King and Repatriation Commission - [2001] AATA 36

DECISION AND REASONS FOR DECISION [2001] AATA 36

ADMINISTRATIVE APPEALS TRIBUNAL)
Nº V99/1288
VETERANS' APPEALS DIVISION)

Re: BRYAN THOMAS KING

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
Date:             24 January 2001
Place:            Melbourne

Decision:The decision under review is set aside and the Tribunal substitutes a decision that the applicant's atherosclerotic peripheral vascular disease is war-caused.

(sgd) H.E. Hallowes
Senior MemberVETERANS' AFFAIRS — entitlement — atherosclerotic peripheral vascular disease — whether connected with eligible war service — whether smoked 5 cigarettes a day for 3 years before clinical onset — smoking ceased — whether clinical onset within 10 years — whether 5 cigarettes per day within 10 years
Veterans' Entitlements Act 1986 s.196B
Social Security Act 1947

Statement of Principles

Instrument N° 88 of 1995 concerning Atherosclerotic Peripheral Vascular Disease

Re Videan and Repatriation Commission (AAT 12627, 17 February 1998)
Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
Re Hannelly and Repatriation Commission (AAT 12256, 2 October 1997)

REASONS FOR DECISION

24 January 2001 Mrs H.E. Hallowes, Senior Member

There is only one issue in this matter. The issue is whether it can be said, on the balance of probabilities, that the applicant's atherosclerotic peripheral vascular disease is connected with the circumstances of his eligible war service. The applicant contended that it is so connected, the Repatriation Medical Authority having determined under subsection 196B(3) of the Veterans' Entitlements Act 1986 ("the Act"), Statement of Principles ("SoPs") Instrument N° 88 of 1995 concerning Atherosclerotic Peripheral Vascular Disease, which provides, so far as relevant:
1. . . .
(a)smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and, where smoking has ceased, the clinical onset has occurred within 10 years of cessation; or
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing. The applicant was represented by Mr I. Crisp, of counsel, and the respondent was represented by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs ("the department"). It was not in dispute that the applicant suffers atherosclerotic peripheral vascular disease.
On 26 March 1999 the applicant lodged a claim that his high blood pressure/hypertension, atherosclerotic peripheral vascular disease and severe chest pains were war-caused or defence-caused. His general practitioner, Dr R. James diagnosed hypertension, atherosclerotic peripheral vascular disease and coronary artery disease. The applicant noted that he started smoking in March 1943 and that he continued smoking "until about 1970". He advised that he was on sickness benefits until August 1982 when he was paid invalid pension under the Social Security Act 1947. In response to question 17 on the claim form, the applicant advised that he had been working at Tolga, North Queensland from March 1943 onwards delivering stores to various Army camps. To avoid being detected, he drove at night which invoked feelings of fear and a perpetual sense of uncertainty. To calm his nerves, he smoked cigarettes. His hypertension was diagnosed in 1953 and, due to his hypertension, he had to resign from his position as County Court Bailiff in 1980. He explained that where he had indicated that he had not smoked cigarettes on previous application forms, he meant to indicate that he had not smoked cigarettes during the past year.
On 21 April 1999 the applicant was advised that his claim that his atherosclerotic peripheral vascular disease was connected with the circumstances of his eligible war service had been refused, but that his other claims were still within an appeal period. The delegate of the Repatriation Commission noted that the applicant had submitted three different smoking histories: firstly, on 9 April 1996 he had indicated that he never smoked cigarettes; secondly, on 12 October 1998 he advised that he smoked cigarettes for five years during service; and thirdly, on 22 March 1999 he contended that he smoked cigarettes from 1943 until 1970.
The documents included a statement by the applicant's daughter, Ms E. Lincoln, dated 26 July 1999, who advised that she was aged 49 years and that she recalled the applicant smoking until the early 1970s, and that he was then a social smoker for several years. The applicant's brother advised on 25 July 1999 that the applicant joined the Australian Army in 1941 at the age of 16 years and that he had been a non-smoker. He noticed when the applicant came home on leave in 1943 that he was smoking fairly heavily. In later years he noted him smoking socially. The applicant's son, Mr G. King also advised that he recalled the applicant being a constantly heavy smoker and that over recent years he had smoked socially. Further letters supporting the applicant's contention that he had smoked were amongst the documents.
On 1 September 1999 the Veterans' Review Board ("the VRB"), having considered the above statements, affirmed the decision of the Repatriation Commission.
It was not in dispute between the parties that the applicant commenced smoking cigarettes during war service in 1943 and the evidence before the Tribunal so satisfies it. The only matter in contention arises under factor 1(a) (see paragraph 1(a)), whether the applicant, having ceased smoking, the clinical onset of his atherosclerotic peripheral vascular disease occurred within 10 years of the cessation. The evidence before the Tribunal focused on the date the applicant may have ceased smoking.
Mr D. North, general and vascular surgeon, gave oral evidence that the applicant first consulted him on 15 December 1998. He obtained a history that the applicant had commenced smoking in 1943 and that he ceased smoking in approximately 1988, having smoked more heavily in the 1970s and having reduced his habit until finally ceasing in 1988. Mr North said that the applicant's disease would have been apparent by the middle of 1998. When his medical report dated 3 August 1999, was drawn to his attention, in which Mr North had noted that the applicant smoked very little "until 1987 and none since", Mr North said that the record of 1987 would have been his inaccuracy. He noted that one of the risk factors for atherosclerotic peripheral vascular disease was a long history of cigarette smoking. Mr North's clinical notes, which were also before the Tribunal, disclosed that Mr North had recorded in the history he took on 15 December 1998, "smoked from 3/1943 ® 11/1988".
The applicant gave oral evidence that the date he ceased smoking cigarettes, 23 November 1988, was fixed in his mind because he had been at the RSL Club, Mulwala, on that day and he lost the sight in his right eye. He has never smoked cigarettes since that day. He returned to Geelong and attended the Geelong Hospital on 25 November 1988. He was then transferred to the Royal Melbourne Hospital. The applicant explained that he had advised he did not smoke cigarettes in his smoking questionnaire dated 9 April 1996, because he considered that his smoking habit had been self-inflicted and he thought his pay may be docked if he admitted that he had been a smoker. This is a somewhat surprising suggestion as the applicant had been in receipt of support under the Social Security Act since 1982. When the applicant's attention was drawn to his claim form with respect to ischaemic heart disease and hearing loss, lodged with the department on 15 October 1998, which recorded that he had only smoked cigarettes for five years in the Army, the applicant said that the document was not in his handwriting; he had never seen the document, and he noted that he had only been in the Army for three years. When asked to explain the record with respect to his smoking habit on the claim form with respect to his claim that his atherosclerotic peripheral vascular disease was connected with his eligible war service, lodged with the department on 26 March 1999, which recorded that he continued smoking cigarettes until about 1970, the applicant said that 1970 was the year his first wife had died and he had been confused. He then said that he could not explain why he had recorded 1970 as it was not an accurate record. It was put on the applicant's behalf to the VRB that he more or less continued smoking cigarettes consistently up until the time he gave up smoking in November 1988, although the applicant went on to tell the VRB that he had not had a cigarette since 1998. In explaining his evidence before the VRB to the Tribunal, the applicant said that he had been confused and he was not feeling well as he had been an in-patient at the Geelong Hospital, overcoming arrhythmia, immediately before appearing before the VRB. He thought he had better meet his commitment before the VRB, and go along with what was being put on his behalf by his advocate who was also confused. The applicant was asked to further explain other records before the Tribunal with respect to when he ceased smoking. He confirmed the record of his general practitioner, Dr James. Dr James's clinical notes record that the applicant ceased smoking cigarettes in 1988. The applicant also said that the note of Dr J. Amerena, cardiologist, dated 6 September 1999 that he was a non-smoker was accurate at that time.
The Tribunal also had before it a number of extracts from clinical notes from a number of hospitals where the applicant had been treated. The records that the applicant did not smoke cigarettes from the St John of God Hospital were all made in 1999. There was a record before the Tribunal from the Royal Melbourne Hospital dated 2 December 1988 which recorded "tobacco ceased 20 years ago". The applicant told the Tribunal that the entry was incorrect. He recalled being confused and frightened at the time he was admitted to the Royal Melbourne Hospital as he had been transferred from the Geelong Hospital by ambulance. The Geelong Hospital's clinical notes include a record made on 24 August 1999, "Cigs previously heavy: nil for 10 years". There is a record dated 25 November 1988 "ex-smoker" 20 years and a record dated 18 May 1986 where the box "no" is ticked with respect to tobacco use. The applicant could only explain those entries by reflecting that he had "knocked off" smoking for a short time and that he was confused and worried. Clinical notes from the Epworth Hospital, dated 24 June 1998, also record the applicant as a non-smoker. Clinical notes from the Ocean Grove Medical Clinic describe the applicant as having ceased smoking cigarettes in 1988.
As well as having the statement from the applicant's son Mr King before it, Mr King gave oral evidence to the Tribunal. He said that his father had visited him regularly between 1984 and 1988. He described his father as a smoker, but said that his father had given up smoking when he got sick.
The Tribunal had before it a letter from Mr S. Canny, accountant, dated 2 November 1999. Mr Canny also gave oral evidence to the Tribunal. He said that he has known the applicant for about 40 years. The applicant was smoking when he met him and he stopped smoking in approximately 1988 after his heart attack.
The applicant's daughter, Ms Lincoln also gave oral evidence to the Tribunal, describing her father as a social smoker. She said that she used to see her father about twice a week until 1996 and it was her memory that her father ceased smoking in 1988 because he was not smoking in 1989 at the time of her son's second birthday.
The applicant's brother, Mr King gave oral evidence to the Tribunal that he saw his brother quite frequently until the late 1940s. He could not recall his brother smoking before Christmas in 1988 but he said that he was smoking at a pre-Christmas gathering in 1987, but "then he had that trouble".
The applicant's second wife, Ms E. King told the Tribunal that they have been married for 27 years and that the applicant was smoking quite heavily when they met. He had given up smoking following his eye problem. She said that the applicant becomes confused under pressure and he forgets details. She attended the hearing at the VRB when the applicant had just been discharged from hospital.
Mr J. Collins, who had a licence to sell cigarettes, also gave oral evidence to the Tribunal to support his statement amongst the documents.
Mr Crisp put to the Tribunal that it should be satisfied, on the balance of probabilities, that the applicant satisfies factor 1(a) of the SoPs concerning Atherosclerotic Peripheral Vascular Disease and, because of the applicant's confusion, it should rely on the corroborative statements of witnesses.
It was Ms McCulloch's contention on behalf of the respondent that, because of discrepancies and inconsistencies in the evidence, the Tribunal should find, on the balance of probabilities, that the applicant did not satisfy factor 1(a). She referred the Tribunal to the decisions in Re Videan and Repatriation Commission (AAT 12627, 17 February 1998) and Re McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428 with respect to the term "clinical onset". In Re McLeod-Dryden the Tribunal said at paragraph 62 of its reasons for decision that it considered the term "clinical onset" means "the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition". The Tribunal in Re Hannelly and Repatriation Commission (AAT 12256, 2 October 1997) found that the "clinical onset" of the veteran's ischaemic heart disease did not occur until it was observed and treated. In any event, it was Mr North's evidence that the applicant's atherosclerotic peripheral vascular disease was apparent by mid-1998.
Ms McCulloch put to the Tribunal that the applicant provided his history with respect to his smoking to Mr North after he had lodged his claim for pension and when he knew about the 10-year period under the relevant SoPs. She pointed to the applicant as having provided a consistent history to the department with respect to his drinking habit and she wondered why his smoking history contained so many inconsistencies.
In order to satisfy the relevant SoPs the applicant must, on the balance of probabilities, have smoked five cigarettes per day for at least three years before the clinical onset of his atherosclerotic peripheral vascular disease in 1998. On the evidence before it, the Tribunal has no doubt with respect to that aspect of factor 1(a). The Tribunal also finds that the applicant ceased smoking. That is his evidence. The Tribunal is further satisfied that the applicant probably had his last cigarette within 10 years of the clinical onset of his disease. The oral evidence before the Tribunal points to that finding although it is of concern to the Tribunal that some of the clinical notes paint a different picture. What is problematical is whether the applicant was smoking 5 cigarettes per day within the 10 years provided under factor 1(a) and whether or not the factor so requires. On the evidence before the Tribunal, it appears that it is more likely than not that the applicant smoked at least 5 cigarettes per day for at least 3 years, but that he was smoking very few cigarettes during the period before he ultimately ceased smoking in November 1988.
The Tribunal considers that it should place no weight on the claim form dated 15 October 1998, which is not in the applicant's handwriting. It does however place more weight upon the clinical history taken by his general practitioner who recorded that the applicant's habit ceased in 1988. The Geelong Hospital's clinical notes record a previously heavy smoking habit but that the applicant had not smoked for 10 years, but this record was not made until August 1999. Further evidence in the Geelong Hospital's clinical notes point to the applicant as not being a heavy smoker after the death of his first wife. It appears more likely that he continued to have a cigarette on social occasions for a number of years before he finally gave up smoking in November 1988.
Factor 1(a) of Instrument N° 88 of 1995 now provides a 10 year period within which clinical onset of atherosclerotic peripheral vascular disease must occur if smoking has ceased. It does not quantify the number of cigarettes per day a veteran must smoke within that period. In the circumstances of this application the Tribunal has decided, that, as the SoPs makes no reference to the extent of a veteran's smoking habit during the 10 years immediately prior to cessation of smoking to satisfy the SoPs, the applicant satisfies the SoPs as long as he smoked his final cigarette within the 10 year period. The Tribunal finds that he was smoking cigarettes until 23 November 1988. He continued to smoke on social occasions and the clinical onset of his atherosclerotic peripheral vascular disease occurred within 10 years of November 1988.
It is for these reasons that the Tribunal will set aside the decision under review and substitute a decision that the applicant's atherosclerotic peripheral vascular disease is war-caused.
I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd)      Catherine Thomas
              Personal Assistant
Date of Hearing:  21.09.00
Date of Decision:  24.01.01
Counsel for the Applicant:           Mr I. Crisp
Solicitor for the Applicant            Messrs Geoffrey Tobin
Solicitor for the Respondent        Ms J. McCulloch, Departmental Advocate