PAUL BRAY and REPATRIATION COMMISSION
[2009] AATA 343
•14 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 343
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6214
VETERANS’ APPEALS DIVISION ) Re PAUL BRAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal J. W. Constance, Senior Member
Dr M. D. Miller AO, MemberDate14 May 2009
PlaceCanberra
Decision The decision under review, being the decision of the Repatriation Commission made 4 January 2007, is affirmed.
....................[sgd].....................
J. W. Constance, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – malignant neoplasm of the colorectum – ischaemic heart disease – gastro-oesophageal reflux disease – diseases not war-caused – diseases not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 – Sections 13, 70, 120, 120A, 120B
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
14 May 2009 J. W. Constance, Senior Member
Dr M. D. Miller AO, MemberINTRODUCTION
1. Mr Bray, a former member of the Defence Force, has claimed a disability pension by reason of three separate diseases. The Commission has rejected his claims and this rejection has been affirmed by the Veterans’ Review Board. Mr Bray now seeks a review of the Commission’s decision.
2. For the reasons which follow the decision of the Commission will be affirmed.
FACTS
3. Unless otherwise stated the following facts have been agreed by the parties. On the documents in evidence we are satisfied that the agreement reached is proper.
4. Mr Bray has been diagnosed as suffering three separate diseases: malignant neoplasm of the colorectum, ischaemic heart disease and gastro-oesophageal reflux disease. These conditions were diagnosed in October 1992, early 1992 and 1995 respectively.
5. Mr Bray served as a member of the Royal Australian Air Force from 17 October 1962 until 18 October 1985. From 28 July 1966 until 22 January 1967 he rendered eligible war service which was also operational service within the meaning of the Veterans’ Entitlements Act 1986. This was in Ubon, North East Thailand. He also rendered defence service (as defined in Part IV of the Act) from 7 December 1972 to 18 October 1985.
STATUTORY BACKGROUND
6. Part IV of the Act provides that a person may be eligible for a disability pension if he or she is incapacitated from a disease that was related to service in accordance with the Act. Under section 13 of the Act a pension is payable in respect of a “war-caused” disease. Under section 70 a pension is payable in respect of a disease which is “defence-caused”.
ISSUES FOR DETERMINATION
7. The following issues arise.
1)Are all or any of the diseases suffered by Mr Bray “war-caused”?
2)If not, are all or any of the diseases “defence-caused”?
THE CLAIMS BASED ON THE PERIOD OF OPERATIONAL SERVICE
8. As Mr Bray is applying under Part II of the Act for a pension relating to his operational service, subsection 120(1) requires us to determine that the disease was war-caused unless we are “satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.” In applying this provision we shall be so satisfied if after the consideration of the whole of the material before us we are “of the opinion that the material before [us] does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the [operational] service rendered by Mr Bray.[1] Subsection 120A(3) provides that a hypothesis is reasonable only if there is in force a Statement of Principles that upholds the hypothesis.
[1] s 120(3) of the Act.
9. In Repatriation Commission v Deledio (1998) 49 ALD 193 at 206 the Full Court of the Federal Court set out the steps to be taken in applying these provisions. The first step is:
The tribunal must consider all of 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.
It is important to note that the Full Court referred to the circumstances of the “particular” service rendered. In this case that is Mr Bray’s operational service between 28 July 1966 and 22 January 1967, a period of about 6 months.
10. The following material is before us.
·Mr Bray did not smoke when he joined the Air Force in 1962;
·he commenced smoking in 1963 by reason of peer pressure in the Air Force and smoked 10 to 15 cigarettes per day;
·By 1964 he was smoking 20 to 30 cigarettes per day;
·by the time he commenced operational service in 1966 he was smoking 30 cigarettes per day;
·whilst on operational service his smoking increased to 50 cigarettes per day;
·the rise in consumption during operational service was caused by his long hours of duty;
·at the conclusion of his operational service Mr Bray reverted to smoking 30 cigarettes per day;
·he continued to smoke 30 cigarettes per day until he ceased smoking in 2002;
·Mr Bray began consuming alcohol when he joined the Air Force as a result of peer pressure and “good times” within the Force;
·he commenced by drinking 3 to 4 middies of beer per day, about 4 to 5 days per week;
·By 1965 he was consuming 4 to 6 middies per day and by that time he had a well established drinking pattern;
·His drinking pattern changed when he was on operational service as a result of the stress of working long hours;
·Whilst on operational service he consumed 4 to six middies and 10 to 12 nips of whisky per day;
·On completing his operational service he returned to drinking 4 to 6 middies per day;
·He increased his consumption from about 1975 onwards, and between 1982 and 1985 he consumed 4 to 6 middies and 12 to 15 nips of whisky per day;
·Between 1985 and 2004 he consumed 3 to 4 middies and 3 to 4 glasses of wine per day until he ceased consuming alcohol in 2004;
·His increases in alcohol consumption after his operational service were related to various overseas postings where alcohol was cheap and drinking was “part of the ethos”;
·In the opinion of Dr Walshe, Mr Bray's general practitioner, his smoking and drinking habits which developed whilst he was a member of the Air Force could have been contributing factors to his neoplasm and gastro-oesophageal reflux;
·In the opinion of Dr Jeffery, Cardiac Specialist, a history of cigarette smoking was a risk factor in the development of ischaemic heart disease.
Is the malignant neoplasm of the colorectum a “war-caused” disease?
11. The opinion of Dr Walshe supports a hypothesis linking cigarette smoking and alcohol consumption to the development of neoplasm of the colorectum. However, there is no material which supports a hypothesis which connects this injury to the increase in either of Mr Bray’s smoking or consumption of alcohol which occurred during his operational service. The material shows an increase in consumption of both products for the relatively short period of occupational service, but there is no material which supports a hypothesis that the increase in consumption over that period can be connected to the disease. Also, there is no material which supports a hypothesis that the circumstances of the operational service contributed to an increase in the consumption of either product beyond the period of operational service.
12. We determine that the material before us does not point to a hypothesis connecting the disease of neoplasm of the colorectum with the circumstances of the operational service rendered by Mr Bray. The malignant neoplasm was not a “war-caused” disease.
Is the ischaemic heart disease suffered by Mr Bray a “war-caused” disease?
13. The opinion of Dr Jeffery supports a hypothesis linking alcohol consumption to ischaemic heart disease. However, by the same reasoning as is set out in relation to the malignant neoplasm, we determine that the material before us does not point to a hypothesis connecting the ischaemic heart disease with the circumstances of the operational service rendered by Mr Bray. The ischaemic heart disease is not a “war-caused” disease.
Is the gastro-oesophageal reflux disease suffered by Mr Bray a “war-caused” disease?
14. The opinion of Dr Walshe supports a hypothesis linking alcohol consumption and cigarette smoking to gastro-oesophageal reflux disease. However, by the same reasoning as is set out in relation to the malignant neoplasm, we determine that the material before us does not point to a hypothesis connecting the gastro-oesophageal reflux disease with the circumstances of the operational service rendered by Mr Bray. The gastro-oesophageal reflux disease is not a “war-caused” disease.
THE CLAIMS BASED ON THE PERIOD OF DEFENCE SERVICE
Statutory Background
15. Section 70 of the Act provides for compensation to a member of the Defence Forces who has been incapacitated by a defence-caused disease. The relevant requirement in relation to Mr Bray is set out in subsection 70(5)(a):
… a disease contracted by such a member shall be taken to be a defence-caused disease if … the … disease … arose out of, or was attributable to, any defence service … of the member.
16. We must be satisfied to our reasonable satisfaction that the claim has been established.[2] Subsection 120B(3) provides:
[2] s 120(4) of the Act.
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war‑caused or defence‑caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
Findings of fact
17. Neither Mr Bray nor the Commission called any witnesses. Both agreed that we should proceed on the basis of the documents in evidence. On this basis we are reasonably satisfied of the matters set out in paragraph 10 of these reasons.
Is the malignant neoplasm of the colorectum a “defence-caused” disease?
18. In the opinion of Dr Walshe, Mr Bray’s smoking and drinking habits which developed while he was a member of the Air Force could have been a contributing factor to this disease. This raises a connection between the disease and Mr Bray’s defence service.
19. Statement of Principles No. 2 of 2004 concerning Malignant Neoplasm of the Colorectum is in force. It provides that at least one of the factors set out in clause 5 of the Statement must be related to the relevant service for the disease to be related to that service and therefore a “defence-caused“ disease. The only relevant factor is:
(c) drinking at least 500 kilograms of alcohol within a 25 year period within the 30 years immediately before the clinical onset of malignant neoplasm of the colorectum; …
20. On the basis of the statement of Mr Bray[3] we are satisfied that prior to the period of defence service he had established patterns of alcohol consumption. By 1972 he was consuming 4-6 middies of full strength beer and 30 cigarettes per day. Further, we are satisfied that the increase in his daily consumption of alcohol which was related to his defence service (1972-1985) was:
·up to 4 middies of beer between 1975 and 1977;
·approximately 26g between 1982 and 1985 (being the difference between his drinking cans of beer rather than middies);
·up to 12 nips of whisky between 1982 and 1985.
[3] T15.
21. The amounts of alcohol referred to in the previous paragraph do not total 500 kilograms of alcohol within the 25 years before October 1992, being the clinical onset of the disease. The Statement of Principles does not uphold the contention that the disease was connected with the defence-service in this regard.
22. As Mr Bray did not increase his cigarette smoking during or as a result of his defence service, the Statement of Principles does not uphold the contention that the disease was connected with the defence-service in regard to smoking.
Is the ischaemic heart disease suffered by Mr Bray a “defence-caused” disease?
23. In the opinion of Dr Jeffery a history of cigarette smoking is a risk factor in the development of ischaemic heart disease. However, as Mr Bray had an established pattern of smoking prior to his defence service and as that pattern did not change during or as a result of that service, the material before us does not raise a connection between the disease and the particular service rendered.
24. Even if it could be said that a connection was raised, in our opinion Mr Bray would not succeed in his application in relation to this condition. Statement of Principles No. 90 of 2007 concerning Ischaemic Heart Disease is in force. The relevant factor which must be related to the defence-service is provided in Clause 6:
(h) where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(ii) smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; …
25. Mr Bray states that he smoked 30 cigarettes per day from 1966 until 2002. This pattern of consumption did not change during or as a result of his defence-service. For this reason the Statement of Principles does not uphold the contention that his disease is connected with that service.
Is the gastro-oesophageal reflux disease suffered by Mr Bray a “defence-caused” disease?
26. In the opinion of Dr Walshe, Mr Bray’s smoking and drinking habits could have been contributing factors to this disease. On the basis of this evidence we are satisfied that the material before us raises a connection between the disease and his defence service.
27. Statement of Principles No. 12 of 2005 concerning Gastro-Oesophageal Reflux Disease is in force. Clause 5 relevantly provides:
The factor that must exist before it can be said that, on the balance of probabilities, gastro-oesophageal reflux disease or death from gastro-oesophageal reflux disease is connected with the circumstances of a person’s relevant service is:
…
(c) smoking at least twenty cigarettes per day, or the equivalent
thereof in other tobacco products, for a continuous period of at
least six months immediately before the clinical onset of gastrooesophageal
reflux disease; or
(d) consuming an average of at least 500 grams of alcohol per week
for at least the twelve months before the clinical onset of gastrooesophageal
reflux disease; …
28. For the same reasons as we stated in relation to the malignant neoplasm disease, the evidence is that Mr Bray’s smoking pattern was not affected by his defence service. The Statement of Principles does not uphold the contention that the disease is connected with Mr Bray’s smoking.
29. On the basis of Mr Bray’s statement[4] the increase in his consumption of alcohol between 1985 and 2004 which is related to his defence service is 3 to 4 glasses of wine per day. This was his relevant consumption of alcohol during the period of at least 12 months prior to the onset of the disease in 1995. As the increased consumption equates to 280g of alcohol per week at the most, the Statement of Principles does not uphold the contention that on the balance of probabilities the disease is connected with the defence service.
[4] T15.
Previous Statements of Principles
30. There are no Statements of principles previous to those referred to which would entitle Mr Bray to any benefit.
DECISION
31. The decision under review, being the decision of the Repatriation Commission made 4 January 2007, is affirmed.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of J. W. Constance, Senior Member and Dr M. D. Miller AO, Member.
Signed: .....................................................................................
T. Aviram, AssociateDate of Hearing 19 March 2009
Date of Decision 14 May 2009
Counsel for the Applicant Mr F. Thomson
Solicitor for the Applicant Mr D. Burton, Vietnam Veterans' Federation
Counsel for the Respondent Mr N. Bunn, Department of Veterans' Affairs
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