Peckham and Repatriation Commission
[2002] AATA 524
•28 June 2002
DECISION AND REASONS FOR DECISION [2002] AATA 524
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/443
VETERANS' APPEALS DIVISION
Re: DONALD PECKHAM
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Date: 28 June 2002
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – malignant neoplasm of the rectum and incisional hernia sequelae – whether factors of Statement of Principles ("SoP") satisfied – whether smoking result of service – whether sufficient to satisfy SoP – whether alcohol consumption result of service – whether sufficient to satisfy SoP – chronic bronchitis and emphysema – whether correct diagnosis – whether satisfy factor of smoking in SoP – cervical spondylosis – whether trauma to cervical spine – whether satisfy definition of trauma – decision affirmed
Veterans' Entitlements Act 1986
Benjamin v Repatriation Commission [2001] FCA 1879
Arnott v Repatriation Commission [2001] FCA 1336
REASONS FOR DECISION
28 June 2002 Mr B.H. Pascoe, Senior Member
This is an application to review a decision of the Veterans' Review Board ("VRB") which affirmed a determination of the respondent that claimed conditions of malignant neoplasm of the rectum, hernia incisional, chronic bronchitis and emphysema, diabetes mellitus, cervical spondylosis and myopia were neither war-caused nor defence-caused.
At the hearing the applicant was represented by Mr D. Hyde of counsel and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Mr D. Peckham, Dr E. Cole, a psychiatrist, Mr R. Marshall, a general surgeon, Lieutenant Colonel F. Deane and Colonel K.M. Batters. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered:
Statement re smoking and alcohol – Mr Peckham – 16 July 2001 — Exhibit A1
Trauma Statement – Mr Peckham – 2 November 2001 — Exhibit A2
Report of Mr Marshall – 6 July 2001 — Exhibit A3
Report of Dr Cole – 2 November 2001— Exhibit A4
Lifestyle Questionnaire – Mr Peckham – 2 November 2001 — Exhibit A5
VRB Transcript Hearing 27 March 2001 — Exhibit R1
Report of Mr J. Church, Writeway Research Service – 23 August 2001 — Exhibit R2
Report of Mr Church, Writeway Research Service – 13 September 2001 — Exhibit R3
Clinical notes of Dr Pearce — Exhibit R4
Extracts of applicant's service records 1-6 — Exhibit R5
Report of Dr L. Walton, psychiatrist – 14 December 2001 — Exhibit R6
Statement of Lt Colonel Deane – 12 February 2002 — Exhibit R7
Drinking Questionnaire of applicant – 7 June 1994 — Exhibit R8Mr Peckham served in the Australian Army ("army") from 10 August 1956 to 17 October 1976. His eligible war service, which was also operational service, was in the Far East Strategic Reserve from 25 September 1957 to 18 October 1959. He rendered defence service as defined in Part IV of the Veterans' Entitlements Act 1986 ("the Act") from 7 December 1972 to 17 October 1976. Although not necessarily relevant to this application, Mr Peckham had service as a national serviceman in the Citizen Military Forces prior to 1956.
Mr Peckham served at Wagga Wagga and Bandianna before transfer to Malaysia in September 1957. After returning from Malaysia in October 1959, his remaining service was in some five locations in Australia. He said that, in Malaysia, he was in a British controlled unit of 28 men of which 12 were Australian. He said that he was unhappy in Malaysia in the conditions there. He said that the food and working conditions were poor. While Mr Peckham stated that the early days were reasonable, a new British captain and the British NCOs made life difficult. The unit was small and, if any members were missing, there were additional long hours and increased workload. He said that, on one occasion, he was required to load a complete train by himself. He noted two occasions when soldiers attempted suicide and he was required to guard them to prevent further injury. He stated that, on one occasion, while on guard duty, he was nearly shot by another guard who mistook him as an intruder. Mr Peckham said that he was required to be on guard duty every 5 days and was unable to sleep in the noisy confines of the guardroom.
Mr Peckham said that he commenced smoking while in National Service training and would have smoked approximately 20 cigarettes per day. He believed that his rate of smoking in Malaysia increased to 40-50 cigarettes per day as a result of the stress experienced. He said he became a "chain smoker" and, after returning to Australia from Malaysia, caused a fire injuring his leg by smoking in bed. He acknowledged that he had told the VRB that he had developed a habit of heavy smoking when at Bandiana in 1957 but said that the then 20-30 cigarettes was not considered heavy when compared with his consumption in Malaysia. Mr Peckham accepted that a Dr Cooper, to whom he had been referred by an army medical officer, had noted on 17 November 1966 (exh R5, p.2) that he smoked 30 cigarettes per day, but said that, at that time, he did not count nor was aware of the number of cigarettes smoked. He accepted also that, on 24 April 1985, his general practitioner, Dr Pearce, noted that he had smoked "20-30 cigarettes per day for years". When asked about a smoking questionnaire completed in 1999 which showed a consumption of 20-30 cigarettes per day commencing in 1952 and the only change since commencement being a 4 year cessation from 1989, Mr Peckham said that, in 1999, he would not have given the increase in Malaysia a thought. Mr Peckham acknowledged that, in a report by Professor Pain (T23), it was stated that "… Mr Peckham said he commenced smoking during his National Service, in 1952, and during his army days his smoking increased to more than 20 cigarettes a day". In the statement signed on 16 July 2001 (exh A1), Mr Peckham said, in relation to smoking:
…
2.I commenced smoking after National Service, when I was with the CMF, we were given ration cards at Seymour. I was smoking about 10-15 cigarettes per day.
3.During my operational service with the Far East Strategic Reserve I increased smoking to over 30 cigarettes per day. We were also given a tin of 50 cigarettes every fortnight. I increased my cigarette consumption at this time because of severe stress associated with my operational service.
4.I continued smoking at this level until 1989, when I developed bowel cancel [sic]. I ceased smoking at this level, but between then and now I started smoking again for a period of twelve months, smoking 30-40 cigarettes per day. I have not smoked for one or two years now, I cannot really remember.
Again, in his oral evidence, Mr Peckham said that it may have been more than 20-30 cigarettes per day pre Malaysia as he "had plenty of time on my hands" but thought that it could have been 40-50 per day in Malaysia, although his recollection was not clear.
In his 16 July 2001 statement, Mr Peckham said, in relation to alcohol:
…
5.I commenced drinking beer when I joined the Army in 1956. I commenced drinking beer excessively when I went to Malaya because of stress. I would have had on average 8-9 large bottles of beer every day.
6.I continued at this level 1963 when I got married. I then switched to wine and spirits.
7.My drinking caused a lot of problems in the marriage. It also caused some psychological problems and memory loss.
8.I had a lot of time off work because of hangovers.
9.On one occasion I when I had been drinking and smoking in bed, I fell asleep and awoke when the bed was on fire.
10.I ceased drinking in 1989.
In his oral evidence, Mr Peckham said that beer was the only suitable liquid available in Malaysia to deal with the heat. He said that he and another soldier would consume 12 bottles of beer between them each night. Whilst his written statement said that he commenced drinking in 1956, Mr Peckham acknowledged in his oral evidence that he was drinking while in National Service and, on one occasion, was involved in a binge drinking session which resulted in him being locked up in a police station. He accepted that there were two occasions prior to 1956 when excessive drinking caused a problem. He maintained that his drinking did not cause any problems in Malaysia or afterwards and he was never told that he had a drinking problem.
Mr Peckham was asked about a note in his service medical records on 8 May 1958, which stated:
…
Day before embarkation involved in car accident – which caused moderately severe injuries to child. This has(a)Caused continued anxiety as to account of damages he may have to pay.
(b)Caused continued emotional conflict as he has not "confessed" his guilt to parents.
Mr Peckham accepted that he was worried about the injury to the child and that was his primary concern because he did not know the result of the injuries. He said that he had not told his parents as they were old and he did not want to upset them. He did not agree that there was any emotional conflict in regard to his parents.
The trauma statement provided by Mr Peckham stated:
…
2.During 1959, in Malaya, I was a passenger in a truck, which struck a corner or marker stone while turning. I was thrown off my seat into the tray. I hit my neck and back on the tray and suffered severe pain to my neck and back.
3.I did not report this incident as there was no one to report the matter to. I put up with the pain because I believed the pain would subside. I took it easy for at least 10 days as my neck was very painful. The pain eventually subsided, but I have had problems with my neck since that time, with the pain becoming gradually worse.
4.After my discharge I was working as a cashier around 1985. I fell off a ladder and aggravated my neck.
In his oral evidence, Mr Peckham said that the pain from the truck incident was "six inches up from my lower back", was severe for some 10-15 days, never went away but did not really affect his duties. He did not bother reporting the pain as he had to report to doctors by 6:00 a.m. and it was unlikely that he would receive attention by 2:00 p.m. He said that he had a continuing problem with his back and neck, particularly his back. Mr Peckham said that, in 1985, he was at the top of a ladder which collapsed. He fell on his head and received concussion. He believed that he saw his local doctor.
Dr Cole examined Mr Peckham on 19 July 2001 and provided a report dated 31 July 2001. He concluded that Mr Peckham was suffering from a chronic generalised anxiety disorder dating from the conditions of service in Malaysia. Dr Cole noted that Mr Peckham was drinking about six glasses of beer per day prior to joining the army, increased his drinking at Bandiana, but drank much more in Malaysia. He was of the opinion that the prolonged and excessive alcohol consumption could be seen as symptomatic of the anxiety disorder and that it could be reasonably argued that Mr Peckham suffered from alcohol dependence and abuse. In his oral evidence, Dr Cole said that there would be some reason for concern if Mr Peckham's drinking increased while at Bandiana but accepted that stress and/or boredom is likely to result in increased drinking and smoking. The only history of smoking taken by Dr Cole was that Mr Peckham "started smoking during his National Service in 1952 and continued to smoke until his operation for cancer". As there was no claim before the Tribunal for anxiety disorder or alcohol dependence or abuse, it was not clear why evidence from Dr Cole was sought.
Mr Marshall examined Mr Peckham on 6 July 2001 and provided a report dated the same day. He noted that Mr Peckham underwent an abdomino-perineal resection in 1989 for carcinoma of the rectum. He had remained well for the 12 years since the operation and has a permanent colostomy for which he wears a bag. He has developed an incisional hernia of the vertical lower abdominal incision, which was said, by Mr Marshall, to have been a direct complication of the operation for carcinoma of the rectum. Mr Marshall believed that smoking was a high risk factor in carcinoma of the rectum. He took a history from Mr Peckham of starting smoking during National Service in 1952, and continuing to smoke cigarettes heavily (20 per day) until 1989 and of drinking 8 pots of beer plus wine from 1952 to 1989. In his oral evidence, Dr Marshall said that his notes of examination had not recorded 1952 as the commencement of drinking and the statement of "1952 to 1989" in his report must have been a presumption.
Lt Col Deane was Staff Captain at the Headquarters of 28th Commonwealth Infantry Brigade, stationed at Taiping, Malaya, from 21 August 1958 to 2 November 1960. The Brigade Group had 4 battalions from 4 countries with integrated support units. The Ordnance Field Park in which Mr Peckham served was one such support group consisting of approximately 2/3 British and 1/3 Australian. Lt Col Deane said that the facilities available included NAFFI canteen, a cinema, two swimming pools, extensive sports grounds at the camp at Taiping and rest and recreation facilities at Penang (50 miles north). He acknowledged that these facilities were available at the time of his arrival in 1958 but believed that most would have been available in 1957. He was not aware of any attempted suicides and believed that any would have been reported to headquarters. He was of the opinion that guard duty every third day was not unusual and was part of a soldier's life in an operational area. He believed that the Malaya posting had been seen as a choice posting, most enjoyed it and many sought such a posting.
Col Batters was the Australian Captain of the unit in which Mr Peckham served in Malaysia and was there for most of the same period. He knew Mr Peckham well as a Clerk Technical and would have seen him daily. He accepted that the duties were onerous with the unit expected to be able to move out on four hours notice, all members of the unit involved in loading and unloading trains and trucks and each man having responsibility for a vehicle. He could not accept that any attempted suicides had not come to his notice or that a shot was fired at Mr Peckham and not reported. He accepted that Mr Peckham would have been required to do guard duty every five nights and there would have been difficulty sleeping in the guardhouse. He said that the British captain was intense and slightly eccentric but that there was no harm in him. He acknowledged that British type discipline was somewhat foreign to the Australian members of the unit but he had advised them to accept it. Col Batters could not recall the extent of Mr Peckham's drinking and smoking, but accepted that soldiers were often heavy drinkers who did not need the excuse of work or discipline to justify the drinking. He had a recollection of Mr Peckham being demoted from Lance Corporal to Private but could not recall the reason.
As Mr Peckham had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are:
Instrument Nº 25 of 1996 as amended by Nº 3 of 1998 and Instrument Nº 26 of 1996 as amended by Nº 4 of 1998 concerning malignant neoplasm of the rectum
Instruments Nº 73 and Nº 74 of 1997 concerning chronic bronchitis and emphysema
Instruments Nº 31 and 32 of 1999 concerning cervical spondylosis
The claims for diabetes mellitus and myopia were not pursued at the hearing. Each of the relevant SoPs set out the factors, one of which must relate to the veteran's service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised.
In this case all of the factors relied upon were said to have related to operational service. In relation to malignant neoplasm of the rectum, the relevant factors were said to be 5(b) and 5(c), which state:
…
(b)smoking cigarettes or other tobacco products, where the equivalent of at least 10 pack years were consumed 25 years or more before the clinical onset of malignant neoplasm of the rectum; or
(c)drinking at least 250 kilograms of alcohol (contained within alcoholic drinks) within any 25 year period before the clinical onset of malignant neoplasm of the rectum;
For the purposes of these factors, a pack year means 7300 cigarettes and alcohol (contained within alcoholic drinks) is measured using 10 grams of alcohol per standard drink. In relation to chronic bronchitis and emphysema the relevant factor relied upon was factor 5(b), "smoking at least ten-pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema". This SoP uses the same definition of pack year. In relation to cervical spondylosis the factor relied upon was factor 5(h), "suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis". Trauma to the cervical spine is defined as:
…
a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred.
The clinical onset of the malignant neoplasm of the rectum was in December 1989 when Mr Peckham was referred to Mr Butterworth for a colonoscopy. In relation to smoking, this means that, to satisfy the factor of the SoP, Mr Peckham had to have smoked 10 pack years of cigarettes between September 1957 and December 1964. On the best view of his evidence and accepting the limitations of memory of events some 44 years ago, it would appear that he was smoking, at least, 20 cigarettes per day well prior to his duties in Malaysia and at the maximum, increased this rate by a further 20 cigarettes per day. Even if this increased rate was maintained until 1964, some five years after his Malaysia duties, he would have smoked some 7 pack years arising from his operational service. As a consequence, I am satisfied beyond reasonable doubt that factor 5(b) is not satisfied.
In relation to the alcohol factor, the requirement equals additional consumption related to operational service of 250 kilograms of alcohol in the period from December 1964 to December 1989. This equals 10 kilograms or 1000 standard drinks per annum or 2.74 standard drinks per day. It is clear from the evidence of Mr Peckham that he had become a heavy drinker prior to Malaysia. He acknowledged at least 2 occasions of "binge" drinking, one of which resulted in being locked up by the police prior to joining the army in 1956. It is clear that he was drinking heavily between August 1956 and September 1957. While he gave a history of significant beer consumption in Malaysia, it is not clear that this was significantly higher than prior to nor is it in any way clear that the level of consumption after 1959 remained consistently higher than that of pre-September 1957. It is noted that in a Drinking Questionnaire, completed by Mr Peckham in June 1994, he stated that he stopped drinking regularly when he left the army in 1976 and reduced to "spasmodic birthdays/Xmas/special occasions". In his evidence, Mr Peckham was firm that his drinking did not result in any problems in Malaysia nor did he receive any comment or criticism of excessive drinking. On the other hand, he acknowledged clear problems which arose from excessive alcohol consumption prior to army service. As a consequence, I am satisfied that factor 5(c) is not satisfied. I am satisfied that Mr Peckham had an established heavy drinking habit prior to operational service, that his recollection of increased drinking as a result of perceived stresses is a rationalisation of previously established drinking and that there was no sufficient additional consumption of alcohol resulting from such operational service to satisfy the factor in the SoP.
It was accepted that the condition of incisional hernia is claimed as sequelae to the malignant neoplasm of the rectum and its acceptance is dependent on the acceptance of that latter condition. In both cases, the hypothesis raised connecting the claimed conditions is reasonable. In relation to malignant neoplasm of the rectum the relevant SoP (Instrument Nº 25 of 1996 as amended by Nº 3 of 1998) has been identified. However, the facts do not satisfy the required factors of the SoP so that I am satisfied beyond reasonable doubt that the malignant neoplasm of the rectum and the sequelae of incisional hernia were not war-caused.
In relation to the claim for chronic bronchitis and emphysema, the first difficulty is whether Mr Peckham suffers from such condition. On 14 June 2000 Professor Pain, Director, Thoracic Medicine at Royal Melbourne Hospital, examined Mr Peckham and performed a lung function test. In his report of 15 June (T23), stated his opinion as:
…
1.Despite his considerable smoking history, Mr. Peckham does not show any evidence of chronic airflow obstruction due to obstructive bronchitis or emphysema. Between 1956 – 1976 he clearly has smoked at least 20-pack years, but I note from your letter that there are apparently only specific periods within that time which were considered significant. In any case his smoking habits have not resulted in any lung condition which would satisfy the Statement of Claims concerning chronic bronchitis or emphysema.
2.It sounds as though Mr. Peckham has a degree of simple bronchitis whilst he was smoking but has responded to cessation of smoking and he now has no significant respiratory symptoms.
3.I presume his breathlessness is related to his considerable obesity rather than to any intrinsic lung conditions.
In his claim made on 19 March 1999, Mr Peckham described his disability as "Breathing Problems" and attributed it to "Service Related Smoking". The attached medical assessment by his general practitioner, Dr Pearce, stated the symptoms as "intermittent cough and mucus", a "small" chronic productive cough with no spirometry tests done. A METS level of 3-4 was stated although, particularly in view of Professor Pain's report, it is not clear that any limiting symptoms are the result of any lung condition. In the VRB decision, it was accepted that Mr Peckham "may be regarded as suffering from chronic bronchitis for the purposes of SoP No 73 of 1997". However, the Board was unable to find that his smoking habit was service-related to satisfy the factor required by the SoP. The Board's apparent acceptance of the condition appears to be based on the spirometry results attached to Professor Pain's report and the view that these results only just meet the diagnostic criteria of the SoP. However, as found in Benjamin v Repatriation Commission [2001] FCA 1879, the Tribunal is required to first decide to its reasonable satisfaction the diagnosis of the condition and only on being so satisfied identify whether or not a SoP relating to such condition is in force. The SoP is not relevant to that initial decision on diagnosis and only comes into play after the diagnosis is established. In this case, the Tribunal has an expert opinion that the veteran does not suffer from chronic bronchitis and/or emphysema. This is not necessarily the end of the matter if the Tribunal can find that Mr Peckham, while not suffering from chronic bronchitis or emphysema, is suffering from some other respiratory condition. However, Dr Pain again states that he has no significant respiratory problems and the possible simple bronchitis has responded to his cessation of smoking. Even if Dr Pain could be seen to be wrong in his diagnosis and it could be said that Mr Peckham suffers from chronic bronchitis and/or emphysema, I am satisfied for the same reasons as relate to the claim for malignant neoplasm of the rectum, that the relevant factor of SoP relating to smoking is not satisfied.
For the claim for cervical spondylosis, Mr Peckham relies on factor 5(h) of the SoP Instrument Nº 31 of 1999 and the alleged trauma to the cervical spine in the incident in the truck. There are two problems with this claim. The first is satisfying factor 5(h). There is no evidence of suffering a discrete injury, acute symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine. Mr Peckham's evidence was that it was painful for some time but was not reported and it did not affect his duties. In Arnott v Repatriation Commission [2000] FCA 1336, Sunberg J said that the word "acute" in the definition of trauma "contemplates symptoms etc that are severe or significant". The evidence given to the VRB was summarised in its decision as (at p.10):
…
He did not need any assistance after the accident (which he accepted might well have taken place in 1957 rather than in 1959); his injury was "painful but bearable".
His neck was sore and stiff but his main problem was that he had difficulty in sitting down.
He did not seek any medical assistance after the accident (he told the Board he would have had to wait 8-9 hours at the British Army hospital) and carried on with his duties. Nor did he take any painkillers for his injury.
The pain eased up after 2-3 days but never went away entirely.
He could not recall seeking any medical treatment for his injury throughout the remaining 17-19 years of his Army service.
As a consequence, I am satisfied beyond reasonable doubt that the facts of the incident do not satisfy factor 5(b) of the SoP. The second difficulty is that Mr Peckham in his oral evidence to the Tribunal referred to pain in the lower back rather than the neck and told the VRB of problems in sitting down which would appear to refer more to lower back problems than cervical problems. It was noted also that Mr Peckham said that he fell from a ladder on to his head in 1985. This is more likely to have been in October 1988 when the clinical notes of Dr Pearce refer to him having fallen from a ladder at work. In any event, it is equally possible that his cervical spondylosis, which has been diagnosed only in more recent years, can be attributed to that later fall. For all of the above reasons, I am satisfied that the condition of cervical spondylosis is not upheld by the SoP and was not war-caused.
It follows from the foregoing that I am satisfied, beyond reasonable doubt, that there are no sufficient grounds for a finding that the claimed conditions of malignant neoplasm of the rectum, incisional hernia, chronic bronchitis and emphysema, diabetes mellitus, cervical spondylosis and myopia were war-caused or defence-caused. Consequently, the decision under review should be affirmed.
I certify that the thirteen [20] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member(sgd) Olympia Sarrinikolaou
ClerkDate of Hearing: 27 March 2002
Date of Decision: 28 June 2002
Counsel for Applicant: Mr D. Hyde
Solicitor for the Applicant: Mr D. De Marchi, De Marchi & Associates
Counsel for Respondent: NilSolicitor for the Respondent: Nil – Mr K. Rudge, Advocate with Department of Veterans' Affairs
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