Rupenovic and Repatriation Commission

[2007] AATA 1711

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1711

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/150

VETERANS' APPEALS DIVISION		)
Re		WALTER LUCIANA RUPENOVIC

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date29 August 2007

PlaceHobart

Decision The appeal is dismissed and the decision under review affirmed.

..............................................

Senior Member

CATCHWORDS

Veteran's entitlements - Disability Pension - ischaemic heart disease - whether war-caused - veteran's smoking - Tribunal found Veteran's smoking consumption level occurred prior to non-operational service - decision under review affirmed

Veteran’s Entitlements Act 1986 Sections 9, 120, 120(3), 120A(3)

Kattenberg v Repatriation Commission [2002] FCA 412

REASONS FOR DECISION

29 August 2007 Ms A F Cunningham (Senior Member)   

1.      The applicant seeks the review of a decision of the Repatriation Commission dated 23 June 2004 which was affirmed by the Veterans’ Review Board on 29 August 2006.  The decision determined that the applicant’s condition of ischaemic heart disease was not war or defence caused.

2.      The respondent accepts the diagnosis of ischaemic heart disease which was made in May 2004.  It was further agreed that the applicant rendered operational service between 28 October 1970 and 9 November 1970 and eligible service between 7 December 1972 and 6 February 1976.  The applicant relies on the period of his operational service as being causative of his current condition.

THE LEGISLATION

3.      In accordance with the relevant provisions of Section 9 of the Veteran’s Entitlements Act 1986 (the VE Act) an injury or disease shall be taken to be war caused if:

(a)      It resulted from an occurrence that happened while the veteran was rendering operational service;

(b)      It arose out of or was attributable to any eligible war service;

(c)       It was contributed to in a material degree or was aggravated by any eligible war service.

4.      As the applicant relies upon his period of operational service, the standard of proof is that specified by Section 120 of the VE Act which dictates a finding that the injury or disease was war caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

5.      Section 120(3) relevantly provides that the Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was war caused if after a consideration of the whole of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the disease with the circumstances of the applicant’s service.

6.      The reasonableness of the hypothesis is to be assessed by reference to any relevant statement of principles.  As the claim was made after 1 June 1994 section 120A(3) of the VE Act applies which states that a hypothesis connecting a disease with the circumstances of any particular service is reasonable only if there is in force a Statement of Principles that upholds the hypothesis.

7.      The relevant Statements of Principles that applies in the present case is instrument number 53 of 2003 and number 9 of 2004, concerning ischaemic heart disease.  Paragraph 4 of the Statement requires that at least one of the factors set out in clause 5 must be related to the applicant’s relevant service.  That relevant factor for the present purposes is set out in sub-paragraph 5(e) which states:

“5(e) Where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i)        smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

(ii)       smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of cessation; or

(iii)       smoking at least 20 pack years of cigarettes or the equivalent thereof, in other tobacco products before the clinical onset of ischaemic heart disease”

8.      The evidence was that the applicant had ceased smoking in approximately 1996 prior to the onset of ischaemic heart disease.  The respondent accepts that sub-paragraph 3 is satisfied in that the applicant was smoking at least 20 pack years of cigarettes before the clinical onset of his ischaemic heart disease.  What remains in contention is whether that level of smoking was attributable to the applicant’s operational service.   The respondent contends that the evidence supports a finding that the applicant was smoking at this level prior to the commencement of his operational service.

THE EVIDENCE

9.      A written proof of evidence from the applicant was tendered at the hearing and the applicant gave oral evidence.  The T-documents were also tendered in evidence which included a copy of the decision and reasons for decision of the Veterans’ Review Board.

10.     It was Mr Rupenovic’s evidence to the Tribunal that he commenced social smoking at approximately 18 years of age when he was an apprentice carpenter.  He was initially paid approximately $17 a week and as he could not afford to buy his own cigarettes.  He smoked cigarettes offered by other people which he estimated was between 2 and 5 a week.  Mr Rupenovic joined the Navy when he was 19 years of age in February 1970.  Upon graduation he was posted to the HMAS Vendetta on 1 May 1970 which was based in Sydney.  During his recruit training he said that he had the odd cigarette, on average 3 or 4 a week.

11.     Prior to the HMAS Vendetta sailing overseas, Mr Rupenovic spent 2 or 3 weeks on the ship in Sydney.  At the end of duty in the afternoon he left the ship and stayed overnight at his parent’s house.  He did not smoke at his parent’s house as his mother did not approve of smoking.  He estimated that he had about 3 or 4 cigarettes a week during this period.  When the HMAS Vendetta left for overseas to various countries including Singapore, Hong Kong, Japan, India, Ceylon and the Philippines he recalls that he started to buy his own cigarettes and increased his consumption to approximately 10 a week.  Cigarettes were available on the HMAS Vendetta at 20 cents a packet duty free.  He contends that there was peer pressure to smoke and recollects that ash trays were even attached to the bunks.  He was then smoking approximately 10 cigarettes a week but did not believe that he was addicted to smoking at that time.

12.     The HMAS Vendetta went to Vietnam in late October 1970.  Mr Rupenovic said that he was not overly concerned about the prospect of going to Vietnam until he arrived when it dawned on him that he was in a war zone.  He said that the ship sailed out of the harbour at the end of each day as it was not safe to remain there overnight.  Mr Rupenovic said that there was a lot of activity going on in the harbour, that he became anxious and that it was during this time that his smoking increased significantly.  In his written proof of evidence he stated ‘I was smoking up to 30 cigarettes a day.  My smoking increased because of the anxiety I was under.  I came from a sheltered upbringing and suddenly found myself in a situation of great danger.’  The HMAS Vendetta left Vietnam on 9 November 1970 and sailed for Colombo for rest and recreation.  The ship visited a number of other countries including Hong Kong and Japan and possibly the Philippines and Singapore and returned to Sydney in April 1971.

13.     It was Mr Rupenovic’s evidence in his written proof that after leaving Vietnam his smoking gradually decreased to around 20 cigarettes a day and remained at this level until he quit smoking in approximately 1996.  He said that he believed that he became addicted to nicotine during his trip to Vietnam which he contended caused his smoking habit.

14.     There was documented evidence contained in the T-documents that was inconsistent with Mr Rupenovic’s evidence to the Tribunal.  There are two smoking questionnaires signed by Mr Rupenovic in support of his claim dated 25 May 2004 and 22 June 2004.  In both reports Mr Rupenovic states that he first started smoking cigarettes socially on a regular basis in 1968 in the order of 5 cigarettes per day.  He stopped smoking permanently in 1996.  Both statements record that Mr Rupenovic changed his smoking habit to 30 cigarettes per day in 1970 due to the living conditions, the fact that everyone was smoking and the availability of duty free cigarettes.  The only difference between the two questionnaires is that the latter one includes a hand-written notation that the date when Mr Rupenovic changed his smoking habit was ’06 1970’. 

15.     In his oral evidence to the Tribunal Mr Rupenovic contended that the second form was required because the first form had not been correctly completed.  Mr Rupenovic stated that both forms were completed by his advocate on a laptop and then handed to him for signing.  Although his advocate asked him to read the questionnaire, he said that he did not look at each page before signing the last page.  When questioned about the inclusion of the ‘06’ with respect to the date of the change in his smoking habit, he said that he did not recall seeing this hand-written figure.

16.     The Tribunal has some difficulty in accepting Mr Rupenovic’s explanation.  He was aware that the form had to be redone.  He agreed that the only alteration was the inclusion of this date.  He agreed that his advocate asked him to read the form.  He contends that he did not do so but also states that he did not recall seeing the reference ‘06’ in the form before signing it.  This contention is somewhat at odds with his claim that he did not read the form before signing it.

17.     In his evidence to the Tribunal Mr Rupenovic contended that he increased his smoking habit to 30 cigarettes a day when on the HMAS Vendetta in Vietnam because of the anxiety he was under.  There is no reference to this anxiety however in the smoking questionnaire which states the reasons for change being the living conditions, the fact that everyone was smoking and the availability of duty free cigarettes.  This is consistent with the circumstances of Mr Rupenovic’s service in June 1970 being well prior to his period of operational service in Vietnam which commenced on 28 October 1970.

18.     These circumstances are also consistent with the VRB’s record of Mr Rupenovic’s evidence.  In the Board’s Reasons for Decision it is stated ‘At the Board’s request, Mr Rupenovic gave a detailed account of his smoking history.’  Mr Rupenovic said to the Tribunal however, that he was unprepared for the ‘interrogation’ by the VRB and was confused by their questions.  Despite this contention most of the record of his evidence in the VRB Decision is consistent with the evidence that Mr Rupenovic gave this Tribunal regarding the early circumstances of his service.  For instance, he claimed that prior to joining the Navy he could not afford to smoke as he was only paid $17 per week as an apprentice carpenter and relied on the generosity of other people when he was out.  He then smoked between 2 and 5 cigarettes approximately once a week.  When he joined the Navy, peer pressure which commenced on recruit course led to an increased smoking habit from 2 to 5 cigarettes per week to around 4 or 5 cigarettes per day which increased slowly as he became addicted and began buying his own cigarettes.

19.     The VRB then records that when Mr Rupenovic joined the HMAS Vendetta in May 1970 he was then smoking around 20 cigarettes per day which increased especially when on watch.  When he entered South Vietnamese waters the pattern of watches changed with the result that he increased his smoking habit from a carton per week to up to 37 cigarettes per day.  It is then recorded that Mr Rupenovic said that his smoking habit reduced to his prior Vietnam service level of around 30 cigarettes per day and continued at that rate until he discontinued smoking in 1996/1997.

20.     There does not appear to be any dispute regarding the claim that Mr Rupenovic increased his smoking habit during operational service.  The respondent contends however, that Mr Rupenovic was already at the level identified in factor 5(e) of 20 pack years of cigarettes at the commencement of his operational service.

21.     During cross-examination Mr Rupenovic was taken through the statements of his evidence as recorded in the VRB’s decision.  He agreed that most of the statements had been correctly recorded but that he thought he had informed the VRB that his smoking level prior to his Vietnam service was less than the stated 30 cigarettes per day. 

22.     Mr Rupenovic also disputed that he had informed the Board that he was smoking about 20 cigarettes per day in May 1970 when he joined HMAS Vendetta but that the correct number was in the order of 10 cigarettes per week.  He recalled informing the Board that his cigarette consumption increased whilst on HMAS Vendetta especially whilst on watch but disputed that it was during this period of time that his consumption increased to 30 cigarettes per day.

23.     The disputed evidence is with respect to the quantity of cigarettes rather than the detail and circumstances surrounding the consumption.  After further questioning under cross-examination Mr Rupenovic said that he had been confused by the questions asked and that he did not have ‘the chance to think before I opened my mouth’.  He then said that the recorded answers may have been the answers that he gave the Board but that ‘they just bamboozled me, I wasn’t quite ready for it.’ 

24.     This evidence is consistent with the respondent’s contention that upon Mr Rupenovic being made aware of the legal requirements associated with his claim i.e. that the operational service must be causative of the required level of cigarette consumption, he would have to dispute the validity of some of the answers to the VRB in order to substantiate his case.

25.     The Tribunal notes the contents of the working paper prepared by Mr Rupenovic’s representative for the Veterans’ Review Board hearing, a copy of which appears at T13.  Of note are the entries under Contention (part 2) which detail Mr Rupenovic’s submissions and in particular the following statement 1(ii).  ‘The veteran contends that his smoking DID NOT increase to 30 per day immediately upon finding himself on operational service (Vietnam) but upon leaving recruit school (HMAS Cerberus) and being deployed to sea during May of 1970.’  In that same statement Mr Moore calculated Mr Rupenovic’s smoking consumption which included May 1970 – October 1976 at 30 per day equals 270,480 or 37 pack years with an estimated total consumption (rounded up) = 38 pack years. 

26.     It appears from this statement that Mr Rupenovic’s instructions to Mr Moore as at 12 April 2006 were that he was consuming in the order of 30 cigarettes per day by May 1970 which was some 5 months prior to the commencement of his operational service.  This information is consistent with the smoking questionnaire and his evidence as recorded by the VRB.

27.     The evidence given by Mr Rupenovic to this Tribunal regarding his cigarette consumption prior to the commencement of operational service is not consistent with that recorded by the VRB nor is it consistent with other documentary evidence contained in the T-documents referred to above.

FINDINGS

28.     Mr Rupenovic agreed that these may have been the answers that he gave the VRB at the hearing but that he got confused and did not have a chance to think before he ‘opened my mouth’.  In light of this evidence the Tribunal concludes that the responses given by Mr Rupenovic to the questions asked of him by members of the VRB were given spontaneously and without thought as to the consequences.  It is reasonable to accept that they are more likely to be truthful and more accurate than the evidence that he gave to this Tribunal following the receipt of legal advice and due consideration as to the consequences of his evidence.  It is noted that Mr Rupenovic does not dispute the accuracy of most of the evidence and detail of his smoking habits as recorded by the VRB in its decision.  Nor does Mr Rupenovic necessarily contend that the figures and numbers as reported in the decision do not reflect the evidence that he gave at the hearing.  He says he was confused and not ready for the questions asked by the members of the Board.  He was obviously better prepared for the hearing before this Tribunal.

29.     For these reasons the Tribunal does not accept Mr Rupenovic’s evidence given to this Tribunal that he was not consuming 30 cigarettes per day prior to the commencement of his operational service on 28 October and that his cigarette consumption went from 20 cigarettes per day to over 30 cigarettes per day between 28 October and 9 November, a period of 12 days.  It is much more likely and the other evidence before the Tribunal supports a finding that Mr Rupenovic's cigarette consumption increased to over 30 cigarettes per day during the period when he joined HMAS Vendetta in May 1970 and prior to his operational service on 28 October 1970.  The Tribunal does not reject the possibility that his cigarette consumption continued to increase up to 37 cigarettes per day during the 12 days of his operational service.

30.     After a consideration of the whole of the material before the Tribunal as required by the provisions of Section 120(3) of the VE Act, the Tribunal is of the view that it does not raise a reasonable hypothesis connecting the applicant’s ischaemic heart disease with the circumstances of his operational service.  The Tribunal is not satisfied that the criteria required by Factor 5(3)(iii) i.e. the smoking of at least 20 pack years of cigarettes, was contributed to in a material degree by Mr Rupenovic’s operational service because it occurred prior to the commencement date.

31. Paragraph 8 of the SOP defines pack years of cigarettes as meaning a calculation of consumption where 1 pack year of cigarettes equals 20 tailor-made cigarettes per day for a period of one calendar year or 7,300 cigarettes. There was no dispute that Mr Rupenovic was smoking at this level before the clinical onset of his ischaemic heart disease in May 2004. However the Tribunal accepts that Mr Rupenovic was smoking at this level prior to the commencement of his operational service, it is not possible to conclude that this level of smoking was contributed to in a material degree by his operational service or that it would not have occurred but for the rendering of his operational service. The Tribunal must be satisfied of the cause or connection on the balance of probabilities and the connection must be a material connection as distinct from a contribution which is "de minimis" or one that is in the words of Davis J in Repatriation Commission and Bendy (1989)18 ALD 144 ‘so tenuous as to be immaterial is to be ignored.’

32.     The Tribunal was criticised by Emmett J in his decision Kattenberg v Repatriation Commission [2002] FCA 412 for construing the SOP as requiring that the smoking of at least 30 pack years of cigarettes as specified in SOP 130 of 1996 be wholly attributable to the service.  His Honour said that the Tribunal had failed to examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred for the rendering of the service.  However as the Tribunal has concluded in this case the smoking of the requisite number of cigarettes occurred prior to operational service and therefore it is not open to conclude that Mr Rupenovic's operational service in any way contributed to the smoking level required by the SOP.

33.     As no connection between Mr Rupenovic's operational service and his level of smoking has been established, the appeal is accordingly dismissed and the decision under review affirmed. 

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         H Healy Administrative Assistant

Date/s of Hearing  28 June 2007
Date of Decision  29 August 2007
Counsel for the Applicant         Mr B McTaggart
Solicitor for the Respondent     Mr R Douglass, Advocate for Department of             Veterans' Affairs