Dodd and Repatriation Commission

[2001] AATA 35

DECISION AND REASONS FOR DECISION [2001] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V1999/315

VETERANS'     APPEALS     DIVISION  )          
           Re      ARTHUR HAMILTON DODD        
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Miss E. A. Shanahan, Member     

Date23 January 2001

PlaceMelbourne

Decision      The Tribunal affirms the decision under review. The applicant's ischaemic heart disease was not war-caused within the meaning of that term in section 9 of the Veterans' Entitlements Act 1986.

.......(Sgd) E. A Shanahan...........
  Member
CATCHWORDS
VETERANS' AFFAIRS – whether the development of ischaemic heart disease was war-caused within the meaning of section 9 of the Act – application of Statement of Principles No. 140 of 1996 as amended by No. 77 of 1997
Veterans' Entitlements Act 1986 ss. 9, 120(1), 120(3), 120A
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Keely [2000] FCA 532

REASONS FOR DECISION

23 January 2001                 Miss E. A Shanahan, Member      

1. This is an application for review of a decision of a delegate of the Repatriation Commission dated 14 May 1996 which found that the applicant's claim for ischaemic heart disease could not be connected to service as the relevant Statement of Principles ("SoP") was not satisfied.  This decision was confirmed by the Veterans' Review Board  ("the VRB") on 25 January 1999. 

2. The applicant was represented by Mr D. F. Hyde of counsel and the respondent by Ms T. Chant, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and, in addition, numerous exhibits were tendered.  The applicant provided a report of Dr W. E. Stone dated 17 September 1999 (Exhibit A1) and the applicant's statement regarding his smoking history (Exhibit A2) dated 17 October 2000.  The respondent tendered reports of Professor R. Harper, dated 20 September 2000 (Exhibit R1); a Combined Impairment Assessment prepared by Dr F. J. Morgan, dated 16 May 2000 (Exhibit R2); a GARP report from Dr R. Ellis-Jones, dated 5 January 2000, (Exhibit R3); a report from Mr C. Logan, audiologist, dated 2 July 1999 (Exhibit R4); the clinical notes from Dr R. Ellis-Jones, date of receipt 2 December 1999, pages 1 to 87 (Exhibit R5); a smoking history prepared by the applicant at the age of 67 (Exhibit R6) and the Transcript of the VRB hearing dated 25 January 1999 (Exhibit R7).  The veteran, Mr Arthur Hamilton Dodd, gave evidence before the Tribunal as did his wife, Mrs Joyce Lavinia Dodd, and Dr Stone by telephone. 

3. The applicant was born on 25 October 1916 and turned 84 on the day of this hearing.  The applicant served in the Australian Army from 24 November 1939 until 5 October 1945.  As he served overseas, the whole of his service constituted operational service.  As the result of the operational service, subsections 120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act") are attracted and, as the claim was lodged after 1 June 1994, the Tribunal is required to apply section 120A of the Act in reaching its decision. A reasonable hypothesis has been raised before the VRB on the facts linking the applicant's long history of smoking to the development of ischaemic heart disease. There is no issue that the applicant's smoking resulted from his war service. The reasonableness of the hypothesis has to be assessed in accordance with the relevant SoP issued by the Repatriation Medical Authority. The relevant SoP is Instrument No. 140 of 1996 as amended by Instrument No. 77 of 1997. The relevance of this SoP has been determined in light of the decision in Repatriation Commission v Keely [2000] FCA 532. The parties before the Tribunal had accepted the opinion of Professor R. Harper who had advised the clinical onset of ischaemic heart disease was in 1987. Whilst the exact date of onset was uncertain, the first clinical note on which Professor Harper relies is 9 November 1987.

4. The relevant factor applicable to the applicant's hypothesis is factor 5(e) which states: 

   "Smoking at least 5 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 15 years of cessation."

