Rowley and Repatriation Commission (Veterans' entitlements)
[2019] AATA 5400
•12 December 2019
Rowley and Repatriation Commission (Veterans' entitlements) [2019] AATA 5400 (12 December 2019)
Division:VETERANS' APPEALS DIVISION
File Number: 2018/4417
Re:Graham Rowley
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:12 December 2019
Place:Brisbane
The decision under review is affirmed.
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Senior Member Katter
Catchwords
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – standard of proof s 120(4) of the Veterans’ Entitlements Act 1986 – reasonable satisfaction to be assessed in accordance with s 120B of the Veterans’ Entitlements Act 1986 – relevant Statement of Principles – conditions not connected with relevant service – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986
Cases
Budge and Repatriation Commission [2014] AATA 276
Clarke and Repatriation Commission (Veterans' entitlements) [2018] AATA 2246
McDermott and Repatriation Commission [2011] AATA 714
R v Monopolies and Mergers Commission; Ex parte National House Building Council [1994] TLR 38
Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609
Repatriation Commission v Money (2009) 173 FCR 410
Roncevich v Repatriation Commission (2005) 222 CLR 115
Walsh v Rother District Council [1978] 1 All ER 510
Secondary Materials
Statement of Principles Instrument for Diabetes Mellitus No. 90 of 2011
Statement of Principles Instrument for Atherosclerotic Peripheral Vascular Disease No. 24 of 2012
REASONS FOR DECISION
Senior Member Katter
12 December 2019
INTRODUCTION
The Applicant seeks review of the decision of the Respondent dated 12 May 2017[1], refusing claims as to diabetes mellitus and atherosclerotic peripheral vascular disease relating to service under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
[1] T10 at page 66.
BACKGROUND
The Applicant served in the Royal Australian Navy from 7 July 1966[2] until 12 August 1973[3].
[2] Page 8 of the Historical Service Record printed 15 March 2017.
[3] Page 15 of the Historical Service Record printed 15 March 2017.
It is not in contention that the Applicant’s defence service under the Act was from
7 December 1972 to 12 August 1973[4].
[4] Paragraph 3.1 of the Respondent’s Statement of Issues, Facts and Contentions filed 16 March 2019.
By a claim form dated 24 February 2017 the Applicant claimed “… for disabilities that have not yet been accepted as service related”[5]. There was an additional information sheet[6] with the Form D2582 (Claim for Disability Pension and/or Application for Increase in Disability Pension)[7]. On the additional information sheet, the Applicant stated the following[8]:
[5] PT7 at page 49, Part C, A.
[6] PT7 at page 59.
[7] PT7 at pages 48-58.
[8] PT7 at pages 59-60.
“Disability Blood glucose issues Signs and Symptoms High blood glucose levels
Tiredness
Dry mouth, always thirsty
Frequently going to the toilet
How do you believe your service caused, contributed to, or aggravated this disability? Due to my smoking habit which started in service and because of service. See claimant report enclosed. When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) Early 2000s Disability Circulation issues Signs and Symptoms Pain sensation on tips of my toes
Calf muscles cramps
How do you believe your service caused, contributed to, or aggravated this disability? Due to having type 2 Diabetes When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 2007”
The medical diagnosis of Dr Reynard Ng, General Practitioner, on the additional information sheet as to the details of the new disabilities the Applicant was now claiming as war or defence caused, stated[9]:
[9] PT7 at pages 59-60.
“Medical Diagnosis Diagnosis
Type 2 diabetes – Insulin dependent with subsequent peripheral neuropathy
Basis for diagnosis
Patient was diagnosed in 2006 and had a confirmatory blood test on 29/03/06 (HbA/C) of 29/3/16. He has regular blood tests to assess then physical examination show his peripheral neuropathy
When did the veteran first consult you for this condition? 24/03/2016 Medical Diagnosis Diagnosis
Peripheral Arterial Diseases
Basis for diagnosis
Doppler review at PAH Vascular Outpatients
When did the veteran first consult you for this condition?
29/3/2016”
On 12 May 2017 the Respondent decided that diabetes mellitus and atherosclerotic peripheral vascular disease “are not related to service”[10]. The Respondent in the reasons for decision dated 12 May 2017 was ‘satisfied that the appropriate medical diagnoses for the claimed conditions are: Diabetes Mellitus; and atherosclerotic peripheral vascular disease’[11].
[10] T10, page 66.
[11] PT10, page 68.
The Applicant requested a review under section 31 and/or section 136 of the Act, dated 20 December 2017[12]. The Applicant contended in the request for review dated
20 December 2017 that the link to service of both the conditions was smoking[13].
[12] T11, page 71.
[13] T11, page 71.
The Veterans’ Review Board affirmed the decision under review, being the decision of the Respondent dated 12 May 2017 refusing claims for diabetes mellitus and atherosclerotic peripheral vascular disease[14].
[14] PT2 at page 9.
On 8 August 2018 the Applicant made an application for review of the decision to the Tribunal[15].
[15] PT2 at page 7.
ISSUE
The Applicant stated that the issue is whether the Applicant’s smoking was established because of service and further increased because of service[16]. The Respondent stated that the issue is whether the Applicant suffers from diabetes mellitus and atherosclerotic peripheral vascular disease and if so, whether the diseases were defence-caused[17].
[16] Transcript P-2 at lines 26-28.
[17] Respondent’s Statement of Issues, Facts and Contentions, paragraph 2.1.
EVIDENCE
The Respondent does not dispute that the Applicant has diabetes mellitus and atherosclerotic peripheral vascular disease, as stated by Dr Ng[18].
[18] Respondent’s Statement of Issues, Facts and Contentions, paragraph 6.4.
The Applicant gave oral evidence at the hearing[19].
[19] Transcript P-13 to P-52.
The Applicant stated that he did not smoke, prior to service in the Navy[20]. The Applicant stated that he was ‘not tempted to smoke’ prior to joining the Navy[21]. The Applicant stated that he started smoking just after he got to HMAS Nirimba, the Royal Australian Navy Apprentice Training Establishment, which was his first posting in the Navy[22], at the age of 16[23]. The Applicant stated that it was stressful at the time at HMAS Nirimba[24]. The Applicant stated that others “offered him smokes” and he just started smoking to be “one of the boys”[25]. The Applicant stated that smoking showed he was part of the team and it calmed him down[26].
[20] Transcript P-13 line 27.
[21] Transcript P-13 line 46.
[22] Transcript P-15, lines 38-40.
[23] Transcript P-16, line 46.
[24] Transcript P-16, lines 20-25.
[25] Transcript P-16, lines 26-30.
[26] Transcript P-17 lines 8-13.
The Applicant stated that cigarettes were readily available and very cheap[27], at the canteen at the Naval station[28]. The Applicant stated that he smoked 3-5 cigarettes a day as an apprentice in the Navy[29]. That during his service in the Navy his smoking rate increased, by reason of “natural progression”[30], but also by reason of the boredom during his period on HMAS Melbourne[31], which was his second posting[32]. The increase in smoking was mostly through the habit, the boredom on ship and in the circumstances where “your mates smoked”[33].
[27] Transcript P-17 lines 1-7.
[28] Transcript P-16, lines 35-40.
[29] Transcript P-17 lines 15-17.
[30] Transcript P-17 lines 22-23.
[31] Transcript P-17 lines 25-27.
[32] Transcript P-17 line 40.
[33] Transcript P-19 lines 9-11.
The Applicant particularly referred to the last 17 days in service at HMAS Waterhen, where ‘they did not give him anything to do’ and he was smoking 30 to 35 cigarettes a day[34]. It was suggested to the Applicant, having regard to correspondence signed by the Applicant in July 1973, that his personal circumstances leading to the time of his discharge were relevant to his decision to leave the Navy.
[34] Transcript P-23 lines 14-17.
The Applicant was shown a document from 5 March 1996, from Dr S. Ibrahim Abdool, a Consultant Gastroenterologist, which stated that the Applicant “… smokes about 25 cigarettes a day and has beans [sic] smoking for the past 20 years”[35]. It was suggested, having regard to that document that the Applicant started smoking after he left the Navy, however, the Applicant stated in response that he remembers “quite well” that he started smoking in the Navy[36]. There was a further emergency department document from May 2009 shown to the Applicant which stated that the duration of smoking history was 35 years[37]. It was therefore suggested that the smoking of the Applicant started therefore in the Merchant Navy and not in the Royal Australian Navy[38]. A further medical record from the Princess Alexandra Hospital in 2009 also referred to “35 years of cigs”[39]. There was a further progress note from the Princess Alexandra Hospital from 2015, after the Applicant ceased smoking in 2014 that states: “Ex-smoker 40 years”[40]. The Applicant again stated that he commenced smoking at about the age of 16 in the Navy[41].
[35] Exhibit 3, Applicant’s Employment History since leaving the Navy.
[36] Transcript P-29, lines 5-10.
[37] Exhibit 4, Medical Records from Princess Alexandra Hospital, Emergency Department.
[38] Transcript P-28 lines 25-45.
[39] Exhibit 5, Medical Records from Princess Alexandra Hospital, Pre-Anaesthetic Assessment.
[40] Exhibit 6, Medical Records from Princess Alexandra Hospital, Progress Notes.
[41] Transcript P-33 line 14.
The Applicant stated that his rate of smoking increased “slightly” after service[42]. With his rate of smoking in the 1980’s being 25 to 30 cigarettes a day[43], when he was in the Merchant Navy[44]. That same rate of smoking ‘was consistent’ in the 1990’s[45]. The Applicant stated that he stopped smoking in 2014[46].
[42] Transcript P-23 lines 18-19.
[43] Transcript P-23 lines 21-24.
[44] Transcript P-25 line 37.
[45] Transcript P-23 line 33.
[46] Transcript P-23 line 33.
Dr Juanita Muller, a vascular surgeon, gave oral evidence at the hearing[47]. In response to a question as to whether boredom is a stressor for smoking, Dr Muller stated that people that are not working definitely have “higher rates of smoking”[48]. The doctor further stated ‘that people do not get addicted to boredom, they get addicted to the cigarettes and once people start smoking, it is the giving up that is the difficult part’[49].
LEGISLATIVE PROVISIONS
[47] Transcript, P-3, line 32.
[48] Transcript, P-9, lines 36-40.
[49] Transcript P-10, lines 1-5.
Section 70
Section 70 of the Act states that the Applicant will be entitled to a pension if, relevantly, the Applicant’s conditions were “defence-caused”.
Section 71 of the Act states that the application of certain provisions of Part II of the Act apply in relation to pensions payable in accordance with Part IV in like manner as they apply to and in relation to pensions payable in accordance with Part II.
The matter is to be decided to “reasonable satisfaction”: sub-s 120(4) of the Act.
Section 120B of the Act states:
Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
…
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
…
(3) 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 … 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.
… ”
CONSIDERATION
As referred to above, it is not in contention that the Applicant had defence-service in accordance with the Act from 7 December 1972 to 2 August 1973[50]. The Applicant’s postings during that period were as follows[51]: HMAS Melbourne from December 1972 to 25 February 1973; HMAS ANZAC from 26 February 1973 to 15 July 1973; and HMAS WATERHEN from 16 July 1973 until discharge on 2 August 1973.
[50] Paragraph 6.5 of the Respondent’s Statement of Issues, Facts and Contentions filed 16 March 2019.
[51] Historical Service Record of Applicant printed 15 March 2017.
The Applicant submits that there was an increase[52] in smoking during the period
7 December 1972 to 2 August 1973 connected with the defence service, with that increase in smoking resulting in diabetes mellitus and atherosclerotic peripheral vascular disease.[52] In that the Applicant stated that he started smoking in 1966.
The Applicant gave evidence that there was an increase in smoking during the relevant period through ‘natural progression, plus the boredom of it’, particularly at HMAS Waterhen, which was a “smoke-filled environment”[53]. The Applicant referred to his last days of service at HMAS Waterhen, where he stated that ‘they did not give him anything to do’ and where he was smoking 30 to 35 cigarettes a day[54].
[53] Transcript P-20 line 17.
[54] Transcript P-23 lines 14-17.
Section 120B(3)(a) states that in applying sub-s 120(4) of the Act to determine a claim there is to be reasonable satisfaction that a disease contracted by a person was defence-caused only if the material raises a connection between the disease of the person and some particular service rendered by the person.
In Repatriation Commission v Money (2009) 173 FCR 410[55], Dowsett J stated:
“Section 120B(3) imposes a significant limitation upon the circumstances in which the commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the commission must, on the material before it, identify any connection between the disease and a veteran’s service. Second, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service.”
[55] At [86].
Pursuant to sub-s 70(5)(a) of the Act the disease contracted shall be taken to be a defence-caused disease if the disease, as the case may be, arose out of, or was attributable to, any defence service, as the case may be, of the member.
In Roncevich v Repatriation Commission (2005) 222 CLR 115 at 126 [27], McHugh, Gummow, Callinan and Heydon JJ stated that:
“The use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a [sailor]. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.[[56]]”
[56] R v Monopolies and Mergers Commission; Ex parte National House Building Council [1994] TLR 38; Walsh v Rother District Council [1978] 1 All ER 510 at 514 per Donaldson J.
As stated in Re Repatriation Commission v Norman Edwin Tuite [1993] FCA 39; (1993) 39 FCR 540; (1993) 29 ALD 609 (18 February 1993) at [6] and [8] per Davies J:
“6. … if an injury or disease is claimed to have arisen out of or be attributable to a serviceman's period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J. has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates’. See Marshall v. Minister of Pensions (1948) 1 KB 106 at 110; W. v. Minister of Pensions (1946) 2 All ER 501 at 502; Minister of Pensions v. Chennell (1947) 1 KB 250 at 256. …
8. If the circumstances of eligible war service provide an operative cause contributing to the serviceman's … disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
The Respondent contends that any increase in the Applicant’s smoking in the relevant period can be put no higher than a temporal connection. That the defence service was the setting in which the Applicant increased his smoking habit and not the cause for it. The Respondent submits that the Applicant was neither required nor was he expected to smoke as part of his duties at any time during the relevant period and therefore the Applicant’s defence service was no more than the setting in which he smoked, not the cause for it, referring to McDermott and Repatriation Commission [2011] AATA 714 at [18] (“McDermott”).
In the reasons in McDermott, where the decision under review was affirmed, it was stated:
“Then there is the question of Mr McDermott’s account of what caused him to start smoking. In the smoking questionnaire and in his October 2008 statement he attributed the commencement of smoking to ‘peer group pressure’. When questioned about these matters in the hearing at the Board … he appeared to attribute smoking, at least in part, to boredom. There was certainly no reference by him to stressful events beyond the stress of finding that a person under his command did not know the job the person was required to do … In his first statement … Mr McDermott raised … the notion that his smoking was connected to the dangers of his role in fire control. … That assertion bears the hallmark of recent invention.
I am then left in the position where Mr McDermott’s … account most proximate in time to the events in question is inconsistent with the notion that Mr McDermott started smoking whilst in the Navy. …
But even were I to have accepted that evidence I would not have been able to conclude that Mr McDermott’s smoking arose out of, or was attributable to, his service. It will suffice to say that he was neither required nor expected to smoke. Service in the Navy provided no more than the setting in which Mr McDermott smoked, it did not cause it.”[57]
[57] McDermott at [16]-[18].
The Respondent further submitted that it was unclear when the Applicant, in the relevant period increased his smoking and by how much. The Respondent referred to Budge and Repatriation Commission [2014] AATA 276 at [38] where it was stated that the gap or absence of information cannot be filled by inferences which would be no more than speculation.
There is no medical evidence, from Dr Ng or at all, to raise a connection between the claimed diseases and the Applicant’s defence service.
If there was an increase in smoking in the period 7 December 1972 to 2 August 1973 it did not arise out of and/or was not “attributable” to defence service, in that the “boredom” referred to by the Applicant was merely the setting in which the event occurred, in that the Applicant therefore had more time, particularly at HMAS Waterhen. It is found that the boredom was merely a temporal, and not a causal, connection[58]. The stress that the Applicant referred to was not stated to be within the relevant period, as referred to above[59]. It is found that as to any increase in the Applicant’s smoking it was not caused by stress related to his relevant service or any incident of his relevant service[60].
[58] See Clarke and Repatriation Commission (Veterans' entitlements) [2018] AATA 2246 (13 July 2018) at [105] per Deputy President J. Sosso.
[59] Transcript P-16, lines 20-25.
[60] Clarke and Repatriation Commission (Veterans' entitlements) [2018] AATA 2246 (13 July 2018) at [110] per Deputy President J. Sosso.
The evidence therefore does not raise a connection between the Applicant’s diabetes mellitus and atherosclerotic peripheral vascular disease, and his defence service. The material before the Tribunal does not raise a connection between the disease of the Applicant and some particular service rendered.
The Applicant therefore does not satisfy the requirement of s 120B(3)(a) of the Act and it is therefore unnecessary to further consider the Statement of Principles.
The Tribunal finds that the Applicant’s diabetes mellitus and atherosclerotic peripheral vascular disease is not a defence-caused injury or disease for the purposes of s 70 of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
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Associate
Dated: 12 December 2019
Date of hearing: 24 May 2019 Date final submissions received: 29 July 2019 Advocate for the Applicant: Mr Anthony Hornby
Veterans’ Support, RSL Currumbin
Solicitor for the Respondent:
Mr Matthew Hawker
Sparke Helmore
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