Gamley and Repatriation Commission - [2002] AATA 370

DECISION AND REASONS FOR DECISION [2002] AATA 370

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/477
VETERANS'     APPEALS      DIVISION
  Re:         GRACE EILEEN GAMLEY
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             20 May 2002
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused with effect from 23 April 2000.
(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - carcinoma of the bowel - excessive consumption of cigarettes - whether death war-caused
Veterans' Entitlements Act 1986 ss8, 119(1)(h), 120(4), 120B
Re Bridgeman and Repatriation Commission (AAT 12586, 29 January 1998)
Re Doolan and Repatriation Commission (1996) 41 ALD 557

REASONS FOR DECISION

20 May 2002 G.D. Friedman, Member

This is an application by Grace Eileen Gamley (the applicant), widow of George Keay Gamley (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 21 February 2001. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 5 October 2000, to refuse a claim for pension for death of the veteran from carcinoma of the bowel on the basis that the death was not related to service.
At the hearing of this matter on 13 May 2002 Ms J. Bornstein of counsel represented the applicant and Ms J. McCulloch, advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T28), together with four exhibits lodged by the applicant (Exhibits A1-A4) and four lodged by the respondent (Exhibits R1-R4).
BACKGROUND
The veteran was born on 20 November 1920. He enlisted in the Australian Army (the army) on 18 December 1941 and served in Melbourne before a posting to Queensland on 18 June 1943. He returned to Melbourne on 19 July 1944 and was discharged on 5 February 1946. In accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), the period from 18 December 1941 to 5 February 1946 was eligible service.
In the 1980s the veteran developed a heart condition and was treated with medication. Eventually he required the insertion of a pacemaker. In 1983 x-rays showed the presence of emphysema, and in August 1998 he was diagnosed with advanced and incurable cancer of the bowel which probably originated in the colon. The veteran died on 20 December 1998.
On 13 May 2001 the applicant sought review of the VRB decision by the Tribunal.
EVIDENCE
The applicant told the Tribunal that she met the veteran when she was aged 19 years and he was aged 20 years. They were married in 1942. She confirmed the contents of a statutory declaration dated 23 April 2001 (Exhibit A3) and stated that the veteran was a non-smoker when they met, and started smoking when he joined the army. The applicant told the Tribunal that he had developed the habit by the time of their marriage. She described him as a very heavy smoker, and said that he stopped smoking for 3 months before he had a pacemaker installed, but resumed shortly afterwards. She said that the veteran smoked about 30 to 40 cigarettes (or about 2 packs) each day and that this figure did not change substantially, despite several efforts by him to reduce the quantity when he was ill.
The applicant explained that at various times the veteran felt guilty about his excessive cigarette consumption, so he understated the number of cigarettes he smoked when answering questions from medical practitioners. She said that he did not want to give up smoking despite his illnesses.
Ian Gamley, son of the applicant and the veteran, told the Tribunal in an undated statement made in 2002 (Exhibit A4) that he was born in 1944 and that he started work at the same company as the veteran in 1961. He said that the veteran was a heavy smoker at work and at home, and smoked about two packs of 20 cigarettes each day.
The respondent produced a number of medical records relating to the veteran. In a war pension medical report dated 29 April 1964 the medical officer wrote: tobacco 15 cigs/day. In a medical history sheet dated 7 February 1967 a medical officer wrote: Smokes 15/day. In a hospital admission sheet dated 7 May 1975 the following written comment appears: Resp: smokes 20/day. In a questionnaire completed by the veteran on 22 July 1987 he stated that he began to smoke about 24 years [of] age and the quantity of cigarettes consumed at that time was approx 10 cigs a day. In a general medical examination and history dated 25 August 1987 a medical officer wrote: Smoke: Down to 8-9/day. Used to smoke 15-20 /day. Started at 23 years.
In a letter to the veteran's treating doctor dated 8 February 1991, Dr J. Vohra, cardiologist, stated: … he had been a smoker of 10 cigarettes per day but has now stopped… In a nursing admission history at the Royal Melbourne Hospital dated 16 July 1991 the following note appears: Smoking- 1 pkt/3 days. In a smoking questionnaire completed by the veteran on 24 October 1991 he stated that the age he began to smoke was approx 19 years and that once he became a regular smoker he smoked 4 ozs tobacco weekly. He also stated that there was no variation in his rate of consumption, but also recorded that he gave up smoking at the age of 69 years because of a medical operation. In the same questionnaire he said that the amount he smoked decreased to Pkt 25 every 3 days.
In a letter to the veteran's treating doctor dated 1 September 1992, Dr M. Walter, consultant physician, stated: … he continues to smoke around 25 cigarettes every two days … In a further letter dated 17 February 1995 Dr Walter stated: …and I am sure that this in part can be contributed to his long history of smoking, which he continues to do, consuming around 8 to 9 cigarettes a day.
In a health summary dated 13 July 1995 prepared during a hospital stay the following notation appears: Smoking 10-15/day. In a claimant report - cigarette smoking lodged by the applicant on 20 July 2000 she stated that the number of cigarettes smoked by the veteran was 40 a day and that during drinking bouts smoking increase[d] [to] approx 60 cigs.
CONSIDERATION OF THE ISSUES
Ms Bornstein, on behalf of the applicant, noted that there was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. In determining whether the death of the veteran was war-caused the Tribunal must first consider all the material before it and decide whether that material raises to a level of reasonable satisfaction a contention connecting the death with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the veteran.
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. Ms Bornstein noted that there was no dispute between the parties that the applicable SoP was Nº 24 of 1996 as amended by Nº 6 of 1998 concerning malignant neoplasm of the colon. Risk factor 5(b) is:
smoking cigarettes or other tobacco products, where the equivalent of at least 30 pack years were consumed 30 years or more before the clinical onset of malignant neoplasm of the colon;

In paragraph 7 of the SoP pack year means 7,300 cigarettes, or 1,460 cigars, or 7.3 kg of pipe tobacco.

Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the contention identified in the first step fits within, that is to say, is consistent with the template to be found in the SoP. If the contention fails to fit within the template, it cannot meet the test of reasonable satisfaction and the claim will fail. Ms Bornstein submitted that the contention fits within the template. She said that there was no dispute that clinical onset of malignant neoplasm of the colon occurred in 1968. She relied on the evidence of the applicant, and said that as the applicant had lived with the veteran for 58 years she was in a position to provide the best evidence. She said that the applicant's evidence was clear and uncontradicted that the veteran was a non-smoker when they met before his enlistment in the army, and that at the time of their marriage in 1942 the veteran was a regular smoker whose consumption of cigarettes remained at the level of about two packs (30 to 40 cigarettes) each day until shortly before his death.
Ms Bornstein acknowledged that there were some inconsistencies in the applicant's recollection of the exact level of cigarette consumption by the veteran at any given time since 1940. She said that s119(h) of the Act allows the Tribunal to take into account the effects of the passage of time and the difficulties faced by the applicant in remembering precise details of the veteran's smoking habits. Ms Bornstein referred the Tribunal to Re Bridgeman and Repatriation Commission (AAT 12586, 29 January 1998) in which the Tribunal stated at para 38:
…
In all veterans cases, attempts to connect service to subsequent injury or illness are increasingly difficult with the passage of time. In cases involving widows, the best witness is necessarily absent and frequently the evidence of widows is sparse. The beneficial objective of the Veterans' Entitlements Act must be to the forefront of the minds of decision makers and attempts to place an onus on veterans or their widows has no warrant.
Ms Bornstein stated that the applicant's evidence was supported by the evidence of her son, whose recollection of the level of the veteran's smoking habit was 2 packs of 20 cigarettes each day. With regard to references to the level of cigarette consumption contained in various medical records, Ms Bornstein submitted that these entries were inconsistent, ambiguous and contained no details of the context in which the written comments were made, or the wording of the questions to which responses were made and recorded. Ms Bornstein said that all the material pointed to the veteran having a clear addiction to tobacco, and that any references to estimates by the veteran of his cigarette consumption at lower level than stated by the applicant were no more than an addict understating his habit.
Under the fourth step, unless the Tribunal is reasonably satisfied that the relevant contention did not occur, the claim must be granted. Ms Bornstein submitted that, if the Tribunal accepts the evidence of the applicant and her son, the level of cigarette consumption of 30 each day during the relevant period would result in 37.5 pack-years, and a level of 40 each day would result in 50 pack years, both figures being in excess of the requirement under factor 5(b) of the SoP. She submitted further that the Tribunal should use its judgement to find in favour of the applicant, and noted that in Re Doolan and Repatriation Commission (1996) 41 ALD 557 the Tribunal stated at para (9):
… It is not possible to treat the evidence before the Tribunal with quantitative precision. Coming to the "persuasion of the mind" on the balance of probabilities and taking into account all of the evidence is a matter of judgement for the decision-maker – it is not a mathematical exercise.
Ms McCulloch, on behalf of the respondent, did not dispute that the applicant satisfied steps one and two, and she noted that there was no dispute between the parties that a pack-year is equivalent to 20 cigarettes each day. In relation to step three, Ms McCulloch stated that the evidence by the applicant was vague and unreliable, and was inconsistent with medical records. She said that the Tribunal should prefer the material contained in the medical records, particularly the documents completed by the veteran. For example the veteran's 1987 written comment that he began to smoke at the age of 24 years, and smoked approximately 10 cigarettes each day, gave a clear indication of his level of smoking, as he had no reason to give incorrect or understated answers to questions. Similarly, his comment in 1991 that he smoked 4 oz of tobacco each week (equivalent to 17 cigarettes each day) indicated that his consumption was less than 20 cigarettes each day.
