Belcher and Repatriation Commission - [2002] AATA 290

DECISION AND REASONS FOR DECISION [2002] AATA 290

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1077

VETERANS' APPEALS DIVISION       )
           Re      ALLAN JAMES BELCHER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date21 March 2002
PlaceMelbourne

Decision      The decisions of the Repatriation Commission dated 31 July 1998 and 29 September 1998 are affirmed.
  ..............................................
  Senior Member
VETERANS' AFFAIRS – gastro-oesophageal reflux disease – whether war-caused – whether clinical onset while still smoking – decisions affirmed

Statement of Principles Instrument No. 121 of 1995

Statement of Principles Instrument No. 62 of 1999

REASONS FOR DECISION

21 March 2002 Mrs Joan Dwyer, Senior Member

This is an application for review of a decision made by the Repatriation Commission on 31 July 1998 rejecting Mr Belcher's claim to have hypertension and peripheral vascular disease accepted as war-caused conditions under the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board affirmed that decision on 28 June 2000.
Mr D. Hyde of Counsel appeared for the applicant. Ms R. Casamento, an advocate with the Department of Veterans' Affairs ("DVA"), appeared for the respondent. The Tribunal had before it the documents ("the T documents") lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Belcher gave evidence. Mr Marshall, a general surgeon and previously head of gastro-enterology at Prince Henry's hospital, gave evidence on behalf of the applicant. The respondent relied on the written medical evidence in Mr Belcher's medical records (R1 and R2) and on an analysis of the medical reports lodged on his behalf.
The Tribunal had helpful submissions from both parties. The only issue proceeded with by the applicant was whether gastro-oesophageal reflux disease is a war-caused disease. It is accepted that Mr Belcher has operational service and it is also an established fact, since a barium swallow in 1996, that he has gastro-oesophageal reflux disease (R1 at page 43). The hypothesis raised and relied on by Mr Hyde was that the gastro-oesophageal reflux disease was caused by smoking which Mr Belcher took up during service.
There are two Statements of Principle ("SoP") dealing with gastro-oesophageal reflux disease. The more recent one is Instrument No. 62 of 1999. It provides that gastro-oesophageal reflux disease can be accepted as a war-caused disease if the veteran is smoking at least five cigarettes per day or the equivalent thereof in other tobacco products and has 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.
There is no issue taken in this matter as to the quantum of cigarettes. Therefore, the earlier SoP, Instrument No. 121 of 1995, is not relevant as the only way in which it could be more beneficial would be if there were a question as to whether Mr Belcher smoked the necessary amount of at least five cigarettes per day.
The question for the Tribunal, in deciding whether there is a reasonable hypothesis or not, is whether the material raises the requirement in the SoP that the veteran was still smoking at the time of the clinical onset of his disease. Paragraph 5(f) of the SoP reads as follows:
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;
. . .
That factor is not very clearly expressed but Mr Hyde conceded that it does mean that the veteran must have been smoking at least five cigarettes per day at the time of clinical onset of gastro-oesophageal reflux disease. It also has the additional requirement that the person must have been smoking before the clinical onset for at least one pack year of cigarettes or the equivalent thereof.
Mr Belcher said in his evidence that he took up smoking during service. He explained that the cigarettes were offered by the Red Cross when he was in hospital and that they were cheap. When he came out of hospital he had acquired a taste for cigarettes, and smoking was a social thing so he kept on smoking. Mr Belcher believed that he kept on smoking until about 1980 or 1984.
There are two documents in the T documents, pages 96 and 100, which indicate that Mr Belcher might have ceased smoking about 1972. But I certainly can not be satisfied beyond reasonable doubt that Mr Belcher was not smoking in 1980 or even maybe up to 1984. But the next question, in looking at whether a reasonable hypothesis, consistent with the SoP, is raised, is whether there is any evidence raising the clinical onset of gastro-oesophageal reflux disease by, say, 1984.
The explanation of clinical onset in the respondent's Statement of Facts and Contentions was accepted by Mr Hyde as very well put. Paragraph 3.23 of the respondent's Statement provides as to the meaning of clinical onset:
The respondent further submits that "Clinical onset" of a condition refers to the time when a doctor or patient becomes aware of the symptoms which either then, or at later stage, a doctor would diagnose as attributable to the relevant condition. The condition might not have been diagnosed at the time, but, with the benefit of hindsight, and taking into account symptoms described and/or findings on any relevant tests, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the condition within the prescribed period. Where the Statements of Principles (SoPs) define the meaning of the relevant condition, there cannot be "clinical onset" of a disorder before symptoms are present which would enable the definition in the SoPs to be met. In operational service cases, there should at least be sufficient material to point to or raise a reasonable hypothesis of symptoms etc to meet the definition in the Statement of Principles, and that material must not be disproved beyond reasonable doubt by other material before the decision maker.
We know that in this case the diagnosis was not made until 1996 (R1 p43). That would not be conclusive of the date of clinical onset, if there were a history of symptoms pointing to the onset of gastro-oesophageal reflux disease earlier. Mr Belcher, in his evidence, described an incident of coughing during a cricket match in 1947, but Mr Marshall said that the description given by Mr Belcher was not indicative of clinical onset of gastro-oesophageal reflux disease. Mr Belcher also said he had some chest problems and a feeling of wind after eating meals. He described some soreness in the throat and his medical records indicate that a presenting problem to his doctor was throat irritation. Mr Marshall said that those symptoms were not an indication of clinical onset of gastro-oesophageal reflux disease.
Mr Marshall went through the presenting symptoms that would indicate gastro-oesophageal reflux disease. They were not symptoms that Mr Belcher described to the Tribunal. The first one mentioned by Mr Marshall was an awareness of regurgitation. Mr Belcher did not seem to have had that symptom in spite of Mr Hyde and the Tribunal having asked him questions designed to draw from him a history including that symptom. Mr Marshall also referred to chest pain. There was some evidence about chest pain but, as Mr Marshall said, it is a very ambiguous symptom, very hard to diagnose and not indicative of clinical onset of gastro-oesophageal reflux disease on its own. Mr Belcher gave no evidence of having had a combination of regurgitation and chest pain. Mr Marshall also described some people who have coughing which wakes them up at night, caused by gastric juices going down into the lungs. There was no evidence of that sort of attack of coughing. Another symptom is that the oesophagus can become inflamed, and with stricture and make it difficult to swallow. That was not described by Mr Belcher. The final symptom referred to by Mr Marshall related to cancer of the gullet. Certainly there was no suggestion of cancer of the gullet. Mr Marshall said that the coughing he was hearing during the hearing was not a symptom of gastro-oesophageal reflux disease.
The evidence does not raise any symptoms that point to the clinical onset by 1980 or 1984. The agreed meaning of clinical onset as set out by the respondent was:
The respondent submits that clinical onset of a condition refers to the time when a doctor or patient becomes aware of the symptoms which either then or at a later stage a doctor would diagnose as attributable to the relevant condition. The condition might not have been diagnosed at the time, but with the benefit of hindsight and taking into account symptoms described and/or findings on any relevant tests, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the condition within the prescribed period.

No medical practitioner, and in particular neither Mr Marshall nor Professor Myers expressed the opinion that Mr Belcher had described symptoms of gastro-oesophageal reflux disease before 1984. Ms Casamento probably pointed to the reason for that, namely that the finding on investigation by Mr Gray in 1996, which led to the diagnosis was an incidental finding (R1 p43). The problem with which Mr Belcher presented to Mr Gray seems, as far as we can tell from Mr Gray's report at R1 p43, to have been one of constant throat clearing and swallowing. Mr Gray arranged for a barium swallow which he reported: "indicted a mild crico-pharyngeal spasm with a small hiatus hernia and a mild degree of reflux."

The Tribunal finds that the evidence does not point to the clinical onset of gastro-oesophageal reflux disease being while Mr Belcher was still smoking. Thus the evidence does not raise or point to the requirements of factor 5(f) of the relevant SoP. Accordingly the Tribunal cannot find that gastro-oesophageal reflux disease is a war-caused disease.
The Tribunal will affirm the decisions under review.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Grace Carney
  Personal Assistant
Date/s of Hearing  21 March 2002
Date of Decision  21 March 2002
Counsel for the Applicant        Mr D Hyde
Solicitor for the Applicant         De Marchi & Associates
Departmental Advocate           Ms R Casamento