Kennedy and Repatriation Commission - [2000] AATA 884

DECISION AND REASONS FOR DECISION [2000] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/959

VETERANS' APPEALS DIVISION          )
           Re      KEVIN THOMAS KENNEDY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr K P Kennedy OBE (Member)

Date9 October 2000
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

Decision No. 884/2000 ..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Statement of Principles – Reasonable Hypothesis – Chronic Bronchitis and Emphysema – Whether Chronic Bronchitis and Emphysema causally related to service

Veterans' Entitlements Act 1986 – s9, s13, s120(1), s120(3), s120A(3), s196B

Repatriation Commission v Deledio (1998) 49 ALD 193
Davenport v Repatriation Commission [1997] FCA 918 (24 June 1997)
Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1

REASONS FOR DECISION

Mr K L Beddoe (Senior Member) Capt E T Keane OAM RAN Rtd (Member) Dr K P Kennedy OBE (Member)

The applicant seeks review of a decision made by the respondent on 14 March 1998 to refuse payment of a disability pension on the grounds that the veteran did not satisfy the Statement of Principles ("SoP") relevant to the claimed condition of Chronic Bronchitis and Emphysema. That decision was subsequently affirmed by the Veterans' Review Board ("VRB") on 17 July 1998 (T7). The applicant's claim in respect of bilateral sensori-neural hearing loss with tinnitus was accepted as war-caused with pension assessed by the VRB at 40% of the General Rate. It was noted before the Tribunal that the applicant did not wish to seek review of decisions relating to Contact Dermatitis, Eczema and Chronic Solar Skin Damage. The applicant says that the claimed condition arose out of operational service whilst serving on the HMAS Melbourne and HMAS Warramunga.
At the hearing Mr Payne appeared for the applicant and Mr Smith appeared for the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were put before the Tribunal as the T documents and further documents were tendered and marked as exhibits. The Tribunal heard oral evidence from the applicant.
The issue before the Tribunal in considering the applicant's entitlement to a disability pension is whether the applicant's Chronic Bronchitis and Emphysema are war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act"). A further issue before the Tribunal is whether pension for the accepted condition is correctly assessed at 40% of the General Rate of pension.
Section 13 of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension to the veteran.
For the purposes of this case a "war-caused disease" is defined in section 9 to mean:
"(1)…a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the…disease contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the…disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…"

It was not disputed that for the purposes of section 6D of the Act the applicant rendered operational service and as such eligible war service in accordance with section 7 of the Act. This is confirmed by the "Instrument for Determining Eligibility under the Act" which identifies the Unit of the Defence Force attached to the Far East Strategic Reserve ("FESR") (which the applicant served upon) and the relevant dates.

Section 120 of the Act sets out the standard of proof required in establishing whether a disease resulted from an occurrence while rendering operational service or arose out of, or was attributable to the eligible war service rendered. Section 120(1) provides:
"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."
Section 120(3) of the Act requires the Tribunal to consider the whole of the material before it and decide whether that material points to an hypothesis connecting the veteran's disease with the circumstances of his eligible war service. It provides:
"In applying subsection (1) … 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:
that the injury was a war-caused injury or a defence-caused injury;
that the disease was a war-caused disease or a defence-caused disease; or
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."

Section 120(3) is to be read in conjunction with section 120A of the Act. In so far as it is relevant, section 120A(3) provides that:
"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 Statement of Principles determined under subsection 196B(2)…
…;
that upholds the hypothesis.

If the hypothesis does not come within the terms of the SoP then it will not be a reasonable hypothesis and there will not be sufficient ground for finding that the veteran's disease was caused by eligible service.

The claim, being a claim made after 1 July 1994 and in accordance with Keely v Repatriation Commission [1999] FCA 1103 and Repatriation Commission v Keely [2000] FCA 532, is one to be assessed according to SoP's Instrument No. 73 of 1997.
In so far as is relevant the SoP for Chronic Bronchitis and Emphysema provides:
"5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and/or emphysema…with the circumstances of a person's relevant service, are:
(a)for chronic simple, chronic micropurulent or asthmatic bronchitis only,…
(i)…
(ii)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products before the clinical onset of chronic bronchitis…or;…
(b)smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema;…"
A "pack-year" is defined within the relevant SoP to mean 7,300 cigarettes or 1,460 cigars or 7.3kg of pipe tobacco. This equates to a veteran smoking one packet of 20 cigarettes per day per year. To come within the terms of the SoP this means that the applicant must have had a smoking history of at least 10 pack-years of cigarettes or the equivalent prior to the clinical onset of Chronic Bronchitis and/or Emphysema which in turn is connected to his eligible service. As the applicant has a diagnosis that there is evidence of moderately severe chronic airflow limitation and diffusion studies have indicated a significant degree of emphysema (T4/45), factor (b) of the SoP is applicable.
Taking into account all of the material before the Tribunal we make the following findings of fact relevant to the applicant:
(a)The applicant was born on 3 March 1935 and joined the Royal Australian Navy ("RAN") at the age of 19, serving with the RAN from 6 September 1954 to 5 September 1960 (T4/1).
(b)The applicant served aboard HMAS Melbourne from 11 July 1956 to 20 September 1957 and HMAS Warramunga from 21 September 1957 to 11 March 1959.
(c)The applicant had the following periods of operational service:
HMAS Melbourne
21 September 1956 to 12 October 1956
5 April 1957 to 7 May 1957; and
7 June 1957 to 28 June 1957
HMAS Warramunga
21 January 1958 to 3 April 1958
23 April 1958 to 12 May 1958
15 May 1958 to 1 July 1958; and
22 July 1958 to 19 August 1958

as part of the Defence Force Units attached to the FESR.
(d)It is accepted for the purpose of these proceedings that the veteran commenced smoking in 1957 while serving on HMAS Melbourne.
(e)The applicant in his evidence stated that he commenced smoking in 1957 (Exhibits C & D) because he could recollect not smoking at the time of the 1956 Olympics. Previously the applicant had stated that smoking had commenced in 1958 to help him with his service and stress (T4/35) but when questioned about this discrepancy in dates the applicant said, and we accept, his recollection after more than 40 years had led to the error.
(f)In a Statutory Declaration dated 17 February 2000 (Exhibit D) the applicant stated that he must have commenced smoking in the latter part of 1957 as his sister-in-law had commented, whilst on a visit to her, that the applicant had started to smoke.
(g)The applicant in his statement (Exhibit C) and Statutory Declaration (Exhibit E) stated that he started smoking up to 15 cigarettes per day upon posting to HMAS Melbourne. Subsequently this increased to 20 to 25 cigarettes per day, as a result, the applicant says of stress caused by constant watch-keeping and the continual threat of being involved in enemy contact (Exhibit C).
(h)The applicant said in his evidence that the increase in smoking was attributable to his operational service (T4/66) aboard HMAS Melbourne and HMAS Warramunga. Under cross-examination the applicant said that he started smoking upon his assignment to HMAS Melbourne because of the worry of being posted overseas and was apprehensive as to what may occur whilst carrying out his posting.
(i)The applicant says his smoking of 20 to 25 cigarettes per day became habitual whilst aboard HMAS Warramunga because of operational service carried out as part of the FESR (Exhibit E). This habit continued until 1988 with a reduction to approximately 15 cigarettes per day at present (Exhibit C).

Applicant's Submissions

It was submitted on behalf of the applicant that as the applicant only became eligible for a service pension in 1997 the applicant has had to rely on 42 years of memory. This has proved difficult for the applicant.
The applicant contends that he commenced smoking aboard HMAS Melbourne in 1957 but increased significantly whilst on operational service aboard HMAS Warramunga.
It was submitted that it was open to the Tribunal to find that a reasonable hypothesis had been established; that hypothesis being that although the applicant initially smoked upon posting to the HMAS Melbourne there was a significant increase in smoking occurring whilst on operational service aboard HMAS Warramunga. This was due to the stress and pressure of constant watch-keeping and the continual threat of being involved with enemy contact. As a result the applicant now suffers from Chronic Bronchitis and Emphysema.
Respondent's Submissions
The respondent submitted that the applicant's operational service aboard the HMAS Melbourne was 77 days out of a total of 14 months service aboard that ship. It was contended that although the applicant commenced smoking aboard that ship there was no evidence to suggest that commencement occurred during those voyages.
It was further submitted that the applicant commenced smoking for reasons related to his posting overseas rather than to conditions specific to these short operational service voyages.
Further the respondent contended that there was no evidence that could be attributed to the increase in the applicant's smoking during his operational service aboard HMAS Warramunga. As a matter of causation it was the fact that because the applicant was a smoker the subsequent increase was simply a manifestation of tobacco addiction.
The respondent relied on the Federal Court decision in Davenport v Repatriation Commission [1997] FCA 918 (24 June 1997) to the extent that the Tribunal was entitled to consider as part of its assessment the problems encountered in dealing with the vague recollections of the applicant.
The respondent further submitted that the applicant had provided conflicting evidence as to his smoking habit noting that there had been a gradual systematic change in his testimony to fit within the legislation (Exhibits C & D cf T4/35).
In terms of the applicant's reasonable hypothesis it was submitted by the respondent that there was no connection with the applicant's smoking habit and operational service as the applicant's addiction had commenced prior to his operational service.
Consideration
The Tribunal accepts that the applicant's smoking habit, however arising, has caused the applicant to suffer moderately severe chronic airflow limitation as well as a significant degree of emphysema (T4/45). However the difficulty before the Tribunal is whether the applicant's smoking habit which led to these conditions maybe connected to the applicant's operational service.
Because of the operation of section 120A of the Act the hypothesis can only be accepted as a reasonable hypothesis if the applicant's circumstances fall within the criteria of the SoP relating to Chronic Bronchitis and Emphysema. The hypothesis will not be reasonable if it is obviously fanciful or untenable so that the claim must fail. The hypothesis will also not be reasonable if it fails the test of section 120A of the Act.
The steps to be followed were set out by the Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193. There the Court discussed the authorities and following dicta of the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408; 29 ALD 1, and Byrnes v Repatriation Commission (1993) 177 CLR 564; 30 ALD 1, but taking into account the enactment of section 120A and related provisions, the Full Court set out the course which must be taken in cases where section 120A (on the facts of this case) operates to require that the reasonableness of the hypothesis is to be assessed by reference to a Statement of Principles made under section 196B of the Act.
The Full Court said at 49 ALD 206:
"At the risk of being repetitious we would restate the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person as follows:
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 s196B(2) or (11)……
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 ss196B(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 s120(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."

In this case there is a relevant statement of principle in force so that this is not a case where there is no "SoP".

From the outset the Tribunal considers and accepts that the confused evidence of the applicant is attributable to the passage of time more than anything else. We are satisfied that the applicant commenced smoking in 1957 upon posting to HMAS Melbourne and that the applicant has sought to clarify a commencement date as to smoking to the best of his ability. This is distinguished from the situation which occurred in Davenport (supra) where the applicant in that instance had suffered a stroke and was no longer capable of clarifying his evidence.
The issue for the Tribunal to determine is whether the applicant's increase in smoking was connected to his operational service. In considering the hypothesis before us we are unable to find as a fact the date upon which the applicant started his smoking habit but are satisfied it occurred while he was aboard HMAS Melbourne.
In the context of the 10 pack-year requirement (a factor in the relevant SoP) the total of the applicant's periods of operational service is de minimus and as such does not fulfil the minimum factors that are required. We find that there is no related causative connection between the applicant's smoking and his eligible service.
By his own evidence the applicant said that he started smoking in apprehension of his posting overseas, which we are satisfied means the applicant started smoking prior to the commencement of his operational service; not because of his operational service and therefore the smoking cannot be accepted as war-caused. By the time he entered upon eligible service he was already a regular smoker. We are satisfied that the SoP has the effect of denying that the hypothesis is a reasonable hypothesis (s120(3)).
The Tribunal is satisfied the decision in relation to the assessment of General Rate pension for the applicant's accepted war-caused condition has been correctly assessed at 40% and will therefore affirm the decision under review.
For these reasons we are satisfied the decision under review should be affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Capt E T Keane OAM RAN Rtd (Member),
Dr K P Kennedy OBE (Member)
Signed:
  T G Lowther
   Associate
Date of Hearing  13 July 2000
Date of Decision  9 October 2000
Representative for the Applicant               Mr Payne
Representative for the Respondent         Mr Smith