WILLIAMS And REPATRIATION COMMISSION
[2003] AATA 314
•4 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 314
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/104
VETERANS' APPEALS DIVISION
Re: JOYCE ARMISTEAD WILLIAMS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 4 April 2003
Place: Melbourne
Decision:The Tribunal varies the determination of the Repatriation Commission made on 29 October 1999, as affirmed by the Veterans’ Review Board on 21 November 2000, to provide that peptic ulcer and the sequelae of the surgical treatment of the peptic ulcer are war‑caused as provided by s.9 of the Veterans' Entitlements Act 1986.. The matter is remitted to the Repatriation Commission for calculation of the level of pension payable.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – whether stomach and gullet problems, ischaemic heart disease, congestive cardiac failure, hypertension, bilateral sensorineural hearing loss, bilateral tinnitus and retinal vein thrombosis are war‑caused – application of the relevant Statements of Principles
Veterans' Entitlements Act 1986 ss.9, 120(4), 120A
Statements of Principles
Instrument Nº 44 of 1996 concerning tinnitus
Instrument Nº 46 of 1996 as amended by Instrument Nº 2 of 1998 concerning
sensorineural loss
Instrument Nº 22 of 1999 concerning peptic ulcer disease
Instrument Nº 26 of 1999 concerning hypertension
Instrument Nº 39 of 1999 concerning ischaemic heart disease
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
4 April 2003 Miss E.A. Shanahan, Member
1. This is an application for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 29 October 1999 which found that all claimed conditions were not war‑caused. The applicant had been in receipt of 40 per cent pension of the general rate from 29 October 1999. The conditions which were not accepted were ischaemic heart disease, congestive cardiac failure, hypertension, bilateral sensorineural hearing loss, bilateral tinnitus, throat, gullet and stomach problems, and right upper temporal branch vein occlusion. This decision was appealed to the Veterans’ Review Board (the VRB) and affirmed on 21 November 2000.
2. The applicant was represented by Mr D. De Marchi, solicitor, and the respondent by Mr G. Purcell, of counsel. The hearing took place over three days, 7 March 2002, 2 August 2002 and 22 November 2002. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 ("the T documents"). The parties tendered the following documents:
· Report by Dr W. Gillies, ophthalmologist, dated 7 May 2001 exhibit A1
· Report by Mr R. Marshall, general surgeon,
dated 11 May 2001 exhibit A2
· Report by Dr M. Rosenbaum, consultant cardiologist,
dated 9 May 2001 exhibit A3
· Report by Dr Rosenbaum regarding an echocardiogram
dated 9 May 2001 exhibit A4
· Applicant’s Lifestyle Questionnaire exhibit A5
· Report by Professor G. Crock, opthalmic surgeon,
dated 27 February 2002 exhibit R1
· Report by Ms A. Archibald of Australian Hearing
dated 1 May 2001 exhibit R2
· the transcript of the VRB proceedings
dated 21 November 2000 exhibit R3
· Opinion by Dr F. Morgan, senior medical officer
(Appeals) dated 20 September 2001 exhibit R4
· Statement of Principles (SoP) Instrument Nº 30 of 2001 concerning
concerning sensorineural hearing loss and commentary taken
taken from Department of Veterans' Affairs' (DVA) computerreport on SoP Nº 30 of 2001 Exhibit R5
· Documents from The Royal Victorian Eye & Ear Hospital
(the Eye & Ear Hospital) pages 1—6 Exhibit R6
· Documents from Box Hill Hospital pages 7—19 Exhibit R7
3. At the resumed hearing on 2 August 2002 the respondent tendered SoP Instrument Nº 30 of 2001 concerning sensorineural hearing loss and commentary taken from DVA computer report on that SoP (exhibit R5). In the interval between the original hearing and the resumed hearing, the Tribunal sought clarification in writing of the report from the Eye & Ear Hospital dated 24 September 1999 (T9, p.40) wherein there seemed to be conflicting dates of attendance by the applicant. This matter was clarified prior to the resumed hearing on 2 August 2002 and the response from the Eye & Ear Hospital became exhibit R6. As a result of the evidence on the part of the applicant at the resumed hearing on 2 August 2002, the Tribunal also directed that the medical records of the Box Hill Hospital be obtained and made available to the Tribunal and both parties. The resultant report became exhibit R7.
BACKGROUND TO THE APPLICATION
4. The applicant was born on 7 October 1920 and served in the Royal Australian Air Force (RAAF) from 2 January 1945 to 26 March 1947. She rendered eligible service within Australia but not operational service. While in training camp, the applicant suffered an injury (torn lateral ligament of her left knee) while undertaking physical training. This and the consequent osteoarthritis are an accepted disability. In November 2002, the applicant claimed the previously listed disabilities, all of which were rejected by the respondent, as affirmed by the VRB, as not being war‑caused. The injury to the left knee subsequently led to the development of osteoarthrosis of the left knee requiring long term analgesic and non‑steroidal anti‑inflammatory drug (NSAIDs) medication.
5. In January 1983, the applicant suffered a transient ischaemic attack and solprin was added to her medication regime. In August 1983, the applicant was investigated for anaemia at the Box Hill Hospital and found to have a pre‑pyloric ulcer. She was transfused seven units of blood. A repeat gastroscopy on 5 November 1983 showed the ulcer to be healed following a course of ZANTAC. On 10 March 1989, the applicant re‑presented to the Box Hill Hospital with haematemesis and melena in a state of shock. Laparotomy and gastrotomy revealed diffuse gastritis. On 17 March 1989, the applicant, once again, became clinically shocked with a blood pressure of 60 and was transferred to the Alfred Hospital for surgery. The applicant underwent gastric resection and made an excellent recovery. She remains on ZANTAC to this day. The applicant has been in receipt of a 40 per cent of general rate pension since 29 October 1999 for her accepted disability of osteoarthrosis of the left knee.
6. On 23 March 1999, the applicant claimed sensorineural hearing loss, tinnitus, hypertension, heart problems and haemorrhage behind the eyes, and problems with the throat, gullet and stomach. Her claim was denied. On application to the VRB, and the hearing conducted on 24 January 2000, all claimed conditions were rejected but pension was set at 40 per cent of the general rate. The claimed retinal edema was amended to right temporal branch vein occlusion.
EVIDENCE BEFORE THE TRIBUNAL
7. In evidence‑in‑chief, the applicant confirmed her period of service included approximately six weeks based at Mildura. Her living and working quarters were in close proximity to the RAAF tarmac. She recalled that the aeroplane noise was loud and that she was exposed to this noise when walking from the living quarters to the storeroom where she worked (trans, pp.6‑7).
8. The applicant’s injury to the left knee had occurred during her physical training in rookie school and she informed the Tribunal that this had been treated with bed rest, deep therapy and analgesics. Pain in the left knee persisted throughout service and after service, and she had had to abandon bicycle riding and tennis within two years of discharge from the RAAF. Various NSAIDs were prescribed over many years. The applicant confirmed that she had been over weight for many years, including on enlistment and her weight had increased further post‑service. In 1975 or 1976 she was diagnosed as suffering from hypertension. Some years later she developed angina. In 1989, after gastric surgery at the Alfred Hospital, she was discharged home on anginine tablets and had used them as needed ever since.
9. While uncertain of the exact dates, the applicant recollected that her eye problems had commenced after the gastric surgery in 1989.
10. The applicant confirmed the content of the Lifestyle Questionnaire, completed by another on her behalf but signed by her. Her eye sight problems limited her ability to read and play Scrabble, and made public transport and walking on irregular surfaces difficult. The continuing left knee pain and the angina markedly limited her activity, made her reliant on Council help for house cleaning and Meals‑On‑Wheels. She was limited in her household activities to cooking in a microwave oven and the use of a dishwasher and a clothes washer. Social activity was limited to one day per week attendance at the RAAF's day club, to which she went by taxi.
11. Under cross‑examination, the applicant could not accurately recollect the noise level of the aeroplanes during her six‑week service in Mildura (trans, pp.18‑20). She did confirm the use of pain‑killers and NSAIDs post‑war for her accepted knee injury and that she had been told by doctors at the Alfred Hospital that her pre‑pyloric ulcer had most probably been caused by the prescribed NSAIDs. She indicated that hypertension had first been diagnosed in 1975 or 1976, when she had undergone blood pressure recording in a mobile caravan which was examining the population in general. The applicant agreed she had been overweight in the 1970s and 1980s, and also at the time of enlistment. Mr Purcell pointed out that her enlistment medical examination showed she weighed 190 lbs and her discharge medical examination showed her weight to be 170 lbs. The applicant agreed her weight had been around about the 13 stone mark from her teens on, until the age of approximately 60. The applicant was taken to the report of Dr Morgan (exhibit R4), on behalf of the respondent which stated that the applicant’s visual acuity was nearly normal in January 1990, that is one year after the gastric surgery. The applicant was uncertain of the exact dates but felt that her eyesight had deteriorated after the surgery.
12. Prior to gastric surgery, the applicant had been unaware of any cardiac problems. Following her gastric surgery, she was discharged from the Alfred Hospital on numerous medications, including anginine. From the evidence, it would appear the applicant took anginine tablets only occasionally and could not remember how frequently she suffered from angina.
13. On re‑examination, the applicant confirmed that she had been overweight on enlistment but had been active and had continued to play tennis following discharge from service. She re‑affirmed her belief that her eye problems occurred at or around the time of her gastric surgery.
14. Mr Marshall had seen the applicant on 11 May 2001 and provided a report of that date (exhibit A2). In evidence‑in‑chief Mr Marshall confirmed his report and reiterated that, in his opinion, the applicant’s accepted disability of left knee osteoarthrosis had followed a tear to the medial ligament of the left knee. The subsequent treatment of this osteoarthrosis with aspirin and NSAIDs had led to the development of a pyloric ulcer which, in 1989, was associated with major bleeding, necessitating emergency surgery at the Alfred Hospital. The exact nature of the surgery was unknown but the applicant had told him that the ulcer was oversewn and the stomach had not been partially resected. Secondary to the surgery, the applicant had developed a very large incisional hernia. Mr Marshall was of the opinion that the applicant’s epigastric discomfort related to the incisional hernia but she also had ongoing pyloric antral gastritis. He had reached the latter diagnosis as he had obtained a history that she developed abdominal pain half an hour after meals. He also noted that the applicant continues to take ZANTAC. In Mr Marshall's opinion the occurrence of epigastric discomfort half an hour after the ingestion of food was indicative of the persisting gastritis or gastric ulcer condition.
15. As a result of Mr Marshall's evidence, the respondent conceded that the applicant’s original pre‑pyloric gastric ulcer and ongoing abdominal pain, relating both to the incisional hernia and the probable chronic gastritis or peptic ulcer, had resulted from the ingestion of anti‑inflammatory medication prescribed for her accepted disability of left knee osteoarthrosis.
EVIDENCE OF DR MAURIC ROSENBAUM
16. Dr Rosenbaum gave evidence by telephone. Dr Rosenbaum had seen the applicant on 8 May 2001 regarding her cardiac status. In his opinion, she was suffering from hypertension and coronary artery disease presenting as angina. He found no evidence of cardiac failure. In addition, he noted the gastric ulcer treated surgically in approximately 1994 with ongoing dyspepsia, depression, deafness, loss of function of the right eye, injury to the left knee and previous obesity. It was his opinion that the injury to the left knee had resulted in an inability to exercise, which, in turn, led to obesity and the predisposition to hypertension and heart disease. He attributed the applicant’s shortness of breath to the effect of the hypertension on the heart muscle. The coronary heart disease would also have contributed to the dyspnoea.
17. Under cross‑examination, Dr Rosenbaum agreed with Mr Purcell that the echocardiogram had shown normal left ventricular function. In addition, there was no evidence of a valvular lesion of significance and the pulmonary artery pressure was normal. Dr Rosenbaum agreed that these were the described results. Dr Rosenbaum stated that there was no evidence of congestive cardiac failure as it is conventionally known (trans, p.71). His diagnosis of ischaemic heart disease was made on the basis that the applicant had informed him of that diagnosis and was taking anginine tablets. This, he said, was compatible with the normal echocardiogram. He did not agree that, on the balance of probabilities, it was likely that the chest pain (angina) experienced by the applicant was, in fact, due to her incisional hernia.
18. In reply to a question put by the Tribunal regarding the applicant’s degree of dyspnoea, which stopped her from walking before she developed angina, Dr Rosenbaum was of the opinion that her dyspnoea was due to obesity and perhaps to diastolic dysfunction.
19. Following Dr Rosenbaum's evidence, the respondent accepted that the applicant did have ischaemic heart disease but that a causal connection between the ischaemic heart disease and war service was not, at this time, determined.
20. The applicant had intended to call Dr Gillies to give evidence but it was discovered in the course of the hearing that he was overseas. The Tribunal expressed its concern regarding the turn of events but it was also concerned by the discrepancies in the written documentation from the Eye & Ear Hospital regarding the applicant’s attendances at that hospital for treatment. While it was most likely that the conflict in dates was a typographical error, in that it said the applicant was first seen in 1990 and then attended again in 1983, the Tribunal undertook to contact the Eye & Ear Hospital to clarify this matter. Given the non‑availability of Dr Gillies to give his evidence before the Tribunal, the parties decided to rely on the written reports of Dr Gillies and Professor Crock regarding the applicant’s retinal vein thrombosis.
21. The legal representatives of both parties commenced their final submissions and these were completed pending the information from the Eye & Ear Hospital. These submissions will be addressed later in the reasons for decision.
22. Upon receipt of the report from the Eye & Ear Hospital, the hearing was resumed on 2 August 2002. In the intervening five months, the legal representatives of the parties had become aware of more recent SoPs than those referred to at the initial hearing. It was agreed that these might have further bearing on the Tribunal's decision and further submissions on this point should be made.
23. In light of this, it was decided to recall the applicant to give further evidence. On the question of the sensorineural deafness and tinnitus, re‑examination by Mr De Marchi attempted to clarify the situation but the applicant could not recall the temporal relationships of onset of hearing difficulties and tinnitus. Nor could she recall the level of noise but confirmed that the aeroplanes in question were all driven by propeller engines. On direct questioning she could not recall the dates when she might have developed symptoms related to her known gastric ulcer. However, she felt it could have been about three or four years after she started taking anti‑inflammatorys and/or aspirin. Following discharge from the RAAF, she continued to ride a bicycle for approximately three years but had to desist as she was unable to exert enough force on the peddles or the brake with her left leg. Over the ensuing 35 years, she had taken a variety of anti‑inflammatorys for various periods of time. She confirmed that she had taken ZANTAC since her surgery in 1989. Following service, she had continued to play tennis for 2 years, but found that her left knee swelled after running around on a tennis court and she then restricted her activities to walking. She was able to continue to walk at a moderate pace until approximately 1980. At the current time the applicant stated her walking was severely limited but she could not determine whether this was due to the knee problem or her failing eyesight.
24. During the course of re‑examination by Mr Purcell, the applicant recalled that she had had a blood transfusion in 1983. Further questioning by Mr De Marchi revealed that this transfusion had been given for internal bleeding.
25. The Tribunal endeavoured to ascertain when and if the applicant had suffered from thyrotoxicosis given that Dr Crock had mentioned it in his report. The applicant denied that she had an overactive thyroid gland as she had been told it was underactive. She recalled she had been treated with thyroid tablets for this underactivity from her mid‑teen years. To her knowledge, she had ceased taking thyroid extract before she enlisted. While the applicant denied any knowledge of having had further thyroid extract, her in‑service medical records indicate that she was given thyroid extract. On further re‑examination by Mr De Marchi, the applicant was certain that she had had two major transfusions of blood, the known one in 1989 when she underwent surgery at the Alfred Hospital, and a previous transfusion which she dated at approximately late 1975
26. Given the new evidence of an earlier transfusion, which might reflect the presence of a peptic ulcer in the mid‑1970s, the parties agreed that the Box Hill Hospital's medical records should be obtained. As the letter from the Eye & Ear Hospital had merely corrected the dates of the applicant’s attendance and had not advised the nature of that attendance, it was decided to obtain the entire medical record from the Eye & Ear Hospital.
27. The hearing was resumed on 22 November 2002. In the interim, the medical records had been obtained from the Eye & Ear Hospital and these became exhibit R6. The Box Hill Hospital's records were obtained and related to three admissions to hospital and these became exhibit R7.
28. The report from the Eye & Ear Hospital (exhibit R6) indicated that the applicant had first attended on 18 January 1980 for an eye examination and sight test. It was noted that she had had hypertension for approximately eight years. She was, at the time, taking one Diazide tablet daily and also one aspirin. She had previously been examined by Dr P. Brett, ophthalmologist, who had made a diagnosis of occlusion of the right upper temporal branch of the retinal vein. The applicant’s general health was described as good with no neurological defect, no pain to suggest ischaemic heart disease and a normal ECG performed some three months previously. The applicant denied shortness of breath. The remainder of the record details follow up and treatment. It is noted that the treating ophthalmologist at the Eye & Ear Hospital was unable to determine a cause for the retinal vein thrombosis. The timing of this event was, however, clarified as having occurred late 1982 or early 1983.
29. The Box Hill Hospital medical records shed a further light on the applicant’s medical history and confirmed that her retinal vein thrombosis had occurred prior to her first presentation at the Box Hill Hospital on 23 August 1983. At that time she had presented with nausea, giddiness, lethargy and shortness of breath on exertion. She was found to have a haemoglobin of 80 grams per litre and required, in total, a transfusion of 7 units of blood. At that time she gave a past history of retinal vein thrombosis. She had been on aspirin for this condition for a period of 18 months. In addition, there was a history of long term Indocid medication and, more recently, Naprosyn medication for the osteoarthrosis of the left knee. Investigation at Box Hill Hospital in August 1983 included a gastroscopy which showed a pre‑pyloric gastric ulcer. A repeat gastroscopy on 5 November 1983 showed the ulcer to be healed with residual scarring.
30. On 10 March 1989, the applicant represented in a state of clinical shock with a blood pressure reading of 60 cystolic, a pulse rate of 140 and a respiratory rate of 40. She had suffered a large bleed from her pre‑pyloric ulcer, her stomach was full of blood and she was transferred to the Alfred Hospital for surgical treatment.
31. The Eye & Ear Hospital clinical notes indicate that the applicant underwent several laser treatments for her right central retinal vein upper temporal branch occlusion without benefit. The Tribunal concludes that there was no correlation between the episodes of gastrointestinal haemorrhage due to her pre‑pyloric ulcer and the onset of the retinal vein occlusion.
32. The Tribunal had before it the written reports by Dr G. Crock (exhibit R1) and the initial report of the Eye & Ear Hospital by Dr J. Mogg, medical administrator, (T9, p.40). Dr Gillies had also provided a report dated 7 May 2001 (exhibit A1). Dr Gillies, on the basis of the history he had obtained, had attributed the applicant’s retinal vein thrombosis to the haemodynamic effects following the bleed from her gastropyloric ulcer. Dr Crock was of the opinion that there was no relationship between retinal vein occlusion and the gastropyloric haemorrhage. Perusal of the Box Hill Hospital records have confirmed that there is no evidence of a causal relationship between the gastric ulcer haemorrhage and the development of retinal vein thrombosis in the applicant’s right eye.
33. As the osteoarthrosis of the left knee is an accepted war disability and the respondent had, during the course of the hearing, conceded that the pre‑pyloric gastric ulcer and its complications and ongoing symptoms were a direct consequence of the treatment of the osteoarthrosis, the Tribunal was left to consider the non‑accepted disabilities of ischaemic heart disease, congestive cardiac failure, hypertension, bilateral sensorineural hearing loss and bilateral tinnitus.
RELEVANT LEGISLATION
34. As the applicant has eligible but not operational service, s.9(1)(b) and s.120(4) of the Veterans' Entitlements Act 1986 (the Act) are attracted:
9(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)…
(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;
…
120(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
35. As the application was lodged after 1 June 1994, s.120A is also attracted and the Tribunal must apply the SoPs as enunciated by the Repatriation Medical Authority.
36. The parties initially agreed that the relevant SoPs were Instrument Nº 44 of 1996 concerning tinnitus; Instrument Nº 46 of 1996 as amended by Instrument Nº 2 of 1998 concerning sensorineural loss; Instrument Nº 22 of 1999 concerning peptic ulcer disease; Instrument Nº 26 of 1999 concerning hypertension; and Instrument Nº 39 of 1999 concerning ischaemic heart disease.
37. At the resumed hearing on 2 August 2002 the respondent brought to the Tribunal's attention the following SoPs which it felt should be taken into consideration. These were Instrument Nº 32 of 2001 concerning obesity; Instrument Nº 26 of 2001 concerning tinnitus; and Instrument Nº 30 of 2001 concerning sensorineural hearing loss (exhibit R4). As the applicant has eligible but not operational service, the balance of proof is stated to be one of reasonable satisfaction which has been interpreted as being on the balance of probabilities.
38. The parties referred to the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. In this decision, the Court was considering s.120(3) of the Act and the reasonable hypothesis burden of proof. While the Court's recommended approach to the consideration of whether or not an injury or death in the arena of operational service is noted and assists greatly in determining the process, it does not strictly apply to claims under s.120(4) wherein the applicant has eligible but not operational service.
APPLICATION OF THE LEGISLATION TO THE FACTS
39. The applicant’s claim is based on the contention that her accepted disability of osteoarthrosis of the left knee limited her ability to exercise. This in turn, as is argued, led to obesity (Statement of Causes of being obese (16 August 1996) and Instrument Nº 32 of 2001). The inability to exercise, it is contended, led to obesity and some years later to hypertension (Instrument Nº 26 of 1998) followed by ischaemic heart disease (Instrument Nº 39 of 1999). The claim for sensorineural hearing loss and tinnitus are unrelated to this argument.
40. The applicant’s hearing loss has been assessed on audiogram as being mild but tinnitus was assessed as being severe (exhibit R2). On the basis of the applicant’s evidence to the Tribunal there is no established unit of acoustic trauma, either acute or continuous (clauses 5(a) and 5(b)). She in fact spent only six weeks in Mildura where she was exposed to the noise of a nearby landing field. She does not meet the requirements of the SoP. (This decision is in line with the subsequent SoP Instruments Nº 14 of 2001 and Nº 30 of 2001.) Likewise, there is no evidence that the tinnitus occurred in accordance with factor 5(a) of SoP Instrument Nº 26 of 2001 wherein the onset of the tinnitus is within 48 hours of any impulsive noise of at least 140 decibels (Mr Purcell referred to applicant’s evidence transcript, page 6). There is, thus, no evidence to support the contention that the applicant’s sensorineural hearing loss and tinnitus are war‑caused.
41. The main contention of the applicant relates to obesity leading to hypertension and subsequent ischaemic heart disease. The evidence before the Tribunal shows that the applicant was overweight on enlistment with a BMI of 33.4. On enlistment she weighed 85.5 kgs with a height of 160.02 cms. During the time of her service, efforts were made to reduce her obesity and she was placed on thyroid extract. At the time of discharge from service her BMI was 29.53, her weight being 73.5 kgs and her height was measured at 160.6 cms. The applicant gave evidence that she had weighed approximately 13 stone from her teenage years until the age of 60. None of the statement about the causes of being obese is met and the applicant's obesity cannot be attributed to her service.
42. It is thus not necessary for the Tribunal to review the other claims of hypertension and ischaemic heart disease that are based on war‑caused obesity. While the applicant’s level of physical activity was curtailed by her left knee osteoarthrosis and she had to stop playing tennis and bicycle riding, she continued to walk on a regular basis until about the age of 60. It would appear from her evidence that the main reason she curtailed her physical activity was that she was involved in the rearing of her 6 children.
43. During the course of the proceedings, it was also argued that the applicant had congestive cardiac failure secondary to ischaemic heart disease. This claim was not pursued on the basis of the evidence given by Dr Rosenbaum (expert witness for the applicant), stating that there was no evidence of conventional cardiac failure (trans, p.71 – 7 May 2002).
44. The applicant has an accepted disability of osteoarthrosis of the left knee, for which she receives a pension of 40 per cent of the general rate. The respondent has conceded that her pre‑pyloric gastric ulcer (which required surgery in 1989) is a direct consequence of her accepted disability as are her ongoing symptoms related to the pre‑pyloric ulcer, mainly continuing indigestion, continuing need for ZANTAC medication and the symptoms relating to her incisional hernia secondary to her surgery.
45. The matter is remitted to the Repatriation Commission for consideration of the appropriate level of general rate pension.
I certify that the forty‑five [45] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 7 March 2002
2 August 2002
22 November 2002
Date of Decision: 4 April 2003
Solicitor for the applicant: Mr D. De Marchi, De Marchi & Associates
Counsel for the respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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