Stien and Repatriation Commission

[2004] AATA 1411

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1411

ADMINISTRATIVE APPEALS TRIBUNAL

VETERANS’ APPEALS DIVISION            N2003/1238

Re: ALLEN STIEN

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member

Date:             24 December 2004

Place:            Sydney

Decision: The Tribunal varies the decision under review to provide that (i) ischaemic heart disease is a war-caused disease with effect from 7 August 2002;

(ii) the matter is remitted to the Respondent for reassessment of the   rate of pension payable taking into account incapacity from ischaemic                heart disease.  

. . . . . . . . . . . . . . . . . . . . . . . .

P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS

VETERANS’ AFFAIRS – entitlement – operational service - ischaemic heart disease – whether war-caused – whether raised hypothesis meets the template in the SoP – decision varied.

Veterans’ Entitlements Act 1986 ss. 120, 120A, 196B

Repatriation Medical Authority Statements of Principles:

-     Instrument No. 53 of 2003 concerning Ischaemic Heart Disease as amended by Instrument No. 9 of 2004.

-   Instrument No. 38 of 1999 concerning Ischaemic Heart Disease

Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Hill (2003) 69 ALD 581
Lees v Repatriation Commission (2002) 74 ALD 68
Re Robertson and Repatriation Commission (1998) 50 ALD 66
Repatriation Commission v Tuite (1993) 39 FCR 540

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1.      This is an application under the Veterans’ Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission on 22 January 2003 to refuse a claim for pension by Allen Stien in respect of incapacity from ischaemic heart disease. The Veterans’ Review Board affirmed the Commission’s decision on 25 July 2003.

2. At the hearing Ms J Pollock, from the Legal Aid Commission, represented Mr Stien and the Commission was represented by Mr M Huthnance from the Department of Veterans’ Affairs (the Department). The applicant gave evidence. Evidence was given concurrently by Dr R Butler, consultant physician, who was called by the applicant and by Professor M O’Rourke, cardiologist, called by the respondent. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and the exhibits tendered during the hearing.

background

3.      Mr Stien, who is 78, served in the Australian Army from 10 May 1944 to 25 July 1947, which is a period of operational service. He made a claim for disability pension in respect of carotid arterial disease on 7 November 2002, stating that the condition was caused, contributed to or aggravated by smoking and drinking habits during service (T6).  He completed a smoking questionnaire. He stated that he began smoking cigarettes on a regular basis shortly after he joined the Army in 1944. He smoked his weekly ration of 40 - 50 cigarettes and two ounces of tobacco. After discharge in 1947, his consumption increased to around 40 cigarettes a day. He gave up in the early 1950s on medical advice concerning his asthma. (T5)

4.      The Commission was of the view that the diagnosis for Mr Stien’s condition was carotid arterial disease and ischaemic heart disease. The applicant’s claim was denied because the Commission concluded that neither condition was related to his operational service. On the second day of hearing, the applicant formally withdrew his application for review in respect of war-caused incapacity from carotid artery disease.

5.      Mr Stien’s claim for pension in respect of ischaemic heart disease related to his operational service.  Accordingly the standard of proof in respect of causation of a war-caused disease is that prescribed by s.120(1) of the Act. The tribunal will determine, pursuant to s.120(1), that the applicant’s ischaemic heart disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The tribunal will be so satisfied if it is of the view that the material before it does not raise a reasonable hypothesis connecting that condition with the circumstances of his service: s.120(3).  Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principle (SoP) issued by the Repatriation Medical Authority (RMA). The tribunal will refer to the relevant SoP in force at the time of decision and, if necessary by reference to SoPs in force on 22 January 2003, the date of the Commission’s decision.

6.      In opening, the applicant’s representative, Ms J Pollock from the Legal Aid Commission, said the applicant’s case was that the smoking history has contributed to his ischaemic heart disease and the evidence of Dr R Butler, consultant physician, will establish clinical onset of that disease from 1967. Dr Butler referred to SoP 53 of 2003 concerning Ischaemic Heart Disease and in his opinion, Mr Stien satisfied factor 5(e)(ii) in that SoP. Thus there was an hypothesis raised by the material connecting the ischaemic heart disease with the applicant’s war service.

evidence

7.      Mr Stien grew up in Sydney and was eighteen at the time of his enlistment. His training extended from May 1944 to approximately August 1945, when he was posted to Morotai for six months. He served eighteen months in the occupational forces in Japan from February 1946 to July 1947. Mr Stien said he did not see any action during his period of service.

8.      Prior to his enlistment, Mr Stien did not smoke. In explaining why he started to smoke during his training he referred to being eighteen and living away from home and parental control, which he said was a “big factor why young fellas started smoking”. He said the great majority of his colleagues were smokers and it was considered the thing to do and it also helped him cope with the boredom. He would often drink and smoke at the canteen in the camp. Not having experienced any action during service, Mr Stien said in cross examination that stress did not play a part in his smoking.

9.      While posted to Cowra, Mr Stien was injured in a training exercise and he dislocated both shoulders.  His left shoulder continued to trouble him in the years after his discharge. He decided to apply for pension benefits and in connection therewith he was examined by Dr Gale on 27 January 1970. Mr Stien told the doctor about several complaints that were recorded in the medical history sheet (T4).  Dr Gale noted that the applicant “had a ‘coronary thrombosis‘ in 1967”, that he went to Grenfell Hospital for a few days and was off work for a week.  Further it was noted that the applicant had “some dyspnoea of effort. No pain.”  Mr Stien said he had chest pains at the time of this episode in 1967 and was given angina tablets. His recollection was that he was absent from work for a couple of weeks. He said he always kept the angina tablets in his car and would renew the prescription as required. During the 1970s and 1980s he would take the tablets only when he had chest pain, which he usually experienced on exertion while working as a forestry officer in the field. He did not require regular check-ups for his symptoms. He rarely needed the tablets when working in the office, though as he aged, he found stress affected him more.

10.     The applicant’s GP Dr L Varejka referred him to Dr D Amos, cardiologist and general physician, in June 2000 with regard to his chest pain and dyspnoea. Dr Amos noted (exhibit R3) that Mr Stien had been suffering from exertional angina over the last three weeks. “His past history is unremarkable except for mild childhood asthma. … The symptoms are quite typical of angina …”. A stress test taken later was found to be reasonable and there was no major prognostic disease. Dr Amos reviewed him on 29 November 2002 and noted that his angina was stable.

11.     Dr Butler interviewed Mr Stien by telephone on 28 January 2004 and prepared a report dated 12 February 2004 (exhibit A2). The history referred to Mr Stien’s suffering from asthma prior to enlistment but causing him little problem since he moved to the country after service. He commenced smoking after enlistment. He smoked 7 to 10 cigarettes a day during service, but increased his consumption depending on availability. After discharge his smoking grew to approximately 40 cigarettes daily until he stopped in 1954. In addition to the admission to Grenfell District Hospital in 1967, Dr Butler reported that the applicant became breathless and experienced chest tightness while walking uphill on a holiday in 1985. An assessment found he was suffering from angina and he was given sublingual glyceryl trinitrate as therapy. Dr Butler referred to the assessment by Dr Amos for angina in June 2000. Coronary angiography was performed during his assessment for carotid artery disease in 2002, and stenting of a coronary artery was undertaken in September 2003. Currently, the applicant suffers dyspnoea and some chest discomfort and feels there has been little change since the coronary artery stenting. Dr Butler expressed the opinion that there was a reasonable hypothesis that the clinical onset of Mr Stien’s myocardial ischaemia was in 1967 and can therefore be related to his service.

12.     Professor M O’Rourke, cardiologist, provided an opinion to the Department based on Dr Varejka’s clinical notes (exhibit R3) and the report of Dr Butler. Professor O’Rourke referred to the record of medical examination on 27 January 1970 (T4). He noted that in 1967 patients with coronary thrombosis were kept in hospital for weeks and off work for months and thus there was no support for the diagnosis. Professor O’Rourke noted that there was no mention by Dr Amos or Dr Varejka of previous myocardial infarction and ECG was normal. The coronary angiography had shown relatively minor coronary artery disease. In Professor O’Rourke’s opinion, the date of clinical onset of Mr Stien’s ischaemic heart disease was approximately 30 June 2000.

13.     Dr Butler and Professor O’Rourke gave oral evidence concurrently. Dr Butler said that if Mr Stien continued to experience chest pain after the episode in 1967 and had taken medication for it, in his opinion it was very likely that clinical onset of ischaemic heart disease occurred at that time. For Dr Butler, Mr Stien’s having to take angina tablets from time to time after that point would in his view suggest that his medical advisers then thought that he had coronary heart disease. Professor O’Rourke noted the report of the medical examination in January 1970 recorded the ‘coronary thrombosis’. He thought that Dr Gale’s notes did not substantiate a coronary thrombosis, and he referred to the doctor’s notes that there was “no pain” at the time of admission to the hospital in Grenfell. Professor O’Rourke maintained that a patient would not have been discharged after a week if he had coronary thrombosis. Moreover he thought that Dr Gale’s notes in 1970 did not support a finding of continued angina at that point because there was no reference to angina. Further he thought that the reference to “some dyspnoea of effort” suggested there was no angina. In Dr Butler’s view, however, the reference to some dyspnoea of effort was a reference to Mr Stien’s condition in January 1970 and not in 1967 at the time of the coronary thrombosis. Against that, however, Dr Butler noted that when Mr Stien referred to his chest pain on climbing Ayres Rock in 1985, he did not also refer to any earlier episode of chest pain in 1967.

14.     Professor O’Rourke observed that the time of clinical onset was reliant on Mr Stien’s evidence, and he emphasised that onset prior to 1970 was not supported by the documentation. Asked to accept Mr Stien’s evidence that he experienced chest pain after the episode in 1967 and took angina tablets when necessary, Professor O’Rourke still would not alter his view because contemporary documents did not support clinical onset at that point. Professor O’Rourke also believed it was significant that when the coronary angiogram was undertaken in 2002, it was not thought to provide any treatment on the basis of the current symptoms. When the angioplasty was required in the following year, he thought there had been a quick progression which was inconsistent with having coronary disease from the distant past.

consideration of issues

15.     In reviewing the decision in question, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:

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). …

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.     At step 1, the tribunal must take into account all the material before it.  The tribunal finds that Mr Stien gave his evidence in a frank and candid manner, and he attempted to recall events of long ago, some occurring almost sixty years back.  Although I am mindful that Professor O’Rourke doubts whether the ischaemic heart disease is related to the applicant’s war service, I agree with Ms Pollock that the material points to a hypothesis connecting his condition with the circumstances of his service.

17.     As for step 2, the parties do not dispute that the relevant SoP is Instrument No. 53 of 2003 concerning Ischaemic Heart Disease, as amended by SoP 9 of 2004.  The tribunal must apply the SoP in force at the time of its decision. However, the  applicant retains the accrued right to rely on the SoP in force when the Commission determined the matter, SoP 38 of 1999, should that be more beneficial to him, but there was nothing before me to suggest that is the case (see Repatriation Commission v Gorton (2001) 110 FCR 321). Under the SoP, one of the factors set out therein must be related to the veteran's service for the condition to be regarded as war‑caused.

18.     As to step 3, Ms Pollock submitted that the hypothesis is consistent with factor 5(e)(ii) of the template in the SoP 53 of 2003 which reads:

The factors 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 are:

(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease, …

(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 cessation; or

The following definition is relevant:

“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 7 300 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 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;

19.     The tribunal must form an opinion as to the reasonableness of the hypothesis.  Ms Pollock submitted that there is material that supports the hypothesis. She noted that Mr Stien began smoking while he was in the Army camp and that he acquired his smoking habit during his Army service. Prior to then, smoking was frowned on at home by his parents. He took up smoking out of boredom and because cigarettes were readily available and cheap. There was also peer pressure. His smoking increased on discharge but he eventually managed to stop when he married in 1954. He smoked 40 cigarettes a day from 1947 onwards (T5). There was a report of a coronary thrombosis in 1967 and the applicant’s taking angina tablets when he suffered chest pain thereafter and replenishing his supply as needed. Dr Butler’s opinion was as follows (exhibit A2):

Mr Stien’s tobacco consumption was about 15 pack years so that the applicability of this Factor depends on the time of the clinical onset of his ischaemic heart disease. There can be little doubt that the 1985 episode was ischaemic heart disease. Without evidence to the contrary it would have to be accepted that a label of ‘coronary thrombosis’ on the episode in 1967 has to be accepted as ischaemic heart disease. As this is less than 15 years from cessation of smoking there would seem to be a definite link to the Service related smoking.

The claim may be made that at the time of coronary angiography in 2002 there was only relatively minor coronary artery disease. If Mr Stien indeed had sufficient coronary artery obstruction in 1967 to manifest myocardial ischaemia, much more severe disease might be expected 35 years later. On the other hand episodes of myocardial ischaemia without angiographically detectable coronary artery obstruction are not rare, and such an episode could have occurred in 1967, thereby accounting for the relatively minor disease evident in 2002. I believe that a reasonable hypothesis can be proposed that the clinical onset of Mr Stien’s myocardial ischaemia was in 1967 and can therefore be related to his Service. 

20.     It was significant in Dr Butler’s view that Mr Stien continued to experience chest and angina pain in the 1970s and 1980s. Professor O’Rourke disagreed with Dr Butler’s opinion that the clinical onset of the applicant’s ischaemic heart disease was in 1967. Professor O’Rourke said that such a determination depended on the reliability of the applicant’s evidence, which he doubted because of his inaccurate reporting of the degree of stenosis of one of his coronary arteries. The applicant’s evidence was inconsistent, in his opinion, with the treating doctors’ reports.

21.     Mr Huthnance submitted that the chest pain that the applicant suffered in 1967 and subsequently up to 2000 is more reasonably attributable to his asthma. He submitted that the clinical onset of the ischaemic heart disease was in June 2000 when the applicant was referred to Dr Amos for opinion regarding his chest pain and dyspnoea. In his submission there was no connection between the applicant’s smoking and his operational service.

22.    Although proof of facts is not an issue at step 3 of the tribunal’s decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis. Is the material before the tribunal consistent with the template in SoP 53 of 2003? In this regard the tribunal notes the following passage from the Full Court of the Federal Court’s judgment in Repatriation Commission v Hill (2003) 69 ALD 581:

… the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service.  In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.(at 597)

The tribunal considers that the evidence before it raises the reasonable hypothesis of Mr Stien’s smoking contributing to his ischaemic heart disease. Turning to the date of clinical onset of the condition, the tribunal notes that the applicant’s oral evidence and Dr Butler’s opinion raises the reasonable hypothesis that clinical onset occurred within the 15 year period referred to in Factor 5(e)(ii). Determining clinical onset of the disease in this manner conforms with the approach approved by the Full Federal Court in Lees v Repatriation Commission (2002) 74 ALD 68, which approved the following meaning given to the expression ‘clinical onset’ in Re Robertson and Repatriation Commission (1998) 50 ALD 668

… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present.(at 72)

The tribunal is of the view that a reasonable hypothesis within the meaning of s.120(3) of the Act has been raised that is consistent with the template in SoP 53 of 2003.

23.     So far as step 4 in Deledio’s case is concerned, the tribunal must be satisfied beyond reasonable doubt that the evidence demonstrates that the hypothesis cannot be sustained.  Neither party bears an onus of proof: s.120(6) of the Act. 

24.     Mr Stien’s evidence was that he did not smoke before finding himself in Army camp. He was a young man, living away from the parental control to which he had become accustomed, sharing camp life, its routine and boredom with many other young recruits, and exposed to peer pressure. He said the cigarette ration was always available. There was no material before the tribunal that conflicted with Mr Stien’s evidence that he took up smoking in these circumstances and because of the ready availability of cheap cigarettes, which at times were given freely through comfort fund parcels (T5-28). Nor is his account fanciful. The tribunal was mindful of the Federal Court’s decision in Repatriation Commission v Tuite (1993) 39 FCR 540 the facts of which bear some resemblance to Mr Stien’s situation. Both lived in a military camp and began to smoke as a way of dealing with the boredom of and confinement to camp life. The material that supports the finding that his smoking habit was acquired in the Army or contributed to by his period of operational service has not been disproved beyond reasonable doubt.

25.     Further, the tribunal is unable to find, beyond reasonable doubt, that Mr Stien’s account of the episode of coronary thrombosis in 1967 led to a week’s stay in hospital and a longer time off work, and his evidence about the symptoms of chest and angina pain and his taking angina tablets from that point on, are false. In summary, the tribunal is not satisfied that the facts necessary to sustain the hypothesis have been negatived beyond reasonable doubt. Therefore, the tribunal finds that the fourth step is satisfied and, in accordance with s.9 of the Act, that the veteran’s ischaemic hear disease was war-caused.

26.     The tribunal varies the decision under review to provide that ischaemic heart disease is a war-caused disease with effect from 7 August 2002.  The matter is remitted to the Commission for reassessment of the rate of pension payable taking into account incapacity from ischaemic heart disease.

I certify that the preceding 26 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member:

Signed:         

............................................................................

(Associate)

Date of Hearing  21 & 22 September 2004
Date of Decision  24 December 2004
Applicant’s Representative      Legal Aid Commission

Respondent’s Representative   Department of Veterans’ Affairs.