset stated:
“I claim that the Meniere’s Disease (Vertigo) is a ‘war caused’ service ‘condition’. It can be traced to Aerodrome Defence Training at Shepparton – Victoria when I was blown up in a training ‘Sortie’. The tent was blown up (by the enemy) with a ‘big bang’. I was over 2 feet into the air & both the tent & myself flattened. My ears have been ringing ever since. Medical knowledge dictates that a ‘Big Bang’ eventuates in Meniere’s Disease. …”
17. Mrs Somerset stated that after the gelignite incident her husband did not remember being taken back to his quarters and that subsequently he was admitted to hospital for observation but nothing was recorded about the incident, the records showing that the applicant was suffering from tonsillitis. She said this was not possible as he had had his tonsils removed when he was a young boy. She said that given the nature of the gelignite incident, it was likely that nothing had been recorded about the incident, nor had there been any investigation of the matter.
18. The Tribunal notes that the applicant’s medical records show that he was hospitalised from 21 July 1943 to 24 July 1943 with an inflamed throat, enlarged tonsils and tender abdomen; and that he was discharged fit (light duties) on 24 July 1943.
19. Mr Somerset told the Tribunal that when he was discharged from the RAAF in January 1944 (to resume civil occupation on his father’s farm), he was placed on the reserve list and that he had not had a discharge medical examination. He said that ever since the explosion he has had ringing in his ears, loss of hearing and vertigo which he learnt to live with without running to the doctor.
20. The Tribunal notes that there is a formal discharge medical report dated 6 January 1944 (Exhibit A5), which records the applicant as “Fit Class 1”.
21. In respect of causation of Meniere’s Syndrome, Mrs Somerset put before the Tribunal a paper, presented in 1983 at a meeting of the American Laryngological Rhinological and Otological Society, where it was concluded that it is difficult to exclude the important role of acoustic trauma when considering chronological and sequential events. In so doing it was stated that:
“In no case can we be absolutely certain trauma was not coincidental because of the uncertainties of the history-taking process.”
Medical Evidence
22. Dr Wark examined the applicant on 29 June 1976 following a claim for loss of smell and hearing. Dr Wark diagnosed sensori-neural deafness and anosmia.
23. Dr R Harrington, ENT Specialist, has seen the applicant on occasions from November 1987 and he has provided a number of written medical reports (T4/18/22, Exhibits R1, R2 and R3). Dr Harrington was not called to give oral evidence.
24. In essence, Dr Harrington is of the view that the most likely cause of the applicant’s symptoms of recurrent giddiness and associated aural symptoms is Meniere’s Disease and that the development of this disease commenced early in 1997. Dr Harrington reported:
“(iii) …
I have had the opportunity of seeing Mr Somerset on occasions from November 1987. On reviewing these notes, he has had symptoms consistent with sinusitis and progressive hearing loss. I note that at the very first consultation he described mild symptoms of loss of balance which I though were too vague to be diagnostic. In 1990 he repeated this description but the character of symptoms changed in 1997. Over an extended period of time I have found his description of his symptoms to be quite consistent in that they have progressively worsened. In short the answer to your question is ‘Yes’ that he has described on most consultations since 1999 a feeling of pressure in his ears occurring at the time of giddiness which he described as severe.
(iv)Having read Dr Anning’s report I note that Dr Anning has described a typical Meniere’s attack. It is my experience that few patients with Meniere’s disease have all the classical or characteristic signs and symptoms of Meniere’s attacks. I am comfortable with my assessment that Mr Somerset describes sufficient symptoms to make this diagnosis the most appropriate to explain his symptoms.
It is for this reason that physical signs in support of the diagnosis are welcome. A positive ECOG result is one such strongly supportive clinical sign. On several occasions though this test has been inconclusive for Mr Somerset as in fact it often is. Negative or inconclusive results do not rule out the diagnosis. Alternative diagnoses that may be considered as a potential cause of Mr Somerset’s symptoms would be e.g. a version of migraine. I consider this however to be unlikely but by no means can it be ruled out exclusively.
(v)…
Finally the other determination to be made in Mr Somerset’s specific case is whether indeed Mr Somerset has the condition or not. He and I accept the possibility that he does not. On the other hand no alternative diagnosis has been proven. His condition is not sufficiently severe and the strength of the diagnosis is also not sufficient to warrant any more drastic treatments to be offered at this time most of which incur a risk of hearing loss.”
25. Dr F Anning, ENT Specialist, saw the applicant on 10 December 2002 and provided two written reports dated 13 December 2002 (Exhibit R4) and 6 May 2003 (Exhibit R5). Dr Anning also gave evidence by telephone.
26. In his written report (Exhibit R4), Dr Anning stated:
“I saw this man on 10.12.2002. He gives a history of having been blown up during an exercise at Shepparton towards the end of the second world war, where a half stick of gelignite was used. He was rendered unconscious and in fact taken to hospital but records of his hospitalisation say that he had tonsillitis.
From the moment of his exposure to this explosion, he has had roaring tinnitus in both ears, the left worse than the right. His wife states that when she first met him many years ago, his hearing was not good and it has gradually deteriorated over the years. He gets what he describes as giddy attacks. These come on with no warning whatever, are frequently associated with a headache. When he has one of these attacks, he veers to the left and he can walk when he has an attack, although he prefers to lie down in a darkened room as light upsets him. Both ears feel full at the time, he does not actually notice any change in his hearing, or change in his tinnitus. He says he has a pressure feeling in his head which is relieved by Zyrtec. Attacks may last up to two days. He says that his ‘dizziness’ is worse when he has trouble with his sinuses.
On examination, his tympanic membranes were normal, middle ears were air filled, he was Rinne positive right and left, the Weber test lateralised to the right.
I have read through all the relevant documents provided to me and I offer the following comments:
1.Menier’s [sic] disease/syndrome is characterised by fullness in one or other ear, usually associated with increasing tinnitus and a hearing loss followed by intense vertigo, lasting usually no more than six hours. After the attack, the hearing in the effected ear is diminished and gradually recovers over a couple of days. During a typical Menier’s [sic] attack, the patient is totally incapacitated. Mr Somerset’s symptom complex does not fit this picture. I therefore have grave doubts that this is actually Menier’s [sic] disease/syndrome at all. I note that electrocochleography was inconclusive.
2.I would consider that there is absolutely no connection between his period in the services and his vertiginous attacks. Certainly, his hearing loss may well have been due to a blast injury. Recent studies of Menier’s [sic] disease indicate that it is due to dysfunction of the secretion of hormone saccin in the endolymphatic sac. The cause of this is entirely unknown.
IN SUMMARY: I would consider that this man’s hearing loss would be partly attributable to noise exposure and also to ageing. I do not think that the giddiness is in fact due to Menier’s [sic] disease and I do not think it has anything due to his service in the armed forces.”
27. In cross-examination by Mrs Somerset, Dr Anning said he had probably seen the applicant for 15–20 minutes; that he had not witnessed the applicant experiencing symptoms of Meniere’s disease and that rarely did he actually witness patients displaying symptoms of Meniere’s disease during clinical consultations. However, in the face of vigorous cross-examination by Mrs Somerset, Dr Anning held firmly to his view that the applicant was not suffering from Meniere’s disease; that Meniere’s disease was not a recognised result of noise trauma (and in this respect he gave no weight to the medical paper presented by Mrs Somerset at Exhibit A1) and that informed medical opinion is that the cause of Meniere’s disease is unknown.
28. Dr P Grant, Senior Member Officer Compensation, on review of the documentary evidence in this case, opined (Exhibit A2 and R7) as follows:
“2. …The only risk factor listed in the reasonable satisfaction Statement of Principles is inability to obtain appropriate clinical management. This requires clinical onset to have been before or during eligible service.
…
4. I am unable to find any references to tinnitus, hearing loss, or vertigo in the service medical records including the final medical board of 6 January 1944. In my opinion, the postulate that either hearing loss or tinnitus during eligible service were the first manifestation of Meniere’s disease lacks credibility – in any case, the absence of any clinical notes to indicate that treatment was sought during eligible service makes it difficult to construct a case for inability to obtain appropriate clinical management, in my opinion. …” [Exhibit A2]
And:
“4. The Statement of Principles includes a list of included and excluded conditions. For a claim to succeed, the condition needs to have been present during eligible service and that there was treatment available at the time that would have altered the prognosis if the applicant had been diagnosed and referred at the appropriate time. Review of the service medical records fails to reveal a diagnosis of Meniere’s disease or symptoms as described above.
5. Trauma such as from an exploding device as described by Mr Somerset is not a risk factor for this condition. I will not comment on the suggestion by the applicant’s counsel that an appeal be made to the Repatriation Medical Authority to reconsider the Statement of Principles.
6. Even if it were to be accepted that Mr Somerset had Meniere’s disease during eligible service, I am unaware of any treatment available in Australia during War World 2 [sic] that is likely to have altered the progress of the condition…” [Exhibit R7]
Respondent’s Submissions
29. The respondent contends the claimed condition may be answered by either the diagnosis of Meniere’s disease proposed by Dr Harrington or vertiginous attacks proposed by Dr Anning.
30. The respondent submitted that if Meniere’s disease is accepted then the medical evidence before the Tribunal supports the view that the onset of this disease post-dates his eligible service and, as such, the applicant does not meet factor 4 of the relevant SoP (as set out above in paragraph 8) and therefore there is no connection to service.
31. It was further submitted:
“22.If the Tribunal accepts an onset of meniere’s on service the Tribunal would need to be reasonably satisfied the applicant had an inability to obtain appropriate clinical management. The medical records disclose no reference to treatment for tinnitus, the applicant was discharged with a medical classification as fit class 1. Accordingly, it could not be said that the applicant did not receive appropriate clinical management arising out of his service.
23.If the Tribunal accepts the diagnosis of vertiginous attacks preferred by Dr Anning the Tribunal would be guided by the further opinion of Dr Anning discounting such a connection.
…
26.It is open to the Tribunal to find that on a diagnosis of meniere’s disease that an inability to obtain appropriate clinical management is not raised. Alternately, should a diagnosis of vertiginous attacks be preferred that a connection to service is not supported by the medical opinion. The applicant cannot relate the claimed condition to eligible service. The decision should be affirmed. …”
32. Mr Williams referred the Tribunal to the decision in Re O’Brien and Repatriation Commission [2003] AATA 525. The Deputy President of the Tribunal at paragraph 7 states the steps when considering the factor for Meniere’s disease as follows:
“…The factor that must as a minimum exist in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Meniere’s disease or death from Meniere’s disease is inability to obtain appropriate clinical management for Meniere’s disease.
This means that three conditions all have to be met before pension and medical expenses would be payable to the Applicant for Meniere’s Disease, pursuant to the VE Act.
(a) The condition must have existed during service, and
(b)The Applicant, during service, must have been unable to obtain appropriate clinical management of the condition because of his service, and
(c)The lack of appropriate clinical management must have made the condition worse than it otherwise would have been.”
33. Mr Williams also submitted that:
“24.In Repatriation Commission v Wellington (1999) 57 ALD 507, the Federal Court determined that the issue of clinical management must be judged on clinical treatment available at the time of the condition or injury and not on recent clinical management practices or standards.
25.In Repatriation Commission v Wedekind [2000] FCA 649 the Court at paragraph 12 summarised the approach the Tribunal was to take in assessing whether Mr Wedekind was unable to obtain appropriate clinical management for his pterygium:
‘12. …before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind’s particular service’.”
Consideration
34. The first and crucial question before the Tribunal is whether the applicant suffered from Meniere’s disease during his service.
35. The Tribunal accepts that the applicant suffered a noise trauma during his service in mid-1943 at Shepparton when a half stick of gelignite, being used as a simulated enemy attack, exploded near him. However, the Tribunal is satisfied that the weight of the medical evidence before it supports the view that a noise trauma, such as that experienced by the applicant during his training in Shepparton, is not a recognised factor giving rise to causal connection between such a trauma and the development of Meniere’s disease. The Tribunal therefore is satisfied that even if the applicant did suffer from Meniere’s disease during his service it was not caused by the gelignite explosion.
36. Turning then to the question of whether the applicant did suffer from Meniere’s disease during his service.
37. There is no medical evidence to support the applicant’s contention that he suffered from Meniere’s disease during his service. His service records do not record any relevant symptoms during service and the doctors who have formed the view that he now suffers from Meniere’s disease all put the onset of such a disease well into the post-war period. Mrs Somerset’s evidence, at best, supports a post-war onset, it being her evidence that the first attack he had of symptoms which might give rise to a diagnosis of Meniere’s disease was in early 1947.
38. After careful consideration of all of the material before it and the submissions of both parties, the Tribunal is satisfied that the applicant did not suffer from Meniere’s disease during his relevant war service and so finds. That being so, the Tribunal is satisfied that the applicant does not meet Factor 4 of the relevant SoP and therefore the applicant’s claim must fail.
39. For the sake of completeness, the Tribunal is of the view that it is appropriate to further consider the applicant’s claimed symptoms with a view to determining the applicant’s medical condition, if any, in respect of such symptoms.
40. The Tribunal has carefully considered all of the material before it, including all of the medical reports and opinions, and the submissions of both parties. While the specialist opinion of Dr Harrington, who has seen the applicant on a number of occasions, cannot be lightly discounted, the Tribunal prefers the written and oral opinions of Dr Anning that the applicant suffers from vertiginous attacks that are not related to his relevant service, and the Tribunal so finds.
41. It follows from the findings and reasons given above that the decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 14 September 2004 (Toowoomba)
Date of Decision 15 October 2004
For the Applicant Mrs J Somerset
For the Respondent Mr B Williams, Departmental Advocate
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