Beaumont and Repatriation Commission
[2007] AATA 1475
•27 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1475
ADMINISTRATIVE APPEALS TRIBUNAL ) V 200500979
) V 200500980
VETERANS' APPEALS DIVISION ) Re ALBERT ERNEST ROY BEAUMONT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Regina Perton Date27 June 2007
PlaceMelbourne
Decision The Tribunal:
· sets aside the decision concerning alcohol atrial fibrillation and decides that Mr Beaumont’s condition is war-caused under the Veterans' Entitlements Act 1986;
· affirms the decisions under review that Mr Beaumont’s chronic bronchitis and ischaemic heart disease are not war-caused;
· remits the matter to the respondent for a reassessment of the rate of Mr Beaumont’s disability pension on the basis of this decision.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements – ischaemic heart disease – atrial fibrillation – bronchitis – smoking – alcohol - whether conditions war-caused – atrial fibrillation accepted as war caused – other conditions affirmed.
Veterans' Entitlements Act 1986 ss 9, 120(1), 196B(2)
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
27 June 2007 Regina Perton 1. Albert Ernest Roy Beaumont joined the Royal Australian Air Force (RAAF) on 24 December 1967 at the age of seventeen. He served in the RAAF for almost 21 years, completing his service on 13 October 1988. Mr Beaumont served in Vietnam from 22 October 1970 until 3 October 1971 which constitutes operational service. His service from 7 December 1972 constitutes eligible defence service. He currently receives a disability pension at 90% of the general rate.
2. On 16 December 2003, Mr Beaumont lodged a claim seeking to have his conditions of atrial fibrillation and ischaemic heart disease accepted as war-caused. He lodged a further claim on 29 June 2004 to have the conditions of osteoarthritis of both ankles and bronchitis to be accepted as war-caused. The Repatriation Commission rejected both claims. On 29 August 2005, the Veterans’ Review Board affirmed the Commission’s decisions.
3. On 31 October 2005, Mr Beaumont lodged two applications with the Tribunal for review of the VRB decisions; one concerning ischaemic heart disease and atrial fibrillation (V2005/979) and the other in relation to osteoarthritis of both ankles and bronchitis (V2005/980). However, Mr Beaumont is no longer pursuing the claim for osteoarthrosis of the ankles.
4. In this case, there is no dispute that Mr Beaumont has been diagnosed with the conditions he seeks to have recognised as war-caused. The Tribunal needs to decide whether the conditions meet the criteria set out in the Veterans’ Entitlements Act 1986 (the Act) and the relevant Statement of Principles (SoP) determined under s 196B(2) of that Act. The key issue as to whether he meets the relevant SoP are his levels of smoking and drinking after he returned from Vietnam.
Mr Beaumont’s medical conditions
5. Mr Beaumont has lodged claims for disability pension for a number of conditions over several years. The Commission has accepted the following conditions as war-caused: sprain or strain of the lumbar spine, chronic sinusitis, bilateral sensorineural hearing loss with tinnitus and osteoarthrosis affecting both knees. The Commission has not accepted the following conditions as war-caused: post traumatic stress disorder, impotence, osteoarthrosis affecting both ankles, atrial fibrillation, ischaemic heart disease and chronic simple bronchitis.
4. The Tribunal is required to determine, to its reasonable satisfaction, whether Mr Beaumont suffers from any particular injury or disease. There was no dispute that Mr Beaumont was diagnosed with atrial fibrillation, ischaemic heart disease and chronic bronchitis. The respondent suggested that the diagnosis of chronic bronchitis may no longer be appropriate; but for the purposes of this decision, the Tribunal accepts the diagnosis.
The Legal Framework
6. Mr Beaumont served in Vietnam from 22 October 1970 until 3 October 1971,which constitutes operational service under the Act. Section 9 of the Act provides that where an injury or disease results from an occurrence 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.
7. In the circumstances of this case, where Mr Beaumont has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified in Repatriation Commission v Deledio (1998) 83 FCR 82:
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 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.
EVIDENCE
8. Mr Beaumont told the Tribunal that he now lives in Western Australia. He is no longer working. He suffered a head injury on Anzac Day in 2005 that led to a double haematoma to the brain. The injury and operation have led to a slight memory loss that will hopefully be regained in the long term. Mr Beaumont conceded that his memory is now less than perfect, particularly given the length of time that has elapsed since he was in Vietnam.
9. Mr Beaumont was classified as a cook’s assistant in Vietnam. He spent most of his RAAF career in catering. After leaving the RAAF in 1988, he worked for the City of Greater Geelong (the Council) as a gardener/truck driver for about 10 years. He remained in the RAAF Reserve until 4 November 2004. Initially, he did Reserve duty for about 50 to 60 days per year while working for the Council, having been given leave to do so. The number of days increased to over 100 per year after that. His service documents indicate that he was a highly valued member of the RAAF Reserve.
10. The issue of how much Mr Beaumont smoked and how much alcohol he drank ,and for how long, is relevant to his claims that ischaemic heart disease and bronchitis are war-caused conditions. There has been conflicting evidence about his smoking presented at various times and inconsistencies regarding alcohol.
11. In his statement dated 17 October 2005 and in oral evidence, Mr Beaumont stated that he was a regular smoker prior to service in Vietnam. He stated that he smoked about 20 cigarettes a day having commenced soon after joining the RAAF. He stated that he increased to about 60 to 80 cigarettes in Vietnam. He attributed the increase to the stress of service along with long periods of boredom. He said that there was little else to do off duty but to chat with mates and smoke and drink alcohol. Tobacco and alcohol were cheap and readily available. Mr Beaumont stated that he smoked at the rate of about 60 to 80 cigarettes per day until about the mid-1980s. He indicated that he then reduced his habit to about 25 cigarettes a day due to chronic sinusitis and frequent chest colds. He stated that he was not successful in giving up smoking until 1999; although he did manage to cease for a few months in the early 1990s. In relation to his alcohol use, he stated that he usually drank about 1 large bottle (26 oz) of beer per day prior to going to Vietnam.
12. Mr Beaumont stated that he deliberately misled his doctors about the extent of his smoking history. He said that he did so because he believed that they would advise him to stop smoking and did not believe he had the strength to do so. He stated that he also feared that they would stop treating him while he remained a smoker. In oral evidence, Mr Beaumont confirmed that he had told many of the doctors and others untruths about his smoking.
13. Mr Beaumont stated that his chest complaints and upper respiratory tract infections preceded his operational service. He expressed the belief that his increased smoking, which was the result of his service in Vietnam, worsened his chest complaint.
14. In his oral evidence Mr Beaumont stated that cigarettes were very cheap in Vietnam, about 5 cents per packet. He said that the cigarettes helped him deal with the anxiety and stress of going to Vietnam. He was twenty years old when he arrived there, after 3 years of RAAF service. He said that drinking more in Vietnam had also been a factor in increasing his smoking. Mr Beaumont said that he was working long shifts from 4.30 am to 6.30 pm and if they were not busy working, they would smoke as a way of having a break. Mr Beaumont undertook rifle training and fitness training in Vietnam. He used the swimming pool on the base and did some running. He said that he was able to do that exercise and still smoke 60 cigarettes per day.
15. Mr Beaumont provided the Tribunal with group photographs taken during his service in Vietnam in which some people are smoking. Mr Beaumont said that all the cooks, assistant cooks and stewards smoked in Vietnam. However, none of the photographs show Mr Beaumont smoking. Under cross-examination Mr Beaumont conceded that two of the cooks and a steward in their group in Vietnam did not smoke or drink. He concurred that in the early 1970s a lot of the general population smoked and more so those in the RAAF or military, who had access to cheap cigarettes.
16. Mr Beaumont conceded that it was hard to remember the exact number of cigarettes he smoked but said that he recalls smoking in Vietnam and in Malaysia, where he was in the early 1980s. He said that while in Malaysia he caught his two sons smoking and forced them to smoke one of the mini-cigars he occasionally smoked at the time. He said that both boys were violently ill and have not had a cigarette since. Mr Beaumont said that when in Malaysia, he was smoking mainly cigarettes and the occasional cigar.
17. Mr Beaumont told the Tribunal in oral evidence that he had reduced his intake of cigarettes to about 25 per day after returning from Vietnam. He said that he ceased smoking altogether in the mid to late 1990s. He said that when he eventually told one of his cardiologists about his smoking and was advised to give it up, he did so cold turkey. He estimated that at the time, he was smoking about 20 to 25 cigarettes per day.
18. Mr Beaumont stated that while he was in Vietnam, he increased his drinking significantly, attending the bar next door to the kitchen at the end of a shift and drinking to the point of intoxication whenever he could. He stated that he continued to drink heavily on his return to Australia. He estimated that on average, he was consuming 1 slab (i.e. 24 small cans) of beer per day. He said excessive drinking was the principal cause of his marital breakdown in 1984.
19. Mr Beaumont said that in Vietnam the cooking was done in a compound opposite the airfield. He said that he would go to the airfield about three times a week to deliver rations to the air crew and that was when he would come into contact with jet fumes. He would be at the airfield for about half an hour each time. He said that the kitchen he worked in was sprayed for mosquitoes and the like, on a weekly basis. There were also chemicals used to try and eliminate the cockroaches, ants, rodents and other pests. He believes that these contributed to his chronic sinusitis, a condition accepted as war-caused, as well as to his chest condition.
20. Mr Beaumont said that when he worked for the Council, he and the others doing similar work would meet up at their office and chat over coffee and cigarettes. Mr Beaumont said that around 1997, when he was finding it difficult to do his work because of back and knee problems and increasing breathing problems, he was smoking around 20 to 25 cigarettes per day. He said that a work colleague, Mr Jones, whom he saw on weekdays at central office, could corroborate his smoking. He did not see Mr Jones on weekends.
21. Mr Beaumont indicated that he had told one of the cardiologists he saw in the late 1990s, Dr Foy or Dr Sebastian, that he smoked and was told to give it up. He could not explain why he had not told other doctors about his smoking.
22. Mr Beaumont stated that he continues to drink heavily, consuming about 5 litres of red wine per week. He said that his treating cardiologist, Dr Sebastian, had warned him off beer. He indicated that he has misled Dr Sebastian about the amount of alcohol he is drinking. He stated that he had done so because he feared that he would cease treating him if he knew the extent of his drinking.
23. In a letter to the Department of Veterans’ Affairs (DVA), Dr Habersberger, a cardiologist who saw Mr Beaumont between 1999 and 2002 in relation to his service in the RAAF Reserve, stated that his notes from 1999 recorded that Mr Beaumont did not smoke at that time, nor had he ever done so. In an assessment for the RAAF in May 1999, a year after he had developed atrial fibrillation, Dr Habersberger noted that Mr Beaumont’s weight was stable and that he is a non-smoker and social drinker. He stated that Mr Beaumont appeared to be very fit working in a heavy outdoor job with the local council and that he had been able to pass his fitness test for the RAAF without difficulty. Dr Habersberger stated that Mr Beaumont was able to be deployed to any area where there is a medical facility. In a letter dated 9 December 2002, Dr Habersberger indicated that while Mr Beaumont suffered from atrial fibrillation, he was fit and active and able to do 120 days per year of RAAF Reserve duties as a cook’s assistant. He stated that he had no problem with Mr Beaumont continuing to do those duties. Mr Beaumont said he was unsure why, having told previous cardiologists about his smoking, he had not told Dr Habersberger.
24. Mr Beaumont was presented with the Reasons for Decision of the VRB dated 29 August 2005. At page 10, the VRB set out a summary of the evidence before it concerning Mr Beaumont’s smoking history:
In March 1985, a Medical Examination record states that Mr Beaumont is a non-smoker;
On 17 October 1986 Dr Doig recorded that Mr Beaumont was a non smoker apart from smoking in Vietnam;
On 3 July 1997 a Medical record states that Mr Beaumont is a non smoker;
On 8 July 1987 a Medical Examination record states under the heading “past History” that Mr Beaumont is a non smoker;
On 17 February 1997 he completed a smoking questionnaire at the Department’s request and declared himself as never being a smoker;
On 17 September 1997 when giving a clinical history to Dr G Mathews he stated that he was a non-smoker;
On a claim form lodged on 29 January 1999, Mr Beaumont indicated on page 7 that he had never smoked;
On a claim form lodged on 1 June 2000, Mr Beaumont indicated on page 7 that he had never smoked;
On a work ability report of 20 July 2000 prepared by Dr Grbac (Mr Beaumont’s treating local medical officer), Mr Beaumont is recorded as a non-smoker.
However the date of this claim made in December 2003 Mr Beaumont has asserted that he had a heavy smoking habit of many years’ duration….
25. The Tribunal was presented with additional material concerning Mr Beaumont’s declarations about whether he smoked and about his drinking. In an insurance application to Westpac in 1996 as a requirement of the grant of a mortgage, Mr Beaumont responded No to questions asking if he had smoked tobacco or any other substance in the last 12 months and whether he had ever smoked. He had ticked Yes to the question asking if he takes alcohol and stated that he had 1 stubby per day. Mr Beaumont had then declared that all the information he had provided in the form was true and correct. Mr Beaumont said that the ticks on the form in the box marked no were not his handwriting. He said that he had just signed the document and did not read what he had signed. He could not recall who filled it out, but agreed that it may have been the loans manager based on Mr Beaumont‘s responses to the questions. Mr Beaumont said that he may have only had 1 stubby on the day he answered the questionnaire, but it could probably have been more, possible around six per day, on other days around that time. It depended on his workload and thirst.
26. In a pre-employment medical questionnaire completed on 15 January 1990 for the Council,, Mr Beaumont answered No to the question Do you Smoke or have you ever Smoked? He answered Yes to a question asking if he took alcohol, stating Beer. Socially 6. Mr Beaumont said that he probably drank a similar amount, that is 6 stubbies of beer a day, in 1996, when he signed the Westpac document. Asked why he disclosed his drinking levels to his employer but not that he smoked, Mr Beaumont accepted that there was probably no good reason.
27. On 11 September 2002, Mr Beaumont applied for an extension beyond the compulsory retirement age of 55 years for the RAAF and RAAF Reserve. In the application form he stated that with his 35.5 years of service and his specialist skills, he could continue to make an effective contribution to the RAAF. His application was supported by a number of supervisors, with Squadron Leader Geoff Hayes stating that Mr Beaumont continued to be a key member of the squadron, providing invaluable service. Mr Beaumont said that the RAAF had wanted him to train others and that he spent 130 to 160 days at Geelong TAFE to update his own training. Mr Beaumont agreed that he had completed his physical fitness training in May 2002 and had catered for a ground combat course. He said that he was the only member of the RAAF on Warfarin medication but that was excused due to the appreciation of, and need for, his skills.
28. Mr Beaumont was referred to the clinical notes of his long-term general practitioner Dr Grbac, which listed consultations from 1989 to late 2005 (Exhibit R6). A note dated 24 June 1992, when Mr Beaumont was being treated for a productive cough, indicated that he was a non-smoker. Mr Beaumont said he did not know why he would not have told Dr Grbac that he had been or was a smoker at that consultation and the many others he had with Dr Grbac. When it was suggested to him that his doctor would have noticed the odour from his smoking when probing Mr Beaumont’s throat or being near his clothes, he made a flippant remark. Mr Beaumont reiterated that he was worried that his doctor might decline to treat him if he told him the truth. Mr Beaumont said that he could not recall his doctor ever asking about his smoking despite a number of notations in the clinical notes saying he was a non-smoker.
29. Mr Beaumont gave evidence that he had told either Dr Foy or Dr Sebastian, the cardiologists who treated him from the late 1990s onwards, that he smoked. Mr Beaumont believed that this was around 1998, the time at which he said he gave up smoking. The only references that the Tribunal was able to locate, in the clinical documents provided by Doctors Foy and Sebastian to cigarette smoking is in letters written by Dr Sebastian to the Pension and Welfare Officer of the Vietnam Veterans’ Association (VVA), who was assisting Mr Beaumont with his claims. In response to her letter of 13 October 2003, seeking his assistance in providing an opinion that Mr Beaumont was unable to work for more than 8 hours per week because of his war-caused disease, Dr Sebastian wrote back on 21 November 2003. Dr Sebastian noted that Mr Beaumont had provided him with the relevant SoPs. He cited possible links between Mr Beaumont’s illness and the factors in the SoP but did not mention any of the smoking-related factors. In a later letter, dated 7 May 2004, Dr Sebastian states:
Further to previous correspondence regarding Mr Beaumont, I would like to advise that his problem of ischaemic heart disease may have been contributed to by cigarette smoking. If his smoking habit was a service-related problem, then a causal relationship could be drawn between his service and the subsequent development of ischaemic heart disease.
30. In a further letter to the VVA dated 14 June 2005 Dr Sebastian states:
Further to previous correspondence regarding Mr Beaumont, I would like to advise that his problem of ischaemic heart disease may have been contributed to by cigarette smoking. His smoking habit appears to have commenced during his period of military service, therefore a causal relationship could be drawn between his service and the subsequent development of ischaemic heart disease.
31. The clinical notes of Dr Russell Calder, an ear nose and throat surgeon who saw Mr Beaumont twice in 1994, indicate that he was a non-smoker. On 17 September 1997, Dr Gerald Mathews, a consultant psychiatrist, stated that Mr Beaumont told him that he did not smoke but that he had a lifelong habit of drinking too much with a nightly average of ten cans of beer.
32. Dr Doig, a physician who examined Mr Beaumont on 17 October 1986 at the request of a RAAF medical practitioner , reported that:
He said [sic] that he had an attack of pneumonia as a boy and has always been subject to colds. There is no history of hay fever or of asthma. In addition he says he is often run down suffers from headache and nausea. He drinks little, and is a non smoker apart from smoking in Vietnam….
…
Opinion. I would say that he has “chronic bronchitis” except one should be sure to exclude any other cause. He is a non smoker so the common reason is out…
33. Asked why he had not presented evidence from his wife, a non-smoker, other relatives and friends, or former RAAF colleagues about his smoking, Mr Beaumont said that he had not thought of doing so.
Mr Jones
34. On the morning of the hearing, a previously unheralded witness gave evidence. Gerrard Francis Jones, a senior team leader with the Parks and Gardens section of the Council said that had started work with the Council shortly before Mr Beaumont. He confirmed that Mr Beaumont attended the depot’s office 3 or 4 times a day. Mr Jones said that he had also worked with Mr Beaumont in the field for a time. Mr Jones said that Mr Beaumont had been a smoker. He described Mr Beaumont as an average to heavy smoker, explaining that meant 16 to 20 a day.
35. Under cross-examination by Mr Purcell, counsel for the respondent, Mr Jones said that between 1989 and 2000 there would have been around 22 to 25 gardening staff. Around 12 would report each morning to the Drysdale depot, where he and Mr Beaumont worked, to get their instructions for the day. He confirmed that they came back for lunch, at the end of the day and at other times. Mr Jones said about half of the gardeners smoked and described them as reasonably heavy smokers, smoking around 15 to 20 cigarettes per day. He said that while he did not observe them smoking that number of cigarettes, but in conversation they discussed how much they smoked and about giving up and such matters.
36. Mr Jones said that he had last seen Mr Beaumont the previous day when Mr Beaumont had brought in a laptop computer that needed repairing. Mr Jones said that he repaired computers as a side job. He and Mr Beaumont had discussed how he had settled into Perth and related matters. Mr Jones said that they had not discussed his smoking, only that Mr Beaumont was in Melbourne for a case. He said that his last recollection of Mr Beaumont smoking was before 2000 but could not put any figure on how much he had been smoking or how often. In clarifying the degree of contact between Mr Jones and Mr Beaumont, it was determined that they had been at the same depot from 1995 until 2000.
Levels of smoking and drinking.
37. Mr Purcell encapsulated the conundrum in this case when, near the end of his cross-examination of Mr Beaumont he said:
I just can’t understand why with your outstanding record there is such a huge discrepancy between what you’ve said in your statement about your smoking and what you’ve told the Tribunal…and what you have told umpteen doctors and other people with a legitimate right to know about your smoking…over a period of 20 years…
38. The evidence before the Tribunal indicates that Mr Beaumont described himself as a non-smoker from the mid 1980s and throughout the 1990s. He stated he was a non-smoker to his long-standing general practitioner, his medical specialists, RAAF doctors, the Council, insurance companies, and, as late as 2000, even to the Department of Veteran’ Affairs (DVA). It has only been in recent years that Mr Beaumont has stated that he was a smoker, smoking around 20 to 25 cigarettes per day until around 1998 or later. Even that revelation has been selective, with Mr Beaumont apparently telling some medical practitioners that he smoked and not others.
39. The Tribunal accepts Mr Beaumont’s evidence that he was a smoker and drank alcohol before he went to Vietnam and that the levels of his smoking and drinking were much higher when he was there. The Tribunal is somewhat doubtful as to the accuracy of Mr Beaumont’s estimate of the amount that he smoked or drank in Vietnam. This may well be due to the number of years that have elapsed since that time. However, in this matter, the actual number of cigarettes smoked or the amount of alcohol consumed in Vietnam is not a relevant factor as far as the pertinent SoPs are concerned.
40. Mr Beaumont stated that he did not tell anyone over almost twenty years that he was a present or past smoker because of his concern that he would not receive medical treatment as a result. He said that he was also afraid that if he said that he was a smoker, he would be told to give it up and he thought he might not be able to do so. When asked why he continued to deny he had been a smoker despite receiving ongoing and what he described as excellent medical treatment, Mr Beaumont was unable to provide any other reason for the twenty years of responses and declarations that he knew to be incorrect.
41. Mr Beaumont told the Tribunal that he had revealed his smoking to Dr Sebastian around 1998. The Tribunal’s scrutiny of his clinical notes reveals that the first mention of smoking was in the letter to the VVA in 2004. In his initial response to the VVA in late 2003, Dr Sebastian did not even mention any of the smoking related criteria. There is no information as to why Dr Sebastian wrote a further letter to the VVA. Dr Sebastian was not called to give evidence about when or if his patient had told him that he was a smoker. The evolution of Dr Sebastian’s correspondence to the VVA, particularly the change in emphasis between the letters of November 2003 and May 2004, as well as the lack of any other notes concerning smoking, is a further factor influencing the Tribunal towards a finding that Mr Beaumont was more likely than not to have been a non-smoker from at least the mid-1980s, if not earlier.
42. The Tribunal prefers the contemporaneous sources that record Mr Beaumont as a non-smoker to the more recent evidence he has given. Dr Grbac, who was Mr Beaumont’s medical practitioner for at least 15 years from 1989, stated he was a non-smoker. Dr Doig stated in 1986 that Mr Beaumont was a non-smoker. In 1994, Dr Calder recorded Mr Beaumont was not a smoker. In 1997, Dr Mathews recorded that Mr Beaumont had told him that he was a non-smoker. Mr Beaumont did not provide any evidence from any witnesses that he continued to smoke after the mid-1980s, apart from the evidence of Mr Jones, whom he had met up with on the day prior to his giving evidence. Mr Jones’s evidence was of limited value given his vague recollections and lack of opportunity for a comprehensive evaluation of Mr Beaumont’s smoking habit, if any.
43. Based on the evidence before it, the Tribunal is not satisfied that Mr Beaumont smoked regularly from the mid-1980s onwards or even earlier.
44. In relation to Mr Beaumont’s drinking, the Tribunal is satisfied that he has continued to drink alcohol since he joined the RAAF, which is since at least 1968. The Tribunal accepts that he drank more while in Vietnam. However, it is difficult to assess what the amount of alcohol consumed was at any particular period. Mr Beaumont’s estimates of the amount, even in written and oral evidence, have been variable.
Is chronic bronchitis war-caused?
45. Mr Beaumont has been diagnosed on a number of occasions with chronic bronchitis. The Tribunal accepts that Mr Beaumont suffers from chronic bronchitis.
46. Mr Beaumont pointed to links between his diagnosed condition and his operational service, namely his smoking, and possibly his exposure to fumes. In respect of the first step from Deledio, the Tribunal finds that the material before it points to a hypothesis connecting chronic bronchitis to the circumstances of the particular service rendered by Mr Beaumont
47. In respect of the second step from Deledio, there is a Statement of Principles (SoP) in force under s 196B(2) of the Act. The current SoP is Instrument N° 30 of 2004 concerning Chronic Bronchitis & Emphysema.
48. The SoP sets out a long list of factors that need to be linked to the person’s relevant service for the condition to be recognised as war-caused. Mr Beaumont submitted that he met factor 5(a) or 5 (b) namely:
(a) smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
(b) being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious insult to the lower respiratory tract, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or
49. The definition of pack years of cigarettes is:
“pack years 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 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
50. The hypothesis put forward by Mr Beaumont is consistent with the “template” found in the SoP. Therefore, the Tribunal finds that Step 3 of Deledio is met.
51. Step 4 of Deledio requires the Tribunal to consider whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. At this stage the Tribunal is required to make findings of fact.
52. The Tribunal needs to consider whether Mr Beaumont smoked the requisite number of cigarettes in the five years prior to clinical onset of chronic bronchitis. There is no definition of the term clinical onset in the SoPs or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP; or the condition is actually found on diagnostic testing, regardless of the extent of symptoms. In Re Robertson and Repatriation Commission (1998) 50 ALD 668 the Tribunal said, at paragraph 23:
…
[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.
53. Mr Beaumont’s RAAF medical records first mention him suffering from bronchitis in April 1981. In May 1981, it is noted that he had suffered from the condition for six weeks. There are further references in the medical records to bronchitis in July 1983, March 1984, September 1984, October 1984, November 1984 and August 1985. In October 1986, Dr Doig diagnosed Mr Beaumont as suffering from chronic bronchitis. Given the definition of chronic bronchitis in the SoP which requires a respiratory tract disorder that continues for at least three months of each year for at least two consecutive years, the Tribunal finds that the clinical onset was somewhere between the initial diagnosis of bronchitis in 1981 and the actual naming of the condition as chronic bronchitis by Dr Doig in 1986.
54. The Tribunal is not satisfied that Mr Beaumont smoked from at least the mid-1980s onwardsMr Beaumont’s operational service was completed in October 1971. The Tribunal accepts that he smoked at least one pack year of cigarettes during his operational service. However, there is no evidence before the Tribunal, beyond Mr Beaumont’s assertions, that he smoked at least five pack years of cigarettes, or the equivalent thereof, in the five years before clinical onset of chronic bronchitis. Mr Beaumont told the Tribunal that for some twenty years he gave incorrect information to all the doctors and other authorities he dealt with when asked about his smoking. The Tribunal has already determined that it prefers the information he gave during that twenty year period to that he has given in the last few years about his smoking habits. The Tribunal is not satisfied that Mr Beaumont meets the requirements of factor 5(a) of the SoP. There is also no medical or other independent evidence that suggests he meets factor 5(b) of the SoP. The Tribunal is not satisfied that he meets any of the other factors in the SoP.
55. The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of chronic bronchitis was war‑caused. Therefore, the Tribunal finds that Mr Beaumont’s chronic bronchitis is not war-caused.
Is ischaemic heart disease war-caused?
56. It has been accepted by the parties that Mr Beaumont suffers from ischaemic heart disease. The Tribunal is satisfied that he suffers from that condition. Dr Sebastian, his treating cardiologist, indicated that its clinical onset in late 2003.
57. Mr Beaumont pointed to links between his diagnosed condition and his operational service, namely his smoking. In respect of the first step from Deledio, the Tribunal finds that the material before it points to a hypothesis connecting ischaemic heart disease to the circumstances of the particular service rendered by Mr Beaumont.
58. In respect of the second step from Deledio, there is an SoP in force under s 196B(2) of the Act. The current SoP is Instrument N° 53 of 2003 concerning ischaemic heart disease.
59. Relevant factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised linking ischaemic heart disease and the circumstances of Mr Beaumont ‘s service are set out in Paragraph 5 of the SoP:
…
(e) 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 five years of cessation; or
(ii) smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii) smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease; or
….
(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of ischaemic heart disease; or
….
60. Mr Beaumont suggested that he met the criteria on the basis of his smoking. There were suggestions made at earlier stages in the review that Mr Beaumont may have suffered from hypertension before the onset of ischaemic heart disease and/or obesity, both of which are also precursor factors, but neither of those was pursued before the Tribunal nor were any of the other factors. The Tribunal is satisfied that there are factors linking the hypothesis with Mr Beaumont’s service.
61. As determined earlier, the Tribunal is not satisfied that Mr Beaumont was a smoker from the mid 1980s or even earlier. The clinical onset of ischaemic heart disease is almost twenty years from the last date that the Tribunal accepts that Mr Beaumont smoked. Therefore, Mr Beaumont is unable to meet the criteria in Factor 5(e)(i) or 5(e)(ii). In terms of factor 5(e)(iii), Mr Beaumont stated that he started smoking after joining the RAAF in December 1967. The Tribunal is satisfied that he had given up smoking less than 20 years later. The Tribunal has accepted on the balance of probabilities that he may have smoked in Vietnam, but it is not satisfied that he smoked so much before or after Vietnam that he met a level which is the equivalent of 20 pack years. Therefore, he does not meet factor 5(e)(iii).
62. At one stage Dr Sebastian suggested that Mr Beaumont might meet the criteria in factor 5(h). However, this was not demonstrated to be so in the RAAF medical assessments of Mr Beaumont ‘s level of fitness to enable him to continue in the RAAF Reserve. Furthermore, Mr Beaumont worked for the Council until 2000, which was less than 5 years prior to the clinical onset of ischaemic heart disease. The Tribunal is not satisfied that he meets any of the factors set out in the SoP.
63. The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of ischaemic heart disease was war‑caused. Therefore, the Tribunal finds that Mr Beaumont’s ischaemic heart disease is not war-caused.
Is Atrial fibrillation war-caused?
64. There is no dispute that Mr Beaumont suffers from atrial fibrillation nor that its clinical onset was in July 1998. The Tribunal finds accordingly.
65. Mr Beaumont pointed to links between his diagnosed condition and his operational service, namely his alcohol consumption. In respect of the first step from Deledio, the Tribunal finds that the material before it points to a hypothesis connecting atrial fibrillation to the circumstances of the particular service rendered by Mr Beaumont.
66. In respect of the second step from Deledio, there is an SoP in force under s 196B(2) of the Act. The current SoP is Instrument N° 19 of 2003 concerning atrial fibrillation.
67. Relevant factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised linking atrial fibrillation and the circumstances of Mr Beaumont ‘s service are set out in Paragraph 5 of the SoP. The only factor which Mr Beaumont claimed as being a possible link was factor 5(j):
(j) drinking at least 250 kilograms of alcohol within a 10 year period within the 15 years immediately before the clinical onset of atrial fibrillation; or…
68. The definition of alcohol consumption in the SoP is:
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
69. There is conflicting evidence about Mr Beaumont’s drinking habits. He has given differing evidence about his drinking in the fifteen years preceding the clinical onset of atrial fibrillation, namely between 1983 and 1998. To meet the requirements of this factor, Mr Beaumont needs to have consumed at least 250 kilograms of alcohol within 10 years within the 15 years before the clinical onset of the condition. In other words, Mr Beaumont needs to have consumed 250 kilograms between 1983 and 1993; or 1984 and 1994 and so on, with the final consideration being 1988 to 1998. His consumption at the present time is not relevant unless it reveals something about his consumption ten or more years ago.
70. Given a standard drink is 10 grams, Mr Beaumont would be required to have consumed 25,000 standard drinks in the 10 year period to meet factor 5(j). It is not required that the drinking has to be consistent. However, a rough approximation is around 50 standard drinks per week for at least 50 weeks of the year. DVA hosts a website entitled The Right Mix ( According to the information on the website a 375 ml can of full strength beer is measured as 1.5 standard drinks. Hence, the number of cans per week of full strength beer would be around 33.
71. The contemporaneous documentary evidence concerning Mr Beaumont’s drinking is limited. Mr Beaumont told Dr Doig in 1986 that he drinks little. In the questionnaire to the Council, when he commenced work in 1990, he stated that he drank beer socially at the rate of 6 daily. However, he advised Westpac in 1996 that he drank 1 stubby per day. He told the Tribunal that the response to Westpac was wrong and that the amount he drank each day depended on his workload and thirst.
72. In a DVA alcohol questionnaire completed on 10 February 1997, in relation to emotional instability/depression that was not accepted as a war-caused injury (p 18 of T docs), Mr Beaumont stated that he usually consumed 6 to 12 cans per day and that once of twice per week, he had 12 to 24 cans when he received unpleasant news or was depressed. In a later DVA alcohol questionnaire (p 64 of T docs) completed on 2 November 1998, in relation to a claim for post traumatic stress disorder that was not accepted by the Commission as a war-caused injury, he stated that he drank 8 - 12 cans of VB per day. While the 1998 response is after the date on which atrial fibrillation was diagnosed, it is only a few months later. Given the evidence before it, the Tribunal accepts that Mr Beaumont meets step 3 of Deledio.
73. While the Tribunal is not satisfied with Mr Beaumont’s evidence concerning his smoking, it does not have the same degree of scepticism about his evidence concerning his consumption of alcohol. While he told Dr Doig in 1986 and Westpac in 1996 that he drank little, he stated in his Council employment form, completed in 1990, that he drinks 6 beers daily. He has also answered DVA questionnaires regarding his drinking consistently with amounts higher than that. Six cans of beer daily would allow him to exceed 250 kilograms in a ten year period. On top of that, Mr Beaumont also drank wine. Hence, it is feasible that the amount of alcohol Mr Beaumont consumed in a ten year period meets the requirements of factor 5(j). None of the facts necessary to support the hypothesis connecting Mr Beaumont’s level of drinking is disproved beyond reasonable doubt. Taking into account the requirements of s 120(1) of the Act, the Tribunal is not satisfied, beyond reasonable doubt, that there is a sufficient ground for determining that Mr Beaumont’s atrial fibrillation is not a war-caused disease. Therefore, the Tribunal finds that Mr Beaumont’s atrial fibrillation is a war-caused disease.
DECISION
74. The Tribunal:
· sets aside the decision concerning alcohol atrial fibrillation and decides that Mr Beaumont’s condition is war-caused under the Veterans' Entitlements Act 1986;
·affirms the decisions under review that Mr Beaumont’s chronic bronchitis and ischaemic heart disease are not war-caused;
·remits the matter to the respondent for a reassessment of the rate of Mr Beaumont’s disability pension on the basis of this decision.
I certify that the seventy-four [74] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Lauren Spragg
Clerk
Dates of hearing: 6 & 7 December 2006
Date of decision: 27 June 2007
Counsel for applicant: Mr A Larkin
Solicitor for applicant: Williams Winter
Counsel for respondent: Mr G Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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