McLean and Repatriation Commission - [2001] AATA 645

DECISION AND REASONS FOR DECISION [2001] AATA 645

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1996/1371

VETERANS' APPEALS DIVISION       )
           Re      RHONDDA WINIFRED MCLEAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member, Mr A L Limbury, Member

Date12 July 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – widows pension – ischaemic heart disease – hypertension – clinical onset of the condition – whether condition meets the requirements of the relevant Statement of Principles – whether death of the veteran is related to war service – operational service – eligible war service - reasonableness of hypothesis to be assessed by reference to Statement of Principles

Veterans' Entitlements Act 1986, ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 9(1)(a), 11(1), 13(1)(a), (c), 14(1), (3), (4), 20, 30(1), 120(1), (3), (4), 120A(1), (3)
Statement of Principles concerning Ischaemic Heart Disease, No 85 of 1995
Statement of Principles concerning Hypertension, No 83 of 1995
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

12 July 2001 M J Sassella, Senior Member A L Limbury, Member

History of the application

On 27 April 1995 Rhondda Winifred McLean ("the Applicant") lodged with the Department of Veterans' Affairs ("the DVA") an informal claim for a war widow's pension (T5). Her husband, Douglas McLean ("the veteran"), had died of myocardial infarct on 13 March 1995.
On 13 June 1995 the Applicant lodged a formal claim form for a war widow's pension with the DVA (T7). Attached to the claim form were a number of supporting statements which will be examined later in these reasons. The veteran's death certificate was also attached. It was the Applicant's contention that her husband's death from a heart attack was caused by the stress and extreme hardship that he encountered in World War II whilst serving in New Guinea.
The veteran had several disabilities accepted as war-caused, viz malaria, intertrigo of groins and sensori-neural deafness (Section 37 Statement, folio 3) and had received 100% of the general rate Disability Pension.
On 28 July 1995 the Repatriation Commission ("the Respondent") refused the Applicant's claim that her husband's death was causally related to war service (T2).
On 7 August 1995 the Applicant lodged an application for review of the Repatriation Commission decision with the Veterans' Review Board ("the VRB") (T9). She reiterated her belief that her husband's death could be related to his service through the extreme stress that he suffered.
The decision under review
On 27 August 1996 the VRB affirmed the Respondent's decision of 28 July 1995 (T13). The VRB found that the veteran was a light smoker and that there was no evidence of any more than a very moderate smoking habit. Further there was no evidence that he smoked at least five cigarettes per day for at least three years before the clinical onset of ischaemic heart disease ("IHD"), and therefore factor 5(e) of the Statement of Principles ("SoP") was not met. There was no reasonable hypothesis that could be presented that linked the veteran's heart disease with his operational service.
The Applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the Tribunal") on 14 November 1996 (T1).
Background
The veteran completed operational service during the period 30 October 1941 to 11 January 1946 (T2).
The report of Professor Mattick (Exhibit R2) provides some information on the personal background details of the veteran. The veteran started marine studies before the war but never completed them. He worked on a farm after discharge from the army and worked there until 1956. The veteran then left the farm and sold tractors in Murwillumbah. He subsequently worked in real estate until 1986 at the age of 65 years.
Documentary medical and other evidence
In an alcohol questionnaire completed by the Applicant on 21 April 1995 she stated that the veteran consumed about three to four drinks per day of beer and rum (T7, folios 40-41). However she did not know why he started drinking nor did she have details of his drinking history, having only met him in 1973.
Attached to the formal application for widows pension (T7) were a number of additional documents that supported the Applicant's claim.
In a statement of 31 May 1995 (T7, folio 35) the Applicant wrote that her husband suffered "extreme" hardship in New Guinea and that he often drank to calm his nerves.
"At time the boys were inadequately clothed and food was scarce so much so they lived off the land on many occasions…He also told me that he was very nervous on discharge and his family informed me he was a nervous wreck on discharge – in fact his late wife (now deceased) had to actually teach him to talk as he developed a stutter during service…"

On 31 May 1995 Thomas Murray Boyd, the brother of the veteran's first wife, also provided a statement (T7, folio 36). The veteran and his then wife stayed with Mr Boyd for some months after the end of the war. He found the veteran's behaviour "rather peculiar" and he stated that the veteran was "extremely nervous and unsettled and given to quick changes of mood." Mr Boyd believed that the veteran was badly affected his war service.
In an undated letter (T7, folio 37) Mr Wallace Cameron, a fellow soldier who served with the veteran, wrote that he had noticed how fidgety he had become and how incessant talk about the war was accompanied by a nervous tapping of the right foot.
On 13 June 1995 the Applicant wrote to the Respondent with information that her husband had suffered badly from eczema (T7, folio 42). She had noted that this condition was particularly apparent when he was stressed or worried.
On 23 June 1995 the Applicant completed a Claimant Report – Cigarette Smoking form (T8, folio 46). Her husband had told her that he had only smoked very lightly and that he would not smoke for months at a time. The Applicant, although she did not know when or where he smoked, stated that she felt that he could have smoked during his service in order to calm his nerves. The Applicant was not sure when her husband stopped smoking.
On 30 June 1995 the Applicant again wrote to the Respondent (T8, folio 43). She stated that, although he husband's doctor would not attest to the veteran having had a certain condition, the doctor did say that he was a nervy person and that this condition started during the veteran's war service.
On 14 January 1996 the Applicant, as an attachment to Report of Evidence to the DVA, stated that her husband suffered from nerves "on discharge and ever since. I had to bear his abnormal behaviour on many occasions and I noticed that he became extremely agitated when he could not hear" (T11). She recounted an episode when he went missing one evening and was found face down in the local creek by the Applicant and the veteran's son.
On 19 February 1996 the Applicant wrote to the VRB and stated that her husband was treated with Vivax during the war (T12). He received a commendation for "voluntarily submitting [himself] to experiments in Army Medical Research."
On 1 December 1997 the veteran's son, Douglas William McLean, made a statement that his father "suffered from severe headaches all his post war life, as a result of injuries received by a mortar bomb during service in New Guinea resulting in loss of eyesight in one eye and partial deafness" (Exhibit A3). The veteran drank beer and rum excessively and his mother could not sleep in the same room because of his erratic sleeping habits. Mr McLean further stated that his father suffered from nightmares and "lived the war over every day in civilian life…"
On 9 June 1997 Mr Murray Boyd wrote to the Applicant's then representative (Exhibit A2). He stated that the veteran, in his latter years, had been reliving his war experiences with nightmares, mood swings and stress. This was "very similar to how he was when he arrived back from New Guinea after the war."
On 20 July 1997 the veteran's son also wrote to the Applicant's then representative (Exhibit A4). He stated that his father had an obvious drinking problem and drank between five to ten drinks per day. "He suffered nightmares and bouts of depression arising out of his war experiences…"
On 20 July 1998 the Applicant wrote a statement in support of her claim (Exhibit A5). She stated that her husband had drunk because of "war nerves." She suffered from his abnormal behaviour and the veteran himself suffered from severe headaches.
On 30 April 2001 Professor Mattick reported on the deceased veteran (Exhibit R2). He took a detailed personal and employment history from the Applicant, her family and acquaintances in relation to veteran. The veteran's family reported that he was fixated on the war and would recount the same story a number of times. Mr Boyd reported to Professor Mattick that the veteran was visibly shaken by his war time experiences. Mr Boyd reported mood swings and that the veteran was unbearable at times. Based on the evidence of the Applicant and her family, as well as Mr Boyd's and the available documentary evidence, Professor Mattick was of the opinion that the veteran did not meet the criteria for alcohol dependence or alcohol abuse. He concluded that, although there was too little available information to raise a reasonable hypothesis about the relationship between his service and alcohol consumption, such a relationship is possible. Professor Mattick believed that evidence from the veteran's son would be useful in coming to a reliable conclusion.
Legislation
The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") ss 6A(1) Item 1(a), 7(1)(a), 8(1)(a), 9(1)(a), 11(1), 13(1)(a), (c), 14(1), (3), (4), 20, 30(1), 120(1), (3), (4), 120A(1), (3):
"6A Operational service - world wars
(1)       Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
1(a) A member of the defence force on continuous full-time service outside Australia during a war to which this Act applies.
…"
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
(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; and
…"
"8 War-caused death
(1)       Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)       the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
"9 War-caused injuries or diseases
(1)       Subject to this section, 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:
(a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
"11 Dependants
(1)       In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
          (a)       the partner; or
…"
"13 Eligibility for pension
(1)       Where:
          (a)       the death of a veteran was war-caused; or
          …
          (c)       in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
          …"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
          …
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
(2)       Where:
          (a)       a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14 (3) (a);
          (b)       the person subsequently makes a claim for the pension in accordance with a form so approved:
(i)        at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii)       within 3 months after the person had been so notified; and
          (c)       a pension is granted to the person upon consideration of that claim in accordance with a form so approved;
the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.
(3)       Nothing in this section empowers the Commission to approve payment of a pension to a person from a date before the person became eligible to be granted the pension."
"30 Rates at which pensions are payable to dependants
(1)       Subject to subsection (3), the rate at which pension is payable under this Part to a dependant of a deceased veteran, being a person who is the widow or widower of the veteran, is a rate per fortnight equal to the sum of:
          (a)       $312.10 per fortnight; and
          (b)       $25 per fortnight; and
          (c)       the supplement amount per fortnight provided for in subsection (1A).
…"
"120 Standard of proof
(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.
…
(3)       In applying subsection (1) or (2) 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 or a defence-caused injury;
          (b)       that the disease was a war-caused disease or a defence-caused disease; or
          (c)       that the death was war-caused or defence-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.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
…
(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.
…"

Also relevant in this matter are the following Statements of Principles ("SoPs"):

SoP concerning Ischaemic Heart Disease, No 85 of 1995.

1. Being of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of that service, are:
…
(e) 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 ischaemic heart disease and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
(f) immersion in an atmosphere with a visible smoke haze in an enclosed space for at least 20 hours per week, for a period or periods of time totalling at least five years, provided such period or the last period of which, if now ended, did not end more than 15 years before the clinical onset of ischaemic heart disease; or
…
2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(v) must be related to any service rendered by a person.
…
"hypertension" means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b) where treatment for hypertension is being administered, attracting an ICD code in the range 401 to 405;
…
"ICD code" means a number assigned to a particular kind of injury or disease in the tenth edition of the International Classification of Diseases 9th Revision, effective date of 1 October 1993, copyrighted by the US Commission on Professional and Hospital Activities, and having the Library of Congress number 77-94472;
"ischaemic heart disease" means a cardiac disability, acute or chronic, arising from an imbalance between the supply and myocardial demand for oxygen, attracting an ICD code in the range 410 to 414.

Note: coronary artery disease is the usual underlying disorder for ischaemic heart disease and this is a disease process of the coronary arterial system characterised by the formation of intimal fatty streaks, followed by inflammation and the formation of fibrous plaques;
…"

SoP concerning Hypertension, No 83 of 1995.

"1. Being of the view that there is sound medical-scientific evidence that indicates that hypertension and death from hypertension can be related to operational service rendered by veterans, peacekeeping service rendered by members of Peacekeeping forces and hazardous service rendered by members of the Forces, the Repatriation Medical Authority hereby determines, under subsection 196B(2) of the Veterans' Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service, are:
…
(b) suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension; or
…"

Appearances and hearing

The Tribunal convened a hearing on 5 July 2001. The Applicant, assisted by Mrs S Keys, represented herself. Ms M Doggett from DVA represented the Respondent.
Findings on material questions of fact with reference to the evidence and other material in support of the decision
The Tribunal finds that the veteran rendered operational service from 30 October 1941 until 11 January 1946 (T2).
The Tribunal finds that the veteran died on 13 March 1995 (death certificate, T7, folio 38).
The Tribunal finds that the veteran's cause of death was myocardial infarct with a duration of three weeks (death certificate, T7, folio 38).
The Tribunal finds that the Applicant lodged a valid informal claim for a dependant's pension on 27 April 1995 (T5).
The Tribunal finds that the Applicant lodged a formal claim for pension on 13 June 1995 (T7).
The Tribunal finds that the standard of proof in this matter is the reasonable hypothesis standard because of the veteran's operational service (s 120(1), (3) of the Act).
The Tribunal finds that s 120A of the Act applies. The Applicant's claim must be assessed by reference to the relevant SoPs.
The Tribunal notes that the approach of the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 must be applied in determining whether the veteran died of a war-caused disability. Deledio (supra) proposes a four-step process.
The Tribunal notes that the Applicant's argument is that the veteran suffered emotional disturbance from service, possibly post-traumatic stress, drank alcohol because of this developed hypertension, which in turn led to the veteran's IHD. An alternative hypothesis is that the Applicant smoked because of service and this led to his IHD. The Tribunal itself considered whether the IHD might be attributable to the veteran's immersion in an atmosphere with a visible smoke haze. Step one of Deledio (supra) is satisfied. There is a hypothesis. Indeed, there may be said to be three hypotheses.
The Tribunal finds that there is a relevant SoP, no 85 of 1995. Step 2 of Deledio (supra) is satisfied.
Step 3 in Deledio (supra) is to ascertain whether the hypotheses presented accord with the items required in the SoP.
At this stage the Tribunal is considering the theories advanced linking the veteran's death with service. If the theories fit the template the Applicant's claim will succeed unless the Tribunal can be satisfied beyond a reasonable doubt that the requirements, or at least one the requirements, in the SoP are not satisfied (the fourth step in Deledio (supra).
For the purposes of step 3 the Tribunal finds that the hypotheses raised mesh with the template as follows. The veteran died of IHD. He had hypertension before the clinical onset of IHD or he had smoked sufficiently for his smoking to satisfy the SoP on IHD. Alternatively he may have spent adequate time immersed in a smoky atmosphere. These actions were service related.
For the purposes of applying step 4 of Deledio (supra), the Tribunal needs to consider the relevant issues in more depth to ascertain whether the requirements in the SoPs have been met to the relevant standard of proof. These issues are:
Did the veteran die of IHD (SoP 85 of 1995, paragraph 4)?

If the answer to issue 1 is "yes", when was the clinical onset of IHD (SoP 85 of 1995, factor 1(e))?

If the answer to issue 1 is "yes", did the veteran, who must still have been smoking, smoke at least five cigarettes a day for at least three years before the clinical onset of IHD (SoP 85 of 1995, factor 1(e))?

If the answer to issue 1 is "yes", did the veteran, if he had ceased smoking at the time of clinical onset of IHD, cease smoking within 15 years before the clinical onset (SoP 85 of 1995, factor 1(e))?

If the answer to issue 3 or issue 4 is "yes", was the veteran's smoking related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?

Did the veteran suffer from hypertension (SoP 85 of 1995, paragraph 4)?

If the answer to issues 1 and 7 are both "yes", was hypertension present before the clinical onset of IHD (SoP 85 of 1995, factor 1(a))?

If the answer to issue 8 is "yes", was the veteran's hypertension related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?

If the answer to issue 1 is "yes", was there a period during which the veteran was immersed in an atmosphere with a visible smoke haze in an enclosed space on a regular basis (SoP 85 of 1995, factor 1(f))?

10) If the answer to issue 9 is "yes", did this occur for at least 20 hours a week for a period of, or for periods totalling, at least five years immediately before the clinical onset of IHD (SoP 85 of 1995, factor 1(f))?

11) If the answer to issue 10 is "no", did this occur or at least 20 hours a week for one or more periods totalling at least five years, that period or combination of periods ending not more than 15 years before the clinical onset of IHD (SoP 85 of 1995, factor 1(f)?

12) If the answer to either issue 10 or 11 is "yes", was the immersion related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?

The Tribunal will now proceed to examine these issues.
Issue 1 - Did the veteran die of IHD (SoP 85 of 1995, paragraph 4)?
The Tribunal finds that the veteran died of IHD. Relying on the death certificate (T7, folio 38), the myocardial infarct that caused death was a cardiac disability of the type described in the definition in SoP paragraph 4.
Issue 2 - If the answer to issue 1 is "yes", when was the clinical onset of IHD (SoP 85 of 1995, factor 1(e))?
The death certificate (T7, folio 38) suggests that the clinical onset of IHD was three weeks before the date of death. The date of clinical onset was therefore late in February 1995.
Issue 3 - If the answer to issue 1 is "yes", did the veteran, who must still have been smoking, smoke at least five cigarettes a day for at least three years before the clinical onset of IHD (SoP 85 of 1995, factor 1(e))?
The Tribunal finds that the veteran was not still smoking on the date of clinical onset of IHD. The Tribunal relies on the Applicant's smoking questionnaire (T8) and her oral evidence at the hearing. Mr D W McLean, the veteran's son, gave evidence at the hearing and he said that the veteran had ceased smoking in the 1960s. The answer in relation to this issue is "no".
Issue 4 - If the answer to issue 1 is "yes", did the veteran, if he had ceased smoking at the time of clinical onset of IHD, cease smoking within 15 years before the clinical onset (SoP 85 of 1995, factor 1(e))?
The Tribunal received various pieces of evidence as to when the veteran ceased smoking. In the smoking questionnaire dated June 1995 (T8) the Applicant said the veteran ceased smoking "some years ago". Professor Mattick recorded the Applicant as saying that the veteran ceased smoking 15 years before his death but that he consumed one or two cigarettes a day thereafter (Exhibit R2). In oral evidence the Applicant said that the veteran ceased smoking the one or two cigarettes a day about 10 years before he died. It must be said, however, that the Applicant's demeanour as she provided this correction was uncertain and uncomfortable.
The veteran's son, Mr D W McLean in Exhibit A3 said that the veteran smoked from 1957 to 1969. He confirmed a cessation date at the end of the 1960s in his oral evidence, although a commencement as early as 1957 was doubtful. He thought his father had smoked only five or six years.
The SoP would require that the veteran had been smoking at least five cigarettes a day up to 15 years before the clinical onset of IHD, ie up to early in 1980. The Tribunal finds on the evidence available that the veteran ceased smoking in 1969. The Tribunal accepts the evidence of the veteran's son on this matter. His evidence has been more consistent than the Applicant's. He also worked closely with the veteran in his estate agency business from 1970 until 1986 and would be in a good position to know that the veteran was smoking as recently as that date, if he had been.
The Applicant's evidence, in any event, may suggest that the veteran ceased smoking 15 years before his death, except for some smoking perhaps at a level below that specified in the SoP. However, to pursue this supplementary argument, the Tribunal considers that factor 1(e) of the SoP is ambiguous. Where reliance is placed on the cessation of smoking less than 15 years before the clinical onset of IHD can it be assumed that the rate of smoking up to the cessation must have been at least five cigarettes a day? The SoP does not specify a daily rate. The Tribunal has assumed that a daily rate of at least five cigarettes is intended but that may be open to question.
The Tribunal therefore finds itself satisfied that the veteran's death was not war-caused on the basis of smoking because it is satisfied beyond a reasonable doubt that the requirements in factor 1(e) of the applicable SoP have not been met.
Issue 5 - If the answer to issue 3 or issue 4 is "yes", was the veteran's smoking related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?
In view of the finding as to smoking as a cause of IHD it is unnecessary to pursue this issue.
Issue 6 - Did the veteran suffer from hypertension (SoP 85 of 1995, paragraph 4)?
There is a definition of "hypertension" in the SoP. The primary definition is "a usual blood pressure reading where the systolic reading is greater than or equal to 140mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg". The picture presented by the evidence is curious. Unfortunately the veteran's blood pressure was not recorded early in his service career. However it has been recorded often since then. Some readings in the evidence are:
140/70 – 1 October 1945 (T3, folio 17).
120/78 [below the definitional requirement] – 24 December 1945 (T3, folio 19).
160/80 – 9 February 1978 (T4, folio 26).
170/80 – 20 December 1985 (Exhibit R5 – John Flynn Hospital).
150/80 – 20 December 1985 (Exhibit R5).
10/80 – 20 February 1989 (Exhibit R5).
160/80 – 29 April 1990 (Exhibit R3 – D Z A Hudda, general practitioner).
170/80 – 4 March 1991 (Exhibit R3).
160/80 – 3 February 1992 (Exhibit R3).
150/80 – 17 June 1992 (Exhibit R3).
200/80 – 8 January 1993 (Exhibit R3).
140/60 – 4 March 1995 (Exhibit R4 – Tweed Heads District Hospital).
120/50 – 4 March 1995 (Exhibit R4).
There are many other readings taken near the date of the veteran's death.

In Exhibit R3 there is a letter dated 17 March 1997 from Dr Hudda to the Applicant's solicitor. Amongst other things Dr Hudda writes that Mr McLean was his patient from 29 April 1990 and that he was never diagnosed as hypertensive or treated for hypertension.
There was considerable discussion during the hearing as to whether the Applicant's hypertension was war-caused in accordance with SoP 83 of 1995 concerning hypertension. There is, however, nothing in SoP 85 of 1995 requiring a veteran to satisfy the requirements of SoP 83 of 1995 in order to take advantage of factor 1(a) whereby IHD may be war-caused if hypertension predates IHD. SoP 85 of 1995 contains its own definition of hypertension, which appears satisfied in the veteran's case on the basis of the evidence above. Some SoPs contain a paragraph that specifically requires the satisfaction of any other SoP concerning a disability where that disability provides a foundation for consideration of a second disability under primary consideration. In the present case such a paragraph would appear in SoP 85 of 1995 requiring satisfaction of the requirements in SoP 83 of 1995 if the Applicant is to succeed on the basis of a connection between hypertension and the veteran's IHD. There is no such paragraph in SoP 85 of 1995.
The Tribunal notes that Dr Hudda's advice was that the veteran had not been diagnosed with hypertension. It is difficult to deny that he suffered from that disease when the blood pressure readings over such a lengthy period appear to show that his "normal" readings were above the levels specified in paragraph 4 of SoP 85 of 1995.
The Tribunal finds that the veteran suffered from hypertension.
Issue 7 - If the answer to issues 1 and 7 are both "yes", was hypertension present before the clinical onset of IHD (SoP 85 of 1995, factor 1(a))?
The hypertension appears to have been present for many years. The Respondent's representative in the hearing suggested that it may even have predated service. Certainly all blood pressure readings in evidence since 1978 show hypertensive readings. The clinical onset of IHD was in February 1995.
The Tribunal finds that the veteran suffered from hypertension prior to the clinical onset of IHD.
Issue 8 - If the answer to issue 7 is "yes", was the veteran's hypertension related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?
The Applicant's statement of facts and contentions (Exhibit A1) suggests that the Applicant had a war-caused drinking habit and that this helped cause his heart disease. There is no other relationship suggested linking the veteran's hypertension with any conduct contributed to by his war service.
SoP 83 of 1995 concerning hypertension accepts that there can be a link between alcohol consumption and the development of hypertension (factor 1(b)).
Much of the discussion in the Tribunal hearing concentrated on this matter, so there is relevant evidence. The Applicant told Ms Doggett in cross-examination that she believed that the veteran did not drink pre-war because he was an athlete. He competed in the 1938 Empire Games. He did not resume his athletic activity when he returned from the war. The Applicant was, however, quite unable to offer any evidence when she completed the alcohol questionnaire (T7, folios 40-41). In relation to alcohol consumption before, during and after service she wrote "don't know". She wrote that she did not know when he commenced drinking alcohol.
There is evidence that the veteran was not drinking heavily until well after service. Some of this evidence follows:

Mr Boyd's statement (T7, folio 36) says nothing about the veteran consuming excessive amounts of alcohol, although it does go into other behavioural problems of the veteran that he saw just after the war when he and the veteran lived in the same premises.

Mr Cameron's statement (T7, folio 37) makes no mention of any alcohol problem affecting the veteran despite recording other behavioural oddities.

Mr D W McLean, the veteran's son, in oral evidence said that the veteran really commenced heavy drinking when he gave up farming and moved to Kingscliff. This was in 1956 (Exhibit R2). The Tribunal regards this as particularly cogent evidence as Mr McLean was a straightforward, helpful witness not prone to assertion of facts if he were uncertain. He was born just after the war and lived with the veteran up to this time, so he is in a very good position to know the true situation.

Ms Doggett's proposition that the veteran's hypertension very probably preceded his alcohol abuse seems most credible to the Tribunal in view of Mr McLean's evidence. The blood pressure reading of 140/70 in 1945 suggests that the Applicant's hypertension was established at that stage. There is nothing to suggest that he had developed a drinking problem by that date. Indeed, there is cogent evidence to suggest that the veteran's drinking problem began in about 1956.
The Tribunal therefore finds that beyond a reasonable doubt that the veteran had no war-caused problem of alcohol abuse. In the absence of any such war-caused factor to explain the development of the veteran's hypertension, even if the veteran had hypertension before the clinical onset of IHD there is no connection between the IHD and service.
Issue 9 - If the answer to issue 1 is "yes", was there a period during which the veteran was immersed in an atmosphere with a visible smoke haze in an enclosed space on a regular basis (SoP 85 of 1995, factor 1(f))?
The Tribunal considers that the Applicant may be in a position to benefit from the application of factor 1(f) in SoP 85 of 1995 concerning IHD, even though that was not argued earlier.
The Tribunal heard considerable evidence about the veteran's time spent in the bowling club at Kingscliff. From 1974 the Applicant was aware that the veteran would visit the bowling club at lunchtime or earlier on about five days a week. He would leave at about 2.00 pm and return to the club at about 4.00 pm. He would be there until about 7.00 pm on a weekday. On Saturdays he would be at the club for longer hours.
Mr McLean, the veteran's son, in oral evidence described a similar picture. He conceded that the veteran would play some lawn bowls on a couple of the afternoons. He said that it was common for the veteran to start at the club at 10.00 am. Mr McLean spoke of an earlier period when the veteran was involved in a golf club. He would often stay there until 10.00 pm. Mr McLean described the conditions in the clubs as smoky. He thought that the veteran spent about 25 hours a week in the bowling club.
As the Tribunal stated above, it found Mr McLean an impressive witness. The Tribunal finds that the veteran was immersed in an atmosphere with a visible smoke haze in an enclosed space on a regular basis.
Issue 10 - If the answer to issue 9 is "yes", did this occur for at least 20 hours a week for a period of, or for periods totalling, at least five years immediately before the clinical onset of IHD (SoP 85 of 1995, factor 1(f))?
Mr McLean's evidence would support a positive answer to this question. He said that the veteran spent about 25 hours a week in the smoky conditions of the bowling club up to the date of onset of his IHD. He said that the veteran attended the bowling club from the late 1960s. The club was air conditioned in the last 10 years and he could not say what difference that had made to the smoke conditions. The Tribunal is inclined to take "judicial notice" from the experience of the two members sitting that, while air conditioning is of assistance in such venues, there is still a perceptible smoke haze often present despite air conditioning in such venues. Much seems to depend on the strength and effectiveness of the air filtering.
The Tribunal is prepared to find that this criterion has been met.
Issue 11 - If the answer to issue 10 is "no", did this occur or at least 20 hours a week for one or more periods totalling at least five years, that period or combination of periods ending not more than 15 years before the clinical onset of IHD (SoP 85 of 1995, factor 1(f)?
This need not be pursued in view of the answer to question 10. However, if there were any doubt about the moderating effect of the air conditioning of the bowling club ten years ago, ie four years before the veteran died, the Tribunal would have no difficulty finding that this criterion is satisfied.
If the answer to either issue 10 or 11 is "yes", was the immersion related to the veteran's operational service (SoP 85 of 1995, paragraph 2)?

This is a substantial problem for the Applicant. If the immersion in a smoke haze had occurred in military accommodation there would probably be no difficulty. The best argument that could be put for the Applicant is that the veteran may have developed a smoking habit during operational service that was war-caused. This may have produced in the veteran a tolerance to cigarette smoke. This tolerance may have predisposed him to sit for long periods in an enclosed space where there was a visible smoke haze.
This requires another examination of the evidence on the veteran's smoking. The Applicant's smoking questionnaire (T8, folios 46-47) emphasises the period after 1973 but recounts her husband's self-assessment of the earlier period. She wrote, "My husband told me he smoked but very lightly and would go off the habit for months at a time. He certainly smoked very little since our marriage in 1973. … he could have smoked on service to calm his nerves …" In oral evidence the Applicant confirmed this information. However, she gave over evidence that he smoked one or two cigarettes a day until about 10 years before he died. The Tribunal earlier opted to discount this evidence which was inconsistent with Mr McLean's evidence.
There is little else. However, from Mr McLean's oral evidence it appears that the Applicant smoked only from 1957 to 1969. This seems inconsistent with the development of a sustained habit during operational service that enabled the veteran in a peculiar manner to tolerate smoke hazy, enclosed conditions.
The Tribunal is prepared to accept that the particular conditions experienced by the veteran in New Guinea may have caused him to commence smoking. However, there is cogent evidence that he did not smoke for a considerable period prior to 1957 when Mr McLean recalls he began to smoke. Such a break would break the nexus with operational service.
Conclusion
The Tribunal finds beyond a reasonable doubt under s 120A of the Act that there is no SoP that upholds any of the hypotheses advanced for consideration by the Tribunal. Under s 120A(3) this means that no one of the three hypotheses connecting the death of the veteran with the circumstances of particular service rendered by him is a reasonable hypothesis. This in turn means that the Tribunal is satisfied beyond reasonable doubt that that there is no sufficient ground for determining that the death of the veteran was war-caused.
Decision
The Tribunal affirms the decision under review.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Mr A L Limbury, Member
Signed:         .....................................................................................
  Associate
Date of Hearing  5 July 2001
Date of Decision  12 July 2001
Self-represented Applicant
Representative for the Respondent        Ms M Doggett