Salton and Repatriation Commission
[2003] AATA 820
•21 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 820
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/618
VETERAN'S AFFAIRS DIVISION ) Re JOANNE SALTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M.E.C. Thorpe, Member Date21 August 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Dr M.E.C. Thorpe
Member
CATCHWORDS
VETERAN’S AFFAIRS – entitlement – smoking – clinical onset of “chronic bronchitis” – causal nexus between Applicant’s smoking and her “defence service” – decision affirmed
Veteran’s Entitlements Act 1968, sections 68, 120, 120B
Repatriation Medical Authority Statement of Principles Instrument No. 74 of 1997 concerning chronic bronchitis and emphysema
Repatriation Commission v Tuite (1992) 37 FCR 571
Lees v Repatriation Commission [2002] FCAFC 398
REASONS FOR DECISION
21 August 2003 Dr M.E.C. Thorpe, Member 1. This is an application by Ms Joanne Salton (“the Applicant”) for review of that part of a decision by the Repatriation Commission (“the Respondent”) on 25 October 2001 denying her claim for chronic obstructive airways disease. The diagnosis of chronic obstructive airways disease was varied to chronic bronchitis by the Veterans Review Board (“the VRB”) in a decision dated 12 April 2002.
2. At the hearing the Applicant was represented by Mr B Winship, solicitor. The Respondent was represented by Mr S Modder, Department of Veterans’ Affairs (“the DVA”). The Applicant gave oral evidence. The Tribunal had before it the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-Documents”) and the following exhibits tendered at the hearing:
Exhibit
Description
Date
A1
Report of Dr Peter Gianoutsos
3 March 2003
A2
Applicant’s Statement of Facts and Contentions
18 March 2003
R1
Respondent’s Statement of Facts and Contentions
23 April 2003
R2
Transcript of Veteran’s Review Board Hearing
12 April 2002
R3
Report of Associate Professor ABX Breslin
29 October 2002
R4
Report of Associate Professor ABX Breslin
30 December 2002
R5
Report of Associate Professor ABX Breslin
28 April 2003
R6
Statement of Ms J Salton
Undated
R7
Undated statement of Ms J Salton and four pages of medical records
Legislation
3. The Applicant served in the Royal Australian Navy from 3 October 1978 to 14 January 2002. This period constitutes “defence service” as defined in section 68 of the Veteran’s Entitlements Act 1986:
“Sect 68 Interpretation
(1) In this Part, unless the contrary intention appears:
…
defence service means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
(c) hazardous service rendered before or after the terminating date;
but does not include any period of peacekeeping service.”
4. In respect of the veteran's defence service, according to subsection 120(4) of the Act the standard of proof is the “reasonable satisfaction” of the Tribunal:
“Sect 120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
5. Since the claim for pension was lodged after 1 June 1994, section 120B of the Act applies and the decision-maker is to assess to its reasonable satisfaction whether the veteran meets the criteria in accordance with any Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
6. The Applicant contended that under the SoP Instrument No. 74 of 1997 concerning chronic bronchitis and emphysema she fulfilled the criteria of simple bronchitis as stated under paragraph 2(b)(i):
“Kind of injury, disease or death
…
2. (b) For the purposes of this Statement of Principles,
(i)“chronic bronchitis” means a respiratory tract disorder characterised by excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491. The bronchitis may be present alone or may be accompanied by chronic airways obstruction or limitation, with or without a reversible component. There are four categories of chronic bronchitis: chronic simple bronchitis, chronic mucopurulent bronchitis, asthmatic bronchitis and chronic bronchitis with pulmonary obstruction. This definition specifically excludes bronchiolitis and chronic obstruction from bronchiolitis;
…”
7. Based on the Applicant’s smoking history and her symptomatology she would have fulfilled the criteria for 15 pack years of smoking by the year 1996/1997. That the Applicant’s cough did not become apparent until 1998/1999 and means that she fulfils the criteria of factor 5(a)(ii) of SoP Instrument number 74 of 1997:
“Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, chronic bronchitis and/or emphysema or death from chronic bronchitis and/or emphysema is connected with the circumstances of a person’s relevant service are:
(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
…
(ii)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
…”
8. The Respondent contended that the Applicant’s smoking history did not meet the 15-pack year requirement for the SoP Instrument No. 74 of 1997. The Respondent also submitted that there was no causal nexus between the Applicant’s military service and her smoking.
9. It was agreed by the parties that the Applicant has chronic simple bronchitis. In order for the Applicant to succeed, the Tribunal needed to be satisfied that her smoking habit was attributable to her defence service and that she satisfied the criteria of chronic simple bronchitis under the SoP Instrument No. 74 of 1997. Basic to the consideration was the time of onset of the chronic simple bronchitis and whether the Applicant had smoked 15 pack years of cigarettes before the clinical onset of the chronic simple bronchitis. For the purposes of the paragraph 2(b)(i) SoP Instrument No. 74 of 1997, “chronic bronchitis” means a respiratory tract disorder characterised by excessive mucous production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases, attracting ICD code 491.
Background
10. The Applicant initially made a claim for chronic bronchitis on 9 December 1996 (T7). She stated that prior to enlisting in the Navy she had not been a smoker. The Applicant confirmed that she took up smoking in order to cope with verbal abuse by male sailors. She said that it calmed her nerves and that as a result she had developed a heavy smoking habit. On 30 October 1997 a delegate of the Respondent refused the Applicant’s claim stating that the Repatriation Medical Authority had not issued a SoP for Upper Respiratory Tract Infection / Acute Bronchitis (T9). Additionally, it was not accepted, at that time, that smoking habits commenced after 1973 were causally related to service because warnings had been placed on cigarette packets by 1 July 1973 and the effects of smoking were widely known to the community.
11. On 3 September 2001 the Applicant made a new claim for “bronchitis with constant cough and respiratory problems” (T11). In this form she stated that her condition was causally related to service because she had commenced smoking in order to cope with the stress of service in a male environment. The Applicant also stated that her chronic bronchitis resulted in shortness of breath and that this restricted her ability to do minor tasks, such as cleaning and walking, because she has to stop and catch her breath.
12. On 11 October 2001 the Applicant underwent a medical impairment assessment with the DVA undertaken by Dr Smith (T14). In this assessment it was noted that the Applicant experiences a chronic productive cough and dyspnoea on exertion, symptoms of chronic obstructive airways disease. It was noted that she was not, however, receiving any treatment.
13. On 25 October 2001 a delegate of the Respondent refused a claim for the condition of chronic obstructive airways disease finding that the Applicant’s symptoms were not casually related to her service (T2).
14. The Applicant appealed to the VRB and on 12 April 2002 the VRB varied the diagnosis in relation to chronic obstructive airways disease to chronic bronchitis (T18) and affirmed the decision of the delegate of 25 October 2001 (T2) as varied stating that none of the factors in SoP Instrument No. 74 of 1997 were satisfied by the evidence. The Applicant appealed to the Tribunal on 7 May 2002 (T1).
Evidence
15. The Applicant was born in Forster, Victoria. She is one of seven children, including a twin brother. Her early life was spent moving around Gippsland and living on dairy farms. Her family is still living in Victoria.
16. The Applicant attended school until the completion of Form 5 (Year 11). Her parents said that she had to get a job or stay in school. Her first job was with Woolworths for about six to eight weeks. She then accepted a position with a process line for chickens, but this did not provide any career prospects. The Applicant did not smoke in either job.
17. The Applicant enlisted in the Royal Australian Navy on the advice of her sister who suggested that it would be a good career choice. Of the different services, the Applicant stated that the Navy was the most appealing. She joined the Women’s Royal Australian Navy (“the WRAN”) in 1978 just after she had turned 18. She did not smoke prior to enlisting. The Applicant stated that her parents were strict and that none of her other family members smoked. The Applicant also maintained that she had not been educated about smoking at school.
18. The Applicant’s initial recruit training and category training took place at HMAS Cerberus, at Flinder’s Naval Base in Victoria. Approximately 20 percent of the new recruits were women and 80 percent were men. The Applicant spent 12 weeks in recruit training, and during the first six weeks she was not allowed to leave the base. This was difficult for the Applicant because she was close to her family. After that first six weeks the Applicant went home every weekend. She then spent approximately 16 weeks in her category training.
19. The Applicant said that during training, the women were treated differently to the men. She said that the women undertook separate training and that at meals the men “barked” at them. Most of her instructors were women, but she said she had male instructors for parade and physical training. Her instructors were very tough and expected a high degree of discipline. It was a male dominated culture, despite the new policy of equal pay and equal rights. The Applicant said that the environment was very foreign and that she had a difficult time adjusting. She felt it was particularly hard for her because she had come from a country background and did not have the same social experiences as the city girls. She said she felt insecure, intimidated, isolated and uncomfortable.
20. The Applicant could not remember the exact time she commenced smoking, but remembered that it was only weeks after she had started in the Navy, either in the late stages of her recruit training or early into her category school. Around this time she was offered a cigarette and accepted it. Initially she got “headspins” from smoking but felt relaxed. Gradually she started accepting cigarettes from her other peers, and then started asking for them. About 12 months after her first cigarette she started to buy her own packets. She was smoking approximately five cigarettes a day. The Applicant said that many males and females in the Navy smoked. There was a strong culture of smoking during breaks and they were allowed to smoke in their cabins. Smoking was not, however, allowed in the food halls or permissible while they were training. Cigarettes were available on base from the canteen and in vending machines. It was also possible to arrange for cartons to be bought duty-free from the ships when they were in port. The Applicant reported that she did not, however, smoke when she was at home because her parents would not have allowed it.
21. After successfully completing her training the Applicant was automatically promoted to WRAN Writer and was posted to Canberra at the age of 19. There she worked in an administrative role for the Director of Naval Operations. This role involved typing and filing. She did not get along with her boss and found him arrogant and difficult to work with. The Applicant was also upset because her position did not involve using her training. She applied for a transfer after the first six months because she hated it. The Applicant’s smoking increased to approximately 20 cigarettes per day as she tried to cope. She reported that smoking was not frowned upon; it was acceptable to smoke in the workplace and about half of her colleagues smoked. She only returned to see her family twice during this time, due to the long distances, her financial situation, and the requirement that she perform duties every fourth weekend.
22. After 12 months, in July 1980, the Applicant was posted to HMAS Watson in Sydney. She received another automatic promotion to Senior WRAN writer. At HMAS Watson the Applicant initially worked in the Central Registry and then in the Pay and Accounts Office. Her tasks involved things she had been trained to do. She enjoyed her job and her boss was better. The Applicant stated that her social life improved and that she made some friends amongst her colleagues. She felt, however, that her smoking habit was formed by now and she was not in a position to give up. Further, the Applicant maintained that as Watson was a sea base it became easier to buy cigarettes duty-free from the ships. They were about half price if you bought them this way. The Applicant also said that it was clearly socially acceptable to smoke. She asserted that everyone smoked and it was still acceptable to smoke in the workplace.
23. In May 1982 the Applicant was posted to HMAS Penguin in Balmoral. At this time she was promoted to Leading WRAN writer. She was in charge of the Pay Office. The Applicant’s responsibilities increased and she was in charge of a number of subordinates, all of whom were male. She said that she had some difficulties with an Able Seaman who had been in the Navy for 18 years and treated her as though she knew nothing because she was a woman. Her stress levels increased slightly due to her increased responsibilities but the Applicant stated that she had a good supervisor.. Her level of smoking remained at approximately 20-25 cigarettes per day. The Applicant was still able to purchase cigarettes at a cheap price duty-free and started to purchase cartons. A carton of ten packets lasted her about 10 days. She said that she stocked up if a ship was being deployed.
24. In November 1984 the Applicant was posted back to HMAS Cerberus and later worked within Recruiting in Melbourne. This was a compassionate posting as her father had been diagnosed with bowel cancer. She now had a well-developed smoking habit. She stated that she went home every weekend and smoked at home. She was the only member of her family who smoked. The Applicant’s rank was Petty Officer WRAN writer. She had to sit exams in Sydney to achieve a promotion to this level. Her father passed away 12 hours after she returned from doing those exams. She was given a week’s compassionate leave, however, did not have time to grieve properly as her courses could not be delayed and she had to go straight back to those after her week away. The Applicant’s stress levels were high at this point and she smoked and drank to cope. She estimates that she was still smoking 20-25 cigarettes per day. She did not get along with her boss in Melbourne and described him as being chauvinistic and discriminatory.
25. During 1988 the Applicant noticed that she started to get an intermittent cough that was predominant in the mornings and did not go away. This cough was not associated with any other health problems. The Applicant stated she was not, however, coughing up sputum at this point.
26. In 1991 the Applicant returned to HMAS Penguin and worked at the Naval Staff College. During this time she got her life back in order. It was a pleasant environment, however she stated that there was no change in her cigarette consumption. She had now smoked for ten years. She was still coughing on an intermittent but regular basis.
27. As part of a claim for bronchitis the Applicant completed a cigarette smoking report for the DVA in April 1997 (T8). In this report she stated that she initially smoked five cigarettes per day. The Applicant stated that she started to smoke in the Navy because of the stressful conditions of naval service, in particular the attitude of the male soldiers who had an attitude that women should not be in the Navy. She reported that a senior sailor suggested that she have a smoke because it would calm her down and help her cope. She followed this advice and from that point developed a continuing habit. From about 1980 the Applicant smoked 20 cigarettes a day and she has maintained this figure since then. Her claim in 1996 (T7) was, however, unsuccessful as bronchitis was not an acceptable disability at that time (T9).
28. The Applicant’s smoking increased when she was posted to England between April and September 1999. She said that it was more acceptable to smoke in England and that she could smoke anywhere. The Applicant said that it was still accepted in the Navy culture. She averaged 20-25 cigarettes per day and sometimes more on social occasions. Just prior to leaving for England the Applicant noticed that her coughing was occurring on a more regular basis. She was also coughing up a lot of sputum. This is the first incidence she recalled of coughing up sputum.
29. After returning from England in September 1999 the Applicant accepted her first sea-posting on the HMAS Success, a replenishment ship as the Captain’s Secretary. She was 39 years old and her rank was that of Chief Petty Officer Writer. There were ten other men on the ship with the same rank. The Applicant said that this posting took her a long way out of her comfort zone. She was required to learn the procedures for damage control and to lead her subordinates in this process even though they often had far more experience than she did. She was not given any support or assistance by her peers whom, she said, left her to sink or swim. The junior sailor particularly gave her a hard time. The Applicant stated that she received only two weeks training prior to this posting and that she felt this was insufficient considering the nature of her position.
30. During the course of this posting on HMAS Success, the Applicant was charged with what she felt was a trivial offence, carrying a prohibited BIC lighter. She was not sleeping very well and started to take mild sedatives to assist. The increase in stress and duties meant she was smoking up to 40 cigarettes per day. She was purchasing the cigarettes duty-free.
31. The Applicant left the HMAS Success in January 2002. She took three months long service leave and then started looking for work. Her discharged was by request, not because her term of service had expired. The Applicant was offered continuous full-time service with the Navy on contract work at the Fleet Legal Centre, which she accepted. This ends on 28 July 2003 at which time she intends to find work in the private sector. She is currently smoking 20-25 cigarettes a day.
32. The Applicant said that she was first diagnosed with bronchitis in 1998 when she started to develop a consistent cough. She said that she does not go to the doctor’s however, because they only advice they can give her is to quit smoking. The Applicant feels that she cannot give up, because she has already formed the habit.
33. In cross-examination the Applicant denied seeing warnings on cigarette packets when she started smoking. She thinks they became more prominent about ten years ago. Further, she denied being aware of the debate on the health effects of smoking. The Applicant said she found smoking enjoyable because it was relaxing, although sometimes it gives her a sore throat and, although she does not enjoy that aspect of it, she continues to smoke. The Applicant maintained that her friends smoked and it that for a long time it was acceptable to smoke in the workplace. She said that her level of stress varied depending upon her postings and with whom she was working. She acknowledged that her smoking continued even on relatively less stressful postings, but maintained that her habit had already been formed by this time.
34. Mr Modder on behalf of the Respondent also examined the Applicant over the contents over her claim forms. He referred her to the claim form for Disability Pension and Medical Treatment she completed in 1996 (T7, page 33). The Applicant said that although the signature on that form was hers, it was not her handwriting on the rest of the form. She said the description on the form was fair and emphasised that recruit training was more stressful for her due to her country background. She agreed that she first became aware of a cough in 1988, as indicated on the claim form. Mr Modder also referred the Applicant to T11, page 67, the claim form she completed in 2001. Again the Applicant said that although the signature on that form was hers, it was not her handwriting on the rest of the form. She agreed that she had a cough in 1988, as per the form. She also agreed that she had seen Dr Smith, possibly on two occasions. The Applicant denied seeing Dr Smith as early as 1987, however she did agree that she had told Associate Professor Breslin that she had noticed a cough in 1988.
35. In re-examination Mr Winship took the Applicant to the definition of chronic bronchitis in SoP Instrument No. 74 of 1997. Mr Winship then asked the Applicant whether she had those symptoms in 1988 as alleged by the Respondent. The Applicant denied that she had those symptoms and confirmed that she had not entered the date of 1988 onto the claim form. She disagreed that her cough was accompanied by sputum in 1988 and, therefore, that she could have had had chronic bronchitis since 1988.
36. After receiving the Applicant’s claim, the Respondent sought the opinion of Associate Professor A Breslin, consultant thoracic physician. Associate Professor Breslin initially examined the Applicant on 25 October 2002. In a report to the Respondent on 29 October 2002 (Exhibit R3), he noted that the Applicant started smoking in 1978 at the age of 18 after joining the Navy. She initially smoked ten cigarettes a day for approximately 12 months, then 25 cigarettes a day for a few years, then 40 cigarettes for about three years before reducing back down to 25 cigarettes a day. On Associate Professor Breslin’s calculations, this came to an average of approximately 20 cigarettes per day. The Applicant told him that she did not have a tolerance on stairs or hills, that she has wheezed but never used an inhaled bronchodilator, and that she has had a daily cough for about ten years commencing around 1988.
37. Associate Professor Breslin diagnosed the Applicant as having chronic simple bronchitis as defined in SoP Instrument 74 of 1997 (Exhibit R3). He found, however, that there was no evidence of chronic airflow limitation or emphysema, that her lung function was entirely normal, and that she had not satisfied the condition of a 15 pack year history as required by the SoP. Further, Associate Professor Breslin stated that although the commencement of smoking was temporally related to the Applicant’s time in the service it was unlikely to be related to the conditions and circumstances of that service. He assessed her as having a 20 point impairment rating.
38. In an additional report dated 30 December 2002 (Exhibit R4), Associate Professor Breslin expressed the opinion that there had been no clinical worsening of the Applicant’s chronic bronchitis since 1988. In his opinion any clinical worsening that may occur in the future would be related to her continuation of smoking and not specifically to her conditions of service.
39. The Applicant’s representatives sought the opinion of Dr P Gianoutsos, consultant thoracic physician. Dr Gianoutsos examined the Applicant on 27 February 2003 (Exhibit A1). Dr Gianoutsos took the following smoking history from Ms Salton:
· “November / December 1978 – 5 cigarettes a day for one year
· Mid 1979 / end 1980 – twenty cigarettes per day
· 1981 / 1983 – twenty cigarettes per day
· 1984 / 1986 – thirty cigarettes per day
· 1987 / 1988 – twenty cigarettes per day
· 1989 / 2000 – twenty-five cigarettes per day
· 2000 / 2002 – forty cigarettes per day”
40. The Applicant told Dr Gianoutsos that her level of smoking tended to reflect the degree of stress she was under in the workplace at the time. She said that realises that she is probably now addicted and she cannot stop. Dr Gianoutsos calculated that between November / December 1978 and the end of 2002 the Applicant would have had the equivalent of 25.25 pack years of smoking in her system (Exhibit A1). The Applicant told him that she commenced smoking during service after experiencing extrinsic pressure from fellow sailors to smoke.
41. In his report, Dr Gianoutsos reported that the Applicant had initially noticed a cough in 1998 and that a cough productive of sputum on a daily basis for more than three months in any one-year had become apparent in 1998 / 1999 (Exhibit A1). There were exacerbations of this cough at least once a year. Approximately six to seven years ago the Applicant noticed shortness of breath hurrying and climbing stairs. She reported that she wheezes when she has difficulty in clearing her chest. Dr Gianoutsos’ report stated that the Applicant did not experience pleuritic chest pain. In his opinion, the Applicant has suffered from a chronic cough since 1998 / 1999, productive of sputum every day of the year since that time. The Applicant therefore fulfils the criteria for chronic bronchitis in accordance with the World Health Organisation. Dr Gianoutsos felt that the Applicant satisfied the SoP Instrument No. 74 of 1997 dealing with Chronic Bronchitis and Emphysema. She should have fulfilled the criteria for 15 pack years of smoking in her system by the year 1996 / 1997. Further, on the basis of the information he received, he felt her chronic simple bronchitis is connected with her service.
42. The Respondent’s representatives asked Associate Professor Breslin to comment on the report of Dr Gianoutsos (Exhibit A1). Associate Professor Breslin provided a further report on 28 April 2003 (Exhibit R5). In this report, he disagreed with Dr Gianoutsos’ finding that the Applicant’s chronic cough with sputum did not commence until around 1997 / 1998. The history he obtained from the Applicant was that this commenced in 1988. It was for this reason that Associate Professor Breslin found that the Applicant did not fulfil SoP Instrument No. 74 of 1997. The new information outlined in Dr Gianoutsos’ report did not cause Associate Professor Breslin to change the opinion he expressed in his earlier reports.
Applicant’s Submissions
43. Mr Jones put forward the following contentions on behalf of the Applicant:
· She fulfils the criteria of chronic simple bronchitis in paragraph 2(b)(i) of SoP Instrument No. 74 of 1997;
· Based on her smoking history the Applicant fulfils the criteria of 15 pack years of smoking in her system by the year 1996/1997;
· The Applicant’s symptoms of a chronic cough became apparent in 1998/1999 fulfilling factor 5(a)(ii) of SoP Instrument No. 74 of 1997; and
· The ongoing insult to the Applicant’s respiratory nucosa has made her respiratory tract disorder permanently worse and her chronic bronchitis will be permanently worse due to her ongoing smoking. It is probable, although she has no evidence of airway obstruction at the present time, that this may later superimpose and worsen her clinical situation such that she will probably develop significant breathlessness on effort.
Respondent’s Submissions
44. Mr Modder contended the following on behalf of the Respondent:
· The correct diagnosis is chronic simple bronchitis but not chronic airflow limitation;
· The Applicant’s smoking history does not meet the 15 pack year requirements;
· The habit is not service-caused as there is only a temporal relationship between service and the Applicant’s smoking habit. In accordance with Repatriation Commission v Tuite (1992) 37 FCR 571, this is insufficient to prove the relevant connection with war-service. There must be something within the Applicant’s military service which caused the smoking habit. The Respondent held that the Applicant’s smoking habit is a result of personal choice rather than service-related; and
· There is no evidence of clinical worsening since the onset of the disease in 1988.
New evidence
45. In the course of writing the decision the Tribunal came upon an undated statement signed by the Applicant addressed to the Tribunal and forwarded by facsimile by Rockliffs on 11 September 2002 (Exhibit R7). Attached to the statement were four medical–in–confidence records about the Applicant. The contents of the statement were as follows:
“I believe that my bronchitis started in approximately 1987 and has definitely got worse over the years. I have been informed that I have chronic bronchitis. I have noticed over the past 10 years that I have a continual croupy cough and I also cough up a lot of flem (sic). Sometimes in more recent times I felt that my airway is not as clear as it should be and I have difficulties in breathing.
I have not attended regular medical appointments as I was informed that their (sic) was very little that could be done. I do not like to take medication however, I use chinese medicines to assist in clearing the flem (sic).
I have smoked on average a packet a day during the 1980’s and at that time I was buying packets of 30. During the 90’s I continued to smoke a packet a day but I started buying packets of 25. When I was serving in HMAS SUCCESS from 2000-2002 I would have smoked approximately 30 a day as the cigarettes were duty free. At this present time I smoke 25 cigarettes a day.”
46. This statement had not been tested. The Tribunal was however unable to ignore the statement. In its inquisitorial role the Tribunal made the statement available to both parties and the Tribunal reconvened on 18 July 2003. The statement and the attached medical-in-confidence reports were taken into the Tribunal's exhibit (Exhibit R7).
47. In evidence the Applicant said she had not understood the meaning of the term bronchitis when she made the statement and that she had in fact had a cold in 1987 at the time of the medical reports, rather than bronchitis. The Applicant also disputed the doctor’s diagnosis of bronchitis (Exhibit R7).
Tribunal's deliberations
48. It was agreed the Applicant has chronic simple bronchitis.
49. There were two questions for the Tribunal. First whether the Applicant met the 15-year pack requirement for the SoP Instrument No. 74 of 1997 and second, if so, whether there was a causal nexus between the Applicant’s military service and her smoking..
