Holborn and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2581

Holborn and Repatriation Commission (Veterans' entitlements) [2021] AATA 2581 (29 July 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2020/3744
Re:George Holborn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:29 July 2021
Place:Brisbane

The decision under review is affirmed
................................[SGD]...............................
Deputy President J Sosso
Catchwords
VETERANS’ AFFAIRS – Disability pension claim – Malignant neoplasm of the lung – Ischaemic heart disease – Chronic obstructive pulmonary disease – Hypertension – Depressive disorder – causal connection to conditions of service – relevant Statement of Principles not met – service provided only the setting in which smoking habit continued – decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429, 158 ALD 64
Dyson and Repatriation Commission [2008] AATA 296
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Holthouse v Repatriation Commission (1982) 1 RPD 287
Kattenberg v Repatriation Commission [2002] FCA 412, 73 ALD 365
Lane and Repatriation Commission [2005] AATA 566
McDermott and Repatriation Commission [2011] AATA 714
Re Everett and Repatriation Commission (1991) 23 ALD 529
Repatriation Commission v Hawkins (1993) 45 FCR 205
Repatriation Commission v Tuite (1993) 39 FCR 540
Roncevich v Repatriation Commission (2005) 222 CLR 115
Rowley and Repatriation Commission [2019] AATA 5400
Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726
Wallace and Repatriation Commission [2017] AATA 926, 157 ALD 577
Secondary Materials
Statement of Principles concerning malignant neoplasm of the lung (No. 93 of 2014) (Cth)
Statement of Principles concerning chronic obstructive pulmonary disease (No. 38 of 2014) (Cth)
Statement of Principles concerning ischaemic heart disease (No. 2 of 2016) (Cth)
Statement of Principles concerning hypertension (No. 64 of 2013) (Cth)
Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth)
REASONS FOR DECISION
Deputy President J Sosso
29 July 2021
INTRODUCTION

Mr George Holborn (the veteran) seeks a review of the decision of the Veterans’ Review Board (the Board) of 20 May 2020 (Exhibit 1 T29 pp. 317 – 339) that affirmed a determination of 18 October 2019 (Exhibit 1 T25 pp. 304 – 309) that the following claimed conditions were not related to service for the purposes of the Veterans’ Entitlements Act 1986 (the Act):
(a)Malignant neoplasm of the lung;
(b)Ischaemic heart disease (IHD);
(c)Chronic obstructive pulmonary disease (COPD);
(d)Hypertension; and
(e)Depressive disorder.
The veteran was born in June 1941 and at the time of this decision is 80 years of age – Exhibit 1 T32 p. 355.
The veteran served in the Royal Australian Air Force (RAAF) between 15 July 1980 and 14 July 1992 – Exhibit 1 T32 p. 484. This constituted defence service for the purposes of the Act – s 68(1). When the veteran enlisted he was already 39 years of age and when he returned to civilian life he was 51 years of age.
For five years prior to enlisting, the veteran had been employed as a cook…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] AATA 2581
Decision Date: 29 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the appeal of a veteran against a decision of the Repatriation Commission concerning his claims for a disability pension. The veteran suffered from several serious medical conditions, including malignant neoplasm of the lung, ischaemic heart disease, chronic obstructive pulmonary disease, hypertension, and depressive disorder. The core of the dispute revolved around whether these conditions were causally connected to his service, particularly in relation to his smoking habit.

The legal issues before the Tribunal were whether the veteran had satisfied the requirements of the relevant Statements of Principles (SoPs) for each of his claimed conditions. Specifically, the Tribunal had to determine if the factors outlined in the SoPs, which linked smoking to the onset or progression of these diseases, were related to the veteran's service. This involved assessing the veteran's own statements regarding his smoking history and when he recommenced smoking, and whether this recommencement was attributable to his military service.

The Tribunal's reasoning focused on the veteran's inconsistent statements about his smoking history. While the veteran claimed to have stopped smoking before enlisting and only recommenced due to service-related stress and environmental changes, his own statements provided conflicting timelines for when he started smoking. The Tribunal found that the evidence did not establish, on the balance of probabilities, that his smoking habit, which led to his diagnosed conditions, was causally linked to his service. The Tribunal concluded that his service merely provided the setting in which his smoking habit continued, rather than being the cause of its recommencement or exacerbation in a way that met the criteria of the SoPs.

Consequently, the Tribunal found that the veteran had not satisfied the requirements of the applicable Statements of Principles for malignant neoplasm of the lung, ischaemic heart disease, chronic obstructive pulmonary disease, hypertension, and depressive disorder. The decision under review, which denied the disability pension, was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons set out above, the Tribunal finds that the veteran has not satisfied the requirements of SoP 93 of 2014, SoP 2 of 2016, SoP 38 of 2014, SoP 64 of 2013 and SoP 84 of 2015.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

No witnesses were called. Mr Cullen explained that the veteran is extremely unwell, and his ill-health prevented him from appearing and being subject to cross-examination.CONSIDERATIONIntroduction Although the Tribunal is required to consider five separate SoPs, the main thrust of the veteran’s contentions revolve around his smoking habit, and the unfortunate medical complications that arose from that habit. As previously noted, the Respondent accepts that the medical evidence presented supports a diagnosis of each of the veteran’s claimed conditions. It is also not disputed that the veteran smoked the requisite quantity of cigarettes to meet the quantity requirements of the relevant SoPs. Each of the SoPs will be considered individually below.Malignant Neoplasm of the Lung – SoP 93 of 2014 The Respondent contends that if it is accepted that the clinical onset of the veteran’s lung cancer was in April 2017 (when he was first diagnosed), then the Respondent does not dispute that Factor 6(a) is met in terms of the quantity and timing of the required smoking – Exhibit 4 para 4.7. The Tribunal accepts that this concession is soundly based on the evidence presented. It is not material for the purposes of this determination whether clinical onset was 2013, as opined by Dr Lip, or April 2017, as contended for the Respondent. In any event, the Tribunal proceeds on the assumption that clinical onset was April 2017. Attention must next be given to Cl. 5 which requires that “at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.” A Factor causing, or contributing to, a disease is related to service if, inter alia, it arose out of, or was attributable to, that service – s 196B(14)(b). As previously noted, Mr Cullen submitted (Exhibit 2) that the veteran recommenced smoking shortly after his enlistment due to changes of environment and service-related stress. At the Board Hearing, the veteran stated that after enlisting in the RAAF he had so much free time that he became President of the Airmen’s Club and started drinking and smoking all the time – Exhibit 1 T29 p. 319 para 6(a), pp. 323-324 para 17. In his Smoking Questionnaire dated 19 June 2019, the veteran claimed that he commenced smoking in 1980 due to peer pressure, and in the period 1986-2000 continued smoking because of, inter alia, stress of service – Exhibit 1 T19 p. 262. A key element in the veteran’s case is that he had stopped smoking in 1968 and only recommenced smoking after he enlisted in the RAAF. It is therefore necessary for the Tribunal to assess the evidence presented and make a finding whether that evidence, on the balance, supports the veteran’s contentions. The veteran’s own statements about his smoking history are inconsistent. In his 19 June 2019 statement referred to above, the veteran claimed that he started smoking in 1980. In short, the veteran claimed that he started smoking after his enlistment – Exhibit 1 T19 p. 262.