Bort and Repatriation Commission

[2004] AATA 292

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/432

VETERANS'       APPEALS     DIVISION

Re:        BETTY MARGARET BORT

Applicant

And:        REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             19 March 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - widow's entitlement - lung cancer - smoking - whether death related to service

Veterans’ Entitlements Act 1986 ss 8(1), 119(h)

REASONS FOR DECISION

19 March 2004  G.D. Friedman, Member

1.      This is an application by Betty Margaret Bort (the applicant), widow of Gerald Henry Bort (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 18 March 2003.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 1 July 2000 to refuse a claim for pension because the death of the veteran was not related to his service. 

2.      At the hearing of this matter on 11 March 2004 Mr J. Stevenson, solicitor, represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), with three exhibits (Exhibits A1‑A3) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent.

BACKGROUND

4.      The veteran was born on 27 December 1919.  He enlisted in the Australian Army on 29 July 1941 and was discharged on 9 October 1945.  He served in various places in Australia, including Darwin, and rendered eligible service as defined in the Veterans’ Entitlements Act 1986 (the Act).

5.      After his discharge the veteran worked as a truck driver. At the age of 51 years he joined the Department of Civil Aviation, where he worked in vehicle maintenance and later as a storeman.  He retired at the age of 65 years.

6.      The veteran was a heavy smoker and suffered from a variety of medical problems.  On 1 July 1970 the respondent accepted chronic infected tinea as a war-caused disability.  In 1996 the respondent also accepted anxiety disorder, acquired cataracts in both eyes and bilateral sensorineural hearing loss as war-caused disabilities.  The respondent did not accept renal hypertension, varicose veins, bilateral cataracts, chronic glomeralonephritis, lumbar spondylosis, osteoarthrosis of the left hip, hypertension, diverticular disease of the colon, osteoarthrosis of the left knee and osteoarthrosis of the right knee as war-caused disabilities.  The veteran developed small cell carcinoma of the lungs (clinical onset occurred in early 2000) and he died on 24 May 2000.  The cause of death was certified as cardio-respiratory arrest – 6 hours, adult respiratory distress syndrome - 2 days and lung cancer – 6 days. 

7.      On 26 June 2000 the applicant applied for a war widow's pension.  On 1 July 2000 the Repatriation Commission rejected the application.  On 20 July 2000 the applicant sought review by the VRB.  On 18 March 2003 the VRB affirmed the decision.  On 23 April 2003 the applicant sought review of the VRB decision by the Tribunal. 

EVIDENCE

8.      In oral evidence the applicant stated that when she met the veteran in 1947 he was a heavy cigarette smoker.  She told the Tribunal that he smoked about 40 cigarettes per day, increasing to 50 per day.   The applicant said that the veteran told her that he smoked heavily while in Darwin during his army service. 

9.      In a written statement dated 16 January 2003 (Exhibit A1) Ms W. Bort, the applicant’s daughter, said that she had a conversation with the veteran when she was about 19 years of age and had begun to smoke, and that he had suggested that she should smoke a pipe rather than cigarettes to avoid inhaling the smoke.  Ms Bort said that he also told her he would not have commenced smoking cigarettes if he had not been in the army.   Ms Bort stated that the veteran told her that army life was stressful, and that in Darwin he and his friends would sit around and smoke.

10.      In a written statement, dated 20 January 2003 (Exhibit A2), Mr G. Fisher stated that he served with the veteran in 1942-43 and knew him well.  Mr Fisher stated that he had no recollection of the veteran ever having smoked a pipe, and that the veteran was a heavy smoker of cigarettes during the time that Mr Fisher knew him.

11.     In a written report dated 30 May 2003 (Exhibit A3), Dr R. Collins, consultant forensic pathologist, said that he had reviewed the medical records and saw no reason to dispute the cause of death as stated on the death certificate.  In oral evidence Dr Collins told the Tribunal that since compiling the report he had examined the veteran’s medical records from the John Fawkner Private Hospital, where the veteran was admitted for diagnosis of his lung malignancy and his terminal care.  Dr Collins said that the malignancy was a small cell carcinoma that had been present for a long time before the veteran’s death, and that the most common cause of such cancer was long-term cigarette smoking.

12.     In a written report dated 1 February 2000 (T13, p107), Ms S. Aitken, psychologist, stated that the veteran told her that he began smoking a pipe prior to his army service, and changed to roll-your-own cigarettes when he broke his pipe.  She said that he continued to smoke up to 50 cigarettes per day until the age of 67 years, when he ceased smoking at the time of his first hip operation.  In oral evidence Ms Aitken said that when she spoke to the veteran he had some difficulty with his memory and his concentration, but she said she believed that his answers were given honestly and to the best of his recollection.

13.     In a smoking questionnaire completed on 13 January 1991 (T5, pp 17-18) the veteran stated that he began to smoke a pipe regularly at the age of 16 years, and switched to cigarettes when he broke his pipe at training camp at Seymour.  He said that his smoking increased to 50 cigarettes per day during the long hours I worked driving heavy vehicles from 1946 until 1972..  He gave as his reason: just long hours.

14.      In a Claimant report - Cigarette Smoking for the Department of Veterans’ Affairs on 13 August 1996 (T7, pp22-23) the veteran stated that he first started smoking a pipe at the age of 14 almost 15 years old, my Grandfather and Father both smoked pipes so I did also.  He reiterated that he did not smoke cigarettes until 1941, when he broke his pipe at training camp.  He added that he started smoking roll-your-own cigarettes in the amount of about 2 oz. a week and smoked regularly because my mates smoked then also.

15.      In a written statement dated 6 February 2001 (T14, p177) Mrs C. Pattison and Mr T. Pattison, respectively the sister and brother-in-law of the veteran, stated that they had no recollection of the veteran smoking a pipe, or at all, prior to his army service.  They said that the veteran commenced smoking during service, and Mr Pattison said that he gave the veteran his own tobacco ration when the veteran was home on leave.  Mr and Mrs Pattison acknowledged that after service the veteran became a very heavy smoker, but stated that the veteran found his service boring, tedious and monotonous.  With idle time on his hands…we are sure he found smoking a form of consolation and comfort, and of course a regular tobacco ration was provided.  They said We are both sure that Gerald’s smoking habit was a direct result of the conditions of his service.      

CONSIDERATION OF THE ISSUES

16. Section 8(1) of the Act provides:

(1)        Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service.

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

17.     The parties agreed that the relevant Statement of Principles (SoP) for malignant neoplasm of the lung is N° 36 of 2001.  Clause 5 states:

The factors that must exist before it can be said that, on the balance of  probabilities, malignant neoplasm of the lung or death from malignant neoplasm of the lung is connected with the circumstances of a person’s relevant service are:

(a)for each of the following types of malignant neoplasm of the lung:

(i)…

(ii)small cell carcinoma,

…

(A)smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, and

(B)smoking commenced at least 10 years before the clinical onset of malignant neoplasm of the lung

....

18.     Mr Stevenson submitted that there was no dispute that the veteran satisfied factors 5(a)(ii)(A) and (B) as he smoked the required quantity of cigarettes and commenced smoking at an early age.  He submitted that the veteran’s service contributed to his smoking, which continued until 1985.  He said that the documents were ambiguous in their description of the veteran’s smoking habits.  He referred to the evidence from Mr and Mrs Pattison that they had no recollection of him smoking prior to his war service, and that following his service he had become a very heavy smoker.

19.     Mr Stevenson noted that, in the smoking questionnaires, the veteran had stated that his smoking increased to 50 cigarettes per day from 1946, but did not give a figure for consumption during his service other than 2 oz. per week, which Mr Stevenson said was about 50 cigarettes.  Similarly he said that Ms Aitken did not include a figure from which the veteran’s consumption increased to 50 cigarettes per day.  Mr Stevenson submitted that there was no conclusive evidence that the veteran did not develop a heavy smoking habit during service, which led to the development of lung cancer.  He said that, for this reason, the veteran’s death was war-caused.

20.     Ms McCulloch referred to the veteran’s own evidence in the smoking questionnaires in 1991 and 1996 that he commenced smoking a pipe at the age of about 14 or 16 years, and switched to cigarettes in 1941.  In relation to the statement from Mr and Mrs Pattison, she said that the veteran was stationed in Darwin in early 1945, near the end of the war, so that this posting was unlikely to have contributed significantly to any increase in smoking during service.  She questioned the accuracy of the statement, noting that in evidence to the VRB in an earlier application by the applicant, Mrs Pattison stated that she was seven years younger than the veteran and was at home when he enlisted, but she said that she could not remember much of this period.

21.     Ms McCulloch stated that the best evidence was from the veteran, particularly in his 1991 Smoking Questionnaire, in which he gave his long working hours after the war as the major reason for the increase in smoking.  Ms McCulloch submitted that there was no credible evidence that the veteran’s smoking increased during, or as a consequence of, his service, so that there was no causal connection between service and the veteran’s lung cancer that resulted in his death.

22.     The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at hearing.

23.     In respect of malignant neoplasm of the lung, the Tribunal finds that the veteran smoked the requisite quantity of tobacco products and cigarettes and that he commenced smoking at least 10 years before the clinical onset of small cell carcinoma, so he satisfies factor 5(a)(ii)(A) and (B) of SoP N° 36 of 2001.

24.      Clause 4 of SoP N° 36 of 2001 provides that, Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. The Tribunal must be reasonably satisfied that the relevant contention is causally connected to war service on the facts of the matter. Section 119(h) of the Act allows the Tribunal to take into account the effects of the passage of time and the difficulties faced by the applicant because of the absence of, or deficiency in, official records.

25.      The Tribunal finds that the veteran commenced smoking a pipe at an early age and he continued smoking after joining the army, switching to cigarettes in 1941.  The Tribunal also finds that the veteran increased his consumption from about 40 cigarettes per day to about 50 per day after service, probably for the reason that he gave in 1991, was that he was working long hours.  This appears to be consistent with the applicant’s evidence, that the veteran was a heavy smoker when she met him in 1947 and that his consumption increased to about 50 cigarettes per day.  The Tribunal gives little weight to the statement from Mr and Mrs Pattison because the statement could not be tested in cross-examination, and also because of comments by the VRB about Mrs Pattison’s evidence to that tribunal.  In his statement Mr Fisher was unable to quantify the veteran’s level of cigarette consumption.

26.      The Tribunal agrees with Ms McCulloch that the evidence concerning the harsh conditions in Darwin and the effects on the veteran’s smoking are of limited value because the veteran was sent there in 1945, nearly four years after he enlisted in the army.  The Tribunal also agrees that there is no persuasive evidence that the veteran’s service caused him to increase his cigarette consumption.  For these reasons the Tribunal is reasonably satisfied that there is no causal connection between the veteran’s smoking and the small cell carcinoma of the lungs which caused his death.  Therefore, the claim must fail.

DECISION

27.      The Tribunal affirms the decision under review.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  11 March 2004

Date of decision:  19 March 2004
Advocate for applicant:                Mr J. Stevenson
Solicitor for applicant:                  De Marchi & Associates
Advocate for respondent:            Ms J. McCulloch
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs