McFarlane and Repatriation Commission
[2008] AATA 832
•17 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 832
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/0390
VETERANS' APPEALS DIVISION ) Re KEVIN JOHN McFARLANE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr M E C Thorpe, MemberDate17 September 2008
PlacePerth (Heard in Sydney)
Decision The Tribunal varies the decision of the Veterans’ Review Board, dated 17 January 2007, by changing the description of the applicant’s condition from “chronic obstructive pulmonary disease” to “chronic bronchitis and emphysema”, but otherwise affirms that decision.
.......[sgd S D Hotop]......
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from October 1966 to December 1973 – applicant rendered operational service 18-25 November 1968 – applicant smoked cigarettes from October 1966 to September 2007 – applicant suffers from chronic bronchitis and emphysema – Statement of Principles (SoP) – material before Tribunal raises hypothesis that applicant’s chronic bronchitis and emphysema connected with operational service – raised hypothesis not upheld by SoP – raised hypothesis not a reasonable hypothesis – Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that applicant’s chronic bronchitis and emphysema war-caused – applicant’s chronic bronchitis and emphysema not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning Chronic Bronchitis and Emphysema (Instrument No 30 of 2004)
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Deledio (1998) 83 FCR 82Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
17 September 2008 Deputy President S D Hotop
Dr M E C Thorpe, MemberIntroduction
1. Kevin John McFarlane (“the applicant”) served in the Royal Australian Navy (“RAN”) from 22 October 1966 to 8 December 1973. During his RAN service he rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 18 November 1968 to 25 November 1968, and “defence service” (other than “hazardous service”), for the purposes of the VE Act, from 7 December 1972 to 8 December 1973.
2. On 11 November 2005 the applicant lodged with the Department of Veterans’ Affairs a claim for a disability pension under the VE Act in respect of the following disabilities which he claimed were war-caused or defence-caused:
· “hearing problems”;
· “chronic bronchitis” and “breathing problems”; and
· “solar skin damage”.
On 17 November 2005 the applicant lodged an additional claim in respect of “ischaemic heart disease” which he also claimed was war-caused or defence-caused.
3. On 26 May 2006 a delegate of the Repatriation Commission (“the respondent”) decided that:
· the applicant does not suffer from “hearing problems” or “ischaemic heart disease” or any other cardiac disease;
· the applicant suffers from “non melanotic malignant neoplasm of the skin of the right leg” and that condition is service-related;
· the applicant suffers from “chronic obstructive pulmonary disease” but that condition is neither war-caused nor defence-caused and is accordingly not service-related.
4. On 17 January 2007 the Veterans’ Review Board (“VRB”) consented to the withdrawal by the applicant of his application in respect of “hearing problems” and “ischaemic heart disease”, and affirmed the decision of the delegate of the respondent in respect of “chronic obstructive pulmonary disease”.
5. On 19 February 2007 the applicant applied to the Tribunal for review of the decision of the VRB regarding his application in respect of “chronic obstructive pulmonary disease”.
The Issues and The Tribunal’s Determination
6. The issues for the Tribunal’s determination are:
· whether the applicant suffers from chronic obstructive pulmonary disease; and, if so
· whether that condition is “war-caused” for the purposes of the VE Act.
The Tribunal notes that the applicant did not contend that that condition is “defence-caused” for the purposes of the VE Act.
7. For the reasons which follow, the Tribunal has determined that the applicant relevantly suffers from chronic bronchitis and emphysema but that those conditions are not “war-caused” for the purposes of the VE Act.
The Evidence
8. The evidence before the Tribunal comprised:
· the “T Documents” (T1-T17, pp 1-88) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· various documents tendered by the applicant (Exhibits A1-A3) and by the respondent (Exhibits R1-R6); and
· the oral evidence of the applicant and of Professor Richard Mattick.
The applicant’s evidence
9. The applicant’s evidence, comprising his written statements dated 22 January 2008 and 28 September 2007 (Exhibits A1 and A2, respectively) and his oral evidence, may be summarised as follows:
·his first posting after enlistment in the RAN was at HMAS Cerberus for basic training for a period of 3 months from 22 October 1966 to 23 January 1967;
·he commenced smoking tobacco during his posting at HMAS Cerberus because of peer pressure and his wanting to be accepted by his fellow trainees;
·during that period he probably smoked 5-10 cigarettes per day and possibly up to 15 cigarettes per day;
·by the date of his next posting at HMAS Queenborough on 2 February 1967 he was a “regular smoker” and during that 6 months’ posting he smoked a packet of 20 cigarettes per day;
·he was then posted back to HMAS Cerberus on 21 August 1967 for a 2-week period of intensive radio operator training which he found “very challenging” and which made him feel at times that his “brain would explode from trying to cram information in”, and he smoked 20 or more cigarettes per day in that period;
·on 14 September 1968 he was posted to HMAS Duchess as a radio operator and he gradually increased his cigarette consumption to about 25 per day during the period September – October 1968 when HMAS Duchess was deployed in the Far East;
·he further increased his cigarette consumption to “30 plus” per day when he was informed, shortly after HMAS Duchess departed from Singapore on 18 November 1968, that the ship was travelling to Vietnam as an escort for HMAS Sydney (the Tribunal notes that HMAS Duchess arrived in Vung Tau Harbour, Vietnam on 20 November 1968);
·that increase in his cigarette consumption was due to his feeling very apprehensive about going to Vietnam and stress because of his job as a radio operator;
·after leaving Vung Tau Harbour in Vietnam HMAS Duchess arrived in Hong Kong on 25 November 1968 and he was then smoking about 2 packets of 20 cigarettes each per day, and he continued to smoke about 2 packets per day until his discharge in December 1973 and thereafter until December 1975;
·he subsequently reduced his cigarette consumption to 20 per day and continued to smoke about 20 cigarettes per day until 1 September 2007 when he quit smoking, and he has not smoked cigarettes since that date.
The medical evidence
Professor Richard Mattick
10. Professor Mattick is Professor of Drug and Alcohol Studies, and Director of the National Drug and Alcohol Research Centre, in the Faculty of Medicine at The University of New South Wales. He confirmed that, at the request of the Department of Veterans’ Affairs, he examined the applicant on 28 September 2007 and prepared a report on that date regarding that examination.
11. In his report of 28 September 2007 (Exhibit R3) Professor Mattick recorded the applicant’s “lifetime smoking history” as follows:
“ 6. LIFETIME SMOKING HISTORY:
6.1I inquired when he first smoked tobacco. He said this occurred when he was at HMAS Cerberus on basic training. He explained that he would borrow between one and five cigarettes per day from other sailors, typically Rothmans cigarettes. He started purchasing a pack of cigarettes to be able to repay the favour to the other sailors.
6.2By the time he joined HMAS Queenborough he was smoking one 20 cigarette packet of Rothmans cigarettes per day. He said that on some occasions one packet could carry over to the next day, but on some days he would smoke the whole packet. He expected that he probably smoked up to 20 cigarettes but possibly as few as 15 or 17 per day.
6.3After joining HMAS Cerberus for the nine month course he increased his consumption to ‘say, 30 cigarettes a day … well into the second pack’ due to the stress of the work as he experienced it.
6.4He told me that after he joined HMAS Duchess he ‘upped the ante … basically between 30-40 cigarettes a day there’.
6.4.1I inquired about the reason for the increase in consumption and he said that this was ‘partially due to the job … and the job demands … and due to the fact that we were going to Vietnam … and basically in anticipation of what we’re going to be up against’.
6.3.2I asked whether there was any change in his consumption whilst on operational service in Vietnam waters and he said, ‘No … I basically smoked to that level until I stopped service … 30 or 40 cigarettes per day’.
6.4.3I inquired again about any change in consumption and he confirmed the pattern was that he increased his consumption to 30 or 40 cigarettes per day prior to travelling to Vietnam and continued at that level during and after his operational service.
6.4.4I inquired again about his report of increasing to smoke 30 or 40 cigarettes per day prior to operational service in Vietnam and continuing at the same rate thereafter and he confirmed this was correct.
6.5He said he smoked in this fashion, consuming 30 or 40 cigarettes per day, until 1973 apart from some increase when he was serving on HMAS Kuttabul [1970-1972, 1973]. He explained that when he was serving on HMAS Kuttabul doing 13-hour night watches, he developed the habit of purchasing two packets of 20 cigarettes from an outlet, and occasionally he found that he would have to go to a corner store to get another pack. He believed on that basis that he was smoking 40 or more cigarettes per day during that period on HMAS Kuttabul.
6.6After leaving service he continued to smoke up to two packets of cigarettes per day whilst he was establishing his business, McFarlane Transport. He did this for two years.
6.6.1Once the business was running after two or three years and he felt comfortable he returned to diving training, enjoying sport again, and decreased his consumption to 20 cigarettes per day, smoking Rothmans cigarettes.
6.6.2By the mid 1980s he increased his consumption, purchasing packets of 25 cigarettes in the form of the Winfield Blue brand. He thought that he was smoking approximately one packet of 25 cigarettes per day by the mid 1980s.
6.6.3His father was killed in 1983, and he believes he probably increased his consumption to approximately 30 cigarettes per day. However, by the time he moved to the Gold Coast he decreased his consumption to 25 or fewer cigarettes per day. He expected he was smoking between 20-25 cigarettes per day during that three year period.
6.7After returning to Sydney he thinks his consumption increased to 25-30 cigarettes per day and he smoked in that fashion until approximately ten years ago when, after an X-ray, he was diagnosed as suffering from emphysema.
6.8After he was told of his diagnosis of emphysema he decreased his consumption to 15-20 cigarettes per day, supplementing his nicotine intake by using nicotine patches as needed ‘on and off … for nearly eight years’.
6.9He decreased his consumption again two years ago when he reduced to eight to 15 cigarettes per day, explaining that he was concerned about health problems and lung infection. Through this period he also used nicotine gum sporadically.
6.10He ceased smoking approximately one month ago, telling me, ‘I had a really bad experience on a Sunday … the first of September … I was showering and drying off … and I got breathless.’ He said he intends to remain abstinent from tobacco.
6.11I inquired about his reasons for smoking and increasing smoking. He said that principally the increases in smoking were due to the opportunity associated with ‘… the longer working hours’.
6.11.1I checked the whole history with him and he confirmed the history above as being correct.
6.11.2I specifically also checked his comments that he had increased to 30 or 40 cigarettes per day prior to travelling to Vietnam and prior to operational service and he confirmed this and said that there was no increase associated with his time in Vietnam per se.”
Professor Mattick concluded as follows:
“ …
8.5Based on the information which he has provided to me today, there is no evidence that his operational service on HMAS Duchess materially increased his tobacco consumption.
…
8.6I have provided the history as Mr McFarlane related it to me. I have set out his smoking habits. There does not appear to be any connection between Mr McFarlane’s smoking habit, or any increase in his smoking habit, and his operational service. …
…
8.8In summary, Mr McFarlane smoked heavily prior to serving on HMAS Duchess. He increased his consumption on HMAS Duchess prior to operational service, there was no further increase during operational service or soon thereafter, the only increase being associated with long working hours on HMAS Kuttabul [in the period 1970-1973] …”
[The Tribunal notes that the period of the applicant’s “operational service” is correctly recorded in Professor Mattick’s report as the period from 18 November 1968 to 25 November 1968.]
12. In the course of his oral evidence Professor Mattick was referred to the applicant’s written statement, dated 22 January 2008 (Exhibit A1), in which it is stated:
“…
Shortly after my posting HMAS Duchess left Sydney and travelled to Singapore. We made a number of stops on the way to Singapore. I recall we stopped at Labuan and Manus Island. To the best of my recollection I was still smoking a pack of cigarettes a day, maybe more on some days when we arrived in Singapore. At this stage I had no knowledge that we were going to Vietnam.
HMAS Duchess left Singapore for Vung Tau. We were only told we were going to Vietnam after we left Singapore. Once we became aware the ship was travelling to Vietnam there were rumours on board as to the threats we might face when we got there. There was probably some embellishment of these threats by the sailors who had been to Vietnam previously. I was affected by the rumours on board and very apprehensive about what was going to happen when we arrived. I felt some stress because of my job as a radio operator. There was a lot of written material to learn and I was worried I wouldn’t be able to master all of this material. I recall on the trip from Singapore to Vung Tau this was the first time I regularly bought 2 packets of cigarettes each day and I am sure my smoking habit increased during this period. We rendezvoused with HMAS Sydney at sea and we arrived in Vung Tau about a week after leaving Singapore. We were in Vung Tau for about a week. There was some firing on to the shore and there was the normal security precautions such as scare charges and armed patrols on the deck. I worked pretty hard during this time and I found the work both demanding and stressful. Our sleeping quarters were down on the water line and I felt very vulnerable. I believe I continued to smoke more heavily at this time than prior to leaving Singapore.
After our time at Vung Tau we left for Hong Kong. This trip took a few days. I noticed I was drinking alcohol more heavily during this time. When we arrived in Hong Kong I was feeling what I would now describe as being depressed and tense. I found smoking helped calm my nerves. I was smoking heavily at this time, about 2 packs a day….
I continued to smoke about 2 packs a day until about 1975. Several years after leaving the Navy my smoking habit decreased over time to maybe a packet a day. I have continued to smoke till very recently with some variations in my habit over the years.”
Professor Mattick confirmed that he had read that statement and that its contents did not cause him to change the opinion expressed in his report of 28 September 2007. He added that the applicant’s consumption of tobacco across the period referred to in that statement was “fairly stable” and that the “overall pattern” of his smoking did not appear to have changed. Asked to comment on the matter of a person’s changing an established smoking habit, Professor Mattick stated:
“I think you need a prolonged alteration in your environment or opportunity. He’s working in a fixed environment, the smoking will be driven by a range of factors to do with shifts, to do with opportunity. It is also driven, which people tend to forget, very much by blood levels of nicotine and the consumption of nicotine is driven by the half life of the drug. People smoke 20 or 30 cigarettes per day because the half life of nicotine is about half an hour, and so to have a suitable blood level you need to have another cigarette. You don’t change smoking habits much in a day and most people who have a dependent habit are smoking somewhere between 15, 18 up to 30, 30 plus cigarettes a day, maybe 40. So I think you can’t change things easily in a day. It’s just something which changes over a longer time.” (Transcript, p 64)
Dr A B X Breslin
13. A report of Dr Breslin, Consultant Thoracic Physician, dated 18 September 2007, addressed to the Department of Veterans’ Affairs, was tendered in evidence by the respondent (Exhibit R6). Dr Breslin was not required by the applicant for cross-examination and he did not give oral evidence.
14. In his report Dr Breslin noted that he examined the applicant on 18 September 2007 and he summarised his “smoking history” as follows:
“… He says that he started smoking at the age of 22 in 1966 after he had joined the Navy and absolutely denies any smoking prior to joining the Navy. He says that for the first three months he smoked about five to ten cigarettes a day, then increased to twenty to thirty a day for nine months and then, that is about a year after joining the Navy, that is 1967, increased to forty a day which he maintained until about 1975. He then reduced to thirty a day and continued smoking that number until 2005 and then reduced to twenty a day and stopped smoking two weeks ago. He always smoked tailor-made cigarettes.”
Dr Breslin noted that the period of the applicant’s “operational service” was 18-25 November 1968 and that the period of his “defence service” was from 7 December 1972 to 8 December 1973, and he expressed the following relevant opinions:
“ …
3.His respiratory diagnosis is chronic bronchitis and emphysema. The symptoms of the emphysema date back twelve years, that is from approximately 1994 and his chronic bronchitis is of shorter duration than that.
4.There is no doubt about the chronic bronchitis in that he has cough and sputum most days for at least two years. There is no doubt about the emphysema as this is easily seen on CT scans. Both these respiratory conditions are causing severe airflow limitation and dyspnoea.
…
7.His chronic bronchitis and emphysema are due to his cigarette smoking. There is no doubt about this. The cigarette smoking that he did on operational service would have made a negligible contribution to his chronic bronchitis and emphysema. The cigarette smoking that he did during eligible service (sic) would have made minimal contribution to his chronic bronchitis and emphysema. The totality of the smoking on operational and defence service would not have been sufficient on its own to cause his chronic bronchitis and emphysema.
8.Over his life he would have smoked more than sixty pack years in total. His symptoms of chronic bronchitis and emphysema did not begin until around about 1994, that is nearly thirty years after he started smoking and he certainly would have smoked very much more than ten pack years by the time that his symptoms of chronic bronchitis and emphysema commenced.
9.Thus, he started smoking on service, smoked heavily throughout the majority of his life and certainly smoked more than ten pack years prior to the onset of his chronic bronchitis and emphysema. … As indicated above, the amount of smoking that he did on service would not have caused his chronic bronchitis and emphysema on its own; there would have been a negligible contribution from operational service, a minimal contribution from defence service and the major cause of his chronic bronchitis and emphysema is the smoking that he did after he left the Navy.
…”
Additional evidence
15. The material which is in evidence before the Tribunal also includes the following:
· a “Claimant Report – Cigarette Smoking” form dated 8 November 2005, signed by the applicant and lodged with the Department of Veterans’ Affairs in support of his claim for a disability pension, in which it is stated that:
-he first started smoking on a regular basis on 22 October 1966 and that he regularly smoked approximately 15 cigarettes per day at that time;
-a change in the amount of his cigarette consumption occurred in September 1968, the new amount of cigarettes then smoked by him being 30 cigarettes per day;
-the next change in the amount of his cigarette consumption occurred in February 1972, the new amount of cigarettes then smoked by him being 50 cigarettes per day;
-the next change in the amount of his cigarette consumption occurred in November 2005, the new amount of cigarettes then smoked by him being 30 cigarettes per day (T4, pp 11-12);
· the transcript of the applicant’s hearing before the VRB on 17 January 2007 in which it is recorded that the applicant stated that (inter alia);
-he started smoking cigarettes on 22 October 1966 when he joined the RAN and he then smoked about 15 cigarettes per day;
-there was a variation in his cigarette smoking in September 1968 when he increased to 30 cigarettes per day because of the stress of the radio operator job he was then doing;
-he continued to smoke cigarettes at about that rate until towards the end of his RAN service when he increased to 50 cigarettes per day (Exhibit R1);
· a written statement of the applicant, dated 3 December 2007, prepared by him in response to Dr Breslin’s report of 18 September 2007, in which it is stated (inter alia):
“ …
Much has been said of my smoking not increasing during my operational period in Vung Tau Vietnam. I find it hard to understand as I was chain smoking prior to, during (when possible) and afterwards. How I could have increased my smoking levels? (sic)
One thing that made smoking impossible while in Vung Tau was we were regularly at action stations for offshore bombardment, whenever this occurred a pipe would go over the ship’s broadcast system forbidding smoking and naked lights due to crewmembers handling ammunitions and armaments. During our deployment of eight days in Vung Tau we were obliged to wear number eights long sleeved shirts, denim trousers tucked into our socks and anti flash gear large gloves plus hoods. During these periods smoking would not only have been reckless but impractical and impossible as at action stations senior sailors were always in attendance so no chance for even a sneaky puff even if you wanted to.
…” (Exhibit R2);
· an extract from the Consolidated Library of Information and Knowledge, Department of Veterans’ Affairs, regarding ships and units allotted for duty in Vietnam, in which it is recorded that, in the period 18-25 November 1968:
-HMAS Duchess’ last port of call (before arriving in Vietnam) was Singapore on 18 November 1968;
-HMAS Duchess was in port in Vietnam on 20 November 1968;
-HMAS Duchess’ first port of call (after departing Vietnam) was Hong Kong on 25 November 1968 (Exhibit R5).
The Relevant Legislation
The VE Act
16. Section 9(1) relevantly provides:
“… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …
…”
The word “disease” is defined in s 5D(1) as follows:
“disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
Section 120, which deals with standard of proof, relevantly provides:
“(1)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.
Note:This subsection is affected by section 120A.
…
(3)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:
(a) that the injury was a war-caused injury … ;
(b) that the disease was a war-caused disease … ; or
(c) that the death was war-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.
Note:This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(3)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) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(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
…”
The Statement of Principles
17. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, the following relevant Statement of Principles (“SoP”) which is presently, and at all material times has been, in force:
· Statement of Principles concerning Chronic Bronchitis and Emphysema (Instrument No 30 of 2004).
That SoP relevantly states:
“…
Kind of injury, disease or death
2.(a) This statement of Principles is about chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema, either alone or in combination.
(b)For the purposes of this Statement of Principles,
(i)‘chronic bronchitis’ means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum for at least three months of each year for at least two consecutive years, where such mucus production is not attributable to another respiratory disease.
(ii)‘emphysema’ means a bilateral and diffuse respiratory tract disorder which is characterised by distension of airspaces distal to the terminal bronchiole with destruction of alveolar septa, and without obvious fibrosis. This definition excludes isolated emphysematous bleb and surgical, traumatic, unilateral, focal or localised emphysema, and Swyer-James syndrome (also known as MacLeod’s syndrome or hyperlucent lung syndrome).
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that chronic bronchitis and emphysema and death from chronic bronchitis and/or emphysema can be related to relevant service rendered by veterans, …
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting chronic bronchitis and emphysema or death from chronic bronchitis and/or emphysema with the circumstances of a person’s relevant service is:
(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
…
Other definitions
8.For the purposes of this Statement of Principles:
…
‘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;
‘relevant service’ means:
(a)operational service under the VEA; or
…”
Analysis and Findings
The relevant injuries/diseases
18. It is common ground that the applicant suffers from (relevantly) chronic bronchitis and emphysema and, on the basis of the abovementioned report of Dr Breslin, the Tribunal so finds. The Tribunal also finds that each of those conditions is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.
Are the applicant’s chronic bronchitis and emphysema war-caused diseases, within the meaning of s 9 of the VE Act?
19. This question is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of” the applicant’s operational service. If a relevant SoP, determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
20. For the purpose of determining whether the applicant’s chronic bronchitis and emphysema are war-caused diseases, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s chronic bronchitis and emphysema with the circumstances of his operational service?
21. The Tribunal, having considered the whole of the material before it, is of the opinion that that material raises a hypothesis connecting the applicant’s chronic bronchitis and emphysema with the circumstances of his operational service. That hypothesis, in general terms, is as follows:
· shortly after the commencement of the period of the applicant’s operational service on board HMAS Duchess on 18 November 1968, he was informed that HMAS Duchess was then sailing to Vietnam which caused him to feel apprehensive and anxious and, as a result, to increase the existing rate of his consumption of cigarettes, and he generally maintained that increased rate of cigarette consumption until December 1975 (although he thereafter reduced his rate of cigarette consumption) which resulted in his subsequently contracting chronic bronchitis and emphysema.
The relevant SoP
22. As previously mentioned, the Repatriation Medical Authority has determined a SoP concerning chronic bronchitis and emphysema. The relevant SoP, which is presently, and at all material times has been, in force, is Instrument No 30 of 2004 (set out in paragraph 17 above).
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s chronic bronchitis and emphysema with the circumstances of his operational service?
23. In accordance with s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s chronic bronchitis and emphysema with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP. The applicant submitted that the material before the Tribunal raised a hypothesis which accorded with clauses 4 and 5(a) of the relevant SoP and that that hypothesis was, accordingly, a reasonable hypothesis.
24. It is common ground that the material before the Tribunal points to:
· the clinical onset of the applicant’s chronic bronchitis and emphysema having occurred in approximately 1994 (see Dr Breslin’s report referred to in paragraph 14 above);
· the applicant’s having smoked at least five “pack years of cigarettes” (as defined in clause 8 of the relevant SoP) before the clinical onset of his chronic bronchitis and emphysema.
The Tribunal is of the opinion, therefore, that the hypothesis raised by the material before it accords with clause 5(a) of the relevant SoP.
25. The critical matter for the Tribunal’s consideration, however, is whether, in its opinion, the applicant’s having smoked “at least five pack years of cigarettes … before the clinical onset of” his chronic bronchitis and emphysema, for the purposes of clause 5(a) of the relevant SoP, is “related to” his operational service, for the purposes of clause 4 of that SoP.
26. Pursuant to 196B(14) of the VE Act, the applicant’s having smoked “at least five pack years of cigarettes … before the clinical onset of” his chronic bronchitis and emphysema will be “related to” his operational service if (relevantly):
“ (b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by … that service; …”
See Kattenberg v Repatriation Commission (2002) 73 ALD 365 at 367-368, 374.
27. There is material before the Tribunal which is consistent with the proposition that the applicant’s having smoked “at least five pack years of cigarettes”:
· did not arise out of,
· was not attributable to, and
· was not contributed to in a material degree by,
his operational service: see the report of Professor Mattick set out in paragraph 11 above. The Tribunal notes, on the other hand, the applicant’s evidence that he increased his daily cigarette consumption from 25 to “30 plus” cigarettes shortly after the commencement of his operational service on 18 November 1968, and by reason of the circumstances of that service which continued until 25 November 1968, and that he thereafter maintained that increased rate of consumption, rising to about 40 cigarettes per day, until December 1975, although he subsequently reduced his rate of consumption to about 20 cigarettes per day. The Tribunal also notes the additional material referred to in paragraph 15 above.
28. Having regard to the whole of the material before it, the Tribunal is of the opinion that that material, considered as a whole, is not consistent with the proposition that the applicant’s having smoked “at least five pack years of cigarettes” before the clinical onset of his chronic bronchitis and emphysema was attributable to, or was contributed to in a material degree by, or was otherwise “related to” (within the meaning of s 196B(14) of the VE Act), his operational service from 18 November 1968 to 25 November 1968. The material before the Tribunal is consistent with the proposition that the applicant had already developed a very substantial “chain-smoking” habit by the time of the commencement of his operational service and that he thereafter continued to be a “chain smoker” until at least December 1975. In the Tribunal’s opinion, the contribution made by the applicant’s operational service itself to his having smoked “at least five pack years of cigarettes” before the clinical onset of his chronic bronchitis and emphysema, as appears from the whole of the material before the Tribunal, was insignificant and immaterial. The Tribunal is of the opinion, therefore, that the material before it does not raise a hypothesis which accords, or is consistent, with clauses 4 and 5(a) (read together) of the relevant SoP. The Tribunal notes that no factor in clause 5, other than the factor set out in para (a), was relied on by the applicant or was applicable in this case.
29. Accordingly, the Tribunal, having considered the whole of the material before it, is of the opinion that that material does not raise a reasonable hypothesis connecting the applicant’s chronic bronchitis and emphysema with the circumstances of his operational service.
Conclusion
30. It follows, in accordance with s 120(3) of the VE Act, that the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s chronic bronchitis and emphysema are war-caused diseases, within the meaning of s 9 of the VE Act.
31. Pursuant to s 120(1) of the VE Act, therefore, the Tribunal concludes that the applicant’s chronic bronchitis and emphysema are not war-caused diseases, within the meaning of s 9 of the VE Act.
Decision
32. For the above reasons the Tribunal varies the decision of the VRB, dated 17 January 2007, by changing the description of the applicant’s condition from “chronic obstructive pulmonary disease” to “chronic bronchitis and emphysema”, but otherwise affirms that decision.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr M E C Thorpe, Member
Signed: .........[sgd E Jordan]..................
AssociateDate of Hearing 17 June 2008
Date of Decision 17 September 2008
Counsel for the Applicant Mr M VincentSolicitor for the Applicant Mr P Jones
Legal Aid, NSWRepresentative of the Respondent Mr T O'Reilly
Compensation and Review Branch Department of Veterans' Affairs
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