Jackson and Repatriation Commission - [2000] AATA 996

DECISION AND REASONS FOR DECISION [2000] AATA 996

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/795

VETERANS' APPEALS DIVISION       )
           Re      DOUGLAS JOHN JACKSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

Date14 November 2000
PlaceSydney

Decision      The decision under review is set aside. In substitution therefor the Tribunal decides that the Applicant qualifies for Disability Pension at 100 per cent of the general rate with effect from 14 August 1996.
  ..............................................
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – ischaemic heart disease – operational service – eligible defence service – causal connection – assessment of rate of pension

Veterans' Entitlements Act 1986 ss 9(1)(b), 13(1)(b), 14, 29

Lindner v Wright (1976) 14 ALR 105
Repatriation Commission v Hawkins (1993) 117 ALR 225
Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

APPLICATION

On 14 November 1996 Mr Jackson ("the Applicant") lodged a claim (T4) for a Disability Pension payable under the Veterans' Entitlements Act 1986 ("the Act"). He claimed under ss 13(1)(b), 14(1) and (3) in respect of a hearing problem, tinnitus, "bad nerves" and stress induced heart problems.
On 7 February 1997 the Repatriation Commission ("the Respondent") made a decision on Mr Jackson's claim referring to his conditions as bilateral senori-neural hearing loss ("BSHL"), bilateral tinnitus, post-traumatic stress disorder ("PTSD") and ischaemic heart disease ("IHD"). The Respondent rejected the claim in relation to IHD but accepted it in relation to the other conditions. A Disability Pension was granted with effect from 14 August 1996 payable at 50 per cent of the general rate (T14).
On 17 February 1999 the Respondent also decided to grant another claim lodged by Mr Jackson in relation to a skin cancer condition. This decision was effective from 14 June 1998 and resulted in Mr Jackson's pension rising to 80 per cent of the general rate (T26).
On 18 March 1997 the Applicant lodged an application for the Veterans Review Board ("VRB") to review of the decision to reject his claim in relation to IHD (T16). On 6 April 1999 the VRB affirmed the Respondent's original decision to regard IHD as a non-accepted condition. It set aside the 50 per cent general rate decision. It considered that 70 per cent would be appropriate as the rate before 14 June 1998. It noted that 80 per cent was being paid and decided to continue the rate of pension at 80 per cent from 14 June 1998 (T29). This decision was notified to the Applicant in a letter dated 7 May 1999 (T36).
Mr Jackson lodged with the Tribunal an application for review on 27 May 1999 (T1).
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were admitted as evidence (Exhibit TD1) in addition to the following material:
Exhibit No Description Date
A1 A2 A3 A4 R1 R2 Applicant's Statement of Facts and Contentions Report of Dr Baz Report of Dr Baz Statement of Applicant Report of Dr Lovell Respondent's Statement of Facts and Contentions 20 June 2000 5 October 1999 2 November 1999 20 June 2000 7 October 1999 24 January 2000

At the hearing of this matter the Applicant was represented by Ms Sadleir, an advocate from the Legal Aid Commission, and the Respondent was represented by Mr Wallis, an advocate from the Department of Veterans' Affairs.
LEGISLATION
The relevant provisions of the Act are as follows:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"13 Eligibility for pension
(1)   Where:
          …
(b)a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
(d)in the case of the incapacity of the veteran- pension by way of compensation to the veteran;
in accordance with this Act."
"14 Claim for pension
(1)Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a person in accordance with subsection (3).
…
(3)   A claim for pension:
(a)shall be in writing and in accordance with a form approved by the Commission;
(b)shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c)shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
…"
"120 Standard of Proof
(1)Where a claim made under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
…"
The Repatriation Medical Authority ("RMA") issues Statements of Principles based on sound medical-scientific evidence that set out the minimum requirements to establish a causal connection between a veteran's service and particular injuries or diseases. The applicable Statement of Principles in this matter in Instrument No 140 of 1996 concerning ischaemic heart disease. It provides, as relevant:
"Factors that must be related to service
4. Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances with the person's relevant service are:
…
(e)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
…
Other definitions
7. For the purpose of this Statement of Principles:
…
"relevant service" means:
(a)operational service; or
(b)peacekeeping service; or
(c)hazardous service;
…"

FACTS

Mr Jackson was born on 9 November 1947. He served in the Royal Australian Navy ("the navy") from 12 March 1966 until 17 January 1974, engaging in operational service on numerous occasions for short-terms between 1968 and 1972, and engaged in eligible defence service from 7 December 1972 until 17 January 1974 (T2).
After leaving the navy Mr Jackson worked as a patrolman for Wormalds Security (1974-1976); a security officer for Sydneywide Department Stores (1976-1977); a machine operator for Australian Wire Pope (1977-1981) and as a truck driver and labourer for Hymix Concrete (from 1981).
Exhibit TD1 includes the following material relevant to Mr Jackson's IHD claim:

Mr Jackson said that service caused his heart problems through continuous pressure to perform causing "incredible stress" (T4).
Mr Jackson said that he has problems walking long distances and has given up all forms of sport. He lost several days of work in 12 months to November 1996 when at doctors and heart specialist (T5).
Mr Jackson recorded in 1996 (T6) that he began smoking in March/April 1966. He smoked 40 cigarettes a day. That rose in 1968 to over 80 a day because he was nervous in foreign waters on navy duty. He smoked because of peer pressure and because cigarettes were cheap in the canteen on shore and at sea. He was still smoking in 1996.
As regards alcohol consumption, in 1996 (T7) the Applicant recorded that he began drinking daily upon joining the navy in 1966 because of peer pressure and the need to relax. He drank beer and some scotch whisky. He would consume four to six cans of beer plus several scotch and ice. He still consumed alcohol every day in 1996, ie 10 to 12 cans of beer a day plus a half a bottle of port.
Dr Ruba, the Applicant's general practitioner, answered questions for the Department of Veterans' Affairs ("DVA") in a document lodged with DVA on 28 January 1997 (T8). She diagnosed IHD and myocardial infarction. Onset of the infarction was 27 May 1994. He had a coronary occlusion on 1 June 1994. Appropriate clinical treatment has been available for these heart conditions. She identified that Mr Jackson had been a heavy smoker and alcohol drinker. She certified that Mr Jackson had been unable to play sport, exercise or walk vigorously since 27 May 1994. In T9 she reported that Mr Jackson had no symptoms of heart problems before the myocardial infarction. Complications from the heart condition on January 1997 were multiple neural disease and angina on exertion or stress. She listed his medications which are indecipherable. These had side-effects. He was tired and run down. Dr Ruba felt that he could perform at METs level 3-4, ie that he could do vacuuming/house cleaning; window cleaning; mowing flat areas and hanging out washing.
At T12, a report dated 15 January 1997 by Dr J J Nichols, psychiatrist, records the following relevant information. Consumption of alcohol drinks increased during Mr Jackson's period of service rising to six to eight 15 ounce bottles of beer a day plus a variable amount of assorted spirits. This habit was still present with cooking sherry now consumed also. Episodes of withdrawal were frequently present and the criteria for alcohol addiction existed.
Dr Nichols noted the consumption of cigarettes as a result of his period of service up to 70 a day and remaining at that rate. Attempts to give up had been unsuccessful. He had seen Dr Hackworthy, cardiologist, with a heart condition, "probably secondary to the … cigarette habit."
At T14 the Respondent refused to accept the IHD condition as war-caused because his heart condition did not occur until 1994, some 20 years after discharge. The Applicant "could not have suffered acute stress, due to service, immediately prior to the onset of" IHD. For various reasons the Respondent held that there had been no relevant "inability to undertake vigorous or moderate physical activity"; no relevant exposure to passive smoking and no pipe or cigar smoking by Mr Jackson. There was no history of any period or periods of cigarette smoking causally related to operational service or eligible service. There was no history of various other relevant conditions. There was no aggravation of IHD because no symptoms or signs of IHD had developed before Mr Jackson was discharged from service. Mr Jackson could not satisfy the relevant Statement of Principles ("SoP") issued by the Repatriation Medical Authority.
Ms Helen Potter, Mr Jackson's sister, wrote on 6 June 1997 concerning her brother's smoking (T24). She said that he only had the odd cigarette before going to Vietnam. When he returned from trips to Vietnam he was a very heavy smoker.
Mr Kevin Jackson, Mr Jackson's brother, wrote on 2 June 1997 (T25) that Mr Jackson was active in rugby union and surfing before joining the navy. He was a very light smoker. During the time when he was making trips to Vietnam, Kevin Jackson noticed that the Applicant was smoking quite heavily.
The VRB reasons for decision dated 6 April 1999 (T29) uphold the Respondent's decision on IHD as a non-accepted condition. The VRB applied SoP Instrument No 80 of 1998 ("SoP 80/98") on IHD. The Applicant relied on factor 5(e) in the SoP, "smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for a period of at least one year immediately before the clinical onset of [IHD]". The VRB rejected Mr Jackson's appeal on the reasoning that his operational service, which is his only eligible service under the Act, did not commence until 13 November 1968. He had been smoking since March/April 1966 (T6) and his smoking rate rose in July 1968. He was smoking at this rate by the time his operational service commenced. There was no subsequent increase in the number of cigarettes smoked daily by Mr Jackson. There was no increase in smoking that could be attributable to eligible service. The VRB also noted that the increase in smoking that occurred in July 1968 would not have added noticeably to the harm he was already suffering from the 40 cigarettes a day he had smoked since 1966.
Mr Jackson signed a statement on 12 February 1999 changing his evidence on smoking (T31). He said he began by smoking 20 cigarettes a week in the navy in 1966. This changed after he first went to Vietnam in 1968. He increased his smoking because he was worried and upset after going there. He smoked 40 cigarettes a day and then after a very short period around "80 plus" a day. He said he continued at that rate until 1994 when hospitalised with his heart condition. He stopped smoking for a week at that time but soon recommenced at about 50 cigarettes a day. He reduced this to 25 cigarettes a day in 1996. He was still smoking that amount in 1999.
Dr M Baz, occupational physician, provided a report dated 5 February 1999 (T32). On IHD she said that he had a heart attack four or five years earlier. He had angina in 1999 with stress for which he used a sublingual spray. He also had hypertension which was well controlled with medication. He would become short of breath with exertion such as running. Angina rarely occurred at work. Mr Jackson described a high level of alcohol consumption of eight to 10 schooners a day and sometimes spirits as well. He told Dr Baz that on some days he did not drink at all.

In addition to Exhibit TD1, the Tribunal had the benefit of certain other relevant documents.

Exhibits A2 and A3 were further reports by Dr Baz dated 5 October and 2 November 1999, respectively. Mr Jackson's angina comes on with exertion and stress. It occurs if he walks up hill and if he feels particularly stressed. He feels breathlessness and angina with shovelling at work but not if he does raking or sweeping. Breathlessness at a similar level had been present for four or five years. Angina also occurs at night, waking him about once each night. Mr Jackson understands his blood pressure is a little high. He smokes 40 cigarettes a day. He tried to stop smoking but could not. He consumes six to seven stubbies of beer a night and sometimes more, particularly on weekends. He does not drink before driving. On examination he was 93 kg and 171 cm tall. His pulse was 72 and regular. He had a blood pressure reading of 130/95.
Dr Baz described Mr Jackson's work as a cement truck driver. He works from 7.00 am until 3.30 pm five or five and a half days a week. His attendance is regular. He transports cement mix, checks the mix and puts chutes on at the work site for cement delivery.
Dr Baz would support payment at 100 per cent of general rate if IHD were an accepted disability.
Dr D Lovell, psychiatrist, prepared a report dated 7 October 1999 (Exhibit R1) in which he recorded the following relevant material. Before his naval service, the Applicant told Dr Lovell, he drank on average two beers a week. This rose to 18 beers a day when he served on the HMAS Jeparit (1971). When in port he frequently drank with the army and air force base. After leaving Vietnam his consumption dropped to a carton of beer a week. He has never suffered alcohol blackouts, withdrawal fits or been charged for drunken behaviour. He currently drinks six to eight stubbies a day. His sleep is disturbed if he does not drink. He drinks every day. He meets the criteria for alcohol dependence.
Dr Lovell records that Mr Jackson is treated for his IHD with nitrolingual spray. Mr Jackson reported that he stopped twice in a 1.5 kilometre walk as a result of chest tightness. He stated to Dr Lovell that he had two coronary arteries that are partially blocked.

THE APPLICANT'S EVIDENCE

Mr Jackson provided a written statement dated 20 June 2000 (Exhibit A4). Relevantly, he stated as follows:

He never smoked prior to joining the navy. He played a great deal of sport such as surfing and representative junior rugby. He wanted to be fit and had no interest in or desire to smoke.
He began to smoke after joining the navy in 1966. From then until he joined the HMAS Sydney (late 1968) he estimates he smoked a packet of cigarettes a week, if that much. He was a social smoker. His smoking increased to 40 cigarettes a day on the HMAS Sydney. This was because trips to Vietnam were stressful. He was smoking 80 cigarettes by the time he was posted on the HMAS Jeparit.
After service he continued to smoke at the same level. It eased his nerves and helped him to deal with people in relation to Vietnam. He stopped smoking for two weeks when he had his heart attack in 1994 and entered hospital. He resumed smoking at his current level of 25 cigarettes a day.
He was confused as to the exact dates when he filed in the documents for his pension claim (T4 and T6, 29 October 1996).

At the hearing Mr Jackson gave evidence under oath. This evidence resulted in the following new information:

He confirmed that the evidence he gave as to his cigarette use in T31 and Exhibit A4 is correct and that the answers he gave in T6 when applying for his pension were incorrect. He did not smoke 40 cigarettes a day from March/April 1966. It was 20 cigarettes a week. The rise in consumption to at least 80 cigarettes a day on the HMAS Sydney occurred late in 1968, not July 1968 as T6 says. The smoking gradually built up over a couple of months. It reached 40 a day after about three trips to Vietnam and then rose to 80 a day.
His smoking increased on the Sydney because of stress, action stations, long hours and the fact that Mr Jackson was always on edge. Smoking helped to calm the Applicant. He found that the troops were of a positive disposition when going to Vietnam but they were moody when coming home. Mr Jackson was increasingly nervous. Like the troops the navy personnel did not feel they knew what was going on. They were not told what to expect about conditions in Vietnam.
Cigarettes came from the ship canteen. They were cheap and not restricted.

In cross-examination by Mr Wallis, the following relevant matters were raised:

Mr Jackson did not accept Dr Lovell's comment attributed to Mr Jackson that he was a very light smoker before he joined the navy. Mr Jackson insisted he started to smoke only on joining the navy. He suggested that Dr Lovell's examination had taken only 15 minutes. (This was refuted by Dr Lovell in a letter provided to DVA on 29 June 2000, after the hearing in this case. Dr Lovell says he spent an hour with Mr Jackson.)

Mr Wallis traced with Mr Jackson his navy history. Early on it consisted of periods at or on HMAS Cerberus, HMAS, Anzac and HMAS Diamantina during which he smoked a packet of 20 cigarettes a week. He originally started to smoke because of boredom. He would play cards. The others would be smoking. He usually had a cigarette. By 1968 he was still smoking only one packet a week.
The smoking increased after Mr Jackson went to South Vietnam on the HMAS Sydney. The cause of the increase was stress and anxiety. This stemmed from being there himself and from hearing stories from the troops on their way home to Australia.
In Vietnam he was an action stations gun crew member or drove landing craft taking troops to shore. As an action stations gunner he sat at his gun all day. Constant vigilance was required. Aircraft could come around at any time. They would be anchored in port for 12 to 24 hours.
At this point Mr Wallis tendered Exhibit R3, a report by historian John Tilbrook provided to DVA on 31 May 2000. Page 2 of Exhibit R3 records that the HMAS Sydney spent only five to six hours in Vung Tau Harbour on its Vietnam visits. It was conceded by Mr Wallis that the ship may have sat further outside the harbour for longer periods but it would not be at risk from the North Vietnam Air Force in that location.
He then had a shore based period at HMAS Cutable and was then assigned to the HMAS Jeparit. On shore his smoking continued as if he were still on the Sydney, although it may have been a little less.
When he joined the HMAS Jeparit the applicant's smoking increased because the wharf conditions in Vietnam were more dangerous than in earlier trips.
Mr Jackson said that after he left the navy he continued smoking because the stress did not cease.

THE APPLICANT'S SUBMISSIONS

Ms Sadleir made the following submissions on behalf of Mr Jackson.
First, the Applicant's smoking increased from 20 cigarettes a week to over 80 a day when he joined the HMAS Sydney late in 1968. This would satisfy factor 5(e) of SoP Instrument No 140 of 1996 ("SoP 140/96"). This requires that the Applicant must have smoked at least five cigarettes a day for at least three years before the clinical onset of IHD.
Second, Ms Sadleir submitted that there must be a causal link between Mr Jackson's smoking and his eligible service. She referred to the decision Repatriation Commission v Tuite (1993) 39 FCR 540 in which the full Federal Court reinforced that it is insufficient for the Act that a veteran merely develops a smoking habit while in the forces. The circumstances of the service in the forces must provide an operative cause in taking up smoking. Burchett and Einfeld JJ (at 544-5) say:
"…
The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted that it was not sufficient simply to find a temporal connection; what was required was 'something within the applicant's military service which has caused him to start smoke'. It accepted his evidence that he had not smoked before, 'and that it was the circumstances whilst he was in camp that caused him to start to smoke'. The Tribunal added: 'Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.'…
…"

Ms Sadleir suggested that the conditions on the HMAS Sydney were similar to those identified by the Federal Court in the Tuite case (supra) as satisfying the causal requirements. Ms Sadleir also mentioned that the case of Repatriation Commission v Hawkins (1993) 117 ALR 225 concerned a veteran who also served on the HMAS Sydney at the same time as Mr Jackson. The Federal Court in that case had found for the veteran. The conditions on the ship and in Vietnam are set out fully in that case and the court found in the veteran's favour. While each case must be decided on its own facts, it would be strange if the Tribunal took a different view of the facts from the court in Hawkins (supra). The Tribunal has to be satisfied on the balance of probabilities as to the facts establishing this causal link.

Third, once the causal link between eligible service and the smoking is established on balance there is then a reasonable hypothesis that the smoking caused the IHD.
Fourth, even if the Applicant's increase in smoking occurred at a rapid rate there is a reasonable hypothesis connecting the smoking and its increase to the clinical onset of IHD. It is not essential that the increase in smoking be as great as the applicant recollects. There was clearly a substantial increase.
Fifth, as regards assessment, the lowest rate payable, if IHD is an accepted condition, is 90 per cent of the general rate. However, 100 per cent can be justified if Dr Baz's ratings are applied.
THE RESPONDENT'S SUBMISSIONS
Mr Wallis for the Respondent argued as follows.
First, the Tribunal must find a causal link between the Applicant's operational service and the increase in his cigarette smoking if the Applicant is to succeed in this case. He cited Repatriation Commission v Hawkins (1993) 117 ALR 225 for the proposition that s 9(1)(b) of the Act requires that Mr Jackson's smoking habit "arose out of or was attributable to, any eligible war service rendered by the veteran".
Second, the problem perceived by the Respondent in this matter is the Applicant's history as regards his smoking. There is some difficulty resulting from Kevin Jackson's statement at T25 that Mr Jackson was a light smoker prior to service. The Tribunal might accept that the Applicant's accepted disability of PTSD is relevant to the causal link required. Alternatively it could accept that the stress the Applicant recalls experiencing in service is representative of the factors that might provide a causal link. However, this second alternative may be difficult to utilise in view of the history evidence in Exhibit R3.
Third, the Respondent has difficulties with the rapid increase in cigarette smoking. The Applicant said that up until November 1968 he was smoking only 20 cigarettes a week. Then it became 40 a day before very long. Mr Wallis professed himself incredulous. The Respondent's representative suggested to the Tribunal that the smoking habit would have increased naturally and that the Applicant's memory of events is impaired.
Fourth, as regards assessment of the applicable rate, the Respondent argued for continuation of the current rate of 80 per cent of the general rate.
FINDINGS
The Tribunal makes the following relevant findings of fact on the basis of the above evidence.
The Applicant joined the navy on 12 March 1966.
He may have been a very light smoker when he joined the navy but he then began to smoke regularly at the rate of about a packet of 20 cigarettes a week. These findings are based on evidence from the Applicant and from his sister and brother in T24 and T25.
The Applicant's cigarette smoking continued at about that rate until he joined the HMAS Sydney in November 1968 when the figure rose to at least 80 cigarettes a day after several trips to Vietnam. The Tribunal largely accepts the Applicant's evidence on this point. The Tribunal agrees with Mr Wallis that the figure of 80 cigarettes smoked a day, an increase occurring over only a few voyages to and from Vietnam, is not easily credible. However, the Tribunal accepts Ms Sadleir's submission that, even if this increase is overstated, or occurred over a longer period, the Tribunal should accept that there was a significant increase while the Applicant was on the Sydney.
The Tribunal accepts that there was the necessary causal connection under s 9 (1)(b) of the Act between the Applicant's eligible service and his taking up or increasing his smoking. The Tribunal accepts Mr Jackson's evidence that progressively the service conditions prompting the smoking were cheapness, availability, peer pressure, boredom and then anxiety in engaging in operational service. The Tribunal accepts Ms Sadleir's submissions that the Tuite case (supra) and the Hawkins case (supra) are relevant on this point. The Tribunal agrees that types of operational service conditions that prompted the veteran in his smoking in Tuite (supra) are present here. The Tribunal also agrees with Ms Sadleir that the Hawkins case (supra) is instructive in holding that the very conditions experienced by Mr Hawkins on the HMAS Sydney during the same period when Mr Jackson served on the Sydney were enough to justify a decision in favour of the veteran.
The Tribunal accepts that Mr Jackson suffers from IHD. There is ample medical evidence to that effect indicated earlier. Dr Ruba, the Applicant's treating doctor, in T8, was clear on this point and no other doctor has questioned it.
The Tribunal finds that the applicable SoP in this case is SoP 140/96. In accordance with the decision of the full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108 the SoP in force on the date of the making of the original decision is applicable. SoP 140/96 was in force on 7 February 1997. The factors that must be satisfied in the view of the Tribunal are in clauses 4 and 5.
Clause 4 requires that a factor identified as applicable in clause 5 must be related to any relevant service rendered by the person. "Relevant service" is defined in clause 7 to apply to "operational service". The Applicant rendered operational service. Additionally, the Tribunal has already found that there was the necessary causal connection between the Applicant's eligible service and his smoking. Clause 4 is therefore satisfied.
The factor in clause 5 of SoP 140/96 on which Mr Jackson relies is factor 5(e), that he "smok[ed] at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of [IHD] …".
The Tribunal finds that Mr Jackson satisfies factor 5(e) of SoP. The Tribunal finds that the latest date on which the clinical onset of Mr Jackson's IHD occurred was in 1994 at about the time he had his myocardial infarct. This seems borne out by Dr Ruba's evidence at T8, folio 36. In accordance with factor 5(e) the Tribunal is satisfied that Mr Jackson smoked at least five cigarettes a day between 27 May 1991 and 27 May 1994, the date of the clinical onset.
ASSESSMENT
Having made the above findings, the Tribunal has been asked to address the question of the appropriate rate of Disability Pension that should be paid to Mr Jackson.
The starting point is T26 where the Respondent assessed the rate at 80 per cent of general rate. On the basis of accepted conditions consisting of PTSD, bilateral tinnitus, BSHL, and non-melanotic malignant neoplasm of the skin of various sites the Respondent accorded the applicant an impairment single value rating of 45 points under the Guide to the Assessment of Rates of Veterans' Pensions, fifth edition ("GARP").
As IHD is to be accorded an impairment rating the Tribunal has considered the evidence on what rating might be appropriate. Dr Baz, in Exhibit A2, says that Mr Jackson's own doctor reports symptoms occurring at 3-4 METs (T9). He gave a history of angina occurring when he shovels, an activity at 5-6 METs level. He also has breathlessness and angina when walking up hill. Angina also occurs at rest when he is stressed.
She assessed him overall at 4-5 METs. GARP table 1.1 states this permits a person to perform moderate activity. It encompasses more strenuous daily activities with the exclusion of manual labour and vigorous exercise. It permits such acts as mopping floors, golf, light carpentry, scrubbing floors, ballroom dancing, beating carpets, tennis doubles, stocking shelves with light objects, polishing furniture, wallpapering, shopping, carrying groceries, gentle swimming, painting the outside of a house, hoeing and stacking firewood. In the Tribunal's view this assessment is fair. It is not giving the Applicant any unfair advantage. There is some evidence (T5), for example, that he has had to give up all sports yet this assessment would allow that he can play golf and tennis. As Dr Baz says, Table 1.2 in GARP would provide a rating 47 in 1996 in respect of his loss of cardiorespiratory function. 14 August 1996 is the date of effect of the decision in this case. As at 14 June 1998, another date of effect for a rate change because of acceptance of the skin cancer condition, it would have been 45. In November 2000 it would be 42.
The PTSD accepted condition attracted argument. It has been an accepted condition with effect from 14 August 1996. It has attracted GARP impairment ratings since 1996. In 1996 the Respondent assessed the rating as 30 points. In 1998 it was assessed by the Respondent as 35 points. Mr Wallis submitted at the hearing that the GARP rating for PTSD should be reduced to 0 points. This follows from Dr Lovell's report dated 7 October 1999 (Exhibit R1) in which he found that Mr Jackson does not suffer from PTSD because there has been no life threatening stressor. He diagnosed a generalised anxiety disorder. Mr Wallis submitted that the Tribunal should assess the accepted condition of PTSD as non-symptomatic.
The Tribunal rejects Mr Wallis's argument. There is considerable evidence that Mr Jackson suffers from PTSD according to Exhibit TD1. This includes Dr Nichols' psychiatric reports dated 15 January 1997 (T12) and 10 September 1998 (T33 and T34), the Respondent's decision dated 7 February 1997 (T14) accepting the existence of a stressor, Dr Ruba's report dated 2 December 1998 (T23) and the Respondent's decision dated 17 February 1999 (T26) continuing PTSD as an accepted condition attracting an impairment rating. There is also evidence that he suffers from anxiety. Dr Lovell agrees with that. The Tribunal considers that on the available evidence the better view is that he has continung PTSD.
It is necessary to review the assessments to see how they should be affected by the acceptance, from 14 August 1996, of IHD as an accepted condition. As stated above, the Tribunal is minded to accept Dr Baz's impairment rating for IHD. For the dates of effect in 1996 and 1998 there is also evidence of impairment ratings assessed by both Dr Baz and the Respondent.
It should also be noted that Dr Nichols assessed Mr Jackson under GARP for his PTSD on 10 September 1998 (T34) and rated him at 62 points for his PTSD alone. The Tribunal notes that the Respondent and Dr Baz have assessed Mr Jackson's PTSD in 1996 and 1998 as attracting the following ratings: 30, 45, 35 and 43 points. These ratings are reasonably comparable and reflect a more realistic application of GARP Table 4 than Dr Nichols' assessment. The Tribunal would accept these lower figures as more accurate but, for reasons given below, it is not necessary to make a final decision on this point.
The Tribunal will now proceed to consider what is the correct or preferable decision in respect of each of the impairment ratings for each of 1996 and 1998.

1996 IMPAIRMENT RATINGS - OPTIONS

Option 1 – Respondent's ratings for accepted conditions + Dr Baz's rating for IHD

This option yields the following results:
PTSD  30 points
BSHL  0 points
Bilateral tinnitus  0 points
IHD  47

The resulting combined impairment rating is 63 points.
[GARP at page 234 in fact dictates a combined impairment rating of 53 where a rating of 47 is combined with a rating of 30. This is incorrect from the context. For example, a combination of ratings of 47 and 29 results in a rating of 62. A combination of ratings of 46 and 30 results in a rating of 62.
GARP is a statutory instrument under s 29 of the Act. The Tribunal has used the golden rule of statutory interpretation to correct the mistake. The Tribunal refers to the decision of the Supreme Court of the Northern Territory in Lindner v Wright (1976) 14 ALR 105 as an instance of a court correcting a clear mistake in an Act.]

Option 2 – Dr Baz's ratings for accepted conditions + IHD

This option yields the following results:
PTSD  45 points
BSHL  9 points
Tinnitus  5 points
IHD  47 points

The resulting combined impairment rating is 75 points.

1998 IMPAIRMENT RATINGS - OPTIONS

Option 1 – Respondent's ratings for accepted conditions + Dr Baz's rating for IHD

This option yields the following results:
PTSD  35 points
BSHL  5 points
Bilateral tinnitus  8 points
Non-malignant neoplasm of skin of various sites          0 points
IHD  45 points

The resulting combined impairment rating is 69 points.

Option 2 – Dr Baz's ratings for accepted conditions + IHD

This option yields the following results:
PTSD  43 points
BSHL  9 points
Tinnitus  5 points
Non-malignant neoplasm of skin of various sites          0 points
IHD  45 points

The resulting combined impairment rating is 73 points.

1996 LIFESTYLE RATINGS - OPTIONS

Respondent's ratings

Mr Jackson's lifestyle rating was assessed as 2. It was rounded from the average of:
Personal relationships  3
Mobility  0
Recreational and community activities  3
Employment and domestic activities  3

Dr Baz's ratings

Mr Jackson's lifestyle rating was assessed as 5. It was rounded from the average of:
Personal relationships  5
Mobility  3
Recreational and community activities  4
Employment and domestic activities  5

1998 LIFESTYLE RATINGS - OPTIONS

Respondent's ratings

Mr Jackson's lifestyle rating was assessed as 3. No reasons were given.
Dr Baz's ratings

Mr Jackson's lifestyle rating was assessed as 5. Dr Baz retained her earlier assessment.
CONCLUSIONS ON ASSESSMENTS
It is not necessary to decide finally which of the assessments is to be preferred. This is because application of the above options, even on a worst case scenario for the Applicant, results in Mr Jackson qualifying for a Disability Pension at 100 per cent of the general rate at all times since 14 August 1996. The worst case scenario finds Mr Jackson assessed at 63 points in 1996 with a lifestyle rating of 2 points. On the conversion to a degree of incapacity at page 278 of GARP this produces a degree of 100 per cent. The position improves in 1998 where the impairment rating rises to at least 69 points.
CONCLUSION
The Tribunal has therefore concluded that IHD should have been included as an accepted condition since 14 August 1996 and that Mr Jackson's Disability Pension should have been paid at 100 per cent of the general rate since that date.
DECISION
The decision under review is set aside. In substitution therefor the Tribunal decides that the Applicant qualifies for Disability Pension at 100 per cent of the general rate with effect from 14 August 1996.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  28 June 2000
Date of Decision  14 November 2000
Representative for the Applicant              Ms E Sadleir
Representative for the Respondent        Mr R Wallis