Cunningham and Repatriation Commission

[2005] AATA 483

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 483

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2004/342

VETERANS' APPEALS DIVISION		)
Re		GARY ROBERT DENNIS CUNNINGHAM

Applicant

And REPATRIATION COMMISSON

Respondent

DECISION

Tribunal Brigadier RDF Lloyd, Member

Date27 May 2005

PlacePerth

Decision

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a)      to set aside the Veterans’ Review Board decision under review and to accept Ischaemic Heart Disease as a war-caused condition with effect from 3 August 2003; and

(b)      to remit the matter of assessment of incapacity from that condition, together with all previously accepted conditions, to the respondent.

..............................................

Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – ex Australian Army (National Serviceman) – operational service as infantryman Vietnam – ischaemic heart disease – causal factor smoking claimed to be war-caused – reasonable hypothesis raised – whether material enables appropriate findings of fact to support claim and requirements of SoP – decision under review set aside – claimed condition accepted as war caused.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 157(2)

Statement of Principle Concerning Ischaemic Heart Disease (Instrument No 53 of 2004 as amended)

Re Repatriation Commission v Deledio (1998) 83 FCR 82

Kattenberg v Repatriation Commission [2002] FCA 412

REASONS FOR DECISION

27 May 2005 Brigadier RDF Lloyd, Member      

1.      This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Gary Robert Dennis Cunningham (“the applicant”) for a review of a decision by the Veterans’ Review Board (“the VRB”) dated 22 July 2004.  The VRB decision had affirmed an earlier decision by the Repatriation Commission (“the respondent”) of 1 December 2003 which determined that the applicant’s condition of ischaemic heart disease is not related to service.

2.      The applicant attended the hearing and was assisted by his advocate Mr J Nolan. The respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the T documents”) and in addition the following documents were taken into evidence at the request of the respondent:

·Exhibit R1 : Medical History Sheet for G R Cunningham dated 15 October 1970

·Exhibit R2: Report by Dr James Fellows-Smith re Gary Cunningham dated 27 August 2001

·Exhibit R3: Report by Dr Linden Easton re Mr Gary Cunningham dated 24 October 2001.

3.      No additional documentary evidence was handed up by the applicant’s advocate.  However, Mr Cunningham was called to give oral evidence by the Tribunal, to answer its questions and also those of the respondent’s representative.  Mr Nolan, as a consequence, also questioned the applicant – specifically concerning his smoking history.

Applicant’s Service and Related Matters of Law

4.      Mr Cunningham served in the Australian Army from July 1966 to July 1968 as a National Serviceman.  His eligible service under the Veterans’ Entitlements Act 1986 (“the Act”) is however limited to the period 24 February 1967 to 26 February 1968 during which time he had operational service (as defined in the Act) in Vietnam. Here he served in two of the battalions deployed there during the period, for the most part in an infantry section and in the latter portion of the second half of the time doing hygiene duties, still within his battalion.

5.      In view of his eligible service being operational service, ss 120(1) and 120 (3) of the Act apply and the Tribunal is required to find that the applicant’s claimed condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to have regard to any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”) concerning the condition suffered and claimed by the applicant.

6.      The Tribunal’s manner of consideration of this matter follows the process set out in Repatriation Commission v Deledio (1998) 83 FCR 82. 

Diagnosis of Claimed Condition 

7.      As the initial step in this review process the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed condition suffered by the applicant.  The standard of proof in this regard is that of reasonable satisfaction, ie on the balance of probabilities.

8.      The documented medical evidence clearly provides a diagnosis of ischaemic heart disease (“IHD”) and for both parties this is common ground.  On the basis of the material before it, the Tribunal is reasonably satisfied that IHD is the correct description of the heart condition suffered by the applicant and the subject of his current claim.  Medical evidence (T7 page 29) indicates that the clinical onset was June 2003.  This is not contested and the Tribunal accepts this as being approximately the time of onset for the purposes of its review of the matter before it.

Applicant’s Contention Re Claimed Condition

9.      The applicant’s contention is that his cigarette/tobacco smoking has been a causal factor in the development of his diagnosed heart condition.  Further, it is his contention that, although he smoked prior to eligible service, his period of operational service in Vietnam caused or contributed to a significant increase in his smoking habit which then continued at a relevantly increased rate after that until 1998.  He ceased smoking in 2004.  This service related increase, it is claimed, contributed to a material degree to the onset of his IHD.

10.     Alternatively, it was put by the applicant’s advocate that if the Tribunal does not accept the evidence of the increased rate continuing until 1998, then it should accept that Mr Cunningham smoked at the increased rate equivalent to one pack year of cigarettes before the clinical onset of IHD and that this increase was service related.

11.     It is common ground that the only relevant issue in this matter is that of the applicant’s cigarette/tobacco smoking habit and its relationship to his operational service, in Vietnam in 1967-68.

12.     Following the Deledio process the Tribunal then considered the relevant material before it in relation to the contentions raised, but without at this stage making findings of fact.  As a consequence the Tribunal is satisfied that the material adequately points to a hypothesis connecting the claimed IHD condition with his war service.

Statement of Principle

13.     There is an SoP in force, determined by the RMA, dealing with IHD and it is common ground that this is Instrument No 53 of 2003 as amended by Instrument No 9 of 2004.  The relevant factor in the SoP is 5(f) which states as follows:

“(f)where smoking has not ceased prior to the clinical onset of ischaemic heart disease,

(i)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or

(ii)smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease; or”

14.     Clause 8 of the SoP includes the following definitions:

·     “cigarettes per day or the equivalent thereof, in other tobacco products means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco by weight;”

·     “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 7300 cigarettes.  One tailor made cigarette approximates one gram of tobacco…by weight.  One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight…”

15. Given these SoP requirements in relation to cigarette/tobacco smoking and the applicant’s two contentions, the Tribunal is of the opinion that either is consistent with the “template” in the SoP, and therefore is a reasonable hypothesis in terms of the Act.

Evidence

16.     Contrary to my more normal practice in giving Reasons for Decision, and because the issue involved is limited to simply cigarette smoking, I will not set out the evidence fully and in detail in this case.  As well, both parties have set out clearly the facts in documented form, albeit important aspects are significantly contested.  This documented evidence is complemented by the oral evidence given at the hearing (Transcript refers).

17.     As was correctly underlined by the respondent’s representative at the hearing, this matter in the end really rests on the Tribunal’s assessment of the applicant’s reliability as a witness, i.e. is his evidence as provided by him to the Tribunal, credible?  The VRB had found that he was not a reliable witness.  The evidence as set out by the Board in its formal Reasons is clear and detailed, as are the reasons it reached its decision.

18.     An important peg in the VRB process was the form “Claimant Report – Cigarette Smoking” dated 8 August 2001 and signed by the applicant (T6 page 27-28).  This was discussed at considerable length in the Tribunal’s hearing.  As a consequence the Tribunal’s finding in that regard is that it is relevantly satisfied that the document in some parts has been inadvertently completed incorrectly by the applicant.  That as a consequence, the information contained in it does not represent what the applicant meant at the time, and is misleading.  The Tribunal concludes it should disregard this document in its review.  It does so with reluctance because it is otherwise an important document.  But based largely on the oral evidence now provided by the applicant the Tribunal’s assessment is that this, in justice, is the proper course for it to take.

19.     In essence, the applicant’s evidence as presented at the hearing concerning his smoking history, in summary is as follows:

·Commenced smoking experimentally aged 19 years (1964).

·Soon after enlistment (1966) smoking level had reached 20 cigarettes per day and the habit was then established during recruit, specialist and pre-Vietnam training at about that level.

·During operational service in Vietnam (1967-68) his smoking (tailor mades) increased, as a consequence of the operational circumstances involved, to 30-35 cigarettes per day as an average.  In some periods the level was higher, up to 40.

·On return to Australia he was smoking 35-40 cigarettes per day and continued at this rate until 1998.

·Changed to roll-your-own cigarettes in 1998 in an attempt to cut down and managed to reduce the level to 60 grams of tobacco per week (equals 60 cigarettes, i.e. about 9 cigarettes per day).

·He was unable to sustain this major reduction for long and soon was smoking 90 grams per week (equals about 13 cigarettes per day).  This rate was maintained until 2004 when he ceased smoking.

20.     The Tribunal would conclude from the above that Mr Cunningham, although a smoker prior to his eligible service (1967-68), increased his habit by some 10 to 15 cigarettes per day allegedly as a direct consequence of his operational service in Vietnam.  And apparently that increased rate continued until 1998, when his evidence is that this was the first time he went on to roll-your-own cigarettes from tobacco.  The applicant’s completed form at T9 page 32 also refers in this regard.

21.     The main opposing evidence highlighted by the respondent, but discounting the Smoking Report vide paragraph 18 above, in summary is as follows:

·The file note at T8 page 30 refers to a Departmental telephone conversation with the applicant on 25 November 2003.  This note seems to indicate that Mr Cunningham was smoking 30 cigarettes per day on service before changing to roll-your-owns during service – going down to 60 grams per week.  And that at the time of the note (2003) he smoked 50-60 grams per week (about 9 cigarettes per day).

·There is a further notation by the departmental officer on this same page (T8 page 30), indicating 20 cigarettes on enlistment, 30 cigarettes on operational service until he changed to roll-your-own.  The latter is stated by the officer to have occurred during operational service and that his consumption was 3ozs, which cut him down to 13 cigarettes per day.

·The Medical History Sheet dated 15 October 1970 (Exhibit R1) in which the reporting doctor records his smoking level at that time as 12 cigarettes daily.

·Dr Easton’s report dated 24 October 2001 (Exhibit R3) in which she gives his smoking level at 60 grams per week (about 9 cigarettes per day).

·Dr Fellow-Smith’s report dated 27 August 2001 in which he records Mr Cunningham’s smoking level at that time as  “4x8mg (sic) cigarettes per day”.

Note: I am unable to safely interpret what Dr Fellows-Smith means by the description in quotes, and have therefore discounted this evidence in relation to Mr Cunningham’s smoking history.

22. There is clearly enough evidence, as summarised in paragraph 21 above, let alone elsewhere in the T documents and including the VRB Reasons for Decision to give concern to the Tribunal regarding the accuracy of the applicant’s previous (and current) evidence. Nevertheless, the Tribunal is satisfied that his oral evidence at the hearing was an attempt to provide honest answers to questions asked of him by the Tribunal, his advocate and the respondent’s representative. In the end result however there are aspects that simply can not, in the Tribunal’s judgement, be reconciled.

tribunal’s findings

23.     From the evidence provided, the Tribunal finds as follows, concerning the applicant’s smoking:

·He had a developed smoking habit prior to his eligible service in Vietnam.

·That smoking habit significantly increased, by 10 to 15 cigarettes per day during and as a consequence of that service.

·There is insufficient clear evidence that the applicant switched to roll-you-own cigarettes during operational service, or before 1970, in order to reduce the consumption.

·His consumption, certainly by 1998, was regularly in roll-you-own cigarettes and he ceased altogether in 2004.

24.     The Tribunal also finds, as indicated earlier in paragraph 8, that the clinical onset of the applicant’s IHD is mid to early 2003.

conclusion

25.     By virtue of its findings as outlined, the Tribunal is relevantly satisfied that the applicant’s smoking history up until 1970 inclusive is sufficiently accurate to indicate that he did in fact smoke at least an additional pack year of cigarettes by that time (prior to the onset of IHD).  Furthermore, it is satisfied beyond reasonable doubt that this occurred as a consequence of the substantial contribution made by the circumstances of his eligible service in Vietnam.

26.     In reaching that conclusion, the Tribunal is minded to emphasise that this result has been reached as a consequence of the applicant’s oral evidence, and despite the frequent apparent inaccuracies and mistakes in his/the historical documented evidence.  The latter should not easily be ignored and the Tribunal has not done so.

27. Taking all aspects into account however, the Tribunal’s finding is that Mr Cunningham’s operational service has contributed to a material degree, via his service related increased smoking habit, to the subsequent development of his IHD. The condition is therefore regarded as war-caused in terms of the Act. The effective date of acceptance of the condition, in accordance with s 157(2), is 3 August 2003.

decision

28. For the above reasons as outlined and pursuant to s43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides as follows:

(a) to set aside the VRB decision under review and to accept Ischaemic Heart Disease as a war-caused condition with effect from 3 August 2003, and

(b) to remit the matter of assessment of incapacity from that condition, together with all previously accepted conditions, to the respondent.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed: ......................................................

Associate

Date/s of Hearing  11 April 2005
Date of Decision  27 May 2005
Counsel for the Applicant         Mr J Nolan
Counsel for the Respondent    Mr C Ponnuthurai
  Department of Veterans’ Affairs