Fogarty and Repatriation Commission [2002] AATA 879 (2 October 2002)

Last Updated: 4 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 879

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2000/1465

VETERANS' APPEALS DIVISION

Re: OLIVE MILDRED FOGARTY

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 2 October 2002

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS - veterans' entitlements - diverticular disease of the colon - changing to a diet lower in dietary fibre - whether war-caused - assessment of level of disability

Veterans' Entitlements Act 1986 s8, 120(1), 120(3), 120(4), 120A(3)

Meehan v Repatriation Commission (2001) 64 ALD 366

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Yates (1995) 38 ALD 80

REASONS FOR DECISION

2 October 2002 G.D. Friedman, Member

1. This is an application by Olive Mildred Fogarty (the applicant), widow of William Francis Fogarty (the veteran) for review of a decision of the Veterans' Review Board (VRB) dated 9 October 2000. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 12 March 1999 that diverticular disease of the colon was not war-caused.

2. At the hearing of this matter on 2 September 2002 Mr D. De Marchi, solicitor, represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T30), together with three exhibits lodged by the applicant (Exhibits A1-A3) and five lodged by the respondent (Exhibits R1-R5).

BACKGROUND

4. The veteran was born on 1 June 1922. After attending junior technical school in Melbourne where he excelled at swimming, he won a scholarship to Footscray Accounting College. He commenced work as a clerk and at the age of eighteen he enlisted in the Royal Australian Navy (the navy). He served from 30 September 1940 until 4 January 1946 and this period is considered to be operational service for the purpose of s8 of the Veterans' Entitlements Act 1986 (the Act).

5. In the navy the veteran trained as a signalman and spent time on SS Victoria, a pilot ship based in and around Victorian coastal waters. He also spent time on minesweepers, followed by fourteen months with the destroyer HMAS Quickmatch in the South-West Pacific. On discharge from the navy the veteran found employment as a cabinet-maker, a fencer and in a meatworks, and he became a trade union official. In 1973 he entered the Legislative Assembly of the Victorian Parliament as the Member for Sunshine, where he remained until his retirement in 1988.

6. On 10 March 1999 the veteran lodged an application with the respondent for disability pension for incapacity from diverticulitis. On 12 March 1999 the respondent diagnosed the claimed condition as diverticular disease of the colon and refused the application on the grounds that the condition was not war-caused. On 9 October 2000 the VRB affirmed the decision of the respondent. On 5 December 2000 the veteran lodged an application with the Tribunal for review of the decision of the VRB. On 13 July 2001 the veteran died, and on 7 March 2002 the respondent approved the applicant's application to continue the claim.

7. The veteran had the following accepted disabilities: left antritis, chronic bronchitis, sleep apnoea, and the following rejected disabilities: generalised anxiety disorder and ischaemic heart disease. A claim for hypertension is before the Federal Court of Australia. At the time of his application the veteran was receiving disability support pension at the rate of 80 per cent of the general rate.

EVIDENCE

8. The applicant gave oral evidence that she met the veteran in 1943 and they married in Sydney in June 1945. She said that he always seemed to have bowel problems, and was hospitalised after the war. She stated that in her recollection of conversations with the veteran he had described his navy diet as consisting of bully beef and tinned vegetables, as supplies of fresh fruit and vegetables were scarce.

9. In a written report dated 13 February 2001 (Exhibit A1) Dr R. Marshall, general surgeon, stated that he examined the veteran on 13 February 2001. He stated that, while at sea, the veteran had subsisted almost entirely on solid tinned food and the diet was almost entirely deficient in fibre. Dr Marshall stated that on 27 September 1944 the veteran was taken to Williamstown Hospital after suffering diarrhoea, vomiting and abdominal pain which was diagnosed as gastroenteritis. He was discharged on 30 September 1944. He said that in 1957 the veteran had been referred to the Repatriation Hospital by his general practitioner (Dr Phillips) for investigation of morning nausea and vomiting which had lasted for some months. The symptoms were associated with abdominal pain in his left iliac fossa.

10. Dr Marshall also noted that Dr Phillips had treated the veteran for gastrointestinal disorders, which he (Dr Phillips) thought, were probably gastroenteritis but in retrospect regarded as having been caused by diverticulitis. Dr Marshall said that the veteran still has exactly the same sort of pain in the same place in his left iliac fossa which was diagnosed as diverticulitis in 1982, and the condition was confirmed in 2000 by colonoscopy. Dr Marshall noted:

Given that the pain was the same as that which had troubled him in 1957, it seems reasonable to conclude that he was suffering from diverticular disease of the colon at least from 1957 onwards.

11. In his report Dr Marshall noted that:

...the diverticular disease once the process of herniation had begun would inevitably worsen gradually over the years and it is perfectly reasonable to imagine that symptoms would not appear even after three months but might well be delayed for some years.

12. Dr Marshall concluded that the veteran did have diverticular disease of the colon, which developed as a result of his low-fibre diet in the service, and did not become symptomatic or obvious until ten years later and started to cause problems in 1957.

13. Dr Marshall gave oral evidence and told the Tribunal that both reports show that the veteran had all the symptoms of diverticulitis in his youth, and that the condition worsened gradually. Dr Marshall explained that until the 1960s there was no realisation that a low-fibre diet was the cause of diverticulitis.

14. Ms D. Hutchinson, daughter of the veteran, gave oral evidence and told the Tribunal that according to her recollection the veteran always had stomach trouble. She said that she remembered an acute attack of diverticulitis suffered by the veteran and several subsequent hospitalisations for acute airway disease. She did not recall any mention of dietary matters as being a cause for concern.

15. In a written report dated 1 November 2001 (Exhibit R1) Dr J. Francis, general surgeon, stated that the veteran first presented with what was claimed to be diverticulitis in early 1957. He said that clinically no abnormality was detected and far from a diagnosis of diverticulitis being made the investigations recommended were for a barium meal, a fractional test meal and an x-ray of the sinuses. Dr Francis stated that there is no record of the veteran being in hospital apart from three days in 1944 with what was diagnosed as gastroenteritis. He said:

There is no evidence in the records to show that this was anything but an attack of gastroenteritis in that his predominant symptoms appeared to be nausea and vomiting plus diarrhoea. This is classical of gastroenteritis rather than diverticular disease in particular in the rapid recovery.

16. In relation to the dietary fibre content Dr Francis said:

...

We have no record of Mr Fogarty's pre-war diet but if one assumes that it was the normal Australian civilian diet then according to the report of Ms Janine Lewis the dietary intake of fibre in the services that she comments upon was higher in fibre in the services than it was in the civilian populace. The evidence given by Mr Fogarty when questioned at the Tribunal tends to bear this out with his description of roughage materials such as biscuits, tins of meat and vegetables, tins of baked beans and bread in addition.

Dr Francis said that there was no clinical worsening of the veteran's diverticular disease because during operational service none of his symptoms favoured diverticular disease. In oral evidence Dr Francis told the Tribunal that dehydrated food, plus tinned vegetables, contained sufficient roughage to protect the veteran against diverticular disease of the colon.

17. In a written report titled Nutrient Analysis of Ration Scales - World War 2 dated July 1998 (Exhibit R2) Ms J. Lewis, consultant nutritionist, stated that in the Pacific Ration Scale the bread ration was 12 oz. per man per day, and an additional 1 oz. of wheatmeal was included in the Scale. She also noted that the diet for Pacific Ration Scale included meat (preserved and tinned), vegetables (dehydrated, fresh, dried and tinned) and tinned baked beans.

CONSIDERATION OF THE ISSUES

18. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

19. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. The parties submitted that the applicable SoP concerning diverticular disease of the colon was Nº 67 of 1994, which was amended by Nº 87 of 1997. Paragraph 1 of the applicable SoP states that among the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting diverticular disease of the colon or death from diverticular disease of the colon are:

(a) suffering from scleroderma before the clinical onset of diverticular disease of the colon; or

(b) changing to a diet at least 50% lower than usual in dietary fibre for that person, for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon; or

(c) inability to obtain appropriate clinical management for diverticular disease of the colon.

Paragraph 3 of SoP Nº 67 of 1994 provides that factors 1 (b) and (c) apply only where:

(a) the person's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which the factor is related; and

(b) the relationship suggested between the diverticular disease of the colon and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d), or 70(5A)(d) of the Act.

20. Under the third step from Deledio, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.

21. Mr De Marchi submitted that the hypothesis fits within the template and is reasonable. He said that the word reasonable should be given a broad meaning, and he relied on the report from Dr Marshall to support his contention that the applicant meets factor 1(b) of the SoP. He submitted that as Ms Lewis was not available for cross-examination, the Tribunal should not draw inferences from her report that would be adverse to the applicant, and he stated that there was no evidence that the rations described by Ms Lewis were available to the veteran at sea on operations.

22. Ms McCulloch submitted that the applicant's diverticular disease of the colon did not occur during service. She referred to Repatriation Commission v Cornelius [2002] FCA 750 in which Branson J accepted the definition of clinical onset as follows:

...there is clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...

Ms McCulloch said that service documents relating to the veteran's hospitalisation in 1944 show that he was diagnosed as suffering from gastroenteritis. She noted that in oral evidence to the Tribunal Dr Marshall stated:

...I do not know what the diagnosis was that was actually made at the time...It might have been an attack of bacillary dysentery or other viral gastroenteritis or whatever. It could also have been due to an attack of diverticular disease.

...

...if Mr Fogarty didn't have acute diverticulitis when he was hospitalised in 1944 when he had already then been on a lower fat diet, all unbeknown to anybody for four years, and then it got better after four days, if it wasn't diverticular disease, what was it then that produced that. I mean, I suppose it could have been an intestinal infection, you know, gastroenteritis, but he did have then, according to his notes, pain in his left iliac fossa...

She said that the clinical notes and the evidence of Dr Francis show that the veteran's symptoms were all upper abdominal and were not indicative of diverticular disease.

23. Ms McCulloch submitted that Dr Marshall's oral evidence demonstrates that he was not aware of the veteran's service medical documents or the veteran's own evidence to the VRB, in which the veteran agreed that when serving on HMAS Quickmatch from 21 December 1944 to 10 December 1945 his diet consisted of fresh bread, dry biscuits and tinned vegetables that included plenty of baked beans. The veteran also stated that prior to this time his diet included fresh vegetables and he had a break every fortnight, when he would get fresh food. Ms McCulloch said that Dr Marshall conceded at the hearing that he had not read Ms Lewis' report. Ms McCulloch submitted that, for these reasons, there was no factual basis for Dr Marshall's conclusion in his report of 13 February 2001 that during service the veteran's diet was ...almost entirely deficient in fibre.

24. Ms McCulloch also submitted that for clinical worsening to occur, the symptoms of a diagnosed condition must have departed sufficiently significantly from their pre-existing state to warrant an escalation of treatment for the condition. She said that in this case there was insufficient evidence that such worsening of symptoms attributable to diverticular disease of the colon occurred during operational service. She stated that in fact the condition was not diagnosed and treated until 1982. Ms McCulloch submitted that in relation to paragraph 3(b) of SoP Nº 67 of 1994 the condition must be made permanently worse by service-related circumstances before the Tribunal can conclude that it was aggravated within the meaning of the Act (Repatriation Commission v Yates (1995) 38 ALD 80).

25. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

26. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the veteran suffered from diverticular disease of the colon, and that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

27. In respect of the second step, the Tribunal finds that SoP Nº 67 of 1994, which was amended by Nº 87 of 1997 concerning diverticular disease of the colon, was in force and is relevant.

28. In respect of the third step, the Tribunal finds that in relation to paragraph 3(a) of SoP Nº 67 of 1994 the evidence from Dr Marshall contained a considerable amount of speculation as to the date on which the veteran contracted diverticular disease of the colon. The Tribunal accepts the submission by Ms McCulloch that Dr Marshall's conclusions were based on an assumption about the level of fibre in the veteran's diet that was not supported by the evidence from the veteran before the VRB or contained in the report by Ms Lewis. Further, the Tribunal finds that in his evidence Dr Marshall conceded that he did not know whether the diagnosis of gastroenteritis that was made in 1944 was correct.

