Donald McCready and Repatriation Commission
[2013] AATA 456
[2013] AATA 456
Division VETERANS' APPEALS DIVISION File Number
2012/3249
Re
Donald McCready
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 4 July 2013 Place Melbourne The Tribunal affirms the decision under review.
...............[sgd].........................................................
Miss E A Shanahan, Member
VETERANS’ AFFAIRS – disability pension – eligible service – macular degeneration – service related smoking – failure to satisfy SoP – decision affirmed
Legislation
Veterans’ Entitlement Act 1986 sections 7(1)(c), 5B(1), 5C(1), 120(4), 196B(3) and 196B(8)
Statement of Principles concerning Macular Degeneration, No. 14 of 2009
Statement of Principles concerning Hypertension, No. 36 of 2003
Determination As To Certain Defence Force Personnel Who Are To Be Treated As If Full-Time Members Of The Defence Force In Respect Of Service In World War 2 (18 December 1987)
REASONS FOR DECISION
Miss E A Shanahan, Member
4 July 2013
On 22 August 2011 Mr McCready lodged a claim with the Department of Veterans’ Affairs (the Department) for acceptance of macular degeneration and hypertensive heart disease as service related. A delegate of the respondent refused Mr McCready’s application on 2 November 2011. On 16 December 2011 Mr McCready sought a review of the delegate’s decision by the Veterans’ Review Board (VRB). The VRB affirmed the delegate’s decision on 16 July 2012. Mr McCready lodged an application for review of the VRB decision with the Administrative Appeals Tribunal on 30 July 2012. The parties agreed that this review was to be limited to the claim for macular degeneration.
Mr McCready was self-represented, with assistance from his son, Graham McCready. The Repatriation Commission (the Commission) was represented by Mr Ken Rudge, a solicitor with the Advocacy Branch of the Department. The Tribunal was provided with the documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-documents, Exhibit R1).
The parties tendered the following documents:
For the Applicant:
·Mr McCready’s statement of 7 January 2013 – Exhibit A1
·The report of the Military Aviation Research Services dated 2 April 2013 – Exhibit A2
·The Repatriation Commission Guidelines on Smoking and Alcohol dated 15 April 1999 – Exhibit A3
And for the Respondent:
·T-Documents – Exhibit R1
·The Determination As To Certain Defence Force Personnel Who Are To Be Treated As If Full-Time Members Of The Defence Force In Respect Of Service In World War 2 dated 18 December 1987 ((Ministerial Legislative Instrument) – Exhibit R2
·Smoking questionnaire dated 7 August 2003 – Exhibit R3
BACKGROUND TO THE APPLICATION
Mr McCready is 94 years old. He is blind and deaf. His blindness is due to macular degeneration, which was first diagnosed in the 1990s. Mr McCready has been provided with hearing aids but because of his blindness cannot operate these aids and therefore does not use them regularly. Despite his age, he is mentally very alert.
Mr McCready said he volunteered to join the Militia (Citizen Military Force) in November 1938. He was not formally accepted for service until 22 February 1939. However, having volunteered, he commenced training locally in Colac. This training involved his attendance one night per week for two to four hours and on Saturday afternoons for one to three hours. The training was primarily conducted at the rifle range. Mr McCready was at the time working as a farmer on his parents’ farm and has continued to farm ever since. In 1938, when he commenced his voluntary training, he started to smoke cigarettes. He only smoked when attending the training sessions as other volunteers also smoked. In the intervals between sessions, he did not smoke.
Mr McCready’s voluntary enlistment in the Militia forces was accepted on 22 February 1939. He continued his twice-weekly training attendances with the Militia. From 19 September until 4 October 1939 he was encamped at Queenscliff, where his duties were to patrol the area of the Point Lonsdale Lighthouse. Mr McCready’s battalion guarded the lighthouse around the clock, on shifts of two hours on and four hours off. In the 16 days he was based at Queenscliff he thinks he would have had two days off. While he was based at Queenscliff, other activities were mainly training on the guns. The battalion was housed in tents and Mr McCready said the weather was cold.
During this period, Mr McCready’s smoking increased depending on the weather. He estimated that on fine days he would smoke five cigarettes per day; but when he was out in the rain and cold this could rise to 30 per day. Mr McCready estimated that on average during the 16-day period, he would have smoked 15 cigarettes per day. While he was based at Queenscliff the Salvation Army provided each soldier with one pack of 20 cigarettes every Friday night. Further supplies were obtained by buying cigarettes from the Queenscliff shops. Following the camp duties at Queenscliff, Mr McCready returned to his family’s farm and stopped smoking except on the two days of the week when he attended Militia meetings.
Mr McCready was called up again to attend camp at Mount Martha between 8 April 1940 and 6 July 1940. At Mount Martha he started smoking regularly again. The pattern of smoking was similar to that in Queenscliff. That is, he smoked more heavily when the weather was wet, reaching 30 per day, but in finer weather smoked much less. At Mount Martha Mr McCready held the rank of Acting Corporal and his duties were to assist in the training of draftees, dig trenches and participate in route marches.
On completion of the three-month training camp, Mr McCready returned to his duties on the family farm as farming was an essential service. He was not called up again for any army service. However, he continued to participate in Militia training twice a week. Mr McCready said that once he returned to the farm he did not smoke very much, probably 10 cigarettes per week at the most. In the summer months he did not smoke at all. Mr McCready maintained this pattern of smoking until the early 1980s, when he ceased altogether. After Mr McCready’s marriage he stopped smoking cigarettes and only smoked a pipe, using one ounce of tobacco per week, on his estimation.
Mr McCready has completed two smoking questionnaires for the Department. The first questionnaire, dated 23 June 2003, declared that he commenced cigarette smoking in 1939 and smoked 25 cigarettes per day due to peer pressure and stress and ceased in 1985. The second questionnaire, dated 7 August 2003, relates to his pipe smoking and declared that he commenced in 1942 and ceased in approximately 1985. These estimates in retrospect were clearly related to the level of smoking Mr McCready indulged in during the two camps and did not continue, in terms of cigarette smoking, beyond 1942.
Mr Robert Piper of Military Aviation Research Services (Exhibit A2) provided a historical report. The report confirms Mr McCready’s service details and that cigarettes were made available to military personnel by donation from various charitable bodies. The current military guidelines for smoking and alcohol-related conditions were also provided (Exhibit A3).
Mr McCready did not drink alcohol prior to joining the Militia. Once he enlisted he drank beer, an occasional glass of wine and an occasional gin and tonic. He estimated he drank five standard drinks per week. From 1991 onwards, Mr McCready reduced his alcohol intake to one to two sherries per day. These were taken in a normal size sherry glass.
Mr McCready states that his macular degeneration began in the late 1990s. His general practitioner, Dr Rob McDonald, in his report to the Department dated 11 October 2011, stated that the duration of the macular degeneration was greater than five to six years. The presence and severity of his macular degeneration has been well documented.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr McCready’s evidence, and the relevant documentary evidence, has been summarised under BACKGROUND TO THE APPLICATION..
At the commencement of the hearing, Mr Rudge, on behalf of the Commission, conceded that Mr McCready suffered from severe macular degeneration and that he had satisfied the requirements of clause 6(a) of the Statement of Principles concerning Macular Degeneration, No. 14 of 2009 (the Macular Degeneration SoP) issued by the Repatriation Medical Authority in accordance with s 196B(3) and s 196B(8) of the Veterans’ Entitlement Act 1986 (the Act). That is, Mr McCready had a 15 pack year history of cigarette smoking and that the clinical onset of his macular degeneration was within 20 years of his ceasing to smoke. However, in view of Mr McCready’s evidence before the Tribunal, it was clear that the cigarette smoking pack years required recalculation. For this reason, the parties submitted written submissions. The Tribunal accepts that Mr McCready’s early period in the Militia, prior to the declaration of war on 3 September 1939, did not amount to eligible service.
RELEVANT LEGISLATION
Section 7(1)(c) of the Act provides that:
(1)Subject to subsection (2), for the purposes of this Act:
...
(c)a person who has rendered continuous full‑time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full‑time service; and ...
and s 5B(1) of the Act defines World War II as:
...
period of hostilities means:
(a)World War 1 from its commencement on 4 August 1914 to 11 November 1918 (both included); or
(b)World War 2 from its commencement on 3 September 1939 to 29 October 1945 (both included); or ...
Section 5C(1) of the Act provides:
continuous full‑time service means:
(a)in relation to a member of the Defence Force:
...
(ii)service in the Military Forces of the Commonwealth of the kind known as continuous full‑time military service; or ...
On 18 December 1987 a Ministerial Legislative Instrument (Exhibit R2), provided:
I, BENJAMIN CHARLES HUMPHREYS, Minister of State of Veterans’ Affairs, pursuant to paragraph 5(13)(b) of the Veterans’ Entitlements Act 1986, hereby determine that the Veterans’ Entitlements Act 1986 shall apply to, and in relation to, a person included in the following classes of persons, being members of the Defence Force, as if that person was, while rendering service during World War 2 of the kind specified in this determination, rendering continuous full-time service for purposes of this Act:
(1)persons who serviced with the Citizen Military Force or the Volunteer Defence Corps on a part-time basis during any period of such service; or ...
In accordance with the Macular Degeneration SoP, the factor that must exist before it can be said that, on the balance of probabilities, macular degeneration or death from macular degeneration is connected with the circumstances of a person’s relative service is:
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, macular degeneration or death from macular degeneration is connected with the circumstances of a person’s relevant service is:
(a)smoking at least 15 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of macular degeneration, and where smoking has ceased, the clinical onset has occurred within 20 years of cessation; or
(bconsuming a total of 140 kg of alcohol within the ten years before the clinical onset of macular degeneration; or ...
SUBMISSIONS
The Applicant
In his written submissions, Mr McCready expressed his difficulty in recalling events which happened almost 75 years ago. However, he agreed that his active service was limited and this diminished his claim. He confirmed that his macular degeneration was diagnosed around 1994 when he saw a specialist ophthalmologist in Ballarat. Mr McCready also brought to the Tribunal’s attention the fact that he had smoked a pipe for many years rather than cigarettes. He was uncertain whether this had been taken into consideration in assessing his smoking pack years.
The Respondent
Mr Rudge confirmed that Mr McCready had eligible service from the declaration of the Second World War on 3 September 1939. This was by virtue of the Ministerial Legislative Instrument, which covered persons who served with the Citizen Military Force or the Volunteer Defence Corps on a part-time basis, during any period of such service.
Clause 6(b) of the Macular Degeneration SoP sets out the requirement in relation to alcohol use - that a total of 140 kilograms of alcohol be imbibed within 10 years before the clinical onset of macular degeneration. Mr Rudge calculated that in the 10 years prior to the clinical onset of macular degeneration in 2002, as advised by Dr McDonald, Mr McCready’s alcohol intake was 54.75 kilograms. Mr Rudge also calculated whether in any 10-year period of maximal alcohol intake, Mr McCready had reached a required 140 kilograms. Based on three to four drinks a day until 1991, this calculation indicated an intake of 127.72 kilograms of alcohol in a 10-year period. [The Tribunal notes these calculations are based on three to four drinks per day. However, in his alcohol questionnaire Mr McCready stated he drank five standard drinks per week, not per day].
Mr Rudge also addressed Mr McCready’s claim relating to hypertensive heart disease. Clause 5(b) of the Statement of Principles concerning Hypertension, No. 36 of 2003 (the Hypertension SoP) requires consumption of 500 grams of alcohol (50 standard drinks) per week for a continuous period of at least six months before the clinical onset of hypertension. Mr McCready was diagnosed as being hypertensive in 2002. As from 1991, Mr McCready was drinking one to two sherries per day or ten and a half standard drinks per week. Therefore, Mr Rudge submitted Mr McCready did not satisfy the Hypertension SoP.
Mr Rudge seems to have been quite generous in estimating Mr McCready’s pack years of smoking cigarettes or equivalent tobacco products in that he has averaged Mr McCready’s smoking at 17.5 cigarettes per day for the entire period from the beginning of November 1938 until 18 September 1939; at 30 cigarettes per day from 19 September 1939 to 14 October 1939; at 17.5 cigarettes per day from 5 October 1939 to 7 April 1940; at 30 cigarettes per day from 8 April 1940 to 6 July 1940; and from 1940 to 1985 at five cigarettes per day.
Using these figures, Mr Rudge has arrived at a total of 93,795 cigarettes, or their equivalent, smoked between November 1938 and 1985, This is despite Mr McCready’s evidence that in the periods between his encampment in 1939 and early 1940, and before and after those dates, he never smoked more than 10 cigarettes per week. However, even based on these very generous figures, Mr McCready does not reach the required consumption of 15 pack years (109,500 or its equivalent).
TRIBUNAL’S DELIBERATIONS
Mr McCready’s diagnosis of macular degeneration is well-founded and the Tribunal accepts that this was initially diagnosed (in a lesser degree of severity) in 1994. It is also accepted that Mr McCready has hypertensive cardiac failure, although at the commencement of the hearing it was stated that the only matter under consideration was his macular degeneration.
As Mr McCready has eligible service as opposed to operational service, the relevant standard of proof is that of reasonable satisfaction (s 120(4) of the Act).
By virtue of the Ministerial Legislative Instrument, Mr McCready has eligible service attracting the provisions of the Act between 3 September 1939 and at least until the date when he returned to farming, in accordance with the essential services provisions on 7 July 1940.
The Tribunal has addressed Mr McCready’s alcohol consumption over the years, despite the understanding that only his macular degeneration was being considered. His alcohol consumption is relevant to his hypertensive cardiac failure and his macular degeneration. However, he does not meet the requirements for either SoPs connecting alcohol consumption to his eligible service and the development of these two conditions.
In his smoking questionnaire completed in June 2003, Mr McCready correctly stated that he commenced smoking in 1939 and that at the time of commencement he smoked 25 cigarettes per day. He also stated that he ceased in 1985. However, it would appear that he incorrectly completed question 6 which asks Did the amount smoked per day ever change since you first started smoking on a regular basis as he answered No.
As Mr McCready did not attend the VRB hearing, it was not until the hearing before this Tribunal that he has had the opportunity to correct his smoking history. On his evidence, it is clear to the Tribunal that he only reached a level of 25 cigarettes per day, on cold and wet days, during his 16 days of service patrolling the Point Lonsdale Lighthouse between 19 September and 4 October 1939. This was also true during the three months he was encamped at Mount Martha between 18 April 1940 and 6 July 1940. Outside of these times, his cigarette consumption was 10 cigarettes per week.
Despite Mr Rudge’s generous estimations of Mr McCready’s pack years of smoking, it is clear that Mr McCready does not meet the 15 pack years requirement necessary to satisfy clause 6(a) of the Macular Degeneration SoP.
The Tribunal affirms the decision under review.
I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.
........[sgd]................................................................
S Herath, Associate
Dated 4 July 2013
Date(s) of hearing 3 May 2013 Date final submissions received 5 June 2013 Applicant In person Solicitors for the Respondent Ken Rudge, Advocacy Branch of Department of Veterans' Affairs
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