Bourke and Repatriation Commission

[2004] AATA 480

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 480

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/192

VETERANS' APPEALS  DIVISION		)
Re		ROBERT CLAUDE BOURKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date14 May 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - operational service - navy - smoking habit - congestive cardiac failure - asthma - obstructive airways disease - emphysema - supraventricular tachycardia - Statements of Principles - VRB.

Veterans’ Entitlements Act 1986 – ss120(1), 120(3), 120A

Statements of Principles issued by the Repatriation Medical Authority

Guide to the Assessment of Rates of Veterans’ Pensions (GARP)

Deledio v Repatriation Commission (1998) FCA 391

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

East v Repatriation Commission  (1987) 16 FCR 517

Whitworth v Repatriation Commission (2002) FCA 1530

Stafford v Repatriation Commission (2002) FCA 989

Smith and Repatriation Commission (1999) FCA 1484

REASONS FOR DECISION

14 May 2004 Associate Professor B W Davis AM (Part-time Member)   

Decision Under Review

1.      This is an appeal against that part of a decision made by a delegate of the Repatriation Commission dated 14 December 2000, subsequently affirmed by a decision of the Veterans’ Review Board (VRB) on 17 November 2001, whereby the applicant’s claim to have congestive cardiac failure, supraventricular tachycardia, chronic obstructive airways disease and emphysema accepted as due to war service was refused.

2.      A claim for bilateral sensori-neural hearing loss with tinnitus was accepted.

Issues

3.      The issue in this case is whether the claimed disabilities were caused or contributed to by the applicant’s operational service in the Royal Australian Navy between 7 March to 10 April 1956 and 21 September to 7 October 1956.

Standard of Proof

4. As the applicant rendered operational service in the Far East Strategic Reserve, the standard of proof is that prescribed in ss120(1) and 120(3) of the Veterans’ Entitlements Act 1986.    As the claim was lodged after 1 June 1994, s120A of the Act also applies.

Prior Decisions

5.      Both the original decision-maker (a delegate of the Repatriation Commission) and the VRB independently decided that the material did not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act, and accordingly there was not sufficient grounds for determining the veteran’s disabilities were war-caused. They  therefore affirmed the decision under review, Mr Bourke then sought review by the Administrative Appeals Tribunal on 4 December 2001.

Interlocutory Decision

6.      At a directions hearing conducted in Hobart on 31 January 2004, the parties made joint application for a split hearing to be conducted by the AAT.   It was claimed desirable to test whether a reasonable hypothesis could be developed linking chronic obstructive airways disease and emphysema to claimed conditions of service, before deciding whether other claims might be pursued, including cardiac failure, where further medical evidence might be required.

7.      Following a hearing in Hobart on 6 February 2004, an interlocutory decision was issued, dated 12 March 2004.  The Tribunal found that:

(a)A prospective hypothesis exists linking the veteran’s claimed disabilities of congestive cardiac failure, chronic obstructive airways disease and emphysema to claimed service-related smoking.

(b)A Statement of Principles exists for chronic airflow limitation, chronic bronchitis and emphysema and the applicant’s smoking record meets criteria in Factor 5(b) of Instrument No 73 of 1997.

(c)Whether claimed disabilities are war-caused remains to be determined.

8.      The matter was remitted to the parties for further consideration.   After consultation they indicated no further submissions would be made and the Tribunal should determine the matter.

Analysis

9.      Counsel for the applicant has argued that the veteran’s heavy smoking habit is service-related, since it occurred in Singapore on operational service.   Counsel for the respondent has stated that Mr Bourke was smoking well before operational service and it was the ready supply of cheap cigarettes, rather than any identified stressor, which triggered his increase.   This could hardly be construed as service-related.

10.     Having examined the evidence de-novo, the Tribunal agrees with the latter assessment.

(a)Mr Bourke commenced smoking during naval service one and half years before operational service and was already making choices about cigarette consumption before he reached Singapore.

(b)The period in Singapore was brief and he admits it was a recreational “binge” and the ready availability of cheap cigarettes which induce much heavier smoking.

(c)No evidence was tendered to the Tribunal about stressful events or specific medical evidence, linking claimed disabilities to service conditions.

(d)No claims were made about aggravation of airways disease or emphysema, which in any event, could only be considered if they occurred prior to the end of service.

(e)The only medical evidence available is a letter from Dr Peachey, dated 29 October 2002, discussing a general proposition that smoking may lead to the kind of disabilities Mr Bourke claims to suffer.   Dr Peachey did not supply a specific medical report on Mr Bourke’s condition.

11.     Given all the above, the Tribunal finds that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3) of the Act, and there are not sufficient grounds for determining the veteran’s disabilities were war-caused within the meaning of subsection 120(1) of the Act.

Decision

12.     The decision under review is affirmed.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed:  K L Miller (Administrative Assistant)

Date/s of Hearing  6 February 2004
Date of Decision  14 May 2004
Counsel for the Applicant         Mr C Webster
Solicitor for the Applicant          Wallace Wilkinson & Webster  
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent      Department of Veterans’ Affairs