Timothy Paton and Repatriation Commission
[2014] AATA 863
•21 November 2014
[2014] AATA 863
Division VETERANS' APPEALS DIVISION File Number(s)
2013/1582, 1584
Re
Timothy Paton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr P W Taylor, SC, Senior Member Date 21 November 2014 Place Sydney The decision under review is set aside. Mr Paton’s depressive conditions are service related. In accordance with the submissions of both parties, Mr Paton’s application is consequently remitted to the Repatriation Commission to be determined in accordance with these reasons for decision.
....................[sgd]................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – depressive conditions – whether conditions are service related – decision set aside and remitted
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1; [2005] FCAFC 127
Repatriation Commission v Tuite (1993) 39 FCR 540; (1993) 29 ALD 609
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 28 of 2008
Statement of Principles concerning ischaemic heart disease No. 90 of 2007
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
21 November 2014
Mr Paton is a 57 year old ex RAAF serviceman. During his service period (from 1977 to 1983) he qualified as a radio technician, and worked at RAAF bases in Victoria, South Australia and New South Wales.
In October 2005 Mr Paton underwent coronary artery bypass surgery, following an infarct resulting from ischaemic heart disease.
In July 2010 Mr Paton submitted a claim to the Department of Veterans’ Affairs seeking the acceptance of ischaemic heart disease and depressive disorder as service related and an increase in rate of pension on the basis that the accepted conditions of hearing loss and tinnitus had worsened.
At some time in 2005, the Commission had already accepted that Mr Paton had a service related hearing loss and tinnitus. He had attributed his hearing loss to working without ear muffs within 100 m of the Mirage jet warm up area at the RAAF Edinburgh base.
In his July 2010 application Mr Paton attributed his ischaemic heart disease to a substantial increase in cigarette smoking during his service life. Mr Paton described episodes of depression after his 1983 marriage break up, and claimed to have suffered from permanent depression “since heart surgery in 2006”. In October 2010, in the course of assessing Mr Paton’s application, he was diagnosed as suffering from recurrent Major Depressive Disorder and Dysthymic Disorder.
The Commission’s February 2011 decision accepted that Mr Paton’s ischaemic heart disease was service related, and increased his disability pension rate. The Commission rejected Mr Paton’s claim that his depressive illnesses were service related. That aspect of the Commission’s determination was affirmed in the Veterans’ Review Board decision of 28 February 2013. The Board’s decision is the subject of the present review proceedings.
THE PRINCIPLES FOR ATTRIBUTION
The Statement of Principles concerning depressive disorder No. 28 of 2008[1] (“SoP 28”) accepts that various depressive disorder conditions (including recurrent major depressive disorder and dysthymic disorder) can be related to service. Paragraph 6 of SoP 28 sets out a list of approximately 20 factors. These factors range from particular traumatic events (“a category 1A stressor” or a “category 1B stressor”) to “negative life events” (“a category 2 stressor”) and various illnesses, disorders and chronic pain. At least one of those factors must exist before a service relationship can be found. Mr Paton says two of the factors apply to him. They are:
(a)for major depressive episode, recurrent major depressive disorder, dysthymic disorder and depressive disorder not otherwise specified only,
…
(v) experiencing a category 2 stressor within the six months before the clinical onset of depressive disorder; or
…
(j)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within the two years before the clinical worsening of depressive disorder; …
[1] As amended by Instrument No. 41 of 2010
Paragraph 9 of SoP 28 defines the concept of a “category 2 stressor”. That definition, lists seven different kinds of “negative life events”. In so far as it is relevant to Mr Paton’s claim the definition is in the following terms:
“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:
…
(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 work loads, or experiencing bullying in the workplace or school environment;
…
Paragraph 7 of SoP 28 has the effect that factor 6(j) (amongst other listed factors) only applies “to material contribution to, or aggravation of, depressive disorder where the person’s depressive disorder was suffered … before or during (but not arising out of) the person’s relevant service”.
The specific submission made in these review proceedings on Mr Paton’s behalf, in relation to the experience of “a category 2 stressor”, is that RAAF medical personnel accidentally damaged his left ear in late 1980. The consequences of that injury forced him to abandon his desire to work as a pilot, and resulted in his depressive condition. Mr Paton’s alternative submission is that he suffered from depression during his service period, and then suffered a clinical worsening of his depression as a result of his 2005 infarct and coronary artery surgery. Those events were a consequence of his ischaemic heart disease. That disease is itself service related.
THE COMMISSION’S DECISION
The Commission initially determined that the onset of Mr Paton’s depressive disorders could not be related to his RAAF service. This was an unsurprising consequence of the fact that Mr Paton had originally identified a relationship break up in 1983 as the principal reason for the onset of his depression. The Commission rejected Mr Paton’s claim about the clinical worsening of his condition on the alternative bases that (i) that the clinical worsening of his condition could not be service related because his original depressive condition was not itself service related, and (ii) his ischaemic heart disease was not life-threatening.
MR PATON’S ATTRIBUTION CONTENTION
In the review proceedings (both here and before the Veterans’ Review Board) Mr Paton primarily linked the onset of his depression to the consequences of the syringing of his left ear by RAAF nursing personnel in September 1980. He says that process damaged his eardrum, led to corrective surgery in December 1980 and prevented him from pursuing a career as a pilot. The contention that this frustration of Mr Paton’s ambitions was a significant factor in his depressive condition is supported in the 26 September 2013 psychiatric opinion of Dr Roberts, the forensic psychiatrist who examined him on behalf of the Commission.
The Commission disputes that the ear condition for which Mr Paton underwent surgery in December 1980, is related to any episode of syringing, and is in any way related to his service.
Mr Paton contends, in addition, that his ischaemic heart disease has also contributed to a worsening of his depressive condition. The Commission disputes that any worsening of Mr Paton’s depression, even if related to his heart condition, can be accepted as service related. In particular, although Mr Paton’s ischaemic heart disease has been accepted as service related, that relationship (so the Commission says) is only because of his smoking history. The Commission says that Mr Paton began smoking before he enlisted, and that his smoking habit is not related to his service. The Commission contends that Mr Paton’s ischaemic heart disease is also, therefore, not service related.
Mr Paton’s claim requires consideration of the following issues:
(a)when his depressive disorders first manifested;
(b)whether the onset was service related;
(c)whether his depressive conditions subsequently worsened, after his 2005 heart attack; and
(d)whether that worsening was service related?
THE ONSET OF DEPRESSION
Mr Paton gave evidence of the effect that the September 1980 ear injury, and its consequences, had on his ambition to become a pilot. He said that from his mid teens, prior to enlisting in the RAAF at the age of 19, he had wanted to become a pilot. One of his school friends suggested that the best way of fulfilling his ambition was to get a private licence and then apply to the RAAF to do flight training. After he joined the RAAF he worked as a radio technician. He thought that would assist his ambitions in being able to move into flight training. Several of his colleagues with similar qualifications in electronics had been accepted. After being posted to the Edinburgh base, but before his 1980 ear injury and operation, he had taken about 9 hours of flight training lessons. He was moving towards obtaining his private flying licence and was just short of being able to start solo flying. He said that after the 1980 operation, when his ear had settled down he took another flying lesson. But he found that when the plane banked he started to get dizzy spells. That meant he could not progress to flying solo, and would not be able to deal with the kinds of sudden altitude changes that would be involved in RAAF pilot training. Disappointed, he has not flown any aircraft since then. He said that once he realised that he would not be able to fly on his own he was a bit lost. He did not know what he was going to do after that.
Mr Paton’s principal submission was that, irrespective of whether or not there was some history of previous depression, the aftermath of his ear surgery in December 1980 certainly resulted in significant, and ongoing, depression.[2] He gave evidence that within a few months after the operation he consulted an RAAF doctor about depression. He reported the doctor’s advice that his depression was a fairly normal experience after such an operation.
[2] The history Mr Paton gave to Dr Robinson, consultant psychiatrist, in September and October 2010 includes a reference to “a little bit of depression” at an early stage of his RAAF career. These episodes were not “severe” and “not bad enough to talk to anyone about”. Despite speculation (in later psychiatric reports and in the oral evidence of Dr Roberts) about the nature and significance of this history, there is in fact no evidence to justify a positive finding that Mr Paton had any psychiatric condition prior to the circumstances relating to his December 1980 ear surgery. I dismiss any such suggestion.
After his transfer to Richmond in early 1981, Mr Paton went to see a private doctor in Sydney. He was referred to a psychiatrist. Again, the advice he received was that his situation was more or less normal, and understandable given his recent medical history. He was advised he should come back and seek more specific assistance if the problem persisted or got worse. Mr Paton thinks he saw the psychiatrist in Sydney on two or three occasions. He was prescribed anti-depressant medication, which he took for a few weeks.
Mr Paton said he later saw a private doctor a few months before he got out of the RAAF in 1983. He was again prescribed an anti-depressant, which he took for about a month, but then stopped because he did not like its side effects. He self medicated with alcohol, and that was how he coped.
MR PATON’S VERSION OF THE EAR INCIDENT
Mr Paton’s recollection is that, until a few months before his December 1980 ear surgery, his hearing had been good and had not caused him any problems. He linked the onset of hearing problems to his experience on a return flight from Woomera to the Edinburgh RAAF base in Adelaide. He said he got pain in his left ear during the trip and subsequently noticed some hearing loss. He went to the medical station at the RAAF base. A week later his ear was still painful. He went to see a doctor at the base, and was sent to a medical orderly to have his ear syringed. When the orderly syringed his ear he experienced severe pain, which the orderly told Mr Paton was normal. Mr Paton said that the pain eased off after the syringing, but was still there until after he had the December 1980 operation.
There is no doubt that, by November 1980, Mr Paton had suffered some damage to his left ear. But I am satisfied that Mr Paton’s recollection of the circumstances is unreliable and should not be accepted.
Mr Paton’s service medical records show that, as far back as November 1977, he reported difficulties with his ears. In December 1979 he is recorded as associating occasional ear and sinus trouble with underwater diving, although his tympanic membranes were noted, on examination, to be intact. In June 1980 audiometric testing revealed a deterioration in his hearing and further clinical evaluation was arranged.
On 15 September 1980 Mr Paton reported that his left ear was painful. On examination his ear was noted to be full of wax, and he was to have the ear syringed. A few days later the ache in his left ear was noted to be persisting. The ear canal was red, and his eardum was noted to be scarred and not mobile. Several antibiotic medications were prescribed.
By 23 September 1980 the medical records disclose that he was no longer reporting pain in his left ear. (I note that this recorded information appears contrary to Mr Paton’s current recollection of persisting pain after the syringing and until his December operation). He did report a loss of hearing, and again the eardrum was noted to be scarred. The notes record a suggestion that Mr Paton be referred to an ENT surgeon.
Although Mr Paton’s medical records detail further attendances between 23 September and early December 1980, none of them deals with complaints of ear pain or hearing difficulty. There is no record of any further syringing of his ear. In addition, the suggested referral note (apparently written in early November 1980) recorded a history of recurrent left ear pain, loss of hearing and the appearance of a scarred drum. It makes no reference to any complaint associated with prior ear syringing.
Dr Close was the ENT surgeon to whom Mr Paton was referred. Dr Close’s examination report of 20 November 1980 recorded Mr Paton’s history of left hearing loss that year (shown in a June 1980 audiogram), the appearance of a large, dry, posterior marginal perforation of his left tympanic membrane and a healed posterior perforation in the right tympanic membrane. Dr Close speculated about how long the large left tympanic membrane perforation had been present, bearing in mind the reported history of hearing loss, normal tympanic membranes and recent syringing. He noted that the perforation would require surgical correction. Again there is no reference to any complaint by Mr Paton about any recent ear syringing.
On 1 December 1980 Dr Close carried out a myringoplasty procedure, and provided a detailed report. His report described the presence of gross exostoses of the external auditory canal, and the fact that they prevented good visualisation of the tympanic membrane remnant. He observed the growth of squamous epithelium around the edges of the tympanic membrane perforation and into the middle ear. He noted a discontinuity of the long process of the incus to the stapes head. This was evidently the result of incus necrosis and would, he thought, account for most of Mr Paton’s reported hearing loss. Having made those various observations, Dr Close continued on to say that the large perforation of Mr Paton’s left tympanic membrane:
… must have been present for many months and probably years to cause the degree of damage. The incus long process necrosis has probably only occurred during the past few months, as evidenced by the serial audiometry. [Emphasis added.]
In a post operative report in January 1981 Dr Close said that Mr Paton’s repaired tympanic membrane was intact and essentially normal. He noted that there was marked atrophy and scarring of the right tympanic membrane and some necrosis of the incus long process. But Mr Paton’s hearing in his right ear was reasonable and there was no need for treatment. Dr Close noted that Mr Paton had self described as a “keen SCUBA diver” and had requested advice on this in the light of his reported hearing problems and surgery.[3] Dr Close wrote that diving was “not contraindicated” but advised that Mr Paton should use nasal decongestants and limit his activities to depths that did not cause significant ear or sinus discomfort.
[3] Mr Paton, in his evidence in the present proceedings, disavowed any such characterisation and said that he had only done one diving session. I doubt that his current recollection is accurate and I decline to accept it over the inferences available from the history he gave in 1980 and 1981.
By April 1981 Mr Paton had moved to a new RAAF posting. In the following months he reported occasional problems with his ears, including a recent hearing deterioration in June 1981. In December 1981 he was again the subject of an ENT surgeon’s referral. This was in connection with a compensation claim. The referral note asked the ENT surgeon to opine as to whether Mr Paton’s condition was stable, and whether he would have any disability preventing him from scuba diving or flying light aircraft. The ENT surgeon reported that Mr Paton’s condition was permanent but, in the absence of further infections, should remain static until ordinary age related hearing loss began to occur. The surgeon thought that Mr Paton would be unwise to continue on with scuba diving, given the damage evident in both ears. However, he should be able to fly light aircraft, unless he was affected by upper respiratory tract infection.
This history makes it difficult to accept, and I do not accept Mr Paton’s recollection, that the ear syringing episode in September 1980 was a relevant cause of any damage to his left ear.. Dr Close’s 1 December 1980 examination report, together with the hearing loss detected in June 1980 provides clear evidence that Mr Paton’s left tympanic membrane had likely been perforated long before the syringing. The fact that the syringing experience was painful, as Mr Paton claims, provides no adequate basis to contradict Dr Close’s obviously reasoned and considered opinion. That is so even when regard is had to the earlier clinical examinations reporting that Mr Paton’s tympanic membrane appeared intact. The reliability of those observations must be doubtful, in the light of Dr Close’s report that gross exostoses of the external auditory canal obscured good visualisation of the membrane. And in any event, such observations are of secondary importance to the considered views of the operating surgeon.
For these reasons I do not accept Mr Paton’s claim that the ear problems he encountered prior to the December 1980 surgery, the surgery itself, the subsequent difficulties he experienced in flying, and the depression he attributes to those difficulties and his disappointed career ambitions, have any relevant origin in his RAAF service activities.
ISCHAEMIC HEART DISEASE AND CARDIAC SURGERY – 2005
Mr Paton’s alternative basis for his claim is that his depressive condition began during his period of service, substantially abated, but worsened following his infarct, and the subsequent urgent coronary bypass surgery that he had shortly afterwards in early October 2005. The submission is that his heart condition is itself relevantly attributable to his service period – because of his service related increase in smoking.
Mr Paton said that after he left the RAAF in 1983, he experienced a few minor episodes of mild depression, particularly around the time of his divorce in 1985. None of these instances involved episodes serious enough to warrant seeking medical help. That did not occur until about 2004 and was, he thought, related to the stress of driving buses in Sydney. At that time he consulted a Central Coast GP and took antidepressant medication for a few months. But he doubted the efficacy of the anti-depressant medication and preferred counselling.
It was after Mr Paton’s cardiac surgery in 2005 that he had his more prolonged feelings of depression. He attributed those feelings to the ischaemic heart disease that had prompted the surgery, and his apprehensions about a recurrence of some kind of cardiac incident.
Mr Paton consulted a counsellor again after his cardiac surgery in 2005. He continued to do so for a considerable period. He stopped seeing the counsellor in 2008, partly because of cost, partly because of doubts about the utility of the counselling sessions, and partly because he thought he was personally better able to cope with the situation. Dr Robinson recorded that “[e]ven so the depression has been there nearly all the time since 2005, and he still has some ‘severe’ depressions from time to time when he is distinctly worse”.
This argument, linking a worsening of Mr Paton’s depressive conditions to his heart disease is supported by the opinion of Dr Robinson. In his October 2010 report Dr Robinson expressed the view that Mr Paton’s depression stemmed from his RAAF service, and was exacerbated by the cardiac problems in 2005. It was from 2005 onwards that Mr Paton had his more prolonged feelings of depression, and he attributed these to his bypass operation, and his related apprehensions about his future health. Mr Paton told Dr Roberts in September 2013 that the cardiac surgery was a factor in his ongoing depression. He also told Dr Roberts that on four occasions after his heart surgery he had presented to hospital with chest pain and discomfort, and after being assessed was informed that these symptoms were not cardiac in origin. Dr Roberts noted that symptoms of these kinds were “common accompaniments of anxiety”. Mr Paton also told Dr Roberts that he had lost a lot of weight after his cardiac surgery. Again Dr Roberts commented that weight change, and particularly weight loss, was commonly associated with depression.
In the light of this evidence I am satisfied that since 2005 Mr Paton has suffered a clinically significant worsening of his depressive conditions as a result of his cardiac surgery, and ongoing apprehensions about his underlying ischaemic heart disease. In coming to that view I do not accept Dr Roberts’ view that Mr Paton’s history, after his heart disease and surgery in 2005, is merely one of spontaneous re-manifestations of his underlying depressive condition. That view seems to me to wrongly disregard the significance of Mr Paton’s heart disease, and his own subjective anxiety about it – an anxiety marked by the episodes of chest pain that occurred, for the first time, after the 2005 hospitalisation, and marked also by significant weight loss.
SMOKING, SERVICE AND DEPRESSION
Mr Paton started smoking in 1976, about a year before he enlisted in the RAAF. At that time he was smoking between 5 and 10 cigarettes a day. That estimate is reflected in two entry history questionnaires Mr Paton signed on 23 June 1976 and 11 February 1977, and by a later document he signed in July 2010. Those historical statements are rather more reliable than the estimate (of only 5 cigarettes a day) that Mr Paton gave in his oral evidence in the present proceedings.
Mr Paton continued to smoke whilst in RAAF, and increased his smoking to about 25 to 30 cigarettes a day. Dr Robinson’s report attributes to Mr Paton a history of continuing to smoke up to 30 cigarettes a day up until the time of his cardiac surgery in 2005.
Mr Paton contended that his smoking history met the requirements of the Statement of Principles concerning ischaemic heart disease No. 90 of 2007. In particular he relied on factor 6(h). It is in the following terms:
(h)where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
(iii)smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; or
(iv)smoking at least one pack year of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or
The Repatriation Commission, in its 12 February 2011 decision, accepted Mr Paton’s contention. The Commission accepted that Mr Paton’s ischaemic heart disease was service related, because of the significant increase, during the period of service, in the number of cigarettes he habitually smoked.
The submission Mr Paton made to the Board was that his ischaemic heart disease was a life threatening condition that satisfied the description of factor 6(j) in the relevant SoP 28: see paragraph 7 above.
The Board did not specifically address this submission. Instead the Board considered the application of factor 6(h) in the Statement of Principles concerning ischaemic heart disease No. 90 of 2007. The Board rejected the application of that factor on the basis that Mr Paton’s smoking could not be related causally to his service. The Board considered that, despite the temporal connection between Mr Paton’s service and his increased smoking, the increase was relevantly related to his socialisation and drinking with colleagues. In coming to this conclusion the Board was significantly influenced by the fact that Mr Paton had started smoking before his period of service. The Board concluded that Mr Paton’s smoking habit was, therefore, not relevantly related to his period of service.
In arriving at this conclusion the Board effectively contradicted the basis on which the Repatriation Commission’s 12 February 2011 decision had accepted Mr Paton’s claim for ischaemic heart disease.
The causal relationship between service and smoking may be problematic, especially where the person was already a smoker before their service period began. In Repatriation Commission v Tuite (1993) 39 FCR 540 at 544; 29 ALD 609 the Full Court of the Federal Court considered the possible causal analysis where a serviceman took up smoking during his period of service. Burchett and Einfeld JJ said:
There was no dispute before the Tribunal that the respondent suffered from conditions of emphysema and chronic gastric ulcer, to which his smoking habit had contributed. The issue debated was whether the smoking habit itself was attributable to the respondent’s war service within the meaning of s 9(1)(b) of the Veterans’ Entitlements Act, so as to make the conditions in question its consequences, attributable to that war service. The concept of attributability, in the required sense, is explained in Repatriation Commission v Law (1980) 47 FLR 57 at 68. The joint judgment of the Full Court there states:
“The cause need not be the sole or dominant cause: it is sufficient to show ‘attributability’ if the cause is one of a number of causes provided it is a contributing cause.”
As the respondent did not serve overseas, the Tribunal decided the matter “to its reasonable satisfaction” pursuant to s 120(4) of the Veterans’ Entitlements Act. It considered that such a decision was required to be made on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335. To have taken this approach was certainly not adverse to the Repatriation Commission.
The Tribunal found that the respondent, at the age of 24, had not smoked before going into camp in the army, but by the end of his period in camp was smoking about 20 cigarettes a day. The Tribunal noted than it was not sufficient simply to find a temporal connection; what was required was “something within the applicant’s military service which has caused him to start smoking”. It accepted his evidence that he had not smoked before, “and that it was the circumstances whilst he was in camp that caused him to start to smoke”. The Tribunal added: “Some of those circumstances were that cigarettes were cheap, other people were smoking, and a certain degree of apprehension as regards his future in the military.” The Tribunal pointed out that the respondent “was in a milieu totally different to that which he had experienced before his call-up”. (It appears that he was actually a volunteer.)
We are unable to find anything suggestive of error in this reasoning. It was for the Tribunal to decide whether it accepted the evidence of the respondent. Nothing seems to have been put before it to contradict that evidence, nor was the respondent seriously challenged in cross examination. Apart from the matters specifically mentioned in the Tribunal’s reasons, there were indeed other things adduced in evidence which tended to the same conclusion. The boredom of life in camp clearly emerges from the respondent’s account. It is true that not everything which occurs while a man is in camp is attributable to his war service. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent’s decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. It was open to the Tribunal to find the circumstances persuasive. If, in the case of a particular person, one of the inevitable concomitants of war service is camp life, it must be open to the Tribunal to conclude that a consequence (in the sense explained in Repatriation Commission v Law (supra)) of camp life is a consequence of war service. In this case, the Tribunal has done so.
It is significant to note that Mr Paton linked his increase in smoking to his interstate relocation during the early part of his RAAF service. Having enlisted in early 1977 he had moved interstate, and by the end of the year his smoking had substantially increased – he says as a result of socialisation with RAAF colleagues. In these circumstances I think it is unrealistic to characterise Mr Paton’s smoking habit as exclusively related to his own personal choice and unrelated to his RAAF service. I consider that a more realistic assessment is that his RAAF service was a real contributor to the extent of the smoking habit which he developed, and maintained after his discharge from the RAAF. This is essentially the same conclusion as that arrived at by the Repatriation Commission in its 12 February 2011 decision. It is consistent with the decision, and the consideration of relevant principles, in Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1; [2005] FCAFC 127 – even though that was a decision where the serviceman took up smoking, rather than substantially increased his rate of smoking, during his service period.
The Repatriation Commission had itself rejected Mr Paton’s attempt to link his depression to his service. But it had done so for reasons different from those subsequently employed by the Board itself. One reason was that the Commission did not accept that Mr Paton had suffered from a life-threatening illness or injury – so as to fall within factor 6(j) in the SoP 28. I do not accept that reasoning. It is an oversimplification to describe Mr Paton as merely suffering from “ischaemic heart disease”. Mr Paton had an infarct in October 2005 and within days had a 3 vessel bypass operation to address the consequences of “severe coronary disease” – according to the report of Dr Rogers, cardiologist, of 9 September 2010. In my opinion there can be little doubt that Mr Paton suffered a life threatening injury (his infarct) and had a life threatening illness (his ischaemic heart disease) in October 2005.
Another reason for the Repatriation Commission’s rejection of Mr Paton’s claim was that, even if Mr Paton’s ischaemic heart disease should be characterised as life-threatening it cannot be said that his depressive disorders were “aggravated by service rendered after the onset” of the disorder. This statement is correct, but irrelevant. It might have been relevant if Mr Paton had been claiming on the basis of the aggravation of a condition he had before he enlisted. But this was never his position. The Commission’s statement, and its reference to the requirements of the Veterans’ Entitlements Act 1986 in relation to aggravation, was not, in my opinion, addressing the relevant question. The question posed by paragraph 5 of SoP 28 of 2008), is whether or not “at least one of the factors set out in clause 6 [is] related to the relevant service rendered by the person”. That question enquires about the “relationship” between the person’s service and the factor. And in my view it permits a causal attribution where the “medical illness or injury” hypothesised in the factor 6(j) description, is itself “related” to the person’s service. That view is encouraged by paragraph 8 of SoP 28 – which provides (in effect) that where a relevant factor includes an injury or disease to which another Statement of Principles applies, then the factors in the other Statement of Principles apply (in determining whether the required factor in the first Statement of Principles has been satisfied).
DECISION
The decision under review is set aside. Mr Paton’s depressive conditions are service related. In accordance with the submissions of both parties, Mr Paton’s application is consequently remitted to the Repatriation Commission to be determined in accordance with these reasons for decision.
I certify that the preceding 49 (forty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor, SC, Senior Member ...................[sgd]................................................
Associate
Dated 21 November 2014
Date of hearing 17 June 2014 Date final submissions received 26 June 2014 Advocate for the Applicant Mr T Latimore, Legal Aid NSW Advocate for the Respondent Mr T O’Reilly, Department of Veterans’ Affairs
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