Wickham and Repatriation Commission
[2004] AATA 422
•29 April 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 422
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/564
VETERANS' APPEALS DIVISION )
Re ROGER WICKHAM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr IR Way, Member Date29 April 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................(Sgd).....................
IR Way
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – entitlement – Paget’s disease – the applicant was not subject to an inability to obtain clinical management of the disease during his relevant service - disease was not contributed to in a material degree or aggravated by his service -– reasonable hypothesis cannot be established connecting disease to war service
Veterans’ Entitlements Act 1986 ss 9, 120, 120A, 196A, 196B
Repatriation Commission v Wellington [1999] 57 ALD 507
Repatriation Commission v Wedekind [2000] FCA 649
O’Brien and Repatriation Commission [2003] AATA 525
Repatriation Commission v Deledio (1998) 83 FCR 82REASONS FOR DECISION
29 April 2004 Mr IR Way, Member 1. This is an application by Roger Wickham for review of a decision of the Repatriation Commission, dated 22 November 2001, that the applicant does not suffer from war caused Paget’s disease of bone within the meaning of section 9 of the Veterans’ Entitlements Act1986 (“the Act”). This decision was affirmed by the Veterans’ Review Board (“the VRB”) on 14 February 2003.
2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative of Appeals Tribunal Act 1975 (T1-T6) and other documentary evidence as follow:
Exhibit A1Applicant’s two responses to the respondent’s Statement of Facts and Contentions dated 13 February and 24 February 2004
Exhibit A2Letters from Dr John Fraser dated 2 July 1997 and 9 July 1997
Exhibit A3Letter from Dr Michael Gallagher dated 16 November 1979
Exhibit A4Report of Dr Grant dated12 August 2003
Exhibit R1Report of Dr DA Perry-Keene dated 8 December 2003 in answer to questions from Dr Grant in his letter dated 12 August 2003
Exhibit R2X-ray report of lumbar spine/left shoulder dated 15 January 1971
Exhibit R3X-ray report of lumbar spine dated 25 January 1971
3. The applicant was self-represented and gave oral evidence. The respondent was represented by Mr B Williams, Department Advocate.
4. The applicant was born on 15 June 1941 and served in the Australian Regular Army from 11 July 1962 to 1 September 1970. Included in this service are periods of operational service in Malaysia from 23 April 1966 to 13 August 1966 and in Vietnam from 29 March 1966 to 9 April 1966 and 11 July 1969 to 9 July 1970.
5. The applicant’s accepted service related disabilities are lumbar disc degeneration, post traumatic stress disorder, phychoactive substance abuse or dependence, bilateral sensorineural hearing loss with tinnitus and chronic bronchitis and emphysema.
6. His non service related disabilities are healed dislocation acromio-clavicular left, refractive error, pterygia, conjunctivitis, bilateral inguinal herniae and Paget’s disease of bone.
7. The applicant has put forward two hypotheses.
8. In respect of the first hypothesis, the applicant contends that he had Paget’s disease in 1967, evidence by the bowing in his left leg (and lower back pain), and that the disease was not diagnosed at the time. The applicant contends that had Paget’s disease being diagnosed in 1967 then it would have been accepted as war caused.
9. The applicant’s second hypothesis is that he suffered Paget’s disease in 1967; that the disease was not diagnosed at the time; that he was sent back to Vietnam in 1969/1970; and that this was unlikely to have happened had his Paget’s disease been diagnosed. The applicant contended that there was no known cause of Paget’s disease and at the time no known effective clinical management of the disease. As such it was the applicant’s contention that there was an inability to obtain appropriate clinical management of his condition.
Legislative Framework
10. The relevant provisions of the Act are as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;”
11. The relevant provisions of the Act relating to the appropriate standard of proof are as follows:
“120 Standard of proof
(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.
…
(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.
120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
12. Section 196A of the Act provides for the established of the Repatriation Medical Authority (“RMA”) and section 196B sets out the functions of the RMA. Section 196B(2) provides:
“If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
13. There is no dispute between the parties and the Tribunal accepts that the relevant Statement of Principles (“SoP”) in this matter is Instrument Number 15 of 1996 – Paget’s Disease of Bone.
Applicant’s Evidence and Submissions
14. The applicant told the Tribunal that he was currently on the special rate of pension and had a gold card. However he spent approximately one half of each year in the USA and his concern was that he was not covered by DVA for treatment of Paget’s disease while he was overseas.
15. It was the applicant’s evidence that he graduated from OCS Portsea in June 1963, was allotted to the Infantry Corps and served as an infantry officer in Malaysia. And subsequently in Vietnam as an infantry officer and at a later time as an Intelligence Corps officer.
16. It was the applicant’s evidence that he was wounded in Vietnam (while attached to US forces in the Da Nang area) in April 1966 and that:
(a)He developed a painful lower back in mid 1966 following an injury he suffered on exiting a helicopter while taking part in operation Casino Royale in Sarawak; and
(b)He badly lacerated his left leg while serving in Terendak in Malaysia in August 1967, as a result of which he spent 15 days in the military hospital and has permanent scarring of his left leg.
17. The applicant told the Tribunal that he resigned from the Army in 1970 at which time he was having marital problems and that “Vietnam was the last straw”.
18. The applicant said that he had noticed the bowing and what appeared to be distortion in his left leg at the time of the injury to this leg in August 1967 and it was his evidence that the bowing of his left leg was the same today as it was in 1967. He said there was now bowing in his right leg, but he had not noticed this until Dr Fraser pointed this out to him in 1997. He said that lumbar disc degeneration was accepted in 1971. However, it became apparent, in 2001, that the cause of his back pain was Paget’s disease and that the earlier diagnosis of lumbar disc degeneration was a misdiagnosis and that had Paget’s disease been diagnosed in 1967 it would have been accepted as war caused.
19. The applicant highlighted the bad scarring of his left leg, as a result of the accident in 1967 and that this masked the bowing in his left leg at that time and subsequently, such that no doctor had detected the bowing until Dr Fraser did in 1997.
20. The applicant in his written statements, drew attention to the respondent’s statement of facts and contentions where the respondent states “there is specialist medical opinion that the left tibia bowing is sufficient to confirm a diagnosis of Paget’s disease of bone at that time” and set out his contentions in respect of his first hypothesis as follows (Exhibit A1):
“14. We now know that the cause of the back pain I have is Paget’s Disease of Bone. This is the same back pain I had in 1967, except more constant. The Commission now accepts that I had Paget’s Disease of Bone in 1967. So there is now no dispute that the cause of the back pain in 1967 was Paget’s Disease of Bone and all those diagnoses suggesting other causes, were wrong.
15. The back pain I had in 1971 is the same back pain I had in 1967, so Paget’s Disease of Bone was the cause of the back pain in 1971.
16. The cause of the back pain was accepted in 1971 as a war-caused disability. We now know the cause was Paget’s Disease of Bone but at that time, the cause was thought to be Lumbar Disc Degeneration and as the list above clearly demonstrates, it was only an educated guess. Nonetheless, it was a guess, not because there was no way of diagnosing or confirming the problem but because critical physical sign was not noticed or not recognised for what it was and what it represented. This failure was confirmed by Dr Perry-Keene in his December 2003 report.
17. Had Paget’s Disease of Bone been diagnosed correctly as the source of the back pain in 1966 and 1967 in Borneo and Malaysia, or in a parachuting medical in 1968, or in a pre-embarkation medical in 1969 or in my discharge medical in 1970, as it should have been on each of those occasions, it would have been accepted in 1971 as a war-caused disease and Lumbar Disc Degeneration could have been accepted as a war-caused disability in its own right. While I personally believe these diagnostic failures were inexcusable, it is a case of better late than never.
18. Paget’s Disease of Bone was accepted de facto as a war-caused disease in 1971, under an incorrect label. It is therefore not subject to an SoP, in this case Instrument 15 of 1996, because the disease was accepted, albeit incorrectly as Lumbar Disc Degeneration, 23 years before the existence of the Repatriation Medical Authority and Statements of Principle.”
21. With respect to his second hypothesis, the applicant, in his very detailed written submission, contended in effect, that he should not have been subjected to a second tour in Vietnam where the environment could aggravate and/or accelerate his condition, where he was unable to seek treatment to alleviate pain from Paget’s disease because he never knew at the time that he had the disease, and where, because of his condition and possible associated symptoms, he was at serious risk to himself or also unwittingly could be a serious risk to his equally unwitting brothers in arms.
22. With respect to diagnosis of his Paget’s disease, the applicant said he had seen a number of doctors, including orthopaedic specialists, during his service and had undergone a number of rigorous Army medical examinations, particularly prior to enlistment, prior to undertaking a parachute course, prior to going to Malaysia and Vietnam and on discharge, and he expressed concern that in none of these examinations was his condition picked up, as it should have been. And he said that this situation continued until Dr Fraser examined him in 1997.
Medical Evidence
23. Dr D Perry-Keene, Endocrinologist, first saw the applicant in July 2001, on referral from the applicant’s GP, Dr I Marshall, and again in November 2001 and October 2003. Dr Perry-Keene provided a written report dated 31 July 2001 (T4/11-12), a report 8 December 2003 (Exhibit R1) and gave oral evidence.
24. Dr Perry-Keene confirmed the applicant suffered from Paget’s disease and opined that there was radiological confirmation of the disease in 1975. And based on the applicant’s own evidence there was a clinical suggestion of its presence in 1967. In his report of 8 December 2003 (Exhibit R1), he said that the applicant had never been remarkably symptomatic and reported:
“The back injury recognised following a helicopter accident August, 1966 lead [sic] to lumbar spine x-ray. I have not been able to view those x-rays but note a hand-written comment reviewing those x-rays at the time of review following the left leg laceration injury, the medical note dated 26/10/67.
‘Review x-rays; - defect inferior aspect front of L2, slight lipping L4. I favour old Scheuermann’s as the aetiology.’
No mention is made in this note of the presence of Paget’s disease of bone. However, later x-rays in 1997 show the lumbar spine to be quite diffusely sclerotic, and depending on the quality of the x-rays in 1967 that may well not have been noticed.
In the letter of Dr John Fraser to Dr Ian Marshall, dated 2/7/97, is recorded his recollection of seeing x-rays of Mr Wickham’s spine in the mid-1970’s (I understand it was about 1975). At that time sclerosis of vertebrae was noted and attributed, I believe incorrectly, to osteopetrosis, which is a genetic disorder of bone.
I have not had the opportunity to view those x-rays. That suggested diagnosis was reiterated in a report by Dr Michael Gallagher dated 16/11/79.
X-rays from July, 1997 (copies of reports enclosed) confirm the presence of typical Paget’s disease of both tibiae and the widespread sclerotic changes in thoracic and lumbar vertebrae.
…
The diagnosis of Paget’s disease of bone is firmly established by x-ray, isotope bone scan, and biochemistry with elevated alkaline phosphatase of the order of 343 U/L.
The isotope bone scar of July, 2001 indicates widespread Paget’s disease involving skull, right scapula, pelvis, both humeri, both femora and both tibiae, more extensively throughout the whole bone on the left and the upper 2/3rds of the right tibia. On that scan the extent of involvement of the spine was less remarkable.
…
Mr Roger Wickham has extensive Paget’s disease of bone, first recorded on x-rays in about 1975, although there seems little doubt that it was present well before that time with comment on bowing of the tibia in 1967.”
25. When questioned about a diagnosis of the applicant’s Paget’s disease in 1967, Dr Perry-Keene said that medical officers could be forgiven for missing the diagnosis, there being only symptoms related to his back and left leg, explicable by the helicopter accident and the leg laceration. Furthermore, there was nothing in x-rays taken at the time to alert doctors to Paget’s disease in the spine or elsewhere. Dr Perry-Keene also said that it was very possible that the applicant’s Paget’s disease could have been diagnosed or at least thought of as a possibility during the period if he had been properly assessed in a full medical examination. Dr Perry-Keene said that if Paget’s disease of bone had been diagnosed in 1967 he would be surprised that this did not preclude the veteran from being sent to Vietnam, his left tibia being more susceptible to fracture because of the disease.
26. When taken to reports of x-rays of the applicant’s lumbosacral spine left shoulder and lumbar spine taken in 1971, Dr Perry-Keene said that the provisional radiological diagnosis made no reference to Schonberg’s disease or Paget’s disease and if there had been evidence of these he would expect, on balance, there would be comment to that effect in the reports. He added further that the quality of the x-rays could be a significant factor. The Tribunal notes that the lumbar spine x-ray was a repeat x-ray, the previous x-ray lateral being unsatisfactory. Dr Perry-Keene stated that radiologically there is confirmation of the applicant’s suffering Paget’s disease in the mid 1970s. However at the time this was attributed to osteopetrosis rather than Paget’s disease of bone.
27. With respect to treatment available in the 1960s and early 1970s, Dr Perry-Keene said that there was really no effective treatment, the only treatment being the use of analgesics for pain, orthopaedic repair of fractures or bowing if indicated and “a pat on the back” and telling the patient that he or she would be alright and that it was not a sinister or life threatening condition. He told the Tribunal that it was not until the mid 1970s and subsequently that treatments were introduced that could relieve pain and prevent or reduce progress and indeed lead to remission of Paget’s disease. He indicated that calcitonin was first available in Australia in 1976, salmon calcitonin and human synthetic calcitonin being listed for use later and the more effective oral bisphosphonates being introduced from 1996.
28. The Tribunal notes that Dr Perry-Keene, in July 2001, records the applicant’s back pain being not sufficient to require him to take analgesics but he did prescribe Risedronate (Actonal) medication.
29. With respect to progression of the Paget’s disease, Dr Perry-Keene agreed with Dr Grant and said he would expect the condition to become more clinically evident over time and said that it was infrequently recognised by age 26, although it does occur in younger people particularly if there is a strong family history or genetic component to the condition. He said there was no recognised family history of Paget’s disease of bone in Mr Wickham’s case.
30. He said if a patient had a bowed tibia at age 27, one would have to consider other diagnosis such as juvenile Paget’s disease but this condition affects all bones and this was not the case here. When it was put to Dr Perry-Keene that the applicant’s evidence is that the bowing of his tibia is the same today as it was in 1967, he said this would indicate that the disease was complete at the earlier time. However, he said it was a complex situation.
31. The Tribunal notes that x-ray reports of the applicant’s spine and left shoulder taken in February 1971, showed the shoulder joint to be clear and some evidence (at C3-4) consistent with degenerative spondylosis and (at L2) consistent with disc degeneration. The Tribunal notes that there is no suggestion in these reports of Paget’s disease of bone.
32. The Tribunal also notes that the applicant underwent a number of medical examinations (and x-rays of his back) during his service and that Paget’s disease of bone is not referred to in any of the records or reports at that time.
33. Dr Fraser (orthopaedic surgeon) has recalled seeing x-rays of the applicant’s spine in the mid 1970s and the applicant seeing Dr Gallagher (orthopaedic surgeon) at the time, there being agreement of opinion at the time that the applicant was suffering from osteopetrosis. The Tribunal notes that Dr Gallagher actually saw the applicant in 1979 at which time he opined that the applicant suffered from “albers-schonberg’s disease (osteropetrosus)”. Dr Fraser, in his report in July 1997 clearly recognises the applicant as suffering from Paget’s disease of bone and, in a letter to the applicant’s GP on 9 July 1997, opined:
“…he does not need any surgical treatment. I have told him of the nature of his disorder. Simple measures such as the application of heat, simple analgesics, etc might help with his back pain. I do not think he is getting a great deal of pain from the Paget’s disease at the moment, but if this became an issue referral to an endocrinologist might be appropriate. I have not made any further arrangements to see Roger again but would be happy to do so as you require.”
34. Dr P Grant, the Department’s Senior Medical Officer, Compensation, opines:
“(4) The report of Dr Gallagher, Orthopaedic Surgeon, dated 16 November 1979 outlines a lower lumbar spine intervertebral disc lesion as well as what he referred to as Albers-Schonberg disease or osteopetrosis. In my opinion, it is reasonable to accept Dr Fraser’s view that this was in fact an early stage of Paget’s disease affecting the spine.
(5) The changes reported on lumbar x-rays taken on 20 May 1981 (see folio MSS:95) are distinctly different from that reported on 17 February 1971 (see folio MSS:27). The latter describes some irregularity of L2 reported as being probably due to an element of disc encroachment as well as narrowing of the L3-4 disc space. No mention is made of Paget’s disease or osteopetrosis.”
35. The Tribunal is mindful that it is the applicant’s statement that:
“Dr Fraser was also the first to recognise the x-ray evidence as Paget’s Disease of Bone in 1975, before he ever saw my legs but was “outvoted” by his peers in a consensus which settled on a diagnosis of osteopetrosis. In 1979, a pre-eminent Brisbane orthopaedic surgeon Dr Michael Gallagher, also diagnosed osteopetrosis from x-ray evidence. All these diagnoses of osteopetrosis were subsequently proved incorrect in 1997 and confirmed as incorrect in 2001.”
Dr Fraser did not appear before the Tribunal.
Respondent’s Submissions
36. With respect to the sole factor in the relevant SoP, the respondent contends that:
“…the factor is not met, there is no inability to obtain appropriate medical treatment during the relevant periods, either 23 April 1966 to 13 August 1966 or 11 July 1969 to 9 July 1970. The medical opinion whilst confirming clinical presence of the condition of 1967 does not raise, during the relevant periods, the notion of inability to obtain appropriate clinical management since the medical opinion confirms that during the period there were no treatments available.”
37. The respondent also submitted that there is little evidence that raised the notion of acceleration of the condition due to service, although Dr Perry-Keene considered it unlikely that the applicant would be posted to Vietnam, had the condition been diagnosed.
38. With respect to the question of inability to obtain clinical management the respondent referred the Tribunal to the following cases:
“(22) In Repatriation Commission v Wellington1, the Federal Court determined that the issue of clinical management must be judged on clinical treatment available at the time of the condition or injury and not on recent clinical management practices or standards.
1 [(1999) 57 ALD 507
(23) In Repatriation Commission and Wedekind2 the Court at paragraph 12 summarised the approach the tribunal was to take in assessing whether Mr Wekekind’s was unable to obtain appropriate clinical management for his pterygium;
2 [2000] FCA 649 (17 May 2000)
‘… before the AAT could be reasonably satisfied that Mr Wedekind’s pterygium was war-caused, it had to be satisfied that: (a) Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium; the appropriate form of clinical management; whether Mr Wedekind was unable to obtain that form of clinical management; whether that inability related to his service; whether the pterygium was contracted during his service; and whether it was contributed to in a material degree by, or was aggravated by, Mr Wedekind particular service.
…
(25) In O’Brien and Repatriation Commission6 the Deputy President of the Tribunal at paragraph 4 stated the steps when considering the factor for Menieres disease as follows:
6 [2003] AATA 525 (4 June 2003)
‘…The factor that must as a minimum exist in relation to the circumstances of a person’s relevant service causing or materially contributing to or aggravating Meniere’s disease or death from Meniere’s disease is inability to obtain appropriate clinical management for Meniere’s disease.
This means that three conditions all have to be met before pension and medical expenses would be payable to the Applicant for Meniere’s Disease, pursuant to the VE Act.
(a)The condition must have existed during service, and
(b)The Applicant, during service, must have been unable to obtain appropriate clinical management of the condition because of his service, and
(b)The lack of appropriate clinical management must have made the condition worse than it otherwise would have been…”
Consideration
39. It is common ground between the parties that the veteran suffers from Paget’s disease of bone and the Tribunal so finds.
40. The Tribunal is satisfied that there are no known causes of Paget’s disease of bone apart from the possibility of the disease being familial. As such it is impossible for there to be a reasonable hypothesis founded on the basis that the veteran’s Paget’s disease of bone was contracted by the veteran because of an occurrence that happened while he was rendering operational service or that the disease arose out of or was attributable to his service.
41. The Tribunal therefore finds that the applicant’s first hypothesis is not a reasonable hypothesis. This finding is entirely consistent with the relevant SoP which only makes provision for a veteran’s Paget’s disease of bone to be related to relevant service where there has been a service related material contribution to or aggravation of the disease, where the disease was suffered or contracted before or during (but not arising out of) his relevant service.
42. Turning then to the question of inability to obtain clinical management. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court of Australia (Full Court) summarised (at pages 97-98) the approach to be taken by the Tribunal in cases like the present in which section 120A of the Act applies:
“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
43. As has already been indicated, the Tribunal is satisfied that the veteran suffers from Paget’s disease of bone. On all of the material before it the Tribunal is of a view that the material points to an hypothesis put forward by the applicant as his second hypothesis and that there is in force a relevant SoP, Instrument Number 15 of 1996.
44. Instrument No 15 of 1996 relevantly provides:
“Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that Paget's disease of bone can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factor set out in the paragraph in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Paget's disease of bone or death from Paget's disease of bone with the circumstances of a person’s relevant service is:
(a)inability to obtain appropriate clinical management for Paget's disease of bone…
Factors that apply only to material contribution or aggravation
6. Paragraph 5(a) applies only to material contribution to, or aggravation of, Paget's disease of bone where the person’s Paget's disease of bone was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.”
45. The question then before the Tribunal is whether the applicant’s hypothesis is a reasonable one and in this case whether factor 5(a), as set out above, exists and is related to his relevant service.
46. In forming an opinion as to whether the hypothesis is reasonable the Tribunal must address the following questions:
(a)Was the applicant’s Paget’s disease of bone suffered or contracted before or during his relevant service? And, if so;
(b)What was the appropriate clinical management for Paget’s disease at the time of his relevant service? And;
(c)Was the veteran unable to obtain the appropriate clinical management of Paget’s disease of bone because of the circumstances of his service? And;
(d)Was the applicant’s Paget’s disease of bone contributed to in a material degree or was it aggravated by his service.
47. On the raised facts of this matter, in considering question (c) above, the Tribunal must include in its consideration whether there was a failure to diagnose the applicant’s Paget’s disease of bone during his relevant service and if so whether arising from any such failure there was an inability within the meaning of factor 5(a) to obtain appropriate clinical management.
48. Taking these questions in turn.
49. The Tribunal is mindful that, at the hearing of this matter, the respondent accepted Dr Perry-Keene’s opinion that the clinical onset of the veteran’s Paget’s disease of bone occurred in 1967. While the Tribunal has some difficulty with the lack of contemporaneous medical records or opinions to support that view, the Tribunal finds the veteran to be a credible witness and on his evidence, on balance, the Tribunal is reasonably satisfied that the veteran’s Paget’s disease of bone had a clinical onset in 1967. At this time the veteran was not on operational service. However, because of his subsequent operational service in Vietnam in 1969 and 1970, the Tribunal is satisfied that he was suffering from Paget’s disease of bone before his relevant service.
50. There is no inconsistency in the medical evidence before the Tribunal with respect to the treatment of Paget’s disease of bone in 1969/1970 and on this evidence the Tribunal is satisfied that the treatment would have consisted of providing analgesics to relieve pain and orthopaedic repair of fractures or bowing if indicated. The Tribunal is satisfied furthermore that any such treatment would not be effective in so far as altering the course of the disease as opposed to improving symptoms.
51. Turning then to the central questions of inability to obtain appropriate clinical management and contribution to/or aggravation of the condition. The Tribunal has carefully considered all of the material before it and the submissions of both parties and is of the view that the veteran was able to obtain the treatments that were available at the time. Medications for pain were available and prescribed as necessary; the veteran suffered no fractures; and bowing of the legs has been the same as it was during his service and it has not been seen as appropriate at any time to undertake orthopaedic repair.
52. The Tribunal is satisfied, beyond reasonable doubt, that the applicant was not subject to an inability to obtain clinical management of Paget’s disease of bone during his relevant service and the Tribunal is also satisfied, beyond reasonable doubt, that his Paget’s disease of bone was not contributed to in a material degree by or was it aggravated by his service. The Tribunal therefore finds that the applicant’s second hypothesis is not a reasonable hypothesis.
53. In arriving at the above conclusions, the Tribunal has considered the veteran’s submission that had he been correctly diagnosed as having Paget’s disease of bone in 1967, he would not have been sent to Vietnam nor would he have subsequently, until 1997, been unaware of (and denied the use of) the new medications which became available and which could alter the natural course of the disease. The Tribunal has rejected the first contention in that the applicant, on his own evidence, underwent a number of rigorous medical examinations and was classified as fit everywhere, he was deployed to 1 ATF at Nui Dat as an Intelligence Officer, and there were no orthopaedic difficulties of sufficient magnitude to preclude such a deployment.
54. The Tribunal has also rejected the second contention. The applicant has been seen by a number of specialists since his service and while there was some suggestion of Paget’s disease of bone being present in the mid to late 1970s, the first formal diagnoses of the condition was made in 1997. The Tribunal is mindful that while it can be said, with hindsight, that there was a failure by the Army to diagnose his Paget’s disease of bone in 1967 (at a time when there was really no effective treatment), the same criticism can be levelled at a number of medical specialists who saw the veteran subsequent to his service (at a time when effective treatments were coming on line). In the circumstances the Tribunal is satisfied, beyond reasonable doubt, that the Army’s failure to diagnose the applicant’s Paget’s disease of bone during his relevant service does not give rise to an inability to obtain appropriate clinical management for Paget’s disease of bone.
55. The Tribunal affirms the decision under review.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed: Sarah Oliver
AssociateDate of Hearing 5 March 2004
Date of Decision 29 April 2004The Applicant appeared in person
For the Respondent Mr B Williams, Departmental Advocate
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