Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CAF/329/2013

ADMINISTRATIVE APPEALS CHAMBER

Before: E A L BANO

Decision:  My decision is that the decision of the First-tier Tribunal involved the making of an error on a point of law. I set aside the tribunal’s decision and remit the case for hearing before a differently constituted tribunal.

REASONS FOR DECISION

1. This is an appeal against the decision of the tribunal dismissing the claimant’s appeal against a decision made in May 2012 that the condition Meniere’s Disease was neither attributable to nor aggravated by service.  The appeal, which has been brought with my permission, has been opposed by the Secretary of State in submissions dated 8 October 2013 and 26 February 2014.

2. The claimant was born in Coventry on 16 October 1929.  His service records have unfortunately been lost or destroyed, but the Secretary of State accepts that the claimant must have served on board ships during service in the Royal Navy from 7 May 1947 to 28 May 1949.  At a medical board carried out in the USA on 13 February 2012 the claimant described injuries which he sustained during the bombing of Coventry when he was a teenager, saying that the bombing was so loud that his ears bled and hurt.

3. On 20 April 2011 the claimant contacted the SPVA to request a claim form, which he returned on 6 June 2011.  He claimed that while at sea he could not keep his balance and vomited blood, as a result of which he was repeatedly ill-treated and disciplined.  He stated that he received medical treatment in Malta and was repatriated on the M.V. ‘Dunera’ before being medically discharged.  He also made a claim in respect of osteoarthritis in his left knee, which he said resulted from a fall caused by losing his balance while at sea.

4.  The claimant now lives in California, and on 13 February 2012 he underwent a medical board by a local ENT specialist.  He was confined to a wheelchair and was found to have total hearing loss in his left ear, no useful hearing in his right ear and to be suffering from severe symptoms of Meniere’s disease three or four times a week.  Although there were significant errors in the medical report with regard to the claimant’s service history, I agree with the Secretary of State’s submission of 26 February 2014 that they must have resulted from the extreme difficulty in taking a history from a person in the claimant’s condition and that they are not significant for the purposes of this decision.

5. On 24 April 2012 a certificate was issued rejecting Meniere’s disease as attributable to or aggravated by service, on the basis that the condition was consistent with the injuries which the claimant had received during the bombing of Coventry and because he had not given details of any injury during service which could have caused the condition.  Although the knee condition was accepted as being attributable to the falls which the claimant had suffered on board ship, the claim for that condition was rejected on the basis that the imbalance causing the claimant to fall was not service related.

6.  The claimant appealed against the rejection of his claim on 24 June 2012 and his appeal was heard in his absence on 14 November 2012. The tribunal expressed sympathy for the claimant, but dismissed the appeal because:

“…there is insufficient information on which unfortunately we can discern a link between [the claimant’s] experiences in service and those disablements from which he now suffers, Meniere’s disease, hearing loss and osteoarthritis in the left knee”.

7.  I gave permission to appeal on 24 July 2013 for the following reasons:

“The tribunal’s reasons for dismissing the appeal arguably leave in doubt whether, on the one hand, they accepted the claimant’s account of the falls which he sustained on board ship but considered that they played no part in causing the claimed disablements, or whether, on the other hand, they did not accept what the claimant said.  If the tribunal took the view that the sole cause of the claimant’s disablement was the bomb blast which he suffered as a teenager, there is no reason why they should not have said so.”

The Secretary of State’s representative accepts that the tribunal’s reasons for its decision are brief, but has submitted that the tribunal came to the only conclusion which was open to it on the evidence.

8.  I have however come to the conclusion that the tribunal’s reasons were inadequate, and that a decision dismissing the appeal was not inevitable on the evidence.  Although the matter may ultimately have to be determined by another tribunal, I regard it as extremely unlikely that the claimant was manifesting any signs or symptoms of Meniere’s disease when he joined the Royal Navy. Any hearing loss  at that stage would have been readily discernable by means of a forced whisper test at the claimant’s entry medical and would almost certainly have made the claimant unfit for service at sea.

9. Although the medical appendix included in the case papers recognises physical or acoustic trauma as a cause of Meniere’s disease, paragraphs 16.2 and 16.3 of the Appendix state:

“16.2 Damage due to trauma is usually immediate and hearing loss first noticed 6 months or more after the injury cannot reasonably be attributed to that injury.

16.3 An injury insufficiently severe as to cause loss of consciousness is very unlikely to damage the hearing.”

On the assumption that the claimant was not manifesting signs or symptoms of Meniere’s disease when he joined up and in the absence of any evidence that the claimant was rendered unconscious during the bombing of Coventry, those paragraphs tend to exclude the acoustic trauma which the claimant experienced during the bombing as the likely cause of Meniere’s disease.  In those circumstances, the tribunal ought in my view to have dealt with the question of whether the falls which the claimant alleged took place on board ship, or any other factors of service, were the cause, and not the result, of the claimant’s Meniere’s disease.

10.  It is of course true, as the tribunal observed, that there was very little evidence available to them to help them answer that question.  However, if the invaliding condition leading to the claimant’s discharge was Meniere’s disease, as seems likely if he was being treated for that condition prior to his discharge, there must have been a rejection of a deemed claim in respect of that condition under the predecessor provision of paragraph 35(2) of the 2006 SPO. The claimant cannot be expected to have known of his deemed claim in 1949 and, as the Secretary of State’s representative has helpfully explained, he would not have been informed of its rejection.  The fact that the application made on 20 April 2011 was in the form of a new claim, rather than as an application for a review should therefore not have prevented it from being treated as a review application if it was in respect of the previously rejected condition.

11.  Treating the April 2011 application as a review application rather than as a new claim would almost certainly not affect the commencement date of any award, but it could crucially affect the burden and standard of proof in a case in which there was a lack of evidence on the question of whether Meniere’s disease was linked to any factors of service.   Since the deemed claim made in 1949 was made within 7 years of the termination of service, it would have been governed by Article 4 of the 1943 Royal Warrant.  Article 4(3), which was in the same terms as Article 40 (4) of the  2006 Service Pensions Order, provided:

“Subject to the following provisions of this article, where an injury which has led to the a member’s discharge or death during service was not noted in a medical report on that member on the commencement of his service, a certificate under paragraph (1) shall be given unless the evidence shows that the conditions set out in that paragraph are not fulfilled.”

12.  Since the service records are missing, it cannot now be shown conclusively that the claimant’s entry medical did not record the symptoms of Meniere’s disease.  However, the destruction of the records should not operate to the claimant’s disadvantage, and in my view there is nothing to prevent a finding on the balance of probabilities that, for the reasons given above, Meniere’s disease was not noted at the entry medical.  Similarly, the disabling condition which led to the claimant’s medical discharge cannot be conclusively established, but if Article 4(3) of the 1943 Warrant applied because the disabling condition which led to the claimant’s discharge was Meniere’s disease, the claimant is entitled to a finding of attributability unless the evidence establishes that Meniere’s disease was unrelated to service.  It would follow from such a finding that the knee injury was also attributable to service.

13. In weighing the probabilities with regard to the cause of Meniere’s disease the tribunal did not have regard to the provisions of the Medical Appendix to which I have referred and (perhaps unsurprisingly) they did not consider whether the case was governed by what is not the Article 40 regime.  For those reasons, I consider that the tribunal’s decision involved the making of an error on a point of law.  I therefore set aside the decision and, since the determination of this claim requires medical expertise, I refer the case to the War Pensions and Armed Forces Compensation Chamber of the First-tier Tribunal for rehearing before a fresh tribunal.

14.  Applying what I have said in paragraphs 11 and 12, the new tribunal should decide if this case is to be treated as a review application, in which case it will be governed by what is now the Article 40 burden and standard of proof, or a new claim, in which case it will be governed by the Article 41 regime.  If the tribunal consider that it is governed by Article 40, they will need to decide if the evidence establishes that Meniere’s disease was not service related.  If the tribunal decides that the case is governed by Article 41, the burden of proof will be on the claimant to establish that Meniere’s disease has a service connection, subject of course to the benefit of any reasonable doubt under Article 41(5).

14.  Although I have remitted the case for rehearing, in view of the claimant’s age and serious medical condition I would be grateful if the SPVA could reconsider its decision in the light of what I have said about the possible application of the predecessor of Article 40 the 2006 SPO to this case.

(Signed)

E A L BANO

Judge of the Upper Tribunal

(Dated) 21 July 2014