AZEL and REPATRIATION COMMISSION

[2011] AATA 470

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 470

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2010/3942

VETERANS’ APPEALS DIVISION		)
Re		GEORGE MICHAEL AZEL

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  G. D. Friedman, Senior Member

Date 6 July 2011

Place Melbourne

Decision  The Tribunal affirms the decision under review.

..............[signed]................................

Senior Member

VETERANS’ AFFAIRS - Veterans’ entitlements - naval service - ischaemic heart disease - whether related to smoking

Veterans' Entitlements Act 1986 ss 9, 70(5)(a), 120(1), 120(3), 120(4)

Kattenberg v Repatriation Commission [2002] FCA 412

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

6 July 2011   G. D. Friedman, Senior Member

1.      George Azel served in the Royal Australian Navy from 9 January 1964 to 31 December 1973.  His service included a period on board HMAS Stuart from 1967 to 1972.  The period from 25 January 1968 to 5 February 1968 constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).  His service from 7 December 1972 to 31 December 1973 constitutes eligible defence service under the Act.

2.      Mr Azel is in receipt of a disability pension at 40 per cent of the general rate.  He suffers from a number of medical conditions, several of which have been accepted by the respondent as war-caused.  On 23 February 2009 he lodged a claim for an increase in disability pension on the grounds that his ischaemic heart disease was war-caused or defence-caused as a consequence of smoking during his service.  His claim was rejected by the respondent and the Veterans’ Review Board (VRB).  Mr Azel is seeking review of the decision.

LEGAL FRAMEWORK

3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.        In the circumstances of this case, where Mr Azel has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the [Repatriation Medical] Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved.

5. In respect of Mr Azel’s defence service, s 120(4) of the Act requires the Tribunal to decide, to its reasonable satisfaction, whether his ischaemic heart disease was defence-caused. The Tribunal is required to apply an SoP for the condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act a condition is defence-caused if it arose out of, or was attributable to, any defence service.

ISSUES

6.        There was no dispute that Mr Azel suffers from ischaemic heart disease for which clinical onset was about 2003, and that he ceased smoking before the clinical onset.  There was no dispute that his level of smoking satisfies the requirement in the relevant SoPs that he smoked at least 20 pack years of cigarettes before the clinical onset of ischaemic heart disease.  The issues before the Tribunal are:

·In respect of Mr Azel’s operational service, is ischaemic heart disease war-caused?

·In respect of Mr Azel’s defence service, is ischaemic heart disease defence-caused?

IN RESPECT OF MR AZEL’S OPERATIONAL SERVICE, IS ISCHAEMIC HEART DISEASE WAR-CAUSED? 

7.        Mr Azel told the Tribunal that his operational service from 25 January 1968 to 5 February 1968 contributed to his smoking habit, which in turn led to ischaemic heart disease.  He said that after enlisting in the navy as an apprentice fitter and turner in 1964 he began smoking about one month later because of peer pressure and the culture of smoking in the navy, and initially he smoked about five cigarettes per day, increasing to about 25 per day by 1967.  He said that he enjoyed smoking, everyone else smoked at sea and it became part of his lifestyle.  Mr Azel explained that smoking also relieved stress caused by a number of incidents, such as learning of the sinking of HMAS Voyager in 1964 when he was undertaking his apprentice training at HMAS Nirimba in Sydney.

8.        Mr Azel said that after completing his training as a fitter and turner he joined HMAS Stuart, a frigate, on 7 July 1967 as an Engine Room Artificer Apprentice, and the ship sailed to the Far East.  His operational service began on 25 January 1968 when HMAS Stuart left Singapore for Thailand as part of the Far East Strategic Reserve in company with HMAS Sydney to take part in exercises with the South East Asia Treaty Organisation.  Both ships proceeded to Vung Tau in Vietnam and arrived at about 7am on 3 February 1968 where HMAS Stuart provided escort duty while HMAS Sydney unloaded personnel and material.  Both ships departed at about 2pm and HMAS Stuart returned to Singapore.

9.        In relation to the brief period at Vung Tau, Mr Azel stated that for some of this time he was at his station below the water line of HMAS Stuart, and was part of a team which was required to fix a broken steam valve, which took about three hours to repair.  He said that this caused him some concern because of his vulnerability to drowning in the event of an explosion from enemy mines, although before arriving in Vietnamese waters he was aware that scare charges would be used by Australian personnel to deter attacks by enemy divers.  He stated that when the ship was anchored at Vung Tau he was aware of firing taking place on land, and he was apprehensive about being in a war zone, but he did not fear that the ship would be attacked from a land establishment.

10.      Mr Azel emphasised that he was suffering from stress after HMAS Stuart left Vung Tau and he increased his smoking level to one and a half packets of cigarettes (about 30 to 35) per day in the several weeks after departing from Vietnam because he found that smoking eased his levels of distress and anxiety and calmed his nerves.  He stated that this level continued until he was involved in recovery operations on board HMAS Stuart when USS Frank E Evans sank after colliding with HMAS Melbourne during a training exercise on 3 June 1969, when his smoking level increased to about 50 cigarettes per day.  He ceased smoking in 2000, and about two or three years later he developed pain in his arms and was diagnosed with ischaemic heart disease.

11.      In a Claimant Report – Cigarette Smoking completed on 22 January 2009 for the Department of Veterans’ Affairs in connection with his claim, Mr Azel recorded the following changes in his smoking habit:

Date of change	New amount smoked	Reason for change
January 1964	5 – 10 per day	Joined RAN
January 1965	15 – 20 per day	Enjoyment of smoking
January 1966	20 - 25 per day	Enjoyment of smoking.  However money restricted amount I smoked
January 1967	20 - 25 per day	Money restricted amount
January 1968	30 - 35 per day	Aboard HMAS Stuart
January 1969 – January 1973	35 - 50 per day	Aboard HMAS Stuart Duty-free cigarettes
December 1973	Maintaining 50 per day	At HMAS Nirimba and discharged from navy Dec 1973

12.      Under cross-examination Mr Azel agreed that in the brief period at Vung Tau there were no specific incidents that caused particular stress.  He also agreed that the repairs to the steam valve on HMAS Stuart probably occurred on 31 January 1968 (before the ship arrived at Vung Tau) as recorded by the Captain of the ship in his official report.  He agreed further that in his application to the Repatriation Commission and in the Claimant Report – Cigarette Smoking he did not mention any stress or anxiety arising from the period in Vietnamese waters as a contributing factor to any increase in smoking after leaving Vietnam, nor did he refer to such matters in his evidence to the VRB.  Mr Azel conceded that he learnt to enjoy smoking and that he became addicted to smoking from an early stage of his service in the navy.  He also confirmed that his smoking levels during naval service were influenced by the amount of money available to him between 1965 and 1969 and the price and availability of cigarettes.  Mr Azel agreed that he told the VRB that the estimates of his smoking levels contained in the Claimant Report were accurate and that his reasons for smoking included peer pressure, availability of cigarettes and other issues not relevant to his operational service. 

13.      In Kattenberg v Repatriation Commission [2002] FCA 412 Emmett J stated at [44]:

... The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service. The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996…

14.      In Repatriation Commission v Law (1980) 31 ALR 140 the Full Federal Court stated at 151:

It seems clear from the expression ’attributable to’ in each case involves an element of causation.  The cause need not be the sole or dominant cause: it is sufficient to show ’attributability’ if the cause is one of a number of causes provided it is a contributing cause. 

15.       In Roncevich v Repatriation Commission (2005) 222 CLR 115 the majority in the High Court held at [27]:

The use disjunctively in s 70(5) of the expressions ’arose out of’ and ’attributable’ manifest a legislative intention to give ’defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

16.      In relation to the first step from Deledio, the Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 stated at 372-3:

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.  

The Tribunal accepts that Mr Azel commenced smoking in 1964 and smoked about 5-10 cigarettes per day.  His level of smoking increased to 15-20 cigarettes per day in January 1965 because he enjoyed the habit, and to 20-25 cigarettes per day in January 1966 until the end of 1967, and may have increased further except for financial limitations.  In January 1968 he was smoking 30-35 cigarettes per day, which increased to 35-50 cigarettes per day in 1969.

17.      The Tribunal accepts that Mr Azel became addicted to smoking from an early stage of his naval service, and the increased amounts that he smoked are consistent with the development of this addiction.  By the time of his operational service in January 1968 he had a well-established smoking habit that was sufficient to satisfy the level of smoking specified in the relevant SoP and was caused by a number of factors not related to his service.  Mr Azel did not assert until the proceedings before the Tribunal that his brief period at Vung Tau contributed to any increase in smoking.  Although Mr Azel was apprehensive about the risks of being in a war zone, the period of several hours that HMAS Stuart was at Vung Tau appears to have been a largely uneventful time, and even the claimed stress of being below the water line carrying out repairs to the steam valve appears not to be applicable to that period.  In addition there is no persuasive evidence that the level of smoking increased immediately after the period of operational service. 

18. After considering all the material before it the Tribunal determines that the material does not point to a hypothesis within the meaning of s 120(3) of the Act connecting ischaemic heart disease with circumstances of the particular service rendered by Mr Azel. Therefore Mr Azel does not satisfy the first step, and as no such hypothesis arises the Tribunal is satisfied, beyond reasonable doubt, that for the purposes of s 120(1) of the Act there is no sufficient ground for determining that Mr Azel’s ischaemic heart disease was war-caused.

IN RESPECT OF MR AZEL’S DEFENCE SERVICE, IS ISCHAEMIC HEART DISEASE DEFENCE-CAUSED?

19.      Paragraph 5 of SoP No. 90 of 2007 concerning ischaemic heart disease (as amended by SoP No. 44 of 2009 and SoP No. 97 of 2010) provides:

Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Paragraph 6 provides:

…

(g) where smoking has ceased prior to the clinical onset of ischaemic heart disease:

(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within three years of smoking cessation; or

(ii) smoking at least five pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation;

Paragraph 9 states:

…

"pack year of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

20.      In Repatriation Commission v Tuite (1993) 39 FCR 540 Davies J stated that causation is primarily a question of fact. He observed at [6]:

Eligible war service encompasses not only active service but all the incidents of service, such as life in camp. …if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred.

21. The Tribunal accepts Mr Azel’s evidence that in January 1968 he was smoking 30-35 cigarettes per day which increased to 35-50 cigarettes per day from January 1969 until his discharge at the end of 1973. Therefore at the time of his defence service on 7 December 1972 he had a substantial smoking habit which remained throughout his defence service until his discharge. Although Mr Azel smoked the number of cigarettes that satisfies the requirements of factor 6(g) in SoP No. 90 of 2007 concerning ischaemic heart disease, he commenced smoking while in the navy and his level of smoking increased for reasons not associated with his defence service. Therefore the Tribunal is reasonably satisfied that there is no causal connection between his smoking and defence service, so Mr Azel does not satisfy paragraph 5 of the SoP and his ischaemic heart disease did not arise out of, or was attributable to, his defence service and is not defence-caused in accordance with s 70(5)(a) of the Act.

DECISION

22.      The Tribunal affirms the decision under review.

I certify that the twenty-two [22] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

[signed]

Kate Conners

Associate

Date of hearing:  1 July 2011

Date of decision:  6 July 2011
Counsel for the applicant:                  Mr A Larkin
Solicitor for the applicant:                   Williams Winter
Counsel for the respondent:               Mr G Purcell
Solicitor for the respondent:                Department of Veterans’ Affairs