Trueman and Repatriation Commission
[2008] AATA 1038
•19 November 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 1038
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0065
VETERANS' APPEALS DIVISION ) Re COLIN NEIL TRUEMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr D Weerasooriya, MemberDate19 November 2008
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1977 to 2006 – applicant rendered defence service from January 1977 to June 2004 – applicant smoked cigarettes before and during defence service – applicant suffers from intervertebral disc prolapse – Statement of Principles (SoP) – quantity of cigarettes smoked by applicant sufficient to satisfy factor in SoP – applicant’s cigarette smoking not related to defence service – SoP does not uphold contention that intervertebral disc prolapse on balance of probabilities connected with defence service – applicant’s intervertebral disc prolapse not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70, s 120(4), s 120B and s 196B
Statement of Principles concerning intervertebral disc prolapse No 40 of 2007Statement of Principles concerning intervertebral disc prolapse (Instrument No 131 of 1996)
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Tuite (1993) 39 FCR 540
REASONS FOR DECISION
19 November 2008 Deputy President S D Hotop
Dr D Weerasooriya, MemberIntroduction
1. Colin Neil Trueman (“the applicant”) served in the Royal Australian Navy (“RAN”) from 5 January 1977 to 24 April 2006. In the course of his RAN service he rendered “defence service” (other than “hazardous service”), for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”), from 5 January 1977 to 30 June 2004.
2. On 27 March 2006 the applicant lodged with the Department of Veterans’ Affairs a Claim for Disability Pension under the VE Act in respect of, inter alia, “left C7 radiculopathy” which he claimed was defence-caused.
3. On 9 November 2006 a delegate of the Repatriation Commission (“the respondent”) decided (relevantly) that the applicant’s “cervical spondylosis” and “intervertebral disc prolapse at C6 – C7” are not related to his defence service.
4. On 20 November 2007 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision of 9 November 2006 in respect of cervical spondylosis and intervertebral disc prolapse.
5. On 8 January 2008 the applicant applied to the Tribunal for review of the VRB’s decision of 20 November 2007.
The Issue and the Tribunal’s Determination
6. At the hearing before the Tribunal the applicant abandoned his claim that cervical spondylosis is defence-caused but he maintained his claim that intervertebral disc prolapse is defence-caused.
7. The respondent conceded that the applicant suffers from an intervertebral disc prolapse at C6/7, and the Tribunal, on the basis of the uncontradicted medical evidence before it, regards that concession as rightly made.
8. The sole issue for the Tribunal’s determination, therefore, is whether the applicant’s intervertebral disc prolapse at C6/7 is defence-caused for the purposes of the VE Act.
9. For the reasons which follow, the Tribunal has determined that the applicant’s intervertebral disc prolapse at C6/7 is not defence-caused for the purposes of the VE Act.
The evidence
10. The evidence before the Tribunal comprised:
· the “T Documents” (T1 – T16) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth); and
· the oral evidence of the applicant.
The applicant’s evidence
11. The applicant’s evidence may be summarised as follows:
· he commenced his RAN service as a Junior Recruit at HMAS Leeuwin when he was 15½ years of age;
· before joining the RAN he had experimented with smoking and had “the odd smoke” but had not developed a regular smoking habit at that time;
· when he was stationed at HMAS Leeuwin in 1977 he found that “everyone smoked” and that cigarettes could be readily purchased at the canteen at a price that was “a bit cheaper” than outside;
· during his recruit training at HMAS Leeuwin there were regular “smoke breaks” during the day and during those breaks “you smoked”;
· he found his period of recruit training at HMAS Leeuwin to be stressful because it was a very different environment from that which he was accustomed to when he was living at home and going to school;
· within the first 3 months of his recruit training at HMAS Leeuwin in 1977 he felt the need always to have a packet of cigarettes and he then became a regular smoker, smoking 20 cigarettes per day;
· in 1978 he was stationed at HMAS Cerberus for 8 months during which he undertook a “high pressure” communications training course which he found stressful, and he increased his rate of smoking to 20 – 30 cigarettes per day;
· when he was at sea from 1979 onwards he could smoke whenever he wanted to and he commenced buying cigarettes by the carton;
· his smoking habit has continued to the present time and he is presently smoking about 30 cigarettes per day.
Relevant material in the T Documents
12. The T Documents include the following relevant material regarding the applicant’s smoking history:
· pre-enlistment medical examination record and medical history questionnaire, dated 24 September 1976, in which it is recorded that the applicant stated that he smoked tobacco, namely, 10 cigarettes per day (T3, p 35);
· medical examination record, dated 26 September 1978, in which it is recorded that the applicant advised that he smoked 20 cigarettes per day (T3, p 32);
· health assessment questionnaire, dated 30 November 2004, in which it is recorded that the applicant stated that he smoked 15 – 20 cigarettes per day (T3, p23);
· discharge medical questionnaire, dated 21 October 2005, in which it is recorded that the applicant stated that he smoked 10 – 15 cigarettes per day and that he had been smoking for 25 years (T3, p10);
· cigarette smoking questionnaire, signed by the applicant and dated 4 May 2006, in which it is stated that:
-he first started smoking cigarettes on a regular basis as a junior recruit in January 1977;
-he regularly smoked 10 cigarettes per day at that time;
-he had started to smoke cigarettes on a regular basis by reason of “peer pressure”;
-he has never stopped smoking permanently;
-in 1980 he increased his tobacco consumption from 10 cigarettes per day to 20 cigarettes per day by reason of his smoking habit and he continued thereafter to smoke 20 cigarettes per day (T9, pp39-40).
13. A report of Dr Peter Silbert, Neurologist, dated 28 May 2004, states as follows:
“Thank you for referring Colin for a clinical assessment. I reviewed him on 27 May 2004 and again on the 28 May 2004 having performed an EMG on 19 May 2004. The EMG findings were consistent with an electrophysiologically mild – moderate in severity acute left C6 or C7 radiculopathy.
As we discussed, Colin is a 43 year old naval officer who runs the Communications Department, and is usually on sea duty. He has been previously well, but smokes 20 cigarettes per day. He consumes minimal alcohol but occasionally drinks heavily.
He relates the onset of his symptoms to a combination of sleeping awkwardly on his guided missile frigate, and also the position that he sits using his laptop computer. Over the last 6 – 8 weeks he has had gradual onset of left arm radicular symptoms, with an aching numbness that radiates to the left thumb, index and middle fingers.
On clinical examination he had weakness of left triceps and pronator teres (Grade 4/5), with reduced left triceps reflex. Other muscle groups were normal. Sensation was reduced in a left C6/7 distribution. Lower extremity neurological examination was normal.
Colin’s cervical MRI scan demonstrates a left posterolateral C6/7 disc/osteophyte complex compressing the left C7 nerve root.
…” (T3, p28)
The Relevant Legislation
The VE Act
14. Section 5D(1) contains the following relevant definitions:
“ In this Act, unless the contrary intention appears:
…
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 70 (in Part IV) relevantly provides:
“ (1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces … shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
Section 120, which deals with standard of proof, relevantly provides:
“ …
(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.
Note: This subsection is affected by section 120B.
…”
Section 120B relevantly provides:
“ …
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
Section 196B relevantly provides:
“(1) This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
…
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
...
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
…”
The Statement of Principles
15. The Repatriation Medical Authority has determined, under s 196B(3) of the VE Act, the following relevant Statement of Principles (“SoP”) which is presently in force:
· Statement of Principles concerning intervertebral disc prolapse No 40 of 2007, as amended by Statement of Principles concerning intervertebral disc prolapse No 81 of 2008 (“the relevant SoP”).
That SoP relevantly states:
“ …
Determination
2.The Repatriation Medical Authority under subsection 196B(3) and (8) of the Veterans’ Entitlements Act 1986 (the VEA):
(a)revokes Instrument No 131 of 1996, as amended by Instrument No 93 of 1997, concerning intervertebral disc prolapse; and
(b) determines in their place this Statement of Principles.
Kind of injury, disease or death
3.(a) This Statement of Principles is about intervertebral disc prolapse and death from intervertebral disc prolapse.
(b)For the purposes of this Statement of Principles, ‘intervertebral disc prolapse’ means protrusion, herniation or rupture of the nucleus pulposus or annulus fibrosis of an intervertebral disc into the vertebral canal of the cervical, thoracic or lumbar spine, causing:
(i)local pain or stiffness;
(ii)clinical evidence of nerve root compression; or
(iii)clinical evidence of spinal cord compression.
…
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that intervertebral disc prolapse and death from intervertebral disc prolapse can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, intervertebral disc prolapse or death from intervertebral disc prolapse is connected with the circumstances of a person’s relevant service is:
…
(f)smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse, and where smoking has ceased or been reduced below that level, the clinical onset of intervertebral disc prolapse has occurred within one year of that cessation or reduction; or
…”
Analysis and Findings
Is the applicant suffering from an “injury” or a “disease”, for the purposes of the VE Act?
16. As previously mentioned, it is common ground that the applicant suffers from an intervertebral disc prolapse at the C6/7 segments of his cervical spine, and the Tribunal, on the basis of Dr Silbert’s report of 28 May 2004 (see paragraph 13 above), so finds. The Tribunal also finds that the applicant’s intervertebral disc prolapse condition is a “disease” for the purposes of the VE Act.
Is the applicant’s intervertebral disc prolapse condition a defence-caused disease, within the meaning of s 70(5) of the VE Act?
17. This matter is, pursuant to s 120(4) of the VE Act, to be determined by the Tribunal “to its reasonable satisfaction” – that is, on the balance of probabilities. Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s intervertebral disc prolapse condition is defence-caused only if:
· the material before it “raises a connection between” that condition and the applicant’s defence service; and
· the relevant SoP “upholds the contention” that that condition is, on the balance of probabilities, connected with that service.
18. In the present case there is no dispute that the applicant contracted his intervertebral disc prolapse condition during the course of his defence service. There is material before the Tribunal to the effect that the applicant regularly smoked a substantial quantity of cigarettes on a daily basis for the duration of his defence service, and the applicant contends that his intervertebral disc prolapse condition is causally related to that cigarette consumption. On that basis the Tribunal is satisfied that the material before it “raises a connection between” the applicant’s intervertebral disc prolapse condition and his defence service, for the purposes of s 120B(3)(a) of the VE Act.
19. The critical issue, however, is whether the relevant SoP “upholds the contention” that the applicant’s intervertebral disc prolapse condition is, on the balance of probabilities, connected with his defence service.
20. The applicant submitted that his smoking history satisfies the factor set out in para (f) of cl 6 of the relevant SoP and that that factor is related to his defence service.
21. In order to determine whether the applicant’s smoking history satisfies para (f) of cl 6 of the relevant SoP, it is necessary for the Tribunal first to determine the time of “clinical onset” of the applicant’s intervertebral disc prolapse condition. It appears to be common ground that the applicant developed that condition in or about March/April 2004 when, according to his service medical records, he began to experience left shoulder and arm radicular symptoms (see T3, pp17 and 38, and Dr Silbert’s report of 28 May 2004 set out in paragraph 13 above). On the basis of that evidence, the Tribunal finds that the clinical onset of the applicant’s intervertebral disc prolapse condition occurred in or about March/April 2004.
22. The question then arises, for the purposes of para (f) of cl 6 of the relevant SoP, whether the applicant smoked at least 10 cigarettes per day for a continuous period of at least 5 years before the clinical onset of his intervertebral disc prolapse condition. The respondent concedes that the applicant’s cigarette consumption satisfies the factor set out in para (f) of cl 6 of the relevant SoP. The Tribunal notes that the evidence before it relating to the applicant’s cigarette consumption levels over the period since he commenced smoking is not entirely consistent. It is clear on the basis of that evidence, however, that the applicant smoked at least 10 cigarettes per day for a continuous period of at least 27 years before the clinical onset of his intervertebral disc prolapse condition. On the basis of the evidence before it, the Tribunal finds that the factor set out in para (f) of cl 6 of the relevant SoP is satisfied in the applicant’s case.
23. The critical question for the Tribunal’s determination is, therefore, whether it is satisfied, on the balance of probabilities, that the applicant’s having smoked “at least ten cigarettes per day … for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse”, for the purposes of para (f) of cl 6 of the relevant SoP, is “related to” his defence service, for the purposes of cl 5 of that SoP.
24. In the Tribunal’s opinion, a very important matter for its consideration, for the purpose of determining the abovementioned critical question, is the nature and extent of the applicant’s cigarette smoking before the commencement of his defence service.
25. As previously noted (see paragraph 12 above) the applicant stated, as recorded in his pre-enlistment medical history questionnaire on 24 September 1976, that he was then smoking 10 cigarettes per day. When he was referred to that document in the course of his oral evidence, the applicant said that he was not smoking so many cigarettes at that time and that the reason he told the examining medical officer that he was smoking 10 cigarettes per day was that he thought that it would be “cool” to do so. That explanation is, in the Tribunal’s opinion, unconvincing and the Tribunal does not accept it. Given the passage of time, the Tribunal regards the contemporaneous medical history questionnaire as containing a more reliable account of the applicant’s cigarette smoking practice in the period immediately prior to his enlistment in the RAN in January 1977 than his oral, and obviously self-serving, evidence at the hearing in this matter. Accordingly, the Tribunal is reasonably satisfied, on the basis of the applicant’s pre-enlistment medical history questionnaire completed on 24 September 1976, that the applicant was then smoking 10 cigarettes per day, and it so finds.
26. As also previously noted (see paragraph 22 above), the evidence before the Tribunal regarding the applicant’s subsequent smoking history is not entirely consistent. Whereas the applicant’s contemporaneous service medical records indicate that he was smoking up to 20 cigarettes per day from at least September 1978 onwards, the applicant, in his oral evidence, said that he in fact started smoking a packet of 20 cigarettes per day within 3 months of the commencement of his defence service in January 1977. As regards the cigarette smoking questionnaire which the applicant completed on 4 May 2006 in support of his Claim for Disability Pension, in which he stated that he smoked 10 cigarettes per day from 1977 to 1980 and 20 cigarettes per day from 1980 to 2006, he said in his oral evidence that he had underestimated the amount of his cigarette smoking in that questionnaire.
27. It is unnecessary, however, for the Tribunal to make a finding regarding the precise, or even the approximate, total number of cigarettes which the applicant smoked during his defence service. As previously mentioned, the critical question for the Tribunal to determine is whether the fact of the applicant’s having smoked “at least ten cigarettes per day … for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse” is “related to” his defence service. Pursuant to s 196B(14) of the VE Act, the applicant’s having smoked at least 10 cigarettes per day for a continuous period of at least 5 years in the relevant period will be “related to” his defence service, for the purposes of the relevant SoP, if (relevantly):
· it arose out of, or was attributable to, that service;
· it was contributed to in a material degree by that service; or
· it would not have occurred but for the rendering of that service by him: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at 374.
28. Given that the applicant was already smoking 10 cigarettes per day immediately prior to, and as at, the commencement of his defence service (as the Tribunal has found), the Tribunal is not reasonably satisfied that his having smoked “at least ten cigarettes per day … for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse” arose out of, or was attributable to, or was contributed to in a material degree by, that service. Nor is the Tribunal reasonably satisfied that the applicant’s having smoked that quantity of cigarettes would not have occurred but for the rendering of that service by him. In the Tribunal’s opinion the applicant’s defence service merely constituted the setting in which he continued a pre-existing regular smoking habit of at least 10 cigarettes per day: Repatriation Commission v Tuite (1993) 39 FCR 540 at 541.
29. The Tribunal concludes, therefore, that the current SoP does not uphold the contention that the applicant’s intervertebral disc prolapse is, on the balance of probabilities, connected with his defence service.
30. The Tribunal has, in accordance with Repatriation Commission v Gorton (2001) 110 FCR 321, also considered the SoP concerning intervertebral disc prolapse which was in force at the time of the respondent’s decision of 9 November 2006, namely, Instrument No 131 of 1996. Suffice it to say, the Tribunal, on the basis of the evidence before it, is not reasonably satisfied that the relevant factor in cl 5 of that SoP, namely:
“(f)smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse”
is met in the applicant’s case. It necessarily follows that that SoP does not uphold the contention that the applicant’s intervertebral disc prolapse is, on the balance of probabilities, connected with his defence service.
31. The Tribunal concludes, therefore, that the applicant’s intervertebral disc prolapse condition is not a defence-caused disease, within the meaning of s 70(5) of the VE Act.
Decision
32. For the above reasons the Tribunal affirms the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr D Weerasooriya, Member.
Signed: :...............[sgd D Brodie]........................
Associate
Date of Hearing 11 November 2008
Date of Decision 19 November 2008
Representative of the Applicant Mr A WestRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans' Affairs
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