Blake and Repatriation Commission - [2001] AATA 600

DECISION AND REASONS FOR DECISION [2001] AATA 600

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/157

VETERANS' APPEALS DIVISION       )
           Re      VICTOR NOEL BLAKE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date29 June 2001
PlaceSydney

Decision      The Tribunal varies the decision under review and decides that: 1) The Applicant's condition of ischaemic heart disease has been a war caused disability since 8 January 1999. In other respects the decision under review is affirmed. 2) The matter is remitted to the Respondent for reassessment of the rate of pension taking into account the additional war caused disability.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – war caused disabilities – disability pension – ischaemic heart disease – hypertension – acne vulgaris – operational service in Far East Strategic Reserve - Guide to the Assessment of Rates of Veterans' Pensions – whether condition meets the requirements of the relevant Statement of Principles – reasonable hypothesis that links the condition to service - consumption of an average of at least 200 grams a week of alcohol
The Veterans' Entitlements Act 1986, ss 6D(1)(b), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(1), (3), (4), 120B(1), (3)
Statement of Principles concerning Hypertension, no 64 of 1998
Statement of Principles concerning Ischaemic Heart Disease, no 80 of 1998
Davenport v Repatriation Commission [1997] FCA 918
Re Withers and Repatriation Commission [2000] AATA 990
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

29 June 2001 M J Sassella, Senior Member

HISTORY OF THE APPLICATION

Victor Noel Blake ("the Applicant") lodged a claim for Disability Pension with the Department of Veteran Affairs ("the DVA") on 24 September 1998, for "heart problems, hypertension, recurrent skin infection" (T4).
In a decision dated 28 January 1999, the Applicant's claim, reworded so that it was for ischaemic heart disease ("IHD"), hypertension and acne vulgaris, was refused by the Repatriation Commission ("the Respondent") (T2).
On 29 April 1999 the Applicant was granted a Disability Pension in respect of bilateral sensorineural hearing loss with tinnitus. The rate was 10% of the general rate.
On 8 July 1999, the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the Respondent's decision of 28 January 1999 (T9).
On 31 July 1999 a delegate in the DVA wrote to tell the Applicant that he had decided not to alter the decision under review under s 31 of the Veterans' Entitlements Act 1986 ("the Act").
In a decision dated 5 November 1999, the VRB affirmed the Respondent's decision (T13). The VRB wrote to the Applicant on 16 November 1999 to tell him of the outcome of his appeal.
On 2 February 2000, the Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal", "the AAT") (T1).
The Section 37 Statement contains material relating to another claim by the Applicant for an increase in his pension (T10). This claim was lodged on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Blake and Repatriation Commission

Details

AGLC: Blake and Repatriation Commission [2001] AATA 600
Case: [2001] AATA 600
Decision Date: 29 June 2001

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal concerns an appeal by Mr Blake against a decision of the Repatriation Commission regarding his claim for a pension under the Veterans' Entitlements Act 1986. The key issues before the Tribunal were whether Mr Blake's ischaemic heart disease, hypertension, and acne vulgaris were war-caused disabilities attributable to his operational service in the Navy. The Tribunal had to consider the evidence and determine if the conditions met the requirements of the relevant Statements of Principles concerning hypertension and ischaemic heart disease.

The Tribunal examined the evidence provided by the Applicant, including his service records, medical reports, and statements from medical officers. The Applicant's medical history revealed that he had been treated for acne since 1956, hypertension since 1976, and ischaemic heart disease since 1983. The Tribunal assessed the link between these conditions and the Applicant's service, particularly focusing on the consumption of alcohol and cigarettes during his time in the Navy. The Tribunal considered the Statements of Principles and relevant case law to determine if there was a reasonable hypothesis that connected the conditions to Mr Blake's service.

The Tribunal concluded that Mr Blake's ischaemic heart disease was a war-caused disability since 8 January 1999. It found that the Applicant's cigarette consumption during his operational service satisfied the requirement in the Statement of Principles. While there were some discrepancies in the evidence regarding the onset and increase of smoking, the Tribunal was not satisfied beyond a reasonable doubt that the Applicant's version of events was unreliable. The Tribunal accepted the Applicant's evidence as truthful and found that the stress of operational service, particularly at a young age, could have contributed to his smoking habit. The Tribunal also found that the Applicant's hypertension and acne vulgaris were not war-caused disabilities as they did not meet the requirements of the relevant Statements of Principles.

The Tribunal varied the decision under review by finding that the Applicant's ischaemic heart disease was a war-caused disability. It remitted the matter to the Repatriation Commission for reassessment of the rate of pension, taking into account the additional war-caused disability.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Section 37 Statement contains material relating to another claim by the Applicant for an increase in his pension (T10). This claim was lodged on 29 July 1999 and the disabilities are alcohol abuse, anxiety and deafness. On 2 December 1999 the Respondent accepted this claim in as much as it related to bilateral sensorineural hearing loss with tinnitus but rejected the claims for anxiety and alcohol abuse (T17). These rejections are not before the Tribunal as part of this application.BACKGROUND (Much of this background comes from Dr McClure's report – Exhibit R1). The Applicant was born on 17 May 1938. Most of his childhood was spent in Perth where he had a "very good childhood". He told Dr Burns (Exhibit R2) that he left school at age 13 and worked for 12 months as a slaughterman before doing various jobs in Perth. He had an interest in radio and radio parts and followed this up. The Applicant stated, in his initial claim form dated 24 September 1999, that he served in the Navy for the period 27 May 1955 to 17 May 1962 (T4). Records at T4, folio 31 confirm these dates. The Applicant also stated he began smoking cigarettes on a regular basis whilst serving on HMAS Sydney in September 1957, noting the reason for this as "Peer pressure, stress of being at sea, general service condition. Very nervous about going to sea first time" (T44, p22). He also noted a dramatic increase in the number of cigarettes he smoked in the following periods: The Applicant completed a DVA alcohol questionnaire on 9 November 1998 (T5) which contained the following data on his alcohol history. He began to drink alcohol in 1955 because he was "away from home, peer pressure and it was issued". He drank two or three schooners of beer two or three times a week. When he went to sea he drank whenever alcohol was available – "beer and rum". He still consumes alcohol daily in the form six schooners of beer plus the occasional spirits and wine. The Applicant's service included operational service as follows (T8): The Applicant has been married three times. He first married in 1962 soon after leaving the Navy. That marriage lasted seven years and produced his only child. It failed, he says, because of his drinking, his inability to settle into a regular lifestyle, and interference by in-laws. His second marriage was short-lived. His second wife had a history of schizophrenia and ultimately had to be hospitalised. He is currently married to his third wife and has been since 1977. In the Navy the Applicant was classified as a "leading radio electrical mechanic – aircraft" (Exhibit R2). After leaving the Navy he worked briefly with companies such as AWA before beginning at Garden Island Dockyard where he worked continuously from 1967 until 1992. He was a radio and radar technician. He finished at the dockyard when he was retrenched. He was an assistant project manager at that time. The Applicant and Mrs Blake moved to Forster where Mr Blake obtained part time then full time work with a local garbage contractor, J R Richards. The Applicant worked for four years until he went into hospital following an angina attack in May 1998.

Evidence

Evidence Before The Court

He returned to work but his medications limited his work performance because of side-effects such as drowsiness and gastrointestinal problems. He gave up work in August 1998. He told Dr Burns (Exhibit R2) he currently acts as treasurer for at least two clubs and is looking to do the same for a third. MEDICAL and OTHER EVIDENCE/ CHRONOLOGY The Applicant's service records (T3) contain considerable material on medical treatment the Applicant received in the Navy. However, apart from regular treatment for acne, none is relevant to the conditions now under consideration. Local medical officer, Dr Klein, provided comment on the Applicant's claim form (T4). He said the heart problems were IHD. He noted a recent admission to hospital (14 May 1998) associated with his IHD. The date of onset was said to be 1983. The Applicant placed the date of first awareness as May 1998. Dr Klein said that the Applicant had been treated for hypertension on and off for many years. The date of onset was placed as 1976. The recurrent skin infection was confirmed and dated from 1956. Dr Klein also completed DVA questionnaires on Mr Blake's various conditions on 5 November 1998 (T6). Some of this material is illegible; however, some of it is instructive. There is little new in relation to the acne condition other than an assessment of how disfiguring the condition is. Dr Klein notes that Mr Blake avoids the beach and swimming pools. Most of the noticeable effects are on his neck and back. As regards the IHD Dr Klein makes mention of a positive stress test done on 14 May 1998, cholesterol testing on 16 May 1998 and an echocardiogram on 12 June 1998. Dr Klein assesses the Applicant's level of energy expenditure at which limiting symptoms develop as 4-5 METS. In relation to hypertension, indicative blood pressure readings are: 165/95 (18 December 1997), 140/50 (24 April 1997 – this result is indistinct and this figure may not be reliable), 160/98 (26 November 1996), 150/90 (18 April 1993). In a report dated 14 May 1998, Dr John Tapper, a physician and a locum for Dr P D Braude, a physician, wrote about Mr Blake's chest pain (T4, folio 32). He was in hospital from 9 to 11 May 1998 with severe pain. The diagnosis was unstable angina and hypertension. He was discharged with five prescribed medications. A medical officer in DVA completed a file note on 25 January 1999 (T7) in which he says that acne vulgaris is a papulopustular inflammatory condition caused by the overproduction of sebum and sebacious duct blockage. Overproduction of sebum is androgen dependent. The cause of the disease is primarily idiopathic. There is a report from Dr B D Parsonage, a psychiatrist, dated 15 November 1999 (T15). That report does not deal with IHD, hypertension or acne vulgaris. However, it contains information on cigarette and alcohol consumption which may be relevant to the conditions of IHD and hypertension. He records that Mr Blake began drinking alcohol in the Navy and his consumption steadily increased. He was transferred to Canberra (probably in August 1959 – T3, folio 19) by which time he was "getting blind" twice a week. When Mr Blake worked at Garden Island his drinking peaked. He drank most lunchtimes to the point where he was too intoxicated to work. He "got away with it" because he was in a supervisory position. He returned to the hotel after work and would often drink for long periods. By 1998 his drinking had tapered off and he was drinking 11 standard drinks a day. Dr Parsonage said that Mr Blake's drinking was related to his military service. His "pattern of maladaptive drinking began in the Navy and once started Alcohol Abuse/Dependence tends to be a chronic relapsing condition."

Decision

Reasons for decision

The date of effect of the decision concerning IHD is 8 January 1999 (Exhibit A4).Decision The Tribunal varies the decision under review by finding that the Applicant's condition of ischaemic heart disease has been a war caused disability since 8 January 1999. In other respects the decision under review is affirmed. The matter is remitted to the Respondent for reassessment of the rate of pension taking into account the additional war caused disability.

Ratio Decidendi

Legal Principle Established

The Tribunal finds that the Applicant's cigarette consumption satisfies the requirement in factor 5(e) of the SoP.The cigarette smoking must be related to the Applicant's operational service (paragraph 4). If there is an Achilles heel in the Applicant's case, this is it. The Respondent at T8 decided that the Applicant had commenced his smoking habit prior to eligible service. The delegate decided that the smoking habit was not causally related to service. This was on the basis that the Applicant was smoking 30 cigarettes a day from 1 January 1958 when operational service did not commence until 17 March 1958. The VRB agreed with the Respondent on this matter, relying again on the smoking questionnaire (T13). Exhibit A1, the Applicant's more recent statement, dates the real increase in his smoking from the time when his ship headed for Asia. "Within a week of leaving Australia I was smoking 30 cigarettes daily." Exhibit R4, the historian's report, is not very helpful. It certainly means that the Applicant had access to cigarettes in quantity while on operational service. However, that report is helpful in casting doubt on just how stressful service on the HMAS Melbourne would have been during Mr Blake's time on the ship. It seems that the environment for the ship was relatively tranquil at the time. The Tribunal has some doubts about the Applicant's evidence in Exhibit A1. It is certainly convenient to the Applicant's case that he has had this level of recall, albeit after obtaining legal assistance. It is noted that even the smoking questionnaire contains potentially doubtful material about firing in the Sunda Strait, to judge from Exhibit R4. However, the Tribunal finds that it cannot be satisfied beyond a reasonable doubt that the Applicant's version of events is not to be believed. The Tribunal found the Davenport case (supra) interesting. The point about the short period of operational service was well put by Mr Modder with support from Heerey J in that case. However, in that case there were many areas in which the applicant's evidence was clearly unreliable. That is not so here. Indeed, the Tribunal was impressed by the Applicant when he gave his oral evidence. He seemed to be doing his best to speak truthfully and resisted cross-examination on his statement in Exhibit A1 quite successfully. He was able to explain his reasons for his confidence as to how much his tobacco consumption rose and when it rose. The Tribunal is prepared to accept that the Applicant found service in foreign waters stressful even if the external threats were not really there at the time. He was only 19 years of age at the relevant time. The Tribunal also considered the Withers case (supra) to have been well selected for argument by Mr Modder. In another situation it might have been directly applicable. However, here the Applicant was a much younger man with considerably less of a smoking history than the veteran in that case. The Tribunal has therefore found that the Applicant's smoking was relevantly related to his operational service.