Ms McCulloch submitted that the material contained in the medical records was consistent with a level of consumption of between 10 and 20 cigarettes each day over a long period, and probably less during the periods when the veteran was hospitalised. She said that the applicant was not present when the veteran was at work, so she would not know his consumption during the day. The applicant was with him only occasionally when he purchased cigarettes, so she would not be aware of his actual consumption. Ms McCulloch submitted that in this case the contention could not be made out to the Tribunal's reasonable satisfaction, and the claim failed to satisfy the third and fourth steps.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
In this case there was no dispute between the parties and the Tribunal finds that the veteran died from malignant neoplasm of the colon. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the material raises to a level of reasonable satisfaction a contention connecting the death with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the veteran.
In respect of the second step, there was no dispute between the parties and the Tribunal finds that at the relevant time SoP Nº 24 of 1996 as amended by Nº 6 of 1998 concerning malignant neoplasm of the colon was in force.
In respect of the third step, the Tribunal finds the applicant to be a credible witness. She was unequivocal in her evidence that the veteran was a non-smoker when she met him and before his service in the army, and the Tribunal has no reason to disbelieve her. In relation to the level of cigarette consumption by the veteran, the applicant's clear recollection was that the veteran smoked about two packs of 20 cigarettes each day and that this figure did not change markedly over the years. The Tribunal accepts that minor inconsistencies in her recollection would be affected by the passage of time, so the Tribunal takes into account s119(h) of the Act and the comments in Re Bridgeman. The Tribunal also finds that the evidence of the applicant's son corroborates the applicant's view that the veteran smoked 30 to 40 cigarettes each day, and there is nothing to suggest that the veteran changed his smoking habits significantly in the period before his son's recollection began.
The Tribunal accepts the submission by Ms Bornstein that the material contained in the medical records is ambiguous. For instance in 1991 when the veteran estimated his tobacco consumption at 4 oz each week, there is no material to demonstrate that he was aware of the equivalent number of cigarettes smoked each day. Further, because of the inconsistency and lack of context or explanation of the estimates given for the veteran's cigarette consumption in different years by the veteran and by medical practitioners, the Tribunal concludes that little reliance should be placed on these figures.
For these reasons, the Tribunal finds that in the relevant period the veteran smoked between 30 and 40 cigarettes each day. At the rate of 30 cigarettes each day the veteran smoked (30 x 365) 10,950 cigarettes each year, and in 25 years he smoked (10,950 X 25) 273,750 cigarettes. The number of pack years is (273,750 ÷ 7,300) 37.5. At the rate of 40 cigarettes each day the veteran smoked (40 x 365) 14,600 cigarettes each year, and in 25 years he smoked (14,600 X 25) 365,000. The number of pack years is (365,000 ÷ 7,300) 50. Therefore the Tribunal finds that the veteran consumed at least 30 pack years, 30 years or more before the clinical onset of malignant neoplasm of the colon, so factor 5(b) of the SoP is satisfied, and the applicant meets the third step.
In respect of the fourth step, for the reasons already given in relation to steps one to three, and taking into account the principles outlined in Re Doolan, the Tribunal is reasonably satisfied that the relevant contention occurred, so the claim must be granted.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the death of the veteran was war-caused with effect from 23 April 2000.
I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  13 May 2002
Date of decision:  20 May 2002
Counsel for applicant:                 Ms J. Bornstein
Solicitor for applicant:                  Geoffrey Tobin Pty
Advocate for respondent:            Ms J. McCulloch, Advocacy Section, Department of Veterans' Affairs