Bassett and Repatriation Commission - [2002] AATA 531

DECISION AND REASONS FOR DECISION [2002] AATA 531

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1839

VETERANS' APPEALS DIVISION       )
           Re      DENNIS AMBROSE BASSETT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date1 July 2002
PlaceSydney

Decision      The tribunal varies the decision under review so that : The decisions that Mr Bassett's skin problems and haemorrhoids were not war-caused diseases are affirmed. The decisions that Mr Bassett's malignant neoplasm of the colon and peptic ulcer were not war-cased diseases are set aside. Mr Bassett's colorectal adenomatous polyp and malignant neoplasm of the colon are war-caused diseases. Mr Bassett's gastro-oesophageal reflux disease is a war-caused disease. This decision is effective as of 24 August 1998. The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension payable to Mr Bassett with effect from 24 August 1998.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – colorectal adenomatous polyp – malignant neoplasm of colon – gastro-oesophageal reflux disease – veteran's smoking history

Veterans' Entitlements Act 1986 ss 5D(1) ("disease", "injury"), 6C(1), 6D(1), (2), 7(1)(a), 9(1)(a), (e)(i), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 196B(2), 196D.

Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Kattenberg v Repatriation Commission [2002] FCA 402
Repatriation Commission v Deledio (1998) 49 ALD 193
Robertson and Repatriation Commission, Re (1998) 50 ALD 668

REASONS FOR DECISION

1 July 2002 Mr M J Sassella, Senior Member Dr P D Lynch, Member

HISTORY OF APPLICATION

On 24 November 1999 Dennis Ambrose Bassett ("the applicant") lodged with the Department of Veterans' Affairs ("the DVA") a claim for Disability Pension in accordance with the Veterans' Entitlements Act 1986 ("the Act") (T6). He claimed in respect of "hearing problems" and "skin problems", "circulation and heart problems", "high blood pressure", "liver problems", "bowel problems/peptic ulcer" and "breathing problems".
On 12 March 1999 a delegate of the Repatriation Commission ("the respondent"), located within the DVA, decided to accept the applicant's claim for what she described as "bilateral sensori-neural hearing loss" with a date of effect of 24 August 1998 (T7). The delegate decided to reject the applicant's claim for what she re-described as "chronic solar skin damage", "hypertension", "pneumonia" and "alcoholic fatty liver". A pension was payable at 10% of the general rate.
The skin damage claim was rejected because the applicant's increased risk of exposure to ultraviolet radiation caused by operational service did not satisfy the requirements for recognition of this condition in the Statement of Principles ("the SoP") concerning chronic solar skin damage issued by the Repatriation Medical Authority under s 196B(2) of the Act.
Hypertension was rejected because of a lack of satisfaction of SoP factors involving salt consumption, relevantly caused psychoactive substance abuse and dependence involving alcohol, or other factors. Pneumonia was rejected as not being present. Alcoholic fatty liver was rejected for failure to satisfy SoP factors in the SoP on cirrhosis of the liver relating to service caused alcohol consumption.
On 1 October 1999 the Veterans' Review Board ("the VRB") considered an appeal by Mr Bassett against the decision in T7 (T8). The Section 37 Statement does not contain the application for review. The VRB affirmed the decision of the Repatriation Commission. It did so for the same reasons as the respondent had cited, except that it regarded alcoholic fatty liver as a condition not covered by a SoP and so decided it according to the principles in the High Court cases, Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. The VRB decided that Mr Bassett's alcohol consumption was not, according the hypothesis raised, service caused.
The VRB considered that the respondent had not addressed the claims for skin rash and bowel problems and should still do so at primary decision level.
On 23 February 2000 a respondent's delegate decided to reject Mr Bassett's claims for malignant neoplasm of the colon and haemorrhoids, skin problems and peptic ulcer (T13). The delegate decided that no condition answering a description of "skin problems" was present. Malignant neoplasm of the colon was rejected because the consumption of alcohol, while heavy enough to satisfy the SoP, was not related to eligible service. A similar situation applied in relation to cigarette smoking. It was also decided that, although a factor requiring the presence of colorectal adenous polyp had been satisfied, the polyp was not caused by eligible service. It was decided on the evidence that the condition of peptic ulcer was not present. The condition of haemorrhoids was rejected because there had been no suggestion of straining at stool.
On 6 March 2000 the applicant lodged with the VRB an application for review (T14). In the application he said that he was considering obtaining further evidence.
On 12 April 2000 a delegate within the DVA reviewed Mr Bassett's case in accordance with s 31 of the Act. He decided not to intervene and alter the decision under review (T16). The same thing occurred on 3 May 2000 (T17), although this review seemed to relate to the rate of pension being paid.
reviewable decision
On 29 September 2000 the VRB decided (T20) to affirm the decision of the respondent (in T13). It agreed with the primary decision (in T13) in relation to malignant neoplasm of the colon and haemorrhoids for the same reasons as the primary decision-maker. In relation to Mr Bassett's skin problems the VRB found that chronic solar skin damage was not war-caused for reasons given earlier (that is, too little additional exposure to ultraviolet radiation caused by operational service). One specialist, Dr Lobel, had reported on 11 May 2000 (T18) that there was gravitational dermatitis/hyperpigmentation associated with varicose veins on Mr Bassett's left leg. The VRB accordingly considered the SoP concerning varicose veins but found that none of the factors in that SoP were satisfied in Mr Bassett's case. In relation to gravitational dermatitis/pigmentation there was no SoP and so the VRB considered these conditions in accordance with Bushell (above) and Byrnes (above). The VRB found there to be no reasonable hypothesis connecting Mr Bassett's gravitational dermatitis/hyperpigmentation to his operational service.
As regards peptic ulcer, the VRB decided that the applicant had no incapacity in relation to the claim for peptic ulcer disease.
On 26 October 2000 the VRB sent notification of its decision to Mr Bassett (T21).
On 7 December 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision dated 29 September 2000 (T1).
RELEVANT LEGISLATION
The following provisions fro the Veterans' Entitlements Act 1986 are relevant: ss 5D(1) ("disease", "injury"), 6C(1), 6D(1), (2), 7(1)(a), 9(1)(a), (e)(i), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 196B(2), 196D.
VETERANS ENTITLEMENTS ACT 1986
Injury/disease definitions
5D.(1) In this Act, unless the contrary intention appears:
…
disease means:
(a)       any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)       the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)       the aggravation of such an ailment, disorder, defect or morbid condition; or
(d)       a temporary departure from:
(i)        the normal physiological state; or
(ii)       the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)       a disease; or
(b)       the aggravation of a physical or mental injury.
Operational service - post World War 2 service in operational areas
6C(1)   Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a)       a member who was allotted for duty in that area; or
(b)       a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…
Operational service - other post World War 2 service
6D(1)   This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that:
(a)       was assigned for service:
(i)        in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or
(ii)       in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or
(iii)     in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or
(b)       was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;
but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.
(2)       A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as:
(a)     a member of the Defence force; or
(b)       a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).
Eligible war service
7(1)     Subject to subsection (2), for the purposes of this Act:
(a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
War-caused injuries or diseases
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:
(a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
(e)       the injury suffered, or disease contracted, by the veteran:
(i)        was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)       was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…
Eligibility for pension
13(1)    Where:
…
(b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
Claim for pension
14(1)    Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
…
(3)       A claim for a pension:
(a)       shall be in writing and in accordance with a form approved by the Commission;
(b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…
Dates of effect that may be specified in respect of grant of claim for pension
20(1)    Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…
Standard of proof
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.
Note:   This subsection is affected by section 120A.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:   This subsection is affected by section 120B.
(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)       the death of a person is war-caused or defence-caused; or
(d)       a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)       a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A(1)         This section applies to any of the following claims made on or after 1 June 1994:
(a)       a claim under Part II that relates to the operational service rendered by a veteran;
(b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…
(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.
Note:   See subsection (4) about the application of this subsection.
…
Functions of Authority
196B(1)
…
Determination of Statement of Principles
(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)       operational service rendered by veterans; or
(b)       peacekeeping service rendered by members of Peacekeeping Forces; or
(c)       hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)       the factors that must as a minimum exist; and
(e)       which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB (2).
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
Note 3: For factor related to service see subsection (14).
…
Disallowable instrument
196D A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.
…
The following Statements of Principles are also relevant:

SoP 91/96 concerning colorectal adenmoatous polyp or familial adenatomatous polyposis ( 62/99 concerning gastro-oesophageal reflux disease ( 23/96 concerning malignant neoplasm of the colon ( as amended by 5/98 ( No.91 of 1996.
COLORECTAL ADENOMATOUS POLYP OR FAMILIAL ADENOMATOUS POLYPOSIS
ICD CODES: 211.3, 211.4
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.21 of 1996; and
(b) determines the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about colorectal adenomatous polyp or familial adenomatous polyposis and death from colorectal adenomatous polyp or familial adenomatous polyposis.
(b) For the purposes of this Statement of Principles:
(i) "colorectal adenomatous polyp" means a benign epithelial tumour in which the cells form recognisable glandular structures and which arises in the mucous membrane of the large intestine, excluding benign neoplasms of the anal canal and familial adenomatous polyposis; and
(ii) "familial adenomatous polyposis" means an inherited autosomal dominant disorder characterised by the formation of numerous (hundreds or thousands) adenomas, usually colorectal although extracolonic manifestations may occur, attracting ICD code 211.3 or 211.4.
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting colorectal adenomatous polyp or familial adenomatous polyposis or death from colorectal adenomatous polyp or familial adenomatous polyposis with the circumstances of a person's relevant service are:
(a) for colorectal adenomatous polyp only, smoking cigarettes or other tobacco products equivalent to at least 10 pack years within any 20 year period before the clinical onset of a colorectal adenomatous polyp; or
…
Other definitions
7. For the purposes of this Statement of Principles:
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 22235 5;
"pack-year" means 7300 cigarettes, or 1460 cigars, or 7.3kg of pipe tobacco;
"relevant service" means:
(a) operational service; or
…
Application
8. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this day of 1996
Instrument No.23 of 1996
Statement of Principles concerning MALIGNANT NEOPLASM OF THE COLON
ICD CODES: 153
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.37 of 1995; and
(b) determines the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about malignant neoplasm of the colon and death from malignant neoplasm of the colon.
(b) For the purposes of this Statement of Principles, 'malignant neoplasm of the colon' means a primary malignant neoplasm arising from the cells of the colon, attracting ICD code 153, but excluding soft tissue sarcoma, non-Hodgkin's lymphoma and Hodgkin's disease. The colon is defined as the part of the large intestine which extends from the caecum, including the ileocaecal junction, to the rectosigmoid junction.
Notes to user (these notes do not form part of this instrument):
1. If the primary malignant neoplasm arises on or close to the rectosigmoid junction, such that its site of origin cannot be determined, the factors for both the malignant neoplasm of the colon and the malignant neoplasm of the rectum Statements of Principles should be considered.
2. If soft tissue sarcoma, non-Hodgkin's lymphoma or Hodgkin's disease of the colon is claimed, reference is to be made to the relevant Statement of Principles for that disease.";
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the colon or death from malignant neoplasm of the colon with the circumstances of a person's relevant service are:
(a) suffering from a colorectal adenomatous polyp before the clinical onset of malignant neoplasm of the colon; or
(b) smoking cigarettes or other tobacco products, where the equivalent of at least 15 pack years was consumed 30 years or more before the clinical onset of malignant neoplasm of the colon; or";
…
Other definitions
7. For the purposes of this Statement of Principles:
…
'ICD code' means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"pack-year" means 7,300 cigarettes, or 1,460 cigars, or 7.3kg of pipe tobacco;
"relevant service" means:
(a) operational service; or
…
Application
8. This Instrument applies to all matters to which section 120A of the Act applied.
Dated this day of 1996
Instrument No.62 of 1999
Statement of Principles concerning GASTRO-OESOPHAGEAL REFLUX DISEASE
ICD-10-AM CODE: K21
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.121 of 1995; and
Kind of injury, disease or death
2. (a) This Statement of Principles is about gastro-oesophageal reflux disease and death from gastro-oesophageal reflux disease.
(b) For the purposes of this Statement of Principles, "gastrooesophageal reflux disease" means the presence of regurgitation of gastric content into the oesophagus together with resultant symptomatic and/or histologic evidence of oesophageal inflammation, attracting ICD-10-AM code K21.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease with the circumstances of a person's relevant service are:
…
(f) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical onset of gastro-oesophageal reflux disease; or
…
(k) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical worsening of gastro-oesophageal reflux disease; or
…
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(h) to 5(n) apply only to material contribution to, or aggravation of, gastro-oesophageal reflux disease where the person's gastro-oesophageal reflux disease was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"cigarettes per day or the equivalent thereof, in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;
…
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
"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 (being the "standard" cigarette pack contents) per day for a period of one calendar year, or 7 300 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 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
"relevant service" means:
(a) operational service; or
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Twenty-seventh day of August 1999

BACKGROUND

The applicant born on 28 March 1937 (T6), working principally as a jackaroo before enlistment in the Royal Australian Airforce (ex R2). The applicant enlisted on 10 April 1956 and rendered operation service in Malaya from 11 May 1957 to 31 August 1957 and in the Far East Strategic Reserve from 1 September 1957 to 18 October 1957 (T7). He was medically discharged with a "psychopathic personality" disorder on 26 November 1957 (Exhibit R2). This condition would today be described as a personality disorder or anti-social personality (ex R5/4).
After completing his service the applicant worked in various jobs including as a stockman for two years, in oil exploration and prospecting for 10 years, and then in security and patrol work until he ceased work in 1997 (ex R2).
Mr Bassett has claimed as war-caused a great many conditions but has so far succeeded only in relation to bilateral sensori-neural hearing loss (ex TD1/1).
HEARING, APPEARANCES AND DOCUMENTS
The tribunal convened a hearing in this matter on 3 August 2001 in Sydney. Ms E Sadleir of the NSW Legal Aid Commission represented Mr Bassett. Mr P Godwin of the DVA Advocacy Service represented the respondent. The tribunal heard oral evidence from only Mr Bassett.
The tribunal had access to a range of documentary materials which were accepted into evidence and marked as exhibits:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T28) provided by the DVA.
Exhibit A1 – Applicant's statement of facts and contentions dated 30 April 2001.
Exhibit A2 – Applicant's written statement dated 11 January 2001.
Exhibit A3 – Report by Dr C R Vickers, physician, dated 5 January 2001.
Exhibit A4 – Service medical examination dated 27 June 1957.
Exhibit A5 – Applicant's out-patient record dated 29 July 1957.
Exhibit A6 –Document by Ms Sadleir, "Ten Pack Years of Cigarettes – 11 May 1957-1966".
Exhibit A7 – Report by Dr G Marinos, gastroenterologist and hepatologist, dated 12 December 2000.
Exhibit R1 – Respondent's statement of facts and contentions dated 9 May 2001.
Exhibit R2 – Report by Professor J A Levi, physician, dated 6 April 2001.
Exhibit R3 – Repatriation Commission Guideline CM 5030 dated 15 April 1999.
Exhibit R4 – Report by Dr G J Barnes, psychiatrist, dated 22 September 1997.
Exhibit R5 – Report by Dr M Burns, thoracic specialist, dated 4 April 2000.
Exhibit R6 – Applicant's smoking histories.
Exhibit R7 – Discussion paper, "The Equivalence of Cigars, Pipes, Cigarettes and other Tobacco Products" by Mr J R Douglas dated 26 June 1995.

EVIDENCE
medical evidence

The VRB in an earlier appeal concerning anxiety disorder and gastro-oesophageal reflux disease (T5), in relation to gastro-oesophageal reflux disease, recorded that Mr Bassett said that he had suffered stomach problems since 1957 and that he related these to an incident when he was on guard duty. The VRB was, however, unable to locate on the veteran's files any record of a complaint regarding stomach problems during his air force service. Nevertheless, the VRB noted a report by Dr C R Vickers, a gastroenterologist, who stated that his records indicated that Mr Bassett was seen some time before 1991 but that records of that attendance no longer existed. He proceeded to describe a gastroscopy carried out on 22 June 1991 which showed erosive gastritis with minor non-ulcerative reflux change and suggested that the gastritis was probably due to alcohol. Mr Bassett was drinking up to 100 grams of alcohol a day at the time.
On 3 December 1999 Dr J F Saunders, the applicant's general practitioner, provided comment to the respondent on the applicant's "peptic ulcer" and "bowel problems" (T10/51-52). He described severe epigastric pain and dyspepsia experienced on two to three days a week over several hours. The condition had resulted in bleeding. Mr Bassett had been referred to Dr Vickers for endoscopy. Mr Bassett had mild episodes of bleeding from the bowel every week or two.
On 11 February 2000 Dr Vickers reported on the applicant for the DVA (T12). He noted that the applicant had had epigastric pain "on and off for about three years." The pain first manifested in 1957 and was occurring every day. On 14 January 2000 the applicant underwent a gastroscopy. This showed that the applicant had prepyloric gastritis as well as regions of inflammation in the cartia and fundus with linear ulceration. Dr Vickers diagnosed the applicant as having chronic gastritis, "the cause of which could be alcohol or other factors." Further, Dr Vickers did not discount the applicant's own suggestion that this condition was caused by radiation or diet. However, he stated that "gastritis could well be aggravated by chronic alcohol which is known to cause chronic inflammation of the stomach". Again, this time in relation to bowel cancer, Dr Vickers did not dispute the applicant's suggestion that it could be related to radiation exposure in 1957. He agreed that it was a possible cause of the condition. A preliminary barium enema had been carried out because of Mr Bassett's rectal bleeding. This showed a large three centimetre stalked polyp in the sigmoid colon. A colonoscopy was arranged on 14 January 2000 to remove this lesion but it turned out to be a carcinoma of the colon. It had not yet invaded the stalk and the entire tumour was able to be resected at colonoscopy. There was no other abnormality. Dr Vickers wrote:
"In summary this patient has a chronic gastritis, the cause of which could be related to alcohol or other factors. He also had chronic bleeding most likely from a sigmoid colon polyp which has turned malignant over the last few months. It is very fortunate that this lesion has been removed in time. Current scientific evidence would indicate that removal of a carcinoma confined to the head of the polyp and not invading the stalk needs no further bowel resection. Long-term follow-up with further colonoscopies will be required."

Dr Vickers indicated that carcinoma of the colon can occur in about one in 20 people in the healthy population who have no family history of bowel cancer.

On 4 July 2000 Dr Vickers wrote that Mr Bassett's gastroscopy had shown a tongue of Barrett's oesophagus but this was not actually confirmed on oesophageal biopsy (T22/97). "It may have been just a tongue of normal gastric mucosa coming up from the stomach." There was moderate inflammation of the stomach but no active ulcers. The main problem was chronic gastritis, hiatus hernia and gastric reflux. Mr Bassett had found Losec effective. A colonoscopy had shown no recurrence of the previous large carcinomatous polyp that had been resected in January 2000. A small neighbouring polyp was close by on a pedicle and this was resected. This had been a benign lesion, a tubular villous adenoma with mild dysplasia. Dr Vickers had recommended that Mr Bassett have further scopes in eighteen months.
On 5 January 2001 Dr Vickers provided a report on the applicant for his representatives at the Legal Aid Commission (ex A3). He noted that the applicant's symptoms are related to gastric reflux, gastroduodenal dysmotility, chronic gastritis and colo-rectal carcinoma. He remarked, regarding the applicant's belief that these conditions were related to his active service, that the applicant's claims in this respect cannot be categorically rejected. However, Dr Vickers also pointed out that "it is very difficult to ascribe specific important events in one's life, such as War Service, in relation to very common symptoms that occur very widely in the general population at large who have not had active service." Dr Vickers noted that there was no available medical evidence of the applicant's symptoms in 1957 and that, in order to make a connection between the symptoms and service, it was necessary to rely on the applicant's memory. The specific incident noted by Dr Vickers related to the applicant's guard duty at the airforce base in Malaya. The applicant, standing guard, was very close to a pallet which had been taken from a Canberra bomber and which was leaking an undisclosed substance onto the floor. There was an offensive odour and the inhalation of the fumes led immediately to the applicant coughing. The applicant felt "choked up" and drank water to eradicate the taste from his mouth. Subsequent to this incident, the applicant developed heartburn, reflux, occasional chest pain and "a strange swallowing problem where he had to gulp to swallow." Dr Vickers stated:
"It would appear therefore that Mr Bassett's recollection clearly indicates that his gastric reflux occurred at the time of his active service and may or may not have been related to inhalation of a leaking top secret pallet which he believes was radioactive material from Woomera base."

Dr Vickers also took a smoking history from the applicant which closely mirrored that given by the applicant himself at exhibit A2 and which is summarised below. The applicant also stated that, after he ceased smoking in 1973/1974, his gastric symptoms were significantly better. Dr Vickers stated that "this would tend to indicate that smoking was indeed having an effect on his gastric reflux."
On 6 April 2001 Professor J A Levi, consultant physician, reported on the applicant at the request of the respondent (ex R2). Professor Levi took a detailed history based on the T documents and the various medical reports, as well as taking a detailed history of the applicant's smoking habit, consistent with the applicant's statement at exhibit A2. In relation to alcohol intake, Professor Levi reported that the applicant started drinking in 1956, increasing his drinking significantly in 1957 mainly due to having increased leisure time and the desire to be with friends who were also drinking.
Professor Levi then addressed the issue of causation of malignant neoplasm of the colon and whether it satisfied the relevant SoP (no 23 of 1996). He noted that, in regard to factor 5(b) of the SoP, the applicant's smoking history amounted to an excess of 15 pack years. However, the applicant also stopped smoking approximately 27 years before the condition was diagnosed. Professor Levi stated that, if the applicant's smoking history was causally related to his operational service, then it was "borderline with regards to the amount of cigarettes smoked in a period of 30 years or more prior to the onset of his carcinoma."
Professor Levi then addressed factor 5(c) of the SoP, a factor based on alcohol ingestion. He stated that the applicant's overall ingestion over a 25-year period would amount to somewhat less than the 250 kgs of alcohol required. Professor Levi then observed that the reasons for commencing alcohol drinking related to the applicant wanting to drink with friends in a social atmosphere and that this would have to be considered if drinking were to be related to service. Factor 5(a) was then addressed in the report. This factor is "suffering from a colorectal adenomatous polyp before the clinical onset of the malignant neoplasm of the colon". "Mr Bassett fulfils this criteria and clearly the pre-existent polyp was the causative factor in the development of Mr Bassett's carcinoma", wrote Dr Levi who concluded:
"In my opinion therefore Mr Bassett's smoking and alcohol histories may be considered close to appropriate eligibility with regards to Statement of Principles in factors 5B and 5C. Causative relationship to operational service however must be considered appropriately."

Dr G Marinos, a gastroenterologist and hepatologist, reported to the DVA on 12 December 2000 (ex A7). Dr Marinos noted that Mr Bassett's gastro-oesophageal reflux disease appeared for the first time in medical records in 1991, although Mr Bassett placed its onset as in 1957. He noted that Mr Bassett had never complained of any symptoms suggesting severe acid regurgitation such as choking attacks, a dry cough, hoarseness of voice, a foul taste in the mouth in the morning, bad breath or nasal aspiration. Moreover, Mr Bassett had never had any major complications of gastro-oesophageal reflux disease such as difficulty in swallowing, pain on swallowing, weight loss or indications of haemorrhage. Mr Bassett had never had any endoscopic evidence of severe ulcerative reflux oesophagitis or any complications from gastro-oesophageal reflux disease. Indeed, said Dr Marinos, Mr Bassett's gastro-oesophageal reflux disease is now well controlled with appropriate treatment of Losec.
"Mild gastro-oesophageal reflux disease is extremely common among the Caucasian population and it is widely reported to be one of the most prevalent clinical conditions afflicting the gastrointestinal tract in western countries. Estimates regarding the epidemiology of gastro-oesophageal reflux disease have found that 7% of adults experience heartburn daily and that approximately 20% of the adult population experience heartburn monthly. There is no single factor that has been identified as the principal cause of gastro-oesophageal reflux disease. It is associated with Western lifestyle and diet, obesity, certain rich and spicy foods, alcohol and cigarette smoking.... Thus it is extremely unlikely that Mr Bassett's 6 months service in 1957 could have contributed to the development of mild gastro-oesophageal reflux disease almost 30 years later.
"As for the chronic gastritis, this was first diagnosed at gastroscopy on the 22nd June 1991....
"At his follow-up gastroscopy on the 14th of January 2000 the gastritis was still present.... Gastritis refers to inflammation of the gastric lining for mucosa. Chronicity simply implies being present for longer than six months. The principal cause of gastritis are Helicobacter pylori infection, ulcerogenic drugs such as aspirin preparations and anti-inflammatory drugs and alcohol…
"Stress is rarely associated with gastritis and indeed stress related gastric mucosal injury only occurs in extremely sick patients such as those with serious trauma including major surgery, extensive burns to greater than one-third of the body surface area and in those patients with severe medical illnesses requiring intensive care. Although the exact cause of Mr Bassett's gastritis is difficult to prove, it seems to Dr Vickers... and to myself that it is primarily due to alcohol. It is the gastritis that is responsible for Mr Bassett's current cluster of symptoms and not gastro-oesophageal reflux disease, which is mild and well controlled with medical therapy (Losec)."
Dr Marinos said that, with respect to diet or other toxins that Mr Bassett was allegedly exposed to, it would be highly improbable that their effects would persist unless he had continued exposure to those agents. He said that the effects of commonly encountered toxins that cause gastritis such as alcohol, aspirin preparations and anti-inflammatory medications resolve within six months of taking them. It would be expected that the effects of the diet during service would not persist for 30 to 40 years. The effects of radiation on the stomach are either acute, that is immediate, or late and delayed. Acute radiation toxicity usually follows shortly after an exposure to high dose radiation and manifests with erosive, haemorrhagic gastritis. This toxicity appears within weeks of exposure and not decades. For this and certain other reasons explained in the report, Dr Marinos concluded that it was highly unlikely that any alleged radiation exposure would be responsible for the development and persistence of erosive gastritis 40 years after the alleged exposure.`
applicant's smoking history
Mr Godwin most helpfully prepared a table (ex R6) summarising the various accounts Mr Bassett had given regarding his smoking.
Date    Page   Document     Comment
11.01.00  Applicant's statement (ex A2) By 1956 ……3-4 cigs per week Early 1957    25 per week Following posting to Malaya up to 60 per day 15 cigs + 5 "R Y O" + occasional pipe in 24 hours Hospitalised 1957-8 smoked 20 per day 1958-1961 2 pkts tobacco + 1 tin fine cut + 1 large tin "Three Nuns" 1962 40-60/day + cigarillos + cigs + pipe 1967 stopped smoking for 3 months then resumed 1968 ceased until 1971 By 1973/74 still smoking 30-40, stopped.
06.04.01        2        Professor Levi's report (ex R2)         Commencing around 1956 and then in 1957 increasing … up to 60 cigs per day … in Malaya. From Sept 1957 … decrease … to 20 … Early 1958 increased to 60 until 1967 when ceased for approx 3 months. Resumed again in 1969 but gradually decreased until 1971 … Completely ceased smoking in 1974
05.01.01        2        Dr Vickers' report (ex A3)      First took up smoking 1956. Stopped smoking 1973/74 and has had no cigarettes since.
26.04.97        6 (medical examination for posting to Malaya)        Exhibit TD1     Smoking slight
28.10.57        11B (RGH Concord Clinical Notes)    Exhibit TD1     Smoking 10 Cigs/day
09.10.97        14 (smoking questionnaire)    Exhibit TD1     Started during 1957 Up to 3 packets per day Regular from 1957 Stopped permanently early 1970s (perhaps 1973/74) Variations Nil 3 mnths?1968 Nil 1971 stomach upsets and constant coughing
25.08.00        74 (Professor Breslin's report Exhibit TD1     He smoked from the age of 20 to the age of 36 up to 50 cigarettes a day at least
04.04.00        2        Dr Burns' report (ex R5)        He took up smoking for the first time in the RAAF and gave up in 1973
22.09.97        1        Dr Barnes' report (ex R4)      He doesn't smoke. He gave it away 20 plus years ago.
  Applicant's representative's table (ex A6)     1956 – 3-4 cigarettes/week tailor made 1956/57 – 3.57/day tailor made = 25/week 11 May 1957 – end August 1957 = 40/day on a leave day. 15/day on a non-leave day. September 1957 = 8/day 1-18 October 1957 = 8/day November 1957-end 1961 = 35 cigs/day average 1962-66 = 40 cigs/day average..

mr bassett's evidence

In oral evidence before the tribunal Mr Bassett followed through the cigarette smoking history he had set out in exhibit A2. He said that he first smoked at Christmas in 1956 after enlistment and while at Ballarat. He began because it was part of the base camaraderie. At first he smoked three or four filter-tipped cigarettes a week. Early in 1957 he was smoking about 25 cigarettes a week. He would go out on weekends drinking and smoking. He smoked at nights and more so on weekends.
Mr Bassett had joined up to be part of an air crew. He passed the air crew examination but then learned he would not be assigned. He opted to go to Malaya.
In Malaya he did a great deal of guard duty and enjoyed plenty of leave. He visited bars on a regular basis. Work was three or four days on and then three or four days off duty. A work day was eight hours. He smoked unfiltered cigarettes and did so more when on leave than when on duty. He visited gambling houses where his smoking increased because he was exposed to exotic conditions. The excitement caused him to smoke more. He bought tobacco both on the base and off-base. It was extremely cheap. In Malaya he smoked more than when at Ballarat because he was ill, had little to do and he found cigarettes calmed him. In Malaya he smoked cigars, pipe tobacco and roll-your-owns. He was able to remain awake for over 24 hours at a time and could smoke up to 60 cigarettes a day, or 40 cigarettes plus perhaps five cigarillos, a cigar and a pipe of tobacco. When on duty he would smoke 15 cigarettes, five roll-your-owns and an occasional pipe or cigar over a 24-hour period.
Mr Bassett pointed to exhibit A4, a special medical examination for intending air crew that occurred on 27 June 1957. That examination found him "fit full flying duties". Mr Bassett said he was physically A1 at that time.
Mr Bassett addressed exhibit A5, an out-patient record relating to a nervous condition and dated 29 July 1957 (ie only four weeks after ex A4). Mr Bassett explained that he would have visited outpatients because he was disillusioned, he was doing very little and he wanted a discharge. He thought he knew by then that he had not been accepted as part of an air crew. He was becoming extremely nervous and smoking very heavily. His smoking then reduced because he reacted adversely to toxins. He reduced to 20 a day plus roll-your-owns. He was smoking both day and night. He had stomach pains and a rash.

At Concord Hospital in November 1957 (T3/11A-F) he was said to smoke variously 10 and 20 cigarettes a day. Mr Bassett said that 20 would be the correct figure. His smoking was relatively reduced because Mr Bassett was feeling ill. The smoking hurt his stomach and he had to drink water to reduce the pain.
After discharge Mr Bassett mustered cattle in the Northern Territory where he smoked some 30-40 cigarettes a day from early in 1958.
Between 1958 and 1961 he smoked an average of two packets of ready-rubbed tobacco plus a tin of fine cut tobacco, plus a large tin of "Three Nuns" pipe tobacco each week. In 1962 he resumed smoking filter-tipped cigarettes at a rate of 40-60 a day.
In 1967 he stopped smoking for about three months and then, because of gambling, resumed as he had from 1962. In 1968 he ceased smoking for three years. He resumed in 1971, smoking 30-40 cigarettes a day. At this time he was prospecting in south-west Tasmania with an offsider who smoked and caused Mr Bassett to resume smoking. He again stopped in 1973 or 1974 and has not smoked since.
Mr Bassett described his stomach reflux problem which he said had had its onset in 1957 when he was exposed to fumes as described above in paragraph 24. The symptoms fluctuated over the years. In 1958 he had an attack in the desert, away from medication, but this was less severe than in 1957. When admitted to Concord Hospital the symptoms reduced because he was more settled and did not smoke. After he left Concord he recommenced smoking and his reflux worsened.
In cross-examination Mr Godwin indicated discrepancies to Mr Bassett.

He indicated the material in paragraph 34 above which was based on exhibit A2. He then indicated Professor Levi's history (ex R2/2) where Mr Bassett said he smoked up to 60 cigarettes a day (although not every day) in Malaya but reduced to 20 a day between September 1957 and early 1958 after which he reverted to 60 a day. However, in T3/11B he was said to smoke 10 cigarettes a day as at 28 October 1957. Mr Bassett suggested that he was at Concord Hospital in late October 1957. He then disavowed the accuracy of the entry saying that he thought a "Brit" at Changi took that information down and had not listened to Mr Bassett.
Mr Godwin reminded Mr Bassett that he said that he had reduced his cigarette consumption late in 1957 because of stomach problems (see paragraph 37 above). However, in T3/11B the entry for "Abdomen" was "NAD". Mr Bassett replied that he had said nothing about his stomach because he had been told to say nothing if he wanted a rapid discharge. Psychiatrist Dr McGeorge had told him that.
In exhibit A2 Mr Bassett had said that, prior to ceasing smoking in 1973 or 1974, he was still smoking 30-40 cigarettes a day (see paragraph 40 above). However, he told Professor Levi (ex R2/2) that he had gradually reduced his smoking up to when he ceased in 1974. Mr Bassett said that he made a mistake in his advice to Professor Levi.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal makes the following preliminary and uncontentious findings:
(a)Mr Bassett rendered operational service as described in paragraph 15 above.
(b)The matter is therefore one where the standard of proof, in accordance with s 120(1), (3) of the Act, is the reasonable hypothesis standard.
(c)Mr Bassett lodged a valid claim in respect of the relevant diseases on 24 November 1998 (T6, s 14(3) of the Act).
(d)Should Mr Bassett succeed to any extent in this application the date of effect of any favourable decision will, in accordance with s 20(1) of the Act, be 24 August 1998.
(e)The relevant SoPs are as identified in paragraph 14 above.
The tribunal notes that the applicant elected not to pursue an appeal in relation to haemorrhoids and skin problems (ex A1). The tribunal further notes the parties' agreement (ex A1, ex R1) that the correct diagnoses of the diseases relevant to this application are:

colorectal adenatomous polyp,
colorectal carcinoma, and
gastro-oesophageal reflux disease.

the hypothesis – bowel condition

The hypothesis advanced to link the applicant's colorectal adenatomous polyp and colorectal carcinoma to operational service was that the applicant's increased smoking during operational service precipitated the polyps which then precipitated the colorectal carcinoma.
The analysis that follows applies the principles laid down by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. In the first instance it is necessary to ascertain whether the hypothesis conforms to the template provided in SoP 91/96 concerning colorectal adenomatous polyp or familial adenomatous polyposis. There is a definition of "colorectal adenomatous polyp" in clause 2(b)(i) of the SoP which echoes the findings of Professor Levi in paragraph 28 above. The tribunal therefore finds that it is reasonably satisfied that it is appropriate to test the hypothesis against this particular SoP.
Factor 5(a) of the SoP refers to "smoking cigarettes or other tobacco products equivalent to at least 10 pack years within any 20 year period before the clinical onset of colorectal adenomatous polyp". The tribunal pauses to note the effect of the Federal Court's decision in Kattenberg v Repatriation Commission [2002] FCA 402 which was that, for a factor such as this, it is enough if the hypothesis suggests an increase to the required level of which only a part needs to be attributed to the period of operational service. It is not necessary to suggest that a net increase sufficient to satisfy the SoP in full, and attributable to operational service, occurred provided that conditions on operational service are said to have contributed to the veteran consuming the required quantity of tobacco products.
The hypothesis advanced suggested that Mr Bassett smoked the required equivalent to 73,000 cigarettes between 11 May 1957 and 1966 (ex A6). 7,300 cigarettes or 1,460 cigars or 7.3 kg of pipe tobacco equate to a single pack year (SoP clause 7).
Clause 4 of the SoP requires that the hypothesis relate the tobacco use to Mr Bassett's operational service. Ms Sadleir did this by indicating that when Mr Bassett was assigned to Malaya he was a guard and defender. His smoking rose dramatically because he was bored. When on leave he would smoke significantly heavily. His smoking had been light until Malaya. He had emerged afresh from examinations. Similarly, operational service introduced Mr Bassett to gambling and the culture of the Malayan gambling house, of which smoking was a part. The tribunal found exhibit R3 of interest. An internal guideline for delegates issued by the Repatriation Commission on 15 April 1999, it said the following about finding a link between service and smoking:
"...
1. Smoking is strongly addictive.
2.There is evidence that military populations smoke more than civilian populations. Service life contains many potential links to smoking. Stress, peer pressure, availability and boredom are among them.
3.Because of service culture, slow changes to community attitudes, and the lack of proscription of smoking in the military, little weight should be given to the effect of anti-smoking warnings and of bans on smoking in certain places in the community as a whole. These considerations should not be, of themselves, sufficient to cause a claim to fail.
4.After investigation, all available material should be assessed in its context and given weight accordingly, whether self-reported, first-hand observation, hearsay, previous reports/medical histories, or smoking questionnaires from earlier claims. It is possible that the smoking history obtained in a claim will contradict an earlier one in which a smoking habit was denied. An explanation of such a contradiction should, where possible, be considered.
5.After investigation is complete, there needs to be material that points to the commencement or increase of smoking on service, that is, a temporal (time) link between smoking and service.
6.If the temporal link exists, in OPERATIONAL SERVICE CASES, a causal link between smoking and service can frequently be inferred. This link (see point 2 above) depends on the particular circumstances of individual.
7.If the temporal link exists, in NON-OPERATIONAL SERVICE CASES, material positively supporting the claimed causal connection (see point 2 above) to service is needed in addition to the temporal connection.
8.A psychiatric disability may lead to the commencement of smoking. That psychiatric disability needs to be causally connected to service (the McKenna case).
9.In both OPERATIONAL AND NON-OPERATIONAL SERVICE CASES, the question of the effect of an apparent break in the smoking history may arise. As a general rule, for all forms of service, the resumption of smoking within two years of cessation can be taken to be recommencement of the former smoking habit. When smoking recommences after two years the material assembled after investigation would have to point to a service-based reason for recommencement for the claim to be able to be accepted….
…"
The tribunal's primary interest is in paragraph 2 of the Commission's guideline. That appears to mean that commonly encountered incidents of service such as boredom, stress and peer pressure can often suffice to establish the required link with service that is more than merely temporal. Viewed in that light, the arguments advanced for Mr Bassett are, in the tribunal's view, sufficient to establish a case for a link with operational service.
The tribunal could still find the hypothesis unreasonable if it is fanciful, impossible, incredible, too remote or too tenuous, according to the full Federal Court in Bull v Repatriation Commission [2001] FCA 1832. Mr Godwin made several submissions in an attempt to establish the unreasonableness of the hypothesis.

The material in T3/11B and 11F recorded Mr Bassett as smoking only 10 and 20 cigarettes a day, respectively on 28 October and 30 October 1957, a matter of days after operational service when he was said to have smoked 40 (or even up to 60) cigarettes a day. Similarly at T3/6, on 3 October 1956, Mr Bassett was described as smoking at a "slight" level. The period of operational service was short and the applicant said his smoking rose from 25 cigarettes a week to 40 cigarettes a day within a very short time. He is then said to have reduced to 10-20 a day in October 1957. Mr Godwin queried how reliable this version of events could be. Mr Godwin commended the figure of 10 cigarettes a day during operational service to the tribunal on the basis that the figure was included in the answers in a medical history reproduced at T3/11B and the applicant had appeared careful to provide comprehensive and particular answers on that page.
Mr Godwin referred to Mr Bassett's explanation above at paragraph 42 for his failure to mention his stomach problem at his final medical examination. Mr Godwin pointed out that that examination was held before Mr Bassett saw Dr McGeorge and that he had admitted to heavy alcohol consumption at T3/11B. If he was prepared to admit to heavy alcohol consumption, why would he not admit to smoking more than 10 cigarettes a day, if he did in fact smoke at that level?
Mr Godwin indicated that most of the smoking histories before the tribunal post-dated Mr Bassett's pension claim. There is a dearth of contemporaneous evidence such as T3/11B and 11F.
Mr Godwin pointed to exhibit R6, the Repatriation Commission guideline (paragraph 49 above), which queried whether a smoking habit could be attributed to service when there had been a no-smoking break of over two years during a smoking history.

The tribunal has considered this material and appreciates Mr Godwin's efforts. However, with very few deviations in a set of matters with a lengthy history, Mr Bassett has given a fairly consistent account of his smoking history. The tribunal understood Mr Godwin's submissions about the apparently precipitate fluctuations in the alleged smoking rate before, during and after operational service. While being somewhat sceptical, as was Mr Godwin, the tribunal considers that the exotic nature of Mr Bassett's location, his exposure to the temptations of the gambling houses in Malaya, his personal psychological problems, his relatively young and impressionable age, and his opportunities for heavy smoking in Malaya combine to add credibility to his account.
The tribunal considered the Repatriation Commission guideline which may work to Mr Bassett's disadvantage in suggesting that the effects of service cease where a veteran ceases smoking for over two years. However, the tribunal recognised that that guideline had no special status. It is not a Ministerial statement of government policy in any sense. In accordance with the fundamental tenets of administrative law, such a guideline carries as much weight as the commonsense it may reflect, and generally speaking that guideline does reflect a commonsense approach. However, the guideline should not prevail where it seems to a decision-maker not to reflect the appropriate outcome in the particular case. In the instant case in any event, as Ms Sadleir demonstrated in exhibit A6, by 1966, that is prior to when Mr Bassett gave up smoking for three years, he was said to have smoked sufficient tobacco products over the relevant period to satisfy the SoP factor.
The tribunal has therefore found the hypothesis linking Mr Bassett's operational service-related smoking to his colorectal adenomatous polyp in accordance with s 120(3) of the Act. This will be a war-caused disease unless it can be demonstrated beyond a reasonable doubt that the disease was not war-caused.
The tribunal finds that Mr Godwin's arguments, already considered in relation to whether the hypothesis was reasonable, were insufficient to show beyond a reasonable doubt that the disease was not war-caused.
The tribunal finds also that Mr Bassett's malignant neoplasm of the colon (or carcinoma of the colon) was war-caused. SoP 23/96 (as amended) defines this disease in clause 2(b) and the tribunal is reasonably satisfied from the reports of Dr Levi (T12, ex A3) and Professor Levi (ex R2) that the SoP addresses the same disease as Mr Bassett has experienced.
The hypothesis was that Mr Bassett had a colorectal adenomatous polyp before the clinical onset of malignant neoplasm of the colon (as in SoP factor 5(a)). This hypothesis appears supported by Dr Vickers' report (T12) and Professor Levi's report (ex R2). As the colorectal polyp has been found to be war-caused the same applies in relation to the carcinoma. Clause 4 of the SoP is therefore met. The hypothesis is therefore reasonable unless it is fanciful, impossible, incredible, too remote or too tenuous. In the tribunal's view the hypothesis is none of these things.
The tribunal finds that there is no material to satisfy it beyond a reasonable doubt that the carcinoma was not a war-caused disease. The tribunal therefore finds, in accordance with s 120 of the Act, that the applicant's malignant neoplasm of the colon was war-caused.
the hypothesis – gastro-oesophageal reflux disease
The hypothesis here advanced was that the applicant's smoking led to his gastro-oesophageal reflux disease. The clinical onset was said to be in 1957 and it was said to have later deteriorated.
SoP 62/99 concerning gastro-oesophageal reflux disease applies and the relevant factor is either 5(f), "smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical onset of gastro-oesophageal reflux disease", or 5(k), "smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes or the equivalent thereof in other tobacco products, at the time of clinical worsening of gastro-oesophageal reflux disease". The definition of "pack year" is effectively the same in this SoP as in that on colorectal polyp disease.
Ms Sadleir placed the date of clinical onset as in 1957. She relied on Dr Vickers' comments:
"With regard to reflux, Mr. Bassett stated that he was a perfectly healthy youth prior to this incident. He developed heartburn, reflux, occasional chest pain across the front of his chest and some strange swallowing problem where he had to gulp to swallow. There was no dysphagia. He also recalls that when he ate off Base, which was very common because he did not like the British Servicemen, the Asian food was rich and spicy and considerably upset him and caused a lot of indigestion. And since that active service, he has had gastric reflux symptoms in Australia. He remembers being particularly bad about 1958 when he was a horseman in the desert country with no access to medication. He claimed that he never saw a doctor until 1991, which was myself. I placed him on Carafate at the time but he could not swallow this medication because they were too big but he did state that they were very effective. He had only previously taken antacids when available.
"It would appear therefore that Mr. Bassett's recollection clearly indicates that his gastric reflux occurred at the time of his active service and may or may not have been related to inhalation of a leaking top-secret palette which he believes was radioactive material from the Woomera Base."
Re Robertson and Repatriation Commission (1998) 50 ALD 668 stands for the proposition that clinical onset occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time. Thus a clinical onset can be said to have occurred retrospectively even if a condition was not originally diagnosed. The tribunal finds that the evidence from Dr Vickers is sufficient to satisfy it that clinical onset was during Mr Bassett's operational service.
The material in support of the hypothesis linking Mr Bassett's operational service smoking with his gastric condition suggests that by the end of his operational service he had smoked only some 2,420 cigarettes, that is about one third of a pack year. This would not suffice to satisfy SoP factor 5 (f).
As regards any clinical worsening of the gastric symptoms, the only material suggesting such a worsening was Mr Bassett's evidence at paragraph 41 above. There was no documented medical history of such a worsening other than in the 1990s which Dr Vickers attributed to Mr Bassett's aging process.
SoP clause 6 requires that an aggravation, to be accepted as a war-caused disease, must relate to a gastro-oesophageal reflux disease that was contracted during, but not arising out of, the veteran's operational service. This echoes s 9(1)(e)(i) of the Act. The tribunal has already found the hypothesis to support the notion that the disease had its clinical onset during operational but that it was not service-caused because Mr Bassett had, at that time, smoked too few cigarettes. Later, the hypothesis suggests, the condition worsened because of Mr Bassett's service-related smoking problem.
The tribunal finds that the hypothesis raised does accord with the requirements of SoP 62/99. The hypothesis is therefore, in accordance with s 120A(3), a reasonable hypothesis unless it is seen to be fanciful, impossible, incredible, too remote or too tenuous. The tribunal considered this issue in relation to the colorectal polyp condition at paragraph 51 above and decided that the smoking history embodied in the hypothesis was not vulnerable to challenge on this basis. The only additional feature here is the lack of corroboration that the gastro-oesophageal reflux disease worsened earlier than in the mid-1990s. The tribunal considers that explicable if no reason other than the generally solitary lifestyle lived by Mr Bassett over lengthy periods.

For similar reasons the tribunal does not consider that it has been shown beyond a reasonable doubt that the gastro-oesophageal reflux disease condition was not war-caused.
CONCLUSION
The tribunal has found that Mr Bassett's bowel and gastric conditions were war-caused. These will consequently have an impact on his rate of Disability Pension.
It will be necessary for the respondent to reassess the rate of Mr Bassett's pension on the basis of the newly accepted disabilities. The new rate will be effective as of the first pension payday on or after 24 August 1998.
DECISION
The tribunal varies the decision under review so that :
The decisions that Mr Bassett's skin problems and haemorrhoids were not war-caused diseases are affirmed.
The decisions that Mr Bassett's malignant neoplasm of the colon and peptic ulcer were not war-cased diseases are set aside.
Mr Bassett's colorectal adenomatous polyp and malignant neoplasm of the colon are war-caused diseases.
Mr Bassett's gastro-oesophageal reflux disease is a war-caused disease.
This decision is effective as of 24 August 1998.
The matter is remitted to the respondent for it to assess the appropriate rate of Disability Pension payable to Mr Bassett with effect from 24 August 1998.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  3 August 2001
Date of Decision  1 July 2002
Counsel for the Applicant        Ms E Sadleir, NSW Legal Aid Commission
Solicitor for the Applicant         NSW Legal Aid Commission
Counsel for the Respondent    Mr P Godwin, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA