Duckworth and Repatriation Commission - [2001] AATA 153

DECISION AND REASONS FOR DECISION [2001] AATA 153

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/918

VETERANS' AFFAIRS DIVISION         )
           Re      Arthur George DUCKWORTH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date1 March 2001
PlaceSydney

Decision The Tribunal affirms the decisions under review, being – 1. The decision of the Repatriation Commission ("the Respondent") dated 13 September 1996 that refused the claim of Arthur George Duckworth ("the Applicant") in respect of asthma, chronic bronchitis and emphysema (as amended by the Veterans' Review Board), rheumatic fever, osteoarthrosis of both knees with replacement and atherosclerotic peripheral vascular disease; 2. That part of the decision of the Respondent dated 16 October 1997 that refused the Applicant's claim for bilateral open-angle glaucoma, acquired cataracts in both eyes, ischaemic heart disease, osteoarthrosis of the left ankle with fracture, and hiatus hernia; 3. That part of the decision of the Respondent dated 12 May 1998 that refused the Applicant's claim for pterygium.

…………………..

M T Lewis
Senior Member

CATCHWORDS
VETERANS' AFFAIRS – entitlement - applicant rendered eligible service – were disabilities war caused – relevant Statement of Principles applied – applicant's credibility

Veterans' Entitlements Act 1986 - ss120(4), 120B

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

Arthur George Duckworth ("the Applicant") lodged an application with this Tribunal on 18 June 1999 to review various decisions made by delegates of the Repatriation Commission ("the Respondent"), as noted below. Those decisions were reviewed by the Veterans' Review Board ("the VRB") on 25 March 1999, and affirmed, except that in the process of that review the VRB changed the diagnosis of chronic airflow limitation to read "asthma, chronic bronchitis and emphysema". All applications for review were in time.

The first decision under review is that dated 13 September 1996 that refused the Applicant's claim in respect of chronic airflow limitation, rheumatic fever, osteoarthrosis of both knees with replacement, and atherosclerotic peripheral vascular disease. The Applicant did not pursue review of those parts of the decision in respect of rheumatic fever and osteoarthrosis of both knees with replacement, and therefore those parts of the decision of the Respondent of 13 September 1996 are affirmed.
The second decision under review is that part of the decision of the Respondent dated 16 October 1997 that refused entitlement in respect of bilateral open-angle glaucoma, acquired cataracts in both eyes, ischaemic heart disease, osteoarthrosis of the left ankle with fracture, and hiatus hernia. The Applicant did not pursue those parts of the decision under review in respect of bilateral open-angle glaucoma and hiatus hernia, and therefore those parts of the decision of the Respondent of 16 October 1997 are affirmed.
The third decision under review is that part of the decision of the Respondent dated 12 May 1998 that refused the Applicant's claim for pterygium. The Applicant did not pursue that decision on review, and therefore it is affirmed.

In effect, therefore, it is only the following conditions that are at issue before the Tribunal –

Chronic Airflow Limitation (re-diagnosed as asthma, bronchitis and emphysema)
Acquired cataracts both eyes
Ischaemic heart disease
Osteoarthritis left ankle with fracture.

At the hearing of this application the Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence at the hearing and tendered the following documentary evidence:

Statement of the Applicant dated 21 October 1999 (exhibit A)
Reports of Professor N Sambrook, rheumatologist, dated 3 December 2000 (exhibit B) and 20 December 2000 (exhibit C).

The following documents were tendered as evidence on behalf of the Respondent:

Reports of Dr W Lennon, orthopaedist, dated 8 December 1999 and 19 January 2000 (exhibit 1)
Report of Associate Professor D Richards, physician, dated 23 March 2000, with letter of instruction from Respondent's advocate dated 20 March 2000 (exhibit 2)
Reports of Associate Professor R P Mattick, clinical psychologist, dated 27 April 2000 and 11 August 2000 (exhibit 3).

The Applicant undertook two periods of eligible service. The first was from 22 September 1940 to 30 November 1940; the second was from 17 March 1941 to 6 June 1941. He did not have operational service. Therefore, this matter falls for consideration pursuant to s120(4) of the Veterans' Entitlements Act 1986 ("the Act"), that requires that the matter be determined to the Tribunal's reasonable satisfaction. As the Applicant lodged his claim in respect of all conditions the subject of this review after 1 June 1994 the matter must also be determined pursuant to s120B of the Act by applying the relevant Statement of Principles.
The Applicant has chosen to rely on his accrued right to have the matter determined according to the Statement of Principles that applied at the date of the primary decisions, pursuant to the decision of Keeley v The Repatriation Commission (2000) 98 FCR 108.
Ankle Injury
The relevant Statement of Principles and factor upon which the Applicant seeks to rely for the condition diagnosed as osteoarthritis of the left ankle with fracture is Instrument No 72 of 1995 (amended by No 337 of 1995 and No 353 of 1995); factor 1(b)(vi): suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis.
The Applicant's ankle injury occurred in 1940, during his first period of service. He said he was running down the side of a mountain when he tripped on loose stones and hurt his left ankle. He attended sick parade the next morning and the doctor said it was sprained. It was strapped with a "crepe bandage" and he was put off duty for two weeks. Following that time the doctor certified light duties for a few weeks until he had recovered.
The Applicant said that in preparation for a left knee replacement in 1985 an X-ray was taken that revealed an old fracture of his ankle. He said this was the first time he was informed that he had had a broken ankle. He was unable to explain the information on his enlistment medical history sheet dated 7 August 1940 (T5) where in his own handwriting, in response to a question whether he had had a broken bone or serious injury, he wrote "Broken Bone in Ankle".
The Applicant also claimed that he had suffered from rheumatic fever during his second period of service, but later he agreed that it had occurred in November 1941 after the end of his second service period. He said the symptoms included swelling and redness of the joints.
The Applicant agreed that he also suffered from osteoarthritis in his spine and hands, but said that his knees and ankles caused the most trouble prior to his knee replacement.
Professor Sambrook, rheumatologist, (exhibits B and C) saw the Applicant on 29 November 1999. His diagnosed osteoarthrosis of the left ankle, and noted that although he had not seen any X-rays he assumed there was radiological evidence of a previous fracture. Although he accepted that the Applicant had suffered rheumatic fever in 1941 he did not consider that to equate with inflammatory rheumatic disease. He considered that the incident when the Applicant fell down the mountain side, if it occurred, was consistent with the definition of trauma in the relevant Statement of Principles.
Dr Lennon, orthopaedic surgeon (exhibit 1) examined the Applicant on 8 December 1999 and 19 January 2000. In his report of 8 December 1999 he stated that the Applicant suffered from clinical osteoarthrosis but there were no X-rays to confirm this. He was doubtful about the progressive development of this condition from a sprain on service. He thought the fracture of the ankle most likely to have occurred before service, citing the examination in August 1940 (T5). In his report of 19 January 2000, he noted that the Applicant also suffered from generalised osteoarthrosis of both knees, lumbar spine, cervical spine and hands.
It was submitted for the Applicant that the history of trauma given by the Applicant when he fell down the mountain and injured his ankle was consistent with the definition of trauma in the relevant Statement of Principles, both in terms of duration and symptoms. The injury sustained by the Applicant during this fall was sufficient to contribute to the development of the claimed condition.
It was submitted for the Respondent that the Applicant had two major hurdles in respect of his ankle condition. The first was the Applicant's credibility, and the second is whether, if the injury does exist, it satisfies the factor in the Statement of Principles. The Applicant's evidence that he first learned that he had a fractured ankle in 1985 was inconsistent with the record, in his own handwriting, in a medical history record dated August 1940 that he had a broken bone in his ankle. It was submitted that it was inconceivable two weeks of bed rest and a further two weeks of light duties would not be recorded in the Applicant's service documents. This represented one third of the Applicant's first period of service. It was submitted that it was more likely that the incident did not occur than that the record is unavailable.
The Tribunal finds that the Applicant was not a credible witness. His inability to explain the entry about his broken ankle, as it appears in his enlistment medical history record, and the absence of any record of his alleged ankle injury during his first period of service, when considered together and in the context of the general demeanour of the Applicant, does not enable the Tribunal to be reasonably satisfied that the fall down the mountain occurred, or if it occurred, that a serious injury was sustained sufficient to contribute to the existing osteoarthritis of the left ankle. The Tribunal is reasonably satisfied that the Applicant sustained a fractured left ankle prior to his enlistment and that injury caused the condition now claimed. Therefore, that part of the decision of the Respondent dated 16 October 1997 in respect of osteoarthrosis left ankle with fracture is affirmed.
Asthma, bronchitis and emphysema (previously diagnosed as chronic air flow limitation), atherosclerotic peripheral vascular disease and acquired cataracts both eyes
The Applicant seeks to rely on his smoking habit in respect of these conditions. The following Statement of Principles are relevant:

Chronic Airflow Limitation, Instrument No 18 of 1994 (as amended by No 66 of 1994); factor 1(a): smoking at least 15-pack years before clinical onset of chronic airflow limitation.
Atherosclerotic Peripheral Vascular Disease, Instrument No 88 of 1995; factor 1(a): smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least 3 years before the clinical onset of atherosclerotic peripheral vascular disease and, where smoking has ceased, the clinical onset has occurred within 10 years of cessation.
Acquired Cataracts, Instrument No 147 of 1996; factor 5(a): smoking at least 20 cigarettes per day for at leat 40 years before the clinical onset of acquired cataract.

The Applicant was born on 11 June 1918. He was aged 22 years on enlistment in 1940. In his oral evidence he was asked whether he smoked before his service. He said –
I smoked occasionally, yes. I wouldn't have taken it up, my father wouldn't let me smoke and he smoked but he wouldn't let me. He wouldn't let any of his two sons smoke, well my other two brothers but I had a couple of smokes.

He was then asked how many he smoked at that time, and he said –

I smoked I suppose, it all depends how many. I'd get a packet when I had the money to buy them and I could smoke two one day, three, four, and I know I smoked six at one time until that packet went and then I just had to wait and get some more money and buy another packet.

He said he did not smoke every day because he did not always have money to buy cigarettes. However, in cross-examination he agreed that Carreras supplied free cigarettes to employees but said he did not take them before his Army service because he was not a smoker. In his oral evidence he denied that he smoked "half a dozen cigarettes each day" prior to his service, as recorded by Professor Mattick.

In his written statement (exhibit A) the Applicant said –
I started working for the tobacco company Carreras in early 1940. At this time, I was not a regular smoker nor did I smoke whilst employed by them as a civilian.
The Applicant said after his enlistment the tobacco company sent him a carton of 200 cigarettes a month. On a route march during a ten minute break he would "smoke a couple". On finishing training each day he would "get some more tobacco or cigarettes and have a few beers", and then he would play poker with his peers "and they'd be smoking". He said –
I got addicted to it and I get heavier and heavier. I was always going to the canteen and getting cigarettes whenever you could and I turned out to be a very heavy heavy smoker.

In his written statement he said "to relieve boredom we spent our time at the wet canteen, drinking and smoking". He said after he returned to Carreras he continued to smoke, and on returning to the Army in March 1941 he was again provided with free cigarettes each month.

After his discharge in January 1942 on medical grounds, he returned to Carreras (which later became part of WD and HO Wills), for sixteen years (exhibit A). He said he became a very heavy smoker, smoking "sixty to eighty cigarettes per day, sometimes more". At the hearing the Applicant was asked how long it took him to reach that level. He said –
I just smoked more from 30 a day or 40 a day and it just went up and up. I just got a, you know I got addicted to smoking.
He also said that he ceased smoking in 1985 for "health reasons".
When the Applicant's attention was drawn in cross-examination to a history he gave during a medical examination on 8 December 1978 (T7) to the effect that he smoked "10 cig/day since aet 18" he denied that it was true. In respect of a smoking questionnaire signed by the Applicant and dated 15 July 1996 (T16) it was recorded that he first started smoking in 1939, he smoked 20 cigarettes a day and he started to smoke because of "peer pressure & stress". In cross-examination he was asked to explain this statement. He said it was completed for him by an RSL advocate, it was not correct, and he did not know why he signed the form but said "I must have overlooked it or somehow or other".
The Tribunal notes the report of Dr Miller, cardiologist, dated 27 October 1998 (T38, p178), where he appears to have accepted the smoking history provided by the Applicant (T16). The Applicant advised him that he increased his smoking during the three months on service from 22 September 1940 to 30 November 1940 because of the provision of 200 cigarettes a month by his employer.
The Applicant stated that there was an incident during his first period of service where he found his lady friend in bed with another man. He said that this event distressed him and his smoking increased after this.
An arrangement was made by the Respondent for the Applicant to be examined by Associate Professor Richards, cardiologist. The Applicant did not attend but a report was provided by Professor Richards (exhibit 2) on the basis of the documentary evidence. On the basis of the s37 documents and the Applicant's statement (exhibit A) Professor Richards assumed that the Applicant's smoking probably increased during his service, and that he smoked considerably more following his service. Professor Richards concluded in effect that if it is established that the Applicant's increased smoking during his Army service was due to service, then the claimed conditions that were caused or aggravated by smoking were war-caused.
Associate Professor Mattick, clinical psychologist, examined the Applicant on 27 April 2000 (exhibit 3). He noted that the Applicant said he smoked half a dozen cigarettes a day when aged 19 to 20, and that he smoked in that way when cigarettes were available and that he had a limited amount of money to spend on cigarettes. He noted that the Applicant said that he only received one shipment of 200 cigarettes from his employer whilst on service. The Applicant gave Professor Mattick a number of reasons for smoking when on service including boredom, the habits of other servicemen, not having the need to pay board and having a sufficient income. He also noted that the Applicant spoke of an incident during leave where he found a lady friend in bed with another man and that the Applicant's smoking increased by ten to twenty cigarettes a day because of the distress of this incident. Dr Mattick surmised that the increase from service itself would only have been about 4 cigarettes a day. In his final reference to amounts smoked Dr Mattick notes that the Applicant recalled his eventual tobacco consumption at about 60 to 80 cigarettes a day.
Professor Mattick opined that there were no stressors on service causing the Applicant's smoking apart from discovering his friend's "affair". He noted that the differing accounts of the smoking history might be partly because of RSL advocates filling out forms for the Applicant. He also opined that it was likely that the passage of time has diminished the Applicant's ability to recall. He stated that it is difficult to find any clear basis on which to determine that the Applicant's cigarette consumption was increased because of his service. He thought that the smoking was related to pre-service behaviour and the discovery of the "affair".
The Tribunal notes that in a medical history and examination record dated 21 May 1979 (T12), it is documented that the Applicant smoked eight cigarettes a day. The clinical notes of Dr Sevier, physician, dated 6 June 1979 (T13, p94), record that the Applicant smoked 10 cigarettes a day, and formerly he smoked 15 a day. The Applicant's smoking questionnaire dated 15 July 1996 (T16) records that in 1940 to 1941 he smoked "30 cigs and 2 oz" and in 1962 he smoked "40 cigs and 5oz". The Tribunal notes that prima facie this evidence seemingly suggests that the Applicant was smoking tailor made as well as "roll your own" cigarettes. On the Tribunal's calculation these figures indicate that the Applicant was smoking the equivalent of 20 cigarettes per day before his service, 29 per day in 1940-41, and 60 per day in 1962.
Dr Michael Burns, thoracic physician, examined the Applicant and provided a report on behalf of the Applicant for the VRB dated 19 October 1998 (T38, p174). He obtained a history that the Applicant's smoking increased considerably during service because of the ready availability of cigarettes. He understood that the Applicant smoked at least 15 pack years of cigarettes before the onset of breathlessness, which Dr Burns presumed was related to the development of bronchitis and emphysema about 1958 and continued to smoke until the 1980s.
It was submitted for the Applicant that the most detailed history of the Applicant's smoking was that given to Professor Mattick (exhibit 3). The Applicant's statement (exhibit A) was essentially a shorter but similar history. However, the Applicant submitted that Professor Mattick misrepresented him on two issues. Firstly, although Professor Mattick wrote that the Applicant smoked half a dozen cigarettes daily at the age of 19 or 20 years, he then wrote that the Applicant only smoked in this fashion if cigarettes were available and he had the money. It was submitted that this creates a false impression of the Applicant's smoking habit that pervades throughout the remainder of the report. Additionally, it was submitted that it was absurd to allocate a proportion of the Applicant's total smoking to various specific factors as Professor Matttick has been asked to do. While the Respondent agreed that it was not possible to apportion the various contributors to the Applicant's smoking, it was submitted for the Respondent that the most significant factor was the incident with the Applicant's lady friend which could not be attributed to his service.

It was submitted that there were six factors during the Applicant's service that were involved in moving the Applicant from a regular smoker to an extremely heavy smoker. Firstly, Carreras, his employer, did not provide tobacco to those who were not on service. Secondly, his boredom during service was an aspect of service. Thirdly, he was in a very close social environment with his peers who were smoking at the canteen, playing poker and at "smoko breaks" on route marches. Fourthly, he received regular pay with which he could do what he wished; fifthly, he did not have to pay board. The combination of these issues meant that the Applicant had money to spend and he was not restricted in how he spent it. The sixth factor was his discovery of his lady friend in bed with another man. This is the only factor that was not related to his service.
The Applicant submitted that the requisite conditions related to smoking within each of the three relevant Statements of Principles were shown to have been satisfied. In regards to factor 1(a) of Instrument No.18 of 1994, as amended by No.6 of 1994, the Applicant claimed that he smoked at least 30 cigarettes a day from 1940, and the condition existed in 1956; therefore he would satisfy the test. In regard to factor 1(a) of Instrument No.88 of 1995, it was submitted that the Applicant would have smoked much more than five cigarettes a day for more than three years prior to the onset of atherosclerotic peripheral vascular disease. In relation to factor 5(a) of Instrument No 147 of 1996, it was submitted that on the evidence of the Applicant and the history given to Dr Mattick, the Applicant was a heavy and addicted smoker. He would have smoked 20 cigarettes a day for up to 47 years prior to the onset of the condition.
It was submitted for the Respondent that the reliability of the Applicant's evidence in relation to his level of smoking was at issue. The evidence given by the Applicant at the hearing was contradicted by that in various medical reports. The Respondent referred to five different records providing different levels of the Applicant's smoking consumption. In December 1978 a doctor writing in response to the Applicant's claim for an arthritic condition noted he was smoking 10 cigarettes a day from the age of 18 (T7, p41). In May 1979 a doctor who examined the Applicant in respect of a claim for rheumatic fever recorded that he smoked 8 cigarettes a day (T12, p54). Clinical notes dated 6 June 1979 indicate the Applicant had previously been smoking 15 cigarettes a day but was currently smoking 10 a day (T13, p94). The Applicant's own statement on cigarette smoking (signed by him in 1996) recorded him smoking 20 cigarettes a day when he commenced smoking. It was submitted that although the records individually may not suggest much, taken as a whole they are markedly different from the consumption now claimed by the Applicant for that period. This is evidence of a deficiency in recall and reduces the weight of the Applicant's evidence.
The Respondent countered the factors submitted for the Applicant as ones connecting his cigarette smoking to service. Addressing the first factor, the Respondent submitted that the free cigarettes supplied by Carreras were available both before and during service. Hence, the supply of cigarettes was due to the Applicant's civilian employment and not to his service. It was submitted for the Respondent that there was no inherent difference between leisure activities undertaken prior to and during service and therefore the opportunity to smoke was equivalent in both. It was also submitted for the Respondent that working in a cigarette company meant the Applicant was under an equal peer pressure to smoke. It was submitted that the factors of regular pay and combined board were of no consequence because due to his work as Carreras, cigarettes were freely available to him.
It was submitted for the Respondent in conclusion that even the minimal quantity of service related smoking required in the atherosclerotic peripheral vascular disease Statement of Principles has not been met and similarly the factors required by the other two Statements of Principles have not been met.
The first hurdle for the Applicant in respect of the various Statements of Principles in which the Applicant relies on the smoking hypotheses, is whether the Tribunal can give any weight to his evidence. The Tribunal finds that the Applicant was not a credible witness. His evidence given orally at the hearing about the commencement of his smoking, even taken on its own without any reference to other statements he has made at other times about the commencement of his smoking, of itself gives a confused and unclear picture about the nature of his smoking prior to his enlistment. The Tribunal is reasonably satisfied that the Applicant's smoking habit was clearly established prior to his enlistment at the age of 22 years. He had access to a quota of free cigarettes from his employer prior to service. The Tribunal does not accept the Applicant's evidence that he did not utilise his allowance of cigarettes from his employer prior to service. This evidence does not sit comfortably with his evidence that he did not smoke regularly before service because he did not have the money.
The Applicant's first period of service was ten weeks. He had received 200 cigarettes from his employer as his ration on service. We have no evidence of the quantity he to which he had access from his employer prior to service, but he admitted they were available although he said he did not utilise his ration. The Tribunal is not reasonably satisfied that the Applicant's employer provided more cigarettes to him on service than before service.
The Tribunal is concerned about the very different quantities of cigarettes to which the Applicant has admitted smoking when one could have perceived this to be in the interests of his claim. The real difficulty that the Tribunal has with the evidence as it stands, is to identify where the truth lies. Because of the grossly conflicting evidence about the amount the Applicant smoked at various times in his life the Tribunal cannot be reasonably satisfied that he increased his smoking on service, or indeed that he increased his smoking at any time because of the conditions of his service, and that as a result of his service he became a very heavy smoker until about 1985.
On the basis of this finding the Applicant fails to meet the smoking factor in any of the relevant Statements of Principles, and therefore his case must fail. Hence, the Tribunal affirms the decision of the Respondent that the conditions of acquired cataracts in both eyes, ischaemic heart disease, asthma, bronchitis and emphysema are not war-caused disabilities pursuant to the Act.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 August 2000
Date of Decision  1 March 2001
Solicitor for the Applicant  Mr Sherlock, Legal Aid Commission of
NSW

Representative for the Respondent Ms Doggett, Department of Veterans'
Affairs