Lyons and Repatriation Commission

[2005] AATA 471

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 471

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/1055

VETERANS'     APPEALS      DIVISION

Re:         HILARY IVOR LYONS

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             25 May 2005

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - oesophageal reflux disease - ischaemic heart disease - smoking - whether service‑caused

Veterans’ Entitlements Act 1986 ss 68(1), 70(5), 120B, 120(4), 196B(5), 196B(14)

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

25 May 2005  G.D. Friedman, Member

1.      This is an application by Hilary Ivor Lyons (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 30 August 2004.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 2 June 2004 to refuse a claim for disability pension for gastro-oesophageal reflux disease and ischaemic heart disease, because the conditions were not service-caused.

2.      At the hearing on 26 April 2005 Mr B. Turner, an advocate with the Returned & Services League of Australia, represented the applicant and Mr R. Douglass, an advocate with the Department of Veterans’ Affairs (the Department), represented the respondent.

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), plus two exhibits (Exhibit A1 and A2) lodged by the applicant and four exhibits (Exhibits R1 to R4) lodged by the respondent.

BACKGROUND

4.      The veteran was born on 27 April 1947 in Malaysia, where his father, a British citizen, was working for the British Army as a civilian clerk.  The applicant arrived in Australia in 1965 and joined the Royal Australian Air Force (RAAF) in Perth on 23 August 1966.  After postings in South Australia, Victoria and New South Wales he served at the Butterworth RAAF Base in Malaysia from 26 June 1973 until 17 December 1975.  He served at various RAAF bases in Australia before his discharge with the rank of warrant officer on 31 May 1989.  The applicant’s service from 7 December 1972 constitutes eligible service in accordance with the Veterans’ Entitlements Act 1986 (the Act).

5.      On 1 March 2004 the applicant lodged a claim for hearing loss and tinnitus, tinea, diabetes, heart problems, gastric reflux and rash problems on body.  On 2 June 2004 the respondent accepted liability for bilateral sensorineural hearing loss, bilateral tinnitus and tinea pedis as being defence-caused, denied liability for the other conditions, and granted pension at 30 per cent of the general rate.  On 16 September 2004 the applicant lodged an application with the Tribunal for review of the decision of the VRB rejecting gastro‑oesophageal reflux disease and ischaemic heart disease.

6.      The issue before the Tribunal is whether the applicant’s gastro‑oesophageal reflux disease and ischaemic heart disease were service‑caused as a result of cigarette smoking by the applicant during his posting to Malaysia from 1973 to 1975.

EVIDENCE

7.      In a medical report on the applicant dated April 1982 (Exhibit R1) an RAAF nurse recorded: Smoking-30 cigs/day for 16 yrs.  In a medical report dated 22 April 1987 (T3) an RAAF nurse recorded: Smoking: 20 cigs day for 21 yrs.  In clinical notes made on 5 January 2004 (Exhibit R4 p42), when the applicant was admitted to  hospital following a heart attack, a doctor recorded: Smoker 25/day.  On 6 January 2004 (Exhibit R4 p49) a doctor recorded: Smoker: 25/dy for [about] 40 yrs.  On the same day a nurse recorded: Smoker 25/day and noted that the information was obtained from the applicant.  In a Claimant Report Cigarette Smoking (smoking questionnaire) dated 25 February 2004 (T4), completed by the applicant for the Department, he stated that he started smoking around 1966-67 when I first went into the RAAF because of peer pressure, and he smoked 20 cigarettes per day.  He also stated that his smoking habit changed in 1973-1974 to 30 to 40 cigarettes per day, and he gave as the reason: being away from family & friends.     

8.      In a written statement dated 4 July 2004 (Exhibit A1) the applicant said that he was a non-smoker before he enlisted in the RAAF, but was soon smoking because this was accepted as part of the normal lifestyle in the services.  He said that he was married in 1971, and his wife accompanied him to Malaysia in 1973.  He stated that he was assigned to the Transmitter Station at Butterworth as a junior corporal, and assisted with the provision of communications within Malaysia and between Malaysia and Australia.

9.      The applicant said that in 1974 the sergeant in charge of the Transmitting Station was injured in a motor vehicle accident and was sent back to Australia, and the applicant acted as the non-commissioned officer in charge of the Station, assuming responsibility for the efficient management of the Station and its personnel, a role which he found daunting at the time.  He said that he and his wife came from close families, and he found that separation from that contact caused a strain during the relevant period, and for that reason he declined the opportunity to extend his posting in Malaysia.  He also stated that the end of the Vietnam war, involving evacuation of personnel and equipment from Saigon, resulted in long hours of work, and he rarely saw his wife and their young child.

