Moylan v Repatriation Commission

[1998] AATA 211
1998 AAT 189

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(Decision by: Dwyer, SM)

Re: Frederick Moylan, Applicant
And: Repatriation Commission

Tribunal:

Member:
Dwyer, SM

Subject References:
Veterans' Affairs
pension for war-caused disease
whether hypertension a war-caused disease
renal stenosis related to service a factor specified in Statement of Principles for hypertension
medical evidence that renal stenosis may be associated with aortic atherosclerotic disease
aortic atherosclerotic accepted as war-caused
whether that acceptance was based on medical diagnosis or made in error
no material pointing to the hypothesis
no sufficient ground for determining that hyptertension a war-caused disease
decision as to hypertension affirmed
decision varied to take into account concessions as to other diseases

Legislative References:
Veterans' Entitlements Act 1986 - 9(1)(b); 120(1); 120(3); 120A(3)
Statement of Principles No 83 of 1995 -

Case References:
Byrnes v Repatriation Commission - (1993) 177 CLR 564; 116 ALR 210
Deledio v Repatriation Commission - (1997) 47 ALD 261
East v Repatriation Commission - (1987) 74 ALR 518
Langley v Repatriation Commission - (1993) 115 ALR 51
Noble v Repatriation Commission (FFC 971159) - unreported 3 November 1997
Repatriation Commission v Bey - (1997) 149 ALR 721

Hearing date: 19 May 1997
Decision date: 27 March 1998

Melbourne

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Decision by:
Dwyer, SM

Background

1. This is an application for review of a determination of the Repatriation Commission made 21 June 1995. The substantive issue is whether hypertension is a war-caused disease within the meaning of s 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Repatriation Commission accepted aortic atherosclerotic disease, tinea and post traumatic stress disorder as war-caused diseases but rejected Mr Moylan's claims in respect of hypertension and also osteoarthrosis right knee, lumbar spondylosis, spinal stenosis (other than cervical), osteoarthrosis left knee and contact dermatitis. Pension was increased from 0% to 90% of the General Rate.

2. On 28 February 1996 the Veterans' Review Board ("the VRB") varied the decision of the Repatriation Commission to accept osteoarthrosis of the knees as war-caused, but otherwise affirmed the decision of the Repatriation Commission.

3. When Mr Moylan lodged his application for review by this Tribunal there were five conditions in contention. However the respondent in its Statement of Facts and Contentions lodged on 9 May 1997 conceded that the spinal conditions claimed should be accepted as war-caused under different descriptions. Thus it conceded that cervical spondylosis, lumbar spondylosis and lumbar spinal stenosis were war-caused. During the hearing it became apparent that the skin condition diagnosed by some doctors as contact dermatitis was the same condition as that already accepted as war-caused tinea. There was no dispute between the parties that the condition, whatever its correct diagnosis, is properly assessed at 5 impairment points on Table 11.1.1 of the Tables in the Guide to Assessment of Rates of Veterans' Pensions ("GARP"). As the condition is already accepted under the description tinea, the parties agreed that it was unnecessary that the Tribunal consider whether it would be better described as contact dermatitis. Thus the only condition in issue before the Tribunal is hypertension.

4. At the hearing Mr M Croyle of Counsel appeared for Mr Moylan. Mr R Douglass, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Moylan gave evidence. Evidence was also given by his treating doctor, Dr Murkies, and by a cardiologist, Professor Pitt. They both gave evidence over the telephone. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing.

Relevant Legislative Provisions

5. A veteran is entitled to pension under s 14 of the Act in respect of war-caused injury or disease. The circumstances in which an injury or disease shall be taken to have been war-caused are set out in s 9(1) of the Act. Although the applicant's Statement of Facts and Contentions does not state on which paragraph of s 9 the applicant relied, it would appear that it was s 9(1)(b) which provides as follows:

9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(b)

the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

6. It was conceded that Mr Moylan had operational service within the meaning of that term in s 6 of the Act. Thus the standard of proof is that set out in ss 120(1) and (3) which provide as follows:

120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)

that the injury was a war-caused injury or a defence-caused injury;

(b)

that the disease was a war-caused disease or a defence-caused disease; or

(c)

that the death was war-caused or defence caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

7. Section 120A of the Act, to which reference is made in the notes to s 120(1) and s 120(3), applies to claims made on or after 1 June 1994. As Mr Moylan's claim in this matter was made on 27 February 1995, s 120A applies to this claim. Sub-section 120A(3) provides as follows:

(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)

a Statement of Principles determined under subsection 196B (2) or (11); or

(b)

a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

The Statement of Principles Concerning Hypertension

8. The relevant Statement of Principles ("SoP") concerning hypertension is Instrument No. 83 of 1995. In paragraph 1 it sets out a number of factors "that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting" hypertension with the circumstances of Mr Moylan's operational service.

9. The only relevant factor in this matter was agreed to be factor 1(d). So far as relevant paragraph 1(d) provides:

Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:

...

suffering from renal artery stenosis before the accurate determination of hypertension.

Paragraph 2 of the SoP requires that the renal artery stenosis be related to service rendered by the veteran.

10. During the hearing there was some discussion as to the standard of proof to be applied by the Tribunal in deciding whether one or more of the factors set out in the relevant paragraph of the SoP "exists".

11. After the hearing concluded, but before the Tribunal had finalised its decision, Heerey J delivered a decision in Deledio v Repatriation Commission (1997) 47 ALD 261 which dealt with the application of SoP's and in particular with the requirement that a factor "exist" in operational service matters. His Honour held, as Mr Croyle had submitted, that where there has been operational service, the standard of proof as to whether a factor exists is that set out in s 120(1) of the Act.

12. Heerey J said in Deledio, at p273:

If the hypothesis advanced by the applicant was consistent with the applicable SoP, in the sense that the hypothesis included a history of fat consumption by the veteran of the amount and over the period specified in the SoP, then the SoP had no further part to play in the case. The remaining parts of the hypothesis, which concerned such matters as the veteran's diet while in the Army as compared with his previous diet and the effect the Army diet might have had on his eating habits in later life, were elements of the hypothesis whose reasonableness had to be assessed in accordance with the principles laid down in Bushell and Byrnes. No question of proof or disproof arises at this stage; Byrnes, supra. If the hypothesis was reasonable in the Bushell/Byrnes sense, then s 120(1) applied and the onus was on the Commission to disprove the hypothesis beyond reasonable doubt.

His Honour described the application of s 120(1) as follows, at p275:

If the hypothesis is reasonable the claim will succeed unless:

(iv)

one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)

the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.

At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the Commission were to deny this, then s 120(1) requires the Commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of s 120(1) and (3) in the face of the Baume Committee's recommendations. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis.

13. Mr Douglass accepted the Tribunal's invitation to lodge a written submission as to the application of Deledio to this matter. In his submission of 5 December 1997 Mr Douglass referred to East v Repatriation Commission (1987) 74 ALR 518 Repatriation Commission v Bey (1997) 149 ALR 721 and Noble v Repatriation Commission (FFC 971159, unreported, 3 November 1997).

Medical Evidence

14. Mr Croyle relied on evidence from Professor Pitt. Because Mr Moylan had aortic atherosclerotic disease accepted as war-caused, Professor Pitt hypothesised that he could have generalised atherosclerotic disease, not only atherosclerosis of the aorta and thus could suffer from atherosclerosis of the renal artery causing renal artery stenosis.

15. Professor Pitt did not point to any symptoms or findings supporting "a diagnosis" of aortic atherosclerosis. He simply accepted that there had been such a diagnosis made. In his first report dated 26 November 1996, Professor Pitt wrote:

AORTIC ATHEROSCLEROSIS

I note that Mr Moylan has an accepted disability for this condition. However I am not aware as to the symptoms that have occurred in Mr Moylan because of it, nor how the condition was first diagnosed or confirmed. I understand that it has been related to his cigarette smoking habit which seems appropriate. Should you have further details about this diagnosis I would be pleased to review them.

...

It should ... be noted that an important cause of secondary hypertension is the presence of renal artery stenosis, and this could arise from atherosclerosis of the renal arteries. As noted above I am not aware of the method by which the diagnosis of aortic atherosclerosis was made in this case, but if there is evidence that involvement of the renal arteries is possible, then this would provide a link between an accepted disability and the development of hypertension.

...

CONCLUSION

Mr Moylan has hypertension which was first diagnosed in the 1960's or 1970's. The two possible identifiable aetiological factors are atherosclerosis and the accepted disability of post-traumatic stress disorder.

As indicated earlier I do not have the data which indicates how the diagnosis of aortic atherosclerosis was confirmed. However the Statement of Principles concerning hypertension No. 83 of 1995 in paragraph 1(d) accepts that renal artery stenosis is a cause of hypertension. Amongst the possible causes of renal artery stenosis are atherosclerosis and therefore it is a reasonable hypothesis in this case that the accepted disability of aortic atherosclerosis has led to renal artery stenosis and the condition of hypertension .

...

On the evidence so far available, it is my belief that a reasonable hypothesis exists that aortic atherosclerosis has led to renal artery stenosis, and therefore hypertension. I would be pleased to review any evidence that you have regarding the diagnosis of aortic atherosclerosis. (Emphasis added).

16. This matter is unusual because although aortic atherosclerotic disease has been accepted as war-caused, the respondent contended that it had been accepted in error. The respondent asserted that the condition from which Mr Moylan suffers is aortic sclerosis and not aortic atherosclerotic disease. The respondent further contended that the condition of aortic sclerosis refers to minor changes to the aortic valve and does not cause any disability.

17. In cross-examination Professor Pitt agreed that the diagnosis "aortic valve sclerosis" refers to thickening of the aortic valve and is indicative of degenerative changes in the valve, but not [although that word is left out of the relevant passage of the transcript] necessarily indicative of aortic atherosclerosis. He added:

But my clear understanding was that the entitlement of war-caused disability was aortic atherosclerotic disease. That's what I've written down and I take it that was the exact wording and that's more widespread than just the aortic valve.

Professor Pitt said there is some overlap between aortic valve sclerosis and aortic atherosclerosis, but he said aortic atherosclerosis involves the whole aorta and is much more widespread and normally would indicate a more general degenerative process.

18. Professor Pitt gave evidence as if he were not aware that there was an issue as to whether or not there had ever been any factor pointing to Mr Moylan having aortic atherosclerotic disease. He said:

The foundation of my reasonable hypothesis, as I've said before, was the established fact from my point of view that Mr Moylan had aortic atherosclerotic disease. It was something that I took as an article of faith because he had a disability for it and as I understood it this was not a debate or issue on my part.

On questioning from the Tribunal, Professor Pitt agreed that when he had said, "disability" he had actually meant entitlement.

19. It is enlightening to consider the material which was before the delegate of the Repatriation Commission when he wrote a letter dated 21 June 1995 to Mr Moylan advising him:

I have accepted the claim for Aortic Atherosclerotic disease ...

20. The documents before the Tribunal show that no doctor had diagnosed Mr Moylan as suffering from renal artery stenosis before the accurate determination of hypertension. His treating doctor, Dr Murkies, provided a report dated 10 December 1996 which read as follows:

I have searched our medical records regarding Mr Moylan. There is no documented evidence of renal artery stenosis. However assessment for renal artery stenosis is not conducted as a routine in patients with hypertension, particularly those, like Mr Moylan, who responded well to treatment.

Nor had there been any claim for aortic atherosclerotic disease, or any diagnosis of aortic atherosclerotic disease prior to 21 June 1995 when that condition was accepted as war-caused by a delegate of the Repatriation Commission.

21. There was evidence that in 1988 a treating specialist had diagnosed Mr Moylan as suffering from aortic sclerosis. The medical records of the Brighton Medical Centre include two reports from Dr Panetta, a cardiologist. In the first report dated 6 September 1988, Dr Panetta wrote of Mr Moylan:

He also has a soft systolic ejection murmur consistent with aortic sclerosis as there is no evidence of any significant valvular disease. I have reassured him that all appears to be well, but nevertheless I think it is quite reasonable to assess him further and he will now have an exercise stress test, lung function and also echocardiography. I will contact you in due course with the findings and will discuss any further measures as indicated with you then. (Emphasis added)

22. In his second report of 11 October 1988, Dr Panetta wrote:

This is a further note to you regarding this man who has now had lung function, which was quite normal including carbon monoxide transfer factor. He also had the echocardiogram, which showed normal left ventricular size and systolic function but the left atrium was slight dilated compatible with previous hypertension if this had been the case. He also had the exercise stress test, during which he was able to reach a moderate level of activity, when he had shortness of breath but no chest pain and there were no ECG changes of ischaemia. The test is therefore negative. As you know his FBE and ESR were normal, urea and electrolytes also were normal but his cholesterol is slightly elevated at 6.07mmol/1. The cardiac murmur would be consistent with aortic sclerosis and as indicated by you is not of any significance . (Emphasis added)

23. There is a form in the T documents (at p108) relating to a medical examination of Mr Moylan's cardio-vascular system on 7 April 1995. Dr Fox has written "Heart murmur due to aortic sclerosis which is of no clinical significance". Similarly at p140 of the T documents Dr Guy Hibbins wrote on 1 June 1995:

The diagnosis is AORTIC SCLEROSIS (ICD 440.0)

24. At T documents p156 a Dr Cuzeli on 15 June 1995 prepared a cardiorespiratory assessment containing the following entry:

Impairment due to Valvular Heart Disease

The following selection was made from Table 1.1.7 to describe the impairment due to valvular heart disease:

Aortic sclerosis: no or minimal symptoms 0 points

25. The only mention of aortic atherosclerotic disease, before that condition was accepted as war-caused on 21 June 1995, is in Dr Cuzeli's' Final Impairment Report also completed on 15 June 1995, at pp152 of the T documents. It states:

Atherosclerosis of Aorta

440.0 None - Atherosclerosis of Aorta

This disability has been assessed using the following assessment procedure:

Cardiorespiratory (standard)

26. It is significant that the ICD Code description given by Dr Cuzeli is 440.0 which is the same code description as that given by Dr Hibbins for aortic sclerosis, at T documents p140. It is also significant that on the same day Dr Cuzeli described Mr Moylan's condition as "Atherosclerosis of Aorta" at p152 of the T documents and as "Aortic sclerosis" at p156.

27. Thus there is no material pointing to Mr Moylan being diagnosed by a treating medical practitioner as having aortic atherosclerotic disease or atherosclerosis of aorta. The medical diagnosis made by Dr Panetta, Dr Fox and Dr Hibbins was aortic sclerosis. That diagnosis was also made by Dr Cuzeli on 15 June 1995 in a cardiorespiratory assessment but on the same day Dr Cuzeli in a Final Impairment Report described the condition as "Atherosclerosis of Aorta", although using the same ICD code as that for aortic sclerosis.

28. Professor Pitt's evidence did not address the issue of a possible misdescription of Mr Moylan's condition in any way. On 29 January 1997 he provided a further report, after having read the report from Dr Murkies set out in paragraph 14 above. He wrote:

I am in receipt of your letter of the 18th December 1996 together with a photostat copy of a letter (date uncertain) from the Brighton Medical Centre (I believe signed by Dr Alice Murkies). The letter indicates that there is no evidence that investigations were performed to determine the presence of renal artery stenosis in Mr Moylan. Reasonably it is stated that in patients whose hypertension is readily controlled, such assessment would not routinely be performed.

In my report of the 26th November 1996, I suggested that renal artery stenosis was a possible cause of the hypertension suffered by Mr Moylan. I noted that Mr Moylan had the accepted disability of aortic atherosclerotic disease, although I did indicate that the means by which this diagnosis was reached was not known to me.

The opinion expressed in my report remains unchanged. As Mr Moylan has aortic atherosclerosis and I presume this diagnosis is not in question, a reasonable hypothesis exists that such atherosclerosis has involved a renal artery and the resultant renal artery stenosis is the mechanism by which he developed hypertension . To prove such a situation would require further investigation.

In the absence of appropriate investigations, such as angiography or ultrasound, it is my opinion that a reasonable hypothesis exists that the accepted aortic atherosclerosis has resulted in renal artery stenosis, which has produced hypertension. (Emphasis added)

29. Professor Pitt placed great reliance on his presumption that the diagnosis of aortic atherosclerosis was "not in question". His evidence made it clear that the starting point of the hypothesis he had advanced was that Mr Moylan had aortic atherosclerosis. He added:

I base that opinion on my understanding that he has an entitlement for that condition and in my original communication to Williams Winter Higgs of 26 November I made the point that I was unaware as to how that diagnosis had come about, but for the purpose of preparing my report I assumed that the man had aortic atherosclerotic disease and that as far as I'm concerned was an absolute and I did base my opinion on that.

30. Mr Croyle then read to Professor Pitt an extract from Dr Panetta's report of September 1988 in which he had written that the cardiac murmur would be consistent with aortic sclerosis. Professor Pitt said that a murmur may indicate aortic sclerosis which means aortic valve sclerosis. He said that did not add to the evidence of aortic atherosclerosis, which refers to sclerosis of the artery itself.

31. Professor Pitt then explained his position again:

Amongst the kidney causes, the real causes of hypertension is narrowing ... and in older people it's due to atherosclerosis of the renal arteries narrowing them, impeding the blood supply and leading to metabolic endocrine changes that lead to high blood pressure. Now, given the fact that this man has aortic atherosclerosis , the likelihood of renal artery atherosclerosis is obviously much higher and therefore a reasonable hypothesis, not proven in this case, is that his hypertension was due to atherosclerosis of one or other of the renal arteries and that was in my opinion, as I have given it, a reasonable but not proven hypothesis. (Emphasis has been added and some obvious errors have been corrected)

32. After Mr Douglass' address, at the suggestion of the Tribunal, Professor Pitt was recalled to give evidence as to what he understood by the term renal artery stenosis. He was then asked a question by Mr Douglass to which he responded:

But if you [have] atherosclerosis of your aorta and I am sorry to harp back to this but it was severe enough for an authority to say that we will give you recognition that this is a condition from which you suffer then it is quite likely that other vascular beds, for instance, the renal arteries are involved particularly since there was hypertension.

33. Professor Pitt said that if the correct diagnosis were aortic valve sclerosis he did not know of any link between that and the development of renal artery stenosis.

The Submissions of the Arteries

34. On that evidence Mr Croyle submitted that the raised facts were that Mr Moylan had aortic atherosclerotic disease and that it is a reasonable hypothesis that he has renal artery stenosis which is one of the factors in the hypertension SoP. Mr Croyle submitted that where the material pointed to one of the raised factors which go to identify the existence of a reasonable hypothesis, the respondent had to disprove the existence of that factor beyond reasonable doubt. He concluded:

That has not been done, therefore the Tribunal must find in favour of the applicant.

35. Mr Croyle relied on the passage in Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571, 116 ALR 210 at p215 where their Honours Mason, CJ, Gaudron and McHugh JJ explained the process to be used in applying the reasonable hypothesis test:

The position may be summarised as follows:

(1)

First, sub-s.(3) of s.120 is applied:

do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.

(2)

If a reasonable hypothesis is established, sub-s (1) of s.120 is applied. The claim will succeed unless:

(a)

one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)

the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

Applying that process Mr Croyle said that Professor Pitt had advanced a reasonable hypothesis that Mr Moylan had hypertension caused by renal artery stenosis resulting from generalised atherosclerosis, as indicated by the war-caused aortic atherosclerosis. He submitted that the claim would therefore succeed unless one or more of the facts necessary to support the hypothesis was disproved beyond reasonable doubt.

36. Mr Croyle claimed that the fact of Mr Moylan having aortic atherosclerosis could not be questioned by the Tribunal as that condition had already been accepted as war-caused. Mr Croyle referred to Langley v Repatriation Commission (1993) 115 ALR 51 where Lockhart and Beazley JJ held that there was no jurisdictional bar to the AAT examining the facts underlying a determination that pancreatitis was war-caused, when considering a claim in respect of diabetes which was allegedly brought on by the pancreatitis. He submitted that although that decision held that the facts underlying the determination to accept aortic atherosclerosis could be challenged in these proceedings, they could only be challenged by Mr Douglass disproving that Mr Moylan had aortic atherosclerosis.

37. The position is artificial and logically unsatisfactory in that as Mr Douglass and Mr Croyle agreed, Langley establishes that the decision to accept aortic atherosclerosis as a war-caused disease can not be challenged in this application. However Mr Douglass submitted that the [wrongly] accepted condition of "aortic atherosclerosis" could not be used as a stepping stone or link to the acceptance of another condition, unless the Tribunal revisited the facts underlying the acceptance.

38. Mr Croyle also referred the Tribunal to the decision of Beazley J in Preston v Repatriation Commission (1993) 123 ALR 719 where her Honour held that it was an error of law to use the balance of probabilities standard in deciding whether or not a veteran with operational service suffered from a particular disease or injury. That decision has recently been applied by this Tribunal in Re Cooke and Repatriation Commission (AAT 12614, unreported, 12 February 1998) and in Re Videan and Repatriation Commission (AAT 12627, unreported, 17 February 1998).

39. Mr Croyle submitted that the decision of Lee J in Ferriday v Repatriation Commission (1996) 42 ALD 526, which applied the reasonable satisfaction standard in regard to whether or not certain conduct was a Sserious default or wilful act", within the meaning of that term in s 9(3) of the Act should be confined to issues arising under s 9(3). Ferriday cannot stand with Preston unless it is confined in that way. In Re Cooke the Tribunal, constituted by Justice Mathews, President; Dr Staer and Brigadier Lloyd, Members, held that Ferriday should be treated as relevant only to the application of s 9(3) of the Act. I accept that analysis and accordingly agree with Mr Croyle's submission that Ferriday is not relevant to this application.

40. The applicant's case was that unless the respondent conducted investigations which would medically be "totally unnecessary", as written by Dr Murkies in her report of 10 December 1996, and as Professor Pitt agreed in evidence, at p68, the Tribunal was bound to accept the existence of war-caused aortic atherosclerosis. Thus on Professor Pitt's evidence there would be material pointing to the reasonable hypothesis that Mr Moylan had hypertension caused by renal artery stenosis resulting from generalised atherosclerotic disease.

Conclusions

41. In Langley v Repatriation Commission (1993) 115 ALR 51 the Full Court said at p59:

The extent to which the Commission will examine facts underlying an earlier determination of the Commission that the veteran's injury or disease was war-caused will depend upon the circumstances of the case. If no challenge is made to the earlier determination, it will be rare for the Commission to re-examine the facts that underpin that determination unless it perceives some clear error. But further facts about the veteran and his condition may come to light following the making of the earlier determination of the Commission or additional medical evidence may become available or other circumstances may change. In such a case the Commission doubtless would look again at the facts that were before it at the earlier time and review them in the light of the subsequent material.

42. I considered Langley in a somewhat similar matter of Re McKenna and Repatriation Commission (1997) 26 AAR 139. In McKenna service-related hypertension was sought to be used as a factor supporting a reasonable hypothesis that ischaemic heart disease was war-caused. There was no doubt that Mr Mckenna had hypertension. The decision to accept it as service-related had been based on the opinion of an appropriate medical specialist, and had been made on 21 November 1985. But the Repatriation Commission submitted that, in the proceedings before me, the hypertension should not be treated as service-related because it had been accepted on the basis of medical opinion that in some circumstances stress could cause hypertension. Mr Douglass submitted in McKenna that, as the stress/hypertension theory did not receive endorsement, in the SoP concerning hypertension, I should not accept that Mr McKenna's hypertension was related to service for the purposes of determining whether or not his ischaemic heart disease was a war-caused disease.

43. In McKenna, I concluded that there was evidence before me of a significant body of material in support of the stress/hypertension theory which had provided the basis of the acceptance by the Repatriation Commission. Thus I was not satisfied beyond reasonable doubt, as required by Deledio, that Mr McKenna's hypertension was not related to his service.

44. McKenna is distinguishable from this application. As the T documents and the medical reports received in evidence show, there has never been any medical opinion to the effect that Mr Moylan has aortic atherosclerosis. As set out in paragraphs 14 to 33 of these reasons, the diagnosis of the treating cardiologist was "aortic sclerosis". The first reference to aortic atherosclerosis in the materials is in the Final Impairment Assessment of 15 June 1995 (T152), but on the same day the same doctor in a cardiorespiratory assessment (T docs p156) also used the description "aortic sclerosis", which was consistent with the diagnosis of other medical practitioners.

45. In this matter there is a challenge to the earlier determination of the Commission that Mr Moylan suffers from aortic atherosclerosis. There is also material suggesting that the determination is a result of an error as there is no medical material supporting the diagnosis of aortic atherosclerosis. Thus, applying Langley, it is appropriate to look again at the facts before the Repatriation Commission.

46. This is not a matter such as Videan where a condition has been accepted on the basis of a theory advanced by one medical practitioner, which other medical practitioners might question. No doctor, other than Dr Cuzeli, has described Mr Moylan as suffering from aortic atherosclerosis. His or her use of that diagnostic term appears to have been in error as he or she also used a different diagnosis of the same condition on the same day. Professor Pitt carefully made no reference to symptoms of aortic atherosclerosis. He simply repeated frequently that it was "an accepted condition" and said that if there were any details about the diagnosis he would "be pleased to review them."

47. Mr Croyle submitted that the determination of the Repatriation Commission regarding aortic athersclerosis raised or pointed to the hypothesis that Mr Moylan had war-caused renal artery stenosis and war-caused hypertension. In my view the difficulty with that submission is that the determination of the Repatriation Commission itself cannot raise or point to a reasonable hypothesis. It is the material on which it was based which must do so. When one carefully considers the material before the Repatriation Commission, which is now also material before the Tribunal, that material does not raise or point to the reasonable hypothesis relied on by Mr Croyle.

48. A Full Bench of the Federal Court in Repatriation Commission v Bey (1997) 149 ALR 721 has clarified what is required for material before the Tribunal to raise a reasonable hypothesis connecting a disease with the circumstances of a veteran's service as required by s 120(3) of the Act. Their Honours Northrop, Sundberg, Marshall and Merkel JJ, with whom Nicholson J concurred, compared apparently conflicting decisions of the Full Court in East v Repatriation Commission (1987) 74 ALR 518 and Cooke v Repatriation Commission (1997) 45 ALD 205. They expressed approval of the reasoning in East .

49. The Full Court in East had approved a well-known passage from the decision of the Veterans' Review Board in Stacey (unreported, 26 June 1985) stating:

The addition of the word "reasonable" would, however, seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open , a hypothesis as a reasonable hypothesis. (Emphasis added)

The Full Court in East then expressed the test as follows, at p534:

A reasonable hypothesis requires more than a possibility; not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. (Emphasis added)

50. The Full Bench in Bey, in approving the reasoning in East , at p729 set out a number of other Full Court decisions which had applied the reasoning in East and pointed out that it had been expressly approved by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 at 427-8; 109 ALR 30.

51. The Full Bench in Bey did not approve the reasoning of the Full Court in Cooke. Their Honours said at p730:

In the passages from the judgments of Einfeld J and Lee J relied by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a "reasonable hypothesis" on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact the expression in question is not "hypothesis" but "reasonable hypothesis". While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker . The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414; 109 ALR 30 at 34:

The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-70; 116 ALR 210 at 214:

The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.

...This court restates the position established by East v Repatriation Commission (1987) 74 ALR 518, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister's second reading speech and with authority. (Emphasis added)

52. In this matter there is no material pointing to or supporting the hypothesis that Mr Moylan has generalised atherosclerosis resulting in renal artery stenosis. I find that the material before me does not point to Mr Moylan having aortic atherosclerotic disease. I find that it was accepted as a war-caused disease in the absence of any medical material pointing to Mr Moylan suffering from that condition, because of a misdescription by Dr Cuzeli. To attempt to make that misdescription the basis of a hypothesis that Mr Moylan's hypertension is war-caused is simply not reasonable.

53. In Bey the reasons given by the Tribunal for rejecting Mr Hadley's evidence were summarised in the majority reasons of the Federal Court, as follows, at p726:

The tribunal was of the opinion that the evidence raised a hypothesis that the respondent's physical work and sporting activities in Vietnam caused or contributed to the contracting of his rheumatoid arthritis. It said that the question was whether that hypothesis was reasonable. The tribunal noted that Mr Hadley, who had advanced the hypothesis, had misinterpreted what Dr Mackay had written, and that he had given no reason for his opinion that there was a causative link between the respondent's physical work and sporting activities in Vietnam and the contracting of the disease. This opinion had not been advanced in his written report, but only in cross-examination. The tribunal noted that there was no evidence of any body of medical opinion to support Mr Hadley's hypothesis which, it said, "lacked the hallmarks of a properly considered opinion". The tribunal said that Mr Hadley's "demeanor was more that of an advocate than that of a professional witness". It observed that there was no evidence that the onset of the disease is, "as a matter of common or uncommon experience", accompanied by or associated with the type of intense physical activities in which the respondent was engaged in Vietnam. The tribunal did not consider Mr Hadley "eminent in the relevant field of knowledge", and regarded his hypothesis as "too tenuous to be regarded as reasonable".

54. The Court said of that analysis at p730:

For the reasons it gave, the tribunal was entitled to disregard Mr Hadley's evidence.

Once the Tribunal in Bey rejected Mr Hadley's evidence, it concluded that the other evidence did not raise any hypothesis connecting Mr Bey's rheumatoid arthritis with his service. The Court in Bey said at p732:

The tribunal's conclusion, "after considering the whole of the evidence", was that it did not raise a reasonable hypothesis connecting the respondent's disease with the circumstances of his service, and that it was satisfied beyond reasonable doubt that there was no sufficient ground for determining that the disease was war-caused.

55. Similarly in this matter I reject Professor Pitt's evidence as advancing a reasonable hypothesis, because it was based upon the erroneous assumption that Mr Moylan had been found to have aortic atherosclerosis. A consideration of the whole of the material before the Tribunal shows that assumption to have been unsupported by any medical evidence.

56. Mr Douglass submitted in paragraph 5 of his written submission lodged 5 December 1997:

[T]he respondent submits that the hypothesis proposed in this case, that the hypothesised presence of aortic atherosclerotic disease has led to renal artery stenosis and hypertension, is completely unsupported by any material, apart from the hypothesis itself. The respondent submits that there is no material `pointing to' the hypothesis, as distinct from merely `leaving it open'. While there is evidence that the Veteran suffers from aortic sclerosis (a condition entirely unrelated to atherosclerosis), there is no clinical evidence whatsoever that the Veteran suffers from renal artery stenosis or aortic atherosclerotic disease.

I accept that submission.

57. Once it is understood that there is no material suggesting that Mr Moylan had symptoms or a clinical diagnosis of aortic atherosclerotic disease before the disease was accepted as war-caused, and that his treating cardiologist had diagnosed aortic sclerosis and not aortic atherosclerosis, it is apparent that Professor Pitt's hypothesis was based on a misconception as to Mr Moylan's medical history. I therefore reject his evidence as raising a reasonable hypothesis connecting Mr Moylan's hypertension with the circumstances of his service. There is no other material before me raising a reasonable hypothesis of such a connection. Accordingly I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Moylan's hypertension is a war-caused disease.

58. That part of the decision under review which rejected the claim to have hypertension accepted as a war-caused disease must therefore be affirmed.

59. The respondent also submitted in paragraph 4.17 of its Statement of Facts and Contentions that there was no basis for the 35 point impairment rating in respect of Cardiorespiratory effort tolerance which the delegate of the Repatriation Commission attributed to war-caused aortic atherosclerotic disease. The respondent therefore contended that Mr Moylan's rate of pension should be reduced from 90% of the General Rate to 60% of the General Rate.

60. Mr Croyle requested that the Tribunal not engage in the task of assessment but remit the matter to the Repatriation Commission for assessment of the rate of pension payable in accordance with its findings as to entitlement.

61. As the Court explained in Langley, my decision that hypertension is not a war-caused disease does not affect the determination accepting "aortic atherosclerotic disease" as a war-caused disease. It is not for this Tribunal to say whether or not the Repatriation Commission may reconsider that determination. Nor is it appropriate for the Tribunal in these proceedings to consider the impairment assessment already made in respect of "aortic atherosclerotic disease".

62. The decision under review will be varied to note the concessions made by the Repatriation Commission accepting cervical spondylosis, lumbar spondylosis and lumbar spinal stenosis as war-caused. The matter will be remitted to the Repatriation Commission for assessment of the rate of pension in respect of the conditions which have now been conceded to be war-caused. In all other respects the decision will be affirmed.

Counsel for the Applicant: Mr M Croyle

Solicitor for the Applicant: Williams Winter Higgs

Counsel for the Respondent: Nil

Solicitor for the Respondent: Nil

Departmental Advocate: Mr R Douglass