Renton and Repatriation Commission [2003] AATA 135 (12 February 2003)

Last Updated: 13 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 135

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2002/305

VETERANS' APPEALS DIVISION	)
	Re	GRAHAM DONALD RENTON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Brigadier R D F Lloyd, Member

Date 12 February 2003

Place Perth

Decision

The Tribunal affirms the decision under review

...........(sgd R D F Lloyd)......................

Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' Entitlements - ex RAAF - defence service - claimed conditions of malignant neoplasm of the pancreatic duct (as varied by the Veterans' Review Board) and diabetes mellitus - whether applicant meets the requirements of the relevant Statements of Principle - question of whether or not increased smoking levels and quantity relevantly related to eligible defence service

Veterans' Entitlements Act 1986 ss 68(1)(a), (b), 120(4), 120B

Re Kattenberg v Repatriation Commission (2002) FCA 412 of 11 April 2002

REASONS FOR DECISION

12 February 2003

Brigadier R D F Lloyd, Member

1. This is an application by Graham Donald Renton (the applicant) for a review of a decision of the Veterans' Review Board (VRB) dated 24 July 2002. That decision varied an earlier decision of the Repatriation Commission (the respondent) dated 21 September 1999 insofar as it amended the diagnosis of the condition described as malignant neoplasm of the bile duct to that of malignant neoplasm of the pancreatic duct. The VRB decision under review then affirmed the respondent's refusal to accept both that condition (as varied), together with the other claimed condition of diabetes mellitus, as being defence caused - under the provisions of the Veterans' Entitlements Act 1986 (the Act).

2. At the Tribunal hearing the applicant was represented by Mr B Cooper, and the respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T documents). In addition, the applicant tendered the following documents in evidence:

Exhibit A1: Statement by the applicant titled `A56451 WOFF G.D. Renton - Retired' dated 27 October 2002, with attachment titled `Repatriation Commission Guidelines - CM 5030 Guidelines for Claims Assessors on Smoking and Alcohol Related Conditions and Military Service'.

No further documentary evidence was provided by the respondent and no respondent witnesses were called. Oral evidence was given by the applicant and also by his wife.

3. The applicant served in the Royal Australian Air Force (RAAF) from 1962 to 1984 in administrative type employments, rising to the rank of Warrant Officer. His eligible service under the Act is defined as defence service and the eligible period for claims for Repatriation benefits is limited to the period commencing 7 December 1972 until his date of discharge from the RAAF, ie. 20 November 1984. In this respect, s 120(4) of the Act applies and the Tribunal is required to decide this matter to its reasonable satisfaction - that is, on the balance of probabilities.

4. In relation to the applicant's pancreas condition, it is common ground, agreed by both parties, that the correct diagnosis of this condition is as amended by theVRB in the decision under review, ie. malignant neoplasm of the pancreatic duct. From the evidence before it, the Tribunal is relevantly satisfied that this amended version is the appropriate diagnosis and description of this claimed condition, and it finds accordingly.

5. In summary, the history of this claimed pancreas condition is that the applicant had been found to have abnormal liver function test results dating back to November 1996. He was then referred to Dr H Glaser, a specialist gastroenterologist, and subsequently to Dr J Hamdorf, a general surgeon. The applicant was found to have a malignant tumour of the pancreatic duct and underwent surgery in May and June 1997 (T4, page 73 and T10, pages 93 and 94). From this and other evidence before it, the Tribunal finds that the clinical onset of the applicant's pancreatic cancer condition can be satisfactorily determined as being November 1996 - a date with which both parties agreed.

6. It is also common ground, agreed by both the applicant and respondent, as well as the Tribunal, that diabetes mellitus (type 2) is the correct diagnosis and appropriate description of the applicant's claimed diabetes condition.

7. This matter before the Tribunal is one in which, under the provisions of the Act, it is required to apply the relevant Statements of Principle (SoP) authorised by the Repatriation Medical Authority. The SoP's involved for the two conditions are as follows:

(a) For Malignant Neoplasm of the Pancreatic Duct - SoP Instrument 56 of 1997 (as amended by Instrument 21 of 2001). This amending instrument is not relevant to the matter before the Tribunal in relation to the pancreas condition. Hence, the 1997 SoP, current at the time of the primary decision by the respondent continues to apply.

(b) For Diabetes Mellitus - the current SoP is Instrument 83 of 1999 (as amended by Instruments 10 and 92 of 2001). If found appropriate, ie. if the Tribunal in using that SoP does not find in favour of the applicant, it would then refer to SoP Instrument 47 of 1999 which was the instrument that applied when the primary decision by the respondent was made.

8. At the outset it was agreed by both parties that the only factors in the diabetes mellitus SoPs that are relevant for the applicant were factors 5(c), 5(f) or 5(g). These were common to both SoPs and were worded the same. It was further agreed, as a consequence, that acceptance of diabetes mellitus being defence caused in this case relied entirely on the prior acceptance of the applicant's claimed pancreas condition. The Tribunal also accepts these contentions to be correct. The respondent further acknowledged that should the Tribunal find in favour of the applicant in relation to the pancreas condition, then acceptance of diabetes mellitus also as being defence caused should follow.

9. On that basis, the Tribunal proceeded to take oral evidence and examine the documentary evidence before it concerning the pancreas condition. Preliminary to that it was agreed by both parties, and also to the satisfaction of the Tribunal, that the only factor in the pancreas SoP (Instrument 56 of 1997) that was relevant in this instance is factor 5(a)(i), which deals with smoking. The applicant's contention in this regard is that his smoking level increased as a result of adverse defence service conditions, employments and related factors during and as a consequence of his eligible defence service period of December 1972 to November 1986. Both he and his wife gave oral evidence in support of this contention at the hearing. His oral evidence augmented his previous documented evidence in the T documents and also his Statement of Evidence at exhibit A1. In summary the evidence provided, relevant to the smoking contention, is as follows:

(a) The applicant states that he commenced smoking cigarettes on a casual or social basis in 1966, after his enlistment in the RAAF. The Tribunal notes that this is some 6 years prior to the commencement of his eligible service in December 1972. The applicant gave reasons for starting his cigarette smoking habit (exhibit A1 also refers), however these are not relevant in this matter. Suffice to say the stated level of smoking as at 1972 varied in his evidence from 2 to 3 cigarettes per day to 8 to 10 or 15 per day between his oral evidence and that contained in exhibit A1 respectively. The figure given by him to the VRB is also noted. Whatever the case, the Tribunal is reasonably satisfied from the overall evidence before it that the applicant had a developed smoking habit, albeit relatively modest in quantity, prior to eligible service.

(b) The applicant's evidence then is that his smoking level increased, depending on varying service circumstances and related family health problems, from that pre-eligible service figure to 15 cigarettes, then 15 to 20, then finally 25 to 30 per day by 1984 when he was discharged from the RAAF. He states that he continued at this up to 30 per day level post discharge whilst employed in civilian occupation. He ceased smoking in 1991 as a result of related concern over the death of a family member and also on medical advice that he should do so.

10. The Tribunal notes from the evidence available that the start point of the increase in smoking level after December 1972 varies somewhat. Be that as it may, the main episodes of his eligible service which the applicant contends were responsible for contributing to his feelings of stress, and thus increased smoking, are as follows:

(a) When posted to Sydney in 1971 (prior to eligible service) he states he had been told that he would get a married quarter within 6 to 8 weeks. This apparently turned out to be 6 to 8 months. His wife was forced to take inadequate shared accommodation for herself and their child with relatives in an outer Sydney suburb, then subsequently in Wollongong. Eventually they were allocated accommodation in Sydney, but subsequently he was granted a posting back to RAAF Pearce (WA) on compassionate grounds of his child's health. Because of these worries in Sydney the applicant states his smoking had increased - probably to 15 cigarettes per day.

(b) At Pearce, 1971 to 1974, it appears he was smoking at about this level despite the much better family accommodation situation. He however maintains he experienced added stress when working with 3 Telecommunications Unit (3TU) at Pearce. He was employed on the stores side of the unit, but because of the classified nature of its activities he was not security cleared to enter certain unit buildings. This the Tribunal recognises as the relevant authority and 3TU appropriately employing the `need to know' rules on security matters of this kind. However the applicant maintains that frustrated him and hence contributed to his increased smoking level.

(c) The main thrust of the applicant's contention and his evidence however (and that of his wife's oral evidence) revolved around his next posting in 1974 to Laverton, Victoria. It is maintained that it was the poor housing for his family initially provided there that was the main trigger for his anxiety problems, his family's worsened health and consequently his smoking level remaining elevated and in fact increasing to 20 or more per day during that 3 year posting. In fact the accommodation situation for him at Laverton was alleviated after about 12 months, but only after a battle with the authorities. During this posting he was required to attend an explosives course which he states added further to his feeling of stress. The Tribunal notes from the documented evidence that whilst at Laverton he sought medical treatment in 1976 for what was diagnosed as "...? IHD and? anxiety" (T3 page 25) and later at T3 page 26 he was described as "...anxious, tense and overweight".. On both occasions he was prescribed valium for short periods and it is recorded that he subsequently improved and quickly became asymptomatic.

(d) The applicant was given a movement control type job in Melbourne for a period. This he states he found stressful, particularly the handling of what he referred to as "VIPS". As a consequence he says his smoking level again rose to approximately 20 cigarettes per day.

(e) He was subsequently again posted to Sydney - and in 1981 as a warrant officer to No 2 Stores Depot. This was a large complex, where the applicant states he was in charge of "...an enormous warehouse". Here amongst other things he had the different experience of having to deal with civilian staff, who were unionised. This and the overall responsibilities of the job at the stores depot, he states were beyond what he had been used to and that which he believes he was trained for. The result he says was again increased stress which consequently led to a further increase in smoking level to as much as 25 cigarettes per day.

(f) In 1984 the applicant states he decided, "after weighing up the pros and cons", to terminate his service with the RAAF - within one year of the end of his final 6 year engagement. He was discharged on 20 November 1984 `at his own request' having completed more than the required 20 years for pension purposes (T3 page 9). At the hearing the applicant gave as the main reasons for terminating his service as being that "...I had had enough..."; that he was concerned about the education of his children; and that the prices of housing in Western Australia (WA), which is where he wished to live, were likely soon to rise because of the America's Cup.

(g) Subsequent to his RAAF service, the applicant states that he was employed in two civilian jobs.. The first, in 1985, was related to the travel industry in WA but he left this because he considered it became too stressful for him. Part of this was apparently because he did not like having to travel by road between Kingsley and Welshpool (suburbs of Perth). The applicant then joined an electrical wholesale firm, in which about 4 years ago he rose to be an assistant manager. He states he finds this job stressful, but has remained with it and in that position, and this is his current employment. The applicant's evidence is that his smoking level in his post-service civilian life has ranged between 15 and 30 cigarettes per day. This was the situation he says until he ceased smoking in 1991.

11. The evidence before the Tribunal both oral and documented as to the applicant's level of smoking, particularly during his RAAF service, results in quantities that vary considerably. Nevertheless, the Tribunal finds from the evidence that: it clearly provides a temporal connection between his smoking habit and the overall period of his defence service; that prior to his eligible service, whilst in the RAAF, in about 1966 he commenced smoking; and that it had become an increased/continuous habit by 1969. The causes of that increase cannot be taken into account by the Tribunal, it being pre-eligible service.

12. The Tribunal is reasonably satisfied from the evidence that there was in fact a significant increase in smoking level by the applicant post December 1972. The question is whether the increase has been relevantly contributed to, in a material degree, by his eligible defence service after that date (Re Kattenberg v Repatriation Commission (2002) FCA 412 of 11 April 2002). Also, in quantitative terms, does the smoking level meet the requirement of factor 5(a)(i) of SoP Instrument 56 of 1997 (as amended)? That factor states as follows:

"(i) smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of malignant neoplasm of the pancreas, and, where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or"

13. In respect of this quantitative aspect, as prescribed in the SoP, the Tribunal finds from the evidence before it that it could be satisfactorily assessed that the applicant's smoking averaged out at: 15 cigarettes per day between 1971 and 1974; and 20 cigarettes per day between 1974 and 1991. The Tribunal's view on these mathematical-type exercises is that, whilst apparently necessary in terms of the SoP, they tend to be rather suspect in terms of accuracy in most cases. Nevertheless, making the best of the evidence available the Tribunal is reasonably satisfied that: the applicant smoked in total 15 or more pack years of cigarettes post December 1972; that this occurred prior to the clinical onset of the claimed pancreas condition in 1996; and that the clinical onset occurred within the required 15 years of the applicant ceasing smoking (in fact in this case it occurred only 5 years after the cessation).

