LYLE TOWNSEND and REPATRIATION COMMISSION - [2013] AATA 335

[2013] AATA 335

Division VETERANS' APPEALS DIVISION

File Number

2012/2143

Re

LYLE TOWNSEND

APPLICANT

And

REPATRIATION COMMISSION

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 24 May 2013

Place
Brisbane

The Tribunal:
(1) sets aside the decisions under review in relation to depressive disorder and diabetes mellitus; substitutes its decisions that those conditions are defence- caused in accordance with s 70 of the Veterans' Entitlement Act 1986 (Cth); that the veteran is entitled to receive a pension for associated incapacity with effect from 17 October 2010; and that the matter of assessment is remitted to the Repatriation Commission; and
(2) affirms the decisions under review in relation to alcohol dependence, erectile dysfunction and chronic bronchitis and emphysema.
……………[SGD]………………………
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Defence service with Australian Army – Depressive disorder – Diabetes mellitus – Statements of Principles – Clinical onset – Experiencing a category 1B stressor – Conditions caused by defence service – Decisions set aside and substituted – Matter of assessment remitted to Repatriation Commission
VETERAN’S AFFAIRS – Pensions and benefits – Defence service with Australia Army – Alcohol dependence – Erectile dysfunction – Chronic bronchitis and emphysema – Clinical onset – Conditions not caused by defence service – Decisions under review affirmed
LEGISLATION
Veterans' Entitlement Act 1986 (Cth) ss 14, 70, 120, 120B
CASES
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Smith (1987) 15 FCR 327
SECONDARY MATERIALS
Statement of Principles: Instrument No. 31 of 2004
Statement of Principles: Instrument No. 18 of 2005
Statement of Principles: Instrument No. 28 of 2008 as amended by Instrument No. 41 of 2010
Statement of Principles: Instrument No. 2 of 2009
Statement of Principles: Instrument No. 90 of 2011
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND

Lyle Townsend (the veteran) served in the Australian Army (the Army). On 17 January 2011, he lodged a claim under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (the Act) for a pension on the basis that certain conditions from which he suffers were related to his Army service in accordance with s 70 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 18 May 2011 and by the Veterans’ Review Board on 9 March 2012.
SERVICE
The veteran’s Army service was from 12 May 1971 until 17 November 1981. He rendered defence service in accordance with s 70 of the Act from 7 December 1972 until his discharge.
CAUSATION
Section 70(1) of the Act provides that, where a member of the forces is incapacitated from a defence-caused injury or disease[1], the Commonwealth is liable to pay pension to the member by way of compensation for incapacity associated with that injury or disease. The criteria of causation are set out in s 70(5) of the Act and, accordingly, the disease is taken to be defence-caused if it arose out of, or was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading LYLE TOWNSEND and REPATRIATION COMMISSION

Details

AGLC: LYLE TOWNSEND and REPATRIATION COMMISSION [2013] AATA 335
Case: [2013] AATA 335
Decision Date: 24 May 2013

CaseChat Overview and Summary

Lyle Townsend sought review of decisions made by the Repatriation Commission concerning his eligibility for a pension under the Veterans' Entitlements Act 1986 (Cth). The primary issues before the Tribunal were whether certain medical conditions claimed to be caused by his service in the Australian Army were, in fact, service-related. Specifically, the conditions in question included depressive disorder, diabetes mellitus, alcohol dependence, erectile dysfunction, chronic bronchitis, and emphysema. The Tribunal was required to determine whether these conditions met the criteria set out in the relevant Statements of Principles.

The Tribunal carefully examined the evidence and submissions from both sides. It concluded that the veteran's depressive disorder and diabetes mellitus were indeed caused by his defence service, as they met the conditions outlined in the Statements of Principles. The Tribunal found that the veteran experienced a category 1B stressor during his service, which contributed to the onset of these conditions. Conversely, the Tribunal determined that alcohol dependence, erectile dysfunction, chronic bronchitis, and emphysema were not caused by his defence service. The Tribunal held that the veteran's smoking habit predated his service, and the increase in smoking during service was not directly related to it. Consequently, these conditions did not meet the criteria for service-related pension eligibility.

In light of its findings, the Tribunal set aside the decisions concerning depressive disorder and diabetes mellitus and substituted its own decisions, finding these conditions to be defence-caused. The Tribunal remitted the matter of assessment to the Repatriation Commission for further consideration and ordered that the veteran is entitled to receive a pension for associated incapacity. The decisions regarding alcohol dependence, erectile dysfunction, chronic bronchitis, and emphysema were affirmed as they did not meet the necessary criteria for service-related pension eligibility.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Williams submitted that the veteran’s alcohol dependence developed during and after his Singapore service but only through the ready availability of it and the opportunity to indulge in its consumption. He submitted that it was unrelated to his Army service. As to the veteran’s smoking habit, he submitted that this was a matter of personal choice by him which he took up, in particular, in an association with his alcohol consumption. His submission was that it was not service-related and that the conditions which developed as a consequence of smoking were not related to the veteran’s defence service. This included diabetes mellitus and chronic bronchitis and emphysema. EVIDENCEThe veteran The veteran’s evidence was that, after recruit training, he was posted to Artillery where he gained experience with 25 pound and 105mm Howitzer guns. This continued until he was posted to 106 Battery in Singapore in 1972 where he served for 20 months. There, he was required to undertake live firing exercises in Malaya near the Thai border for up to six weeks at a time. An element of his duties there which he found stressful was carrying out the role of a “pistol gun”. This involved a gun crew of seven men transporting their gun to a remote bush setting and firing a round into bushland in order to trigger retaliatory gun fire from an enemy force. After the gun was fired, the crew would wait for a period to see if there was a response. In the event that there was, the other guns were to home in on the enemy position. It was a task rotated through the group and the veteran’s crew performed the task on two occasions. At no stage was an enemy response elicited. Before enlisting in the army, the veteran rarely drank alcohol and seldom smoked cigarettes. That soon changed and he began to attend the mess in the evenings with other soldiers. As his drinking increased, so did the level of smoking. Both habits increased in intensity when he was posted, in July 1972, to Singapore, because of availability and low cost. The veteran always volunteered to stay back after range sessions to conduct maintenance on the guns and did this because he did not wish to return to Singapore and also because he was able to drink beer at the range. When in Singapore, he would attend the mess each night for drinks and, during extended leave periods, also took part in the many social functions which could last for days at a time. He smoked heavily during these sessions and estimated that he trebled the number of cigarettes that he had smoked before being posted to Singapore. He also smoked a pipe and reserved that for the evenings when he was at home. His drinking and smoking continued even after his wife came to Singapore, about five weeks after the veteran did. On return to Australia in 1973, the veteran was posted to 8/12 Medium Regiment and completed a course on destruction of “blinds” which was a reference to unexploded ordnance. He was then posted to DSU Liverpool Range Control where he was responsible for range activities, which included training for civilians in the Commonwealth Police and security staff in the Commonwealth Bank. His main work was in destroying blinds and he found this stressful as his team would be involved in 100 or so destructions each week. He recalled an occasion when the strength of the blast from an aircraft bomb knocked him off his feet even though he was at what was supposed to be a safe distance. He continued to drink alcohol excessively and smoke cigarettes heavily during this period and he was aware that, during the years in Singapore and after returning to Australia, his marriage suffered because of his alcohol consumption.

Decision

Reasons for decision

The relevant factor in the Statement of Principles for this condition requires defence-caused cigarette smoking of at least 10 pack years of cigarettes before its clinical onset. While Dr Rudolphy noted the presence of the condition in 2007, Dr Simpson concluded that the veteran had a mild permanent airflow limitation in 2002. He related it to cigarette smoking. However, for the reasons outlined above, I am reasonably satisfied that the veteran’s smoking habit was well established by the commencement of his defence service and that its continuation or increase was unrelated to it. It follows that the requirements of the Statement of Principles are not satisfied and the veteran’s chronic bronchitis and emphysema is not defence-caused.DECISION The Tribunal:(1)sets aside the decisions under review in relation to depressive disorder and diabetes mellitus; substitutes its decisions that those conditions are defence-caused in accordance with s 70 of the Veterans' Entitlement Act 1986 (Cth); that the veteran is entitled to receive a pension for associated incapacity with effect from 17 October 2010; and that the matter of assessment is remitted to the Repatriation Commission; and (2)affirms the decisions under review in relation to alcohol dependence, erectile dysfunction and chronic bronchitis and emphysema.

Ratio Decidendi

Legal Principle Established

Abnormal emotional stability is noted in the veteran’s service medical records on 28 March 1978 although the associated description is that he was “much happier in his new job” and that his alcohol intake had reduced. A Medical History Questionnaire, dated 23 October 1981, describes no nervous or mental illness.[21]PROCEDURE FOR CONSIDERATION[21] See Exhibit 1, T-documents, pp. 12 and 13 respectively. Statements of Principles The Statements of Principles relevant to the veteran’s claim, the factors relied upon and the associated definitions are: Instrument No 28 of 2008[22] for depressive disorder[22] As amended by Instrument No 41 of 2010 in a manner not material to this matter.(a) for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only, …(ii) experiencing a category 1B stressor within the two years before the clinical onset of depressive disorder; "a category 1B stressor" means one of the following severe traumatic events: (a) being an eyewitness to a person being killed or critically injured; "an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident; Instrument No 90 of 2011 for diabetes mellitus(b) for type 2 diabetes mellitus only,…(xi) having depressive disorder, bipolar disorder or schizophrenia at the time of the clinical onset of diabetes mellitus; Instrument No 18 of 2005 for erectile dysfunction (a) having a clinically significant mood disorder with depressive features or a clinically significant anxiety disorder at the time of the clinical onset of erectile dysfunction; or(b) smoking at least fifteen pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of erectile dysfunction; or…(h) having diabetes mellitus at the time of the clinical onset of erectile dysfunction; or…(p) having alcohol dependence or alcohol abuse at the time of the clinical onset of erectile dysfunction;“clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner.“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;Instrument No 2 of 2009 for alcohol dependence(a) having a clinically significant psychiatric condition at the time of the clinical onset of alcohol dependence or alcohol abuse; (b) experiencing a category 1A stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; or (c) experiencing a category 1B stressor within the two years before the clinical onset of alcohol dependence or alcohol abuse; "a category 1A stressor" means one or more of the following severe traumatic events: (a) experiencing a life-threatening event; (b) being subject to a serious physical attack or assault including rape and sexual molestation; or (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured; "a category 1B stressor" means one of the following severe traumatic events: (a) being an eyewitness to a person being killed or critically injured; (b) viewing corpses or critically injured casualties as an eyewitness; (c) being an eyewitness to atrocities inflicted on another person or persons; (d) killing or maiming a person; or (e) being an eyewitness to or participating in, the clearance of critically injured casualties. “clinically significant” means sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, counsellor or general practitioner."an eyewitness" means a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident; Instrument No 31 of 2004 for chronic bronchitis and emphysema(a) 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;“pack years of cigarettes, or the equivalent thereof in other tobacco products” means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;Clinical Onset

Division	VETERANS' APPEALS DIVISION
File Number	2012/2143
Re	LYLE TOWNSEND
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	24 May 2013
Place	Brisbane