Donlan and Repatriation Commission [2002] AATA 589 (5 July 2002)

Last Updated: 19 July 2002

DECISION AND REASONS FOR DECISION [2002] AATA 589

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1384

VETERANS' APPEALS DIVISION )

Re BEDE DONLAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen Mr S Webb, Member

Date 5 July 2002

Place Sydney

DECISION AND REASONS FOR DECISION

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1384

VETERANS' APPEALS DIVISION )

Re Bede Donlon

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr M Allen, Senior Member Mr S Webb, Member

Date 5 July 2002

Place Sydney

Decision For the reasons given orally at the conclusion of the hearing, the Administrative Appeals Tribunal decides that the decision of the Repatriation Commission of 5 December 2000 as amended by the Veterans' Review Board on 18 June 2001 is varied so as to affirm the decision respecting eczema and to substitute the Tribunal's decision that the Applicant's Rheumatic Heart Disease is war-caused. The said decision is to take effect as and from the 11^th day of June 2000 AND this matter is remitted to the Respondent Repatriation Commission in order that it assess the rate of pension to be paid to the Applicant for incapacity occasioned by all war-caused injuries and diseases.

(Sgd) M D ALLEN

Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS: Rheumatic Heart Disease. Rheumatic mitral valve regurgitation included in ICD code 394.1 therefore within the SoP for Rheumatic Heart Disease. Hypothesis that Applicant suffered undiagnosed rheumatic fever following streptococcal tonsillitis raised by material before Tribunal and not negatived beyond reasonable doubt.

Veterans' Entitlements Act 1986 - ss 120(1), (3) and (6)

Repatriation Commission v Delidio 83 FCR 91

Burns v Repatriation Commission 177 CLR 564

REASONS FOR DECISION

Senior Member M D Allen

Mr S Webb, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Mr S Webb, Member

Signed:

.......................................................................................................................

Associate

Date of Hearing 5 July 2002

Date of Decision 5 July 2002

Advocate for Applicant Ms J Buss, Legal Aid Commission

Advocate for Respondent Mr S Modder, Department of Veterans' Affairs

DRAFT DECISION

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N2001/1384

By MR ALLEN, Senior Member

and Mr S Webb, Member

DONLAN and REPATRIATION COMMISSION

SYDNEY, 5 JULY 2002

MR ALLEN: By application made on 10 September 2001, the applicant sought review of a decision by the Repatriation Commission of 5 December 2000, as affirmed by a Veterans' Review Board on 20 December 2000, that inter alia refused his claim for what was termed mitral valve disorder and eczema. At the outset, it can be said that at the initiation of the hearing today, the applicant withdrew his claim for eczema. Consequently, the decision of the respondent in regard to that condition is affirmed. The matter therefore proceeded in relation to two conditions, in a sense, which apply to the applicant, namely that of a mitral valve prolapse and mitral valve regurgitation.

The applicant had operational service as that term is defined in section 6A of the Veteran's Entitlement Act 1986 as amended. Consequently, the standard of proof in this matter is that mandated by subsections 1 and 3 of section 120 of the said Act. Subsection 1 provides that the respondent Repatriation Commission, and hence this Tribunal, shall determine that a disease is was-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. In determining beyond reasonable doubt that there is no sufficient ground for determining that a disease is war-caused, the Commission shall be so satisfied beyond reasonable doubt if the material before it does not raise a reasonable hypothesis connecting the said disease to the circumstances of the particular service rendered by that person.

Subsection 6 of section 120 provides that neither party to this review bears any onus of proof. Subsection 3 of section 120A of the Veteran's Entitlements Act provides that an hypothesis shall not be a reasonable hypothesis unless it conforms with a so-called statement of principles. In this matter, the applicant has been diagnosed as suffering inter alia from mitral valve regurgitation. The disease of rheumatic mitral insufficiency bearing ICD code 394.1 includes rheumatic mitral valve regurgitation. It seems to us that code 394.1 covers certainly part of the applicant's disease, and consequently instrument number 93 of 1995, which is the statement of principles concerning rheumatic heart disease, applies in this matter. That appears to be the relevant statement of principle, consequently cases such as Repatriation Commission and Keeley 98 FCR 108 and Repatriation Commission and Gordon 2001 FCA 1194 are not applicable.

As there is a so-called statement of principle in existence, the way this Tribunal must approach the matter was set forth in Repatriation Commission and Delidio 83 FCR 82 at 91, where the court said:

1. The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service, and the disease. Identifying the hypothesis is a question of fact.

2. The second step under subsection 3 is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis, the raised facts, and if the hypothesis can be regarded as reasonable, assuming the raised facts to be true. In determining whether the hypothesis is reasonable, the decision maker must identify the facts said to point to it.

3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.

4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection 1 must be applied and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material which is inconsistent with the hypothesis is proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis.

In this matter, the hypothesis raised by the applicant conformed with factor 1B of the statement of principle, namely suffering a streptococcal A infection before the clinical onset of rheumatic heart disease. The hypothesis finds its support in the report of Dr Butler, consultant physician, dated 7 March 2002, exhibit A2. In that report, Dr Butler said:

Although there is no definite history of Mr Donlan suffering from rheumatic fever, this is a relatively uncommon sequel to streptococcal tonsillitis. It is well known that only about 50 per cent of patients presenting with evidence of chronic rheumatic heart disease give a history of an episode of acute rheumatic fever.

He added:

I believe it would be very difficult to exclude the likelihood that Mr Donlan had chronic rheumatic valve disease involving at least the aortic valve and possible mitral valve. Mr Donlan has definite aortic regurgitation, with probably a degree of aortic stenosis. This is very likely to be rheumatic in origin. Mitral valve prolapse is present, this is probably degenerative but it is not possible to exclude a degree of rheumatic involvement of the mitral valve.

The applicant's history certainly shows that he had Dengue Fever, followed by bouts of tonsillitis, during his war service. See for example page 18 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and also pages 22 and 23 of those documents. At document T8, page 45, a medical practitioner employed by the Department of Veteran's Affairs said that the veteran's conditions were detected on cardiac echo studies:

They may be due to age related degenerative changes, or previous rheumatic fever.

In a report dated 6 October 2000, document T15, Dr McCawley, cardiologist, and the applicant's treating cardiologist, said:

It is likely that the aortic valve lesion is rheumatic in origin. The mitral valve does have a degree of thickening, suggesting previous rheumatic disease.

In his evidence today, Dr Butler, having reviewed the applicant's service medical documents, said that:

It is highly probable that he had streptococcal tonsillitis. Also that mitral regurgitation can be caused by rheumatic fever. Typically, mitral stenosis is rheumatic in origin, and 50 per cent of persons have no recollection of typical rheumatic fever.

In other words, as he explained, 50 per cent of people who have suffered from rheumatic fever have no recollection of it. He also referred inter alia to the difficulties of diagnosis at the time the applicant suffered from his streptococcal infections.

There is an extract at T18 of the documents from the Merc Manual of Diagnosis, which states:

The incidence of rheumatic fever in untreated persons ranges from .1 to 3 per cent of those with streptococcal infections, the incidence approaches 50 per cent in untreated persons with a history of rheumatic fever, who develop streptococcal pharyngitis.

There are certain reports by Professor O'Rourke, which would tend to negate the hypothesis advanced by the applicant. However, as was pointed out by the High Court, in Burns and Repatriation Commission 177 CLR 564, at 569 following Bushell and Repatriation Commission 175 CLR 408 at 414:

The case must be rare where it can be said that a hypothesis based on the raised facts is unreasonable, when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.

In the same case at page 570 the court said:

In some cases the hypothesis may assume the occurrence or existence of a fact. That itself does not make the hypothesis unreasonable.

In this matter, working backwards, as we understand it, Dr Butler has hypothesised that the applicant's rheumatic heart disease is as the result of rheumatic fever, following a streptococcal A infection. It is certainly clear on the evidence that the applicant had what is highly probable to be a streptococcal tonsillitis. He was a young man and the fact that rheumatic fever remained undiagnosed is understandable, but in any event the statement of principle doesn't require us to go that far. All that is required is suffering streptococcal A infection before the clinical onset of rheumatic heart disease, and it is highly probable that that was so.

It seems to us therefore that the hypothesis has certainly been raised, in the sense that Delidio discussed it. The hypothesis having been raised, there is no material before us which would disprove the hypothesis on the standard of proof required by subsection 1, section 120. The only other matters we need deal with is the suggestion by the respondent that the applicant's condition did not amount to a disease. However, when one looks at the definition of "disease" in section 5D of the Veteran's Entitlements Act, it seems to us that rheumatic heart disease, or indeed a mitral regurgitation, must equate to a disease.

The only other matter we would mention is that at page 2C of the section 37 documents, in the decision by the delegate of the Repatriation Commission, there is a statement as follows:

I find that a temporal (time) link between the streptococcal A infection exists.

Perhaps one can interpose there that the Repatriation Commission delegate has found that a streptococcal A infection exists, but the delegate went on to say:

However, I can find no evidence that it is directly attributable to your service conditions. There are no specific conditions on your service to support a finding that this service caused the infection.

One would have thought that such misconceived views of the law had disappeared, following the decision of the High Court in Repatriation Commission and Law, 147 CLR 635. If such errors are still current amongst the delegates of the Repatriation Commission, it is high time that the Commission engaged in some retraining, otherwise the Veteran's Review Board and this Tribunal will have its workload materially increased. That having been said, suffice it to say in this matter that an hypothesis has been raised on the material, which has not been negatived beyond reasonable doubt.

Consequently, the decision of the Repatriation Commission on 5 December 2000 is varied, in that the Tribunal substitutes in lieu that the condition of rheumatic heart disease is a war-caused disease. The date of effect is as and from 11 June 2000, and the matter is remitted to the respondent in order that it might assess the degree of pension to be paid for all war-caused injuries and diseases suffered by the applicant.