Menzies and Repatriation Commission

[2011] AATA 862

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 862

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/3550

VETERANS’ APPEALS DIVISION		)
Re		HAROLD MENZIES

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Professor RM Creyke, Senior Member

Date 07 December 2011

Place Wagga Wagga, NSW; decision delivered in Canberra.

Decision  The decision under review is affirmed.

.......................[sgd].......................

Professor RM Creyke, Senior Member 

CATCHWORDS

VETERANS AFFAIRS – disability pension - operational service – applicant’s medical condition – chronic obstructive pulmonary disease - clinical onset – s9(1)(a) - whether condition arose out of or was attributable to operational service – s120A - Statement of Principles, Instrument No 30 of 2004 Chronic Bronchitis and Emphysema – factor 5(a) - decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 5B, 7, 9, 13, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

06 December 2011 Professor RM Creyke, Senior Member

1.      Mr Harold Menzies was born on 3 October 1929 and served in the Australian Army between 25 July 1950 and 18 October 1955.  His service included a period in Korea between 20 March 1954 and 16 May 1955, which is operational and hence eligible service under the Veterans’ Entitlements Act 1986 (Cth) (Act).[1]

[1] Veterans’ Entitlements Act 1986 (Cth) ss 5B(1)(c), 7.

2.      On 3 December 2009 Mr Menzies claimed a disability pension for chronic pulmonary obstructive disease.

3.      The Repatriation Commission refused the claim on 10 February 2010.  The decision was upheld on review by the Veterans’ Review Board on 8 June 2010.

4.      On 23 August 2010 Mr Menzies sought further review by the Tribunal.  The matter was heard in Wagga Wagga, New South Wales on 23 November 2011.

History

5.      Mr Menzies had accepted conditions of recurrent appendicitis, duodenal ulcer, eczema, bilateral sensor-neural deafness, old injury right arm, solar keratosis, lumbar spondylosis, non-melanotic malignant neoplasm of the skin, thoracic spondylosis, and tinnitus.

6.      Mr Menzies had claimed that an increase in his smoking while on service in Korea was linked to his claim for chronic obstructive pulmonary disease.

7.      A smoking questionnaire signed by Mr Menzies on 26 April 2009, but prepared by the Veterans’ Advocacy Service, stated that his ‘regular’ smoking of 20 cigarettes a day commenced ‘When I joined the Army 1950 … due to the uncertainty of whether I was going to war and whether I would be killed or wounded’.  His rate of smoking is listed as ‘1951, 30 cigs/day; 1952, 40 cigs/day; 1953 80 cigs/day’. The form states that he ceased smoking in 1963. The form also noted under ‘Disability’ that he suffered ‘Chronic bronchitis’, due to ‘War related smoking habit,’ the symptoms of which he became aware in the 1980s.

8.      A smoking questionnaire dated 30 November 2009, completed by  NSW Legal Aid Commission, but signed by Mr Menzies, stated that he started ‘regular’ smoking in Korea at  ‘80-90’ cigarettes per day due to ‘stress of Korean war service’ and because he was ‘Issued with free cigarettes’. The report again noted that he ceased smoking in 1963.

9.      In his application for review by the Veterans’ Review Board Mr Menzies had stated ‘I was an establishment [sic] smoker before operational service.  I smoked up to 80 cigarettes per day.  In Korea, my consumption increased to 100 per day.  I continued at that rate until I ceased in 1963’. This claim was the basis of his application for a review by the Tribunal, prepared by the NSW Legal Aid Commission, but signed by Mr Menzies on 23 August 2010.

Medical evidence

10.     On 9 December 1950, the clinical notes of Dr Dwyer, Departmental Medical Officer (DMO), Concord Hospital, recorded ’40 cigs daily’.

11.     There is a report by a departmental medical officer dated 16 June 1955 which recorded ‘Pain in chest 18/12 coughs on & off, and some wheezing’.  However, the report also noted on 16 June 1955 ‘X-ray, Chest clear’.

12.     Mr Harold Menzies was born on 3 October 1929 and served in the Australian Army between 25 July 1950 and 18 October 1955.  His service included a period in Korea between 20 March 1954 and 16 May 1955, which was operational and hence eligible service under the Veterans’ Entitlements Act 1986 (Cth) (Act).[2]

[2] Veterans’ Entitlements Act 1986 (Cth) (Act) ss 5B(1)(c), 7.

13.     On 3 December 2009 Mr Menzies claimed a disability pension for chronic pulmonary obstructive disease.

14.     The Repatriation Commission refused the claim on 10 February 2010.  The decision was upheld on review by the Veterans’ Review Board on 8 June 2010.

15.     On 23 August 2010 Mr Menzies sought further review by the Tribunal.  The matter was heard in Wagga Wagga, New South Wales on 23 November 2011.

History

16.     Mr Menzies had accepted conditions of recurrent appendicitis, duodenal ulcer, eczema, bilateral sensor-neural deafness, old injury right arm, solar keratosis, lumbar spondylosis, non-melanotic malignant neoplasm of the skin, thoracic spondylosis, and tinnitus.

17.     Mr Menzies had claimed that an increase in his smoking while on service in Korea was linked to his claim for chronic obstructive pulmonary disease.

18.     A smoking questionnaire signed by Mr Menzies on 26 April 2009, but prepared by the Veterans’ Advocacy Service, stated that his ‘regular’ smoking of 20 cigarettes a day commenced ‘When I joined the Army 1950 … due to the uncertainty of whether I was going to war and whether I would be killed or wounded’.  His rate of smoking is listed as ‘1951, 30 cigs/day; 1952, 40 cigs/day; 1953 80 cigs/day’. The form states that he ceased smoking in 1963. The form also noted under ‘Disability’ that he suffered ‘Chronic bronchitis’, due to ‘War related smoking habit,’ the symptoms of which he became aware in the 1980s.

19.     A smoking questionnaire dated 30 November 2009, completed by  NSW Legal Aid Commission, but signed by Mr Menzies, stated that he started ‘regular’ smoking in Korea at  ’80-90’ cigarettes per day due to ‘stress of Korean war service’ and because he was ‘Issued with free cigarettes’. The report again noted that he ceased smoking in 1963.

20.     In his application for review by the Veterans’ Review Board Mr Menzies had stated ‘I was an establishment [sic] smoker before operational service.  I smoked up to 80 cigarettes per day.  In Korea, my consumption increased to 100 per day.  I continued at that rate until I ceased in 1963’. This claim was the basis of his application for a review by the Tribunal, prepared by the NSW Legal Aid Commission, but signed by Mr Menzies on 23 August 2010.

Medical evidence

21.     On 9 December 1950, the clinical notes of Dr Dwyer, Departmental Medical Officer (DMO), Concord Hospital, recorded ’40 cigs daily’.

22.     There is a report by a departmental medical officer dated 16 June 1955 which recorded ‘Pain in chest 18/12 coughs on & off, and some wheezing’.  However, the report also noted on 16 June 1955 X-ray: ‘Chest clear’.

23.     Clinical notes of Dr Gentile, psychiatrist, DMO on 6 August 1957 noted: ‘Smokes 20 cigarettes in 2 days’. He also recorded Mr Menzies as saying:  ‘Saw service, Korea, did not have much stress on Service’.

24.     The clinical notes of Dr Richard Wippell, DMO, dated 25 September 1956, recorded ‘25 to 30 cigarettes a day’.

25.      Report of Medical Examination by Dr L Lancaster, dated 11 June 1957, under ‘Smoking’ noted ‘Very little’.

26.     A report of Dr Richard Lee, respiratory and sleep medicine physician, dated 22 August 2007, stated that: ‘he does seem to have symptoms consistent with chronic bronchitis, from his history of cigarette smoking. … [H]e had a thirteen year smoking history of up to 80 cigarettes per day’. Dr Lee’s opinion was that the history and results of chest examination ‘might be suggestive of very mild airflow limitation’.

27.     A Health Assessment health assessment by Dr Victor Antoun, on 28 June 2007 noted ‘Ex-smoker - 90 cigarettes/day’.

28.     A medical impairment assessment form completed by Dr Peter Keith on 5 January 2010 under ‘Respiratory Condition’, in response to the question ‘Does Mr Menzies experience any symptoms of Chronic Obstructive Pulmonary Disease?’ noted ‘Yes,’ ‘Mild sputum and cough, Mild effort, dysponea’ and that he used a ‘spiriva daily’.

Evidence of Mr Menzies

29.     At the hearing, Mr Menzies explained the inconsistencies in the records of his smoking history on the basis that he became irritable with the repetition of ‘stupid questions’ and did not give the responses his full attention.  He said his weekly smoking ration in Korea was 2 tins of 50 cigarettes, that is, 100 cigarettes a week or about 14 a day.  

30.     In response to a question about where he might have obtained cigarettes in excess of his ration, he said about 30 per cent of the soldiers in his platoon did not smoke and their rations were distributed. He also mentioned that Australian and United States members of the services regularly swapped food and other items and he could have obtained extra cigarettes from that source too. He said he smoked more than 2 packs a day of cigarettes as he was smoking about 1 cigarette every 20 minutes. 

31.     His evidence was that on service in Korea for, as he said ‘one year, 86 days’, as platoon sergeant and regimental drum major, he was responsible for up to 48 men.  He said none of his men ever suffered any injuries. He had to see that his men were fed properly, and he would acquire food to supplement their basic rations. He also had to make sure they wore gloves when outdoors, that they were warm and in good physical health. In winter, this task was often carried out at temperatures of minus 35-40 degrees Celsius, and involved walking around trenches and up hills.  .  . His work often involved being out of bed by 5.00am and frequently he did not get to bed till late. He said he smoked when walking, when sitting and when undertaking his duties.

32.      Although his units were stationed in the Demilitarized Zone, they were only about 3 miles from the border with North Korea.  Every three weeks or so, the North Koreans would ‘put on a fireworks display’. The area was also heavily mined and if someone trod on a mine there would be an explosion.  At the foot of the hills there was barbed wire. At times you could hear rustling and it was difficult to know whether it was Manchurian rats or infiltrators from North Korea. The noise often led to machine gun fire, and at first light he and his troops would go out and check whether the noise had been due to rats or people.  He said it was nerve wracking.

33.     He said he increased his smoking because of the stress due to these responsibilities and the conditions in which he served.

34.     When asked about the strength of his memory, Mr Menzies said that it was not as good as in former times because of his medication. He explained that from about mid 2007 until the present the severe pain from his back condition has been treated with spinal injections, epidurals and spinal blocks.  Most recently he has seen a pain management specialist who has prescribed tablets for neuropathic pain. These various treatments, together with the fact that forms were regularly filled in by others on his behalf, could have had a bearing on the accuracy of the records in this later period.

35.     He also attributed part of his memory deterioration to taking aluminium hydroxide tablets.  This led to a severe haemorrhage in 1963. He was operated on following the haemorrhage and a portion of his stomach was removed. He also had medical advice from Dr Nicholas Brand at that time that he ‘would die’ if he did not stop smoking. The combination of the haemorrhage, the operation, his time in hospital, and the warning led him to cease smoking completely in 1963.  He says since then he finds even the smell of cigarette smoke unpleasant.

Legislation

36.     The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act). Sections 9 and 13 provides for compensation for a war-caused disease that ‘arose out of, or was attributable to, any eligible war service’. Section 5B, Schedule 2 of the Act defines war and operational areas to include service in Korea from 27 June 1950 to 19 April 1956.

37.     The relevant standard of proof relating to Mr Menzies’ period of operational service is the reasonable hypothesis standard in s 120(1), (3) of the Act. That standard is modified by s 120A which imposes the requirement that to attain the standard in s 120(1), (3), a claim must meet one or more factors in Statements of Principles relating to the claimed injury or disease.

Issues

38.     The issues are:

·Whether in terms of Mr Menzies’s operational service, his consumption of cigarettes meets factor 5(a) in the Statement of Principles, Instrument No 30 of 2004.

·If so, a further issue is whether Mr Menzies smoking habit was due to an occurrence, or arose out of or was attributable to his operational service in Korea.

Consideration

39.     There is no issue that Mr Menzies served in the Australian Army between 25 July 1950 and 18 October 1955.  Nor that he served in Korea between 20 March 1954 and 16 May 1955 and that his Korean service was service in an operational area and hence operational service.[3]  Mr Menzies claims that his smoking increased due to his Korean service.

[3] Act s 6E.

40.     Section 13(1) of the Act provides that where a veteran has become incapacitated from a caused disease, the Commonwealth is liable to compensate the veteran by way of a pension.

41.     Section 9 of the Act provides that a disease is taken to be war-caused if the disease ‘resulted from an occurrence that happened while the veteran was rendering operational service’ (section 9(1)(a)) or the disease ‘arose out of, or was attributable to, any eligible war service’ (section 9(1)(b)).

42.     Section 120(1), (3) of the Act provides for the standard of proof to be applied to the issue of whether the disease is war-caused.  The standard in cases of operational service is the ‘reasonable hypothesis’ standard and is not met if the Tribunal ‘is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination’. There is no onus of proving any matter relevant to the decision (section 120(6) of the Act).

43.     Section 120(1) and (3) are affected by section 120A of the Act which provides that a ‘hypothesis connecting … a disease contracted by 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 … that upholds the hypothesis’ (section 120A(3)).

44.     The application of sections 120(1) and (3) and 120A(3) of the Act  was explained in Repatriation Commission v Deledio,[4] where the Full Court of the Federal Court said:

1         The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2         If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under section 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3         If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by section 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proven or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.

4         The Tribunal must then proceed to consider under section 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[5]

[4] Repatriation Commission v Deledio (1998) 83 FCR 82.

[5] Id at 97- 98 (Beaumont, Hill and O’Connor JJ).

45.     Under the relevant Statement of Principles, Instrument No 30 of 2004 Chronic Bronchitis and Emphysema, the relevant factor is factor 5(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’.

46.     The definition of ‘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’. 

Smoking 20 cigarettes a day is equivalent to one pack year.

47.     Mr Menzies indicated in his claimant report to the Department of Veteran’s Affairs on 1 May 2007 that he first noticed his symptoms of chronic bronchitis in the ’1980s’. The Tribunal finds that the clinical onset of chronic obstructive pulmonary disease was confirmed by Dr Lee in his report of 22 August 2007, who mentions a ‘thirteen year smoking history’. At the Tribunal hearing, the representative for the Repatriation Commission conceded that the quantity of cigarettes that Mr Menzies smoked exceeded the minimum required in factor 5(a) in the relevant Statement of Principles.

48.     As Mr Menzies, on the evidence, was smoking at least 20 cigarettes a day in the period from 1955 when his service in Korea came to an end, until 1963 when he ceased smoking, the Tribunal finds that the concession was properly made. Mr Menzies had been smoking at least five pack years of cigarettes before August 2007. That means a reasonable hypothesis is raised, provided the smoking related to Mr Menzies’ service.

49.     The Repatriation Commission had found that ‘there is no history of cigarette smoking that is causally related to Mr Menzies’ operational service’. On review the Veterans’ Review Board upheld the rejection of the claim by the Repatriation Commission on the basis that inconsistencies in the evidence about Mr Menzies’s smoking left it:

… unable to make sufficient findings of fact as to when Mr Menzies started smoking, at what rate and what changes in his smoking habit there were.  It therefore was unable to find a causal connection between his smoking and his Korean war service.

50.     The Tribunal questioned Mr Menzies with a view to clarifying the inconsistencies in the evidence about his smoking.  There are two periods to note:  the first involves the period from 1950 until 1963; the second concerns the records in the period from 2007 to the present.

51.     The records in the first period, taken mainly from clinical notes, are:

·1950: 40 cigarettes a day (Dr Dwyer, DMO).

·1956:  20 cigarettes over 2 days (Dr Gentile, psychiatrist).

·1956: 25-30 cigarettes a day (Dr Wippel, DMOl)

·1957:  ‘Very little’ (departmental medical examination, Dr Lancaster).

52.     In the second period, from 2007:

·June 2007: Ex-smoker – 90 cigarettes a day (Dr Antoun.)

·August 2007: ‘had a thirteen year smoking history of up to 80 cigarettes a day’ (Dr Lee).

·April 2009:  smoking questionnaire – cigarettes/day: 20 in 1950; 30 in 1951; 40 in 1952; 80 in 1953.

·November 2009:  smoking questionnaire – cigarettes/day: 80-90 while in Korea.

·March 2010:  application to VRB – cigarettes/day: 80 prior to Korea; 100 on service in Korea.

53.     Although Mr Menzies said in one record that he started smoking in Korea, the preponderance of medical and other evidence, as evidenced in the records from two periods listed in paragraphs [40] and [41] is that he was an established smoker by 1954. At the hearing Mr Menzies also conceded that he had been a smoker prior to commencing his service in Korea, although he said he did not smoke until he joined the Army.

54.     There remains an issue about the rate of smoking.  The medical records for both periods showed that he smoked anything from ‘very little’,[6] through 10 a day,[7]  to between 25 and 100 a day.[8]

[6] Dr Lancaster.

[7] Dr Gentile.

[8] Dr Wippell, Dr Dwyer, Dr Lee, Dr Antoun, the smoking questionnaires, applications and record of the VRB hearing.

55.     Even granted some reluctance to acknowledge to departmental medical officers his true rate of smoking, the evidence in the first period up to 1957, when Mr Menzies left Korea, is that his smoking was much less than the 80 or more cigarettes a day he later claimed. The figures in the records of the earlier period from 1950 to 1957, if taken at face value, record him smoking 40 or so cigarettes in 1950, to at most 30 cigarettes a day by 1957. That is a reduction not an increase in his rate of smoking at that time.

56.     The later records from 2007 are more consistent and indicate a smoking rate of at least 80 cigarettes a day while in Korea.  However, the Tribunal takes into account that this was some 50 years after that service. Mr Menzies conceded that his memory was not as good as hitherto, and may have been affected by medication, particularly from 2007, for his other medical conditions. Accordingly the Tribunal allocates more weight to evidence from that earlier period than to the period from 2007, not least because the earlier figures were contemporaneous.

57.       The Tribunal also takes into account that, according to Mr Menzies, Australian troops were allocated a ration of only two tins of 50 cigarettes a person while in Korea, that is, 100 per person, per week. Even allowing for extra rations from the redistribution of cigarettes by the non-smokers in the units, and to possible barter arrangements with members of the US services in Korea, it was unlikely Mr Menzies would have been able to acquire the 500 to 700 cigarettes claimed in the records from 2007 as his rate of smoking.

58.     Mr Menzies’ statement that he chain-smoked at one cigarette every 20 minutes is also at odds with his claimed rate of smoking while in Korea. Even if he was smoking at that rate for 16 hours a day (allowing some 8 hours a day of non-smoking due to a combination of personnel management tasks precluding smoking, sleeping, eating, bathing, dressing, and management of uniform and kit), that would amount at most to less than 50, not 80 or more, cigarettes a day. Even this figure is hypothetical, since no evidence was provided to establish how many hours a day Mr Menzies would have been in a position to smoke at that rate. Although his evidence was that the days were often long, no information was provided as to how long, how often he had had long days, nor whether he was able to chain-smoke throughout that period, which is unlikely.

59.     Given the contemporaneous records of a much lower rate of smoking than claimed in the period from 2007, the size of the cigarette rations for Australian troops, the length of time since his service in Korea, and Mr Menzies’ evidence about his memory problems, the Tribunal finds that it is unlikely that he smoked 80-90 cigarettes a day while in Korea.

60.     Furthermore, evidence that he increased his smoking on service is tenuous.  The medical evidence suggests he was smoking 40 cigarettes a day in 1950, but possibly less by 1957.  Even if Mr Menzies’ account of his smoking at the rate of one cigarette every 20 minutes is accepted, there is no reliable evidence about how many hours a day he maintained that rate. 

61.     In addition, any link between an increase in his smoking and events on service was not established. Mr Menzies did not provide the Tribunal with any evidence that he had faced any threat to his personal safety during that period. He also noted in evidence that none of his men were injured during the time he was in Korea. Further the report of Dr Gentile, a psychiatrist, based on his interview with Mr Menzies in 1956, is that he ‘did not have much stress on Service’.

62.     The Tribunal notes that Mr Menzies’ management of his units, according to his account, was laudable. Nonetheless, in relation to his smoking on service, the available evidence does not enable the Tribunal to decide the quantity of cigarettes he smoked per day. So it is not possible to be satisfied of his rate of smoking. All that can be inferred is that he was an established smoker at the time his service commenced, and that during service in Korea, he smoked regularly.  The Tribunal is not able to establish whether he was smoking at an increased rate. Even if the Tribunal is wrong in that finding, the Tribunal has not found a causal link between the nature of Mr Menzies’ service and any increase to his rate of smoking while in Korea.

63.     Accordingly, the Tribunal is satisfied beyond reasonable doubt that Mr Menzies’s chronic obstructive pulmonary disease did not arise out of service. The decision under review is affirmed.

Dates of Hearing   23 November 2011

Date of Decision   07 December 2011
Solicitor for the Applicant           Self Represented
Solicitor for the Respondent      Nigel Bunn
  Department of Veterans’ Affairs