Temple and Repatriation Commission - [2001] AATA 980

DECISION AND REASONS FOR DECISION [2001] AATA 980

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1342
VETERANS'     APPEALS       DIVISION
  Re:         JACK TEMPLE
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             30 November 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that carotid arterial disease and cerebrovascular accident suffered by the applicant are war-caused with effect from 28 July 1999.

(sgd) Graham Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - carotid arterial disease - cerebrovascular accident - whether war-caused - meaning of clinical onset
Veterans' Entitlements Act 1986 ss9, 120(1), 120(3), 120(4)
Meehan v Repatriation Commission [2001] FCA 597
Re McLeod-Dryden and Repatriation Commission (AAT 13386, 21 October 1998)
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Witten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

30 November 2001 G.D. Friedman, Member

This is an application by Jack Temple (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 5 September 2000. The VRB affirmed a decision of a delegate of the respondent dated 28 July 1999 to refuse a claim for disability pension for incapacity from cerebral ischaemia.
At the hearing of this matter on 19 October 2001 Mr D. De Marchi, Solicitor, represented the applicant and Mr G. Purcell of Counsel represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T107), together with five exhibits lodged by the applicant (Exhibits A1-A5) and three lodged by the respondent (Exhibits R1-R3).
BACKGROUND
The applicant was born on 7 December 1918. After leaving school he worked in a grocer's shop before joining a solicitor's office as a law clerk. On 31 October 1941 he joined the Australian Army and served in the infantry as a platoon sergeant in New Guinea and Bougainville. On 20 September 1946 he was discharged and took over a family member's furniture removal business, which he operated until his retirement in 1975. He married after his war service and he and his wife had four children, all of whom are married. His wife died in 1989.
While in the Army the applicant started smoking. He ceased in 1979. He also commenced drinking occasionally in the Army, but has been a non-drinker since 1945. The applicant has suffered from hypertension since 1985. In May 1999 he suffered a stroke which left him paralysed in the right side of his body. After treatment and surgery he made a good recovery.
On 12 July 1999 the applicant lodged an application with the respondent for disability pension for incapacity from stroke, carotid artery, later amended to cerebral ischaemia. On 28 July 1999 the respondent refused the application on the grounds that the condition was not war-caused. On 5 September 2000 the VRB affirmed the decision on the grounds that there was no evidence of the clinical onset of the applicant's coronary artery disease within 15 years of his cessation of smoking in 1979 and therefore the condition was not war-caused.
On 9 November 2000 the applicant sought review by the Tribunal of the decision of the VRB.
Following an application to the Tribunal for review of a decision by the respondent which refused to accept breathing problems as war-caused, on 5 June 2001 the Tribunal found that the applicant has asthmatic bronchitis which is a war-caused disease with effect from 10 March 1998, and fixed pension at 90% of the general rate from that date.
EVIDENCE
The applicant told the Tribunal that he has suffered from high blood pressure and chronic asthmatic bronchitis for many years and this has caused him to give up swimming and pennant bowls. He stated that before suffering the stroke in 1999 he was fairly active, could walk normally and felt that there was nothing wrong with him. The applicant said that although he made a good recovery he does not have much stamina and now has a slight speech impediment. He said that he can do basic housework and is able to use public transport and drive a motor car.
The applicant gave evidence that before his Army service he was a non-smoker and was an active sportsman. He said that soon after joining he commenced to smoke cigarettes and increased consumption to 20 cigarettes per day under stressful conditions in New Guinea. He stated that this figure eventually increased to 30 per day. The applicant said that he continued to smoke until 1979 when he ceased the habit.
Associate Professor Kenneth Myers, Consultant Surgeon, gave evidence to the Tribunal. He referred to his written report of 11 February 2001 in which he stated:
If one literally sticks to the definition of the clinical onset of disability as being the time at which symptoms from the condition first become manifest, then it is clear that there is a period in excess of 15 years between cessation of smoking and development of cerebrovascular insufficiency due to carotid artery disease.

He then stated:

The Statement of Principles place far too great a restriction on the obvious association between factors that are service related such as smoking and the subsequent development of his stroke as well as war-caused stress and the subsequent development of his hypertension. I would have little doubt that his time in the services were major factors in producing these problems.

Professor Myers told the Tribunal that atherosclerosis (degeneration of the arterial wall) had been developing for many years prior to the stroke, so that at the 15-year cut-off date substantial occlusion or narrowing of the arteries would have occurred. He said that in his opinion Statement of Principles (SoP) Nº 52 of 1999 would be satisfied because clinical onset of cerebrovascular accident occurred within 15 years of the cessation of smoking. In a report dated 30 July 2001 Professor Myers stated:
Accordingly if the Statement of Principle allows for both coronary artery disease and carotid artery disease to be accepted in its pre-clinical phase during the fifteen-year interval after a cessation of smoking then the stroke in this patient would most certainly be related to war service.

In a report dated 1 August 2001 Professor Myers stated:

The issue to be determined then from the Statement of Principles is what constitutes the clinical onset of the condition…There are many conditions that are manifest as signs rather than symptoms…I would have hoped that the Statement of Principles were designed to encompass the definition of a clinical entity to be as broad as possible. I would feel sure that the atherosclerosis would have been considerable, well within the fifteen years after stopping smoking in 1979.

CONSIDERATION OF THE ISSUES

The relevant SoP for carotid arterial disease is Instrument Nº 346 of 1995. Mr De Marchi, on behalf of the applicant, submitted that the applicant meets factor 1(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;

He said that in May 1999 the applicant's carotid artery showed a stenosis of 80% and that as at 1994 the applicant was suffering from carotid arterial disease as defined in SoP 346. Mr De Marchi referred to the evidence from Professor Myers and stated that, if the applicant had been tested within the 15-year period, stenosis or narrowing of the carotid artery would have been evident. He submitted that on this basis the Tribunal should be satisfied that the condition existed within the prescribed period.

The relevant SoP for cerebrovascular accident is Instrument Nº 52 of 1999. Mr De Marchi submitted that the applicant meets the following three factors:
. . .

5(c) suffering from panic disorder before the clinical onset of cerebrovascular accident

He said that the applicant has been suffering from a Post -Traumatic Stress Disorder (PTSD) with some panic components prior to the cerebrovascular accident, and he relied on the report dated 6 July 1998 from Dr Ian Parkin, Consultant Psychiatrist.

Factor 5(d) states:
an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of cerebrovascular accident

Mr De Marchi submitted that the applicant had been suffering from chronic asthmatic bronchitis for approximately 20 years and from 1990 has been unable to undertake more than a mildly strenuous activity.

Factor 5(k)(i) states, in relation to cerebral ischaemia:
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 cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation

Mr De Marchi relied on his submission for carotid arterial disease and the applicant's evidence about his smoking habit. He said that the evidence from Professor Myers supports the proposition that the applicant suffered from cerebral ischaemia because a narrowing of the carotid artery caused an interruption to the supply of blood.

Mr De Marchi submitted that there is sufficient material to satisfy the Tribunal that the claimed conditions were war-caused. He suggested that acceptance of either condition would entitle the applicant to an increase of pension to 100% of the general rate.
Mr Purcell, on behalf of the respondent, submitted that factor 5(d) of SoP Nº 346 is not met. He said that the clinical onset of carotid arterial disease was the date the symptoms became manifest, which in this case was the date of the stroke in May 1999. He cited Re McLeod-Dryden and Repatriation Commission (AAT 13386, 21 October 1998) and Re Robertson and Repatriation Commission (1998) 50 ALD 668 which were considered in Re Witten and Repatriation Commission (1998) 54 ALD 605. At p 608 the Tribunal stated:
. . . the Tribunal is satisfied that clinical onset "means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition." A disorder may not, in fact, be diagnosed during the relevant period . . . but, with the benefit of hindsight, and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period.
Mr Purcell referred to the statement by Professor Myers in his written report of 11 February 2001 which conceded that there is a period in excess of 15 years between cessation of smoking and development of cerebrovascular insufficiency due to carotid arterial disease.
In relation to cerebrovascular accident Mr Purcell said that there was a clear diagnosis of PTSD but no psychiatric evidence of panic disorder (factor 5(c)), merely a tendency to be emotional or to burst into tears easily. Regarding factor 5(d) Mr Purcell said that an inability to undertake more than a mildly strenuous level of physical activity means the presence of an incapacity which prevents any physical activity greater than 3 METS, where a MET is a unit of measurement of the level of physical exertion. He drew the Tribunal's attention to various medical reports, which assessed the applicant as symptomatic at 5-6 METS in 1989, and 3-4 METS in 1998, 1999 and 2000. In addition Mr Purcell said that the applicant had played golf occasionally before the stroke, and bowls before and after the stroke.
Mr Purcell submitted that factor 5(k)(i) was not met for the same reasons as for factor 5(d) of SoP 346.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Tribunal notes that there was no dispute between the parties that the applicant had rendered operational service. So s120 (1) and s120 (3) of the Act apply. The Tribunal must determine that the disease or condition was war-caused, unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis is laid down in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the applicant.
The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if an SoP is in force, the Tribunal must then form an 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. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail.
The fourth step requires the Tribunal to consider, under s120 (1) of the Act, whether it is satisfied beyond reasonable doubt that the disease was not war-caused, and at this stage the Tribunal is required to make findings on questions of fact.
In this case the Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120 (4), that there is a disease as claimed. There was no dispute between the parties on this point, and the Tribunal finds that the applicant suffered from carotid arterial disease and cerebrovascular accident. In respect of the first step the Tribunal finds after taking into account all relevant material, including medical reports, that a hypothesis has been raised connecting the conditions with the circumstances of the particular service rendered by the applicant.
In respect of the second step, there was no dispute between the parties. The Tribunal finds that SoP No. 346 of 1995 and SoP No. 52 of 1999 determined by the Repatriation Medical Authority under subsection 196B(2) or (11) of the Act were in force.
In respect of the third step, there was no dispute between the parties that the applicant ceased smoking in 1979. The Tribunal accepts the submission by Mr Purcell that the symptoms of carotid arterial disease were manifested in May 1999 when the applicant's stroke occurred. The Tribunal notes the evidence of Professor Myers stated in par 11 above that it is clear that there is a period in excess of 15 years between cessation of smoking and development of cerebrovascular insufficiency due to carotid artery disease. The Tribunal also accepts the evidence from Professor Myers that, with the benefit of hindsight, he was satisfied that atherosclerosis had been developing for many years prior to the clinical events, so that atherosclerosis would have been considerable and would have been present within the fifteen years after the applicant stopping smoking in 1979. Substantial occlusion or narrowing of the arteries would have occurred in this period.
There is no definition of the term clinical onset in the SoPs. In Re Robertson the Tribunal, after considering a number of expert medical opinions as to the meaning of the term clinical onset, said at par 23:
. . . we consider that 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 that time.

The Tribunal in Re McLeod-Dryden followed this reasoning:

. . . We consider that the term 'clinical onset' means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition.

In Re Witten the Tribunal reviewed earlier decisions and adopted the definition of clinical onset as set out in Re McLeod-Dryden. At p 608 the Tribunal concluded:
A disorder may not, in fact, have been diagnosed within the relevant period…but, with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the desired symptoms established the clinical onset of the disorder during the relevant period.
In applying the findings regarding Professor Myers' evidence to the tests outlined by the Tribunal in previous cases, the Tribunal finds that the existence of atherosclerosis constitutes a feature or symptom of carotid arterial disease, and the applicant satisfies factor 1(d) of SoP Nº 346. For similar reasons the Tribunal finds that the applicant satisfies factor 5(k)(i) of SoP Nº 52. Therefore the hypotheses raised are reasonable.
In relation to SoP Nº 52 of 1999 the Tribunal agrees with Mr Purcell that there is no psychiatric or other evidence of the applicant suffering from panic disorder before the clinical onset of cerebrovascular accident. Therefore the applicant does not satisfy factor 5(c). The Tribunal has considered the question of the inability of the applicant to undertake physical activity, and takes into account oral evidence, the medical reports and clinical notes from various medical practitioners. The Tribunal finds that during the period of five years immediately before the clinical onset of cerebrovascular accident the applicant was able to play golf and pennant bowls, and engage in other activities at the level of 3-4 METS. Therefore the Tribunal finds that the applicant did not have an inability to undertake more than a mildly strenuous level of physical activity, and he does not satisfy factor 5(d).
In respect of the fourth step concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypotheses cannot be sustained, the Tribunal finds that the applicant is a credible witness and accepts his evidence that he was a non-smoker when he enlisted in the armed services. After joining the Army he commenced to smoke when in stressful combat conditions, and this pattern continued after he was discharged. The excessive consumption of tobacco can be related to his service with the armed forces. The Tribunal accepts the medical evidence that smoking by the applicant was a critical factor in acceleration of the underlying process and risk of eventual development of a clinical abnormality.
For these reasons, and in the absence of any matter establishing beyond reasonable doubt that that there is no sufficient ground for determining that the conditions of carotid arterial disease and cerebrovascular accident were war-caused diseases, the Tribunal finds that both conditions were war-caused in accordance with s9 of the Act.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that carotid arterial disease and cerebrovascular accident suffered by the applicant are war-caused with effect from 28 July 1999.
I certify that the thirty-two [32] preceding paragraphs are a true copy of the reasons for the decision of
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  19 October 2001
Date of decision:  30 November 2001
Solicitor for applicant:                  Mr D. De Marchi, De Marchi & Associates
Counsel for respondent:              Mr G. Purcell
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs