PETER JOHN BYRNE Applicant And REPATRIATION COMMISSION Respondent

[2007] AATA 1488

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1488

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V 200600272

VETERANS'       APPEALS       DIVISION		)
Re		PETER JOHN BYRNE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date29 June 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) Kerry Breen

Member

VETERANS’ AFFAIRS – diabetes and its consequences – whether conditions attributable to cigarette smoking – relationship to stress in defence work

Veterans’ Entitlements Act 1986 ss 70, 120 and 120B(1)

Repatriation Commission v Smith (1987) 74 ALR 537

Doolette v Repatriation Commission (1990) 21 ALD 489

Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993

REASONS FOR DECISION

29 June 2007 Dr Kerry Breen, Member    

DECISION UNDER REVIEW

1.      Peter John Byrne served in the Royal Australian Air Force (RAAF) from 1965 to 1985 as a supply officer.  On 21 April 2005 he applied for a pension under the Veterans’ Entitlements Act 1986 (the Act) on the basis that he is incapacitated from defence-caused diseases.  Those diseases are type 2 diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease.  The Repatriation Commission (the respondent) rejected his claim on the basis that those diseases were not defence-caused.  The Veterans’ Review Board (VRB) affirmed that decision on 14 February 2006.

2.      However, the respondent did accept that Mr Byrne is suffering from type 2 diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease. Therefore, I accept that Mr Byrne is suffering from those diseases.  Mr Byrne contends that his diabetes mellitus arose out of or was attributable to his defence service on the basis that he resumed smoking cigarettes in 1973 as a result of stress that he experienced during his service.  If I accept Mr Byrne’s contention, the parties and I accept that his other two diseases also arose out of or were attributable to his defence service; so that Mr Byrne would be eligible for a pension in respect of all three diseases.

3.      I have decided that I am not reasonably satisfied that Mr Byrne’s starting to smoke again in 1973 arose out of or was attributable to his defence service.  Therefore, I am not satisfied that any of his diseases is a defence-caused disease.  Accordingly, I affirm the decision of the VRB.

4. The relevant sections of the Act include section 70, section 120 and section 120B(1). The effect of sections 70(1)(b) and (d) of the Act is that the Commonwealth must pay a pension by way of compensation to a member of the Armed Forces if that member is, among other matters, incapacitated from a defence caused disease.  As a member of the RAAF, Mr Byrne is a member of the Armed Forces.  A disease is taken to be a defence-caused disease if, in so far as it is relevant, the disease … arose out of, or was attributable to any defence service... of the member (section 70(5)).  There is no question that Mr Byrne has defence service.

5. Under section 120(4) of the Act, I must decide whether Mr Byrne is suffering from a defence-caused disease to my reasonable satisfaction.  That means that I need to ask myself ...whether on the facts of the case ... [I am] persuaded on the civil standard (Smith v Repatriation Commission (1987) 74 ALR 537 at 547). In Smith Beaumont J said at 547:

…There is, in this connection, a distinction to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (1986) 9 ALD 354; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner 12 ALD 87.

6.      In answering this question, section 120B(3) of the Act requires me to refer to any Statement of Principles (SoP) that has been determined by the Repatriation Medical Authority in relation to the diseases under consideration.  In this case the parties have agreed that there are three SoPs that are relevant: Instrument Nº 12 of 2004 (Diabetes Mellitus); Instrument Nº 66 of 2002 (Atherosclerotic Peripheral Vascular Disease); and Instrument Nº 54 of 2003 (Ischaemic Heart Disease).  Section 120B(3) provides that I can only be satisfied that Mr Byrne’s diseases are defence‑caused if I am satisfied that the material ... raises a connection between the ... disease … and some particular service he has rendered and that the relevant SoP upholds the contention that the… disease… is, on the balance of probabilities, connected with that service.

7.      Paragraph 5(c) of Instrument Nº 12 of 2004 states that, in the circumstance of this case:

The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus … is connected with the circumstances of a person’s relevant service is:

…

(c)in relation to type 2 diabetes mellitus, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset occurred within five years of cessation…

8.      Although not raised by the parties, I should satisfy myself that Mr Byrne’s smoking was of sufficient duration and amount to meet the requirement of the SoP and that that the clinical onset of diabetes was within five years of his cessation of smoking.  The term pack years of cigarettes or the equivalent thereof in other tobacco products is defined in paragraph 8 of Instrument Nº 12 of 2004 as:

…a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes.  One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight.  One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight.  Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination…

9.      The effect of paragraph 5(b) of each of the SoPs relating to Atherosclerotic Peripheral Vascular Disease and Ischaemic Heart Disease is that:

The factors that must exist before it can be said that, on the balance of probabilities, [atherosclerotic peripheral vascular disease/ischaemic heart disease]… is connected with the circumstances of a person’s relevant service are:

…

(b)suffering from diabetes mellitus before the clinical onset of [atherosclerotic peripheral vascular disease/ischaemic heart disease].

10.     It follows that this case turns, in part, on whether Mr Byrne had smoked at least 10 pack years of cigarettes and that the clinical onset of his diabetes mellitus had occurred within five years of his ceasing to smoke.  His medical records indicate that Mr Byrne attended Dr G. Norton on 28 February 1983 and Dr Norton recorded that he had been diagnosed with diabetes some 9/12 ago (T4, p138) ie in approximately May 1982.  This approximate date is supported by entries in Mr Byrne’s medical record in June and August 1982.  I am satisfied that the clinical onset of his diabetes mellitus had occurred by May or June 1982 and I do not need to be more specific in this case.

11.     There is some issue in regard to Mr Byrne’s smoking history to which I will return.  There is some inconsistency as to when Mr Byrne ceased smoking.  In  smoking histories recorded on 15 March 2005 (T11, p 245) and 25 May 2005 (T5, p 214) and having regard to the medical notes of Dr Norton of 28 February 1983 (where Dr Norton has recorded Ceased Jun 78 – part of treatment of his palpitations), I find that Mr Byrne was smoking cigarettes until June 1978.  I note that in his smoking questionnaire he gives a specific date in 1979 (4 pm on 13 June) as the date he ceased smoking; but I consider that Dr Norton’s notes are more likely to be correct given their proximity to the time when Mr Byrne ceased to smoke.  It follows that the clinical onset of his diabetes mellitus was within five years of the cessation of Mr Byrne’s smoking.

12.     Dealing with the quantity that Mr Byrne smoked, in the smoking questionnaire dated March 2005, Mr Byrne indicated that he commenced smoking regularly in 1966 and smoked 50 cigarettes per day.  In the smoking questionnaire dated May 2005 Mr Byrne indicated that he was smoking 2-3 cigarettes per day prior to his enlistment.  When he enlisted, his intake gradually increased to 15-20 in 1965; then 20-25 per day in 1968; 25-30 in 1971; and 50 cigarettes per day in 1978.  Mr Byrne also gave sworn evidence in regard to his smoking history.  He said he had smoked approximately 10 cigarettes per day from 1965, gradually increasing to around 20‑ 25 per day in 1969 when he stopped smoking.  He recommenced smoking in 1973 when he was posted to Wagga Wagga and soon was smoking 50 ‑ 60 cigarettes per day until he stopped smoking permanently in 1979.  On this evidence, I am satisfied that Mr Byrne smoked at least 10 pack years before the clinical onset of diabetes mellitus.

13.     The residual question left for me to consider is whether Mr Byrne’s cigarette smoking arose out of or was attributable to his defence service.

14.     Mr Byrne attributed his recommencement of smoking on arrival at Wagga Wagga to several stresses that he was placed under.  At that time he had been married for approximately eight years and had two daughters aged six and four.  He stated that he was unable to obtain married accommodation at the air force base for around three months and therefore was separated from his family for this period.  Although he was pleased to take up the position at Wagga Wagga, he stated that this separation was stressful to him, especially as he soon became aware that it was also causing his wife stress as she had to cope with their daughters’ illness.  He stated that although an allowance was available to rent suitable accommodation for his family in the area, it was unrealistic to try to rent for just two to three months.  He thus lived in the accommodation provided for single men on the base.  As the base was some distance from Wagga Wagga, any social activities were limited to the base and thus he was expected to socialise with unmarried men.  After seven years of marriage, never having been separated from his family in that time, he found socialising with the others (colloquially known as singlies) difficult.  He felt pressured by his peers to become involved in the usual leisure activities of the single men, which he described as involving drinking and playing cards in the mess.

15.     Mr Byrne also found his new position stressful.  For the first time he was involved in supervising others.  He felt that his section commander did not like to work, passed work on to him and interrupted his work.  He stated that his immediate supervisor drank to excess, passed most of his work onto Mr Byrne and thus increased the level of his responsibility beyond that which he had anticipated.

16.     Mr Byrne stated that he was asked to take on the additional role of bar member in the Sergeants’ Mess.  This involved additional work at the end of each day reconciling the bar accounts and dealing with members’ complaints and staff matters.  In the transcript of the VRB hearing, Mr Byrne also intimated that this role brought him into daily contact with cigarette smoking.

17.     He stated that he reported his distress to the medical officer and that he was told to go away and have a few drinks and a smoke to relieve the stress.

18.     Mr Byrne stated that the combination of these factors led to him recommencing cigarette smoking and he was soon smoking 50-60 cigarettes per day.

19.     Mr Byrne also stated that cigarettes were cheaper to purchase at the air force base and that there was a practice of issuing  supplies of cigarettes for all personnel going on bivouacs.

20.     The documents before the Tribunal give differing accounts of Mr Byrne’s smoking history.  In a Claimant Report – Cigarette Smoking dated 15 March 2005 (T11, p 244), in response to the question Why did you start to smoke cigarettes on a regular basis (in 1966) he answered peer pressure an (sic) Availibility (sic).  He recorded that he stopped smoking at 4pm on 13 June 1979; and that the amount that he smoked, 50 cigarettes per day, had not changed since he first started smoking on a regular basis.  Later the same year, on 25 May 2005, he completed another Claimant Report (T5, p 213).  This time he wrote that he started to smoke on a regular basis in approx 1962 because of peer pressure and smoked 2-3 but also said the amount he smoked had changed over time.  The Claimant Report showed the following tabulation:

Date of Change (month and Year)	New amount smoked (cigs per day…)	Reason for change
By the time I enlisted	10	Gradual increase
Approx April 1965	15-20	Stress at work
1968	20-25	‑
1971	25-30	‑
1978	50	‑
1979	NIL	On medical advice

21.     It was put to Mr Byrne in cross examination that his account of his smoking history given to this Tribunal and to the VRB did not accord with these two written accounts provided in 2005.  Mr Byrne responded by stating that in 2005 he was affected by memory difficulties following recent coronary bypass surgery (which had taken place on 9 February 2005, some five weeks before he completed the first Claimant Report on 15 March 2005) and that he was unaware of the relevance of the form at the time.

22.     In his detailed statement dated 5 December 2005, Mr Byrne wrote (T12, p 254):

…

At the time when the Smoking Questionnaire was completed by the officer from the Melton Branch I was, as indicated earlier, suffering from some form of surgery induced memory loss.  When asked for a history of my smoking during my service I told the officer that I could not remember that history clearly at all.  I knew that I had smoked about 50 to 60 (and frequently more) but in regard to periods where smoking had begun and/or ceased I had no recollection whatsoever.  I signed the smoking questionnaire with information which was to the best of my then understanding correct. 

Subsequent to my application being lodged with the DVA, I was asked by the Melton office to complete a new smoking questionnaire.  This was necessary I was informed because the DVA considered the earlier version inadequate for its intended purpose. At this point a second questionnaire was completed during a phone conversation with the Melton office.  Once again I reiterated to a different officer that I could not remember the circumstances surrounding my smoking habit.  This was not difficult to understand given that I stopped smoking some 26 years ago and I was suffering with a post surgery memory loss.  I was informed that, for my claim to proceed, a valid questionnaire had to be completed. The officer then completed the questionnaire, which I signed some days later.

23.     Mr Byrne provided a medical report from cardiologist Dr M. Sebastian dated 15 November 2005 (T12, p 257) which was intended to support his evidence of post surgery memory loss.  This was worded in part as follows:

…

During the post-operative period he has reported intermittent problems with his memory.  Various forms of cognitive impairment following cardiopulmonary bypass have been reported in the literature.  In Mr Byrne’s case the memory problem does not appear to be severe or ongoing enough to require further investigation…

24.     Mr Byrne’s wife, Mrs Helen Byrne, gave oral evidence that she recalled that her husband was happy to go to Wagga Wagga but that she had noticed a marked change in her husband soon after he took up the posting.  She stated that he indicated that he was stressed by a very heavy workload, the living conditions and his concern about the health of his daughters.  Her evidence supported that of her husband in regard to his cessation of smoking in 1969 and his recommencement in 1973 soon after arriving at Wagga Wagga.

25.     I was provided with a report dated 6 September 2006 (Exhibit R1), commissioned by the respondent from Mr P. McNeile of Writeway Research Services Pty Ltd, who had been asked to contact Mr Byrne’s superior officers… and to obtain their comments on the contentions raised by Mr Byrne.  The written report responded to three contentions, being separation from family, heavy workload and loss of promotion prospects.  Mr McNeile’s report supported Mr Byrne’s evidence in regard to a shortage of married quarters on the air force base but went on to state that:

…In the Writer’s experience personnel were only separated from their families in the short term while they sought suitable and affordable private rental accommodation.

26.     Mr McNeile’s research revealed that Mr Byrne’s Squadron Commander from that time was deceased.  He reported on a telephone conference with Mr Roy Slater who was Mr Byrne’s Section Commander at RAAF Wagga.  Mr Slater informed Mr McNeile that he had no recollection of Mr Byrne.  Mr McNeile reported that Mr Slater recalls that the Flight Sergeant (Section Commander) was very efficient and certainly did not fit the description given by the veteran.  Mr McNeile quoted an extract from Mr Byrne’s Annual Evaluation (PP207) Form for 1973 which stated:

Sergeant Byrne has performed his duties in a capable and conscientious (sic), and has maintained a high standard of work within the Section despite manning deficiencies…

27.     Mr McNeile’s report addressed the third contention of loss of promotion prospects.  As this issue has not been raised before me, I have not summarised the evidence here.

28.     I was also provided with Mr Byrne’s written response to Mr McNeile’s report.  In his response, Mr Byrne pointed out errors in regards to the dates of his commissioning and subsequent resignation, and stated that he had not heard of the Mr Stone to whom Mr McNeile had referred.  Mr Byrne’s response covers his view of the housing shortage at that time, disagreeing with the views of Mr McNeile.  Mr Byrne notes that his Section Commander (Mr Slater) failed to recall him but:

…remembers the Flight Sergeant well despite not remembering me and added His selective memory has also failed it seems when it comes to recalling the countless times I was dispatched by him to the Sergeants’ Mess to get the Flight Sergeant back to work.

CONTENTIONS

29.     Mr Byrne’s advocate, Mr Bruce Turner, contended, in brief, that the combined stresses experienced by Mr Byrne in his first weeks at Wagga Wagga were the reason Mr Byrne resumed smoking and that as a consequence, the Tribunal should find that his cigarette smoking (and hence his diabetes and its sequelae) were attributable to his defence service.

30.     On behalf of the respondent, Mr Ken Rudge, a DVA advocate, contended that at the time of his appointment to Wagga Wagga, Mr Byrne was already experienced in his auditing work, he was proficient in his work, his work situation was little different to that likely to be experienced in civilian life and his recommencement of smoking was part of a normal social experience and a matter of individual choice and responsibility.  In addition, it was argued that Mr Byrne’s situation at Wagga Wagga was not like that of service personnel under stress of war or in a camp preparing for war.  For these reasons it was argued that his smoking was not related to his defence service.

CONSIDERATION

31.     In considering whether Mr Byrne’s conditions arose out of or are attributable to his service, I have had regard to the principles set out by the Federal Court in Doolette v Repatriation Commission (1990) 21 ALD 489. In Doolette, O’Loughlin J said at 492:

…

In Repatriation Commission v Law (1980) 31 ALR 489 (affirmed on appeal 147 CLR 625: 36 ALR 411) the Full Court, after considering the meaning that had been applied to the same expression in other Acts of Parliament, said at 151:

“It seem clear that the expression ‘attributable to’ in each case involves an element of causation.  The cause need not be the sole or dominant cause: it is sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributing cause.  Under s. 101(1)(b), it is sufficient to show ‘attributability’ if a member’s war service is a contributing cause to the incapacity or death in respect of which the claim is made.”

I see no reason to consider that expression “was attributable to” appearing in the present legislation should be interpreted differently.  In addition, the learned deputy president pointed out, and I agree, that if death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service: Re Blyth and Commission (1982) 4 ALN N147.

32.     I have also had regard to the judgement of Lockhart J in Repatriation Commission v Edwards, Federal Court, 3 September 1993, G250/1993.  The VRB relied on Edwards as authority for the proposition that the relevant smoking must have more than a temporal connection with service. In that matter, the Tribunal had decided that Mr Edward’s death was war-caused because it arose out of or was attributable to his heavy smoking habit, which was attributable to his war service. As Mr Edwards did not have operational service, the standard of proof under section 120(4) applied as it does in this case. There was evidence that Mr Edwards had never smoked before he joined the Army at age 32, but that he had learned to smoke in the Army because there was nothing else to do. I was bored.  An appeal from the Tribunal’s decision to accept that his smoking arose out of or was attributable to his war-service was dismissed by Lockhart J.  His Honour said in part:

Considerable care must be exercised by the Tribunal when considering a case such as the present where the veteran commenced smoking during war service, but was not in a theatre of war. His war service was performed in Australia primarily in relation to control of transport pools and smoking was taken up because of boredom. Plainly on the facts of this case the Tribunal was justified in concluding that there was a temporal connection between the veteran commencing smoking and his war service; the war service provided the setting in which the veteran began to smoke.

…

Although the evidence in this case before the Tribunal in support of its conclusion that the veteran's smoking habit arose out of or was attributable to his war service is rather meagre; nevertheless the evidence of Mr Sheel in particular and to a lesser extent the evidence of Mrs Edwards was accepted by the Tribunal as sufficient to support its finding that it was reasonably satisfied of the requisite causal link between the veteran's smoking and his war service. Provided there is evidence to support this finding it is for the Tribunal to determine the evidence which it accepts as it is the judge of the facts. This is not a case where there was no evidence upon which the Tribunal could reasonably conclude that there was the requisite link between war service of the veteran and his subsequent death. Fragile though the evidence may be, it has not been established to my satisfaction that the Tribunal erred in its conclusion.

33.     There are some aspects of this case in which the evidence is in conflict.  This conflicting evidence is difficult to reconcile.  The first relates to Mr McNeile’s report presented on behalf of the respondent.  It has been written by a person who ...completed 18 years of commissioned service in the permanent Air Force and seven years as a legal officer on the RAAF Specialist Reserve… The author also states that he:

…served as Command Housing Officer at Headquarters Support Command in Melbourne and later filled a Staff Officer Position concerning the administration of housing in the RAAF…

The author does not state the period during which he served in these capacities and whether it covers the period in question in this case.  He was not called to give oral evidence or to be cross-examined.  However, his experience as outlined above provides some basis for his evidence that:

There would have been a shortage of married quarters at RAAF Wagga.  The Claimant would have been entitled to Temporary Accommodation Allowance (TAA) as a rental subsidy for private rental domestic accommodation at market rates until such time as he was allocated a RAAF married quarter.  There was no RAAF service need for a physical separation of married families, except for a serviceman’s personal family reasons or personal choice. 

34.     Mr Byrne rebutted Mr McNeile’s report in his own written statement (Exhibit A1) where he said:

... If, as the researcher claims he was the HQSC Housing Officer, he would have been acutely aware in 1973 and chronically aware today that suitable short term (6-8 weeks) private housing rentals were simply not available in Wagga and rarely available anywhere.  The fact is that the RAAF could not provide a married quarter or private housing and as a consequence I was separated from my family due to service reasons…

Mr Byrne did not provide any evidence to support the above statement.

35.     However, the housing issue revolves, for the purposes of this hearing, around the possibility that a period of separation from his family may have been stressful for Mr Byrne.  Despite the differing views expressed to me about access to rental accommodation, the fact that Mr Byrne was separated from his wife and two young children for at least two months is not in dispute.  I have no difficulty in accepting that such a separation would have been a source of stress for Mr Byrne.

36.     The second area wherein the evidence is unclear is in relation to Mr Byrne’s smoking history.  Mr Byrne has provided three different accounts of his smoking history.  In assessing this evidence, I am prepared to accept that Mr Byrne’s memory was temporarily affected after his bypass surgery; and I am therefore not too troubled by the Claimant Report dated 15 March 2005.  In light of a medical report from the cardiologist Dr Sebastian, which I interpret as representing an impression by the doctor that Mr Byrne’s memory disturbance was relatively minor, and without any indication that memory problems were documented at the time the questionnaire was filled in, I am less willing to accept the explanation of the account recorded with the assistance of an RSL member at the Melton Branch, without hearing from that person.  That second Claimant Report attributes Mr Byrne’s increased smoking to stress at work from 1965.  It does not give any stress related to the problem of finding accommodation with his family at Wagga Wagga in 1973 as a separate reason for the increased smoking.  In addition, 1973 is not shown as a year in which there was any increase in Mr Byrne’s smoking habit, let alone a resumption of it.

37.     Mr Byrne told me that he had been advised by a medical officer, whom he had consulted at the Wagga Wagga base over his stress, to go away and have a smoke and a drink.  There is no contemporaneous medical record of Mr Byrne seeking such medical advice and it seems to me unlikely that a medical officer would have been recommended cigarette smoking as a stress management measure in 1973.

38.     Mr Byrne claimed that an additional source of stress was the support, or lack thereof, that he received from his superior officer.  However, Mr McNeile found no suggestion of the problems Mr Byrne described but did reveal a work performance assessment which was very positive.

39.     In my view, Mr Byrne is a conscientious person who was determined to perform to the best of his ability when he took up his posting at Wagga Wagga.  He conceded that he was prepared for a brief separation from his family and conceded that his assuming a supervising role for the first time would be stressful. Understandably, in my view, he did not anticipate that his workload and level of responsibility, as well as residing temporarily in a singlies environment, would prove to be so problematic for him.  I accept that Mr Byrne did find his circumstances in his first months at Wagga Wagga stressful and that these were circumstances that could account for his decision to resume smoking.

40.     However, because of the somewhat unsatisfactory nature of the evidence put to me in regard to his smoking history, because of the absence of any evidence to support Mr Byrne’s contention in regard to advice a medical officer may have given him regarding stress management and because of the conflicting evidence in regard to what stressors may have been experienced, I am not persuaded that Mr Byrne’s resumption of smoking arose out of or was attributable to his defence service.  At the time, Mr Byrne was a mature married man who had past experience of smoking and had demonstrated that he could give it up.  I accept the respondent’s contention, that the environment in which Mr Byrne found himself should be regarded as comparable with those environments experienced by other employees who are separated from their family when asked to undertake work in remote locations, for example telephone company linesmen, and that his recourse to cigarette smoking should be seen as part of common life experience.  In other words, the nature of the work stresses (including temporary separation from his family) were no different from those faced by other workers in other occupations and there was nothing in his work experience at that time which suggested that it was the peculiar nature of his defence service which contributed to his decision to start smoking again. 

41.     My conclusion that I am not satisfied that Mr Byrne’s smoking arose out of or was attributable to his defence service is not a reflection on Mr Byrne’s fine service record.  It is a reflection of the fact that the state of the evidence is such that, on the balance of probabilities, I am unable to conclude that the difficulties of the sort complained of by Mr Byrne, and that he states led to his resumption of smoking, were of a nature as to make me reasonably satisfied of the requisite causal link between his resumption of smoking and his defence service.

42.     I therefore affirm the decision under review. 

I certify that the forty‑two [42] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Kerry Breen, Member

(sgd)    Olympia Sarrinikolaou

Clerk

Date of Hearing:  10 April 2007
Date of Decision:  29 June 2007
Advocate for the Applicant:         Mr B. Turner, Bayside Veterans’ Centre
Advocate for the Respondent:      Mr K. Rudge, Department of Veterans’ Affairs