West and Repatriation Commission
[2004] AATA 467
•13 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 467
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V03/206
VETERANS' APPEALS DIVISION ) Re EDWARD WEST Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date13 May 2004
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that Atherosclerotic Peripheral Vascular Disease is war-caused. Pension at the General Rate shall be increased to 40% with effect from 8 July 2001. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – atherosclerotic peripheral vascular disease – Vietnam service – stressful events – cigarette consumption – inconsistencies in questionnaires and evidence at VRB – decision set aside
Veterans’ Entitlements Act 1986 (Cth) s120
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
13 May 2004 Mr J Handley, Senior Member 1. The applicant applies to review a decision of the Veterans’ Review Board (“VRB”) made on 28 January 2003. This decision affirmed a decision previously made by the Repatriation Commission refusing a claim for acceptance of Atherosclerotic Peripheral Vascular Disease as war-caused. The VRB additionally set aside a decision previously made by the respondent to assess disability pension at 20% of the General Rate and in substitution decided that General Rate pension be paid to the applicant at 30% with effect from 23 September 2002.
2. Mr West receives General Rate pension for the accepted disabilities of Chronic Solar Skin Damage, Acquired Cataracts in Both Eyes, Bilateral Sensorineural Hearing Loss and Right Elbow Laceration. The conditions of Post-Traumatic Stress Disorder, Hypertension, Hyperlipidemia, Dupuytren’s Contracture Right Hand, Alcohol Dependence and Atherosclerotic Peripheral Vascular Disease are rejected disabilities.
3. This review concerns only the decision of the VRB with respect to Atherosclerotic Peripheral Vascular Disease.
4. The Parties agreed that if that condition was found by this review to be war-caused, the applicant would have an entitlement to General Rate pension of 40%.
5. The hearing of the review was held in Bendigo on 22 April 2004. Mr Liefman appeared on behalf of Mr West and Mr Douglass appeared on behalf of the Repatriation Commission. Mr West gave evidence. At the conclusion of his evidence both representatives provided oral submissions.
6. Save for significant issues which concern the applicant’s smoking history, most of the issues giving rise to this review were not in dispute.
7. Mr West was born in Albury in 1949 and was educated to Year 7 level. He left school at the age of 14 years and thereafter worked on his father’s farm in the Kiewa Valley near Albury. He was conscripted into the Australian Army on 8 July 1970 and was discharged on 7 January 1972. He served in Vietnam between 2 June 1971 and 8 December 1971.
8. A number of events in service exposed Mr West to considerable stress and it was not disputed that those events (but for the issue in dispute in these proceedings) would ordinarily have either caused the commencement of a cigarette smoking habit or an increase in the consumption of cigarette smoking. Those events comprised:
(i)attacks upon Australian vehicles creating a level of apprehension;
(ii)perceiving a risk of being shot by a New Zealand soldier;
(iii)frequently driving supply vehicles without escort; and
(iv)learning of the death of a close friend Jimmy Duff who the applicant knew in Kiewa and with whom he had completed core training.
9. The decision made by the VRB under review in these proceedings arose out of a second application Mr West had made for acceptance of the condition Atherosclerotic Peripheral Vascular Disease.
10. On 28 July 1998 Mr West completed a questionnaire with respect to his cigarette smoking preparatory to the first application made upon the respondent. In that questionnaire which he signed but which had been completed by an advocate at the RSL in Shepparton, it was recorded that Mr West first started smoking cigarettes on a regular basis “upon entering military service in July 1970”. The form then asked how many cigarettes were then being “regularly” smoked at that time and the answer given was “30/40 tailor mades per day” (refer T-documents p32).
11. At the hearing before the VRB on 26 March 2001, Mr West was then asked to confirm whether he was smoking 30 to 40 cigarettes per day upon entering into National Service in July 1970. In answer to that question he agreed that he was smoking in July 1970 in that quantity and when later asked whether there was any variation in the quantity of cigarettes consumed he answered “I don’t think so, it was probably the same – thereabouts” (refer transcript p34).
12. The VRB ultimately decided that, on the basis of the questionnaire signed by Mr West and his answers to questions at the hearing, that he was smoking in the quantity of 30 to 40 cigarettes per day from enlistment. His application was rejected when the VRB affirmed the decision previously made by the respondent.
13. In November 2002 Mr West made another claim upon the respondent for acceptance of the condition of Atherosclerotic Peripheral Vascular Disease and completed another smoking questionnaire.
14. The questionnaire was completed with the assistance of an advocate at the Bendigo RSL. In that questionnaire he answered that he commenced smoking on a regular basis in July 1970 and was then regularly smoking “3-5” cigarettes per day. Question 6 of the questionnaire asks whether there was any change in the smoking habit and Mr West recorded that from July 1971 he was smoking between “10-20” cigarettes per day, from approximately November to December 1971 he was smoking “30-40” cigarettes per day and for the last 15 years he had been smoking roll your own cigarettes by consuming 3 packets of tobacco per week (T-documents p69-70).
15. Appended to that questionnaire was an explanation given by Mr West for the variation in his smoking history as provided to the respondent (T-documents p68). That explanation is reproduced as follows:
I wish to advise that the attached smoking questionnaire filled in by myself with the assistance of Mr W. Wiltshire Advocate is as a true and accurate statement of my smoking history that my memory allows.
I offer the following explanations, on why my previous statement is incorrect.
· I did not understand the question relating to when I started smoking regularly, and I thought that I was required to advise how many cigarettes I was smoking when I left the Army.
· I was not aware of the reasons for filling this questionnaire out; I was not well at the time and filled the questionnaire in without much thought.
· Mr Wiltshire has explained the questionnaire to me and I now feel that I have given a truer account of my smoking.
· When I appeared at the VRB, I was very confused and nervous. I felt that I was on trial, I was trying to answer each question thinking that I had to précis with figures and amounts, and as I could not remember them I did not explain myself as well [sic] I should.
· At the time of the VRB hearing my wife and I had just been through another court case on another matter, and had been through many mediation and conference meetings we were both stressed out by this.
· I felt that I was being bombarded with questions at the VRB hearing this made me feel anxious and I guess I just did not answer the questions correctly.
I hope that this letter is accepted as being the correct history of my smoking.
16. When the VRB convened on 28 January 2003 to hear the appeal which ultimately has given rise to this review, the Members of the VRB asked Mr West a number of questions with respect to his smoking questionnaires and the answers given by him at the first VRB Hearing. On this occasion Mr West confirmed (subject to the manner in which some of his answers may be interpreted – refer later) the contents of the questionnaire completed in November 2002.
STATEMENT OF PRINCIPLES
17. The only Statement of Principles (“SOP”) applicable during the assessment period was Instrument No. 65 of 2002 entitled “Atherosclerotic Peripheral Vascular Disease”. Mr Liefman relied on factor 5(a) which provides:
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting atherosclerotic peripheral vascular disease or death from atherosclerotic peripheral vascular disease with the circumstances of a person’s relevant service are:
(a) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least three years before the clinical onset of atherosclerotic peripheral vascular disease and where smoking has ceased, the clinical onset has occurred within 20 years of cessation; or
18. In the context of the present application, a finding of fact with respect to the history of cigarette smoking by the applicant is crucial. This is because the above SOP applies with respect to persons who were engaged in operational service. Whilst Mr West enlisted on 8 January 1970, his operational service did not commence until 2 June 1971. If Mr West was smoking 30 to 40 cigarettes regularly per day from July 1970, he cannot meet the criteria within factor 5(a) because he had a history of cigarette smoking at the rate of 30 to 40 per day prior to the commencement of operational service and this habit of consumption continued during operational service, without variation. He would not be able to establish a connection between smoking and operational service because of a pre-existing habit.
19. In the alternative if, on his subsequent smoking history, he was regularly smoking cigarettes at between 3 to 5 per day from July 1970 which increased to 10 to 20 cigarettes per day from July 1971 and at 30 to 40 cigarettes per day from November to December 1971 he will have met the criteria under factor 5(a) by reason of an increase in his smoking habit, thereby meeting the minimum rate of cigarette consumption within factor 5(a).
CONCLUSION AND REASONS FOR DECISION
20. The applicant was described by Dr Christopher Percival, a Psychiatrist in a report of 28 September 1998 (T7), as a person suffering from psychomotor retardation who was also an imprecise and poor historian. Some of his personal circumstances gave rise to the opinion expressed by Dr Percival that Mr West suffers from panic disorder with agoraphobia. His memory and concentration was found to be marginally impaired and his thinking was subjectively slowed. Dr Percival was of the opinion that a diagnosis of depressive disorder was appropriate with features of alcohol and nicotine dependence.
21. At his appearance at the hearing in Bendigo, Mr West displayed a florid complexion and was obviously withdrawn and anxious. He was disturbed and upset when answering some questions asked of him with respect to events within service. On one occasion when he was asked to describe his reactions to having heard distant gunfire, Mr West commenced to explain his distress but was unable to complete his answer. He spoke of his reaction to the death of his friend Jimmy Duff and said that he was very upset “because he was my mate”. At that stage in his evidence Mr West had a noticeable tremor in both hands and he then adopted a posture of leaning forward with his head bowed.
22. Mr West said that at the time he completed the first questionnaire, he recalled that he was assisted by a volunteer. He recalled that questions were asked of him but he could not now recall the questions asked or what he was being asked to provide by way of information. He said he could not distinguish between questions asked of his cigarette habit at enlistment compared to his cigarette habit at a later time.
23. Mr West was asked on a number of occasions whether he could explain the answers that he gave to questions put to him by the VRB Members at the first hearing and gave various explanations being that he “didn’t know”; “I wouldn’t have a clue”’; “I was confused”; “I didn’t understand the questions”; “I was very nervous”; “I couldn’t get it straight, couldn’t think”.
24. It emerged in evidence that at the time of the first appearance before the VRB Mr West and his wife were defendants in Supreme Court litigation concerning the sale of his former farm. Mr West explained that ultimately the parties were directed to attend a mediation conference in Melbourne which resulted in the application being resolved. Those proceedings were alive at the time of the first hearing but had resolved by the time the second hearing occurred at the VRB. Mr West confirmed by his answers to questions asked of him by the VRB Members on the second occasion that he was involved in that litigation but those proceedings did “cost us well over $100,000” (refer transcript p20). At the hearing of these proceedings, Mr West advised that he was relieved that the Supreme Court proceedings had concluded at the time of the second VRB hearing yet he was not “satisfied with the result”. He said that whilst the proceedings cost him a great deal of money he and his wife did not lose their home.
25. Mr West also said in evidence that at the time of the first VRB hearing he was consuming “depression pills” and such was the apparent level of distress and anxiety suffered by he and his wife concerning the Supreme Court proceedings, Mrs West had been diagnosed with hypertension and was prescribed medication. Mr West said that he had ceased consumption of the “depression pills” by the time he gave his evidence at the second VRB hearing.
26. Mr West also said in evidence that he was confused by and reluctant to complete forms asked of him from time to time and frequently asked his wife to either complete or assist. In a statement completed by him and received into evidence (Exhibit B) he recorded that he “always had trouble filling out forms as I only went as far as Year 7 which I repeated then left school I was 14½ years old”.
27. Mr West said that he had never been advised that he should either change his history or give a different history. He said that he provided a different smoking history preparatory to his second application because he “thought about it a bit more”.
28. Mr Liefman submitted that the history given by the applicant in his second application should be accepted and found as a fact. It was submitted that having regard to his client’s limited education that it should be found that the answers given in the first questionnaire were incorrect and arose out of his poor comprehension of the questions asked of him. Additionally it was submitted that the applicant came from a background of being a non-smoker prior to enlistment and in those circumstances it would be unlikely that his client would commence smoking at 30 to 40 cigarettes per day.
29. Mr Douglass submitted that the applicant should be found as a person who had no difficulty completing forms and on each occasion had been assisted by an RSL advocate. Additionally it was submitted that the answers given at the first VRB hearing confirmed the contents of the first questionnaire and mistake or confusion could not be submitted as a basis for the alleged errors in the first history and the answers given at the first VRB hearing. It was submitted that the transcript of the first VRB hearing gave no indication that Mr West was confused or had any difficulty answering the questions asked of him. It was submitted that his modest education was an irrelevance and the explanations provided at the hearing of these proceedings were not persuasive.
30. I am satisfied that the first three stages of analysis as pronounced in Repatriation Commission v Deledio (1998) 83 FCR 82 have been satisfied. I am not satisfied that the respondent has disproved the applicant’s case pursuant to s120(1) of the Veterans’ Entitlements Act 1986 (“the Act”) as discussed in fourth stage of the Deledio analysis.
31. I am satisfied on the balance of probabilities that the history given in the questionnaire of November 2002 preparatory to the application which had given rise ultimately to these proceedings is to be preferred. I am of the view, for reasons which follow, that the history then given is more likely to be accurate and in those circumstances is to be preferred.
32. I am satisfied that the applicant did not smoke cigarettes prior to his enlistment on 8 January 1970. I am satisfied that thereafter he smoked at the modest rate of 3 to 5 per day. I am not prepared to find as a fact that the applicant would have commenced smoking at July 1970 at the rate of 30 to 40 per day. It is more than likely that the applicant increased his smoking habit by reason of the stressful events in service to which he was exposed, which occurred only after he arrived in Vietnam. It therefore follows that the history of change in smoking habit found at question 6 of the questionnaire of November 2002 is also to be preferred. It records that the rate of cigarette consumption increased to 10 to 20 cigarettes per day from July 1971 being approximately three weeks after arriving in Vietnam. This is consistent with the applicant’s evidence that he commenced transport driving in July 1971 after he had been in camp in Vietnam for two or three weeks. Some of the events in service which Mr West found to be stressful occurred during occasions when he was driving, namely being fired upon, driving without an armed escort and learning of reports of other transport vehicles being fired upon. It has been heard in many other applications by veterans in this Tribunal that cigarettes are either consumed or there is an increase in the consumption of cigarettes because cigarette consumption is perceived as a relaxant.
33. Additionally I am satisfied and find as a fact that at approximately November to December 1971, Mr West was then consuming cigarettes at 30 to 40 per day. That would have been at a point in time shortly after he learnt of the death of his friend Jimmy Duff and after he had also been exposed to the threat of being shot by a New Zealand soldier. Between July and November 1971 Mr West also continued to be engaged as a transport driver thereby being exposed to the stressful events referred to earlier.
34. Perhaps unlike an interpretation placed on the smoking questionnaire by Members of the VRB, I do not find that in November 1971 Mr West commenced to smoke at 30 cigarettes per day. I am satisfied that the answers given by him in his second questionnaire refer to an increase in smoking habit of between 30 to 40 per day from approximately November 1971. It would be unreasonable to assume that there was a sudden escalation in the rate of cigarette consumption at November 1971. I prefer the view that there was a gradual increase in cigarette consumption from between 10 to 20 per day in July 1971 until November to December 1971 where at that time approximately 30 to 40 cigarettes per day were being consumed.
35. I am more than satisfied, having read the contents of the T-documents, the report of Dr Percival and having observed Mr West in evidence that he is withdrawn, anxious, disturbed and confused. I doubt that in July 1998 when the first questionnaire was completed that he either understood the questions asked of him or he was consciously aware of the answers that he gave. It is not known whether the person who assisted Mr West at that time properly asked the questions or understood what was being asked by the questionnaire but it is noteworthy that Mr West decided to abandon the assistance available in Shepparton (where he lives) and sought assistance from the Bendigo RSL for the purposes of the second application. It is worthy to note also that the Mr West’s advocate in the second application submitted to the VRB that the second questionnaire was completed after Mr West was “questioned thoroughly”, which resulted in a different history of cigarette consumption being provided (refer transcript of second VRB Appeal at p10).
36. I am also of the view that Mr West is a person who either becomes confused or overwhelmed by questions asked of him and will readily agree to propositions which may not be accurate. I note that the Members of the VRB during the second hearing put certain propositions to him which historically – having regard to the evidence heard in these proceedings and the earlier findings – were not correct. For example, at page 17 of the transcript it was put to Mr West that “by the time you went to Vietnam you were smoking 10 to 20 a day; is that right?”. The answer given was “I got to 10 to 20, roughly, about July 1971”. When a history of cigarette consumption as understood by the Member was put to Mr West being “. . . by the time you went to Vietnam which was 1971 you were smoking something between 10 and 20 a day”. The answer given by Mr West was “Yes”. In his evidence in these proceedings that answer is not accurate. He was not smoking 10 to 20 per day in June 1971. He commenced to smoke 10 to 20 per day in July 1971 which was one of the answers that he gave to the VRB and which was at a point in time two or three weeks after he first arrived in Vietnam and at a point in time when stressful events in service commenced to occur. An increase in his consumption of cigarettes is more likely to have occurred when stressful events commenced to occur.
37. I am additionally satisfied that there was a gradual increase in smoking consumption in Vietnam having regard to answers given by Mr West to questions concerning his pattern of cigarette purchase. Mr West said that in Vietnam he initially purchased cigarettes in single packets in wet canteens. Eventually he purchased cigarettes either by single packets or in cartons. Access to wet canteen was only available when Mr West was on base which was not necessarily daily. The alteration in the habit of purchase of cigarettes from single packet to cartons is consistent when there is an increase in the daily consumption of cigarettes.
38. On balance therefore I am satisfied that the applicant is a witness of truth.
39. The concession made by the respondent as to the connection between smoking and or an increase in smoking habit (if proved) by stressful events in service was sound and properly made.
40. In the circumstances the decision under review is set aside and in substitution it is decided that Atherosclerotic Peripheral Vascular Disease is war-caused. Pension at the General Rate shall be increased to 40% with effect from 8 July 2001.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Handley, Senior MemberSigned: Holly Weston
Associate
Date of Hearing 22 April 2004
Date of Decision 13 May 2004
Solicitor for the Applicant Mr P Liefman
Departmental Advocate Mr R Douglass
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