Smith and Repatriation Commission

[2003] AATA 1306

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1306

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No T2001/121

VETERANS' APPEALS DIVISION )

Re DOUGLAS RAYMOND SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

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

Date19 December 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]
  Part-Time Member

CATCHWORDS

Veterans' Appeals - disability pension - eligibility - whether war-caused or service related - alcohol dependence or alcohol abuse - hypertension - chronic bronchitis and emphysema - tinea - irritable bowel syndrome - sprain or strain of right ankle - Statements of Principle.

Veterans’ Entitlements Act 1986 – ss120, 120B

Guide to the Assessment of Rates of Veterans’ Pension (GARP)

Statement of Principles issued by the Repatriation Medical Authority, relating to specific medical conditions.

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 391 FCA

Stoddart v Repatriation Commission (2003) FCA 334

REASONS FOR DECISION

19 December 2003 Associate Professor B W Davis AM (Part-time Member)  

The application

1.      The applicant Douglas Raymond Smith seeks review of that part of a decision of the Repatriation Commission made by a delegate on 19 January 1999, subsequently affirmed by the Veterans’ Review Board on 20 April 2001, which rejected claims that conditions alcohol dependence or alcohol abuse, hypertension, chronic bronchitis and emphysema, irritable bowel syndrome, sprain or strain of right ankle and tinea were war-caused.

Date of Effect

2.      All steps in this matter having been taken within prescribed time limits, should the applicant succeed in his appeal the earliest date of effect would be 23 September 1997, being three months prior to the lodgment of the claim.

Issue

3.      The issue is whether the applicant’s claimed conditions or either of them was caused or contributed to by his service in the Australian Army between 7 December 1972 and 8 December 1977.

Standard of Proof

4.      As the applicant did not render operational service within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”), the standard of proof is that involving the balance of probabilities and to the reasonable satisfaction of the Tribunal. However, as this claim was lodged after 1 June 1994, s120B of the Act applies.

Context

5. The applicant, Douglas Raymond Smith, served in the Australian Army from 28 September 1971 until 8 December 1977, but his eligible service as defined in the Act was from 7 December 1972 to 8 December 1977.

6.      Mr Smith claims that a number of his disabilities are service-related, arising from at least three causes: injuries to his right ankle by falls, alcohol dependence or alcohol abuse induced by a stressful incident on a firing range, and tinea arising from unhygienic field situations.   Chronic bronchitis and emphysema are claimed to have arisen from the firing range incident inducing a heavy smoking habit.

7.      Mr Smith left the Army on 8 December 1977 and his subsequent employment was a log truck driver, a transport coordinator for Australia Post and as a corner store manager.   He had a large family and it was necessary for him to work until they were of an age to leave home.    He had reverted to some driving duties around year 2000, but a smash knee has meant he has remained unemployed since 2001.

8.      He first claimed a disability pension on 23 December 1997 claiming “…blood pressure, ingrown toenails, substance abuse (alcohol), chronic bronchitis, obesity, COAD, irritable bowel syndrome, right ankle sprained, tinea feet”.   The Department of Veterans’ Affairs considered the relevant medical terminology and in a decision dated 29 January 1999, accepted the claim for ingrown toenails and granted a disability pension at 10 percent of the General Rate with payment from 25 September 1997, the first pension date after the date of effect.

9.      Mr Smith disagreed with this assessment and lodged an application for review by the Veterans’ Review Board on 17 March 1999.  The VRB conducted its hearing in Launceston on 20 April 2001.   After hearing from the applicant and his representative Mr Bob Fitz of the RSL, the Board considered the evidence and decided to affirm the decision under review on 20 April 2001.

10.     Mr Smith then lodged an application for review by the Administrative Appeals Tribunal, dated 15 August 2001.

Legislation

11.     Section 120(4) sets out the standard of proof in respect of claims for disability pension, specifying that the Tribunal is to determine the matters to its reasonable satisfaction.

12. Given that the applicant rendered eligible service, rather than operational service, s120B of the Act applies and the Tribunal must consider any relevant Statement of Principles issued by the Repatriation Medical Authority or any other relevant determinations or declarations under the Act. The Statement of Principles set out factors relating to service that must exist in order to establish a causal connection between particular diseases, injuries or death and service situations. The Statements are binding on decision-makers at all levels, including the AAT.

13. The Act provides that a disease or injury of a member of the Armed Forces or member of a peacekeeping force is service-related it if, in effect:

·     Resulted from an occurrence on peace-keeping service;

·     Arose out of or was attributable to defence-service or hazardous service;

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

·     Was due to an accident that would not have occurred or a disease that would not have been contracted but for defence service or hazardous service; or

·     Was contributed to in a material degree or aggravated by defence service or hazardous service.

SSAT Findings

14.     The Veterans’ Review Board in its determination of 20 April 2001, serially examined each of Mr Smith’s disability claims, using the relevant Statement of Principles, before concluding that the initial decision should be affirmed.

15.     In dealing with Mr Smith’s ankle injury, the VRB considered the incidents involved, noting that one involved a home accident, another on leave and the third diagnosed as “… slight swelling … no specific treatment”.    On this basis, they rejected the claim, even though the applicant argued “flareups” occurred.

16.     The Board noted the firing range incident, which the applicant claimed induced his heavy drinking and smoking pattern, with chronic bronchitis and emphysema attributed as consequences.   The VRB carefully considered the relevant Statement of Principles for each of the claimed disabilities, particularly what might constitute a “severe stressor”, noting there was no medical evidence of alcoholism while the veteran was serving in the Army and they could not identify a stressful event immediately prior to the onset of substance abuse or dependence.

17.     As far as smoking was concerned the VRB noted the applicant’s claim fell short of the required number of pack years specified in the relevant Statement of Principles.   For all the above reasons the Board found that it was reasonably satisfied the material before it did not raise a connection between claimed disabilities and service experience.   The VRB therefore affirmed the decision under review on 20 April 2001.

The AAT Hearing:

18.     The AAT hearing was conducted in Launceston on 25 October 2003, but adjourned pending receipt of a further medical report and possible cross-examination.   The hearing resumed on 21 November 2003 and following consideration of the medical evidence was completed that day.

19.     At the hearing conducted on 25 October 2003, Mr Douglas Raymond Smith was sworn and gave evidence about his eligible Army service, his claimed disabilities and his belief the latter were service-related.    In particular he stressed that an incident on the firing range where a weapon was accidentally discharged near him created such fear that he doubted he could render active service and caused his then existing drinking and smoking habits to become increasingly severe.   He ceased smoking when he suffered bleeding from a duodenal ulcer in 1985.   He suffered nightmares and his alcohol intake later took on the pattern of attempting some days without intake, followed by episodic binge drinking, usually around a weekend.   On leaving the Army his civil career included roles as truck driver, transport coordinator for Australia Post and store manager, until he ceased employment due to a smashed knee in 2001.

20.     Under cross-examination he stated that he had seen Dr Radcliff in 1998, in relation to his claim for disability allowance.   He did not mention nightmares and said he did not like discussing his problems with anyone.   His dislike of violence and guns was such that he avoided media depictions of such situations.   He had later mentioned his nightmares to someone involved with the Vietnam Veterans, but had not specifically sought treatment for his mental condition.   Nonetheless he believed the firing range incident and subsequent heavy drinking had triggered other disabilities, such as irritable bowel syndrome and hypertension, while smoking had caused bronchitis and emphysema.

21.     He was also questioned about his claim of tinea, which he attributed to poor hygiene in the field.   He admitted that the army had provided foot powder and it was up to him to seek further treatment if need be.   Tinea was not a problem at the time of Army discharge, but did recur periodically.

22.     Mr Smith was questioned in some detail about his smoking and drinking habits.   He said that he had commenced smoking in early 1972, initially at about 20-30 cigarettes per day, but soon after increasing to 70-90 cigarettes per day until he quit in 1985.   As far as drinking was concerned he had attempted to regulate this while acting as driver for the GOC in Army service and in civilian life was conscious of supporting a large family, nonetheless there was a pattern of episodic binge drinking which continued.    It was not a matter of enjoyment, but dependence, once he commenced alcohol intake it continued and became pronounced until he went to bed.

23.     Dr E Radcliff, psychiatrist, was then interposed and affirmed as expert witness.  Dr Ratcliff said he had submitted a report on 7 August 1998, at the request of Veterans’ Affairs.   At the time Mr Smith did not display any psychiatric disorder or indication of a stressor, but in some degree he was reliant upon what the patient told him and it was difficult to determine precisely what had resulted from the firing range incident.   He did consider that some of Mr Smith’s medical conditions and his restless sleep were attributable to alcohol dependence, but thought in 1998 that if they continued, further diagnoses were needed.

24.     Counsel for the respondent indicated he would probably seek an adjournment to obtain a further report from Dr Ratcliff, but in the interim wished to question Mr Smith a little more about his smoking and drinking habits.   These questions were merely intended to provide more detail.

25.     Dr Markos, a respiratory physician was then affirmed and gave evidence by conference phone.   He had first examined Mr Smith in 1989, then again in early April 2003.   His principal conclusion was that Mr Smith has near normal airway function and possible mild small airway narrowing.   He had not seen any specific evidence which would permit him to diagnose emphysema.   Mr Smith does not have any specific features for asthma and on balance he has mild bronchitis attributable to past tobacco smoking.  Dr Markos said his calculations suggested Mr Smith had smoked the equivalent of 9 pack years of cigarettes, which did not meet the 15 pack years criterion specified in the Statement of Principle for chronic bronchitis or emphysema, however some documentation in the case was complex and confusing.   His assessment was Mr Smith has near normal airway function at present, but there is no safe threshold for tobacco smoking, so Mr smith’s medical condition should continue to be monitored.

26.     Mr Castle asked whether there was any indication the applicant’s bronchitis could worsen in the future.   Dr Markos responded that there were some indications of bronchitis at present, but it was not acute, although risks tended to increase with age.   If a more precise diagnosis was required, Mr Smith should undergo a comprehensive lung function test, as well as a CT chest scan.

27.     Counsel for the respondent (Mr Castle) then sought an adjournment of the hearing, stating that a further report was required from Dr Ratcliff, as well as some further cross-examination.   Adjournment was granted by the Tribunal, with resumption scheduled for 21 November 2003.

28.     At the resumed hearing a report from Dr Ratcliff was tendered as evidence.  Dr Ratcliff reported that he had re-examined Mr Smith for approximately forty minutes (date unstated).   Mr Smith had recounted the firing range incident, saying “he went to pieces” and got drunk that night, adopting a heavy drinking regime thereafter.   He tried to curb the habit midweek, but tended to engage in “weekend benders” about once a fortnight in civilian life.

29.     Dr Ratcliff expressed a personal view that in his experience a common reason for non-disclosure of problem events by ex-servicemen was shame, because of some hidden atrocity, unlawful behaviour or assumed cowardice.   If a terrifying incident was involved, resort to alcohol abuse was often perceived as a panacea.   But Mr Smith’s circumstances were somewhat different.   Dr Ratcliff described the situations thus:

“… He did undergo a brief frightening experience, but does remember it from time to time but not so strongly as the feeling about himself that it induced.  The dream phenomena are strongly associated with his drinking pattern and represent a generalised anxiety rather than a specific reminiscent syndrome as in Post-Traumatic Stress Disorder.   It is my opinion more likely than not the development of his drinking pattern began with his experience of fear and shame at that fear, in circumstances where alcohol was the readily available and socially condoned form of relief for any form of male distress.”

30.     Having noted Dr Ratcliff’s report, counsel for the applicant made a brief closing statement, arguing it was clear alcohol dependence or abuse and heavier smoking habit were induced by the firing range incident.   Instances of tinea were common in the Army due to field service conditions, so overall the applicant’s claims should be accepted.

31.     Counsel for the respondent said it was up to the Tribunal to consider all the evidence and not all the claims were persuasive.   The report from Dr Ratcliff merely identified anxiety, rather than hypertension or something worse.   There was no clear evidence linking it to the firing range incident and doubt existed that incident constituted a severe stressor anyway.   Dr Markos had confirmed neither chronic bronchitis or emphysema were present, thus the applicant’s numerous claims were open to question.   It appeared the original decision-maker had made an appropriate determination and this should now be affirmed.

Analysis

32.     In merits review the Tribunal is required to stand in the shoes of the original decision-maker, but consider all evidence anew, bearing in mind statutory provisions and relevant case authorities.

33. The applicant, Douglas Raymond Smith, has claimed a number of disabilities as service-related. As earlier indicated, these must be tested against Statements of Principles issued by the Repatriation Medical Authority, made under s196B of the Veterans’ Entitlements Act 1986.   In the current case the relevant Instruments are as follows:

·     Hypertension, Instrument No 31 of 2001.

·     Chronic bronchitis and emphysema, Instrument No 74 of 1997.

·     Irritable bowel syndrome, Instrument No 104 of 1996.

·     Tinea, Instrument 185 of 1995.

·     Acute sprains and strains, Instrument No 51 of 1994.

·     Alcohol dependence or abuse, Instrument No 77 of 1998.

Hypertension

34.     In order for the applicant’s claim to succeed it must be demonstrated that hypertension is directly linked to Army service.   There is no medical evidence to this effect, indeed Mr Smith himself views it as related to his substance abuse or dependence.   The Tribunal has considered other Factors identified in the Statement of Principles and notes none are applicable to Mr Smith’s case.   His claim that hypertension is service-related therefore fails.

Chronic bronchitis and emphysema

35.     The applicant contends chronic bronchitis and emphysema are due to smoking and therefore are service related.   But medical evidence suggests Mr Smith may have mild bronchitis, but his air passages are near normal and chronic bronchitis and emphysema have not been diagnosed.   In terms of smoking, evidence is available that Mr Smith commenced smoking around 1972, before the claimed “firing range incident” and continued until 1985, at its heaviest averaging about 60 cigarettes per day.   Service records indicated total consumption at around 9 pack years, which falls short of the Statement of Principles criterion of 15 pack years, moreover there is no evidence aggravation of cigarette intake was directly attributable to service conditions.   For the reasons stated above, none of the factors set out in the SoP are met and the Tribunal is reasonably satisfied the material before it does not raise a connection between smoking habit and military service, other than that smoking was a socially acceptable habit at the time.

Irritable bowel syndrome

36.     Medical evidence suggests that if irritable bowel syndrome exists in Mr Smith’s case, it is almost certainly linked to substance abuse or dependence.   Mr Smith has claimed the condition may have been induced by diarrhoea, but there is no evidence this is directly related to service duties.   The Tribunal has considered other circumstances described in the Statement of Principles, but none are applicable in the current case.

Tinea

37.     Mr Smith has attributed tinea to poor hygiene in field situations.   This is plausible, but the Army does go to considerable lengths to prevent such infections and services are available to treat cases.   There is no medical record of Smith being treated for such a condition, apart from brief mention of a rash on arms and feet.   None of the other factors mentioned in the Statement of Principles apply in this case.

Strain or sprain of ankle

38.     With regard to sprain or strain of right ankle, there is evidence injury occurred when travelling to and from place of duty and due to a fall at home.   This does not constitute evidence the injury was sustained during eligible service, nor is there any clear evidence the injury was further aggravated by service.   This these circumstances Mr Smith’s claim fails.

Alcohol dependence or abuse

39.     On his own admission Mr Smith commenced drinking alcohol when he joined the army, but claims this intensified following the firing range incident and has remained a feature of his subsequent life.   Prima facie, an hypothesis can be postulated, that alcohol dependence or abuse may be service-related.   Following Repatriation Commission and Deledio 1998) 391 FCA, it is necessary to determine whether a relevant Statement of Principle exists and if so, whether circumstances appear to fit such a proforma.

40.     The relevant SoP is Instrument No 77 of 1998 and it is necessary to consider whether a “severe stressor” was involved.   Mr Smith claims the accidental discharge of a weapon near him made him fear for his life and take up heavy drinking.   The Tribunal accepts it may have been a frightening experience, but whether it meets the criterion of “severe stressor” defined in the SoP is more debatable (Stoddard and Repatriation Commission (2003) FCA 334) He may have perceived a possible threat of injury, but certainly was not engaged in combat or witnessing casualties or abusive violence.

41.     Mr smith has admitted fairly heavy drinking due to boredom and Army social norms prior to the firing range incident, although this was masked to permit continuation as a driver to the GOC.   Dr Ratcliff’s medical evidence suggests that intensification of alcohol abuse or dependence was subsequently related to shame and not service conditions.   There is no evidence before the Tribunal of any persistent or recurrent social, occupational, or physical problem likely to exacerbate use of alcohol; thus factors in the Statement of Principles are not present and Mr Smith’s claim fails.

Decision

42.     For the reasons stated above, the decision under review is affirmed.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing  25 October and 21 November 2003
Date of Decision  19 December 2003
Counsel for the Applicant         Mr Ross Hart
Solicitor for the Applicant          Rae and Partners
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs