Johnston and Repatriation Commission - [2002] AATA 498

DECISION AND REASONS FOR DECISION [2002] AATA 498

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/791

VETERANS' APPEALS DIVISION       )
           Re      ROBERT JOHNSTON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr A. Argent, Member

Date21 June 2002
PlaceMelbourne

Decision      The decision under review in so far as it concerns chronic bronchitis and emphysema is set aside and in substitution IT IS DECIDED that this illness or injury is war-caused. The application is remitted to the respondent for assessment of pension in accordance with these findings. The remaining part of the decision under review is affirmed.
  .......... Sgd J Handley.........................
  Senior Member
CATCHWORDS
Veterans Entitlements – Chronic Bronchitis and Emphysema – whether applicant smoked 10 pack years of cigarettes – whether smoking related to service – decision under review set aside
Veterans' Entitlement Act 1986 – s.120(1)
Statement of Principle Instrument No. 73 of 1997
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

21 June 2002 Mr J. Handley, Senior Member Mr A. Argent, Member

The applicant has applied to review a decision of the Veterans' Review Board (VRB) made on 13 June 2001 which decided to affirm a decision previously made by the respondent on 9 November 2000. The decision then made was to refuse the applicant's claim for fractures of both legs and chronic bronchitis and emphysema.
The hearing before this Tribunal proceeded on 3 May. Ms Bornstein of counsel appeared on behalf of the applicant and Mr Purcell appeared on behalf of the respondent. The applicant confined his claim only to the illness or injury of chronic bronchitis and emphysema. Dr Hart, a consultant respiratory physician, made a diagnosis of chronic mucopuralent bronchitis and emphysema in a report to the applicant's solicitors on 9 February 2001. The respondent conceded this condition. It was also agreed between the parties that the clinical onset of the condition was 1991.
The relevant Statement of Principle is Instrument No. 73 of 1997 and the applicant relied on factor 5(a)(ii) namely:
"smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation;…".
"Pack year" is defined at paragraph 7 of the Instrument as:
"7,300 cigarettes, or 1,460 cigars, or 7.3kg of pipe tobacco;"
Relevantly the applicant smoked cigarettes. The quantity of cigarettes referred to in the above definition converts to an average of 20 cigarettes per day.
A number of documents were received into evidence and will be referred to in this decision.
Robert Brian Johnston
Mr Johnston is presently 73 years of age, born on 7 May 1929. He was a member of the Royal Australian Air Force between 5 June 1950 and 4 June 1967 and between 30 September 1968 until 12 April 1979. His relevant operational service occurred in Malaya between 4 September 1955 and 1 August 1958. At that time, Mr Johnston was a member of the No. 2 Airfield Construction Squadron. Principally, his job was to drive a truck transporting rock from a quarry where it was eventually crushed and used in the construction of an airstrip at the Butterworth Air Base. Mr Johnston associated his smoking habit with stress in service.
The applicant said that he travelled in a convoy of trucks and made between 2 and 4 trips per day from the quarry to the Air Base. He said he travelled through areas that were "black" (a term given to areas associated with the risk or likelihood of enemy presence). He said the convoy of trucks did not have forward or rear guards, however he was armed with a rifle. The applicant said that on these occasions he felt vulnerable.
There were 3 occasions, also, where Mr Johnston described being fired upon whilst at the quarry. He recalled that he was under the face of the quarry waiting for his truck to be loaded when he and others experienced enemy fire from above the quarry. He said it "came out of the jungle". He said that he and others had to "duck for cover" by running and obtaining cover under their trucks.
The applicant commenced smoking cigarettes after enlistment and prior to travelling to Butterworth, however his habit increased during his overseas service. Mr Johnston recalled that most of his colleagues smoked cigarettes. He associated the increase consumption of cigarettes with boredom, stress, peer pressure, the rations of cigarettes, the availability of cigarettes and a sense of having to smoke all issued cigarettes (as opposed to saving them) because the humid weather caused the tobacco to become mouldy. (Mr Johnston said that tobacco and ready made cigarettes were issued fortnightly being 3 tins each of 50 cigarettes and 2 ounces of tobacco with cigarette papers and matches. He said the English provided the tobacco and cigarette rations.) The applicant said that upon arrival in Butterworth, he was smoking an average of one pack per day. When further questioned on this, he said between 25 and sometimes 30 per day. Upon his return to Australia in 1958, he said that he was smoking in the vicinity of 40 cigarettes per day. Thereafter he said he maintained a habit of 40 cigarettes per day until 1991, when he ceased smoking. Mr Johnston said that he worked in construction crews in Australia where he continued to be engaged in truck driving.
The applicant said that he developed an addiction to cigarettes and despite attendances on doctors from time to time for sore throats and bronchitis he was not "worried enough" to give up. There were occasions where he attempted to reduce the consumption of cigarettes and other occasions where he gave it away. He eventually resumed and was smoking at least 40 cigarettes per day when he ceased in 1991. At that stage, he said that his health was deteriorating and he did not "like" smoking.
There were a number of instances found within the documents lodged where it appears that the applicant had given inconsistent histories to doctors and others, as to his smoking habit and quantities smoked. Ms Bornstein took the applicant to those instances.
At page 14 of the T documents, there appears to be the record of a medical examination of 31 August 1976. The examining medical officer has recorded that the applicant "smokes 20/day". Mr Johnston acknowledged that he could have told the doctor then that he was smoking 20 cigarettes per day. He believed that if he had, the doctor would have told him to give up cigarettes, that he did not want to give up smoking and he (the applicant) thought at that time his health was "alright".
At page 12 is a note of a medical examination convened on 2 June 1977. The examining medical officer in part records "gave up smoking but symptoms persist". The applicant said that he could not recall that examination, but did recall that there was an occasion when he did give up smoking after he was stationed at Point Cook and before he was transferred to Amberley . He acknowledged that it was possible that he had told the doctor that he had given up smoking, but did not recall this. He said he would have done so - if he had not then given up - because he was aware he would have been told by the doctor to cease smoking, as other doctors told him in the past.
At page 11 are notes of another medical examination convened on 8 August 1977, where the medical officer has recorded, in part "heavy smoker til recently". Mr Johnston said he could not recall this examination, but said that it may have been at a time when he was either reducing his consumption of cigarettes or had given up. He recalled at about this time he was having treatment for sore throats.
At page 8 is a medical examination, apparently convened in anticipation of the applicant being discharged from service. It is an examination of 16 January 1979 where the examining officer has recorded "smokes 6/day". The applicant said he could not recall the examination, but acknowledged that he may have told the doctor he was smoking 6 cigarettes per day. Mr Johnston said that "doctors were always at me to stop". He said that he may have given this history to indicate that he was intending to give up smoking.
At pages 54 to 67 of the T documents are the forms completed in anticipation of a claim being made upon the respondent. It was this claim form that has given rise eventually to these proceedings. Mr Johnston said that he could not remember the form and could not remember it being completed. He said that Mr John Duncan, a welfare officer at the Mulwala RSL, would have been completed it. Mr Johnston recalled that he attended the RSL to enquire whether he would qualify for any form of pension. The applicant agreed that his signature appears at pages 64 and 67, but he not recall signing the papers, nor could he recall reading them on 6 September 2000 (which is the date which appears on the forms). Mr Johnston recalled that Mr Duncan asked him a number of questions and it was Mr Duncan who was writing his answers.
On page 67 a question appears, namely, "Did the amount smoked per day ever change since the veteran first started smoking on a regular basis?". A "yes" and "no" "box" appears and the "no" box is ticked. Mr Johnston said that he could recall Mr Duncan asking him something about whether had he changed his smoking habit, but he could not explain why the "no" box was ticked. Mr Johnston remained adamant that he continued to smoke 40 cigarettes per day, but with minor variations, until he eventually ceased smoking in 1991. Mr Johnston said that his evidence at the Tribunal and the contents of his statement of 26 June 2001 (Exhibit B) were the truth.
In cross-examination, Mr Johnston said that the quarry from where he and others carted rock was approximately 60 to 70 feet deep and he recalled being fired upon in the afternoon of late 1955 or early 1956. He said he was fired upon on 3 occasions. He recalled that "bullets were flying" and he and others ran and crawled under trucks for cover. He said there was no security at the quarry until after the firing, when Gurka's and 3 RAR members commenced patrols.
He said there was approximately a one week interval between each of the 3 episodes of being fired upon. Also, the bullets were landing approximately 50 feet from where he and others were positioned. Mr Johnston was not aware whether the incidents were investigated and he did not make inquiries. It did not occur to him to make reports because he assumed that officers would have done so. He was sure that it was enemy fire and had assumed that it was not from Australian or British troops. Mr Johnston was made aware of a report completed at the request of the respondent by Writeway Research Services, who recorded that the firing of bullets into the quarry was unable to be substantiated. Mr Johnston was adamant that bullets were fired and as far as he was concerned it was "the enemy".
Mr Johnston said that he joined the RAAF in 1953 when he was aged 21 years. Previously, he had been "humping his bluey" having left Melbourne and travelled to Queensland. He worked in timber mills, as a painter and in hospitals. Principally, he worked in unskilled labouring type jobs. He said he did not smoke or drink prior to joining the Air Force, despite being in the presence of many other persons who did smoke. He recalled he commenced smoking as a recruit because he was offered cigarettes and thereafter he acquired a habit. He recalled that in his first overseas posting to New Guinea cigarettes were as readily available as they were in Australia.
The applicant said that he commenced consuming greater quantities of cigarettes from September 1955, after he commenced at Butterworth. He said that prior to work from the quarries, he and others had been sitting around at Butterworth with little to do. Cigarettes were readily available, the unescorted travel into black areas and being fired upon reinforced his smoking habit. Mr Johnston volunteered that he had plenty of opportunity to increase his smoking habit in New Guinea (prior to travelling to Butterworth), but he did not.
Mr Purcell took Mr Johnson to page 66 of his claim form, where in section one it is recorded that he first started to smoke cigarettes on a regular basis on 6 June 1950. This date is one day after the applicant enlisted. Later in this section the applicant is asked how many cigarettes per day did he then regular by smoke. The answer of "25" is given. Another question is asked, namely, "Why did the veteran start to smoke cigarettes on a regular basis" and the answer given was-
"After joining the RAAF I became a driver because of the distances and only able to travel at 25 MPH I found smoking passed the day away".
The applicant said that stress and anxiety associated with service was not then recorded because he "was not asked".
In relation to question 6 (referred to earlier), the applicant said that he did not know why the "no" box was ticked. He said that he could not recall giving that answer to Mr Duncan and he agreed that the answer given was not the truth. Mr Johnston said that his smoking habit did change since he first started smoking on a regular basis. When he was pressed on this answer and as to the question asked on page 67, Mr Johnston said that he did not understand what the question was "asking him".
Section 2 of page 67 asks for details in the change of smoking habit if applicable. It is not completed. Mr Johnston could not explain why it was not completed, but said that he had not told Mr Duncan that he had not changed his pattern of cigarette consumption.
Mr Johnston agreed that he had been in the RAAF for approximately 30 years and had filled in a number of forms during service. He disagreed that he had any paperwork to complete as a driver, because the "NCO's" did all the paperwork. Nonetheless, he agreed that he filled in leave forms from time to time and would have read the forms and been careful in his answers. He said "sometimes I was careful", but did not know that he could be charged with an offence if wrong information was provided.
Mr Johnston could not recall reading the declaration, at the bottom of page 67 of the T documents, which records-
"You are reminded that;
the declaration you signed on the claim form also covers the information you supply on this form; and
there are penalties for knowingly making false and misleading statements."
Page 64 of the claim form also records a declaration signed by Mr Johnston on 6 September 2000 (being the same date as the previous form), where he declared "The details I have given in this form are complete and correct". Mr Johnston said that he was of the belief that the information he gave to Mr Duncan, who filled in the form, was the truth. He was unable to say why the "no" box was ticked at question 6, "unless he has filled in the box incorrectly".
Mr Purcell took Mr Johnston to a number of forms where the history of smoking was recorded. At page 15A of the T documents in a medical examination dated 6 June 1964, the applicant is recorded by a medical officer as "smoked 20/day for years". Mr Johnston said that he was then smoking 40 cigarettes per day, but he was "not always truthful" with doctors, because "they were wanting me to give up smoking". He had no recollection of this medical examination.
With respect to the medical examination of 31 August 1976 for which a recording is found at page 14, the applicant agreed that a history of "smokes 20/day" is recorded and it is incorrect. He said he was then smoking more than 20 cigarettes per day and would have given this quantity to Dr Neath, (Medical Officer) because "doctors told me to stop". He could not say, however, that Dr Neath had told him then or on any prior occasion to cease smoking.
