John Tucker and Repatriation Commission
[2014] AATA 610
[2014] AATA 610
Division Veterans' Appeals Division File Number
2014/1715
Re
John Tucker
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 28 August 2014 Place Brisbane The Tribunal affirms the decision under review.
................................[Sgd]........................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Defence service with Australian Regular Army – Diagnosis of smoking related chronic bronchitis – Application of Statements of Principles – Not reasonably satisfied that smoking attributable to eligible war-service – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 14, 68, 69, 70, 119, 120, 120B
CASES
Arnold v Comcare (2010) AATA 660
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Keeley (2000) 60 ALD 401
Smith v Repatriation Commission [1999] FCA 1484
Starcevic v Repatriation Commission (1987) 18 FCR 221
Wall v Comcare (2004) AATA 229
SECONDARY MATERIALS
Statement of Principles concerning chronic bronchitis and emphysema No. 31 of 2004
Statement of Principles concerning chronic obstructive pulmonary disease No. 38 of 2014
REASONS FOR DECISION
Mr R G Kenny, Senior Member
28 August 2014
BACKGROUND
On 18 December 2012, John Tucker (“the applicant”) lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for “chronic bronchitis/COAD" which, he contended, was related to his service in the Australian Regular Army (“the army”).
On 15 January 2013, a delegate of the Repatriation Commission entered a diagnosis of chronic bronchitis and emphysema and rejected the applicant’s claim. On
26 February 2014, the Veterans’ Review Board (“the Board”) affirmed that decision.
SERVICE and ISSUES
The veteran rendered defence service under s 68 of the Act in the army from
14 March 1977 until 30 June 2004. He continues to serve, but any claim relating to later service is not subject to the provisions of the Act and is not relevant in this matter. Under s 70(5) of the Act, a condition will be defence-caused if it arose out of, or was attributable to, any of his defence service.
The standard of proof to be used in determining diagnostic matters and matters of causation in relation to defence service under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] Under s 120B of the Act, for matters of causation and defence service, consideration must be given to any relevant Statement of Principles (“SoP”) that has been published by the
Repatriation Medical Authority (“RMA”).
[1] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
The issue for determination is whether the claimed condition is defence-caused in accordance with s 70(5) of the Act. It will be seen below that the diagnostic terms of chronic airflow limitation and chronic bronchitis and emphysema now fall within the diagnostic term “chronic obstructive pulmonary disease”.
EVIDENCE
The applicant
In a statement dated 6 May 2013, the applicant wrote that, over the years he had been incorrectly diagnosed as suffering from asthma when he had actually had a smoking-related condition. He wrote that smoking was strongly encouraged by the army and that it was a strong part of army culture, with cigarettes and cigars being provided at the Commonwealth’s expense during army functions such as dining-in nights and happy hours. He referred to a statement he made in 1996[2] where he wrote that he had stopped smoking in 1985 and had smoked no more than 10 cigarettes per day. He wrote that he was advised by a doctor who told him that it was in his best interests to declare a reduced level of smoking for a certain period and to advise of the cessation of smoking. The applicant wrote that, at that time, he believed he was suffering from asthma and was concerned about his army career. He wrote that he ceased smoking in 2008 and wished to retract his earlier smoking reference.
[2] In his statement, he identified the year as 1995 but amended this to 1996 in his evidence.
In evidence, the applicant said that he enlisted in the army almost immediately on finishing school after year 10. He had two or three cigarettes when he was still in school under the influence of other boys his age who smoked. He said that he realised that smoking was frowned upon in the home and at school and that he wanted to try it to be a “bad boy”. He said that he also consumed some alcohol during those school years. Shortly after he commenced his basic training he took up smoking on a daily basis. He said, one reason for doing so was peer pressure in that most of the members of his platoon smoked and he “followed the others”. He also identified the following factors: boredom, to calm him down, to help him stay awake when on night duties, and because he missed his family. He said that the army favoured smoking and that this was noted during work breaks when men were encouraged to have a cigarette especially because, during those breaks, non-smokers were selected to carry out additional duties such as cleaning up. The applicant said that, at that time, he had not been aware of any health concerns associated with smoking or that cigarette packets carried a health warning.
The applicant said that, initially, he smoked about five to ten cigarettes per day and that this increased to a packet of 20 cigarettes per day until 1990 with additional cigarettes, to a total of about 30 cigarettes per day, on weekends when he would consume alcohol. He said that he ceased smoking when he was told that he suffered from asthma. This was in 1990 when he complained of bronchial problems. He then recommenced smoking in 1998 and attributed this to being separated from his wife at that time and living in different quarters.
The applicant said that he realised he had a breathing difficulty in 1990 when he was unable to supply a breath sample when directed by a police officer to do so on suspicion of driving while intoxicated. He was convicted of that offence, despite being legally represented, because he was unable to provide medical evidence in support of his breathing problem.
The applicant said that the first practitioner to confirm that he did not suffer from asthma was Thoracic and Sleep Disorders Specialist, Professor Roger Allen. Dr Allen diagnosed his problem as chronic bronchitis. The applicant agreed that he had not provided
Dr Allen with an accurate smoking history. This was that he smoked from age 14 to age 47 at 20 to 30 cigarettes per day except for the period from age 30 to 40 when he ceased.
In a smoking questionnaire completed on 2 July 1996, the applicant wrote that he began to smoke on a regular basis “the year [he] joined the army” at the level of “no more than 10” cigarettes per day. He wrote that he ceased for four months in 1982 and for eight months in 1984 before he stopped permanently in 1985. The applicant conceded that he had been dishonest in completing that questionnaire and that he did so on the basis of advice he received from the resident services doctor at the Oakey army base. This was
Dr J Newlands who advised him that he suffered from asthma, that this had the propensity to end his army career on health grounds and that he should be seen to be doing something to limit the impact of the condition on him. Accordingly, he underestimated his smoking levels and falsely gave 1985 as a date of ceasing his smoking. The applicant was referred to a report completed by Dr Newlands on
24 July 1996 where he wrote that the applicant was frankly diagnosed with asthma in 1990 and that he had ceased smoking “when frank trouble began.”
The applicant was referred to letters provided by his friends. He was unable to explain how some of them, who did not know him at the relevant time, were able to refer to his smoking habit. The applicant agreed that the army had been his life and that he would do anything to remain a serving member. This extended to providing false details about his smoking habit over the years but he made no comment to the suggestion that he would do the same to establish liability under the Act.
The applicant was referred to an Entry Medical History Questionnaire dated
24 February 1977. The question/answer item at question 14 reads:
Do you:
(a) drink alcohol
(b) smoke tobacco
(c) take any medicine or drugs
(a) no
(b) yes
(c) no
The applicant said that the affirmative response to (b) was a reference to the two or three cigarettes he had while he was school and was not an indication that he was a regular smoker when he completed the form. It was put to him that, if that were he case, he should also have responded affirmatively to the alcohol reference because he had also tried alcohol when he was at school. The applicant was unable to provide an explanation for his differing responses but agreed they revealed an inconsistency.
Mick Flew
Mr Flew completed a statement on 2 May 2013. He served with the applicant from
1997 to 2000 at Victoria Barracks, Paddington. Both were members of the sergeants’ mess at that time. He described the applicant as an inveterate smoker, rarely seen without a cigarette. He referred to the days of his basic training and wrote that, during breaks, the usual dismissal was “take a cigarette break, or go through the motions”.
Mark Quilligan
Mr Quilligan completed a statutory declaration on 12 April 2013. He wrote that he met the applicant in 2004 at Defence Force Recruiting in Melbourne. He described the applicant as a heavy smoker. He also wrote that he was aware that the applicant had made a false statement in which he advised that he had stopped smoking as he saw the habit as “career limiting”. Mr Quilligan also referred to the peer and other pressures in the early years of service life in relation to smoking. He was also aware that, as societal and organisational attitudes changed, smoking would reflect negatively on a person.
Debbie Bennett
Ms Bennett was married to the applicant from 1980 until 1991. She completed a statement on March 2013. She wrote that her recollection was that he smoked at least 20 cigarettes per day for that entire period.
Don Lafferty
Mr Lafferty completed a statement on 20 March 2013. He met the applicant in 1983 during their service. He described the applicant as a smoker with whom he smoked cigarettes on numerous occasions.
Service records
In addition to the smoking questionnaire noted above, entries in the applicant’s service records which refer to his smoking include the following:
·24 February 1977 – Do you smoke tobacco? Yes
·10 October 1978 – 20 cigs daily
·1990 – Stopped smoking early 1990
·4 May 1990 – Non-smoker. Stopped 3/52 ago, originally 30/day
·4 September 1991 – Acute bronchitis in 1990 … had smoked 30 per day for 15 years up until just before the bronchitis
·15 April 1993 – Stopped smoking early 89
·5 July 1996 – Frankly diagnosed asthma in November 1990 … ceased smoking when frank trouble began.
Medical Evidence
The applicant was seen by a physician, Professor Smithurst, on 29 August 1991.
Dr Smithurst reported the history of the applicant’s treatment for asthma but, after testing him, he concluded that the applicant was not a true asthmatic.
Thoracic physician Dr W Oliver, on 4 September 1991, recorded the applicant as having smoked for 15 years at the rate of 30 cigarettes per day until 1990. He diagnosed the applicant as having asthma as well as some permanent smoking induced damage.
In evidence was a report, dated 12 December 2010, from Professor Roger Allen.
Dr Allen wrote that the applicant had smoked from age 14 to age 47, at approximately 20 to 30 cigarettes per day, ceased at age 30 and resumed for seven years at age 40. Dr Allen diagnosed chronic bronchitis which, based on his army records, began in 1990. Dr Allen attributed this to cigarette smoking as well as intercurrent infections such as viral and atmospheric pollutants which occur in an urban environment. His opinion was that the applicant did not have asthma.
Other evidence
On 20 June 1996, the applicant lodged a claim under the Act for asthma. This was rejected by the Board on 11 July 1997. The Board’s reasons for its decision were in evidence and these included the evidence of the applicant in relation to his smoking. This was the smoking questionnaire he completed in 1996 in which he declared that he ceased smoking in 1985. In his evidence to the Board in 2014, the applicant declared that he ceased smoking in 1991.
STATEMENTS OF PRINCIPLES
The RMA published SoP No. 31 of 2004, concerning chronic bronchitis and emphysema (“SoP No. 31 of 2004”), which included the following factor and associated definition:
(a) smoking at least ten pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;
…
"pack-years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack-year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor made cigarettes equates to 7300 Page 6 of 6 of Instrument No. 22 of 2010 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination
On 24 April 2014, the RMA revoked that SoP and replaced it with SoP No. 38 of 2014, concerning chronic obstructive pulmonary disease (“SoP No. 38 of 2014”). This SoP amended the terms of the relevant diagnosis and sets out the conditions to which it extends in the following definition:
(b)For the purposes of this Statement of Principles, "chronic obstructive pulmonary disease" means 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. This definition comprises chronic bronchitis, emphysema and chronic airflow limitation
The new SoP also amended cl 6(a) to read:
(a)smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, 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 new SoP decreased the level of smoking required to establish causation, added a time-frame where smoking has ceased but left the definition of “pack-years of cigarettes, or the equivalent thereof in other tobacco products” unchanged. It extends to conditions formerly diagnosed as chronic airflow limitation and chronic bronchitis and emphysema. The applicant is entitled to have his claim considered under whichever SoP is the more beneficial to him.[3] It was submitted by Mr Ken Cullen that either of the SoPs may be considered as the applicant’s circumstances satisfy the terms contained in each of them.
[3] See Repatriation Commission v Gorton (2001) 65 ALD 609 and Repatriation Commission v Keeley (2000) 60 ALD 401.
SUBMISSIONS
For the applicant, Mr Ken Cullen submitted that the applicant had a smoking habit which was related to his defence service and that this resulted in the development of his chronic bronchitis which, accordingly, was attributable to his defence service in accordance with the terms of both SoP No. 31 of 2004 for chronic bronchitis and SoP No. 38 of 2014 for chronic obstructive pulmonary disease. Mr Cullen submitted that a beneficial interpretation of the Act should be adopted in accordance with s 119 of the Act, citing Starcevic v Repatriation Commission[4]. He also identified the following authorities as being of relevance to the applicant’s case: of Smith v Repatriation Commission[5], Wall v Comcare[6] and Arnold v Comcare.[7]
[4] (1987) 18 FCR 221.
[5] [1999] FCA 1484.
[6] (2004) AATA 229.
[7] (2010) AATA 660.
For the respondent, Mr Adrian Crowe submitted that there was evidence that the applicant was an established smoker at the time of his enlistment into the army, that a relationship between his smoking and service cannot be established and that, as a result, his lung condition is not defence-caused. He submitted that s 119 of the Act cannot allow inferences to be drawn where evidence does not exist.
CONSIDERATION
I have noted the submissions of Mr Cullen and the authorities to which he has referred. Of these, in particular, the case of Smith v Repatriation Commission is concerned with a veteran with operational service and, accordingly, turned on the issue of whether there was a reasonable hypothesis on the material before the Tribunal. Unlike the situation here where the applicant rendered defence service, the issue was whether there was material pointing to a relationship between the relevant smoking and service. The Court, in that case, determined that the Tribunal erred in holding, in effect, that the causative element of the hypothesis about the commencement of smoking was not raised because there was no direct evidence establishing it.[8] In this case, there is clear evidence that the applicant was a regular smoker prior to his enlistment.
[8] Supra at [9] and [18].
Mr Cullen submitted that the beneficial purpose of the Act should be considered because of the terms of s 119 of the Act which, in so far as potentially relevant, reads:
119 Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission:
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
I accept that, in Starcevic v Repatriation Commission, it was stated that the Act should “be given a reasonably liberal interpretation”.[9] However, reference was not made in that case to s 119 of the Act which, as submitted by Mr Crowe, does not allow inferences to be drawn where evidence does not exist but, more importantly in this case, does not allow evidence which does exist to be ignored.
[9] Supra at [18].
There are inconsistencies in the documentation which relates to the applicant’s smoking. He admitted to “two or three” cigarettes while in school but asserted that his habit of smoking began after he enlisted in the army. His Entry Medical records him as a smoker in February 1977 which was in the month prior to his enlistment. I do not accept that this was a reference to the two or three cigarettes he had in school. His schoolboy experiences also included alcohol but this was denied by him in that Entry Medical. The applicant conceded that this amounted to an inconsistency. Dr Oliver took a record of the applicant smoking for 15 years before 1990 which marks the commencement of smoking more than a year before enlistment.
The applicant has provided a range of differing versions of his smoking history. He relied upon the terms of his 1996 smoking questionnaire when he gave evidence to the Board in that year. This gave a cessation of smoking in 1985. He gave a different cessation date of 1991 to the Board in 2014. He admitted to the Tribunal that his smoking questionnaire had been completed falsely as a deliberate strategy to minimise the appearance of his smoking habit so that he had improved prospects of remaining in the army. On his own admission, he has been untruthful and I am satisfied that he has provided whatever account of his smoking has best suited his circumstances from time to time. The inconsistencies in his evidence about the timing of the commencement and of the cessation of his smoking habit are such that I am satisfied that he is an unreliable witness whose evidence I do not accept. That extends to his denial that, in 1977, he was unaware that smoking was regarded as a health hazard.
He referred to supporting statements from Mr Flew, Mr Quilligan, Mr Lafferty and Ms Bennett. Mr Flew was only able to comment on the applicants smoking from 1997.
Mr Quilligan was able to do so from 2004 and the applicant was unable to explain how Mr Quilligan was aware of the applicants’ false declaration in 1996 about his smoking. Mr Lafferty wrote only of the applicant’s smoking in late 1983. Ms Bennett refers to the applicant smoking until 1991 which does not accord with the applicant’s evidence. I am satisfied that Mr Flew, Mr Quilligan, Mr Lafferty and Ms Bennett provide no guidance on the timing of the commencement or cessation of the applicant’s smoking habit.
I have noted the various reasons given by the applicant for his becoming a smoker during his army service.[10] These are commonly advanced, appropriately, to associate smoking with army service. However, I am unable to accept that those reasons apply in the applicant’s case. More particularly, I am unable to reach a level of reasonable satisfaction that the applicant commenced smoking after the commencement of his army service or that his smoking was attributable to his service.
[10] See paragraph 6 (above).
Dr Oliver identified permanent smoking induced damage to the applicant’s lungs.
Dr Allen concluded that the applicant suffers from chronic bronchitis and that this is related to his smoking. SoP No. 31 of 2004 deals with chronic bronchitis.
SoP No. 38 of 2014 also deals chronic bronchitis as encompassed within the more general description of chronic obstructive pulmonary disease. Each of the SoPs includes a smoking factor. However, each of those SoPs also requires that the smoking factor be “related to service”.[11] I am not reasonably satisfied that the applicant’s smoking is related to his defence service and accordingly, I am reasonably satisfied that, as provided for in
s 120B(3) of the Act, neither SoP upholds the contention that the applicant’s claimed lung condition is, on the balance of probabilities, connected with his defence service. It also follows that the claimed condition is not defence-caused under s 70(5) of the Act.
[11] See cl 4 of SoP No. 31of 2004, and cl 5 of SoP No. 38 of 2014.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ................................[Sgd]........................................
Associate
Dated 28 August 2014
Date of hearing 25 August 2014 Advocate for the Applicant Mr Ken Cullen, Samford RSL Solicitors for the Respondent Mr Adrian Crowe, Department of Veterans' Affairs
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