Trevillian and Repatriation Commission - [2001] AATA 1020

DECISION AND REASONS FOR DECISION [2001] AATA 1020

ADMINISTRATIVE APPEALS TRIBUNAL)      Nº V2000/393
VETERANS'     APPEALS       DIVISION)
  Re:          LAURENCE TREVILLIAN
  Applicant

And:
REPATRIATION COMMISSION
Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             14 December 2001
Place:            Melbourne

Decision:The decision under review, namely a decision of the Veterans' Review Board dated 29 February 2000, is varied by the finding that the applicant's asthma is war-caused within the meaning of s9 of the Act with effect from 19 August 1998. In all other respects the decision under review is affirmed.

(sgd) M.J.Carstairs
Member
VETERANS' DIVISION – disability pension - eligible service – asthma- whether aggravation of an existing condition – changes in Statement of Principles - depressive disorder - whether disease or injury within the meaning of the Act

Veterans' Entitlements Act 1986 ss 5(D), 9, 120(4), 120B(3), 196B(14), 120

Repatriation Commission v Budworth [2001] FCA 1421…
Re Grace and Repatriation Commission [2000]AATA 711
Re Bye and Repatriation Commission (1986) 11 ALN N276
Keeley and Repatriation Commission [1999] FCA 1103
Repatriation Commission v Gorton [2001] FCA 1194

REASONS FOR DECISION

14 December 2001 M.J. Carstairs, Member

This is an application by Laurence Trevillian (the applicant) for review of a decision made by the Veterans' Review Board (VRB) on 29 February 2000, affirming a decision of the Repatriation Commission (the respondent), that the applicant's conditions of macular degeneration, depressive disorder, asthma and localised osteoarthritis of the left knee, right ankle, right knee, and right foot were not war-caused.
At the hearing Mr D De Marchi, Solicitor represented the applicant and Mr G Purcell, of Counsel, represented the respondent.
The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits for the applicant (Exhibits A-B) and exhibits for the respondent (Exhibits 1-3). The Tribunal heard oral evidence from the applicant, and from Drs Kenny, Cole and Pain.
BACKGROUND
The applicant, who is seventy-nine years old, was born on 18 November 1922. He had service during World War II in the Australian Army in the period 25 February 1943 to 16 January 1946. His service is eligible service as it was service within Australia. The applicant served in Queensland for eighteen months, then on Thursday Island and in Darwin immediately prior to the end of the war. His posting during service was to the Australian Port Operations Company. His duties involved welding and maintenance at ports and wharves. After the war he joined the Railways and continued as a welder.
On 19 November 1998 the applicant lodged a claim for various medical conditions. On 20 January 1999 a delegate of the respondent made a decision accepting the claimed conditions of tinea and localised osteoarthritis of the left foot and ankle. The delegate made a decision that the appropriate rate of assessment for these conditions was 40% of the general rate of pension. The applicant sought review of the decision, and on 29 February 2000 the VRB decided that the respondent's decisions to reject the claims for depressive disorder, macular degeneration, asthma, and osteoarthritis of the knees, right ankle and foot were correct. The VRB also affirmed the decision assessing the rate of pension at 40%.
The applicant appealed to the Tribunal on 4 April 2000. In the hearing Mr de Marchi indicated that the claims for macular degeneration, and for localised osteoarthritis of both knees, right ankle and foot were not being pursued. Mr de Marchi also indicated that no increase of rate beyond 40% was being sought.
EVIDENCE
In a statement dated 13 August 2001 (Exhibit A), the applicant set out that during the war he was stationed at Thursday Island with 2/2 Port Maintenance Unit attached to 8th Australian Docks. His duties were general dock maintenance. He said that he was stricken with dengue fever and hospitalised for two weeks on Thursday Island and this was followed by a three-month convalescence. He said that his unit Lieutenant had ordered him to go to the beach and recuperate after his discharge from hospital. He did so for a few weeks and then was on light duties for many weeks. He said in his statement "I recall that I was pretty depressed when I came out of hospital". In his statement he said that he remained "anxious and depressed" during service and also after the war when he went to work for the Railways. He also had an injury to his foot and was on crutches for four to six months when he was stationed at Ballarat in 1943. He suffered from pain in his foot and said he received no analgesics for it at the time.
The applicant said that the dengue fever caused him to lose considerable weight. At the time he believed that he would die. He said that after coming out of hospital he did not feel up to working but after the suggested rest on the beach his concentration and strength returned. He acknowledged in cross-examination that when he did return to work he was able to carry out his duties effectively.
However, the applicant said he was "very depressed" after suffering the illness, and felt less able to tackle work and army life after it than before. He said that he considers that he remained a tense person from that time and he was reserved and socially withdrawn. He said that he had no treatment for depression until after his retirement from work when he suffered the first of two major incidents of depression.
The applicant said that his duties during the war involved electric welding using a petrol engine mounted on a trailer. He used various electrodes with flux covering for different metals. He found he would inhale fumes during welding which caused him to wheeze. He said the fumes would enter underneath the protective headgear and could not be avoided. He described the wheezing as worsened if a lot of welding was being done. The wheezing he said lasted for a couple of days up to a week. He recalled having the same wheeziness before service:
"But I've always had it. I had it when I was in the army anyhow. I can remember that I had it before then. Even as a young bloke under 20 pretty well".
He said also that he suffered hay fever. He did not seek treatment for hay fever nor for any respiratory condition on service. He said that he continued as a boilermaker and welder after he left the army. He said that even now, though retired, he suffers from wheeziness.
The applicant said that after his discharge he was diagnosed as having asthma. He confirmed that he had said to Dr Cole that he thought that he had developed bronchial asthma about 18 months after service. He said that when he was formally diagnosed, the symptoms that he was having were similar to those that he had experienced when he was welding during his service. He acknowledged in cross-examination that he had not mentioned this to doctors previously.
Dr M. Pain, Director of Thoracic Medicine at Royal Melbourne Hospital, referred to a report he had prepared (T26) dated 6 December 1999. In it he said that the applicant had told him he thought the onset of asthma was 18 months after service. Dr Pain said that chronic exposure to irritants to the bronchial tree, such as welding fumes, would produce asthma in those with a predisposition to it. In the report he ruled out attributing the applicant's asthma to service as the Statement of Principles (SoP) to which he was referring (No 60 of 1996) required that the onset of asthma be on service. Hence when the applicant told him that the onset was 18 months after service, Dr Pain concluded that the SoP could not be applied.
Dr Pain was asked to comment about the evidence given by the applicant at the hearing that he had suffered from rasping and wheezing after carrying out welding duties on service. Dr Pain said that he believed that the applicant had an asthmatic predisposition as he suffered from hayfever prior to joining the army. Dr Pain said that the wheezing the applicant experienced was associated with decline in pulmonary function and that lung function testing at the time would have demonstrated a bronchial hyper-reactivity, which is an abnormal state. He said that if there were symptoms of a wheezy and raspy cough coming and going that this is consistent with asthma and can indicate its early stages:
Some people complain of those symptoms in the initial stages of asthma it is true.
He said that if the applicant had given him that history, when he examined him, he would have reached a different conclusion from that reached in his written report. He said that occupation as a welder was an important factor in the development of the applicant's asthma and his continuation of that occupation after his service was aggravating to the condition.
Dr Pain said that while the applicant may have only been diagnosed as having asthma some 18 months after service this did not preclude asthma being present earlier. Whilst he acknowledged that people can develop antigen sensitivity to welding fluxes, which are the substances used to promote the fusing of metals in the welding process, he saw the fumes as being of more concern than the fluxes for the welding population. He said however that he had no way of knowing whether the applicant had any sensitivity to welding fluxes.
In cross-examination Dr Pain was taken to that part of his report which stated "Mr Trevillian probably had some asthmatic predisposition before joining the army". He confirmed that this remained his view. He said that people with allergic rhinitis or hay fever have a predisposition to developing asthma. He confirmed that the hayfever does not initiate the asthma, it suggests a predisposition.
It was Dr Pain's view that the applicant came within Factor 5(b) of the SoP for asthma as set out in Instrument No 60 0f 1996, namely that the factor connecting asthma to his service was "being exposed to antigenic or nonantigenic stimuli within the 24 hours immediately before the clinical worsening of asthma". He stated that it was his view that the non-antigenic stimuli in this case were inhaled irritants of welding fumes, particularly the nitrogen dioxide and other gases such as ozone produced in the welding process. He said these are well recognised as irritants and he had "no doubt" that welding fumes on service were a factor contributing to the applicant's asthma. Dr Pain considered that there was a "clinical worsening of asthma" in the applicant's case (referring to the SoP No 60 of 1996) because the applicant evidenced permanent decline in pulmonary or other organ function due to asthma. He also said that the wheeziness and rasping symptoms of which the applicant spoke could be indicative of clinical onset:
So although here is no measurement at that time I think that what we have got is an aggravation or a development of an abnormal state as a result of the onset of the illness.
Dr E Cole, a consultant psychiatrist, gave evidence that the applicant had told him that he almost died with dengue fever whilst on service. Dr Cole said that the applicant did not give to him a clear history of depression except for the two severe depressive episodes, which occurred later in life, which Dr Cole did not see as related to service. He did consider that the applicant had experienced a stressor (being a major illness) within one year immediately before the clinical onset of a depressive disorder. He said that, if it was accepted that the applicant had a depressive disorder on service, it could be related to factors 5(c) 5(d) or 5(e) of the SoP for depressive disorder. He was referring to Instrument No 59 of 1998, which provides respectively for "having a major illness within a year before the clinical onset of depressive disorder'; " suffering from chronic pain of at least 6 months duration at the time of the clinical onset of depressive disorder" and "experiencing a severe psychological stressor within one year before the clinical worsening of depressive disorder."
Dr Cole considered that there was a mild generalised anxiety disorder. He said that a reasonable assumption could be made that the applicant suffered anxiety as a result of his dengue fever, given that he thought that he would die at the time.
Dr B Kenny, consultant psychiatrist, had prepared a report dated 26 February 2001. His report recorded that the applicant had two major episodes of what Dr Kenny considered to be endogenous depression in the previous 15 years, and these had no connection with the applicant's service. He said that it was not uncommon for depression to occur for no apparent reason and this was so with the applicant's depression. When he saw him the applicant had recovered and was no longer depressed but still on medication.
Dr Kenny noted the episode of dengue fever when the applicant was fearful of dying. He said that it is a debilitating condition; and where people have conditions where they remain physically unwell, it may incline them to depression. In his oral evidence he said that there was no evidence that this was so in the applicant's case. He considered that the applicant had no psychiatric disturbance associated with his military service.
Dr Kenny said that he was not convinced that any disturbance the applicant felt at the time of suffering dengue fever was more than the natural reaction to the debilitating condition. While he said he would not have been surprised for a person to develop depressive condition or an adjustment disorder as a result of such illness, he was not able to get from the applicant any clear description of anxiety on service. Dr Kenny said that it was speculation whether the applicant was depressed or anxious at the time, or was merely debilitated and having a quite normal reaction of feeling anxious about his health. He said that he was unable to say the applicant had anything at the time that could be called an anxiety disorder, or a depressive disorder, after the dengue fever. Dr Kenny said:
This comes back to what we regard as a disorder versus a normal reaction to adverse circumstances. You see every time one experiences adverse circumstance one will surely have a lowering of mood, a sense of anxiety, a sense of frustration and is likely to feel depressed and miserable. But when and where we decide that that is a disorder is a very real problem and DSM IV itself in its introduction makes that point, that the problem is trying to define the distinction between a normal and natural and virtually inevitable reaction to circumstances and an illness or disorder is very real problem…there is no clear and concise measure of when my anxiety in response to a certain situation becomes an anxiety disorder. But I come back to the view that if you have a serious and debilitating illness where you are at risk of dying you will naturally and inevitably have anxiety, fear, you might be terrified, and that is not an illness.
Dr N.R Rose, psychiatrist, reported (T20) that while the applicant presented to him in January 1999 as a rather tense man he did not feel that a mental status examination revealed any significant abnormalities. He summarised as follows:
Mr Trevillian has had two episodes of major depressive disorder in late life. Both of these episodes appear to have come out of the blue with no relationship to environmental or other stresses. I have no doubt that his depression is of constitutional origin. I have not filled out the Veterans' Psychiatric Impairment Assessment Form since no psychiatric impairment exists. Now that Mr Trevillian has responded well to medication for his depression, he is symptom-free. In any case there has never been any war related psychiatric illness.

CONSIDERATION OF THE ISSUES

At the hearing the parties agreed that the SoP to be applied for asthma was Instrument No 60 of 1996 (as amended by Instrument No 76 of 1997). After the matter was heard the Repatriation Medical Authority issued a further SoP for asthma, under 196B(3) of the Veterans Entitlements Act 1986 (the Act), and revoked Instrument No 60 of 1996, effective from 28 November 2001. The relevant SoP to be applied, following Repatriation Commission v Gorton [2001] FCA 1194 is the more recent Instrument, No 86 of 2001. The parties were requested to make additional submissions about the application of the new Instrument. The respondent, in additional submissions lodged on 4 December 2001, submitted that applying Gorton the Tribunal must apply any relevant SoP in force at the time of its decision.
The SoP defines asthma and sets out the factors that must as a minimum exist before it can be said, on the balance of probabilities, that asthma is connected with the circumstances of a person's service. Re Grace and Repatriation Commission [2000] AATA 711 establishes that the relationship to service must be one set out in s196B(14) of the Act, which mirror provisions found in ss8, 9, and 70 of the Act.
There is no dispute between the parties that the applicant suffers from asthma and the Tribunal accepts this diagnosis The factors in the SoP, that must exist on the balance of probabilities, before it can be said that asthma is connected to a person's relevant service (insofar as raised in this case) are:
5 (a)for the first episode of asthma only, being exposed to an occupational antigen within the 24 hours before the clinical onset of asthma; or
5 (b)for the first episode of asthma only, being exposed to an antigenic stimulus causing asthma within the 24 hours before the clinical onset of asthma; or
5 (d)being exposed to an antigenic stimulus or nonantigenic stimulus within the 24 hours before the clinical worsening of asthma;
Factor 5(b) is a new provision not found in the previous Instrument. Mr De Marchi submitted that, in all probability, the applicant was exposed to antigenic stimuli. Instrument No 86 of 2001 defines an 'antigenic stimulus' as
any substance which is capable of inducing a specific immune response and of reacting with the products of that response, that is, with specific antibody or specifically sensitised T-lymphocytes. Antigens may be soluble substances such as toxins and foreign proteins, or particulate such as bacteria and tissue cells

and goes on to define 'antigenic stimulus causing asthma' as an antigenic substance which has been reported in a peer reviewed medical or scientific publication to precipitate the onset of asthma after exposure. Mr Purcell submitted that there was no evidence before the Tribunal of this and that factor 5(b) in Instrument 86 was not raised.

In regard to factors 5(a) and 5(d), Mr De Marchi submitted there was uncontested evidence from Dr Pain that, if it was accepted that the veteran had wheeziness and raspy breathing occasioned by welding on service, an aggravation of an underlying asthmatic trait was occurring when the applicant was welding on service. Mr De Marchi submitted that in the SoP the factors that were met in the applicant's case were 5(a) and 5(d). In regard to factor 5(a) Mr DeMarchi submitted that the fluxes used in welding were occupational antigens. In his additional submission lodged on 5 December 2001, Mr De Marchi submitted that the applicant was probably suffering from asthma when treated in hospital for an upper respiratory tract infection in July 1995. The Tribunal does not accept that submission, as the record of that treatment, the document at T4 pp27-28, is a hospital record of another veteran, not the applicant.
Mr Purcell submitted that it could not be the case that factors 5(a) and 5(b) both applied, and that on the evidence of Dr Pain the only relevant exposure was to non-antigenic stimuli, being the ozone and nitrous dioxide in the welding process. In additional submissions, dated 4 December 2001, he submitted that that there was no evidence to support the contention that the fluxes to which the applicant was exposed in electric welding were amongst the occupational antigens identified in either of the SoP's for asthma. He submitted that Dr Pain's evidence was clear on this. In Mr Purcell's submission, the only evidence was of exposure to non-antigenic stimuli and he referred to the definitions of occupational antigen within the Instruments.

He submitted that to accept that there was a clinical worsening of asthma, there must be some evidence of clinical onset on service. He pointed to the fact that there was no respiratory difficulty reported or treated on service and he submitted that the evidence that the applicant gave at the hearing was at best ambiguous. On Mr Purcell's submission, the requirements for the factors that must exist, on the balance of probabilities, to relate asthma to service within the SoP were not met.
In reaching its decision in regard to asthma the Tribunal takes into account the written and oral evidence and submissions. The standard of proof in cases where the applicant has eligible, as opposed to operational, service is prescribed by s120 (4), as affected by s120B of the Act. Section 120(4) requires the Tribunal to determine, to its reasonable satisfaction, whether the injury or disease is war- caused. Where there is a SoP in place, the Tribunal must first determine whether the material raises a connection between the injury or disease and service. For claims after 1 June 1994, s120B(3) requires that there be material that raises the connection between injury and service and that a SoP upholds the contention raised, on the balance of probabilities.
The main contention raised is that the circumstances of the applicant's service as a welder, either caused asthma, or aggravated a pre-existing condition. The SoP sets out that factors 5(d) to 5(f) only apply where the person's asthma was suffered or contracted before or during (but not arising out of) the person's relevant service. The Tribunal does not accept the respondent's submission that for the clinical worsening of asthma there must be clinical onset on service. The plain words of the SoP provide otherwise, as does s9(1)(e)(ii) of the Act.
On the basis of the applicant's evidence that he had wheeziness prior to service the Tribunal accepts and finds that the applicant suffered from asthma prior to service.The Tribunal accepts that welding fumes on service aggravated his wheeziness and that this was symptomatic of asthma. The Tribunal also accepts the evidence of Dr Pain that welding fumes are recognised irritants and are non-antigenic stimuli as contemplated in the SoP. The Tribunal accepts the evidence of Dr Pain that welding aggravated an existing condition of asthma. One of the elements that must be present to connect asthma with service requires that there be a "clinical worsening of asthma', which is defined within the SoP. The more recent SoP replaces the definition that was present in Instrument No 60 of 1996. Dr Pain gave the evidence before the Tribunal on this point. In addressing the definition in the then applicable Instrument, which required for "clinical worsening of asthma":
evidence of

at least one severe episode eg status asthmaticus
permanent decline in pulmonary or other organ function due to asthma…
mortality from asthma

Dr Pain said he believed that the applicant would have evidenced the second of these, as wheezing would have been associated with a decline of pulmonary function and lung function testing at that time would have demonstrated bronchial hyper-reactivity (para 15 above). The Tribunal is satisfied on the applicant's evidence that he suffered wheezing when inhaling the fumes while welding, and that therefore the decline in pulmonary function was within the "24 hours immediately" after exposure as is required in Instrument No 60 of 1996. Factor 5(d) of the more recent Instrument requires it within 24 hours. The Tribunal is unable to find on the evidence before it, however, that the applicant would meet the definition of "clinical worsening of asthma" in the new Instrument, as the provision for 'permanent decline in pulmonary function' no longer appears in these terms in Instrument 86. However, applying Gorton, an applicant may avail themselves of accrued rights to have their matter determined under earlier SoP's applying during the time of their claim and review. In the applicant's case, all of the elements of factor 5(b) of Instrument No 60 of 1996 are met and the Tribunal is satisfied that the applicant was exposed to non-antigenic stimuli within the 24 hours immediately before the clinical worsening of asthma.

For these reasons, the Tribunal finds that applicant's asthma, present before service, was an injury or disease that was aggravated by his war service and is therefore a war -caused disease within the meaning of the s9(1)(e)(ii) Act.
In regard to the claimed condition of depressive disorder the Act defines "disease" in s5D(1) as:
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).
The section excludes temporary departures from the "normal physiological state".
The Tribunal in Re Bye and Repatriation Commission (1986) 11 ALN N276 found that an illness or medical condition cannot be the subject of an application under the VEA until it is isolated, identified and named. If an illness or medical condition is not found to exist or it cannot be diagnosed an applicant cannot establish eligibility. The question of whether a disease is present is a matter to be decided on the balance of probabilities. In Repatriation Commission v Budworth [2001] FCA 42, the Full Court of the Federal Court held that the decision-maker has to identify the collection of relevant symptoms which constitute the diseases and must decide to the standard of reasonable satisfaction whether there is a disease as claimed.
In the course of the hearing the matters raised extended beyond merely a depressive condition as had been identified as the claimed condition before the VRB. The possible conditions raised in the course of the hearing were depressive disorder, anxiety disorder and adjustment disorder.
Mr De Marchi submitted that there were three possible SoP's that may be applicable. He submitted, while acknowledging that there were some difficulties with the medical evidence, that the applicant may have had a depressive disorder that fell within 'depression not otherwise specified' in Instrument No 59 of 1998 after suffering the bout the dengue fever. He submitted, in the alternative, that the SoP for Anxiety Disorder due to a General Medical Condition (Instrument No 381 of 1995) was open to the Tribunal, and that it was met on the balance of probabilities. In his submission, the applicant suffered from a general medical condition prior to the onset of anxiety disorder either on the basis of the dengue fever or the broken foot.
Mr Purcell's submission was that the applicant does not suffer from any psychiatric disorder. He submitted that this was confirmed by Dr Cole's evidence that he could not readily fit the applicant's symptoms into the diagnostic criteria in the SoP for "anxiety disorder due to a general medical condition". Mr Purcell submitted that the evidence of Dr Kenny was to be preferred. He submitted that Dr Kenny stressed that symptoms of a life-threatening illness may be similar to those of depression and anxiety disorder but this does not allow the conclusion to be drawn that the applicant had an anxiety disorder or a depressive disorder.
Having taken into account the medical evidence, the Tribunal is not reasonably satisfied that the claimed condition of depressive disorder or any psychiatric disturbance, however described, is made out. The Tribunal is mindful that the applicant suffered two major depressive incidents in later life in the mid 1980's and in 1999. Mr de Marchi submitted that there is a link between these and a likely depression suffered after the dengue fever. However the medical evidence does not suggest that is so. Dr Rose reported in 1999 (T20) that with each depressive incident that was "no real reason" for it:
"Both of these episodes appear to have come out of the blue with no relationship to environmental or other stresses. I have no doubt his depression is of constitutional origin. …In any case there has never been any war related psychiatric illness".

Dr Cole (Exhibit B) said of the two major depressive disorders that these often come on for no apparent reason. He "doubted" if they could be related to the applicant's wartime service. Dr Kenny gave the opinion that "not uncommonly depressive episodes occur out of the blue and that's certainly the case with this man".

While Dr Cole makes reference to possibility that the applicant may have been depressed being disabled with his injury to his right foot, he merely raises it as a possibility. There is no evidence that the applicant had any depressive disorder at all, apart from the late onset major depressions, which no medical practitioner connects with service. Dr Cole states that while it might be said that he suffered from chronic pain of at least six months duration at the time of the clinical onset of depressive disorder as a result of injury to his right foot, the applicant acknowledged to Dr Cole that the pain in his foot did not trouble him and Dr Cole considered it would not meet the requirement of chronic pain set out within the SoP.
The Tribunal, on the basis of all the medical evidence and the evidence of the applicant, is reasonably satisfied that in regard to the claim for depressive disorder there is no disease or injury established.
DECISION
The decision under review, namely a decision of the Veterans' Review Board dated 29 February 2000 is varied by the finding that the applicant's asthma is war-caused within the meaning of s9 of the Act with effect from 19 August 1998. In all other respects the decision under review is affirmed.
I certify that the forty five (45) preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         Rhona Hammond
  Personal Assistant
Date/s of Hearing  28 August 2001 and 11 December 2001
Date of Decision  14 December 2001
Solicitor for the Applicant         Mr D De Marchi
Counsel for the Respondent    Mr G Purcell