Linton and Repatriation Commission

[2006] AATA 609

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 609

ADMINISTRATIVE APPEALS TRIBUNAL          Nº V2004/1221

VETERANS’       APPEALS       DIVISION

Re:           GRAHAM ALEXANDER LINTON

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member

Date:10 July 2006

Place:Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe

Senior Member

VETERANS’ AFFAIRS – chronic bronchitis – smoking during service – exposure to funnel fumes and smoke – factors in SoP – date of clinical onset

Veterans' Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

10 July 2006  Mr B.H. Pascoe, Senior Member

1.      This is an application to review a decision of the respondent dated 3 February 2004 refusing a claim to have chronic bronchitis accepted as being related to war services.  This decision was affirmed by the Veterans’ Review Board (VRB) on 21 September 2004 which also amended the diagnosis to chronic obstructive bronchitis with an asthmatic component.

2.      At the hearing the applicant Mr G. A. Linton, was represented by Mr D. De Marchi, a solicitor.  The respondent was represented by Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs.

3.      Mr Linton was born on 2 August 1950.  He served with the Royal Australian Navy from 10 July 1966 to 31 July 1979.  His operational service was on HMAS Sydney involving service in Vietnam for a total of 59 days from 8 May 1969 to 30 May 1969, 17 November 1969 to 5 December 1969 and 16 February 1970 to 5 March 1970.  He has accepted war-caused disabilities of malignant neoplasm of the skin, bilateral sensorineural hearing loss and bilateral tinnitus with an entitlement to a pension of 40 per cent of the general rate.

4.      Mr Linton’s claims for acceptance of his respiratory problems have a long history.  He first claimed for a lung condition of sarcoidosis in 1978.  Another claim for that condition was made in 1990.  Both claims were rejected.  In 1995 he claimed for asthma and sarcoidosis and was again rejected.  In 1997 a further claim for breathing problems was rejected.  The 1995 decision was reviewed by the VRB in 1998 where the claim for sarcoidosis was withdrawn and the decision to reject asthma affirmed.  A further claim for sarcoidosis was made and rejected in 2000.  This decision was affirmed by the VRB in 2002 and further affirmed by this Tribunal in 2004.  Prior to that, the applicant sought review by this Tribunal of the decision rejecting the claim for asthma.  On 27 July 2000, the Tribunal emended the claim for asthma to chronic airflow limitation and found that the condition was war-caused.  On appeal by the respondent the Federal Magistrates’ Court set aside the decision of the Tribunal and affirmed the decision of the respondent to reject the claim on the grounds that the condition was not war-caused.  It is relevant to note that McInnis FM in that decision emended the claim from “asthma” to “chronic airflow limitation and/or chronic bronchitis”.

5.      Mr Linton was first fully diagnosed with sarcoidosis in 1978 although the abnormality was first noted in 1971 and subsequent examinations produced a provisional diagnosis.  The medical reports in 1978 state that he “complained of an occasional wheeze” and had a “smoker’s cough, non productive”.  He was advised to stop smoking and did so at that time.  The evidence of Mr Linton at this hearing and at prior hearings was that he commenced smoking in 1966 and by 1969 was averaging 30 cigarettes per day.  During each of his three trips to Vietnam, his smoking increased to 40-60 cigarettes per day but reverted to the 30 per day after each trip and until ceasing in 1978.

6.      As Mr Linton had operational service, s 120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.  Section 120(3) of the Act provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person.  As the claim was made after 1 June 1994, s 120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act.  In this case the relevant SoPs are:

·     Instrument Nº 73 of 1997 concerning chronic bronchitis and emphysema;

·     Instrument Nº 30 of 2004 concerning chronic bronchitis and  emphysema.

Each of the relevant SoPs set out the factors, one of which relate to the veteran’s service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.

The two factors relied upon by Mr Linton under the most beneficial of the two SoPs were factors 5(a) and 5(b) of Instrument No 30 of 2004.  These factors are:

(a)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; or

(b)being exposed to a respiratory tract irritant, resulting in signs and symptoms of acute and serious injury to the lower respiratory tract, within the ten years immediately before the clinical onset of chronic bronchitis and/or emphysema; or

…

Alternative factors relied upon were factors 5(f) and (g) which are in the same words but relating to the “clinical worsening” of the condition. In accordance with the steps set out in the decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at p.97, the material points to an hypothesis connecting the condition with service, there is a SoP in force and the hypothesis is within the template found in the SoP. However, the fourth step requires findings of fact and for the Tribunal to determine whether it is satisfied beyond reasonable doubt that those facts do not satisfy the factors within that template so as to provide the necessary connection with the veteran’s service.

7.      The claimed relationship to smoking can be disposed of briefly.  It must be said that it is somewhat surprising that Mr Linton was encouraged to pursue this argument.  It has been raised in prior applications to this Tribunal and in the appeal to the Federal Magistrates’ Court.  A pack year of cigarettes is defined as 20 cigarettes per day for a period of one calendar year, or 7300 cigarettes.  As stated earlier, the evidence of Mr Linton in each of the hearings including this one was that he increased his smoking by a maximum of 30 cigarettes per day for a maximum of 59 days of his operational service.  It is this increase only which relates to such service and amounts to a maximum of 1770 cigarettes.  Even the generous estimate of double that number, or 3540, by McInnis FM is less than 50 per cent of one pack year.  As found by McInnis FM there is simply no basis for the argument that Mr Linton satisfies this factor in the SoP.  For completeness it should be said that the evidence does not demonstrate on the balance of probabilities that his smoking which commenced in 1966 can be attributable to his eligible service.

8.      The reliance on factor 5(b) is based on the evidence of Mr Linton that he was exposed to smoke from the ship’s funnel in his role as a Tactical Operator (Signaller) and stationed on the Bridge and flag-deck.  He said that the smoke had a sulphur smell and “sooty” taste and caused “runny eyes” and a “raspy cough”.  He maintained that there were occasions when the smoke was so bad that he had to take shelter.  It was not clear from the evidence of Mr Linton whether he considered the smoke exposure as a problem while on HMAS Sydney in 1969 and 1970 or on HMAS Ibis between 1974 and 1976.

9.      The evidence of Captain J. C. Macdonald of Writeway Research Service was that HMAS Sydney was fuelled by Furnace Fuel Oil which contained heavier concentrations of sulphur and ash than the more refined distillates used later.  On that ship the flag-deck was situated aft of the bridge area and at the base of the funnel.  In the normal course the relative movement of smoke and fumes would be away from the ship.  In unusual circumstances, the ship’s course and speed relative to wind direction could cause the fumes and smoke to hover around the bridge and flag-deck area.  Capt. Macdonald said that this was known colloquially as “elephant’s breath” or “dragon’s breath”.  As this was unpleasant and uncomfortable, it was normal to adjust course and/or speed to create wind movement to clear the fumes.  He noted that Mr Linton’s operational service  on HMAS Sydney was when the ship was operating as a fast troop transport with scope to alter course so that it would have been unusual or exceptional for him to have been exposed to significant fumes or funnel smoke.  Mr Linton did not disagree with the evidence of Capt. Macdonald.  On balance, I cannot be satisfied that any brief exposure to funnel fumes or smoke can be said to satisfy the required factor.

10.     A further issue arises from the claim that Mr Linton satisfies factor 5(b).  This factor requires the clinical onset or, under factor 5(g), the clinical worsening, of chronic bronchitis to have been within 10 years of exposure to a respiratory tract irritant.  It was submitted for the respondent that the first diagnosis of chronic bronchitis was made by Professor Pain in 2003.  Prior to that date no respiratory physician or other doctor who had examined or treated Mr Linton had made any reference to such a diagnosis.  In particular, Dr May who treated Mr Linton in 1993 did not consider at that time that bronchitis would have been the likely cause of his airway obstruction being more likely associated with primary asthma or his known sarcoidosis.  Dr May noted in 1993 that there was “no sputum production”, a necessary factor in a diagnosis of chronic bronchitis.  Various medical records prior to that time and up to 1984 show him as having a “dry cough” and no sputum production.  Professor Pain accepted that he made no mention of bronchitis in a report in 1998 but said that he was concentrating on sarcoidosis at that time and it was possible that bronchitis was also present.  He accepted also that it was possible that the chronic bronchitis had developed over more recent years and that it was not possible to say when it commenced.

11.     On all the evidence of Professor Pain and reports of several respiratory physicians, I am satisfied that, while Mr Linton may now suffer from chronic bronchitis, he did not suffer from that condition prior to 1980 or ten years after his operational service.  It follows that he does not satisfy the required factor in the SoP.  Again, his eligible service was until 31 July 1979 and there can be no finding on the balance of probabilities that any current condition of chronic bronchitis can be attributed to exposure to fumes or smoke during that eligible service.

12.     Initially, Mr Linton was claiming special rate pension pursuant to s 24 of the Act.  As a result of the evidence before this Tribunal such claim was withdrawn at the hearing.

13.     It follows from the foregoing that the decision under review should be affirmed.

I certify that the thirteen [13] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B.H. Pascoe, Senior Member

(sgd)       Lydia Zozula

Associate

Date of Hearing:  22 May 2006 and 23 May 2006

Date of Decision:  10 July 2006
Advocate for the applicant:          Mr D. De Marchi
Solicitor for applicant:                  De Marchi & Associates

Advocate for the respondent:       Ms J. McCulloch

Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs