Moroney and Repatriation Commission
[2006] AATA 168
•27 February 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 168
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/502
VETERANS' APPEALS DIVISION
Re: DENNIS JOHN MORONEY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 27 February 2006
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Regina Perton-
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ naval service – ischaemic heart disease – smoking ‑ whether war‑caused – decision affirmed
Veterans’ Entitlements Act 1986 ss 9(1), 9(2), 119, 120, 120(4),120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Tuite (1993) 29 ALD 609
Stoddart v Repatriation Commission (2003) 197 ALR 283
Treloar v Australian Communication Commission (1990) 97 ALR 321Woodward v Repatriation Commission (2003) 200 ALR 332
REASONS FOR DECISION
27 February 2006 Regina Perton, Member
1. Dennis John Moroney is 58 years old. He served in the Royal Australian Navy for over 21 years, from 8 January 1964 to 7 May 1985. Mr Moroney saw operational service in Vietnam on board HMAS Melbourne from 31 May 1965 to 22 June 1965 and on HMAS Sydney from 1 November 1972 to 30 November 1972. Mr Moroney suffers from lumbar spondylosis, sensori-neural hearing loss of the left ear and bilateral tinnitus. The respondent accepts these disabilities are war-caused; and Mr Moroney receives a disability pension of 80 per cent of the general rate.
2. On 5 March 2003, Mr Moroney lodged a claim to have his heart problems accepted as a disability that is war-caused. This condition was classified by a delegate of the Repatriation Commission as Ischaemic heart disease. The delegate refused Mr Moroney’s claim on 29 May 2003. The Veterans’ Review Board (VRB) affirmed the delegate’s decision on 15 March 2004.
3. The issue before the Tribunal is whether the ischaemic heart disease was war-caused. The ischaemic heart disease may be attributable to Mr Moroney’s smoking. There is no dispute that Mr Moroney suffers from the medical condition.
EVIDENCE
Mr Moroney
4. The Tribunal had before it a number of statements by Mr Moroney concerning his smoking. In a written statement dated 13 July 2004 (Exhibit A2), Mr Moroney stated:
…
2. I was 16 years of age when I joined the navy and was a non-smoker. I commenced smoking after I joined the navy because everyone smoked, and I wanted to fit in. I was smoking around 10-15 cigarettes per day.
3. I was 17 years of age when I was serving on HMAS “Melbourne” in 1965. We had been deployed at sea for a long time and were on the way back to Australia, when we were ordered to escort HMAS “Sydney” to Vietnam. This tour was unexpected and caused me a lot of anxiety.
4. Because of stress associated with going into a war-zone, I increased my level of smoking to around 20-25 cigarettes per day.
5. I increased this level of smoking to around 30-40 cigarettes per day, when serving on HMAS “Sydney” in 1972 when we were in Vietnam.
6. I continued smoking 30-40 cigarettes per day until 1990, when I stopped smoking.
5. In a Department of Veterans’ Affairs (DVA) form entitled Claimant report – Cigarette smoking (the smoking questionnaire) completed on 4 April 2003 (T11), Mr Moroney stated that he started smoking when he joined the navy. He said that he had started smoking because …my mates talked me into it, availability to relieve boredom and stress. He stated that his consumption changed from 10-15 cigarettes per day to around 30-40 per day by 1985. The reason for the change in his smoking habit was given as …I had formed a habit of smoking.
6. In a DVA smoking questionnaire completed on 18 December 2003 (T18), Mr Moroney stated that he started smoking when he joined the navy in 1964 and during that year, he smoked at the rate of 3 or 4 cigarettes socially when he and his colleagues went out. He indicated that he started smoking regularly due to peer pressure and availability. He provided a typewritten response to the question of his changes in smoking history:
…
In my previous smoking questionnaire I stated that the date of change was 1985 where I smoked 30-40 per day and that the reason for this was that “I had formed a habit of smoking”.
What I meant was that by the year 1985 I was smoking 30-40 per day and more like 40 than 30. This occurred over the period of my service, and particularly after we sailed to Vietnam in 1965 and then again in 1972. During these trips which was on the ‘Sydney’ we both took young diggers to Vietnam and brought those young Diggers back who had been there for their Tour, as a result of this I did increase my cigarette intake, which I maintained until I gave up in 1990.
7. In oral evidence Mr Moroney stated that he was 17 years old when he made his first trip overseas in 1965. He said that he was both excited and apprehensive. He believed that he was heading for Vietnam although there was limited information available to him. He said he was not consciously aware that he had been increasing his level of smoking. However, when he arrived back in Sydney, he realised that one packet of 20 cigarettes was not enough for the evening and that he was smoking about 30 cigarettes per day. Mr Moroney said that cigarettes were readily available on board ship at duty-free prices. He said that by the time he left the navy in 1985, he was smoking about 30-40 cigarettes per day. He could not provide specific dates but said that there was an increase over time. Mr Moroney stated that nearly everyone smoked. There were smokos in the mid-morning and mid-afternoon while on duty.
8. Under cross-examination, Mr E Nyhof, the advocate representing the Repatriation Commission, brought to Mr Moroney’s attention the different responses he had given as to when he increased his level of smoking. Mr Moroney believed that his comments in the statement made on 4 April 2003 arose out of his misinterpretation of the question asked of him. He said that his smoking habit had increased over time. It had not suddenly changed from 20 - 25 to 30 - 40 per day in 1985. Mr Moroney denied that he was attempting to change his earlier answers in the questionnaire dated 18 December 2003. He also indicated that he had corrected an error in his statement concerning the ships he was on, when he appeared before the VRB, in that the first trip was on HMAS Melbourne and the second on HMAS Sydney. Mr Moroney conceded that he had signed the form on 18 December 2003 knowing that there were some incorrect details. He said that when he signed that form, it had been his belief that he had been on the ships when they transported soldiers to and from Vietnam. He said he now believes that was not correct. Mr Moroney said that he now believes that the navy transported equipment to Vietnam on HMAS Sydney and that there were serving soldiers on the ship. He said that in his 18 December 2003 statement he confused these soldiers with those returning from Vietnam. Mr Moroney indicated that reading Commodore P.M. Mulcare’s report (Exhibit R3) had refreshed his memory. Mr Nyhof asked Mr Moroney whether he knew that the last battalion of Australian soldiers returned from Vietnam in March 1972. Mr Moroney said that he did not know that. He conceded that no soldiers joined the ship in Vietnam to return to Australia in November 1972.
9. Mr Nyhof drew to Mr Moroney’s attention responses he had given to questions at the VRB on 15 March 2004 (Exhibit R4). Mr Nyhof highlighted inconsistencies between Mr Moroney’s responses before the VRB and his written statements and oral evidence before the Tribunal to date, concerning his smoking. Before the VRB, Mr Moroney had said that he increased his intake of cigarettes as he became more tolerant of its effects. He also estimated his smoking rate to be 15 to 20 cigarettes per day in 1965. Mr Nyhof also highlighted the response Mr Moroney gave to the VRB, stating that there was a noticeable rise in his smoking in 1972 because of the impact upon him of talking to the soldiers they were bringing back from service in Vietnam.
10. Mr Moroney justified the inconsistencies and errors in his responses on the basis that he had been trying to remember what happened 40 years ago. In response to Mr Nyhof’s question as to why he changed his responses in the eight months between the smoking questionnaires of April 2003 and December 2003, Mr Moroney said that he could not recall exactly why. Mr Moroney attributed his decision to change the statement to the need to clarify his earlier comments.
11. Mr Nyhof highlighted aspects of Dr Peter Graf’s report, dated 13 June 2001 (Exhibit R2). Dr Graf is a consultant psychiatrist. Dr Graf reported Mr Moroney as saying that he did not claim to have any psychiatric condition or stress arising out of the trips to Vietnam but rather attributed psychological symptoms to a back injury occurring while playing sport. Mr Moroney was unable to recall seeing Dr Graf after parts of the report were read to him.
12. Mr Nyhof read out part of Professor Richard Harper’s report, dated 7 January 2005 (Exhibit R1). Professor Harper is an interventional cardiologist., He described Mr Moroney’s smoking habits at various points in time and the reasons Mr Moroney had attributed to the increase. Professor Harper stated that Mr Moroney had told him that he smoked between 10 and 15 cigarettes per day from 1964, when he joined the navy, to May 1965, when he increased his smoking to 20 to 25 per day. Mr Moroney had told Professor Harper that the increase in 1965 was due to his anxiety about being in a war zone. He had also said that his smoking increased in November 1972 to 30 to 40 cigarettes per day and continued at that level because he was affected by the haunted look on the soldiers’ faces due to their service in Vietnam. Mr Moroney replied that despite not seeing land in 1965, and despite his comment that his anxiety was mixed with excitement, he still believed that the anxiety of the trip had led to an immediate increase in his level of smoking. Mr Moroney said that neither ship had been involved in any combat on his trips in 1965 or 1972.
13. Under re-examination Mr Moroney stated he had not made a claim to DVA for stress nor claimed to be suffering from a psychiatric condition. He maintained the view that his two tours of duty were contributing factors to his increase in smoking.
Writeway Report
14. In a report dated 27 April 2005 (Exhibit R2) Commodore Mulcare of the Writeway Research Service provided details of Mr Moroney’s navy service and the activities of HMAS Melbourne during June 1965 and HMAS Sydney during November 1972. HMAS Melbourne had been on Far East Fleet exercises during March and April 1965 and was programmed to return to Australia in late May 1965 but there was a change of plan. HMAS Melbourne and two other ships escorted HMAS Sydney for several days, from Subic Bay in the Philippines to just outside Vietnamese waters, and then returned to Sydney on 22 June 1965. Commodore Mulcare stated in paragraph 10:
…As noted in the ship’s Report of Proceedings, there were no incidents while MELBOURNE was escorting SYDNEY, and there is no evidence of any incidents or threats to the ship at any other time during the period of operational service.
15. In relation to the operational service on HMAS Sydney in November 1972, Commodore Mulcare stated that, following a 5 month refit, the ship sailed from Sydney on 1 November 1972 with cargo onboard destined for Djakarta, Port Klang in Malaysia, Singapore Naval Bases and finally Vung Tau. The cargo for Vung Tau consisted of foreign and defence aid…for South Vietnam and Cambodia. HMAS Vampire escorted HMAS Sydney from Singapore on 21 November 1972. The ships were in port by day and at sea by night for the two days in Vung Tau. Commodore Mulcare stated that there were no reports of military activity in the vicinity of Vung Tau while HMAS Sydney was there in November 1972. However, there would have been measures in place while the ships were at anchor to guard against attack by enemy divers or floating mines. He stated that Mr Moroney must have been mistaken when he gave evidence to the VRB about bringing home soldiers who had served in Vietnam, as the last Australian troops had been withdrawn in February 1972. Commodore Mulcare also gave an opinion at paragraph 17 of his report:
17. In May 1972, when the veteran joined SYDNEY, he was probably aware that Australian Troops had been withdrawn, and he probably did not expect to go to Vung Tau in the ship. However, he was an experienced sailor and he is unlikely to have been surprised when the unexpected occurred.
16. Concerning the equipment that would have been on the two ships during Mr Moroney’s operational service, and whether that would have caused Mr Moroney to realise he was sailing into enemy waters and heighten fears for his safety, Commodore Mulcare wrote (at paragraph 22):
…Apart from aircraft and associated equipment MELBOURNE did not carry anything on the flight deck. Some photographs of the cargo on SYDNEY’s flight deck in November 1972, and a photograph of loaded barges leaving the ship in Vung Tau…[were] attached. There was nothing sinister about SYDNEY’s cargo, and Vung Tau was not ‘enemy waters’, but it was in an area where the enemy might be able to launch clandestine attacks on ships, particularly by divers or floating or semi-submerged mines. This [is] why SYDNEY had an escort ship, why Operation Awkward was implemented when ships were anchored, and why ships steamed off shore overnight, when cargo was not being unloaded.
17. In relation to smoking, Commodore Mulcare stated in his report that cigarettes were duty free when ships were in Australian waters and considerably cheaper than onshore prices. There was no restriction on the number of cigarettes that could be purchased in the ship’s canteen but only a limited number could be taken off the ship. When a ship sailed for overseas, cigarettes became duty free and cheaper. Commodore Mulcare indicated that cigarette smoking was common in the 1960s and 1970s, without the social stigma that it has today.
18. In oral evidence Commodore Mulcare indicated that there is no record to indicate when HMAS Melbourne’s crew would have been told of the later return from their exercises, or that they were to escort HMAS Sydney to Vietnam. He stated that there would probably have been rumours before they were officially told. He confirmed that HMAS Melbourne would have sailed no closer to Vietnam on the June 1965 trip than 80 to 100 miles. He also confirmed that there were no incidents reported during that journey.
19. In relation to the November 1972 journey, Commodore Mulcare indicated that a report that the Australian Ambassador had luncheon on board the ship in Vung Tau harbour was not an indicator that being in Vietnamese waters was not dangerous. He said that the decision to anchor at sea by night was a precaution that was taken because Vung Tau was a potentially risky place. Commodore Mulcare stated that there were 44 army personnel on board HMAS Sydney for the journey. He said that his investigations did not reveal any soldiers being picked up in Vung Tau in November 1972.
20. In relation to smoking on board navy ships, Commodore Mulcare said that in 1965 and 1972, smoking was permitted in most parts of the ship except the magazines, the cafeteria at meal times and areas for refuelling aircraft etc.
21. Under cross-examination by Mr D De Marchi Commodore Mulcare agreed that there was peer pressure to smoke in the navy at that time. He agreed with Mr De Marchi that Vung Tau harbour had the potential to be dangerous and said that was why precautions were taken. He described the type of precautions as including divers searching the anchor cable, patrol boats ahead of the ship, lookouts posted and other measures.
Dr Harper
22. In his report dated 7 January 2005 Professor Harper, stated that there is no doubt that Mr Moroney does suffer from ischaemic heart disease. Based on Mr Moroney’s history and treatment, Dr Harper believed clinical onset was approximately June 2000. In response to a specific question as to whether Mr Moroney satisfied any of the factors in the Statement of Principles (SoP) in relation to ischaemic heart disease, Dr Harper wrote (at page 2):
…
Undoubtedly a major contributor to Mr Moroney's ischaemic heart disease is his past history of smoking. Mr Moroney told me that he began smoking shortly after he joined the Navy in 1964. He smoked between 10 to 15 cigarettes a day until May 19965 when his smoking habit increased to around 20 to 25 cigarettes a day. He attributes this to operational service in Vietnam. At that time he had been on duty in south-east Asia and had expected to return to Australia but on the way back to Australia his ship was suddenly ordered to escort HMAS Sydney to Vietnam. He was 17 years of age at the time and was looking forward to returning to Australia. He told me that this change in plan caused him considerable anxiety particularly as it involved him going in to a war zone. He stated that his increased level of smoking from 10 to 15 cigarettes a day to 20 to 25 cigarettes a day was a direct result of this anxiety.
From 1965 to 1972 he continued to smoke between 20 to 25 cigarettes a day until November 1972 when he again had operational service in Vietnam. At this time he was serving on HMAS Sydney which embarked in Vung Tau Harbour. The ship unloaded supplied during the day and had to put out to sea night because of fear of attack during the night. He states that this resulted in significant anxiety and caused him to increase his smoking to 30 to 40 per day. He continued this habit until 1990 when he ceased smoking because he realised… that it was likely to affect his long term health. He also mentioned that one reason that he persisted with smoking at this level was that he was very put out by the haunted look on the soldiers that returned home from Vietnam on HMAS Sydney in 1972.
Mr Moroney’s level of smoking satisfies Paragraph 5(III) of Statement of Principle No. 53 of 2003 as amended by No. 9 of 2004 for ischaemic heart disease.
…
If it is accepted that Mr Moroney's operational service caused the increase level of smoking then in my opinion his operational service can be related to his subsequent development of ischaemic heart disease.
Dr Graf
23. In his report dated 13 June 2001 Dr Graf, stated (at pages 1 ‑2):
…
Mr. Moroney does not claim any psychiatric condition or stress arising out of the collision with U.S.S. Evans [collision of HMAS Melbourne with US destroyer in 1969] or the trips to Vietnam.
He instead attributes psychological symptoms due to a back injury. This occurred late in 1971 while he was playing cricket and reoccurred in 1976 while playing softball in the Philippines. On both occasions he was in the Navy and therefore the injury was accepted as service related…
…
Beyond these feelings of frustration at his lack of full fitness with respect to his back, there are no formal psychiatric symptoms. He certainly never suffered from anxiety or depression or any other formal psychiatric condition. He has never required any treatment for psychiatric or psychological symptoms.
