Thomas and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 514

Thomas and Repatriation Commission (Veterans’ entitlements) [2015] AATA 514 (15 July 2015)

Division	GENERAL DIVISION
File Number(s)	2014/5712
Re	Robert Thomas
APPLICANT
And	Repatriation Commission
RESPONDENT

Decision

Tribunal	Mr S. Webb, Member
Date	15 July 2015
Place	Sydney

The decision under review is affirmed.

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

Mr S. Webb, Member

Catchwords

VETERANS’ ENTITLEMENTS – claim for disability pension – Type 2 Diabetes Mellitus – operational and defence service – Statements of Principles – standards of proof – connection to service not made out – decision affirmed

Legislation

Veterans’ Entitlements Act 1986 ss 9, 70, 120, 120A, 120B

REASONS FOR DECISION

Mr S. Webb, Member

15 July 2015

1. Robert Thomas served in the Royal Australian Navy (RAN). He has a number of war-caused and defence-caused injuries and ailments. He claimed an increase in the rate of his service pension for incapacity on grounds that his Type 2 Diabetes Mellitus is attributable to service. This claim was rejected by primary determination and on review. It is presently the subject of these proceedings.

   Background and preliminary matters

2. Mr Thomas has the following service –

   (a)operational service: 16 March 1970 to 9 October 1970;

   (b)defence service: 7 December 1972 to 7 July 1979 and 20 October 1980 to 30 June 2004;

   (c)RAN service: 8 July 1967 to 7 July 1979 and 20 October 1980 to 30 December 2010.

3. I was informed that Mr Thomas presses his Type 2 Diabetes Mellitus claim in respect of his defence service, alone. He accepts that there is no reasonable hypothesis connecting his Type 2 Diabetes with his operational service. This is consistent with the materials before me, and I will proceed on that basis.

4. Mr Thomas made a claim in respect of his Type 2 Diabetes on 5 July 2013.[1] There is no dispute that Mr Thomas suffers from Type 2 Diabetes Mellitus. This is consistent with the present materials – the diagnosis is established on the evidence of Dr Riddle[2] and Dr Hardy.[3]

   [1] T5.

   [2] T5 folio 91.

   [3] T7 folio 110.

5. In respect of clinical onset of his Type 2 Diabetes Mellitus, in the claim, Mr Thomas reported that he first became aware of symptoms in approximately “5/2012”.[4] His oral evidence is that he did not notice any signs or symptoms, and he only became aware of the disease following a periodic blood test. There is no direct evidence of a test of this kind in 2011 or 2012, as he alleges.

   [4] T5 folio 81.

6. Nevertheless, the report of Helen Devitt, a dietician, on 1 August 2012[5] and the letter from Diabetes Australia to Mr Thomas, dated 11 July 2012,[6] refer to the existence of Diabetes at those times. Mr Thomas’ service records show that he had elevated fasting glucose levels over several years, at least from 2007.[7] His discharge medical records, dated 6 December 2010, report complicated obesity in 2010 and –

   He has been noted to have elevated fasting glucose since 2007, most recent level 7.9 mmol/L.

   This notwithstanding he has had two OGTTs which have not met the criteria for IGT or T2DM, the most recent being 5 July 2010.[8]

   [5] Exhibit 2.

   [6] T5 folio 90.

   [7] See T3 folios 41 and 42, for example.

   [8] T3 folio 25.

7. On this evidence, it is probable that clinical onset of the disease occurred after discharge in December 2010 and before 11 July 2012. Whether this occurred in 2011, as Mr Thomas alleged at hearing, or in May 2012, as he reported in his claim, is not clear on the present materials. For present purposes, I will proceed on the information set out in his claim - clinical onset of Mr Thomas’ Type 2 Diabetes Mellitus occurred in or about May 2012.

8. There is also no dispute that Mr Thomas has been overweight for many years. His service documents record that –

   (a)on 22 April 1976, he was 177 centimetres tall and weighed 76 kilograms (a body mass index (BMI) of 24.28);[9]

   [9] T3 folio 75.

   (b)on 8 May 1979, he was 177 centimetres tall and weighed 83 kilograms (a body mass index (BMI) of 26.5);[10]

   [10] T3 folio 72.

   (c)on 24 July 1980, he was 175 centimetres tall and weighed 76.5 kilograms (a body mass index (BMI) of 24.68);[11]

   [11] T3 folio 71.

   (d)on 9 April 1981, he was 175 centimetres tall and weighed 76.5 kilograms (a body mass index (BMI) of 24.68);[12]

   [12] T3 folio 70.

   (e)on 7 April 1985, he was 175 centimetres tall and weighed 88.1 kilograms (a body mass index (BMI) of 27.8);[13]

   (f)thereafter his weight and BMI have been at levels above those recorded on 7 April 1985;

   (g)on 18 December 1998, his weight was 95 kilograms and his BMI was 29.98;[14]

   (h)on 16 June 2000, his weight was 97 kilograms and his BMI was 29;[15]

   (i)following a posting to the Marshall Islands which ended on 18 December 2002, in or about 2003, his weight was 102 kilograms and his BMI was 32.9 (I note that his height was then recorded to be 178 centimetres);[16]

   (j)on 24 January 2004 and 17 March 2005, his weight was 105.5 kilograms and his BMI was 33.5 or 33.6;[17]

   (k)on 26 September 2005, his weight was 106 kilograms and his BMI was 34;[18]

   (l)on 28 March and 9 May 2007, his weight was 108 kilograms and his BMI was 34;[19]

   (m)on 22 August 2007, his weight was 98 kilograms and his BMI was  30.9;[20]

   (n)on 6 December 2010, his BMI was recorded to be 34.1.[21]

   [13] T3 folio 69.

   [14] T5 folio 104.

   [15] T5 folio 103.

   [16] T 5 folio 102.

   [17] T3 folio 61 and T5 folio 101.

   [18] T3 folio 52.

   [19] T5 folios 96 and 97.

   [20] T3 folio 40.

   [21] T3 folio 25.

   The issues

9. The issue to be determined is whether Mr Thomas is entitled to an increase in the rate of pension for incapacity pursuant to his claim in respect of Type 2 Diabetes Mellitus. For his claim to be made out, it must be established that the disease arose out of, or is attributable to his defence service.

10. This must be determined by applying relevant provisions of the Veterans’ Entitlements Act 1986 (the Act), particularly s 70. Under s 120(4), the ‘reasonable satisfaction’ standard of proof applies. Reasonable satisfaction is to be assessed by reference to relevant Statements of Principles - s 120B.

11. In pressing his claim, Mr Thomas says that his Type 2 Diabetes Mellitus is connected with his defence service in the following ways – he was overweight for at least five years and he was unable to undertake physical activity greater than three ‘METs’ for at least 10 years before clinical onset of the disease as a result of the conditions and circumstances of his work and the effects of these on his lifestyle, including not being able to exercise following service-related physical injuries.

12. The Repatriation Medical Authority has determined Statements of Principles (SOPs) in respect of Diabetes Mellitus. In respect of defence service, SOP No 89 of 2014 amending SOP No 90 of 2011 applies.

13. I note in passing that Mr Thomas may have an accrued right to have his claim assessed under SOP No 90 of 2011, prior to amendment by SOP No 89 of 2014. But this was not pressed and, in the circumstances of his case, on the present materials, there is no better result he can obtain under the earlier SOP – the amendments are not directly relevant to his case.

14. The SOP sets out the factors that must exist before it can be said that, on the balance of probabilities, Mr Thomas’ Type 2 Diabetes Mellitus is connected with the circumstances of his defence service.

15. Considering the various factors in cl 6 of the SOP, only those set out in cl 6(b)(i) and (ii) are presently relevant. The materials before me do no raise any other connective factors under the SOP.

16. The relevant factors are –

    6(b)(i) being overweight for a period of at least five years before the clinical onset of diabetes mellitus;

    6(b)(ii) an inability to undertake any physical activity greater than three METs for at least the ten years before the clinical onset of diabetes mellitus.

17. I will address each factor.

    Being overweight

18. The term ‘being overweight’ is defined under cl 9 of the SOP to mean, in part, a BMI of 25 or greater.

19. Mr Thomas has met this definition from April 1985.

20. The substantive issue remaining is whether the fact of ‘being overweight’ for at least five years before clinical onset of the disease in or about May 2012 arose out of or is attributable to and is ‘connected with’ the circumstances of Mr Thomas’ defence service.

21. Mr Thomas attributes being overweight from 2007 to 2012 to three service-related circumstances. Firstly, he says that the pressures of work were such that he could not exercise. Secondly, he says that he was required to travel interstate and overseas on a regular or frequent basis and this affected his diet and his exercise options. Thirdly, he maintains that his ability to exercise was impeded by service-related physical injuries, affecting his back and his lower limbs.

22. These are not made out on the present evidence.

23. For Mr Thomas’ Type 2 Diabetes Mellitus to be ‘defence-caused’ under s 70(5) of the Act, it must be found to have arisen out of or be attributable to the circumstances of his ‘defence service’.

24. As I have said, the period of Mr Thomas’ ‘defence service’ came to an end on 30 June 2004, even though he has RAN service until 30 December 2010.

25. I accept that Mr Thomas experienced pressure in his RAN work when posted to Sydney from January 2003 – he was in charge of two sections, one in Sydney with one subordinate and the other in Canberra with up to 10 subordinates. By his own account, when in Sydney where he resided throughout this period of his service, he commonly worked from 0700 to 1600 hours. He used public transport to travel to and from work, commonly arriving home at 1700 or 1730 hours. He told me that he would walk daily for half an hour or so, around the suburbs when living in Cabarita, or around the bay and the park when residing in Drummoyne.

26. This evidence does not support the proposition that pressure of work was an impediment to Mr Thomas exercising while he was in Sydney.

27. The report of Moira Mehigan, a dietician, on 22 August 2007,[22] that Mr Thomas “Lost 10kg since last visit 4 months ago… will ↑ walking to lose the next 4kg as wt appears to have reached a “plateau” supports this conclusion.

    [22] T3 folio 40.

28. To my mind, the evidence suggests that it was a matter of choice for Mr Thomas whether or not he chose to walk after work on any given day during the period of his RAN service while he was in Sydney from 2007 to 2010.

29. As to the alleged deleterious effects of travel on Mr Thomas’ diet and his ability to exercise, his evidence is that he was required to travel to Canberra on a weekly or fortnightly basis for two or three days at a time, and also that he was required to travel to Adelaide four to six times annually, to Perth twice annually, and overseas to attend conferences a couple of times each year for up to 10 days.

30. On trips to Canberra, being the most frequent, Mr Thomas told me that he commonly stayed in a motel in Queanbeyan. He did not cook meals at the motel, but would eat out, commonly having breakfast at Hungry Jacks or McDonalds on the way to work, buying lunch at a corner café (commonly a hot roast beef roll), and having a pub dinner (commonly a cook-your-own steak with salad and chips) at a pub, or a pizza, or a Chinese meal at the local Bowling Club. He told me that he commonly worked from 0700 to 1700 or 1900 hours when in Canberra, and that he could take a walk after work in the summer months but not in winter as it was too dark. Sometimes, at lunch time, he would walk in “the pines” close to where he worked.

31. Mr Thomas made much of the difficulty of changing from a suit or his uniform in order to exercise while away from his Sydney home. He told me that he preferred not to check in bags at the airport, restricting himself to carry-on luggage, and for this reason it was not practical for him to carry clothes or shoes in which to exercise.

32. His evidence is that the motel where he commonly stayed did not have a gym or a pool. He explained that he could not use local gym or pool facilities because it was too late on finishing work and all he wanted to do was to have a meal and return to the motel to sleep.

33. To my mind, this evidence simply describes a process of choice and decision-making by Mr Thomas for his own reasons, according to his own preferences and habits. The present evidence does not establish that his work was so intensely pressured that he was unable to take the time to exercise, or that by being away from home in Canberra, Adelaide, Perth or at an overseas conference, he could not find healthy food to eat in accordance with the advice he was given by dieticians he consulted.

34. As to the proposition that Mr Thomas was unable to exercise because of the effects of earlier physical injuries to his back and lower limbs, this too, is not made out on the present evidence. There is no controversy about the fact of Mr Thomas having service-related musculoskeletal injuries. At hearing, being mindful of the requirement to test each link in a claimed chain of causation, SOP by SOP, the respondent conceded that there is no dispute that Mr Thomas has musculoskeletal injuries for which liability has been accepted, and the causal connections between those injuries and the circumstances of his service are consistent with the applicable SOPs.

35. I have briefly had regard to SOP No 63 of 2014 concerning Lumbar Spondylosis, SOP No 14 of 2010 as amended by SOP No 36 of 2011 concerning Osteoarthritis, and SOP No 106 of 2007 concerning Shin Splints. I accept that the Respondent’s concession is well made on the present materials.

36. The difficulty for Mr Thomas, however, is that the alleged injury-related impediments to him exercising during the period of his defence service and from 2007 to 2012 are not supported by medical or other evidence. These matters and the existence of symptoms in his back and lower limbs are not apparent in medical and dietician’s reports that can be found in his service records during this period. If he was troubled in the manner for which he presently contends, such that his ability to exercise was impeded, it is reasonable to expect this would have been raised with dieticians and others who were advising him about managing his weight. But no issues of this kind appear in the contemporaneous documents and records.

37. On balance, and in fairness to Mr Thomas, I think it can be accepted that his accepted injuries may have troubled him from time to time, but I do not accept that they prevented him from swimming, as he did when on posting in the Marshall Islands, or taking a walk when he was away from home in Sydney where, by his own account, he was doing so on a daily basis.

38. As to Mr Thomas’ assertions about his diet while on posting to the Marshall Islands from 2000 to 2002, I accept that he gained weight during this posting. But the evidence does not establish any causal link between the circumstances of his service and this occurrence – he was able to shop for fresh food on a weekly basis and his diet was different, and better, than that of local Marshall Islanders for this reason. Even though it may have been difficult to obtain certain food items from time to time, such as lettuces for example, it does not follow that Mr Thomas’ weight gain during this period is attributable to his service. The document in Exhibit 1 does not point to a different conclusion.

39. Furthermore, the materials before me do not establish a causal link between Mr Thomas’ weight gain on posting to the Marshall Islands with him subsequently being overweight from 2007 to 2012. No causal connection between him being overweight from 2007 to 2012 and the circumstances of his defence service is made out.

40. In sum on this point, the present evidence does not establish that Mr Thomas ‘being overweight’ for the five years before clinical onset of his Type 2 Diabetes Mellitus was connected in a causal manner to the circumstances of his defence service. I am reasonably satisfied that the requisite causal connection is not made out.

    Inability to undertake physical activity greater than three METs

41. In respect of the second factor on which Mr Thomas relies, at cl 6(b)(ii) of the Diabetes Mellitus SOP, a 10 year period before clinical onset of his Type 2 Diabetes mellitus must be considered, that is, from May 2002 to May 2012.

42. In addition to the points already addressed, Mr Thomas says that he was not able to exercise while on posting to the Marshall Islands until December 2002. The reason for this, on his account, is that there was only one road, and that road was bounded by houses backing onto a lagoon on one side and the sea on the other, leaving nowhere to walk but the road itself. This, he says, was too dangerous as there was a good deal of traffic, it being the only road. He told me that he could not walk briskly on a beach without encountering rugged coral outcrops.

43. When closely examined on this point, Mr Thomas conceded that he may be able to walk around the building where he worked, but this, he said, was not possible because it was either too hot or too wet. Furthermore, as there was no shower where he worked, it was not feasible to exercise during work hours, which were generally from 0800 to 1700 hours. He accepted, however, that there was time for him to exercise after work, once he could return to his abode and change out of his uniform.

44. Mr Thomas conceded that the Marshall Islands, being surrounded by sea and located just north of the Equator, was a great place for swimming and diving. He told me that he undertook these activities, swimming once each week and diving once per month or so.

45. The test to be applied is whether Mr Thomas suffered an ‘inability to undertake any physical activity greater than three METs’ during the 10 years prior to clinical onset of his Type 2 Diabetes Mellitus. The term ‘MET’ is defined in cl 9 of the SOP to mean a unit of measurement of the level of physical exertion. The definition is technical and it does not readily translate into the kinds of daily activities a person such as Mr Thomas might undertake. Nonetheless, the MET unit of measure is one that is in common use. It is used, for example, in the Commission’s Guide to Determining Impairment and Compensation (GARP M). Examples are set out in Table 1.1, Chapter 1 of Part A of that Guide (the GARP M Table), which is in Annexure A to this decision.

46. In relation to the Marshall Island posting, only part of that period is presently relevant – from May 2002 to December 2002, when the posting came to an end.

47. On Mr Thomas’ evidence he was not unable to undertake any physical activity greater than three METs over the relevant 10 year period. But he told me that he was able to swim and dive (at least four to five METs on the GARP M Table) on posting in the Marshall Islands and, to my mind, he was also able to take a walk at an average pace (three to four METs on the GARP M Table) if he chose to do so, joining the locals walking on the road, or walking around the building and wharf area where he worked.

48. On posting to Sydney, with related trips to Canberra, Adelaide and Perth, and to overseas conferences, I am reasonably satisfied that Mr Thomas was able to undertake walks at an average pace, or to swim in a local pool if he so chose, even though his ability to jog or to play active sport may have been reduced, as he contends. His submissions about pressures of time and constraints of travel do not account for choices that he made for his own reasons. I am not persuaded that he was compelled to make those choices about exercise and diet by the circumstances of his defence service.

49. On the present materials, I am not able to find that his earlier service-related physical injuries were an active impediment to him exercising or undertaking physical activities greater than three METs – his own evidence stands to the contrary.

50. I note that Mr Thomas made much of his own evidence about walking between the Queen Victoria Building and Garden Island facilities in Sydney, which he assessed as less than three METs. The test to be applied concerns ‘inability’ to undertake ‘any physical activity’ greater than three METs. Even if what he says about walking to and from Garden Island when he worked there is correct, it does not mean that he was unable to undertake any other activity greater than three METs. Clearly by his own account he could – he could swim, for example. And gentle swimming is rated under the GARP M Table as four to five METs. I am not persuaded that the circumstances of his service at the time impeded or prevented him from doing so – it was simply a matter of choice, albeit in a busy work schedule.

1. The present evidence does not establish that Mr Thomas had an inability to undertake any physical activity greater than 3 METs during the 10 years prior to clinical onset of his Type 2 Diabetes Mellitus. Even if his ability to undertake physical activities was impaired to that extent (and I make no such finding), the present evidence does not establish a causal link between an impairment of that kind and the circumstances of Mr Thomas’ defence service.

   Conclusion

2. Considering these matters and the present materials, I am reasonably satisfied that factors 6(b)(i) and (ii) of the Diabetes Mellitus SOP are not made out. As no other factor in that SOP is applicable, the template of the SOP is not met.

3. That being so, applying s 120B(3) of the Act, I must not find and it is not proved that Mr Thomas’ Type 2 Diabetes Mellitus arose out of or is attributable to his defence service for the purposes of s 70 of the Act.

   Decision

4. The decision under review is affirmed.

I certify that the preceding 54 (fifty four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

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

Associate

Dated 15 July 2015

Date(s) of hearing

Applicant

25 June 2015

In person

Advocates for the Respondent

Department of Veterans' Affairs

ANNEXURE A

TABLE 1.1

CARDIORESPIRATORY IMPAIRMENT: ACTIVITY LEVELS
(with energy expenditure in METs)

1-2 METs

Energy expended at rest or minimal activity

· Lying down.

· Sitting and drinking tea.

· Using sewing machine (electric).

· Sitting down.

· Sitting and talking on telephone.

· Travelling in car as passenger.

· Standing.

· Sitting and knitting.

· Playing cards.

· Strolling (slowly).

· Light sweeping.

     · Clerical work (desk work only).

2–3 METs

Energy expanded in dressing, washing and performing light household duties

· Light household duties.

· Walking slowly (3.5 km/h).

· Playing piano, violin, or organ.

· Typing.

· Cooking or preparing meals.

· Playing billiards.

· Clerical work which involves moving around.

· Setting table.

· Driving power boat.

· Washing dishes.

· Playing golf (with power buggy).

· Bench assembly work (seated).

· Dressing, showering.

· Horseback riding at walk.

· Using self-propelled mower.

· Light tidying, dusting.

· Lawn bowls.

· Polishing silver.

· Driving car.

3–4 METs

Energy expended in walking at an average pace

· Walking at average walking pace (5 km/h).

· Golf (pulling buggy).

· Machine assembly.

· Cleaning car (excludes vigorous polishing).

· Minor car repairs.

· Tidying house.

· Welding.

· Cleaning windows.

· Table tennis.

· Pushing light power mower over flat suburban lawn at slow steady pace

· Vacuuming.

· Sedate cycling (10 km/h)

· Shifting chairs.

· Light gardening (weeding and water).

· Hanging out washing.

     · Making bed.

4–5 METs

Moderate activity: encompasses more strenuous daily activities with the exclusion of manual labour and vigorous exercise

· Mopping floors.

· Golf (carrying bag).

· Light carpentry (eg, chiselling, hammering).

· Scrubbing floors.

· Ballroom dancing.

· Beating carpets.

· Tennis doubles (social, non-competitive).

· Stocking shelves with light objects.

· Polishing furniture.

· Wallpapering.

· Shopping and carrying groceries (10 kg).

· Gentle swimming.

· Painting outside of house.

· Hoeing (soft soil).

     · Stacking firewood.

5–6 METs

Heavy exercise: manual labour or vigorous sports

· Walking 6.5 km/h (sustained brisk walk, discomfort in talking at the same time).

· Walking slowly but steadily up stairs.

· Carpentry (eg. Sawing and planing with hand tools).

· Swimming laps (non-competitive).

· Pushing a full wheelbarrow (20 kg).

· Shovelling dirt (12 throws a minute).

     · Digging in garden.

6–7 METs

     · Badminton (competitive)

· Tennis (singles, non-competitive).

· Water skiing.

· Loading truck with bricks.

     · Using a pick and shovel to dig trenches.

7–8 METs

Very heavy exercise

· Jogging (8 km/h).

· Horseback riding (galloping).

· Carrying heavy objects (30 kg) on level ground.

     · Sawing hardwood with hand tools.

8–9 METs

· Running (9 km/h).

· Skiing (cross-country.

· Chopping hardwood.

· Callisthenics.

· Squash (non competitive).

10+ METs

· Running quickly (10 km/h).

· Cycling quickly (25 km/h).

· Carrying loads (10 kg) up a gradient.

· Football (any code).

The activities listed under each heading are examples. There will be other activities that have the same METs expenditure and hence can be used for reference if their METs level is known.