Drake and Repatriation Commission (Veterans' entitlements) - [2017] AATA 836

Drake and Repatriation Commission (Veterans' entitlements) [2017] AATA 836 (12 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/5086
Re:Jeffrey Drake
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:12 June 2017
Place:Brisbane

The Tribunal sets aside the decision under. The matter is remitted to the Repatriation Commission to assess the appropriate level of entitlement. This decision takes effect on and from 30 January 2013.
................................[Sgd]........................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – whether cervical spondylosis is defence-caused – whether bilateral rotator cuff insufficiency and painful arc syndrome are defence-caused – whether ischaemic heart disease is defence-caused - whether medical conditions are related to service - Statement of Principles - decision under review is set aside
LEGISLATION
Statement of Principles concerning cervical spondylosis No 67 of 2014
Statement of Principles concerning bilateral rotator cuff insufficiency and painful arc syndrome No 101 of 2014
Statement of Principles concerning ischaemic heart disease No 2 of 2016, No 90 of 2007, No 44 of 2009, No 97 of 2010, No 126 of 2011 and No 34 of 2014
Veterans’ Entitlements Act 1986
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission (2009) 177 FCR 280
Hill v Repatriation Commission [2004] FCA 832
Kattenberg v Repatriation Commission [2002] FCA 412; 73 ALD 385
Knight v Repatriation Commission [2010] FCA 1134; 52 AAR 547
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Smith (1987) 15 FCR 325
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
Thomas v Repatriation Commission [2003] FCAFC 122
REASONS FOR DECISION
Senior Member J Sosso
12 June 2017
INTRODUCTION

Mr Jeffrey William Drake (the veteran) served in the Australian Army from 2 June 1971 until 1 June 1974. His service from 7 December 1972 until his discharge constitutes eligible defence service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).
On 11 September 2013 the Repatriation Commission (the Respondent) accepted the veteran’s claim for sensorineural hearing loss, tinnitus, non melanotic malignant neoplasm of the skin, osteoarthritis of the left knee, lumbar spondylosis and solar keratoses. However, the veteran’s claim for left shoulder cuff insufficiency and painful arc syndrome, right shoulder rotator cuff insufficiency and painful arc syndrome, cervical spondylosis, ischaemic heart disease and emphysema were not accepted on the basis that they were not related to his defence service – Exhibit 1 T16 p. 226.
The veteran was granted a disability pension at 50% of the general rate with effect from 30 January 2013.
The veteran sought review of this decision by the Veterans’ Review Board (the Board). On 11 June 2015 the Board affirmed the Commission’s decision – Exhibit 1 T2 B2.
On 25 September 2015 the veteran applied under the Administrative Appeals Tribunal Act 1975 for a review of the Board’s decision – Exhibit 1 T1 A1.
A hearing was convened on 19 April 2017. The veteran was represented by Mr A Harding of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 836
Decision Date: 12 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Mr Drake against a decision of the Repatriation Commission regarding his entitlement to benefits for certain medical conditions. The dispute centred on whether Mr Drake's bilateral rotator cuff insufficiency and painful arc syndrome, cervical spondylosis, and ischaemic heart disease were "defence-caused," meaning they arose out of, were attributable to, or were aggravated by his service in the Australian Army between 1971 and 1974. The Tribunal was required to determine if these conditions were related to his defence service, considering the relevant Statements of Principles.

The Tribunal was tasked with assessing the veteran's claims in light of the absence of contemporaneous medical records documenting specific injuries and inconsistencies in his Discharge History Questionnaire. A key issue was the veteran's assertion that his significant smoking habit, which he claimed began due to peer pressure and the availability of cigarettes in ration packs during service, was defence-caused. The Tribunal considered the veteran's testimony regarding the intense pressure to smoke and the potential for social exclusion if he did not participate, as well as the stress associated with potential overseas deployment, which he stated led to a substantial increase in his smoking.

Applying the balance of probabilities, the Tribunal found that the veteran's cigarette smoking habit arose out of, or was attributable to, his defence service. Despite the lack of direct medical records for certain claimed injuries, the Tribunal accepted the veteran's account of an accident at Canungra in 1973 and found his statements credible. Consequently, the Tribunal set aside the decision under review and determined that Mr Drake's bilateral shoulder rotator cuff insufficiency and painful arc syndrome, cervical spondylosis, and ischaemic heart disease were related to his defence service, remitting the matter to the Repatriation Commission for assessment of entitlement.

Orders

Orders of the court

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Background

Background to the litigation

Injury, disease or death is “defence caused” if it is due to an occurrence, or arose out of or was attributable to or was aggravated by defence service, or is deemed defence caused – s 70(4) and (5).THE FACTS The veteran’s age is unclear, he was either born in 1951 or 1949, but it is more likely than not that it was the earlier date. In any event, it is not disputed that he served in the Australian Army from 2 June 1971 until 1 June 1974. Most of his early life was spent in rural Victoria, in particular in Murtoa, a wheat district town of around 1000 people located 305 km north west of Melbourne in the Wimmera. The veteran testified at the hearing that neither of his parents smoked or drank alcohol. He also testified that as a youth he was not a smoker. The veteran left school at 17 years of age (Exhibit 6 p. 4). At some time after that he moved from Victoria and worked between 1968-1971 on remote cattle stations in Quilpie and Charters Towers areas of Queensland - Exhibit 4. He testified that his social life comprised going to church dances every three or four months where smoking and drinking were not allowed or going to the cinema. As the legal drinking age prior to 1975 was 21, he was not allowed into hotels – see Transcript pp 17-18, Exhibit 2 [2] – [3]. In short, the evidence presented to the Tribunal was that the veteran had very little experience of the wider world before he enlisted in 1971. The veteran claims that he started smoking after he enlisted (Exhibit 2 [4] – [6]):“4. After joining the army I first started smoking basically due to peer pressure and the fact that the army supplied cigarettes in ration packs. My recollection is that they were Marlborough brand and contained ten cigarettes. The army also supplied rum and beer.5. During training ration packs would be provided at smoko. I started to become a regular smoker.6. There was an enormous amount of pressure to us to smoke cigarettes but to smoke more and more regularly. I recall that other soldiers, including NCO’s, made statements in respect to smoking such as, ‘how can we trust you’, what are you, a weak bastard’, ‘are you a man or a girl’, if you did not smoke. You had to ‘play the game’ or you were on the outer.” The veteran testified that recruit training lasted three months, and by the end of that period he had commenced smoking, usually five or six cigarettes each day. His rate of smoking steadily increased until he was smoking 20 cigarettes each day – Transcript p. 19. After recruit training the veteran undertook core training at Ingleburn, and finally was posted to Lavarack Barracks, Townsville where, after a few weeks, he was transferred from A Company to Support Company and commenced duties as a regimental policeman in February 1972 – Transcript pp. 30 – 31, Exhibit 4 p. 230. A key issue in the increase of tobacco smoking was said to be the anticipation that the veteran was going to be deployed to Malaysia. The veteran said (Exhibit 2 at [7] – [8]):“7. My smoking gradually escalated particularly after I was warned that we were to be deployed for overseas service (in Malaya). I found the period leading up to this to be very stressful and my smoking increased substantially around about that time. To the best of my recollection I increased from 20 cigarettes a day to initially 30 cigarettes a day and that increased until 40 to 50 cigarettes a day in 1974/1975. I would say that this is the time I became dependent on smoking.8. I recall that we had been actually placed on a parade ground with a view to being taken to the RAAF base to be sent to Malaya. This was whilst I was in the second battalion. We were then told we were not going on that occasion. Prior to that, my smoking had substantially increased in the weeks leading up to it as it was assumed we would be leaving at any time. We had been told we would be going for about 12 months.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this instance the cumulative effect of all of the considerations outlined above lead the Tribunal to the conclusion, on the balance of probabilities, that the veteran’s cigarette smoking habit arose out of, or was attributable to, his defence service.DECISION The Tribunal sets aside the decision under review and decides that Mr Drake’s bilateral shoulder rotator cuff insufficiency and pain arc syndrome, cervical spondylosis and ischaemic heart disease are related to his defence service. The matter is remitted to the Repatriation Commission to assess the appropriate level of entitlement in accordance with this decision. This decision takes effect on and from 30 January 2013.

Ratio Decidendi

Legal Principle Established

The Applicant contends (ASIFC [9]) that as a result of the condition suffered by him he has been unable to work overhead or undertake various activities requiring him to lift his arms or bend and he has been unable to work since leaving the trucking industry in circa 2013.CONSIDERATIONIntroduction As previously outlined, there are three non-accepted conditions that require determination by the Tribunal. Each will be considered below. Before dealing with these, it is important to note that there are no contemporaneous service medical records confirming the occurrence of the veteran’s injury at Canungra in 1973. Further, the veteran in his Discharge History Questionnaire answered in the negative to questions as to whether he had any knee, back or joint injury or any other illness or injury. He did, however, answer in the affirmative to the question whether he had suffered from any severe head injury (concussion), and there is a reference in the form to his 1972 motor vehicle accident – Exhibit 3 p. 5. The veteran testified that although he signed the Discharge History Questionnaire he did not fill the form out. The following exchange between Mr Williams and the veteran occurred (Transcript pp. 75-76):“My query to you is, do you actually recollect whether you..? I didn’t fill that paper out. It is not my handwriting.Do you recollect whether you at the time took the time to go through your medical history with that person? They did not.Is that your recollection? That’s my recollection.So you said you signed the form? Yes.Why did you sign the form without checking it? That’s how I done things back then.What do you mean by that? What were you – were you concerned as to this being an accurate record or not at the time? It – it’s concerned about getting out of there. It’s concerned about getting discharged. They’ve got the records in front of you. They should be – they should be filling it out properly.All right, so let’s explore that a bit. You said you were concerned about getting out of there. So at the time you went through this process, what was your thought process at that time?.....It’s just, ‘Hurry up – hurry up and do it’. You don’t want to be in the army. They don’t want you to be there. They just want you out, ‘Just hurry up and do it’.” Mr Williams, on behalf of the Respondent, draws the Tribunal’s attention to not only the absence of contemporaneous medical records of any injuries suffered by the veteran at Canungra, his Discharge History Questionnaire, but also other contemporaneous material which, in his submission, is inconsistent with a finding that the veteran suffered the claimed injuries. The Tribunal has formed the view, based on all the evidence presented, that the preferable view, on the balance of probabilities, is that the veteran did have an accident at Canungra in 1973, and did suffer the injuries he claimed. While there are no contemporaneous medical records of the accident, the Tribunal has no reason to doubt the statements of Mr Catsacos and Mr Holmes. Further, the Tribunal formed a favourable view of Mr Holmes as a witness.