The only issue before this Tribunal is the date of cessation of smoking by the applicant. 
Documentary Evidence Regarding Cessation of Smoking

1. The Tribunal had numerous medical reports referring to the date of cessation of smoking.  This information was given to each doctor concerned by the applicant, and much of this data was collected contemporaneously.  A Repatriation Department Treatment and Report form, dated 2 September 1965, and signed by Dr T. Heale, records that the applicant ceased smoking in December 1964 (T7, page 30).  A psychiatric assessment by the Repatriation Department conducted on 27 April 1972 records the applicant as being a non-smoker (T8, page 32).  Exhibit R6 is an extract of a medical report, dated 23 March 1983, which records that the applicant ceased smoking 20 years ago.  Dr R. Ellis-Jones' clinical notes (Exhibit R4) state, on 9 November 1987, that the applicant was an ex-smoker of 30 years duration.  Dr Ellis-Jones has continued to treat the applicant to the present time and there is no entry in the records regarding the resumption of smoking.  Dr Ellis-Jones' clinical notes contain a letter from Dr N. Strathmore, cardiologist, dated 7 May 1995, in which Dr Strathmore records that the applicant stopped smoking 35 years ago (Exhibit R4, page 49).  On 2 January 1996 the applicant completed a smoking questionnaire stating that he commenced smoking at 24 years of age and ceased at age 49 (T11, page 41).  The applicant's legal representative, De Marchi and Associates, prepared an applicant's statement re smoking history, dated 17 October 2000, in which it is stated that the applicant did not cease smoking until 1983.  This statement does point out that the applicant had difficulty in remembering the exact date of cessation.  The applicant has not signed the statement.

2. In more recent times the applicant has been assessed by various consultants.  In his report of 3 June 1998, Dr M. Rosenbaum, consultant cardiologist, records that the applicant ceased smoking approximately 15 years ago (that is in 1983).  Dr W. Stone, rehabilitation and occupational physician, saw the applicant on 17 September 1999 and, while the applicant could not be certain when he stopped smoking, he told Dr Stone that it was in the 1960s after a severe bout of the flu (Exhibit A1, page 3).  Professor Harper assessed the applicant on 18 September 2000.  The smoking history obtained by Professor Harper was conflicting.  The applicant at one stage stated that he had ceased smoking in the 1960s and at another stage said he had not touched a cigarette for approximately 15 years.  Professor Harper concluded that, in view of his memory problems, Mr Dodd was not a reliable witness on this point (Exhibit R1, paragraph 1).  The bulk of the documentary evidence indicates that the applicant ceased smoking in the 1960s and probably in 1964. 
   Evidence of the Applicant

3. Mr Arthur Hamilton Dodd, the applicant, gave oral evidence before the Tribunal.  He had not smoked prior to enlistment and developed a heavy smoking habit during the war years.  He continued to smoke after discharge from the Armed Forces.  In examination-in-chief by Mr Hyde, the applicant agreed that he would have told his treating doctors in the 1960s and 1970s that he had ceased smoking and, at the time, it would have been quite accurate.  However, he stated he frequently resumed smoking, although in lesser amounts, as his wife continued to smoke.  He believed, to the best of his recollection, that he stopped approximately two years after his retirement in 1978.  When he was smoking in the 1970s he smoked up to 20 cigarettes per day.  In cross-examination by Ms Chant, the applicant agreed that his memory had deteriorated rapidly in the past 18 months and that he now had to write things down in order to remember what he had to do.  He stated he could not remember the date of his marriage nor the birth date of his son.  He was unable to remember for what periods of time he stopped smoking but thought it was probably a couple of months at a time.  The applicant agreed that he would have told his treating doctor he stopped smoking in 1963 and this would have been correct at the time.  He also agreed that the information regarding smoking would have come directly from himself.  The applicant said he would stop smoking after a bout of the flu, would then resume for one to two months and then stop again.  The applicant recalled that the inside lining of the roof of the car he purchased after he retired in 1978 was discoloured by the tar in cigarettes.  This observation he used to attempt to place a time on when he ceased smoking.  It is noted that his wife, who accompanied him in the car, did not cease smoking until 1985.  In answer to a question from Ms Chant, the applicant agreed that he considered himself a non-smoker who had occasional lapses.  He later said he resumed smoking intermittently because his wife smoked but that he only did so in the evenings and at weekends.  The applicant stated he would frequently light a cigarette for his wife and then pass it to her to smoke.

4. Dr Stone gave evidence before the Tribunal.  He agreed, in examination-in-chief, that the applicant had a greater degree of uncertainty regarding the time of cessation of his smoking than any other points in his history.  Quoting from his hand-written notes, Dr Stone indicated he had written that the applicant did not resume smoking after cessation in 1964.  Dr Stone was of the opinion that it is pretty unusual for people to say they have stopped smoking when they haven't.  Dr Stone had concluded that the applicant's memory was not reliable.  In re-examination, Dr Stone agreed that, if the applicant had not in fact stopped smoking, he would meet the SoP requirement of a gap of less than 15 years between the cessation of smoking and the onset of ischaemic heart disease which both parties accepted as being 1987. 

5. The applicant's wife, Mrs Joyce Dodd, also gave evidence before the Tribunal.  When she met her husband he was smoking two packs per day and she stated these were 20 per pack cigarettes.  She also was a smoker.  Mrs Dodd gave evidence that her husband stopped smoking after he left work 23 years ago.  She confirmed that he used to light her cigarettes for her.  She reported that her husband would frequently attempt to stop smoking but the cessation of smoking would not last long and he would resume.  In cross-examination by Ms Chant, Mrs Dodd was unable to say how long her husband would cease smoking for at any time but that she thought it might be for some weeks.  She admitted she had trouble remembering when he stopped and started smoking and, in general, she was unable to put dates on events.  Her memory was good in some things but deficient in terms of dates and times.  She stated she had stopped smoking 15 years ago.  She could not advise when her husband first tried to cease smoking.  In reply to a question by the Tribunal, Mrs Dodd advised that both she and her husband bought their own cigarettes and smoked different brands of cigarettes. 
   The Applicant's Submission

6. Mr Hyde, representing the applicant, argued that whilst the applicant did cease smoking in 1963 or 1964, his evidence before the Tribunal was that he intermittently thereafter resumed smoking and did not finally stop until after 1978, that is, ten years before the agreed onset of his ischaemic heart disease. As the relevant SoP is silent with respect to persons who stop and start smoking, as the legislation is beneficial and section 119 of the Act also benefits the applicant in terms of the effflux of time and deterioration in memory, it was argued that a hypothesis relating the applicant's cigarette smoking to the development of ischaemic heart disease within 15 years of cessation of smoking is met by the evidence of the applicant and his wife on the day of the hearing.
   Respondent's Submission

7. Ms Chant, for the Repatriation Commission, argued that the medical evidence of the 1960s is the most reliable in view of the applicant's recent memory deterioration.  It was submitted that the applicant ceased smoking in 1964 and therefore the SoP requirements are not met. 
   Decision and Conclusion

8. The Tribunal accepts the beneficial nature of the legislation and, in particular, the impact of section 119 of the Act. The Tribunal also accepts that both the applicant and his wife, Mrs Dodd, gave truthful testimony to the best of their ability. However, it is obvious that both the applicant and his wife have suffered from deteriorating memory in the last two years. Both admitted to such deterioration and an inability to remember times and dates. The Tribunal notes documentary evidence regarding the date of cessation and the contemporaneous nature of this information in the earlier reports up until 1983 when the applicant's memory was, on his own evidence, excellent. Relying on the earlier documentary evidence, the Tribunal finds that the applicant ceased smoking in the 1960s, that his ischaemic heart disease became clinically manifest in 1987 and thus the relevant SoP is not met. The decision under review is affirmed.

   I certify that the twelve (12) preceding paragraphs are a true copy of the reasons for the decision herein of

   Miss E. A. Shanahan, Member

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  26 October 2000
   Date of Decision  23 January 2001
   Counsel for the Applicant        Mr D. Hyde
   Solicitor for the Applicant         De Marchi & Associates
   Solicitor for the Respondent    Ms T. Chant, departmental advocate