Townsend and Repatriation Commission

[2004] AATA 588

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 588

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2003/252

VETERANS' APPEALS  DIVISION		)
Re		WILLIAM PETER TOWNSEND

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Murray Allen, Member

Date9 June 2004

PlacePerth

Decision The decision of the Veterans’ Review Board of 22 May 2003, which affirmed the decision made on 2 May 2002 by a delegate of the respondent, that the applicant’s localised osteoarthrosis is not related to service, is affirmed.

...............(sgd M Allen)........................

Member

CATCHWORDS

Veterans’ Affairs – benefits and entitlements – disability pension – osteoarthrosis of left knee – whether disease caused by war service – whether factors in Statement of Principle made out – date of clinical onset of condition – clinical onset of condition more than 25 years after completion of Army service – any disordered joint mechanics due to congenital abnormality – no permanent ligamentous instability – decision affirmed

Veterans’ Entitlement Act, 1986 ss 13, 120, 196B

Statement of Principle Instrument 82 of 2001 cl. 4,5,6

Repatriation Commission v Smith (1987) 15 FCR 327

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

9 June 2004 Mr Murray Allen, Member  

1.      This is an application by Mr William Townsend (“the applicant”) for review of a decision made by the Veterans’ Review Board on 22 May 2003, which affirmed a decision made by a delegate of the respondent on 2 May 2002, that the applicant’s localised osteoarthrosis of the left knee is not related to service.

2. At the hearing of the matter the applicant was represented by his advocate, Mr Young, and the respondent was represented by Mr Ponnuthurai, an officer of the Department of Veterans’ Affairs. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act, 1975 (T1 – T36) and oral evidence was given by the applicant.

Background

3.      The applicant served in the Australian Army from March 1942 until he was discharged as medically unfit in February 1944.  After his discharge the applicant returned to his pre-enlistment employment as an electrician and worked in the electrical industry in various capacities until his retirement at the age of 68 in 1991.

4.      During the 1990s the applicant had a number of disabilities accepted as caused by his Army service including lumbar spondylosis, cervical spondylosis, osteoarthrosis of the right knee, bilateral sensorineural hearing loss, and macular degeneration affecting both eyes.  By 1997 he was in receipt of a disability pension with the extreme disability allowance and in 2002 he began to receive the blinded rate of disability pension.

5.      The applicant’s claim in relation to osteoarthrosis of the right knee was made in 1995 on the basis of trauma to that knee suffered during his service.  That claim was originally rejected by a delegate of the respondent but was accepted in September 1996 on internal review.

6.      In August 1997 the applicant lodged a claim for osteoarthrosis of the left knee based on a provisional diagnosis by his general practitioner (Dr Glazov) that he had a mild condition.  That claim was rejected in January 1998 and the applicant lodged an appeal in relation to that decision.  However, before the appeal could be heard the applicant was successful in relation to other matters concerning his disability pension and the appeal never proceeded.  In August 2001 the applicant lodged a new application in respect of osteoarthrosis of the left knee, which led to the rejection decision of May 2002.

7.      It is not in dispute between the parties that the applicant presently does suffer from osteoarthrosis in the left knee.

Statutory Framework

8. Section 13(1) of the Veterans’ Entitlements Act 1986 (“the Act”) relevantly provides that the Commonwealth is liable to pay a pension to a veteran where the veteran has become incapacitated from a war caused injury or disease.

9. Because the applicant’s service was not operational service the standard of proof applicable in the case is prescribed by s 120(4) of the Act, namely to the Tribunal’s reasonable satisfaction. That equates to the civil standard of proof, namely proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

10. Neither party bears any onus of proof in relation to the matter (s 120(6)) but s 120B of the Act provides that the Tribunal will not be reasonably satisfied that a particular injury or disease was war caused unless the material before the Tribunal, which raises the connection between the injury or disease and the relevant service, conforms to a Statement of Principles determined under s 196B(2). In the present case the Statement of Principles relating to osteoarthrosis that was applicable both at the time of the original decision and at the time of the Tribunal’s consideration of the case is Instrument No. 82 of 2001 (“the SoP”).

11.     Clause 4 of the SoP requires that at least one of the factors set out in clause 5 of the SoP must be related to any relevant service rendered by the veteran.  The factors set out in clause 5 that may be of relevance in the present case are as follows:

“5.The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis … is connected with the circumstances of a person’s relevant service are:

…

(d)     for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint; or

….

(g)  suffering from permanent ligamentous instability of the affected joint before the clinical onset of osteoarthrosis in that joint; or

…

(h)suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or

…

(j)for osteoarthrosis of a hip or knee joint lifting loads of at least 35 kg while weight bearing to a cumulative total of 168,000  kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity; or

…

(k)for osteoarthrosis of a knee joint, kneeling or squatting for at least one hour each day on more days than not for at least two years before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity; or

…”

12.     Clause 5 also contains factors (p) to (zb) which, pursuant to Clause 6 of the SoP, apply only to “… material contribution to, or aggravation of, osteoarthrosis where the person’s osteoarthrosis was suffered or contracted before or during (but not arising out of) the person’s relevant service.”   Factor 5(s) is the comparable provision to factor 5(d) and is in the same terms except that it refers to “clinical worsening” rather than “clinical onset”.

Consideration

13.     As noted above, it was not in dispute between the parties that the applicant presently suffers from osteoarthrosis and, on the medical evidence before me, I find that that is the case.  Having reached that conclusion I need to consider whether one or more of the factors set out in clause 5 are related to the applicant’s relevant service.  I note that in the original decision made by the delegate in May 2002 (T2)  specific reference was made to factors 5(d), 5(g), 5(h), 5(j) and 5(k), none of which was considered to be satisfied.  In its decision (T35) the VRB addressed factors 5(d), 5(h), 5(j) and 5(k) but made no reference to factor 5(g).  The VRB also referred to factors 5(p) to 5(zd) but concluded that none of those factors were satisfied in this case because the onset of the applicant’s osteoarthrosis in the left knee was in 1996 and could not, therefore, have been suffered or contracted before or during (but not arising out of) the applicant’s service.

14.     In a Statement of Facts and Contentions filed on behalf of the applicant  it was contended that factors 5(g), 5(h) and 5(j) were applicable.  A revised Statement of Facts and Contentions filed subsequently on behalf of the applicant referred only to factor 5(d).  At the hearing Mr Young for the applicant, contended that factors 5(d) and 5(g) were applicable.  He did not contend that 5(s) was applicable but he was not prepared to concede that it was not.

15.     I will deal first with the question of the date of clinical onset of the applicant’s osteoarthrosis of the left knee.  The clinical onset of a disease occurs “ … either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at the time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …. “: see Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484 at para [13] and Re Robertson and Repatriation Commission (1998) 50 ALD 668.

16.     In a medical history taken from and signed by the applicant in March 1942 (T documents pages 12 and 13) it was noted that the applicant had been rejected as unfit for service by the Royal Australian Air Force in February 1992 because of synovitis of the right knee and the medical examiner noted that the applicant stood “with pelvis tilted”.   The history also recorded a kidney disease.

17.     The applicant in his oral evidence disputed that he had ever had a kidney disease and stated that he had in fact been passed as medically fit A1 for admission to the RAAF Reserve.

18.     Immediately prior to his discharge from the Army the applicant was the subject of a medical board of enquiry in December 1943.  The record of that Board is at T documents pages 12 – 15.  The applicant is recorded as having complained of pain in the back and right sacroiliac region for 3 months and that he had had the pain on and off previously but not sufficiently to worry.  However, the pain got worse on working.  On examination he was found to have lumbar lordosis and scoliosis convex to the left.  It was noted that his right leg was 1½ inches longer than his left leg.  An x-ray taken at the time revealed structural weakness of the right sacroiliac joint but no radiological abnormality was detected in either hip joint.  The applicant was assessed as having a congenital abnormality of the lumbar sacral vertebrae and this had been contributed to to a material degree or aggravated by his war service.  The aggravation was expected to cease when he returned to his civilian occupation.  On the basis of those findings the applicant was discharged as medically unfit.

19.     In 1993 the applicant was assessed for the purposes of his claim for osteoarthrosis of the right knee and lumbar spondylosis.  The examination form completed by a Dr Yerra in February 1993 referred to “episodic pain in the right knee, no or minor restriction of the joint, no known injury and symptoms over the years – gradually getting worse”.  Handwritten notes made by Dr Yerra at the time (T documents page 43) referred to the right knee, but also included a notation “slight limp to right” and a tick next to the words “left knee”.

20.     In December 1994 Dr Woodland, an orthopaedic surgeon, reported on the applicant in relation to his neck and lumbar back pain.  Dr Woodland recorded a history of a number of accidents and other incidents involving the applicant during his Army service and recorded that some years after leaving the Army (possibly two or three years), the applicant noticed increasing neck pain when working.  Dr Woodland recorded the left leg being 3 centimetres shorter than the right.  Dr Woodland confirmed that x-rays taken in 1994 confirmed a congenital anomaly and observed that:  “Regarding the shortening of the left leg, this was not caused by his service years, rather it is a congenital condition.  It has been a contributing factor I feel in that it would have aggravated his lumbar back pain due to tilting of the lumbar spine.”

21.     In October 1995 the applicant saw Dr Peter Anderson, a surgeon, in relation to his claim for osteoarthrosis of the right knee, which at that time had been rejected by the respondent.  Dr Anderson recorded a history of various incidents that involved trauma to the right knee in his Army years and expressed the opinion that the repetitive incidents of minor trauma to the right knee justified a diagnosis of osteoarthritis.  At the same time Dr Glazov reported that the applicant had described multiple episodes of trauma to the neck and the right knee during his Army service period but no particular injury which immobilised him for long periods.  Dr Glazov reported that the applicant’s right knee had been sore since his war service days.

22.     In a statutory declaration made in November of 1995 the applicant described a number of occasions when he had injured his right knee and neck whilst in the Army.  He also said that two or three years after his Army discharge he had started to have headaches and pain in his neck, shoulders and right knee and that the pains had gradually increased over the years.  In September 1996 Dr Glazov reported that the applicant had aches across the lower back and right knee pain.  The right knee was said to have lost a quarter of its normal range of movement and there was some anterior cruciate laxity.  No reference was made to the left knee.

23.     In August 1997 when the applicant claimed for osteoarthrosis of the left knee, he said in the claim form that the left knee had “over recent years … gradually become worse, probably caused by the problem I have with my right knee” and that he had been favouring his right knee and causing his left knee to carry the bulk of his weight.  Dr Glazov said in the form that the date of onset of the left knee condition was “? About 1994”.

24.     In November 1997 Dr Glazov reported that the right knee had lost a quarter of its normal range of movement but that the left knee had “no or minor loss”. 

25.     When the applicant renewed his claim for osteoarthrosis in August 2001 he said that his left knee had been aggravated by having to take his weight because of the arthrosis in the right knee and that he had first become aware of the disability or aggravation of the disability in 1997.

26.     In April 2002 the applicant again saw Dr Anderson in relation to his spinal and knee problems.  In relation to the left knee, Dr Anderson reported that the ligament system was stable and the patello-femoral joint did not reveal any significant clinical abnormal features.  However, an x-ray revealed evidence of a calcified body in the lateral compartment of the knee.  Dr Anderson recorded that the applicant had osteoarthrosis in both the right and left knees, and that there was “a strong probability that the left knee was damaged at the same time as the right knee was damaged as both knee joints show the presence of established osteoarthrosis of moderate proportions, which is compatible with his military service.  It is noted that there is no significant geno-varum or valgus deformity in the knees resulting in a major instability through that cause.”  Dr Anderson noted that the applicant “seems to stand with his right knee slightly flexed at approximately 5 degrees.” 

27.     In May 2002 Dr Anderson expressed the view that the applicant’s condition of the left knee resembled that of the right, indicating that it was associated with active service.  Dr Anderson also reported that “one factor, which has been omitted from this man’s left leg, is that it is 3 centimetres shorter than the right.  This may be a cause of arthritis in the left knee (Factor 5(s))”.

28.     The applicant’s oral evidence was that as a child and young man he had always been physically active, playing many sports and walking long distances, including caddying at a golf course, some of it for medical practitioners.  There had never been any sign of a limp or other indication of unequal leg length.  During his Army service he had been involved in a number of falls and other situations where he had damaged his back and shoulders and knees.  He said that his left knee had been sore after 1942 due to an accumulation of events in the Army but it had never been as bad as his right knee.  When he had returned to his civilian employment the pain in his left knee had got worse.

29.     When he had been first referred to the Department of Veterans’ Affairs in 1993 his left knee was not really a feature of his problems at that time, although it had always been sore.  During the years that he had worked his left knee had got worse, particularly when he had been doing electrical line work which involved a lot of ladder work.  Both legs had been sore and he had eventually gone to the management of the company that he worked for to say that he could no longer do that kind of work.  Thereafter he had worked as a sales engineer or sales representative and had spent most of his time in the office.

30.     The applicant has, quite rightly, over the years exercised his right to claim in respect of disabilities caused by his Army service.  It is significant, in my opinion, that no reference was made to the left knee during the 1990s, when the applicant was claiming in respect of other conditions, until 1997.  I conclude that the tick placed by Dr Yerra in 1993 besides the words “left knee” indicate that Dr Yerra found no abnormality or problem with that knee at that time and the absence of any other reference to the left knee indicates that the applicant did not complain of any problems with it to Dr Yerra.  In 1997 Dr Glazov said that the onset of the condition was about 1994.   In his renewed application in August 2001 the applicant indicated that he became aware of the left knee problem in 1997. 

31.     The applicant gave oral evidence that he had a limp on his discharge from the army that had not been there on enlistment – and that the limp has been present ever since.  On balance I do not accept that evidence because of the absence of any indication in the medical evidence (apart from Dr Yerra’s note of a “slight limp to right” in 1993) of the existence of a limp.  Had any significant limp been present during the 1990s I would have expected one or more of the other doctors who examined the applicant to have commented on that fact.

32.     It may well be the case that the applicant’s left knee was subject to knocks or other injuries during his war service but, on the evidence before me, I conclude that the clinical onset of the osteoarthrosis in his left knee was no earlier than 1994 and may have been closer to 1997.  Having made that finding, it is apparent that the factors 5(h), 5(j) and 5(k) cannot be found to be established in the applicant’s favour.  Even if the left knee had suffered a trauma of the type contemplated by the SoP, or the applicant had lifted loads of the requisite weight, or knelt or squatted for the requisite periods of time during his Army service, all of those events must have occurred more than 25 years before the clinical onset of the osteoarthrosis. 

33.     In relation to factor 5(d) the applicant must be able to establish “disordered joint mechanics” affecting the left knee that can be related to his Army service.  Clause 8 of the SoP defines that term as meaning:

“maldistribution of loading forces on that joint resulting from:

(a)a rotation or angulation deformity of the long bones of the affected limb;

(b)a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb;

(c)necrosis of bone near the affected joint;

(d)amputation involving either leg; or

(e)permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology”.

34.     Only factors (a), (b) and (e) were identified by Mr Young as possibly applicable.  On enlistment the note made was that the applicant stood with pelvis tilted, although by the end of 1943 the x-ray examination showed no radiological abnormality in either hip joint but did note a congenital abnormality of the lumbar sacral vertebrae.  The difference in leg length was noted in 1943 and Dr Woodland expressed the opinion in 1994 that this was a congenital abnormality.  Dr Yerra noted a slight limp to the right in 1993 but, in my opinion, signified (by a tick) that the left knee was normal.  Despite the applicant’s oral evidence that he had always had a limp since leaving the Army, there is no further reference in any of the medical evidence before me that the applicant had a limp at other times.

35.     On the balance of probabilities I am satisfied that if there was any rotation or angulation deformity of the long bones of the applicant’s left leg or of the left knee, or any permanent limp of either leg, then it was due to the congenital abnormality of the right leg being longer than the left.  Accordingly, I am not satisfied to the requisite standard that factor 5(d) has been made out.

36.     In relation to factor 5(g) I must be satisfied that the applicant suffered from “permanent ligamentous instability” of the left knee.  That phrase is defined in clause 8 of the SoP as meaning “continuing or recurring abnormal mobility and instability of a joint which is characterised by the regular recurrence of episodes of pain and/or swelling of that joint”.

37.     As noted above, in 1993 Dr Yarra indicated that the left knee was normal.  The next medical evidence concerning the left knee was Dr Glazov’s report of November 1997 when he reported that the applicant’s right knee had lost a quarter of the normal range of movement but the left knee had no or minor loss.  In April 2002 Dr Anderson reported that the ligament system of the left knee was stable although there was a calcified body that might have been located in the cruciate ligament system.  There is no evidence from doctors or the applicant of regular episodes of pain and/or swelling of the left knee.

38.     Given my conclusion that the clinical onset of the applicant’s osteoarthrosis of the left knee was between 1994 and 1997, on the balance of probabilities I find that the applicant had no permanent ligamentous instability of the left knee before the clinical onset.  Accordingly, factor 5(g) of the SoP is not satisfied.

39.     In relation to factor 5(s), I have noted above that clause 6 of the SoP provides that this factor will apply only where the osteoarthrosis was suffered or contracted before or during (but not arising out of) the person’s relevant service.  In this respect I can only agree with the conclusion of the VRB that the onset of the applicant’s osteoarthrosis in the left knee was many years (in excess of 50) after the conclusion of his Army service.  Accordingly, I am satisfied that factor 5(s) is not satisfied in this case.

40.     For the reasons set out above I conclude that none of the factors contained in clause 5 of the SoP are satisfied and, accordingly, it cannot be said that on the balance of probabilities that the applicant’s osteoarthrosis of the left knee is connected with the circumstances of his Army service.  I therefore affirm the decision under review.

I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Murray Allen, Member

Signed:         ................(sgd V Wong)...............................
  Associate

Date/s of Hearing  9 February 2004
Date of Decision  9 June 2004
Counsel for the Applicant         Mr G Young
Counsel for the Respondent     Mr C Ponnuthurai