De Gans and Repatriation Commission
[2000] AATA 507
•27 April 2000
DECISION AND REASONS FOR DECISION [2000] AATA 507
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1998/271
VETERANS' APPEALS DIVISION )
Re MARCEL JOHN DE GANS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Pamela Burton, Senior Member
Date27 April 2000
PlaceCanberra
Decision The tribunal gave an oral decision in this matter on 27 April 2000. The tribunal affirmed the decision under review of 31 May 1997 that the veteran's claimed condition of malignant neoplasm of the colon with metastatic liver cancer is not war-caused. Following are the written reasons of the tribunal for the decision.
..................(Sgd.)......................
Pamela Burton Senior Member
CATCHWORDS
VETERANS' AFFAIRS – veteran's entitlements – eligible defence service - whether malignant neoplasm of the colon war-caused – whether suffering from a colorectal adenomatous polyp before the clinical onset of claimed condition – cigarette and tobacco consumption assessed – relevant SoPs considered – whether smoking habit pre-existed defence service – standard of proof - reasonable satisfaction.
Legislation
Veterans' Entitlements Act 1986
Authorities
Repatriation Commission v Smith (1987) 74 ALR 537
REASONS FOR DECISION
27 April 2000 Pamela Burton, Senior Member
This is an application for review of the decision of the Repatriation Commission dated 31 May 1997 denying that the veteran's conditions of malignant neoplasm of the colon with metastatic liver cancer, diverticular disease of the colon, benign prostatic hypertrophy and internal derangement of right shoulder were war-caused. On 20 July 1998 the Veterans' Review Board ("the VRB") consented to the veteran's withdrawal of the claims for diverticular disease of the colon and benign prostatic hypertrophy and it affirmed the decision in relation to malignant neoplasm of the colon with metastatic liver cancer and internal derangement of right shoulder. Later the applicant also withdrew his claim that the internal derangement of the right shoulder was war-caused.
The veteran was represented by Mr Paul Crabb. The respondent was represented by Mr Peter Godwin on the first day of hearing and by Mr Glenn Wright when the hearing resumed for a second day. The tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T-documents"). In addition an affidavit of the veteran dated 17 February 2000 (Exhibit A) and a medical report provided by Dr Coupland, consultant physician, dated 5 November 1999 of Dr Coupland (Exhibit B), were tendered at the hearing. Dr Coupland's clinical notes were received by the tribunal as supplementary T-documents. The tribunal heard the evidence of the veteran and of the veteran's wife, Mrs Rosemary De Gans.
The remaining issue for the tribunal to decide is whether the veteran's condition of malignant neoplasm of the colon with metastatic liver cancer is war-caused.
The Veterans' Entitlements Act 1986 ("the Act") requires that for a claim to be accepted the disability must be related to operational or eligible defence service. The veteran was born on 16 October 1929. On 7 February 1950 he joined the British Army. On 30 May 1972 he joined the Royal Australian Air Force ("RAAF"). It is not in dispute that the veteran's service in the RAAF from 7 December 1972 to 15 October 1984 constitutes "eligible defence service" for the purpose of the Act.
The veteran does not bear the onus of proof. Pursuant to subsection 120(4) of the Act the tribunal is to decide whether the veteran's claimed condition is war-caused to its reasonable satisfaction and, therefore, a standard of proof on the balance of probabilities is applicable (Repatriation Commission v Smith (1987) 74 ALR 537).
In coming to its decision, the tribunal must have regard to the Statement of Principles ("SoPs"), issued by the Repatriation Medical Authority from time to time, if any, in relation to a claimed war-caused condition. These SoPs state what factors must exist for a hypothesis to be considered reasonable. Pursuant to sections 120A and 120B of the Act the tribunal cannot accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition.
In the veteran's case the relevant SoPs applying at the time of the making of the decision under review were:
(a)Instrument No. 24 of 1996 concerning Malignant Neoplasm of the Colon; and
(b)Instrument No. 92 of 1996 concerning Colorectal Adenomatous Polyp or Familial Adenomatous Polyposis.
Since that time (and before the VRB hearing) SoP No. 6 of 1998 has been issued, amending SoP No. 24 of 1996. The amendment does not affect the issues with which the tribunal is concerned in this matter. Factor 5(a) of SoP No. 24 of 1996 required, and as amended by SoP No. 6 of 1998 still requires, that the colorectal polyp existed prior to the onset of the malignant neoplasm.
The unchallenged medical evidence of Dr Coupland in his report dated 5 November 1999 (Exhibit B) is that the malignant neoplasm was, in all probability, related to or arose from the colonic polyp.
The central issue before the tribunal then, is whether a causal relationship exists between the onset of the polyp (which probably gave rise to the malignant neoplasm) and the veteran's eligible service. As to this, the connection is not established unless, as a minimum, one of the factors in Instrument No. 92 of 1996 is satisfied. The relevant factor is 5(a) which requires that the veteran must have smoked cigarettes or other tobacco products equivalent to at least 15 pack years within any 30 year period before it can be said that, on the balance of probabilities, the onset of the polyp is connected with the circumstances of the veteran's eligible service. A pack year is defined as meaning 7300 cigarettes, or 1460 cigars, or 7.3kg of pipe tobacco.
In addition to that factor being met; the tribunal is to be reasonably satisfied that the veteran's smoking during the period of his eligible defence service is connected with the circumstances of that service. This raises the further issue of the amount the veteran smoked prior to joining the RAAF and during his service with the RAAF prior to the commencement of the period eligible defence service.
The veteran's smoking historyThe veteran gave oral evidence that he first began to smoke during his service with the British Army in Malaya in 1950, having not smoked before he joined the army. He said that when he left the British Army he ceased smoking, and that he resumed again soon after he came to Australia and joined the RAAF in 1972.
When he joined the RAAF he was based in Edinburgh near Adelaide in South Australia. He commenced smoking about 5 cigarettes a day. He was then posted to Point Cook in Victoria, at which time he said he had only the occasional cigarette. His evidence is that during his posting to Amberley in 1975 until 1980 when he was posted to Darwin, his smoking increased a lot, and he consumed approximately two packets a day or more. In addition he smoked about 25 to 50 grams of pipe-tobacco a week. He said that he also smoked heavily in Darwin from August 1980 to 1984 before he was discharged from the RAAF on 15 October 1984. He thought he ceased smoking on medical advice in 1983. However, he said that his wife had reminded him that still smoked now and then up to the time he suffered angina in 1985 after his discharge.
The veteran said that his recall of dates was not good. It seems that his recollection of ceasing smoking in 1983 relates to a tonsillectomy operation he had in May 1983 (T3, pp.11, 49, 50). A medical examination record dated October 1993 (T3, p.48) reveals that the veteran stopped smoking one month before (i.e. September 1983). It seems that he resumed his smoking habit, ceasing for medical reasons when he suffered angina and was hospitalised in Fremantle, Western Australia in 1985 within six weeks of arriving in Perth.
The evidence given by the veteran at the hearing is not consistent with previous statements he has made. In a smoking questionnaire completed by the veteran on 15 April 1997 (T8), he records that he started to smoke in March 1950, and smoked 20 cigarettes a day until June 1972 (after he joined the RAAF) when he reduced to about five a day because he "felt less need". In that questionnaire he indicates that between mid 1977 until 1983 he increased his consumption by smoking, in addition to five cigarettes per day, approximately 50 grams of pipe tobacco per week. The reason he gave for this was because of the stress he suffered on "flight line duties and work generally, was in a position where I could not afford to make a mistake". He stated that he ceased smoking in 1983 (which date he now acknowledges is 1985). In the questionnaire the veteran stated that "It was difficult to reconstruct the history chronologically but what has been said now appears to be as close as I can get given the span of years".
The delegate of the respondent accepted this statement as the best evidence of the veteran's consumption of smoking during the period of his eligible defence service and took that history into account in coming to her decision (T10). She concluded that as the veteran smoked heavily from 1950 until 1972, that his consumption of tobacco (much reduced between 1972 and 1977) was not causally related to the veteran's service. Accepting the increase in the veteran's consumption by the addition of 50 grams of pipe tobacco per week from June 1977 until 1983, the delegate concluded that it was not causally related to his service.
However, even that history differs from that he gave to his doctors, Dr Jackson in 1977 and Dr Howe in 1997. An outpatient consultation record (completed by Dr Jackson when the veteran was at Amberley) dated 17 May 1977 (T3, p.34) states that the veteran gave a history of having smoked "1½ oz pipe tobacco/week for 6 years previously 20 cigarettes per day;…". Dr Howe's medical report dated 10 April 1997 (T7) records that the veteran's history of having "smoked cigs from 1948 - 1983 (from 40/day over many years down to finally 4-5/day & pipe)".
In giving his evidence the veteran didn't recall telling Dr Howe that he had smoked 40 a day since 1948. He accepted that the history he gave to Dr Jackson in 1977 is likely to be more accurate than the one he set out in the smoking questionnaire 20 years later. Further, the veteran said that he may have played down the amount he smoked in the questionnaire because he was embarrassed to admit how much he had smoked to his wife, who helped him with that questionnaire. He said that his family had always tried to stop him smoking and "you know, I lit up and hid packets away somewhere, especially when I was at Amberley and the like". He said he was embarrassed about how much he smoked.
The histories recorded in the medical records make no mention of a substantial increase in the amount the veteran smoked at any time after his posting to Amberley in 1975 or in Darwin.
In 1998 at the VRB hearing the veteran's representative, Mr Quinlivan, put forward the following smoking history as being a more accurate recollection by the veteran (referred to as the "member") as to his smoking habit (T14):
The member commenced smoking in 1950 on enlistment into the British Army. While serving with the United Nations in Cyprus in 1971 the member started "easing off" his smoking. He reduced his habit from six to eight cigarettes per day and by 1972 had ceased completely. Mr Quinlivan said the member commenced smoking again in 1975 when he was serving with 482 Squadron Amberley in the flight line equipment store. He said the member rapidly increased his habit up to about 30 to 35 cigarettes per day plus smoking a pipe at night because of the stress of work in the 482 Squadron flight line equipment section.
It is this statement upon which the veteran relies. He called his wife, Mrs De Gans to verify his claim that he increased the amount he smoked after being posted to Amberley.
Mrs De Gans gave evidence that she and the veteran were married in 1953, having first met in December 1952 in Germany. At that time the veteran was in the British Army. Mrs De Gans provided a brief history of the veteran's service. She was a good historian and fairly certain of her facts and the dates of particular events. She said that the veteran had been in Korea on a supply ship before she met him in Germany. They then moved to Aden where they were based for two years, and then to Benghazi for three years, before going back to Germany for three years. His next posting was to Cyprus for three or four years, after which the veteran completed his British Army service in England.
Mrs De Gans said that after her husband left the British Army he applied for migration to Australia. He was in the Royal Australian Air Force between about 1972 to 1984. He was first posted to Point Cook, Victoria, then to Amberley, his last posting being to Darwin.
Mrs De Gans was questioned at some length about the veteran's smoking history. She stated that the veteran was smoking when they first met. He was always trying to give up but he always smoked again. She confirmed that the veteran smoked during his British Army service. Mrs De Gans was not able to confirm the veteran's evidence that he managed to quit smoking either during his posting in Cyprus or after he left the British Army, starting again only when he joined the RAAF. She said that he smoked less in Cyprus, but didn't completely give up until after he had the angina attack after he left the RAAF.
Mrs De Gans said repeatedly in giving her evidence that "he always smoked". She said that her husband talked about giving up, and that he took up smoking a pipe to help him reduce the amount of cigarettes he smoked but "it didn't really work". This is consistent with the impression received on hearing the veteran's evidence, for while he asserted that he ceased smoking before 1972, in evidence he said that he smoked "a few a day" at Edinburgh or by the time he was posted to Point Cook, recalling that "he didn't smoke any more". He seems to equate smoking "a few a day" with having quit the habit, which might account for the different impression Mrs De Gans had as to the veteran's suggestion that he had given up smoking.
Mrs De Gans' knowledge about how much the veteran smoked depended to a large extent on her recollection of the cigarettes he asked her to buy. She said that she would buy a carton of cigarettes for her husband when she shopped. The veteran's evidence is that he smoked more during working hours, not feeling the need as much at home. Given the veteran's admitted embarrassment at the amount he smoked and the need to hide packets of cigarettes from his wife, Mrs De Gans' evidence as to how much the veteran smoked and to what extent he increased or reduced his tobacco consumption at any particular time, is not reliable. She had the impression that the veteran smoked more after the completion of his three months training period with the RAAF because in that training period he didn't have time to smoke as much.
Mrs De Gans was reluctant to quantify the amount her husband smoked before and after his posting to Amberley because she could only speculate on the amount he smoked while he was at work. She thought that when the veteran was posted to Amberley his smoking habit increased to smoking "maybe three packets a day," later in the hearing recalling that he smoked two packets a day. She maintained that he always smoked quite heavily, and that he increased his consumption in Darwin.
ConclusionsTaking the whole of the evidence and material before me into account I am satisfied that the veteran had a long-standing smoking habit of over twenty years before he joined the RAAF. He tried to give it up, and I do not accept his evidence that he succeeded in doing so during his posting to Cyprus, or at any time before joining the RAAF. Mrs De Gans' evidence, which in this respect I accept, indicates that at no stage before the veteran suffered an angina attack did he rid of his long-standing smoking habit.
I accept the veteran's evidence that he suffered more stress at the time he was posted to Amberley. On the whole of the material available the evidence does not support the finding that the additional level of stress was either temporally or causally connected to any increase (if there was an increase) in the amount of tobacco the veteran smoked. The evidence is overwhelming that the cause of his smoking, or of any increase in it, is the veteran's long-standing habit which he had tried unsuccessfully to rid.
The veteran's own statements reveal that he was a heavy smoker before he joined the RAAF. The smoking history recorded by Dr Jackson in 1977 when the veteran was at Amberley suggests that the veteran may have been smoking less than the heavy habit he had prior to joining the RAAF. In no history the veteran has given prior to the VRB proceedings in 1998 is it suggested that the veteran substantially increased his tobacco consumption on being posted to Amberley or in the course of that posting.
The veteran may have reduced the amount he smoked for a short time before joining the RAAF, or perhaps at times during his service, as there is evidence to suggest that he reduced the amount he smoked by taking up a pipe during the period of his eligible service. Whatever amount the veteran smoked during the period of his eligible service is, on the evidence, a product of an entrenched habit of smoking which continued throughout his RAAF career at either much the same level, or a lesser level, as it had been when he was in the British Army. Accordingly, the veteran's smoking habit was not causally referable to that service.
In the light of this finding, I do not need to inquire as to whether or not the SoP is satisfied in relation to the requirement of the amount the veteran smoked during the period of eligible defence service. In any event, the amount the veteran stated that he smoked in the smoking questionnaire which he completed on 15 April 1997 (T8), does not satisfy the requirement of the SoP that the veteran smoked the equivalent of 15 pack years, or 109,500 cigarettes. On that evidence the veteran's cigarette and pipe consumption would be the equivalent of 26,520 cigarettes, well short of 15 pack years. If the history given to Dr Howe on 10 April 1997 (T7) is correct, and the veteran smoked some 40 cigarettes a day reducing finally to 4 to 5 a day plus pipe tobacco, depending when the reduction commenced, then the veteran may meet the SoP requirement. However, that history is more telling of a pre-service heavy smoking pattern reducing during the eligible defence service, which belies the hypothesis that the veteran increased his tobacco consumption because of stress during that service.
DecisionThe tribunal affirms the decision under review of 31 May 1997 relating to the applicant's claimed condition of malignant neoplasm of the colon with metastatic liver cancer.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed: Eva Dimopoulos .....................................................................................
AssociateDates of Hearing 17 February 2000; 27 April 2000
Date of Decision 27 April 2000
Counsel for the Applicant Mr Crabb
Solicitor for the Applicant Snedden Hall & Gallop
Counsel for the Respondent Mr Godwin; Mr Wright
Solicitor for the Respondent Department of Veterans' Affairs, Advocacy
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