Grant and Repatriation Commission [2003] AATA 199 (28 February 2003)

Last Updated: 3 March 2003

DECISION AND REASONS FOR DECISION [2003] AATA 199

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/200

VETERANS' APPEALSDIVISION	)
	Re	NORMAN RAYMOND GRANT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier RDF Lloyd, Member

Date 28 February 2003

Place Perth

Decision

The Tribunal sets aside the Veterans' Review Board decision under review of 26 May 2000 and accepts the applicant's condition of open-angle glaucoma both eyes as being war-caused with effect from 22 November 2000.

............(sgd R D F Lloyd).......................

Member

CATCHWORDS

VETERANS' AFFAIRS-Veterans' Entitlements-exRAAF World War 2-Operational Service-claim for acceptance of open-angle glaucoma both eyes as war caused as a consequence of use of corticosteroid treatment for already accepted war caused conjunctivitis-question of undiagnosed clinical onset of glaucoma-proximity, frequency and duration of use of steroids in relation to assessed time of clinical onset of glaucoma condition

Veterans' Entitlements Act 1986 ss 9, 120(1), 120(3), 120(A), 196B(2)

Re McKenna v Repatriation Commission (1999) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Corneleus (2002) FCA 750

Repatriation Commission v Bey (1997) 76 FCR 364

REASONS FOR DECISION

February 2003

Brigadier RDF Lloyd, Member

1. This is an application by Norman Raymond Grant ("the applicant") for a review of a decision of the Veterans' Review Board ("VRB"), dated 26 May 2000, which affirmed an earlier decision of the Repatriation Commission ("the respondent"), dated 10 March 1999, that the applicant's condition of open-angle glaucoma both eyes was not war-caused.

2. The applicant attended the hearing and was not assisted by an advocate. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"). As well, the following documents were taken into evidence at the request of the applicant and the respondent respectively:

(a) Exhibit A1 - Statement of evidence by Mr N R Grant dated 3 February 2003, with nine attachments marked (1) to (9).

(b) Exhibit A2 - Extract of two pages (pages 1 and 2) from a Glaucoma Association Newsletter dated 23 September 2002.

(c) Exhibit R1 - Report by Dr Philip House (Ophthalmic Surgeon) - re Norman Grant, dated 26 November 2001.

3. The applicant gave oral evidence at the hearing, underlining the more important aspects of and expanding upon his statement of evidence (Exhibit A1). He was cross-examined by the respondent and answered questions posed by the Tribunal. As a consequence, the Tribunal regards him as an honest and forthright witness and as reliable in his accuracy as one would expect of a person of his age in his recollection of matters dating back some 40 to 50 years. In fact, from the Tribunal's experience, he was, in its opinion, probably more reliable than most because he resisted the tendency to convert a guess, or a vague recollection, into a firm statement of alleged fact. Be that as it may, as indicated later in these Reasons, in some areas the applicant is simply unable to recall aspects of detail that are of particular significance to the Tribunal in deciding this matter. No other witnesses were called to give evidence by the applicant. The respondent called Dr P House, the applicant's treating ophthalmologist, to give evidence and to amplify his report at Exhibit R1.

4. The applicant served in the RAAF from 21 October 1942 to 18 September 1945, including war service in the United Kingdom. Under the Act, all of his RAAF service is deemed to be operational service as defined. That being the case, Sections 120(1) and (3) of the Act apply and the Tribunal is required to find that the applicant's claimed glaucoma condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, the Tribunal is by virtue of Section 120A of the Act required to assess the matter in accordance with any relevant Statement of Principle ("SoP") issued by the Repatriation Medical Authority ("RMA").

5. In summary, the early history in relation to the applicant's eyes from documentation before the Tribunal is that on enlistment in 1942 his eyes were examined and no abnormalities were found (T3 page 19). On discharge from the RAAF in 1945 the applicant's visual acuity was recorded as 6/6 in either eye (T3 page 23). In March 1949 he was examined by Dr R Linton, an ophthalmologist, who diagnosed conjunctivitis - probably of an allergic nature (T8 page 31). He was referred to an allergist, Dr H Breidahl, who gave him desensitisation treatment (T8 page 32). The Tribunal notes from the T documents that his condition of `allergic conjunctivitis with headaches' was accepted under the Repatriation Act as a service-related disability in December 1949. It also notes that the applicant in 1951 complained of bright light irritating his eyes (T10 page 33). The follow-up to that, if any, is not formally documented, but the applicant's evidence is that he subsequently saw an optometrist for glasses and renewals on a periodic basis through to 1995.

6. Because of its major relevance in this matter now before it concerning glaucoma, the Tribunal first examined whether this conjunctivitis condition should validly still be regarded as an accepted disability under current legislation. In this regard the Tribunal referred to the Full Federal Court in McKenna v Repatriation Commission (1999) 86 FCR 144. The Tribunal notes the available evidence in this regard, especially that contained in the applicant's detailed statement of evidence at T6 pages 27 to 29. It is the respondent's view given at the hearing that - under present Veterans' legislation and taking account of the current relevant SoP (Instrument 69 of 2001) - the applicant's previously accepted conjunctivitis condition would remain a condition accepted as being war-caused (Transcript pages 42 and 43). In the Tribunal's opinion, the evidence before it supports that view and it finds accordingly.

7. In summary, the subsequent relevant history in relation to the applicant's eyes is that he states he was given eye drops for his conjunctivitis over a prolonged period during the 1950s and 1960s, ceasing this treatment in about 1970 or 1971. The drops are said to have been prescription eye drops, prescribed by his general practitioner (GP) and are believed by the applicant to have contained corticosteroids. There is no supportive documented medical record of this treatment available to the Tribunal. Much later, in 1990, during one of his routine visits for upgrading of his glasses, an optometrist noted optic nerve head haemorrhages in the applicant's left eye, however the applicant failed to properly follow up on this finding. Again, in 1995, the optometrist made a similar finding of optic nerve damage and referred the applicant to Dr Philip House, an ophthalmic surgeon. He saw Dr House in January 1996, who diagnosed low-tension glaucoma damage in the right eye with advanced low-tension glaucoma damage on the left. Currently, according to Dr House, the applicant's right eye is still quite good but his left eye has advanced glaucomatous damage.

8. The applicant's contention, as put to the Tribunal, is that his glaucoma condition of both eyes should be accepted as war-caused. The basis for this being that the treatment received for his accepted disability of conjunctivitis in the form of eye drops containing corticosteroids over the period of the 1950s to early 1970s had caused, or contributed in a material degree to, the subsequent development of his normotensive open-angle glaucoma. The applicant confirmed that this was his only contention in this regard and that he was not proceeding with others that had previously been raised as shown in the T documents and with the VRB (T15 pages 70 to 76).

9. Following the process set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, the Tribunal first considered all the relevant material before it in relation to the applicant's stated contention. As a consequence, and initially without making findings of fact in this regard, the Tribunal is relevantly satisfied that the material points to a hypothesis connecting the applicant's glaucoma condition with his war service - by virtue of the effects of treatment received for his previously accepted war-caused condition of conjunctivitis. In this respect, the content of the decision cited by the respondent re Repatriation Commission v Bey (1997) 76 FCR 364 was duly taken into account by the Tribunal in reaching this conclusion.

10. There is a SoP in force determined by the RMA, under Section 196B(2) of the Act, dealing with Open-Angle Glaucoma. The current SoP is Instrument 69 of 2001 which contains a factor relating to undergoing corticosteroid therapy. The SoP used at the time of the primary decision by the respondent and also by the VRB was Instrument 13 of 1999, which the 2001 instrument revoked. It is relevant to note that:

(a) SoP Instrument 13 of 1999 did not include any reference in the listed factors to a connection between undergoing corticosteroid therapy and open-angle glaucoma. The Tribunal is satisfied therefore that no advantage for the applicant would result in deciding this matter using that earlier SoP. In fact, based on his contention as put to the Tribunal, it would be disadvantageous.

(b) It is apparent from the material before the Tribunal that it was the applicant's request to the RMA for it to investigate this corticosteroid aspect that, in large part, brought about that Authority's action to do so and as a result issue the revoking Instrument 69 of 2001 (T1 pages 4 to 7).

11. The only relevant factor in SoP 69 of 2001 is factor 5(g). This states:

"(g) Undergoing corticosteroid therapy as specified where such therapy or part of such therapy has been received within the 12 months before the clinical onset of open-angle glaucoma; or"

The term "undergoing corticosteroid therapy as specified" is defined in paragraph 8 of the same SoP. In the applicant's case subparagraph (a) under that heading applies and this states:

"(a) applying Corticosteroid containing eye preparations topically to the affected eye on more days than not for a period of at least 6 months;"

12. The key issues therefore in determining whether the corticosteroid hypothesis raised by the applicant is a reasonable one, ie whether it is consistent with the template of factor 5(g) of SoP 69 of 2001, are as follows:

(a) was the therapy for the applicant's conjunctivitis condition, in the form of eye drops, a corticosteroid eye preparation?

(b) when, for how long, and with what frequency were the drops applied? And

(c) when was the clinical onset of the applicant's glaucoma condition?

13. There is no medical or documented clinical evidence before the Tribunal, or otherwise available to it, giving the actual history of the use of eye drops by the applicant. The only treatment documented is that already referred to in paragraph 5 of these Reasons. The applicant's oral evidence and that contained in the T documents, as well as Exhibit A1, is that he was using eye drops for his conjunctivitis during the 1950s and 1960s, and up until the early 1970s. For the most part he recalls these as having been available to him only on prescription from his GP, although he believes some form of eye drops were later obtained by him "over the counter".. The fact that, at least for the majority of the time, the eye drops for his war-caused conjunctivitis were on prescription leads the applicant to believe that they were a corticosteroid preparation - which were not obtainable otherwise. The respondent does not contest this deduction, its representative acknowledging that the need for repetitive prescriptions as described by the applicant is a key indicator in this respect. There is an abundance of documented medical opinion evidence before the Tribunal concerning the generalised usage of topical steroids during this period and later, which is sufficiently supportive of the applicant's contention that the drops he used would most likely have contained a corticosteroid component. Examples of such evidence are:

(a) In Exhibit A1 (3): "corticosteroids were much misused and overused when they were first introduced in the 1950s".

(b) In Exhibit A1 (4): Dr House states in a letter to Mr Grant dated 20 May 1998 "... certainly the topical steroids were used quite commonly in the fifties and sixties [1950s and 1960s]..."

(c) In Exhibit A1 (5):

* Family Medicine - Principles and Practice: "Topical corticosteroids are highly effective for treatment of allergic conjunctivitis, but the side effects of Glaucoma and Cataracts make them of questionable value".

* Medical Treatment, the Benefits and Risks: "The most effective anti-inflammatory drugs used to treat the eyes are corticosteroids. An important risk in using corticosteroid applications is that they can cause Glaucoma."

* Neville Osborne, Professor of Ocular Neurobiology at Oxford University: "People at higher risk of Glaucoma often have a history of using cortisone drugs".

* Etc.

Whilst there is no specific historical supporting evidence concerning the particular eye drops prescribed and used by the applicant as stated in the 1950s to 1970s, the Tribunal is relevantly satisfied from the evidence presented that an assumption should properly be made that such drops would more likely than not have contained a relevant corticosteroid component. The Tribunal finds accordingly.

14. The applicant's evidence is that he administered these eye drops for his accepted conjunctivitis condition for considerable periods from the 1950s through to about 1971. He freely admits he is unable to recall the precise frequency and for exactly what durations they were used over the period. Despite the limitations in evidence from the applicant in this regard, the Tribunal is reasonably satisfied from the evidence before it that the applicant's eye drops were probably administered for periods of about 6 months or more within the overall timeframe of the early 1950s to the early 1970s, and on a relatively frequent basis. In reaching this conclusion the Tribunal takes account of the respondent's somewhat contrary view and also that the evidence to support its conclusion is not strong. However, the Tribunal finds no justifiable cause to contradict the applicant's apparently honest recollections and associated evidence in this regard.

15. Probably the most critical issue in this matter, and one still remaining to resolve, is the time of clinical onset of the applicant's glaucoma condition. In this respect the applicant emphasises in his evidence, both oral and in Exhibit A1, the particular and more unusual variety of glaucoma he has, and which has been diagnosed as such. This diagnosis is open-angle glaucoma, but of a normotensive (or normal tension) variety - as diagnosed by Dr House and also referred to by him in Exhibit R1 as "low-tension glaucoma". This is important particularly in relation to deciding clinical onset. The evidence is that it is only in relatively recent years that it has been widely recognised that satisfactory/normal eye pressure test results cannot be taken necessarily to mean that glaucoma is not present, or that its process has not started. All the evidence before the Tribunal, both from Dr House (written and oral), and the numerous authoritative medical opinion evidence in documentation, provides this as fact - not now in dispute. The evidence also is that, in more recent years: increased knowledge in this field, the enhanced computerised techniques of eye examination, improved visual fields tests and more sophisticated equipment used by ophthalmologists have helped to overcome this previous and significant diagnostic deficiency.

16. In the applicant's case, as already indicated (paragraph 7 of these Reasons), he first saw an ophthalmic specialist - in more recent times - in 1996, who diagnosed glaucoma. However, indications by the referring optometrist at that time pointed to nerve head haemorrhages back to 1990. On the face of it, the clinical onset could therefore be said to be at about that time. However, the applicant contends it is more likely that the onset (undiagnosed) was considerably earlier than 1990. The likelihood of this is supported, in general terms, by a considerable amount of documented medical opinion evidence before the Tribunal - some of which is as follows:

(a) Exhibit A1 (6)(b) - "The Eye Book": refers to Glaucoma as the "Silent Thief of vision", rarely causing warning symptoms and estimates that "... half of those with glaucoma don't know they have it".. Further it states "... some people even develop optic nerve damage and visual fields loss despite having normal eye pressures". It also opines that "The more common form [of glaucoma] is called open-angle glaucoma .... [this] can advance undetected for years .... It is believed that many people have undiagnosed normotensive glaucoma ... doctors often miss diagnosing this disorder because the person has normal intraocular pressure during an eye examination ... ".

(b) Exhibit A1(7) - Oxford Textbook of Ophthalmology - Vol 1: includes a statement " ... Failure to detect mild to moderate normal tension glaucoma ... is an inevitable consequence of our historic over-reliance on non-specific and non-sensitive detection methods... On those grounds from today's perspective, the most important contribution to glaucoma diagnosis since the development of ophthalmoscopy has been the introduction of computer-based perimetry".

17. In a report by Dr House dated 26 November 2001 (Exhibit R1) he states, in reply to a letter from the respondent (at Exhibit A1(1)), in part " ... the steroid therapy that Mr Grant received was in the mid to late 1940s [this is in fact incorrect and from other evidence was in the 1950s to early 1970s]. Presentations of his low-tension glaucoma can be definitely dated from 1990, because of the optic nerve head haemorrhages that were present, and may have been present for some time before. It would be unlikely however that there would have been evidence of optic nerve head damage within 12 months of the steroid therapy ... [again Dr House incorrectly relating it to the late 1940s] ...". (transcript)

18. Dr House, in his oral evidence at the hearing, answering questions from the respondent concerning clinical onset in the applicant's case, and referring to the process of damage to a person's peripheral fields, replied "... some people who have very high pressures of (sic) presentation can lose a lot of visual field in the order of 6 months, whereas others with low-tension glaucoma may be relatively stable over, you know, many years, even up to a decade or more" (transcript). Then when speaking of optic nerve haemorrhages Dr House stated, in part, "... they are ... described in I think it was the late 1950s or early 1960s [and not before] as being an important sign. And once that description was [made] available within literature, it became a sort of standard practice to really examine the eye very closely for that. Without doubt these same haemorrhages must have been present prior to that time..... People have been looking at optic nerves for a long time before they began recording optic nerve haemorrhages being significant, even though they must have been there" (transcript).

19. Again, during the oral evidence given by Dr House at the hearing the respondent questioned him further concerning the onset question as follows (transcript):

* Mr Ponnuthurai - "In your examination of Mr Grant and your history-taking and the way his eyes look now, is there anything that to you points to the presence of changes as far back as 1972"

* Dr House - "Its really an imponderable from my point of view ... Mr Grant's got advanced damage in the left optic nerve and I would have expected that that may have taken a significant time to accumulate and especially in the sense that his pressures are not high, so that it's likely that it may have been a decade or more. But it's a very long bow to try and describe his optic nerve in 1970 ... certainly this is a long term process, there is no question about that. The association between people presenting with what appears to be normal tension glaucoma and previous corticosteroid usage is quite strong in the textbooks ... . They stop using the corticosteroids, the pressure comes back to normal, but they continue with the damaged optic nerve and therefore present later with an apparent normal tension glaucoma because the pressures are normal, but in fact what they're demonstrating is previously acquired damage ...".

20. The respondent's contention in this regard is that it would be speculative to put the clinical onset at about 1972 (in order to satisfy the requirement of the SoP), some 18 years before the diagnosed haemorrhages of the optic nerve in 1990. However, the respondent's representative acknowledges the opinion of the only specialist medical witness - Dr House, that it is possible and indeed it is often the case with the optic nerve that a process can be started off (by application of corticosteroids or other triggers) and then continue of its own accord. And that the developing glaucoma does not require the continuing administration of the steroid that first triggered the process. The respondent's representative also acknowledged in the hearing the opinion of Dr House that such a sequence of events (in relation to Mr Grant) "was plausible", but notes that when questioned by him that Dr House had said "... it is hard to put a likelihood on it". When the Tribunal asked Dr House to repeat this aspect of his opinion evidence, he did so. Clearly, from Dr House's response, when making the comment "... it's a very long bow ...", he was replying to the respondent's request that he attempt to assess the state of the applicant's optic nerve in 1970 or thereabouts (paragraph 19 of these Reasons and the transcript of the hearing refer). From the evidence, the Tribunal is of the opinion that Dr House was not opining that to contend that the clinical onset be as early as 1970 approximately would be drawing a long bow. Dr House was in fact referring to his ability now to assess the state of Mr Grant's optic nerve in 1970. In the end Dr House went on to opine, in regard to the suggestion of a process commencing (undetected) in about 1970 that "... [this] was not an unreasonable concept".

21. Further, in relation to the question of "clinical onset", the respondent cited the Federal Court in Repatriation Commission v Cornelieus (2002) FCA 750, in which Branson J accepted the formulation previously used by the Tribunal in the case of Robertson v Repatriation Commission - AAT 12666 of 2 March 1998. This was:

"That there was a 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 finding is made on investigation which is indicative to a doctor of the disease being present".

The Tribunal duly takes account of these cited decisions and the meaning of clinical onset used. It is also of significance to note that in a letter to Dr House dated 21 November 2001 (Exhibit A1(1)), a copy of which was provided to the applicant, the respondent gives the meaning of the term as "... clinical onset is taken to mean the time when a reasonably competent doctor, had he or she examined the person, should have diagnosed the condition".. This provides a somewhat different meaning to clinical onset. The Tribunal observes that the respondent's November 2001 statement on this aspect pre-dates the decision in Cornelieus, but does not pre-date the cited AAT decision in Robertson. Whatever the case, the Tribunal in the end result must, above all, properly take account of the particular circumstances of the matter before it.

22. The medical opinion evidence before the Tribunal clearly indicates in Mr Grant's case that the glaucoma condition is the low-tension variety and would have been low-tension from onset; that the condition would have been very difficult to diagnose by the early 1970s, and even more so in the 1960s let alone 1950s; and that it would have been most likely asymptomatic to the applicant in that period - at least as an optic nerve or glaucoma problem. As a consequence, the Tribunal is of the opinion that had, for example, a `competent doctor', ie an ophthalmologist as distinct from an optometrist or a general medical practitioner, properly examined this applicant's eyes in the 1950s to early 1970s it seems very unlikely that they would have at that time properly observed or been able to correctly diagnose the type of optic nerve damage involved - or other indicators of actual or pending glaucoma onset. Furthermore, the medical opinion evidence given by Dr House in this regard leads the Tribunal to conclude that any such doctor in that period is not likely to have been looking for some of the important indicators that in more recent years have become recognised ophthalmic practice in relation to glaucoma - nor would they have been equipped with instrumentation to do so adequately.

23. As a consequence of the above facts and the conclusions reached concerning the matter of the clinical onset of Mr Grant's glaucoma, the Tribunal is of the opinion that the matter now before it, in respect of clinical onset, is distinguishable from the cited Federal Court and AAT cases.

24. After consideration of all the material before it, and in particular the evidence set out in paragraphs 12 to 23 of these Reasons, as well as the conclusions reached by the Tribunal, the following findings of fact are made:

(a) The applicant has, and since 1949 has had, an accepted war-caused disability of conjunctivitis. The diagnosis and causation of this condition are, by standards of current legislation, still valid.

(b) The applicant was prescribed eye drops, which can properly be assumed to have contained corticosteroids, for this accepted conjunctivitis condition during the period of the 1950s to the early 1970s. And he used these drops for extended periods on a frequent basis.

(c) The applicant's currently claimed eye condition is open-angle glaucoma of low-tension variety of both eyes. It was formally diagnosed as such in 1996, with a clearly identified recent history dating back at least to 1990. However the Tribunal is relevantly satisfied from the evidence that the clinical onset should be accepted as being, in all probability, much earlier than that.

(d) From the overall evidence, including adequate medical opinion evidence, the Tribunal finds it to be not unreasonable, speculative, nor fanciful that the onset of glaucoma be accepted as dating back as far as the early 1970s. To be more precise than that is simply not possible under the circumstances. Despite the wording of the SoP in this regard, this imprecision should not, in the Tribunal's opinion, overly influence its finding and decision on this aspect. To do so would result in unfairness and would not be taking account of the beneficial nature of the relevant Veterans' Legislation- particularly when applied to a veteran with significant war time operational service.

(e) Consequently, the Tribunal finds that the applicant's relevant use of corticosteroids up to the early 1970s for his war-caused disability of conjunctivitis should similarly and reasonably be accepted as having occurred within 12 months of the clinical onset of his glaucoma occurring at that time. Its use therefore being the causal or contributory trigger for the subsequent optic nerve damage/glaucoma condition.

CONCLUSION

25. Based on the evidence and its findings, the Tribunal is satisfied the hypothesis raised by the applicant that his glaucoma condition of both eyes was contributed to, in a material degree, by the prescribed use of corticosteroids fits the template of SoP Instrument 69 of 2001. It is a reasonable hypothesis in terms of the Act.

26. Furthermore, the Tribunal is relevantly satisfied from the evidence that this corticosteroid treatment was prescribed for and used by the applicant for his conjunctivitis condition. This being an accepted war-caused disability, and being so at the time, the Tribunal is not satisfied beyond reasonable doubt that there is no relevant connection as required by the Act between the applicant's glaucoma condition and his war service by this means. The Tribunal is therefore satisfied beyond reasonable doubt that the applicant's open-angle glaucoma of both eyes is war-caused. The date of effect of this acceptance is back-dated, in accordance with the Act, to 22 November 2000.

DECISION

27. For the above reasons the Tribunal sets aside the Veterans' Review Board decision under review of 26 May 2000 and accepts the applicant's condition of open-angle glaucoma both eyes as being war-caused with effect from 22 November 2000.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd, Member

Signed: .........(sgd V Wong)...........................................

Associate

Date/s of Hearing 3 February 2003

Date of Decision 28 February 2003

Counsel for the Applicant In person

Counsel for the Respondent Mr C Ponnuthurai