Wallace and Repatriation Commission (Veterans' entitlements) - [2017] AATA 926

Wallace and Repatriation Commission (Veterans' entitlements) [2017] AATA 926 (23 June 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/4069
Re:Stewart Wallace
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:23 June 2017
Place:Brisbane

The decision under review is affirmed.
..................................[sgd].....................................
Senior Member J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – disability pension – claimed condition of Chronic Obstructive Pulmonary Disease – question of whether increased smoking levels and quantity relevantly related to eligible defence-service - Statement of Principles – where condition of Chronic Obstructive Pulmonary Disease not connected to eligible defence-service - decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 68, 70, 120, 120B
CASES
Arnold and Military Rehabilitation and Compensation Commission [2010] AATA 660
Bryant and Military Rehabilitation and Compensation Commission [2012] AATA 186
Bushell v Repatriation Commission (1992) 175 CLR 408
Cooke v Repatriation Commission (1997) 45 ALD 205
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429
Crawford and Repatriation Commission [2004] AATA 1064
Lane and Repatriation Commission [2005] AATA 566
Miller v Minister of Pensions [1947] 2 All ER 372
Re Everett and Repatriation Commission (1991) 23 ALD 529
Re Keenan and Repatriation Commission (1990) 21 ALD 289
Renton and Repatriation Commission [2003] AATA 135
Repatriation Commission v Edwards [1993] FCA 434
Repatriation Commission v Hawkins (1993) 45 FCR 205
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Warren [2007] FCA 866; 95 ALD 606
Rohov and Military Rehabilitation and Compensation Commission [2011] AATA 908
Roncevich v Repatriation Commission (2005) 222 CLR 115
Samarasekera and Military Rehabilitation and Compensation Commission [2007] AATA 1726
Smith v Repatriation Commission (2014) 142 ALD 410
Tuite and Repatriation Commission [1992] AATA 672
SECONDARY MATERIALS
Statement of Principles No. 38 of 2014
REASONS FOR DECISION
Senior Member J Sosso
23 June 2017
INTRODUCTION

On 14 August 2015 Mr Stewart Wallace (the veteran) lodged a claim for the disability pension with the Repatriation Commission (the Commission) for hearing loss, tinnitus and chronic obstructive pulmonary disease (COPD).
On 23 October 2015 the Commission accepted the veteran’s hearing loss and tinnitus conditions as being service related for the purposes of the Veterans’ Entitlements Act 1986 (the Act). The Commission determined that the claimed COPD was not service related and found that the Applicant was entitled to 70% of the disability pension at the General Rate.
The veteran sought a review of the decision that the claimed COPD was not service‑related with the Veterans’ Review Board.
On 18 July 2016 the Veterans’ Review Board affirmed the decision of the Commission – Exhibit 1 T2 pp. 11 – 16.
On 1 August 2016 the veteran lodged an Application for Review with this Tribunal. The reasons advanced for seeking a review were as follows (Exhibit 1 T2 p.4):
“The failure of the Board to understand the unique stressors of peace-time service and the effects on an individual’s smoking habit”
A hearing was convened on 10…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 926
Decision Date: 23 June 2017

CaseChat Overview and Summary

This matter concerned a veteran's claim for a disability pension for Chronic Obstructive Pulmonary Disease (COPD), which he asserted was caused by his eligible defence service. The veteran, born in 1952, served in the Australian Army between February 1975 and November 1980. He claimed his lung problems, including shortness of breath, chest pain, and wheezing, were due to his smoking habit, which he stated began and intensified during his service. The Repatriation Commission and the Veterans' Review Board had previously affirmed the decision that the veteran's COPD was not service-related.

The primary legal issues before the court were whether the veteran suffered from COPD, what the relevant Statement of Principles (SoP) was, and crucially, whether there was a connection between the veteran's claimed condition and the circumstances of his eligible defence service. This involved determining if the veteran met the criteria within the applicable SoP, specifically concerning smoking history and its causal relationship to the onset of COPD.

The court considered the evidence regarding the veteran's smoking habits, noting his testimony that he began smoking sporadically in his late teens but commenced smoking regularly only after enlisting in the Army, attributing this to peer pressure, work pressure, and the stressors of Army life. The court affirmed that the veteran did suffer from COPD, as supported by medical evidence. However, the central finding revolved around the causal link required by the SoP. The court, agreeing with the Veterans' Review Board, found that while the veteran's service may have been the setting in which his smoking habit intensified, it was not established as the direct cause of him commencing to smoke on a regular basis. The circumstances described by the veteran were not considered exceptional enough to constitute a direct cause for the commencement of his regular smoking habit, and therefore, the criteria of the SoP were not met.

Consequently, the court affirmed the decision of the Veterans' Review Board, concluding that the material before it did not raise a connection between the veteran's COPD and his relevant service as required by the Act.

Orders

Orders of the court

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Background

Background to the litigation

The Tribunal was presented with usual form of documents commonly known as “T” documents which were admitted into evidence and marked as Exhibit 1. However, before the hearing the Commission provided to the veteran and the Tribunal an additional very large folio of documents which comprised many hundreds of pages. The veteran sought, and was granted, an adjournment so that he could peruse those documents. FACTS The veteran was born in 1952 and at the date of the hearing was 64 years of age. He attended school until the completion of Grade 10 and then entered the workforce. He married in July 1974. It is not contested that the veteran was a member of the Australian Army between 18 February 1975 and 26 November 1980 and this period, being in excess of three years effective full-time service, constituted defence service as prescribed by s 68 of the Act. During his time with the Australian Army the veteran was employed as an Infantryman and a Pay Clerk – Exhibit 1 T30 p. 137. In his claim form the veteran listed as disability 3 “lung problems” – Exhibit 1 T8 p.61. He stated that the signs and symptoms of this disability were:“Shortness of breathFeeling tiredConstant pain in the chest 24/7Wheezing all the time”. In response to question how the veteran believed the claimed disability was service caused etc, he responded:“Due to my smoking habit which started in service and because of service.” The veteran enlisted when he was 22 years of age. In his Entry Medical History Questionnaire, he answered in the affirmative to the question if he smoked tobacco – Exhibit 1 T33 p.149. At the hearing the veteran testified that he smoked his first cigarette at around the age of 16 or 17, but would only smoke three or four cigarettes a week. He stated that he left school at around the age of 16 and starting working in a printing enterprise. The veteran stated that he was active in sport and did not have the money to afford a smoking habit. He further testified that he did not commence “full time” smoking until after he enlisted. The veteran also testified that his mother didn’t smoke and neither did his brothers or sisters. When he did smoke tobacco, it was usually when he was at a hotel. The veteran married before he enlisted and his wife was also a non-smoker who disliked smoking. The veteran made a statement on 14 March 2016 in which he said (Exhibit 1 T31 p. 144):“…from my late teens onwards... I dabbled in smoking.I was not a regular smoker until after enlistment in the Australian Army.Smoking prior to service was ad hock [sic] at best. I was experimenting, my income stream was at best poor, my friends never forced the issue unlike it was in the Army. I felt no need to smoke regular [sic] prior to service…Further my mum and dad frowned upon me smoking. Smoking was not a habit until well into my enlistment.” In his Claimant Report – Smoking dated 15 August 2015, in response to the question why did the veteran commence smoking on a regular basis, the following answer was given (Exhibit 1 T7 p. 49):“Peer group pressure, everyone was surprised at my age that I wasn’t already a smoker. I felt I would of [sic] been left out if I did not smoke. Work pressure, wanting to prove myself and be a team player. Stressor of Army life and living on camp.”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dr Brown in a further report dated 29 September 2015, which measured effort tolerance, noted that the veteran has the following symptoms which limited his effort tolerance (Exhibit 1 T18 p. 81):“Breathlessness, R shoulder pain, wheeze”.DECISION OF THE VETERANS’ REVIEW BOARD The Veterans’ Review Board affirmed the original decision of the Commission that the veteran’s COPD was not related to service. The reasons provided by the Commission for reaching this conclusion are set out below (Exhibit 1 T2 pp. 15-16):“16. In determining the application, the Board is required to be satisfied as to the appropriate diagnosis to answer the claim. Based on the Pulmonary Function Report of 11 August 2015 (f.29) and the diagnosis by GP Dr Graeme Brown included in the claim (f.17), the Board is reasonably satisfied the applicant suffers chronic obstructive pulmonary disease.17. The Statement of Principles is Instrument 38 of 2014 as amended by Number 129 of 2015. Given the contention raised in relation to smoking, the relevant factor is at Clause 6 (a):“smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease, and where the smoking has ceased, the clinical onset of chronic obstructive pulmonary disease has occurred within 20 years of cessation.18. It is an essential requirement in satisfying the factor that there is a direct causal relationship between the applicant’s service and commencement of a smoking habit. A temporal relationship can be explained as the applicant’s service being the setting in which he commenced to smoke but not the direct cause of him commencing to smoke.19. The Board considered the evidence in relation to smoking, including the smoking questionnaire, the applicant’s evidence to the hearing, the material submitted by the advocate and his submissions.20. As to the Commission’s Guideline Paper CM 5030, the Board could not identify anything in that document which requires the Board to find in the applicant’s favour, as appears to be the submission put to the Board. A causal relationship is required. The circumstances described by the applicant in his smoking questionnaire and in evidence are not out of the ordinary in a service context. Although the applicant claims that various aspects of his service involved a good deal of pressure and stress, when viewed objectively, in the Board’s opinion, those circumstances are not exceptional and do not constitute a direct cause for the applicant commencing to smoke cigarettes on a regularly (sic) basis.21. The Board examined all the remaining factors in the Statement of Principles but could identify no material to raise or satisfy any factor.22. For the reasons given above, the Board finds that none of the factors set out in the Statement of Principles is raised by the evidence in this case. The Board is therefore reasonably satisfied that the material before it does not raise a connection between the applicant’s COPD and the relevant service as required by the Act. In these circumstances, the Board is required to affirm the decision under review.”THE LAW

Ratio Decidendi

Legal Principle Established

In this matter it is not contested that there is a relevant SoP, namely No 38 of 2014 (as amended), Chronic Obstructive Pulmonary Disease.CONSIDERATIONIntroduction The Commission submits (RSFIC p.6) that the issues that arise in this matter are as follows:(a)Does the veteran suffer from COPD?;(b)If he does, what is the relevant SoP?;(c)Is there a connection between the claimed condition and the circumstances of the service rendered by the veteran?; and(d)Further to this, does the veteran, on the balance of probabilities, satisfy the criteria identified in the SoP relevant to his claimed condition such as to support a finding of a connection between the claimed condition and his service for the purposes of the Act? This is a helpful outline of the issues that need to be determined, subject to a preliminary comment. There is an anterior question, namely whether the veteran rendered eligible defence service. As previously explained, this is not contested. Does the veteran suffer from COPD? The threshold issue for the Tribunal is whether the veteran suffers from the disease upon which his claim is based. Section 120 assumes the existence of the disease, and “the question whether it is suffered by the veteran is separate from the following questions as to causation” per Kiefel J in Repatriation Commission v Warren [2007] FCA 866; 95 ALD 606 at [22] / 613. In determining this threshold question, there is no requirement for the Tribunal to have regard to the terms of any relevant SoP. The SoP is not to be used for diagnostic purposes. This was explained by Kiefel J in Warren as follows (at [25] / 614):“The anterior, or threshold, question for the tribunal is whether the veteran suffers from the disease as claimed. It is a distinct and separate statutory question, in the nature of a precondition to any entitlement to a pension. There is no provision in the VEA which expressly requires the tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion.” The Commission accepts that the medical evidence, particularly the report of Dr Brown previously outlined and a pulmonary function report of 11 August 2015 (Exhibit 1 T6 pp. 28-29) support a finding that the veteran suffers from COPD – RSFIC p.6. Having considered the evidence before the Tribunal, I find that the veteran suffers from COPD.Relevant SoP It is not contested (RSFIC p. 7) that the relevant SoP is Instrument No 38 of 2014 (as amended). The factor(s) that must exist before it can be said, on the balance of probabilities, COPD is connected with the circumstances of the veteran’s service are contained in clause 6. The relevant factor in clause 6 is paragraph (a) which provides:“(a) smoking at least five pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic obstructive pulmonary disease, and where smoking has ceased, the clinical onset of chronic pulmonary disease has ceased within 20 years of cessation.”