John Umstad and Repatriation Commission
[2013] AATA 642
•11 September 2013
[2013] AATA 642
Division VETERANS' APPEALS DIVISION File Number
2013/0896
Re
John Umstad
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Date 11 September 2013 Place Brisbane The decision of the respondent is set aside and this matter is remitted to the respondent with the direction that the applicant is entitled to a pension for the defence-caused condition of atherosclerotic peripheral vascular disease with effect as and from 7 March 2012.
........................................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – Pensions and benefits – Defence Service – Atherosclerotic peripheral vascular disease – Satisfaction of Statement of Principles – Decision set aside
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 68, 70, 120(4) and (6), 120B, 196B
Statement of Principles concerning atherosclerotic peripheral vascular disease No. 24 of 2012
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
11 September 2013
INTRODUCTION
On 7 June 2012, the applicant lodged a formal claim with the respondent. On
4 September 2012, a delegate of the respondent made a decision that the atherosclerotic peripheral vascular disease condition of the applicant was not defence-caused.
On 21 February 2013, that decision was affirmed by the Veterans’ Review Board. The applicant has sought a review of this decision.
SERVICE
The applicant served in the Royal Australian Navy for a period of 10 years from
6 January 1970 until 7 January 1980. The Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that his service for the period 7 December 1972 until the date of his discharge was “defence service” under s 68 of the Act. Any incapacity from a defence-caused injury or disease is compensable under s 70 of that Act.
LEGISLATION
Subsection 120(4) of the Act provides that in determining whether an injury or disease is defence-caused the respondent is to decide the matter to its “reasonable satisfaction”.
In Repatriation Commission v Smith the Federal Court of Australia held that the expression “reasonable satisfaction” refers to the civil standard of proof which is proof on the balance of probabilities.[1] Subsection 120(6) of the Act provides that the applicant does not bear any onus of proof.
[1] (1987) 15 FLR 327 at 335.
Subsection 120B(3) of the Act 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); …
In determining this application I have to apply the Statement of Principles concerning atherosclerotic peripheral vascular disease No. 24 of 2012 (“SoP”). There is no issue that the applicant has the condition of atherosclerotic peripheral vascular disease. A report dated 8 April 2013,[2] of Dr Steven Gett, a vascular and endovascular surgeon, confirms that the veteran has peripheral vascular disease. Dr Gett states that the applicant underwent a procedure to insert a right external iliac stent on 29 August 2011. Dr Gett opined that his peripheral vascular arterial disease is a condition which has been aggravated by cigarette smoking.
[2] Exhibit B.
CONSIDERATION
In my opinion the evidence establishes to my reasonable satisfaction that the atherosclerotic peripheral vascular disease condition of the applicant is a defence-caused condition. I give my reasons.
In 1970 the applicant joined the Royal Australian Navy as a 15 year old boy when he started smoking cigarettes at the rate of two per day which increased to five per day after the midyear break when he received a pay increase. The applicant gave evidence that despite being a youth cigarettes were freely available to him at the canteen on the naval base. He bought cigarettes as a pacifier to calm his nerves. He explained that he also bought cigarettes as “self-protection” because older recruits and other ratings would demand that he give them cigarettes otherwise he would be beaten. He gave evidence that he had been beaten when he had failed to provide cigarettes. He stated that there was then a culture of recruits smoking as a group. In 1971 the applicant was smoking five cigarettes per day, increasing to six cigarettes per day when he developed ear problems which prevented him serving in a pressurised engine room environment. By 1972 the applicant was smoking eight cigarettes per day. That time was a stressful time for the applicant, who believed that he could be discharged because of his ear condition. I accept his evidence that his cigarette smoking increased because of the culture of the Navy, his anxiety and his working in smoke-filled rooms.
The applicant considered that in 1973 he was smoking a packet of cigarettes per day.
This meant that he was smoking 140 cigarettes a week. This was much higher than in 1972. He stated that at this time his consumption of cigarettes increased because of a combination of culture and anxiety. He was also drinking and he had marital problems caused by his being required to undertake duties away from home. The applicant stated that the mess deck would then be full of other sailors who smoked. He also mentioned that there were ashtrays in the bunks of the ship which was certainly an encouragement to smoke. The consumption of cigarettes continued to increase to 175 cigarettes per week. The smoking questionnaire that the applicant completed revealed that by 1977 he had increased his consumption of cigarettes to 40 cigarettes per day.[3]
I consider that his estimate of his consumption in 1977 is as accurate as it can be, as it is confirmed by a medical report of September 1997 which records that the applicant was then smoking one to two packets per day.[4] He then had chest pains and was advised to cease smoking. I infer that his estimate of consumption at other times is also accurate.
[3] Exhibit A, T-Document 4, p. 34.
[4] Exhibit E.
I am satisfied that the applicant developed a smoking habit after he joined the Royal Australian Navy. There was common ground that I have to consider whether his habit developed before or after 7 December 1972 when the applicant’s “defence service” is taken to have commenced. I accept that the smoking questionnaire that the applicant completed is an honest estimate of the smoking consumption of the applicant. The fact that his estimate of consumption in 1977 is corroborated by a contemporaneous medical record fortifies me in my conclusion that his entries on the questionnaire are accurate.
In his smoking questionnaire the applicant stated that his consumption greatly increased from 1973, which makes it more probable then not that his smoking consumption then became a habit. I therefore find that the habit of the applicant occurred after
7 December 1972. He certainly had a habit by 1978 when he was unsuccessful in giving up smoking on his first attempt.
I accept the submission of the applicant that he smoked a total of 38,948 cigarettes during his “defence service”. I rely upon the evidence of the applicant to find that this is a fair estimate of his consumption of cigarettes. This consumption meets the template in factor 6(a) of the SoP, which requires that there be the consumption of ten pack-years before the clinical onset of atherosclerotic peripheral vascular disease, and where smoking has ceased, the clinical onset of atherosclerotic peripheral vascular disease has occurred within 10 years of cessation. The applicant ceased smoking in 2009 and was diagnosed with the condition in 2011. A pack-year is defined in clause 9 of the SoP as:
a calculation of consumption where one pack-year of cigarettes equals 20 tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes.
The applicant smoked greatly in excess of this number of cigarettes.
I also find, in accordance with clause 5 of the SoP, that the applicant’s satisfaction of factor 6(a) is related to his “relevant service”. The term “relevant service” is defined in clause 9 of the SoP to mean “defence service”. I accept the evidence of the applicant that he commenced smoking before the commencement of his “defence service”. Indeed he was encouraged to smoke by the fact that cigarettes were available to minors at the naval canteen. It was however, only after the commencement of his “defence service” that his smoking had escalated to levels which indicated that he was then addicted to smoking. I accept the evidence of the applicant that after he commenced his “defence service” he was further encouraged to smoke by the culture of the Navy.
During the hearing I remarked that the medical records show that the applicant had hypertension at the time of his discharge and this raises the question whether this condition should be an accepted condition. The applicant certainly did not have hypertension at the time of his entry medical.[5] The applicant continued to have hypertension when Dr Seedat made his report in 2012.[6] That the applicant has hypertension raises the issue of whether there is the satisfaction of factor 6(c) of the SoP, which requires a person have “…hypertension before the clinical onset of atherosclerotic peripheral vascular disease” and factor 6(k) of that SoP which requires a person have “…hypertension before the clinical worsening of atherosclerotic peripheral vascular disease”. I, however, do not have to resolve this issue on this occasion having regard to my earlier finding that there is the satisfaction of factor 6(a) of the SoP.
[5] Exhibit A, T-Document 4, p. 10.
[6] Exhibit A, T-Document 4, pp. 25-26.
DECISION
The decision of the respondent is set aside and this matter is remitted to the respondent with the direction that the applicant is entitled to a pension for the defence-caused condition of atherosclerotic peripheral vascular disease with effect as and from 7 March 2012.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member ........................................................................
Associate
Dated 11 September 2013
Date of hearing 23 August 2013 Advocate for the Applicant Ms Helena Smith Advocate for the Respondent Mr Jeff Kelly
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