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Administrative Appeals Tribunal of Australia |
Last Updated: 20 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/1008
VETERANS' APPEALS DIVISION
Applicant
RespondentTribunal: P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member, S. Webb, Member
Place: Sydney
Decision: Decision under review affirmed.
(sgd) P. J. Lindsay
Senior Member
© Commonwealth of Australia (2003)CATCHWORDS Veterans' Affairs - whether irritable bowel syndrome war-caused -- decision affirmed
Veterans' Entitlements Act 1986 - ss. 6, 119, 120(4), 120B, 196B
Repatriation Medical Authority Statement of Principles, Instrument No. 104 of 1996 concerning Irritable Bowel Syndrome.
Repatriation Commission v Smith (1987) 15 FCR 327
Brew v Repatriation Commission (1999) 94 FCR 80
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989
P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member and S. Webb, Member
1. This is an application under the Veterans' Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused the claim by Mr Andrewartha (the Applicant) for acceptance of irritable bowel syndrome as a war-caused disease under the Act. The decision was affirmed by the Veterans' Review Board.
2. Mr P. Strain of Counsel appeared for the Applicant. The Commission was represented by Ms T. McConnell from the Department of Veterans' Affairs. The Applicant gave evidence at the hearing. Dr Cook, a general surgeon, gave evidence on behalf of the Commission.
3. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.
BACKGROUND
4. Born on 20 October 1917, the Applicant served in the Royal Australian Air Force (RAAF) from 6 May 1944 to 5 February 1946 (T3), which is a period of "eligible war service" as defined in s.7 of the Act. It was a period of continuous full-time service as a member of the Defence Force during World War II, but was not operational service. The Tribunal is required, therefore, to decide the matters raised in the Applicant's application to its reasonable satisfaction: s.120(4) of the Act. As his claim for the pension was lodged after 1 June 1944, s.120B applies. In determining whether the Applicant's irritable bowel syndrome was war-caused, s.120B(3) requires the Tribunal to be satisfied there is material that raises a connection between the disease and service, and that a Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA) upholds the contention that the disease is, on the balance of probabilities, connected with his service. The relevant SoP in force concerning irritable bowel syndrome is Instrument Number 104 of 1996. It states:
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that irritable bowel syndrome can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factors set out in the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, irritable bowel syndrome or death from irritable bowel syndrome is connected with the circumstances of a person's relevant service are:
...
(b) suffering an episode of severe diarrhoea within the six months immediately before the onset of irritable bowel syndrome ...
Clause 2(b) of the SoP states:
2 (b) For the purposes of this Statement of Principles, "irritable bowel syndrome" means a heterogenous group of disorders of diverse symptomatology in which abdominal pain is associated with defaecation or changes in bowel habit, and with features of disordered defaecation and with distention, and which is characterised by the following symptom criteria:
At least three months, continuous or recurrent symptoms of:
(A) Abdominal pain or discomfort which is
* relieved by defaecation;
* and/or associated with a change in frequency of stool;
* and/or associated with a change in consistency of stool
plus
(B) An irregular pattern of defaecation at least 25% of the time, consisting of two or more of the following:
* altered stool frequency;
* altered stool form (lumpy/hard or loose/watery)
* altered stool passage (straining, urgency, or feeling of incomplete evacuation)
* passage of mucus;
* bloating or feeling of abdominal distension,
attracting ICD code 564.1.
Also relevant is the following definition:
7. For the purposes of this Statement of Principles:
"episode of severe diarrhoea" means the acute onset of an illnes characterised by the passage of frequent loose watery motions accompanied by a marked urgency to defaecate, caused by an infective organism, and of sufficient severity to warrant medical attention, or in the absence of medical intervention, lasting at least four days;
5. The parties do not dispute that the Applicant now suffers from irritable bowel syndrome.
6. On 18 August 1999, the Applicant lodged a claim with the Commission for pension in respect of irritable bowel syndrome. The claim was refused. An application for review of the Commission's decision was heard by the Veterans' Review Board and it affirmed the Commission's decision. The Applicant has now applied to the Tribunal for review.
EVIDENCE
7. The Applicant's medical examination on entry into the RAAF in May 1944 noted that he had never suffered from stomach or bowel trouble (T3). In his evidence at the hearing, the Applicant said that in the years before enlisting he may have had a bit of diarrhoea or constipation, just as all children do.
8. Initially posted to Cootamundra and after basic training in Melbourne, the Applicant was posted to Sydney, then to Evans Head and finally to Tocumwal Air Base. He was a fitter by occupation. At Tocumwal he slept in dormitory quarters of 10 to 12 people, with his bed about a metre from the next man. His evidence was that 100 or so personnel used the mess at the Tocumwal base. There was no running water available for washing up. Those who were not among the first to clean their plates and cutlery after meals had to wash and rinse their kit in dirty water.
9. He recalled having an attack of diarrhoea while working at Tocumwal. As the attack happened late in the afternoon he did not attend the sick bay until the following day. He was given some medication. He said the diarrhoea persisted for seven days, perhaps a day or two longer. He said he also suffered with constipation intermittently, an attendance for this complaint on 22 May 1944 being noted in his sick parade cards (T3). The Applicant's full service records were admitted in evidence (Exhibit R4). Therein are records relating to dental treatment including periodontitis, 19 days in hospital during August 1944 when suffering acute tonsillitis and 11 days hospitalisation for pyelitis in September 1944. He said he had another three or four episodes of diarrhoea while at Tocumwal. Those episodes were severe and involved cramping and pain in the stomach as well as loose stools. The Applicant's evidence was that on at least two occasions he sought medical attention for the diarrhoea. There is, however, no record of his attending sick parade for any of his episodes of diarrhoea. At a medical examination in January 1946 on his discharge from the RAAF, the Applicant stated that he did not suffer from ailments of any kind and in response to a specific question, stated that he had not suffered from dysentery.
10. Following his discharge from the RAAF, the Applicant said that he experienced episodes of diarrhoea, on average, two or three times a year, but he could go 12 to 18 months without an attack. Dr Menzies was the Applicant's G.P from the 1950s to the early 1980s. Dr Menzies' clinical notes, which were admitted in evidence (Exhibit R2), record a number of attendances on the Applicant in relation to his bowel movements:
* 9 May 1957 - "Pale and jaundiced. Tarry stools. Duodenal ulcer."
* 9 November 1961 - "Diarrhoea for past 4 days - has been keeping off fats & taking Kaomycin yesterday got mixture from chemist -> diarrhoea stopped but has abd pain which is constant all the time. Not frequent diarrhoea previously - Is passing quite a lot of blood with motions, thinks these are from h'oids. For Hb and RCC for Ba Enema? [On examination] tender in umbilical area. ... "
* 28 July 1964 - "Epigastric pain for about 2/52. Has woken him at night about 2am - relieved by antacids. No diarrhoea. No loss of appetite."
* 7 August 1964 - "Pain persists ... Bowel looseness past 1/52."
* 29 October 1970 - "Change in bowel habit 1/12 ... constipation."
* 4 March 1982 - "Diarrhoea 2/52 - abdomen NAD. "
* 5 July 1982 - "Recurrence of bowel looseness 2/52."
The Applicant said he would see Dr Menzies when he had bouts of diarrhoea. Dr Menzies submitted a brief report dated 13 May 2002 to the Applicant's solicitors (Exhibit A1) stating "This is to certify that Mr J. Andrewartha was examined on 5th July 1982. He complained of diarrhoea and bowel looseness, which had been in existence for some weeks. A Barium Enema examination at the time showed no abnormalities."
11. In his evidence the Applicant said that it was in 1982 that he got symptoms of diarrhoea alternating with constipation. He was not sure if he had had such symptoms previously. In April 1982 the Applicant consulted another G.P, Dr Kovats. In her referral letter dated 20 September 1982 to Dr Cowlishaw, Gastroenterologist and Consultant Physician, Dr Kovats wrote "Mr Andrewartha has had recurring mucous diaorrhea and abdominal cramps for the last three years since a visit to Hong Kong. He was first seen at this surgery in April 1982 ... The episodes of diarrhoea are associated with crampy pain." (Exhibit R3 p.318). Dr Cowlishaw took a medical history that included an inguinal herniorrhaphy thirty years earlier, haemorrhoidectomy twenty years earlier, removal of a lipoma and angina diagnosed twenty years previously. Dr Cowlishaw reported as follows to Dr Kovats on 6 October 1982 (Exhibit R3 p.322):
Thank you for asking me to see Mr Andrewartha regarding his six month history of recurrent diarrhoea.
Over the last six months, he has had recurrent episodes of diarrhoea lasting between two and ten days although these episodes appear to be becoming less frequent and of shorter duration. ... He has had previous episodes of `gastroenteritis' but no previous similar illnesses. He had diarrhoea on returning from Hong Kong three years ago but this episode only lasted three or four days. He had no antibiotic therapy prior to the onset of this illness.
...
Differential diagnosis at the present time would appear to rest between carcinoma or polyp, inflammatory bowel disease or infective causes. Alternate diagnoses such as irritable bowel or malabsorption seem less likely. ...
12. Dr Cowlishaw treated the Applicant for a year or two thereafter. Dr Cowlishaw arranged for blood tests, a bone marrow test, X-rays, a barium enema and a colonoscopy. The Applicant remained concerned that the cause of his diarrhoea may have been colonic cancer. On 30 September 1983 Dr Cowlishaw advised Dr Kovats that "I feel the diagnosis is that of the Irritable Bowel Syndrome, however, there is no obvious relationship between any of his symptoms and stress, or any other events." (Exhibit R3 p.307). Some years later, Dr Korner, a G.P then treating the Applicant, referred the Applicant back to Dr Cowlishaw, who reported to Dr Korner on 31 August 1988 as follows (Exhibit R3 p.291):
Extensive investigation [in 1982] of the upper gastro-intestinal tract, small bowel and colon, failed to disclose a cause for his symptoms which have been presumed secondary to the irritable bowel syndrome. The reason for the onset of his symptoms at that particular time, however, remains unexplained. ...
He has since Brian Billington for second opinion who also felt that irritable bowel was the diagnosis.
Currently, he still passes intermittent mucous and loose stool with occasional constipation. His prime worrying symptom, however, is of occasional nocturnal incontinence of loose stool. ...
13. Since the Applicant's symptoms of alternating normal / constipated stools and diarrhoea persisted, Dr Korner sought another opinion from Dr Borody, Gastroenterlogist, who practises at the Centre for Digestive Diseases. In June 1992 Dr Borody wrote to Dr Korner as follows: "Thank you for letting me see this gentleman who has been suffering since around 1982 with recurrent diarrhoea cycling about ten to fourteen days with normal stools in between." (T6B). Dr Borody's initial treatment was to have him undergo a C14 breath test, then continue with bismuth and antibiotics. If that treatment was not successful, Dr Borody proposed to wash the bowel out and infuse cultured bacteria. By 4 August 1992 Dr Borody was able to report that the Applicant's recurrent diarrhoea appeared to have completely resolved (T6B), but by October 1992 he had developed constipation. Bacterial treatment was administered in November 1992 and Dr Andrews, of the Centre for Digestive Diseases, wrote to Dr Korner on 2 December 1992, "Only time will tell whether we have been able to make a permanent change to the bacterial colony present in his gut and hence a longterm cure of his previous bowel trouble." (Exhibit R3, p.258). The Applicant underwent another colonoscopy in July 1993 as he was having increasing problems with his bowel, again fluctuating between diarrhoea and constipation. In November 1998 Dr Borody wrote to Dr Korner to express surprise that the Applicant's incontinence had gone away. Dr Borody advised the Applicant to perform abdominal muscle exercises and was "hopeful that given time his bowel may reduce its rather broad diameter by reacquiring the tone it had lost through years of constipation/diarrhoea - which I think was the underlying problem." (Exhibit R3 p.183).
14. On 22 July 1999 Dr Borody wrote the following letter to Dr Korner (T4):
I was discussing with John the possible aetiology of his long standing severe Irritable Bowel Syndrome. We went back as far as possible to find out where the more likely cause of his condition originated.. From his history it seems that the first symptoms date back to a camp at Tocumwal where he developed stomach upsets and what sounds like a gut infection for which he sought help.
We now know that even within the first six months after a gastrointestinal infection 7% of patients will develop long standing Irritable Bowel Syndrome. As we go longer and longer after such infections a higher percentage end up with IBS. It seems that IBS is an ongoing infection with some infecting agent that co existed or was part of the acute infection and it would seem that more than likely John caught his infection while he was in the Air Force. He has now been left with a bacterial infection in the gut ...
My clinical impression based on the current scientific knowledge is that he acquired his infection in the past almost certainly in the Air Force, and now continues with lifelong suffering which gives him incontinence intermittently.
15. On 1 March 2002 Dr Cowlishaw provided the Applicant's solicitors with a report of the treatment he had given the Applicant including the following opinion (Exhibit A2):
Mr Andrewartha experienced two episodes of diarrhoea lasting between 3-5 days at a time, during his military service, whilst serving in Tocumwal between September 1944 and 1946. He apparently attended Sick Parade on both of these occasions.
Subsequent to these episodes he had occasional episodes of diarrhoea, lasting 7-10 days at a time, at intervals of 6-12 months, but with normal bowel function in between these episodes.
He was first seen by me with symptoms of irritable bowel syndrome in October 1982, with a 6 month history of recurring episodes of diarrhoea and normal stools.
...
There is no doubt that he fulfils the `statement of principals' [sic] concerning a diagnosis of the irritable bowel syndrome. He certainly has experienced recurrent episodes of diarrhoea lasting at least 4 days in the period preceding the clinical onset of his irritable bowel symptoms, and did present for medical attention for these episodes during his military services.
There is however a very long interval between these transients [sic] episodes of diarrhoea and the onset of these current symptoms.
Therefore, whilst there is no doubt that he has significant disabling irritable bowel symptoms, there is some question as to whether his symptoms are related to diarrhoea experienced during military service.
16. For the Commission, a report was sought from Dr Cook, a General Surgeon, who examined the Applicant on 6 November 2001 (Exhibit R1). The Applicant`s history referred to a few episodes of diarrhoea during service but received medical treatment only for the first episode. Dr Cook reported that the Applicant had episodes of diarrhoea and constipation in the 1950s and that he attended Dr Menzies on those occasions when he had pain with the diarrhoea. He did not have to stay away from work due to his diarrhoea. He said that the diarrhoea settled down in the 1960s but recurred together with constipation in the late 1970s. In cross-examination Dr Cook said he was not an expert in irritable bowel syndrome and acknowledged that he is not a gastroenterologist. Dr Cook disputed Dr Borody's thesis that infection can cause irritable bowel syndrome. In Dr Cook's opinion (Exhibit R1):
The first mention of gastrointestinal upset while in the RAAF was on 1 October 1945 when indigestion after meals is stated to be his complaint. The examining doctor on that occasion made no mention of diarrhoea and in fact treated him with Mist Gent Alk and also Mist Bis Sed which were classical remedies at that time for stomach upset. I feel certain that had diarrhoea been a complaint, the claimant would have been prescribed one of the opium medicines or Codeine mixtures which were in vogue at that time.
...
I note the letter of Dr Borody dated 22 July 1999 and sent to Dr Korner in which he said that the claimant's first symptoms date back to a camp at Tocumwal where he developed stomach upsets and what sounds like a gut infection for which he sought help. It would appear to me that the veteran had a stomach upset as recorded in the notes and there was no evidence at that stage of a gut infection.
In essence, I believe that the claimant does now have irritable bowel syndrome but I do not consider it due to his stomach upset which is well recorded in 1945.
...
For the reasons given above, I believe the clinical onset of his irritable bowel syndrome was when he was first seen by Dr Menzies and Dr Korner in the late 1970s or in early 1982. ...
As stated above, I do not consider the claimant's irritable bowel syndrome relates to his operational service.
CONSIDERATION AND FINDINGS
17. Mr Strain submitted that clinical onset of the Applicant's irritable bowel syndrome was during service. Alternatively he contended that if the Tribunal found that clinical onset of irritable bowel syndrome was in 1982, the Applicant would succeed because he nevertheless satisfies Factor 5(b) of SoP 104 of 1996. Relying on the opinion of Dr Borody, Mr Strain submitted that the Applicant's episode of diarrhoea prior to clinical onset in 1982 at that time was connected to service because it was, in Dr Borody's opinion, due to the gut infection picked up in Tocumwal. Ms McConnell submitted that clinical onset of irritable bowel syndrome was in 1982, thirty-six years after service, and the Applicant had not led evidence that attributed the disease to service. Further, Ms McConnell submitted there was no evidence that causally related the infection leading to diarrhoea to the Applicant's service. It was implausible, in her submission for the Applicant to have experienced five episodes of diarrhoea, none of which is recorded, and for him to work usual duties throughout those periods. Against that Mr Strain submitted that the Applicant's medical records were incomplete and inaccurate. He referred to their omission of the Applicant's attendance at a civilian dentist for periodontic procedures that the RAAF dentist was unable to carry out. However, the Tribunal notes that such an attendance is recorded in the Applicant's full service records (Exhibit R4 p.34). Mr Strain referred to their inaccuracy, noting that the discharge medical examination was date-stamped 1945 not 1946 and that the Applicant cut his middle finger on the left hand, not the right as recorded.
18. The Tribunal is required to determine, to its reasonable satisfaction, whether the Applicant's irritable bowel syndrome is a war-caused disease and in doing so will apply the civil standard of proof (Repatriation Commission v Smith (1987) 15 FCR 327). His application will fail if SoP 104 of 1996 does not uphold the contention that his irritable bowel syndrome is, on the balance of probabilities, connected with his eligible war service (Brew v Repatriation Commission (1999) 94 FCR 80). Mr Strain contended that the Applicant satisfied Factor 5(b) of the SoP which states "suffering an episode of severe diarrhoea within the six months immediately before the onset of irritable bowel syndrome;". Factor 5(a), the only other factor dealing with clinical onset of irritable bowel syndrome, as opposed to clinical worsening, is clearly not applicable as it refers to the veteran suffering a psychiatric condition before clinical onset. Clause 4 of the SoP requires the relevant factor to "be related to any relevant service rendered by the person." Section 196B(14) of the Act provides that a factor will be related to service if:
(b) it arose out of, or was attributable to, that service; or
...
(f) in the case of a factor causing, or contributing to, a disease - it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service;
19. The Tribunal accepts that the Applicant gave evidence of his recollections of events that occurred nearly sixty years ago to the best of his ability. However, the Tribunal notes the absence of service medical evidence regarding any episodes of severe diarrhoea during service, let alone evidence of diarrhoea caused by an infective organism, or a reference on discharge to having suffered an episode of severe diarrhoea. Nor is there other material that would corroborate the Applicant's evidence. Further, there is no account of an episode or episodes of severe diarrhoea in the histories taken by the doctors in a treatment setting. In 1982, Dr Kovats noted a history of recurring diarrhoea and stomach cramps since a visit to Hong Kong three years earlier, but there was no reference to episodes of severe diarrhoea while in the RAAF. The history taken by Dr Cowlishaw did not refer to severe diarrhoea while on service and noted that the Applicant had not experienced similar illnesses to his recurrent diarrhoea. Similarly, the history from Dr Borody's initial consultation in 1992 refers to the Applicant's suffering recurrent diarrhoea from 1982. Dr Billington, who in 1984 also diagnosed irritable bowel syndrome, made no mention of severe diarrhoea during service in his letter to Dr Kovats in March 1984 (Exhibit R3 p.303). The Tribunal takes into account the passage of time and the provisions of s.119(1)(h) of the Act. On balance, however, the Tribunal finds that there is insufficient evidence for a finding that the Applicant, while on service, suffered `an episode of severe diarrhoea', being an episode of sufficient severity that would have warranted medical attention or otherwise would have lasted at least four days.
20. Further, there is insufficient evidence for the Tribunal to be satisfied to the relevant standard that, for at least three months after an episode of diarrhoea on service, the Applicant had continuous or recurrent symptoms of irritable bowel syndrome. Weinberg J in Repatriation Commission v Gosewinckel (1999) 59 ALD 690 held that there cannot be a "clinical onset" of a disease before the condition satisfies the requirements of the disease in the SoP. The Tribunal prefers the evidence of Dr Cook and Dr Cowlishaw to that of Dr Borody. Dr Borody's opinion regarding clinical onset of irritable bowel syndrome was based on a history of episodes of severe diarrhoea during service and a gut infection during service. The Tribunal is not satisfied that there were such episodes and, for the same reasons, is not satisfied that the Applicant suffered a gut infection during service. The Tribunal finds therefore that there was clinical onset of irritable bowel syndrome some time in 1982.
21. The Tribunal rejects Mr Strain's submission connecting his client's service to the episode of severe diarrhoea that, according to the history taken by Dr Cowlishaw, commenced around March 1982. The Full Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540 discussed the meaning of the expressions "arose out of, or was attributable to" eligible war service in s.9(1)(b) of the Act (which is substantially similar to s.196B(14)) as follows (Davies J at 541):
The words of s.9(1)(b) require that there be a causal connection between the eligible war service and the disease or injury. That is, the eligible war service must contribute in a causal way to the injury or disease. ... Under s.9(1)(b), but not under ss.9(1)(d) and 9(2), if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.
The Tribunal is not satisfied on the evidence before it that the Applicant's service was a contributing cause to the episode of severe diarrhoea that he suffered in 1982, particularly having regard to Dr Cowlishaw's opinion doubting a connection between the Applicant's condition and any diarrhoea suffered during service, and noting that Dr Borody's contrary view was based on an assumption of fact that the Tribunal does not accept.
22. No submissions were made regarding the application of s.9(2) of the Act to this matter; the sub-section relevantly provides:
For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
...
(b) if the incapacity was due to a disease--the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
It would need to be established to the decision-maker's reasonable satisfaction that the Applicant's irritable bowel syndrome would not have been contracted but for his service or but for the consequential changes in his environment. The Tribunal notes Pincus J's observation (at para 30) in Repatriation Commission v Keenan, Federal Court, 29 September 1989, G51/1989 that " ... the test imposed under s.9(2) seems more difficult to satisfy than does that under s.9(1)(b)". On the evidence before it, the Tribunal cannot be reasonably satisfied that the Applicant meets the test in s.9(2).
23. Therefore the Tribunal is not satisfied, on the balance of probabilities under the relevant SoP, that it can be said that the Applicant's irritable bowel syndrome was related to his eligible war service. Consequently the Applicant does not satisfy Factor 5(b) of SoP 104 of 1996. For these reasons the Tribunal affirms the decision under review.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member, Dr M.E.C. Thorp e, Member and S. Webb, Member.
Signed: .......................................................................................
Associate
Date of Decision 7 February 2003
Counsel for Applicant Mr P. Strain
Advocate for the Respondent Ms T. McConnell, Dep't of Veterans' Affairs
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