Gilkinson and Repatriation Commission [2010] AATA 23 (15 January 2010)

Last Updated: 15 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 23

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N 200600296

VETERANS' APPEALS DIVISION		)
	Re		DAVID GILKINSON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

M D Allen, Senior Member Dr M E C Thorpe

Date 15 January 2010

Place Sydney

Decision

The decision under review is AFFIRMED.

....................[sgd]..........................
M D Allen
Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Review of determination by Respondent that Applicant’s condition of sleep apnoea was not related to service. Did material raise a reasonable hypothesis connecting the disease suffered by the Applicant and the circumstances of his operational service. Did the circumstances of operational service make a material contribution to the cause or clinical worsening of the Applicant’s sleep apnoea. Was the Tribunal satisfied beyond reasonable doubt operational services was not a contributing factor.

LEGISLATION

Veterans Entitlements Act 1986 s6C196B 120A 120

CASES

Gilkinson v Repatriation Commission [2008] FCA 1441

Repatriation Commission v Yates (1995) 57 FCR 241

Repatriation v Milenz [2006] FCA 1436

Kattenberg v Repatriation Commission [2002] FCA 412; (2003) 73 ALD 365

Repatriation v Hawkins [1993] FCA 479; (1993) 18 AAR 93

Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232

REASONS FOR DECISION

15 January 2010

M D Allen, Senior Member Dr M E C Thorpe

1. On 6 May 2008 the Tribunal published its decision affirming the Respondent’s determination rejecting the Applicant’s claim to have sleep apnoea accepted as a war-caused disease. See Gilkinson and Repatriation Commission [2008] AATA 364.
2. That decision was appealed to the Federal Court and on 22 September 2008 Rares J set aside the Tribunal’s decision and directed the matter be remitted to the Administrative Appeals Tribunal (“AAT”) to be reheard. See Gilkinson v Repatriation Commission [2008] FCA 1441.
3. At paragraph 28 of his judgement Rares J said:

“But, the Tribunal did not consider the effect of shift work. There may have been other hypotheses or other ways of viewing Mr Gilkinson’s claim, had it done so. But, it did not do so and the Commission can now not uphold the erroneous decision of the Tribunal on that basis. I am of opinion that the Tribunal made an error of law by failing to consider that hypothesis expressly in its reasons. It did not find beyond reasonable doubt that the requirement that he undertake shiftwork did not contribute to Mr Gilkinson being obese.”

4. When this matter came on for hearing the Applicant had expanded upon the grounds upon which he maintained his sleep apnoea was war-caused. The Applicant maintained that the following hypotheses had been raised by material before the Tribunal, viz:
   1. That there had been a clinical worsening of his sleep apnoea during service due to consumption of alcohol.
   2. That operational service had led to weight gain such that he became obese and that in turn led to the onset of sleep apnoea or its clinical worsening;
   3. That the Applicant’s war-caused disease of chronic sinusitis caused chronic obstruction of the upper airways which in turn caused, or contributed to the clinical worsening of, the Applicant’s sleep apnoea.
5. The relevant Statement of Principles (“SOP”) for sleep apnoea is Instrument No. 13 of 2005 which lists the following factors connecting sleep apnoea to operational service, viz:

(a) Having chronic obstruction of the upper airways at the time of the clinical onset of sleep apnoea; or

(b) Being obsese at the time of the clinical onset of sleep apnoea; or ...

(j) Having chronic obstruction of the upper airways at the time of the clinical worsening of sleep apnoea;

(k) Being obese at the time of the clinical worsening of the sleep apnoea;

(s) Consuming an average of at least 30 grams of alcohol per day for at least the six months before the clinical worsening of sleep apnoea;

6. Clause 8 of the SOP defines chronic obstruction of the upper airways as meaning on-going obstruction at the level of the nose, nasopharynx, oropharynx, hypopharanx or larynx;
7. Instrument No. 13 of 2005 defines “being obese” in the following terms, viz:

“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (“BMI”) of thirty or greater.

The BMI = W/H2 and where:

W is the person’s weight in kilograms and

H is the person’s height in metres”

8. In these proceedings the Respondent conceded that, for the purpose of raising an hypothesis, the clinical onset of the Applicant’s sleep apnoea could be taken as occurring whilst the Applicant was on operational service. We do not accept this concession. The evidence of thoracic physician Professor Breslin, which is stated to have raised this hypothesis, was that he could not rule out the Applicant’s sleep apnoea having its clinical onset whilst he was a crew member of HMAS Sydney.
9. It is important to keep in mind that the Applicant did not have one continuous period of operational service. His periods of operational service arose only whilst HMAS Sydney was allotted for duty in an operational area and these periods are set out at document T3 at page 3 of the documents prepared for the Tribunal pursuant to s37 of the AAT Act 1975, viz:

Arms of Service	Type	Start Date	End Date
Navy	Operational Service	16.02.70	05.03.70
Navy	Operational Service	21.10.70	12.11.70
Navy	Operational Service	15.02.71	04.03.71
Navy	Operational Service	26.03.71	08.04.71
Navy	Operational Service	13.05.71	01.06.71
Navy	Operational Service	20.09.71	16.10.71
Navy	Operational Service	26.10.71	18.11.71
Navy	Operational Service	24.11.71	17.12.71
Navy	Operational Service	14.02.72	09.03.72
Navy	Operational Service	01.11.72	30.11.72

In between these periods of operational service the Applicant was aboard HMAS Sydney whilst it was in Australian ports, undergoing refits, or visiting foreign ports as well as taking periods of leave, such periods amounting in total to 120 days plus travelling time from Sydney to his home town of Grafton.

10. As was pointed out in the report by Captain Macdonald:

“While the demands of watchkeeping in machinery spaces were often physically demanding, particularly in the tropics or an Australian summer, it needs to be recognised that this employment was not a continuous process throughout any particular year. SYDNEY only spent, on average, about 27 percent of any one year at sea, with regular breaks in sea time for port visits, storing, maintenance and leave for the ship’s company. Fleet maintenance policies demanded that the ship undertake a self maintenance period (SMP) of about 10 working days in harbour every three months or so and an extended refit of about 12-16 weeks every two years. Administratively there were also two or three ship’s company long leave periods programmed each year.”

11. Factor 5 (s) requires that the Veteran consume a daily average of 30 grams of alcohol per day before the clinical worsening of sleep apnoea.
12. In this matter there is no evidence that the Applicant’s sleep apnoea clinically worsened during his period of operational service. As was pointed out by Professor Breslin in the earlier proceedings, sleep apnoea will be more pronounced after a period of drinking but the condition itself will not be worse.
13. When an SOP refers to the clinical worsening of a condition it refers to a worsening in the underlying condition, not a worsening of symptoms, see Repatriation Commission v Yates (1995) 57 FCR 241 at 250.
14. Finn J in Repatriation Commission v Milenz [2006] FCA 1436 referred to the issue of clinical worsening in the following terms, viz:

“...The Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5 (d) of the SOP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz’s alcohol abuse it did not address whether there was a worsening in the disease as defined and manifest...”.

15. In any event, we do not accept that the Applicant’s alcohol consumption was referable to his operational service. The Applicant’s evidence to the Tribunal was that he commenced to drink alcohol in 1966-67 whilst aboard HMAS Melbourne. Then at his next posting HMAS Cerberus he drank regularly in the sailors’ canteen. He then went to sea again on HMAS Melbourne and received an issue of one 26oz of beer per night whilst at sea. During this period whilst ashore he would drink up to ten 10oz beers, sometimes twelve.
16. Whilst on HMAS Sydney the Applicant again received an issue of one 26oz of beer on most nights at sea and whilst ashore he would drink to get drunk. The Applicant stated that whilst posted about HMAS Sydney he increased his alcohol intake because of “stress”.
17. In evidence in chief the Applicant said that his alcohol consumption increased over the years and that he used to go out and get drunk at every opportunity. He continued to drink at that rate until he left the Navy.
18. A report by psychiatrist, Dr Delaforce of 15 May 2001 records a history from the Applicant as:

“When I inquired about any stressful periods during those trips to and from Vietnam he indicated there was not, except for the worry that something stressful might happen at Vung Tan Harbour. However, nothing of significance happened. When I inquired about any significant stressors at other times during service he referred to difficulty putting up with “idiots”, the “over-educated authority figures” in the navy.”

Dr Delaforce’s report continued:

“Alcohol was first used in service, in 1966. From the 1970s he would get intoxicated whenever he could afford to drink and had a night off duty. Overall that represented intoxication on about half the days and increased from the mid 1970s when he had more nights off duty. He would drink 20-25 middies of beer a session from 1968 or 1969.”

19. We note that the Applicant became a crew member of HMAS Sydney in February 1970. Although the Applicant referred to “stress” cross examined he agree that he meant a general apprehension and that it was hot and uncomfortable. What is clear is that the Applicant commenced to drink alcohol long before operational service and to drink it to excess. His alcohol consumption increased incrementally during the course of his naval service. Given that all he professed to have was a general apprehension regarding his voyages to Vietnam, we are satisfied beyond reasonable doubt that there was nothing concerned with the Applicant’s operational service that caused him to drink more than he would otherwise have done, or to increase his intake of alcohol. We are therefore, satisfied beyond reasonable doubt that any facts necessary to support an hypothesis of alcohol-caused aggravation of sleep apnoea have been negatived to the requisite standard.
20. As stated above, there is a dispute as to the date of the clinical onset of the Applicant’s sleep apnoea. Professor Breslin opined that the clinical onset of the Applicant’s sleep apnoea was in 1968, when other sailors had remarked on the Applicant’s snoring. In particular, Professor Breslin referred to the history that the Applicant’s parents were snorers. Cross examined, he stated that it was more probable than not that the clinical onset of the Applicant’s sleep apnoea was in 1968, but he could not rule out that it was whilst a crew member of HMAS Sydney, and daytime sleepiness as well as complaints about his snoring were experienced.
21. Given Professor Breslin’s evidence we are satisfied that the clinical onset of the Applicant’s sleep apnoea was in 1968 when, according to the Applicant’s evidence, snoring was first remarked upon. However, given the concession by Professor Breslin that he could not rule out a clinical onset in 1970-71, when aboard HMAS Sydney, then a reasonable hypothesis may be said to have been raised that the clinical onset was during a period of operational service.
22. In a report dated 15 June 2007, Dr Volker PHD, a dietician, stated:

“shiftwork, plentiful supply of food and alcohol, and low levels of physical activity all contributed to the Veteran’s weight gain. The Veteran was 57.2kg in May 1965 and 87.5kg in March 1969. This represents a gain of 30.3kg in 55 months. This translates to a gain of over half a kilo a month. The Veteran was already over-weight and well on his way to being obese (BMI >30 in 1969). Obesity does not occur instantly, it takes time to accumulate excess energy storage. The adverse health effects of over-weight and obesity develop as gradually as the weight is gained”.

23. As can be ascertained from the report of Dr Volker, the Applicant’s obesity was well on the way to being established prior to his operational service. As Dr Volker pointed out in her evidence to the Tribunal, the Applicant, because he had access to unlimited amounts of food whilst undergoing recruit training at HMAS Leeuwin became used to eating. This, of course, had nothing to do with operational service.
24. For the Applicant, it was submitted that operational service had made a contribution to his obesity and Kattenberg v Repatriation Commission [2002] FCA 412; (2003) 73 ALD 365 was authority for the proposition that, if operational service contributed to a material degree to his obesity, then that was sufficient connection with operational service.
25. In the current proceedings evidence was called in an attempt to ascertain what part operational service may have played in the Applicant becoming obese.
26. The Applicant’s service medical records permit a calculation of his BMI at the times of his medical examinations by the Navy. On 29 January 1970 the Applicant’s BMI was 29.6 (cf the definition of obese in the SOP viz a BMI of 30).
27. On 15 February 1970 the Applicant joined the crew of HMAS Sydney. A medical examination on 2 December 1970 allows a calculation of a BMI for the Applicant of 29.4. However, a record of a medical examination on 7 June 1971 bears the notation “obese”.
28. As pointed out by Dr Volker the Applicant was already overweight and well on his way to being obese in 1969. The calculation of his BMI just prior to joining HMAS Sydney show that at that time he was all but obese (a difference in BMI of 0.4).
29. We do not intend to canvass the evidence of Professor Gill and Dr Volker as to the effects of operational service upon the Applicant in detail. What became apparent from the evidence was that the studies upon which Dr Volker based her opinion of shift work contributing to obesity did not fully apply to the Applicant.
30. The studies, relied upon by Dr Volker, were of persons undertaking regular periods of shift work. The Applicant did not undertake such duties. In this regard we accept totally the evidence of Captain Macdonald as to the watchkeeping duties of the Double Bottoms party aboard HMAS Sydney.
31. At page five of her report Dr Volker states:

“inconsistencies suggest that if Captain Macdonald’s analysis of David Gilkinson’s work detail is correct then shift work effects would be minimal.”

32. Professor Gill in his evidence said that the studies which linked shift work to obesity had been done on “long term shift workers”. He added that in his opinion taking all factors into account, any effect of shift work upon the Applicant’s obesity would have been moderate, an opinion with which Dr Volker agreed. As Dr Gill pointed out at page eight of his report:

“Mr Gilkinson had a relatively short exposure to shift work and during this period had regular breaks away from shift work duties”.

33. In reference to regular breaks away from shift work duties we note that the Applicant would only have had to carry out the duties of a member of the Double Bottoms party whilst the ship was at sea. As stated in the report by Captain Macdonald in 1970 the Sydney was at sea for 22.2% of the time, in 1971 for 36% and 1972 for 22.5%. These are the periods at sea, and the periods of operational service were of even less duration.
34. Another factor alleged to have contributed to the Applicant’s obesity whilst on operational service was his alcohol intake. Professor Gill stated:

“The alcohol issue at sea during Mr Gilkinson’s operational service could have made a contribution to the excess energy intake that led to his weight gain but this contribution is likely to be minor.”

35. Dr Volker said, referring to the issue of beer whilst at sea:

”this level of intake during operational service would not have had a major influence on excessive energy intake”. Adding “however in port, consumption, given the naval culture of binge drinking, would have had some impact”.

36. The Applicant alleged he began to drink more heavily as a result of operational service because of “stress”. As was pointed out in Repatriation Commission v Hawkins [1993] FCA 479; (1993) 18 AAR 93, to found a causal relationship to an event (viz operational service) a demonstrated relationship with matters inseparably bound up with the event will generally suffice.
37. Thus although the Applicant’s heavy drinking took place whilst not on operational service he claims that it was causally related to that service.
38. Whereas there is material to raise the hypothesis of connection, we are satisfied beyond reasonable doubt that the factual basis for such an hypothesis has been negatived.
39. We are satisfied beyond reasonable doubt that the Applicant did not experience stress as opposed to a general apprehension. His increase in drinking was no more than a continuation of the heavy drinking, namely 10 to 12 10oz beers at a time indulged in prior to operational service. As pointed out by Dr Delaforce, the Applicant was drinking 20 to 25 middies a session from 1968 or 1969, that is prior to operational service.
40. Beer consumption whilst in port would have had an impact upon the Applicant’s weight gain but what is unknown is what other food he consumed in this time. The effect of beer consumption is totally unquantifiable.
41. Paragraph 196B(14)(d) Veterans’ Entitlements Act 1986, (“VEA”) states that a factor causing or contributing to a disease is related to service rendered by a person if it was contributed to in a material degree by that service.
42. So far as relates to the Applicant’s period of operational service, we are satisfied beyond reasonable doubt that the events of that service viz shift work (such as it was) and alcohol consumption did not contribute to his obesity in a material way.
43. As discussed above his period of shift work was not ongoing and he had considerable periods where he was not required to work shift work. Any alcohol consumed whilst at sea would have had a minor effect and the effect of any increased drinking whilst ashore is unquantifiable and in any event we find it was not related to operational service.
44. Reference is to contribution “in a material degree”. As pointed out by the majority in Comcare v Canute [2005] FCAFC 262; (2005) 148 FCR 232 at 249, the content must be given to the word “material” where it occurs in a statute, and the inclusion of that term imposes an evaluative threshold below which any causal connection may be disregarded.
45. We are satisfied beyond reasonable doubt that any events during the Applicant’s operational service did not meet the threshold of being a material contributor to his obesity and hence any cause or aggravation of his sleep apnoea.
46. Although rejected in the previous proceedings the Applicant again submitted that his sleep apnoea was caused or clinically worsened by chronic obstruction of the upper airways.
47. Ear Nose and Throat (“ENT”) physician, Dr Scoppa, obtained from the Applicant a history of rhino sinusitis that started in childhood. In his report of 25 August 2006 Dr Scoppa stated:

“Mr Gilkinson gives a history of having suffered from symptoms of probable allergy rhinitis for many years prior to joining the Navy. He states that these pre-existing symptoms flared up from time to time during service...”

“...The type of generalised, severe and widespread sinusitis from which Mr Gilkinson suffers (as seen on his CT scans) is generally accepted to be of unknown origin and occurs in persons with a genetic pre-disposition to atopic diseases such as allergic rhinitis and asthma, and Mr Gilkinson appears to fall into this category in view of the history of nasal allergy. It is also well known that atopic persons are more sensitive to the effects of inhalation of irritants and chemicals and that such exposure can cause or contribute to the causation of chronic sinusitis.”

48. Discussing the Applicant’s sleep apnoea, Dr Scoppa stated in evidence that if the nose was blocked because of rhino sinusitis, then sleep apnoea would be worse during that period.
49. Professor Breslin also commented on the Applicant’s chronic sinusitis. He also obtained a history of the Applicant suffering rhinitis most of his life, including as a child. He opined:

“Based on the history there are a number of important facts:-

1. This man has had nasal symptoms prior to joining the navy and this is evidence by the many years of nasal stuffiness mentioned in 1968; as he joined the navy in 1965, this would strongly suggest that his nasal symptoms pre-dated joining the navy.
2. There is no evidence that his nasal symptoms worsened in the navy as for example in 1976 his nasal examination was normal with no evidence of upper airway obstruction and no evidence of nasal abnormality on examination by an ENT surgeon on the 12th of August 1976.”
50. In a later report dated 7 June 2007, Professor Breslin stated:

“...Nonetheless from an obstructive sleep apnoea point of view the critical thing is not whether or not he has sinusitis but whether or not he has nasal narrowing and obstruction and the objective evidence of the examination in 1976 was that there was no nasal obstruction (in other words if he had sinusitis it was not causing nasal obstruction at that time at least). Dr Scoppa is of the view that his chronic rhinitis may have been made worse by chemicals and toxins inhaled during operational service. There is no objective evidence for this but I am unable to exclude it. What there is objective evidence for, is that at an ENT examination in 1976 there was no evidence of nasal obstruction and no comment about nasal symptoms on discharge medical”.

51. On 7 July 2008 the Veterans Review Board accepted that chronic sinusitis was a war-caused disease. The Respondent did not seek to challenge this finding in these proceedings. The question for the Tribunal is whether that condition caused a chronic obstruction of the Applicant’s upper airways during operational service.
52. In evidence, Dr Scoppa, ENT physician discussed obstruction of the upper airways as a cause of sleep apnoea. He said that any relationship between the chronic rhino sinusitis and sleep apnoea would be minor. Adding:

“Sleep Apnoea due to pure chronic rhino sinusitis is rare. You’d have to have almost total blockage of the nose on a daily basis from say a nose full of polyps on both sides or a deviated septum or other causes that cause significant nasal problems, but it is rare for poor nasal function per se in the absence of these conditions to cause significant sleep apnoea. In other words if you have got pure rhino sinusitis that’s just affecting the lining without further complications that in itself does not as a rule cause significant sleep apnoea. However, if you have sleep apnoea from other causes then obviously if your nose is blocked during an attack of active rhino sinusitis, then your sleep apnoea would definitely be worse for that period of time. So it’s a contributing sort of cause”.

53. That chronic sinusitis does not equate to chronics obstruction of the upper airways was made clear by Professor Breslin in his evidence where he stated:

“Sinusitis means inflammation of the sinuses. The sinuses are outside the nose - they are part of the upper airway but not part of the upper airway that necessarily causes obstruction to the upper airways. The sinuses – the biggest of them all is the one sitting under your eyes, some auxiliary sinus on either side, and that connects with the upper airway. You can have rampant sinusitis without obstruction to airflow in the nose. More commonly, you would have airflow in the nose obstruction but it is not invariable.”

And affirmed his comments in his report of 10 June 1006 stating:

There is no evidence that his nasal symptoms worsened in the navy as for example in 1976 his nasal examination was normal with no evidence of upper airway obstruction and no evidence of nasal abnormality on examination by an ENT surgeon on the 12th of August 1976.”

He further pointed out that “nasal obstruction comes and goes.”

54. There are no medical reports for the periods of the Applicant’s operational service, or for the short period of Defence service, that refer to any nasal obstruction or sinusitis. At his discharge medical examination on 25 May 1977 no ENT problems were claimed or noted.
55. Whilst we accept that the Applicant from time to time during his naval service may have had periods of worsening of his chronic rhinitis, we are satisfied beyond reasonable doubt that at no time did that amount to a chronic obstruction of the upper airways. The level of obstruction required was referred to by Dr Scoppa and there is no evidence that at any time did the Applicant’s nasal blockages become this severe much less that blockages of such severity were ongoing. As pointed out by Professor Breslin even chronic sinusitis does not necessarily result in blockage of the upper airways.
56. Thus although the Applicant may be said to have raised hypotheses linking his operational service to sleep apnoea we are satisfied beyond reasonable doubt for the reasons stated above that the underlying factual basis for those hypotheses have been negatived.
57. The decision under review is therefore AFFIRMED.