Pursell and Repatriation Commission

[2004] AATA 158

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 158

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2002/317

VETERANS' APPEALS  DIVISION		)
Re		MERTON ROSS PURSELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date17 February 2004

PlaceHobart

Decision The decision under review is affirmed.

.[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Appeals - disability pension - eligible service - smoking habit - atrioventricular block - ischaemic heart disease - whether war-caused - Veterans' Review Board.

Veterans’ Entitlements Act 1986 – ss120(4) and 120B

Statements of Principles issued by the Repatriation Medical Authority.

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Deledio v Repatriation Commission (1998) FCA 391, 22 April 1998.

REASONS FOR DECISION

12 February 2004 Associate Professor B W Davis AM (Part-time Member)   

1.      The applicant, Merton Ross Pursell, seeks review of a decision made by a delegate of the Repatriation Commission on 23 April 2002, subsequently varied but affirmed by the Veterans’ Review Board (VRB) on 2 December 2002, that a claim for atrioventricular block was not accepted as war-caused.

2.      The VRB determined that the diagnosis of atrioventricular block be varied by adding ischaemic heart disease.

The Issue

3.      The issue before the Tribunal is whether Mr Pursell’s smoking habit, commenced during Army service, caused or contributed to his disabilities and are therefore service-related (ie war-caused).

Eligible Service

4. The veteran served in the Australian Army for a limited period during World War II, between 10 February 1942 and 5 September 1942 and the whole of this service constitutes eligible war service under the Act.

Standard of Proof

5. As the applicant does not have operational service, section 120(4) of the Act applies. The Tribunal is required to decide all matters to its reasonable satisfaction on the balance of probabilities.

6. As the claim was lodged after 1 June 1994, the Tribunal is also required to apply section 120B of the Act, using any relevant Statements of Principles issued by the Repatriation Medical Authority, or any relevant determinations or declarations under the Act.

7.      In this case, where a claimed condition is atrioventricular block, no relevant Statement of Principle has been issued.   A Statement of Principles is available for ischaemic heart disease (Statement No 39 of 1999).

Causation

8.      The act provides that a disease or injury is war-caused if it, in effect:

·     Resulted from an occurrence on operational service;

·     Arose out of or was attributable to eligible war-service;

·     Resulted from an accident while travelling to or from duty;

·     Was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war-service.

Background

9.      Service records indicate that the applicant, Merton Ross Pursell, was mobilised for full-time army duty at age 23 years.   He was married and lived in Hobart.   His army training and duties occurred at Brighton Camp just outside Hobart, and soon after initial training he was posted as a driver with area headquarters.   During his period of eligible service which lasted approximately seven months, he spent some 56 days in hospital, prior to being discharged as medically unfit due to an enlarged heart and general disabilities.

10.     Mr Pursell claims he commenced smoking in the Army and with only intermittent attempts to quit, continued until early 2004, a period of 62 years.   In a smoking questionnaire dated 21 January 2000 he gave reasons for smoking as “… peer pressure, stress, preparation for going away and propaganda regarding the Japanese”.   He had earlier claimed to have stopped smoking about May 1981, but wrote he took it up because “… stupid fellows on the rifle range waving their weapons about, were putting me in fear of my life.”

11.     Claims for bilateral-sensori neural hearing loss and bilateral tinnitus were accepted as disabilities by the Repatriation Commission on 28 October 1999, but a claim for “sick sinus syndrome” on 10 April 2000 was rejected.   Mr Pursell then applied for recognition of atrioventricular block on 23 April 2002, but this was rejected by a delegate of the Repatriation Commission on 23 April 2002, resulting in initiation of the current case.

12.     In rejecting Mr Pursell’s claim for atrioventricular block, the delegate of the Repatriation Commission considered all available evidence, including the veteran’s service record and a report from heart specialist Dr Loughhead dated 28 June 2001 and a medical opinion from a Departmental Medical Officer dated 22 August 2001.  The delegate also noted that the Repatriation Medical Authority had not yet issued a Statement of Principles for atrioventricular block.   However, Mr Pursell had contended the block was due to ischaemic heart disease caused by his smoking habit.

13.     In considering the claimed condition the delegate noted the report dated 28 June 2001, in which cardiologist Dr Loughhead stated that:

“… Av conduction disease can be due to a myriad of causes, but two common causes are ischaemic damage involving AV conducting system or degenerative change.”

Dr Loughhead, in relation to Mr Pursell’s condition, stated later in his report that:

“I did not get a history of ongoing ischaemic heart pain.”

Further comment, in the form of an opinion by a Departmental Medical Officer (DMO) dated 22 august 2001, included the following:

“… We cannot state, on the balance of probability, that his condition is due to ischaemic heart disease.  Dr Loughhead has not said that.”

14.     On this basis and other evidence the decision-maker (a delegate of the Repatriation Commission) decided Mr Pursell’s atrioventricular block was not related to eligible service and therefore his application failed.   The veteran then sought review by the Veteran’s Review Board (VRB) on 27 June 2002.

15.     The VRB hearing was conducted in Hobart on 2 December 2002.   Mr Dilba of the Returned and Services League (RSL) represented the applicant, who did not attend the hearing or give evidence.   There was no appearance on behalf of the Repatriation Commission.

16.     Mr Dilba presented the applicant’s case, drawing attention to medical evidence, including a report by the veteran’s local medical officer dated 17 September 2002 and a myocardial perfusion study dated 28 August 2002.   The LMO believed the veteran suffered ischaemic heart disease, with known earlier infarct.   There was distal abnormality, but it did not suggest extensive defects or severe or extensive artery disease.   Mr Dilba also made reference to the veteran’s smoking habit, which was substantial and longstanding, and argued this was war-caused.

17.     The VRB panel questioned Mr Dilba about some aspects of the veteran’s service record and noted that the veteran’s heart had been identified as enlarged prior to discharge from army service.   The Board then turned to the Statement of Principles for ischaemic heart disease (Statement No. 39 of 1999), noting that it listed 31 factors, of which only two dealt with smoking.   The VRB considered that a smoking habit of approximately 20 cigarettes per day from 1942 to 2001 resulted in nearly 60 pack years of smoking history, but before the factor could be said to be raised, it was necessary to demonstrate that the smoking itself was war-caused.   Having weighed all the evidence, including the short period of service, the amount of time in hospital, postings unlikely to result in service overseas, they were not persuaded his smoking was war-caused.   The VRB therefore affirmed the decision under review, but varied it to the extent of determining that the diagnosis be amended to add ischaemic heart disease to atrioventricular block.

18.     Mr Pursell then applied to the Administrative Appeals Tribunal on 20 December 2002, seeking review of the decision.

Facts and Contentions

19.     A statement of facts and contentions by the applicant was lodged by his legal counsel on 18 September 2003.   The primary contentions were that the applicant’s condition of atrioventriocular block was caused by ischaemic heart disease; that the applicant’s smoking habit met and satisfied Factor 5(f) of Statement of Principles Number 39 of 1999, and the veteran’s smoking habit was caused by service.

20.     The respondent’s statement of facts and contentions dated 21 October 2003, accepted some facts, but argued that whether or not the veteran’s claimed disabilities were related to service was for the Tribunal to determine.

The AAT Hearing

21.     On medical advice the AAT hearing was conducted at the applicant’s residence in Hobart on 28 January 2004.   Mr Ray Benson appeared for the applicant, the respondent (Repatriation Commission) was represented by Mr M Castle.

22.     Mr Pursell was sworn and gave evidence in response to questions put to him by counsel, the primary issue being whether his disabilities resulted from smoking and whether the latter was war-caused.   Mr Pursell detailed his army service, indicating that he commenced smoking as a result of a sergeant offering him a cigarette to calm his nerves on a firing range.   He had continued the habit for over sixty years, with only brief intermittent attempts to cease, despite requests from his wife who disliked the habit.   He said the firing range incident had “stirred him up” and he found smoking relaxing. 

23.     Counsel for the respondent queried whether the veteran’s brief army service, which included considerable periods in hospital and some periods as a driver could really have resulted in “war-caused” smoking.   Mr Pursell said that the service record about him driving was incorrect; he had never been engaged in such a role.   He agreed smoking had become an enduring habit, it settled him down and when he was uptight, as in hospital, it gave him pleasure.

24.     Mrs Vera Pursell was then sworn and indicated she had been married to the veteran for 65 years.   He had not smoked prior to enlistment and she was annoyed her husband took up the habit, since she did not favour tobacco or alcohol.   Her husband now had severe disabilities and relied upon a heart pacemaker, she had told him many times to cease smoking, but he had only ceased a few weeks ago.   She thought he had smoked about two ounces of tobacco a week for many years.  Under questioning by counsel for the respondent, she stated she had only visited her husband once during army service, he was in hospital and she had left when she heard coarse comment from another serviceman.

25.     In closing submissions, Mr Benson for the applicant said that causation was clear.   Mr Pursell had commenced smoking as a result of service activity and while the medical record indicated he had an enlarged heart, his subsequent disabilities were attributable to a persistent and substantial smoking habit which was service-related.

26.     Counsel for the respondent stated that an alternative interpretation was more likely.   Firing range duties were a normal part of army life and there was no specific incident that could be argued as a catalyst for Mr Pursell to take up smoking, there may have been several factors.   The applicant had been offered a cigarette, found it enjoyable and thereafter pursued the habit.  In this sense it was not war-caused.

Analysis

27.     The Tribunal is required to stand in the shoes of the original decision-maker, examining all evidence anew, but giving due weight to statutory provisions and policies, as well as any relevant prior determinations.

28. As the veteran did not have operational service, subsection 120(4) of the Veterans’ Entitlements Act 1986 (“the Act”) applies.   This means the Tribunal is required to decide all matters on the balance of probabilities and to its reasonable satisfaction.

29.     The appropriate procedure is to see whether any hypothesis can be identified, linking the claimed disabilities with service conditions.   Such an hypothesis must not be fanciful or absurd, but involve some material facts which might be regarded as causative or relevant (Bushell v Repatriation Commission (1992) 175 CLR 408). In performing its functions the Tribunal is permitted to have regard to medical or scientific material which is opposed to material supporting the veteran’s claim. But the Tribunal must also have regard to any relevant Statements of Principles issued by the Repatriation Medical Authority (s120B of the Act).

30.     Having considered the medical evidence in detail, the Tribunal is of a view on the balance of probabilities Mr Pursell is suffering the disabilities of atrioventricular block and ischaemic heart disease, with smoking as a significant prospective causative factor.

31.     Although Dr Loughhead in his report on Mr Pursell, dated 28 June 2001 stated “… I did not get a history of ischaemic chest pain”, he also stated elsewhere in his report ”… a sound case is to be made that the AV block is due to ischaemic heart disease”.   This assessment is supported by the report of a local medical officer dated 28 August 2002, indicating that the veteran had an enlarged heart at time of discharge from army service with a subsequent history of ischaemic heart disease with known earlier infarct.

32.     As far as smoking as a causative factor is concerned, Statement of Principles No. 39 of 1999 sets out two factors 5e(i) and (ii), which must be present if ischaemic heart disease is to be connected with the circumstances of a person’s relevant service.  Briefly summarised, the criteria are smoking the equivalent of 1 to 5 pack years within 5 years of the clinical onset of the disease, or the equivalent of at least 5 pack years within 10 years of onset of the disease.   Records suggest that Mr Pursell has smoked the equivalent of approximately 60 pack years, thus he meets the specified causative criteria.

33.     But before the above factor can be said to be raised, it is necessary to demonstrate that the smoking itself was war-caused.   Both the original decision-maker and the VRB rejected this prospect.   They noted the veteran’s time in the Army was very short, he was close to home, much of his time was spent in hospital, no critical incident or stressor was clearly identifiable other than nervousness on a firing range, he was never in any objective danger and because of his medical record unlikely to be sent overseas.

34.     The Tribunal has carefully examined anew the evidence on these matters and is reasonably satisfied that the material before it does not raise a connection between Mr Pursell’s decision to take up smoking and his service conditions.   The most likely cause of his smoking habit was accepting a cigarette and finding the effects of tobacco enjoyable.

35.     The decision under review is therefore affirmed.

I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  28 January 2004
Date of Decision  17 February 2004
Counsel for the Applicant         Mr R Benson
Solicitor for the Applicant          Ogilvie Jennings
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Repatriation Commission