Temple and Repatriation Commission - [2001] AATA 490

DECISION AND REASONS FOR DECISION [2001] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1355

VETERANS' APPEALS DIVISION       )
           Re      JACK TEMPLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date5 June 2001
PlaceMelbourne

Decision      The decision under review is varied to provide: (i)        that Mr Temple has asthmatic bronchitis which is a war-caused disease, with effect from 10 March 1998. (ii)      that pension is payable to him at 90% of the General Rate from 10 March 1998.
  (Sgd) Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – disability pension – claim for "breathing problems" to be accepted as war-caused – if diagnosed as asthma no factor in relevant Statement of Principles available to veteran – whether diagnosis of asthmatic bronchitis appropriate – difference of opinion between two eminent specialists - issue to be decided on balance of probabilities
PRACTICE AND PROCEDURE – calling two medical witnesses together to resolve issues arising from differences in their opinions
definition in relevant SoP - both experts agreed that the definition of asthmatic bronchitis in the Statement of Principles "creates an impossible diagnostic category" – referral of reasons for decision to Repatriation Medical Authority for consideration

Veterans' Entitlements Act 1986 ss 6A, 9, 120(1) and (3), 120A(3)

Statements of Principles Instruments No. 59 of 1996, 73 of 1997, 75 of 1997

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Hawkins (1993) 117 ALR 225

REASONS FOR DECISION

5 June 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of a determination of the Repatriation Commission made 16 September 1998 which refused a claim to have "breathing problems" accepted as war-caused. The Repatriation Commission diagnosed "breathing problems" as asthma, and decided that it was not war-caused, because no hypothesis was raised consistent with the relevant Statement of Principles ("SoPs") for asthma. That decision was affirmed by the Veterans' Review Board ("the VRB") on 24 August 1999. The Repatriation Commission on 16 September 1998 accepted the conditions of Post-Traumatic Stress Disorder ("PTSD"), Bilateral Sensori Neural Hearing Loss and Bilateral Tinnitus as war-caused and assessed the rate of pension for those conditions at 40% of the general rate. That assessment was also affirmed by the VRB on 24 August 1999.
Mr De Marchi, a solicitor, appeared for Mr Temple. Ms McCulloch, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mr Temple gave evidence. Evidence on his behalf was also given by Dr Pain. The respondent called Dr Christie, Mr Temple's local medical officer, and Dr Hart. Both Dr Pain and Dr Hart are respiratory physicians. On the second day of hearing, at the Tribunal's request, they gave evidence together, to clarify the difference between their opinions.
Mr Temple served with the Australian Army from 31 October 1941 to 20 September 1946. He served in New Guinea from 10 March 1943 to 8 February 1944 and in Bougainville for a year. The whole of his service is operational service as defined in s 6A of the Veterans' Entitlements Act 1986 ("the Act").
The circumstances in which a disease shall be taken to be war-caused are set out in s 9 of the Act. The relevant standard of proof in respect of periods of operational service is that set out in ss 120(1) and (3) of the Act which provides:
120. (1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:   This subsection is affected by section 120A
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:   This subsection is affected by section 120A
Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. Sub-section 120A(3) of the Act provides:
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); …
that upholds the hypothesis.
Because Mr Temple's claim was lodged on 10 June 1998, the provisions of ss 120A of the Act apply. There has at all relevant times been a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") in respect of asthma, Instrument No. 59 of 1996 as amended by Instrument No. 75 of 1997. There is also a SoP for chronic bronchitis and emphysema, Instrument No. 73 of 1997. The Tribunal must apply the relevant SoP in deciding whether the material before the Tribunal raises a reasonable hypothesis connecting Mr Temple's medical condition with the circumstances of his particular service.
respiratory problems
It was common ground at the hearing, first, that Mr Temple's respiratory condition had been diagnosed by both Dr Pain and Dr Hart as bronchial asthma and, secondly, that the relevant SoP did not allow the Tribunal to determine that Mr Temple's asthma was war-caused.
The hypothesis sought to be relied on by Mr Temple, was one of an association between his respiratory problems and a service related smoking habit. The asthma SoP does not recognise smoking as a relevant factor either for the development or for the worsening of asthma. The only factors it recognises are:
(a)for the first episode of asthma only, being exposed to occupational antigens within the 24 hours immediately before the clinical onset of asthma; or
(b)being exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma; or
(c) inability to obtain appropriate clinical management for asthma
When it became apparent that Mr Temple could not succeed in a claim to have his asthma accepted as war-caused, Dr Pain in a report dated 19 April 2000 (A1) commented on the relevance of the SoP for chronic bronchitis and emphysema, Instrument No. 73 of 1997. He suggested:
it might be possible to argue that the asthmatic component has been well controlled with recent increases in medication and that the residual airflow obstruction is demonstrating the presence of obstructive bronchitis even though clinically there is little cough or sputum.

By the time he gave evidence, Dr Pain advanced the proposition that the "the most appropriate diagnostic label is chronic asthmatic bronchitis". He expressed that opinion in his third report dated 5 April 2000 (A4).

There was no dispute about the fact that if "chronic asthmatic bronchitis" is an appropriate diagnosis for Mr Temple's disease, then his smoking habit, if it were related to service would satisfy factor 5(a)(ii) of the relevant SoP which provides:
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person's relevant service are:
(a)for chronic simple, chronic mucopurulent or asthmatic bronchitis `only,
. . .
(ii) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
On 14 May 1998 Mr Temple had filled in a smoking questionnaire which was included in the T documents (T9 pp36-37). In that questionnaire he said he started smoking in New Guinea in 1943 due to the extreme stress of service and he smoked about 20 per day, although once his habit was established it increased to about 30 per day. He said he gave up smoking permanently in 1979. In his evidence Mr Temple agreed with that history.
Mr Temple also prepared a Statement dated 19 July 2000 which was received in evidence as exhibit A3. It states as to smoking:
3.In relation to my smoking habit, I commenced smoking during the War. I was a non-smoker prior to service. We were given tobacco in the Army, 2 ozs and papers, and initially I did not smoke and gave my tobacco away. However, I then started to smoke and increased the habit while I was overseas.
4.When I became a regular smoker while in the Army I would smoke at least one packet per day. I then gradually increased my level of smoking, smoking to approximately 20—30 cigarettes per day.
5.I gave up smoking approximately 20 years ago, but have had symptoms of breathlessness since since [sic] the early to mid 1960's. I gave up smoking because I used to cough and become breathless.
Mr Temple said that what led him to stop smoking in 1979 was his cough. He said that from reading and listening to what people were saying about smoking as a health hazard, he began to get the idea that the smoking might have been bad for his coughing and spluttering and so he gave it up.
The issue before the Tribunal was thus primarily one of medical diagnosis. It is helpful to set out all the medical opinions which were before the Tribunal.
dr o'brien
Mr Temple has attended the same medical clinic for very many years. His current doctor there is Dr Christie, but in March 1990 it was Dr O'Brien. On 27 March 1990 he wrote a report (T6 p17) to the Department of Veterans' Affairs. So far as relevant he wrote that Mr Temple had a history of hay fever dating back to his Army service, and a more recent history of asthma, dating back many years, but becoming more noticeable in the mid 1970's.
dr hart
On 16 July 1998, just one month after Mr Temple had lodged his current claim (T8 pp26-34) to have a number of conditions including "breathing problems" accepted as war-caused, Dr Hibbins, the Senior Medical Officer (Compensation) with the Department of Veterans' Affairs, referred him to Dr Hart for diagnosis and report.
On 17 August 1998 Dr Hart provided a report (T18 pp69-71). He set out the history he obtained from Mr Temple and concluded (T18 p70):
His lung function tests show marked airways obstruction at baseline with a very useful bronchodilator response diagnostic of bronchial asthma. His carbon monoxide diffusing capacity was within the normal range excluding any emphysema. After bronchodilator there is residual airways obstruction. This may be fixed and chronic airflow limitation due to his cigarette smoking habit which began during war service or may possibly be due to his chronic asthma.
Dr Hart provided a further report on 6 April 2000 (R1). He had perused the notes from West Brunswick Clinic before writing that report. He considered that those notes strengthened his initial opinion that Mr Temple suffers from bronchial asthma. He wrote:
I still believe that he suffers from bronchial asthma and that he has a degree of fixed airways obstruction from chronic asthma.

dr pain

Dr Pain first saw Mr Temple on 31 March 1999 on referral from the RSL Pension and Welfare Office. In his report of 1 April 1999 (T24 pp88 and 89), Dr Pain wrote that Mr Temple showed evidence of a chronic lung condition which he accepted as being bronchial asthma. Dr Pain wrote that Mr Temple did not show features of chronic obstructive bronchitis or emphysema. Dr Pain added in paragraph 2 of his opinion:
In terms of the Statements of Principles relating to asthma and chronic airflow obstruction, I have some difficulty in attributing his present lung condition to his war service in terms of those Principles. Thus he does not have chronic obstructive bronchitis and emphysema and in terms of asthma, he does not fulfil criteria required under clauses 5 or 6 (emphasis added).
In his second report of 19 April 2000 (A1), addressed to the applicant's solicitor, Dr Pain as already referred to, considered the possible applicability of the SoP for chronic bronchitis. His opinions were expressed as follows:
1.. . . Whilst most of his condition is probably that of chronic asthma, I could not exclude the presence of some obstructive bronchitis although the fact that he has little cough and sputum makes it unlikely that this is the primary diagnosis.
. . .
4.In terms of the Statement of Principles relating to chronic bronchitis and emphysema, I do not believe Mr. Temple has significant emphysema since his gas transfer is well preserved for a man of his age. On the other hand some of his airflow obstruction might be attributable to a degree of chronic bronchitis. His cigarette smoking has exceeded the factor listed in 5a IV in that he has clearly smoked more than 10 pack-years of cigarettes.
5.Whilst it is difficult to separate chronic bronchitis from asthma, (the term asthmatic bronchitis is sometimes used) it might be possible to argue that the asthmatic component has been well controlled with recent increases in medication and that the residual airflow obstruction is demonstrating the presence of obstructive bronchitis even though clinically there is little cough or sputum.
. . .
7.It might be possible to argue Mr. Temple's case on the basis of the blurring between chronic bronchial asthma and asthmatic bronchitis as defined in Statement 2b 1 of the Statement of Principles. I think to accept the condition of chronic bronchitis requires a significant amount of mucous production, and the impression I get from Mr. Temple is that this is not the case. (emphasis added)
On the first day of hearing the evidence was mainly directed to the issue of whether or not a diagnosis of "chronic bronchitis" or "chronic asthmatic bronchitis" was appropriate. Both Dr Pain and Dr Hart said that one significant diagnostic criteria for bronchitis was sputum production. That point had been expressly referred to by Dr Pain at paragraph 1 of his opinion, in his report of 19 April 2000, when he wrote that the fact that Mr Temple had "little cough and sputum" made "obstructive bronchitis unlikely to be the primary diagnosis".
The issue of sputum production was addressed in Mr Temple's statement of 19 July 2000 (A3). He said:
2.I would first like to clarify the report of Dr Michael Pain dated 19 April 2000. Dr Pain asked whether I coughed up much sputum and I answered: "No, not that much", because to me what I cough up is not much But in fact I do cough up quite a bit of sputum, usually approximately an egg cup full, sometimes more when it is cold. I have I [sic] always minimized my complaints, and because of this trait, gave Dr Pain the wrong impression.
Mr Temple appeared to be an honest witness. He gave the impression that he was not prepared to give an answer just to satisfy the SoPs, if he could not remember whether it was correct. When Mr De Marchi asked him whether he was spitting in 1979 before he gave up smoking, he answered (trans. p14):
I could only say to that, that, yes, I must have been. I can't swear to it, I couldn't swear to it, but I mean the reason that I gave it up was because I was coughing. If I was coughing, I was spitting, and if I was spitting I must have, I mean, it is only reasonable to think that that is what you were doing.

Mr De Marchi asked him how long he had been coughing and spitting, prior to his decision to give up smoking in 1979. He replied (trans. p19):

Well, I – to be honest, I can't say X number of years or X anything, I really can't.

Mr Temple did not in his evidence repeat the assertion that he coughed up an eggcup of sputum a day, but he did say that he regularly brought up sputum with his coughing.

Dr Pain said that he regarded Mr Temple as having a history of productive cough in the past, which had become less with medication when he saw him. But he said a past history of chronic production of mucous would fulfil the definition of chronic bronchitis in the SoP, Instrument No. 73 of 1997:
"chronic bronchitis" means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;
The SoP contains the following definitions of "chronic simple bronchitis" and "asthmatic bronchitis".
"chronic simple bronchitis" means a chronic bronchitis with either nil or minimal pulmonary obstruction and which is characterized by mucoid sputum production;
"asthmatic bronchitis" means chronic bronchitis with demonstrated productive cough, exertional dyspnoea and airflow limitation. These symptoms, and the limitation, reverse significantly in response to inhaled beta-agonists, anticholinergics, methylxanthines, and corticosteroids (used either alone or in combination). In asthmatic bronchitis sufferers progressive airflow limitation occurs over time and becomes less reversible. This definition specifically excludes asthma;
Dr Pain said that although Mr Temple fitted the definition of chronic simple bronchitis, he thought he best fitted the definition of asthmatic bronchitis.
Dr Pain on the first day of hearing, after looking at Dr Hart's report, said he thought he and Dr Hart were basically not very far apart. He gave the impression that the difference between Dr Hart's diagnosis of "bronchial asthma with chronic bronchitis" and his own amended diagnosis of "chronic asthmatic bronchitis" may have more legal than medical significance.
Dr Pain said that the only statement he would query in Dr Hart's report was the suggestion that a bronchodilator response is diagnostic of bronchial asthma. He said it shows a degree of reversibility of airflow obstruction which is certainly found in bronchial asthma, but is also found in obstructive bronchitis and in asthmatic bronchitis. He said the adjective "asthmatic" is added in chronic asthmatic bronchitis to indicate chronic bronchitis with a reversible component. He said that the only disagreement between him and Dr Hart is that Dr Hart put the emphasis on the asthma, when his own final diagnosis was asthmatic bronchitis. Dr Pain said there can be a degree of reversibility in obstructive bronchitis, pure bronchial asthma or asthmatic bronchitis, but in this case, he considered the correct term to be chronic asthmatic bronchitis.

Dr Pain read Dr Hart's most recent report (R1), and said of the distinction between asthma and chronic asthmatic bronchitis (trans. p42):
In making the distinction between what is asthma and what is chronic asthmatic bronchitis is that in asthma you tend to require a relatively normal period in between episodes of wheezy breathing. In that situation there is no doubt that is asthma. The trouble is in the presence of chronic obstruction on a background of asthma you have a situation which could be due to chronic asthma or it could be due to chronic bronchitis with an asthmatic element. In a situation of chronic smoking as we have here, it's more probable than not that this represents chronic obstructive bronchitis with a superimposed asthmatic element. Dr Hart and I don't disagree. He has a strong asthmatic component to his airway obstruction.
Dr Pain on the first day of hearing said that the fact that the bronchodilator response did not at any stage come back to normal indicated that (trans. p42) "whatever this is, it is not just simple bronchial asthma." He explained that in simple bronchial asthma the response would return back to normal after bronchodilator, or in the interval state when there was no episode of asthma. Dr Pain retreated from that statement in his report of 5 April 2001 (A4) and in his evidence on the second day of hearing. He wrote in the report of 5 April 2001:
1.I believe the most appropriate diagnostic label is chronic asthmatic bronchitis. The reasons I believe this are threefold –
a)Mr. Temple has a long history of cigarette smoking
b)He has a long history of a productive cough, fulfilling the diagnostic criteria for bronchitis
c)He demonstrates a significant degree of reversibility on lung function testing in terms of his airflow obstruction (ie he has a significant asthmatic component).
2. The diagnosis of asthma would rest upon the development of reversible airflow obstruction, preferably to a normal ventilatory capacity, (but not necessarily so) associated with marked variability in symptoms. That is, any production of mucus (sometimes found in asthmatic) should respond to anti-asthma medication.
In cross-examination Ms McCulloch pointed out to Dr Pain that according to his own report, Mr Temple had told Dr Pain in March 1999, that he had a cough which produced a small amount of white sputum each morning and had told Dr Pain in April 2000 that he "has a cough in the morning but produced virtually no sputum". Similarly Dr Hart had recorded in his report of August 1998, that Mr Temple told him that he "coughed a small amount of white sputum each day." In his report of 6 April 2000, Dr Hart wrote that on that day Mr Temple had told him, "He has a cough most days and brings up small amounts of phlegm intermittently". Ms McCulloch suggested that those histories were very different from the statement (A3), in which Mr Temple claimed to cough "approximately an egg cup full [of sputum], sometimes more when it is cold."
Dr Pain agreed that an "egg cup full" would not be regarded as "a little bit of sputum", but he said (trans. p46) "production of even a small amount of sputum each day would be sufficient for a diagnosis of chronic bronchitis." He said it did not need to be each day, most days would be enough for the diagnosis. Dr Pain said it was not significant that there was no mention of bronchitis in the general practitioner's notes (trans. p47), "because many patients accept a cough which produces sputum as a smoker's cough and unless the GP specifically asks about it, it may never rise to a level of consciousness."
When Ms McCulloch asked Dr Pain to suggest a date of clinical onset for the chronic asthmatic bronchitis, he said he thought that probably began when Mr Temple complained of shortness of breath and productive cough, probably shortly before he gave up smoking in about 1979. Dr Pain acknowledged that none of the notes give any evidence to pinpoint that.
In answer to a question from the Tribunal, Dr Pain said, at trans. p46, that if Mr Temple coughed up a small amount of sputum each day or even most days, he would have chronic bronchitis. Dr Pain referred to the definition in the SoP which requires "excessive mucous production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years." He explained that the reason he diagnosed asthmatic bronchitis, is because Mr Temple's airway obstruction improves with bronchodilators. Dr Pain also said that even though Mr Temple did not suffer from asthma on the day of hearing he had noticed Mr Temple's "loose cough" in the hearing room (trans. p46).
Dr Hart was asked whether he accepted that a history of sputum production on consecutive days for three months at least of two consecutive years would suffice for a diagnosis of chronic bronchitis. He said (trans. p78):
Unfortunately many asthmatic people who don't have chronic bronchitis also produce sputum on a daily basis. And so it is not possible on that basis alone to make a diagnosis of chronic bronchitis.
Dr Hart said, at trans. page 79, that the degree of reversibility which Mr Temple has is "highly, highly suggestive of asthma." He said it is a degree of reversibility which suggests asthma rather than obstructive bronchitis. When Dr Hart was told that Dr Pain said that it was consistent with asthmatic bronchitis, he said he was not sure what the definition means. He added (trans. p79):
This patient has clearly got bronchial asthma because he has many features that support the diagnosis and they are features that mean that he cannot have exclusively chronic bronchitis or some form of bronchitis. This disease he has, with all its features, including adverse response to Inderal, its association with hayfever, its extensive response to treatment and its very alarming degree of bronchodilator reversibility, all point to there being asthma present.
When asked to comment on the diagnosis "asthmatic bronchitis" which appears in the SoP, Dr Hart said he thought most respiratory physicians had a problem with that diagnosis.
Dr Hart conceded that Mr Temple may also have obstructive bronchitis. He was asked if that were so, how he would apportion the impairment shown on the spirometry test between the bronchial asthma and the chronic bronchitis. Dr Hart said that one can not give an accurate answer, but he would say that at least three quarters of the impairment is due to asthma, and if there is any impairment due to bronchitis and cigarette smoking, it is less than a quarter of the disability.
When Dr Hart was told that Dr Pain in his evidence had diagnosed chronic asthmatic bronchitis, he was surprised. He pointed out that was not what Dr Pain had written in paragraph 1 of his first report of 19 April 1999, where Dr Pain had written that Mr Temple did not show features of chronic obstructive bronchitis. Dr Hart was referred to Dr Pain's second report where he wrote that he could not exclude the presence of some obstructive bronchitis. Dr Hart (trans. p82) said that he would agree with that.
At the conclusion of the first day of hearing the Tribunal expressed concern about the difficulty choosing between the different opinions of the two doctors both of whom are eminent Melbourne respiratory physicians. A further problem was that once Dr Hart said that he could accept that Mr Temple may suffer from some obstructive bronchitis as well as asthma, an issue arose as to whether the incapacity should be apportioned between the two conditions. Dr Pain had not been asked to give an opinion on that issue, and thus it was necessary that he be recalled.
The Tribunal suggested that it would be assisted by both doctors giving evidence together, which is sometimes colloquially described as a "hot tub". The parties and the doctors co-operated and a resumed hearing was arranged on that basis.
At the resumed hearing Dr Pain and Dr Hart sat in the witness box together. The proceeding started with the Tribunal summarising the evidence already given. The Tribunal said (trans. Day 2 p2):
Dr Pain having previously written slightly differently, when he gave evidence said that he thought the best diagnosis that rolls everything in was chronic asthmatic bronchitis which is mentioned in the SoP. Dr Hart said that wasn't really a term that he uses clinically medically, and what he thought Mr Temple had was bronchial asthma, but he wasn't going to disagree with the fact that there could also be a component of chronic bronchitis. Is that summarising what the two of you have said accurately as far as you two are concerned?

The Tribunal added (trans. Day 2 p3):

To some extent it seems to me, reading between the lines, it may be that the reason, and I don't need a comment on this at the moment, that Dr Pain has changed the way he has described the condition is because we all know that bronchial asthma is not going to get up on a SoP, because the only conditions accepted in the SoP for bronchial asthma are exposure to antigens within 24 hours or something of that nature.
I don't see that as a problem, if medically the other way of looking at it is correct, because we are in an area where we can be beneficial to veterans, but we do need to be medically correct. Now if the – I think I said during the hearing, that if Dr Pain was saying well this man has chronic asthmatic bronchitis and if the SoP recognises that as a condition, I am probably not going to be finding otherwise, but that would still leave open a question as to whether one should apportion the respiratory impairment between bronchial asthma and between chronic asthmatic bronchitis, or whether the bronchial asthma gets rolled into the chronic asthmatic bronchitis.
Now I think that is perhaps the issue between the parties, but I am not quite certain whether Dr Pain agrees that he has, in a sense, changed his way of looking at the matter to meet the circumstances, and I am not quite sure – I think I was told that Dr Hart would say that he wouldn't really argue with there being some chronic bronchitis but that he would only – or maybe you gave this as evidence on the phone, say only about a quarter of the impairment was due to the bronchitis component and the rest was due to the asthma component. That is what I understood to be he difference between the two of you.

Mr De Marchi tendered Dr Pain's report dated 5 April 2000 (A4). As previously set out in paragraph 9 of these reasons it stated that Dr Pain believed the most appropriate diagnostic label for Mr Temple was "chronic asthmatic bronchitis", and explained why Dr Pain preferred that diagnosis.
The Tribunal invited Dr Pain and Dr Hart to comment. Dr Pain responded (trans. Day 2 pp7-8):
I think it is true that the difference between asthma and asthmatic bronchitis hinges on the presence of bronchitis. Chronic bronchitis is specifically defined in the SOPs as a productive cough, and the amount of sputum is not determined. It is true that in my original reports, I got the impression from Mr Temple that the amount of cough and sputum he had was fairly minimal, and thus my reports emphasised the asthmatic component.
On subsequent review though, it appears that his cough is more chronic than I had obtained from my history and that his production of sputum is on a quite a regular – quite regular basis. The definition of asthmatic bronchitis is very clearly spelt out in the SoP and I believe Mr Temple fulfils that requirement almost to the letter. Thus he has a chronic productive cough, he has demonstrated airflow obstruction, and he has significant reversibility to an inhaled broncho-dilator on a background of an agent which we know is likely to produce bronchitis. I think that definition - - -
MRS DWYER: And that agent is smoking?
DR PAIN: Smoking.
MRS DWYER: Yes.
DR PAIN: I think that definition neatly describes Mr Temple's condition, but I will admit that the emphasis now has changed from a largely asthmatic condition, to the diagnosis of asthmatic bronchitis, based on the stronger history we have now of a productive cough. Chronic asthma as an alternative diagnosis requires, I think, the demonstration of airflow obstruction which is reversible and in which the symptoms are improved by anti-asthma medication, so that most chronic asthmatics do not produce sputum every morning with the cough, if their asthma is under good control.
But having said that, the distinction between the two is blurred and I would have thought that the Statement of Principles wasn't intended to separate asthma from bronchitis. Given the label of asthmatic bronchitis I think with you madam, they are rolled up together.
Dr Hart responded (trans. Day 2 pp8-9):
I feel that what I gave in evidence last time was that Mr Temple suffers from bronchial asthma and that the history of sputum production which was elicited and given to me at the last sitting, suggested the possibility that there may also be a component of chronic bronchitis related to his cigarette smoking, and I estimated that – which I stressed over the telephone is a guesstimate because this is not something separable scientifically, as something like 75/25 contribution. . . .
. . .
If the intention of the diagnostic category of asthmatic bronchitis is to assert that all of this man's symptoms have arisen as a consequence of cigarette smoking, then I can't agree with that assertion, because he has other features which are very typical of asthma. He has a history of allergic rhinitis, he has a long history of wheeziness recorded by his general practitioner over many years which has responded to prednisolone, he has a huge demonstrated broncho-dilator responsiveness of 19 per cent on a previous occasion, and I think that those features beyond the degree of reversible airflow obstruction which I could ascribe to an origin in cigarette smoking. And therefore I would still feel that Mr Temple suffers from chronic asthma, but I would agree and I said so last time, that there may well be features of chronic bronchitis as well, and I did make an estimate of the amount of chronic bronchitis that could be present.
The Tribunal raised with Dr Pain and Dr Hart the last sentence in the definition of asthmatic bronchitis in the SoP. That sentence states "This definition specifically excludes asthma." Dr Pain said, "Dr Donald [the Chairman of the Repatriation Medical Authority which made the SoP] doesn't tell us how to do that." Dr Hart responded (trans. Day 2 p12):
I think what this definition refers to is a very common clinical entity because cigarette smoking is prevalent and asthma is prevalent. Their intersection will be common. But in defining asthmatic bronchitis as requiring the presence of reversible airflow obstruction, and then in the last sentence adding the caveat that asthma must be excluded, asthma being defined as the presence of airflow obstruction that is reversible, it creates an impossible diagnostic category.
It is very difficult to imagine, as we have no other way of diagnosing asthma, how you would – how you would create a person who has asthmatic bronchitis, who has reversible airflow obstruction, the definition and the hallmark of asthma, but then go on to say that he doesn't have asthma. It is a definition that is very hard to put into operation.
Dr Hart explained further that he diagnosed bronchial asthma rather than asthmatic bronchitis was because he does not think that Mr Temple's asthmatic condition "has arisen out of his chronic bronchitis" (trans. Day 2 p10). Dr Pain added:
Can I respond to that and say that if we accept that he has an underlying asthmatic pre-disposition, and I think that is correct, then cigarette smoke induces an inflammatory response in the airways, and some of the results of that inflammation can, in itself, trigger or aggravate the asthmatic component. That is not to say that the tobacco smoke is the cause of the asthma. I agree with that. It is to say that the elements of chronic bronchitis can aggravate the underlying asthmatic pre-disposition. I really think they are inseparable.
Both Dr Pain and Dr Hart said that "asthmatic bronchitis" is not a tight diagnostic entity, and that some respiratory physicians, including Dr Hart do not use it. Dr Pain said (trans. Day 2 p11):
We all recognise people with chronic obstructive bronchitis who have a good response to broncho-dilator and they fit neatly into this – in this label, but it merges into the asthmatic end of the spectrum, so in a sense it is not a tight box.

Dr Hart added:

And most of us gloss over that lack of knowledge on our part by writing the phrase that Dr Pain used, which is that there is a significant asthmatic component. It sort of begs the question in a way, but we – if someone has a lot of reversibility we tend to conceptualise that as meaning that there is asthma there, and I think most of us would probably avoid asthmatic bronchitis and regard them as being bronchitis which has occurred in someone with an asthmatic constitution that gives them that large degree of reversibility and I think that is what has happened here.

Dr Hart agreed with Mr De Marchi that Mr Temple satisfied the descriptive part of the definition of asthmatic bronchitis in the SoP, but he added, "Except that I feel he has bronchial asthma, and the definition excludes asthma" (trans. Day 2 p14). He agreed that Mr Temple has the symptoms and findings specified and that he has had almost all the treatments mentioned in the definition at some stage. He said that he believed Mr Temple was excluded from the definition because he has bronchial asthma (trans. Day 2 p17).
The question whether a veteran has a disease is to be decided on the balance of probabilities standard of proof. In Repatriation Commission v Cooke (1998) 160 ALR 17, The Full Court of the Federal Court said at p20:
We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease.

The Full Court added at p22:

[T]he task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence, one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120 (4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question.

Thus the question for the Tribunal is whether Mr Temple has asthmatic bronchitis. The Tribunal has been assisted by evidence from two eminent respiratory physicians. Dr Pain is the Director-Thoracic Medicine at The Royal Melbourne Hospital. That position indicates that he is one of Melbourne's most eminent respiratory physicians. Dr Hart is also recognised as an eminent consultant respiratory physician. From their reports and their evidence I find:
(a)For clinical purposes both doctors would diagnose and treat Mr Temple as suffering from bronchial asthma with some chronic bronchitis.
(b)Both doctors agree that his symptoms fit the definition of asthmatic bronchitis in SoP Instrument No. 73 of 1997 except for the last sentence of that definition which provides:
"This definition specifically excludes asthma"
(c)The doctors agreed that it is impossible to imagine a person who fits the first part of the definition but does not have asthma. If a person has demonstrated productive cough, exertion dyspnoea and airflow limitation and the symptoms including the limitation, reverse significantly in response to the drugs mentioned in the definition, then there is an asthma component to the condition.
(d)Both doctors stated or implied that the Repatriation Medical Authority should reconsider the definition, because it "creates an impossible diagnostic category".
(e)The medical view is that there is no clear delineation between chronic asthmatic bronchitis and bronchial asthma with chronic bronchitis.

I have concluded that if Dr Pain, who is the Director of Thoracic Medicine at the Royal Melbourne Hospital, says that in his opinion Mr Temple fits the definition of asthmatic bronchitis in the SoP, except for the last sentence which he says is meaningless, I have no basis on which to reject his opinion. I am reasonably satisfied that that is an appropriate diagnosis for Mr Temple.
This is beneficial legislation as was explained by the Federal Court in Repatriation Commission v Hawkins (1993) 117 ALR 225. In my opinion where the medical evidence establishes that a veteran could be diagnosed as suffering from one disease or from another disease with the same or very similar symptoms, and where one diagnosis entitles him to succeed in his claim to have his disease accepted as war-caused, then he is entitled to the benefit of the more favourable diagnosis.
That seems to be the precise situation here. Mr Temple could be diagnosed as suffering from bronchial asthma with chronic bronchitis, but he would then not succeed in his claim to have his disease found to be war-caused. The evidence of Dr Pain is that Mr Temple can also, and in Dr Pain's current view, more appropriately, be diagnosed as suffering from asthmatic bronchitis.
There is no evidentiary basis for me to reject Dr Pain's professional opinion as to a matter directly within his field of specialty. According to Dr Pain and Dr Hart the last sentence of the definition in the SoP cannot be applied, as the first part of the SoP requires that the person be suffering an asthmatic component. Thus I do not regard that sentence as providing any basis for rejecting Dr Pain's opinion that Mr Temple suffers from asthmatic bronchitis as defined in SoP Instrument No. 73 of 1997.
I find that Mr Temple's disease can be diagnosed as asthmatic bronchitis.
causation
As stated in paragraph 10 of these reasons, the respondent did not dispute that if the diagnosis of asthmatic bronchitis were accepted, Mr Temple's war-caused smoking habit would satisfy factor 5(a)(ii) of the relevant SoP. Thus I find that Mr Temple's asthmatic bronchitis is a war-caused disease.
The decision under review will be varied to provide that Mr Temple has asthmatic bronchitis which is a war-caused disease with effect from 10 March 1998.
assessment
Mr Temple will have the following conditions accepted as war-caused:
(i)asthmatic bronchitis
(ii)Corneal scar right eye
(iii)Dyspepsia
(iv)Chronic solar skin damage
(v)Post Traumatic stress disorder
(vi)Bilateral sensorinerual hearing loss
(vii)Bilateral tinnitus
The parties agreed on the following assessments on the Guide to the Assessment of Rates of Pension ("GARP"):
Corneal Scar right eye  0
Chronic solar skin damage  2
Post Traumatic Stress Disorder  22
Bilateral Sensorineural Hearing Loss  0
The matters remaining in issue are:
asthmatic bronchitis
dyspepsia
tinnitus
As to asthmatic bronchitis both Dr Pain and Dr Hart gave a 35 point impairment rating. Dr Morgan prepared a cardio respiratory worksheet which yielded an impairment rating of 34. I accept 35 as the appropriate impairment rating on Chapter 1 of GARP. I accept Dr Pain's evidence that if the condition is diagnosed as "asthmatic bronchitis", the impairment rating cannot be divided between asthma and bronchitis as suggested by Dr Hart.
As to dyspepsia, Mr De Marchi sought a rating of 5 on Table 6.1.5 which he claimed was suggested in the report of Mr Christie of 24 May 2000 (R4). I do not see any rating by Dr Christie in that report. I see that in his earlier report of 21 July 1999 (T25 p98) Dr Christie had written that Mr Temple had no symptoms. In the later report he did refer to moderate symptoms episodically for one hour once in six weeks, with use of Mylanta. I accept Dr Morgan's view that those symptoms warrant a NIL rating on Table 6.1.5.
As to tinnitus the evidence does not allow me to distinguish between "occasional mild tinnitus" with a NIL rating as selected by Dr Morgan, or "very mild tinnitus not present every day" as selected by Dr Rossiter (T20 p76), which warrants an impairment rating of 2 on Table 7.1.11. Bearing in mind the beneficial nature of the legislation I will accept Dr Rossiter's rating of 2.
Thus Mr Temple's impairment ratings are:
(i)asthmatic bronchitis  35
(ii)Corneal scar right eye  0
(iii)Dyspepsia  0
(iv)Chronic solar skin damage  2
(v)Post Traumatic stress disorder  22
(vi)Bilateral sensorinerual hearing loss                  0
(vii)Bilateral tinnitus  2

These ratings combine on Table 8.1 as 35 + 22 + 2 + 2 = 51. When 51 is rounded to 50 it converts to an incapacity of 90, if one uses the higher lifestyle rating in the shaded area.

The decision as to assessment will be varied to provide that Mr Temple is entitled to pension at 90% of the General rate from 10 March 1998.
comments on practice of calling two medical witnesses together
The practice of calling two medical expert witnesses together is still unusual within the Tribunal. I consider it appropriate to record how helpful I found it to be and to express the Tribunal's appreciation to the doctors for their cooperation, and to the representatives for their assistance in making the necessary arrangements. I suggest that the approach be adopted more frequently. There is benefit in a more investigative and less adversarial approach. I will ask the District Registrar to send a copy of these Reasons for Decision to Dr Pain and Dr Hart and also to the Chairman of the Repatriation Medical Authority. The Authority should be aware of the comments of Dr Pain and Dr Hart as to the difficulty of applying the definition of asthmatic bronchitis in SoP Instrument No. 73 of 1997.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Chan Wai Heng
  Associate
Date/s of Hearing  30 March and 27 April 2001
Date of Decision  5 June 2001
Counsel for the Applicant        Nil
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Nil
Solicitor for the Respondent    Ms J McCulloch