Creber and Repatriation Commission

[2008] AATA 807

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 807

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/0058

VETERANS' APPEALS DIVISION		)
Re		RONALD CREBER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member and
Dr G J Maynard, Brigadier (Rtd), Member

Date11 September 2008

PlaceBrisbane

Decision

The Tribunal finds as follows:

(1)      That the claim for alcohol abuse is not satisfied. That decision under review is affirmed.

(2)      The decision under review pertaining to chronic obstructive airways disease is set aside and the Tribunal substitutes a decision that Mr Creber has chronic obstructive airways disease which is attributable to operational service.  

...............[Sgd]...............................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – applicant had operational service in Vietnam – applicant suffers from alcohol abuse – whether alcohol abuse is war-caused – no medical evidence and no severe stressor – applicant suffers from chronic obstructive airways disease – whether chronic obstructive airways disease is war-caused – application of relevant statements of principles – sufficient medical evidence to support hypothesis – disease is attributable to operational service – decision under review in relation to alcohol abuse is affirmed – decision under review in relation to chronic obstructive airways disease is set aside.

Veterans’ Entitlements Act 1986 ss 120(1), 120(3)  

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193

REASONS FOR DECISION

11 September 2008 Dr K S Levy RFD, Senior Member and
Dr G J Maynard, Brigadier (Rtd), Member          

INTRODUCTION

1.      Mr Ronald Creber, the Applicant, has sought a review by this Tribunal of the decision of the Repatriation Commission which rejected his claims for alcohol abuse and chronic obstructive airways disease.

2.      We find that Mr Creber cannot succeed in his first claim, ie. for alcohol abuse.  We find that he must succeed in his second claim, ie. for chronic obstructive airways disease.

3.      Mr Creber represented himself.  Mr Nigel Bunn represented the Respondent.

ISSUES

4.      There are two issues to be determined:

(a)Does Mr Creber suffer from alcohol abuse due to operational service? and

(b)Does Mr Creber have chronic obstructive airways disease, and if so, is it attributable to operational service?

CONSIDERATION

issue 1:  does mr creber have alcohol abuse, and if so, is it due to operational service?

5.      Mr Creber maintains that he was adversely affected by service in Vietnam waters on his first trip to South Vietnam when he had to go overboard and cut entanglement from the propeller of a cutter boat he occupied with two other sailors.  His work on the cutter boat was part of his duties on HMAS Sydney. Each of these  incidents took approximately one minute.

6.      In this context, there was also evidence given of a helicopter firefight which he observed in the distance.  Mr Creber said he could see the helicopters but could not hear anything.  In any event, he was not concerned about that incident and the incident relied upon as a traumatic event was the incident in having to go overboard to free entanglement from the propeller.  He said he did this on two occasions on the same night.

7.      To succeed in this claim, we must be satisfied that the incident occurred on operational service and that Mr Creber actually undertook operational service.  The record shows that Mr Creber joined the Royal Australian Navy (RAN) in 1963 aged 17 years.  He went on operational service on four occasions in 1965 and 1966.  The incidents submitted in this application both pertained to the first operational service period from 27 May 1965 to 26 June 1965.  The claim of operational service is undisputed.

8.      The law requires a Tribunal to find a war-caused injury or disease established “… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”[1].  To establish a reasonable doubt that the case is not made out, the facts must not raise a reasonable hypothesis connecting the condition with the operational service of Mr Creber[2]. 

[1] s 120(1) Veterans’ Entitlements Act 1986 (“the Act”).

[2] s 120(3) of the Act.

9.      Those provisions must be applied to the facts put forward by the Applicant and assessed against Statement of Principles (SoP) No. 17 of 2008.  That SoP requires as a minimum, at least one factor in paragraph 6 of the SoP must be satisfied.  These include a clinically significant psychiatric condition of the clinical onset of alcohol abuse; or having experienced a Category 1A stressor within five years before clinical onset of alcohol abuse; or experiencing a Category 1B stressor within five years before the clinical onset of alcohol abuse. 

10.     Mr Creber’s claim is defeated as there is no medical evidence of a diagnosis of alcohol abuse.  Even if he had such evidence, the claim of jumping overboard for one minute to cut a rope which is entangled around the propeller of the cutter boat is unlikely to satisfy the definitions of the stressors included in the SoP.  A further examination of the claim based on the preceding SoP, ie. Instrument No. 76 of 1998, would have to satisfy the definitions of a “severe stressor”.  We have considered this in the context of Repatriation Commission v Deledio[3]. We do not believe an hypothesis can be raised at Step 1 of Deledio in respect of the claim for alcohol abuse by Mr Creber, when considering the requirements of the relevant SoP.  This claim therefore fails.

issue 2:  does mr creber have chronic obstructive airways disease, and if so, is it attributable to operational service?

[3] (1998) 83 FCR 82 at [97].

11.     The Deledio authority above is relevant to this issue also.  The SoP relevant to this claim is Instrument No. 30 of 2004 which deals with chronic bronchitis and emphysema.

12.     Mr Creber’s position is that he commenced smoking heavily on his first trip to South Vietnam at age 19.  He commenced smoking one to two cigarettes a week just prior to operational service but was smoking 50 to 60 cigarettes per day by the time he returned from Vietnam a month later.

13.     That claim was not challenged by the Respondent.  The Respondent said there was no diagnosis of chronic obstructive airways disease.  The Veterans’ Review Board in its review of the Repatriation Commission held that the Applicant has a war-caused smoking habit.  It acknowledged a radiology report of 27 January 1998[4] that refers to “moderate hyperinflation consistent with chronic airways disease”.  It then identified the correct SoP and examined the definition of “chronic bronchitis“ and concluded that the Applicant did not satisfy that definition and therefore did not satisfy the SoP.  We agree with that statement of the evidence and that the definition of chronic bronchitis is not complied with.

[4] Exhibit 1, Folio 87

14.     However, the SoP includes also a definition of “emphysema” which was not examined by the Veterans’ Review Board.  That definition is a technical medical  definition.  It is also “a condition where there is an overinflation of structure in the lungs known as alveoli or air sacs.  …  Early symptoms of emphysema include shortness of breath”[5].

[5] Health Insite, Australian Government, ‘Definition of Emphysema’ accessed 8 September 2008.

15.     The radiologist’s report of 27 January 1998[6] showed there was a moderate hyperinflation of the lungs, consistent with chronic airways disease.  There was a spirometry report also attached to the radiologist’s report (in a bundle of documents of Dr Wilson’s clinical notes dated 16 March 2007) which is consistent with Dr Wilson’s diagnosis and report dated 26 November 2003 which indicates Mr Creber has “shortness of breath”.  That evidence is also consistent with the applicant’s oral evidence before the Tribunal.

[6] Exhibit 1, Folio 87.

16.     The SoP requires that the Applicant has smoked at least five pack years of cigarettes before clinical onset of emphysema (factor 5(a) of the SoP).  This, in our view, is easily satisfied as the Applicant has been a heavy smoker for over 40 years.  As the evidence of smoking was not challenged and that there is evidence of chronic obstructive airways disease as he satisfies the definition of emphysema in the SoP, we find that he satisfies the SoP.

17.     The Deledio process applied to the evidence shows a hypothesis, a relevant SoP (Instrument No. 30 of 2004) and the evidence does reveal a reasonable hypothesis connecting the condition with his service in the RAN, without making any findings of fact. There is a hypothesis consistent with the SoP pointed to by the applicant’s version of events. There is therefore no basis for not satisfying the presumption in s 120(1) of the Act.

18.     The claim therefore succeeds.

DECISION

19.     We therefore find as follows:

(1)That the claim for alcohol abuse is not satisfied. That decision under review is affirmed.

(2)The decision under review pertaining to chronic obstructive airways disease is set aside and the Tribunal substitutes a decision that Mr Creber has chronic obstructive airways disease which is attributable to operational service.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member

Signed:............[Sgd]..................................................................
              Elizabeth Young, Research Associate

Date/s of Hearing  29 August 2008
Date of Decision  11 September 2008
Applicant was self-represented  
Solicitor for the Respondent    Mr Nigel Bunn, Departmental Advocate