14. This then leaves the Tribunal to consider and decide upon the remaining but crucial issue as to the material contribution of the applicant's eligible service to this smoking situation. In doing so the Tribunal notes from the material available to it, as well as the oral evidence given, the following aspects in particular:

(a) that the applicant apparently experienced considerable difficulty in coping with what he regarded as periods and circumstances in which he was under some pressure. From his evidence the Tribunal finds that this seemed to apply in relatively the same proportions both during his eligible service with the RAAF and his post service civilian employments;

(b) that despite this concern during his eligible service employments and postings, the applicant's evidence is that he continued to re-engage for periods of service - after his initial engagement of 6 years - on four subsequent occasions. The last two re-engagements each being again for the longer term of 6 years, instead of the optional 3 years. The Tribunal concludes from this only that the level of stress and difficulty on service described by the applicant was apparently not of a sufficient magnitude to lead him to take the seemingly logical step of terminating his RAAF service (by not re-engaging) prior to the time he finally did so in November 1984. There may well have been other relevant factors influencing these re-engagement decisions, however no evidence was provided by the applicant to contradict the Tribunal's conclusion in this regard. Importantly, it is these levels of stress and other difficulties during service that he now points to as a material and major cause of his increase in smoking habit; and

(c) that family circumstances, including the on-going ill health of one of the applicant's children appears to have played a part in adding to the difficulties experienced by him. This was especially so, according to his evidence, in the period of poor quality accommodation provided at Laverton - at least initially in that posting in 1974. This Tribunal understands the difficulties in this regard and the problems that had to be overcome by service families particularly in the days of either inadequate married quarter accommodation or none being provided at all.

15. The Tribunal thoroughly and carefully considered all the applicant's evidence regarding the difficulties and stated stress that he experienced during eligible defence service. The Tribunal accepts that at times things were often difficult for him at work and at home. However it is unable to conclude properly that such difficulties and apparent resultant feelings of some stress were sufficiently different to be of real significance from those which were likely to be experienced in civilian life. Difficult jobs, family ill-health and also inadequate housing tend to be common problems in both service and civilian life, particularly for ordinary younger married people and especially was this so in the 1960s and 70s. The Tribunal also notes in this regard the applicant's evidence stating his difficulties in civilian employment post discharge, including complaints of stress and hence resultant on-going and increased level of smoking.

16. As a consequence of all the material before it and the findings and conclusions reached, as indicated in paragraphs 14 and 15 of these Reasons, the Tribunal is not satisfied on the balance of probabilities that the applicant's eligible defence service has of itself contributed to a material degree to his increased smoking habit and to the smoking of over 15 pack years of cigarettes over the relevant period. The Tribunal is of the opinion that a similar situation would have arisen in comparable civilian employment over the same relevant period.

17. That being the conclusion reached by the Tribunal, the applicant can not as a result then meet the requirements of factor 5(a)(i) of SoP Instrument 56 of 1997 (as amended). As this is the only relevant factor in that SoP in relation to the applicant's pancreas condition and his circumstances, his claim for acceptance of that condition can not succeed under the provisions of the Act. As a consequence of that, as discussed at paragraph 8 of these Reasons, the applicant's claim for acceptance of diabetes mellitus as being defence caused can not succeed either.

CONCLUSIONS

18. Based on all the material before it, the Tribunal is reasonably satisfied that neither the applicant's condition of malignant neoplasm of the pancreatic duct nor that of diabetes mellitus are relevantly connected to his eligible service under the provisions of the Act. The Tribunal therefore determines that neither condition is defence caused as defined.

DECISION

19. For the above reasons, pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the Veterans' Review Board decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member

Signed: ........(sgd V Wong)........................................

Associate

Date/s of Hearing 28 January 2003

Date of Decision 12 February 2003

Counsel for the Applicant Mr B Cooper

Counsel for the Respondent Mr C Ponnuthurai