Bowden and Repatriation Commission
[2005] AATA 687
•21 July 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 687
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/798
VETERANS' APPEALS DIVISION )
Re PETER BOWDEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date21 July 2005
PlaceBrisbane
Decision The decision under review is affirmed.
....................[Sgd]........................
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service with Royal Australian Navy – chronic bronchitis and emphysema – application of Statements of Principles - reasonable hypothesis of relevant relationship to service raised – conditions not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 s 9, 14, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Kattenberg v Repatriation Commission [2002] FCA 412REASONS FOR DECISION
21 July 2005 Mr RG Kenny, Member Background
1. Peter Bowden (the applicant) served in the Royal Australian Navy from 20 February 1959 until 4 August 1967. His service included periods on various vessels with the Far East Strategic Reserve and in Malaysian and South Vietnamese waters. He contends that he now suffers from chronic bronchitis and emphysema and that this is related to aspects of that service.
2. On 25 March 2003, Mr Bowden lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of “emphysema”. That claim, which was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 5 June 2003, that Mr Bowden suffered from chronic bronchitis and emphysema but that it was not causally related to any aspect of his navy service. That decision was affirmed by the Veterans’ Review Board on 23 August 2004 and, on 14 October 2004, an application was made on his behalf for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).
Hearing
3. At the hearing, Mr Bowden was represented by Mr E George of counsel and the respondent was represented by Mr B Williams.
4.The following material was taken into evidence:
exhibit 1: the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T6);
exhibit 2: a medical report, dated 12 March 2005, by Dr Maurice Heiner, thoracic physician;
exhibit 3: a statement, dated 15 April 2005, by the applicant; and
exhibit 4: a medical report, dated 10 April 2005, by Dr James McKeon, thoracic physician.
Mr Bowden’s Service
5. The nature and extent of Mr Bowden’s service with the Royal Australian Navy is not in dispute. His periods with the Far East Strategic Reserve and in Malaysian and South Vietnamese waters comprise operational service and eligible war service as those terms are defined in the Act. These periods, and the vessels on which he served, were:
§from 26 November 1959 until 24 December 1959 (HMAS Quickmatch);
§from 2 January 1960 until 14 January 1960 (HMAS Quickmatch);
§from 27 February 1960 until 6 May 1960 (HMAS Quickmatch);
§from 28 March 1961 until 17 April 1961 (HMAS Vendetta);
§from 4 May 1961 until 28 May 1961 (HMAS Vendetta);
§from 7 July 1961 until 14 August 1961 (HMAS Vendetta);
§from 12 September 1961 until 3 October 1961 (HMAS Vendetta);
§from 17 August 1964 until 5 October 1964 (HMAS Vampire);
§from 16 October 1964 until 15 December 1964 (HMAS Vampire);
§from 5 January 1965 until 10 February 1965 (HMAS Vampire); and
§from 31 May 1965 until 22 June 1965 (HMAS Vampire).
6. Mr Bowden’s claim is based on his smoking of cigarettes during his duties on various kinds of watch that he was required to keep during his voyages on each of the vessels on which he served and, therefore, the claim is that his chronic bronchitis and emphysema are war-caused pursuant to sub-section 9(1) of the Act.
Determining a Relationship with Service
7. Sub-section 9(1) of the Act provides that a condition will be taken to be war-caused if:
§it resulted from an occurrence that happened when Mr Bowden was rendering operational service; or
§it arose out of, or was attributable to, any eligible service rendered by him.
8. The standard of proof applicable to that determination is set out in sub-section 120(1) of the Act which reads:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
9. The application of that provision is affected by the terms of sub-section 120(3) and section 120A of the Act which require that consideration be given to any relevant Statement of Principle as published by the Repatriation Medical Authority.
The Condition to be Considered
10. It was not in dispute that the condition which can be diagnosed in Mr Bowden in response to his claim is chronic bronchitis and emphysema. Such matters are to be determined, in accordance with subsection 120(4) of the Act, to the decision-maker’s reasonable satisfaction: (Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373). When the matter first came before it, the Veterans’ Review Board was not satisfied about the diagnosis of these conditions. By letter dated 27 February 2004, it requested a further medical report on the matter of diagnosis and, specifically, asked whether Mr Bowden suffered from chronic bronchitis and emphysema. Dr James McKeon, thoracic physician, saw Mr Bowden on 21 April 2004 and 31 May 2004. He provided separate reports on each of those dates and these were relied on by the Veterans’ Review Board to accept that Mr Bowden suffered from chronic bronchitis and emphysema.