10.     The applicant noted that the evacuation exercise, the ongoing level of responsibility and the dislocation from families caused him considerable stress, resulting in an increased dependency on cigarettes.  He said that his smoking increased to between 30 and 40 cigarettes per day and remained at that level for the rest of his service, as various promotions to the rank of warrant officer brought added responsibility and stress.

11.     In relation to his smoking level after discharge, the applicant stated that eventually he reduced the rate to approximately 20 plus per day, until he ceased smoking after suffering a heart attack in January 2004.  He stated that he lost confidence and now suffers from post traumatic stress disorder and depression, is receiving treatment and is no longer able to work.

12.     In oral evidence the applicant stated that in Malaysia he smoked about a packet of cigarettes (20 to 25) per day until his heart attack, and that this figure was above the 10 to 15 cigarettes per day before the posting to Malaysia.  Under cross‑examination the applicant said that in addition to the stress of his duties at the Transmitting Station, the interrupted sleep resulting from the commitments to his new-born child and the separation from extended family contributed to his increased smoking rate.  He agreed that departmental documents showed that he had placed Malaysia first in his preferences for posting in 1973, and again in 1975 after his posting was completed.

13.     The applicant acknowledged that the posting to Malaysia was financially beneficial, the facilities (including home help) were attractive and that he was familiar with the lifestyle because he grew up in Malaysia.  He also acknowledged that Australian personnel had been withdrawn from Vietnam in 1972, but said that the end of the Vietnam war placed considerable responsibility on the communications facilities at the Transmitting Station during his posting to Malaysia.  He agreed that in his personnel files he had been assessed as suitable for promotion and had received favourable reports from his superiors for his work in Malaysia and in other postings.  He also agreed that he had sought a second posting to Malaysia, but was unsuccessful.

14.     In relation to the levels of smoking stated in the medical reports, the applicant said that he did not recall providing the information, but agreed that he had tried to give accurate information when asked.  In relation to the information in the smoking questionnaire, the applicant emphasised that the absence from extended family was significant, although he acknowledged that his parents were living in Western Australia and that several previous postings had also been away from his family and his wife’s family.   

15.     In a written statement dated 13 November 2004 (Exhibit A2) the applicant’s wife said that to the best of her recollection the applicant was smoking 15 to 20 cigarettes per day when they were married in 1971.  She stated that she noticed a significant increase in the level of the applicant’s smoking to possibly around 30-40 cigarettes a day during the posting to Malaysia, when the applicant felt the pressure of increased stress and responsibility following the departure of the sergeant in charge of the Transmitting Station.  She said that the Saigon evacuation exercise and the long separation from their families added to the overall situation in Malaysia, and they were both very pleased to return home at the end of the posting.

CONSIDERATION OF THE ISSUES

16. The relevant sections of the Act are s 70, s 120B and s 120(4). Section 70(1) of the Act provides that the Commonwealth is liable where incapacity or death arises from defence-caused injury or disease. The applicant rendered eligible defence service in accordance with s 68(1) of the Act, as he served a period of continuous full-time service as a member of the defence forces on and after 7 December 1972.

17. Section 70(5) provides for eligibility for pension:

(5)       For the purposes of this Act, the death of a member of the Forces ….. an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

…

(d)the injury or disease from which the member died, or is incapacitated:

(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;…

18. Section 120(4) of the Act relates to the standard of proof to be applied and provides that the standard is that of reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act and any applicable Statements of Principles (SoPs) issued by the Repatriation Medical Authority. Section 196B(14) of the Act states:

(14)     A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:

…

(b)it arose out of, or was attributable to, that service; or

…

(d)it was contributed to in a material degree by, or was aggravated by, 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;

…

For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence, of the necessary connections between service and injury or disease, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition.

19.     At the time of the applicant’s claim the applicable SoP for gastro-oesophageal reflux disease was N° 53 of 2002 and it is now N° 12 of 2005.  Pursuant to s 196B of the Act, clause 5 of the SoP provides that:

5.The factors that must exist before it can be said that, on the balance of probabilities, gastro-oesophageal reflux disease or death from gastrooesophageal reflux disease is connected with the circumstances of a person’s relevant service are:

The relevant factor in SoP N° 53 of 2002 is:

5.(c)     smoking at least 10 cigarettes per day or the equivalent thereof in other tobacco products, and having smoked at least two pack years of cigarettes or the equivalent thereof in other tobacco products, at the time of the clinical onset of gastro-oesophageal reflux disease;

Paragraph 8 of the SoP states:

"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 7 300 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 7 300 cigarettes, or 7.3kg of smoking tobacco by weight.  Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

The relevant factor in SoP N° 12 of 2005 is:

5.(c)     smoking at least twenty cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least six months immediately before the clinical onset of gastrooesophageal reflux disease;

Paragraph 8 of the SoP states:

"cigarettes per day, or the equivalent thereof in other tobacco products" means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco, or one gram of cigar, pipe or other smoking tobacco by weight;

20.     The applicable SoP for ischaemic heart disease is N° 54 of 2003, and the relevant factor is:

5.(e)     where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within three years of cessation; or

(ii)smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 5 years of cessation;

21.     Mr Turner submitted that the applicant had a smoking habit of 10 to 15 cigarettes per day before his posting to Malaysia, and that this increased to 30 to 40 per day due to an increased stress level caused by an immediate elevation in responsibility at the Transmitting Station following the injury to the sergeant, and an increased work responsibility due to the Saigon evacuation, while the applicant was in Malaysia.  Mr Turner referred to Repatriation Commission v Tuite (1993) FCR 540 and stated that the applicant did not smoke before joining the RAAF, and the circumstances of his service, such as the availability of cheap cigarettes in Malaysia, contributed to a rate of smoking that was higher than if the applicant was engaged in a civilian occupation.

22.     Mr Douglass submitted that the applicant’s smoking history, as recorded by medical personnel over a number of years after consulting the applicant, was consistent at a level of about 25 cigarettes per day, and that there was no independent corroborative evidence of an increase during the applicant’s posting to Malaysia.  He also referred to the reasons given by the applicant in the smoking questionnaire for an increase in smoking; and he submitted that being away from family and friends was not consistent with the overall evidence.  He also pointed out that the reasons did not include mention of increased stress arising from service in Malaysia.  Mr Douglass submitted that there had been no increase in the applicant’s smoking level in Malaysia, and even if there was an increase, it was not related to eligible service.

23.     In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing.  The Tribunal must form an opinion whether the contention raised by the applicant fits within, or is consistent with, a factor set out in the SoPs.  If the contention fails to fit within the template, the claim will fail.

24.     The Tribunal notes that in Kattenberg v Repatriation Commission (2002) 73 ALD 365 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated (at 374):

…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service.  The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service.  Accordingly, it fell into error in its application of SoP 130 of  1996.

25.     There was no dispute between the parties, and the Tribunal finds, that the applicant was a non-smoker before he joined the RAAF.  Similarly, there was no dispute that, in applying the SoPs, the Tribunal may take into account the SoP that is the most favourable to the applicant; which in the case of gastro-oesophageal reflux disease is SoP N° 53 of 2002.  The Tribunal finds that the applicant satisfies the level of smoking required in factor 5(c) of SoP N° 53 of 2002 and in factor 5(e) of SoP N° 54 of 2003, concerning ischaemic heart disease.

26.     The Tribunal notes the applicant’s evidence in Exhibit A1 and his wife’s evidence in Exhibit A2 that his smoking rate increased to 30 to 40 cigarettes per day in Malaysia.  This is inconsistent with his oral evidence to the Tribunal in which he stated that his smoking increased from a level of 10 to 15 cigarettes per day in 1966‑1967 to 20 to 25 per day until he ceased smoking in 2004.  A rate of approximately 25 per day since 1966 is consistent with the smoking levels recorded by medical personnel in 1982, 1987 and on several occasions in 2004, based on information that was provided by the applicant at the time.  On the basis of all the material the Tribunal finds that the applicant had a well-established smoking habit of about 25 cigarettes per day from 1966 (before his period of eligible service) until he ceased smoking in 2004.

27.     Therefore, the Tribunal finds that there was no increase in the applicant’s level of smoking during his service in Malaysia.  Consequently, the Tribunal accepts the submission from Mr Douglass and is reasonably satisfied that there is no temporal or causal connection between the applicant’s level of smoking and his eligible service.  It follows that the applicant’s contention does not fit the template and the claim cannot succeed.  For this reason there is no necessity for the Tribunal to make findings about the effect, if any, of the circumstances of the applicant’s responsibilities at the Transmitting Station, or other aspects of his service in Malaysia, on his smoking habit.

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  26 April 2005

Date of decision:  25 May 2005
Advocate for the applicant:          Mr B. Turner, Returned Services League
Advocate for the respondent:       Mr R. Douglass
Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs