Hudson and Repatriation Commission [2002] AATA 26 (16 January 2002)

Last Updated: 23 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 26

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/24

VETERANS' APPEALS DIVISION )

Re FREDERICK LESLIE HUDSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date 16 January 2002

Place Hobart

Decision The decision under review is set aside and in substitution therefor the matter is remitted to the Department of Veterans' Affairs with a direction that the applicant's diabetes mellitus is to be regarded as service related, with pension to be paid from 20 August 1998.

[Sgd B W Davis]

Part-time Member

CATCHWORDS

Veterans Appeals - disability pension - eligible war service - medical condition - diabetes mellitus - onset of condition - reasonable hypothesis - Statement of Principles (SoP) - Veterans' Review Board - Guide to Assessment of Rates of Veterans' Pensions (GARP).

Legislation and Principles

Veterans' Entitlement Act 1986 - ss.120(1), 120(3) and s.120A.

Statement of Principles - Diabetes Mellitus - (Instrument No 47 of 14 March as amended by 187 of 9 December 1996)

Guide to Assessment of Rates of Veterans' Pensions (GARP), Fifth Edition, 1998.

Authority

Repatriation Commission v Deledio [1998] 391 FCA (22 April 1998)

REASONS FOR DECISION

16 January 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

1. The applicant, Frederick Leslie Hudson, seeks review of a decision made by a delegate of the Repatriation Commission on 9 December 1999, subsequently affirmed by a decision of the Veterans' Review Board on 23 January 2001, whereby the applicant's claim to have diabetes mellitus accepted as a war-caused disease was refused.

The Issue

2. The issue in this case is whether the claimed condition was war-caused or contributed to by the applicant's period of service in the Australian Army between 16 January 1942 and 9 January 1946.

Background

3. The applicant, Frederick Leslie Hudson, lodged a claim for disability pension on the basis of "PVD, Mature Onset Diabetes Mellitus, CVA", with the Department of Veterans' Affairs on 28 November 1998. The medical names for the claimed conditions are:

* Atherosclerotic peripheral vascular disease affecting both legs.

* Diabetes mellitus

4. Mr Hudson had previously applied for a pension in 1993, his claim for cerebro vascular accident being determined as war-caused, but his claim for hypertension being rejected as not war-caused within the meaning of s9 of the Veterans' Entitlements Act 1986 (C'th) ("the Act").

5. As a result of his application in 1998, a decision of the Repatriation Commission was made dated 3 August 2000, which increased pension to 80 percent of the General Rate, from and including 8 March 2000. However his claim for pension and treatment for diabetes mellitus was refused and is now the matter before the Tribunal.

6. The applicant served in the Australian Army from 16 January 1942 until his discharge on 9 January 1946. In accordance with the Act, the veteran's overall army service constitutes eligible war service. It also constitutes operational service in accordance with s6 of the Act, given that he served in Darwin during the times specified in s6.

7. This means that in determining whether or not any diagnosed medical condition relevant to the veteran's claim is causally related to his army service, the appropriate authority must apply subsections 120(1) and 120(3) of the Act, together with s9. In effect, this means that the relevant authority's first task is to determine whether or not the relevant material raises a reasonable hypothesis or connection between the medical condition and operational service (see sub-section 120(3)).

However the operation of sub-section 120 (3) is governed by s120A. This provision conditions the existence of a reasonable hypothesis on the application of any relevant Statement of Principles (SoP), issued for the condition by the Repatriation Medical Authority (RMA).

8. Where a reasonable hypothesis is raised in this way, the authority is required to determine that the condition is war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. This task requires a close examination of all the evidence (see sub-section 120(1) of the Act). The appropriate procedures are fully set out in Repatriation Commission v Deledio [1998] 39a FCA (22 April 1998).

9. In the case of Mr Frederick Hudson, all steps having been taken within the prescribed time limits, if successful in his appeal, the earliest date that may be set by the AAT for receipt of pension would be 20 August 1998, being three months prior to the lodgement of his claim.

Hearings

10. An initial hearing of the case occurred on 26 July 2001, but due to the need for additional medical evidence, continuation of the hearing occurred on 5 December 2001.

11. Mr R Webster appeared as counsel for the applicant and Mr M Castle represented the Department of Veterans' Affairs.

12. Counsel for the applicant claimed that a reasonable hypothesis existed Mr Hudson's diabetes mellitus was war-caused. He cited Mr Hudson's smoking habits, medical records and the fact that sugar had been detected in Mr Hudson's urine as far back as his discharge from the Army in 1946. The actual date of onset of diabetes was problematical, but had been diagnosed by Dr Hilary Bower in 1994 and according to a Dr Ponsonby it could be argued to have existed in 1988 or perhaps earlier. This contention had been queried by Dr Brigden of the Department Veterans' Affairs hence it would be necessary to call Mr Hudson's medical practitioner (Dr Bower) to explore the issue further.

13. Mr Hudson gave evidence of dietary problems when he came home from the army. He could not eat anything containing sugar, such as jams, sweets or cordials as this made him violently ill. He had adjusted his diet to harder foods and avoided alcohol and also vinegar. He did not consult doctors about these problems, but tried to avoid items with sugar and this appeared to work. It was not until Dr Ponsonby, who was treating him for high blood pressure, noted the sugar in a routine blood test that the prospect of diabetes was raised in 1988. However no further medical tests or medication was prescribed at the time.

14. Mr Hudson stated that he had been a heavy smoker during army service and had continued the habit for a considerable period of time, initially giving up in the 1960's, but then continuing until 1975. His normal weight in civilian life was 10 stone, 8 pounds, almost without variation, but when he gave up smoking in 1960's his weight had increased to 12 stone, 8 pounds and later when he quit a second time it had increased again to 13 stone, 8 pounds.

15. The initial hearing was adjourned at this point and when resumed on 5 December 2001, an undated letter from the applicant was tendered by counsel, summarising the evidence earlier given.

16. Dr Hilary Bower, a general medical practitioner, was then called by telephone conference and after being affirmed, gave evidence. Dr Bower explained the development process in diabetes, noting it could take a considerable time and the individual might only become gradually aware of the condition, through needing to drink and urinate a lot, some lethargy, more susceptibility to colds and increased adverse reaction to sugar. She considered it likely Mr Hudson's diabetes had commenced around the time of his discharge or even before that. In response to a question by counsel for the respondent, she stated that a biochemical condition at outset was possible, with a clinical condition emerging later when symptoms were more severe.

17. The Tribunal queried whether there was any reason for diabetes mellitus not being diagnosed when Mr Hudson had undergone medical examinations for insurance or during brief periods in hospital. Dr Bower noted that not everyone was given comprehensive medical tests during examinations for insurance, it depended on the scale and type of insurance involved. People were sometimes hospitalised for individual ailments and it was not until recent years some tests were routinely given.

18. The witness then withdrew. Counsel for both parties drew attention to Statement of Principle No 47 of 1996, as prospectively applicable in this case. Either s5C or 5V could be involved.

Analysis

19. The Tribunal is required to stand in the position of the decision-maker, giving due weight to statutory provisions and guiding principles, but also giving appropriate consideration to all available evidence and contextual factors.

20. The first matter to be decided is whether a reasonable hypothesis exists that Mr Hudson's diabetes mellitus is service related. There is clear evidence that his smoking habit arose during army service and continued for a long period thereafter, involving up to 30 cigarettes per day from 1945 until the end of 1975, causally related to service.

21. There is clear medical evidence that sugar was present in his urine at the time of discharge from the army and that diabetes mellitus was diagnosed in 1994, but almost certainly existed at an earlier date. Dr Hilary Bower's evidence was that the onset occurred at or near the end of army service, Dr Ponsonby considered it existed in 1988, if not earlier, sugar in the urine had also been detected during a routine insurance medical test in the mid 1950's.

22. An opposing assessment was provided by Dr Henry Brigden, District Medical Officer, who agreed the 1945 test may or may not have been accurate, but argued no definitive evidence of diabetes was available until 1994. He did accept as fact Dr Richard Ponsonby's diagnosis of existence of diabetes in 1988. Dr Brigden considered any earlier date as speculative and regarded late onset as a distinct possibility due to the weight factor when Mr Hudson ceased smoking.

23. Although uncertainty remains about the date of onset of mature diabetes mellitus, the chain of evidence indicates to the Tribunal that a reasonable hypothesis exists that Mr Hudson's diabetes could be service related. Sugar was detected in his urine in 1946 and again in the mid 1950's, diabetes was detected in 1988 and confirmed in 1994. The fact that diabetes was not diagnosed earlier than 1988 could be due to a variety of factors, including Mr Hudson's attempts to regulate his own diet, the reality that diabetes tests were not always routinely given and the possibility that criteria for clinical diagnosis may have changed over time, as Mr Ponsonby suggested. It is not a question of facts at this stage of analysis, but rather whether a reasonable hypothesis can be said to exist.

24. It is now necessary for the Tribunal to consider whether there is an operation a Statement of Principle (SoP) applicable to the relevant disease or disability under consideration, as required under s120A of the Act. In Mr Hudson's case this is Instrument No 47 of 14 March 1996 as amended by 187 of 9 December 1996, dealing with diabetes mellitus.

25. The factors which must exist before it can be said on the balance of probabilities diabetes mellitus is connected with the circumstances of a person's relevant service, are set out in s5 of the Statement of Principles. In the case of type 2 diabetes these are described as follows:

"...

(b) in relation to type 2 diabetes mellitus, being obese for a period of at least ten years before the clinical onset of diabetes mellitus; or

(c) in relation to type 2 diabetes mellitus, smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or ... (other medical conditions).

Alternative criteria are provided in parts (u) and (v) of section 5:

"...

(u) in relation to type 2 diabetes mellitus, being obese for a period of at least ten years before the clinical worsening of diabetes mellitus; or

(v) in relation to type 2 diabetes mellitus, smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking had ceased, the clinical onset has occurred within 10 years of cessation.

26. Turning to the obesity factor, the Veterans' Review Board noted that based on a report dated 17 March 1999, Dr Hilary Bower considered Mr Hudson just fell into the obese range. However there was no indication that the veteran was obese in earlier years or just after his service in such a way as to indicate service was responsible for this. Any obesity measured in a technical sense, appears to have occurred after he gave up smoking initially in the 1960's and then in 1975. On this basis obesity is not a determining factor in the current case.

27. The available evidence regarding smoking indicates that Mr Hudson gave it up in 1975. The Veterans' Review Board and Dr Brigden accept that diabetes mellitus was clinically present in 1988, but resist the notion it was present earlier. Evidence from Dr Hilary Bower and Dr Richard Ponsonby contest this conclusion, arguing that diabetes mellitus could have existed earlier than 1988, but remained undiagnosed at that time. In order to meet the criteria for s5 of SoP 47, clinical onset would have to have occurred prior to 1985 i.e. within 10 years of cessation of smoking. None of this provides conclusive evidence, so the Tribunal must have regard to the evidence as a whole and work on the balance of probabilities.

28. Following Repatriation Commission v Deledio [1998] 391 FCA, where a reasonable hypothesis exists the Tribunal must consider the condition is service related unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. In Mr Hudson's case it is accepted diabetes existed from 1988 onwards and there is contested evidence it could have existed earlier i.e. within the 10 years after Mr Hudson gave up smoking. Overall the Tribunal does not have grounds to claim beyond reasonable doubt that diabetes did not exist prior to 1998, thus the reasonable hypothesis stands.

Decision

29. The decision under review is set aside and in substitution therefor the matter is remitted back to the Department of Veterans' Affairs with a direction that Mr Hudson's diabetes mellitus is to be regarded as service related, with pension to be paid from 20 August 1998.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Assoc/Prof B W Davis AM (Part-time Member)

Signed: K L Miller (Personal Assistant)

Date/s of Hearing 26 July 2001 and 5 December 2001

Date of Decision 16 January 2002

Counsel for the Applicant Mr R M Webster

Counsel for the Respondent Mr M Castle

Solicitor for the Respondent Department of Veterans' Affairs