11. In the first of those reports, Dr McKeon noted the presence of asthma, chronic obstructive airways disease and chronic bronchitis. He also wrote that he probably had emphysema as well and, in the second report, Dr McKeon confirmed the diagnosis of that condition. On the basis of that evidence, I am reasonably satisfied that the conditions before the Tribunal for consideration are chronic bronchitis and emphysema. The next issue for determination is whether the conditions can be related to Mr Bowden’s eligible service.
Principles of Causation
12. The Federal Court, in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92, set out a four-step procedure for determining issues of causation where operational service has been rendered.
Deledio Step 1
13. The first of these steps requires that there be material which points to an hypothesis connecting a claimed condition with service. The contention of Mr George was that Mr Bowden’s chronic bronchitis and emphysema have resulted from the effects of cigarette smoking. Further, he contended that Mr Bowden’s smoking habit was causally related to his service because of the nature of the duties performed in a setting where smoking was fostered by the ready availability at low prices of cigarettes and tobacco products. I accept that this constitutes an hypothesis of a relationship to Mr Bowden’s operational service for chronic bronchitis and emphysema.
Deledio Step 2
14. The second step requires identification of the relevant Statement of Principles. At the time of Mr Bowden’s initial claim, of the respondent’s decision and of the review by the Veterans’ Review Board, the relevant Statement of Principles was Instrument No. 73 of 1997. Since then, the Repatriation Medical Authority has repealed and replaced that with Instrument No. 30 of 2004. In respect of the smoking-related factor of causation for chronic bronchitis and emphysema, the later Statement of Principles is less restrictive than its predecessor which required an accumulation of at least 10 pack years of cigarette smoking. In the later Statement of Principles, this has been reduced to 5 pack years. Mr George submitted that the later and more favourable Statement of Principles should be applied. I accept that submission: see Repatriation Commission v Gorton (2001) 65 ALD 609.
Deledio Step 3
15. This step requires consideration of whether the hypothesis raised is reasonable. This requirement will be met if it fits the template provided by a relevant factor and associated definition in the Statement of Principles. These read:
chronic bronchitis and emphysema:
5 (a) smoking at least 5 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and emphysema;
pack years of cigarettes, or the equivalent thereof in other tobacco products, means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7,300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7,300 cigarettes, or 7.3 kg of smoking tobacco by weight……
16. If the hypothesis is reasonable, it will be necessary to consider the fourth of the Deledio steps. This will require a finding that a relevant condition is war-caused unless the Tribunal is satisfied beyond reasonable doubt that such is not the case.
Mr Bowden’s evidence
17. Oral evidence was given in this matter by Mr Bowden and he outlined his experiences in the following way. He commenced smoking cigarettes before he joined the navy and stopped smoking in the late 1960s. He mainly smoked “roll your own” cigarettes and consumed about 1-1½ ozs of tobacco per week. He said that this amounted to about 50 cigarettes per week and that this was his base rate of smoking at all times except for when he was carrying out certain watches whilst at sea. During those watches, he would increase his smoking significantly but would always return to the base level when not actually engaged in duty during those watches. He also returned to that base level of smoking when ashore and in the period after he was discharged from the navy.
18. His training in the navy was as a sonar controller and, when his ship was in exercise mode, he performed duties associated with that rating in a sonar control room. This measured approximately 12 feet by 7 feet and housed four personnel who were charged with the responsibility of listening to noise signals and watching an associated screen. The control room was air-conditioned on Vendetta and Vampire but not on Quickmatch. The task required much concentration and shifts rotated on a “4 hours on and 4 hours off” basis. He explained that there was nothing else to do in the sonar room but listen for sounds and watch the screens. His evidence was that he smoked heavily during these four hour watches and he estimated that rate to be 5 to 6 cigarettes per hour.
19. Mr Bowden carried out general duties when the ship was not on exercises. For those, he performed watches on the basis of “4 hours on and 8 hours off”. He said that he would smoke cigarettes at the rate of about 3 per hour during those watches because it helped to relieve the boredom of duty. As a leading seaman, he also performed the duties of a quartermaster in the wheelhouse. This was a small area measuring approximately 8 feet by 8 feet in size. It was closed in and it housed three seamen including Mr Bowden. Air-conditioning was available on Vendetta and Vampire but not on Quickmatch. Again, he smoked heavily during these watches, in the order of 5 to 6 cigarettes per hour and these watches were rotated on the basis of “4 hours on and 8 hours off”.
20. Mr Bowden said that almost everyone on the various vessels on which he served was a smoker and that this practice was encouraged by the low price of cigarettes. They were available to seamen at 1 shilling per packet or 10 shillings for a carton. He said that tobacco was also similarly priced. He said that there may have been times when he felt stressed during his service but he did not think that this had any role to play in the increase in his smoking levels.
21. Mr Bowden was referred by Mr Williams to a smoking questionnaire that he completed on 3 April 2003 and in which he described his cigarette consumption as amounting to 1-1½ ounces per week. Mr Bowden said that this was a reference to his base level of smoking rather than to the increased levels he engaged in whilst carrying out his watch duties on ship. He also said that, when he completed the questionnaire, he had not been mindful of the need for accuracy because, at that time, he was not intending to rely on his smoking habit in furthering his claim against the respondent. He said that he had been advised by a member of the Bribie Island Returned and Services League of Australia (RSL) Club that his level of smoking was not sufficient to satisfy the smoking-related factor of 10 pack years in the Statement of Principles at that time. Rather, he had relied upon the effects of exposure to various noxious fumes whilst on board HMAS Quickmatch. This had resulted in his being hospitalised for a period and was the basis upon which the Veterans’ Review Board accepted a claim for his asthma as being a war-caused condition.
22. Mr Williams referred Mr Bowden to the report, dated 12 March 2005, from thoracic physician Dr Maurice Heiner. There, it was recorded that he did not smoke more that 20 cigarettes per day. Mr Bowden said that he did not get time to provide full details to Dr Heiner because he had been “rushed through” the medical examination by Dr Heiner. Mr Bowden also said that it was only after seeing Dr Heiner’s report that he considered that smoking may have been associated with his chronic bronchitis and emphysema.
Submissions
23. Mr Williams submitted that the evidence of Mr Bowden in relation to his increased smoking during service should be disregarded. He referred to the smoking questionnaire completed by him in 2003 and submitted that it was inconsistent with Mr Bowden’s subsequent evidence concerning higher levels of smoking which were not referred to when he had the opportunity to do so. Mr Williams also submitted that, even if Mr Bowden’s evidence was accepted, he still did not reach the threshold requirement of five pack years set down in the Statement of Principles before the clinical onset of his chronic bronchitis and emphysema. He submitted that this had occurred in the 1960s and was demonstrated by frequent medical treatment for the condition at that time.
24. Mr George submitted that Mr Bowden’s evidence should be accepted on the basis that he had explained any apparent inconsistencies between that evidence and the smoking questionnaire that he had completed earlier. Mr George referred to the report from Dr Heiner, where cigarette smoking was implicated as being causally associated with Mr Bowden’s chronic bronchitis and emphysema. Mr George conceded that Mr Bowden had been in the practice of smoking cigarettes before his naval service but he submitted that the increased level of smoking described by him on particular watches was sufficient to meet the relevant factor in the Statement of Principles and that the increased level of smoking was causally associated with his service. Mr George submitted that the clinical onset of chronic bronchitis and emphysema did not occur until the 1980s. He noted that this finding had been made by the Veterans’ Review Board which, in so doing, had relied upon a medical report completed by thoracic physician, Dr Elizabeth Clark, on 21 November 1983.
Reasonableness of hypothesis
25. In order for the hypothesis advanced by Mr George to be reasonable, there must be material which points to at least five pack years of cigarettes, or 36,500 cigarettes, in Mr Bowden’s case and to that level of consumption being causally associated with his eligible service. Further, there must be material which points to that amount of service-related smoking having been completed before the clinical onset of his chronic bronchitis and emphysema. Mr Bowden’s evidence was that, on occasions when he was not on watch or not on board ship, his smoking was limited to pre-service levels of about 50 cigarettes per week. His evidence of the increased smoking that he engaged in during the periods on watch, in particular when he was in the sonar control room and the wheelhouse, points to there being a significantly increased level of consumption. The ready availability of tobacco products at low prices and the tedious nature of the watch duties that he described also point to a causal nexus between his service and his smoking. Additionally, the medical report, dated 21 November 1983, completed by thoracic physician, Dr Elizabeth Clark, points to the clinical onset of Mr Bowden’s condition as being in the 1980s. Taken at its highest, that material meets the template provided by smoking-related factor in the Statement of Principles and, therefore, I accept that a reasonable hypothesis has been raised in the manner submitted by Mt George. That acceptance involves no findings in relation to the facts of Mr Bowden’s case. That process is conducted though the application of step 4 of the procedure in Deledio’s case and chronic bronchitis and emphysema will be war-caused unless I am satisfied beyond reasonable doubt that this is not established by the evidence.
Deledio Step 4: Is the condition war-caused?
26. Mr Bowden smoked cigarettes before and after his service with the navy. His evidence was that his pre-service and post-service level of smoking remained the same at some 50 cigarettes per week. There is no causal relationship between that pattern of consumption and his service. He also smoked at that level at all times during his service except when he was serving on watch at sea. Mr Bowden has provided varying accounts of his smoking history. As noted above, he completed a smoking questionnaire in which he declared that he smoked 1-1½ ounces of tobacco per week. Dr McKeon, in his report of 21 April 2004, recorded a similar history. He wrote: “Roll your own cigarettes: 2 ounces every 5 to 6 days between the ages of 20 and 37”. In a report, dated 7 May 2003, thoracic physician, Dr Robert Edwards, recorded him as “consuming 10 cigarettes a day for about 10 years but stopped smoking 30 years ago”. In a report, dated 13 March 2001, Dr N Buckmaster, Director of Medicine at the Caboolture Hospital, described him as having a “trivial cigarette smoking history but ceased 30 years ago”. Dr Jeff Karach, in a report dated 6 August 1990, recorded that “he smoked up to 10 cigarettes a day in his early life but ceased the best part of 30 years ago”. During a period of sick leave at HMAS Penguin, a clinical note, dated 13 February 1967, recorded him as smoking 10 to 12 per day. Dr Heiner also detailed Mr Bowden’s smoking history and, in his report, dated 12 March 2005, wrote:
He smoked from about the age of 22 until the age of 38 for about 16 years in total. He did not ever smoke more than 20 cigarettes per day. Even when on ‘active service’ he did not smoke more than 20 cigarettes per day. He would smoke ‘roll your own’ cigarettes. Two ounces of tobacco would last about seven days. When he went ashore he would take tailor made cigarettes. During social activities, when he drank some alcohol with his colleagues and friends, he would probably smoke up to twenty cigarettes per day. He stopped smoking and stopped drinking at the age of 38.
27. Apart from the reference by Dr Heiner to consumption on social occasions, those reports are consistent in their descriptions of Mr Bowden’s smoking habit over the years. I do not accept Mr Bowden’s evidence that the consultation with Dr Heiner was rushed and that, therefore, his report should be discounted in some way. On the contrary, the report occupies 10 pages and gives very detailed accounts under the headings “occupational history”, “past history”, “personal history”, “family history”, “physical examination”, “clinical investigations” and “opinion”. The descriptions in Dr Heiner’s report and those of the other medical practitioners broadly reflect the information provided by Mr Bowden in his smoking questionnaire. None of them make reference to increased levels of smoking when Mr Bowden was on watch. Indeed, the report of Dr Heiner describes a level of smoking at less than 20 per day on active service. That does not accord with Mr Bowden’s evidence that he smoked 6 cigarettes per hour for each hour of a 4 hour watch which, based on his reference to a “4 hours on-4 hours off”, was completed on three occasions in a day. On his figures, this would total 72 cigarettes on those days.
28. I have noted Mr Bowden’s contention that he was not relying on smoking as a factor at the time of his initial claim because of the 10 pack year requirement in the now-repealed Statement of Principles. This is correct as he relied on a particular incident of smoke inhalation whilst serving on Quickmatch. However, that does not provide an explanation for what he included in his responses in the questionnaire. Rather than refer to increased smoking on watches, he wrote that he “mainly smoked when having a beer at night”. He declared that the amount he smoked per day did not change after he first started smoking on a regular basis. He also added an extra notation on that questionnaire to the effect that it was completed to the best of his knowledge. I do not accept Mr Bowden’s evidence that the first realisation of an association between smoking and chronic bronchitis and emphysema came from Dr Heiner’s report. Smoking was clearly implicated, in the report dated 21 April 2004, by Dr McKeon which was in evidence when the matter of chronic bronchitis and emphysema was before the Veterans’ Review Board.
29. Mr Bowden’s accounts of his smoking on watch also vary. In a statement, dated 16 April 2005, he referred to “possibly 6 or 7” cigarettes per hour and also to “6, 7 or 8” per hour. In his evidence to the Tribunal, he nominated “5 or 6” per hour” and also “4, 5 or 6” per hour. Having had the benefit of observing Mr Bowden giving his evidence and noting the inconsistencies in the accounts of his smoking levels, I have more than a reasonable doubt about the correctness of his evidence of the level of smoking that he claimed to have undertaken during watches on his service. On the evidence, I find that Mr Bowden smoked approximately 50 cigarettes per week from before he enlisted in the navy and that he continued at that level, on average, for the remainder of his service. I am satisfied beyond reasonable doubt that Mr Bowden did not have a service-related increase in his smoking habit.
30. Even if Mr Bowden’s evidence were to be accepted, there are difficulties in associating his claimed increase in smoking with operational service and in meeting the requirements of the Statement of Principles. In giving reasons for increasing his smoking during watches, Mr Bowden said that it was not due to the effects of any stressful aspect of service. Rather, it was because of the nature of his watch duties in the setting of the availability of low-priced tobacco products and the general acceptability of the smoking habit at those times. Mr Bowden was in the navy for several months before his first period of operational service and he served for more than 8 years. He did not distinguish the nature of his duties while on operational service from those when he carried out watches at other times. This means that his overall service would have relevance to his claimed increased smoking habit while on watch and not just his operational service. The only smoking which could be causally associated with his operational service would be that in which he engaged during watch periods whilst on operational service on the basis that his service would have materially contributed to it: see Kattenberg v Repatriation Commission [2002] FCA 412. The question then would be whether the claimed increase in the level of Mr Bowden’s smoking would have amounted to 5 pack years.
31. The totality of Mr Bowden’s operational service was approximately 388 days, or 9,312 hours. The most frequent of Mr Bowden’s watches occurred whilst on exercises when he was required to take up his position in the sonar control room. He described these watches as taking place on a “four hours on and four hours off” basis. If he spent the entire 388 days performing such watches, he would have spent one-half of his service, or 4,656 hours, in that manner. At the rate of five or six cigarettes per hour, which was his evidence of his increased smoking during those periods, this would amount to a maximum of 27,936 cigarettes. That level of smoking is not sufficient to meet the requirement of the factor in the Statement of Principles. Of course, his evidence was that he spent very much less than the full complement of his operational service in the sonar control room. The time spent in the wheelhouse and in carrying out other watch duties on the ship where Mr Bowden involved watches of less frequency than in the sonar control room and, therefore, his overall increase in consumption would have been significantly less than the 27,936 cigarettes referred to above.
32. Mr Bowden was treated frequently during his service for bronchial problems associated with asthma. He may well have suffered from episodes of acute bronchitis at that time. However, the medical evidence suggests that chronic bronchitis and emphysema did not develop until many years later. The conditions were recognised in 1983 by Dr Clark. She described their “gradual” development. Dr Heiner’s report was also in those terms. Accordingly, I accept the submission that Mr Bowman’s chronic bronchitis and emphysema had its onset in the 1980s. That is in accordance with the time-frame required by the Statement of Principles. However, as Mr Bowman did not have a service-related increase in his smoking habit, I am satisfied beyond reasonable doubt that his chronic bronchitis and emphysema are not war-caused.
Decision
33. The Tribunal affirms the decision under review.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 29 June 2005
Date of Decision 21 July 2005
Counsel for the Applicant Mr E George
Solicitor for the Applicant Sciacca’s Lawyers
For the Respondent Mr B Williams, Departmental Advocate
0
5
0