Smith and Repatriation Commission
[2011] AATA 605
•31 August 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 605
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1733
VETERANS' APPEALS DIVISION ) Re LINDSAY KELVIN SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean Date31 August 2011
PlaceAdelaide
Decision The Tribunal:
(a) varies the decision under review so as to provide that Mr Smith suffers from the condition of generalised anxiety disorder and that condition is war-caused;
(b) otherwise affirms the decision under review;
(c) remits the matter to the respondent for assessment of Mr Smith’s entitlement to pension in accordance with these reasons for decision; and(d) reserves liberty to the parties to apply, within 14 days after the date of publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, directs that the date of effect will be 1 March 2008.
..............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Operational service – Carotid arterial disease – Ischaemic heart disease – Retinal vascular occlusive disease – Atrial fibrillation – Heart failure – Generalised anxiety disorder – Application of Deledio – Hypothesis raised in respect of generalised anxiety disorder – Material points to factors in the SoP – Tribunal not satisfied beyond reasonable doubt that condition not war-caused – Generalised anxiety disorder found to be war-caused – Other conditions either not the subject of a hypothesis or the hypothesis does not satisfy the applicable SoP – Those conditions not war-caused – Decision under review varied.
Veterans’ Entitlements Act 1986 ss 6-6F, 9, 13(1), 119, 120, 120A, 196A, 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
McKenna v Repatriation Commission (1999) 86 FCR 144Repatriation Commission v Gorton (2001) 110 FCR 321
Statement of Principles Instrument No 9 of 2003
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 89 of 2007
Statement of Principles Instrument No 19 of 2003
Statement of Principles Instrument No 83 of 2011
Statement of Principles Instrument No 33 of 2006REASONS FOR DECISION
31 August 2011 Senior Member K Bean introduction
1. The applicant, Mr Smith, was born on 1 May 1924 and served with the Australian Army from 17 August 1942 to 8 August 1946. He was only 18 years old when he joined the Army and his service included overseas service in New Guinea and New Britain. As a result of his service, Mr Smith contracted malaria and suffered hearing loss and tinnitus and has been in receipt of a disability pension paid at 40 percent of the general rate since September 2007.
2. In recent years, Mr Smith has also made claims in relation to a number of other conditions which he claims are service related. Those conditions are carotid arterial disease, ischaemic heart disease, retinal vascular occlusive disease (left eye), atrial fibrillation, congestive cardiac failure and left heart failure.
3. In relation to those conditions, on 5 September 2007 the Repatriation Commission (the Commission) decided that none of them were service related and therefore pension was not payable in respect of them. Mr Smith sought review of that decision by the Veterans’ Review Board (VRB) and on 3 April 2009, the VRB decided to amend the Commission’s decision in relation to atrial fibrillation by substituting the diagnosis to include ischaemic heart disease, but otherwise affirmed the Commission’s decision. In other words, the VRB also concluded that none of these conditions was service related.
4. On 28 April 2009, Mr Smith applied to this Tribunal for review of the decision of the VRB.
the issues
5. It follows that in general terms, the issue before me is whether any of the conditions claimed by Mr Smith are service related, or more accurately, war-caused. The conditions which are relevant in this context are carotid arterial disease, ischaemic heart disease, retinal vascular occlusive disease (left eye), atrial fibrillation, congestive cardiac failure and left heart failure. In addition, a further condition potentially related to Mr Smith’s service emerged for the first time in the course of the hearing before me. That condition was generalised anxiety disorder and, consistently with my obligation to consider all substantive issues arising on the material and not limit myself to the case articulated by the veteran[1], I propose to also consider whether that condition is war-caused.
[1] Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47].
legal framework
6. Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ...”
8. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. It is common ground that the whole of Mr Smith’s Army service was operational service.
9. Section 120 of the VE Act provides for the standard of proof applicable to the determination of whether Mr Smith’s asserted conditions are war-caused. That section provides relevantly as follows:
“120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A
(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.”
Section 120(6) provides in effect that neither party has any onus of proving any matter relevant to the determination of the claim.
10. Section 120A of the VE Act provides relevantly that in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of a hypothesis connecting the relevant injury or disease with the veteran’s operational service is to be assessed by reference to that SoP.
11. Section 120A(3) provides relevantly:
“(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
...
that upholds the hypothesis.”
Sub-section (4) of s 120A excludes the operation of sub-s (3) in certain circumstances which are not relevant to the present proceedings.
12. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
13. Section 119(1) provides in effect that the Commission is not bound to act in a formal manner and is not bound by the rules of evidence, but may inform itself of any matter in such manner as it thinks just, and shall act according to substantial justice and substantial merits of the case, without regard to legal form and technicalities. Further, under s 119(1)(h), the Commission must take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time, including its effect on the availability of witnesses, and the absence of, or a deficiency in, relevant official records.
14. References to the Commission in the above sections apply to this Tribunal in the present proceedings, and in reviewing the Commission’s decision I am considered to be “in the shoes” of the Commission, and I should regard myself as performing the relevant function of the Commission in accordance with the law as it applied to the Commission: Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143, per Smithers J.
15. The application of ss 120(1) and (3) and 120A(3) of the VE Act was explained in Repatriation Commission v Deledio (1998) 83 FCR 82, where the Full Court of the Federal Court (Beaumont, Hill and O’Connor JJ) said at 97:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
16. A hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts: Bull v Repatriation Commission (2001) 66 ALD 271 at [17] and [38]. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:
“The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
consideration
17. The condition to which Mr Smith directed most of his contentions was carotid arterial disease and I propose to consider that condition first before considering the other conditions he has also claimed are war-caused.
Carotid arterial disease
18. There is no doubt on the evidence and the respondent did not dispute that Mr Smith suffers from carotid arterial disease. This was confirmed by the medical evidence before me, including the report of Dr Anderson, dated 22 July 2009 and the report of Dr Gribble dated 9 December 2009, and I am accordingly satisfied that Mr Smith does suffer from this condition.
19. As to a connection between this condition and his service, Mr Smith said in his evidence and in correspondence tendered into evidence that in the course of his service he was involved in an accident involving a horse and wagon. In a letter dated 21 October 2009, Mr Smith stated:
“Whilst standing at back of wagon, the horse lunged forward, the result being the tail-gate catching my lower legs, therefore being thrown backwards, falling on to left shoulder, back of head and neck area.
Being angled to the left, the impact was taken mainly on the left side, in the area on the side of the neck under the chin and top of shoulder and lower part of skull.
…
Pain, bruising and stiff neck was experienced for at least a month or more afterwards, bruising gradually subsiding, but restricted to any strenuous activity by any movement causing pain in shoulder and neck area for quite a long while after that, possibly in the region of six months, also giddiness and loss of balance.” [2]
[2] Exhibit 3
20. Mr Smith contended that the injury he suffered in this incident had led to him later developing carotid arterial disease. He also argued that he had suffered a “trauma to the neck or the base of the skull within 12 months immediately before the clinical onset of carotid arterial disease” within the meaning of paragraph 5(e) of the SoP relating to carotid arterial disease (which is set out more fully below).
21. Mr Crowe, who appeared as advocate for the Commission, did not dispute the occurrence of this event, or that Mr Smith had suffered trauma as a result of it, however he contended that there was no evidence before the Tribunal that as a result of his injury Mr Smith had suffered a “dissection” of his carotid artery, as required by factor 5(e) of the SoP.
22. Dr McLennan, Mr Smith’s general practitioner, gave evidence at the hearing, including in relation to this issue. He explained that a dissection involves damage to the internal lining of the artery. However, he said that Mr Smith had high grade stenotic disease, but his carotid arterial disease did not involve a dissection. He also said that there was no evidence that Mr Smith had suffered an aneurism of his carotid artery.
23. This evidence was consistent with a report on an ultrasound of Mr Smith’s carotid arteries, which stated that Mr Smith was suffering from atherosclerotic change in his carotid artery resulting in significant stenosis of between 50 and 69 percent. It was also consistent with a report of Mr Anderson, vascular surgeon, dated 22 July 2009 in which Mr Anderson noted that Mr Smith presented with “cerebro vascular disease” and “high grade stenotic disease involving the left carotid artery”.
24. Following the Deledio steps in relation to a possible connection between Mr Smith’s fall from the wagon and his carotid arterial disease, I consider that the material before me does raise a hypothesis linking Mr Smith’s carotid arterial disease with his service. Further, there is also an applicable SoP in force, namely Instrument No 9 of 2003. Pursuant to step 3 however, I must also consider whether the hypothesis is consistent with the “template” found in the SoP. In order to be consistent with the SoP, the hypothesis must contain one or more of the factors set out in the SoP.
25. Instrument No 9 of 2003 relevantly provides as follows:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting carotid arterial disease or death from carotid arterial disease with the circumstances of a person’s relevant service are:
(a) the presence of hypertension before the clinical onset of carotid arterial disease; or
(b) the presence of dyslipidaemia before the clinical onset of carotid arterial disease; or
…
(e)for dissection of the common, internal or external carotid artery only, suffering trauma to the neck or the base of the skull within the 12 months immediately before the clinical onset of carotid arterial disease; or
(f) for aneurysm of the common, internal or external carotid artery only, suffering trauma to the affected segment of the artery before the clinical onset of carotid arterial disease; or
…”
26. As to Mr Smith’s hypothesis based on the horse and wagon injury referred to above, the material before me does not point to Mr Smith having suffered a “dissection” or “aneurism” and therefore the hypothesis articulated by Mr Smith does not fit paragraph 5(e) or 5(f) of the SoP.
27. In the alternative, Mr Smith also put forward a hypothesis that his carotid arterial disease was the result of hypertension which in turn was caused by an anxiety disorder resulting from his service, or that it resulted from dyslipidaemia that was itself service related.
28. In relation to these conditions, Dr McLennan gave evidence at the hearing and was questioned in relation to Mr Smith’s “hypertension”. Following further consideration of the evidence after the hearing however, the Tribunal requested the respondent to issue a summons to Dr McLennan to produce his records, which he did. The parties were also given an opportunity to provide further submissions in relation to those records and the respondent subsequently provided a letter in response, together with a summary of the records and a short report from Dr Simon Spedding, dated 31 May 2011. I have decided to admit the bundle of records produced by Dr McLennan[3] and the report of Dr Spedding into evidence, together with Mr Crowe’s Minute to Dr Spedding dated 30 May 2011[4].
[3] Exhibit 9
[4] Exhibit 10
29. Dr Spedding states in his report that, having reviewed Dr McLennan’s notes in relation to Mr Smith, these indicate that Mr Smith suffers from low blood pressure or hypotension, however the notes contain no evidence of hypertension. That evidence is consistent with my own examination of those notes and I have concluded accordingly that Dr McLennan’s evidence at the hearing related to “hypotension”, and did not support the proposition that Mr Smith has at any time suffered from hypertension. As the material does not point to Mr Smith suffering from hypertension, his hypothesis also does not fit factor 5(a) of the SoP.
30. In relation to Mr Smith’s hypothesis based on dyslipidaemia, Dr McLennan confirmed in his evidence that Mr Smith had suffered from dyslipidaemia. He also confirmed that Mr Smith had been diagnosed as suffering from carotid arterial disease in 2002, following investigations resulting from a problem with his left eye, which commenced on 27 February 2002. Further, the material before me also suggests that Mr Smith had dyslipidaemia before the clinical onset of carotid arterial disease, as his records reveal that he had this by 1999.
31. However, there is no material before me which points to a link between Mr Smith’s service and his dyslipidaemia. For that reason, his hypothesis based on factor 5(b) also fails to fit the SoP, and as none of Mr Smith’s hypotheses fit the template of the SoP, his claim for carotid arterial disease cannot succeed.
Ischaemic heart disease
32. In his report of 8 April 2010, Dr McLennan stated that Mr Smith had been suffering from ischaemic heart disease since 2001 and also underwent a mitral valve replacement in 2001. I am satisfied on the basis of the material before me that Mr Smith does suffer from ischaemic heart disease and I did not understand the respondent to contend to the contrary.
33. I also note that the VRB referred to medical records which appeared to support a diagnosis of ischaemic heart disease in 1968, and I am also reasonably satisfied on the basis of those records that Mr Smith has suffered from that condition since 1968, some 22 years after his discharge from the Army[5].
[5] T5/42
34. As to any connection between that condition and Mr Smith’s service, in the written documentation submitted in support of his applications Mr Smith claimed that he had taken up smoking as a result of his service. In correspondence with the Department of Veterans’ Affairs, he also stated that “during the years of my service, I must admit that I was a heavy smoker of cigarettes, probably because nearly all smoked at that time, also stress and strain”[6]. He subsequently explained that he had not admitted to this previously, because his wife was “dead set against smoking”[7]. In his evidence, he said that while he was in New Guinea he had smoked a couple of packets of cigarettes per day, or between 15 and 30 cigarettes per day. He also said he had given up smoking when he returned from the war.
[6] T33/130
[7] T36/133
35. I am accordingly satisfied that a hypothesis is raised on the material connecting Mr Smith’s service and his ischaemic heart disease, and I must therefore next consider whether the hypothesis fits the template of any applicable SoP.
36. The applicable SoP in relation to ischaemic heart disease is Instrument No 89 of 2007, which relevantly provides as follows:
“Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service is:
(a) having hypertension before the clinical onset of ischaemic heart disease; or
…
(g) 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 smoking 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 smoking 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;
…
(n) inhaling or having cutaneous contact with products containing nitroglycerine or nitroglycol:
(i) each day for at least 20 days within a consecutive period of 30 days, before the clinical onset of ischaemic heart disease; and
(ii) where the last inhalation or contact occurred not more than 14 days before the clinical onset of ischaemic heart disease; or
…
(w) having hypertension before the clinical worsening of ischaemic heart disease; or
…
(cc) where smoking has ceased prior to the clinical worsening 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 worsening of ischaemic heart disease has occurred within five years of smoking cessation; or
…
Other definitions
9.For the purposes of this Statement of Principles:
…
"pack year of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3 kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
…”
37. On the basis of the material before it, the VRB indicated that it was prepared to accept that Mr Smith had smoked approximately 25 cigarettes per day for four years during the war and on the material before me, I am also prepared to accept that the material points to Mr Smith having smoked an average of 25 cigarettes per day during the war, which equates to five “pack years” within the meaning of the SoP. However where smoking has ceased prior to the clinical onset of ischaemic heart disease, as is the case here[8], and where the clinical onset of ischaemic heart disease has occurred more than 15 years after the cessation of smoking, the SoP requires “smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products”.
[8] T28/103
38. As the material before me does not “point to” that level of cigarette consumption, it follows that the hypothesis advanced by Mr Smith is not consistent with factor 6(g) of the SoP.
39. For completeness, I should add that in the written material he provided Mr Smith also indicated that he relied on factor 6(a) relating to hypertension, factor 6(n) relating to contact with particular products, and factors 6(w) and 6(cc) relating to hypertension and smoking prior to clinical worsening of ischaemic heart disease.
40. As I have indicated above however, the material does not “point to” Mr Smith suffering from hypertension and there is nothing before me pointing to him having had contact with the relevant products related to his service. Further there is also nothing before me pointing to him suffering from clinical worsening of ischaemic heart disease within five years of ceasing smoking.
41. Therefore even assuming that a hypothesis had been raised invoking these factors, I would not have been satisfied that the material pointed to the existence of the factors required by the SoP.
42. As the material before me does not “point to” satisfaction of any of the factors in the SoP, it follows that Mr Smith’s claim in relation to ischaemic heart disease also fails.
Atrial fibrillation
43. It is clear on the medical evidence before me that Mr Smith suffered from atrial fibrillation and the material also suggests that Mr Smith has suffered from atrial fibrillation since 1968[9]. In a report of 9 December 2009, Dr Gribble confirmed that Mr Smith continues to suffer from atrial fibrillation.
[9] T22/78
44. The current SoP in relation to atrial fibrillation is Instrument No 19 of 2003, which relevantly provides as follows:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting atrial fibrillation or death from atrial fibrillation with the circumstances of a person’s relevant service are:
…
(b) suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation; or
(c) suffering from myocarditis within the 30 days immediately before the clinical onset of atrial fibrillation; or
…
(f)suffering from congestive cardiac failure within the 30 days immediately before the clinical onset of atrial fibrillation; or
(g)the presence of hypertension at the time of the clinical onset of atrial fibrillation; or
…
(l) suffering from chronic bronchitis with pulmonary obstruction at the time of the clinical onset of atrial fibrillation; or
(m)suffering from emphysema at the time of the clinical onset of atrial fibrillation; or
…”
45. Mr Smith did not address this condition in any detail in his contentions or evidence before me, however the hypothesis he advanced before the VRB was that other service related conditions had led to his atrial fibrillation. In the documentation submitted in support of his application, Mr Smith indicated that he relied upon factors 5(b), (c), (f), (g), (l) and (m) of the SoP.
46. Turning to the SoP however, it is apparent that the only factors which are potentially relevant on the material before me are (b) relating to ischaemic heart disease and (f) relating to congestive cardiac failure.
47. As I have found above however, Mr Smith has not established a relationship between his service and ischaemic heart disease and it follows that his hypothesis in respect of that condition does not meet the template of the SoP[10]. Whilst there is material before me which suggests that Mr Smith suffers from congestive cardiac failure, there is nothing before me which points to this being related to service.
[10] McKenna v Repatriation Commission (1999) 86 FCR 144
48. Accordingly, the hypothesis raised by Mr Smith in relation to this condition does not satisfy the template provided by the SoP, and his claim in relation to this condition therefore also fails.
Retinal vascular occlusive disease
49. In his report of 8 April 2010, Dr McLennan indicated that Mr Smith suffered from a left emboli-retinal in 2002[11] and I am satisfied on the material before me that Mr Smith suffers from retinal vascular occlusive disease which had its clinical onset in 2002.
[11] Exhibit 4
50. The current SoP in relation to that condition is Instrument No 83 of 2011 which relevantly provides as follows:
“Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting retinal vascular occlusive disease or death from retinal vascular occlusive disease with the circumstances of a person’s relevant service is:
(a)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of retinal vascular occlusive disease, and where smoking has ceased, the clinical onset has occurred within 30 years of cessation; or
(b)having hypertension at the time of the clinical onset of retinal vascular occlusive disease; or
…
(d)having dyslipidaemia before the clinical onset of retinal vascular occlusive disease; or
…
(m) for retinal arterial occlusion only,
(i)having a potential source of embolus to the eye at the time of the clinical onset of retinal vascular occlusive disease; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
"a potential source of embolus to the eye" means the presence of at least one of the following:
…
(d) any of the following mitral or aortic valve disorders:
…
(iii) mitral valve prolapse;
…
(v) regurgitation;
(vi) stenosis; or
…
(e) any of the following procedures within the seven days before the clinical onset of retinal arterial occlusion:
(i) cardiac surgery or cardiac catheterisation;
(ii)catheterisation of or injection into the arteries supplying the retina;
(iii) orthopaedic surgery;
(iv) surgery involving the arteries supplying the retina; or
(v) surgery or medical procedures involving the pulmonary veins;
(f) atrial fibrillation (intermittent or sustained);
(g) cardiomyopathy;
…
"pack-years of cigarettes, or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack-year of cigarettes equals twenty tailor-made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor-made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack-year of tailor-made cigarettes equates to 7300 cigarettes, or 7.3 kilograms of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination.”
51. The previous SoP, Instrument No 33 of 2006, is also potentially relevant[12] and provides as follows:
[12] Repatriation Commission v Gorton (2001) 110 FCR 321
“Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting retinal vascular occlusive disease or death from retinal vascular occlusive disease with the circumstances of a person’s relevant service is:
(a)smoking at least 15 pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of retinal vascular occlusive disease, and where smoking has ceased, the clinical onset has occurred within 30 years of cessation; or
(b)having hypertension at the time of the clinical onset of retinal vascular occlusive disease; or
…
(d)having dyslipidaemia before the clinical onset of retinal vascular occlusive disease; or
…
(n)for retinal arterial occlusion only, having a potential source of cerebral embolus at the time of the clinical onset of retinal vascular occlusive disease; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
“a potential source of cerebral embolus” means the presence of at least one of the following:
…
(d) any of the following mitral or aortic valve disorders:
…
(vi) mitral valve prolapse; or
…”
52. In his written documentation in support of his applications, Mr Smith stated that he relied upon factors 6(b) and (n) of Instrument No 33 of 2006. However as I have indicated above, the material does not point to him suffering from hypertension and nor does it point to him having “a potential source of embolus” as defined in the SoP related to his service.
53. As to other potentially relevant factors from Instrument No 33 of 2006, as I have noted above, the material does not point to Mr Smith having dyslipidaemia related to his service as required by factor 6(d), and in relation to factor 6(a), the condition did not have its onset within 30 years of Mr Smith ceasing smoking.
54. Turning to the current SoP, for the same reasons, the material does not point to factors 6(a), (b), (d) or (m).
55. Even assuming therefore that a hypothesis had been raised linking this condition with Mr Smith’s service, I do not consider that the material points to the existence of any of the relevant factors.
56. Accordingly Mr Smith’s claim in relation to retinal vascular disease must also fail.
Congestive cardiac failure and left heart failure
57. Based on the medical records produced by Dr McLennan and the material in the T documents, I am satisfied that Mr Smith suffers or has suffered from left ventricular failure and congestive cardiac failure and has also had a mitral valve replacement. Each of these conditions may be secondary to Mr Smith’s other heart conditions, in which case they are addressed by my reasoning set out above. If not, Mr Smith has not put forward any hypothesis linking them to his service and nor is there any SoP in existence relating to either condition. To the extent they are not addressed in the context of the other conditions described above, the claim for each condition therefore fails for lack of a hypothesis at step 1 of the Deledio test.
Generalised anxiety disorder
58. As I have noted above, there is also material before me directed to the question of whether Mr Smith suffers from an anxiety disorder related to his service. That material was gathered in the context of exploring whether Mr Smith satisfied a factor in the hypertension SoP, and therefore satisfied factor 5(a) in the carotid arterial disease SoP. However notwithstanding my conclusion that Mr Smith does not suffer from hypertension, it is appropriate for me to consider whether he suffers from an anxiety disorder and, if so, whether this is war-caused[13].
[13] Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47]
59. Following the first hearing, at which this issue arose, a report was obtained from a psychiatrist, Dr Marty Ewer, directed to this question and Dr Ewer also gave oral evidence at the hearing. In his report dated 9 July 2010[14], Dr Ewer expressed the view that Mr Smith fulfils the diagnostic criteria for a generalised anxiety disorder. I accept that evidence and am accordingly satisfied that Mr Smith does suffer from that condition, and that his condition also meets the description of “generalised anxiety disorder” contained in the applicable SoP (discussed in more detail below).
[14] Exhibit 5
60. As Mr Smith also gave evidence in relation to a number of stressful events which occurred during his service, I am also satisfied that the material points to a hypothesis connecting this condition with Mr Smith’s service. The next question therefore is whether the hypothesis fits the SoP.
61. The applicable SoP is Instrument No 101 of 2007 in relation to anxiety disorder, which relevantly provides as follows:
“Factors that must be related to service
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service is:
(a) for generalised anxiety disorder or anxiety disorder not otherwise specified only:
…
(ii) experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or
…
(v) experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or
…
Other definitions
9. For the purposes of this Statement of Principles:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
"a category 2 stressor" means one or more of the following negative life events, the effects of which are chronic in nature and cause the person to feel on-going distress, concern or worry:
(a) being socially isolated and unable to maintain friendships or family relationships, due to physical location, language barriers, disability, or medical or psychiatric illness;
(b) experiencing a problem with a long-term relationship including: the break-up of a close personal relationship, the need for marital or relationship counselling, marital separation, or divorce;
(c) having concerns in the work or school environment including: on-going disharmony with fellow work or school colleagues, perceived lack of social support within the work or school environment, perceived lack of control over tasks performed and stressful workloads, or experiencing bullying in the workplace or school environment;
(d) experiencing serious legal issues including: being detained or held in custody, on-going involvement with the police concerning violations of the law, or court appearances associated with personal legal problems;
(e) having severe financial hardship including: loss of employment, long periods of unemployment, foreclosure on a property, or bankruptcy;
(f) having a family member or significant other experience a major deterioration in their health; or
(g) being a full-time caregiver to a family member or significant other with a severe physical, mental or developmental disability;”
62. As to the stressors Mr Smith experienced during his service, Dr Ewer recorded in his report that Mr Smith told him about three experiences as follows:
“1. Mr Smith told me that on one occasion he was travelling in the back of an open truck when he and the other men in the truck were fired upon by Japanese soldiers approximately a hundred metres away. Mr Smith said the soldiers fired at him with automatic weapons. He was intensely frightened and he threw himself on the tray of the truck.
2. Mr Smith told me he was often anxious and worried being in close proximity with Japanese prisoners-of-war. On occasions the prisoners were found to have weapons such as knives. On one occasion Mr Smith located a Japanese soldier with a knife. He felt anxious and frightened.
3. Mr Smith was very distressed and anxious when he went into the hospital and saw a number of badly wounded and bandaged soldiers.”[15]
[15] Exhibit 5, p2
63. In his oral evidence, Mr Smith confirmed the occurrence of each of these events and said the most severe event in terms of its effect upon him was when he was shot at. When asked how many times he had been shot at, Mr Smith said this occurred three times. He conceded he had only mentioned one occasion to Dr Ewer, but said he had not been feeling his best when he saw Dr Ewer.
64. Mr Smith said in his evidence that when the event he told Dr Ewer about occurred he was living in Rabaul and at the time of the incident he was in a jeep with two other men. He said he was driving when they were fired upon and the windscreen of the jeep was broken. He said the firing came from the right hand side up on a hill approximately 100 metres away. He said he took shelter under the jeep and once the firing had stopped, he got back into the jeep and resumed his journey. As to whether this incident was reported, Mr Smith said he thought not, although the broken windscreen had probably been reported.
65. Mr Smith has also referred to this event and the circumstances surrounding it in his previous correspondence with the Department. In a letter dated 5 March 1984 Mr Smith stated:
“At the time there were quite a lot of Japanese being rounded up and brought in, a lot of them not even knowing the war was presumably over.
On several occasions I was advised by patrols not to proceed to my destination on account of enemy activity in that area, the risk was always there, being fired upon twice in one week.”[16]
[16] T13/58
66. In a letter of 19 March 1984, Mr Smith also stated as follows:
“In approximate period 14/9/45 to 23/9/45, while in my own Jeep, proceeding to outlying units, a distance of probably 18 miles on n/w side of Lae, for the purpose of Vehicle Inspections, I was fired on by Japanese, either they being unaware of war ending or not accepting the fact, one shot being fired which missed me by inches breaking windscreen of vehicle. I would say that only the fact that I was in a moving vehicle saved me.
The other occasion in that week was while being told directions to destination by local New Guinea natives, rifle fire of at least three shots took place, definitely in our direction and nobody hanging around to wait for more. It was about a week later that four Japanese were brought in from that area.
I am unable to remember or find names of units to whom I was going. Forms were filled out for units and vehicles, but no records were kept by me, not thinking that perhaps they would be needed later.”[17]
[17] T14/60
67. The other evidence relevant to this issue is a Writeway Research Service Pty Ltd report prepared by Major Ian Hawke dated 1 October 2010[18]. This report was prepared in response to Mr Smith’s account to Dr Ewer of the three stressors referred to above, as well as the contents of two letters written by Mr Smith dated 5 March 1984[19] and 19 March 1984[20] respectively.
[18] Exhibit 7
[19] T13
[20] T14
68. In his report, Major Hawke has indicated that despite an extensive search of official documents, no record of the three incidents described by Mr Smith, or any similar incidents, was located. Major Hawke states:
“… During the period under review (24 Aug 1945 until May 1946) the various Army units and headquarters in New Guinea and New Britain were focused on repatriating soldiers back to Australia for discharge after wars end. …
The Veteran indicated in March 1984 that the episodes of being fired upon took place in New Guinea in September 1945, but as already stated no evidence of such events were found in the relevant unit war diaries spanning the period under review. That said entries contained in the Headquarters 8th Military District (HQ 8 MD) for the month of December 1945 when the headquarters was located at Rabaul makes reference to Japanese soldiers still at large. The entry for 9 Dec 1945 includes the statement “received information of possible stray Japanese still in the Buin area”. The entry for 24 Dec 1945 mentions the issue of copies of a “direction signed by Gen Imamura instructing Japanese stragglers in the BSIP area to give themselves up”. It is noted that the Veteran did not arrive at Rabaul until 11 Feb 1946 some 6 weeks after the latter direction. The researcher did not locate any reports of attacks by Japanese on Australian soldiers at either Lae or Rabaul or in the surrounding areas during the period that the veteran served in these two areas.”
69. In relation to Mr Smith’s account of an encounter with a Japanese prisoner-of-war armed with a knife, Major Hawke states as follows:
“According to the Veteran’s correspondence … his encounter with a Japanese PoW armed with a knife took place in Dec 1945, which places the incident as having taken place while he was serving with the Lae Area Wksps AEME. No such incidents are mentioned in the unit war diaries of what would have been considered a serious security incident.”
70. In relation to Mr Smith’s claim of having seen badly wounded and bandaged soldiers, Major Hawke stated as follows:
“The Veteran’s correspondence … indicated that it was during his period of hospitalisation at 113 AUST General Hospital (113AGH) in NSW in July 1943 suffering from pleurisy where he observed wounded and bandaged soldiers, and he had found the experience distressing. His AF-B103 Service and Casualty Form confirms that CFN L.K. Smith was an inpatient at 113 AGH from 21 July 1943 until 13 Aug 1943. Sick, injured and wounded soldiers were not evacuated from overseas operational areas to Australia until their medical condition had been sufficiently stabilized before repatriation to the mainland. Surgical patients in hospital wards would have had their wounds dressed or covered with bandages and made as presentable as possible given the hospital was frequented by visitors and next of kin. Although the Veteran would have been admitted to a general ward he certainly would have had the opportunity of mixing with recovering surgical patients in the patients dining hall or in the canteen and recreational areas.”
71. Returning to the terms of the SoP, this requires Mr Smith to have suffered from a category 1A or category 1B stressor within the five years before the clinical onset of his anxiety disorder, or to have experienced a category 2 stressor within the one year before the clinical onset of his anxiety disorder.
72. In relation to the date of clinical onset of Mr Smith’s generalised anxiety disorder, Dr Ewer stated that this “was probably either during World War II or within a few months of the war ending” and there is nothing before me which contradicts that evidence.
73. The remaining issue therefore is whether Mr Smith experienced a relevant stressor during his service.
74. As Mr Crowe conceded, if I accept that the material points to Mr Smith being shot at whilst he was in an open vehicle, this would clearly constitute a “life threatening event” and therefore amount to a category 1A stressor.
75. I accept Mr Crowe’s contention that there are some significant inconsistencies between the accounts Mr Smith has provided of the relevant stressors. For example, when Mr Smith saw Dr Ewer he referred to one instance of being shot at, which he said occurred when he was at Rabaul. However he referred in his oral evidence to having been shot at three times and in his 1984 correspondence to being shot at twice. In his 1984 correspondence he also referred to an instance of being shot at while he was in a jeep and the windscreen was broken and said this occurred at Lae and that the vehicle had kept moving. However when he described a very similar incident to Dr Ewer he said that he “threw himself on the tray of the truck”, and in his oral evidence be appeared to indicate that he was in Rabaul when this event occurred, and said he had taken shelter under the jeep.
76. Whilst the details Mr Smith has provided are inconsistent however, I also note that Mr Smith is now elderly and is attempting to recall events which, if they did occur, occurred more than sixty years ago. On the basis of the accounts he has given, I consider that Mr Smith has a recollection of being shot at by Japanese soldiers when he was in New Guinea, whilst he was travelling in a jeep. Further I note that while there is no account of this event in the official records, the occurrence of such an event is not inconsistent with the official records, which note that there were still some Japanese soldiers at large whilst Mr Smith was in New Guinea.
77. This being a case relating to operational service, the question for me pursuant to the third step outlined in Deledio is whether the hypothesis advanced fits the “template” found in the SoP, in the sense that the material points to the existence of at least one of the necessary factors specified in the SoP. The relevant hypothesis as I understand it is that on one or more occasions, Mr Smith was shot at whilst he was on operational service in New Guinea, that this constituted a “life threatening event” and therefore a category 1A stressor within the meaning of the SoP, which gave rise to his generalised anxiety disorder, which had its onset within the five years following the relevant event/s.
78. Having regard to the material before me, I have come to the conclusion that Mr Smith’s hypothesis does fit the template of the SoP, as there is material pointing to him having been shot at during his service, this clearly amounts to a “life threatening event” and his generalised anxiety disorder appears to have had its onset within five years of at least one instance of him being shot at, which appears to have occurred in approximately September 1945. The fact that there is no report of such an incident in the official records does not detract from my satisfaction that the material, in particular Mr Smith’s evidence, “points to” such an occurrence having taken place.
79. Notwithstanding the inconsistencies referred to above, I am also not satisfied beyond reasonable doubt that Mr Smith’s generalised anxiety disorder was not war-caused. On the basis of his evidence, I am satisfied that Mr Smith has a recollection of being shot at by Japanese soldiers whilst he was in a jeep during his service in New Guinea. On the basis of the evidence of Dr Ewer, I am also satisfied that the onset of Mr Smith’s generalised anxiety disorder occurred either during his service or shortly after it concluded, and that the condition is likely to have been related to his service. It therefore follows that Mr Smith’s generalised anxiety disorder must be considered to be war-caused.
conclusion
80. For the reasons given above I have concluded that Mr Smith’s conditions of carotid arterial disease, ischaemic heart disease, retinal vascular occlusive disease, atrial fibrillation, congestive cardiac failure and left heart failure are not war-caused. However I have concluded that his condition of generalised anxiety disorder is war-caused. I have accordingly decided to vary the decision under review so as to reflect that conclusion.
81. I have also decided to allow the parties an opportunity to provide submissions as to the date from which any pension payable as a result of this decision should take effect. However in the absence of any such submissions, I consider that the date of effect should be 1 March 2008, for the reasons provided by the respondent at page 2 of the T documents.
decision
82. The Tribunal:
(a) varies the decision under review so as to provide that Mr Smith suffers from the condition of generalised anxiety disorder and that condition is war-caused;
(b) otherwise affirms the decision under review;
(c) remits the matter to the respondent for assessment of Mr Smith’s entitlement to pension in accordance with these reasons for decision; and
(d) reserves liberty to the parties to apply, within 14 days after the publication of this decision, in relation to the date of effect from which any pension payable as a result of this decision should take effect, and in the absence of any such application, directs that the date of effect will be 1 March 2008.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ..........J Coulthard......................................
AssociateDates of Hearing 30 June 2010 & 20 January 2011
Date of Decision 31 August 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr A Crowe (DVA)
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