Currie and Repatriation Commission - [2001] AATA 613

DECISION AND REASONS FOR DECISION [2001] AATA 613

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/623

VETERANS' APPEALS DIVISION       )
           Re      EWEN KENNETH CURRIE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member Dr P D Lynch, Member

Date2 July 2001
PlaceSydney
DecisionThe decision under review is affirmed.
[Sgd] M J Sassella
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – eligible war service - disability pension - ischaemic heart disease – chronic bronchitis and/or emphysema – service related smoking habit – whether the applicant's smoking habit meets the requirements of the relevant Statement of Principles - degree of incapacity – standard of proof – reasonable satisfaction that the condition was service related - 15 pack-years of cigarette smoking – pulmonary obstruction
Veterans' Entitlements Act 1986, ss 7(1)(c), 9(1)(b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(4), 120B(1), (3), (4).
Statement of Principles concerning Chronic Bronchitis and Emphysema, No 74 of 1997
Statement of Principles concerning Ischaemic Heart Disease, No 141 of 1996 as amended by SoPs 78 of 1997 and 38 of 1998

Repatriation Commission v Tuite (1993) 17 AAR 158
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Smith (1987) 12 ALD 798
Repatriation Commission v Edwards (No. G150 of 1993, Federal Court of Australia)

REASONS FOR DECISION

2 July 2001 M J Sassella, Senior Member Dr P D Lynch, Member

History of the Application

On 21 August 1998 Mr Ewen Kenneth Currie ("the Applicant") lodged an application for a Disability Pension with the Respondent (T4) seeking to have conditions of "deafness, tinnitus, heart problems, headaches and lung problem" accepted as war caused disabilities.
On 30 October 1998 the Repatriation Commission ("the Respondent") rejected three of the four claimed conditions (T9). Ischaemic heart disease ("IHD") was rejected on the grounds that the Applicant's smoking habit did not meet the requirements of the relevant Statement of Principles ("SoP"). Muscle contraction headache was rejected because it did not meet any factor identified by the Repatriation Medical Authority in the relevant SoP. The lung problem was investigated and found not to exist. Bilateral sensori-neural hearing loss with tinnitus was accepted, on the basis of acoustic trauma, as war caused, effective from 20 May 1998. Disability pension was granted at 40% of the general rate.
On 4 November 1998 the Applicant lodged with the Veterans' Review Board ("the VRB") an application for review of the Respondent's decision (T10). He stated that he had been on medication for his heart and lung conditions for over 20 years.
On 11 January 1999 a delegate in the Department of Veterans' Affairs ("the DVA") wrote to the Applicant declining a section 31 review of the decision (T11).
On 21 March 2000 the VRB affirmed the Repatriation Commission in relation to the conditions of IHD and lung problems, not finding any causal relationship to the Applicant's war service (T13).
On 28 March 2000 the VRB sent notice of its decision to the Applicant (T14).
On 26 April 2000 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the VRB's decision.
Background
The Applicant was born on 5 August 1916 in Lismore (T3, folio 9).
The Applicant served in the Australian Army, in Australia, as a truck driver from 14 April 1942 to 9 January 1945, which constitutes eligible war service as defined in the Act (T13).
From 1945 to 1947 he worked as a cane cutter for CSR Broadwater, and from 1947 to 1978 he worked as self-employed farmer. He ceased work because of his age (T4, folio 25).
On 28 September 1998 he lodged an alcohol questionnaire with the Respondent (T6). He stated that he commenced consuming alcohol in 1942 due to "boredom". The Applicant stated that he drank beer every day at that time, about five or six schooners at a time. He further stated that his alcohol consumption changed with its availability in 1943 and depending on his "boredom". He stated that he still drinks beer and whisky once per week, drinking four nips of whisky and one stubby of beer.
Also on 28 September 1998 he completed a smoking questionnaire (T7). He stated that he started smoking in 1942, smoking two ounces of roll your own tobacco per week. He stated that he started smoking due to peer pressure and became addicted. His consumption increased to four ounces per week in 1943 due to "boredom and addiction". He ceased smoking in 1954.
Medical evidence
On 21 September 1998 the Department of Veterans' Affairs ("the DVA") received a medical report of Dr P Laird dated 14 September 1998 (T5). He stated that the Applicant was admitted to Lismore Base Hospital between 22 and 25 May 1998 with severe and prolonged angina. The admission diagnosis was IHD. He had been taking nitrates and aspirin and was given a beta blocker. He was taken off the beta blocker after developing a wheeze. His chest x-ray showed an enlarged heart with clear lung fields. Dr Laird reported that the Applicant had not smoked for some 30 to 40 years. Dr Laird declined to make any diagnosis of an underlying lung disease because there had been no proper assessment of this.
On 22 September 1998 Dr P Stewart completed a cardiac condition medical impairment assessment report for the Respondent (T8, folio 34). He reported that the Applicant does experience symptoms of heart problems.
On 22 September 1998 Dr P Stewart also completed a respiratory condition medical impairment assessment report for the Respondent (T8, folio 35). He stated that the Applicant does experience symptoms of lung problems ("bad bronchitis this winter"), that he has a chronic and productive cough and that he takes Ventolin for the condition.
Also on this date in 1998 Dr Stewart completed an effort tolerance medical impairment assessment (T8, folio 36). (This form has apparently been filled out incorrectly. It states that the Applicant does not develop limiting symptoms when water skiing or when playing competitive badminton, but does when lying down or playing cards).
On 20 May 1999 Dr M G Miller, consultant physician, completed a medical report for the Applicant (T12). He stated that the Applicant maintained that he smoked at least 30 cigarettes a day whilst in the Army and continued at this rate from 1942 until 1954. He smoked for about 11 and a half years and has consumed 17 and a quarter pack years of cigarettes in his lifetime. He stated that the Applicant had a poor memory of the events of 40 years ago and that he described tight, cramping chest pains radiating down his left arm which occurred when he did heavy work and associated with shortness of breath. The Applicant's wife said that the Applicant had been suffering these pains for seven or eight years. Dr Miller spoke to the Applicant's treating doctor, Dr Stewart, and was told of recurrent chest infections. The Applicant is severely incapacitated due to shortness of breath and chest pain on exertion. He is unable to undress or dress without symptoms and can walk on the flat only slowly. Dr Miller assessed his symptoms at 2-3 METs. The Applicant's treatment includes Cardizem, Imdur, Nitroderm patch, aspirin half daily, Ventolin, Becotide and Losec (which he takes for upper abdominal pains). He takes Normison to help him sleep because of his tinnitus. The following were found upon examination:
·     Abdominal obesity
·     Short of breath on undressing, couldn't take off his shoes
·     Coughing throughout examination
·     Orthopnoeic symptoms
·     Marked signs of chronic airways disease
·     Blood pressure of 120/70
·     Probable that the Applicant first developed angina within ten years of ceasing smoking in 1954 – Satisfies SoP for IHD, No 81 of 1998, factor 5(f)(ii)
·     Suffering from chronic bronchitis and emphysema – Satisfies SoP No 84 of 1997
·     Having smoked about 17 and a quarter pack years of cigarettes, satisfying SoP on IHD for factor 5(b)
·     On balance of probabilities, both IHD and chronic bronchitis and emphysema relate to war service
·     15 impairment points for sensori-neural deafness with tinnitus
·     52 impairment points for IHD and chronic bronchitis and emphysema

Lifestyle assessment:

·     Personal relationships rating of 4
·     Mobility rating of 4
·     Recreation and community activities rating of 6
·     Domestic activities rating of 6
·     Total lifestyle rating of 5

If the conditions are accepted, ratings of 60 impairment points (deafness, tinnitus, IHD and chronic bronchitis and emphysema) with a lifestyle rating of 5, entitle him to a pension at 100% of the general rate.
On 5 July 2000 Dr M Burns, occupational physician, completed a medical report in relation to the Applicant (Exhibit R1). He stated that some of the early chest pain was probably due to stomach rather than heart problems, although the Applicant has "significant cardiac disease at the present time." Currently the Applicant reports occasional chest pain on exertion and uses nitrolingual patches. He also takes Cardizem and Imdur. The Applicant can only walk for several hundred meters. Dr Burns agrees with Dr Miller on a 2 to 3 METs level. The Applicant reported that he started smoking three to four cigarettes per day, quickly progressing to 10 per day. After leaving the army this increased further up to two packs of tobacco per week. Dr Burns estimates a total of 11 pack years of smoking. Dr Burns made the following GARP assessment:
·     Bilateral sensori-neural hearing loss 14 points
·     Tinnitus  10 points
·     IHD  30 points
·     Chronic bronchitis and emphysema   30 points
·     Total impairment rating of                   62 points

He also accorded the following lifestyle ratings:

·     Personal relationships  3 points
·     Mobility  3 points
·     Recreational and community activities          5 points
·     Domestic and employment activities             4 points
·     Average rounded rating  4 points

