Ward and Repatriation Commission

[2002] AATA 897

DECISION AND REASONS FOR DECISION [2002] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1549
VETERANS'     APPEALS      DIVISION
  Re:         DOROTHY RUBY WARD
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             7 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - smoking - whether war-caused
Veterans' Entitlements Act 1986 ss8, 119, 120(1), 120(3), 120(4), 120A(3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission  (1993) 177 CLR 564
Repatriation Commission v Keenan (1989) 19 ALD 509
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

7 October 2002  G.D. Friedman, Member

1. This is an application by Dorothy Ruby Ward (the applicant), widow of Louis Raymond Edwin Ward (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 11 September 2001.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 17 March 1999, to refuse a claim for disability pension for death from diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease, because the death was not war-caused.

2. At the hearing of this matter on 26 September 2002 Mr D. Hyde, of counsel, represented the applicant and Mr G Purcell, of counsel, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T203), together with one exhibit (Exhibit A1) lodged by the applicant and eight exhibits (Exhibits R1-R8) lodged by the respondent.
   BACKGROUND

4. The veteran was born on 8 March 1922. On 22 January 1942 he enlisted in the Australian Army (the army) and served in Victoria, South Australia and the Northern Territory until 4 July 1945. As he served in the Northern Territory, north of the parallel 14 degrees 30 minutes south latitude, during the required period in World War 2, the period 22 January 1942 to 4 July 1945 constitutes operational service in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act).

5. After his discharge from the army the veteran worked in a textile mill, drove a milkcart and then became a sales representative for a vegetable oil company.  He retired in 1982.  In 1984 he was diagnosed with diabetes and heart problems, and in 1986 he underwent major heart surgery.  In 1989 the veteran and the applicant moved to Cobram in rural Victoria.  In 1994 and 1995 complications arising from diabetes resulted in leg amputations.  On 3 July 1995 the veteran applied for disability pension for heart problems and other disabilities.  He died on 14 October 1995 before a decision was made. 

6. On 18 March 1996 the applicant applied for war widow's pension.  On 15 May 1996 the respondent refused her claim and the veteran's claim (with the exception of hearing loss).  On 11 December 1997 the VRB affirmed the decision that the death of the veteran was not causally related to service.  

7. On 17 March 1999 the respondent refused a further claim and on 3 December 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB dated 11 September 2001. 
   EVIDENCE

8. The applicant gave oral evidence by telephone. She said that she met the veteran in early 1942 when he was already in the army.  They married in 1944.  The applicant stated that the veteran was a light smoker when she met him and she observed him smoking occasionally when he was on leave from the army.  She said that after his discharge the veteran's smoking habit increased and he smoked in a sunroom at the rear of the house.  She was unable to be precise about the number of cigarettes smoked by him as she did not take much interest and was a non-smoker.  She estimated the daily figure at around 10 per day and up to 20 per day based on the cigarette packets she saw around the house.  The applicant told the Tribunal that during the veteran's 22 years employment as a sales representative he was away from Monday to Friday each week.  Consequently, she was unable to give evidence about his smoking habit during the week, although she said that on his return she could smell tobacco upon him.

9. The applicant said that when the veteran developed severe heart and other medical conditions he gave up smoking in about 1984 or after his heart surgery in 1986.  In a smoking questionnaire signed by the applicant in 1997 she noted that the veteran commenced smoking on service in 1941 and that he smoked 20-30 cigarettes per day.  Under cross-examination the applicant conceded that the questionnaire was completed by a representative of the Returned Services League, and she had no recollection of the matter.  She also acknowledged that some of the information provided in the questionnaire might not be accurate. 

10. In relation to the veteran's duties in the army, the applicant stated that he was a driver and when in the Northern Territory and South Australia he spent long hours on his own in remote locations.  She said that boredom and peer pressure might have contributed to an increase in his smoking habit, although he did not discuss the matter with her.

11. The applicant explained that at the first VRB hearing her representative had discussed the claim beforehand with the veteran, but she was unaware of the reasons that the claim proceeded on the basis of passive smoking rather than actual smoking.  In relation to entries in medical records tendered in evidence in which a number of medical practitioners recorded non-smoker …tobacco nil, …smoke never concerning the veteran, the applicant suggested that most of these notations were made after the applicant had given up smoking and therefore were accurate.   

12. In an undated written statement Ms D. Kardella, the veteran's daughter, said that according to her recollection the veteran was a modest smoker who enjoyed smoking at home.  She estimated his daily consumption at 5-8 cigarettes throughout his life.  
    CONSIDERATION OF THE ISSUES

13. The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service is laid down by the Federal Court of Australia 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 condition with the circumstances of the particular service rendered by the veteran.

14. The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. 

15. 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. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis; that is to say, the hypothesis 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. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.

16. Mr Hyde submitted that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is reasonable.  He acknowledged that there were inconsistencies between the evidence of the applicant and Ms Kardella concerning the veteran's cigarette consumption.  He also noted that in documentation dated between 1984 and 1986 medical practitioners had recorded that the veteran was a non-smoker.  However, Mr Hyde referred to the beneficial nature of the legislation and submitted that although the details of cigarette consumption outlined by the applicant and Ms Kardella were imprecise, the Tribunal should find that the veteran was a smoker during his army service and after the war.  Mr Hyde said that if the Tribunal accepts that the veteran was a smoker then on the evidence the Tribunal would be entitled to conclude that a factor in the relevant SoPs concerning the level of cigarette smoking in at least one of the claimed conditions would be met.

17. On the question of a causal link with operational service, Mr Hyde submitted that the veteran was in the Darwin area of the Northern Territory at the time of Japanese bombing in 1943.  The Tribunal could draw an inference that the stress arising from this situation, as well as other factors, such as boredom and peer pressure, during the veteran's army service might have led to an increase in cigarette consumption.

18. Mr Purcell submitted that the evidence concerning smoking by the veteran was unreliable and contradictory, and that the raised facts do not point to an hypothesis connecting the conditions with the circumstances of the particular service rendered by the veteran, so that the first step of Deledio is not met.  Alternatively, he submitted that any hypothesis raised does not fit within the template and is not reasonable, so that the third step is not met.  He referred to the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564 and said that there is material before the Tribunal which would disprove one or more of the facts necessary to prove the hypothesis. Mr Purcell stated that the documentary evidence, together with the fact that smoking was not raised at the first hearing before the VRB, is sufficient for the Tribunal to draw the conclusion that the veteran was a non-smoker.

19. Mr Purcell submitted further that even if the third step is met, there is no evidence to conclude, on the facts, that the veteran was in Darwin during the Japanese bombing or that he was affected by this or any other service-related events that may have contributed to any increase in the consumption of cigarettes.

20. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

21. The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, the veteran suffered from pulmonary thromboembolism, diabetes mellitus, ischaemic heart disease and atherosclerotic peripheral vascular disease. Based on the evidence of the applicant and Ms Kardella, the Tribunal finds that the material points to a hypothesis connecting the conditions with the circumstances of the particular service rendered by the veteran.

22. In respect of the second step, the Tribunal finds that SoP Nº 3 of 2001 concerning pulmonary thromboembolism, Nº 79 of 2001 concerning peripheral neuropathy, Nº 82 of 1999 concerning diabetes mellitus, Nº 38 of 1999 concerning ischaemic heart disease and Nº 87 of 1995 concerning atherosclerotic peripheral vascular disease were in force and are relevant.

23. In respect of the third step, the Tribunal finds that the applicant was a truthful witness who answered questions relating to events that occurred up to sixty years ago to the best of her recollection, and that her evidence that the veteran was a smoker was plausible.  The applicant gave various estimates of daily consumption of cigarettes ranging from 10-30 but had no real basis for her estimates, other than butts and cigarette packets in the home.  The Tribunal also accepts the evidence from Ms Kardella that the veteran smoked at home after meals and whilst relaxing. Ms Kardella described the veteran as a modest smoker and gave a reasoned and detailed estimate of 5-8 cigarettes per day, and her outline of the circumstances in which the veteran smoked appeared realistic.  In all the circumstances, and taking into account the notations in the medical documents, the Tribunal finds that during the relevant period the veteran smoked 10-15 cigarettes per day.

24. Factor 5(c) of SoP Nº 82 of 1999 concerning diabetes mellitus states:

    in relation to type 2 diabetes, smoking at least 10 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of diabetes mellitus, and where smoking has ceased, the clinical onset has occurred within 10 years of cessation.

Paragraph 8 of the SoP defines a pack year as 20 cigarettes per day for a calendar year, or 7300 cigarettes.

1. Based on the evidence including clinical notes produced by medical practitioners the Tribunal finds that clinical onset of type 2 diabetes mellitus occurred in 1982.  As the period of service began in 1942, and the veteran ceased smoking in 1984 to 1986, the relevant period is 1942 to 1982.  In view of the Tribunal's finding that the veteran was a smoker of 10-15 cigarettes per day during the relevant period, the Tribunal finds that in the 40-year period the veteran smoked between 146,000 and 219,000 cigarettes.  Therefore the veteran exceeded 73,000 cigarettes (10 pack years) before the clinical onset of the condition and satisfies factor 5(c), so the applicant satisfies the third step, and there is no need for the Tribunal to consider the remaining conditions of pulmonary thromboembolism, ischaemic heart disease and atherosclerotic peripheral vascular disease.

2. In respect of the fourth step concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, and where the Tribunal is called upon to make findings of facts, the Tribunal finds that the veteran served in various postings during World War 2 in a number of States and the Northern Territory.  However, the Tribunal accepts the submission by Mr Purcell that there is no persuasive evidence from the veteran's service records or elsewhere that the veteran was in Darwin or other parts of the Northern Territory at the time of the Japanese bombing or that he was affected by this or any other service-related events that may have contributed to his consumption of cigarettes.  There is no evidence that there were particular stresses associated with the veteran's service that may have been a causal link with his smoking habit.

3. The veteran may well have been bored at various times during service, and there may have been some peer pressure to smoke and a ready availability of cigarettes.  However, as noted in Repatriation Commissionv Keenan (1989) 19 ALD 509 such occurrences are insufficient to establish the causal link between service and smoking. The Tribunal does not accept that the provisions of s119 of the Act concerning the effects of the passage of time or the absence of, or deficiency in, relevant official records overcome the lack of evidence in this application.

4. For this reason, in all the circumstances, the Tribunal is satisfied beyond reasonable doubt that the applicant does not satisfy the fourth step.  Therefore, the hypothesis cannot be sustained and the Tribunal finds that the conditions were not war-caused.
   DECISION

5. The Tribunal affirms the decision under review.

   I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:
   G.D.Friedman, Member

   (sgd)       Olympia Sarrinikolaou
                 Clerk

   Date of hearing:  26 September 2002

   Date of decision:  7 October 2002
   Counsel for applicant:                Mr D. Hyde
   Solicitor for applicant:                  De Marchi & Associates
   Counsel for respondent:              Mr G. Purcell
   Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs