Kelly and Repatriation Commission
[2007] AATA 1300
•4 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1300
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/170
VETERANS' APPEALS DIVISION )
Re AILEEN KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date4 May 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ........[SGD]...............................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – application for war-widows pension – operational service – claim conditions were war-caused – application of Statement of Principles – ischaemic heart disease – decision affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 6-6F, 7, 8, 119, 120, 120A, 120B, 174, 175,176, 180A, 196B
Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 37, 43
Secretary, Department of Social Security v Murphy (1998) 52 ALD 268
Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Hillier and Repatriation Commission [2004] AATA 897
Schmidt v Repatriation Commission [2004] FCA 1158
Bull v Repatriation Commission (2001) 66 ALD 271
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Stoddart (2003) 77 ALD 67
Repatriation Commission v Gorton (2001) 110 FCR 321
Haughey and Repatriation Commission [2005] AATA 189
Repatriation Commission v Deledio (1998) 83 FCR 82
Fenner v Repatriation Commission (2005) 218 ALR 122
Hill v Repatriation Commission (2005) 85 ALD 1
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Bey (1997) 79 FCR 364
Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37
Grundman v Repatriation Commission (2001) 66 ALD 125
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward v Repatriation Commission (2003) 131 FCR 473
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356REASONS FOR DECISION
4 May 2007 Mr SC Fisher, Member Introduction And Background
1. Mrs Aileen Kelly is the widow of Mr William Kelly (the veteran). Mr Kelly served with the Papua New Guinea Volunteer Reserve between 1951 -- 1973 and with the Citizens Military Force until 1986. Mr Kelly was seconded to full-time-service with the 3rd Australian Army Regiment in South Vietnam from 15 February 1969 -- 5 March 1969. The veteran was born on 15 June 1927 and died on 13 February 2005 at the age of 77 years.
Jurisdiction
2. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
3. The decision under review is a decision made by the Repatriation Commission (the Respondent) on 13 April 2005 refusing the claim for a war widows’ pension of Mrs Aileen Kelly, which decision contained a determination that the death of her late husband, Mr William Kelly, was not service-related. The 13 April 2005 decision was affirmed by the Veterans' Review Board on 28 February 2006. The Applicant appealed to this Tribunal on 13 March 2006.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (1998) 52 ALD 268. The Tribunal is guided by the norm that it should reach the “correct or preferable decision on the basis of the material before it”: Ajka Pty Ltd v Australian Fisheries Management Authority (2003) 74 ALD 21 at 31. “The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent”: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: section 33(1)(c) of the Administrative Appeals Tribunal Act 1975. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
5. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veterans’ pension and related entitlements.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Statement of Ms Marilyn Jackson dated 28 March 2006.
Exhibit 3Statement of Ms Deborah Fraser (undated).
7. The Applicant was represented by Mr N Jarro of Counsel. Mr Jarro was instructed by Terence O'Connor. Exhibits 1 – 3 were lodged on behalf of the Applicant.
8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1.
9. The Respondent was represented by Mr Malcolm Smith, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions and written Submissions to the Tribunal.
10. The Applicant lodged a Statement of Facts and Contentions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence for the Applicant
11. The Applicant gave evidence in person. In addition, the children and a niece of the Applicant and the veteran gave evidence for the Applicant.
Evidence of the Applicant
12. The evidence of the Applicant to the Tribunal was as follows:
- The Applicant had said to the Veterans’ Review Board that her husband was a regular smoker when she first met him in 1949. He continued to smoke regularly after they married in 1951.
- The Applicant said that her husband smoked approximately 15 – 20 cigarettes per day before his Vietnam service. The Applicant said that her husband smoked after work and before work.
- The Applicant said that her husband had been depressed after his Vietnam service, and that both his drinking and smoking increased after the service. The Applicant said that a tin of 50 cigarettes would last her husband about 2 days.
- The Applicant said that her husband pretended to smoke in his sleep.
- The Applicant described some of the events that her husband recounted to her about his Vietnam service. First, the Applicant describes an event when her husband was part of a reconnaissance group that was fired on by the Vietcong. The Applicant said that her husband said to her that he thought he would not get out. Secondly, the Applicant described how her husband had visited a field hospital to visit badly wounded soldiers. Thirdly, there were Vietcong in underground tunnels. Fourthly, her husband had been an observer in Vietnam.
- The Applicant said that her husband did not speak much about these episodes but that she saw the differences in him after his Vietnam service which she said had a "remarkable effect" on him.
- The Applicant disagreed with the statement in the Smoking Questionnaire to the effect that the veteran had reported that his medical condition was "not service related".
- The Applicant said that she was not sure how long after his Vietnam service that his smoking increased. The Applicant said that her husband had been a heavy smoker.
Evidence for the Applicant: Ms Marilyn Carol Jackson
13. Ms Marilyn Carol Jackson is the daughter of the Applicant and the veteran.
14. The substance of the evidence provided by Ms Jackson to the Tribunal is as follows:
- Ms Jackson adopted her witness statement (Exhibit 2).
- Ms Jackson said that her father was a very different man before and after his Vietnam service. Afterwards, he was very distant and spent a lot of time away from home, and when he was home, he was unbearable.
- Ms Jackson said that she recalled him smoking all the time, which she hadn't done before his Vietnam service.
- Ms Jackson said that she moved out of home when she was 16 years of age because it was impossible to live at home with him.
Evidence for the Applicant: Deb Fraser
15. Ms Deborah Leanne Fraser is the daughter of the Applicant and the veteran.
16. The substance of the evidence provided by Ms Fraser to the Tribunal is as follows:
A.Ms Fraser adopted her witness statement (Exhibit 3).
B.Ms Fraser said that because she is a lot younger than her brother and sister, she had no recollection of her father before he went to Vietnam.
C.Ms Fraser said that she recalled him smoking all the time after his Vietnam service.
D.Ms Fraser said that she attributed his depressive state to his poor health which was a result of his many years of smoking and increased use of alcohol.
Evidence for the Applicant: Mr William John Kelly
17. Mr William John Kelly is the son of the Applicant and the veteran.
18. The substance of the evidence provided by Mr Kelly to the Tribunal is as follows:
A.Mr Kelly said that before February 1969 (at which time he was 17 years of age), his father was an "average smoker", smoking 20 cigarettes per day from his observations and recollection.
B.Mr Kelly said that after his father's Vietnam service, his smoking increased to a rate of 2 – 3 packs per day. Mr Kelly said that he recalled his father always having a cigarette in his hand.
C.Mr Kelly said that after his father's Vietnam service, his father had difficulty with relationships, and that he was all always arguing and fighting.
Evidence for the Applicant: Ms Helene Cronin
19. Ms Helene Cronin is the niece of the Applicant.
20. The substance of the evidence provided by Ms Cronin to the Tribunal is as follows:
A.Ms Cronin said that before February 1969 (at which time she was 16 years of age), her uncle "did not smoke a lot", smoking probably a few cigarettes a day.
B.Ms Cronin said that after her uncle's return from Vietnam, he was a very difficult man, and that he smoked a lot more. Ms Cronin said that her cousins (Marilyn and Bill) left home because of difficulties with their father.
Evidence for the Respondent
21. The Respondent did not call any evidence.
Medical evidence relating to the veteran
22. On 10 January 2005, Dr Glenn Rice-McDonald, Respiratory & Sleep Physician, described the veteran as an ex-smoker.
23. The death certificate of the veteran recorded the cause of death as "1(a) cardiac arrest (b) cardiac arrhythmia (c) myocardial infarction (d) significant coronary arterial disease. 2. severe sleep apnoea, moderate to severe chronic obstructive pulmonary disease" with the durations of these conditions expressed as "1(a) minutes (b) minutes (c) hours (d) years".
24. According to this evidence, the veteran's significant coronary arterial disease had a non-specific clinical onset, with the duration expressed as "years".
25. The veteran began smoking in 1941 and stopped smoking in March 1975.
Discussion of the non-medical evidence
26. Some of the details and certainly the thrust of the non-medical evidence available to the Tribunal concerning the veteran was clear and non-controversial. Before his Vietnam service, the veteran was an average smoker. After his return from his Vietnam service, the veteran smoked at least one tin of 50 cigarettes over 2 days, making an average of 25 cigarettes per day. Although different witnesses gave different accounts of the smoking consumption of the veteran before and after his Vietnam military service, it was clear to the Tribunal that on all accounts his smoking increased afterwards. Based on the evidence before it, the Tribunal is prepared to find and does find that the Veteran smoked 25 cigarettes per day after operational service in Vietnam (which concluded in March 1969).
27. In his smoking questionnaire, the veteran stated that his smoking was not due to his military service.
Submissions of the Applicant
28. The Applicant contended that the death of the veteran was war-caused.
29. The Applicant put forward the following hypothesis for the purposes of section 120A of the Act:
§The veteran increased his smoking habit as a result of his war service in Vietnam.
§The onset of the veteran's ischaemic heart disease was in approximately 1998.
§The veteran's war-caused smoking habit had increased by the time of onset of ischaemic heart disease.
§Consequently, the increased smoking habit of the veteran was a cause of the veteran developing ischaemic heart disease from which he died in 2005.
30. The Applicant contended that the death of the veteran satisfied all of the well-known Deledio factors.
31. The Applicant submitted that when the veteran answered the smoking questionnaire with the statement "not related [to] service", he was unwell and that the Tribunal should disregard this apparent concession against his interests.
32. The Applicant contended further that for the purpose of a determination being made pursuant to section 120A of the Act – and with reference to the reasonable hypothesis that must be raised taking into account the existence of a relevant Statement of Principles (SoP) pursuant to s.196B of the Act, Ischaemic Heart Disease (IHD) – Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, is applicable. The Applicant relied upon factor 5(e)(iii) (smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease). There was evidence that the veteran satisfied this qualitative measure.
33. The Applicant contended that the Tribunal should find on the evidence that the veteran increased his smoking consumption after his Vietnam service, which was the relevant operational service. The Applicant urged the Tribunal to find that the veteran smoked between 25 -- 50 cigarettes per day.
34. The Applicant argued that all of the witnesses called on her behalf supported the contention that the veteran had increased his smoking after his Vietnam War service.
35. The Applicant said that the veteran had experienced warfare in Vietnam (in the sense of being under fire) and that he had witnessed hospital casualties.
36. The Applicant said that the veteran's onset of ischaemic heart disease was in 1998.
37. The Applicant argued that the Tribunal should set aside the decision under review and substitute a decision that the death of the veteran was war-caused in the relevant sense.
Submissions of the Respondent
38. The contentions of the Respondent were to the following effect:
A.The evidence of the Applicant about the tobacco consumption of the veteran was not very clear and her memory about this was not very good.
B.The Respondent contended that a short period of operational service in Vietnam of 18 days could not alter a person's smoking habit.
C.The Respondent accepted that ischaemic heart disease was a significant factor in the death of the veteran, and that the quantity he smoked was a significant causal factor in the contraction of ischaemic heart disease.
D.The Respondent disputed that the veteran's condition from which he died was war caused (in other words, that there was any causal nexus between his ischaemic heart disease and his operational service).
E.The Respondent contended that even if the Tribunal was to find that there was an increase in the consumption of cigarettes smoked by the veteran following his period of operational service, there was no evidence to draw or establish a nexus between the circumstances of service and the increase in smoking.
F.The Respondent argued that the only applicable factor in SoP No 53 of 2003 was factor 5(e)(iii), and that the evidence before the Tribunal enabled it to make a determination that the quantification of the pack years of cigarettes smoked was between 20 and 34. However, the Respondent argued that ultimately the veteran did not meet the 20 pack cigarette standard in factor 5(e)(iii) because he had stopped smoking in March 1975 and the clinical onset of ischaemic heart disease was in 1998, and so accordingly there was more than a 20 year gap between the cessation of smoking and the clinical onset of ischaemic heart disease.
G.The Respondent contended that the decision below should be affirmed.
The Legislation
39. Section 8(1)(b) of the Act provides that the death of a veteran is taken to have been war-caused if that death arose out of, or was attributable to, any eligible war service rendered by the veteran. It was common ground in this appeal that the veteran had rendered operational service, and so rendered eligible war service within the scheme of sections 6 to 6F and section 7 of the Act. “A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service”: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
40. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
41. As the veteran has performed operational service, as defined in section 6 of the Act, the determination of whether his ischaemic heart disease is war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide as follows:
“120 Standard of proof
(1)Where a claim 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.
Note: This subsection is affected by section 120A.
…
(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.
Note: This subsection is affected by section 120A.”
