Pountney and Repatriation Commission - [2002] AATA 740

DECISION AND REASONS FOR DECISION [2002] AATA 740

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/149

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE ALWYN POUNTNEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Brigadier IRW Brumfield, Member

Date30 August 2002
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..................(Sgnd).................
Brigadier IRW Brumfield
Member

CATCHWORDS
VETERANS' AFFAIRS – pension - ischaemic heart disease – whether condition is war-caused – whether there is a reasonable hypothesis connecting condition to defence service

Veterans' Entitlements Act 1986 ss 68, 70, 119, 120, 120(4), 120B

REASONS FOR DECISION

30 August 2002 Brigadier IRW Brumfield, Member

This is an application by Neville Alwyn Pountney ("the applicant") for review of a decision of the Repatriation Commission dated 30 June 1999 which refused a claim for medical treatment and pension for incapacity arising from ischaemic heart disease on the ground that the condition was defence service caused.
The Veterans' Review Board on 5 December 2000 affirmed that decision.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documents:
For the Applicant

Exhibit A1 Statement of Roxane Bailey dated 11 April 2001
Exhibit A2 Statement of Neville Pountney dated 25 July 2001
Exhibit A3 Statement of Neville Walker dated 14 July 2001
Exhibit A4 CM5030 Repatriation Commission Guidelines
Exhibit A5 Statement of Margaret Anne Pountney dated 16 January 2001

For the Respondent

Exhibit R1 Outpatients Consultation Record - 20 June 1977
Exhibit R2 Clinical Record – 13 July 1981

Oral evidence was given by the applicant Neville Alwyn Pountney, the applicant's wife Margaret Pountney and Mr Neville Walker.

ISSUES

The issue to be resolved in this matter is whether the applicant's condition of ischaemic heart disease is related to his defence service. At the outset, the respondent raised the question of the applicant's credibility.
Defence service is confined by section 68 of the Veterans' Entitlements Act 1986 ("the Act") to the period 7 December 1973 to 7 April 1994.
LEGISLATIVE FRAMEWORK
The standard of proof in this matter is set out in subsection 120(4) of the Act and requires the Tribunal to determine the matter to its reasonable satisfaction, that is, on the balance of probabilities.
The applicant's claim was lodged after 1 June 1994 and the Tribunal is required to apply section 120B of the Act in reaching its decision. The Tribunal is required to decide this matter to its reasonable satisfaction in accordance with any relevant Statement of Principles ("SoP"). The relevant SoP is Instrument No 39 of 1999 – Ischaemic Heart Disease. It is common ground that the applicant may satisfy either Factor 5(e) or 5(f) depending on a decision of the Tribunal as to the timing of cessation of smoking. Thus, the remaining issue, once that decision is taken (see below), is that of causation.
EVIDENCE AND CONSIDERATION
The applicant told the Tribunal that he enlisted in the RAAF on 20 January 1971 at 18 years of age. After recruit training at Edinburgh in South Australia he was mustered as a fireman and sent to a three months Basic Fireman's Course at Point Cook, Victoria. He completed training in May 1972 and was posted as a fireman in the Base Fire Service at RAAF Base, Williamtown. He spoke of the type of operation he could be involved in and the work schedule in use at the time. Both these could have involved stress at the time, particularly when he became qualified to assist in the removal of pilots and ordinance from "downed" aircraft. He did not have to carry these duties out except in practice drills.
Later he was posted to Townsville where he carried out the same duties. He left the RAAF on 19 January 1983 and joined the RAAF Reserves where he carried out from time to time, as part of that Reserve service, his old job at RAAF Townsville (RAAF Base Garbutt). The main difference in his job at Townsville was that civilian aircraft used the base adding, in his view, to the stress involved.
In 1996 he had cardiac problems and had an angioplasty and in 1998 he suffered a heart attack.
His smoking history was not easy to follow. In his first smoking questionnaire submitted with his claim on 21 June 1999, he stated that he started smoking on 3 March 1971 at a rate of twenty cigarettes per day. He stated that he stopped smoking on 22 August 1998.
The second smoking questionnaire was completed on 20 March 2000 (T4, Folios 13, 14) after the decision under review had been handed down. This indicates that he began smoking on 3 March 1971, two or three times a week at the rate of seven cigarettes a day. It sets out that in January 1973 the level of consumption had risen to fifteen a day and by 1978 had reached twenty a day. Consumption declined towards fifteen per day after discharge in 1983.
In Exhibit A2 the applicant stated that the 1988 Smoking Questionnaire had been "filled in by myself entirely on the advice of Mr Walker". The applicant confirmed this in his oral evidence.
Exhibit R2 shows that the applicant informed two doctors during consultations that he was not smoking at these times. In oral evidence he stated that he did not give correct information because he did not want to admit to a smoking habit.
There are other inconsistencies in information given to doctors. In 1977 he said that he was smoking at the rate of twenty per day; in 1981, twenty-five per day; in June 1982, twelve per day and in December 1987, ten per day.
The date of commencement of smoking is also unclear. On the one hand the applicant admitted that he began casual smoking before joining the RAAF. In other evidence he claimed to have started social smoking in March 1971.
The duration of the applicant's smoking habit was also unclear. In August 1998, as a result of heart surgery, he reported that he had stopped smoking. In the second smoking questionnaire he is shown to be smoking on 24 March 2000. In oral evidence he confirmed that he was still smoking. The Tribunal accepts that the applicant is still smoking and as a result Factor 5(e) of the relevant SoP does not apply. It was now common ground that the applicant satisfied Factor 5(f) of the relevant SoP, Instrument No 39 of 1999.
Mrs Margaret Pountney, the applicant's wife, gave evidence. She confirmed the contents of Exhibit A5. She stated that before their marriage the applicant was only a casual smoker but that after training and posting to Williamtown in 1972 he began to increase consumption and began to drink regularly. She said that by January 1973 the stress of his job had him smoking and drinking heavily. He tried to give up smoking but rarely succeeded for more than two weeks at a time. On discharge in 1983 he continued to smoke regularly and in 1996 had an angioplasty followed by a heart attack in 1998.
Mr Neville Walker, the advocate who filled out the applicant's claim form (T4) and submitted it to the applicant's local medical officer, gave oral evidence. He confirmed Exhibit A3. With regard to the smoking questionnaire filled out at this time, Mr Walker stated that he had been advised by another advocate of the need for this questionnaire to be filled out. In putting in his claim to the Department of Veterans' Affairs, Townsville office, the applicant had also been advised of the requirement. Mr Walker rang the applicant and assisted him, over the phone, to fill in the form. He did not, however, tell the applicant to put down "20" a day. Mr Walker stated that he had some concern that his inexperience may have led him not to brief the applicant fully [this was his second case]. Nevertheless, it appears that Mr Walker adequately dealt with the claim and it was submitted after endorsement by the applicant. The answers given in the smoking questionnaire were not directed by Mr Walker and only required truthful answers from the applicant.
As noted above, it is common ground that the applicant satisfies Factor 5(f) of the relevant SoP, Instrument No 39 of 1999. In dealing with the issue of credibility raised by the respondent, all the material before the Tribunal discloses many inconsistencies in the evidence, so many that there is a strong indication that the Tribunal could not be reasonably satisfied that the applicant's claim could succeed.
However, the question remains of a causal relationship between the training and tasks of the applicant during his eligible defence service and, in particular, the stresses he claims he encountered during that service. At best, from all the material available, it does not appear that the execution of his job as fireman in the circumstances he outlined in evidence would provide the stress he seeks to account for his smoking habit. Recall that, after leaving the service, he carried out similar duties for two years on an occasional basis with no apparent difficulty.
In the circumstances, the Tribunal cannot be reasonably satisfied that the applicant's claim should succeed.
The Tribunal affirms the decision under review.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier IRW Brumfield, Member
Signed:         Sarah Oliver
  Associate
Date of Hearing  30 May 2002
Date of Decision  30 August 2002
Counsel for the Applicant        Mr R Clutterbuck
Solicitor for the Applicant         Messrs Streeting Haney, Solicitors
Counsel for the Respondent    Mr J Stoner, Departmental Advocate