Lynch and Repatriation Commission [2002] AATA 689 (14 August 2002)

Last Updated: 20 August 2002

DECISION AND REASONS FOR DECISION [2002] AATA 689

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2002/22

VETERANS' APPEALS DIVISION )

Re WILLIAM LESLIE LYNCH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date 14 August 2002

Place Hobart

Decision The decision under review is affirmed.

..............................................

Part-Time Member

CATCHWORDS

Veterans' Appeals - disability pension - general rate - impairment - lifestyle - peripheral vascular disease - ischaemic heart disease - hypertension - Statements of Principle (SoPs) - Guide to Assessment of Rates of Veterans' Pensions (GARP) - whether service related - Veterans' Review Board - special rate.

Legislation

Veterans' Entitlements Act 1986 - ss6, 120(1), 120(3), 120A.

Authorities

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) FCA 391

Dixon v Repatriation Commission (1999) 29 AAR 235

REASONS FOR DECISION

14 August 2002 Associate Professor B W Davis AM (Part-time Member)

The Application

1. The applicant, William Leslie Lynch, seeks review of a decision made by a delegate of the Repatriation Commission on 16 January 2001, subsequently affirmed by a decision of the Veterans' Review Board (VRB) on 7 November 2001, which refused the applicant's claims to have peripheral vascular disease, ischaemic heart disease and hypertension accepted as due to service.

Standard of Proof

2. The applicant has operational service within the meaning of s6 of the Veterans' Entitlements Act 1986 ("the Act"), by virtue of service in the Far East Strategic Reserve for various periods in 1959, 1960 and 1961. The application for review is therefore to be decided in accordance with s120(1) and s120(3) of the Act. Because the application was lodged after June 1994, s120A will also apply.

Background

3. Mr Lynch helped on his parent's farm until he joined the Royal Australian Navy at the age of 18 and served for six years before going into the Reserve for a further 5 years. He subsequently was engaged in periodic work on fishing boats and driving taxis until 1984, when he commenced duties with the Association of Hobart Tugs until retirement in 1995. He has experienced some emotional and physical illness, involving drinking and heavy smoking habits, which he attributes to anxiety and depression arising from traumas during the peace-keeping mission in Malaysia in the early 1960's. There is no evidence his ship was ever attacked, nor is there clear evidence of any instances of danger, nonetheless he speaks of periods at action stations and deck guard duty at foreign ports which he perceived as "difficult places".

Facts and Contentions

4. The applicant seeks to have peripheral vascular disease, ischaemic heart disease and hypertension accepted as service related, principally because a smoking habit markedly increased during the applicant's period of operational service. The relevant Statements of Principles are claimed to be:

* Peripheral vascular disease - No 87 of 1995

* Ischaemic heart disease - No 38 of 1999

* Hypertension - Nos 25 of 1999 and No 31 of 2001

5. The Respondent agrees with the standard of proof, but states that it is for the Tribunal to determine whether the claimed disabilities are smoking related and arise from or were caused by operational service.

Hearing

6. At the Tribunal hearing conducted in Hobart on 19 July 2002, the applicant was represented by Mr R M Webster and the respondent by Mr M A Castle.

7. Mr Lynch was sworn and gave evidence about his service in the Royal Australian Navy from 1957 until 1963. He stated he had been a non-smoker and active sportsman, recruited at age 18, serving first at Cerberus Naval Deport, then on board HMAS Vendetta at commissioning and later overseas in New Zealand, Philippines, Singapore, Penang and Hong Kong.

8. He had commenced smoking about 5 cigarettes per day, but this increased to 50 cigarettes per day or more in late 1959. The mood of the ship had changed, they were often at action stations for unexplained reasons and the ship was guarded in port, with deck patrols in which he participated. He obeyed orders, but felt stressed about perceived dangers.

9. Mr Lynch drew attention to a smoking statement he had signed in February 1998, stating it had been filled in by an RSL colleague, but was actually incorrect. He did not know why he had signed it, but had been urged to do so. It stated that after entry into the Navy he had been smoking 20 cigarettes per day, and that in February 1959 this had increase to 80 plus cigarettes per day during to the stress of service in the Far East. He confessed he was not always accurate about dates or details.

10. Counsel for the respondent queried discrepancies in a number of other smoking statements. Mr Lynch responded that he had been badly advised, but admitted that he had signed statements without perusing the content in detail. He refuted the notion that he took no appeal action after receiving the Repatriation Commission decision of March 1998, rejecting his claims for service related smoking. He had assumed further (unstated) action would follow. He had later approached Mr Dilba of the RSL, but had been "knocked back", so went elsewhere. A claim for review followed, but this was rejected by the Repatriation Commission on 16 January 2001 and again by the Veterans' Review Board in November 2001, so he had them appealed to the AAT.

11. Counsel for the applicant argued that evidence of a marked increase in smoking during operational service was proven and this could be attributed to the stress Mr Lynch suffered, which had affected his health. The Tribunal should accept this proposition unless there was compelling evidence otherwise.

Analysis

12. The Tribunal is required to stand in the shoes of the decision-maker, giving due weight to statutory provisions and guiding principles, but examining the evidence anew. The Tribunal is not required to accept prior decisions if there is relevant evidence indicating a new determination is required.

13. Given that this case is to be decided in accordance with ss120(1) and (3) of the Act, including s120A, the appropriate procedure to adopt is identified in Deledio v Repatriation Commission (1998) FCA 391 (22 April 1998) namely:

(a) Determine whether the material before the Tribunal points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

(b) If the material does raise an hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the Act..

(c) If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.

(d) The Tribunal must then consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury or disability. If not so satisfied, the claim must succeed.

14. The Tribunal notes a number of inconsistencies in evidence before it, concerning Mr Lynch's smoking habits upon which his case relies. Delegates of both the Repatriation Commission and the Veterans' Review Board drew attention to this difficulty. Mr Lynch himself admitted that his memory for dates and details was poor and that he had signed smoking statements written by other persons without examining the contents.

15. In reaching the initial decision of 16 January 2001, the delegate of the Repatriation Commission relied upon Mr Lynch's statement of 5 February 1998, that he had commenced smoking in 1957 after entry into the Navy, with consumption of 20 cigarettes per day from 1 June 1957 to 31 January 1959, then 80 cigarettes per day from 1 February 1959 to December 1987. Mr Lynch later rejected this statement which he had signed, but it was valid evidence at the time the Repatriation Commission made its January 2001 determination.

16. The delegate of the Repatriation Commission, using the relevant Statements of Principles for peripheral vascular disease, ischaemic heart disease and hypertension, could not find a reasonable hypothesis linking the claimed disabilities to operational service. Mr Lynch commenced smoking some eighteen months before operational service and his consumption only increased during his period with the Far East Strategic Reserve when cigarettes were cheap and plentiful. No medical evidence was tendered indicating medical problems at that time, but there was a later history of hypertension which may have arisen from alcohol dependence or abuse. Dr M Cunningham (Consultant Psychiatrist) stated "...I find it difficult that it should relate to his war service".

17. Mr Lynch sought a departmental review of the initial decision in May 2001 and the report of the Departmental Review Office (DRO) is dated 19 June 2001. The DRO concurred with the initial decision to reject Mr Lynch's claims. In so doing, the DRO attempted to clarify Mr Lynch's smoking history, but still found discrepancies. The DRO considered Mr Lynch commenced smoking at either entry to the Navy or six months after. The number of cigarettes variously recorded as smoked at that time was either 5 or 20, the increase is recorded as 50 plus per day or 80 (now rejected by Mr Lynch) and cessation of smoking as either 1982 or 1987. Given these discrepancies and no further elaborating evidence, the DRO was not in a position to amend the initial Repatriation Commission decision of 16 January 2001.

18. The VRB faced equivalent difficulties in reaching its determination of 7 November 2001. Having considered Mr Lynch's smoking habits and circumstances of service, they turned to the three questionnaires that constituted Mr Lynch's principal evidence, noting that the initial one of February 1994 did not give any information about quantities. The smoking questionnaire dated 5 February 1998, alluded to figures of 20 and then 80 cigarettes per day, while the questionnaire dated 8 August 2000 gave figures of 5 and 50 cigarettes per day. When asked to clarify his smoking consumption over the period of 2½ years involved, Mr Lynch indicated that his smoking did not greatly increase until he was outside Australian waters, when the price of cigarettes dropped by two thirds.

19. The first question the VRB faced was whether the evidence "pointed to" an hypothesis linking circumstances of service with Mr Lynch's smoking habit. The Board decided there was a temporal link, but increased consumption was not a matter of major stressors arising from service, so much as a change in different taxing regimes that made cigarettes cheaply available. The fact that Mr Lynch had to conduct deck guard duties, common in overseas ports, was not a significant causal connection. The Board considered Mr Lynch's hypertension situation, but there is no stress factor in the relevant Statement of Principles, so they rejected the appeal and affirmed the Repatriation Commission's determination.

20. The Tribunal is now required to examine all evidence anew and bear in mind the standard of proof required by ss120(1) and (3) of the Act, as well as s120A.

21. Following Deledio the first matter to be considered is whether a reasonable hypothesis can be postulated linking the applicant's claimed disabilities of peripheral vascular disease, ischaemic heart disease and hypertension to operational service. Neither the Repatriation Commission or Veterans' or Veterans' Review Board accepted such a hypothesis existed. Even if the Tribunal were to accept such an hypothesis could exist, it would remain speculative or supposition unless supported by relevant Statements of Principles and available supportive factual evidence.

22. Counsel for the applicant contends that the relevant Statements of Principles are:

* Peripheral vascular disease - No 87 of 1995

* Ischaemic heart disease - No 38 of 1999

* Hypertension - Nos 25 of 1999 and No 31 of 2000.

23. Counsel further contends that if a hypothesis exists, it is upheld by Factor 1(a) in Instrument No 87 of 1995, in that the applicant smoked at least 5 cigarettes per day for at least three years before clinical onset of peripheral vascular disease, which occurred in 1987, the year in which the applicant ceased smoking. Counsel also contends that the issue of ischaemic heart disease is upheld by Factor 2(b)(i) of Instrument No 38 of 1999, in that the applicant smoked at least 5 cigarettes per day for at least one year immediately prior to the onset of ischaemic heart disease which occurred in 1986.

24. The Tribunal has considered the relevant Statements of Principles cited above and agrees that Mr Lynch does meet the criteria specified in Factor 1(a) of the Instrument No 87 of 1995 (Atherosclerotic Peripheral Vascular Disease), also Factor 2(b)(i) of Instrument No 38 of 1999 (Ischaemic Heart Disease), however both these provisions must be read in conjunction with the circumstances of Mr Lynch's service. He claims stress from shipboard routine in S.E Asia, but all naval personnel spend time at action stations during training and operational programs and deck patrols are common in foreign ports. There does not appear to be any conditioning factor other than the plentiful availability of cheap cigarettes, which Mr Lynch himself admits.

25. With respect to the claim of hypertension the relevant Statements of Principles are No 25 of 1999 and No 31 of 2201. Neither contains a stress factor, thus Mr Lynch's claim fails. It is true that he does now suffer hypertension, but according to medical evidence this did not arise from salt intake and may have been contributed to by alcohol dependence or alcohol abuse and neither was due to operational service. In a report dated 1 January 2001, Dr Mark Cunningham (Consultant Psychiatrist) drew attention to family genetic disposition to heart problems and stated:

"While I can accept that his drinking habits at present represent a major problem and it is clearly a case of substance abuse, I find it difficult to accept that it should relate to his war service. Furthermore, in regard to any stresses which may have been endured by Mr Lynch, there is no doubt that the stresses associated with his cardiac condition are more likely to have been a significant factor in his life rather than other factors in earlier days".

26. Mr Lynch's case rests upon a claim of stress inducing heavy cigarette smoking and resultant heart disease. The evidence about his smoking habits is clearly unreliable since the smoking questionnaires were prepared by other people and signed by Mr Lynch apparently without contents being read. My Lynch also admits that his memory for dates and details is poor. There is no evidence Mr Lynch was in situations of personal danger at any time during operational service and the stressors claimed accord with shipboard routine anyway. Taking all evidence into account and noting the provisions of sections 120(1) and (3) and section 120A of the Act, the Tribunal has concluded that the applicant's claimed conditions are not war-caused and that a reasonable hypothesis does not exist linking claimed disabilities with operational service.

27. The decision under review is affirmed.

I certify that the 27 receding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)

Signed: K L Miller (Administrative Assistant)

Date/s of Hearing 19 July 2002

Date of Decision 14 August 2002

Counsel for the Applicant Mr R M Webster

Solicitor for the Applicant Mr R M Webster

Counsel for the Respondent Mr M A Castle

Solicitor for the Respondent Department of Veterans' Affairs