Taylor and Repatriation Commission (Veterans' entitlements)

[2023] AATA 3506

Taylor and Repatriation Commission (Veterans' entitlements) [2023] AATA 3506 (31 October 2023)

Division:                  VETERANS' APPEALS DIVISION

File Number:          2022/8349

Re:David Taylor

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:31 October 2023

Place:Sydney

The reviewable decision made by the Veterans’ Review Board on 10 August 2022 is affirmed.

.................................[sgd].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for disability pension – whether applicant’s medical condition was causally related to his eligible defence service – relevant statement of principles – correct diagnosis of applicant’s knee condition – whether applicant on the balance of probabilities satisfies criteria in SoP 26 – reviewable decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles concerning acute meniscal tear of the knee (Balance of Probabilities) (No. 26 of 2019)

Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

31 October 2023

Introduction

1. The Applicant, Mr Taylor, is 68 years old.  He served in the Royal Australian Air Force from 6 January 1972 to 1 October 1976. He claims that his right knee condition (the knee condition) which was reported on 25 May 1976, is causally related to his eligible service.  He claims that the condition meets the Statement of Principles (SoP) concerning Acute Meniscal Tear of the Knee (Balance of Probabilities) (No. 26 of 2019) (SoP 26).

2. The reviewable decision, made by the Veterans’ Review Board (the VRB) on 10 August 2022, affirmed the determination made on 3 June 2021 to reject his entitlement claim because it was not defence-caused for the purpose of section 70(5) of the Veterans’ Entitlements Act 1986 (Cth) (the VEA) which requires that an injury or disease ‘arose out of or was attributable to’ any defence service of the member.

   The SoP in issue

3. It is not in dispute that Mr Taylor has rendered defence service covered by the VEA (from 7 December 1972 to 1 October 1976), that the standard of proof is ‘reasonable satisfaction’ (section 120(4) of the VEA), and that a SoP must be in force that upholds the contention that the injury or disease is connected with that service (section 120B(3) of the VEA).

4. The Respondent contended that the applicable SoP is Statement of Principles concerning osteoarthritis (OA) (Balance of Probabilities) (No. 62 of 2017). Mr Taylor explicitly acknowledged that he cannot meet that SoP because the possibly relevant factors connecting the OA to service are time limited, which the Applicant cannot satisfy.  

5. Section 7(2) of SoP 26 provides:

   For the purposes of this Statement of Principles, acute meniscal tear of the knee:

   (a)means an injury causing tearing of a meniscus of the knee joint resulting in a sudden onset of pain and tenderness; and

   (b)excludes chronic tear and degenerative disease of the meniscus.

   Note: Acute meniscal tear of the knee may be accompanied by the following symptoms and signs occurring within the 24 hours following the injury: pain exacerbated by twisting or pivoting movements, swelling, locking, or loss of functional ability.

6. Section 9 provides:

   At least one of the following factors must exist before it can be said that, on the balance of probabilities, acute meniscal tear of the knee…is connected with the circumstances of a person’s relevant service:

   (1)  having a significant physical force applied to or through the affected knee joint at the time of the clinical onset of acute meniscal tear of the knee;

   (2)  inability to obtain appropriate clinical management for acute meniscal tear of the knee.

7. Section 10(2) provides:

   The factor set out in subsection 9(2) applies only to material contribution to, or aggravation of, acute meniscal tear of the knee where the person’s acute meniscal tear of the knee was suffered or contracted before or during (but did not arise out of) the person’s relevant service.

   The issues

8. The issues are:

   (a)The diagnosis of the knee condition, which determines the applicable SoP/s;

   (b)Whether there is a connection between the knee condition and the circumstances of eligible service he rendered; and

   (c)Whether, on the balance of probabilities, the Applicant satisfies the criteria identified in SoP 26. 

   What is the correct diagnosis of the knee condition?

9. The Respondent contends that the correct diagnosis of the knee condition is osteoarthritis, secondary to a medial meniscal tear which means that the applicable SoP is No. 62 of 2017. 

10. As Mr Taylor contends that he satisfies SoP No. 26, he is contending that the correct diagnosis is ‘acute meniscal tear of the knee’.

11. Mr Taylor’s case is based on the Service Medical Record entry on 25 May 1976 which states:

    Rt knee gave way on him yesterday and this morning.  O/E (on examination) Tender spot on tibia below med. joint line of knee - anteriorly (Not O’Schlatters). For X ray

12. An Employment Standard Review concerned with the Applicant’s left elbow appears to have been prepared on 7 June 1976. The Date Allocated on the document is 30 September 1975. There is no mention of an injury to the right knee.

13. A Health Statement – Serving Members was completed by the Applicant on 17 June 1976.  In response to the direction List those diseases and injuries and approximate dates of onset from which you suffered during your service and any from which you are suffering now the Applicant listed only one, a fractured humerous (sic) (left) on the 28 June 1975. 

14. On 20 August 1976 and 20 October 1976, F P Opitz, orthopaedic surgeon reported to the Senior Medical Officer at RAAF Williamtown about the Applicant’s left elbow. There was no mention of the right knee.

15. The next medical record about the knee condition is a report about ‘MRI Right Knee’ dated 29 April 2016 which says:

    There are marked degenerative changes in the medial compartment of the tibiofemoral joint with a large macerated tear of the body and posterior horn of the medical meniscus. There is extrusion of the mid body of the medial meniscus with bone marrow changes seen in the adjacent medial, femoral and tibial condyles.  There is oedema in the posteromedial joint capsule with a moderate degree of sprain to the proximal half of the medial collateral ligament. There is minimal joint fluid with no evidence of a Baker’s cyst.  

16. On 17 May 2016, the Respondent received the Applicant’s claim for disability pension for a new disability. The following is taken from the part of the application completed by Dr V Armanno GP on 12 May 2016. The new disability is ‘right knee problems’. The medical diagnosis was ‘degenerative joint disease with medial meniscus pathology’, based on clinical examination and MRI result.

17. The response to the question ‘How do you believe your service caused, contributed to, or aggravated this disability?’ was ‘Right knee gave away (see med records for 25 May 76)’.  The veteran first consulted Dr Armanno ‘for this condition’ on 26 April 2016.

18. Dr Armanno completed a Disfigurement and Social Impairment Medical Impairment Assessment of osteoarthritis of the right knee and an unrelated condition which was stamped ‘received’ by the Respondent on 4 July 2016. Dr Armanno ticked a box indicating that the symptoms were solely due to OA but then wrote:

    But he also has coexisting medial meniscal damage/degeneration

19. In a Minute – DVA Victoria Dr Ian Rossiter, Medical Advisor, Melbourne 6 September 2016 diagnosed: (Mild) CMP right knee (chondromalacia patella) ICD 717.7 diagnosable onset 29 April 2016; OA of the right knee (marked in the medial compartment with associated degenerate tear of the medial meniscus – and mild in the patellofemoral compartment (ICD 715.36 – diagnosable onset 29 April 2016).

20. A delegate of the Repatriation Commission decided on 6 September 2016 that the diagnosis was OA right knee and CMP right knee which was not related to service.  

21. Dr Ian Chan, Orthopaedic surgeon reported to Dr Mihail Radulescu on 17 September 2019. Dr Chan reported that X-rays of the knee demonstrated significant arthritic changes in the right knee, especially in the medial compartment, where there is bone on bone contact. 

22. This proceeding arises from an Initial liability claim that was received by the Respondent on 7 June 2020 which included the following. The diagnosis was ‘knee replacement’. Did the condition occur on a specific date? No. Approximately when did you start noticing symptoms? 05/1976. It continues:

    This is a claim for OA and replacement of the right knee on the basis inability to obtain appropriate clinical management for osteoarthritis, in that an x-ray was not taken as the medical section was too busy at the time, my argument is that without an x-ray it would have been impossible for the medical officer to make an accurate diagnosis and provide treatment or advice on the management of symptoms and other measures that would improve a my quality of life even if they had no effect on the ultimate progression and outcome of a condition. Later in life I found it was an osteophyte that kept tearing the medial meniscus when the knee is fully extended. I am now listed for a single knee replacement.

23. The Applicant wrote that This claim is an extension of the previous claim for ‘knee issues’ submitted in 2016.

24. Dr Radulescu provided the following information in a Diagnostic Assessment he signed on 18 September 2020. The diagnosis was right knee osteoarthritis. The symptom onset was 2008, the first presentation was 26 September 2016 and the formal diagnosis of OA knee was 29 April 2016. The Applicant first presented to the doctor on 27 August 2019. In Dr Radulescu’s opinion, the cause of the condition was right knee injury 29 May 1976 50% and natural degenerative process 50%. Dr Radulescu reported that the range of motion impairment was contributed to 40% by medial meniscal tear and 60% by OA. The OA (almost bone on bone) caused 100% of his pain. No surgery had been performed.   

25. On 18 September 2020, Dr Radulescu completed an Impairment Assessment: Introduction. He indicated that the condition ‘knee replacement’ was permanent as at 29 April 2016 and was stable as at 19 November 2019. 

26. The Health Summary Sheet from Dr Radulescu printed on 18 September 2020 listed under Current active problems, ‘2016 Osteoarthritis – Knee (Right)’ and under the heading Past Medical History, 1976 R knee injury.

27. A case note of a verbal ‘CMA’ opinion by telephone conversation with a Department of Veterans Affairs medical advisor dated 18 May 2021 recorded diagnosis label: Right knee osteoarthritis with degenerative meniscal tear’ SOP: Osteoarthritis and the opinion: ‘Regarding the injury during service; from the 1 page extract from the ADF service medical record; unable to confirm diagnosis from 1976. No differential diagnosis provided.

28. An internal note dated 19 May 2021 states:

    re-review of personnel file:

    pg 133 shows member was on recreational leave from 26/05/1976 to 02/06/1976 injury was reported 25/04/1976 then member went on 1 week recreational leave – no mention of injury

    pg 166 – evaluation report dated 24/05/1976 states member has been working no more than 2 effective days per week due to previous hang gliding accident - elbow

29. A Case note detail created 3 June 2021 records that the person ‘spoke at length’ with the Applicant who confirmed that he did not see a doctor about his claimed condition from the time of discharge until 2016. There was discussion about the specialist review in 1976 for his elbow but there was no mention of the knee. The Applicant said that he was no longer based in Newcastle at the time and believed the dates were wrong.

30. A delegate refused the Applicant’s claim on 3 June 2021. The Applicant sought review by the Veteran’s Review Board (VRB).

31. In his Statement of Facts, Issues and Contentions dated 10 June 2022 provided during the VRB review process, the Applicant submitted that both factors in section 9 of the SoP were relevant. In the Statement of Facts, Issues and Contentions dated 3 August 2022, the Applicant drew attention to the Respondent’s acceptance on 6 September 2016 that a causal relationship existed between the trauma to the right knee and his eligible service. The submission was made that 24 and 25 May 1976 were a Monday and Tuesday and it would be reasonably be expected that the Applicant would have been on duty and the VRB was invited to take evidence from the Applicant about the nature of his duties as a general hand, and the hazards associated with his employment which would reasonably have resulted in his suffering a significant physical force to or through his right knee.

32. The Applicant provided to the VRB a statutory declaration dated 20 March 2022 in which he recounted the following. 

33. His right knee gave way when he arose for work and he experienced a sharp pain. He could not recollect any incident that could have caused the injury. He attributed the acute meniscal tear to twisting and jarring his leg getting out of bed. The X-ray was not taken at the time because the equipment was not available and he was sent back to his unit with no follow up date. On 17 June 1976 he attended an Employment Medical Review. No-one identified the outstanding X-ray and he had completely forgotten about the knee incident because he was favouring it and only had the occasional twinge. That is why he signed on that day that there were no outstanding issues. The same situation occurred on 30 September 1976 during his discharge clearance as the knee was no longer painful and he was subconsciously favouring it and not fully straightening it.  

34. The next time his knee became an issue was around 10 years later while he was moving house. When he had to straighten the leg while lifting, a sharp pain occurred while the knee was being fully extended. Over time the knee incidents became more frequent. In 2016 there was an incident when his right knee gave way while descending the stairs from his place of work, he regained his balance and stopped falling by grabbing the railing. His employer became very concerned after hearing that. At that time, he realised that his knee was affecting his work/life and something had to be done. That is when he attended his GP and the MRI was done. He had a knee replacement in 2021. Post-operatively, it appeared he had long been favouring the right knee and not fully extending it. He needed to stretch the muscle and tendons for another 15 degrees ‘(physiotherapy observation)’ to match his other leg.

35. The VRB’s decision was on 10 August 2022.

36. In his application to the Tribunal, the Applicant wrote:

    I do not agree with the opinion of the Board that ‘falling on stairs could not cause a medial meniscal tear’.

37. Dr Frank Machart, orthopaedic surgeon, examined the Applicant on 16 January 2023 at the request of the Respondent, and wrote a report dated 20 January 2023.   

38. The Applicant told Dr Machart that the 1976 injury to his knee occurred as follows. He was in his RAAF accommodation, woke up, got up, and his knee gave way. There was a sharp pain. The symptoms became recurrent, the sharp pain gradually increasing more recently, to the extent that he was diagnosed with osteoarthritis and underwent a knee replacement in 2021. There was no specific traumatic incident to the right knee before or after 1976. Dr Machart referred to two X-rays, pre and post surgery 2021. Before surgery there was bone on bone osteoarthritis in the medial compartment.

39. Dr Machart’s opinion was that the 1976 incident was consistent with medial meniscal tear.  He explained:

    The subsequent intermittent symptoms were consistent. Meniscal tear, if unrepaired or not subjected to meniscectomy, has potential to cause recurrent mechanical symptoms which is what appears to have happened here. Meniscal tears not uncommonly lead to osteoarthritis. Osteoarthritis superimposed the meniscal tear, and eventual lead to knee replacement. The chain of events was injury in 1976, meniscal tear, remained mildly symptomatic, and not to the extent of requiring medical attention beyond the first consultation until the symptoms became more severe few years back when osteoarthritis was diagnosed.

40. Dr Machart’s opinion was that SoP 26, paragraph 7(2)(a) applies. There was an injury to meniscus in 1976 which never healed. There was no evidence that there were degenerative changes at the time of the injury. The trauma to the meniscus never healed and caused secondary OA. This mechanism was consistent. He was satisfied on the balance of probabilities that the osteoarthritis was caused by the internal derangement. The date of clinical onset was 1976. The incident which caused the meniscal tear satisfies the causal factors in section 9.

41. Dr Machart set out the Applicant’s past history:

    No specific traumatic incident to the right knee before or after 1976. The left knee is asymptomatic.

42. During cross-examination before the Tribunal, the Applicant said the following. His evidence to the VRB that he had slipped on stairs in May 1976 was in response to being pressured at that time. He wants to withdraw the false statement and maintain what he had said in his statutory declaration. He was getting out of bed. They were pushing that he needed to be at work and not in the barracks. He also wished to withdraw the false statement in his application to the Tribunal about the stairs.

43. A further document apparently prepared after 3 August 2022 which elaborates the Applicant’s case at that time, also referenced his ‘debate’ with the VRB’s opinion that losing balance while descending stairways would not cause the requisite damage to the knee.  The Applicant told the Tribunal that he was debating the VRB’s opinion.

44. The Applicant conceded that he did not disclose to Dr Machart that his knee had given way on stairs in 2016 before he went to the doctor. He did not think it was relevant. He said that his doctor and DVA treated it as osteoarthritis. Dr Machart had his statutory declaration.

45. The Applicant denied constructing his evidence to fit the SoP.

    Conclusion

46. Dr Machart’s expert opinion supports the Applicant’s case. However, it cannot be accepted because his opinion was not based on a complete history, particularly that the incident in 2016 caused the Applicant to consult a doctor about his knee for the first time in 40 years.   That the Applicant’s employer became very concerned after hearing that incident reinforces a conclusion that it was a significant incident.

47. Dr Radulescu’s opinion does not set out a comprehensive history or reasoning for his opinion and is therefore not of assistance.

48. There was no diagnosis in 1976. The first diagnosis was by Dr Armanno on 12 May 2016: ‘degenerative joint disease with medial meniscus pathology’, based on clinical examination and MRI result. It is consistent with the diagnosis of Dr Rossiter, Medical Advisor, Melbourne, on 6 September 2016: OA of the right knee (marked in the medial compartment with associated degenerate tear of the medial meniscus – and mild in the patellofemoral compartment (ICD 715.36 – diagnosable onset 29 April 2016). Dr Chan’s diagnosis is consistent with those diagnoses.

49. The meniscal tear in this case is excluded by section 7(2)(b) of SoP 26. The tear is the consequence of degenerative disease of the meniscus.

50. SoP 26 is not satisfied. Therefore, the reviewable decision must be affirmed.

    DECISION

51. The reviewable decision made by the Veterans’ Review Board on 10 August 2022 is affirmed.

I certify that the preceding 51 (fifty) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

Associate

Dated: 31 October 2023

Date of hearing:	18 August 2023
Applicant:	In person
Solicitors for the Respondent:	Ms C Campbell, HWL Ebsworth Lawyers