[2025] UKUT 215 (AAC)

The PATS heard the appeal on 10 October 2023. By its decision of 13 October 2023 it dismissed the appeal. Both the Secretary of State and the PATS proceeded on the basis that appellant’s claim for a war disablement pension was based on the following “injuries, wounds or diseases”: (i) lack of sex drive and impotence, (ii) severe joint and muscle pains, (iii) chronic fatigue, and (iv) depression and memory loss” (“the injuries”). Both the Secretary of State (in dismissing the claim) and the PATS (in dismissing the appeal) found that none of these injuries were attributable to service or had been aggravated by service.

An aspect of the claim and the appeal concerned whether GWI should be recognised as a discrete medical condition. On 23 April 2023 the PATS had directed that the appellant’s appeal to it should be subject of a one day hearing. Those directions also included that the following issues were to be determined by the PATS on the entitlement appeal:

The issue about the administration of vaccines arose on a separate appeal against another decision of the Secretary of State, which is dated 14 March 2019. That appeal was not before the PATS in this appeal, it having been sisted pending the outcome of the PATS’s decision on this appeal. I therefore say no more about it or vaccines.

The appellant’s case before the PATS, as summarised by the PATS, was as follows. First, GWI was a single diagnostic entity, he had GWI and he had raised a reasonable doubt that his GWI related to his service. He argued that recent research had established that GWI is a single entity medical condition, and he satisfied the relevant diagnostic criteria. And he contended that there was a valid analogy between GWI and chronic fatigue syndrome (“CFS”) as CFS is also a diagnosis of exclusion and covers a wide range of symptoms with unknown aetiology.

The PATS commented that although the appellant relied on the notion that GWI is a single diagnostic injury:

“it is clear that this is neither a necessary or sufficient condition for succeeding in the appeal. What matters is whether the individual symptoms complained of are related to service.”

The Secretary of State’s case before the PATS, again as summarised by the PATS, was that GWI did not qualify as a physical injury under 1964 Scheme. This was because it was an umbrella term for a number of different symptoms with a number of different causes, no underlying pathological process had been identified despite a huge amount of research, and as such GWI did not meet the generally accepted definition of a medical syndrome. The qualifying injuries were therefore the four individual symptoms on which the claim had been based (as identified in paragraph 7 above). Further, as the claim had been made more than seven years after the termination of the appellant’s service, the onus was on the appellant to raise a reasonable doubt that his symptoms were related to service. As to this last point, the Secretary of State’s case to the PATS was that there were numerous co-existing medical conditions which better explained the appellant’s symptoms and there was no medical evidence to support a causal connection with service. The appellant had therefore failed to raise a reasonable doubt that any of his four symptoms were related to service.

The PATS’s heard evidence from the appellant. It found him to be a credible witness, but it considered his reliability had clearly been affected by the passage of time. For this reason, the PATS relied more on contemporaneous documentary evidence. The appellant‘s evidence to the PATS was that he had joined a ship in Bahrain in February 1991 and had remained on board that ship until August 1991. The appellant had been exposed to smoke when it was anchored off Kuwait for a period, when the was on the ship’s upper deck. When the appellant was exposed to smoke, he would have been wearing chemical warfare protection suits and a smoke mask. The appellant remembered chemical warfare alarms going off, but not how often this occurred save for it perhaps being twice a week. In his normal work on board the ship, he was below deck for most of his deployment. The appellant did not notice any problems during this deployment.

The PATS also had before it written and oral medical evidence from a jointly instructed expert, Dr Madhok, a consultant physician and rheumatologist. He had been instructed to provide an opinion on the medical issue in the case. Dr Madhok accepted he was not an expert in GWI, but he was an expert in chronic fatigue syndrome. The PATS summarised the rest of Dr Madhok’s evidence as follows in its decision:

“24.

[Dr Madhok] demonstrated a full understanding of the Kansas or Centre for Disease Control criteria. In particular, he made the important distinction between diagnostic criteria and classification or case criteria. Diagnostic criteria are a set of signs, symptoms and tests for use in routine clinical care to guide the care of the individual patient. Classification criteria are simply standardised definitions to define homogenous cohorts for clinical research. Importantly, there are no accepted diagnostic criteria for GWI. Even more importantly, classification criteria cannot be used as diagnostic criteria.

25.

He also recognised the important distinction between establishing a relationship and establishing causality. Neither the Kansas nor the Centre for Disease Control established a causal connection between service in the Gulf war and symptoms, merely an association.

26.

Turning to the facts of this appeal, Dr Madhok noted the appellant’s extensive co-morbidities. He did not identify any inflammatory arthritis, unexplained chronic regional pain syndrome or peripheral neuropathy.

27.

In his oral testimony, Dr Madhok explained that CFS is a psychosocial disorder of unknown aetiology where the underlying biology was not fully understood. It was a diagnosis of exclusion. NICE and SIGN have both produced guidelines for the management of CFS.

28.

The appellant’s severe osteoarthritis and in particular his cervical spondylosis was an obvious explanation of his symptoms. If Dr Madhok saw the appellant in his clinic, that is what he would attribute the symptoms to. There were no features of fibromyalgia. Dr Madhok was not qualified to speak to psychological or psychiatric features of the presentation. However, he had not noted any reference to such features in the medical records.

29.

Dr Madhok could not identify any factors in service that might have contributed to the appellant’s symptoms. In a clinical setting, he would not have entertained service in the Gulf War as a contributory feature.”

The PATs then addressed in its decision the medical literature which had been put before it, and did so as follows:

“30.

The appellant placed great emphasis in the appeal on whether GWI is a single diagnostic entity. As noted above, this is something of an academic question as the answer is not determinative of the appeal. However, the question has been posed and has to be answered.

31.

The first article is Gulf War Illness: Lessons from medically unexplained symptoms (Iverson et al, Clinical Psychology Review 27 (2007) 842-854). This report notes that although service in the Gulf War is associated with increased reporting of symptoms and distress, research has failed to generate a plausible aetiological mechanism for veterans’ ill-health.

32.

The appellant placed particular reliance on the US Institute of Medicine reviews in 2006, 2010 and 2016. The history of these reviews shows a change from the position that there were a number of Gulf War illnesses (plural) – the position of the UK Medical Research Council in 2003 – to a position that there is a single Gulf War illness, albeit with a multitude of symptoms and no underlying pathological cause. Although it is easy to see why the appellant would attach importance to this significant change in terminology, the fact remains that this is only relevant to research, not diagnostic, purposes.

33.

The appellant also referred to an article by Chen et al (2017) Role of mitochondrial DNA damage and dysfunction in veterans with Gulf War Illness (PLoS One 12(9):e0184832), which explores the hypothesis that veterans with GWI exhibit greater mtDNA damage which is consistent with mitochondrial dysfunction. A number of caveats need to be given to this article. The most obvious is that it had a tiny study sample of only 21 patients. As such it is not statistically significant. This can be seen from the underlying hypothesis that such dysfunction was caused by exposure to agents such as carbamates and organophosphates….. There is no suggestion of such exposure here. Equally, there is no evidence that the appellant has mtDNA damage. Finally, it should be noted that the article recognises that “GWI is a chronic multi-symptom illness not currently diagnosed by standard medical or laboratory test…”

34.

The appellant also referred to an article by Fukuda et al Chronic Multisymptom Illness Affecting Air Force Veterans of the Gulf War (JAMA 1998; 280:981-988) as defining diagnostic criteria for GWI. However, the objective of the article was “To organize symptoms reported by US Air Force GW veterans into a case definition, to characterize clinical features, and to evaluate risk factors”. In other words, it was designed to provide case or classification criteria, not diagnostic criteria. Indeed, the introduction to the article notes that “no specific disorder has been identified, and the etiological basis and clinical significance of their symptoms remain unclear”.

35.

The most recent article relied on is Haley R et al (2022) Evaluation of a Gene-Environment Interaction of PON1 and Low-Level Nerve Agent Exposure with Gulf War Illness: A Prevalance Case-Control Study Drawn from the US Military Health Survey’s National Population Sample Environmental health perspectives, 130(5), 57001. Dr Anne Braidwood provides a number of criticisms of this research at page 966 of the bundle, but the most obvious problem for the appellant is the absence of any evidence that he was exposed to nerve agent during his brief time in theatre. Although the appellant did give evidence that he heard chemical alarms, he did not suggest that there was ever any exposure to agents such as organophosphates.

36.

In summary, the literature raises the reasonable possibility that a number of unrelated symptoms are related to service in the Gulf war. However, the possible causes of those symptoms are diverse and no unifying underlying pathology has been identified.

37.

The main problem with the appellant’s approach is that it treats the classification criteria of the Kansas and CDC studies as diagnostic criteria (see paras 44-48 of the Answers to the Statement of Case). As explained above, this is inappropriate. In the absence of diagnostic criteria, it is difficult for a tribunal, in the absence of any medical diagnosis, to make the finding the appellant has GWI.

38.

Furthermore, GWI is a diagnosis of exclusion, and there are co-existing medical conditions that explain the condition.

39.

Finally, even if it was accepted that the appellant has GWI, it would still be necessary to go on and demonstrate that the individual symptoms claimed are related to service. Accordingly, the medical literature is of little more than academic interest in this appeal.”

Based on the evidence before it, the PATS made the following relevant findings in fact:

The PATS then went on to set out what it termed its considerations in deciding the appeal. That involved it answering two questions.

The first question to be answered was whether the appellant had the conditions for which he had claimed. The PATS directed itself that it was for the appellant to prove on the balance of probabilities that he had the disablement for which he was claiming. In relation to GWI the PATS concluded the answer was ‘no’. This was because GWI is a diagnosis of exclusion and there were several co-existing medical conditions that could explain the appellant’s symptoms. The PATS stated that this answer, however, was not determinative of the appeal as each of the symptoms claimed for had to be considered in turn.

Turning to those symptoms, the PATS’s view was that in respect of both the lack of sex drive and impotence, and severe generalised joint and muscle pain, there was clear evidence that the appellant had suffered from these symptoms. However, the PATS considered that the same was not true for chronic fatigue syndrome (“CFS”) or depression and memory loss. Dr Madhok did not consider that the diagnosis of CFS applied and, as a diagnosis of exclusion, there were other co-existing morbidities which explained the appellant’s symptoms. As for depression and memory loss, the PATS’s view was that there was no evidence of any recognised psychiatric illness, including depression, and indeed the appellant’s GP had confirmed the same. Nor had the appellant reported memory loss to his GP, which was to be contrasted with the action the appellant had taken in respect of sexual dysfunction. In any event, the appellant had accepted that he could not raise a reasonable doubt that any depression and memory, as a standalone condition, had been caused by a war injury or war risk injury.

The second question the PATS had to address was whether the symptoms which it accepted the appellant had were related to service. Having set out relevant case law, the PATS set out its conclusions on this second question as follows.

“78.

Turning first to the question of loss of libido and impotence, there is a clear alternative explanation in the letter from Dr Shennan at pages 208-210. That explanation has nothing to do with service but instead relates to his cervical surgery in 1995. Given that the appellant did not suffer any acute symptoms in relation to any of the claimed stressors (smoke exposure, administration of vaccine and NAPs), there is no plausible biological explanation of how those stressors could have caused the symptoms many years later. Accordingly, there is no reasonable doubt that the symptoms are attributable to service.

79.

The position is not quite so clear cut in relation to the last remaining symptom, severe joint and muscle pain. However, there is again a far more likely explanation, in the form of the severe osteoarthritis which is – quite properly - accepted as unrelated to service…. Again there is no plausible biological explanation for how service could have caused these symptoms. Accordingly, we find that there is no reasonable doubt that the symptoms are attributable to service.”