Smith and Repatriation Commission (Veterans' entitlements) - [2024] AATA 2724

Smith and Repatriation Commission (Veterans' entitlements) [2024] AATA 2724 (5 August 2024)
Division:VETERANS’ APPEALS DIVISION
2022/8720File Number(s):
Re:Ian Smith
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:5 August 2024
Place:Canberra

The decision under review is affirmed.
......................[SGD]..................................................
Mr S. Webb, Member
Catchwords
VETERANS’ ENTITLEMENTS – claim for disability pension – operational service – incapacity – kind of disease – idiopathic Parkinson’s Disease – clinical onset or clinical worsening – standard of proof – Statement of Principles – hypothesis of service causation – factors – exposure to pesticides – depressive disorder or generalised anxiety disorder – smoking – ‘regular smoking habit’ threshold – factual matters raised by the materials – requirement to consider the whole of the material – hypothesis not pointed to by raised facts – no ‘reasonable hypothesis’ – disease not service-caused – decision affirmed
Legislation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth) s 7, 9, 13, 14, 15, 21, 119, 120, 120A, 196B
Cases
Bull v Repatriation Commission [2001] FCA 1832
Collins v Repatriation Commission [2009] FCAFC 90
Dixon v Repatriation Commission [1999] FCA 582
Hill v Repatriation Commission [2005] FCAFC 23
Repatriation Commission v Deledio [1998] FCA 391
Repatriation Commission v Tuite [1993] FCA
Summers v Repatriation Commission [2015] FCAFC 36\
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
Mr S. Webb, Member
5 August 2024

Ian Smith served in the Royal Australian Navy (RAN). His service included a period of operational service in the Vietnam war. Mr Smith claimed a disability pension in respect of Parkinson’s Disease. The Repatriation Commission refused the claim on grounds the disease is not service-caused. Mr Smith applied for review of this decision by the Veterans’ Review Board (VRB). The VRB decided to affirm the decision Mr Smith’s Parkinson’s Disease is not service-caused. Mr Smith applied for review by this Tribunal.
In the course of the resulting proceedings, Mr Smith’s case has evolved. Advocates for Mr Smith suggested a number of hypotheses of causation in a serial manner.
Procedural facts
Mr Smith enlisted in the RAN on 29 July 1963. He was discharged on 28 July 1972.[1]
[1] T9, folio 65.
On 7 July 2017, Mr Smith lodged a compensation claim in respect of post-traumatic stress disorder (PTSD) and skin cancers.[2]
[2] T8.
On 8 February 2018, Dr Mary-Ellen O’Hare, a consultant psychiatrist, reported a diagnosis of PTSD following a collision between vessels at sea in 1964.[3] The doctor reported Mr Smith was diagnosed in 2011 with Parkinson’s Disease.[4]
[3] T10, folios 31-32.
[4] Ibid, folio 27.
On 12 February 2018, a delegate of the Military Rehabilitation and Compensation Commission decided to accept Mr Smith’s PTSD claim under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.[5]
[5] T11 and T12.
On 23 January 2020, Mr Smith lodged a claim for disability pension in respect of sensorineural hearing loss and skin cancers.[6]
[6] T13.

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] AATA 2724
Decision Date: 5 August 2024

CaseChat Overview and Summary

This matter concerned an application for review by Mr Smith of a decision by the Veterans’ Review Board to affirm the refusal of his claim for a disability pension in respect of Parkinson’s Disease. Mr Smith had served in the Royal Australian Navy between 1963 and 1972 and had previously had claims accepted for post-traumatic stress disorder and sensorineural hearing loss. The claim for Parkinson’s Disease was lodged in May 2020, and the delegate refused it on 3 May 2021. The Veterans’ Review Board affirmed this decision on 23 May 2022. The Tribunal was required to determine whether the material before it raised a reasonable hypothesis connecting Mr Smith’s Parkinson’s Disease with the circumstances of his operational service.

The Tribunal was required to consider the provisions of section 120 of the Veterans’ Entitlements Act 1986, which sets out the standard of proof for war-caused diseases. Specifically, the Tribunal had to be satisfied, beyond reasonable doubt, that there was no sufficient ground for determining that the disease was war-caused if the material before it did not raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran. Mr Smith’s advocates had initially suggested hypotheses relating to exposure to Agent Orange and post-traumatic stress disorder, but these were no longer pressed. The remaining hypothesis contended that a regular smoking habit, which commenced during his operational service and increased over time, was causally related to his Parkinson’s Disease.

The Tribunal found that there was scant material to support key elements of the smoking hypothesis, particularly the assertion that Mr Smith formed a regular smoking habit in or about March 1970 which was causally related to his operational service. This was further complicated by conflicting evidence regarding Mr Smith’s smoking history, with documentary evidence suggesting he never smoked, while other evidence adduced in these proceedings supported the hypothesis. Crucially, there was no contemporaneous evidence in his service or medical records to corroborate either version of his smoking history. Consequently, the Tribunal concluded that the material before it did not raise a reasonable hypothesis connecting Mr Smith’s Parkinson’s Disease with his operational service.

The decision to refuse Mr Smith’s disability claim in respect of Parkinson’s Disease was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the course of the resulting proceedings, Mr Smith’s case has evolved. Advocates for Mr Smith suggested a number of hypotheses of causation in a serial manner. Procedural facts Mr Smith enlisted in the RAN on 29 July 1963. He was discharged on 28 July 1972.[1][1] T9, folio 65. On 7 July 2017, Mr Smith lodged a compensation claim in respect of post-traumatic stress disorder (PTSD) and skin cancers.[2][2] T8. On 8 February 2018, Dr Mary-Ellen O’Hare, a consultant psychiatrist, reported a diagnosis of PTSD following a collision between vessels at sea in 1964.[3] The doctor reported Mr Smith was diagnosed in 2011 with Parkinson’s Disease.[4][3] T10, folios 31-32.[4] Ibid, folio 27. On 12 February 2018, a delegate of the Military Rehabilitation and Compensation Commission decided to accept Mr Smith’s PTSD claim under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988.[5] [5] T11 and T12. On 23 January 2020, Mr Smith lodged a claim for disability pension in respect of sensorineural hearing loss and skin cancers.[6][6] T13. On 18 March 2020, a delegate decided to accept Mr Smith’s claim in respect of sensorineural hearing loss and determined the rate of Mr Smith’s disability pension would be 30 percent of the General Rate from 23 October 2019.[7] [7] T14. Mr Smith lodged an unsigned claim for disability pension in respect of Parkinson’s Disease dated 14 May 2020.[8] The claim did not set out a connection between Mr Smith’s Parkinson’s Disease and the circumstances of his service.[8] T15. On 3 May 2021, a delegate decided to refuse the claim.[9][9] T20. On 6 July 2021, Mr Smith applied for review of this decision.[10] In the application, Mr Smith stated:I believe that the Parkinson’s Disease is sequela to my accepted PTSD and Exposure to Agent Orange (AO) wilst [sic] on Operation Service in Vietnam on HMAS Hobart…[11][10] T21.[11] Ibid, page 138. On 23 May 2022, the Veterans’ Review Board decided to affirm the decision to refuse Mr Smith’s claim in respect of Parkinson’s Disease.[12][12] T24. On 10 September 2022, Mr Smith applied for review of this decision by the Tribunal.Legislation Mr Smith’s claim is to be determined under s 13 of the Veterans’ Entitlements Act 1986 (VE Act). To the extent he has applied for an increase in the rate of pension, this is to be determined under s 15. The date of effect is to be determined under s 21. With regard to the threshold issue under s 13(1) having regard to the meaning of ‘eligible war service in s 7 and ‘war-caused injury’ and ‘war-caused disease’ in s 9, the standard of proof set out in s 120 is applicable:(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. (2) …(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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For these reasons, the decision to refuse Mr Smith’s disability claim must be affirmed.Decision Decision affirmed.

Ratio Decidendi

Legal Principle Established

Dr Sellbach confirmed the existence of clinically significant symptoms consistent with idiopathic Parkinson’s disease in 2013. I will proceed on that basis.Does the material point to a hypothesis connecting the disease with Mr Smith’s operational service? A number of hypotheses linking Mr Smith’s Parkinson’s Disease with his operational service have been suggested by Mr Smith’s lay advocates. These include exposure to Agent Orange during Mr Smith’s operational service, as a sequel to Post Traumatic Stress Disorder following the collision of HMAS Voyager and HMAS Melbourne and, most recently, a regular smoking habit which allegedly began during his operational service. Mr Smith’s present lay advocate, Mr John Horan, explained the hypotheses relating to Agent Orange and Post Traumatic Stress Disorder (or any other depressive or anxiety disorder) are no longer pressed and have been foregone. I have reviewed the available materials and I am satisfied Mr Horan’s concession is well made. There is insufficient material before the Tribunal to raise hypotheses connecting Mr Smith’s Parkinson’s Disease and his alleged exposure to Agent Orange or his PTSD (or any other kind of depressive or anxiety disorder) with the circumstances of his operational service. The hypothesis of connection for which Mr Smith presently contends runs along the following lines:(a)Mr Smith served on HMAS Hobart during the period of his operational service;(b)HMAS Hobart was deployed off the coast of South Vietnam, running ‘gun lines’ and engaging in shore bombardment for periods of up to one month, and attending various ports for resupply and rearmament;(c)Mr Smith was an electrician whose duties included:(i)maintaining the ICARA anti-submarine system;(ii)replenishing stores;(iii)moving armaments into the magazine; and(iv)night watches, ensuring that machinery was not overheating and assisting radar operators with electrical adjustments and screen displays;(d)night watches were stressful;(e)life on board was often boring and, to pass the time, Mr Smith would play cards and Tombola, and occasionally watch movies;(f)most of Mr Smith’s crewmates smoked – cigarette smoking was allowed in most areas of the vessel and cigarettes were cheaply and widely available;(g)consequently, after a while, Mr Smith formed a regular smoking habit, commencing with 5 cigarettes per day in or about March 1970 and increasing to 20 cigarettes per day;(h)Mr Smith ceased smoking in or about March 1988; and(i)he experienced the clinical onset of Parkinson’s Disease in the period from 2011 to 2013. There is scant material, including evidence given by Mr Smith, to support elements of this hypothesis. Most crucially, the hypothesis Mr Smith formed a regular smoking habit in or about March 1970 which was causally related to the circumstances of his operational service lacks supporting material, and it is posited despite a conflict in the evidence about Mr Smith’s smoking history. As will appear, on the one hand, there is documentary evidence over a period of years of Mr Smith stating he never smoked. On the other hand, Mr Smith gave and adduced evidence in these proceedings which supports the hypothesis. There is no contemporaneous evidence, one way or the other, in Mr Smith’s service and related medical records which are before the Tribunal.