NORMAN COOPER and REPATRIATION COMMISSION

[2009] AATA 896

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2165

VETERANS' APPEALS DIVISION		)
Re		NORMAN COOPER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member and
Dr Morley, Member

Date20 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................[Sgd]..............

Senior Member

CATCHWORDS – Veterans’ Entitlement Act – whether ischaemic heart disease caused by service – whether causal nexus between smoking, heart disease and service –Statement of Principles not satisfied – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 68, 69, 69A, 70, 120, 120A, 196A, 196B

Repatriation Commission v Bendy (1989) 18 ALD 144

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

20 November 2009 Dr KS Levy RFD, Senior Member            

INTRODUCTION

1.      The applicant, Norman Cooper, applied for recognition of a condition of ischaemic heart disease as being related to his defence service, on the basis of a smoking habit.  The Repatriation Commission rejected this application on 28 March 2008.  The matter was reviewed by the Veterans’ Review Board and the Commission’s decision was affirmed on 28 April 2009.  The applicant now seeks review of that decision by this Tribunal.

ISSUE

2. The question for the Tribunal is whether the applicant’s ischaemic heart disease was caused by either his war service or defence service in accordance with s 9 and s 70 of the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).

EVIDENCE 

3.      The applicant gave oral evidence.  There was also substantial documentary evidence in form of medical reports, the applicant’s service history and a number of other medical reports contained in the s 37 documents.  There were also a number of reports covering the periods 2008 to 2009 concerning a number of medical issues unassociated with the present claim and a number of medical impairment assessments.  In particular, there is a report dated 7 February 2008 in relation to ischaemic heart disease.

4.      Mr Cooper’s oral evidence revealed that he was enlisted in the Army for National Service in 1955 and then served for three years in the Citizen Military Forces.  He then transferred to the Royal Australian Airforce (RAAF) as a direct entry enlistee and was employed as a photographer.  He served with the RAAF for 35 years.

5. Mr Cooper has undertaken operational service in Malaya with the Far East Strategic Reserve from 10 May 1961 to 16 October 1963. There, he undertook photographic work, both aerial and domestic. In addition, he served briefly in South Vietnam with the RAAF in 1967 as a photographer with 2 Squadron for a period of two weeks. He then served on a second occasion in South Vietnam from 5 March 1969 until 10 September 1969. There, he undertook photographic work and also accompanied aircraft on bombing missions and also helicopter missions. In addition, Mr Cooper has eligible defence service under the Act from 7 December 1972 to 9 April 1993.

6.      Mr Cooper told the Tribunal of a number of stressors he experienced while in South Vietnam and now has a diagnosis of post-traumatic stress disorder.  In relation to his smoking habit, Mr Cooper advised that he started smoking in the Army during his period of National Service when he was 18 years old.  He indicated that he smoked very little and usually after a meal and only a few cigarettes each day.  He informed the Tribunal that throughout his service career he stopped smoking at various periods as he played semi-professional soccer, particularly in the mid-1960s before he went to South Vietnam.

7.      Whilst in Vietnam, his smoking increased.  On return to Australia, the applicant continued smoking, especially in the mess.  Whilst in South Vietnam, he smoked between ten to a pack of cigarettes a day, and smoked in the mess, at lunch times and official functions.  He said he didn’t go off the base very often.  This continued for the six months of his tour in 1969.

8.      On return to Australia, his smoking reduced and was smoking an average of less than 10 a day, or about two to three packets per week.  He then continued to smoke until his marriage break-up in 1974.  When selected to attend the six month officer training course in 1978 he felt under pressure to pass exams.  His smoking increased at that time to 10 to 15 a day and he was smoking mainly during lecture breaks, at meal times and while studying.  After this time his smoking reduced progressively until he ceased smoking completely in 1984.

9.      In 2000, he reported having pains in his chest and his general practitioner sent him for stress tests.  He then was required to take medication for cholesterol, which he had also been prescribed in the RAAF in the late 1980s.

10.     In cross-examination Mr Cooper said that from 1960 to 1967, he was smoking 5 to 10 cigarettes per day but this increased when he was doing filming work in South Vietnam.  He told the Tribunal that in 1968 he did stop smoking but he would have one occasionally at a dining in night, which was usually two to four times per year.  He described the period 1969 to 1975 as involving heavier smoking whilst in South Vietnam but by 1975 he had reduced to five to 10 cigarettes per day.  He said that in relation to the period 1975 to 1979, this was a non-smoking period according to his statement, but in oral evidence he qualified that and said he was not smoking as heavily.

11.     In the course of oral evidence, it was also noted that for a service medical in the RAAF, he stated at that time (November 1988) that he had stopped smoking 15 years earlier.  In other words, that indicates he stopped smoking in 1973.  Similarly in May 1992 Mr Cooper stated that he had ceased smoking 19 years previously.  While this was made four years later than the previous report, it consistently shows his declaration that he stopped smoking in 1973.  In response to those records in cross-examination, Mr Cooper said he just cannot remember making those declarations.

12.     In submissions by Counsel for the applicant, Counsel acknowledged a discrepancy between the latest statement by the applicant with documentary evidence.  Counsel submitted that the applicant was an honest witness.  Further, Counsel for the applicant stated that the evidence showed that the applicant had not met the criteria of 20 pack years as stated in the Repatriation Medical Authority Statement of Principles (SoP).  The advocate for the respondent made similar observations.

CONSIDERATION

13. We have considered all of the oral and documentary evidence provided to the Tribunal. In answering the question in issue submitted for our determination, we note the applicant’s claim covers periods of operational service and defence service. In relation to operational service, the statutory provisions which are relevant are contained in s 120(1) and 120(3) of the Act which provides that the Tribunal shall consider a claim to be war-caused unless it is satisfied to the contrary beyond reasonable doubt.

14. For the provision of defence service pensions after 7 December 1972, the relevant provisions of the Act are ss 68 to 70. Section 70(1)(d) of the Act specifies that the Commonwealth is liable to pay pension by way of compensation to a member of the defence force. In s 70(5)(a) of the Act, an injury or disease is taken to be defence caused if it “arose out of, or was attributable to any defence service … of the member”. There is a notion of the injury or disease being contributed to by defence service “in a material degree” (s 70(5)(d)(ii) of the Act). The “materiality” refers to “a contribution of a causal nature” and more than a de minimus contribution.  The use of the term “material” in this section is not in the sense of a dictionary definition “of substantial impact; of much consequence” but in the legal sense that it is “pertinent” or “likely to influence[1]

[1] Repatriation Commission v Bendy (1989) 18 ALD 144

15.     The recent exposition of the meaning of this term by the High Court reveals a broad formulation is necessary and not just a procedural or specific task orientated approach to what a soldier is required to do.  The High Court said “… a causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate[2]”.

[2] Roncevich v Repatriation Commission (2005) 222 CLR 115 at [27]

16. Section 120A of the Act also applies in respect of this application. This section prescribes how the Tribunal should regard the reasonableness of an applicant’s hypothesis and this is referred to in SoP’s issued by the Repatriation Medical Authority. In assessing whether a reasonable hypothesis can exist for the purposes of s 120A, s 196B(2) of the Act provides that the Repatriation Medical Authority determines the Statements of Principles (SoP) and when a SoP has been determined, it will set out the factors which must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting an injury or disease with the circumstances of that person’s service. Courts, judges and persons acting judicially must take judicial notice of SoPs and presume that they are duly sealed under s 196A(3) of the Act.

17.     In respect of claims for matters other than operational service, the standard of “reasonable satisfaction” is to apply[3].

[3] Veterans’ Entitlement Act 1986, s 120(4)

18.     In respect of the evidence, there is some discrepancy in the applicant’s claims.  In the documentary evidence, the recent summary contained in the applicant’s claim for pension for cigarette smoking dated 15 March 2004 shows history as follows:

Period	Amount Smoked
*1959 to 1960	Nil
1967	5 to 10 cigarettes per day
1968	Nil
1969 to 1975	Approximately 5 to 10 per day
1975 to 1979	Nil
1979 to 1984	Approximately 5 per day
1984 -	Nil
*Only enjoyed a smoke with or after a meal or cup of coffee/tea.

19.     A more recent statement provided by Mr Cooper faxed to the Tribunal on 8 August 2009, claims he smoked 10 to 11 cigarettes per day after 1967.  Then 18 months later when he went to South Vietnam, he says his smoking increased to 30 to 35 cigarettes per day.  That statement contends that his smoking habit continued until 1984, when he stopped smoking completely.  It was submitted by the respondent at the outset that this raised issues of credit of the applicant.  Mr Kelly for the respondent, correctly, did not pursue this in final submissions.  We do not accept this most recent statement of Mr Cooper for the following reasons:

(a)The applicant is now 73 years old.  The report of psychiatrist Dr Cantor refers to some memory problems and this may have some impact on this recent version (perhaps with other factors as well).

(b)The other documentary evidence of the applicant which was prepared at earlier times is more internally consistent.  A Periodic Health Assessment prepared in November 1988 states that he ceased smoking 15 years earlier.  A separate Period Health Assessment prepared in May 1992 states that he stopped smoking 19 years earlier.  Both of these statements prepared at different times would point to his cessation of smoking in 1973.

(c)While he claims also that he ceased smoking in 1984, we note also he attended officer training school in 1978 where he was smoking 15 cigarettes per day, but that he smoked only moderately at a rate of about 7 cigarettes per day for the period 1979 to 1984.

20.     We therefore reject the assertions in the undated letter received on 8 August 2009.

21.     We accept the version in Mr Cooper’s statement dated 15 March 2004 that indicates a smoking quantity equivalent to 2.85 pack years of cigarettes.  We note also that statement does not include smoking from his period of National Service and in the Army Citizen Military Forces from 1955 to 1958 where he said he smoked about five cigarettes per day.  That would amount to 0.75 pack years and that also should be included in assessing this claim.  However in oral evidence it was noted that Mr Cooper claimed to have smoked 5 to 10 cigarettes per day from 1960 to 1967 whereas in the statement mentioned above he smoked only in 1967 during that period.  This is equivalent to an extra three pack years of cigarettes.  Additionally, his oral evidence was that he smoked heavily at a rate of 15 cigarettes per day while undertaking officer training in 1978 for a period of six months.  This amounts to an extra 0.37 pack years of cigarettes.

22.     His evidence showed throughout the whole of his lengthy service history that he was usually a relatively light smoker.  His evidence was also that he had periods of non-smoking because of inter-service sport, marriage related factors and the cost of cigarettes.  We accept the extra evidence outlined above and therefore made a finding of fact that his smoking history from 1955 to 1984 is equivalent to 6.72 pack years.

23.     The other issue of relevance is “clinical onset”.  This refers to a time “… when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …”[4].  The only evidence here is that of Dr Parsons who stated that the onset of ischaemic heart disease was in October 2007, approximately 23 years after Mr Cooper ceased his smoking habit.  We also make a finding of fact that the date of clinical onset is October 2007.

[4] Repatriation Commission v Cornelius [2002] FCA 750 at [16]

24. Because this is a case to which s 120A applies the issue to be decided by the Tribunal must be satisfied by the four principles set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97][5].  In relation to step 1 of that authority, we find that having considered all of the relevant material that it points to a hypothesis connecting the applicant’s ischaemic heart disease with circumstances of his defence service.  With respect to step 2, whether the hypothesis is reasonable, clause 6(g) of both SoP 89 of 2007 in respect of operational service, and SoP 90 of 2007 in respect of defence service are both relevant.  These SoPs require a person to have consumed between five and 20 pack years of cigarettes with clinical onset of ischaemic heart disease occurring within 15 years for operational service or in respect of defence service onset must be within five years of ceasing smoking.

[5] The Four step test of Repatriation Commission v Deledio states:

·identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease;

·determine whether the hypothesis is reasonable;

·whether a hypothesis is reasonable is a question of fact; and

·if the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or 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.

·

25.     With respect to step 3 of Deledio, as we have accepted as a finding of fact that the evidence points to the applicant having consumed 6.72 pack years of cigarettes, he has not satisfied the timeframe specified in the SoP to regard a reasonable hypothesis as having been raised on the basis of that evidence.

26.     Therefore, the claim must fail.  No other submissions were offered by the applicant’s counsel or the respondent’s advocate in this regard in relation to either the claim pertaining to operational service or the claim relating to defence service.

DECISION

27.     The Tribunal affirms the decision under review.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member and Dr Morley, Member:

Signed: .............................[Sgd]...........................................
           Research Associate

Date/s of Hearing  30 September 2009
Date of Decision  20 November 2009
Counsel for the Applicant         Mr Anthony Harding
Solicitor for the Applicant          Mr John Cockburn
Solicitor for the Respondent     Mr Jeff Kelly, departmental advocate