29. The Tribunal prefers the evidence from Dr Francis that the symptoms displayed by the veteran in 1944 were not indicative of diverticulitis, and were consistent with the diagnosis of gastroenteritis that was made at the time. The Tribunal agrees with Ms McCulloch that Dr Francis' evidence and the clinical notes demonstrate that, in view of the symptoms displayed from 1944, diverticular disease of the colon was contracted later than 1944 and after the period of service, probably from 1957, so that factor 1(b) does not apply. There was no evidence that factor 1(a) applies.

30. For these reasons the Tribunal is not reasonably satisfied that the veteran's diverticular disease of the colon was contracted prior to a period, or part of a period, of service to which factors 1(a) or (b) apply. Therefore the applicant does not satisfy paragraph 3(a) of SoP Nº 67 of 1994.

31. In view of the Tribunal's findings that the conclusions by Dr Marshall concerning the amount of fibre in the veteran's diet were not supported by fact, and in view of the contents of Ms Lewis' report and the evidence given by the veteran to the VRB about his diet, the Tribunal is not reasonably satisfied that the veteran changed to a diet at least 50 per cent lower than usual in dietary fibre... for a continuous period of at least 90 days immediately before the clinical worsening of diverticular disease of the colon. Therefore, the applicant does not satisfy factor 1(b) of SoP Nº 87 of 1997. There was no persuasive evidence that factor 1(c) applies.

32. For these reasons the Tribunal finds that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP, so the third step is not met. Therefore, there is no need for the Tribunal to consider the fourth step.

33. In respect of the assessment of the level of the disability pension payable to the applicant, Mr De Marchi submitted that for the accepted condition of chronic bronchitis the Tribunal should allocate 55 impairment points because the veteran was assessed by Dr Lee at a cardiorespiratory level of 2-3 METS (units measuring physical exertion) at the age of 73 years. He said that sleep apnoea was assessed at 20 points and left antritis 5 points, and that Dr Marshall had assessed diverticular disease of the colon at 5 points. Mr De Marchi said that the combined impairment rating would be 68 points rounded up to 70 points, which according to the Guide to the Assessment of Rates of Veterans' Pensions, fifth edition (GARP V) would automatically convert to pension at 100 per cent of the general rate. He added that in view of Ms Hutchinson's evidence about hospitalisation of the veteran on four occasions in the 15 months preceding his death, 20 impairment points should be awarded for diverticular disease of the colon, and a lifestyle rating of 6 would apply. He said that in these circumstances the Extreme Disablement Rate would apply.

34. Ms McCulloch referred to the combined impairment assessment conducted by Dr Morgan on 15 June 2000, Dr Marshall's report dated 13 February 2001 and the Dr Marshall's oral evidence to the Tribunal. She said the appropriate rating is: 5 points for left antritis, 12 points for chronic bronchitis, 10 points for sleep apnoea, and 5 points for diverticular disease of the colon, giving a combined assessment of 29, rounded to 30 impairment points. She submitted that according to this assessment pension is appropriately assessed at 50 per cent of the general rate, but she submitted that the respondent's decision of 29 October 1998 granting pension at 80 per cent of the general rate should remain.

35. After considering all relevant material the Tribunal accepts that the veteran's rejected condition of ischaemic heart disease accounts for a significant component of cardio-respiratory incapacity, so the impairment rating for chronic bronchitis is 12 points (Table 19.2). The Tribunal finds that on the medical evidence the rating for sleep apnoea is 10 points (Table 16.3) and for left antritis 5 points (Table 7.2.2). In view of the Tribunal's decision not to accept diverticular disease of the colon as war-caused, the calculation of the combined impairment assessment using the combined values chart in Chapter 18 of GARP V is 12+10+5 which converts to 25 points, and the degree of incapacity would be 40 per cent. Nevertheless, the Tribunal accepts the submission on behalf of the respondent that the decision granting pension at 80 per cent of the general rate should remain.

DECISION

36. The Tribunal affirms the decision under review.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for decision of

G.D. Friedman

(sgd): Olympia Sarrinikolaou

Clerk

Date of hearing: 2 September 2002

Date of decision: 2 October 2002

Advocate for applicant: Mr D. De Marchi, Solicitor

Solicitor for applicant: De Marchi & Associates

Advocate for respondent: Ms J. McCulloch, Advocate

Solicitor for respondent: Advocacy Section, Department of Veterans' Affairs