Holborn and Repatriation Commission (Veterans' entitlements)
[2021] AATA 2581
•29 July 2021
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 – Exhibit 1 T32 p. 355. Throughout the veterans’ service with the RAAF he performed duties as a cook, initially as an assistant cook and then rising to the level of a Cook 2 – Exhibit 1 T32 p. 484.
It is contended by the veteran (Exhibit 2) that he commenced smoking cigarettes in approximately 1958 (when he was 17 years of age) but gave up this habit in approximately 1968. However, it is contended, that he recommenced smoking shortly after he enlisted in 1980 due to, inter alia, change of environment and service-related stress. The veteran also claimed that he recommenced smoking after enlisting due to peer pressure – Exhibit 1 T19 p. 262.
On 20 December 2018 the veteran’s treating General Practitioner, Dr Patrick Lip of the Wondai Medical Centre, was sent various Diagnostic Assessment Questionnaires. With respect to the Assessment for the claimed condition of lung cancer, Dr Lip noted that the veteran had been a smoker between 1958 and 1992, averaging 20 cigarettes a day, but had quit smoking between 1968 and 1980 – Exhibit 1 T17 p. 216.
The only material before the Tribunal from a person who was personally aware of the veteran’s smoking habits in the years immediately prior to his enlisting, is a letter from his first wife, dated 19 December 2019, in which she made the following observations – Exhibit 1 T27 p. 313:
“George and I married on 14th February 1964 at this time neither George nor myself were smokers and only occasional social drinkers.
While our children born in 1964, 1967 and 1970 were small George definitely did not smoke as the youngest two were asthmatic, and even then smoking was considered harmful to them.
It was only after George joined the RAAF that he began smoking, he said all the staff smoked in breaks. The year he commenced would have been in the early 80’s around 1982 to 1983 I think.
We divorced on 15th October 1991 and we have both remarried…”
The Tribunal has the benefit of the detailed decision of the Board. The veteran appeared before the Board and gave evidence. Unfortunately due to the state of the veteran’s health he did not appear before the Tribunal. The Board set out in summary form the veteran’s evidence about his smoking habit which is set out below – Exhibit 1 T2 pp. 10 – 11:
(a)he began smoking in 1958 and continued until 1968, smoking approximately 20 – 25 cigarettes daily;
(b)he met his first wife in 1959 and married in 1964;
(c)he did smoke at home after he got married; and his ex-wife was aware he was a smoker;
(d)as two of his children had asthma problems, the veteran didn’t smoke at home and eventually ceased smoking altogether;
(e)the veteran testified that his first wife “nagged” him about giving up smoking;
(f)before he enlisted he had two jobs, was always very busy and never thought about smoking;
(g)after enlisting, the veteran had so much free time on his hands that he became President of the Airmen’s Club and began drinking and smoking all the time;
(h)the veteran did not begin smoking as soon as he enlisted, but “it took a couple of months to get in to the swing of things”. At this time the veteran was smoking about 10 cigarettes daily;
(i)a few months after the veteran re-commenced smoking, his daily consumption increased to approximately 25 cigarettes daily, but if there was a function on, he would smoke more;
(j)after returning to civilian life, the veteran smoked fewer cigarettes;
(k)he remarried in November 1991.
The veteran’s second wife also gave oral evidence to the Board. Set out below is a summary of her oral evidence – Exhibit 1 T2 p. 12:
(a)she met the veteran in March 1991 and married him in November 1991;
(b)the veteran was smoking when she first met him, but not a great deal. He would smoke a couple of cigarettes when they went out together;
(c)the veteran may have decreased the amount he smoked after returning to civilian life, but she couldn’t’ say;
(d)the veteran gave up smoking in approximately 2005.
Of particular importance in this matter are the service records as they provide contemporary evidence of the state of the veteran’s smoking habits.
First, the veteran’s RAAF Entry History Questionnaire dated 15 May 1980 contains 78 questions requiring responses from the veteran – Exhibit 1 T32 p. 355. Question 69 was “HAVE YOU EVER…smoked tobacco regularly”. The veteran ticked the “Yes” box.
In the notes by the medical officer it appears (the document is extremely difficult to read) that the Doctor has made the following comments:
“(69) 20 cigarettes daily”.
Next is a Medical Examination Record of June 1981. The examining Doctor made these notes – Exhibit 1 T32 p. 368:
“Smoking 20/DAY for many years”.
In a report dated 2 May 1984, Dr Bruce Smith, Consultant Physician, assessed the veteran following several episodes of palpitations – Exhibit 1 T32 p. 380. Dr Smith noted that one episode occurred “after a prolonged session of drinking alcohol, and, again, heavy smoking.” Further, Dr Smith made the following observations:
“This man does indeed smoke excessively heavily – averaging 25 cigarettes per day.”
The veteran was advised by Dr Smith to give up smoking immediately – Exhibit 1 T32 p. 389.
It would appear that the veteran did attempt to give up smoking. In a report dated 7 May 1984, Dr Smith made the following observations – Exhibit 1 T32 p. 387:
“This 42-year male presented to me again today complaining of persisting left precordial discomfort, considerable anxiety and a feeling of inability to take a deep breath. He has not been aware of further palpitations. He has completely stopped smoking for 5 days, since I last saw him, and I therefore felt that some of his anxiety could reasonably be attributed to nicotine withdrawal.”
Unfortunately, the veteran’s attempt to give up smoking was not successful and in a Medical Examination Record of April 1985 the assessing doctor made these notes – Exhibit 1 T32 p. 402:
“1. Smoking – 20 DAY – 20 YRS”.
A Medical Examination Record of June 1987 listed a significant problem for the veteran as “Heavy smoker”. The assessing Doctor noted that at this time the veteran was smoking 20 cigarettes daily and the veteran was advised to “cease smoking” – Exhibit 1 T32 p. 414.
By November 1989, Dr Jackson, who assessed the veteran for shortness of breath, noted that he was then a non-smoker for five months – Exhibit 1 T32 p. 443.
When the veteran underwent his periodic health assessment in September 1990, it was noted that he stopped smoking two years ago – Exhibit 1 T32 p. 462. Somewhat confusingly, when the veteran underwent his next periodic health assessment in November 1991, it was again noted that he had ceased smoking two years ago – Exhibit 1 T32 p. 478.
There is a gap in the veteran’s medical history for his smoking habits from 1991 until 2016 when he was assessed by his treating General Practitioner, Dr Lip.
Dr Lip assessed the veteran on 28 July 2016 and noted that he was an ex-smoker who had ceased smoking on 24 October 2006. Prior to that time, Dr Lip noted that the veteran was smoking approximately 30 cigarettes daily. Dr Lip also noted that the veteran had commenced his smoking habit in 1957 – Exhibit 5 ST1 p. 2.
In a series of Diagnostic Assessment Reports, each dated 5 March 2019, Dr Lip made the following diagnoses of diseases afflicting the veteran, and their date of onset:
(a)lung cancer (left lung), diagnosed on 28 April 2017, with symptom onset in 2014. Dr Lip opined that the cause of this condition was smoking of 20 cigarettes a day between 1958 – 1992, with a break between 1968 – 1980 – Exhibit 1 T17 p. 216;
(b)IHD, diagnosed on 5 August 2014, with symptom onset in June 2014. The cause of this condition, in Dr Lip’s opinion, was smoking between 1958 – 1992 and hyperlipidaemia – Exhibit 1 T17 p. 218;
(c)depression, diagnosed on 18 May 2017 by Dr Lip and with a symptom onset date of 18 April 2017. The cause of this condition was, according to Dr Lip, lung cancer, IHD, cessation of smoking and alcohol intake limitation – Exhibit 1 T17 p. 220;
(d)COPD, diagnosed in 2005 and with symptom onset in 2005, caused by smoking, chemical exhaust whilst cooking, and cleaning – Exhibit 1 T17 p. 224; and
(e)hypertension, diagnosed in 2006, with symptom onset also in 2006. The veteran first presented to Dr Lip on 4 December 2013. The cause of the condition was, according to Dr Lip, smoking, sleep apnoea and depression – Exhibit 1 T17 p. 226.
Dr Lip referred the veteran for examination and assessment by Dr Kwun Fong, thoracic physician, of The Prince Charles Hospital, Brisbane.
Dr Fong wrote a number of reports for Dr Lip, and in these reports commented on the veteran’s previous smoking habits:
(a)report of 10 July 2017 – Dr Fong noted the veteran was a “Former smoker 25 a day from 14 – 65 years” and “Ex smoker with 50 pack year history” – Exhibit 5 ST2 pp. 3 – 4;
(b)report 24 July 2017 – again Dr Fong noted “Former smoker 25 a day from 14 – 65 years” – Exhibit 5 ST3 p. 6;
(c)report of 1 May 2018 – “Former smoker 25 a day from 14 – 65 years.” – Exhibit 5 ST5 p. 11;
(d)report of 12 June 2018 – “Former smoker 25 a day from 14 – 65 years” – Exhibit 5 ST6 p. 15;
(e)report of 9 October 2018 – “Former smoker 25 a day from 14 – 65 years” – Exhibit 5 ST 7 p. 17; and
(f)report 14 February 2019 – “Former smoker 25 a day from 14 – 65 years” – Exhibit 5 ST8 p. 19.
The veteran was also examined and assessed by Dr Stefanie Bond, a Registrar at The Prince Charles Hospital for Dr Heather Wisbey, Rheumatologist, on 31 August 2017.
In her report of 4 September 2017, Dr Bond made the following observations – Exhibit 5 ST4 p. 9:
“3. Ex-smoker quit 14 years ago. Approximately 50 pack-year history with associated COPD.”
Dr Bond’s observations mirror those recorded by Dr Fong in his report of 10 July 2017.
In the various reports of Dr Fong, the veteran is consistently diagnosed as suffering from COPD, IHD and depression – Exhibit 5 ST2 p. 3, ST3 p. 6, ST5 p. 11, ST6 p. 15 and ST7 p. 17. Dr Fong also diagnosed the veteran as suffering from cancer of the left lung – Exhibit 5 ST5 pp. 11-12.
Dr Bond diagnosed the veteran as suffering from, inter alia, IHD and depression – Exhibit 5 ST4 p. 9.
The Respondent concedes that the medical evidence before the Tribunal is sufficient for the Tribunal to be reasonably satisfied of a diagnosis of each of the claimed conditions – Exhibit 4 para 4.3.
The Tribunal accepts that the medical evidence supports the veteran’s contention that he is suffering from lung cancer, IHD, depression, COPD and hypertension.
LEGISLATIVE FRAMEWORK
Where a member of the Defence Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation in accordance with the provisions of the Act – s 70(1).
“Disease” is defined by s 5D(1) to mean, inter alia, any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
For the purposes of the Act, a disease will be taken to be defence-caused if, inter alia, the disease arose out of, or was attributable to, any defence service of the veteran – s 70(5)(a).
