Swinden and Repatriation Commission - [2002] AATA 1176

DECISION AND REASONS FOR DECISION [2002] AATA 1176

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1282
VETERANS       APPEALS      DIVISION
  Re:         LEONARD BUTTELL SWINDEN
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             15 November 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS – entitlement – diverticular disease of the colon – whether reasonable hypothesis – clinical worsening
Veterans' Entitlements Act 1986 ss120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Wellington (1999) 57 ALD 507
Repatriation Commission v Swinden [2001] FCA 1147
Repatriation Commission v Yates (1995) 57 FCR 241
Re A'Bell and Repatriation Commission (1999) 58 ALD 721
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

15 November 2002 M.J. Carstairs, Member

This is an application by Leonard Buttell Swinden (the applicant) (on remittal from the Federal Court of Australia) for review of a decision of the Veterans' Review Board (the VRB) dated 20 April 1998. The VRB affirmed a decision of the Repatriation Commission (the respondent) dated 14 August 1996 that the applicant's diverticular disease of the colon was not war-caused. The Tribunal made a decision on 12 October 1999, setting aside the decision and substituting the decision that diverticular disease of the colon was war-caused with effect from 17 February 1996. The respondent appealed that decision to the Federal Court. On 20 August 2001 the Federal Court set aside the Tribunal's decision and remitted the matter to the Tribunal to be heard and determined according to law.
At the hearing, conducted on 7 May and 14 June 2002, Mr J. Horan, clerk, instructed by De Marchi & Associates, represented the applicant. Ms A. McMahon of counsel, instructed by the Australian Government Solicitor, represented the respondent.
The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975, as well as the exhibits marked A1 and R1-R2 in the first hearing (V1998/984). The following exhibits were tendered (V2001/1282):
Exhibit A1 — Medical Report dated 22 March 2002, Dr R. Marshall
Exhibit A2 — Medical Report Dr Marshall, dated 26 March 2002
Exhibit A3 — extract, D. Goodhart, The History the 2/7 Australian Field Regiment.
Exhibit R1 — Service Medical Records.
Exhibit R2 — Transcript of Tribunal hearing dated 2 September 1999
The Tribunal also had the Statements of Facts and Contentions lodged by the applicant and respondent on 24 April 2002 and 6 May 2002 respectively.
BACKGROUND
The applicant was born on 16 July 1924. He served in the Australian Army (the army) from 31 July 1942 to 30 July 1946. He had operational service, having served in Moratai and Tarakan, in what is now Indonesia. He enlisted at the age of eighteen. Prior to enlistment he had lived at home with his parents. He embarked with the 9th Division at Townsville on 8 April1945 and disembarked at Moratai on 16 April 1945. He was admitted to 110 Casualty Clearing Station on 5 September 1945 for medical investigations and discharged to the 2/11 Field Ambulance on 9 September 1945.
After the war the applicant worked as a clothing salesman and entered hospital administration, ultimately becoming the Chief Administrator at The Royal Melbourne Hospital and retiring in 1984.
The applicant was diagnosed with diverticular disease of the colon in 1987 when he suffered a bout of diverticulitis. Diverticulitis is an inflammatory condition of diverticula, or pouch-like protrusions, in the wall of the intestine. The process by which these pouch-like protrusions are formed is called diverticulosis. On 17 May 1996 the applicant made a claim to have diverticulitis accepted as due to war service. When the VRB affirmed the decision of the respondent rejecting the claim, the applicant sought review with this Tribunal on 28 August 1998.
EVIDENCE
The applicant's evidence to the previous Tribunal and at the second hearing was that, prior to army life, his diet had consisted of very little fruit, plenty of white bread, suet puddings and dumplings. He said that during the Depression people did not eat very well. He ate mutton, stews and rice and bread-and-butter puddings and the occasional roast (exhibit R2, V2001/1282, p15). His staple breakfast was "Weeties" cereal.
On service, the applicant said that he had stews, occasionally roast lamb or mutton, custards and stewed apples. In the earlier part of his service at Puckapunyal he said he had wheat cereal or porridge for breakfast. They were also served reconstituted eggs and liver. He said that during his period of service in Borneo the troops were fed hard tack, or M and V, which was dried food, which had to be reconstituted with water. His evidence on this was supported by an extract from D. Goodhart's The History of the 2/7 Australian Field Regiment (Adelaide: Rigby 1952) (exhibit A3, V2001/1282), which stated:
At Morotai, too, we faced for the first time in two to three years the prospect of enduring meal after meal of hard rations, extending probably into the many months ahead. (p283)
The applicant said that during this period of his service he ate a lot of toasted white bread, as he did not like the reconstituted food. He said that in Borneo they had no fresh fruit and vegetables, though after the landing was effected, the variety of rations expanded. He said that after the war he returned to a diet similar to his pre-war diet, and consumed more fruit and vegetables than he did while in the army.
The applicant recalled being hospitalised on service in Tarakan. He said that he had pain and diarrhoea for two weeks, and that these are his usual symptoms with his bowel condition. Under cross-examination, about his hospitalisation, he said that he remembered a loss of weight, and that he loses weight when he has diarrhoea. When it was put to him that the clinical notes from the hospitalisation recorded his bowel movements as regular, he said that he could not provide an answer why that would be so. However, he agreed that he was discharged from hospital with No Apparent Disability.
The applicant said that since army service he has had diarrhoea on a continuous basis. His said his first serious attack of diverticular disease, however, was in 1987. He said that it was after the first severe attack that he became aware of the need for a high fibre diet. He also had suffered intermittent gastric problems, and had a bowel obstruction in reaction to heart medication prescribed to him in the 1970s.
In a written report dated 8 April 1999 (exhibit R1, V98/984), Dr H.S. Hillman, gastroenterologist and consultant physician, stated that diverticulosis of the colon is most commonly attributed to the absence of adequate fibre in the diet. Dr Hillman diagnosed diverticulosis probably associated with episodes of diverticulitis. He dated the onset of symptoms to 1987. The condition was diagnosed by barium enema, which showed the presence of diverticulosis, later confirmed by colonoscopy in 1993.
Dr Hillman said that between 1987 and 1993 the applicant had bouts of pain, diagnosed as diverticulitis. Dr Hillman said that the condition is most commonly seen in middle aged and older patients. However, Dr Hillman said it was impossible to tell when the diverticula may have first appeared, as often the condition is asymptomatic for very long period of time and may never become symptomatic.
Dr Hillman said that the fibre content of the army diet would be difficult to assess. However, while he acknowledged that the applicant's diet could well have been lacking in fibre, he questioned the forty-one year interval between the army service and the development of symptoms, saying it would be an extremely long delay for a dietary factor to have a role in causation.
Dr Hillman's written report noted that in September 1945 the applicant was admitted to hospital with abdominal pain and diarrhoea (exhibit R1 V1998/984) and that the applicant told him that thereafter he had a tendency to attacks of diarrhoea. In oral evidence at the second hearing Dr Hillman was taken to the clinical notes of the hospital admission in September 1945 (exhibit R1 V2001/1282), and agreed that no particular gastrointestinal problem was mentioned in them. He said that the symptoms of malaise and lassitude with loss of approximately one-and-a-half stone in weight, enlarged glands, and the reference appetite not good. Bowels regular, referred to in those notes suggested a non-specific viral infection without bowel disturbance. Dr Hillman said that the diagnosis of gastritis, recorded in clinical notes for 11 July 1946, was a non-specific diagnosis suggesting nausea and weight loss, whereas had the diagnosis been of gastroenteritis, a diarrhoeal element would be implied.
In oral evidence Dr Hillman said there was no evidence that the applicant had diverticulitis before the end of his service and it would be an unusual condition in someone at the age of twenty-one. He said there is no way of knowing when the condition commences. Dr Hillman said that, having an attack of diverticulitis after developing diverticulosis, would indicate clinical worsening of the condition as it implies that something is getting worse, which he said would involve developing a complication in a pre-existing but asymptomatic condition of diverticulosis. Dr Hillman said that to become worse would mean that one of the complications such as diverticulitis had developed. Otherwise he said a person could have diverticulosis for life without symptoms. Dr Hillman said that diverticulitis is a clinical manifestation of the presence of diverticulosis. He said that the applicant's complaints of diarrhoea after service were more suggestive of irritable bowel syndrome. He said that no history of constipation was reported to him.
Under cross-examination, Dr Hillman said that the period on a low fibre diet would need to be longer than that in the applicant's case to produce diverticulosis. He said that diverticulosis does not arise from a few months or even a couple of years of low fibre diet.
In a written report dated 3 December 1998 (exhibit A1 V1998/984) Dr R. Marshall, gastroenterologist, stated that the applicant was suffering from diverticular disease of the colon, likely to be related to a low fibre diet during service.
In oral evidence at the first hearing in 1999, Dr Marshall said that the applicant changed to a diet lower in fibre in the course of his overseas service. He said that diverticular disease of the colon is a chronic condition, which starts quite early in life. He agreed with Dr Hillman that the onset of symptoms of diverticulosis was in 1987. At the first hearing Dr Marshall said that many servicemen who had a low residue diet did not develop diverticular disease and that in the applicant's case it was equally possible that his diverticular disease was due to the bowel obstruction that he suffered in the 1970s as a reaction to heart medication.
In oral evidence at the second hearing, Dr Marshall said that in his clinical experience he had not seen diverticulitis in a person under thirty and that is a disease of fifty-year-olds. Though probably on a fibre deficient diet before service, Dr Marshall said that in Borneo the applicant's diet contained no fibre at all. He said it was likely that the applicant developed diverticular disease of the colon at that time. Dr Marshall had accepted at the first hearing that the applicant had diarrhoea at Tarakan. While not positively affirming a causal connection, in oral evidence at the first hearing Dr Marshall left open the possibility of such a connection by saying …he does have diverticular disease now and he did have a low fibre diet then and he did have an attack of diarrhoea then.
Dr Marshall offered the view that the wording of the Statement of Principles (SoP) was unsatisfactory. At the second hearing, Dr Marshall said that the applicant probably developed diverticular disease of the colon at the time that he was on the low fibre diet. Therefore, he said, it must be service-related, as the only time that the applicant was on a chronically low fibre diet was when he was in the army. Dr Marshall also said that diverticular disease of the colon is the direct result of chronic constipation over a long period. However he said that he took no history of constipation from the applicant. He said that pre-war there was a reasonable amount of fibre in the diet, but that during the war there was almost no fibre, so a 50 per cent reduction in fibre applied. He said that if the episode of diarrhoea in 1945 had never happened, it would not alter his opinion as to the effect of low fibre in the development of diverticulosis in this case.
In a report dated 22 March 2002 (exhibit A1 V2001/1282) Dr Marshall said that the amended factor 1(b) in the SoP, Instrument Nº 87 of 1997, made it clear that the applicant's claim should succeed, if it were accepted that he did have a diet 50 per cent lower in fibre for a continuous period of at least 90 days. However, Dr Marshall pointed out that this had to be immediately before the clinical worsening of diverticular disease. He said in that report that clinical worsening means a combination of symptoms and signs found on medical examination. However he reaffirmed his view, given at the first hearing, that there was a reasonable hypothesis that the first clinical presentation (which was undiagnosed) was as the direct result of a diet low in fibre. In oral evidence he said the issue is when symptoms commenced, not when a diagnosis was finally made. In a written report dated 26 March 2002 (exhibit A2 V2001/1282) he restated that the low fibre diet was the likely cause of his diverticular disease which only became manifest clinically later in his life.
CONSIDERATION OF THE ISSUES
Section 9 of the Veterans' Entitlements Act 1986 (the Act) prescribes the circumstances in which a veteran's disease or injury shall be taken to be war-caused. In particular the applicant's matter raises the operation of s9(1)(a) (b) and (e) of the Act:
9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
There was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and 120(3) of the Act apply. The Tribunal must determine that the disease or condition was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force an SoP determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), a hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
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 a 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.
Mr Horan submitted that the evidence of Dr Hillman was that diverticulosis must exist before the development of diverticulitis. He submitted that there was no SoP for diverticulosis as a separate condition from diverticulitis. He said that, in cases where the Repatriation Medical Authority has not determined a SoP in respect of a disease, the Tribunal must determine whether a reasonable hypothesis has been raised. Mr Horan said that in the applicant's case a reasonable hypothesis arose on the basis of Dr Marshall's reports of 3 December 1998 and 22 March 2002. He submitted that both Dr Marshall and Dr Hillman expressed their views on the inadequacy of the wording of the SoP, but both reports supported the contention that a low fibre diet causes diverticulosis. He submitted that the evidence pointed to a low fibre diet on service and that as a result the applicant developed diverticulosis. Mr Horan further submitted that the occurrence of diverticulitis was to be addressed as a matter of assessment of the rate of pension payable, and not as a matter of entitlement to have the condition accepted as related to war service.
Ms McMahon submitted on this point that the SoP for diverticular disease of the colon encompasses both diverticulosis and diverticulitis, as part of one disease process.

Ms McMahon submitted, based on the respondent's written Statement of Facts and Contentions:

The Tribunal, in considering whether a hypothesis is reasonable, must apply the steps as set out in Deledio. An hypothesis will only be reasonable if pointed to by the facts. It is not sufficient that the material leaves open a hypothesis of a connection as a possibility: East v Repatriation Commission (1987) 16 FCR 517; Repatriation Commission v Bey (1997) 79 FCR 364.
The relevant SoP in this case, Instrument No 67 of 1994 as amended by Instrument No 87 of 1997 sets out the factors that must exist in a case for a hypothesis to be reasonable. Where the factor relied on, as in the applicant's case, is that of
…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…
then it is necessary that the applicant's diverticular disease of the colon was contracted prior to a period or part of a period of service to which the reduction of fibre in the applicant's diet was directly related, and the relationship between diverticular disease of the colon and the applicant's service must be a relationship set out in s9(1)(e) of the Act.
For the Tribunal to decide that the applicant's diverticular disease of the colon was war-caused it would have to be satisfied that the hypothesis raised by the material included each of the following elements
(a)that applicant's diverticular disease of the colon was contracted prior to the period of service to which the change in the applicant's diet was related: clause 3(a) of the Statement of Principles;
(b)the applicant changed to a diet lower in fibre and more than three months later there was clinical worsening of his diverticular disease of the colon: factor 1(b) of the Statement of Principles;
(c)the change that occurred to the diet was related to service: clause 2 of the Statement of Principles;
(d)the applicant's diverticular disease of the colon was contracted while he was rendering service but did not arise out of service; or was contracted before the commencement of the period or last period of service but not while he was rendering service; and was contributed to in a material degree or was aggravated by service rendered after he contracted diverticular disease of the colon: clause 3(b) and s9(1)(e) of the Act.

Ms McMahon submitted that the applicant's case raised three possible hypotheses:

The first was that while the applicant did not have diverticular disease of the colon prior to enlistment, he was on a low fibre diet for 128 days on Morotai (16 April 1945 to 5 September 1945). His hospitalisation with abdominal pain and diarrhoea in 1945 was the clinical worsening of diverticular disease of the colon. After service the applicant had recurrent diarrhoea until diverticular disease of the colon was diagnosed in 1987.
The second hypothesis concerned inability to obtain appropriate clinical management for diverticular disease of the colon.
The third, relying on Dr Marshall's evidence, was that a low fibre diet led to constipation, which increased bowel pressure and caused diverticula to develop.

Ms McMahon submitted that the hypotheses would only be reasonable if pointed to by the material and upheld by the SoP. She submitted that as to the first hypothesis, Dr Marshall was only guessing as to whether the applicant reduced his fibre by 50 per cent, and he gave his estimate in terms of the Australian public generally, whereas the SoP requires that the particular applicant reduced his fibre intake by 50 per cent. Ms McMahon further submitted that the evidence from the clinical notes was that the applicant did not have diarrhoea or other bowel symptoms in September 1945, so there was no material pointing to clinical worsening.
Ms McMahon submitted in regard to the second hypothesis that there was no evidence pointing to inability to obtain appropriate clinical management. She submitted that Repatriation Commission v Wellington (1999) 57 ALD 507 is authority for the proposition that appropriate clinical management is to be considered by reference to contemporaneous medical standards. Both Dr Marshall and Dr Hillman's evidence was that appropriate clinical management at the time was a low fibre diet.
In regard to the third hypothesis, Ms McMahon submitted that there was no history of constipation given by the applicant either in oral evidence or reported to medical practitioners. She submitted that there was no evidence pointing to the applicant having diverticular disease of the colon before he experienced a change in diet to a diet lower in dietary fibre, in the period on which the applicant relied (16 April 1945 to 5 September 1945). Nor was there evidence that the applicant had the condition in the army. She submitted that the hypothesis put forward by Dr Marshall that low fibre diet caused diverticular disease of the colon did not fit within the SoP as it did not include the elements prescribed by the SoP for a hypothesis to be reasonable. She further submitted that none of the evidence pointed to the factor being met after the hospital admission in September 1945.
The Tribunal reached its decision taking into account the written and oral evidence and submissions. The question of whether a veteran is suffering from a particular injury or disease is to be decided to the reasonable satisfaction of the decision-maker in accordance with s120(4) of the Act. Taking into account the medical evidence and that diagnosis was not disputed, the Tribunal is reasonably satisfied that the applicant has diverticular disease of the colon.
Having considered each of the steps in Deledio, the Tribunal accepts that the material points to hypotheses connecting the applicant's condition of diverticular disease of the colon with the circumstances of the particular service rendered. There are two SoPs relevant to diverticular disease of the colon: SoP Nº 67 of 1994 and the amendment to it by Instrument Nº 87 of 1997. As the applicant's claim was lodged on 17 May 1996, his case may be considered under the earlier Instrument (Nº 67 of 1994) if the claim is not successful when determined under the Instrument in force at the time of the Tribunal's decision: Repatriation Commission v Gorton (2001) 110 FCR 321.
Both SoPs define diverticular disease of the colon as the clinical consequences of a herniation or sac-like protrusion of the colonic mucosa…attracting the ICD code 562.1. The ICD code is defined in the SoP as the number assigned to a particular injury in the International Classification of Diseases 9th edition. The Annotated ICD.9.CM, 9th edition sets out the conditions at ICD code 562.1 as being: Diverticulosis of colon (without mention of haemorrhage) (ICD Code 562.10); Diverticulitis of colon (without mention of haemorrhage) (ICD Code 562.11); Diverticulosis of colon with haemorrhage (ICD Code 562.12) and Diverticulitis of colon with haemorrhage (ICD Code 562.13). The SoPs for diverticular disease of the colon refer to a range of conditions of the colon, including both diverticulosis and diverticulitis. Therefore, the Tribunal is satisfied, pursuant to the second step in Deledio, that there are SoPs in force, covering both diverticulosis and diverticulitis. Mr Horan's submission that the condition of diverticulosis and any relation to service is to be determined under s120 of the Act without reference to the SoP therefore fails.
Applying the third step in Deledio, the Tribunal is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypotheses raised must contain at least one of the factors in the SoP that the SoP requires, and that factor must be related to the applicant's service. SoP No 67 of 1994 sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon with the circumstances of service at clause 1:
(a)suffering from scleroderma before the clinical onset of diverticular disease of the colon; or
(b)changing to a diet lower in dietary fibre more than three months before the clinical worsening of diverticular disease of the colon;or
(c)inability to obtain appropriate clinical management for diverticular disease of the colon.
The SoP then provides as follows:
Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to (c) must be related to any service rendered by a person.
3. The factors set out in paragraphs 1(b) and (c) apply only where:
(a)the person's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and
(b)the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph …, 9(1)(e), … of the Act.

The amendment by Instrument Nº 87 of 1997 changed clause 1(b) to provide:

…
(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;…;

This amendment made substantial changes to the clause, by specifying a percentage reduction in fibre over a specified period of time. However the point most clearly in issue is the applicant's case, regardless of which SoP is applied, is whether the material points to a clinical worsening of diverticular disease of the colon, so that a reasonable hypothesis is raised. Apart from clause 1(a), which was not raised by the evidence or by the applicant's submissions, there is no clause in the SoP that deals with directly with causation of diverticular disease of the colon, as distinct from the worsening of a condition already in existence. As the Federal Court pointed out in Repatriation Commission v Swinden [2001] FCA 1147:
It might be thought anomalous that Mr Swinden could have contracted DDT because of a low fibre diet in the Army and not be eligible for a pension and yet qualify for a pension if he contracted it before the War and only aggravated it during the period of eligible service. Dr Marshall testified before the Tribunal that the SoP was too narrow in that regard. However, neither this court nor the Tribunal can substitute its own formulation of the appropriate elements of the relevant hypothesis for that contained in an SoP.
The concept of clinical worsening implies that the person has the condition prior to service or that the condition otherwise falls within the provisions of s9(1)(e) of the Act as being one aggravated by service: Repatriation Commission v Yates (1995) 57 FCR 241. The term clinical is defined in Taber's Cyclopaedic Medical Dictionary (17th Edition) as founded on actual observation and treatment of patients as distinguished from data or facts obtained by experimentation or pathology. In Black's Medical Dictionary (39th Edition) the term clinical signs is defined as the physical manifestation of an illness elicited by a doctor when examining a patient. The Federal Court has endorsed the view in regard to clinical onset that the term requires that a person becomes aware of some feature or symptom which enables a doctor to say that the disease was present a particular time: Repatriation Commission v Cornelius [2002] FCA 750.The Tribunal accepts, as Dr Hillman said, that it is implied that for a condition to worsen there must be a condition present, and that diverticulitis would be a worsening of the condition of diverticulosis.
In this case there is no evidence pointing to the applicant having diverticular disease prior to his service or during the course of his service. The medical evidence of both Dr Hillman and Dr Marshall is that the first diagnosis of diverticular disease of the colon was in 1987. Neither doctor gave evidence that would allow the condition to be dated accurately from an earlier time with precision. The only material pointing to the applicant having diverticular disease earlier is the inference that Dr Marshall asks be made, namely that the applicant developed diverticulitis in later life and that diverticulitis develops after diverticulosis, of which a known cause is a diet low in fibre.
However, such an inference is not provided for in the SoP. Although the SoP does not define clinical worsening, that term requires, by the inclusion of the word clinical, that observable features or symptoms of the condition are present that can worsen. There is in the applicant's case no material that enables a doctor to say when the applicant developed diverticulosis, to point to it having been worsened by a factor that could be linked to service. As Dr Hillman pointed out diverticulosis is a condition that may never be diagnosed and may remain unsymptomatic. As the definition within the SoP sets out, diverticular disease of the colon refers to the clinical consequences of a herniation or sac like protrusion of the colonic mucosa. Within clause 1(b) the requirement is that the person has changed to a diet lower in dietary fibre before the clinical worsening of a condition, which is itself defined as one that has clinical features. This means that the SoP does not allow for the worsening of a condition that has not been established clinically, or is asymptomatic.
Furthermore, clause 3 of the SoP requires that the factors in clauses 1(b) and 1(c) apply only where the diverticular disease of the colon was contracted prior to a period or part of a period of service. In Re A'Bell and Repatriation Commission (1999) 58 ALD 721 the Tribunal said that where the issue is clinical worsening an applicant must show aggravation to succeed, and the question is whether the pre-existing condition has itself been worsened (at p724). Both Dr Hillman and Dr Marshall agreed that the first symptoms of diverticulosis were diagnosed in 1987. Dr Marshall expressed the view that a low fibre diet was the cause of diverticular disease of the colon in the applicant's case, however his evidence on this was not consistent with his agreement with Dr Hillman that the first diagnosis was in 1987, nor with his statement that clinical worsening means signs and symptoms found on medical examination. Furthermore, the evidence from hospital admission notes in 1945 did not point to bowel disturbance on service. There is no clinical material that points to bowel disturbance in that episode, nor in the incident of gastritis (accepting Dr Hillman's evidence). The applicant's evidence that he had recurrent bouts of diarrhoea after service does not assist him to show clinical worsening in the relevant time required in the SoP. A hypothesis will only be reasonable if upheld by a SoP: Repatriation Commission v Hill [2002] FCAFC 192. Clinical worsening was a part of the hypothesis connecting diverticular disease of the colon with reduced fibre consumption on service as set out in clause 1(b) of the SoP. The evidence did not point to it.
For these reasons, in applying the relevant SoPs the Tribunal concluded that the hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoPs and it is deemed not to be reasonable. Consequently, the third step in Deledio is not met and the application must fail. In regard to the second hypothesis, no submissions were made by the applicant that there was inability to obtain appropriate clinical management. However, clause 1(c) of the SoP dealing with clinical management is also one that applies only for clinical worsening of the condition. For the reasons given above, no reasonable hypothesis is raised in regard to it.
The Tribunal accepts the submission by the respondent that the third possible hypothesis, relying on the evidence of Dr Marshall on causation of diverticular disease, does not fit the template, as it does not contain the elements referred to in any of the clauses of the SoP. Applying Hill, that hypothesis is not reasonable and fails to meet the third step in Deledio.
For these reasons, the Tribunal finds that the claimed condition of diverticular disease of the colon is not related to war service.
DECISION
The Tribunal affirms the decision under review.
I certify that the forty seven [47] preceding paragraphs are a true copy of the reasons for the decision herein of
M.J. Carstairs, Member
(sgd)       Catherine Thomas
              Clerk
Dates of Hearing  7 May, 14 June 2002
Date of Decision  15 November 2002
Advocate for the applicant          Mr J Horan
Solicitor for the applicant            De Marchi and Associates
Counsel for the respondent         Ms A. McMahon
Solicitor for the respondent         Ms J. Proimos, Australian Government Solicitor