Young and Repatriation Commission [2003] AATA 149 (14 February 2003)

Last Updated: 19 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/416

VETERANS' APPEALS DIVISION

Re: WILLIAM CHARLES YOUNG

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Member

Date: 14 February 2003

Place: Melbourne

Decision: The Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS - veterans' entitlements - ischaemic heart disease - whether war-caused - date of clinical onset

Veterans' Entitlements Act 1986 s7, 120(4), 120B

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Cornelius [2002] FCA 750

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

14 February 2003 G.D. Friedman, Member

1. This is an application by William Charles Young (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 21 February 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 6 August 2001, to refuse a claim for disability pension for ischaemic heart disease because the disease was not war-caused. The respondent has accepted as war-caused the applicant's disabilities of bilateral sensineural hearing loss, tinnitus and acquired cataracts in both eyes.

2. At the hearing of this matter on 28 January 2003 Mr D. De Marchi, solicitor, represented the applicant and Mr K. Rudge, advocate with the Department of Veterans' Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T8), together with three exhibits (Exhibits A1-A3) lodged by the applicant and five exhibits (Exhibits R1-R5) lodged by the respondent.

BACKGROUND

4. The applicant was born on 1 August 1926. After leaving school he worked in a tool factory and he enlisted in the Royal Australian Air Force (RAAF) on 11 October 1944. The applicant served as a flight rigger, servicing Catalina flying boats at Lake Boga in Northern Victoria. He was discharged on 14 March 1946. In accordance with s7 of the Veterans' Entitlements Act 1986 (the Act), this period was eligible service.

5. After the war the applicant undertook a carpentry course and later became a building inspector and surveyor in various locations around Melbourne. He retired in 1989. In 1990 he attended a local doctor who diagnosed a cardiac murmur. In 1995 he moved to a small rural property, where he carried out physical activities such as gardening and general maintenance. In 1999 the applicant reported severe chest pains and a shortness of breath. He was referred to a cardiac specialist who diagnosed coronary artery disease.

6. On 24 April 2002 the applicant sought review of the VRB decision by the Tribunal.

EVIDENCE

7. In a written statement dated 13 June 2002 (Exhibit A3) the applicant said that he commenced smoking in 1944 after joining the RAAF, and continued until 1968, when he stopped smoking on medical advice because I was coughing and I was suffering from shortness of breath. He also said: I was suffering from chest pains and shortness of breath from the early 70's. In oral evidence the applicant stated that he had suffered intermittent chest pains since about 1973 when he was gardening. He felt a dull ache in his chest and the pain radiated down his left arm to his fingertips. The applicant said that he also felt a tightness in his chest and a shortness of breath. He explained that since that time he had experienced pain occasionally when he undertook physical activity or suffered from stress. The applicant stated that he continued to maintain a physically active lifestyle. He sought medical attention in 1990 at the insistence of his wife, when the heart murmur was diagnosed.

8. The applicant stated that he attended his general practitioner, Dr M. Pickavance, in 1999 after complaining of chest pains, and the subsequent referral to a cardiologist resulted in the diagnosis of occlusive coronary artery disease. He is undergoing conservative treatment such as medication for hypertension.

9. In his application for disability pension for heart disease angina dated 17 July 2001, the applicant stated, in answer to the question of when he first became aware of the signs and symptoms of the disability, 1990 angina: a murmur in my heart. Angiogram on 9/6/99 by Dr Chaudhary. Copy of test enclosed. In cross-examination the applicant stated that he believed that this answer was correct at the time because he first became aware of symptoms of heart problems when he visited his local doctor in 1990. He also stated that between 1974 and 1999 the chest pain occurred quite a few times, and he agreed that during this period he took little if any time off work due to illness, and he had no diagnosed medical problems of significance.

10. Associate Professor K. Myers, consultant surgeon, gave oral evidence to the Tribunal. He referred to his written report of 4 July 2002 (Exhibit A1) and stated that tightness in the chest is symptomatic of angina, whilst a cardiac murmur is not a feature of angina or coronary artery disease. He told the Tribunal that the diagnosis of angina in 1999 would have been made purely on the basis of symptoms, and that the symptoms of chest pain and shortness of breath described to him by the applicant would be consistent with unreported angina since the 1970s.

11. In a written statement dated 18 June 2002 (Exhibit A2) Ms J. Soulsby, the applicant's sister, said that on numerous occasions during the early 1970s and 1980s she observed that the applicant complained of chest pains and shortness of breath.

12. In a written report dated 16 December 2002 (Exhibit R1) Dr J. Hammond, specialist in cardiovascular disease, stated that the history described by the applicant since the mid 1970s included intermittent chest pains that had occurred only infrequently, and that the applicant had maintained a physically active lifestyle during this period, of an essentially unrestricted nature. He said:

An alternative explanation for Mr Young's symptoms dating back to the 1970s, would relate to chronic bronchitis and chronic obstructive lung disease, consequent upon Mr Young's smoking...

Coronary atherosclerosis is a progressive condition, which may take many years to develop. However I believe it unlikely that symptomatic coronary atherosclerosis (with symptoms of angina pectoris) would have been present between 1973 and 1999, before Mr Young reported these symptoms for medical evaluation.

13. Dr Hammond stated that in his opinion the clinical onset of ischaemic heart disease was most likely in April 1999, although it may have been three or four years previously, in the mid 1990s. In oral evidence Dr Hammond stated that a narrowing of an artery would be unlikely to be stable and unresolved over a 25-year period, and symptoms such as chest pains would probably have worsened during this time. He said that during his examination of the applicant there had been no mention of radiation of pain down the applicant's left arm. Dr Hammond referred to the clinical reports from Dr Pickavance (Exhibit R3), who recorded that the applicant had described symptoms of three or four years of pain in the chest, in particular when he bent over to cut wood.

14. In a written report dated 9 September 2002 (Exhibit R2) Dr H. Chaudhary, cardiologist, noted that the applicant did not have any objective tests in the early 1970s to prove or disprove the presence of coronary artery disease. He stated that:

The clinical onset of ischaemic heart disease was some five weeks prior to my first consultation on 3rd May, 1999. That is when he first developed ischaemic sounding chest pains and subsequently confirmed to have objective evidence of cardiac disease by a coronary angiogram that I performed on the 9^th of June, 1999.

CONSIDERATION OF THE ISSUES

15. Mr De Marchi noted that there was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. In determining whether the disease suffered by the applicant was war-caused the Tribunal must first consider all the material before it and decide whether that material points to a contention connecting the disease with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the applicant.

16. The Tribunal is then required to ascertain whether there is a relevant Statement of Principles (SoP) in force. Mr De Marchi noted that there was no dispute between the parties that the applicable SoP was Nº 39 of 1999 concerning ischaemic heart disease. Risk factor 5(e) provides:

(e) where smoking has ceased prior to the clinical onset of ischaemic heart disease,

(i) smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or

(ii) smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation;

He stated that there was no dispute between the parties that the applicant satisfied factor 5(e)(ii) to the extent that he smoked at least five pack years of cigarettes, or the equivalent, in other tobacco products.

17. If an SoP is in force, the Tribunal must form an opinion whether the contention fits within, that is to say, is consistent with the template to be found in the SoP. If the contention fails to fit within the template, the claim will fail. Mr De Marchi submitted that the contention fits within the template. He said that there was no dispute that the applicant ceased smoking in 1968 and that he suffers from ischaemic heart disease.

18. Mr De Marchi said that the evidence given by the applicant was straightforward and believable, and was consistent with the symptoms of chest pain, shortness of breath and radiated pain in the left arm that arose after heavy work and stress since the early 1970s. He said that this was supported by the evidence from the applicant's sister.

19. Mr De Marchi referred to the evidence from Professor Myers and stated that the evidence from Dr Hammond actually supports the applicant. Mr De Marchi said that the dull aches and shortness of breath described by the applicant were consistent with the development of coronary artery disease over a long period. He said that, for these reasons, the clinical onset of ischaemic heart disease occurred in the mid-1970s, which was within ten years of cessation of smoking.

20. Mr Rudge referred the Tribunal to Re Robertson and Repatriation Commission (1998) 50 ALD 668 (cited with approval in the Federal Court decisions of Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission [2002] FCAFC 398) in which the Tribunal stated, in relation to clinical onset:

...We consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

Mr Rudge stated that on the applicant's own evidence, he was able to continue to carry out physically demanding work and other activities despite suffering chest pain and shortness of breath since the 1970s, and did not seek medical treatment until 1990.

21. Mr Rudge noted that Dr Hammond is a cardiologist with relevant expertise, and submitted that the Tribunal should prefer his conclusion, which was based on an examination of the applicant and a review of relevant documents and opinions by other practitioners, and Dr Hammond determined the date of clinical onset at 1999 or the mid-1990s at the earliest. Mr Rudge submitted that on this basis clinical onset did not occur within 10 years of the cessation of smoking.

22. In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.

23. In this case there was no dispute between the parties and the Tribunal finds that the applicant suffers from ischaemic heart disease, he smoked at least five pack years of cigarettes, and he ceased smoking prior to the clinical onset of the disease. After taking into account all relevant matters the Tribunal finds that the material raises a contention connecting the disease with the circumstances of the particular service rendered by the applicant.

24. In respect of an applicable SoP, there was no dispute between the parties and the Tribunal finds that at the relevant time SoP Nº 39 of 1999 concerning ischaemic heart disease was in force.

25. The Tribunal finds that the applicant gave evidence, to the best of his recollection, of events that occurred nearly 30 years ago. The Tribunal notes his oral evidence that the chest pain and shortness of breath experienced in the early 1970s were accompanied by radiated pain in his left arm, although the applicant did not seek medical advice until 1990 and was not restricted significantly in his ability to work or perform other physical activities. In his written statement, his sister's statement and in the description of symptoms to various doctors since 1999, the applicant does not appear to have referred to any pain in his left arm. In the circumstances the Tribunal accepts the opinion of Dr Hammond that chest pains and shortness of breath might indicate the early signs of ischaemic heart disease, or alternatively these symptoms might be attributable to chronic bronchitis and obstructive lung disease as a result of smoking over a long period.

26. The Tribunal takes into account that in his application for disability pension dated 17 July 2002 the applicant made no reference to chest pains and shortness of breath, although the Tribunal notes his explanation. The Tribunal also considers that Professor Myers was equivocal in his evidence supporting the contention that the applicant had unreported angina since the 1970s, and that he agreed in cross-examination that cardiology was not his speciality. There is no material before the Tribunal to suggest that in 1990 the applicant complained of chest pain, shortness of breath and pain in his left arm when he was diagnosed with a cardiac murmur.

27. The Tribunal prefers the evidence from Dr Hammond, as a cardiologist who made a thorough assessment of the applicant's condition, based on a physical examination and a review of the documentary material, including reports from Dr Chaudhary and Dr Pickavance in relation to the angiogram performed in 1999. The Tribunal accepts the submission by Mr Rudge that in all the circumstances the clinical onset of ischaemic heart disease occurred in 1999 or three to four years earlier, in the mid-1990s. Therefore, taken as a whole the evidence does not support the contention that clinical onset of ischaemic heart disease occurred within ten years of the cessation of smoking.

28. This means that the contention does not fit within, and is not consistent with, the template so the claim cannot succeed.

DECISION

29. The Tribunal affirms the decision under review.

I certify that the twenty-nine [29] preceding paragraphs are a true copy of the reasons for the decision of:

G.D.Friedman, Member

(sgd) Catherine Thomas

Clerk

Date of hearing: 28 January 2003

Date of decision: 14 February 2003

Advocate for applicant: Mr D. De Marchi

Solicitor for applicant: De Marchi & Associates

Advocate for respondent: Mr K. Rudge, Department of Veterans' Affairs