Wiseman and Repatriation Commission
[2005] AATA 793
•19 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 793
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1129
Nº V2003/1130
VETERANS' APPEALS DIVISION
Re: HAROLD WISEMAN
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 19 August 2005
Place: Melbourne
Decision:The Tribunal affirms the decisions under review.
(sgd) G.D. Friedman
Senior Member
VETERANS' AFFAIRS ‑ veterans’ entitlements - diabetes mellitus - lumbar spondylosis - atrial fibrillation - smoking - whether service‑caused
Veterans’ Entitlements Act 1986 ss 119(h), 120(4), 196B(14)
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
REASONS FOR DECISION
19 August 2005 G.D. Friedman, Senior Member
1. These are applications by Harold Wiseman (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 2 September 2003. The VRB affirmed the following decisions of a delegate of the Repatriation Commission (the respondent) a decision dated 20 June 2002 to refuse a claim for a disability pension for diabetes mellitus (V2003/1129); and a decision dated 13 March 2003 to refuse a claim for a disability pension for atrial fibrillation, and lumbar spondylosis, sick sinus syndrome and supraventricular tachycardia (V2003/1130), because the conditions were not service-caused.
2. At the hearing on 20 June 2005, 27 July 2005 and 28 July 2005 Mr D. De Marchi, solicitor, represented the applicant and Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs (the Department), represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T26), plus 12 exhibits (Exhibit A1 to A12) lodged by the applicant and 12 exhibits (Exhibits R1 to R12) lodged by the respondent.
BACKGROUND
4. The applicant was born on 22 April 1918. He enlisted in the Australian Army (the army) on 1 February 1939 and served as a driver of small and large vehicles; and as a personal driver until 25 November 1941. He was then discharged on compassionate grounds. The applicant’s service constitutes eligible service in accordance with the Veterans’ Entitlements Act 1986 (the Act).
5. On 25 February 2002 the applicant lodged a claim for hearing problems and diabetes mellitus to be accepted as war-caused. On 21 August 2002 the applicant lodged a claim for heart problems, diabetes mellitus and arthritis to be accepted as war-caused. On 20 June 2002 the respondent accepted the claim for bilateral sensorineural hearing loss with tinnitus, rejected the claim for diabetes mellitus and granted disability pension at 40 per cent of the general rate. On 23 July 2002 the applicant sought review by the VRB of the decision in respect of diabetes mellitus. On 13 March 2003 the respondent determined that atrial fibrillation, lumbar spondylosis, sick sinus syndrome and supraventricular tachycardia were not related to eligible service. On 2 May 2003 the applicant sought review by the VRB of the 13 March 2003 decision.
6. On 13 October 2003 the applicant lodged an application with the Tribunal for review of the VRB decision in respect of diabetes mellitus, atrial fibrillation and lumbar spondylosis.
7. The issue before the Tribunal is whether the diabetes mellitus, atrial fibrillation and lumbar spondylosis were service‑caused, as a result of cigarette smoking by the applicant and lifting heavy weights during his period of eligible service.
EVIDENCE
8. In a written statement dated 31 March 2004 (Exhibit A4) the applicant said that during his army service he drove trucks and staff cars, mainly at Puckapunyal. He stated that his work included transporting meat, which involved carrying heavy sides of beef. Later he transported ordnance stores in cases weighing more than 35kg, and carried ammunition which was stored in containers weighing approximately 80kg.
9. The applicant stated that during camps at Torquay he was required to handle cooking stoves which were extremely heavy. He estimated that during the time he drove a truck he would have lifted in excess of 200,000kg. He recalled that his back ached but he did not remember reporting the pain. He said that after discharge his back pain became progressively worse. The applicant believed that his army service caused his back problems.
10. The applicant stated that he was a light smoker when he enlisted in the army. However, as a result of peer pressure and the availability of cigarettes in the army, he increased his smoking; particularly towards the end of his service when he was driving VIPs in a staff car. He said that he was under considerable pressure relating to punctuality and appearance and he experienced long periods of boredom. This led to increased smoking. The applicant stated that after leaving the army he continued to smoke about 30 cigarettes per day into the 1980s, and resumed when his wife suffered a heart attack in 1992.
11. In a written statement dated 1 April 2004 (Exhibit A5) the applicant said that although he signed a smoking questionnaire in March 2002, he did not complete the document. He said the questionnaire was incorrect in that he did not cease smoking in 1960.
12. In oral evidence the applicant said that he had wanted to remain in the army, but was forced to leave in 1941 because of family obligations after his father became ill. He said that, like many smokers, he told various medical practitioners over a long period that he had ceased smoking, although this was untrue, because he was trying to convince himself. He said that he finally stopped smoking in about 2000, after his wife died. Under cross‑examination the applicant stated that he began smoking when he was about 16 or 17 years old. He disagreed with his daughter’s evidence to the VRB, that he had told her he started smoking when he was 13 or 14 years old. He stated that he had given up smoking many times. However, he recalled smoking regularly while visiting his wife at the nursing home, where she lived from 1992 until her death in 2000.
13. In a written statement dated 1 April 2004 (Exhibit A6) Ms P. Hammill, the applicant’s daughter, said that the applicant had been a heavy smoker for as long as she could remember. She stated that to her knowledge the applicant was still smoking in 2001. In oral evidence Ms Hammill said that she observed her father smoking at the nursing home, but was unaware of the number of cigarettes. Under cross‑examination she said that when the applicant was examined by Dr M. Flynn, respiratory physician, she had corrected the applicant when he told Dr Flynn that he had ceased smoking at the age of 43.
14. In a written statement dated 13 April 2004 (Exhibit A10) Mr K. Hammill, the applicant’s son-in-law from 1960 to 1978, said that the applicant was a heavy smoker between 1960 and 1978. He noted that after his divorce he continued to see the applicant, and to his knowledge the applicant continued to smoke until the mid‑1990s. In oral evidence Mr Hammill said that he observed the applicant smoking during visits to the nursing home, and the applicant ceased smoking after the death of Mrs Wiseman. He told the Tribunal that the applicant was not being truthful when telling doctors that he had ceased smoking, because smokers convince themselves that they have given up the habit, but then start smoking again. Under cross-examination Mr Hammill said that he had visited the applicant’s home frequently after meeting Ms Hammill in 1956, and the applicant was always smoking heavily.
15. In a written statement dated 17 May 2004 (Exhibit A11) Ms S. Donaldson, the applicant’s granddaughter, said that she visited the applicant with her children in 1992 and 1993 and had to ask the applicant to smoke outside the house during her visit.
16. In a Claimant Report - Cigarette Smoking (smoking questionnaire) dated 19 March 2002 (T8), completed by the applicant for the Department of Veterans' Affairs, he stated that he first started smoking in 1938 because of socialising and he smoked two ounces of tobacco per week (roll-your-own cigarettes). He said that the amount smoked per day did not change since he first started smoking on a regular basis, and that he ceased permanently in 1960 for health reasons.
17. In a written report dated 22 March 2004 (Exhibit A2) Mr H. Hadley, orthopaedic surgeon, stated that he went through the applicant’s Smoking and Heavy Lifting Statement (Exhibit A4) with the applicant. Mr Hadley said that he verified with the applicant the conclusion, that while the applicant was driving trucks he lifted in excess of 200,000kg. He described the applicant as a pleasant elderly man with poor memory and poor hearing. Mr Hadley concluded (at p2):
…
He has spondylosis in his lumbar and low thoracic regions, especially at the L5/S1 level where the disc is very narrow and he has advanced sclerosis with spondylosis.
With him, during his service with the Australian Army, carrying loads of at least 35kg with a cumulative total of 168,000kg within any 10 year period before the clinical worsening of lumbar spondylosis and on referring to (v) in the factors in relation to the Statement of Principles concerning lumbar spondylosis, he satisfies the Statement of Principles concerning lumbar spondylosis in relation to his service with the Australian Army.
18. In oral evidence Mr Hadley said that the weights carried by the applicant included sides of beef, cooking stoves, and cases of ammunition. Under cross‑examination he agreed that his conclusion about lifting 200,000kg was based on information he was given by the applicant and the applicant’s solicitor. He also agreed that the applicant’s daughter assisted the applicant with the history of lifting and smoking because his memory was poor.
19. In a written report dated 16 February 2004 (Exhibit A1) Professor M. Pain, thoracic physician, stated that the applicant shows evidence of mild airflow obstruction, which Professor Pain attributed to the applicant’s past smoking habits. He also said that the applicant’s cardiovascular disease is probably contributing to his exertional breathlessness. In oral evidence Professor Pain described the degree of airway disease as relatively mild. Under cross-examination he agreed that he had relied on the history as given by the applicant.
20. In a written report dated 11 April 2005 (Exhibit A3) Dr M. Rosenbaum, cardiologist, stated (at p4):
…
3.The claimant has chronic respiratory disease the basis of which is not clearly defined. On the balance of probabilities, cigarette intake has contributed to this condition.
4.It is likely that the cigarette intake has resulted, in a significant part, from war service based on peer pressure, boredom, etc.
5.It is likely that the chronic respiratory disease has contributed to the presence of atrial fibrillation. Based on the Statement of Principles (atrial fibrillation, Veterans' Entitlement Act 1986) the claimant should fall within the accepted category of 5(i).
…
7.The diabetes does not appear to be associated with war service and may be regarded as a contributing factor to the presence of possible coronary artery disease and the cardiac condition in general.
In oral evidence Dr Rosenbaum said that the applicant was limited in his ability to relate his history, and was assisted by his daughter during the consultation. Under cross-examination Dr Rosenbaum agreed that the applicant had been uncertain regarding his smoking history.
21. In a letter dated 21 February 2005 to the applicant’s solicitor, Dr F. Perillo, general practitioner, stated that the earliest the applicant was diagnosed as suffering from diabetes Type 2 was 1997, although he may have been treated for the condition by another clinic at an earlier date. In oral evidence Dr Perillo said that he is the applicant’s son-in-law. He said that the applicant has attended his clinic, but usually has been treated by other doctors. Under cross-examination Dr Perillo said that he had no knowledge of the applicant’s service or smoking history.
22. In a written report dated 5 March 2004 (T22) Dr M. Flynn, respiratory physician, stated that he took a history that the applicant started smoking at the age of 16 years and smoked up to 50 to 60 cigarettes per day before ceasing to smoke at the age of 43. He said that the applicant presented with difficulty breathing, a small amount of dry cough but no sputum. Dr Flynn concluded:
…
My opinion is that Mr Wiseman appears to have 3 factors which may be contributing to his breathlessness. The first is that he has mild airflow obstruction consistent with his history of smoking. The low diffusing capacity may be related to emphysema although there is no evidence of emphysema on the high resolution CT scan. Secondly he has these multiple small calcified densities in the lungs, the nature of which is unclear…Thirdly he has required a pacemaker…
23. In oral evidence Dr Flynn said that the applicant’s daughter was present at the consultation and she disputed the applicant’s recollection of the extent of his smoking habit. Under cross-examination Dr Flynn agreed that he had not taken a history of any phlegm or sputum experienced by the applicant on earlier occasions; and that the applicant did not attend further consultations.
24. In a written report dated 27 July 2004 (Exhibit R2) Dr S. Hall, rheumatologist, acknowledged that the applicant suffered from lumbar spondylosis. He stated:
…
I find it impossible to come to any clear conclusion as to how much Mr. Wiseman would have lifted during the course of his military service. However, if one assumes that he worked for two years at five days per week, then one would conclude that there were 400 days spent lifting. He would lift with another worker. This would mean that for him to have lifted a cumulative total of 168,000kg. during that two year period he would need to have carried 25 35kg. boxes per day.
…
While his daughter assisted with the history, I am not at all convinced that I can be confident as to any aspect of the history with respect to whether he lifted the equivalent of 168,000kg during the course of his military service or when his symptoms of back pain first began to be a problem.
25. In oral evidence Dr Hall said that he had access to the applicant’s Smoking and Heavy Lifting Statement. He noted that during the consultation the applicant’s memory was poor, and his daughter assisted him by prompting him. Under cross-examination Dr Hall agreed that he was unable to conclude whether the applicant’s condition satisfies the criteria with respect to the weights lifted by the applicant in the relevant Statement of Principles (SoP).
26. In a written report dated 29 June 2004 (Exhibit R3) Professor R. Harper, consultant and interventionist cardiologist, noted that the applicant suffered from atrial fibrillation and supraventricular tachycardia, with clinical onset in 2000. Professor Harper said that there was no evidence of ischaemic heart disease. He stated that the applicant told him of a light smoking habit (less than 10 cigarettes per day) until 1938, and the applicant became a heavy smoker (50 to 60 cigarettes per day) during service. Professor Harper said that he was told the applicant reduced his smoking in 1960, but he continued to smoke intermittently until 2001.
27. Professor Harper said that atrial fibrillation frequently occurs in association with a sick sinus syndrome, and that this and lung disease could both have caused the applicant’s atrial fibrillation. He concluded:
…I believe it is likely Mr Wiseman’s lung condition contributed to his atrial fibrillation. In turn, I think it is likely that smoking contributed to his lung condition and thus in this way I think it is likely that Mr Wiseman’s smoking contributed to his atrial fibrillation.
CONSIDERATION OF THE ISSUES
28. Section 120(4) of the Act relates to the standard of proof to be applied and provides that the standard is that of reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act and any applicable SoPs issued by the Repatriation Medical Authority. Section 196B(14) of the Act states:
(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;
…
For the purposes of formulating the SoPs, the Repatriation Medical Authority must satisfy itself that there is sound medical-scientific evidence of the necessary connections between service and injury or disease, in accordance with generally accepted medical practice for the diagnosis and management of a medical condition.
29. The relevant factor in SoP N° 12 of 2004 concerning diabetes mellitus is:
5(c)in relation to type 2 diabetes mellitus, 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 five years of cessation.
Paragraph 8 of the SoP states:
"pack years of cigarettes or the equivalent thereof in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7 300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7 300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
The relevant factor in SoP N° 20 of 2003 concerning atrial fibrillation is:
5(i)suffering from chronic bronchitis with pulmonary obstruction at the time of the clinical onset of atrial fibrillation.
Paragraph 8 of the SoP states:
"chronic bronchitis with pulmonary obstruction" means a respiratory tract disorder with:
(a)excessive mucus production sufficient to cause cough and sputum production with expectoration for at least three months of each of at least two consecutive years which is not attributable to other respiratory diseases; and
(b)chronic expiratory obstruction on spirometric evaluation;
The relevant factor in SoP N° 47 of 2002 concerning lumbar spondylosis is:
5(i)manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity;
30. Mr De Marchi submitted that the applicant’s evidence should be accepted, and he should be given the benefit of any doubt arising from his poor memory as a result of his frailty and his age. Mr De Marchi said that the applicant satisfied the criteria for the relevant SoPs by having smoked more than 10 pack years of cigarettes.
31. Mr De Marchi said that the clinical onset of the applicant's diabetes mellitus was 1989, based on the evidence from Dr Perillo. He submitted that the applicant was a light smoker before enlisting in the army; he increased his cigarette smoking because of peer pressure and the availability of cigarettes to 30 per day until 1992; and he ceased smoking only after the death of his wife in 2000. Mr De Marchi stated that the applicant had explained the error about the date of cessation in the smoking questionnaire. Mr De Marchi submitted that the applicant satisfied factor 5(c) of SoP N° 12 of 2004.
32. Mr De Marchi referred to Professor Harper’s evidence that the applicant suffers from shortness of breath with evidence of lung disease, and the likelihood that atrial fibrillation is related to lung disease. He noted that Professor Harper concluded that the applicant’s smoking contributed to his lung condition. Therefore, the applicant’s atrial fibrillation was service-caused. Mr De Marchi submitted that there is no SoP in respect of supraventricular tachycardia and sick sinus syndrome, but that the conditions are service-related. He said that the applicant’s supraventricular tachycardia is similar to atrial fibrillation.
33. In respect of lumbar spondylosis Mr De Marchi referred to the applicant’s Smoking and heavy lifting statement in which the applicant estimated that he lifted in excess of 200,000kg during his eligible service, and that his back became progressively worse. Mr De Marchi noted that Mr Hadley supported the contention that the applicant meets the relevant SoP.
34. Mr De Marchi submitted that the applicant satisfies the definition of chronic bronchitis because the applicant smoked at least 10 pack years of cigarettes before the clinical onset of bronchitis. Therefore, the SoP for chronic bronchitis and emphysema is satisfied, and the conditions are then related to the applicant’s service.
35. Ms McCulloch noted that the applicant volunteered for overseas service but his eligible service was confined to the period between 3 September 1939 and 31 December 1941. In respect of lumbar spondylosis she said that the applicant was a specialist personal driver prior to August 1940 and would not have been lifting heavy objects while engaged in these duties. Therefore, the applicant's period of lifting heavy objects, as set out in his written statement, was less than one year, and there was little likelihood that he satisfied the relevant factor by lifting 168,000kg in that period. Ms McCulloch submitted that, in any event, clinical onset of lumbar spondylosis was in about May 2001 when the applicant first sought treatment for the condition; so that more than 25 years had elapsed after such physical activity had ceased. As a result, the applicant could not satisfy the relevant factor in the SoP.
36. Ms McCulloch noted that clinical notes from Fawkner Health Care show that the clinical onset for diabetes mellitus was about 1989. She referred to the applicant’s smoking questionnaire in which the applicant stated that he started smoking in 1938. She said that there were inconsistencies in the evidence as to the date that he stopped smoking, as the applicant had stated in the questionnaire that he ceased in 1960, and he told the Tribunal that he smoked when his wife suffered a heart attack in 1992. She submitted that, in any event, there was no temporal or causal connection between his smoking and service.
37. Ms McCulloch submitted that clinical onset for atrial fibrillation and supraventricular tachycardia was August 2000. She noted the definition of chronic bronchitis in the SoP and submitted that when the applicant saw Dr Flynn in 2003 there were no symptoms of sputum production, and there was no reference to sputum in the clinical notes from Fawner Health Care. She submitted that the applicant did not satisfy the relevant factor in the SoP.
38. In reaching a decision the Tribunal takes into account the oral and written evidence and the submissions made at the hearing. The Tribunal must form an opinion whether the contention raised by the applicant fits within, or is consistent with, a factor set out in the SoPs. If the contention fails to fit within the template, the claim will fail.
39. The Tribunal notes that in Kattenberg v Repatriation Commission (2002) 73 ALD 365 the Federal Court considered the situation in which the relevant SoP contained a factor requiring the smoking of 30 pack years of cigarettes. Emmett J stated (at 374):
…The tribunal construed the SoP as requiring that the smoking of at least 30 pack years of cigarettes be wholly attributable to the service. The tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Accordingly, it fell into error in its application of SoP 130 of 1996.
40. In respect of diabetes mellitus there was no dispute between the parties. The Tribunal finds that the applicant was a smoker before he joined the army. The Tribunal accepts the applicant’s evidence, supported by the evidence from Ms Hammill and Mr Hammill. The Tribunal also accepts the history taken by several medical practitioners, that the applicant stopped smoking not in 1960 (as stated in the smoking questionnaire) but after the death of his wife in 2000. The Tribunal accepts that the applicant satisfies the requirement in factor 5(c) of SoP N° 12 of 2004 of smoking the equivalent of 10 pack years of cigarettes before the clinical onset of diabetes mellitus.
41. The Tribunal notes the applicant’s answer in the smoking questionnaire that the amount smoked per day did not change since he first started smoking on a regular basis. The Tribunal also takes into account the applicant’s evidence of the availability of cigarettes, peer pressure and long periods of boredom when performing the duties of personal driver in the army. The Tribunal finds that the applicant was a heavy smoker in the 1950s and 1960s. However, he had a well‑established smoking habit prior to service. Considering the material as a whole, the Tribunal is not reasonably satisfied that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service. Therefore, there is no temporal or causal connection between the applicant’s level of smoking and his eligible service. It follows that the applicant’s contention does not fit the template for diabetes mellitus.
42. In respect of lumbar spondylosis the Tribunal finds that the applicant was a personal driver prior to August 1940, so that he would not have been engaged in lifting heavy objects while engaged in these duties. This would limit the period in which he lifted sides of meat, ordnance stores and ammunition to about 11 months of his eligible service. The Tribunal does not accept the speculative and unsubstantiated estimates given by the applicant in his Smoking and heavy lifting statement, that he lifted in excess of 200,000kg. The Tribunal prefers Dr Hall's evidence which casts doubt on the applicant’s claims regarding lifting. The Tribunal notes that Mr Hadley’s evidence, supporting the applicant’s estimates, was based on the figures supplied by the applicant and the applicant’s solicitor. For these reasons the Tribunal accepts Ms McCulloch's submission that the applicant does not satisfy factor 5(i) of SoP N° 47 of 2002, and the applicant’s contention does not fit the template.
43. In respect of atrial fibrillation and supraventricular tachycardia the Tribunal accepts Professor Harper's evidence that clinical onset was August 2000 when atrial fibrillation first became apparent, and that supraventricular tachycardia and atrial fibrillation are the same in the applicant’s case. The Tribunal also takes into account the evidence from Dr Flynn that the applicant has mild airflow obstruction consistent with a history of smoking, and that Professor Harper concluded that smoking contributed to the applicant’s lung condition which in turn contributed to his atrial fibrillation. However, the Tribunal concludes from clinical notes and the other medical documents, supported by Dr Flynn's evidence, that the required level of sputum production was not present. Therefore, the Tribunal is reasonably satisfied that the applicant did not suffer from chronic bronchitis with pulmonary obstruction at the time of the clinical onset of atrial fibrillation. It follows that the applicant's condition does not satisfy factor 5(i) of SoP N° 20 of 2003; and the applicant’s contention does not fit the template.
44. In respect of sick sinus syndrome there is no SoP, and no material was presented by the applicant in support of this claim. The Tribunal notes that the respondent considered the condition to be part of the applicant’s heart condition and that the condition could be due to the ageing process. On the available material the Tribunal is not persuaded that the condition is related to service. The Tribunal is reasonably satisfied that it is not related to the applicant’s eligible service.
45. The Tribunal has found that the applicant’s medical conditions do not satisfy the definition of chronic bronchitis, and the Tribunal does not accept Mr De Marchi’s submission that chronic bronchitis and emphysema are relevant to the Tribunal’s deliberations.
46. The Tribunal takes into account the beneficial nature of the Act, the effect of the passage of time and the deficiency in official records (s 119(1)(h) of the Act). However, in Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) cannot be used to provide evidence of facts if none exists. In the matter before it the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in his favour.
47. As the applicant’s contentions do not fit the template, the application does not succeed.
DECISION
48. The Tribunal affirms the decision under review.
I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 20 June 2005
27—28 July 2005
Date of decision: 19 August 2005
Advocate for the applicant: Mr D. De Marchi, solicitor
Solicitor for applicant: De Marchi & Associates
Advocate for the respondent: Ms J. McCulloch
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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