Blanch and Repatriation Commission
[2004] AATA 243
•10 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2003/212
VETERANS' APPEALS DIVISION ) Re IAN GREGORY BLANCH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier RDF Lloyd, Member Date10 March 2004
PlacePerth
Decision Pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a) to set aside the Veterans’ Review Board decision under review of 14 April 2003 in so far as it rejected malignant neoplasm of the rectum, and accepts this condition as being war-caused with effect from 21 September 2001;
(b) to remit the matter of assessment of incapacity from this condition, together with all previously accepted conditions, to the Repatriation Commission.
..........(sgd R D F Lloyd).................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – ex RAN with operational service FESR – malignant neoplasm of rectum – causal factor, smoking – claimed to be war caused – reasonable hypothesis raised – requirements of SoP met – condition accepted as war caused – assessment of incapacity remitted to respondent.
Veterans’ Entitlements Act 1986 (Cth) ss9, 120, 120A, 157
Statement of Principle Concerning Malignant Neoplasm of the Colorectum (Instrument No 1 of 2004)
Re Repatriation Commission v Deledio (1998) 83 FCR 82
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
10 March 2004 Brigadier RDF Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Ian Gregory Blanch (“the applicant”) for a review of that part of a decision by the Veterans’ Review Board (“the VRB”) dated 14 April 2003 which rejected his condition of malignant neoplasm of the rectum as being war-caused.
2. The applicant attended the hearing and was assisted by his advocate Mr J Burrows. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”). A copy of the respondent’s Decision and Reasons dated 20 November 2001 – the decision which the VRB reviewed – was provided by Mr Ponnuthurai, it having been omitted in error. This was added to the T documents and page numbered 000193 to 000198.
3. In addition, the following documents were taken into evidence at the request of the applicant:
(a) Exhibit A1: Letter from Dr Greg Deleuil addressed to the Tribunal re. Ian Blanch dated 4 June 2003.
(b) Exhibit A2: Letter from Jean Blanch (applicant’s wife) addressed To Whom it May Concern re. Mr Ian Blanch – smoking, dated 25 February 2004.
(c) Exhibit A3: Handwritten note by Dr A W Musk addressed to the Tribunal re. Ian Blanch’s smoking history, dated 11 February 2004.
No additional documentary evidence was handed up by the respondent and no respondent witnesses were called to give evidence at the hearing.
4. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent’s representative. He gave evidence in a forthright manner and the Tribunal regards him as an apparently honest and credible witness.
Applicant’s Service and Related Matters of Law
5. Mr Blanch served in the Royal Australian Navy (“the RAN”) from 1956 to 1962. His eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is however limited to the following periods, which have been deemed as operational service and at which times he served in HMAS Melbourne:
§5 April to 7 May 1957
§7 June to 28 June 1957
§17 March to 3 April 1958
§23 April to 13 May 1958
§18 March to 28 April 1959
§7 April to 28 April 1960
§6 May to 20 May 1960
§6 June to 16 June 1960
Over these periods, HMAS Melbourne was operating in the Far East Strategic Reserve (“the FESR”). The actual periods listed provide a total of some 184 days of non-continuous deemed operational service by the applicant.
6. In view of his eligible service being operational service as defined, ss 120(1) and 120(3) of the Act apply and the Tribunal is required to find that the applicant’s claimed condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of s120A of the Act, the Tribunal is required to have regard to any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”) concerning the condition suffered by the applicant.
7. The Tribunal’s manner of consideration of this matter follows the process set out in Repatriation Commission v Deledio (1998) 83 FCR 82.
Diagnosis of Claimed Condition
8. As the initial step in the review process, the Tribunal must be reasonably satisfied (ie. on the balance of probabilities) as to the appropriateness of the diagnosis and description of the applicant’s claimed condition.
9. In this instance there is some variation in terminology used by doctors in the documented medical evidence, eg. in respect of the malignancy being of the rectum or of the colorectum. As a consequence of this and some understandable apparent misconception by the applicant the matter became confused in the claiming process with the added condition of asbestos related pleural plaques – now accepted by the respondent.
10. In the end result it is common ground for both applicant and respondent that the condition suffered by Mr Blanch and now claimed as being war-caused is satisfactorily termed malignant neoplasm of the rectum. Based on the evidence before it the Tribunal is reasonably satisfied that this is so, although it could be argued that it should be described as being “of the colorectum”. However nothing turns on this difference in diagnostic description in this instance. Furthermore, it finds that the clinical onset was sometime in 1988.
Applicant’s Contention Re Claimed Condition
11. The applicant had previously raised several other contentions connecting his rectum cancer condition and his operational service, ie. alcohol and exposure to asbestos. However it was confirmed by his advocate at the Tribunal hearing that the applicant’s one only contention now was that he had developed a cigarette smoking habit as a result of his operational service and that his smoking then and since was a relevant causal factor in the development of his claimed condition. As a consequence it was claimed the rectum cancer should be accepted as being war-caused.
12. Following the Deledio process the Tribunal first considered the relevant material before it in relation to this contention. Without initially making findings of fact in this regard, the Tribunal is satisfied that the material adequately points to a hypothesis connecting the condition claimed with the applicant’s war service.
Statements of Principle
13. There are SoPs in force, determined by the RMA, dealing with malignant neoplasm of the rectum/colorectum. These are:
(a) SoP Understood to be Current at the Time of the Tribunal Hearing on 26 February 2004 – Instrument No 58 of 2002, titled Malignant Neoplasm of the Colorectum.
(b) SoP Current at the Time of Respondent’s Decision (November 2001) – Instrument No 25 of 1996 as amended by Instrument No 3 of 1998, titled Malignant Neoplasm of the Rectum.
Subsequent to the hearing on 26 February 2004, the Tribunal received a SoP concerning Malignant Neoplasm of the Colorectum published by the RMA of a more recent date than that used at that hearing. The new instrument – SoP Instrument No 1 of 2004 – revokes the instrument then used as “current” (No 58 of 2002). As the new instrument is dated 24 February 2004, ie. two days prior to the Tribunal hearing and pre-dates the date of this decision, it becomes “the Current SoP” for the purposes of this review. Fortunately, the relevant factor (concerning smoking) in the new SoP remains exactly the same as that in No 58 of 2002, which was used by both parties and the Tribunal during the hearing. No other changes included in the new SoP are relevant to the contention involved in this matter and as a consequence there was no necessity to reconvene.
14. The Tribunal is required, in the first instance, to assess the matter using the SoP now current. Should it not find in favour of the applicant as a result, then the applicant has the accrued right for the matter to be assessed using the SoP current at the time of the respondent’s decision.
Evidence
15. The applicant’s own evidence concerning his smoking history is contained in a written statement he made on 5 September 2000 (T10 pages 000098 and 99), as well as his oral evidence given at the Tribunal hearing. His written statement, in this regard, states as follows:
“I was a non smoker before I joined the navy. After I joined, I became a social smoker – 2 or 3 [cigarettes] a day. This was due to peer pressure only from shipmates. I increased to 5 or 6 during my first trip to FESR. I found the stress and pressure on patrol with the FESR I increased to smoke (sic) 10 per day. Each trip I increased due to pressure and stress in FESR. For the rest of my time in the Service I smoked 20 or more a day and the same after I came out of the Service. Till the early 1988 (sic) I gave up smoking.”
16. In his oral evidence before the Tribunal, Mr Blanch more or less confirmed the information given in his earlier written statement, but with some variations. In summary the relevant aspects of his oral evidence are as follows:
§In 1956 during training at HMAS Cerberus he says he smoked “socially” – 2 to 3 cigarettes per day, but wasn’t buying them.
§After joining HMAS Melbourne in 1957 smoking increased and continued to increase, cumulatively with each period of operational deployment whilst in the FESR. By the last period, in June 1960, he maintains his smoking had increased from a packet of 20 lasting 2 days to an estimated 20 to 30 per day.
§He claims that apart from peer pressure (with most of his shipmates smoking), there was boredom and stress of being on operations.
§He confirms he was never personally confronted by “the enemy” during his operational service, nor was the ship. However he states that the stress came from being on watch, the frequent catapulting/landing of aircraft and the general atmosphere on board.
§Smoking was permitted on most occasions when working (below deck), in the canteen and in sleeping areas until “lights out” at night. Cigarettes were comparatively cheap and readily available.
§The applicant maintains that having developed this increased smoking habit he continued at that 20 to 30 per day level after his FESR service. Whilst he gave up smoking for short periods it didn’t last and after discharge this same smoking rate generally applied. He ceased smoking in 1988 when he was hospitalised for an operation and has not smoked since then.
17. The applicant apparently discussed his smoking history with Dr Deleuil, in relation to his current claim, who provided a letter to the Tribunal dated 4 June 2003 (Exhibit A1). The smoking figures provided by Dr Deleuil again vary somewhat from some of those outlined in paragraph 16. He says that Mr Blanch advised him that by 1957 the level was more than 10 cigarettes per day, and then from 1960 to 1988 (a period post operational service and largely post discharge from the RAN) it was about 30 cigarettes per day.
18. The other documented evidence of note, and relied upon by the respondent, is that provided by Dr Musk (the applicant’s treating physician and Head of Respiratory Medicine at Sir Charles Gairdner Hospital). His letter/report dated 14 January 1987 is at T15 page 000129, and the relevant part dealing with Mr Blanch’s smoking history states:
“He smoked about 15 cigarettes a day from the age of 22 to 24 years [1960 to 1962] and then again from the age of 31 to 34 years [1969 to 1972]”
In February 2004 the applicant, during a periodic visit to Dr Musk, apparently queried this earlier statement. Mr Blanch advised that he did not do so earlier because he was not aware of Dr Musk’s letter until it was used and quoted by the VRB in April 2003. The result of this query to Dr Musk is contained in his note to Mr Blanch dated 11 February 2004 (Exhibit A3). This states:
“Dear Sir [Mr Blanch],
I have been asked to write to indicate that although the smoking history I recorded on Mr Blanch in 1987 is different from his current history, I accept that he smoked until 1988.”
The Tribunal notes that this amendment by Dr Musk relates only to the date of ceasing smoking. It does not change his 1987 history of the commencement of smoking being at age 22, ie. in 1960, etc.
19. In his oral evidence, on being questioned by the Tribunal and by the respondent’s representative concerning these aspects, Mr Blanch maintained that Dr Musk may have confused his smoking history with that of another (ex RAN) patient who was attending on the same day in January 1987. When questioned why he had accepted an amendment from Dr Musk that related only to an end date of smoking and did not correct the main history, Mr Blanch’s only explanation was that Dr Musk had been in a hurry and been somewhat reluctant to provide any amending document.
20. The Tribunal also notes the statement by the applicant’s wife at Exhibit A2 which in part states:
“… to the best of my knowledge he [Mr Blanch] smoked approximately 20 to 30 cigarettes per day up until June 1988, he then stopped smoking after this date.”
The Tribunal notes that Mrs Blanch married her husband (the applicant) in May 1963 and she either has no first-hand knowledge of his smoking habit prior to that date or in any case has not provided any evidence in that regard.
21. The applicant’s advocate pointed to the fact that the respondent had accepted Mr Blanch’s claims for Ischaemic Heart Disease (IHD) and Carotid Arterial Disease as being war-caused “… on the basis of service related cigarette smoking” in April 2000 (T1 page 000006). The Tribunal notes this, but as was emphasised at the hearing it is not bound by that finding/determination when addressing the matter now before it. Whilst it can’t negate that earlier determination, should the Tribunal disagree with the finding of “service related smoking”, it is nevertheless required to look at the current claim anew – ie. by ‘standing in the shoes’ of the initial decision maker.
Requirements of Relevant SoPs
22. The relevant factor in SoP Instrument No 1 of 2004, the current Instrument for the applicant’s claimed cancer of the rectum condition, is factor 5(b). This states as follows (and is the same wording as in the previous SoP Instrument No 58 of 2002):
“(b)smoking at least 15 pack years of cigarettes or the equivalent thereof … before the clinical onset of malignant neoplasm of the colerectum, and
(i)smoking commenced at least 20 years before the clinical onset of malignant neoplasm of the colorectum, and
(ii)where smoking has ceased, the clinical onset has occurred within 30 years of cessation; or”
23. The SoP used at the time of the respondent’s determination is SoP Instrument No 25 of 1996, as amended by Instrument No 3 of 1998 The relevant factor is also 5(b), which states as follows:
“(b) smoking cigarettes or other tobacco products, where the equivalent of at least 10 pack years, was consumed 25 years or more before the clinical onset of malignant neoplasm of the rectum,; or”
This earlier SoP is to be used by the Tribunal in this matter should it not find in favour of the applicant using the current SoP.
Is the Raised Hypothesis Reasonable?
24. In accordance with the Deledio approach, the Tribunal, having established that there is a SoP in force must then form the opinion whether the hypothesis raised (ie. that there was a relevant contribution to his claimed condition by war-caused smoking) 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 must thus contain one or more of the factors listed in the SoP, and be appropriately related to the applicant’s eligible service.
25. The Tribunal firstly examined the smoking history evidence as provided by the applicant in terms of quantity and time. On the basis of Mr Blanch’s figures, but with some averaging to cater for his variations and stoppages, the Tribunal assesses that between 1957 and 1988 he would have smoked approximately 36 pack years of cigarettes. This is not as high a figure as was calculated by the applicant’s advocate (ie. 44 pack years), a figure which was not contested by the respondent at the hearing. Nevertheless, the figure now determined by the Tribunal of 36 pack years is still well in excess of the SoP requirement (15 pack years) and based on the applicant’s evidence this quantity would have been smoked before the clinical onset of his rectum cancer condition, which has been accepted as being in 1988.
26. Furthermore, on the basis of the applicant’s evidence, the SoP requirement of smoking having commenced at least 20 years before the clinical onset of the claimed condition is also met. The commencement being said to be in 1957. The additional requirement in the SoP that, where smoking has ceased, the clinical onset has occurred within 30 years of cessation of smoking is met by the applicant’s description of his smoking history – he having apparently ceased in the same year as his rectum cancer was diagnosed.
27. In view of the above, there is no requirement for the Tribunal to similarly examine the matter using the earlier SoP (Instrument No 25 of 1996 as amended).
28. The Tribunal’s review does not however end there. To be decided are the following two critical issues:
(a) Is the applicant’s version of his smoking history, especially in terms of quantities and times, to be accepted by the Tribunal in preference to that provided by Dr Musk’s documented evidence? In this regard the respondent prefers the latter, as did the VRB in the decision under review.
(b) Even if the Tribunal were to find that it accepted the applicant’s version, is his smoking habit and/or its increase relevantly caused by war service? Did in fact his broken periods of operational service between 1957 and 1960, amounting to a total of only 180 (plus) days, make a relevant contribution to a material degree to the development of the stated causal smoking habit?
29. As to the acceptance of the applicant’s version of his smoking history, the Tribunal is troubled by the difference between it and that recorded by Dr Musk. The discrepancy is by no means minor and in fact if the Tribunal were to accept the Musk version, the claim must fail. Attempts by the applicant, in response to cross examination and Tribunal questioning, to explain the very different history recorded by Dr Musk provided plausible, but in the Tribunal’s opinion rather unconvincing results. It is difficult, for example, for the Tribunal to be adequately satisfied with the reasons given by the applicant for Dr Musk making a correction of his 1987 record of only the cessation of smoking element (Exhibit A3). As the correcting was being done at the request of Mr Blanch and it was presumably important for him to also have the main part of Dr Musk’s recorded history corrected as well – why did Dr Musk not do so? Again the Tribunal has some concern about the applicant’s answer in this respect (paragraph 19 above refers). The added difficulty here for the Tribunal is that the respondent, whilst relying on Dr Musk's 1987 report, has not provided further evidence from that source to clarify the issue and/or support their contention.
30. Further, to this same issue, the Tribunal notes that from its own research of the T documents there appears to be no mention whatsoever of Mr Blanch being a smoker in any of his Service records as provided. This is even more surprising when the medical Service records show that he had frequent throat ailments, some influenza and periods of “common cold” etc whilst in the navy and for which he sought treatment. He being a 20 to 30 cigarettes per day smoker over the period referred to, according to his evidence, one would have expected there to be some notation by navy medical authorities on these medical reports of his smoking habit. Not to do so, in the Tribunal’s experience in such matters, is very unusual indeed.
31. Nevertheless, despite the concerns as expressed above, the Tribunal takes into account the fact that Mr Blanch’s oral evidence was given on oath and that the history of smoking he has provided has been relatively consistent. The major and important difference is that recorded by Dr Musk, as having been provided to him by the applicant in 1987 (and as amended in February 2004). With no additional evidence provided by the respondent in this respect, the Tribunal is unable to properly clarify that discrepancy. On balance therefore, based on the totality of the evidence before it, and despite its reservations, the Tribunal accepts the applicant’s version of his smoking history – as modified by it in paragraph 25 above. It finds accordingly.
32. The second and remaining issue is that of the contribution, if any, made by the applicant’s operational service to his smoking habit. Clearly there is a temporal connection – based on the now accepted version of his smoking history. This of course is not adequate, in terms of the Act, to provide the necessary causal link. Furthermore, the Tribunal is not fully convinced of the reasons provided by the applicant of boredom, peer pressure and stress – particularly the latter (paragraph 16 above also refers). Would his smoking habit have occurred, or have been at the level it turned out, had it not been for that operational service? Whilst this Tribunal is not bound by it, the respondent in other decisions has found his smoking to be ‘service-related’ – albeit no written justification is given in its Reasons for Decision in this regard.
33. The Tribunal in reaching its decision on this aspect referred to the Federal Court decision in Kattenberg v Repatriation Commission. Despite the Tribunal’s reservations concerning the causal influences on HMAS Melbourne whilst on operational service in FESR, as put forward by the applicant, it accepts that this service evidently had some impact on the applicant at the time. On balance it also finds that as a consequence this impact could have made some contribution to his level of smoking - leading to a habit. Based on the evidence in this regard, incomplete though it is, the Tribunal cannot be satisfied beyond reasonable doubt that this was not a contribution to a material degree, in terms of the Act.
Conclusion
34. From its findings as outlined and for the reasons summarised above, the Tribunal is relevantly satisfied that the applicant’s smoking habit, ending in 1988, was contributed to, in a material degree, by his operational service in FESR between 1957 and 1960. Furthermore it is satisfied that his total smoking intake made a relevant contribution to the development of his claimed condition of malignant neoplasm of the rectum.
35. Consequently, the Tribunal is satisfied beyond reasonable doubt that Mr Blanch’s operational service has made a material contribution to the development of the claimed rectum cancer condition and that the condition can therefore be regarded as being war-caused in terms of the Act. The effective date of acceptance of the condition, in accordance with s157(2)(a)(ii) of the Act, is 21 September 2001.
Decision
36. For the above reasons, and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a)to set aside the VRB decision under review of 14 April 2003 in so far as it rejected the condition of malignant neoplasm of the rectum;
(b)to accept that condition as being war-caused with effect 21 September 2001; and
(c)to remit the matter of assessment of incapacity from the condition of malignant neoplasm of the rectum, together with all previously accepted conditions, to the respondent.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier RDF Lloyd
Signed: ............(sgd V Wong)...................................
AssociateDate/s of Hearing 26 February 2004
Date of Decision 10 March 2004
Advocate for the Applicant Mr J Burrows
Counsel for the Respondent Mr C Ponnuthurai
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