Bourke and Repatriation Commission
[2004] AATA 260
•12 March 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 260
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2001/192
VETERANS' APPEALS DIVISION ) Re ROBERT CLAUDE BOURKE Applicant
And
REPATRIATION COMMISSION
Respondent
INTERLOCUTORY DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date12 March 2004
PlaceHobart
Decision This is an interlocutory decision at the request of the parties.
Having examined all evidence de novo the Tribunal finds 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.
The matter is remitted to the parties for further consideration.
[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 INTERLOCUTORY DECISION
12 March 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.
Date of Effect
3. As all steps in this matter were taken within the prescribed time limits, should the applicant succeed in this appeal, the date of effect will be 17 February 2000, being three months prior to lodgment of the claim.
Issues
4. The issue in this case is whether the claimed condition was caused or contributed to by the applicant’s period of service in the Royal Australian Navy between:
(i) 7 March 1956 to 10 April 1956; and
(ii) 21 September 1956 and 7 October 1956.
Standard of Proof
5. As the applicant has rendered operational service in the Far East Strategic Reserve, the standard of proof is that prescribed in ss120(1) and (3) of the Veterans’ Entitlements Act 1986 (“the Act”).
6. As the claim was lodged after 1 June 1994, s120A of the Act applies. This necessitates consideration of any relevant Statements of Principles issued by the Repatriation Medical Authority for specific claimed disabilities. The relevant Statement of Principles (SoP) for obstructive airways disease and emphysema is SoP No 73 of 1997. No SoP principles has been issued for congestive cardiac failure or supraventricular tachycardia, the reasonable hypothesis test applies.
Background
7. The applicant, Robert Claude Bourke, was born in 1931 and served in the Royal Australian Navy from 18 October 1954 to 3 June 1958. His eligible war service (which is also operational service) was from 7 March to 10 April 1956 and from 21 September to 7 October 1956, in the Far East Strategic Reserve on board HMAS Quadrant, the total period of eligible operational service being 52 days.
8. In a smoking statement dated 11 May 2000, Mr Bourke claimed to have commenced smoking when he joined the Navy in 1954, initially limiting consumption to 4 or 5 cigarettes per day, because of his interest in boxing. However, during operational service in the Far East on HMAS Quadrant in 1956 his consumption of cigarettes markedly increased, because they were readily available and he had spent time with sailors from other ships boxing teams at a date when an intended boxing tournament was cancelled. At this time he was smoking about 20 cigarettes a day and this continued until 1958 when he was smoking up to 30 cigarettes a day. He only ceased in 1995 due to a heart complaint, but claims to have suffered symptoms of obstructive airways disease and emphysema from the 1980's.
9. In rejecting the veteran’s claims for asthma, congestive cardiac failure, supraventricular tachycardia, and chronic airways disease, a delegate of the Repatriation Commission on 14 December 2000, relied upon a smoking history of:
· 5 cigarettes per day from 1954 to1955, not causally related to service;
· 20 cigarettes per day from 1955 to 1995 not causally related to service.
10. The original decision-maker considered asthma as a disability, using Statement of Principles No. 75 of 1997; chronic obstructive airways disease and emphysema using Instrument No 73 of 1997, and congestive cardiac failure and supraventricular tachycardia on the basis of medical evidence. While the delegate accepted bilateral sensori-neural hearing loss with tinnitus as service-related, the decision-maker rejected the other claims on grounds of lack of evidence demonstrating they were war-caused.
11. The applicant disagreed with this assessment and sought review by the Repatriation Commission and the Veterans’ Review Board on 17 January 2001.
12. At the VRB hearing conducted in Hobart on 7 November 2001, the Board examined the evidence anew, paying particular attention to the smoking habit and medical evidence. An advocate for Mr Bourke sought leave to withdraw the claim for asthma, since there was no supporting evidence, but considered claims for cardiac failure, tachycardia, obstructive airways disease and emphysema should be continued. The advocate also drew attention to errors in dates in some documentation.
13. The hypothesis advanced by the advocate was that chronic obstructive airways disease and emphysema was related to a service-induced smoking habit. Clinical onset of the disease as assumed to have occurred about January 1998, but the Board could not find any causal connection between the veteran’s smoking habit and his eligible service, although it did make a factual error in assuming Mr Bourke arrived in Singapore on HMAS Quadrant in March 1956 ahead of his ship. Overall they affirmed the decision under review, insofar as to decide that congestive cardiac failure, supraventricular tachycardia, chronic obstructive airways disease and emphysema were not service related. The veteran then sought review by the Administrative Appeals Tribunal on 4 December 2001.
Facts and Contentions
14. The primary contention of the applicant is that congestive cardiac failure, chronic obstructive airways disease and emphysema are caused or contributed toby a smoking habit commenced on and due to circumstances of operational service. In the case of airways disease and emphysema, the relevant Statement of Principles is Instrument No 73 of 1997, Factor 5(b). in relational to congestive cardiac failure, there is reliance upon medical opinion, which the applicant claims supports a connection between heart condition and smoking.
15. The respondent does not agree with these claims, but says it is for the Tribunal to determine.
Part Hearing
16. At a Directions Hearing 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 identified linking chronic obstructive airways disease and emphysema, before deciding whether other claims would be pursued, including cardiac failure, where further medical evidence might be required.
17. The Tribunal agreed to this request, stating that possible connection between claimed airways disease and emphysema would be tested against claimed service-related smoking, so that a reasonable hypothesis might or might not be identified, with reasons for such an interim decision stated. The parties were then free to decide whether to proceed further, before a final determination was made.
AAT hearing
18. The AAT hearing was conducted in Hobart on 6 February 2004. Mr C Webster appeared as counsel for the applicant, Robert Claude Bourke, who was present and gave evidence as witness. Mr M Castle represented the respondent.
19. In opening submissions Mr Chris Webster identified the principal issues of chronic obstructive airways disease and emphysema, and tendered as exhibit a letter from a Dr Peachey dated 29 October 2002, indicating that cigarette smoking had been demonstrated to be a factor in subsequent disabilities such as cardiac failure, chronic obstructive airways disease and emphysema. Dr Peachey had declined to provide a further report about Mr Bourke’s condition.
20. Mr Bourke was then sworn as witness, recounting details of his naval service and smoking habit. He stressed that while taking up smoking in the Navy, he had initially limited this to a few cigarettes a day, because of his training regime for boxing, a recreation he greatly enjoyed. It was disappointment at having a boxing tournament cancelled in Singapore, coupled with being given cigarettes by British sailors and the ready availability of cheap cigarettes in Singapore which had induced a much heavier smoking habit. Being “let loose” in the city had led to him smoking and drinking more and he had continued the heavy smoking into civilian life, only ceasing when he encountered health problems in the 1980’s. He had finally quit in 1995.
21. Counsel for the respondent drew attention to service records of HMAS Quadrant in 1956, prepared by its commander, Captain Hugh Stevenson. Mr Bourke agreed this was likely to be an accurate record of ship movements and events. The record showed that HMAS Quadrant had left Australia on 7 March 1956 and was in Singapore “roads” from the 14 March to 4 April 1956, before departing for manoeuvres in “Operation Monsoon”.. The ship was also in Singapore for a further brief period from 29 September – 1 October 1956. Mr Castle questioned the witness about some of his recollections and said it was a very brief time to acquire a heavy smoking habit, but the reasons were not clear, apart from possible peer group habit or enjoyment of smoking.
22. In closing submissions for the applicant, Mr Webster said it was clear the increase in smoking was a service-related condition, since it occurred in Singapore, but it was not necessary to prove peer group pressure as a causative factor. Recent AAT decisions had clarified matters in this regard and he drew attention to the cases of Stafford and Repatriation Commission (2002) FCA 989 and Smith and Repatriation Commission (1999) FCA 1484. Both cases demonstrated that ordinary human nature should be taken into account. Mr Bourke had suddenly found cigarettes readily available and cheap, at a time when many naval personnel smoked. Sections 120(1) and 120(3) of the Act were beneficial in character and unless compelling evidence existed otherwise, Mr Bourke’s claim should be accepted.
23. Counsel for the respondent challenged this perspective. Mr Bourke had commenced smoking far earlier than his limited operational service. There was no identified stressor or causative factor, other than perhaps a personal decision or a gift of cigarettes by someone, which had triggered his increase. This could hardly be construed as service related.
Analysis
24. The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, noting relevant statutory provisions and case determinations.
25. Given that this case is to be decided in accordance with ss120(1) and (3) of the Veterans’ Entitlements Act 1986, including s120A, the appropriate procedure to adopt is identified in Deledio and Repatriation Commission (1998) FCA 391 (22 April 1998) namely:
“(a) Determine whether the material before the Tribunal points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered b y the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(b)If the material does raise an hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (1) of the Act.
(c)If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.
(d)The Tribunal must then consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury or disability. If not so satisfied, the claim must succeed.”
26. In the current case the first matter to be determined is whether a prospective hypothesis can be identified, linking claimed disabilities with operational service. Such an hypothesis must not be fanciful or absurd, although no question of fact arises at this stage (Bushell and Repatriation Commission (1992) 109 ALR 30, also Byrnes and Repatriation Commission (1993) 116 ALR 210). But in the more recent case of Whitworth and Repatriation Commission (2002) FCA 1530, it was argued that an hypothesis is not reasonable, unless some factual material can be pointed to.
27. The applicant has claimed an hypothesis does exist; namely that service-related smoking was causation for subsequent development of the veteran’s disabilities, including congestive cardiac failure, chronic obstructive airways disease and emphysema. Having examined the evidence the Tribunal agrees this is one prospective hypothesis, supported in part by Dr Peachey’s letter of 29 October 2002, in which he claims smoking often leads to the disabilities stated. But acceptance of this tentative hypothesis is merely the initial step in the procedure outlined in Deledio and subsequently adopted in many AAT cases.
28. The second step is to ascertain whether any relevant Statement of Principles (SoP), determined by the Repatriation Medical Authority, exists for the claimed disabilities. In the case of chronic obstructive airways disease and emphysema such an SoP does exist, namely Instrument No 73 of 1997. In the case of congestive cardiac failure no SoP has been issued and the matter must be determined on the basis of medical evidence.
29. The third step is to determine whether the initial hypothesis is a reasonable one, given factors or criteria in the relevant SoP, i.e. to decide whether there is a reasonable fit between the SoP pro-forma and the circumstances of the veteran’s service and disabilities.
30. The applicant has a long and substantial smoking history extending from 1954 to 1995. The veteran claims smoking only 5 cigarettes a day at the outset of his Navy service, but from 1956 onwards up to 20 to 30 cigarettes a day for many years. Even if the smoking habit was only 10 cigarettes a day, as recorded by psychiatrist Dr E Ratcliff on 27 February 2001, this would still more than meet the specified criteria of smoking at least 10 pack-years of cigarettes, or the equivalent thereof, prior to the clinical onset of chronic bronchitis and/or emphysema, identified in factor 5(b) of Instrument No 73 of 1997.
31. The fourth and final step, following Deledio, is to consider under s120(1) of the Act, whether the Tribunal is satisfied beyond reasonable doubt that the disabilities or death are not war-caused. If not so satisfied the claim must succeed.
32. The parties have requested an interim decision regarding hypothesis; thus at this stage it remains to be determined whether the veteran’s disabilities are war-caused. The legislation is beneficial in intent, but the Tribunal must consider whether or not factual material exists confirming or refuting disability claims, relative to service conditions.
33. The matter is remitted to the parties for further consideration.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis A M (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 6 February 2004
Date of Decision 12 March 2004
Counsel for the Applicant Mr C Webster
Solicitor for the Applicant Wallace Wilkinson & Webster
Counsel for the Respondent Mr M CastleSolicitor for the Respondent Department of Veterans’ Affairs
0
7
0