McLeod and Repatriation Commission - [2002] AATA 1114

DECISION AND REASONS FOR DECISION [2002] AATA 1114

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/449

VETERANS' APPEALS DIVISION       )
           Re      RUTH IRENE MCLEOD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date29 October 2002
PlaceAdelaide

Decision      The Tribunal affirms the decision under review.
  (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – Widow's Pension – whether veteran's death was attributable to his war service – reasonable hypothesis – whether veteran's smoking habit contributed to death from ischaemic heart disease
Veterans' Entitlements Act 1986 sections 120, 120A
Statement of Principles No 38 of 1999

REASONS FOR DECISION

29 October 2002 Senior Member WJF Purcell

This is an application for review of a decision of the Repatriation Commission (the Commission) of 22 December 1999, which determined that the death of the applicant's husband (the veteran) was not war-caused. This decision was affirmed by the Veterans' Review Board (VRB) on 29 August 2000.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr Hemsley appeared for the applicant, who gave oral evidence, and called Mr M Denison, and her son, Mr J Harbour. Mr Harbour gave evidence by way of telephone link-up. Mr Doube represented the Commission.
The veteran was born on 27 October 1936 and was nearly 18 years of age when he joined the Australian Army (the Army) on 25 August 1954. He served for 6 years until 24 August 1960. His service included operational service in Malaya from 17 November 1956 to 31 October 1957. He died at the age of 62 on 5 September 1999. The cause of death was certified as myocardial infarct (minutes) hyperlipidaemia (5 years) and hypertension. He had no accepted or rejected disabilities.
The veteran rendered operational service, and the standard of proof is that of reasonable hypothesis in accordance with section 120(1) of the Veterans' Entitlements Act 1986 (the Act), which 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"
Section 120A of the Act provides:
"(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).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.
…"
The hypothesis put forward by the applicant is that the veteran's death from ischaemic heart disease is connected with his smoking habit, which is related to his relevant service, and thus connected with the circumstances of his particular service. In my view, the material before the Tribunal, if correct, would point to a hypothesis that the veterans' death was war-caused. There is a Statement of Principles, and in accordance with that Statement of Principles, at least one of the Factors set out in Clause 5 must as a minimum exist before it can be said that a reasonable hypothesis has been raised. The hypothesis raised accords with Factor 5(e) of the appropriate Statement of Principles, and is thus a reasonable hypothesis in my view.
The appropriate Statement of Principles for the condition of ischaemic heart disease is Instrument No 38 of 1999 (the Statement of Principles). Factor 5(e) of the Statement of Principles reads:
"(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 five years of cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 20 years of cessation;"
The applicant lodged her claim on 17 November 1999, and stated:
"It must be realised that I was married to Richard McLeod in 1987 and therefore find difficulty in finding out his medical history from discharge to 1985.
However, the causes of death appear to have some relevance to what I am trying to find out.
His high blood pressure would have been evident prior to 1985 i.e. before his present records start.
His heavy smoking up to and including 1985 must have had a bearing on his condition and also his alcohol intake. Both these, in my opinion, must have been adding up to trouble. He gave both up on marriage, but would the damage have been done? Would 12 years be sufficient to have the damage repaired or would they have been lurking in his system waiting to pounce? His sudden heart attack appears to indicate to me that there was some hidden cause – after all he was only 62. To me, that means that there was something in his war experiences which followed through into his later life." [T5/36]
The applicant lodged with her application, a smoking questionnaire in which she stated that the veteran first started smoking cigarettes on a regular basis "When he was in the Army" [T5/43] and that he commenced smoking cigarettes on a regular basis because of "Peer pressure in the Army and relief of stress – became addicted. His brother told me that he was a heavy smoker …". She stated also that the veteran ceased smoking permanently, approximately 12 years before, when she and the veteran were married.
The applicant submits that the veteran commenced smoking in the course of his service, he smoked at least five pack years, and the clinical onset of ischaemic heart disease has occurred within 15 years of that cessation, which was immediately prior to his marriage to the applicant on 23 January 1987. She maintains that Factor 5(e) of the Statement of Principles is satisfied.
The Commission contends that the evidence presented on behalf of the applicant is as contradictory as to the veteran's commencement of smoking, as it is to his ceasing smoking. In addition, the issue as to the amount he smoked is very unclear. It is a matter of conjecture, supposition and speculation.
The Commission refused the application on 22 December 1999, and in the course of his letter of advice, the delegate stated that he had taken into account that the veteran smoked and drank heavily until 1987, and that he did not drink prior to his service. However, in the delegate's view, there was no evidence that the veteran started on operational service, nor was there any evidence that he started because of this service [T8/49]. The applicant applied to the VRB for review of the decision because:
"I believe my late husband started smoking when he was in Korea.
I will obtain further information to support this.
My husband told me that he had been very upset that he could not smoke during night patrols in Malaya because snipers would see the glow. He had to wait until he returned to base to smoke." [T9/55]
The applicant did not attend the VRB hearing, but the VRB had before it a letter from the veteran's sister, in which she stated that to her knowledge the veteran did not drink or smoke before enlistment. In addition, it had a statement from Mr Denison, who said that he himself is a smoker, that he had known the veteran for 9 years before his death, and that the veteran had told him on many occasions that he wished he were stronger when he joined the military so that he would not have taken up smoking and drinking.
The VRB affirmed the Commission's decision on 29 August 2000, and in the course of its Reasons for Decision noted that the applicant married the veteran on 23 January 1987, some 27 years after his Army Service; and that it thus understood the error made in the smoking history where she refers to Korea rather than to Malaya, being the period of his operational service. The VRB stated also that the veteran joined the Army some 2 years before his operational service, and to suggest that he did not smoke until he served in Malaya would be merely speculation; and that there was no evidence, apart from the applicant's statement in the smoking history questionnaire, to indicate why the veteran took up smoking or how it could be linked to his operational service.
The applicant said in evidence that the veteran was 50 years of age, and a bachelor, when they married. She had known him as a friend of her late husband over the previous 11 years. He was a very private person, and they never talked about when he took up smoking. She assumed that the habit started in the Army. He said that he smoked in Malaya, and that they were very strict about not smoking whilst on night patrols, because the glow of a cigarette or a match would make them an easy target for a sniper. In relation to the quantity of cigarettes the veteran smoked, she said that she had stated in the smoking questionnaire that he regularly smoked 3 packets a day, but that this was not from direct observation. She says that "we occasionally spoke about his smoking and through those conversations I was aware that he had been smoking approximately 3 packets per day" [Exhibit A1]. She said in evidence that she did not know whether he smoked this quantity during his Army service in Malaya, or after his operational service. She said also that immediately prior to their marriage in January 1987, the veteran said that he was going to make a commitment to her, and would stop smoking, which he did. She was unable to give any evidence as to the quantity of cigarettes he was smoking at that time.
The applicant said in evidence that when the veteran died, she arranged for her son, Mr Harbour, to choose books and magazines from the veteran's collection. Mr Harbour, like the veteran, was an avid gemologist, and when he next came to Yunta, from his home in Alice Springs, he collected the books. In the course of one of their regular telephone conversations, he said that among the books he had found a letter, which might be relevant to the veteran's project of writing a history of Yunta. Mr Harbour faxed the letter to the applicant on 25 August 2000. When she read the letter, and realised its significance, she telephoned Mr Harbour, and requested that he forward the original letter. The photocopy of the letter reads as follows:
"Malaya
December 1956
Dear Mum
I hope all is well with you.
Borrowed pen and paper to let you know I am all right as you can see we are in Malaya, will be for some time. It is different heat here but I like it.
It gets lonely at times so I have taken up smoking like most of the Boys. Is Dad's pipe still around as I would like to have it.
The Boys are great here though the nights seem so long.
Please say hello to Murch for me will see him when I get home.
Wishing you a Merry Christmas and Happy New Year.
Richard" [Exhibit A4]
The applicant gave evidence that when the original of the letter had not arrived within 1 week, she telephoned Mr Harbour, who she said, told her that he had made enquiries of personnel at the Alice Springs Post Office, as some letters sent in the post by the applicant's grandchildren had been misdirected. The original letter never arrived. She said that she assumes the letter is in the veteran's handwriting. She remembers that his handwriting was small, but she did not know his handwriting well enough to identify it. Although he was researching the history of Yunta, and had his own home office with a computer, the applicant says that she did not read any of his handwriting, and during their 12 year marriage he sent her only 2 cards, which she cannot locate.
The Commission, when provided with the copy of the letter in about October 2001, requested the Australian Federal Police Forensic Services (AFP) to compare the handwriting with an original form dated 11 August 1960, and 4 letters written to the Commission by the veteran between 24 January 1962 and 23 August 1963. The AFP reported that as the questioned document (ie the letter Exhibit A4) had been produced by a number of processes, including facsimile transmission and photocopy with size reduction, a large proportion of the characters were indecipherable. The AFP concluded that the poor quality of the letter made a full comparison impossible.
The applicant's son, Mr Harbour, had said in his statement dated 14 June 2001 [Exhibit A2], that when the veteran died the applicant offered him the gem books and magazines called "Treasures of the Earth". He collected these eventually, and there were a number of pieces of paper of different sizes throughout the magazines and books, including the letter [Exhibit A4]. At the applicant's request, he addressed the envelope and forwarded it by normal post. In the course of his oral evidence, he said that he had known the veteran, who was a friend of his father, since he was 6-7 years of age, a period of some 30 years. He could not recall the veteran ever smoking in the time he knew him. He had never received written communication from the veteran. When he saw the letter [Exhibit A4] (a small note pad size piece of paper) he did not identify the handwriting, it was the circumstances of the finding of the letter in the veteran's magazines that led to the conclusion that it was the veteran's handwriting.
Mr Harbour said in evidence that he was aware that the veteran had been compiling a book containing letters of his own and of others. The veteran's family were early settlers in the Yunta district. He thought the letter might have historical significance. He faxed a copy of the letter, and said that he cannot recall whether he mailed the original letter to the applicant, or decided to bring it with him on his next trip to Yunta. He said in evidence also, that the last time he remembers seeing the letter was when it was sitting on his table with other work papers. In contrast to his statement dated June 2000 [Exhibit A2], in which he stated that he addressed the letter to the applicant in the normal course and sent it through the normal post, he said in evidence that he cannot remember posting the letter, nor having discussions with the applicant regarding her non-receipt of the letter. He cannot recall having discussions with the Alice Springs Post Office personnel regarding the letter, but might have asked his wife to follow up the matter.
The applicant called Mr Denison, who had known the veteran since Mr Denison and his wife purchased a home in Yunta in 1991. They moved into the house on a permanent basis in 1996, and Mr Denison joined the South Australian Ambulance Centre. The veteran became his instructor, and because Mr Denison had served in South Vietnam, they shared some common experiences. In his letter of 9 June 2000 [T9/56], Mr Denison stated that they talked of daytime problems associated with their postings in Asia, and of the night time party sessions. Mr Denison said that he is a smoker and that the veteran told him that he was a reformed smoker, and stated on many occasions that he wished he were stronger when he joined the military, and he would not have taken up smoking and drinking.
Mr Denison gave evidence that the veteran told him that he took up smoking whilst serving in the Army; that his smoking habit had been worsened during his time in the forces because of peer pressure within the forces, and boredom, and that he was a heavy smoker. Mr Denison said that the veteran did not speak of the quantity of cigarettes he smoked, but of the increase in smoking due to peer pressure. He understood this to mean while the veteran was overseas.
On the whole of the evidence, the veteran was at some stage a smoker. On Mr Denison's evidence, he took up smoking after he entered the forces at the age of 18. He had been in the Army for 2 years before he went to Malaya, and it is Mr Denison's understanding, or assumption, that this is the period during which the veteran's smoking habit increased. On the other hand, if the letter [Exhibit A4] was written by the veteran in December 1956 (1 month after he arrived in Malaya) he had now taken up smoking since his arrival in Malaya, and thus the smoking habit could be attributable to his relevant service. I accept Mr Harbour's evidence that the original letter was found among the veteran's personal possessions. Although to an untrained eye the writing appears unlike the veteran's writing in his correspondence in the 1960s, it is, in my view, so unlikely that another person by the name of Richard would be writing to his mother from Malaya in December 1956, or alternatively, that the applicant would have undertaken an elaborate subterfuge to place such a letter before the Tribunal, that I accept that this letter was written by the veteran, and that his smoking habit is related to his service therefore.
As to the quantity the veteran smoked and the cessation of smoking, the applicant says that the veteran ceased smoking immediately prior to their wedding in January 1987, some 12 years before his death. Her son, Mr Harbour, says that in the 30 years he knew the veteran, ie from about 1969, he never saw the veteran smoke. Their recollections cannot both be accurate. If the veteran did not smoke after 1969, then Factor 5(e)(i) or (ii) of the Statement of Principles cannot be satisfied. If he ceased smoking in 1987, the only material before the Tribunal as to the quantity of cigarettes smoked by the veteran is the applicant's statement that he smoked 3 packets a day at some time, but she could give no evidence of the quantity he smoked during the time she knew him prior to their wedding in January 1987. On Mr Denison's evidence, the veteran said he became a heavy smoker at some time during his Army service, but there is no evidence of the quantity he smoked prior to his operational service, the amount of any increase in smoking during that service, nor of the level of smoking over the ensuing 30 years until 1986.

In my view, on the whole of the evidence, it is a matter of conjecture, and speculation as to the level of smoking the veteran undertook during his operational service and subsequently. I am satisfied, beyond reasonable doubt, that Factor 5(e) of the Statement of Principles is not satisfied. I am satisfied, beyond reasonable doubt, that there is not sufficient ground for determining that the veteran's death from ischaemic heart disease was war-caused. The material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.
For these reasons, the Tribunal affirms the decision under review.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed:         .....................................................................................
  Associate
Date of Hearing  13 March 2002
Date of Decision  29 October 2002
Counsel for the Applicant        Mr G Hemsley
Solicitor for the Applicant         -
Counsel for the Respondent    Mr G Doube
Solicitor for the Respondent    DVA