Gordon Keith Hart and Repatriation Commission
[2014] AATA 564
[2014] AATA 564
Division VETERANS' APPEALS DIVISION File Number(s)
2014/0838
Re
Gordon Keith Hart
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 14 August 2014 Place Melbourne The Tribunal sets aside the decision of the respondent dated 19 September 2012 and in substitution decides that the applicant’s carotid artery disease, chronic obstructive pulmonary disease and cerebrovascular accident are war-caused. The application is remitted to the respondent for assessment.
..............................[sgd]...................................
Senior Member
VETERANS' AFFAIRS – applicant served with the Royal Australian Navy – three periods of operational service – increase in smoking prior to operational service – whether attributable to fear of entering a war zone or the disappointment of not being permitted to pursue preferred career path – whether carotid artery disease, chronic obstructive pulmonary disease and cerebrovascular accident war-caused – decision set aside – assessment remitted.
LEGISLATION
Veterans' Entitlements Act 1986
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Forrester v Repatriation Commission [2013] FCA 898
SECONDARY MATERIALS
Statement of Principles
Instrument N° 37 of 2014 concerning Chronic Obstructive Pulmonary Disease
Instrument N° 37 of 2012 concerning Carotid Artery DiseaseInstrument N° 51 of 2006 concerning Cerebrovascular Accident
REASONS FOR DECISION
John Handley, Senior Member
The Veterans’ Review Board (the VRB) affirmed, on review, a decision of the respondent to refuse a claim by Mr Hart, the applicant for acceptance of the conditions of carotid artery disease, chronic obstructive pulmonary disease (COPD) and cerebrovascular accident (CVA) (the illnesses) as war-caused. The respondent concedes the applicant suffers those illnesses and also concedes that the CVA is ischaemic in origin.
The applicant contends that the illnesses are attributable to an increase in his smoking habit, which arose out of his engagement in operational service. He also contends that a reasonable hypothesis exists between that service and the illnesses.
The VRB found that the applicant’s smoking habit preceded his operational service. In this review, the respondent contends that the applicant was an established smoker prior to his operational service. He smoking habit did not arise out of and was not attributable to service (Respondent’s Statement of Facts and Contentions at [21]).
Service history-overview
The applicant served with the Royal Australian Navy (RAN) from 7 January 1970 to 11 November 1972. He was permitted an extended absence after 11 November 1972 and when he failed to return, he was officially discharged on 17 October 1980 (Exhibit R3). The applicant was initially engaged in recruit training at HMAS Leeuwin from 7 January 1970 to 31 December 1970. He then served on-board HMAS Sydney until 10 June 1971 and on-board HMAS Yarra between 11 October 1971 and 22 April 1972.
He was engaged in operational service, in 1971, between 15 February and 4 March, 26 March and 8 April and 13 May and 1 June.
Each period of operational service involved a tour, on-board Sydney, to Vietnam. During each of those periods the applicant was 16 years of age and engaged as an ordinary seaman.
When he returned from Vietnam, he completed training as a mechanical engineer. Between 23 April 1972 and 20 August 1972, he was trained as a cook – class 2 and was subsequently transferred to HMAS Penguin where he last served.
Smoking history
The applicant started smoking cigarettes in January 1970, within a few days of enlisting in the RAN. Within one week, he was smoking about 20 cigarettes per day.
In February 1971, he commenced his first tour of operational service. Shortly after commencing that tour, his cigarette consumption increased to about 35-40 per day. Thereafter, the applicant continued to smoke cigarettes at about that rate until February 2012 when he was diagnosed as having suffered from the CVA as a consequence of cerebral ischaemia. He then reduced his habit to about 20 cigarettes per day. He continues to smoke cigarettes, at that quantity, save for a 2 or 3 month period when he increased to 30 cigarettes per day at about the time he was preparing to make the application to the respondent for acceptance of his illnesses.
Recruit training
The applicant trained as a recruit at HMAS Leeuwin between 7 January 1970 and 31 December 1970. He said about half of the training involved education and the other half involved seamanship, discipline, drills and work skills. Additionally, he was engaged in sport. He did not smoke cigarettes before enlisting.
The applicant was 15 years of age when he commenced recruit training. It was the first time that he had lived away from home. In a letter to the respondent of 12 February 2013 (T15, page 90 – 91), he recorded that he found the environment to be hectic and frightening. He was soon exposed to bullying and abuse from older recruits. He learnt there was a hierarchy where the newest recruits were known as the new grubs within the first 3 months of recruit training. Thereafter, those persons were elevated in rank and ultimately, in the last 3 months of training, achieved the rank of top shit. He described the persons who had achieved that status as using stand over tactics to harass, harm, belittle, humiliate or even physically injure without any possible consequence.
In his letter to the respondent, the applicant recorded that he was miserable and bewildered and worried about his personal safety in the first few days of recruit training. He witnessed assaults on other recruits and soon realised that cigarettes were a commodity akin to currency, which he also confirmed in evidence during this review. He said the older recruits would take cigarettes from the younger recruits who would then be spared from being bullied.
In his letter and in evidence, the applicant said he started smoking cigarettes during the first week of recruit training. By the end of that week he was smoking 20 cigarettes per day.
The respondent obtained some records completed whilst the applicant was engaged in recruit training which indicate that he was assessed by a psychologist on 9 October 1970 and 10 December 1970 (Exhibit R2). The applicant said he had no recollection of the interviews and questioned some of the comments that were recorded.
On 9 October 1970, an Officer made a note recording a discussion with the applicant about future training with 3 career paths which were abbreviated as CK, UC and UW. He understood that CK was the abbreviation for the career as a cook. The applicant said that he wished to serve as a clearance diver and speculated that the other 2 abbreviated positions may refer to that career. However, the Officer recorded that the applicant was medically unfit and could not engage in any of the 3 positions recorded above. The applicant disputed that entry and said that he was never found to be nor was he ever medically unfit. The Officer recommended that he be engaged ultimately as either an ME (mechanical engineer) or SA, that abbreviation being unknown. The Officer recorded that he had a long discussion with the applicant on 10 December 1970 and he thinks he will go for ME (Exhibit R2, page 2).
The entry made on 10 December 1970 is recorded as the Final Report Remarks. This entry was made about 3 weeks before the applicant finished recruit training and transferred to Sydney. It records the applicant as being immature, which he disputed and also refers to him as Ron which caused the applicant to query whether the psychologist was reporting on another person (Exhibit R2, page 2).
Operational service
The applicant said he joined Sydney at the Garden Island dockyard. He then knew that it was a troop carrier and that it had previously been engaged in voyages to and from Vietnam. However, he was not told about the duties that he would undertake during his deployment on that vessel.
For the first few weeks, he was assigned to cleaning duties which the applicant regarded as being mundane and boring. He continued smoking cigarettes at about 20 per day. He acknowledged that he might have increased his smoking habit by 2 or 3 cigarettes per day because of his boredom, but did not increase to the level that he did, until later, during his operational service on-board Sydney. On about the 13th or 14th of February 1971, he recalled that stores were being loaded onto the ship and its boilers were activated. The following day, Sydney left port en route to Vietnam.
The applicant said after the vessel commenced to sail, he became anxious and nervous. He knew the intended destination and said he didn’t know what to expect. He associated his anxiety with a fear of the unknown. He heard comments on-board that Vung Tau harbour was mined and as the vessel approached harbour, he became increasingly worried by the presence of escort ships. Experienced sailors on-board joked that he should look out for snipers. When Sydney anchored at Vung Tau he was aware of armed sentries on the upper deck. The applicant said he increased his smoking habit during that first voyage because of fear and anxiety as he approached a war zone. He said no one told him that he had no need to worry and he was left to his own imagination.
The applicant made a total of 3 trips to Vietnam on-board Sydney. On those occasions he was smoking between 35 and 40 cigarettes per day. During one of the trips, he remembered sitting on a deck and realised he was smoking about 2 packs of cigarettes per day.
The applicant thought he felt anxiety more than others because of his age – he was 16 years – but also by the presence of Army personnel who, by their appearance, appeared to him to have had a rough time, he didn’t like what (he) saw and he was surprised. He said many troops were smoking marijuana and older men on-board had recommended to him that he should stick with cigarettes.
The applicant did not leave Sydney on each of the 3 occasions that he travelled to Vung Tau. Whilst in harbour, he said he was scared, the mine clearance divers were busy and he had thoughts of what would happen if they’ve missed one. He also observed armed sentries at 20-30 metre intervals on the upper deck. At night, he saw the flash of gunfire or mortar in the distance and could hear gunfire. On occasions, he heard helicopters overhead. He said the most influential factor in his increase of cigarette smoking and maintaining that increased level was his fear and anxiety of travelling to and being in a war zone, on 3 occasions.
Increased smoking
The applicant was examined about the contents of a smoking questionnaire dated 19 July 2012 (T4, page 35-36) and evidence he gave to the VRB on 10 December 2013 (Exhibit R1, page 4-7).
In the questionnaire, the applicant recorded that he started smoking at the age of 15, in January 1970, when he joined the RAN, at 20 cigarettes per day. He also recorded that he increased his consumption of cigarettes to 35 per day on 13 February 1971. The reason recorded for that increase was (at T4, page 36):
On being informed of trip to Vietnam. 1st time at sea apprehensive and anxious of going to a war zone. Also affected by seeing soldiers returning. They were worse coming back than going to SVN. Felt anxious on each trip. Quite affected as only 16 years old.
The applicant said he had his personnel records before the smoking questionnaire was completed and knew from them that the first voyage on Sydney commenced on 15 February 1971. In response to a question from his RSL advocate who completed the form, the applicant said that he told him he commenced smoking a couple of days before he left but he remembered that whilst he was on his way to Vietnam, he had increased the number of cigarettes he smoked on a daily basis.
The members of the VRB questioned the applicant about the contents of the smoking questionnaire. It was suggested to him, and he agreed, that the information recorded in the questionnaire indicated that he increased his cigarette habit to 35 per day, 2 days before he left on his first tour on-board Sydney. The proposition of having increased his cigarette consumption before the first voyage was repeated and the applicant is recorded as having given an affirmative response. Yet there were occasions when he also added that he increased his smoking especially on the first trip (page 4) and over a period of time after the three trips I – I did increase (page 5). Later, having told the Members that he was sleep deprived, having given up his bunk to Army personnel, he realised that he was then smoking a good deal more than what I was before (page 5).
During evidence in this review, when reflecting on his responses to the questions from the VRB and the contents of his smoking questionnaire, the applicant said he must have misunderstood the question asked of him. He also added that he did not increase his cigarette consumption overnight from 20 to 35 per day.
In re-examination the applicant said he commenced smoking during the first week of his recruit training on-board Leeuwin and by the end of that week he was smoking at 20 cigarettes per day. When he joined Sydney he was smoking 20 cigarettes per day and may have increased to about 25 because of boredom when he was working as a cleaner. During the first trip to Vietnam, after Sydney departed Australia, he gradually increased his consumption of cigarettes to about 35 – 40 per day. He said the real increase in cigarette consumption occurred whilst he was at sea and because of his anxiety and fear.
The applicant said he maintained his habit of smoking between 30-40 cigarettes per day until about 2011 when he was admitted to Bairnsdale Hospital. Thereafter, he reduced his consumption to about 20 per day, but increased to about 30 per day, for a few months at the time he was making his application to the Department of Veterans Affairs for acceptance of the illnesses. Subsequently, he has smoked between 15-20 cigarettes per day.
The applicant acknowledged that he was disappointed he did not obtain a position as a clearance diver. He was effectively given no choice but to train as, and ultimately did work as a mechanical engineer, which he did not like and ultimately applied successfully for training as a cook. He did not associate the continuation of heavy smoking, after completion of operational service, with his dissatisfaction in not being permitted to pursue his preferred career path as a clearance diver.
The applicant agreed with the comment made in a report by a psychologist on 5 October 1971 (Exhibit R2) that he enjoys being in the Navy except for his experiences during the 3 periods of operational service and dissatisfaction with his engagement as a mechanical engineer. The applicant said he knew before he commenced operational service that he would never obtain a position as a clearance diver. However, he said his increased cigarette consumption was attributable only with his 3 trips to Vietnam. He said his anxiety on those occasions was much more acute.
Statements of Principles
There are Statements of Principles (SoPs) in force for the illnesses suffered by the applicant. The relevant SoPs and their respective factors sought to be relied on by the applicant are as follows:
·Instrument N°37 of 2014 concerning COPD – factor 6(a)
·Instrument N° 37 of 2012 concerning Carotid Artery Disease – factor 6(d)
·Instrument No° 51 of 2006 concerning CVA – factor 6(o)
As recorded earlier, there is no dispute between the parties that the applicant suffers these illnesses (and did experience a CVA). There is also no dispute as to the diagnoses of the illnesses or the application of the above SoPs.
Each factor within the above SoPs specifies a quantity of cigarettes and a period of smoking before the clinical onset of each illness. There is no dispute between the parties that the applicant satisfies each of the above factors, in respect of the increased quantity of cigarettes smoked by him, as he contends, having commenced during operational service and which has continued subsequently.
CONCLUSION AND REASONS
The Deledio steps
The Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98, set out 4 stages of analysis that the Tribunal must sequentially follow in order to determine, ultimately, pursuant to s 120(1) of the Veterans’ Entitlements Act1986 (the Act), whether it is satisfied beyond reasonable doubt that the claim for incapacity is not war-caused. If the Tribunal is not so satisfied, the application will succeed. If the Tribunal is satisfied beyond reasonable doubt that the incapacity was not war-caused, the application will not succeed.
Without making any findings of fact, I am satisfied that the material before me does point to a hypothesis connecting the circumstances of the applicant’s service with his illnesses.
It was submitted on behalf of the applicant that the anxiety he experienced at the prospect of entering a war zone during his operational service, together with the boredom he experienced performing mundane tasks whilst on tour caused an increase in his smoking which ultimately resulted in the illnesses.
There are also SoPs in force for each of the illnesses which the Repatriation Medical Authority has determined, on the basis of sound medical-scientific evidence (s 196B(2) of the Act).
Accordingly, the first 2 stages of the Deledio analysis have been satisfied by the applicant.
Having arrived at the third Deledio stage, I am required to form an opinion whether the hypothesis raised is reasonable.
The hypothesis advanced by the applicant was of an increase in his smoking habit after he commenced, during and by reason of the circumstances of his operational service. There was no dispute between the parties that he was smoking 20 cigarettes per day up to 12 February 1971. From the following day, whilst the respondent argued that he smoked 35 cigarettes per day, there was no dispute that the applicant smoked the increased quantity prior to the clinical onset of the illnesses. It follows that the applicant satisfies the third stage of the Deledio process on the basis of the increased quantity. The hypothesis, as raised by the applicant is reasonable because it is upheld, it fits and is consistent with an applicable factor in each of the SoPs as determined by medical experts and published by the Repatriation Medical Authority (Forrester v Repatriation Commission [2013] FCA 898 at [32] and [72]).
The issue before the Tribunal arises at the fourth stage of the Deledio process. It was submitted on behalf of the respondent that the applicant was an established smoker prior to his operational service. Further, any increase in smoking was a result of circumstances unrelated to operational service, namely, his disappointment at not being permitted to pursue his preferred career path.
It is only at the fourth and final Deledio stage where findings of fact will be made. At this stage, I must determine whether I am satisfied, beyond reasonable doubt that the incapacity of the applicant did not arise from a war-caused injury.
Prior to the commencement of his period of operational service, the applicant conceded that he was an established smoker, having commenced about 14 months previously during recruit training. His case was argued on the basis of an increase in the quantity of cigarettes smoked because of the circumstances of his operational service.
It was put to the applicant by members of the VRB and by counsel for the respondent in this review that the content of his smoking questionnaire was inconsistent with the case he presented to the Tribunal. Specifically, in the questionnaire he recorded that he was smoking 35 cigarettes per day 2 days before he commenced his first period of operational service.
The applicant’s answers to the questions put to him by members of the VRB might suggest that in fact he was smoking 35 cigarettes per day before the commencement of his first voyage to Vietnam. However, the applicant explained that the smoking questionnaire was completed by his RSL advocate in consultation with him. The applicant said he had his service records at that time and was aware that the first voyage commenced on 15 February 1971. He said he told the advocate that he had increased his smoking a couple of days before that occasion, on being informed of trip to Vietnam (T4, page 36). That explanation might also support a conclusion that the applicant increased his smoking habit before he commenced operational service.
Although the applicant completed the questionnaire 2 years ago, he was then being asked to recall and record the extent of his smoking habit more than 40 years previously. The answers recorded by him do not allow for imperfections of memory. Other evidence given by the applicant to the VRB, in my view, supports his case that the increase in his smoking habit was attributable to his operational service. I think it would be unduly harsh to reach adverse conclusions because of inconsistencies in the quantity specified by the applicant, without acknowledging the passage of time and difficulty recalling precise dates and quantities.
During the hearing of this review and when the applicant reflected on his evidence to the VRB, he said he must have misunderstood some of the questions asked of him. I think there is some force in that explanation because the transcript of his evidence at the VRB recorded him as saying that he increased his smoking especially on the 1st trip, and over a period of time. He also said that during one of the trips, he realised he was smoking a good deal more than what I was before.
I am not satisfied that the content of the smoking questionnaire should be taken literally because to do so would amount to a finding that on 12 February 1971 the applicant was smoking 20 cigarettes per day but from 13 February 1971, one day later, he was smoking 35 cigarettes per day. To have virtually doubled the quantity of cigarettes smoking overnight would be outstanding and would be inconsistent with the evidence that he also gave to the VRB of having increased his smoking during the first trip.
If I were to find that the applicant maintained a habit of smoking 35 cigarettes per day from before, during and subsequent to his operational service, I would be dismissing the circumstances he then confronted and the reasons he has expressed for the increase in his smoking habit. I am not prepared to dismiss the applicant’s evidence. I regard him as a witness of truth, who acknowledged some of the documented records as perhaps pointing to a blemish in his case and who admitted that he may have misunderstood some of the questions asked of him by the VRB members.
The transcript of evidence of the hearing before the VRB indicated a significant focus on the content of the smoking questionnaire but little attention was given to the applicant’s reaction to serving on Sydney, when he was 16 years of age, during 3 trips to Vietnam within a 3½ month period between 15 February and 1 June 1971. That evidence emerged during the hearing before me. I am satisfied that considerable weight should be given to it.
During the first few weeks on Sydney, the applicant was assigned to cleaning duties which he found to be boring and which he associated with him increasing his smoking habit by 2 or 3 cigarettes per day.
After the vessel commenced to sail, he said he became anxious and nervous. He was previously aware that Sydney was a troop carrier and had been engaged in a number of voyages to and from Vietnam. Although he knew, shortly after Sydney departed that its intended destination would be Vietnam, he said he didn’t know what to expect and the anxiety that he then experienced was attributed to a fear of the unknown. He overheard persons speaking of Vung Tau harbour being mined and he was worried about the presence of escort ships. Experienced persons on-board joked that he should look out for snipers and he observed the presence of armed sentries on the upper deck.
Whilst at anchor in Vung Tau harbour, he said the clearance divers were busy, he was worried about what would happen if they missed one, he observed flashes of gunfire and mortars onshore and heard helicopters overhead.
It follows that the applicant experienced in port, what he had heard and learnt during the voyages from the other sailors and army personnel. It is not difficult therefore, to imagine, especially having regard to his age that he was in fear as he travelled to and from a war zone.
I accept as a fact that the applicant was anxious and in fear and did increase his smoking habit after the commencement of his operational service. I also accept the evidence that he gave in this review that the increase in smoking from 20 to 35 cigarettes per day did not occur overnight (as the smoking questionnaire might suggest) but rather, the increase in his smoking habit, which I accept as a fact did occur, was attributable to his operational service. That the increase did not occur overnight, I think, also adds weight to the applicant’s evidence to the VRB that he realised during one of the voyages that he was smoking a good deal more than what I was before (Exhibit R1, page 5).
The applicant agreed that during his periods of operational service, he was aware that he had not been selected to undertake his preferred training as a clearance diver and ultimately, he would enter into a mechanical engineering course. However, he did not associate his increase in smoking cigarettes with those disappointments because the anxiety of operational service was much more acute.
I am not satisfied that the hypothesis has been disproved beyond reasonable doubt. It follows that applicant’s illnesses were war-caused.
DECISION
The decision under review is set aside and in substitution it is decided that the illnesses suffered by the applicant did arise out of and were attributable to his operational service. The application is remitted to the respondent for assessment of pension.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr John Handley, Senior Member ...............................[sgd].........................................
Associate
Dated 14 July 2014
Date(s) of hearing 8 July 2014 Counsel for the Applicant Mr T. Smyth Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr K. Rudge Solicitors for the Respondent Department of Veterans' Affairs Review Branch
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