Carden and Repatriation Commission

[2008] AATA 780

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1783

VETERANS'       APPEALS        DIVISION		)
Re		BARRIE RAYMOND CARDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier C. Ermert, Member

Date2 September 2008

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes the decision that Mr Carden’s conditions of hypertension, ischaemic heart disease, erectile dysfunction, cerebrovascular accident, carotid arterial disease and aortic stenosis are war-caused.  The Tribunal remits the matter to the Respondent for determination of the dates of effect of those conditions and the rate of pension to be paid.

(sgd) Conrad Ermert

Member

VETERANS’ AFFAIRS ‑ operational service - diagnosed conditions – four stages of Deledio reasoning - hypothesis connecting conditions with operational service - Statements of Principles ‑ whether hypothesis fits Statement of Principles – credible or reliable evidence - whether satisfied beyond reasonable doubt that conditions were not war-caused – decision set aside.

Veterans’ Entitlements Act 1986

Benjamin v Repatriation Commission [2001] FCA 1879

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gosewinckel (1999) 59 ALD 690)

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Law (1980) 31 ALR 140

Roncevich v Repatriation Commission (2005) 222 CLR 115

Tunks v Repatriation Commission [2008] FCA 521

REASONS FOR DECISION

2 September 2008 Brigadier C. Ermert, Member

INTRODUCTION

1.      Mr Barrie Carden, the applicant in this case, served in the Royal Australian Navy (RAN) from 1971 to 1977.  His service included operational service in Vietnam as a boiler room and engine room watch keeper on board HMAS Vampire (the Vampire) from 21 November 1972 to 26 November 1972.  His operational service involved his ship escorting HMAS Sydney (the Sydney) into Vung Tau harbour in the Republic of South Vietnam to off-load stores.  The two ships anchored in the harbour while the stores were off-loaded but sailed out to sea during the night as a standard precaution.  The ships completed off-loading of the stores on the second day, after which both ships left Vung Tau and the Vampire proceeded to Singapore.  This was the last trip made by the Sydney to Vung Tau harbour, the last of the Australian fighting troops having been withdrawn in February of that year. 

2.      A moderate smoker and drinker before his operational service, Mr Carden claims that after leaving Vung Tau harbour he started to feel anxiety as a result of the fear that the ship may have been attacked and as a direct consequence his drinking and smoking increased substantially.  He says his heavy smoking habit continued until he suffered a heart attack in 2004.  His heavy alcohol consumption has continued to the present day.

3.      The Repatriation Commission (the Commission) accepted that Mr Carden’s condition of pleural plaques was war-caused.  The Commission granted Mr Carden a disability pension at 80 per cent of the general rate.  He now seeks to have the conditions of hypertension, ischaemic heart disease, cerebrovascular accident, erectile dysfunction, carotid arterial disease and aortic stenosis accepted as war‑caused.

THE HEARING

4.      At the hearing Mr Carden was represented by Mr Larkin of counsel.  He tendered two documents, marked as Exhibits A1 and A2.  The Commission was represented by Ms McCulloch, an advocate with the Department of Veterans’ Affairs and tendered documents marked as Exhibits R1 to R12.  I heard evidence from the applicant.  Against a strong objection from Ms McCulloch, I also heard evidence from Mrs Carden, the wife of the applicant.

5.      The objection was on the grounds that there had been no prior warning of wanting to call Mrs Carden nor was there any form of prior statement by Mrs Carden, depriving the Commission of any opportunity for preparation.  As both parties had forewarned me that there was a question of credibility in regard to the evidence of Mr Carden, I decided that it would be in the best interests of the parties, and in keeping with the Tribunal’s objective to provide a mechanism for review that is fair, just, economical and quick, to hear evidence from the applicant’s wife.  In making that decision I recognised that I would need to take into account the objection raised and weigh the evidence accordingly.

6. I also accepted into evidence a statement by Mr Peter Carden, a brother of the applicant, even though he was not available for cross-examination. Ms McCulloch did not raise an objection to this action. For the Commission, I heard evidence via a telephone link from Captain W Rothwell, RAN (Retired), a military historian with Writeway Research Service Pty Ltd. I had before me the documents provided by the Commission pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents).

THE ISSUES

7.      The first issue to be determined in this case is the diagnoses of the conditions claimed by Mr Carden. 

8.      After determining the correct diagnoses of Mr Carden’s conditions, the substantive issue is whether those conditions are war-caused.

