Rowley and Repatriation Commission (Veterans' entitlements) - [2019] AATA 5400

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.
.............................[Sgd]...........................................
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?…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 5400
Decision Date: 12 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision of the Repatriation Commission concerning claims made by the Applicant for diabetes mellitus and atherosclerotic peripheral vascular disease, which the Applicant asserted were defence-caused conditions under the *Veterans’ Entitlements Act 1986* (Cth). The Applicant had served in the Royal Australian Navy between 1966 and 1973, with his defence service under the Act specifically identified as from December 1972 to August 1973. The Commission had previously decided that these conditions were not related to the Applicant's service.

The primary legal issue before the Tribunal was whether the Applicant's diabetes mellitus and atherosclerotic peripheral vascular disease were defence-caused. This involved determining whether the Applicant's smoking, which he contended was initiated and exacerbated by his naval service, was sufficiently linked to these conditions. The Applicant argued that his smoking commenced at age 16 during his naval training due to stress, social pressure, and boredom, and that cigarettes were readily available and inexpensive. He stated his smoking rate increased during his service, particularly during periods of inactivity.

The Tribunal considered the Applicant's evidence regarding the commencement and progression of his smoking habit during service. However, it also noted medical records from 1996, 2009, and 2015 which referred to durations of smoking history (e.g., "past 20 years," "35 years of cigs," "Ex-smoker 40 years") that, when considered with the Applicant's stated age of commencement, suggested a start date for smoking after his naval service. The Tribunal was not satisfied that the Applicant had discharged the onus of proof, which required him to establish on the balance of probabilities that his smoking, and consequently his claimed conditions, were defence-caused. The Tribunal found that the Applicant's diabetes mellitus and atherosclerotic peripheral vascular disease were not defence-caused injuries or diseases for the purposes of section 70 of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. 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. 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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

“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?…