There are numerous judicial pronouncements on the width of this test which impose on an applicant veteran a less demanding task. This was explained by McHugh, Gummow, Callinan and Heydon JJ in Roncevich v Repatriation Commission (2005) 222 CLR 115 as follows (126/[27]):
“27. The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that “defence-caused” is to be given a broad meaning. Perram, Nicholas and Robertson JJ said (110/[36] – [38]):
“36.Fifth, the learned primary judge’s conclusion rests on the proposition that s 196(14)(b) requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease.
37. In our view this construction is inconsistent with Roncevich at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘was attributable to’ manifested a legislative intention to give ‘defence-caused’ a broad meaning…
38. Her Honour’s construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions ‘has arisen out of’ and ‘is attributable to his war service’ then to be found in s 101(1)(b) of the Repatriation Act 1920 (Cth). As to the former of these expressions, ‘has arisen out of’, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause. Their Honours said that the expression ‘arisen out of’ was different to ‘caused by’ or ‘results from’ and was satisfied if some less proximate causal relationship was established other than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description ‘arising out of’. As to the expression ‘is attributable to’ their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show ‘attributability ‘if the cause is one of a number of causes provided it is a contributory cause.”
Nonetheless, there must be a causal connection with defence service, rather than simply a temporal connection: Repatriation Commission v Tuite (1993) 39 FCR 540 (Tuite). Davies J made the following observations (541 – 542):
“if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates. See Marshall v Minister of Pensions (1948) 1 KB 106 at 110…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
The standard of proof relevant to this matter is “reasonable satisfaction” – s 120(4). However, reasonable satisfaction is to be assessed by reference to the Standard of Principles (SoP) regime – s 120B. Subsection 120B(3) provides:
“(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
It is not contested that there are five applicable SoPs.
In Attachment 1 to the Applicant’s Issues, Facts and Contentions (Exhibit 2), the SoPs relied upon by the veteran as well as the relevant Factors in those SoPs are set out. In accordance with these submissions, the following SoPs and Factors are explained below.
First, the applicable SoP for cancer of the left lung is No. 93 of 2014 – Malignant neoplasm of the lung.
Clause 6 lists the Factors which must as a minimum exist before it can be said that, on the balance of probabilities, malignant neoplasm of the lung is connected with the circumstances of the veteran’s service. The Factor primarily relied upon by the veteran is Factor 6(a):
“smoking at least one half of a pack-year of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the lung, where smoking commenced at least ten years before the clinical onset of malignant neoplasm of the lung”.
A pack-year of cigarettes is defined in Cl. 9 to mean the consumption of 20 tailor-made cigarettes per day for one calendar year, or 7,300 cigarettes.
The veteran also raises the possibility of Factor 6(j) coming into play. It is stated that the veteran “may or may not fit this Factor.” – Exhibit 2 Attachment 1 para (A) (3).
Factor 6(j) is as follows:
“having a pulmonary disease from the specified list at least ten years before the clinical onset of malignant neoplasm of the lung.”
Clause 9 defines “a pulmonary disease from the specific list” as including:
“(b) chronic obstructive pulmonary disease.”
The resolution of whether Factor 6(j) can be relied upon by the veteran is inextricably intertwined with the broader question of whether the veteran meets the requirements of the SoP for COPD discussed below.
The applicable SoP for IHD is No. 2 of 2016. Ischaemic heart disease is defined by Cl. 7(2) as “a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis, vasospasm or dissection of the coronary arteries.”
The Factors that must exist are contained in Cl. 9. Two Factors are advanced by the veteran, namely:
(a)Factor 9(1), having hypertension before the clinical onset of IHD; and
(b)Factor 9(6), where smoking has ceased prior to the clinical onset of IHD:
(i)Smoking at least one half pack-year but less than five pack-years of cigarettes before the clinical onset of IHD within five years of smoking cessation;
(ii)Smoking at least five pack-years but less than 20 pack-years of cigarettes before the clinical onset of IHD, and the clinical onset of IHD has occurred within 20 years of smoking cessation; or
(iii)Smoking at least 20 pack-years of cigarettes, before the clinical onset of IHD.
The applicable SoP for COPD is No. 38 of 2014. COPD is defined in Cl. 3(b) as follows:
“a family of lung diseases of diverse phenotypes, usually characterised clinically by chronic and persistent cough, sputum production or dyspnoea, and physiologically by progressive airflow limitation that is poorly reversible. The definition comprises chronic bronchitis, emphysema and chronic airflow limitation…”
Factor 6(a) is relied on by the veteran:
“smoking at least five pack-years of cigarettes…before the clinical onset of chronic obstructive pulmonary disease, and where smoking has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation…”
The applicable SoP for depression is No. 84 of 2015 – Depressive Disorder.
Depressive Disorder is defined in Cl. 7(2)(a) as follows:
“…a group of mental disorders which are manifested by a dysphoric mood and a range of other symptoms. The mood disturbance is prominent and persistent. This definition is limited to major depressive disorder (incorporating major depressive episode), persistent depressive disorder (which includes the condition previously known as dysthymia), other specified depressive disorder, unspecified depressive disorder, premenstrual dysphoric disorder, depressive disorder due to another medical condition and substance/medication-induced depressive disorder…”
The veteran relies, firstly, on Factor 9(1)(h):
“having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical onset of depressive disorder…”
In addition, the veteran also relies on Factor 9(4):
“(4) for depressive disorder due to another medical condition only:
(a) Having an endocrine, cardiovascular, respiratory, metabolic, infectious or neurological disorder, where the medical condition is a direct physiological cause of the depression at the time of the clinical onset of the depressive disorder.”
Finally, the applicable SoP for hypertension is No. 64 of 2013. Hypertension is defined in Cl. 3(b) as “persistently elevated blood pressure, diagnosed by a medical practitioner” and is evidenced by various examples. The first example is of relevance in this matter, namely:
“(i) a usual clinic blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement”.
The relevant Factor relied upon by the veteran is 6(b):
“consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension.”
THE HEARING
A Hearing was convened in Brisbane on 17 June 2021.
Mr K Cullen appeared for the veteran and Mr M Hawker for the Respondent.
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.
CONSIDERATION
Introduction
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.
The veteran’s first wife, in a statement dated 19 December 2019 (referred to previously), claimed that when they married in 1964 he did not smoke, and that he only commenced this habit once he had enlisted – Exhibit 1 T27 p. 313.
This version of events is totally at odds with the life story that the veteran has maintained over the past fifty years. The Tribunal does not wish to cast any aspersions on the statement of the veteran’s first wife, but places little or no weight on her stated version of the veteran’s smoking habits during their marriage.
It is patently clear that when the veteran enlisted he had a smoking history. This is so because in his Entry History Questionnaire, dated 15 May 1980, the veteran ticked the “Yes” box to the Question had he ever smoked tobacco regularly – Exhibit 1 T32 p. 355. The Tribunal accepts that if this was the only evidence presented it could be interpreted as meaning that the veteran was at the time of enlistment a regular smoker, or, alternatively, that at some prior time in his life he had been a regular smoker.
This erroneous state of affairs was corrected by Mr Cullen in his submission to the Board dated 18 May 2020 – Exhibit 1 T28 pp. 314 - 316. Mr Cullen put on the record that the veteran had commenced smoking in 1958, ceased smoking in 1968 and recommenced smoking in 1980 – Exhibit 1 T28 p. 314. The Tribunal notes, in passing, that Mr Cullen advanced the veteran’s case in a very professional and competent manner.
Also, as previously noted, the veteran stated to the Board that he had in fact started smoking in 1958 and not in 1980 – Exhibit 1 T29 p. 319.
The veteran’s claim that he did not smoke cigarettes between 1968 and 1980 and only recommenced after he enlisted, is not borne out by the contemporaneous service documentation quoted earlier.
As previously noted, the veteran’s service medical records indicate that he had a longstanding smoking habit. In the June 1981 Medical Examination Record, the assessing Doctor noted that the veteran had a 20 a day smoking habit “for many years” – Exhibit 1 T32 p. 368. Likewise, in the Medical Examination Record of April 1985 the assessing Doctor observed that the veteran had a smoking history of 20 cigarettes daily for “20 years” – Exhibit 1 T32 p. 402.
There is no suggestion in any of the service medical records that the veteran had ceased smoking for twelve years and only recommenced once he had enlisted in the RAAF.
Reference has also been made to the veteran’s smoking history as recounted to Dr Fong. In his first report of 10 July 2017, Dr Fong recorded that the veteran was a former smoker “25 a day from 14 – 65 years”, and later in the same report noted that the veteran was an ex-smoker with a “50 pack year history” – Exhibit 5 ST2 pp. 3 – 4.
Whilst the Tribunal did not have the benefit of listening to the veteran give evidence, the Board did receive oral evidence from the veteran. Further, the Board specifically gave the veteran an opportunity to deal with the inconsistencies in the evidence about his smoking history. Of particular relevance are the following observations of the Board – Exhibit 1 T29 pp. 321 – 322:
“8. We discussed with you some discrepancies between the evidence you gave to us at hearing and some of the information in the s. 137 documents. You said that you thought what you had told us about was the same as what was in the paperwork but that you were not sure what was in the paperwork. We therefore discussed some specific references to smoking in the paperwork with you, including as follows:
(a) Folio 102, which are notes of a RAAF medical examination of you in April 1985, where it is noted ‘Personal History’ – 1. Smoking 20 day x 20 yrs’, suggesting that at that time you had been smoking 20 smokes per day for 20 years. We noted that this seemed different to what you had told us and raised why the medical examination record would say that you had been smoking 20 smokes a day for 20 years if you had given up smoking and only recommenced when you joined the RAAF. We asked if you understood the question and you indicated that you did. You said that when you got all the paperwork, there was about 40 pages of it, it took you five trips to the doctor to get the paperwork filled out and that by the end of it you were so confused you did not know what was going on. Further, you told us you do not recall that medical examination (in April 1985) at all. You agreed that you did have regular examinations throughout your time with the RAAF but you said the April 1985 one cannot be correct.
(b) Folio 90, which are notes of a RAAF medical examination of you in June 1981, where it is noted ‘Smoking – 20/Day for many years’, suggesting that as at 1981 you had been smoking 20 a day for many years. You said that that cannot be right.
9. We discussed with you that we were trying to reconcile why some of the evidence before us suggests that you were smoking 20 smokes a day continuously when you joined the RAAF in 1980, whereas other evidence suggests that you had stopped smoking (in 1968) and started again when you joined the RAAF. You told us that you understood the concern we had raised but that you could not explain it any better than you had.”
The Board adjourned the Hearing and when proceeding recommenced Mr Cullen made certain submissions, which are set out below – Exhibit 1 T29 pp. 322 – 323:
“12. …Mr Cullen said that, as regards the medical examination records made while you serving with the RAAF, as it is unknown as to exactly what questions were asked of you, it cannot be known whether the notes reflect what is accurate…
13. We discussed with you and Mr Cullen that it might be considered that more weight should be placed on medical examination documents completed contemporaneous to the time of your service rather than documents completed many years later such as the Smoking Questionnaire and your local doctor’s report in 2019.
14. Mr Cullen submitted that it is pretty normal for a doctor to ask a question of patient but to put down something different to what the patient says. We accept that such a scenario can occur at times but consider it more likely that a doctor would usually record what is actually said…”
The Tribunal agrees with the Board that while it is possible that a Doctor may incorrectly record what a patient informs them, it is not a likely scenario. Further, insofar as multiple doctors have recorded that the veteran was a smoker of many years duration, it is even more unlikely that each and every one of those doctors has misconstrued what the veteran told them.
The Tribunal has been presented with inconsistent evidence about the veteran’s smoking habit. However, if one discounts accounts of the veteran’s smoking habit given many years after the event, and focuses on contemporary documentation, it is tolerably clear that the veteran commenced smoking in approximately 1958 and maintained that habit for decades. The contemporary evidence suggests that the veteran was smoking when he enlisted in the RAAF and continued smoking until approximately 2005, many years after he returned to civilian life.
Even if one looks at the accounts of the veteran’s smoking as recorded by Dr Fong, it is tolerably clear that the veteran was smoking from the age of 14 until he was 65 years of age. There is no reason to doubt that Dr Fong would have recorded what the veteran told him. There is no suggestion in Dr Fong’s various reports that the veteran was an intermittent smoker, let alone that there was a 12 year gap in his smoking habit between 1968 and 1980. Such a long gap in smoking is significant, and one would expect that Dr Fong would have noted this if the veteran had made mention of it.
The Tribunal therefore finds that the veteran commenced smoking in 1958 and was a regular smoker from that time until he finally ceased smoking in approximately 2005.
Proceeding on this basis, the key question that must be answered is whether the veteran’s smoking habit arose out of, or was attributable to, his service in the RAAF.
The fact that the veteran smoked prior to enlisting and continued smoking after he returned to civilian life is not determinative of this question. As was held by Emmett J in Kattenberg v Repatriation Commission [2002] FCA 412, 73 ALD 365, it is not necessary that all of a veteran’s smoking habit occured during the time that he or she rendered service. The key question is whether the circumstances of a veteran’s service is a contributing cause to a veteran’s smoking habit becoming more severe or entrenched. As pointed out previously, there must be a causal connection to rendering service and not merely a temporal connection.
The Respondent drew the Tribunal’s attention to four determinations which it contended were consistent with the proposition that the evidence in this matter does not disclose the required causal connection – Exhibit 4 para 4.14.
The first determination referred to is Rowley and Repatriation Commission [2019] AATA 5400.
Mr Rowley served in the Royal Australian Navy (RAN) between 1966 and 1973 and claimed that he did not smoke prior to enlisting. Upon enlisting, it was contended that stress, peer group pressure, the availability of cheap cigarettes and boredom all resulted in Mr Rowley starting to smoke and continuing that habit.
Mr Rowley rendered defence-service between 1972 – 1973, and it was contended that during that period there was an increase in his smoking due to natural progression and boredom. The Tribunal outlined the Respondent’s contentions:
“31. The Respondent contends that any increase in the Applicant’s smoking in the relevant period can be put no higher than a temporal connection. That the defence service was the setting in which the Applicant increased his smoking habit and not the cause for it. The Respondent submits that the Applicant was neither required nor was he expected to smoke as part of his duties at any time during the relevant period and therefore the Applicant’s defence service was no more than the setting in which he smoked, not the cause for it….
33. The Respondent further submitted that it was unclear when the Applicant, in relevant period increased his smoking and by how much.”
The Tribunal agreed that the evidence only disclosed a temporal connection:
“34.There is no medical evidence, from Dr Ng or at all, to raise a connection between the claimed diseases and the Applicant’s defence service.
35. If there was an increase in smoking in the period 7 December 1972 to 2 August 1973 it did not arise out of and/or was not ‘attributable’ to defence service, in that the ‘boredom’ referred to by the Applicant was merely the setting in which the event occurred, in that the Applicant therefore had more time, particularly at HMAS Waterhen. It is found that the boredom was merely a temporal, and not a causal, connection. The stress that the Applicant referred to was not stated to be within the relevant period, as referred to above. It is found that as to any increase in the Applicant’s smoking it was not caused by stress related to his relevant service or any incident of his relevant service.”
(footnotes omitted)
The next determination referred to is McDermott and Repatriation Commission [2011] AATA 714.
Mr McDermott rendered defence-service in the RAN between 1974 and 1996. He was only 18 years old when he enlisted and commenced smoking shortly thereafter. It was claimed that access to cigarettes was easy and cheap and there was peer group pressure to smoke.
As in this matter, Mr McDermott gave a number of conflicting accounts of his smoking history and the reason for his smoking. However, the Tribunal made the following finding, irrespective of those inconsistencies:
“18. But even were I to have accepted that evidence I would not have been able to conclude that Mr McDermott’s smoking arose out of, or was attributable to, his service. It will suffice to say that he was neither required nor expected to smoke. Service in the Navy provided no more than the setting in which Mr McDermott smoked, it did not cause it.”
The Tribunal’s attention was also drawn to Dyson and Repatriation Commission [2008] AATA 296.
Mr Dyson served in the RAAF between 1972 and 1984. The uncontested evidence was that he smoked socially before enlisting but this increased when he was posted to Singapore for two years. The increase in smoking was claimed to result from being away from home, peer pressure, availability of cheap cigarettes and boredom. Mr Dyson stopped smoking in 2005 after he was diagnosed with cancer, and he passed away in 2006.
The Tribunal was not satisfied that there was a causal, as distinct from a temporal, connection between Mr Dyson’s service in Singapore and an increase in his smoking habit. The Tribunal made the following observations:
“36. Those considerations are also relevant in assessing the ‘environmental factors’ submitted by the applicant, which must arguably be connected logically with the veteran’s defence service. That is, his service undertaking security duties as a dog handler, where he was required to do 10 hour shifts in Singapore guarding the RAAF base, sometimes at night and sometimes alone, must be such as to raise a connection with his increased smoking habit. This is also in the context of his service not being operational service and no specific traumatic incident having been raised. There is certainly the ‘boredom’ factor which has been raised in the applicant’s application. We are also conscious however, that there may be a psychological effect of boredom and his patrolling duties on the RAAF Base on his smoking habit. In the final analysis, it must depend on the Tribunal’s view of whether the consequences of his service would be likely to have caused the veteran’s increased smoking and as a consequence, malignant neoplasm of the oesophagus, and as a further consequence, his death. The standard required is that on the balance of probabilities or in other words, that its existence is more probable than not, or that the Tribunal must be satisfied that it is established by a preponderance of probability.
37. Our conclusion must also be based on the evidence. We accept the temporal connection…The present case does not involve operational service and there are no overt stressors raised, other than the veteran’s duties as a dog handler…
38. …Also relevant is whether the availability of additional money and cigarettes has in fact triggered increased addiction to nicotine which had not been aggravated by defence service. As was observed by the High Court of Australia in Goward v Commonwealth, the location of a camp or military setting reveals ‘no more than antecedent conditions’ and are not ‘operative causes’ of a veteran’s condition (per Dixon CJ).
39.On balance, the evidence is no more than equivocal… the facts must be established to be ‘more probable than not’. One must distinguish between ‘probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other’…A causal connection is possible but in our view, it is not sufficiently robust to satisfy the High Court formulation which requires the Tribunal to be satisfied that the causal connection is ‘more probable than not’…”
(footnotes omitted)
The final determination relied on by the Respondent is Wallace and Repatriation Commission [2017] AATA 926, 157 ALD 577 (Wallace).
Mr Wallace served in the Australian Army between 1975 and 1980; he was 22 years of age when he enlisted and served as an Infantryman and Pay Clerk. He commenced smoking when he was 16 or 17 years of age but claimed his smoking habit increased after enlisting due to peer group and work pressure. A further contributor, it was claimed, was living on camp for an extended period with little weekend leave and no escape from the Army lifestyle.
In finding that there was no causal connection, the Tribunal made the following observations:
91. When the veteran enlisted he had been in the workforce for approximately seven years. He had already started smoking and was a married man. He was born in Brisbane and grew up in the city. He was not an impressionable young man with no world life experiences. Indeed, when he enlisted he would have been older than most of the other young men who undertook training with him.
92. In 1975 Australia was not at war, nor is there any suggestion in the evidence presented that the veteran had an apprehension that he would have been sent for training overseas preparatory for any combat or peacekeeping duties.
93. The material before the Tribunal suggests that the veteran was ‘well orientated to military life’…
94. There is no material before the Tribunal suggesting that he was bullied or intimidated by army life or that apart from his marriage and financial problems he was struggling with the performance of his duties…
95. The duties that the veteran performed while involving skill and some stress, were not of their nature dangerous or inherently stressful. The veteran was performing clerical duties of a type not dissimilar to most pay clerks in large public or private sector organisations…
100. At the hearing Mr. Hornby submitted that the very nature of camp life and the Army culture of the time provided the necessary causal connection.
101. If the Tribunal accepted this contention than any serviceman of that era who commenced regular smoking after enlistment would meet the statutory criteria…
107. …Service alone cannot satisfy the test of causation. Something intrinsic to that service needs to arise from the material before the Tribunal; otherwise the claim will fail as it highlights only a temporal connection.”
It is a question of fact whether the material presented satisfies a decision-maker that it raises a connection between the injury or disease suffered by a veteran and the service he or she has rendered.
In this case the material presented enables the Tribunal to make the following factual findings.
The veteran:
(a)was born in 1941;
(b)commenced smoking in 1958;
(c)continued smoking from that time up to and including the time he enlisted;
(d)was married in 1964 and had three children (born 1964, 1967 and 1970);
(e)worked, inter alia, as a cook prior to enlisting;
(f)enlisted in the RAAF in 1980 and rendered service until 1992;
(g)performed duties as a cook whilst enlisted;
(h)continued smoking after his discharge from the RAAF;
(i)ceased smoking in approximately 2005.
The veteran did not enlist as a young and impressionable man. He was 39 years old when he enlisted, was married and was the father of three children, the youngest of whom was 10 years old at that time. This matter can be contrasted with Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429, 158 ALD 64 where the veteran was only 15 years old when he enlisted and Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186 where the veteran was only 17 years old when he commenced rendering service.
By 1980 cigarette smoking was not encouraged by the RAAF and was regarded as a health risk. This can be contrasted with veterans who rendered service before 1970 – see Re Everett and Repatriation Commission (1991) 23 ALD 529.
Unlike the facts in Tuite, the veteran was not socially inexperienced when he enlisted, and was not overwhelmed by service life.
There is no evidence that the veteran was exposed to potentially hazardous service nor was any evidence led of any particular stressor related to the veteran’s service that led to an increase in his smoking habit – Repatriation Commission v Hawkins (1993) 45 FCR 205.
The service-related duties rendered by the veteran were not inherently stressful. The veteran performed duties as a cook, and there is no evidence before the Tribunal that this service caused any particular stress. Indeed, as the veteran was a cook in civilian life, it would appear from the evidence that he had a seamless transition into service life – Lane and Repatriation Commission [2005] AATA 566.
The Tribunal accepts that there were times that the veteran experienced boredom, however the boredom he experienced cannot be equated to that experienced by the veteran in Tuite. In that matter, the boredom of camp life was actually stressful insofar as the servicemen experiencing that boredom were due to be posted to frontline wartime duties. In short, the boredom in question was the prelude to operational duties that could entail death or serious injury. The boredom experienced by the veteran in this matter, was the boredom of having too little to do. It could not sensibly be said that boredom of this type is inherently stressful.
The facts of this matter are also somewhat similar to the factual matrix in Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726.
Mr Samarasekera enlisted in the Australian Army in 1976 when aged 25 years and rendered service until 2005. He smoked prior to enlisting and found living on base, and the courses he undertook, stressful. It was claimed that peer pressure, obtaining poor grades, boredom and the pressure related to performing the duties of an Officer all combined to exacerbate his smoking habit.
In rejecting Mr Samarasekera’s claim, the Tribunal made these observations:
“26. I was satisfied that the facts in Mr Samarasekera’s case were very different from those in Wall. Mr Wall was considerably younger than Mr Samarasekera at the time of joining up. Mr Wall was 19, whereas Mr Samarasekera was almost 26 years of age and Mr Wall was not a smoker, whereas Mr Samarasekera was. One could reasonably expect a 19 year old to be more impressionable. Mr Wall was placed in rather different circumstances in the 1950s as a young National Serviceman taken away from his normal life – all matters to which Senior Member Allen specifically referred…
28.I agree with Dr Habersberger that there was no connection between Mr Samarasekera’s service in the Army and smoking. Dr Habersberger pointed out that the incidence of smoking in the Army was much the same as in the general population and it is relevant, as he observed, that the Army was not providing cigarettes to servicemen.
29. I was satisfied on the facts here that Mr Samarasekera’s Army service provided only the setting in which he increased his smoking levels. This was a matter of personal choice and there was no characteristic or feature of his employment in the Army or the duties (ancillary or otherwise) required of him, nor anything in the circumstances in which Mr Samarasekera was undertaking those duties that contributed to his smoking.”
As I noted in Wallace (at [107]), service alone cannot satisfy the test of causation. Something intrinsic to that service needs to be present from the evidence such that it can sensibly be said that there is a causal connection between rendering service and, in this instance, the veteran’s smoking habit.
The material presented does not disclose anything about the veteran’s service that could be pointed to as suggesting a causal link to his smoking habit. The service rendered by the veteran was not inherently stressful and entailed no more stress than he would have been experiencing in civilian life. The veteran was a mature man with a family and a more than two decade smoking history when he enlisted. It would appear that service life was not particularly stressful or alienating, and the fact that the veteran subsequently became President of the Airmen’s Club suggests that he embraced service life and enjoyed the camaraderie of his peers.
In these circumstances, the Tribunal is satisfied that the veteran’s service provided only the setting in which his smoking habit continued, and, at times, increased. The veteran’s smoking habit was not connected to the rendering of his service but essentially constituted the continuation of a habit of long duration which, more than likely, would have continued irrespective of whether he enlisted.
Chronic Obstructive Pulmonary Disease – SoP 38 of 2014
As previously noted, the veteran points to Factor 6(a) namely smoking the requisite amount of cigarettes where COPD has occurred within 20 years of cessation of smoking.
Again, there is no dispute that the veteran meets the quantity requirements of the SoP, and, further, that the onset of COPD occurred within 20 years of ceasing smoking. In this matter, it is not disputed that the veteran ceased smoking in 2005 and, whether clinical onset of COPD was 2005 or 2013/2014, the time requirement is met.
However, as the Tribunal has not accepted a causal link between the veteran’s smoking habit and his service, then the veteran does not meet the requirements of Cl. 5, namely that Factor 6(a) is related to the service rendered by the veteran.
Further, the veteran raised the possibility that Factor 6(j) of SoP 93 of 2014 (malignant neoplasm of the lung) could be relied upon, namely having a pulmonary disease at least ten years before the clinical onset of malignant neoplasm of the lung.
Insofar as the COPD (the pulmonary disease) was stated to have arisen from the veteran’s smoking habit, and the Tribunal has found that his smoking habit is not causally related to his service, then it is not open for the veteran to rely upon Factor 6(j).
Ischaemic Heart Disease – SoP 2 of 2016
As previously noted, the veteran relies on two Factors in this SoP, namely:
(a)Factor 9(1), having hypertension before the clinical onset of IHD; and
(b)Factor 9(6), smoking the requisite number of cigarettes before the clinical onset of IHD.
With respect to Factor 9(6), as with SoP 38 of 2014, there is no dispute that the veteran meets the smoking quantity requirements of the SoP, however, the veteran fails because there is no causal relationship between his smoking and the service he rendered. In this SoP, then, the causal requirements of Cl. 8 are not met.
Factor 9(1) requires that the veteran had service-related hypertension before the clinical onset of IHD. Accordingly, it is necessary to consider SoP 64 of 2013 – hypertension, which is discussed below.
Hypertension – SoP 64 of 2013
As previously noted, the veteran points to Factor 6(b), namely, consuming an average of at least 500 grams of alcohol per week for at least the six months before the clinical onset of hypertension.
The Tribunal was presented with very little material that would support this proposition.
The Diagnostic Assessment of hypertension prepared by Dr Lip of 5 March 2019 lists as the cause of the veteran’s hypertension – Exhibit 1 T17 p. 226:
“Smoking
Sleep Apnoea
Depression”
In short, Dr Lip does not diagnose alcohol consumption as a cause of the veteran’s hypertension.
However, even if there is a link between the veteran’s alcohol consumption and his hypertension, two further matters need to be addressed.
First, Factor 6(b) requires that the veteran consumed at least 500 grams of alcohol per week for at least six months before the clinical onset of hypertension. The Tribunal accepts that clinical onset was 2006 as recorded by Dr Lip – Exhibit 1 T17 p. 226.
There is scant material before the Tribunal about the veteran’s drinking habits.
The veteran’s first wife stated that when they married in 1964 both she and the veteran were “only occasional social drinkers” – Exhibit 1 T27 p. 313.
In the Entry History Questionnaire of 15 May 1980, it is noted that the veteran was then drinking six beers daily – Exhibit 1 T32 p. 355. In the Medical Examination Record of June 1981 it was noted that the veteran was then drinking four 10 ounce glasses of beer daily – Exhibit 1 T32 p. 368. A 10 fluid ounce glass of beer is the equivalent of a “pot” or 285 ml or half a pint.
In his Medical Examination Record of April 1985, the treating doctor noted that the veteran was drinking alcohol “occasionally” – Exhibit 1 T32 p. 402. By June 1987 the treating doctor observed that the veteran was drinking 55 grams of alcohol daily – Exhibit 1 T32 p. 414.
In his Periodic Health Assessment Report of September 1990 it was noted by the Doctor that the veteran was a “moderate – heavy” drinker – Exhibit 1 T32 p. 462.
The veteran has not completed an Alcohol Questionnaire, but he did inform the Board that he was a moderate drinker prior to enlisting, but his alcohol consumption increased because he was President of the Airmen’s Club – Exhibit 1 T29 p. 336.
As will be seen from the meagre information before the Tribunal, it is not possible to conclude that the veteran was drinking at least 500 grams of alcohol a week in the six months prior to the clinical onset of hypertension.
If the June 1987 assessment is correct, then the veteran was consuming, after seven years of service in the RAAF, approximately 385 grams of alcohol per week – Exhibit 1 T32 p. 414. There is no material that suggests that the veteran met the 500 grams consumption level mandated by the SoP at any time prior to enlisting, whilst he was serving in the RAAF or after his discharge.
However, even if it were accepted that the veteran was consuming the requisite quantity of alcohol required by Factor 6(b), there is no convincing material either that the veteran’s drinking habits increased after he enlisted and during his service, or if that in fact occurred, that the increase in alcohol consumption was related to any service he rendered.
The veteran informed the Board that his alcohol consumption increased because he was President of the Airmen’s Club. If that were the case, then the assumption of a voluntary social position which was unrelated to his service duties is not causally linked his service – Holthouse v Repatriation Commission (1982) 1 RPD 287 at 289 per Davies J. Further, even if the assumption of such a position was linked to service duties, it is not clear why the assumption of such a role would result in greater alcohol consumption.
In these circumstances, the Tribunal finds that there is insufficient evidence that the veteran’s diagnosed hypertension meets the requirements of Factor 6(b) and also is not causally related to his service.
Depressive Disorder – SoP 84 of 2015
The veteran points to Factor 9(1)(h), namely for a major depressive disorder, a life-threatening medical illness within two years of before the clinical onset of depressive disorder.
The veteran was diagnosed with depression on 18 May 2017 and the cause of this condition, according to Dr Lip, was lung cancer, IHD, cessation of smoking and limitations on alcohol intake – Exhibit 1 T17 p. 220.
The Respondent does not dispute that Factor 9(1)(h) is initially satisfied having regard to the formal diagnosis of the veteran’s lung cancer on 28 April 2017 – Exhibit 1 T17 p. 216, Exhibit 4 para 4.40.
Nonetheless, Cl. 8 requires that the veteran’s depressive disorder is related to relevant service rendered by the veteran.
In this instance the cause of the veteran’s lung cancer was diagnosed to be, inter alia, his cigarette smoking habit over many years – Exhibit 1 T17 p. 216. Insofar as the Tribunal has found that there is not the requisite causal link between veteran’s smoking habit and the service he rendered, this Factor is not ultimately satisfied.
Reliance was also placed on Factor 9(4) which has been set out earlier.
It will be noted that the Tribunal has to be satisfied that the specified medical conditions in Factor 9(4) must be “a direct physiological cause of the depression”.
The Tribunal has not been presented with any psychological or psychiatric evidence in support of this proposition. All that the Tribunal has before it are assertions made by Mr Cullen on behalf of the veteran. In these circumstances the Tribunal is unable to make any findings favourable to the veteran because it lacks any evidence to support such findings. Accordingly, Factor 9(4) is not met.
CONCLUSION
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.
I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
...............................[SGD]..........................
Associate
Dated: 29 July 2021
Date of hearing: 17 June 2021 Advocate for the Applicant: Ken Cullen Solicitor for the Respondent: Matthew Hawker
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