50. For factor 5(a)(ii) of SoP Instrument No. 74 of 1997 to be satisfied, the Applicant must have been smoking at least 15 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and where smoking had ceased, the clinical onset must have occurred within one year of cessation.
51. Alternatively, factor 5(a)(iv) of SoP Instrument No. 74 of 1997 specifies that the Applicant must be found to have smoked at least 15 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis, and where smoking had ceased, the clinical worsening had occurred within one year of cessation.
52. The Tribunal accepted the Applicant’s evidence that she commenced smoking in 1978, a short time after enlisting in the Navy and that she did not smoke prior to service. On the evidence of Dr Gianoutsos the Tribunal accepted that the Applicant fulfilled the criteria for 15 pack years of smoking in her system by the year 1996/1997. Before considering the nexus between smoking and service, the Tribunal examined the requisite 15-year time period to satisfy the SoP Instrument No. 74 of 1997.
53. In simple terms to satisfy the 15 years the Applicant must have developed bronchitis after 1996/97. The Applicant’s oral evidence was contradictory to her written evidence contained in her undated statement (Exhibit R7). Clinical onset as defined in Lees v Repatriation Commission [2002] FCAFC 398 is as follows:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…”
54. The two respiratory physicians disagreed about clinical onset. Dr Breslin opined the year of clinical onset to be 1988, whilst Dr Gianoutsos thought it to be 1998. The Tribunal noted that their respective opinions were governed by the histories obtained from the Applicant. During the VRB hearing Mr Casey for the Applicant submitted that that the clinical onset of bronchitis was 1988 (T18, page 109). This was also as stated in the Applicant’s statement (Exhibit R7), undated but served on the Tribunal by Rockliffs Solicitors on 11 September 2002. In fact this statement indicated that the bronchitis started in 1987. The attached medical reports from Dr Mackay diagnosed bronchitis 19 July 1988 and another medical report of 4 June 1988 diagnosed URTI/bronchitis (Exhibit R7).
55. At the reconvened hearing the Applicant's evidence was that she did not understand the meaning of the term bronchitis. The Tribunal was of the opinion that the document speaks for itself: “I have noticed over the past 10 years that I have a continual croupy cough and I also cough up a lot of flem (sic)”.
56. The definition of chronic bronchitis according to paragraph 2(b)(i) of SoP Instrument No. 74 of 1997 is:
“…a respiratory tract disorder characterised by excessive mucous production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases...”
57. The Tribunal was satisfied that the Applicant’s statement satisfied the definition for chronic bronchitis dating from 1987/1988. The Applicant’s own admission in her statement that she suffered from a “continual croupy cough and I also cough up a lot of flem (sic)” (Exhibit R7) indicates a chronic problem sufficient to satisfy at least three months of at least two consecutive years. The Tribunal was unable to accept the Applicant’s later evidence that her cough and sputum did not commence until 1998/1999. Having defined the clinical onset as 1988, factor 5(b) of SoP Instrument No. 74 of 1997 for chronic bronchitis cannot be satisfied as the 15-year requirement was not met. The evidence of both respiratory physicians was that there was no evidence of airway obstruction at the present time. Associate Professor Breslin in his report dated 30 December 2002 (Exhibit R4) stated that “there is no evidence to suggest progression (that is clinical worsening) of her chronic bronchitis since 1988.” The Applicant therefore does not satisfy any of the factors listed under factor 5 of SoP Instrument No. 74 of 1997.
58. As the Applicant did not satisfy factor 5 of SoP Instrument No. 74 of 1997, it is not necessary for the Tribunal to make a decision concerning the Applicant’s smoking habit and its’ causal nexus with her defence service.
Conclusion
59. The Tribunal was satisfied that the Applicant suffers from chronic bronchitis and that the clinical onset was 1988. The Applicant did not meet the requirement of the relevant SoP and it followed that there was no entitlement for chronic bronchitis related to her defence service.
Decision
60. The decision under review is affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of DR MEC Thorpe, Member
Signed: L Bonouvrie
AssociateDate/s of Hearing 7 July 2003, 18 July 2003
Date of Decision 21 August 2003
Solicitor for the Applicant Mr Brian Winship
Solicitor for the Respondent Mr Stephen Modder
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