9.      Both parties agreed that, should I find that Mr Carden’s conditions were war‑caused, the matter should be referred back to the Commission for determination of the appropriate rate of disability pension to be paid.

What is the Diagnosis of Mr Carden’s Conditions?

10.     My first task is to determine the diagnoses of Mr Carden’s conditions.  The standard of proof to be applied is to my reasonable satisfaction (Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690). Consistent with these cases, in Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:

…When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act…

11.     The Commission conceded that the diagnoses of Mr Carden’s conditions are ischaemic heart disease, aortic stenosis, erectile dysfunction, carotid arterial disease, cerebrovascular accident and hypertension.

12.     As there is agreement between the parties and there is undisputed medical evidence in support of these diagnoses, I find that the correct diagnoses for Mr Carden’s conditions are ischaemic heart disease, aortic stenosis, erectile dysfunction, carotid arterial disease, cerebrovascular accident and hypertension.

13.     I will now proceed to determine whether these conditions are war-caused.  I will start with hypertension, as the reasoning in the determination of this condition will apply to the other conditions.

Is Mr Carden’s hypertension war-caused?

14.     The question of whether an injury or disease is taken to be war‑caused is covered in section 9 of the Veterans’ Entitlement Act 1986 (the Act).  This section relevantly provides as follows:

(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …

15.     There was no disagreement that Mr Carden’s service in South Vietnam constituted operational service.  Thus the question of whether his hypertension is war‑caused is to be determined by applying sections 120(1) and 120(3) of the Act.  Those sections provide that:

(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.

Note:This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note:   This subsection is affected by section 120A.

16.     Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP.  This follows from s 120A(3), which relevantly provides:

(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

17.     Section 196A of the Act provides for the establishment of the RMA.  Section 196B(2) of the Act provides, in effect, that if the RMA is of the view that:

(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a)operational service rendered by veterans; or

(b)peacekeeping service rendered by members of Peacekeeping Forces; or

(c)hazardous service rendered by members of the Forces; or

…

(e)which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. …

18.     The reference in section 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in section 196B(14) of the Act.  Section 196B(14) provides that:

(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

(a)it resulted from an occurrence that happened while the person was rendering that service; or

(b)it arose out of, or was attributable to, that service; …

19.     The condition of hypertension is the subject of an SoP.  Therefore, I must apply the test prescribed by section 120A(3) of the Act, as explained by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised 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 before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.        The Tribunal must then proceed to consider under s 120(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. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

Step 1 – Does the Material Point to a Hypothesis Connecting Hypertension with Mr Carden’s Operational Service?

20.     Mr Larkin submitted the hypothesis that Mr Carden was so affected by the stresses and anxieties he suffered while his ship was in and near Vung Tau harbour that they caused him to significantly increase his consumption of alcohol to a high level, which he maintains to the present day.  A high level of alcohol consumption over time is accepted as a factor leading to the condition of hypertension. 

21.     Mr Carden’s evidence was that he was a non-drinker prior to enlistment and tasted his first alcohol during leave from recruit school.  He estimated that prior to his service in Vietnam he was drinking on one or two occasions per week and on those occasions was consuming no more than three to four pots of beer.  He said that he did not consume alcohol at sea before his service in Vietnam.  Mr Carden’s recollection is that the ship received its orders to proceed to Vietnam while at sea and immediately sailed to rendezvous with the Sydney.  On the journey to Vietnam he heard stories from his mates about being frightened at being below decks in Vung Tau harbour because the ship might be attacked and anyone below the water line would have little chance of escape.  Mr Carden said that these stories made him fearful when the ship was at anchor in Vung Tau harbour.  His station, while the ship was in harbour, was in the boiler room and on deck as a sentry.  Mr Carden also recalled a lot of helicopter and fighter plane activity and the echo of gunfire from the mainland. 

22.     Mr Carden said that on the journey back to Australia and once the beer issue resumed he started drinking not only his own beer ration but also that of others who were willing to provide it to him.  In his oral evidence he said that by mid-1973 he was drinking every day, binge drinking.  In his statement (Exhibit A1), Mr Carden states that his current consumption of alcohol is approximately one carton of wine, not less than four bottles of wine, one large bottle of rum and 20 to 25 pots of beer per week plus two small cans of beer per day.  He states further that he has been consuming alcohol at approximately the same rate since his service in Vietnam.  Mr Carden relates the increase in his drinking habit to the stress from service in Vietnam and the fear that his ship might be attacked. 

23.     Mrs Carden gave evidence that before they were married in 1975 Mr Carden was drinking on two to three occasions per week.  She said that he drank at home, on his own, until he became legless and that he would drink anything.  His drinking increased over time to become more constant until he was drinking every day. However, Mrs Carden was not able to provide any evidence about Mr Carden’s drinking habits prior to his service in Vietnam. 

24.     I also took into evidence a statement by Mr Peter Carden, the applicant’s brother (Exhibit A2), although he was not subjected to cross-examination.  According to the statement, Mr Peter Carden’s recollection is that the applicant did not have a smoking habit before his enlistment in the RAN, nor did he recall seeing the applicant consume alcohol prior to his enlistment.  However, on the applicant’s return from Vietnam:

… Barrie was drinking alcohol regularly and I believed that he overindulged.  I particularly recall that in addition to beer and other spirits, he also consumed rum.  His consumption of alcohol increased even more over the years.  I also remember that on return from service in Vietnam Barrie was pretty much a chain smoker. 

25.     There is no dispute that Mr Carden was on Vampire in November 1972, during the ship’s trip to Vung Tau harbour.

26.     After considering the evidence, I am satisfied that there is material that points to the hypothesis which connects Mr Carden’s heavy and sustained level of alcohol consumption with his operational service.  High levels of alcohol consumption is a factor related to the onset of hypertension, hence I am satisfied that there is material which points to the hypothesis connecting Mr Carden’s diagnosed condition of hypertension with his operational service.

Step 2 – Is There an SoP in Force?

27.     Instrument Nº 35 of 2003, as amended by Instrument No 3 of 2004 and Instrument No 11 of 2008, deals with hypertension.  Thus, there is in force a relevant SoP determined by the RMA.

Step 3 – Does the Hypothesis Fit the Template of Instrument Nº 11 of 2008?

28.     Before it can be said that a reasonable hypothesis has been raised connecting hypertension with a person’s operational service there must exist one of the factors listed in the relevant SoP.  The case for Mr Carden relies on the existence of the conditions of factor 5(b), as amended, which states:

consuming an average of at least 300 grams of alcohol per week for a continuous period of at least the six months before the clinical onset of hypertension…

29.     The Commission submits that the clinical onset of Mr Carden’s hypertension was in June 1988, as evidenced in the clinical notes of Dr Sowerby (Exhibit R4).  This date is accepted by the applicant. 

30.     There are differing accounts of the quantity of alcohol consumed by Mr Carden however there was no dispute between the parties that Mr Carden’s alcohol consumption exceeded the amount required by the SoP.  The evidence is that this level of alcohol consumption has been maintained since at least 1975 and into the present day.  Thus Mr Carden’s alcohol consumption fits the provisions of factor 5(b) of Instrument No 11 of 2008 which requires a consumption of at least 300 grams a week for a continuous period of six months before June 1988, the clinical onset of his hypertension. 

Step 4 – Was Mr Carden’s Hypertension War-caused?

31.     Mr Larkin’s submission for the applicant was that prior to Mr Carden’s operational service he was a light drinker, consuming alcohol on about one or two occasions a week and drinking not more than four pots of beer on each of those occasions.  Following operational service his drinking increased to the point where he consumed alcohol every day and to excess and that this level of consumption continues to the present day.  Mr Larkin submitted that the increase in drinking is attributable to the stress which Mr Carden endured during his operational service and as a consequence Mr Carden’s increased drinking leading to his hypertension is attributable to his operational service. 

32.     Mr Larkin referred the Tribunal to a decision in Repatriation Commission v Law (1980) 31 ALR 140 (affirmed on appeal to the High Court – 147 CLR 652) in which the Full Court in interpreting the words attributable to in section 8(1)(b) of the Act said:

It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause:  It is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.

33.     Mr Larkin also referred to the majority decision of the High Court in Roncevich v Repatriation Commission (2005) 222 CLR 115 which held that:

A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

34.     In her submissions Ms McCulloch agreed that if the applicant’s increase in alcohol consumption was found to be war-caused then his hypertension would also be war-caused and as a consequence his other claimed conditions would also be accepted as war-caused.  Ms McCulloch submitted, however, that there is no causal connection between Mr Carden’s operational service and his increased levels of alcohol consumption.  Ms McCulloch referred the Tribunal to the differing accounts of Mr Carden’s alcohol consumption as recorded in his Defence Force files, in his appearance at the VRB, in the alcohol questionnaires and in his statement.  Ms McCulloch submitted that Mr Carden’s evidence was not credible as he had a history of being prepared to say anything in order to receive the benefits for which he was applying and that the Tribunal should accept the contemporaneous documentary evidence rather than the statements of the applicant made for the purposes of this hearing.

Evidence on Increase in Alcohol Consumption

35.     Mr Carden’s evidence to the Tribunal in regard to his alcohol consumption is contained in paragraphs 21 and 22 above.  In that evidence Mr Carden states that prior to his service in Vietnam he was drinking on one or two occasions per week and on those occasions was consuming not more than three to four pots of beer.  Mr Carden also states that after his ship departed Vung Tau harbour he started drinking not only his own beer ration but also that of others who were willing to provide it to him and that by mid 1973 he was drinking every day, binge drinking. 

36.     Mrs Carden’s evidence in regard to Mr Carden’s drinking after his service with the RAN was that he drank every day.  However, she had no direct knowledge of Mr Carden’s drinking habits before his operational service. 

37.     Mr Carden’s brother does not recall seeing him consume alcohol prior to his enlistment.  However, he said that on his return from Vietnam he was drinking regularly and overindulged.

38.     The Alcohol Questionnaire dated 9 November 2004 (T7, p55) records that Mr Carden started to drink alcohol in 1971, beer, wine and spirits, in excess of 10 glasses per day.  However, under cross-examination Mr Carden stated that the phrase in excess of 10 day referred to his consumption at the date of filling out the form, not 1971.  Question 6 of the questionnaire asks whether the applicant considers that the alcohol consumption was due to or contributed to by his service.  Mr Carden answered Yes; however, none of the explanations included mention of his service in Vietnam. 

39.     In a history given to Dr Bekal on 7 October 2005 (Exhibit R7) Mr Carden’s onset of alcohol abuse or dependence is shown as 1971 with approximate quantities being consumed each week shown as wine 5L, Beer 12 and spirits 375 mls. 

40.     The Alcohol Questionnaire dated 1 November 2005 (Exhibit R6) has been completed to show that Mr Carden started to drink alcohol after his enlistment in the RAN because of:

…peer group pressure- social gathering & then intrepidation & fear of the future in regards to SVN … Beer Wine spirits … prior to SVN trip 6 glasses or so … in excess of 10 glasses daily after being told we were going to Vietnam. 

Under cross-examination Mr Carden stated that this information was not correct and that it had been entered on the form by his advocate, Mr Clarke. 

41.     In his Alcohol Consumption Statement dated 10 October 2006 (T 23 pp154‑ 156) and submitted to the VRB Mr Carden stated:

I did not drink prior to my admission to the navy but was quickly drawn into the habit once in.  As indicated in my prior questionnaire peer group pressure, constant social gatherings and ease of obtaining alcohol played a big part in my addiction.

As the training was stressful and new to me I also found that I turned to alcohol as a way of relieving stress in the form of self medication.  I quickly increased the amounts when knowledge of my tour to Vietnam was announced to me.

…

On knowing that I was being sent to Vietnam November 1972 my drinking had increased to 10-20 pots of beer a day plus wine or spirits if available.

Under cross-examination Mr Carden said that that statement was not true as the training was not stressful and he did not know he was being sent to Vietnam. 

42.     In his evidence to the VRB (Exhibit R1) Mr Carden said that in 1971 he was drinking about two pots a day.  In October 1972 his drinking had increased to 10 pots of beer a day and probably more; and between then and when he went to Vietnam it increased to up to 20 pots a day and when he came home from Vietnam he was drinking 10 pots a day and wine. 

43.     In reviewing the available evidence I find significant inconsistencies in regard to when Mr Carden started to drink alcohol, when he increased his alcohol consumption and the causal relationship with his levels of drinking.  There is evidence that Mr Carden started to drink prior to entering the RAN, compared with his evidence at this hearing that he was a non-drinker before enlistment and drank for the first time during his recruit training.  Contrary to his evidence at the hearing that prior to his service in Vietnam he was drinking three to four pots of beer on one or two occasions a week, Mr Carden’s earlier evidence is that in 1971 he was drinking beer, wine and spirits in excess of 10 drinks a day and probably more.  Mr Carden’s earlier evidence was that after his service in Vietnam he was drinking 10 pots of beer a day and wine.  This is in contrast to his evidence at the hearing that after Vietnam he was drinking one carton of wine, not less than four bottles of wine, one large bottle of rum and 20 to 25 pots of beer at the hotel per week plus two small cans of beer a day.  In regard to service related factors relating to his drinking, in the Alcohol Questionnaire of 9 November 2004 (T7, p56) Mr Carden stated that his drinking at a rate of 10 drinks a day was due to his service because of high blood pressure, over weight, smoking & drinking contributed to heart problems, confined spaces ‑ fumes – pants (sic) and fuels contributed to heart problems asbestosis accepted disability.  In contrast Mr Carden’s evidence at the hearing was that he started drinking heavily as a result of the stress he endured during his operational service in Vietnam. 

44.     When questioned at the hearing about the differing accounts of his smoking and drinking given on different occasions and times, Mr Carden stated that he would tell the doctors what they wanted to hear.  In regard to his earlier smoking questionnaire in support of his asbestos claim Mr Carden said he gave no thought to the statement he made, as it was a mongrel of a form and it had nothing to do with asbestos.  He admitted that quite often he told the truth but sometimes did not.  In regard to his evidence to the VRB Mr Carden agreed that he had corrected some of the material before the Board but not all.  His explanation was that the material had been prepared by his advocate, and that he, Mr Carden, should not have signed the incorrect statements but he did so because he did not want to make his advocate appear a dill.  Mr Carden stated that he had corrected all the material in his statement made for this hearing (Exhibit A1).

45.     In regard to Mr Carden’s experience during his ship’s visit to Vung Tau harbour, the evidence of Captain Rothwell RAN (Retired) is that the environment in Vung Tau at the time was peaceful, the Australian troops had already been withdrawn, the American troops had stopped fighting and that the purpose of the trip by HMAS Sydney was to deliver stores to the South Vietnamese forces.  Captain Rothwell said that there were no records of any significant incidents.  Mr Carden’s evidence was that he saw a lot of war-like activity but he agreed that no incidents actually occurred.  Mr Carden stated that, nevertheless, he felt afraid.

46.     Again in this case the effect on Mr Carden of his feelings of fear and the resulting stress are a matter for the credibility of the evidence given by Mr Carden.  The lack of records of war-like incidents is not definitive in determining the effects of the circumstances on the veteran.  However, Mr Carden’s record of altering his histories to suit the circumstance casts a significant doubt in my mind over the credibility of his evidence that he suffered stress from his operational experience.

47.     Mr Larkin conceded that sometimes his client did not give correct information but insisted that mostly he did.  Mr Larkin also submitted that the credibility of Mr Carden’s evidence would be a critical issue affecting the decision. 

48.     Ms McCulloch submitted that Mr Carden had a long record of being selective with the truth in order to suit the required outcome.  She submitted that Mr Carden had not even provided accurate histories to his treating doctors because he did not want to be nagged by them and that he preferred to say what was required to obtain the benefits he sought. 

49.     The evidence available to me supports Ms McCulloch’s submission that Mr Carden’s evidence is not credible and that he has a record of providing different versions of his history to achieve his preferred outcomes. 

50.     In considering the inconsistencies in and the credibility of Mr Carden’s evidence I have referred to a recent decision of the Federal Court in the matter of Tunks v Repatriation Commission [2008] FCA 521. In that case Madgwick J, following the reasoning in Byrnes v Repatriation Commission (1993) 1777 CLR 564, held that an applicant will only fail at Step 4 of the Deledio test if the Commission is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof that a fact relied upon in support is not true, or by proof of an inconsistent fact. 

51.     Although I have reservations regarding the credibility of Mr Carden’s evidence I do not have proof that the facts relied on by Mr Carden are not true, nor do I have proof of an inconsistent fact.  Without such proof, I must abide by the reasoning in Byrne as followed in Tunks, and in spite of my reservations, I find that I can not be satisfied beyond reasonable doubt that the factual foundation of the hypothesis in this case has been disproved.

52.     Accordingly I must find that Mr Carden’s condition of hypertension is war‑caused.

Consideration of other conditions

53.     In her final submissions Ms McCulloch conceded that if the Tribunal found that Mr Carden’s levels of alcohol consumption were war-caused then the condition of hypertension would also be war-caused, as would the other conditions claimed by Mr Carden.  Before accepting that concession, I will consider the Mr Carden’s condition of ischaemic heart disease.

Is Mr Carden’s Ischaemic Heart Disease war-caused?

Step 1 – Does the Material Point to a Hypothesis Connecting Ischaemic Heart Disease with Mr Carden’s Operational Service?

54.     Mr Larkin submits a similar hypothesis connecting ischaemic heart disease with Mr Carden’s operational service to that which he submitted connected Mr Carden’s hypertension with his operational service; namely that, the stresses and anxieties he suffered while his ship was in and near Vung Tau harbour caused Mr Carden to significantly increase his cigarette smoking to about 30 to 35 cigarettes a day and that it was a causal factor in his ischaemic heart disease.  As with the hypothesis on Mr Carden’s hypertension, I find there is material pointing to the hypothesis connecting Mr Carden’s ischaemic heart disease with his operational service.

Step 2 – Is There an SoP in Force?

55.     The SoP dealing with Ischaemic Heart Disease is Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, and Instrument No 89 of 2007.  Thus, there is in force a relevant SoP determined by the RMA.

Step 3 – Does the Hypothesis Fit the Template of the SoP?

56.     The report by Dr Strickland dated 31 December 2007 (Ex R4, p96) records a history of the onset of symptoms of ischaemic heart disease three years prior to the consultation.  Both parties accept December 2004 as being the date of clinical onset of Mr Carden’s ischaemic heart disease; and I find accordingly.

57.     Factor 6(g) of Instrument No 89 of 2007 provides for a number of variations of the quantity of tobacco smoked relative to the date of clinical onset, where smoking has ceased prior to the date of clinical onset.  Factor 6(h) provides for two circumstances of the quantity of tobacco smoked before clinical onset where smoking has not ceased prior to clinical onset of ischaemic heart disease.  Mr Carden’s evidence was that he smoked just less than two packets per day from the time of his service in Vietnam until his heart attack in 2004.  Although there is dispute between the parties regarding the causal relationship between Mr Carden’s levels of smoking and his operational service, the quantity smoked was not disputed.  Smoking at a rate of just under two packs a day for the period from November 1972 to December 2004 meets the criteria in each of factors 6(g) and 6(h) of Instrument No 89 of 2007.  Hence, I find that the hypothesis does fit the template of the relevant SoP.

Step 4 – Was Mr Carden’s Ischaemic Heart Disease War-caused?

58.     The key issue is the determination of whether there was an increase in Mr Carden’s smoking and whether this was due to his operational service.

59.     As with his evidence on alcohol, Mr Carden has given varying accounts of the levels of his smoking over time:

·The Department of Navy Psychology Branch Record Sheet dated 4 November 1970 (Ex R3) shows Mr Carden as smoking 15 cigarettes per day and drinking very lightly.

·In a history dated 4 April 1995 (Ex R4, p52) Dr Strickland recorded Mr Carden as an ex-smoker.

·The smoking questionnaire signed by Mr Carden on 14 October 1996 (Ex R8) records that Mr Carden first started smoking regularly in 1971 at a rate of 20 a day because on board ships they were cheap and smoking was the done thing.  It also records that Mr Carden stopped smoking in 1994. 

·In a further history taken by Dr Strickland dated 31 December 1997 Mr Carden is recorded as having been a smoker for 24 years stopping 3 or 4 years ago.”

·A report by Dr Spring dated 16 February 1998 (Ex R4, p93) records Mr Carden as smoking twenty cigarettes a day from the ages of 18 to 40 years, which indicates that he started smoking in 1970 and stopped smoking in 1992.

·In a history recorded by Dr Donald Moss dated 1 July 1988 (Ex R4, p103) Mr Carden is recorded as stopping smoking 4 weeks ago. 

·In a history given to Dr Hart in his report dated 25 February 1999 (Ex R4, p95)Mr Carden is recorded as having smoked from the age of 18 until age 41, which would have been in 1993.

·In a history given to Dr Hurley in his report dated 6 September 2004 (Ex R4, p81) Mr Carden is shown as being an ex-smoker. 

·Clinical notes of Dr Sowerby dated 4 April 2006 (Ex R4) record Mr Carden as an ex-smoker with a quit date of 4 April 2004.

·In a statement signed on 10 October 2006 and considered by the VRB (T53, p152-153) Mr Carden stated that he ceased smoking in 1994.  At the hearing before the VRB Mr Carden retracted that statement and said that he did not stop smoking until the occurrence of his heart attack in 2004.

·Dr Gutman (Ex R4, p87) shows Mr Carden as being a smoker as at 14 July 2007.

60.     In Exhibit A1 Mr Carden stated that he was a non-smoker prior to enlistment, that he started smoking after recruit school to a level of about 10 cigarettes a day and following his service in Vietnam his smoking increased to about 30 to 35 per day.  He affirmed this evidence at the hearing.  This evidence is supported by Exhibit A2 in which Mr Peter Carden recalls that his brother was a non-smoker before enlistment but on return from service in Vietnam he was pretty much a chain smoker. 

61.     At the hearing Mr Carden gave evidence that his smoking increased with the increase in his drinking as a direct result of the stress and fear for his life he experienced while his ship was in Vung Tau harbour. 

62.     Once again, although there are inconsistencies in his evidence and I have the same reservation as to the credibility of his evidence, I do not have proof that a fact relied upon is not true, nor do I have proof of an inconsistent fact.  I have an absence of reliable evidence that supports the fact that Mr Carden increased his smoking as a result of the stresses resulting from his operational service in Vietnam. 

63.     In his judgement in Tunks, Madgwick J held that an absence of reliable evidence cannot be a sufficient basis for being satisfied beyond reasonable doubt that a fact is not true.  As with the question of his alcohol consumption, in spite of my reservations over Mr Carden’s evidence, and following the reasoning in Tunks I must find that I cannot be reasonably satisfied that Mr Carden did not increase his smoking to the stated levels as a result of his operational service in Vietnam.  Accordingly, I must find that Mr Carden’s condition of ischaemic heart disease is war-caused.

Other Conditions

64.     The SoP for the other claimed conditions of cerebrovascular accident, erectile dysfunction, carotid arterial disease and aortic stenosis all contain factors relating to smoking, consumption of alcohol, or the existence of conditions of hypertension or ischaemic heart disease.  As I have found that the levels of smoking and drinking were sufficient to meet the provisions of the factors for hypertension and ischaemic heart disease and that the conditions of hypertension and ischaemic heart disease were war-caused, I will not proceed to consider further the other claimed conditions.  I will accept the Commission’s concession that if hypertension were found to be war‑caused, then the Commission would accept that all the other claimed conditions were also war-caused, and I find accordingly.

CONCLUSION

65.     From the evidence available to me and applying the reasoning adopted in Deledio, I cannot be satisfied beyond reasonable doubt that Mr Carden’s conditions of hypertension, ischaemic heart disease, cerebrovascular accident, erectile dysfunction, carotid arterial disease and aortic stenosis are not war-caused.  As a result Mr Carden’s application to have his conditions accepted as war-caused is successful.

66.     Mr Larkin submitted that the date of effect for the acceptance of the war causation for the conditions of ischaemic heart disease and erectile dysfunction should be determined as 26 July 2004 and that for the conditions of cerebrovascular accident, carotid arterial disease and aortic stenosis should be determined as 19 August 2004.  There were no submissions from the Commission in regard to these dates of effect.  I will therefore remit the decision to the Commission for determination of the effective dates, having regard to my findings that the conditions were war-caused.

67.     Accepting the submissions of both parties, I will also remit the decision to the Commission for a determination of the applicable rate of pension to be paid as a result of my finding that the claimed conditions were war-caused.

DECISION

68.     The Tribunal sets aside the decision under review and substitutes the decision that Mr Carden’s conditions of hypertension, ischaemic heart disease, erectile dysfunction, cerebrovascular accident, carotid arterial disease and aortic stenosis are war-caused.  The Tribunal remits the matter to the Commission for determination of the dates of effect of those conditions and the rate of pension to be paid.

I certify that the sixty-eight [68] preceding paragraphs are a true copy of the reasons for the decision herein of

Brigadier C. Ermert, Member

(sgd)     Olympia Sarrinikolaou

Clerk

Date of Hearing:  5 June 2008

Date of Decision:  2 September 2008
Counsel for the applicant:            Mr A Larkin
Solicitor for the applicant             Williams Winter Solicitors
Counsel for the respondent:        Ms J McCulloch
Solicitor for the respondent:        Department of Veterans’ Affairs