Roberts and Repatriation Commission [2003] AATA 359 (11 April 2003)

Last Updated: 24 April 2003

DECISION AND REASONS FOR DECISION [2003] AATA 359

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/323

VETERANS APPEALS DIVISION	)
	Re	BRYAN ROBERTS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr J. Handley, Senior Member

Date 11 April 2003

Place Melbourne

Decision

The decision of the Veterans Review Board under review in these proceedings with respect to the condition of allergic rhinitis is set aside and in substitution IT IS DECIDED that condition is war-caused. The application is remitted to the respondent for assessment of pension. The remaining part of the decision of the Veterans Review Board is affirmed.

........Sgd. Mr J. Handley ............

Senior Member

CATCHWORDS

Veterans' Entitlements - Applicant a member of Royal Australian Navy - whether emphysema by smoking and allergic rhinitis by exposure to dust mites related to service - decision in part set aside.

REASONS FOR DECISION

11 April 2003

Mr J. Handley, Senior Member

1. On 19 May 1999 the respondent decided to refuse a claim made by Mr Roberts for acceptance of the conditions of allergic rhinitis and asthma as war-caused. On 11 August 2000 the Veterans Review Board ("the VRB") decided to affirm the claim with respect to allergic rhinitis. With respect to the claim for asthma, the VRB decided to amend the diagnosis to `emphysema' but otherwise affirmed the primary decision.

2. The applicant therefore applies to review the decision made by the VRB.

3. Mr Roberts is presently 62 years of age having been born on 27 February 1941. He suffers the accepted condition of bilateral sensori neural hearing loss for which he receives pension at 20% of the general rate. In addition to the injuries of allergic rhinitis and emphysema, he also suffers from osteoarthrosis of his left and right hips which are also rejected by the respondent but which are not subject to the present review.

4. Mr Roberts was a member of the Royal Australian Navy between 27 September 1958 and 26 September 1967. At the time of his appearance at the VRB, his operational service was confined to three discrete periods being 31 May 1965 to 22 June 1965; 25 April 1966 to 6 May 1966 and 30 May 1966 to 9 June 1966. All three periods of eligible service were in Vietnam.

5. Subsequently, the applicant's operational service has been extended to include periods of service whilst he was a member of the Far Eastern Strategic Reserve (FESR). This extension arose by reference to an extension of veterans' entitlements announced in the 2001 federal Budget. Consequent amendments to the Veterans' Entitlements Act 1986 have occurred by delegated legislation. The effect on the extent of the applicant's eligible service is to recognise service also between 24 March 1961 and 17 April 1961; 15 April 1963 and 8 May 1963; 10 May 1963 and 25 May 1963; 24 February 1965 and 7 April 1965; 21 April 1965 and 7 May 1965 and 24 March 1966 and 25 April 1966.

STATEMENTS OF PRINCIPLES

6. During the assessment period there were three Statements of Principles concerning the condition of allergic rhinitis. Instrument No. 65 of 1995 was in force at the date of the primary application. It was amended by Instrument No. 160 of 1995, which - relevantly - amended the earlier Instrument only by inserting a definition of "allergic rhinitis" and "allergens".. Instrument No. 3 of 2003 revoked the two former Instruments. The latter instrument significantly reduced the number of factors which must exist as a minimum giving rise to a reasonable hypothesis.

7. Both parties agreed at the commencement of the hearing that the applicant did suffer from the condition of allergic rhinitis and a factor aggravating it was dust mite from bedding and kapok. Both parties also agreed that the applicable instrument was the instrument applying at the date of primary claim, namely No. 65 of 1995 at factors 1(a) and (b) which relevantly read as follows-

"(a) being exposed to allergens immediately before the clinical onset of allergic rhinitis; or

(b) being exposed to allergens immediately before the clinical worsening of allergic rhinitis".

8. "Allergens" is defined at Instrument No. 160 of 1995 as follows-

"allergens means an antigenic substance capable of producing an immediate immune response".

9. Having regard to the concessions made by the respondent with respect to allergic rhinitis, the parties agreed that the issues to be determined were whether this condition had a nexus with service and if so, when did it have a clinical onset or worsening.

10. During the assessment period the only instrument with respect to the condition of emphysema was Instrument No. 73 of 1997, entitled "Chronic Bronchitis and Emphysema". Both parties agreed that the applicant did suffer from emphysema, that it was related to smoking tobacco and that the applicant had smoked "at least 10 pack years of cigarettes or the equivalent in other tobacco products before the clinical onset of chronic bronchitis and/or emphysema" (factor 5(b)).

11. Having regard to the applicant's proposed evidence and having regard also to the concessions made by the respondent, with respect to emphysema, the parties agreed that the issues to be determined were whether the applicant did increase his smoking of tobacco and if so for what reason(s).

BRIAN JAMES ROBERTS

12. Mr Roberts, the applicant in these proceedings gave evidence. He said that he enlisted at age 17 years and was initially trained at HMAS Cerberus. He then was engaged in further training with HMAS Albatross in Nowra, NSW. In February 1961 Mr Roberts was transferred to HMAS Melbourne at Jervis Bay in NSW. He then sailed to Fremantle in Western Australia and was later engaged in exercises with the FESR.

13. Mr Roberts said that prior to enlistment and during his service with Cerberus and Albatross, he did not suffer any symptoms which were understood to be hay fever in nature. After he departed Fremantle on HMAS Melbourne and when he was "half way across the Indian Ocean in 1961" he noticed symptoms of runny nose, shortness of breath, fever, burning and weeping in his eyes, red nose and lips and ear ache. He recalled that these symptoms became worse when he was below decks in sleeping areas where air-conditioning was not available. He described the air on the fourth deck as being "rancid and hot and humid".. He recalled that when off duty he would deliberately proceed to the front of the ship or elsewhere to seek fresh air. Mr Roberts recalled that he suffered these symptoms for the remainder of his service on HMAS Melbourne and eventually commenced a course of weekly anti allergen injections. He said the injections "controlled the symptoms" except for a period between 1965 and 1966 when the injections were not available and the symptoms then returned.

14. In a proof of evidence lodged immediately prior to the hearing (and adopted by Mr Roberts in his evidence) he recorded - insofar as allergic rhinitis was concerned - the following-

"i That the first time I had nose or chest problems of any kind was on the HMAS Melbourne in 1961. Prior to that voyage I was land based at "Albatross" and slept in a Nissan hut which was approximately 60 x 20 feet in size, sleeping 20 to a hut on single beds.

i That these problems arose whilst I was living in close quarters on HMAS Melbourne during the FESR duty. I was on the water line 4) Charlie Mess with 60 to 80 others and we were sleeping on two foot wide, wire fold out bunks suspended by chains. The bunks were mounted three high against either side of rows of 2 inch diameter poles, that is the bunks were two inches apart. They were separated two feet three inches vertically so as to allow for your fingers when the bunks were folded up.

i That there was no air conditioning, a fresh air ventilation system being used, although it was of limited efficiency."

15. In Mr Roberts was referred to some service medical documents which recorded that he was treated for "hay fever".. Mr Roberts said that he had no recollection of that diagnosis ever having been made but he recalled that he was asked by a service doctor of his symptoms and when he described them he assumed that the doctor made that diagnosis.

16. Mr Roberts also confirmed that the sleeping conditions referred to in his proof of evidence were accurate and that he sought fresh air as often as he could during the voyage to the FESR and associated exercises. He confirmed that he did not have symptoms at all prior to leaving Fremantle.

17. With respect to the condition of emphysema and its association with smoking tobacco, Mr Roberts said that he first commenced to smoke tobacco when he was stationed at HMAS Albatross. He said he was then smoking between 8 and 10 cigarettes per day and maintained that rate whether he was on duty or on leave. He recalled that he was smoking approximately one pack of 20 cigarettes every second day and purchased cigarettes at that rate. He said that at that time smoking was not a "necessity"..

18. Mr Roberts said that the voyage on HMAS Melbourne between Jervis Bay and Fremantle occupied between 6 and 7 weeks and he recalled that there was a slight increase in the numbers of cigarettes that he was then smoking but he did not regard it as being "significant". He recalled that he did increase smoking cigarettes after he departed Fremantle because he and others were notified over loud speakers on the ship that an exercise was about to be conducted for between 18 and 19 days which he described as being "war like".. Mr Roberts recalled that during that period he worked 4 hours on and 4 hours off and then frequently working in a hangar below deck where he was busy and under stress because of aircraft movements. He also recalled that he smoked cigarettes during leave breaks and whilst working he would "sneak out and have a smoke".. Thereafter that pattern of cigarette smoking continued and he estimated that he had increased his consumption to between 18-20 cigarettes per day. Thereafter he progressively increased the numbers of cigarettes he smoked to 30 per day and eventually became addicted but he could not recall when.

19. Mr Roberts also recalled that cigarettes were cheaper to purchase outside of Australia because they were duty free and he recalled that three packs of cigarettes cost him 4 shillings. He recalled that he would purchase cigarettes "to stock up" to allow for occasions when the canteen on board the ship was closed. Whilst on leave in Hong Kong in 1961 Mr Roberts said that he purchased a pipe and thereafter he smoked cigarettes and smoked a pipe.

20. Some years later Mr Roberts was engaged in service in Vietnamese waters where his cigarette consumption increased, which he associated with being engaged in a "real war". He was also stressed because his wife was pregnant and due to deliver a child, but he was unable communication with her.

21. In cross-examination Mr Roberts said that he believed he started to smoke cigarettes because of peer pressure. He was then taken to a questionnaire completed by him at T-6 page 20 where, having said that he commenced to smoke 8-10 cigarettes per day, he was then asked why did he start to smoke on a regular basis. He recorded that smoking of those numbers occurred because of "peer pressure and general stress of duties as air/sea rescue director".. Mr Roberts described those duties as directing aircraft to various parts of the ship, directing the passage of an air/sea rescue helicopter and responsibility for 10 crewmembers. On further questioning however, Mr Roberts acknowledged that he did not become an air/sea director until he qualified as a leading airman which was in 1965. He agreed however that he did commence to smoke by reason of peer pressure in 1958. When he was asked why the questionnaire was apparently misleading, Mr Roberts said that he was not given assistance to complete it nor did he have knowledge of veterans legislation. He said he was asked a number of questions by an RSL advocate at Anzac House in Melbourne and he pointed to the handwriting of the questionnaire as not being his own. He was however unable to explain why in his evidence to the Veterans Review Board he agreed that the handwriting in that document at T-6 p.20 was his own (refer transcript of evidence page 17).

22. Mr Roberts was then asked to explain an apparent discrepancy between the evidence that he gave to the Veterans Review Board and his evidence to this Tribunal concerning the increase in his smoking habit.

23. At the VRB Mr Roberts, together with his advocate Mr Turner, submitted that he was smoking up to about 10 cigarettes per day until 1965 which was at about the time that he travelled to Vietnam. It was also in 1965 that Mr Roberts submitted that he purchased a pipe. When he was asked why it was that he gave evidence at this Tribunal that he increased smoking cigarettes in the Indian ocean in 1961, but did not disclose that evidence to the VRB, Mr Roberts said "they never asked".. He said that all of the discussions at the Veterans Review Board concerned his service at or near Vietnam only.

24. In his proof of evidence dated 15 January 2003 Mr Roberts recorded the following with respect to smoking-

i That I first tried smoking sometime after joining the Navy at HMAS Cerberus and up until sailing from Fremantle with the FESR I have reached a consumption maximum of between 8 and 10 cigarettes per day.

i That my rate of increase accelerated from that time and I was then smoking about 20 cigarettes a day.

i That my increase at that time was due to a number of factors including the fact we were told that we were under war-time type conditions which meant that there was a lot more "pressure" aboard ship. Hot conditions and shifts of 4 hours on, 4 hours off, created circumstances and an atmosphere conducive to smoking.

i But I also began smoking a pipe at about this time and I consumed a maximum of 2 ounces a week, up until ceasing ashore in 1966.

i That I increased my consumption of cigarettes again during the period of my service in Vietnam and reaching a 30 cigarettes per day average due to the stress of being in a significant war like area.

i That I maintained the consumption of about 30 cigarettes a day until cutting down to about 15 a day for the last 12-18 months before ceasing altogether in 1994.

i That my earlier statements with regard to this history were made without the benefit of close questioning and are therefore not as accurate".

25. In re-examination Mr Roberts was adamant that he did increase the smoking of cigarettes in 1961 during the exercise in the Indian Ocean. He said that he could recall smoking more cigarettes than previously, and he felt as if he then "needed" a cigarette more often than previously. He acknowledged that in 1961 he was not then controlling aeroplanes but was then pushing them on the hangar deck and he did not become an air sea rescue director until 1965.

COLIN LITTLE

26. Doctor Little is a medical practitioner and a specialist allergist. He examined Mr Roberts on 8 July 2002 and provided reports dated 11 July 2002 and 5 September 2002. He concluded in his reports that Mr Roberts did suffer from rhinitis and said that his "allergy to dust mite is a major factor in causing rhinitis".. He found on the history given to him that the symptoms appeared in about 1960 or 1961 and he thought there was a "temporal association between his respiratory symptoms due to dust mite, allergy and his service in the Navy".. He had a history of the applicant living in "close quarters with other navy personnel with up to 40 beds in small sleeping quarters" and he found that the applicant's exposure to dust mite occurred because it "thrives on skin fragments in the bedding".

27. In evidence Dr Little said that dust mite is an "allergen" as defined in Instrument No. 160 of 1995.

28. The witness said that dust mite lives on skin fragments which are deposited in bedding. He thought that high humidity and warm temperatures would also cause dust mite to proliferate. He acknowledged that a crowded sleeping area on board a ship in a tropical climate would be a "ideal breeding ground for dust mite" and the applicant's symptoms were consistent with an allergy to dust mite. He thought that the applicant's complaint of facial pain was a result of severe sinus symptoms and he was confident with the applicant being diagnosed as suffering from allergic rhinitis. He said the condition is managed by medication and the applicant's "relapse" was consistent with a period of time of not having received desensitisation injections.

29. In cross-examination Dr Little confirmed that horsehair and kapok was used as a stuffing for mattresses. He said that dust mite would circulate or be released from mattresses by movement.

30. When he was asked to comment on a reference made by a service doctor to the applicant presenting for "hay fever", Dr Little said that that term was not appropriate when describing the condition of "allergic rhinitis".

REPATRIATION COMMISSION V DELEDIO

31. The above decision of the Full Federal Court reported at 1998 49 ALD 193, recorded 4 stages at page 206 which must be followed in order to determine whether injury or disease is related to service. Those 4 stages are as follows-

"1. The tribunal must consider all the material which is before it and determine whether that material 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.

2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The tribunal must then proceed to 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. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."

32. With respect to the alleged association between tobacco smoking and emphysema, there is material which points to such a hypothesis. Additionally there is a Statement of Principle in force. Having regard to the concession made by the respondent and to the evidence of Mr Roberts it would appear that he did smoke at least 10 pack years of cigarettes or the equivalent in other tobacco products before the clinical onset of emphysema. The third stage of Deledio is therefore satisfied.

33. However, having read the documents lodged with the Tribunal and having heard the evidence of Mr Roberts I am satisfied beyond reasonable doubt that the condition was not war-caused. I have reached these conclusions because although it would appear that the applicant did smoke cigarettes during service I have found it impossible to make findings of fact connecting smoking of tobacco with service or an increase in the smoking of tobacco with service.

34. When the claim for emphysema was initiated by Mr Roberts in 1999, he recorded that he was smoking 8-10 cigarettes per day due to peer pressure and "general stress of duties as air/sea rescue director." In the same document he also recorded that he gradually increased cigarette consumption to between 15 and 18 per day. The stated reason for the change in his pattern of tobacco consumption is recorded as "no definable reason - just became addicted".. In another questionnaire completed at the same time with respect to pipe smoking he recorded that he commenced smoking a pipe in 1958 at 2 ounces per week. When asked "why did you start to smoke a pipe on a regular basis", he recorded "it was a trendy thing to do and in bad weather you could turn the bowl upside down and keep the pipe alight".

35. Insofar as the applicant did smoke a pipe, he said in evidence that he purchased a pipe in 1961 when in Hong Kong, but in his evidence to the Veterans Review Board, he said that he commenced smoking a pipe in 1965 (refer transcript page 9 and page 13). In the overall consumption of tobacco products, little may have been consumed as pipe tobacco nonetheless there were three different dates as to when pipe smoking commenced, none of which I can reconcile.

36. With respect to cigarette consumption there is the questionnaire completed by Mr Roberts in 1999 recording cigarettes being smoked at 8-10 per day with a gradual increase to 15 to 18 per day. In the transcript at page 11, Mr Roberts indicated that he was smoking 10 cigarettes per day for 29 years (page 11), yet at page 14 there is an acknowledgment by Mr Roberts and his advocate of an increase in smoking at May 1965. There is no reference at all in the transcript of the evidence at the VRB of any increase in smoking in 1961 as was the evidence of Mr Roberts at this Tribunal.

37. It was suggested by him at the hearing that he increased his smoking habit by reason of stress associated with his service in an aircraft hangar from 1961 however his duties as an air/sea rescue director and leading airman, with associated stress, did not commence until 1965. Indeed there is a reference in the VRB transcript of the applicant not having increased his smoking habit in 1961 (page 15). In answer to a proposition put to him by a Board member namely "and you said that in 1961 you weren't smoking a hell of a lot because you were around fuel and that kind of stuff", Mr Roberts replied, "that is correct".

38. The applicant said that the stated reasons for smoking and quantities smoked as recorded in the questionnaires were in the handwriting of another person yet in his evidence to the VRB (page 17) he acknowledged that the handwriting was his own. Whether the handwriting in the questionnaires was that of the applicant or the person assisting him is irrelevant to the extent that the applicant did sign the forms and the information supplied and as recorded would have only been on the basis of information obtained from him. Similarly the submissions made by the applicant's advocate at the VRB would have only been made upon the basis of information supplied by or obtained from Mr Roberts. On balance I do not doubt that the applicant did smoke cigarettes which he commenced after enlistment. However, I cannot, for the above reasons, discern whether there was an increase in smoking or if there was, when that occurred and for what reasons. I should say also in conclusion to this part of the reasons that the content of the proof of evidence made on 15 January 2003 contains information not found at all in the documents lodged prior to the hearing, namely smoking cigarettes at 30 per day. The explanation given (apparently in acknowledgment by Mr Roberts that his history prior to the appeal was inconsistent) that "earlier statements with regard to this history were made without the benefit of close questioning" is in my view unacceptable. The questions asked of Mr Roberts by members of the VRB were probing and specific yet the answers then given were inconsistent with the information supplied at primary level and were in many respects inconsistent with the information given in response to examination in chief and cross-examination at this appeal. I cannot, be satisfied beyond reasonable doubt that there is any sufficient ground to connect smoking and consequent emphysema with operational service (refer s.120(1)).

39. With respect to the condition of allergic rhinitis I am satisfied on the Deledio principles that there is a hypothesis connecting that injury with service and that a Statement of Principle exists. I am also satisfied that the third stage is achieved because factors 1(a) and (b) are both satisfied. Upon the evidence of Dr Little, the applicant's exposure to dust mites constitute "allergens" as defined in Instrument No. 160 of 1995. The hypothesis therefore raised is consistent with the template of the Statements of Principle and the hypothesis therefore is reasonable.

40. With respect to the fourth stage I am not satisfied beyond reasonable doubt that the injury was not war-caused. It follows that the respondent in my view has not satisfied s.120(1), this part of the claim must therefore succeed, and the relevant part of the decision of the Veterans Review Board will be set aside.

41. I am satisfied that when Mr Roberts was "half way across the Indian Ocean" he developed symptoms which have been found by Dr Little as being consistent with allergic rhinitis. I accept and find as a fact that the applicant did not then suffer "hayfever" but suffered from a condition, which is properly described as allergic rhinitis. I am satisfied and find as a fact that the applicant's exposure to dust mite was the principal cause of allergic rhinitis and that the dust mites had their origin in the crowded, humid and poorly ventilated sleeping areas to which the applicant was exposed. The dust mite in my view would have been prolific to the extent of the number of persons sleeping in close proximity. Additionally, having regard to the frequency of the beds being occupied (with 4 hour shifts during the Indian Ocean exercises) the movement on mattresses thereby "stirring up" (refer evidence of Dr Little) the dust mites would have compounded the applicant's exposure to those allergens.

42. Having regard to these findings with respect of the condition of allergic rhinitis, that part of the decision of the VRB should be set aside and the application remitted to the respondent for assessment of pension entitlement.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.

Signed: ....C. Irons.....................................................

Secretary

Date/s of Hearing 21 March 2003

Date of Decision 11 April 2003

Counsel for the Applicant Chris Thomson

Solicitor for the Applicant Peter Liefman

Counsel for the Respondent Departmental representative

Solicitor for the Respondent