Nicholls and Repatriation Commission
[2004] AATA 649
•24 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 649
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/1413
VETERANS' APPEALS DIVISION ) Re ALBERT HENRY NICHOLLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Assoc. Professor John Maynard, MemberDate24 June 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review. In substitution, the Tribunal decides:
i) Mr Nicholls’ central retinal vein occlusion is a war‑caused disease under s 9 of the Veterans' Entitlements Act 1986 (“the Act”), with effect from 6 June 2001; and
ii) Mr Nicholls is entitled to payment of pension at the special rate under s 24(3) of the Act from 6 June 2001.
(Sgd) Joan Dwyer
Senior Member
VETERANS' APPEALS – whether veteran’s central retinal vein occlusion war-caused under s 9 Veterans' Entitlements Act 1986 – whether material raises a reasonable hypothesis connecting central retinal vein occlusion with service – no relevant Statement of Principles – hypothesis that service related smoking a causative factor for vascular atherosclerosis and vascular atherosclerosis a risk factor for CRVO – material pointing to increased smoking related to service – material pointing to smoking accelerating atherosclerosis and central retinal vein occlusion – association between smoking 36 years earlier and atherosclerosis leading to central retinal vein occlusion – no necessity that the reasonable hypothesis be more probable than another hypothesis – reasonable hypothesis raised – Tribunal not satisfied beyond reasonable doubt that central retinal vein occlusion not war-caused – assessment of rate of pension – decision under review set aside.
PRACTICE AND PROCEDURE – concurrent evidence of medical expert witnesses.
Veterans' Entitlements Act 1986, ss 6, 7, 9, 24, 120, 120A.
East v Repatriation Commission (1987) 74 ALR 518
Bushell v Repatriation Commission (1992) 109 ALR 30
Byrnes v Repatriation Commission (1993) 116 ALR 210
Repatriation Commission v Bey (1997) 149 ALR 721
Cooke v Repatriation Commission (1997) 45 ALD 205
Spencer v Repatriation Commission (2002) 74 ALD 362
Repatriation Commission v Webb (1997) 76 ALR 131Whitworth v Repatriation Commission [2003] FCA 1530
REASONS FOR DECISION
24 June 2004 Mrs Joan Dwyer, Senior Member
Associate Professor John Maynard, Member
1. This is an application for review of a decision of the Repatriation Commission (“the Commission”) made 29 November 2001 and affirmed by the Veterans’ Review Board (“the VRB”) on 15 November 2002. The Commission refused Mr Nicholls’ application for pension for bilateral Central Retinal Vein Occlusion (“CRVO”) on the ground that the condition was not war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 (“the Act”).
2. Most of the hearing took place on 1 July 2003. It resumed on 24 February 2004. Mr Larkin of Counsel appeared for the applicant. Mr Herman, an advocate with the Department of Veterans’ Affairs (“the Department”), appeared for the Commission at the hearing on 1 July 2003. Mr Fergusson, who is also an advocate with the Department, appeared at the resumed hearing. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and also the exhibits tendered during the hearing. Mr Nicholls gave evidence. Evidence for Mr Nicholls was also given by Dr Chiu, an opthamologist, and Dr Luckie, a retinal surgeon. Dr Kowal, who is an opthamologist, gave evidence for the respondent.
3. Mr Nicholls had operational service in the Australian Army (“the Army”) during World War II. He enlisted on 19 April 1940 and served until 23 January 1946. The whole of his service is “operational service” under s 6 of the Act and is also “eligible service”, within the meaning of that term in s 7 of the Act.
4. Under s 9(1)(b) of the Act, a condition shall be taken to be a war-caused disease if it “arose out of, or was attributable to, any eligible war service” rendered by Mr Nicholls.
5. Because Mr Nicholls had operational service, the relevant standard of proof for establishing that his condition was war-caused is that set out in s 120(1) and (3) of the Act. They provide as follows:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) 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.
…
6. Section 120A of the Act provides that, in certain circumstances, a hypothesis may only be regarded as reasonable if it is upheld by a relevant Statement of Principles. Subsection 120A(4) provides that is not the case where the Repatriation Medical Authority has not determined a SoP relating to that injury or disease. There is no SoP for CRVO. Thus, the test we must apply is that of the reasonable hypothesis which was explained in East v Repatriation Commission (1987) 74 ALR 518. The Full Court of the Federal Court said, at 533-4:
…
The adoption of Brennan J’s notion of a reasonable hypothesis meant that Parliament was requiring something by way of causal link, but which fell short of proof of the link — even prima facie — as a fact. The meaning of the phrase “reasonable hypothesis” was felicitously explained by a Veterans’ Review Board in Stacey (Nos V83/0396, V84/0821 and V28/072); words quoted by the Administrative Appeals Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:
“A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary. …
The addition of the word ‘reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be ‘raised’ by material before the Board, we think it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable, even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.
We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
7. That test has been further explained by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30. Mason CJ, Deane and McHugh JJ said at 34 – 35:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connection has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. Thus, in Commissioner for Government Transport v Adamcik [(1961) 106 CLR 292], this court held that there was reasonable evidence to support a claim for damages that emotional disturbance, brought on by an accident, had caused acute lymphatic leukaemia even though only one doctor supported the claim, others rejected it, and there was evidence that for nearly 20 years the medical literature had discarded earlier suggestions that some cases of leukaemia had been the result of trauma. Windeyer J said:
The most that could be urged against Doctor Haines’ evidence is that the cause of leukaemia is not, in a positive sense, known and that his view is thus unproven and not accepted by others: not that it can be scientifically established as false.
However, a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature”. Nor can it be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”.
But leaving aside cases of those kinds, the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable. As we have earlier pointed out, it is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.
8. The concept of a reasonable hypothesis was again considered by the High Court in Byrnes v Repatriation Commission (1993) 116 ALR 210. Mason CJ, Gaudron and McHugh JJ there explained at 215:
The position may be summarised as follows:
(1) First, subs (3) of s 120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2) If a reasonable hypothesis is established, subs (1) of s 120 is applied. The claim will succeed unless:
(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.
9. In Repatriation Commission v Bey (1997) 149 ALR 721, a five member Bench of the Federal Court sat to clarify an apparent inconsistency between the Full Court decisions of East and Cooke v Repatriation Commission (1997) 45 ALD 205 as to the application of s 120(1) and (3). Their Honours Northrop, Sundberg, Marshall and Merkell JJ, with whose reasons Nicholson J concurred, said of the decision in Cooke, at 730:
In the passages from the judgments of Einfeld J and Lee J relied on by the primary judge their Honours concluded that the mere possibility of a connection between a disease and war service is sufficient to constitute a “reasonable hypothesis” on the ground that any hypothesis is no more than a possibility. Accordingly, for the tribunal to say that a reasonable hypothesis is not raised by a mere possibility of a connection reflects a misconception of the task imposed by s 120(3). In our view that course of reasoning ignores the fact that the expression in question is not “hypothesis” but “reasonable hypothesis”. While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker. The reasoning is also inconsistent with what was said by Mason CJ, Deane and McHugh JJ in Bushell (at CLR 414; ALR 34):
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (the raised facts) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
It is also inconsistent with what was said by Mason CJ, Gaudron and McHugh JJ in Byrnes (at CLR 569-70; ALR 214):
The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable.
Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This court restates the position established by East, Bushell and Byrnes. A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the minister’s second reading speech and with authority.
10. The hypothesis relied upon on behalf of Mr Nicholls was based on reports of Dr Luckie and Dr Chiu which linked smoking with CRVO. The hypothesis was that vascular atherosclerosis is a major risk factor for CRVO and that smoking, which was related to Mr Nicholls’ service, is a well known causative factor for vascular atherosclerosis. Thus Dr Chiu wrote in a report of 17 June 2002:
It is well known that vascular degenerative disease, as well as hypertension are the major risk factors of central retinal vein occlusion development. Smoking is a well known factor to cause vascular atherosclerosis. Certainly it is my belief that smoking will predispose central retinal vein occlusion development, if not directly causing.
11. There are thus two components to the hypothesis in this matter. The respondent conceded that, where there is no SoP for the claimed condition, any intermediate conditions in the causation of the claimed conditions do not have to be upheld by a relevant SoP in order to be regarded as forming part of a reasonable hypothesis. This is clear from the judgment of Emmett J in Spencer v Repatriation Commission (2002) 74 ALD 362.
12. The first component to the hypothesis concerns Mr Nicholls’ smoking history. He did not deny that he was smoking before his enlistment in the Army in April 1940. There was no dispute as to the fact that he gave up smoking completely on 11 November 1963 and has not smoked since. The matters as to which there was some issue were the rate of smoking, and the effect of Army service on that smoking habit. The more difficult aspect of the evidence related to the question of whether it was a reasonable hypothesis that a smoking habit, which had ceased approximately 36 years earlier, could have contributed to the development of CRVO in April or May 1999.
13. In his statement made on 19 December 2002 (A1), Mr Nicholls said that before he enlisted he was smoking about 10 cigarettes a week. He said that during service he smoked everyday, at least 15 cigarettes a day, sometimes a packet a day. His smoking habit increased to about 100 a week. He said he continued smoking at about that rate until 11 November 1963. At that date, he was in hospital for a tonsillectomy. A nurse caught him smoking the night before the operation. She “read him the riot act” and he never smoked again.
14. In a second statement made on 5 May 2003 (A2), Mr Nicholls explained that up until enlistment, he had lived with his grandparents. He said that his grandmother was very strict and would have been irate if he had ever been caught smoking or drinking alcohol. He smoked only if he was out at a dance during the week and on Saturday night. He said he thought he would have only smoked about 4 cigarettes a week before enlistment. He thought there had not been much change even after joining the Army, until he was posted to New Britain. At that time, his habit increased to about 20 cigarettes a day, because there was not much to do while in a holding situation waiting for orders. He said he increased his smoking habit due to the ready availability of tobacco and long periods of boredom with little else to do.
15. The respondent had extracted a number of entries from the T Documents and exhibits showing apparent inconsistency in what Mr Nicholls had said at different times as to his smoking habits. Those entries are set out in para 4.4 of the Respondent’s Statement of Facts and Contentions. With abbreviations expanded and some minor corrections, the relevant entries are as follows:
TDocs, p5214/9/87 – Medical Examination and History – Smokes – started 15-16 yrs, smoked more on service. 30/day 11/11/63 stopped
TDocs, p1094I10/88-Statement in support of claim for treatment and pension:
Smoking History
Have you ever smoked?
Do you still smoke?
When did you start smoking?
When did you stop smoking?
What is or was your daily
consumption?
Did your smoking habits
change greatly at any time?
If YES, in what way?
NO YES NOYES
P
Approx 1933/34
Nov 1963
10 - 20
NO YES
TDocs, p1414/3/91 – Decision and Reasons of VRB – He said he smoked heavily during the war...
R5, p110Dandenong Hospital admission notes: 17/1/94 ex-smoker 1 pkt l day for 35 years. Ceased 30 years ago
R5, p111Dandenong Hospital admission notes 17/1/94: ex-smoker - gave up 30 years ago - used to > pack/day
TDocs, p63-64 Smoking questionnaire 24/11/97: started smoking regular basis approx 1933, 18-20/day, it seemed the thing to do - a part of 'growing up' most of our age group did it. Stopped smoking Monday 11/11/63 [nil variations listed]
TDocs, p40 29/11/02 – Application for VRB Review: I smoked for 29 yrs, 20-30 / day
TDocs, p(ix) 15/11/02 Decision and reasons of VRB: advocate said 1933 20cigs every 3 days; During Service > 60cigs/wk; after service > 20 cigs/day - not smoking 1943 when applying for paratroop duty… Gave up altogether -5 yrs in 1950 but pressure at work > took up habit again. ceased completely 11/11/63
TDocs, p(ix)vet to VRB: smoked more than stated by advocate. Pkt a day soon after started full time duty, on top of that smoked anything he could get. Ceased 5 yrs -1950, Ceased altogether in 1963.
A1 19/12/02: Statement by Mr Nicholls 1-2 cigs/day (ie 10/week) before enlistment, increased to 15+, or 20/day during service. dropped back to 60 per week within 6 months of discharge (ie approx. Jul 46), ceased completely in 1963.
16. At the hearing, Mr Nicholls explained that prior to service, he worked at Ball and Welch department store and was not allowed to smoke inside the store. He conceded that he may have smoked 6 – 10 cigarettes a day before service, but he maintained that there had been a big increase during service to around 15 – 20 a day. He said that after service, although he reduced the level of smoking, it was still around 60 a week.
17. Mr Larkin submitted that the inconsistencies in those histories are quite explicable by reason of the difficulty in recollecting, many years on, precisely how many cigarettes Mr Nicholls was smoking at particular times during service.
18. There is evidence pointing to a significant increase in the level of smoking during service, because of the circumstances of service. There is also material pointing to Mr Nicholls maintaining an increased smoking habit after service until 1963, although after discharge he did reduce his habit to a lower level than it was during service.
19. The medical issues are more complex. Dr Chui and Dr Luckie had written reports referring in general terms to atherosclerosis being a predisposing factor for CRVO. Dr Kowal, in a report dated 16 June 2003 wrote that he did not consider it to be a reasonable hypothesis that smoking, which ceased more than 35 years earlier, had a connection with CRVO diagnosed in April/May 1999. He wrote (R1 p1):
Preamble and Summary:
There are two crucial points in this case.
1.What is a reasonable hypothesis?
For a legal layperson such as myself, the term ‘reasonable hypothesis’ has many potential shades of meaning.
I have found most useful the discussion in VRB V91/0433 where the following passage is quoted: “A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts even though not proved upon the balance of probabilities” and on the next page “it is not sufficient for the medical evidence to point to a mere possibility of a connection”.
2.Is it a reasonable hypothesis that smoking for some years and then stopping leads to retinal vascular disease some decades later? This answer is resolved in the negative.
…
20. In regard to the specific issue of smoking and CRVO, Dr Kowal wrote (R1):
There is some evidence of a relationship between smoking and CRVO. An American study (Klein R et al, ‘The epidemiology of retinal vein occlusion: the Beaver Dam Study’, Trans Am Ophth Soc, 1998: 133-143: 2000) showed that current smoking was an independent risk factor.
Less directly related is another study (Williamson TH, Lowe GD, Baxter GM “Influence of age, systemic blood pressure, smoking and blood viscosity on orbital blood velocities”. BJO 79:17-22; 1995) that showed smoking resulted in altered ophthalmic artery velocities in healthy volunteers. It is credible that this could predispose someone to CRVO. I am not aware of any studies where a case of CRVO has actually been attributed to smoking alone.
It is well known and uniformly accepted that smoking predisposes to development of atherosclerosis and subsequent vascular disease in most or all persons. There is some interpersonal variation in susceptibility and expression of any smoking-induced augmentation in the amount and clinical manifestation of this vascular disease. In a small proportion of people the smoking-induced augmentation can be particularly aggressive e.g., Buerger’s disease and endarteritis obliterans.
In most patients, stopping smoking eventually (say, after 15 years) reverses any augmented effect on cardiovascular and cerebrovascular morbidity (ref: Harrison’s Internal Medicine). Despite a return to average risk of vascular damage a certain time after cessation of smoking, a subgroup of patients may exist for whom this reversal with time is incomplete and these patients might remain forever at higher risk of vascular complications even decades after stopping smoking. This latter possibility does not on its own validate the proposition of reasonable hypothesis because “it is not sufficient . . . . to point to a mere possibility of a connection”. Were the CRVO and smoking to be related closely in time (say, current smoking or smoking stopped 1 year previously) then a causal relationship would be non-controversial. [emphasis added]
….
9. Vasculopathic effects of smoking.
I would accept that smoking can cause vascular damage and atherosclerosis. These terms are not synonymous but the clinical manifestations of the terms are similar. Atherosclerosis refers to ‘hardening of the arteries’ largely by deposition of atheroma on the inside of the vessel wall. The commonest cause of vascular damage is atherosclerosis, but there are other causes also e.g. embolic, vasospastic, aneursymal, etc.
21. At a directions hearing, the Tribunal was informed that Dr Chui and Dr Luckie had read Dr Kowal’s detailed report, but that they did not agree that the approximately 35 year gap between the cessation of smoking and the diagnosis of the CRVO made the hypothesis linking smoking with CRVO unreasonable.
22. The Tribunal therefore decided that it would take concurrent evidence from the three expert witnesses, so that they would be able to hear and comment on each others’ evidence as to the issue of whether it is reasonable to hypothesise a connection between smoking and CRVO 36 years after the cessation of smoking. Dr Chui and Professor Kowal appeared in person. Dr Luckie, who was in Shepparton on the day of the hearing, gave evidence over the telephone. He was connected by conference call to the whole of the medical evidence.
23. Dr Kowal had noted in his report of 16 June 2003 (R1) that there was evidence that Mr Nicholls suffered from atherosclerosis prior to the development of the CRVO. He referred to Mr Nicholls’ history of cerebrovascular accident causing abducent nerve palsy in 1980, and to the history of transient ischaemic attacks referred to in a report by Dr Ho of 23 February 1994 (R5, p114). Dr Kowal said they were presumptive evidence for atherosclerosis existing at those times. He also pointed out that, in a letter of 27 April 1994 (R5, p118), Dr Ho referred to Mr Nicholls having aortic arch atheroma. Dr Kowal said that was conclusive evidence that Mr Nicholls had atherosclerosis of the aorta at that time. He commented further that, a carotid study of 24 December 1993 (R5, p106) showed atherosclerosis of the carotid artery.
24. The medical evidence established that Mr Nicholls suffered from atherosclerosis of the cerebral vessels leading to the cerebrovascular accident in 1980 and development of left-sided sixth nerve palsy for which he had vertical muscle transition surgery in 1981 (R5, p100). He also was found to have atherosclerosis of the cerebral vessels in 1993 and 1994. The medical evidence pointed to the cause of the CRVO being atherosclerosis of the cerebrovascular vessels. There was no dispute about the fact that smoking causes atherosclerosis.
25. Dr Chui, Dr Luckie and Dr Kowal are all expert witnesses qualified in the relevant field. In giving their evidence, they referred in detail to a study by Klein, R & B, Moss, S & Meuer, S, “The Epidememiology of Retinal Vein Occlusion: The Beaver Dam Eye Study” (2000) Trans Am Ophth Soc, Vol 98, 133 – 43 (“the Beaver Dam Study”, R2). That study looked at the epidemiology of retinal vein occlusion and included material as to the connection between smoking and retinal vein occlusion. The evidence was that there are two forms of retinal vein occlusion, Branch Retinal Vein Occlusion (“BRVO”) and CRVO, which is the type from which Mr Nicholls suffers, as explained earlier. They are both rare conditions. There were 3593 subjects in the Beaver Dam study, but only 31 cases of BRVO, and 7 cases of CRVO, were identified during the 5 years covered by the study. At page 139 of the study, the authors report finding a strong association between current cigarette smoking (OR4.4) [odds ratio] and BRVO. The study also showed a slight association between BRVO and ex‑smokers, but it was only 1.21 and was not regarded as statistically significant. There were only 7 cases of CRVO identified in the study and that was insufficient for adequate analysis of any possible association between smoking and CRVO.
26. Thus, while the study gives support to a hypothesis linking current smoking with BRVO, which, the expert witnesses at the hearing agreed, probably has a similar causation to CRVO, the report gives no clear support to a link between ex‑smoking and BRVO or CRVO.
27. An important matter for the Tribunal was the weight to be given to the findings of the Beaver Dam Study as it was the only study to which we were referred which looked at the connection between BRVO or CRVO and smoking.
28. Dr Luckie, in a report of 27 March 2002, had written (T docs p 68):
The risk factors for retinal vein occlusion are athero sclerosis [sic], hypertension and diabetes. The predominant risk factor is athero sclerosis [sic] (hardening of the arteries) and cigarette smoking will certainly have played an accelerating role in that. If cigarette smoking has been accepted as a war service related problem by the Department of Veterans' Affairs in the past, which it certainly has for macular degeneration, then one could reasonably contend that the smoking has accelerated athero sclerosis and increased the pre‑disposition to bilateral central retinal vein occlusion, assuming that he has smoked enough "pack years".
29. When Dr Luckie was giving evidence he was asked whether he believed it to be a reasonable hypothesis that the risk of CRVO for Mr Nicholls was increased by cigarette smoking. He said (trans pp33‑34):
Firstly, you have got evidence of atherosclerosis dating back to the 80s in terms of cerebro‑vascular disease. Secondly, atherosclerosis is the most important risk factor for central retinal vein occlusion, hypertension, diabetes, glaucoma are ancillary risk factors. Thirdly, I am not certain of any medical evidence that atherosclerosis is reversible. The mortality from cigarette smoking may be reversible, but central retinal vein occlusion doesn't relate to cardio‑vascular or cerebro‑vascular mortality directly.
Dr Luckie added (trans p34 – 35):
…
I think it is likely that cigarette smoking has accelerated his atherosclerosis and that the atherosclerotic risk factor has persisted and then he has gone on to develop at a much later point in life a central retinal vein occlusion… which is relatively unusual.
…
I think there is progressive atherosclerosis with age and then anything which has accelerated that at an earlier time point, even if the stimulus has been removed, the atherosclerosis is more advanced than it might have been. That to me makes it a reasonable hypothesis. [emphasis added]
30. Dr Luckie was asked whether there was anything in the Beaver Dam Study which persuaded him that the hypothesis that he had formed, as set out in his report, was not a reasonable one. He replied (trans p36):
…I think the numbers that the study generate that lead to retinal vein occlusion are so small, particularly for central retinal vein occlusion, that it doesn't lead to sufficient conviction to change my hypothesis, no.
31. The Tribunal asked Dr Luckie whether he had any evidence for the statement he had made that atherosclerosis is not reversible. Dr Luckie replied (trans p37):
It is true in that I don't have any evidence that it is reversible. It is one of those - I accept the reality that medically we get ingrained with certain aspects of dogma and I have not had demonstrated to me to change that dogmatic view that I am putting now that atherosclerosis itself is a largely irreversible or maybe completely irreversible disease.
32. The Tribunal asked Dr Luckie whether his hypothesis was based on an opinion that any smoking for any period of time increases the risk of atherosclerosis and thus of CRVO. Dr Luckie replied (trans p38):
Certainly atherosclerosis is overwhelmingly the most important risk factor and protracted cigarette smoking has to increase that risk.…30 years of cigarette smoking would qualify.
33. Dr Chiu, in a report dated 17 June 2002 (R8 p7), wrote:
…
It is well known that vascular degenerative disease, as well as hypertension are the major risk factors of central retinal vein occlusion development. Smoking is a well known factor to cause vascular atherosclerosis. Certainly it is my belief that smoking will predispose central retinal vein occlusion development, if not directly causing.
34. At the hearing, Dr Chiu was asked whether, in his opinion, taking into account the Beaver Dam Study, there was a reasonable hypothesis linking Mr Nicholls' smoking with his CRVO. He replied (trans p46):
I think in my mind, if the burden of proof is on a reasonable hypothesis, based on our understanding of the pathogenesis of retinal vein occlusion, branch versus central, they have very similar factors sharing between the two conditions. I think based on that, there is a possible hypothesis you can formulate that there is ongoing damage from initial smoking events, but I agree that looking at the studies that we have, so far either they are slightly flawed to disprove the theory based on epidemiological studies or there is indirect evidence disproving it and from that I cannot say that there is any solid evidence to prove or disprove this hypothesis. So if the burden of proof is to be based on a reasonable hypothesis, I think it is acceptable that there is this hypothesis that we can formulate based on my understanding of the pathogenesis of the condition. [emphasis added]
Dr Chiu added some further considerations supporting the view that the material did point to a reasonable hypothesis linking smoking in the past and CRVO. He said (trans p47):
…it is not fanciful or unreal and is consistent with the known fact or the known sort of pathogenetic mechanism that we know of, so based on that, I would have to say that it is more than a possibility.
35. Dr Kowal's position was that, if it was sufficient for there to be simply a possibility of an association between Mr Nicholls' smoking and his CRVO "it certainly does exist" (trans p46), but it was no more than a possibility, and thus the material did not raise a reasonable hypothesis.
36. One outstanding issue at the end of the first day of the hearing was whether atherosclerosis attributable to smoking is reversible by 36 years of non-smoking. At the conclusion of the first day of hearing, the Tribunal gave leave to the parties to seek further evidence on that issue.
37. Before the resumed hearing, the applicant’s solicitor lodged a report from Dr Pitt, a cardiologist (A3). Dr Pitt referred to three studies – Goya, S. et al "Smoking Cessation and the Risk of Stroke in Middle-Aged Men" (1995) Journal of the American Medical Association, 274: 155; Cook, D.G. et al, "Giving Up Smoking and the Risk of Heart Attacks" (1988) The Lancet, December 13 1998; and Doll, R. & Peto, R. "Morbidity in Relation to Smoking: 20 Years Observations on Male British Doctors" (1976), British Medical Journal 1976, 2: 1525. He wrote that the articles showed that:
… for one major manifestation of atherosclerotic vascular disease, that affecting the coronary circulation, an excess risk still exists even after prolonged cigarette cessation. (A3, p5)
38. Dr Pitt concluded in his report:
Cigarette smoking is universally accepted in the literature as a major risk factor for atherosclerotic disease. It is accepted in the various Statements of Principles dealing with atherosclerotic disease in differing vascular beds. Expert opinion by ophthalmologists and supported by published literature indicates that atherosclerosis is a risk factor for central retinal vein occlusion.
There is literature support and again acceptance by the Statement of Principles for a variety of atherosclerotic disease that in ex-smokers there is still an excess risk. The degree of excess risk is related to the cigarette smoking burden, that is the number of pack years. There is literature support for cerebrovascular disease which is closely related to the retinal atherosclerotic disease and ischaemic heart disease that even when cessation has been prolonged, that is up to twenty years an excess risk still exists.
In the case of Mr. Nicholls the first manifestation of ocular vascular disease was a cerebrovascular accident suffered in 1980 and leading to eye surgery for correction of a squint. This occurred seventeen years after smoking cessation. There is no literature support that smoking cessation for thirty-six years remains a risk factor for atherosclerosis. This is the time interval between smoking cessation and the development of central retinal vein occlusion in the current case.
It is therefore my opinion that a reasonable hypothesis exists that the event of 1980 can be related to cigarette smoking. I am not able to conclude that such a hypothesis exists for the development of central retinal vein occlusion. Conversely expert ophthalmological opinion was that the same process that led to the event of 1980 led to the event of 1999. It may therefore be argued that the ocular atherosclerotic process started in 1980.
39. The evidence is that CRVO is a rare condition. There was no evidence as to any studies having found an association between smoking 36 years earlier and atherosclerosis leading to CRVO. On the other hand, nor was there any evidence that atherosclerosis of the cerebral vessels is fully reversible. Dr Kowal, in his first report, did concede that in some people it may not be. As set out in para 19 above, he wrote:
…
In most patients, stopping smoking eventually (say, after 15 years) reverses any augmented effect on cardiovascular and cerebrovascular morbidity (ref: Harrison's Internal medicine). Despite a return to average risk of vascular damage a certain time after cessation of smoking, a subgroup of patients may exist for whom this reversal with time is incomplete and these patients might remain forever at higher risk of vascular complications even decades after stopping smoking. This latter possibility does not on its own validate the proposition of reasonable hypothesis because "it is not sufficient…to point to a mere possibility of a connection". Were the CRVO and smoking to be related closely in time (say, current smoking or smoking stopped 1 year previously) then a causal relationship would be non‑controversial.
40. Dr Kowal placed great reliance on the Beaver Dam Study. However, because of the small number of cases of BRVO and CRVO in the Beaver Dam Study, we do not regard it as providing evidence that the hypothesis proposed by Dr Chiu and Dr Luckie is not reasonable. We note that the authors of the Beaver Dam Study concluded their abstract as follows:
…
Retinal vein occlusion is infrequent in the population. These data suggest a strong association between retinal branch vein occlusion and retinal arteriolar changes. Data from larger populations are needed to further assess associations between risk factors and the incidence of retinal vein occlusions. [emphasis added]
41. Dr Kowal, in a second report dated 11 September 2003 (R7), commented on that conclusion. He first made the point that it did not seem to meet the threshold of a reasonable hypothesis requiring more than a possibility. He then commented (in numbered para 2):
If the episode in 1980 was a small brain stem infarct then this could be considered a manifestation of cerebrovascular disease, and such cerebrovascular disease is indeed a risk factor for the CRVO 19 years later. If the abducent nerve palsy be due to microvascular disease then this association does not exist.
Dr Kowal also stated that smoking, which is a risk factor for cerebral atherosclerosis, will also be a risk factor for CRVO.
42. Mr Fergusson, in his written submissions of 17 October 2003, referred to the explanation of the concept of a reasonable hypothesis given by Beaumont J in Repatriation Commission v Webb (1997) 76 ALR 131 at 135:
Thus the central question in the present case was to determine whether the hypothesis advanced by the respondent as to the cause of his disease was “reasonable” or not. It is hardly necessary to observe that the question whether an hypothesis is “reasonable” is one thing; to determine whether, as a matter of professional opinion, that hypothesis represents the preferred view is a different matter: a number of opinions may be held by a number of experts in the field; each view may be reasonably held notwithstanding that they may lead to different conclusions. The point sought to be achieved by the introduction into s 120 of the notion of a “reasonable” hypothesis is the distinction between a theory that is rationally based, on the one hand, and an opinion or view that is irrational, absurd or ridiculous, on the other. It is possible, especially as here, where the aetiology of the disease is unknown, to have more than one reasonable hypothesis advanced which suggest different causes of the disease. The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather, it is a case of determining whether the particular theory has a rational foundation. …
43. In view of the fact that Dr Kowal conceded that it is possible, though not probable, that smoking which ceased 36 years earlier, but which had lasted for a number of years before, could have played a role in causing the CRVO, we find it difficult to see how it can be submitted that the hypothesis advanced by Dr Chiu and Dr Luckie lacks a rational foundation. We note that Dr Kowal, in his report (R1) acknowledged that, in a small number of people, the effects of smoking may not be reversible. There is no evidence before us that all smoking‑related atherosclerosis is reversible, by ceasing to smoke. The evidence is rather that the increased risk caused by smoking tends to reduce over the years.
44. Mr Fergusson relied on the Federal Court decision of Whitworth v Repatriation Commission [2003] FCA 1530 where Ryan J said (at para 8):
…
While an hypothesis may yet be reasonable though scientifically unproven, the High Court's discussion clearly proceeds on the basis that the hypothesis is founded on facts pointed to by the material. That requirement is inescapable. Even in a case where a scientifically unproven hypothesis is put forward by a relevantly qualified witness, the Commission and the Tribunal must, in such a case, still scrutinise that theory in light of the other available medical evidence and consider "the validity of the reasoning" supporting it. … [emphasis added]
45. The decision in Whitworth is of course binding on us. Having scrutinised the other available medical evidence, we do not find that the Beaver Dam Study is sufficiently conclusive to invalidate the reasoning of Dr Luckie and Dr Chui. This is because of the small number of subjects with BRVO or CRVO, and because of the authors' own reservations about relying too heavily on its conclusions for that reason.
46. As discussed in para 40 of these reasons, Dr Kowal, in his second report of 11 September 2003 (R7), pointed out that the 1980 episode, when Mr Nicholls had a cerebrovascular accident, may have been the first manifestation of cerebrovascular atherosclerotic disease and that, if so, it could have been a manifestation of cerebrovascular disease, which was a risk factor for the CRVO 19 years later. Dr Pitt also wrote that the ocular atherosclerotic process may have started with the cerebrovascular accident in 1980.
47. The fact that Dr Kowal hypothesised two explanations of Mr Nicholls' cerebrovascular accident in 1980, and that only one explanation provides support for a reasonable hypothesis linking the CRVO with service, via service‑related smoking, does not mean that a reasonable hypothesis is not raised. If the evidence suggests two possible causes of a disease, only one of which is service related, that is material raising a reasonable hypothesis. It is not necessary in a reasonable hypothesis case that the reasonable hypothesis is more probable than another hypothesis.
48. Mr Fergusson submitted, at para 23 of his submission, "…In this case, a foundation, such as supporting epidemiological studies or reported clinical cases, is missing". In our view, Bushell shows that you do not need supporting epidemiological studies or reported clinical cases.The passage from the reasons of the High Court in Bushell, as set out in para 7 of these reasons, is instructive. The High Court said that a hypothesis may still be reasonable, even though the association on which it relies (in this matter smoking 36 years earlier leading to cerebrovascular atherosclerotic disease) is not demonstrated. The High Court explained that it is not decisive that a connection has not been proved between the kind of injury which occurred and the circumstances of the veterans’ service. The Court added that it is also not decisive that the medical opinion on which the hypothesis relies has little support in the medical profession. The High Court said, however, that a hypothesis will be unreasonable “if it is contrary to proved scientific facts or to the known phenomena of nature”, or “if it is obviously fanciful, impossible, incredible or not tenable or too remote or tenuous”.
49. In this matter, the hypothesis on which Mr Nicholls relies was advanced by two expert witnesses qualified in the relevant field. The respondent’s witness conceded that it was possible, although in his view not probable. There was no scientific evidence proving that cerebrovascular atherosclerotic disease caused by smoking is always fully reversible 36 years after ceasing smoking.
50. We find that the evidence before us does raise a reasonable hypothesis that Mr Nicholls’ CRVO in 1999 was connected with a service-related increase in his smoking habit.
51. Mr Fergusson did not submit that, if we found that a reasonable hypothesis had been raised, under s 120(3) of the Act, we could be satisfied beyond reasonable doubt, under s 120(1) of the Act, that there was no sufficient ground for determining that the CRVO was a war-caused disease. He conceded that Dr Kowal had acknowledged that the hypothesis raised was possible.
ASSESSMENT
52. There was no dispute as to assessment. The respondent stated, at paragraph 4.7 of its Statement of Facts and Contentions, dated 24 June 2003:
Assessment of Pension
In the event that the Tribunal cannot be satisfied beyond reasonable doubt that bilateral central retinal vein occlusion is not war-caused, the respondent submits that pension should be assessed at the Special rate pursuant to ss 24(3).
DECISION
53. The decision under review will be set aside. In substitution we will decide that Mr Nicholls’ central retinal vein occlusion is a war‑caused disease, with effect from 6 June 2001. We will also decide, as conceded by the respondent, that Mr Nicholls was entitled to payment of pension at the special rate under s 24(3) of the Act, from 6 June 2001.
I certify that the fifty [53] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Assoc. Professor John Maynard, Member
(sgd) Catherine Thomas
Clerk
Dates of Hearing 1 July 2003
24 February 2004
Date of Decision 24 June 2004
Counsel for the Applicant: Mr A. Larkin
Solicitors for the Applicant Messrs Williams Winter
Advocate for the Respondent Mr K. Herman,
Solicitor for the Respondent: Advocacy Section, Department of Veterans’ Affairs
12
0