Taylor and Repatriation Commission - [2000] AATA 952

DECISION AND REASONS FOR DECISION [2000] AATA 952

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/574

VETERANS' APPEALS DIVISION     )
           Re      IAN TAYLOR
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J.D. Campbell (Member)

Date1 November 2000
PlaceSydney

Decision The Tribunal sets aside the decision under review and in substitution thereof finds that: (a) the conditions of prostatitis and lumbar spondylosis are war-caused disabilities; and (b) the date of effect for entitlement arising from this decision is 5 June 1995; and (c) the newly accepted conditions are remitted to the Respondent for assessment.

[Sgd]: Dr JD Campbell
Member
CATCHWORDS
Veterans' Affairs – Claim for disabilities – prostatitis – irritable bowel syndrome – lumbar spondylosis – absence of statement of principles for prostatitis

Veterans' Entitlements Act 1986, ss 120, 120A, 120B

Repatriation Commission v Deledio [1998] 391 FCA
Johnston v The Commonwealth (1982) 150 CLR 331

REASONS FOR DECISION

Dr J.D. Campbell (Member)

Mr Ian Taylor ("the Applicant") in this matter seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 19 April 1996, (which was varied by the decision of the Veteran's Review Board on 1 April 1998) which:
(a)      rejected the Applicant's claim for acceptance of prostatitis, irritable bowel syndrome, total replacement of the left hip, lumbar spondylosis, cervical spondylosis, refractive error and presbyopia; and
(b)      rejected the claim for post-traumatic stress disorder, as the diagnosis of the condition could not be confirmed; and
(c)      granted pension at 10 per cent of the general rate with effect from 5 June 1995 (varied by Veteran's Review Board decision of 1 April 1998 to 30 per cent of the general rate).

A hearing was held before the Tribunal on 6 June 2000 at which the Applicant was represented by Mr Osborne of Counsel and the Respondent was represented by Mr Wright, an advocate from the Repatriation Commission. The Applicant, Dr Miller and Professor Sambrook gave oral evidence to the Tribunal.

The following material was placed in evidence before the Tribunal:
Description Exhibit No.
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 T1-T38, p1-187
Medical Report of Dr Miller dated 10 November 1998 Exhibit A1

Australian Army Medical report re Applicant dated 19 July 1978 Exhibit A2

Replacement page for page 25 of "T" documents Exhibit A3

Applicant's Statement of Facts and Contentions dated 6 August 1999 Exhibit A4

Medical Report of Professor Sambrook dated 12 November 1999 Exhibit R1

Instrument No 358/1995 together with explanatory note Exhibit R2

Instrument No. 93/1996 Exhibit R3
Respondent's Statement of Facts and Contentions dated 5 June 2000 Exhibit R4

Issues:

The relevant issues before the Tribunal are:
(a)      whether the conditions of prostatitis, irritable bowel syndrome and lumbar spondylosis meet the relevant statement of principles nominated, where they exist; and
(b)      whether such conditions are war caused; and
(c)       whether the rate of pension has been correctly assessed.
Legislation:
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") in particular ss 120, 120A, 120B, and Statement of Principles Instrument No. 358 of 1995, and Instrument No. 103 of 1996.
Agreed matters between the parties:
The date of effect, if the Applicant is successful, is 5 June 1995 for entitlement and 5 September 1995 for assessment.
Standard of Proof:
The standard of proof for the periods of operational service, namely 20 September 1959 to 12 November 1961 and 1 May 1967 to 5 March 1968 is that of reasonable hypothesis pursuant to s 120(1) and s 120(3) and s 120A of the Act.
The standard of proof for the period of eligible defence service between 7 December 1972 and 15 September 1978 is that of reasonable satisfaction pursuant to s 120(4) and s 120 B of the Act.
The standard of proof for the issue of assessment of pension is that of reasonable satisfaction pursuant to s 120(4) of the Act.
Concession:
At the commencement of the hearing the Respondent conceded that the condition of prostatitis was war-caused and the Tribunal so finds.
The only two issues in contention between the parties at the hearing were the conditions of irritable bowel syndrome and lumbar spondylosis.
Applicant's Evidence:
The Applicant told the Tribunal that he was born on 27 June 1938, and left school at age 15, having completed his second year of high school. After leaving school he was employed as an assistant projectionist for two years, and then in a machine shop. In 1957/58 the Applicant stated he was called up for national service, after which he joined the regular army, serving initially in the corps of artillery in a field regiment equipped with 25 pounders and 4.2 inch mortars. In June 1959, the Applicant saw service in Malaya, serving initially at Butterworth for 12 months, followed by 12 months at Malacca in support of the British 26 infanty regiment. The Applicant stated he was the smallest fellow in the unit, was never worried by his duties and had no difficulties during his period of service in Malaya, before returning to Australia in November 1961.
In mainland Australia his duties as a gun number remained unchanged. In 1963, while on exercise at Tin Can Bay, a truck departing with other trucks before first light, stopped with its front wheel resting on the Applicant's chest and abdomen, while he was sleeping in his poncho. The Applicant stated that he was taken to Gympie Hospital, where he remained for one week, before further evacuation to 1 Camp Hospital at Yeronga, where after a period of rehabilitation he was returned to his unit on light duties for 12 months as the hygiene bombardier. He stated that he found that during this period he had no strength in his back; that he had trouble with heavy lifting and with annual battle efficiency tests.
After a period of 12 months on light duties, during which the unit personnel covered for him by undertaking the heavier tasks (changing wheels on the gun carriage), he continued to experience low back pain and on one occasion difficulty with his hip, for which he received analgesic medication. The problems with his back only arose when he was undertaking heavy work, which was every few months. At this time he was experiencing an occasional bout of diarrhoea, which lasted a couple of days and for which he sought treatment on some occasions.
The Applicant stated that his unit, and in particular his 106 Fd Battery was re-equipped with 105mm howitzers, which were pulled apart and cleaned each week with the barrel weighing 106 kilograms. In 1966 the Applicant commenced service in South Vietnam with his battery in a day time camp role as hygiene bombardier and at night time and on operations, what was for seven months, as a gunner, manning and loading the howitzers. On occasions he had to assist in breaking them down and moving them piece by piece to higher ground.
During this period of field activity, the Applicant stated that on two occasions, namely when moving ammunition and when shifting the guns to higher ground, his back caused him considerable pain and distress. On the first occasion he suffered a severe knife-like pain in his lower back and his back stiffened. He was unable to bend and undertook his tasks by squatting, although his left leg felt weakened. He found that he had difficulties walking and would walk about with a roll. The difficulties lasted for about two weeks. On the second occasion when the fire support base was being overrun, while throwing boxes of ammunition onto a truck he again suffered pain and stiffness in his lower back which again caused a change in his gait and the symptoms lasted for about a week. In comment the Applicant stated that his back was "alright", as long as he was careful.
During his service in Vietnam, the Applicant stated that he suffered from alternating diarrhoea and constipation about twice a month, with the acute attacks of diarrhoea lasting some two to four days. He stated that he did not experience undue abdominal pain with these attacks, nor was there any evidence of blood in the diarrhoeal stools.
After returning from Vietnam the Applicant was posted to Anti-Aircraft Battery at Woodside for two years, where his duties were less strenuous, but he continued to experience troubles when lifting weights. The Applicant then served in Malaysia for 12 months, before he transferred to service corps where he served as a field canteen operator for 12 months and three years at Canungia, prior to a further transfer to transport where he served at a petrol station for a few months prior to his discharge in 1978. During his later years of service the Applicant continued to experience back pain and stiffness if he overdid things and his episodes of diarrhoea and constipation were less frequent and less severe, and occurring about six to seven months apart (previously every three months) and lasting two to three days instead of a week.
After leaving the service the Applicant had a break for about ten years, after which he worked in a woollen mill for ten years, using a fork lift to move bales of wool. This activity caused difficulties for him, as the machinery movement jarred his back. The Applicant stated that towards the end of his working career he was the supervisor and leading hand, but he experienced difficulty in climbing stairs. He stated he was granted an invalid pension for his hip and his back.
It was the Applicant's impression that he had trouble with his back before he went to Vietnam and that it got worse as a result of his service. In relation to his diarrhoea and constipation condition, the Applicant was unaware as to whether or not his service in Vietnam made the condition worse. He stated that he takes no medication for his diarrhoea.
In relation to the issue of assessment of his prostatitis, the Tribunal notes that the Applicant continues to experience a burning sensation on micturition, that he has to void three times a night and does not have a good stream, and that his nocturnal awakenings make his sleepy during the day.
In response to questions in cross examination, the Applicant acknowledged the variation in history of his prostatic condition between what he related to the Tribunal and what he had told Dr Miller (settled after treatment by Dr Fairbrother in November 1995). A similar observation was acknowledged by the Applicant in relation to his irritable bowel syndrome and in what he had related to Dr Maclean in November 1995 (a recurrent problem): at his discharge medical examination on 31 July 1978 (no mention): at his admission to hospital in 1972 (no mention) and the history detailed by Dr Dowsett in December 1995 (a six year history of change in bowel habits).
Similarly the Applicant acknowledged that in relation to his back there was no mention of difficulties associated with his Vietnam service in either the referring doctor's note of April 1978 and the specialist report of May 1978 (P15); the consultation with an orthopaedic surgeon, Dr Walker in November 1995 (p82/83); in his consultation with Dr Dowsett, a consultant physician in December 1995 (p95), at the Veteran Review Board hearing in April 1998 (T25); in the consultation with Dr Miller, a consultant physician in November 1988; or in his consultation with Professor Sambrook (no specific incidents while serving on the howitzer gun that were associated with a service injury or pain to the back) in November 1999 (Exhibit R1). In comment on these observations the Applicant stated that at various times he was answering the doctor's specific questions. In further comments he stated that in the eight to ten years after he left the army, for the first three years he was involved with 40 bee hives, but he found the boxes of honey too heavy, and for the next seven years lived in a house which he had bought with some of his pension while at the same time drinking a reasonable amount.
Finally in cross examination, the Applicant stated that the major problems in Vietnam were associated with his back, and the feeling that his left leg wanted to "give away"; that extra work caused pain and he thought his problems may be associated with his left hip.
Medical Evidence:
In the Applicant's documented medical records the following matters are raised:
(a)      in his final medical board examination of July 1978, there is specific mention of the truck incident in 1963, and gonorrhoea in 1960 (T3, p13);
(b)      in an x-ray of his lumbo sacral spine of 6 April 1978, it is reported that there is part sacralization of L5 and minor degenerative disc changes are present in the lower thoracic and upper lumbar spine (T3, p14);
(c)       in a specialist orthopaedic review on 8 May 1978 the Applicant complained of morning stiffness, pain in back with heavy lifting and pain with sit-ups, all with increasing frequency. A diagnosis of post traumatic strain was made (T3, p15);
(d)      episodes of abdominal pain with diarrhoea since run over by a truck some six years ago, which last from 48 hours to a week (F Med 6 of 1 February 1973) T3, p22. Similar history detailed at T3, p25, where Applicant complains of episodic diarrhoea two to three times a year lasting two to four days in December 1972;
(e)      T3, p39-43 details the Applicant's hospitalisation following the truck incident in October 1963;
(f)       a history of intermittent dysuria For 12 months, investigation and diagnosis of prostatitis treated with antibiotics (Dr Fairbrother, a consultant urologist at T11, T14, T15 in November 1995).
(g)      a diagnosis of mild degenerative lumbar spondylosis, with no history of trauma – age related (Dr Walker November 1995 – T13); and
(h)       a review of the Applicant's irritable bowel syndrome in which Dr Dowsett, a consultant physician, describes a six year history of change in bowel habit and a confirmation of diagnosis of irritable bowel syndrome is stated in the report of 13 December 1995 (T17, p95).

In his report of 10 November 1998, Dr Miller makes the following observations:
(1)Irritable Bowel Syndrome:
"I think it is likely that Mr Taylor suffered an irritable bowel syndrome after the emotional trauma of being run over by the truck in the period outside his eligible service. He gives a definite history of having had several bouts of dysentery whilst in Vietnam. At least two of these lasted more than four days and since then he had noted that his recurrent diarrhoea was more pronounced. In my opinion, therefore, he satisfies the Statement of Principles for irritable bowel syndrome, factor 5(3) of instrument number 103 of 1996 and there is a reasonable hypothesis that his irritable bowel syndrome relates to war service"
(2)Lumbar spondylosis:
"A careful review of the documentation reveals that Mr Taylor did suffer an injury with bruising to the T12 area when he was run over by the truck. Fortunately the tent was situated on soft ground and this must have prevented further damage. The condition certainly deteriorated during his service in Vietnam, his symptoms were so bad that he had to ask to be relieved of his duties on the heavy field gun but even lighter duties on the 40mm Bofors anti-aircraft gun were too much and eventually he has to ask to be transferred to light duties with catering and ended his service as a bowser attendant. There is documentary evidence that his backache had persisted throughout his service until 1978 and I consider that he satisfies factor 5(k) of the Statement of Principles for lumbar spondylosis, instrument number 165 of 1996 in that he suffered a trauma to the lumbar spine before the clinical worsening of his lumbar spondylosis whilst on active service. In my opinion, therefore, there is reasonable hypothesis that his service in Vietnam aggravated a pre-existing condition."

(j) In oral evidence to the Tribunal, Dr Miller confirmed his earlier opinion in relation to both the irritable bowel syndrome, which he believed commenced after the truck accident in 1963, with episodes of violent diarrhoea in Vietnam and fluctuation in symptomatology ever since. Dr Miller stated that the syndrome appears to occur in individuals with a genetic predisposition and symptomatology is often accelerated with a stressor and an emotional disturbance. In relation to the back condition, Dr Miller confirmed his view that the incident which created the problem was the truck accident in 1963, with service in Vietnam aggravating the condition.
(h) In his report of 12 November 1999, Professor Sambrook, a consultant rheumatologist, made the following observations in relation to the Applicant's back condition and his periods of service:

"The episode described by Mr Taylor in 1963 when he was run over by a truck appears to meet the definition for trauma, being a discrete injury causing acute symptoms and signs of pain and tenderness, although whether there was actual injury to the lumbar spine is unclear. However this was not operational or eligible service. Nevertheless he suffered backache following this episode and it is reasonable to date his onset of lumbar spondylosis from this period, so the issue of aggravation during the South Vietnamese Service period becomes relevant.
I have reviewed the Statement of Principles for lumbar spondylosis and in regard to his operational service in South Vietnam is would appear the relevant factors to consider are 5(s) with respect to trauma before the clinical worsening of lumbar spondylosis or 5(p) in regard to malalignment. Although the activity undertaken by Mr Taylor in South Vietnam was obviously heavy physical activity it was not a sufficient duration to satisfy factor 5 (u). Sacralisation of the L5 vertebral body should be regarded as a form of malalignment as it is a form of joint dysplasia. There did appear to be a definite worsening of his symptoms during his service period in Vietnam causing him to change from working on the Howitzers to lighter activities on return, so both 5(s) and 5(p) appear to be satisfied.
In regard to his period of eligible service, Mr Taylor told me that his main reason from changing from the lighter anti-aircraft guns to canteens and transport corps was his concern to avoid being sent overseas again, rather than a major increase in his pain. In this instance there does not appear to be any significant aggravation by his eligible service period."

(l) Professor Sambrook in oral evidence to the Tribunal confirmed his opinion in relation to the diagnosis of the Applicant's back condition, the history of trauma nd the relationship to service.
Applicant's submissions:

Counsel for the Applicant submitted that both conditions of irritable bowel syndrome and lumbar spondylosis existed prior to service in Vietnam, but both conditions were aggravated by his service in Vietnam, pointing to the increase in symptomatology of both conditions, the occurrence of severe attacks of diarrhoea and the tasks and duties experienced by the Applicant as a gun number on the 105mm howitzers.
In so stating, Counsel submits that the Applicant satisfies Factor 5(e) of Instrument No. 3 of 1996 in respect of irritable bowel syndrome and similarly Factor 1(d) and 1(j) of Instrument No 358 of 1995 in relation to lumbar spondylosis.
Respondent's submissions:
The Respondent submitted that both conditions existed prior to the period of Vietnam service and eligible service, with both the irritable bowel syndrome and the lumbar spondylosis arising from the truck incident of 1963. The Respondent further submits that neither condition can be shown to have been aggravated by operational or eligible service, and is so stating relies upon the evidence of the Applicant up to the time of this hearing, in what has been recorded by doctors and other Tribunals as being the history of the two conditions, as recounted to them by the Applicant.
Consideration and Findings:

In comment the Tribunal does note the absence of a particular history of significant events described by the Applicant to the Tribunal in relation to the significant episodes of diarrhoea that occurred and the two incidents described variously as moving the howitzer to higher ground and "the ammunition incident". Despite the absence of such incidents being recorded in his final medical board, various medical consultant reports and by the Veterans Review Board, the Tribunal concludes, in the absence of any evidence other than by way of inference, that the Applicant has presented his evidence to the Tribunal to the best of his abilities. In so stating, the Tribunal has noted in relation to the issue of the irritable bowel syndrome that the Applicant has had recorded a history of symptomatology for the past six years since being run over by a truck in a report of 1 February 1973 (T3, p22), and a history of a six year change in bowel habit as described by Dr Dowsett in December 1995 (T17, p95). The Tribunal in considering such evidence turns to an overview of the medical evidence and concludes that the Applicant has had abdominal symptomatology consistent with irritable bowel syndrome from a period in time shortly after the truck incident of 1963. Similarly in considering the lower back pain issue, the Tribunal concludes that the Applicant has a diagnosis of lumbar spondylosis which arose as a result of the truck incident in 1963, and symptomatology for this condition was in evidence prior to the Applicant's operational service in Vietnam. The Tribunal also in noting that Dr Walker, an orthopaedic surgeon, recorded that there had been no trauma to the back, only to the left hip (T13), concludes that the Applicant cannot necessarily be held responsible for a consultant's record of what actually happened.
The Tribunal as a result of these considerations concludes that the Applicant has presented his history of events as best he can, and while inconsistencies in recorded fact may be demonstrated over a period of 40 years, the Tribunal finds that the Applicant had both conditions of irritable bowel syndrome and lumbar spondylosis prior to his service in Vietnam, and that both conditions again arose as a result of the truck incident in 1963. Further the Tribunal has considered the longitudinal history of both the Applicant and his activities and the symptomatology of the two conditions.
In relation to the irritable bowel syndrome, the Tribunal notes the longitudinal history of the condition in the Applicant as nominated by the variance in symptomatology, and the episodes of diarrhoea in Vietnam. The Tribunal also notes the history of this condition since the period of operational service and concludes that on the medical evidence available the Tribunal cannot conclude that the irritable bowel syndrome was made worse by the Applicant's operational service. A similar finding is made in relation to the Applicant's period of eligible service. In arriving at such a conclusion, the Tribunal also took account of the Applicant's statement that he was unaware whether or not his service in Vietnam made his irritable bowel condition worse and his further statement that he was currently not on any medication for his bowel disorder.
In considering the back condition of lumbar spondylosis, the Tribunal in noting the weight and height of the Applicant during his service, the pre-existing conditions of lumbar spondylosis and the two incidents described by the Applicant during his period of service in Vietnam and the symptomatology associated with those two incidents, together with his post Vietnam service employment in progressively lighter employment categories but with increasing symptomatology over time, concludes that his lumbar spondylosis condition was aggravated during his operational service in Vietnam. The Tribunal, in making such a decision, accepted the opinion of Professor Sambrook.
The Tribunal in considering the issue of aggravation, noted the judgement of the High Court in Johnston v The Commonwealth (1982) 150 CLR 331 where it was considered that aggravation means that an existing disease has been made worse, and that such an aggravation may arise from an external stimuli or from a neglect in treatment.
In finalising considerations of each of these conditions the Tribunal has already concluded that the Applicant had a pre-existing condition of irritable bowel syndrome prior to his operational service in Vietnam. Dr Miller has postulated the hypothesis of a pre-existing condition, episodes of severe diarrhoea in Vietnam and since then episodes of diarrhoea more pronounced, and thus the Applicant satisfies factor 5(c) of Statement of Principles Instrument No 103 of 1996. The Tribunal, however, has already concluded that there is no evidence to support a clinical worsening of the condition, and indeed there is much evidence to suggest an amelioration of the condition in terms of both increasing periods of time between episodes and severity of symptoms, and indeed periods of time when there would appear to be an absence of symptomatology as evidenced by the report of Dr Dowsett and the evidence of the Applicant.
As a consequence of these considerations the Tribunal finds that factor 5(e) of Instrument No 103 of 1996 is not satisfied and as a consequence a reasonable hypothesis is not found to exist in relation to either material contribution or aggravation of a pre-existing condition of irritable bowel syndrome. Further the evidence as outlined further permits the Tribunal to conclude that the Applicant's period of eligible service did not materially contribute to or aggravate the pre-existing condition of irritable bowel syndrome.
In considering the issue of the pre-existing condition of lumbar spondylosis, the Tribunal has already concluded that the condition was aggravated by the Applicant's period of operational service in Vietnam. In so finding the Tribunal acknowledged that the Applicant suffered a trauma to his lumbar spine in 1963 that led to the condition of the lumbar spondylosis and concluded that the two incidents, namely the moving the howitzers to higher ground and the ammunition episode at his support base Corral, satisfied the definitional elements of trauma to the lumbar spine in that they produced definitive symptomatology for a period of at least a week on each occasion and further that the subsequent longitudinal history of the Applicant demonstrates a clinical worsening of his condition as defined both by his employment and his symptomatology. In summary, the Tribunal finds that the Applicant satisfies factor 1(j) of the amended Statement of Principles, Instrument no 358 of 1995 and accordingly finds that a reasonable hypothesis is established in relation to the Applicant's condition of lumbar spondylosis.
In further addressing this matter of lumbar spondylosis, the Tribunal, having considered all the evidence, finds that there is no sufficient evidence which would allow the Tribunal to find that the facts which constitute the hypothesis could be disproved beyond reasonable doubt or that other facts which are inconsistent with the facts of the hypothesis are proved to exist beyond reasonable doubt, thus disproving beyond reasonable doubt the facts upon which the hypothesis was based.
In summary, the Tribunal finds that both the conditions of prostatitis and lumbar spondylosis are war caused disabilities and the condition of irritable bowel syndrome is not war caused. The two war caused disabilities are remitted for assessment.
Determination:
The Tribunal sets aside the decision under review and in substitution thereof finds that:
(a)The conditions of prostatitis and lumbar spondylosis are war-caused disabilities; and
(b)The date of effect for entitlement arising from this decision is 5 June 1995; and
(c)The newly accepted conditions are remitted to the Respondent for assessment.

I certify that the thirty-nine (39) preceding paragraphs are a true copy of the reasons for the decision herein of Dr JD Campbell, Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing   6 June 2000
Date of Decision   1 November 2000
Counsel for the Applicant         Mr Osborne
Advocate for the Respondent Mr Wright