Dr Rosenbaum
24. In a report dated 3 September 2004 (Exhibit A1) prepared for Mr Moroney’s solicitors, Dr Maurice Rosenbaum cited the smoking history given to him by Mr Moroney:
…
During the Naval service the claimant served in the region of Vietnam on HMAS Melbourne in the year 1965 for several weeks and during 1972 he served on HMAS Sydney in the Vietnam war zone for approximately five weeks. While on HMAS Melbourne the ship was required to escort HMAS Sydney. This tour was associated with major anxiety, the major cause being related to the presence of a war-zone as well as diversion to the war-zone on the way back to Australia.
While serving on HMAS Sydney the claimant was again subjected to anxiety as a result of being in the region of a war-zone.
…
Prior to war service the claimant did not smoke (at that time he was 16 years of age). After he joined, because of peer pressure (everybody smoked), he began smoking around 10-15 cigarettes per day. At the time of the service in Vietnam the claimant indicates that his cigarette intake went up to 20-25 cigarettes per day. This subsequently increased to 30-40 cigarettes per day… until 1990 when he stopped.
…
MEDICO-LEGAL ASPECTS
1. Based on the history as provided by the claimant, the cigarette intake was, in part, associated with Naval service and substantially increased as a result of exposure to the war-zone in Vietnam. On this basis it would be reasonable that the cigarette intake, at least in substantial part, be accepted as war-service caused.
2. It is beyond dispute that the cigarette intake is a substantial cause of coronary artery disease.
3. Review of the statement of principles (instrument no. 53 [of] 2003, statement of principles concerning ischaemic heart disease), the following is relevant to factor 5e:
a.The claimant smoked at least five packets of cigarettes.
b.Based on the history provided by the claimant, the onset of coronary artery disease came within five years of cessation of smoking.
c.Because the cigarette intake was very heavy, it is likely that the claimant’s cigarette intake approached, at least, five pack years and accordingly the time scale can be increased to 15 years.
d.There appears to be a clear-cut train of events leading from stress associated with Naval service to the commencement of smoking, stress associated with war service to a substantial increase in smoking and subsequently to coronary artery disease.
CONSIDERATION OF THE ISSUES
25. Section 9 of the Act sets out the circumstances in which a disease suffered by a veteran can be considered a war-caused disease. It provides:
9(1)Subject to this section and section 9A, 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:
…
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
…
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
…
(b)if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war‑caused disease contracted by the veteran.
…
26. The process of deciding whether the material before the Tribunal connects a disease, injury or death to war service, where s 120 and s 120A of the Act apply, was laid down by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four‑step process:
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 [Statement of Principles] determined by the authority under s 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 an 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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved 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 s 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.
27. Both parties agree that Mr Moroney is suffering from ischaemic heart disease and that his heavy smoking prior to 1990 has been a contributing factor. However, there is disagreement on whether Mr Moroney’s operational service led to an increase in his level of smoking.
28. Mr De Marchi submitted that, on the material as a whole, there is a reasonable hypothesis connecting Mr Moroney’s ischaemic heart disease with the stressful events experienced during his operational service in the navy and the resultant increased level of smoking. He stated that Dr Rosenbaum’s opinion, which was based on the history provided by Mr Moroney, supported that view. He said that Repatriation Commission v Law (1980) 31 ALR 140 supports the causal link between the operational service and the level of smoking. Other cases cited as supporting Mr Moroney’s claims included Repatriation Commission v Tuite (1993) 29 ALD 609 and Treloar v Australian Communication Commission (1990) 97 ALR 321.
29. Mr Nyhof submitted that there was no causal or temporal relationship between the applicant’s smoking and his operational service. He submitted that Mr Moroney’s evidence was contradictory. He highlighted inconsistencies in Mr Moroney’s responses on the various questionnaires. Mr Nyhof also stressed that Mr Moroney had told doctors that the haunted looks on the faces of soldiers returning from Vietnam during his 1972 operational service had caused him to increase his smoking level when, in fact, there had been no such returning soldiers. Mr Nyhof stated that the evidence showed that there had been no threat to the ships or the ships’ companies during the two trips. He also pointed to Mr Moroney’s comments to Dr Graf in 2001, that he had not found his two periods of operational service stressful. He said that Stoddart v Repatriation Commission (2003) 197 ALR 283 and Woodward v Repatriation Commission (2003) 200 ALR 332 support his submissions, indicating that they had superseded Law.
30. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
31. Whether an applicant suffers from a condition is a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), to be decided on the balance of probabilities, under s 120(4) of the Act. The parties agree, and the Tribunal finds, that Mr Moroney suffers from ischaemic heart disease.
32. The Tribunal has considered each of the four steps from Deledio. In respect of the first step, the Tribunal finds, after taking into account all relevant matters, that the material points to a hypothesis connecting ischaemic heart disease to the circumstances of the particular service rendered by Mr Moroney.
33. In respect of the second step from Deledio, the relevant SoP is Instrument N° 53 of 2003 concerning ischaemic heart disease, as amended by Instrument N° 9 of 2004.
34. The applicant relies on factor 5(e) of the relevant SoP which states:
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
….
(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 before the clinical onset of ischaemic heart disease…
35. In respect of the third step from Deledio, the Tribunal accepts that Mr Moroney’s level of cigarette smoking during the relevant period was sufficient to satisfy factor 5(e) of Instrument N° 53 of 2003; that clinical onset occurred between 1990 and 2001; and that Mr Moroney ceased smoking in 1990. In these circumstances there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the SoP. Consequently, Mr Moroney satisfies the third step.
36. In respect of the fourth step from Deledio, that is whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact.
37. The Tribunal accepts that Mr Moroney commenced smoking when he joined the navy, just before his sixteenth birthday, in 1964. He has given differing accounts of his consumption at that time, ranging from 3-4 per day to 15-20 cigarettes per day. However, his most consistent answer has been that he was smoking 15 to 20 cigarettes per day in his early naval career. By the time he completed service in 1985, his rate of smoking had increased to 30 to 40 cigarettes per day.
38. Mr Moroney did not initially claim that his two periods of operational service in 1965 and 1972 had been the major triggers for an increased consumption of cigarettes. In the smoking questionnaires lodged in April 2003 and December 2003, Mr Moroney stated that his smoking had increased over time. He attributed the increase to greater tolerance of cigarettes, their ready availability, peer pressure and boredom. In relation to an earlier DVA claim concerning his back problems, he told Dr Graf that he did not suffer stress from his operational service.
39. Naval records indicate that in 1965, during Mr Moroney’s first period of operational service, HMAS Melbourne provided an escort for HMAS Sydney for several days and did not enter enemy waters at any stage. There is no official record of any incident occurring on the ship or of any particular danger being faced during that time. Nor did Mr Moroney claim that any such incident occurred or that he faced any such danger. Mr Moroney claimed that he increased his smoking rate in November 1972 because of the impact on him of seeing soldiers who were returning from service in Vietnam on HMAS Sydney. However, this did not happen. The Tribunal accepts Commodore Mulcare’s evidence that the last Australian soldiers left from Vung Tau in early 1972.
40. The Tribunal accepts that Mr Moroney’s cigarette smoking increased during his period of service. However, it is not satisfied that his rate of smoking increased significantly as a result of his operational service. The Tribunal prefers Mr Moroney’s early descriptions of his smoking pattern and the reasons for its gradual increase, to the explanation he provided later. In his evidence before the VRB and in the histories he gave to Dr Harper and Dr Rosenbaum concerning his operational service in 1972, Mr Moroney’s memories of what happened turned out to be mistaken. The Tribunal notes that s 119 of the Act allows the Tribunal to take into account the difficulties arising as a result of the passage of time. However, after seeing Commodore Mulcare’s report, Mr Moroney conceded that the events he had described as taking place in 1972 had not occurred.
41. Mr De Marchi suggested that the Tribunal should take account of Mr Moroney’s perceptions of going into a war-zone as a young man. However, taking into account the evidence that there were no particular incidents, Mr Moroney’s descriptions in 2001 of the lack of impact on him of his operational service and that Mr Moroney admitted that it was hard to remember exactly how much he smoked 40 years ago, the Tribunal is not satisfied that his two short periods of operational service resulted in an increase in his smoking levels. The Tribunal is satisfied that there is material which establishes beyond reasonable doubt that there is no sufficient ground for determining that the condition of ischaemic heart disease was war‑caused. Therefore, the Tribunal finds that the fourth step is not satisfied in relation to this condition.
42. The Tribunal finds that Mr Moroney’s ischaemic heart disease is not war‑caused.
DECISION
43. The Tribunal affirms the decision under review.
I certify that the forty-three [43] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 6 May 2005
Date of decision: 27 February 2006
Advocate for applicant: Mr D. De Marchi
Solicitor for applicant: De Marchi & Associates
Advocate for respondent: Mr E. Nyhof
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
0
9
0