Daniel and Repatriation Commission

[2007] AATA 1548

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1548

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200600416

VETERANS' APPEALS  DIVISION		)
Re		GARRY WAYNE DANIEL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Professor P Reilly AO (Member)

Date16 July 2007

PlaceAdelaide

Decision The Tribunal affirms the decisions under review to reject an application for entitlement in respect of diabetes mellitus and to continue pension at 20 percent of the general rate.

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

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – non-operational service – claim that diabetes mellitus is defence-caused – consideration of Statement of Principles – smoking – obesity – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 6A, 9, 120(4), 120B, 196A, 196B

Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Budworth (2002) 116 FCR 200

Statement of Principles Instrument No 12 of 2004

REASONS FOR DECISION

16 July 2007   Mr J G Short (Member)
  Professor P Reilly AO (Member)

1.      Garry Daniel served in the Australian Army from 25 July 1972 until 24 July 1978.  His period of eligible service was from 7 December 1972 until 24 July 1978.  His service did not include operational service.

2.      On 9 January 2006, Mr Daniel lodged a claim for acceptance of diabetes mellitus as defence-caused.  He also applied for an increase in pension in relation to his accepted disability of fixed flexion deformity right fifth finger.  On 14 July 2006 the respondent (the Commission) rejected both applications.  On 14 December 2006 the Veterans’ Review Board (VRB) affirmed both decisions and on 28 December 2006, Mr Daniel lodged an appeal to this Tribunal.

3.      The parties were able to agree certain aspects of the claim.  Mr Daniel’s advocate, Mr Duthie, said that the claim was based on satisfaction of factors 5(b) and 5(c) of Statement of Principles Instrument No 12 of 2004, that is:

“5.       The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:

…

(b)in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus; or

(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within five years of cessation; …”

4.      The Commission’s advocate said that the Commission accepted that the clinical onset of diabetes mellitus was in 2003.  The Commission also accepted that Mr Daniel did have a smoking history which included at least 10 pack years of cigarette consumption before the clinical onset of diabetes mellitus.  The advocates for both parties agreed that it was appropriate for the Tribunal to have regard to a statement about the causes of “Being Obese” issued by the Repatriation Medical Authority (the Obesity Statement).  This document is not binding upon the Tribunal, however it is the only evidence submitted by the parties in respect of its subject matter.

5.      The Tribunal has noted the areas of agreement between the parties and has further noted the assistance provided by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331 in relation to identifying the clinical onset of a condition. In the light of the evidence, the Tribunal was able to find that Mr Daniel suffers from diabetes mellitus and that the clinical onset of that condition was in 2003. The Tribunal also finds that Mr Daniel did consume at least 10 pack years of cigarettes before the clinical onset of diabetes mellitus.

remaining issues before the tribunal

6.      The primary issue before the Tribunal is whether Mr Daniel’s diabetes mellitus is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). This will be established if the Tribunal is able to determine, either that Mr Daniel was obese for a period of 10 years before the clinical onset of diabetes mellitus and that any such obesity was connected with the circumstances of his service, or that Mr Daniel’s consumption of cigarettes was relevantly connected with his service.

mr daniel’s evidence

7.      Mr Daniel provided evidence of both his smoking and obesity.  Mr Daniel’s evidence-in-chief was that he commenced smoking at a rate of 5 to 10 cigarettes a day while undertaking training at Kapooka, that is prior to December 1972, and prior to the commencement of his eligible service.  He said that during breaks in training the non-commissioned officers would suggest having a cigarette.  He also said that most troops at that time smoked.  He said that nobody discouraged his smoking.   He also suggested in evidence-in-chief, but not previously, that handling explosives could be nerve wracking.  He said that his smoking increased to 40 cigarettes a day at times.  He said that soldiers were allowed to smoke in the mess.  He said that he thought that he smoked more when he was not on duty and while he was relaxing.  He summarised his understanding of the reasons he started smoking by referring to being around people who smoked; having the opportunity to smoke and not being discouraged from smoking.

8.      During cross-examination Mr Daniel said that his advocate, Mr Duthie, had helped him complete his pension application form and smoking questionnaire as he did not understand it all.  He said that most of the writing on the form was that of Mr Duthie.  He said that he had not previously considered that his diabetes mellitus had been caused by his service, but that after speaking with Mr Duthie he considered that it was.  He said that he had not previously expected his smoking history to have been relevant to his claim for acceptance of diabetes mellitus, but after speaking with Mr Duthie he thought it was.

9.      Particularly in relation to a Claimant Report – Smoking (T9/65), Mr Daniel said that the only part of the information contained in that document which was not his idea was the reference to “peer pressure”.  Mr Daniel said that it was his idea to indicate that at the time he commenced to smoke regularly, he smoked one packet of 20 cigarettes per day.  It was also his idea to indicate that “Cigarettes were readily available at that time – and cheap.  We had much down time between activities”.  He also confirmed that it was his idea to state that the first time he commenced to smoke on a regular basis was in 1972, but he did not know which month he started.  Mr Daniel had also indicated in the questionnaire that after he commenced to smoke regularly, the amount he smoked did not change.  He said however that the last mentioned answer was wrong.  He then summarised his smoking history by saying that he started smoking at one packet per day; that he commenced at some time during 1972 and that his rate had changed during later periods of unemployment, but that generally it was 20 per day.  Mr Daniel explained that it was during breaks in his recruit training (before the commencement of eligible service in December 1972), that superiors suggested he light up cigarettes.  He thinks that he achieved his rate of 20 per day during recruit training.  He then said other reasons he commenced smoking included that others were, and it was just something he tried and became addicted to.  Mr Daniel explained apparent variations in the smoking history he had provided by saying that after service he developed a major drinking problem and that his alcohol consumption may have affected his memory.

10.     In relation to obesity, Mr Daniel said that during service he generally ate in the mess and that “back ups” were available.  This referred to second helpings.  Mr Daniel said that prior to enlistment, he had dieted to lose sufficient weight to allow him to meet Army entry requirements and that consequently on enlistment he was categorised as “fit everywhere”.  Mr Daniel said that his weight increased during service and that in about 1976 a senior officer had suggested that he apply for a medical discharge because of his weight.  This was about 4 years after his enlistment.  He said that he was encouraged to eat, although he confirmed that nobody had ever suggested he eat more.  He said that nobody suggested that he go on a weight reduction program.  However, he confirmed that he was placed on a diet at one stage during a hospital admission for an operation on his little finger.

11.     In cross-examination, Mr Daniel said that he tried to continue losing weight after his hospital admission, but was unsuccessful.  Mr Daniel was referred to a comment (T7/46), that “Whilst in hospital the patient was given 800 calorie diet for obesity, he made reasonable progress on this diet.  He is to be followed up at outpatients 4 weeks after discharge from hospital” and a comment (T7/47) on a physiotherapy referral document relating to “weight reduction exercises”.  Mr Daniel said that he could not now recall being referred for weight reduction exercises and could not recall the circumstances which gave rise to a record at T7/52 (mid June 1978) that he had lost one stone in the past 2 weeks and is still dieting. 

12.     Mr Daniel said that he did remember the circumstances of a record in his Entry History Questionnaire (T7/40) that he had “lost ½ stone last 10 weeks deliberately”.  He confirmed that he dieted so that he could meet Army entry requirements.  He agreed that his weight on entry was recorded at 167 pounds (T7/41), that is about 76 kg, and that prior to his diet, before entering service, his weight is likely to have been about 174 pounds, or approximately 79 kg.  Mr Daniel said that just before discharge his weight was recorded as 94.3 kg.  He said that during about 12 months immediately following discharge his weight increased dramatically.  He said that this rapid weight increase may have been due to a reduction in exercise during civilian life and that the quality of the food he ate in civilian life was poor.  He said his weight went to about 110 kg at one stage.  He cannot remember exactly when this was.  Mr Daniel said that his weight again declined in the mid to late 1980s when he returned to live with his mother. 

consideration

13.     Mr Duthie suggested that a causative link with Mr Daniel’s eligible service could be found through factors 5(b) and/or 5(c) of the diabetes mellitus Statement of Principles.  Factor 5(b) refers to obesity for a period of 10 years before the clinical onset of diabetes.  This factor, like factor 5(c) (smoking), must be relevantly connected with the circumstances of Mr Daniel’s eligible service.  Mr Duthie referred to paragraph (a) of the Obesity Statement which reads as follows:

“(a)exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;”

14.     “Baseline weight” is defined as meaning “the weight level which was being maintained prior to the effect of the particular factor specified”.  Mr Duthie suggested that the baseline weight in this case was the weight recorded at the entry medical and that if that weight were compared with Mr Daniel’s weight on discharge, a 20 percent increase was revealed, that is an increase from 75.9 kg on enlistment to 94.3 kg on discharge.  Mr Crowe said that it was inappropriate to use Mr Daniel’s weight on enlistment as the starting point for this calculation as this was not a “weight level which was being maintained prior to the effect of the particular factor specified”.  Mr Crowe referred to Mr Duthie’s indication of dieting for approximately 10 weeks prior to entry and achieving a one half stone loss in weight during that time.  Mr Crowe submitted that the baseline weight which should be considered for the calculation was 79 kg, that is about 3 kg or about half a stone more than Mr Daniel’s weight on enlistment.  The Tribunal notes that Mr Daniel’s weight has changed over the years and it appears from the medical records that he has been successful in dieting for brief periods (for instance during his hospital admission), but according to Mr Daniel, he quickly regained the lost weight.  In Mr Daniel’s circumstances, the Tribunal does not consider that Mr Daniel’s weight on enlistment (that is a weight which resulted from a successful 10 week period of dieting) should be considered his “baseline weight”.  In these circumstances, the Tribunal is reasonably satisfied that Mr Daniel did not have a weight gain at the conclusion of his service of at least 20 percent from his baseline weight.

15.     If the Tribunal is wrong in relation to the suggested 20 percent increase from baseline weight, the Tribunal would also consider that any increase in Mr Daniel’s weight during his eligible service was not relevantly connected with that service.  Mr Daniel suggested that a link with service through the availability of second helpings of food.  He said that during his eligible service, soldiers were required to perform one session of physical training each week.  He said however that although training personnel were available in the gym to assist people who wanted to do more, the gym closed at about 4:30pm and his working day usually extended until about 4:30pm.  Consequently, the gym was not available after he finished work.  The Tribunal notes that the Obesity Statement refers to a caloric intake which is excessive for energy needs and one which “cannot be compensated by adequate physical activity”.  The Tribunal is not satisfied that Mr Daniel was, because of his eligible service, restricted in his ability to undertake physical activity after work.  The Tribunal notes in passing that Mr Daniel substantially increased his weight during the period of about 12 months following his discharge from the service and further that Mr Daniel considers that this significant increase in weight may have been due to undertaking less exercise in civilian life than during his period of eligible service.  The Tribunal is reasonably satisfied that Mr Daniel does not satisfy factor 5(b) of the Statement of Principles relating to diabetes mellitus.

16.     In relation of factor 5(c), that is smoking for 10 pack years prior to the clinical onset of diabetes, Mr Duthie suggested that a link with service could be found through Mr Daniel’s “mess life”, that is socialising with people who smoked while in the mess.  He also referred to down times during training which provided an opportunity to smoke in an environment where most other people smoked.  Mr Crowe said that Mr Daniel’s evidence in relation to his smoking history was unreliable.  He suggested that it had varied significantly.  He said that Mr Daniel had initially indicated that he was unable to specify any particular time during 1972 when his smoking habit had commenced.  Mr Crowe referred to a statement signed by Mr Daniel on 21 June 2006 in which Mr Daniel referred to having commencing smoking:

“… at that time as we experienced a lot of down-time and breaks in corps training programmes, and smoking was encouraged, in fact it was a part of the culture in the Army … At no time during my service was smoking ever discouraged or frowned upon by my peers”. 

Mr Crowe pointed out that Mr Daniel’s corps training had been completed prior to the commencement of his eligible service in December 1972.  Mr Crowe also referred to Mr Daniel’s evidence provided at the hearing, that he started smoking at a rate of 20 cigarettes per day during some time in 1972 and that his rate of smoking did not really change during service, but increased for a time in the 1980s while he was unemployed.  Mr Crowe contended therefore that there was no relevant connection between eligible service and Mr Daniel’s smoking habit.

17.     The Tribunal noted that Mr Daniel’s evidence of his smoking history was inconsistent in some areas.  The Tribunal accepts that some inconsistency is not surprising, given the length of time that has passed since Mr Daniel commenced smoking, and noting Mr Daniel’s indication that his memory has been affected by a period of excessive alcohol consumption.  The Tribunal considered Mr Daniel’s explanation of when he started smoking, including that he was around people who smoked; he had the opportunity to smoke and was not discouraged from smoking.  After considering all of the evidence relating to Mr Daniel’s smoking history, the Tribunal has not been satisfied that the genesis or maintenance of Mr Daniel’s smoking habit was in any relevant way related to his period of eligible service.  Factor 5(c) is not established.

18.     The Tribunal has considered all of the other factors which have been prescribed in the Statement of Principles relating to diabetes mellitus and has not been satisfied that any of those factors exist in this case.

19.     No submissions were made in relation to the assessment decision to the effect that providing 20 percent of the general rate was other than appropriate.  The Tribunal considered the available evidence in relation to Mr Daniel’s accepted condition of an injury to his little finger and is satisfied that this condition is appropriately reflected through a Disability Pension paid at 20 percent of the general rate.

20.     In the light of the above mentioned circumstances, both decisions under review are affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short and Professor P Reilly AO (Member)

Signed:         ..........J Coulthard...........................................
  Associate

Date of Hearing  21 June 2007
Date of Decision  16 July 2007
Advocate for the Applicant       Mr R Duthie

Advocate for the Respondent   Mr A Crowe

DVA