With respect to the entry on 2 June 1977, found at page 12, the applicant agreed that he could have ceased smoking at that date because he "gave it away" on 3 or 4 occasions for 1 or 2 weeks at a time. With respect to the entry on 8 August 1977, at page 11, where the applicant is recorded as being "heavy smoker 'till recently", Mr Johnston said that that entry was the truth. Mr Johnston was pressed on this issue and asked to explain how it was at June 1977 he "gave up smoking", but at August 1977 he was a "heavy smoker til recently". Mr Johnston said that he probably was still smoking at August 1977. He said that the entry at page 8 which records him as smoking "6/day" was not the truth.
Mr Johnston was then taken to some of the medical records supplied by the respondent, which had been completed by the applicant's doctors whilst he was a civilian. At page 13 of a bundle of medical documents (Exhibit 3), there was a note from Dr Ungar who treated the applicant in the early 1990's before he moved to Tocumwal. The note is not dated but by reference to information contained on it, it is believed to have been completed sometime after 1993. There is a note of the applicant being "non smoker - gave up in 1979" and "being a non drinker". The applicant said these entries were incorrect because he did not give up smoking in 1979 and he was not a non-drinker at the time when this form was completed. Mr Johnston said that other parts of the form were incorrect because the doctor has recorded him having sold his home in November 1993, when in fact he sold his house in 1992.
At page 23 of the same exhibit is an entry against the date 27 April 1991. The applicant apparently presented for left chest pain associated with pleurisy and the entry of "smoker 1 pkt/d age 15/52" appears. By reference to the applicant having been born in 1929, the applicant would have been 15 years in 1944. The applicant said this entry was wrong because he did not commence smoking until he enlisted in 1950. He denied therefore that he had been smoking one packet of cigarettes per day from the age of 15. Additionally, he denied having ceased smoking at the age of 52 which would have been in 1981. When asked whether he could offer any explanation why this history was recorded, Mr Johnston said "I tell doctors lots of things".
The applicant was then shown page 2 of exhibit 3, where on 17 November 1994, Dr Rao who was then treating the applicant has recorded "gave up beer/cigarettes 13 years ago". Mr Johnston agreed that "13 years ago" would have been in 1981. He said that he did not give up cigarettes in 1981 and the entry was incorrect. He was adamant that he ceased smoking in 1991.
The applicant noted that he had told Dr Macdougall (in a form completed on 28 September 2000) that he had ceased smoking in 1991 (page 69, T documents) and said that other dates which purported to record when he ceased smoking existed only because he wanted doctors to believe that he had "given up".
Mr Johnston was then taken to a number of pages in the transcript of the proceedings before the VRB. Mr Johnston was not present at the VRB and gave his evidence then by telephone. An RSL advocate represented him. Mr Johnston was asked a number of questions concerning his claim form (refer earlier) where he was asked to explain the answers given to questions at pages 66 and 67 of the T documents. The applicant said that he did not understand what was asked of him at question 6 (page 67). Similar questions were asked of Mr Johnston at the VRB concerning, what appeared to be, inconsistencies in the histories given to doctors about his smoking habit. Mr Johnston said in evidence before this Tribunal that he did not "want to be told to give up" and "I didn't want them to know how much I was smoking". He acknowledged that he did not give this explanation to the VRB.

In re-examination, Mr Johnston said that at the time he gave his evidence to the VRB, he did not have the claim forms in front of him from which he was being asked questions. He said then that he was confused and was not asked by any members of the VRB why he had been giving different histories to doctors from time to time.
The applicant said that he was educated to grade 7 only and had done little reading or writing since leaving school.
Mr Johnston said when he was fired upon at the quarry in Malaya, he was frightened and he recalled smoking when he was frightened because it "eased my nerves a little bit".
In answer to some questions from us, Mr Johnston said that he had had "trouble" with the VRB questions of him because he has "trouble with questions I don't understand". When we asked him why he would not ask for clarification or for the question to be repeated, Mr Johnston said, "because I don't like to feel ignorant".
Counsel for the parties then sought leave to ask questions arising out of the questions that we had asked of Mr Johnston. Mr Purcell took Mr Johnston to his statement received into evidence at Exhibit B. The applicant agreed that the statement contained information that he voluntarily supplied to his solicitors. He said that his solicitor had not asked him questions and "I just told. My words are in it. I do understand what is written there". Mr Johnston said, in answer to a question from Ms Bornstein, that he was not asked by Mr Duncan to read any of the questions or answers in the claim form when it was completed. He agreed he signed the form, but did not read it.
Conclusion and Reasons for Decision
The focus of the respondent's attack upon the applicant was as to his credit. It was submitted that the respondent and the VRB had no alternative on the material that it considered to find the condition of chronic bronchitis and emphysema was not war-caused. This may be explained by the extent of scrutiny of the applicant's claim before us and the level of intimacy we were permitted of the applicant and his claim. We also had the advantage of advocacy and analysis at a level which was not previously available or permitted by the two earlier stages of review. For reasons which hopefully will become apparent, we are satisfied that the applicant is a witness of truth and the material does point to a hypothesis which is reasonable and consistent.
Without any disrespect to the applicant, he is a person of limited education, who told us that he preferred not ask for clarification of questions asked of him, because he did not wish to be seen as or feel like he was ignorant.
With respect to the differing histories given to doctors, the applicant admitted that on occasions he was not truthful and gave explanations of smoking, which would avoid his doctors recommending to him that he cease. The applicant admitted that he was addicted to cigarettes and did not wish to be told that he should cease. An explanation of this type is not uncommon in this jurisdiction. We have had the experience of many applications where veterans have under estimated or denied a smoking habit. The reasons are often given are because of the attitudes perceived to be held by members of the community at the present time, the attitude (and sometimes admonishment) of medical practitioners, and a denial (particularly with historical documents) of the adverse affects of smoking.
The applicant did tell us that from time to time he attempted to cease smoking, but found the addiction overwhelming and resumed his habit. He also told us that he commenced smoking after he enlisted and maintained that level at either one pack, or a pack and half, or up to 30 per day until he commenced service in Butterworth. From that time, he told us that he increased his cigarette consumption and maintained that increased level until he ceased in 1991.
There were many variations in the history that the applicant gave us. The following summary of the various accounts given to doctors and other persons over the years would indicate that there is no consistent history as to the applicant's cigarette consumption.
Date      History Page No. in T-docs
4 June 1964       Smoked 20/day for years   15A
31 August 1976    Smokes 20/day    14
2 June 1977       Gave up smoking but symptoms persist      12
8 August 1977     Heavy smoker 'til recently 11
16 January 1979 Smokes 6/day    8
27 April 1991     Smoked 1 pkt/d age 15-52 23
1993(?) Non-smoker - gave up 1979          13
17 November 1994         Gave up .. cigarettes 13 years ago 2
6 September 2000          Commenced 6/6/50-25/day           66
6 September 2000          Ceased 1991     67
28 September 2000        Smoker - ceased 1991     69
16 March 2001     …. Commenced smoking in 1951 while in Air Force     53

With respect to the connection between service and the increase in consumption, there were many explanations the applicant gave. The explanations are also consistent with many other applications we have heard from veterans in this jurisdiction. The explanations the applicant offered were peer pressure, boredom, rationing of cigarettes and smoking to pass the time. Additionally, the applicant said he felt compelled to smoke the cigarettes as issued to him, as the failure to do so would cause mould and mildew. The applicant also told us that he increased his cigarette consumption because of fright and nervousness associated with his service in Butterworth (as documented earlier in this decision).
In order to determine whether a reasonable hypothesis has been raised connecting the applicant's condition of chronic bronchitis and emphysema and his service, the four stages decided by Repatriation Commission v Deledio (1998) 49 ALD 193 (at 206) ("Deledio") must be satisfied.
In so far as the first stage is concerned, there is material that points to a hypothesis connecting smoking with service. At this stage of the analysis, no fact finding is required.
The second stage of Deledio is obviously satisfied. There is an applicable Statement of Principle which has been referred to earlier in these reasons.
In so far as the third stage is concerned, the hypothesis will be reasonable only if it "fits" or is consistent with the "template" as found within the Statement of Principles.
For the hypothesis to be raised it must contain at least one of the factors determined by the Repatriation Medical Authority and as published in the applicable Statement of Principles. In the present case, it was advanced on behalf of the applicant that he smoked at least 10 pack years of cigarettes or the equivalent before the clinical onset of chronic bronchitis, in circumstances where smoking has ceased. In the present case, the applicant did cease smoking in 1991 and the parties agreed that the clinical onset was 1991 (we also agree having regard to the medical evidence, that the clinical onset was in 1991).
It was the applicant's case that he commenced smoking cigarettes on the day after enlistment, but increased his smoking habit because of his service in Malaya. Despite the variations in the applicant's evidence as to the amount of cigarettes he consumed prior to Malaya, it appears (at the highest) that he was consuming 20 cigarettes per day. By reason of his service in Malaya, the addiction increased to 40 cigarettes per day. In the statement prepared by Mr Johnston and filed at the commencement of these proceedings, he recorded that smoking was reduced to about 30 to 35 cigarettes per day from about 12 months prior to discharge from the RAAF in 1979. It also appears from the statement that smoking continued at that rate until cessation in 1991. Upon the basis of an increase in consumption from 20 to 40 cigarettes per day from the commencement of service in Malaya, and continuing at that rate until a reduction to 30 to 35 cigarettes per day until approximately 1978, we are satisfied that the applicant does meet the applicable Statement of Principles. This is because the applicant has increased his smoking habit to between 10 and 15 cigarettes per day for approximately 23 years. This would give rise to the equivalent of "at least 10 pack years".
In so far as the increased habit is related to service, we are satisfied upon the material advanced in these proceedings that such a connection does exist. Quite apart from the issues of increased habit by reason of boredom, peer pressure, idleness and the "risk" of mould and mildew if issued cigarettes and tobacco were not consumed, there is material that the applicant was exposed to and frightened from bullets being fired at or near him, and having to pass through "black areas" unescorted. On the material the applicant advanced, he consumed cigarettes as a relaxant. We are satisfied that a sufficient connection exists, in so far as this part of the third Deledio stage is concerned, between the increased consumption of cigarettes and his service.
In so far as the fourth stage is concerned, applying the reverse onus of proof, we cannot be satisfied that there is no connection between the applicant's service and the condition of chronic bronchitis and emphysema.
It is beyond doubt that the applicant did travel through "black areas", where there was the risk of enemy activity. His convoy was unescorted, and the apparent risk was known to his superiors because the applicant and other drivers were issued with guns. Whilst the respondent in reliance on a report of a historian submitted that there was nothing to substantiate the applicant's allegations that he was fired upon whilst at the quarry, we are satisfied and find as a fact that such events did occur. We already found earlier that the applicant was a witness of truth. We observe within the report filed by the historian that journal entries completed by the applicant's superiors indicate that patrols were authorised for the quarry area at or about the time the applicant said that he was fired upon. This is consistent with the applicant's evidence that patrols did commence after the firing episode. That a quarry would be patrolled would indicate to us that there had been reports of firing upon Australian personnel at the quarry. This is consistent with the applicant's evidence. In our view, being fired upon would produce sufficient fright to cause the applicant to find comfort in cigarettes and then probably at an increased level of consumption.
We are satisfied and find as fact that the applicant did increase his level of consumption of cigarettes, as we discussed earlier, and then maintained that increased level until at least 1978. We acknowledge that it is difficult to comprehend with any accuracy the true level of the applicant's smoking history. This is not an unusual phenomena in veterans' applications where circumstances going back 40 or 50 years is often required. The circumstances of the present case are somewhat more complicated because of the variations in the histories and accounts given by the applicant to his doctors. Nonetheless with his cigarette consumption put at its highest before Butterworth and put at its lowest from 1978, the intervening period of increased consumption - which we find as a fact did occur – is not only consistent with the applicant's explanation as to the circumstances of his service in Butterworth, but is consistent also with achieving 10 pack years before clinical onset
In the circumstances, we are satisfied that the fourth stage of Deledio - as reflected in s. 120(1) of the Veterans' Entitlements Act 1986- is met. We are satisfied that the injury was war-caused.
The decision under review, in so far as it concerns the condition of chronic bronchitis and emphysema, must be set aside and a finding made in substitution that this condition is war-caused. The remaining part of the decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley, Senior Member
Signed:         Katherine Navarro........................................
  Associate
Date of Hearing  3 May 2002
Date of Decision  21 June 2002
Counsel for the Applicant        Ms Bornstein
Solicitor for the Applicant         Maria Chapman
Counsel for the Respondent    Mr Purcell
Solicitor for the Respondent    N/A