Dalling and Repatriation Commission

[2002] AATA 748

DECISION AND REASONS FOR DECISION [2002] AATA 748

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V2001/325

VETERANS'     AFFAIRS        DIVISION

Re:            DORIAN ROBERTSON DALLING

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
  Dr P. Fricker                   Member
Date:             2 September 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS – ischaemic heart disease – malignant neoplasm of the rectum – eligible service – whether conditions war-caused – whether Statements of Principles satisfied – level of smoking – whether reasonable satisfaction of smoking to meet requirements of Statement of Principles – decision affirmed
Veterans' Entitlements Act 1986
Instrument Nº 39 of 1999
Instrument Nº 26 of 1996 as amended by Instrument Nº of 1998

REASONS FOR DECISION

2 September 2002  Mr B.H. Pascoe, Senior Member
  Dr P. Fricker                   Member

1. This an application to review a decision of the Veterans' Review Board ("VRB") of 7 February 2001, which affirmed a decision of the respondent dated 22 February 2000, refusing a claim for malignant neoplasm of the rectum, ischaemic heart disease, nervous condition, chronic solar skin damage and tinea.  At the hearing before this Tribunal, the applicant did not seek to pursue the claim of the latter three conditions.

2. At the hearing the applicant, Mr Dalling, was represented by Mr A. Larkin, of counsel, and the respondent by Mr K. Rudge, advocate with the Department of Veterans' Affairs. Evidence was given by telephone by Mr Dalling. In addition to the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (T1-T29), the following documents were tendered by the parties:

   Report of Professor K. Myers, surgeon, dated 21 September 2001 — exhibit A1
   Report of Mr R. Marshall, surgeon, dated 15 March 2002 — exhibit A2
   Transcript of Veterans' Review Board hearing dated 7 February 2001 — exhibit R1
   Clinical Notes of Dr M. Nolan, general practitioner — exhibit R2
   Report of Dr J. Hammond, physician, dated 31 October 2001 — exhibit R3
   Report of Dr Hammond dated 12 December 2001 — exhibit R4
   Table of documents referring to applicant's smoking dated 2 May 2002 — exhibit R5
   Documents Nº1-32 from Department of Veterans' Affairs filed — exhibit R6

3. Mr Dalling served in the Australian Army ("the army") from 23 December 1941 to 21 November 1945 which constituted eligible war service under the Veterans' Entitlements Act 1986 ("the Act"). He did not have operational service, having been based within Australia at Alice Springs or Cape York Peninsula during the whole of his service period. Pursuant to s.120(4) of the Act, the Tribunal is required to decide the matters to its reasonable satisfaction. As the claim was lodged after 1 June 1994, s.120B of the Act applies. Consequently, if there is a Statement of Principles ("SoP") issued by the Repatriation Medical Authority ("RMA") or determination under the Act relating to the condition claimed, the Tribunal can be so satisfied only if such SoP or determination upholds the contention that the condition is, on the balance of probabilities, connected with the veteran's eligible war service.

4. In this case, the relevant SoPs are:

   Instrument Nº 39 of 1999 concerning Ischaemic Heart Disease
   Instrument Nº 39 of 1999 as amended Nº 4 of 1998 concerning Malignant Neoplasm of the Rectum

Under each of these SoPs, one of the factors set out must be related to the veteran's service for the condition to be regarded as war-caused.  For ischaemic heart disease, the only relevant factors sought to be relied upon were factors 5(a) and 5(e).  These factors are:

5.        …

(a)the presence of hypertension before the clinical onset of ischaemic heart disease;

…

5.…

…

(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

(ii)smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; or 

For malignant neoplasm of the rectum, the factor relied upon was factor 5(b), which states:

5…

…

(b)smoking cigarettes or other tobacco products, where the equivalent of at least 15 pack years was consumed 30 years or more before the clinical onset of malignant neoplasm of the rectum; …    

A "pack year" is defined as 7300 cigarettes or 7.3kg of smoking tobacco per year.

1. It was acknowledged by Mr Larkin that there was not a strong case in support of the claimed condition of ischaemic heart disease.  Mr Dalling was diagnosed with ischaemic heart disease on 28 January 1992.  While waiting to be examined at the Heidelberg Repatriation Hospital, Mr Dalling developed chest pain and was admitted with myocardial infarction so that the date of clinical onset was at that time.  It is clear that he had completely ceased smoking well over 10 years prior to that date, so that factor 5(c) was not satisfied.  While it is acknowledged that Mr Dalling suffered from hypertension, the relevant SoP concerning that condition cannot be satisfied.  The only relevant factor which could be relied upon required the "suffering from alcohol dependence or alcohol abuse, involving the consumption of an average of 200 grams per week of alcohol (contained within alcohol drinks) at the time of the accurate determination of hypertension".  In evidence before a VRB hearing in 1994, Mr Dalling said that he had been a light drinker all his life and had never seen drinking as anything other than a social pleasure.  No evidence of any level of alcohol consumption, which could satisfy the factor in the SoP concerning hypertension, has ever been provided.  As a consequence, it is clear that the condition of ischaemic heart disease cannot be seen as related to the veteran's service and the decision to not accept this as being war-caused must be affirmed.

2. In relation to the claim for malignant neoplasm of the rectum, it is necessary for us to be satisfied that there was a service-related smoking of 15 pack years prior to 1962.  There is no dispute that the clinical onset was in 1992 and the factor requires 30 years to have elapsed after consumption of the required pack years.  Unfortunately, Mr Dalling, who is now 82 years of age and recently out of hospital, suffers from a poor memory and was unable to be very specific in relation to his smoking prior to, during and after the war.  He said that he believed that he had commenced smoking after joining the army.  He recalled smoking heavily while driving trucks on long distances from Alice Springs.  He believed that he was supplied with four ounces of tobacco per week and, on occasions was able to obtain more.  He believed that he continued tobacco consumption at this same rate of four ounces per week after the war and recalled collecting this regularly from his local tobacconist.  He was uncertain as to the date when he ceased smoking, but thought that it was when he sold his business in 1973.  Mr Dalling could not be certain that he had not commenced smoking prior to army service.  He did not deny that the VRB at a hearing in 1994 recorded him as having commenced "smoking some 12 to 18 months before his enlistment and smoked at a level of approximately a couple of packets per week".  He said that he could not recall but might have had "an occasional puff", although he would not have been allowed to smoke in the factory where he was working at the time.

3. There are several references to Mr Dalling smoking in medical reports in the Department of Veterans' Affairs file (exh R6).  The dates of these reports and notes relating to smoking are:

   30 October 1956  Is a non smoker
   28 August 1957  Tobacco, under 10 day
   10 November 1960  Smokes 10 cigarettes per day
   17 January 1964  Smokes – 10 cigarettes/day
   15 June 1965  Tobacco – moderate 6 a day

Mr Dalling could not recall ceasing smoking in 1956 nor could recall saying that he smoked 10 cigarettes per day in 1957, 1960 or 1964.  However, he accepted that this level of consumption may have been correct at that time.

1. To satisfy the smoking factor in the relevant SoP, Mr Dalling had to have consumed 15 pack years between January 1942 and January 1962.  The 15 pack years means a total consumption of 109,500 cigarettes or 109.5kg of tobacco.  If we were to accept that there was a constant consumption of 4 ounces of tobacco per week during the whole of the 20 years, this is equivalent to 113.4 grams per week or 16.2 grams per day or 5.9kg per annum, producing a total over 20 years of 118kg.  However, we have to be satisfied that this level of consumption occurred over the whole of the period and that level of consumption is related to service.  On balance and based on the evidence given by Mr Dalling to the VRB in 1994, we are satisfied that Mr Dalling commenced smoking prior to enlistment in the army.  It can be reasonably assumed this level was likely to be at 4 to 5 cigarettes per day.  Consequently, it is only the increase in his smoking after commencing army service which can be taken as service-related. 

2. A second difficulty is the assessment of the applicant's level of consumption post service, between November 1945 and January 1962.  We are satisfied that, for a period after service, Mr Dalling continued to consume four ounces of tobacco per week as he does have a distinct memory of collecting that quantity from his local tobacconist.  However, the medical records in 1956 refer to being a non-smoker, in 1957 to under 10 per day and in 1960 to 10 per day.  While it is often said that a smoker will tend to understate his or her level of consumption, particularly to a medical practitioner, there was nowhere near the degree of stigma attached to the habit in the 1950s and early 1960s to lead us to assume that those comments were a deliberate understatement by Mr Dalling.  We could overlook the statement of being a non-smoker in 1956, but even so doing does not lead us to be satisfied that the required factor was met.  If we accept that the increases in smoking from January 1942 was a maximum of 15 cigarettes per day and this level continued to 1952 and then reduced to 10 per day until 1962, this produces a total consumption over the 20 years of 91,250 cigarettes.  The definition of pack year is clearly on the basis of 1 cigarette is equivalent to 1 gram of tobacco so that the conversion of the number of cigarettes to weight of tobacco is a simple exercise.  In our view, the foregoing calculation of 91,250 cigarettes or 9.125kg of tobacco is likely to be higher than the consumption over the relevant 20-year period which could be reasonably attributed to service.  The consumption of 4 ounces of tobacco per week is equivalent to 16.2 cigarettes per day.  After deduction of the level of consumption pre-service, the foregoing 15 per day is most unlikely to be an understatement.  Post-1952 consumption suggested as 10 per day is again likely to be high given the statements made more contemporaneously to medical officers and, again, the need to deduct the pre-service smoking level.

3. As a consequence of the foregoing, we cannot be reasonably satisfied that the smoking of Mr Dalling satisfies the relevant SoP concerning malignant neoplasm of the rectum.  Therefore, the decision under review should be affirmed.

   I certify that the ten [10] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  15 August 2002
   Date of Decision:  2 September 2002
   Counsel for applicant:                 Mr A. Larkin
   Solicitor for the applicant:           Messrs De Marchi & Associates

   Advocate for the respondent:       Mr K. Rudge, Advocate with Department of Veterans' Affairs