McClure and Repatriation Commission [2000] AATA 579 (14 July 2000)

Last Updated: 21 July 2000

DECISION AND REASONS FOR DECISION [2000] AATA 579

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/174

VETERANS' APPEALS DIVISION )

Re GEORGE ALEXANDER McCLURE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date 14 July 2000

Place Canberra

Decision The tribunal sets aside the decision under review and remits the matter to the respondent to assess the veteran's pension entitlement with the direction that the veteran's conditions of benign positional vertigo, bilateral varicose veins with venous eczema, and "restless leg" syndrome are accepted as war-caused conditions, and that deep venous thrombosis left side, deep venous thrombosis right side, and multiple pulmonary emboli are not.

...................(Sgd.).......................

Pamela Burton Senior Member

CATCHWORDS

VETERANS' AFFAIRS - veteran's pension - whether certain disabilities "war-caused" - conditions - bilateral varicose veins with venous eczema, deep venous thrombosis, and pulmonary embolism - "restless leg" syndrome - whether aggravation of congenital condition result of inability to obtain appropriate clinical management.

Legislation

Veterans' Entitlements Act 1986

Authorities

Repatriation Commission v Keeley [2000] FCA 532

Keeley v Repatriation Commission [1999] FCA 1103

Ogston v Repatriation Commission [1999] FCA 342

REASONS FOR DECISION

14 July 2000 Pamela Burton, Senior Member

1. This is an application for review of a decision of the Repatriation Commission dated 15 August 1997 rejecting the veteran's claim that his conditions of bilateral varicose veins with venous eczema, deep venous thrombosis left and right side, multiple pulmonary emboli and benign positional vertigo were war-caused. The Veterans' Review Board ("the VRB") reviewed the decision on 7 April 1998 and affirmed the decision except in relation to benign positional vertigo, which it decided was war-caused. That condition is therefore not the subject of this review.

2. Mr Crabb appeared on behalf of the veteran, and Mr Sylvestre appeared on behalf of the respondent. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"), and various documents tendered by the parties. The veteran gave evidence and Dr David Hardman, vascular surgeon, gave telephone evidence on his behalf.

3. Pursuant to subsection 13(1) of the Veterans' Entitlements Act 1986 ("the Act") the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury. The Act requires that for a claim to be accepted the disability must be related to operational or eligible defence service.

4. The veteran served in the Australian Army from 23 February 1942 to 28 May 1946. In that time he served in excess of 12 months in New Guinea. As a consequence of his overseas service, it is not in dispute that the veteran's service constitutes "operational service" for the purpose of the Act.

5. The standard of proof applicable is set out in subsections 120(1) and 120(3) of the Act in respect of war-caused conditions arising from operational service. The effect of the provisions is that the tribunal must find that the claimed conditions were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstance of the particular service rendered. The veteran does not bear any onus of proof.

6. In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist for a hypothesis to be considered reasonable or for a connection to service to be probable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition. However, in the case of operational service the tribunal must be satisfied beyond reasonable doubt that a factor does not exist before the claim can be refused.

7. In this matter there are SoPs relevant to the veteran's varicose vein and thrombosis conditions, namely Instrument Nos. 70 of 1998, and 43 of 1998 respectively. However, these SoPs were not in existence on 15 August 1997 when the Repatriation Commission made its decision, the decision under review, to reject liability for these conditions. At that time SoP No. 3 of 1995 in relation to varicose veins was in existence, later revoked by SoP No. 70 of 1998. SoP No. 83 of 1996 in relation to deep vein thrombosis was in existence, revoked by SoP No. 31 of 1997, later revoked by SoP No. 43 of 1998.

8. At the hearing the parties proceeded on the assumption that the latest SoPs applied in relation to the claimed conditions of varicose veins and thrombosis on the basis of the decision in Ogston v Repatriation Commission [1999] FCA 342. Since that time the decision of the Full Federal Court in the matter of Repatriation Commission v Keeley [2000] FCA 532 has been handed down which, in effect, upheld the decision of His Honour, Justice Heerey, in Keeley v Repatriation Commission [1999] FCA 1103, ruling that the applicable SoPs are those in force at the time the decision under review was made. Leave is currently being sought to appeal to the High Court from the decision of the Full Federal Court and thus the question of which SoPs apply is not yet finalised. In delivering this decision prior to the outcome of the High Court proceedings I must therefore take into account the effect of each relevant SoP. In relation to the conditions as to which no SoP was in existence at the time of the decision under review I proceed in this matter on the basis that the decision to be handed down in Keeley will not affect the authority of Ogston in its application to the facts of the matter before me.

9. There is no SoP in existence relating to pulmonary embolism. In the course of these proceedings it was suggested that the veteran suffers from "restless leg" syndrome, another condition which is also not the subject of a SoP.

The veteran's evidence

10. The veteran was born on 6 April 1918. He was nearly 24 when he enlisted in the Army. He had previously worked as a builder and he had been in the militia since the age of 18. There is no evidence of the veteran having experienced any varicose vein problems or leg pain prior to his service. He married his present wife a year or so after his discharge from the Army.

11. The veteran joined the Engineers Corps on enlistment. After a period of training at Kapooka in New South Wales he was sent to the Northern Territory and South Australia. His Platoon was required to put down bores every 30 miles or so between Canaweal and Tennant Creek. The work involved standing on his feet and heavy lifting. In giving oral evidence he said that walking long distances between the bores caused leg pain and cramps at night.

12. According to the veteran's statement (Exhibit D), it was at this time that he first experienced a problem with his legs. He had more trouble with his legs during his next activity when his Platoon was building an abattoir and holding yard. Medical attention was not available and an officer with a first aid certificate gave the veteran Aspirin and APC powders. The Platoon was then sent to Darwin to rebuild wharves that had been destroyed in air raids. This was also heavy work and the veteran had more leg trouble. At this time he was hospitalised in Darwin for a short time for an unrelated complaint (T18). He says he asked the doctor about his legs and was told that he had varicose veins and that nothing could be done for him.

13. In giving oral evidence the veteran said that when serving in New Guinea in 1945 he formed part of a team building a wharf in Lae. He was in charge of the project which necessitated him to stand, lift, walk, and jump from bearer to bearer as the decking of the wharf was being put down. This heavy work contributed to his leg pain. He experienced pain and cramps in his legs at night, and suffered skin rash and ulcers on his legs. As to the ulcers, the veteran said "every one got them". His evidence is that he visited the RAP and ointment was applied and the leg was bandaged and it took a while for the ulcers to heal. The veteran did not stop work. He understood that the varicose vein problem and his peeling skin caused the ulcers. He said that in time the ointment worked and sometimes it took a month or so for the ulcers to clear up.

14. During a second period of hospitalisation during his service, the veteran said that he asked the attending doctor about his leg condition, and again was told that nothing much could be done for him. Despite the persistence of pain and skin problems with his legs during and after his service, when the veteran was discharged from the army in 1946, he was declared fit. Some days after that he was hospitalised in Concord Hospital with malaria and had his appendix removed.

15. After his war service the veteran was engaged in the work of fitting window frames. Initially he worked for a couple of days a week. Later he ran a furniture company and then he worked in the building industry.

16. The veteran said that his leg pain has persisted since his war service. As a civilian, the veteran sought treatment for his varicose veins. He saw three general practitioners, two of who have since died. His first general practitioner diagnosed varicose veins. After the doctor's death about 40 years ago, he attended Dr Saw until about three years ago when he died. Dr Saw gave him injections in the early years. The veteran obtained appropriate ointment some 10 years after leaving the service, up to which time he had used lanolin cream to prevent ulcers and peeling skin. After he was given an appropriate ointment his skin condition improved, leaving him only with the peeling skin. He continued to use APC powders for his leg pain.

17. The veteran is now in the hands of general practitioner, Dr Madden. The veteran said that if he doesn't use an ointment he gets a rash which causes redness and the skin to peel. The only relief he gets now is from an ointment called Betnovate which he rubs on 3 to 4 times a night, and which he has been using for some 12 months now. He also told the tribunal of the improvement he had with the use of his home remedy consisting of a camphor tablet in his bed at night.

Medical Evidence

18. Dr May, thoracic physician, treated the veteran in 1997 when the veteran was admitted to hospital with bilateral multiple pulmonary emboli following a history of 1-2 weeks of superficial thrombophlebitis on the medial side of the right calf. Dr May stated, in his report dated 8 July 1999 (Exhibit B), that he was aware of the significant history of varicose veins prior to this occurrence. He thought that the continued presence of varicose veins made further pulmonary thrombo embolism a "definite possibility". He linked the veteran's condition of multiple pulmonary emboli to his condition of bilateral varicose veins. He thought it likely that the emboli were likely to have initially come from an area of thrombophlebitis in the varicose veins.

19. Dr David Hardman, vascular surgeon, examined the veteran in 1999. He diagnosed bilateral varicose veins associated with skin changes. In his report of 6 August 1999 (Exhibit A), he says that he found pigmentation particularly on the right leg, venous eczema and liperdermatosclerosis, which can be ascribed to venous disease.

20. Dr Hardman obtained a history of the veteran's legs wiggling and moving uncontrollably through the night, leading to a wearing out of the bed sheets. The veteran cannot sleep in the same bed as his wife, which has been the case since their wedding night. Dr Hardman said that the type of leg pains described is usually associated with "restless leg" syndrome and that the veteran's complaints were an excellent example of the syndrome.

21. Prior to the route marches during his service the veteran said that he had no problems with his legs, and after them, the problem has not ceased. He said in evidence that his legs "have kept marching". According to Dr Hardman, marching and exercise might cause nocturnal pain and cramping, but it doesn't cause "restless leg" syndrome. That syndrome is associated with varicose veins and is not caused by exercise. He regarded the veteran's persistent problem as being the original "restless leg" syndrome which causes the veteran to move his legs in a random and uncontrollable fashion whilst in bed. Varicose veins are a described cause of the "restless leg" syndrome.

22. Dr Hardman explained that the principal aetiological cause of varicose veins is a congenital anomaly of a valve or valves in the deep and superficial venous system. He said "hard physical labour and prolonged standing will exacerbate the symptoms as symptoms are posture related, but this work does not cause the veins per se". He explained that the aetiology involves the mechanical failure of certain valves, and the medical literature does not suggest that exercise will cause the failure of valves. He said "indeed the development of leg muscles improves venous function rather than the reverse" (Exhibit A).

23. In oral evidence Dr Hardman explained that varicose veins, usually having a genetic start in that the valve at the top of the leg doesn't work, can be exacerbated by long periods of standing or walking, because the more a person is on his or her legs, the more gravity affects them. The valves fail in a sequential manner. Though he thought that the "restless leg" syndrome in the veteran's case is related to the varicose veins, he considered that the time course of its onset was very short, noting that the veteran linked both the varicose vein symptoms and the "restless leg" syndrome to his marching activity during his service.

24. The ulcers from which the veteran suffered also could be a symptom of varicose veins. However, they could also be explained as tropical ulcers. The veteran states that he did not suffer from these ulcers until his service in New Guinea and that he was not alone in suffering from ulcers there. Dr Hardman said that skin rash is related to varicose veins, eczema and ulcers being a complication from the resultant skin problem. However, he said that ulcers are usually the end result of the varicose vein disease. He had difficulty with the timing of the skin rashes and ulcers in the veteran's case. He thought it possible, but he was not convinced, that if the veteran was on his feet a lot, that activity might have brought forward the event of the rashes and ulcers associated with his varicose vein condition. On balance, Dr Hardman thought there were other more likely explanations for the appearance of the ulcers and skin rashes. He took into account the fact that they developed when the veteran was in New Guinea, the time scale in which the problems emerged, and that the veteran was not displaying those symptoms now, as he would if they were associated with the varicose veins.

25. As against that, the veteran maintains that the skin condition has persisted, and that its present improved state is explained by the success he has had with his home remedy consisting of a camphor tablet in his bed at night, and the application of Betnovate ointment. Further, according to Dr Hardman, it is unlikely that a medical officer would apply a dressing to tropical ulcers. If the RAP regarded the ulcerated skin condition as a symptom of the varicose vein condition, the application of a bandage or cast was consistent with appropriate clinical management of varicose veins at that time.

26. On the evidence it is open to conclude that the ulcers from which the veteran suffered during his service in New Guinea were tropical ulcers, rather than ulcers associated with his varicose vein condition. However, nothing turns on this so far as the veteran's current "restless leg" syndrome is concerned, as the medical evidence available does not support the hypothesis that tropical ulcers could give rise to the veteran's restless leg condition.

27. I accept Dr Hardman's uncontradicted evidence that "restless leg" syndrome is associated with varicose veins, and that the veteran's history of his symptoms formed a classic example of that syndrome. The "restless leg" syndrome, persisting to this day, can only be found to be war-caused if the varicose vein condition from which the veteran suffers is war-caused.

28. Dr Hardman accepted that the veteran's route marches exacerbated his varicose vein condition. He thought that the veteran's linking of the various route marches to the restless legs indicated that the long periods of physical labour exacerbated his varicose vein condition and brought forward the time of the appearance of the restless leg symptoms.

Consideration of the relevant Statement of Principles

29. Factors 5(a) and 5(e) in SoP No. 70 of 1998 relating to varicose veins require that the veteran suffered from thrombosis of a deep vein draining the affected lower limb before the clinical onset or worsening of varicose veins of the lower limb. Factor 5(j) requires an "inability to obtain appropriate clinical management for varicose veins of the lower limb". Similar factors were required in SoP No. 3 of 1995, factor 1(b) requiring thrombophlebitis of the lower limb or pelvic veins before the clinical onset of varicose veins, and factor 1(e) being in similar terms to factor 5(j) of the later SoP.

30. Dr Hardman doubted that the veteran suffered from deep vein thrombosis when he saw him in 1999. He pointed out that such diagnosis is excluded under SoP No. 43 of 1998 in relation to deep vein thrombosis unless the diagnosis is made in an objective manner. The factors are similar in SoP No. 31 of 1997 and SoP No. 83 of 1996; both revoked by the later SoP.

31. In the veteran's case there is no evidence of objective confirmation of the diagnosis such as an ultrasound scan. In relation to the veteran's claimed condition of deep vein thrombosis, I accept Dr Hardman's evidence that such diagnosis is excluded under the relevant SoP relating to deep vein thrombosis in the veteran's case, and I am therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3).

32. To come within the past or current SoPs for varicose veins the veteran must have been unable to receive appropriate clinical management of his condition during his war service. It has been pointed out that once back in civilian life, the veteran still did not receive appropriate clinical management of his condition until recent times. I do not think anything turns on that, even if it is the fact. First, I am satisfied that a reasonable hypothesis has been raised that by the time of his discharge from the Army, the veteran had already developed "restless leg" syndrome as a result of a worsening of his varicose vein condition. Second, whether or not the veteran received appropriate clinical management of his condition on discharge from the army is not relevant to the issue of whether or not the relevant conditions were aggravated by his inability to receive appropriate clinical management when he was in the army.

33. On the material before me a reasonable hypothesis is raised that lengthy periods of standing can contribute to or aggravate a congenital varicose vein condition. The veteran was required to stand and walk for lengthy periods during his war service. The appearance of ulcers and eczema possibly evidenced the aggravation of the condition. The history of his restless legs in bed at night, which, on the evidence is associated with varicose veins, satisfies me that factors in his war service aggravated his varicose vein condition, which was asymptomatic before his service. The varicose veins were suffered or contracted before or during (but not arising out of) the relevant service, and required clinical management.

34. The treatment for "restless leg" syndrome is to treat the varicose veins. According to Dr Hardman (Exhibit A), the clinical management of varicose veins is usually surgical intervention, which procedure, he said, was available in the 1940s, even though the "restless leg" syndrome was not a well characterised entity at that time. However, Dr Saw, one of the general practitioners the veteran attended when he left the army, advised against surgery at that time (T16). According to Dr Hardman, other than surgery, it was appropriate in the 1940s for varicose veins to be clinically managed by compression (zinc) bandaging, applied to form a plaster cast and kept in place on the leg for 2 to 4 weeks. In addition, the elevation of the legs at night, by lifting the bed, was recommended.

35. As the VRB noted in its decision (T16), there were limited or non-existent medical facilities available to the veteran at various times during his service. There is evidence to suggest that bandaging treatment was available, and that bandages and ointment applied to his ulcerated legs might have been appropriate treatments for his varicose vein condition. If the only other appropriate clinical management was pain relief, this too was given to him during his service. However, Dr Hardman pointed out that while APC powder was thought to be a good idea at the time, it was not a good medication to use.

36. Dr Hardman's view is that the veteran complained of symptoms and received no treatment for the condition. Dr Hardman concludes that the condition was ignored and, on that basis, the veteran did not receive appropriate treatment. The veteran was not advised at the time, or since, that he should manage his condition by reducing the amount of heavy labouring or marching he was doing or by elevating his feet at night. Exercise is advised for the condition, but long periods of physical labour are not, and appropriate clinical management included the veteran being advised to limit the amount of standing he was doing and being advised to elevate his feet at night.

37. There is no recognition of the service activities themselves exacerbating the condition under the relevant SoP. The relevant factor requires the inability to obtain appropriate clinical management during the veteran's service having materially contributed to, or aggravated, the varicose veins of the lower limb. However, in the circumstances of the veteran's service, the two causes of the exacerbation are linked. The lengthy periods of standing and marching the veteran was required to do in his service aggravated his varicose vein symptoms. In the veteran's case, appropriate clinical management included surgery and, in the absence of surgery, elevating the feet at night and reducing the amount of marching and physical work. The failure to be advised to do the latter exacerbated the veteran's condition.

Conclusions

38. There is insufficient evidence to support a reasonable hypothesis that the veteran's bilateral varicose veins with venous eczema were caused by or during his war service. I accept that the veteran had an underlying genetic varicose vein condition, asymptomatic at the time he enlisted in the service. The symptoms of varicose veins, including the "restless leg" syndrome, manifested themselves and worsened during his service. It is likely that the varicose vein condition was exacerbated by the amount of time the veteran was required to be on his feet in the course of his service. This exacerbation was contributed to by his inability at that time to obtain appropriate clinical management of the condition. Consequently the veteran continued to carry out duties that required him to stand and march for lengthy periods, further exacerbating the condition. The veteran's varicose vein condition was thereby aggravated by his defence service and is therefore war-caused.

39. Accepting that the "restless leg" syndrome is caused by the varicose vein condition, and that the veteran was unable to obtain appropriate clinical management of that condition during his service, and the varicose vein condition worsened, a reasonable hypothesis is raised under the SoP connecting the "restless leg" syndrome with his service.

40. There is insufficient evidence to support the hypothesis that deep venous thrombosis left side, deep venous thrombosis right side is war-caused. I accept Dr Hardman's opinion that the veteran was not suffering from deep vein thrombosis when he saw him in 1999. Such a diagnosis is excluded under the relevant SoPs because there is no evidence of objective clinical confirmation of the diagnosis.

41. In relation to the claimed condition of multiple pulmonary emboli, Dr Madden, in his report of 12 January 1998 (T16), stated that its cause in 1997 was "the long-standing varicose veins which developed superficial thrombophlebitis which in turn lead to the development of deep vein thrombosis." Dr May, in his report of 8 July 1999 (Exhibit B), connects the pulmonary embolism with the varicose vein condition. There is no SoP in relation to pulmonary emboli. However, Dr Hardman is of the opinion that the veteran's pulmonary emboli condition is not war-caused. He said, in his report of 6 August 1999 (Exhibit A), that the only history of pulmonary emboli is a recent history. Further, by the time Dr Hardman saw the veteran, he did not have the condition of multiple pulmonary emboli. I accept Dr Harman's opinion in this respect. He is a specialist in the field and must be preferred to the veteran's general practitioner, and to Dr May, a thoracic physician.

42. I accept Dr Hardman's opinion that the veteran's only war service problems are the symptoms related to the "restless leg" syndrome, arising from an exacerbation of the veteran's varicose vein condition. I find, therefore, that the veteran's conditions of bilateral varicose veins with venous eczema, and "restless leg" syndrome are war-caused conditions.

Date of effect

43. The earliest date of effect is agreed to be 9 February 1997, three months before the respondent received the veteran's claim.

Assessment of the veteran's entitlement

44. There is insufficient material before me from which the veteran's pension entitlement can be assessed. The parties agreed that, in the event of the tribunal deciding in the veteran's favour, the matter be remitted to the respondent for assessment of pension entitlement.

Decision

45. I set aside the decision under review and remit the matter to the respondent for reconsideration, and direct that the veteran's pension entitlement be assessed on the basis of the conditions of benign positional vertigo, bilateral varicose veins with venous eczema, and "restless leg" syndrome are war-caused.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member

Signed: Eva Dimopoulos .....................................................................................

Associate

Date of Hearing 31 August 1999

Date of Decision 14 July 2000

Counsel for the Applicant Mr Paul Crabb

Solicitor for Applicant Snedden, Hall & Gallop

Counsel for the Respondent Mr John Sylvestre

Solicitor for the Respondent Department of Veterans' Affairs