Stewart and Repatriation Commission
[2003] AATA 220
•6 March 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 220
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1547
VETERANS' AFFAIRS DIVISION
Re: THOMAS STEWART
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 6 March 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS' AFFAIRS – application for extreme disablement adjustment – carotid artery disease – query war‑caused – Statement of Principles Instrument Nº 347 of 1995 concerning smoking and carotid disease
Veterans' Entitlements Act 1986 ss.7, 9, 120B, 124(4)
Repatriation Commission v Keenan (1989) 19 ALD 509
REASONS FOR DECISION
6 March 2003 Miss E.A. Shanahan, Member
1. This is an application for a review of a decision of a delegate of the Repatriation Commission (the respondent) made on 24 January 2001, affirmed by the Veterans’ Review Board (VRB) on 10 September 2001, and that found the applicant’s carotid artery disease was not war‑caused in accordance with s.9 of the Veterans' Entitlements Act 1986 (the Act).
2. The applicant was represented by Mr D. De Marchi, solicitor, and the respondent by Mr G. Purcell, of counsel. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents). The applicant tendered a report by Professor K. Myers, consultant surgeon, dated 28 March 2002 (exhibit A1); a Lifestyle Questionnaire dated 3 July 2002 (exhibit A2); and a statement by the applicant dated 19 November 2002 (exhibit A3). Mr Purcell tendered a report by Dr P. Dumbrell, surgeon, dated 7 June 1999 (exhibit R1); the entire clinical history from The Royal Melbourne Hospital, received by the Tribunal on 31 July 2002 (exhibit R2); a report by Dr W. Stone, rehabilitation and occupational physician, dated 23 June 1997 (exhibit R3); the clinical notes of Dr D. Hart, respiratory physician, dated 7 October 1996 (exhibit R4); clinical notes of Dr A. Green, local medical officer, received by the Tribunal on 28 February 2002 (exhibit R5); a report by Dr K. Byrne, clinical psychologist, dated 18 March 1997 (exhibit R6), a Department of Veterans' Affairs claim form dated 8 September 1995 (exhibit R7); and the clinical notes from the Heidelberg Repatriation Hospital undated and a report by Dr P. Davies, physician, (exhibit R8). The Tribunal also had access to the transcript of a hearing before the Administrative Appeals Tribunal on 16 April 1998, along with the combined impairment assessment, prepared by Mr F. Morgan, acting senior medical officer (appeals), lung function tests performed by Associate Professor I. Irving of The Royal Melbourne Hospital, and an audiology report by Mr S. Ho dated 26 March 2002.
3. Both parties accepted that the applicant has carotid artery disease dating from 1997. The question before the Tribunal was whether or not the applicant’s carotid artery disease was contributed to by cigarette smoking and whether the cigarette smoking was related in any way to his war service.
BACKGROUND TO THE APPLICATION
4. The applicant has been in receipt of a Department of Veterans' Affairs pension at 100 per cent of the general rate for some years. There have been several claims in the past, some of which have been successful and resulted in payment of 100 per cent of the general rate. There have been previous appeals to the Commonwealth Administrative Appeals Tribunal. On 18 December 2000, the applicant lodged a claim to have his carotid arterial disease accepted as war‑caused. On 24 January 2001, a delegate of the respondent refused the claim and continued the disability pension at 100 per cent of the general rate. On 26 February 2001, the applicant appealed to the Veterans’ Review Board (the VRB) which, on 10 September 2001, affirmed the decision under review. The applicant then appealed to the Administrative Appeals Tribunal on 3 December 2001.
5. The applicant was born on 15 June 1923 and served in the Australian Army (the army) from 19 December 1941 to 24 June 1946. The applicant’s war service was within Australia, predominantly in Western Australia, and thus his service constitutes eligible service. The applicant has multiple accepted service‑related disabilities. As the applicant does not have operational service, the relevant standard of proof is that of reasonable satisfaction (subsection 120(4) of the Veterans' Entitlements Act 1986 (the Act)) or, in equivalent terms, on the balance of probabilities. As the application was lodged post‑1994, the Statement of Principles (SoP), referred to in s.120B, is required to be filled. The parties had agreed that the relevant SoP was Instrument Nº 347 of 1995 relating to carotid arterial disease.
6. The applicant’s smoking history, as reported by various medical practitioners, varied greatly. This will be referred to later in the reasons for decision.
7. The applicant had joined the army on 19 December 1941, at age 18, and was demobilised on 24 June 1946. He had not smoked cigarettes prior to enlistment.
8. In a previous hearing before the Administrative Appeals Tribunal (dated 1 June 1998) for a review of a decision rejecting knee and back complaints as war‑caused, the Tribunal did so on the basis of conflicting evidence by the applicant and the lack of documentation of any injury during service.
9. In 1999, the applicant underwent bilateral carotid endarterectomy for, what The Royal Melbourne Hospital vascular services described asymptomatic carotid artery stenosis. The deciding factor in proceeding to surgery appears to be the applicant’s fear of a stroke. It is noted that the carotid artery stenosis had reached the level where surgery was indicated. The applicant had been reviewed regularly over a period of years and he submitted to regular doppler studies of carotid artery blood flow.
EVIDENCE BEFORE THE TRIBUNAL
10. The applicant gave evidence in person and throughout his evidence maintained that he had started smoking on 15 June 1944, when he turned 21. His father had advised him not to smoke at an earlier age and he accepted this advice. While his commencement of smoking appears to the Tribunal to be in the form of a pledge to his father, which was common in the 1940s and 1950s, he claimed he started smoking because of boredom and peer pressure. Under cross‑examination, the applicant admitted that he did not understand the term peer pressure. The applicant agreed that all claim forms signed by him had been filled out by others (unknown).
11. The applicant claimed he had enlisted on 15 June 1941 but the army records show the enlistment date to have been 19 December 1941. The 15th of June, 1941 was, in fact, the applicant’s 18th birthday. All army service was within Australia, mainly in Western Australia, where he was an aeroplane spotter. Throughout his evidence, the applicant maintained that he smoked 5 to 6 cigarettes a day, from 1945 until 1997, and denied that he had advised by any treating doctors or expert medical witnesses of a smoking history which varied from 3 cigarettes per day to 20 cigarettes per day over a period of 53 years.
12. The applicant agreed in examination‑in‑chief that he had been fearful of raids by the Japanese while he was stationed in Western Australia, but could not remember when or where these anticipated raids were located. The applicant gave evidence that shortness of breath on exertion limited him to walking 30 metres.
13. Under cross‑examination, the applicant agreed his memory was subject to lapses and that he could not remember what had happened 50 years ago at all times. He denied he had reduced his smoking in the 1980s to 3 to 5 cigarettes per day because he was suffering sinusitis and migraine, and he also denied that he had ever smoked 10 to 20 cigarettes per day as reported by various medical practitioners. The applicant did not recall filling out the various claim forms or smoking questionnaires.
SMOKING HISTORY
14. The T documents and exhibits contained numerous medical reports that refer to the applicant’s smoking history. In 1994, the applicant had undergone a left total knee replacement at the Repatriation General Hospital. The notes of this admission state that the applicant described himself as an occasional smoker of up to 10 cigarettes per day. On 1 April 1996, the applicant reported to Dr Davies (exhibit R8), that he smoked 10 cigarettes per day. Dr Hart, who examined the applicant on 7 October 1996, obtained a history that the applicant started smoking 12 months after his discharge from the army. Dr Byrne, in his report of 18 April 1997, recorded that the applicant had started smoking in the army and thereafter smoked 2 to 3 packets of cigarettes per week and in 1997 he was still smoking 2 packets of cigarettes per week.
15. On 15 April 1997, when the applicant underwent lung function testing, he advised the technician that he smoked 10 per day and had done so for more than 45 years. Dr Stone saw the applicant on 23 June 1997 and obtained a history that the applicant had begun smoking after demobilisation from the Armed Forces and had stopped two months previously. Dr Drumbrell, who saw the applicant on 7 June 1999, obtained a history that the applicant started smoking in 1947. The applicant told Associate Professor Myers on 28 March 2002 that he had smoked 5 to 6 cigarettes per day from 1994 and ceased in 1997. The applicant in his statement of 19 November 2002 (exhibit A3) stated that he had commenced smoking when he turned 21 and that he smoked 6 cigarettes per day until 1997. During the 1980s, he had reduced his smoking to 3 to 5 per day when he was suffering from migraine and sinusitis. Dr R. Parkin, psychiatrist, who saw the applicant on 3 July 1995 to assess him psychiatrically, noted that the applicant was then smoking 80 cigarettes per week.
PSYCHOLOGICAL ASSESSMENT
16. Dr Parkin had seen the applicant on 3 July 1995 and found that the applicant had been an anxious individual before enlistment and remained so after demobilisation. Dr Parkin was unable to find any single incident which may have increased the applicant’s level of anxiety.
LUNG FUNCTION TESTING
17. The applicant has undergone repeat lung function testing since the mid‑1990s, all of which indicate normal function or mild to moderate chronic obstructive airways disease. For example, on 19 March 1996, The Royal Melbourne Hospital respiratory services reported his lung function as normal, on 22 March 2002, a further test indicated mild to moderate chronic obstructive airways disease. The treating general practitioner (Dr Green) (exhibit R5) has attributed the applicant’s dyspnea to chronic obstructive airways disease and ischaemic heart disease producing cardiac arrhythmias in the form of paroxysmal atrial tachycardia and atrial fibrillation.
THE RELEVANT LEGISLATION
18. Sections 9 and 120 of the Act, insofar as relevantly raised here, provide:
9(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;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
…
120(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.
19. Section 120B provides:
120B(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
20. The relevant factor applicable to the balance of probabilities is factor 1(d), which states:
1.Being of the view that on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that carotid arterial disease and death from carotid arterial disease can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans’ Entitlements Act 1986 (the Act), that the factors that must exist before it can be said that, on the balance of probabilities, carotid
arterial disease or death from carotid arterial disease is connected with the circumstances of that service, are:
…
(d)smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of carotid arterial disease and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
APPLICATION OF LEGISLATION TO THE FACTOR BEFORE THE TRIBUNAL
21. Section 120(4) requires that the Tribunal be satisfied on the basis of probabilities that the applicant’s claimed condition was or was not war‑caused in terms of s.9 of the Act.
22. The evidence before the Tribunal is conflicting to such a degree that, on the balance of probabilities, the Tribunal cannot conclude that the applicant’s carotid artery disease is war‑caused. The Tribunal notes that s.119 of the Act directs that the interpretation of the evidence should be beneficial to the veteran. However, the applicant’s evidence before the Tribunal appears to be in direct conflict with previous statements by the applicant’s treating doctors over many years, to such an extent that the Tribunal cannot accept the applicant’s evidence as reliable. In addition, the Tribunal does not find that the applicant’s commencement of smoking was, in any way, related to his service. The applicant had undertaken not to smoke until he was 21 years of age and commenced on the day he turned 21. There is no identifiable incident causing a level of anxiety which may have led him to smoke. It would appear that he had made a pledge to his parents to delay the onset of smoking until his 21st birthday. The decision of the Federal Court of Australia in Repatriation Commission v Keenan (1989) 19 ALD 509 is followed.
23. The Tribunal affirms the decision under review.
I certify that the twenty‑three [23] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 21 November 2002
Date of Decision: 6 March 2003
Solicitor for the applicant: Mr D. De Marchi, De Marchi & AssociatesCounsel for the respondent: Mr G. Purcell
Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs
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