Davison and Repatriation Commission

[2004] AATA 581

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 581

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No. N2003/1095

VETERANS’ APPEALS DIVISION )

Re JAMES DAVISON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr P D Lynch, Member

Date5 May 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.   N2003/1095

)              

VETERANS’ APPEALS  DIVISION		)
Re		JAMES DAVISON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr P Lynch, Member

Date5 May 2004

PlaceSydney

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M D Allen
  ..............................................

Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Application to have Ischaemic Heart Disease and Impotence attributed to war-service – evidence that Applicant not impotent – claim for Ischaemic Heart Disease refused as smoking habit voluntarily ceased and then resurrected 13 years later – no evidence resurrection of smoking due to war-service

Veteran's Entitlements Act 1986 – ss120(4) and s120B

Repatriation Commission v Smith 15 FCR 327

REASONS FOR DECISION

5 May 2004

  Senior Member M D Allen;

  Dr P D Lynch, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen;
  Dr P D Lynch, Member

Signed:          (K. Wong)       
          ..................................................................................…………            Associate

Date of Hearing  5 May 2004        
Date of Decision  5 May 2004

Solicitor for Applicant  Mr B Winship, Fairbairn Lawyers

Advocate for Respondent              Mr A Breen, Department of Veterans’ Affairs

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/1095

By MR S.M. ALLEN, Senior Member

DR P. LYNCH, Member
JAMES DAVISON and REPATRIATION COMMISSION
SYDNEY, WEDNESDAY, 5 MAY 2004

MR ALLEN:   By application made 8 July 2003, the applicant sought review of a decision by the respondent as affirmed by a Veterans Review Board that rejected his claims to have the conditions of ischaemic heart disease and impotence attributed to his war service.  The applicant had service in the Royal Air Force during the second world war but unfortunately for him the Japanese surrender took place before he could assume his operational duties with the squadron to which he had been posted as an air gunner.  Consequently, as he has war service but no operational service as that term is defined in the Veterans Entitlements Act 1986 as amended, the standard of proof in this matter is that prescribed by subsection 4 of section 120 of the Veterans Entitlements Act, namely, to the Tribunal's reasonable satisfaction.

As was pointed out in Repatriation Commission v Smith 15 Federal Court Reports 327, the term "reasonable satisfaction" equates to the civil standard of proof, namely that proof on the balance of probabilities.  It is quite clear, given the reports of Associate Professor Richards and Professor O'Rourke that the applicant does have ischaemic heart disease.  Further, given the clinical notes of his general practitioner, Dr Tinning and the reports referred to, the date of clinical onset of ischaemic heart disease was in the period October or November of the year 2000.

Pursuant to section 120B of the Veterans Entitlements Act, the Tribunal can only be reasonably satisfied that a disease contracted by a veteran is war caused where there is in force, a so called statement of principles and that statement of principles upholds the contention that the disease was on the balance of probabilities connected with a person's war service.  In this case, a statement of principles has been formulated regarding both ischaemic heart disease and impotence.  The instrument regarding ischaemic heart disease is instrument number 39 of 1999, whereas the instrument relating to impotence is instrument number 98 of 1996.

We mentioned the impotence instrument, however, we are satisfied on the material before us and indeed there has been no medical reports to

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the contrary, that the applicant in fact does not suffer from impotence and in that regard we would also refer to the clinical notes of Dr Tinning
and what is page 2 of those notes where the various problems of the applicant are set out.  There was also a statement at the outset of proceedings by the applicant's solicitor which mitigates against impotence being accepted but in any event, the instrument regarding impotence is on the same bases as the instrument relating to ischaemic heart disease.

That is to say, it depends on the applicant's smoking habit and dealing only with the instrument regarding ischaemic heart disease, factor 5(e) reads as follows:

Where smoking has ceased prior to the clinical onset of ischaemic                 heart disease:
           1.  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
           2.  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.

In this matter it seems clear from the applicant's evidence that he ceased smoking in 1998 and as stated earlier, the clinical onset of ischaemic heart disease was in the year 2000.  The real question is whether the smoking, which ceased in the year 1998 was in any way attributable to the applicant's war service.  We would say at the outset that we found the applicant a completely credible witness and we have no hesitation in accepting his evidence.  That is not to say, however, that some aspects of that evidence might be a little confused but then again, having regard to the age of the veteran and when events took place, it is very easy to consider that his memory of actual dates may be less than specific.

The applicant's evidence was that he was born on 21 June 1926 after education to leaving certificate standard, he left school and commenced in the wool trade but at the same time, applied to join the air force. There is at document T3 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, copies of the applicant's service medical documents and there is an entry examination medical report which bears date 26 May 1944. The applicant states that he was then called up for training in the air force, going first for recruit training to Sandgate near Brisbane then to Bradfield Park in Sydney and then being selected for training as an air gunner.

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He volunteered for that duty as he wanted to see service.  He was then sent to Sale to train as an air gunner and successfully passed the course

and was posted to an operational squadron but as stated, peace was declared the day after he was posted.  In his pre-entry medical he said that he did smoke "very light".  In evidence to the Tribunal today, he said that he probably smoked a packet of 10 cigarettes a week.  There are certain other statements, for example, remarks to the Veterans Review Board, which would seem to indicate that he smoked heavier than that but it's not necessary to decide that but if we were, we note that he was only just out of school aged 18 and it is probably unlikely that he was smoking at all heavily at that time.

During training his smoking increased and no doubt it increased for the usual reasons.  The applicant mentioned boredom and that he was among other men who smoked, particularly men who were older than him, some of whom had been posted to armoured corps, had spent periods of time in West Australia and then were re-mustering as air gunners to see some service and we can assume that they would have been smoking more heavily originally than a young man of 18.  Suffice it to say that he said that he increased his smoking and he estimates that he was smoking about four packets of 10 cigarettes a week, that is to say, 40 cigarettes a week.

He stated that he didn't wish to smoke more than 40 a week and also his parents suggested it would be desirable that he didn't smoke more.  On posting to his operational squadron, he said he felt excited.  He continued smoking post-war at about 40 cigarettes a week plus a pipe.  We would mention at this stage that it seems to us that at no stage does the applicant appear to have been addicted to smoking in the sense that he was able to control his smoking to the level of around about 40 a week plus some pipe tobacco and when he ceased smoking in 1974, he did not resume smoking again until the years 1987 or 1988.

The applicant said that he did cease in 1974 but he took up smoking again in about 1987 or 1988 when he was driving a cab.  Asked why, he said, "It just happened.  Boredom probably."  He conceded he'd given up for some 13 years.  He then ceased again in 1998.  Whereas it is easy enough to accept that the applicant increased his smoking during his war service and at this stage we do not pass any judgement as to whether it increased because of service as opposed to a mere temporal connection, he did cease voluntarily in 1974 and he took it up again later in 1987 or 1988.  It does not appear to us to have any connection whatsoever or at all with his war service.

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There is not a scintilla of scientific type evidence before us either by way of medical reports, articles from journals or whatever, that would suggest that smoking is so addictive that a smoking habit voluntarily abandoned

can resurrect itself in some 13 years later and still be attributed to its original cause.  It seems to us that when the applicant resumed smoking
after 13 years, it was for entirely different reasons and cannot in any way be connected with his war service.  On that basis, therefore, the decision under review is affirmed as there is no correlation between the smoking habit and war service.

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