Jones and Repatriation Commission

[2007] AATA 1156

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1156

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/176

VETERANS' APPEALS  DIVISION		)
Re		IDRIS JONES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-Time Member)

Date21 March 2007

PlaceHobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Veterans' Affairs - disability pension - claimed disabilities - gastro-oesophageal disease - chronic bronchitis - emphysema - whether war-caused - medical evidence - reasonable hypothesis - Statements of Principles (SOPs) - Veterans' Review Board (VRB)

Veterans' Entitlements Act 1986 and Amendments, Sections 120(1) and 120(3), 120A and 120B

Statements of Principles (SOP) issued by the Repatriation Medical Authority

Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

21 March 2007 Associate Professor B W Davis AM (Part-Time Member)   

Decision on the Papers:

1.      The applicant has agreed to a decision on the papers.

Decision Under Review:

2.      The decision under review is that of a decision made by a delegate of the Repatriation Commission on 23 December 2005, subsequently affirmed by a decision of the Veterans’ Review Board on 29 August 2006, whereby the applicant’s claim to have gastro-oesophageal disease, chronic bronchitis and emphysema as due to war-service was refused.

Issue:

3.      The issue before the Tribunal is whether the claimed disabilities are war-caused and meet the criteria specified in subsections 120(1) and 120(3) of the Veterans’ Entitlements Act 1986 (the Act) and Sections 120A and 120B.

Standard of Proof:

4.      The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background:

5.      Mr Idris Jones served in the Australian Army from 31 August 1951 to 22 October 1953.  His eligible war service (which is also operational service) was from 3 March 1952 to 6 April 1953 in Korea, as a member of 1RAR.

6.      The veteran submitted a claim for disability pension on 23 November 2005, identifying gastro-oesophageal reflux disease, chronic bronchitis and emphysema as war-caused problems arising from his heavy smoking on service.

7.      In respect of the veteran’s operational service, subsections 129(1) and 120(3) of the Act apply.  The Tribunal is required to find that his gastro-oesophageal reflux disease and chronic bronchitis and emphysema were war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.  The Tribunal must be so satisfied if it is of an opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the particular service rendered.

8.      Mr Jones’ claim was rejected by a delegate of the Repatriation Commission on 23 December 2005, on grounds that the claimed disabilities were not related to the veteran’s operational service.  Mr Jones then appealed to the Veterans’ Review Board on 1 March 2006, which affirmed the original decision on 29 August 2006.  Mr Jones then lodged an application for review by the AAT on 28 November 2006, later agreeing to a decision on the papers.

9.      In its reasons for decision the VRB noted medical evidence indicating onset of gastro-oesophageal reflux disease occurred around 1990, many years after army service.  The veteran claimed heavy smoking during service was the causative factor.  In a smoking questionnaire dated 9 December 2005, Mr Jones stated that during service with the Royal Air Force (UK) between 1944 and 1957 he smoked up to 20 cigarettes per week.  He claimed he increased his smoking habit after enlistment into the Australian Army, because he could afford to do so.   The VRB noted there was no clear indication of quantum, but the increase occurred prior to operational service and after leaving the army in 1953 he continued the habit until 1969, at that time smoking a packet of cigarettes per day.

10.     The VRB tested this evidence against the relevant Statement of Principles for gastro-oesophageal reflux (SOP 11 of 2005, Facto4 5(c)) which treats the ‘smoking factor’ as follows:

“... smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of six months immediately before the clinical onset of gastro-oesophageal reflux disease”.

The VRB determined this criterion could not be met as Mr Jones ceased smoking in 1969, well before onset of the reflux disease around 1990.

11.     The Repatriation Commission and the VRB noted evidence about alcohol consumption in reaching their verdicts.  The evidence indicates Mr Jones commenced drinking at age 18 years, but did not change the pattern much except for a six month period in 1984, after army service.  He did not indicate that operational service in Korea caused any increase in consumption and so factor 5(d) “... consuming an average of 300 grams of alcohol per week before the clinical onset of gastro-oesophageal reflux disease” does not apply.  The VRB indicated that the material before it did not point to a drinking habit causally connected to operational service.

12.     As previously noted, Mr Jones has argued his chronic bronchitis and emphysema also arose from heavy smoking during operational service.  The relevant Statement of Principles is Instrument No 30 of 2004, Factor 5(a) which states:

“... smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema ...”

The veteran has indicated he commenced intermittent smoking from 1944 to 1951, increased consumption during army service 1951 to 1953, but ceased smoking in 1969.  Only two years of this period was spent in army service and the medical indications are that chronic bronchitis and/or emphysema did not arise until 1955, some 42 years after army service.  Neither the Repatriation Commission or the VRB considered there was a causal linkage between the veterans’ smoking habit and claimed disabilities, hence he did not qualify for disability pension on this basis.

De-Novo Review:

13.     The Tribunal is required to conduct a de-novo review of all available evidence, noting statutory and policy provisions and any relevant prior case determinations.  Given that the veteran rendered operational service in Korea, the Tribunal is required to find that claimed disabilities were war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination.  Hence the procedures adopted in Repatriation Commission v Deledio (1998) 49 ALD 193 is useful, having been repeatedly tested in both the AAT and Federal Court.

14.     There are four steps to consider:

(a)      the Tribunal must consider all the evidence before it and determine whether that material points to a possible hypothesis linking the claimed    disability (or disabilities) to the operational circumstances the veteran faced;

(b)      if a possible linkage exists between disability and service, the Tribunal       must ascertain whether there is an SOP in force to provide a template against    which the evidence can be tested;

(c)       if an SOP is in force, the Tribunal must then form an opinion whether         the hypothesis is consistent with the template;  and

(d)      the Tribunal must then consider whether it is beyond reasonable doubt      that the disability or disabilities were not war-caused, otherwise the appeal will       succeed, based on the factual evidence available.

15.     Even if one initially postulates that a hypotheses could exist linking smoking with subsequent reflux disease, chronic bronchitis and emphysema, the reality is Mr Jones’ case does not fit the templates specified in Statements of Principles Nos 11 and 30, given that his disabilities arose long after military service and there is no evidence of significant problems at the time of service.  His appeal therefore fails, the Tribunal is satisfied beyond reasonable doubt that his disabilities are not war-caused.

16.     The decision under review is affirmed.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:          R Hunt (Administrative Assistant)

Date/s of Hearing   Hearing on the papers
Date of Decision   21 March 2007