Scott and Repatriation Commission [2010] AATA 82 (4 February 2010)

Last Updated: 5 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 82

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/6055

VETERANS' APPEALS DIVISION		)
	Re		BRUCE SCOTT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Dr P McDermott, RFD, Senior Member

Date 4 February 2010

Place Brisbane

Decision

The Tribunal varies the decision under review and decides that the nasal polyps condition is defence-caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth), the date of effect of the decision being 7 November 2005. Otherwise the decision under review is affirmed. The matter is remitted to the respondent for assessment.

..................[Sgd]..................
Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for asthma sinusitis and nasal polyps – consideration of Statements of Principles – decision under review partially set aside to allow claim for nasal polyps

Administrative Appeals Tribunal Act 1975 (Cth) s 34J

Veterans’ Entitlements Act 1986 (Cth) ss 68, 70, 120B

REASONS FOR DECISION

4 February 2010

Dr P McDermott, RFD, Senior Member

INTRODUCTION

1. Mr Bruce Scott (the applicant) claims that the following conditions from which he suffers: asthma; chronic sinusitis; and nasal polyps are all related to his service with the Royal Australian Air Force (RAAF). The Tribunal has to decide whether those conditions are related to his defence service. The parties have consented to this matter being heard on the papers pursuant to s 34J Administrative Appeals Tribunal Act 1975 (Cth) apart from oral evidence that was given by Dr F Szallasi.

SERVICE

2. From 9 June 1949 until 16 February 1979 the applicant served with the RAAF. His service from 7 December 1972 until his discharge on 16 February 1979 amounts to ‘defence service’ under s 68 Veterans’ Entitlements Act 1986 (Cth) (the Act) as the applicant was engaged in continuous full-time service as a member of the defence force since 7 December 1972.

MEDICAL EVIDENCE

3. I have considered a number of medical reports which relate to the condition of the applicant.
4. In a form which was completed on 20 March 2005, the applicant stated that his first symptoms of asthma occurred some 18 months earlier although he referred to coughing symptoms which went back a few years. The applicant’s claim form which was lodged on 7 March 2005, contained a report confirming the applicant’s asthmatic condition dated 2 March 2005 from Dr Kirton, his longstanding physician. In that report, Dr Kirton states that the applicant first consulted him about his asthma symptoms in August 2003.
5. The applicant was examined by Dr R Edwards, a thoracic and sleep physician, who reported on 21 April 2005 that the applicant had no significant impairment from a respiratory point of view. Dr Edwards stated that the applicant may have had asthma but that it is well controlled by Flixotide. Dr Edwards noted that during the applicant’s service in the RAAF, he had been a spray painter and was exposed to two-pack paints but that he was not aware of any symptoms which suggested occupational asthma.
6. On 22 March 2005, Dr Kirton opined that the applicant may have been suffering from allergic rhinitis since 1990 and since 2000 has had an impaired drainage of the sinus due to nasal polyps. On 1 March 2005, Dr. Szallasi reported that the applicant suffers from both chronic sinusitis and nasal polyps.
7. The applicant has been examined by Dr Szallasi. Dr Szallasi is the treating otolaryngologist who has performed several operations on the applicant including a limited septoplasty and removal of nasal polyps.
8. On 1 March 2005, Dr Szallasi provided his report where he opined that the applicant suffers from both chronic sinusitis and nasal polyps. This diagnosis was made on the basis of the physical examination he conducted and the applicant’s CT scans. Dr Szallasi reported that the applicant had first consulted him for that condition on 7 March 2000.
9. In his report dated 17 September 2007, Dr Szallasi stated that the applicant “has recently made me aware that he has been exposed to a great number of volatile agents through his service in the Defence Forces. I was not aware of this historically important information before and certainly in the context of his diagnosis it would seem quite reasonable on the balance of probabilities to attribute his upper respiratory tract pathologies to these agents”.
10. Dr Szallasi also made a report on 22 December 2008. In that report, he commented upon the fact that no abnormality was detected in 1979 when the applicant was discharged. Dr Szallasi remarked:

It would be my understanding that during a routine medical examination the nose would be inspected internally and some assessment of nasal patency would be made. In addition there would be some limited anterior rhinoscopy but most medical practitioners would not use a head light or head mirror and would certainly not have access to endoscopic assessment following decongestion of the nasal cavity.
Nasal polyps can be difficult to diagnose particularly when they are small and may only be present in the middle meatus or spheno ethmodial recess.
In other words it would have been quite possible for Mr Scott to have some intranasal pathology which was not detected at a routine medical examination in 1979.
Secondly the question is regarding the etiology of nasal polyps. I have been able to locate at least one article which establishing a statistically significant difference between a history of chemical and occupational duct exposure and the occurrence of nasal polyps.
Obviously the etiology of nasal polyps can remain largely obscure although we clearly know of clinical conditions that are associated with an increased incidence of nasal polyposis. It would appear from this article that there is also some degree of relevance of occupation or environmental exposure to certain substances although it is difficult to obtain detailed clinical information.

DIAGNOSIS

11. The threshold matter to consider is the issue of the diagnosis of the conditions of the applicant that are material to his claim.
12. On 2 March 2005, Dr Kirton reported that the applicant had nasal polyps. On 22 March 2005, Dr Kirton reported that the applicant had chronic sinusitis.
13. On 1 March 2005, Dr Szallasi gave his opinion that the applicant suffers of both chronic sinusitis and nasal polyps. Dr Szallasi made his diagnosis on the basis of his examination as well as CT scans.
14. I accept this uncontradicted evidence of Dr Szallasi and find that the applicant has the conditions of chronic sinusitis and nasal polyps. I also note that this opinion accords with that of Dr Kirton.
15. I have also given consideration to whether on the evidence before me I can make a finding that the applicant has asthma.
16. In his report dated 2 March 2005, Dr Kirton has diagnosed the applicant as having asthma. He reports that the first consultation for this condition was in August 2003. However, the applicant was examined by Dr Edwards, a thoracic and sleep physician, who reported on 21 April 2005 that the applicant had no significant impairment from a respiratory point of view. On examination, Dr Edwards reported that there was no evidence of respiratory distress. Dr Edwards also conducted a lung function assessment which showed a mild airway obstruction with no acute change after an aerosol bronchilator was used. Dr Edwards further reported that lung volumes and carbon monoxide gas transfer was normal. Dr Edwards opined that the applicant “may” have had asthma but that it is well controlled by Flixotide which has also been effective in relieving the applicant’s cough.
17. On the evidence before me I cannot be reasonably satisfied that the applicant has asthma. The usual method of confirming whether a person has asthma is to have a positive result from a bronchial provovation test. The material before me does not include a report of such a test.

CAUSATION

18. The applicant can succeed if the material before me raises a connection between the conditions of the applicant if those conditions arose out of, or can be, attributable to service; or was contributed to in a material degree by or was aggravated by service (s 70 of the Act).
19. Where there is a Statement of Principles that “upholds the contention” that the disease of the applicant is on the balance of probabilities connected with his service, then the applicant can succeed as a consequence of s 120B of the Act. The Statements of Principles that are listed in the respondent’s statement of facts and contentions are: Asthma, Instrument No. 86 of 2001 as amended by Instrument No 37 of 2004; Chronic Sinusitis, Instrument No 22 of 2003 and Allergic Rhinitis, Instrument No 4 of 2003.
20. In addition to the Statements of Principles that are listed in the respondent’s statement of facts and contentions, I have also consulted the Statement of Principles for Acute Sinusitis, Instrument No 210 of 1995. This Statement of Principles was referred to at the hearing where Dr Szallasi gave evidence.
21. There is no Statement of Principles made in respect of nasal polyps nor has the Repatriation Medical Authority given any notice under s 120B of the Act that it intends to carry out an investigation in respect of this condition.

CONSIDERATION

22. Regardless of the fact that the applicant, or his representative has not relied upon any Statements of Principles I have considered the factors in each Statement of Principles.

Asthma

23. While I have not been prepared to make a finding that the applicant has asthma, I have given consideration to the Statement of Principles for Asthma, Instrument No. 86 of 2001. If it is assumed that there was the clinical onset of asthma in August 2003 as indicated, there is no factor in the Statement of Principles which would indicate, on the balance of probabilities, that the condition of asthma is connected with service. Under, for instance, factor 5(a) of the Statement of Principles there must be, for the first episode of asthma only, exposure to an occupational antigen within 24 hours before the clinical onset of asthma. If it assumed that the clinical onset of asthma occurred in August 2003, this was well after the service of the applicant had concluded. There can therefore be no basis for a claim that the applicant’s asthmatic condition is connected with his service.

Nasal Polyps

24. Since this matter was considered by the Veterans’ Review Board there has been a further report to the respondent dated 17 September 2007 from Dr Szallasi who, as I have mentioned earlier, has concluded that “it would seem quite reasonable on the balance of probabilities to attribute his upper respiratory tract pathologies to these [volatile] agents”. I accept that the report of Dr Szallasi does not identify the volatile agents in question but the respondent has not asked Dr Szallasi to explain the basis upon which he gave his opinion.
25. There is no indication in the service medical records of the applicant having suffered from nasal polyps at the time of his discharge. However, this should not bar the claim of the applicant. I accept the explanation given by Dr Szallasi that nasal polyps can be difficult to diagnose particularly when they are small and may only be present in the middle meatus or spheno ethmodial recess.
26. I should also mention that the parties have consented to this review being determined without a hearing pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (Cth). The respondent has not sought to examine the veteran and impeach the credibility of the veteran as to his exposure to chemicals. When Dr Szallasi gave evidence before me his conclusions were, quite properly in my view, not challenged in cross-examination by the respondent. In these circumstances, I consider that it is ‘fair’[1] for me to rely upon the report.
27. The claim for the nasal polyps condition should succeed because the uncontradicted report of Dr Szallasi is evidence that the nasal polyps condition arose out of, or was attributable to, the service of the applicant.

Chronic sinusitis

28. The report of Dr Szallasi of 17 September 2007 attributes the “upper respiratory tract pathologies” (which expression could fairly be regarded as including sinusitis) to volatile agents used during the service of the applicant. I have considered the Statement of Principles for Chronic Sinusitis, Instrument No 22 of 2003 as well as the Statement of Principles for Acute Sinusitis, Instrument No 210 of 1995. In considering the application of these Statements of Principles I have had regard to the fact that the applicant was discharged in 1979.
29. The report of Dr Kirton indicates that the onset of the sinusitis condition was in 2000. This is according to the report of Dr Kirton who has been treating the applicant for some time. It is important for me to bear this is mind because the factors in the Statements of Principles for Chronic Sinusitis and Acute Sinusitis are concerned with the clinical onset or clinical worsening of the sinusitis condition. The clinical onset of the sinusitis condition occurred some ten years after his discharge in 1979. There can therefore be no service connection for the sinusitis condition.
30. I should also mention that I have examined factor 5(i) of the Statement of Principles for Chronic Sinusitis, Instrument No 22 of 2003, which refers to a person who is suffering from allergic rhinitis at the time of the clinical onset of chronic sinusitis. However, this factor is rendered inapplicable as the clinical onset occurred at a time well after the applicant’s discharge.

Rhinitis

31. Dr Kirton considers that the onset of this condition was in the 1990s - a time well after the applicant’s discharge. The Statement of Principles for Allergic Rhinitis, Instrument No 4 of 2003 contains factors which refer to the exposure to allergens within 24 hours of the clinical onset of allergic rhinitis. There cannot be any nexus with the defence service of the applicant and his allergic rhinitis condition.
    

DECISION

32. I vary the decision under review and decide that the nasal polyps condition is defence-caused within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth), the date of effect of the decision being 7 November 2005. Otherwise the decision under review is affirmed. The matter is remitted to the respondent for assessment.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: ..........................[Sgd].............................................

Kate Slack, Research Associate

Hearing on the Papers 10 December 2009

Date of Decision 4 February 2010

---

[1] See s 2A of the Administrative Appeals Tribunal Act 1975 (Cth).