West and Repatriation Commission

[2003] AATA 182

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 182

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2001/78

VETERANS' APPEALS  DIVISION		)
Re		MELVYN FREDERICK WEST

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date25 February 2003

PlaceHobart

Decision The decision under review is affirmed.

[Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veterans’ Entitlements – malignant neoplasm of the bladder – increase in smoking habit during service – not defence-caused – decision under review affirmed.

REASONS FOR DECISION

25 February 2003 Ms A F Cunningham (Part-time Member)          

1.      The applicant has sought the review of that part of a decision of Repatriation Commission dated 3 August 2000, which was affirmed by a decision of the Veterans’ Review Board on 18 April 2001 whereby the applicant’s claim to have malignant neoplasm of the bladder accepted as due to service was refused.

2.      The applicant was represented by Mr R Webster, and gave oral evidence via telephone at the hearing.   The respondent was represented by Mr Castle and called no evidence.

3. The T Documents were tendered pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975.

4. There was no dispute as to the applicant’s service with the Australian Army between 3 July 1973 and 21 April 1996 which constituted defence service with the meaning of s68(1) of the Veterans’ Entitlements Act 1986 (“the Act”).   Nor was there any dispute as to the diagnosis of the applicant’s condition of malignant neoplasm of the bladder.   Dr A Lalak’s report dated 12 January 2000 states that the applicant’s pathology report revealed a grade 1 transitional cell carcinoma.

5.      The issue for determination is whether the applicant’s condition of malignant neoplasm of the bladder was caused by the conditions of his service.   It was contended on behalf of the applicant that the stressful circumstances of the applicant’s service caused him to increase his smoking habit, which in turn led to his condition.

6. As the applicant did not have operational service within the meaning of the Act, the Tribunal must decide all relevant issues in accordance with the provisions of s120(4) of the Act which states:

“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.”

7. As the applicant’s claim was lodged after 1 June 1994, the provisions of s120B of the Act apply and in particular sub-section (3) which provides that the Tribunal can be reasonably satisfied of the connection between an applicant’s injury/disease and his defence service where the material raises a connection between the injury/disease and the applicant’s service and there is in force a Statement of Principle that upholds the contention that the injury/disease is “on the balance of probabilities” connected with the service.

8.      The Tribunal was referred to and the parties agreed that the relevant Statement of Principle concerning malignant neoplasm of the bladder is Instrument No 24 of 2000.   It was contended on behalf of the applicant that the evidence supported the connection between the applicant’s condition and his service by virtue of the provisions of sub-paragraph 5(e) which reads:

“smoking at least five pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of malignant neoplasm of the bladder.”

9.      In the applicant’s claimant report made on 19 July 2000 (T52-53), the applicant stated that he first started smoking cigarettes on a regular basis in mid 1956 and was then smoking “30 16mg cigarettes daily”..   To the question why the applicant started smoking cigarettes on a regular basis, he responded “to combat stress and curtail hunger and boredom”.   The applicant further stated in the claimant report “I found that the number of cigarettes smoked daily increased with periods of high stress related appointments or long periods of employment with minimal activity (boredom) I spent 6 years with ACS Holsworthy between Feb87 – Oct 92 when I was relocated to other employment following identification of chest condition which the service refused to accept liability for”.

10.     In evidence the applicant claimed that at enlistment he “was not smoking much … a packet a day”.    The applicant said that he was then physically active and played a lot of sport.  

11.     When the applicant initially arrived in Australia, he said that he had been offered a position with the military police but that because of internal turmoil he ended up with a different position which caused him a great deal of stress.   He had worked as a community service officer and a warrant officer and his work involved investigations and report writing.   The applicant informed the Tribunal that the work often involved quite stressful situations including attempted suicides.   He recounted a particular stressful occasion when he attended a scene following the suicide of another serviceman.   The serviceman had in fact shot himself in the head with a shotgun and the applicant was responsible for “cleaning up” after the incident.

12.     The applicant recounted other incidents when he was called out to counsel young men following attempted suicides and in particular a young man whose wife had recently left him.   The applicant said that when he arrived the young man's body was burning, following a gas explosion when he attempted to light a cigarette.

13.     The applicant contended that the stressful conditions of his work led to his increased smoking.   During his service period at Holsworthy, he said that he was smoking 2 packets per day, compared with his previous habit which had been up to 1 packet per day.

14.     The applicant said that he commenced smoking at the age of 15, but never smoked more than 1 packet per day and sometimes less than this.

15.     The applicant described his previous work as a member of the British Army, which also involved stressful situations, for instance, during his patrol work on the Berlin Wall where he witnessed several deaths.  

16.     Under cross-examination the applicant stated there was a period of time when he was smoking up to 30 cigarettes per day when he was working with community services, which work caused him high levels of stress and involved a lot of travelling. The applicant pointed out that he participated in regular sporting activities until he was about 40/42 years of age and that his smoking habit did not affect his physical activity at that stage.

17.     The applicant stated that it was about this time when he was working as a warrant officer which was a fairly sedentary position and he was smoking approximately 1 packet of cigarettes per day.

18.     The applicant maintained that it was following this work when he was re-positioned to a more stressful type of work, that his smoking habit increased to 30 cigarettes per day and up to 2 packets per day, which continued until around 1992 when he simply decided “to quit”.

19.     There was no argument that the applicant’s smoking habit fell within the provisions of factor 5(e) of the SoP.   The question for determination is whether the Tribunal could be reasonably satisfied that the increase in the applicant’s smoking habit arose out of or was attributable to “his service with the Australian Army”.

20.     The meaning of this term was considered by the Full Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540 which also concerned the issue as to whether there was a connection between the period of service and the serviceman’s smoking habit. In that case the serviceman had not smoked before entering camp with the army, but by the end of his period in camp he was smoking about 20 cigarettes per day. The Full Court stated:

“The Tribunal noted that it was not sufficient to simply find a temporal connection; what was required was ‘something within the applicant’s miliary 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’”.

21.     The Tribunal took into account the respondent’s evidence concerning the boredom of life in camp, the fact that cigarettes were cheap,  that other people were smoking around him and the applicant’s concern regarding his future in the military.  In that case the Tribunal was satisfied that the incidents of camp life had a causal influence on the respondent’s decision to take up smoking and concluded that the applicant’s condition thereby “arose out of or was attributable to” his service.

22.     In the present case however, the applicant had a clearly established smoking habit well prior to his enlistment with the army.   The evidence is that he commenced smoking at the age of 15 and was smoking between 20 and 30 cigarettes per day prior to his enlistment.   Whilst his cigarette consumption may have reduced to around 20 cigarettes per day during the time when he was engaged in less stressful occupations, nevertheless, his regular smoking habit continued throughout the period of his service.   Whilst the Tribunal can accept that there were periods of time during the applicant’s service when the stress of his work led to an increase in his cigarette consumption of up to 2 packets per day on occasions, the Tribunal is unable to conclude on the balance of probabilities that it was this increase in cigarette consumption to around 30 to 40 cigarettes per day that provided the necessary causal connection with his malignant neoplasm of the bladder condition. 

23.     Five pack years of cigarettes as defined in the SoP equates to 20 tailor-made cigarettes per day for five years.   The applicant had been smoking between 20 and 30 cigarettes per day since 1956, some 17 years prior to his enlistment.   This habit continued without interruption albeit with some increase throughout the  23 years of his service.

24. The provisions of s9(1)(b) of the Act state that a disease shall be taken to be war-caused if it “arose out of, or was attributable to any eligible war service rendered by the veteran”. The Tribunal being unable to find the necessary causal connection between the applicant’s condition and the increase in his cigarette consumption during his service, it accordingly affirms the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed:         .......................................................................................
  Administrative Assistant

Date/s of Hearing  7 and 21 November 2002
Date of Decision  February 2003
Counsel for the Applicant         Mr R M Webster
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Repatriation Commission