42. Authority establishes that when applying section 120(3), decision-makers (including this Tribunal) must look at all the material, not just some of it, that is before the decision-maker, including material that supports and opposes the formation of the reasonable hypothesis. It is not entitled to find facts or reject matters. The decision maker must consider the whole of the material before it – see Bull v Repatriation Commission(2001) 66 ALD 271 at 277 and Kattenberg v Repatriation Commission(2002) 73 ALD 365 at 373.
43. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
44. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart (2003) 77 ALD 67 at 69 the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
45. The Repatriation Medical Authority has devised a Statements of Principles (“SoP”) in respect of ischemic heart disease pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under section 180A(2) that are relevant to this case, and the parties did not contend to that effect. “An SoP is brought into existence in order to comply with section 196B”: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at 374. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15].
46. Section 196B(14) of the Act “sets out the relationships to service contemplated by the SoPs, whether the service is war service or defence service”: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
Diagnosis
47. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act.
48. The death certificate of the veteran recorded the cause of death as "1(a) cardiac arrest (b) cardiac arrhythmia (c) myocardial infarction (d) significant coronary arterial disease. 2. severe sleep apnoea, moderate to severe chronic obstructive pulmonary disease" with the durations of these conditions expressed as "1(a) minutes (b) minutes (c) hours (d) years". Based upon the evidence before the Tribunal, the Tribunal is reasonably satisfied that the veteran suffered from ischaemic heart disease (significant coronary arterial disease) of many years' duration before his death.
49. Essentially, the chain of reasoning pursued by the Applicant in these proceedings insofar as the medical conditions of the veteran are concerned is as follows. The Applicant asserts that the veteran’s service-related smoking led to his ischaemic heart disease, which was the immediate or proximate cause of death.
The Deledio Steps
50. In Repatriation Commission vDeledio(1998) 83 FCR 82 the Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
51. The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission (2001) 66 ALD 271 at 275. (See Fenner v Repatriation Commission (2005) 218 ALR 122 at 126). This correction is not material to the present appeal.
52. Despite occasional deviations (see that noted by the Full Court of the Federal Court in Hill v Repatriation Commission (2005) 85 ALD 1) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistent with the constant stream of authority in this domain. The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim or the claim of a dependant of a veteran is to be accepted as war-caused within the meaning of the Act.
The Mines Preliminary Step
53. In Mines v Repatriation Commission (2004) 86 ALD 62 at 70-71, Gray J made these important observations about the Deledioreasoning process:
“[37] …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say -
“[38] …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” …
54. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.
55. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission (2004) 86 ALD 62 at 70. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a physical ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely ischaemic heart disease. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area within the Act (this was common ground between the parties). Accordingly, the Mines preliminary steps are satisfied.
Application Of The Law To The Injury Alleged To Be War-caused
The first Deledio step
56. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the disease to the service rendered. The Applicant's contention is that the medical conditions suffered by the veteran were related to service. Not unexpectedly, the Respondent contested the making of this hypothesis, pointing to the gulf in time between the service of the veteran (which ended on 5 March 1969) and the onset of ischaemic heart disease which was diagnosed in 1998.
57. In his smoking questionnaire, the veteran stated that his smoking was not due to his military service. The Applicant contested this concession, pointing to his pre-Vietnam service and his post-Vietnam service smoking quantities as gainsaying this.
58. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) of the Act (see also Fenner v Repatriation Commission (2005) 218 ALR 122 at 129-130, citing Parnell-Schoneveld v Repatriation Commission (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
59. In summary, the evidence before the Tribunal is this. First, the self-report of the veteran disclaims any relationship between smoking and military service. Secondly, the veteran stopped smoking in March 1975 and his ischaemic heart disease was first diagnosed in 1998. This is a gap of 23 years. Thirdly, the evidence before the Tribunal is that the smoking of the veteran increased after his operational service. Based upon the totality of the evidence before the Tribunal, the Tribunal is not satisfied that there is a hypothesis linking the ischaemic heart disease suffered by the veteran with his operational service. In case the Tribunal is incorrect in reaching this conclusion, so that the relevant hypothesis exists, then the Tribunal will go on to consider the successive Deledio steps.
The Second Deledio Step
60. The second Deledio step is to determine the relevant SoP. In this case, the relevant SoPs is:
§Ischaemic heart disease (Instrument No 53 of 2003, as amended by Instrument No 9 of 2004).
The Third Deledio Step: General Considerations
61. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission (2003) 131 FCR 473 at 480. The Tribunal cannot make findings of fact at this point.
62. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the veteran’s condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the veteran’s injury is, on the balance of probabilities, connected with the veteran's service (section 120B(3)(b) of the Act). “The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act”: Haughey and Repatriation Commission [2005] AATA 189 at [63].
The Third Deledio Step: Ischaemic Heart Disease
63. Relevant excerpts from Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) are as follows:
“Kind of injury, disease or death
2.(b) For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
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 of a person’s relevant service are:
…
(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,... (iii) smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease;
The Third Deledio Step: Consideration of the medical evidence and the SoP
64. The chain of reasoning that the Tribunal proceeds with in this case is that the Applicant contended that her husband's war service was a cause of his increased service-related smoking which led to his ischaemic heart disease, which was the immediate or proximate cause of death.
65. Clause 4 of the SoPs identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the SoP. What is disputed (as was argued by the Respondent) is whether the Applicant developed ischaemic heart disease because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of the SoP does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
66. In effect, the Applicant pinned her case upon establishing that her husband's war service was a cause of his increase in smoking which led ultimately to his ischaemic heart disease which in turn led to his death. Clause 4 of the SoP identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.
67. The Applicant contended that her husband's increase in smoking was caused by his war service. On the evidence, the veteran was smoking when the Applicant met him in 1949 (they were married in 1951). Although the evidence does not establish clearly the difference in quantities of smoking consumption before and after operational service, all of the witnesses who gave evidence to the Tribunal stated that the tobacco consumption of the veteran increased after his operational service. The Tribunal accepted this qualitative difference was made out on the evidence.
68. From the perspective of the Applicant, it is critical that she demonstrate and establish the nexus between the war service of the veteran and smoking which led ultimately to his ischaemic heart disease. Relevant excerpts from the SoP (Instrument No 53 of 2003 as amended by Instrument No 9 of 2004) have been set out earlier in these Reasons for Decision. Accordingly, the question for the Tribunal is whether the veteran satisfied the temporal requirement expressed in factor 5(e)(iii). The Applicant invited the Tribunal to infer that the circumstances of the veteran's war service led to his increase in smoking and thus his ischaemic heart disease.
69. The Respondent pointed to the fact that any increase in the smoking of the veteran from February 1969 was relatively short term, ending in March 1975 when the veteran stopped smoking.
70. Repatriation Commission v Bey (1997) 79 FCR 364 at 373 directs this Tribunal (and other subordinate decision-makers) that there must be material pointing to a connection between the veteran’s disease and his or her war service. The Tribunal accepts that there is evidence which connects the veteran’s increase in smoking to his war service. But does this go far enough? The Tribunal noted clause 4 of the relevant SoP, which requires that the factor 5(e)(iii) event or occurrence "be related to any relevant service rendered by the" veteran. The opening words of clause 5 of the relevant SoP make it clear that these connections are minimal connections. In the opinion of the Tribunal, the veteran has not smoked 20 pack years of cigarettes before the clinical onset of ischaemic heart disease in 1998. At best, the veteran has smoked no more than 6 pack years of cigarettes from the operative event (operational service in Vietnam in February -- March 1969) to the time when the veteran stopped smoking. The Tribunal is not persuaded that any 20 year period of smoking which otherwise satisfies the qualitative measures embedded within factor 5(e)(iii) suffices for the purposes of factor 5(e)(iii). Factor 5(e)(iii) must be read alongside clause 4 of the SoP. This conclusion means also that the immediate cause of death of the veteran (ischaemic heart disease) cannot be attributed to his war service in a causative sense.
The fourth Deledio step: findings of fact
71. As the Tribunal has determined that the hypothesis that does not fit within the SoP template, it is not necessary for the Tribunal to proceed to engage in fact-finding.
Tribunal’s Conclusion
72. The Tribunal concludes that the veteran’s death was not caused by or contributed to by service-related ischaemic heart disease.
Tribunal’s Decision
73. For these reasons, the Tribunal decides to affirm the decision under review.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed:……F Kamst……………………
Legal Research Officer
Date of Hearing 18 August 2006
Date of Decision 4 May 2007
Counsel for the Applicant Mr N Jarro
Solicitor for the Applicant Terence O’Connor
For the Respondent Mr M Smith, Departmental Advocate
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