This gives the Applicant an incapacity of 100 per cent. However, Dr Burns states that from the history he obtained, it is impossible to tell whether the Applicant developed the condition within ten years of ceasing smoking.
On 1 August 2000 Dr M Baz, occupational physician, completed a medical report on the Applicant (Exhibit A2). She stated that the Applicant was significantly disabled by cardiorespiratory disease and that IHD has been diagnosed. She further stated that his history is consistent with peripheral vascular disease. He also "apparently has gastro-oesophageal reflux disease". Dr Baz gives the following ratings for lifestyle:
· Personal relationships 3 points (4 with cardio)
· Mobility 2 points (3 with cardio)

Community and recreational activities          3 points (6 with cardio/hearing)
·     Domestic activities  2 points (6 with cardio)
·     Total  10, average of 3
·     Total with accepted + cardio  19, average of 5

With cardiorespiratory disease accepted Dr Baz recommends a disability pension of 100% of the general rate.

On 26 July 2000 Dr P Gianoutsos, thoracic physician, completed a further medical report on the Applicant (Exhibit A1). He reported that the Applicant commenced smoking in 1941 and smoked approximately 30 grams of tobacco per week (60 cigarettes per week). Between 1945 and 1948 this increased to 120 cigarettes per week while engaged in cane cutting. In 1948 while employed in dairy farming and banana growing this increased to up to seven packets per week (420 cigarettes). He ceased smoking in 1954.
Dr Gianoutsos reported no cardiac symptoms apart from mild angina. He stated that the Applicant has mild airways disease with no evidence of emphysema. He believes that airways limitation is due to obstruction and the Applicant being overweight for his height. Dr Gianoutsos does not believe the claim of shortness of breath after 50 metres of walking on the flat and after using stairs.
The decision under review
The VRB decision varied the Respondent's decision by providing a diagnosis of chronic bronchitis and emphysema, instead of "lung problems". The VRB found that the connection between the commencement of smoking and his war service was temporal rather than war caused. Also, the clinical onset of IHD did not occur within 10 years of the cessation of smoking, as the SoP required. There were no other factors within the SoP which were satisfied.
Relevant legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") ss 7(1)(c), 9(1)(b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(4), 120B(1), (3), (4). Also relevant is the Statement of Principles ("SoP") concerning Chronic Bronchitis and Emphysema, No 74 of 1997 and the SoP no 141 of 1996 concerning Ischaemic Heart Disease as amended by SoPs 78 of 1997 and 38 of 1998:
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
          …
(c)a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1~ July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…"
9 War-caused injuries or diseases
(1)       Subject to this section, 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:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).
          …
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim."
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"21A Determination of degree of incapacity
(1) The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions.
(2)       Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%.
(3)       The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension."
"120 Standard of proof
          …
(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.
…"
"120B   Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
          (b)       a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).
          …
(3)       In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
          (a)       the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
          (b)       there is in force:
(i)        a Statement of Principles determined under subsection 196B (3) or (12); or
(ii)       a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be."

Statement of Principles concerning Chronic Airflow Limitation, No 74 of 1997

"…
Kind of injury, disease or death
2. (a) This Statement of principles is about chronic bronchitis and/or emphysema and death from chronic bronchitis and/or emphysema.
(b) For the purposes of this Statement of Principles,
(i) "chronic bronchitis" means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;

(ii) "emphysema" means a respiratory tract disorder which is bilateral and diffuse and which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of alveolar septa, attracting ICD code 492. This may be accompanied by a degree of chronic airways obstruction or limitation. This definition specifically excludes isolated emphysematous bleb and surgical, traumatic, unilateral, focal or localised emphysema including that seen in Swyer-James syndrome, MacLeod's Syndrome, or hyperlucent lung.
(c) The predominant functional assessment of chronic bronchitis and emphysema utilises pulmonary function testing to demonstrate pulmonary obstruction. Pulmonary obstruction is usually defined by a low forced expiratory volume in one second (FEV1) and FEV1/FVC ratio. For the purposes of this Statement of Principles for other than chronic simple or chronic mucopurulent or asthmatic bronchitis, the diagnosis of chronic bronchitis and/or emphysema requires evidence of significant irreversible chronic airflow obstruction or diminished pulmonary gas exchange in the lung.
This is considered to be present if there is:
(i) (a) a decrease in the person's Forced Expiratory Volume in one second (FEV 1 ) to 85% or less of the normal predicted value for a person of the same age, height and gender; and
(b) a ratio of FEV 1 to Forced Vital Capacity (FVC) of 75% or less;
which is not attributable to other disease; or
(ii) specialist medical assessment indicative of a diagnosis of pulmonary obstruction, including evidence of significant irreversible small airways dysfunction as measured by FEV 25-75 (Forced Expiratory Flow between 25% and 75% of the vital capacity) which is not attributable to other disease, or
(iii) specialist medical assessment indicative of a diagnosis of emphysema, including evidence of significant irreversible diminished carbon monoxide diffusing capacity, which is not attributable to other disease.
Where no pulmonary function tests can be performed because the person is deceased, an antemortem clinical history and findings at postmortem (if any) consistent with 2(b)(i) and/or 2(b)(ii) above may be used in the diagnosis of chronic bronchitis and/or emphysema.
…
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person's relevant service are:
…
(b) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…
"pack-year" means 7 300 cigarettes, or 1 460 cigars, or 7.3kg of pipe tobacco;
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service).
Application
8. This Instrument applies to all matters to which section 120B of the Act applies."

Statement of Principles concerning Ischaemic Heart Disease, No 141 of 1996

"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b) For the purposes of this Statement of Principles, "ischaemic heart disease" means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen. Ischaemic heart disease is considered to be present when there is evidence of at least one of the following:
(i) myocardial infarction (old or new); or
(ii) angina; or
(iii) arrhythmia with ECG evidence of myocardial ischaemia; or
(iv) myocardial ischaemia (for example ischaemic cardiomyopathy); or
(v) coronary occlusion, attracting ICD code 410, 411, 412, 413, 414.0, 414.10 or 414.8.
…
Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are:
…
(e) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
…
"relevant service" means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
…
Application
8. This Instrument applies to all matters to which section 120B of the Act applies."

Documentary evidence

The Tribunal had access to the following documentary evidence:

Exhibit TD1 – Section 37 Statement and associated T documents provided by the DVA, 20 May 2000.

Exhibit A1 – Report by Dr Peter Gianoutsos, thoracic physician, 26 July 2000.

Exhibit A2 – Report by Dr Martha Baz, occupational physician, 1 August 2000.

Exhibit A3 – Proceedings of a joint RMA, DVA & ESO Forum held in response to recommendations of the Pearce Report (published by the Repatriation Medical Authority, 9 November 1998).

Exhibit A4 – Applicant's statement of facts and contentions.

Exhibit R1 – Report by Dr Mark Burns, occupational physician, 5 July 2000.

Exhibit R2 – Clinical notes of Dr P W Stewart.

Exhibit R3 – Letter dated 10 October 2000 from Dr P W Stewart to Mr P Godwin, DVA.

Exhibit R4 – Respondent's statement of facts and contentions.

Appearances

The Tribunal convened a hearing on 20 March 2001. Mr Matthew Smith of counsel represented the Applicant. Mr Peter Godwin of the DVA represented the Respondent. The Applicant was unable to present himself at the Tribunal in Sydney so arrangements were made for him and his wife to participate by video-link between Sydney and Lismore. The Tribunal regularly uses the telephone and occasionally uses videoconferencing to take evidence from witnesses at a distance. While these forms of electronic communication usually operate satisfactorily the Tribunal was not happy with the result in this instance. The Applicant was located in a large room in which the sound was reverberant. This made it difficult for the Tribunal to hear some responses. The Applicant has a significant hearing disability and had difficulty following many of the questions. Perhaps most regrettable was the fact that the Applicant was assisted by an adviser who was sitting with him during the time when he gave evidence. From what the Tribunal could understand of what was occurring in Lismore the adviser seemed to be intervening as the Applicant clarified questions and prepared to answer. The tribunal cannot be certain that the Applicant's evidence was as it would have been had he been unassisted and, even more so, present in Sydney.
Applicant's evidence
The Applicant gave evidence at the hearing to the following effect. He entered the Army when conscripted in 1942. He had been exempted earlier because he had two children. He had not smoked or consumed alcohol before his enlistment. He began smoking because all soldiers smoked and "had a drink". He started smoking about four months after induction in Western Australia where he was stationed until his discharge.
When he started to smoke he was stressed because of separation from his wife and children. His child had a broken leg at one stage and he was denied leave to return home at the time. His driving duties in the Army meant a lot of waiting around. He would smoke at these times and might have a drink also. He started off smoking 2 oz a week of tobacco in roll your own cigarette form. His consumption gradually increased in the Army and increased further post-service when he went cane cutting. He suggested that he smoked a packet a day in the 1950s and two or three packets a week up to 1949. He ceased smoking in 1954 as part of an agreement to do so with his brother-in-law. This was at the same time as he had a "dizzy turn".
The veteran in evidence gave considerable attention to the boredom he experienced in camp.
The veteran said he gave up work on his farm at age 75. The T documents suggest he was 62 as he says at T folio 25 that he gave up work in 1978.
The Applicant told the Tribunal that he started to see Dr Stewart in 1967 about problems with his chest and legs. He had grabbing pains in his chest for which he was given sublingual medications. He said that he had seen another doctor earlier in time. The pains came on when he carried bananas or grain in about 1974. The Applicant's counsel mentioned to Mr Currie that he appeared to have cramps in his legs in 1964 (Exhibit R1, page 2). The Applicant confirmed that he had no chest pains at that time.
In cross-examination the Applicant described his work cane cutting and farming. The description was of constant, heavy work. While cane cutting the smoking opportunities were periodic rather than constant. They would light up when reaching the end of a cane row about a half-mile long. On the farm the hours were long and the Applicant could smoke most of the day.
In cross-examination it became unclear just how much smoking the Applicant had done between 1942 and 1954.

In T7 the Applicant says he smoked two ounces a week in 1942. He attributed this to peer pressure, boredom and addiction. The Applicant says in T7 that his smoking rose to four ounces a week in 1943. However, the Applicant was unable to tell the Tribunal how many cigarettes represent two ounces of tobacco.

Dr Burns (Exhibit R1) records smoking consumption as three or four cigarettes a day at first. It quickly rose to about 10 cigarettes a day. He used about a packet of tobacco a week. He increased smoking after he left the Army to the point of using two packets of tobacco a week. Dr Burns says, "I do not believe that throughout the period he was averaging more than about a packet of cigarettes a day."

Dr Miller (T12) records that the Applicant rapidly reached a consumption rate of at least 30 cigarettes a day and smoked at that level from 1942 to 1954.

The Applicant was very vague in cross-examination about his history with Dr Stewart. He could not recall that he first saw Dr Stewart in 1963 (Exhibit R2). He could not recall what he had seen an earlier doctor for, other than aching legs. He could not recall how often he had seen an earlier doctor about heart problems. He took tablets sublingually when he had chest pains but he could not recall how often he had such pains. The evidence at this point was rather unsatisfactory in part because of the videoconferencing and other problems described above in paragraph 27.
The Applicant played football and cricket until joining the Army. He finished off with football in the Army years. He played some tennis while farming. He hurt his knee playing tennis (Exhibit R2). He does not recall tennis bringing on chest pains. He played tennis very little after he injured his knee. The Applicant was notably vague about his tennis playing. Again the teleconferencing problems may be a part of the explanation.
Evidence from Mrs A W Currie, the Applicant's wife
Mrs Currie's evidence was largely confined to the Applicant's smoking. She confirmed that he did not smoke before enlisting. He always rolled his own cigarettes. She did not know how many packets a week of tobacco he used after leaving the Army. However, she proceeded to say he increased his smoking after leaving the Army. He had "a packet a day", more if going out at night. She recalls the Applicant giving up smoking after having "a turn" but does not recall when that was. The witness did not know when the Applicant first saw a doctor about chest pains. He did not see them after "the turn" because "they did no good". She thinks he "complained for a couple of years" before seeing a doctor.
Applicant's final submissions
Mr Smith suggested that the inconsistencies in the Applicant's smoking history are normal so many years after the event. He suggested that it is for the Tribunal to make up its mind about the number of pack years attributable to the Applicant. However he suggested the following history as most likely:

A packet a week for two years in Western Australia.

Two or three packets a week, or one a day, between 1946 and 1947-48. This is 75 cigarettes a week based on 30 cigarettes per packet of tobacco.

In 1950—51 smoking increased to a packet a day and more if out at night.

In 1954 he stopped smoking.

The SoPs require five or more cigarettes a day for IHD and 17.5 pack years for bronchitis.
It was said that by the end of service the Applicant had a habit and addiction to tobacco. This was attributable to war service. Service had made a contribution and that is all that is necessary. Mr Smith cited the Federal Court decision in Repatriation Commission v Tuite (1993) 17 AAR 158 and said that the link here between service and smoking was more than merely temporal coincidence. The Applicant had been removed from a young family and placed in the company of smokers. He had not been a smoker. His work was dull with long hours of inactivity. He was subject to peer pressure. He was anxious about his family.
Dr Gianoutsos has diagnosed mild airways obstruction resulting from smoking. This is not a condition covered by a SoP. Section 120B(4) of the Act applies.
Mr Smith gave considerable attention to the clinical onset of the Applicant's condition. He cited Re Robertson and Repatriation Commission (1998) 50 ALD 668 for the proposition that the clinical onset occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time. Thus a clinical onset can be said to have occurred retrospectively even if a condition was not originally diagnosed.
Mr Smith referred to Exhibit A3, a set of conference proceedings, in which the chairman of the Repatriation Medical Authority ("the RMA") (the authority that produces the SoPs) spoke about clinical onset. He said that the RMA has no intention of defining clinical onset in the SoPs. He went on to say that "It means the first time the veteran noticed anything to do with the disease. Clinical onset is not when it is diagnosed, not when the first laboratory test or X-ray is done."
Mr Smith said that the clinical onset of the Applicant's IHD was within 10 years of 1954, the year he ceased smoking. He had seen a doctor earlier than his dealings with Dr Stewart. That is the evidence of the Applicant and his wife.
Respondent's final submissions
Mr Godwin addressed SoP 74 of 1997 concerning chronic airflow limitation. Paragraph 2(c) deals with "pulmonary obstruction" which indicates chronic bronchitis and emphysema. The paragraph states that a diagnosis of chronic bronchitis and/or emphysema requires evidence of significant irreversible chronic airflow obstruction or diminished pulmonary gas exchange in the lung. It refers to FEV1 results that indicate pulmonary obstruction. He noted that Dr Gianoutsos found on examination that the veteran's forced expiratory volume was limited to 85% or less of the normal predicted value and that he had a ratio of FEV1 to FVC of 75% or less. While this might satisfy the requirements in paragraph 2(c)(i) of the SoP, these observations must be "not attributable to other disease". In Mr Currie's case Dr Gianoutsos noted that the Applicant has a "very large hiatus hernia which may account somewhat for his low normal lung volumes. This simply means that the hiatus hernia is occupying space in his chest which would otherwise be occupied by his lung."
Mr Godwin pressed the Tribunal to prefer the Tribunal's approach to clinical onset as expressed in the Robertson case (supra) over the comments made in Exhibit A3.
Mr Godwin summed up the new evidence that emerged during the hearing:

There was a clear statement that the Applicant first experienced chest pains in 1964.

A dizzy spell in 1954 led to the Applicant giving up smoking.

Mr Godwin suggested that a considerable part of the Applicant's evidence was unreliable. He could not recall the year of his tennis injury or where it occurred chronologically in relation to his chest pains.
Dr Miller saw both the Applicant and his wife and took a history that the pains began seven or eight years before he consulted a doctor but neither Mr nor Mrs Currie could say when Mr Currie saw the doctor about the pains. As a result of a discussion with Dr Stewart it seemed to Dr Miller that the pains began in about 1959 or 1960 (T12). In oral evidence the Applicant said he had seen a doctor earlier in the history of the disease who prescribed sublingual tablets for him.
Dr Stewart first saw Mr Currie in 1963 (Exhibit R2). Mr Currie made no mention of chest pains when he gave Dr Stewart his first history. The first mention of chest pains in Dr Stewart's records is on 15 May 1967, as Mr Godwin put it, the 25th entry in the clinical notes. Dr Stewart in his letter to Mr Godwin (Exhibit R3) confirmed this as the date of first reference.
As regards the smoking history, Mr Godwin noted that Dr Burns's version (Exhibit R1) accords with the smoking questionnaire (T7). The histories taken by Drs Miller and Gianoutsos are inconsistent. Mr Godwin suggested that the Applicant had overstated his cigarette use to the Tribunal and to Drs Miller and Gianoutsos. To have smoked as much as he asserted he would have had to smoke 60 cigarettes a day, a cigarette every 16 minutes. It is difficult to accept that he could chain smoke to that degree while farming or cane cutting.
Findings on material questions of fact with reference to evidence and other matters in support
The Tribunal finds that the Applicant rendered eligible service in the Army from 10 April 1942 until 9 January 1945 (T3, folios 13-14, T13, s 7(1)(c) of the Act).
The Tribunal finds that the Applicant lodged a valid claim for a Disability Pension on 21 August 1998 (T4).
The Tribunal notes that the standard of proof in this matter, dealing as it does with eligible service, is the standard of reasonable satisfaction (s 120(1) and (4) of the Act). This standard is equivalent to proof on the balance of probabilities (Repatriation Commission v Smith (1987) 12 ALD 798).
The Tribunal finds that the Applicant suffers from IHD. This is on the basis of evidence from Dr Laird (T5), Dr Miller (T12), Dr Burns (Exhibit R1), Dr Baz (Exhibit A2), although Dr Gianoutsos (Exhibit A1) says he has only mild angina.
The Tribunal finds that the Applicant may well suffer from chronic bronchitis and emphysema, although it is necessary to consider the relevant SoP to finalise on this matter.
The Tribunal finds, in relation to IHD, that the relevant SoPs are 141 of 1996, 78 of 1997, and 38 of 1998.
The Tribunal finds, in relation to chronic bronchitis and emphysema, that the appropriate SoP is 74 of 1997.
As this is a reasonable satisfaction case the issues are basically whether the Tribunal can reach a state of reasonable satisfaction that the Applicant's conditions satisfy the relevant SoPs. The Tribunal will first consider IHD.
Ischaemic heart disease
The issues raised by SoP 141 of 1996 are as follows:
Does the Applicant's IHD satisfy the definition of IHD in paragraph 2 of the SoP?
Does the Applicant's situation satisfy factor 5(e) of the SoP?
If factor 5(e) is applicable, is the factor related to the Applicant's relevant service?
Does the Applicant's IHD satisfy the definition of IHD in paragraph 2 of the SoP?
It is conceivable that a veteran may suffer from a condition recognised by the medical profession but which is defined in a more limited way by the SoP in question such that the diagnosis might not satisfy the SoP. In SoP 141 of 1996 the definition of IHD effectively states that IHD is considered to be present when there is evidence of at least one of a number of nominated conditions. These include myocardial infarction, angina, arrhythmia, myocardial ischaemia or coronary occlusion. The Applicant has been diagnosed with angina (Dr Laird), significant cardiac disease (Dr Burns) and mild angina (Dr Gianoutsos). The Tribunal finds that this is sufficient evidence for it to conclude that Mr Currie's condition is IHD under the SoP.
Does the Applicant's situation satisfy factor 5(e) of the SoP?

Factor 5(e) requires satisfaction as to these elements:
Smoking of at least five cigarettes a day or the equivalent thereof for at least three years before the clinical onset of IHD; and

Clinical onset must have occurred within 10 years of the cessation of smoking.

The evidence as to the volume of smoking engaged in by the Applicant is varied but all of it supports the notion that he smoked at least five cigarettes a day from 1942 to 1955. The veteran's own assessment works out to the smoking of the equivalent of nine cigarettes a day from 1 May 1942 to 31 December 1942 and 17 cigarettes a day from 1 January 1943 to 31 December 1854 (T7, T9). There were higher figures used by some others but these estimates are more conservative yet easily meet the SoP requirement.
The date of the clinical onset of the Applicant's IHD is problematic. This is possibly in part because, even now, it is not a very serious IHD. Dr Gianoutsos testifies to this in his report. Dr Miller considers that the date of onset was about 1959. Dr Stewart recorded chest pain symptoms in 1967. The Tribunal notes that the Applicant and his wife told Dr Miller that the Applicant had complained of chest pains from about seven years before he saw a doctor about them, although the Applicant also said he had seen a doctor who prescribed sublingual tablets for his heart condition. The Tribunal notes, however, that the Applicant's oral evidence was that he had no chest pains in 1964 (and, presumably, earlier). This is discussed in paragraph 32 of these reasons.
In considering clinical onset the Tribunal wishes to make it clear that it accepts the approach in the Robertson decision (supra) as the valid approach. The Tribunal does not accept the remarks made in a conference setting by the chairman of the RMA. As the Tribunal understands the chairman's comments, clinical onset could retrospectively be taken to have been at a time in the past when a veteran may have observed what he presently thinks were symptoms but which he or she may never have raised with his or her medical officers. To the Tribunal this seems far too loose a formulation and an unnecessary extension of the approach in Robertson (supra). According to the Tribunal in Robertson (supra) there must be a reporting of symptoms to a doctor which enables the doctor to say that the disease was present at that time. Alternatively, there may be a finding on investigation that indicates to a doctor that a disease was present at the earlier time. The essential difference is the involvement of a doctor in the diagnostic process before the matter reaches the decision-maker.
In the present case the role of Dr Stewart is crucial. He has been the Applicant's general practitioner since 1963. He is an excellent position to know whether the Applicant was experiencing chest pains earlier than 1967 – since 1959, according to Dr Miller. However, Dr Stewart's notes (Exhibit R2), reinforced by his letter to Mr Godwin (Exhibit R3), indicate that the onset of chest pains was in 1967. In this regard it is instructive to look at an outline of the Applicant's history with Dr Stewart. Dr Stewart's notes show that the Applicant saw Dr Stewart five times in 1963 (between October and December), about monthly in 1964, three times in 1965, once in 1966 and in 1967 for the first time in May, when he first mentioned chest pains. It is hard to believe that a patient seeing his doctor so frequently would not mention chest pains if he had been experiencing them.
Prior to 15 May 1967 the only entry in Dr Stewart's records that could have any possible bearing on chest or heart problems was the prescription of Lanoxin in 1964 for leg cramps. The Tribunal understands that Lanoxin is prescribed for such conditions as tachycardia. This is mentioned by Dr Burns in Exhibit R1. However, the Applicant told Dr Burns that he had no heart palpitations at that time.
The Tribunal considers that it can be satisfied on the balance of probabilities that the clinical onset of the Applicant's IHD was in 1967. This is more than 10 years after the Applicant ceased smoking.
The Tribunal finds that it is not reasonably satisfied that factor 5(e) of the SoP has been met.
If factor 5(e) is applicable, is the factor related to the Applicant's relevant service?
It is not strictly necessary to discuss this issue in view of the finding in paragraph 71. However, if it had been necessary to make a finding, the Tribunal would have found in the Applicant's favour.
The Applicant failed on this requirement before the VRB. The VRB relied on an unreported Federal Court decision, Repatriation Commission v Edwards (No. G150 of 1993, Federal Court of Australia), in which the Court was wary of finding a service connection with smoking where a veteran has not served in a theatre of war.
The Tribunal is inclined to disagree with the VRB in this instance. The Tribunal received convincing evidence from the Applicant that he was bored in camp. He was also frustrated about the geographical separation from his young family, notably at a time when his daughter suffered an injury. He was in Western Australia. The family was on the East Coast. He also mentioned peer pressure to smoke and drink. In the Tribunal's view there is here a connection that is more than merely temporal.
The Tribunal finds that the amendments to SoP 141 of 1996 in SoPs 78 of 1997 and 38 of 1998 do not affect the above analysis.
Chronic bronchitis and emphysema
SoP 74 of 1997 prescribes a number of matters as to which the Tribunal must reach reasonable satisfaction if the Applicant is to succeed in having his lung condition accepted as a war caused disability. The issues are:
Does the Applicant suffer from chronic bronchitis and/or emphysema as described in paragraph 2 of the SoP?

Is the Applicant's condition explained by reference to a factor in paragraph 5 of the SoP, notably factor 5(b)?
Is factor 5(b) related to eligible service rendered by the Applicant?

Does the Applicant suffer from chronic bronchitis and/or emphysema as described in paragraph 2 of the SoP?

The Tribunal has noted already the assessment of Dr Gianoutsos (Exhibit A1) that finds that the Applicant satisfies paragraph 2 of the SoP except for the fact that the pulmonary obstruction is attributable to a disease other than bronchitis or emphysema. In this case that disease is hiatus hernia.
The Tribunal finds that it is not reasonably satisfied that the Applicant suffers, in the sense required in the SoP, from chronic bronchitis or emphysema. The Tribunal notes the proposition put by counsel for the Applicant (paragraph 41 above) that the disability in question is mild airways obstruction as diagnosed by Dr Gianoutsos, a condition not the subject of a SoP. However, even if that is correct and the Tribunal should assess that condition as regards whether it is war-caused, he says, "I believe that [the Applicant's] being fifteen kilograms overweight coupled with the hiatus hernia are more likely than not to be the causative factors of this problem." This is in relation to the effects of his airways obstruction. He is prepared to see a connection between the fact of the obstruction and the Applicant's smoking. However, he appears to conclude that the obstruction would be very little disabling, if at all, but for these other factors that are in no way related to service. The Tribunal finds, on balance, that the Applicant suffers from no lung condition attributable to service.
It is not necessary to consider the other requirements listed above, although it is likely that the Applicant would not have satisfied the requirement for 15 pack-years of cigarettes. The Tribunal would most likely have been impressed by Mr Godwin's arguments in favour of accepting the assessment by Dr Burns (see paragraph 51 of these reasons). The Applicant would have had only 11 pack-years of cigarettes.
Conclusion
The Tribunal has found that the Applicant's conditions of IHD and his lung condition are not war caused disabilities.
Decision
The decision under review is affirmed.
I certify that the 81 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella and Dr P D Lynch, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  20 March 2001
Date of Decision  2 July 2001
Counsel for the Applicant              Mr Smith
Advocate for the Respondent       Mr Godwin