Chasemore and Repatriation Commission
[2005] AATA 754
•8 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 754
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1382
VETERANS’ APPEALS DIVISION
Re: NEIL GRAHAM CHASEMORE
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 8 August 2005
Place: Melbourne
Decision:The Tribunal sets aside the decisions under review and in substitution decides that:
1.the applicant's psoriasis and psoriatic arthropathy are war‑caused;
2.the applicant's psychiatric condition is an adjustment disorder with depression and anxiety, and is war‑caused;
3.the applicant's ischaemic heart disease is war‑caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 and, as to the condition of quadrantanopia, it was a complication of the ischaemic heart disease, this also is war‑caused; and
4.the matter is remitted to the respondent for the assessment of the rate of pension payable to the applicant and as to whether the applicant qualifies for special rate. This estimation of pension payable should be dealt with most expeditiously given the applicant's current state of health.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – psychiatric disorder – severe stressor – alcohol abuse – use of beta‑blockers – psoriasis and psoriatic arthropathy – smoking in response to severe stressor – ischaemic heart disease with myocardial infarction – latter complicated by quadrantanopia – psychiatric disorder, psoriasis and psoriatic arthropathy conceded by the respondent after further expert medical opinion obtained – decision set aside and all claimed conditions (alcohol abuse having been withdrawn) determined to be service‑caused
Veterans’ Entitlements Act 1986
Statement of Principles
Instrument № 28 of 1998 concerning psoriatic arthropathy
Instrument № 4 of 1999 as amended by № 55 of 1999
concerning post traumatic stress disorder
Instrument № 39 of 1999 concerning ischaemic heart disease
Instrument № 57 of 2002 concerning psoriasis
Repatriation Commission v Keeley (2000) 98 FCR 108
Smith v Repatriation Commission (1987) 12 ALD 798
Repatriation Commission v Law (1980) 31 ALR 140
Woodward v Repatriation Commission (2003) 75 ALD 420
Stoddart v Repatriation Commission (2003) 74 ALD 366Delahunty and Repatriation Commission (2004) 38 AAR 511
REASONS FOR DECISION
8 August 2005 Miss E.A. Shanahan, Member
1. This is an application by Neil Graham Chasemore for review of three decisions made by delegates of the Repatriation Commission (the respondent). On 7 June 2002 a delegate refused the applicant's claim for ischaemic heart disease, cerebral ischaemia and psoriatic arthropathy as not being service‑related; on 2 January 2003 another delegate denied liability for the fracture of the right scaphoid, post traumatic stress disorder (PTSD) and alcohol abuse; and on 24 July 2003 yet another delegate denied the applicant's claim for psoriasis as not being service‑related. The decisions of the primary delegates were reviewed by the Veterans’ Review Board (the VRB) on 27 November 2003. The VRB consented to the withdrawal of the application for review of the decision concerning the right scaphoid fracture; varied the diagnosis of cerebral ischaemia to quadrantanopia; and otherwise affirmed all the decisions on the basis that the conditions were not service‑caused. On 22 December 2003 Mr Chasemore sought review of the VRB decision by the Administrative Appeals Tribunal.
2. The respondent has conceded that the applicant’s psoriasis and psoriatic arthropathy are war-caused. The parties agreed that the applicant's psychiatric condition is an adjustment disorder with depression and anxiety and the respondent conceded that this condition is war‑caused. The applicant withdrew his claim for alcohol abuse. Therefore, the remaining issue before the Tribunal is whether ischaemic heart disease and quadrantanopia are defence‑caused within the meaning of s 70 of the Veterans' Entitlements Act 1986 (the Act). Mr Chasemore has the accepted disability of bilateral sensorineural hearing loss. He is in receipt of a disability pension at 40 per cent of the general rate.
3. The hearing was conducted over two days with a lengthy interval between. On the first day of hearing, 19 November 2004, the applicant was represented by Mr G. Chancellor of counsel, instructed by Williams Winter, solicitors. The respondent was represented by Mr G. Purcell of counsel, instructed by the respondent. On the second day of hearing the respondent was represented by Mr K. Hermann, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T‑documents), which were assigned the notation of Exhibit R1. On the first hearing day The parties tendered the following documents
Statement of Neil Graham Chasemore dated 18 December 2003 Exhibit A1
Statement of Kevin William Beasley dated 27 August 2004 Exhibit A2
Statement of Ronald Thomas Inverarity dated 12 August 2004 Exhibit A3Statement of Facts and Contentions dated 9 August 2004, and
attached Statements of Principles Exhibit R2
Applicant's personal service documents from the Australian Army
dated 5 February 2004 Exhibit R3
Report by Dr John Essex-Clark of Writeway Research Service
dated 16 August 2004 Exhibit R4
The applicant's psychological record under cover of letter
dated 12 February 2004 Exhibit R5
Applicant's LMO clinical history by Dr J. Barrel numbered 1 to 149
received on 12 February 2004 Exhibit R6
Dr C. Pilgrim's copies of communications between referred
Specialists and Dr Pilgrim Exhibit R7
Dr Pilgrim's clinical notes numbered 1 to 101 Exhibit R8
The parties tendered the following documents at the resumed hearing on 27 June 2005:
Statement of Leonard Francis Smith dated 18 January 2005 Exhibit A4
Report of Dr S. Gilmore dated 11 March 2005 Exhibit A5Supplementary report of Dr S. Gilmore dated 12 May 2005 Exhibit A6
Report of Dr J. Brennan dated 6 June 2005 Exhibit R9
The applicant, Dr Carol Newlands and Mr Kevin Besley gave evidence before the Tribunal. Dr Newlands' evidence was aborted because of telecommunication problems.
4. Mr Chasemore joined the Special Air Service (SAS) unit of the Australian Army (the army) on 7 April 1972, having previously served in the Citizen Military Force (the CMF) from 16 May 1965. He continued to serve in the SAS until his discharge on 23 December 1975. He has no operational service but he does have eligible service. He was aware that his background in the CMF, transposed to the SAS, was regarded as somewhat inferior, given that most SAS servicemen were Vietnam veterans.
5. Mr Chasemore completed his SAS training successfully. In about February 1973, after being involved in a training incident involving a Zodiac boat (the Zodiac), a Captain Morgan was injured when he was thrown overboard and subsequently struck by the propellers of the Zodiac (the Zodiac incident). Captain Morgan had sustained a major laceration to his leg with substantial bleeding. Mr Chasemore relies upon the Zodiac incident as the stressor which, he argues, caused his psychiatric disorder. Mr Chasemore said that immediately after the Zodiac incident he was offered a cigarette to calm his nerves and at that time he commenced what was to become a longstanding smoking habit. Following the Zodiac incident he also commenced drinking on a regular basis, having been only a social drinker prior to his enlistment in the SAS. He said his smoking and drinking escalated over a period of years. Mr Chasemore stated that he became anxious and depressed following the Zodiac incident, but managed to resume civilian life after he left the army in 1975. He worked in a variety of occupations until he ceased work in 1998 because of existing psoriatic arthritis.
6. Mr Chasemore was first noted to have a rash in both groins on 19 June 1972 during the period of his eligible service. This was diagnosed at the time as being tinea, but this diagnosis was not confirmed by any investigation. In 1992, he was diagnosed as having psoriasis of the arms and legs; and this was confirmed by a biopsy in 1996. He subsequently developed an arthropathy which was attributed to psoriatic arthropathy in September 1998 and it was this condition that forced him to cease work.
7. On 13 April 2001 Mr Chasemore suffered a myocardial infarct and in May 2001 he underwent coronary angiography and stenting of his stenosed coronary arteries.
8. Mr Chasemore contended that his psychiatric disorder (whether PTSD, as diagnosed by Dr Newlands; or an adjustment disorder with anxiety and depression, as diagnosed by Dr Don Senadipathy), his cigarette smoking habit and his alcohol abuse were all attributable to the severe stressor he suffered in 1973, namely the Zodiac incident. He contended that his claim for ischaemic heart disease was based on his long history of smoking, which was precipitated by the Zodiac incident and his psoriasis by his psychiatric condition, anxiety and stress that he suffered.
EVIDENCE BEFORE THE TRIBUNAL
Neil Graham Chasemore
9. Mr Chasemore adopted his statement of 18 December 2003 as true and correct in all its details and in his examination‑in‑chief expanded on the contents of that statement.
10. Given that the respondent and the applicant some eight months later agreed to the diagnosis of adjustment disorder with depression and anxiety caused by the Zodiac incident and to the diagnosis of psoriasis and psoriatic arthritis being service‑caused, the Tribunal has précised Mr Chasemore's evidence to reflect those areas remaining in dispute, but also to provide the basis for the concessions by the Repatriation Commission.
11. Mr Chasemore confirmed his years of service in the army and the Zodiac incident in 1973 and his reaction to that incident. As Mr Chasemore elected not to pursue the claim for alcohol abuse, the evidence given regarding this condition is not longer relevant. Mr Chasemore confirmed that in June 1972 he was diagnosed with bilateral groin rashes which were attributed to tinea, but no investigations were performed to confirm this diagnosis. In 1992 his general practitioner Dr Barrell had made a provisional diagnosis of psoriasis involving the legs and arms; and this was confirmed by biopsy in 1996. In about 1998 Mr Chasemore developed widespread arthritis which was diagnosed as psoriatic arthropathy.
12. In relation to his smoking history, Mr Chasemore stated that he had his first cigarette after the Zodiac incident when he was anxious and upset. He said he was offered a cigarette by Captain Leonard Smith in order to "calm his nerves". This was confirmed by Mr Smith in his statement dated 18 January 2005 (Exhibit A4). Mr Chasemore gave evidence that, having had this cigarette, he continued to smoke and, by the end of 1973, he was smoking 1 packet of 40 cigarettes per day. In the early 1990s he was advised by his general practitioner to stop or to reduce his cigarette smoking. He did so to the point of smoking 100 cigarettes per week, instead of 250 cigarettes per week. In 1989 his father‑in‑law had come to live with him and, as he suffered from emphysema, Mr Chasemore ceased smoking in the house which reduced his cigarette usage. His father‑in‑law died in 1996 and, as a New Year resolution in 1997, Mr Chasemore ceased smoking. Mr Chasemore justified his smoking habit on the basis that he found that it did not affect his physical fitness; he enjoyed smoking and therefore continued; that he wanted to smoke; it was something to do; and it was a small way of getting out of some detail duties, as regular smoko periods were assigned. He also found that smoking cigarettes was relaxing and enjoyable.
13. Mr Chasemore described his groin rashes in 1972; his continuing dermatological problems, which were diagnosed in 1992 as psoriasis, and psoriatic arthropathy, which was confirmed in 1998. He outlined his current treatment.
14. In cross‑examination Mr Chasemore confirmed that he commenced smoking in 1973 after the Zodiac incident and not in December 1971, as entered on his smoking questionnaire for the Department of Veterans' Affairs. He stated that he had provided information to his veterans' affairs advocate, but had not filled out the form himself and had neglected to check the dates. He explained that December 1971 was the date he joined the permanent forces, but not the date he started smoking.
15. At the completion of his evidence the Tribunal posed several questions, in particular those relating to the condition of psoriasis. While the applicant had claimed his psoriasis was due to his anxiety and depression, the Tribunal had noted that the Statement of Principles (SoP) 57 of 2002 concerning psoriasis, at factor 5(b), stated that "…psoriasis or death from psoriasis is connected with the circumstances of a person's relevant service are…(b) undergoing treatment with a drug from the specified list at the time of the clinical onset of psoriasis"; and that under factor 8 provides:
"a drug from the specified list" means:
(i)…
(ii)a betablocker;
(iii)…
(iv)…
(v)…
The Tribunal had noted that, in his earlier application to the Repatriation Commission, the applicant had listed under past treatment the use of beta‑blockers. The Tribunal therefore sought to elucidate his medication history. In his original application Mr Chasemore had stated that he had been using beta‑blockers as a performance enhancing drug during his SAS training. Mr Chasemore confirmed that this was the case and that the beta‑blockers were used for those servicemen undergoing a sniper's course, in order to control the heartbeat, i.e. slow the heart rate, so that they could fire between heartbeats. Mr Chasemore stated that he was a first class marksman and could hit targets up to 1000 metres. As a marksman, he was required to undertake 3‑monthly retraining, and during these periods, he was given beta‑blockers, probably in the form of Inderal, dose unknown, for a total period of 2½ years, albeit intermittently and probably in the range of 5 tablets over a period of 10 days. Beta‑blocker medication was provided by the unit doctor, although painkillers, such as Panadeine Forte and antihistamines such as Sudafed, were readily available without a doctor's prescription.
16. As neither the applicant nor the respondent had considered the role of beta‑blockers in the applicant's development of psoriasis and psoriatic arthropathy, at the completion of the hearing the Tribunal directed that further expert opinion should be obtained on this possible aetiological connection.
Dr Carol Newlands, psychiatrist
17. Dr Newlands had provided a lengthy report dated 14 October 2002 in which she had diagnosed PTSD secondary to the Zodiac incident. It had been intended to take Dr Newlands' evidence by telephone, but due to telecommunication difficulties her evidence was aborted after 15 minutes. Prior to the loss of communication, Dr Newlands had confirmed her diagnosis of PTSD and that she had prescribed the anti‑depressant Zoloft. It was intended to arrange a further teleconference to obtain the rest of Dr Newlands' evidence, but given the respondent's concessions, this subsequently became unnecessary.
Mr Kevin William Beasley
18. Mr Beasley had provided a statement dated 27 August 2004 (Exhibit A2) which he confirmed to be true and correct in all details. Mr Beasley had served with Mr Chasemore until the end of 1972 and gave evidence that at that time Mr Chasemore was a non‑smoker and only drank alcohol socially. When he next saw Mr Chasemore in 1974, he noted that Mr Chasemore was smoking heavily and drinking excessively. To Mr Beasley's knowledge, Mr Chasemore continued to smoke until the mid‑1990s, which he described as 1996, 1997, 1998. In cross‑examination Mr Beasley confirmed that he was strongly opposed to smoking and that on his estimation probably one per cent of the 260-member army unit were smoking in the period in which he was in service.
Further Evidence
19. Prior to the resumed hearing, the parties sought and obtained expert evidence relating to the ingestion of beta‑blockers in the development of psoriasis and psoriatic arthropathy. Mr Chasemore's treating dermatologist, Dr Gilmore, confirmed that beta‑blockers could trigger the development of psoriasis, or at least aggravate this condition. Ongoing stress was also a contributing factor (Exhibit A5). Dr Gilmore also opined that Mr Chasemore's groin rash, which was in 1972 termed tinea curis, but was not documented by laboratory testing, was most probably due to flexural psoriasis. The respondent's expert, Dr J. Brennan, dermatologist, was of the same opinion (Exhibit R9). Dr Brennan stated that the use of beta‑blockers can cause psoriasis and associated psoriatic rash and that, even a small dose of beta‑blocker may be a precipitating factor with respect to psoriasis. As it is accepted that Mr Chasemore suffers from psoriasis and his psoriatic arthropathy, the respondent conceded these conditions should also be service‑related.
Documentary Evidence
20. The vast majority of the documentary evidence became irrelevant after the respondent's concessions. Thus the Tribunal has confined comment to the evidence relating to Mr Chasemore's ischaemic heart disease. Mr Chasemore's claim that his ischaemic heart disease is service‑related is based on his smoking history. The parties agreed that the relevant SoP was Instrument 49 of 1999 concerning ischaemic heart disease, and in particular, factor 5(e)(i) and (ii). It is noted that the VRB's decision had considered Instrument 54 of 2000 concerning ischaemic heart disease as the relevant SoP based on the authority of Repatriation Commission v Keeley. The parties agreed that the 1999 SoP was the applicable Instrument in this matter.
21. A smoking questionnaire had been completed on Mr Chasemore's behalf on 11 April 2002. This declared that Mr Chasemore commenced smoking in December 1971 and that he had been smoking 20 cigarettes per day until 1975, when his smoking increased to 40 to 50 cigarettes per day. (The Tribunal notes that in his evidence before the Tribunal Mr Chasemore said December 1971 was the time when he joined the SAS and not when he started smoking and that the form had been completed by a Mr Brady, and he had signed it but without checking it in detail.)
Mr Chasemore's Statement dated 18 December 2003 (Exhibit A1)
22. In his statement Mr Chasemore declared that he started smoking after the Zodiac incident in February 1973, and smoked at the rate of 20 to 25 cigarettes per day until 1975. After the occurrence of family‑related problems, his cigarette consumption increased to 50 cigarettes per day. He reduced his smoking to 20 per day in about 1989 when his father‑in‑law came to live with him and his wife. Mr Chasemore's father‑in‑law was suffering from emphysema. Mr Chasemore declared that he stopped smoking on 1 January 1997 as part of a New Year's resolution, which was influenced by the death of his father‑in‑law in 1996. In his statement Mr Chasemore had also dated his heart attack as occurring in April 2000, although it is well‑documented that it occurred in April 2001. Mr Chasemore explained his confusion in respect of dates as being a consequence of his current chemotherapy treatment from multiple myeloma and his high dose medication for depression.
Statement of Mr Ronald Inverarity dated 12 August 2004 (Exhibit A3)
23. Mr Inverarity has known Mr Chasemore since 1990 and he was aware that Mr Chasemore was smoking regularly. Mr Inverarity had himself ceased smoking on 1 January 1987, after making a New Year's resolution to do so. Mr Inverarity confirmed that he had a conversation with Mr Chasemore on 1 January 1997, during which Mr Chasemore informed him that he had, or was in the process of giving up, smoking.
Statement of Mr Kevin William Beasley dated 27 August 2004 (Exhibit A2)
24. Mr Beasley had served with Mr Chasemore in the army from approximately 1967 to 1972. During that period, Mr Chasemore had never smoked. Mr Beasley and Mr Chasemore had remained friends throughout the years and Mr Beasley is godfather to the Chasemore children. To Mr Beasley's recollection, Mr Chasemore was still smoking in the mid‑1990s.
Statement of Mr Leonard Francis Smith dated 18 January 2005 (Exhibit A4)
25. Mr Smith had served in the army from 1969 to 1989 and retired holding the rank of Captain. He had known Mr Chasemore since July 1966. In his statement Mr Smith described the Zodiac incident in detail and also stated that, after Captain Morgan had been removed from the beach, he had offered Mr Chasemore a cigarette with the recommendation that it would settle his nerves and would make him feel better. To Mr Smith's knowledge this was the first time he had seen Mr Chasemore smoke a cigarette and he was aware that after that time Mr Chasemore became a moderately heavy and regular smoker.
Report of Dr Martin Sebastian, cardiologist (T39)
26. Dr Sebastian provided the Department of Veterans' Affairs with a report dated 13 May 2003 regarding Mr Chasemore's ischaemic heart disease. Dr Sebastian was the treating cardiologist. In his report he confirmed that Mr Chasemore's myocardial infarct and ischaemic chest pain had been confirmed by angiography at St Vincent's Hospital on 30 April 2001, when he underwent angiography and stenting of the left anterior descending coronary artery.
27. Dr Sebastian described Mr Chasemore's risk factors, which included cigarette smoking. Dr Sebastian had obtained a history that Mr Chasemore commenced smoking in 1973 and ceased at the beginning of 1997.
Medical Discharge Summary from Ballarat Regional Hospital
28. This discharge summary confirms that Mr Chasemore was admitted to hospital on 13 April 2001 with prolonged chest pain and he was diagnosed as having suffered an anterior myocardial infarct. He remained in hospital until 20 April 2001 at which time he was discharged home with arrangements made for further investigation in the form of coronary angiography at St Vincent's Hospital.
RELEVANT LEGISLATION
29. Section 120(4) of the Act provides:
120(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
As Mr Chasemore's applications were lodged after 1 June 1994, s 120(b) is also attracted.
30. The parties agree that the relevant SoP is Instrument № 39 of 1999 concerning ischaemic heart disease. Based on the authority of Smith v Repatriation Commission (1987) 12 ALD 798 the standard of proof is the normal civil standard, that is on the balance of probabilities.
SUBMISSIONS
31. Having resolved the vast majority of Mr Chasemore's claimed conditions by concession and agreement, the parties limited their submissions to the question of ischaemic heart disease being service‑related. They agreed that Mr Chasemore met the requirements of the relevant SoP factor 5(e)(ii).
The Applicant
32. Mr Chancellor submitted that despite some discrepancies in dates, the evidence before the Tribunal, as opposed to the documentary evidence in the T‑documents, confirmed Mr Chasemore's evidence that he commenced smoking after the Zodiac incident and ceased smoking on 1 January 1997. His myocardial infarct, demonstrating a presence of ischaemic heart disease, occurred on 13 April 2001. Mr Chasemore's evidence had been that he commenced smoking immediately after the Zodiac incident and continued for a variety of reasons. While there may have been other factors such as family problems at the time that resulted in Mr Chasemore continuing to smoke, the applicant relied upon Repatriation Commission v Law (1980) 31 ALR 140 wherein it was determined that service did not have to be the sole cause.
The Respondent
33. Mr Herman pointed out the discrepancies between the questionnaire completed in 2002 and subsequent evidence; although he acknowledged that the questionnaire had been filled out by a veterans' representative and not the applicant. Mr Herman submitted that Mr Chasemore's performance in the SAS indicated, by the reports and Exhibit R3, that he performed well and that he did not display any sign of anxiety. Overall, he contended that Mr Chasemore's smoking was purely a matter of personal choice and, given the inconsistencies in evidence, including the evidence before the VRB, it could not be said that Mr Chasemore's army service was the cause of him commencing smoking.
THE TRIBUNAL'S DELIBERATIONS
34. On the evidence before it, the Tribunal decides that Mr Chasemore commenced smoking after the Zodiac incident and continued to smoke until 1 January 1997. Between 1973 and 1975 he smoked 20 to 25 cigarettes per day, and from 1975 to 1989 he smoked 50 cigarettes per day. He then reduced his cigarette intake to 20 cigarettes per day when his father‑in‑law, who suffered from emphysema, came to live with Mr Chasemore and his wife. The Tribunal notes the discrepancy regarding the smoking history, but also notes that Mr Chasemore has been unable to recall exactly when he had his myocardial infarct within varying dates from 2000 to 2002. He has attributed his poor recollection to his psychiatric condition and also to the development over the past two plus years of multiple myeloma for which he is undergoing chemotherapy and is on extensive medication. The Tribunal relies on the evidence Mr Inverarity, Mr Smith and Mr Beasley, all of which support the contention that he commenced smoking in 1973 and ceased in 1997.
35. The requirements of factor 5(e)(ii) are met and there is no disagreement on this point. The Tribunal finds on the balance of probabilities Mr Chasemore's ischaemic heart disease and the complication of quadrianopia that followed his myocardial infarct, are service‑related.
36. The Tribunal remits the matter to the respondent to determine the level of disability pension payable and also assess whether the special rate is attracted.
I certify that the thirty‑six [36] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDates of Hearing: 19 November 2004
27 June 2005
Date of Decision: 8 August 2005
Counsel for the applicant: Mr G. Chancellor
Solicitor for the applicant: Williams Winter
Counsel for the respondent: Mr G. Purcell
Advocate for the respondent: Mr K. Herman, Advocacy Section,
Department of Veterans' Affairs
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