Ewings and Repatriation Commission
[2005] AATA 315
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 315
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1632
GENERAL ADMINISTRATION DIVISION ) Re CECIL EWINGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member Dr M Thorpe Date 8 April 2005
PlaceSydney
Decision The decision made by the Veteran’s Review Board on 20 August 2003 is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
VETERAN’S AFFAIRS – operational service - incapacity arising from Hypertension, Chronic Bronchitis, Ischaemic Heart Disease – whether conditions were war caused - conditions were not war caused – decision affirmed
LEGISLATION
Veteran’s Entitlement Act 1986 sections 5C, 6C, 9, 120, 120A, 120(1),196B (2), 196B(11),
CASELAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271.REASONS FOR DECISION
8 April 2005 Senior Member, Mrs Josephine Kelly and
Member Dr M ThorpeINTRODUCTION
1. The Applicant, Mr Ewings, was born on 20 August 1933. He joined the navy on 17 April 1952 and was discharged on 16 April 1958. He trained as a signalman when he joined the navy and remained a signalman until discharged. He is a “veteran” as defined in s 5C of the Veteran’s Entitlement Act 1986 (“the Act”). Mr Ewings rendered operational service within the meaning of s 6C of the Act on board HMAS Quadrant as a signalman from 3 to 9 July 1955.
2. Mr Ewings seeks the review of the decision made by the Respondent, the Repatriation Commission (“the Commission”) on 12 February 2003 (Exhibit TD1, document T2) and affirmed by the Veterans’ Review Board (“the VRB”) on 20 August
2003 (Exhibit TD1 document T10), rejecting his claim for a pension based on incapacity arising from:
a)Hypertension,
b)Chronic Bronchitis
c)Ischaemic Heart Disease.
3. The Tribunal affirms the reviewable decision rejecting Mr Ewings’s claims.
BACKGROUND
4. It is not disputed that Mr Ewings suffers from the three conditions listed above. The issue in each case is whether the condition is “war caused” within the meaning of s 9 of the Act.
5. For completeness, the Tribunal notes that VRB changed a diagnosis of asbestosis to pleural plaques and accepted it was war caused. That matter is not in issue in these proceedings.
6. Having had operational service, the question in respect of each condition is did that operational service make a causal contribution to it. Evidence was also before the Tribunal addressing the question of whether Mr Ewings suffered from any psychiatric condition and in particular from generalised anxiety disorder associated with alcohol dependence, and nicotine dependence. This material will be addressed later in this decision.
7. A complication in this case was that the evidence given by Mr Ewings on the first day of the hearing and on which he was cross-examined related to service which was not operational service. When that was brought to the parties’ attention, that was not disputed. The parties’ legal representatives were given an opportunity in a directions hearing to determine what if anything they wished to do about that. The consequence was that the hearing was re-opened and Mr Ewings gave further evidence and further submissions were made. No other additional evidence was given.
THE LEGISLATION
8. As Mr Ewings’ had operational service, the applicable provisions of the Act are s 120 and s 120A. Section 120(1) requires the Tribunal to be satisfied beyond reasonable doubt that there is no sufficient ground for determining relevantly that a disease is war-caused. Section 120(3) requires that the Tribunal shall be so satisfied if after considering the whole of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the person. There is no onus of proof involved (s 120(6)).
9. Section 120A has the effect that an hypothesis connecting relevantly a disease suffered by the person with the circumstances of the particular service, rendered pursuant to s 120(3), is reasonable if a Statement of Principles has been determined under s 196B(2) or (11) in respect of the kind of disease under consideration that upholds the hypothesis.
10. We approach this case according to the principles set out in Repatriation Commission v Deledio (1998) 83 FCR 82 as refined in Bull v Repatriation Commission 66 ALD 271.
11. The applicable Statements of Principles (“SoPs”) in relation to the three conditions which are not in dispute are:
a)No. 35 of 2003 as amended by No. 3 of 2004 for Hypertension;
b)No. 53 of 2003 as amended by No. 9 of 2004 for Ischaemic Heart Disease
c)No. 73 of 1997 for Chronic Bronchitis and Emphysema
The earliest date of effect, if this application is successful, is 16 September 2002.
THE EVIDENCE
Mr Ewings - First Day of Hearing
12. On the first day of the hearing Mr Ewings gave evidence of the history of his service with the navy, his smoking and drinking of alcohol, and the diseases the subject of these proceedings.
13. He joined the navy in April 1952 and trained as a signalman for six months. He was assigned to HMAS Quadrant (“Quadrant”) in July 1953, remaining on the ship until 25 September 1955. Signalling included the use of traditional morse code, flags, semaphore, and morse code using flashing lights. He said he was competent, assessing his own performance as 80 or 90 out of 100.
14. The evidence of service Mr Ewings gave on the first day of the hearing related to what Quadrant did during June 1955, a period which was not “operational service” (Exhibit R4), although he said it had occurred in July (when the operational service had occurred). Following is a summary of that evidence. Quadrant went to Malaya as part of the Malaya Strategic Reserve which included ships from New Zealand and the United Kingdom. He thought Indonesia might get involved in the then conflict. He said he came to that understanding because of the signals he was sending and receiving. He knew where the ship was going before it left. He did not feel too bad at that time but felt worse as the ship got closer to Singapore. Coming in to Singapore, Mr Ewings thought “something big was going on”. There were five New Zealand ships, five Royal Australian Navy ships and numerous UK navy destroyers and cruisers.
15. Mr Ewings said that while anchored in Singapore Harbour there were killings and burning and buses being turned over. He said he could see it from the base where the ships were. He said there were a of lot signals all the time. In cross-examination, Mr Ewings conceded that the civil disturbance in Singapore was four or five miles away from the naval base where he was.
16. Mr Ewings said that Quadrant sailed up the coast of Malaya to Siam, identifying and logging Russian merchant vessels and watching smaller craft for Communist insurgents. The vessel went into the South China Sea and the Strait of Malacca. Mr Ewings said he was sending signals to the army in Malaya. He said the ships were there as a deterrent to Indonesia, to give that country the message not to start anything. His evidence was that the ship was within 12 nautical miles of the Malayan coast for four days and otherwise the ship was outside that distance. Within 12 nautical miles was not a safe distance because the ship could have been shelled from the shore and he believed the insurgents had the capacity to fire from shore. Mr Ewings said Quadrant fired a couple of times but he was not sure at what. In cross-examination Mr Ewings agreed that there was never any action from the shore at all and that the only servicemen wounded were those who got oil down their lungs during a refuelling operation at sea.
17. Mr Ewings said he suffered a lot of anxiety. He could send morse code signals using lights but could not receive them because they were too fast. He got one of his mates to take over for him. He said he “just lost it”. He also could not receive semaphore signals. He claimed only his eyes were affected. He said he was comfortable inside the ship, but on the upper deck it was open to the elements and in danger. From what he read, he expected Indonesia to come into the conflict but that did not happen.
18. He said he was “in this state”, by which I understand he was unable to receive semaphore or morse code using lights, for the rest of the time he was in the navy. His evidence was contradictory. He said he believed “they” had an idea of this and posted him to on-shore bases except for the last 9 months which he spent on HMAS Sydney but he also said the officers would not have known but he was sure that the yeoman on the bridge would have “got an inkling” about it.
19. Once he left Quadrant there was no need for visual signalling, which includes flags, morse code using flashing lights and semaphore. At on-shore bases, signalling involved decrypting, decoding, typing signals and tape relay. Mr Ewings preferred land bases because he did not have to worry about visual signals. When on the Sydney he undertook some signalling in Australian waters, although not a lot of visual signalling. He described an incident when a destroyer was with the Sydney, when he could not receive morse code light signals, semaphore or flags. Again, he said, mates helped him out. In cross-examination by Mr Huthnance for the Commission, Mr Ewings agreed that he had never been reprimanded for not carrying out his visual signalling duties and that on the Sydney the use of visual signals was negligible.
Drinking Alcohol and Smoking Cigarettes
20. Mr Ewings gave the following history of smoking and drinking alcohol. He said he first drank a couple of beers on his 19th birthday when he was at HMAS Cerberus and also had a couple of cigarettes. At Cerberus he was a light smoker, perhaps 1 or 2 a day. He was drinking only a couple of glasses of beer. There was a wet canteen where both alcohol and cigarettes were available more cheaply than elsewhere.
21. Mr Ewings gave inconsistent evidence. He said he could not drink on board Quadrant, but later said that alcohol was available on board at the rate of one bottle of beer per day but the beer would only last a fortnight.
22. Tobacco was available from the ship’s canteen, duty free. He would smoke a couple of cartons of cigarettes a week, 8 or 9 cigarettes a day. He said it was habit forming and his smoking increased.
23. As far as his time of service he described when he was based in Singapore and sailing around the Malay peninsula, Mr Ewings could not recall for sure but said drinking was not allowed during operations and smoking was not allowed on the bridge or the upper deck at night. He could smoke in the signal room where he said he spent most of his time performing decoding and typing work. He said his smoking increased to 20 cigarettes a day in this period “to soothe my nerves”. He also used 2 ounces of tobacco for roll-your-own cigarettes.
24. Mr Ewings said he kept smoking at this level plus smoking cheroots until he had a heart attack in 1982.He said after this period of service he drank and smoked more, up to 30 cigarettes a day. He agreed in cross-examination that his smoking was a habit before that period of service.
25. In his Claimant Report – Cigarette Smoking (T5 in exhibit TD1) Mr Ewings related no increase in smoking to this period in 1955, rather he stated:
“I did not smoke till I joined the Navy. Peer pressure, On or near my birth/day 1952. And cheap cigarettes obtained through the canteen allowed me to continue till I was hooked”.
26. Section 2 of that document is to be completed
“if your smoking habit changed over time”.
27. Mr Ewings specified two dates, 1978 when he began smoking 7 to 10 cigarettes a day and cigars, and 1980 when he smoked only 10 small cigars a day. Both those dates were long after his period of service.
28. Mr Ewings described getting “stuck into” beer cans on the trip from Singapore to Subic Bay in Manila where he was for a couple of days. He said he drank a lot of beer on shore in the Philippines because of the tension. He drank up to twenty 10 ounce or 15 ounce glasses. He loved drinking and smoking. His smoking while at Subic Bay was 30-40 a day. With every beer he had a cigarette.
29. Upon return to Australia, Mr Ewings was sent to HMAS Harman in Canberra where signalling involved transmission and receipt of tape-relay. He was there from 27 September 1955 to 24 December 1955. He drank and smoked more and more. He felt better when he drank and smoked. He was then at HMAS Albatross naval airfield for six months. He smoked 20 cigarettes a day and 1 packet of tobacco a week and drank the same as before, with two cigarettes for every glass of alcohol.
30. He was then posted for 11 months to Manus Island, an oil refuelling point to the north of New Guinea. It was in the tropics, very isolated, and he had nothing to do. Mr Ewings thought he drank more. There was a wet canteen every night for two hours and merchant ships brought in rum or extra beer. Mr Ewings had his own stock in a transmitting station on a hill. His smoking was about the same, 20 a day and one extra for every glass of alcohol. He enjoyed drinking and thought he became dependent and would not have been able to give it up.
31. Following his return to Sydney and four or five weeks leave, he joined HMAS Penguin, the Balmoral submarine base for three months. His last posting was HMAS Sydney. He could not smoke much of the time and cut down a bit because of fuel being pumped.
32. There was no drinking on board Sydney. Occasionally, but rarely, he got a bottle of beer a day but non-drinkers would sell their ration to him. This occurred only in the tropics. He was mostly in Sydney Harbour, berthed at Woolloomooloo and could drink when on-shore. He would usually go ashore at 4 pm and go to the St James Hotel for half a dozen drinks and then go out to the Bankstown Hotel. He did not drink much Monday or Tuesday, but did Wednesday and Friday and Saturday, when he would have about 20 beers.
33. He thought his smoking got worse during this period. He was discharged on 14 April 1958.
34. Mr Ewings was employed by Sydney County Council as a linesman’s assistant for 12 months, then as a linesman. He did that for 15 years. His drinking was no better than before and might have got worse as his wages went up. He could not smoke when up a pole, but did during morning tea, lunch time and after work. He then became a service marker, determining the size of cables for various applications, such as residential or industrial and notifying the Council of the size of poles needed. He became supervisor at Bankstown/Five Dock.
35. In cross-examination by Mr Huthnance for the Commission he agreed that he had never had any disciplinary problem because of his drinking.
The Second Day of Hearing
36. On the second day of hearing, a statement of Mr Ewings was tendered (Exhibit A2). It was clearly based on his reading of the report of the proceedings of Quadrant for July 1955 (Exhibit R4). On 1 and 2 July 1955, Mr Ewings described going ashore in Singapore and drinking alcohol and smoking tobacco. On 1 July he and some colleagues did that for about six hours and for an unspecified period on 2 July. He described the various zones into which Singapore was divided and how he and his colleagues were allowed in the outer zone which was “mildly dangerous” although he said riots were taking place and buses were being burnt in the zone. Communist insurgents were active in the inner two zones. On 3 July 1955 (the beginning of operational service, the Quadrant left the Port of Singapore and proceeded for Darwin. That evening HMAS Vengeance came alongside and two ratings were transferred to Quadrant. Following the transfer the Quadrant proceeded for Darwin. During the rendezvous of the two ships Mr Ewings was very nervous because visual signalling “would have to take place and I could not avoid this responsibility”. When the ships were a couple of miles apart he failed to received the signals correctly from Vengeance. He signalled to the signalman on Vengeance to wait and handed over to another signalman. He then wrote down the messages the signalman called to him.
“I will never forget that night because my signalman mate (a Western Australian) was seasick”
and when the signalling was finished that mate
“laid down for a while on the flag deck ‘sick as a dog’. The seas were fairly rough at the time and there was a big swell”.
37. He described sailing on 4 to 7 July through the islands of Karimata, Sapoldi and the Lombok Straights. They were within 12 nautical miles of the coastline watching for seagoing vessels. They saw some Russian merchant vessels proceedings towards Indonesia and plotted their positions. At night, the ship would hide adjacent to an island to avoid radar detection. The ship reached Darwin on 9 July 1955 (the last day of operational service).
38. The reports of proceedings for Quadrant in both June and July 1955 (Exhibit R4) make no reference to any potential danger or surveillance activities. In the July notes for the relevant period the only activities referred to apart from the rendezvous with Vengeance were “functioning trials”, ‘“4” Sub-calibre firings’, and ‘“4” functioning trials’.
Mr Ewings’s Health
39. Mr Ewings said he only went to the doctor when something was wrong and had no check-ups. He first became aware that he had high blood pressure when he had a free Red Cross check in Macquarie Street, Sydney, in 1979. He was told to go to his doctor immediately because his blood pressure was terribly high. He went to his doctor and has been on medication for that condition ever since.
40. On 30 August 1982 Mr Ewings suffered a heart attack. His specialist was Dr Tydd. Mr Ewings said “everyone” told him to stop smoking and drinking. He did not smoke again and cut back his alcohol intake. At present he has about five drinks a fortnight. Mr Ewings gave evidence of seeing Dr Simons at Saint Vincent’s hospital who referred him to a dietician. However, Mr Ewings stopped seeing both those practitioners.
41. Mr Ewings says he coughs all the time and had done so long before he had the heart attack. He used to spit out mucous all the time. He said it probably started in 1958 when he was climbing poles. Mr Ewings said his coughing has got worse and he brings up phlegm every morning and has done so for about 15 years or more.
42. He said that he had never taken any medication for his nerves and that he had seen no psychiatrist, counsellor or doctor about his nerves before he saw Dr Hordern, which was for a medico-legal report. Mr Ewings said there had been a lot of trauma in his marriage, saying he would “go off my rocker” on occasion. If his children were hurt he would “go off my crumpet”.
Does Mr Ewings suffer from a psychiatric condition?
43. The question of whether or not Mr Ewings suffered a psychiatric condition was raised for the first time before this Tribunal. Dr Hordern, consultant psychiatrist, gave oral evidence on behalf of Mr Ewings and Dr Roberts was called to give evidence on behalf of the Commission. When questioned as to the relevance of this evidence, Mr Winship who appeared for Mr Ewings resiled from relying on the evidence for the purpose of establishing that Mr Ewings suffers from generalised anxiety disorder, but relied upon the evidence to establish that Mr Ewings has a vulnerable personality but without explaining the significance of that. However, as the material is before the Tribunal it is necessary to consider it.
44. In his report dated 30 March 2004 (Exhibit A1), Dr Hordern diagnosed Mr Ewings as having suffered chronic Generalised Anxiety Disorder associated with Alcohol Dependence since July 1955. He also diagnosed Nicotine Dependence from July 1955 until Mr Ewings had his heart attack in 1982.
45. Dr Hordern understood that Mr Ewings’s smoking and drinking were heavier after a stressful episode of active service and that he was unable to carry out signalling duties as he had before that service. After the Malayan Emergency, Mr Ewings became acutely anxious. He could not do his duties and his drinking and smoking continued from that point. He was a vulnerable individual which was terribly important in “this situation”. He concluded that Mr Ewings’s functional disability was the result of anxiety and tension.
46. Dr Hordern’s opinion was that the clinical onset of alcohol dependence was the period of operational service because Mr Ewings was a moderate drinker before and heavier drinker after it. He also said alcohol makes people more depressed. In cross-examination, Dr Hordern agreed he had no treatment strategy for Mr Ewings and said that at this stage it would not help a great deal. There is no depression as Mr Ewings is living a quieter life in the country. Dr Hordern understood the “operational service” to be that Mr Ewings described in evidence on the first day of the hearing, that is in Singapore and around the Malay Peninsular.
47. Dr Hordern said that having seen people after World War II, his clinical experience does not fit with the Diagnostic and Statistical Manual of Mental Disorders- IV (“DSM IV”), because where a person has a vulnerable personality, a little stress can cause anxiety.
48. Dr Roberts’s reports dated 5 May 2004 (Exhibit R8) and 20 May 2004 (Exhibit R9) were in evidence. In his oral evidence, Dr Roberts said that there was no symptomatology that would permit the diagnosis of a reactive state including post traumatic stress disorder or adjustment disorder. According to him
“there is no evidence of either an anxiety or depressive condition arising from his war service or anything else.” (Ex R8 p 8)
He also said that Mr Ewings had denied ever feeling depressed, there was no evidence of dysfunctional state and he had sought no psychiatric assistance. Dr Roberts concluded that Mr Ewings had no impaired function as a result of military service.
49. In cross-examination, Dr Roberts agreed that a person with a vulnerable personality may be more likely to suffer an illness, but in Mr Ewings’s case Dr Roberts found there was no symptomatology of that nature. Furthermore, vulnerable personality is not a diagnosis under DSM-IV.
50. Dr Roberts also concluded that there was no diagnosis of alcohol dependence. If there were such dependence, it would have manifested itself in Mr Ewings’s ability to function in his work and personal life.
51. The Tribunal prefers the evidence of Dr Roberts to that of Dr Hordern as his assessment was in accordance with the relevant DSM-IV criteria and the evidence of Mr Ewings’s career in the navy and later. The only evidence of any dysfunctional state was Mr Ewings’s evidence of difficulties carrying out visual signalling very briefly on the Quadrant and the Sydney. On the evidence, that inability did not impair Mr Ewings’s career in the navy or in civilian life, there was no other dysfunction thereafter and Mr Ewings never sought any kind of assistance from a psychiatrist, counsellor or general practitioner. The first allegation of such a condition was when Dr Hordern provided a report for medico-legal purposes. The Tribunal finds that Mr Ewings has not suffered and does not suffer a psychiatric condition.
Other medical evidence
52. A report dated 12 May 2004 was provided by Professor O’Rourke, cardiologist (Exhibit R2). He concluded relevantly that Mr Ewings has ischaemic heart disease and hypertension but did not satisfy any of the factors listed in Clause 5 of the relevant Statements of Principle, that is, they were not related to his period of operational service. Notably, Professor O’Rouke referred to Mr Ewings’s operational service correctly as relating to steaming between Singapore and Darwin.
53. Mr Ewings told the doctor he had suffered Chronic Bronchitis for over 20 years (1984) and hypertension since 1975.
54. Professor O’Rourke found it difficult to obtain a history of Mr Ewings’s smoking during his navy career but said that Mr Ewings told him that before 1982, when he stopped smoking, he had taken up cigars. The Professor referred to Dr Tydd’s report of 16 October 1982 (Exhibit TD1 at p 49) where that doctor noted that Mr Ewings had stopped smoking heavily thirteen or fourteen years before (i.e. about 1970) and
“only smokes an occasional cigar now”.
Professor O’Rourke also noted that Dr Simons in his report of 31 May 1982 (page 133 Ex R1) stated that Mr Ewings had given up cigarette smoking about fourteen years ago (1968) but now smokes a few cigars. Dr Simons described
“alcohol excess extending back over many years, but particularly occurring when the nature of his job changed about 14 years ago”.
55. Dr Tydd also stated that Mr Ewings used to drink moderately heavily but since his lipids were found to be high, earlier in 1982, he moderated his drinking habits.
56. Professor Breslin’s report of 10 May 2004 (Exhibit R7) recorded Mr Ewings’s smoking history as having commenced in 1952 smoking four or five a week and then gradually increasing to twenty cigarettes a day of tailor-mades and 2 oz a week of ready-rubbed, then Log Cabin tobacco by 1958 together with a few cigars. He continued smoking until 1982, which amounted to thirty years of smoking, at times up to thirty to forty cigarettes a day. Professor Breslin concluded that:
“His total consumption of cigarettes over the period would have certainly exceeded ten pack years”.
57. The professor diagnosed chronic bronchitis but not chronic airflow limitation and found that the onset of the chronic bronchitis was around 1990/1992. He recorded a history of a daily cough since 1992. He noted that Mr Ewings was on no relevant medication.
58. Dr Grennall’s report (Exhibit TD1 at T6) diagnosed chronic bronchitis and smoking related chronic airflow limitation (Emphysema) with onset approximately 1980. He noted daily cough, productive of clean mucoid sputum. I note that Dr Grennall’s clinical notes (Exhibit R1 at p 186) indicate that Mr Ewings became his patient in about September 2001 after moving from Sydney.
Submissions
59. The Tribunal was assisted by submissions from Mr Huthnance for the Commission. He questioned whether Mr Ewings had experienced a stressful event. as the conditions during Mr Ewings’s period of operational service could be described as benign. Mr Ewings said he was addicted to tobacco before his operational service. That most of his colleagues smoked and drank and that was not exceptional as that was a reflection of navy culture in Australia at that time. There was no disciplinary action against Mr Ewings relating to visual signalling or throughout his post service successful civilian career, rising from a linesman to a supervisor.
60. Mr Winship appearing for Mr Ewings emphasised that the stress or anxiety Mr Ewings experienced during his period of operational service had the consequence that he increased the number of cigarettes he smoked and the amount of alcohol he drank. He had a vulnerable personality. When Mr Winship made submissions on the first day of hearing, he had relied on three stressors. They were Mr Ewings’s worry that Indonesia would become involved in the Malayan Emergency, his fear of being shelled from the shore of the Malay Peninsular, and his inability to adequately carry out his duties using visual signals. It was not clear what Mr Winship was putting as the stressor(s) arising during the actual period of operational service apart from Mr Ewings’s nervousness about visual signalling. Mr Ewings gave no evidence of any threat of danger from the islands through which the ship sailed. The activities undertaken among the island were coastal surveillance and intelligence gathering. In favour of Mr Ewings, we assume that his fear of Indonesia becoming involved in the Malayan Emergency continued.
Does the material point to an hypothesis connecting the disease(s) with the circumstances of the particular serviced rendered by the person?
61. The following hypotheses are pointed to by the material in evidence:
1.Mr Ewings’s consumption of alcohol increased during or as a consequence of stress during his operational service which caused the hypertension from which he suffered from 1979 (the date of clinical onset).
2.Mr Ewings’s operational service caused his hypertension (as discussed above) which resulted in ischaemic heart disease in 1982 (the date of clinical onset);
3.Mr Ewings’s smoking intake increased during or as a consequence of his operational service which caused the ischaemic heart disease from which he suffered from 1982.
4.The evidence raises alternative hypotheses in relation to chronic bronchitis. They are that Mr Ewings’s smoking increased because of the anxiety he suffered during his operational service which caused the chronic bronchitis, the clinical onset being (a) 1958, (b) 1980, (c) 1984 or (d) 1990/92.
Are those hypthoses consistent with the SoP “templates”?
62. The hypothesis relating to Hypertension is consistent with the SoP, factor 5(b). That is
“consuming an average of at least 200 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension”.
63. The hypotheses raised in relation to ischaemic heart disease are consistent with the relevant SoP, in relation to three factors. They are:
5(a) “the presence of hypertension before the clinical onset of ischaemic heart disease” or (as described above);
5(f) “where smoking has not ceased prior to the clinical onset of ischaemic heart disease,
(i) smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof, in other tobacco products, before the clinical onset of ischaemic heart disease.”
64. The hypothesis raised in relation to chronic bronchitis is consistent with the SoP factor.
“5(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema”.
Were the conditions related to operational service?
65. We found Mr Ewings’s evidence inconsistent and self-serving. He emphasised during his first day of evidence the stress he had suffered while serving in Singapore and around the Malay Peninsular (which was in June) and how that caused him to increase his drinking and smoking, as manifested in what happened in Subic Bay. His evidence on the second day of the hearing did not persuade us that he had suffered stress during his period of operational service which had the consequence that he increased his alcohol consumption or smoking. He gave no evidence that either his drinking or smoking increased following that period. He had not mentioned that period at all on the first day of evidence, although he did mention other periods of his naval career in relation to visual signalling and his drinking and smoking patterns. If the period of operational service had been stressful and had the consequence of increasing his drinking and smoking, we would have expected him to have mentioned it on the first day. Mr Ewings’s smoking was a habit that had been formed before his operational service. Neither his drinking nor his smoking increased as a result of his operational service.
66. Those being the two factors in the SoPs asserted to be connected to operational service, it is not necessary to make further findings of fact.
67. Accordingly, pursuant to s 120(1) of the VEA, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that any of the diseases alleged, Hypertension, Ischaemic Heart Disease or Chronic Bronchitis, is war-caused.
Decision
68. The decision under review is affirmed. That is, Mr Ewings’s claims are rejected.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Mrs Josephine Kelly
Signed: Miss Sacha Keady .....................................................................................
Associate
Date/s of Hearing 23 July 2004 and 17 November 2004
Date of Decision 8 April 2005Solicitor for the Applicant Fairbairn Lawyers
Advocate for the Respondent Mark Huthnance
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