Heinz and Repatriation Commission [2010] AATA 97 (10 February 2010)

Last Updated: 11 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/5864

DIVISION		)
	Re		RONALD HEINZ

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member A K Britton Doctor M E C Thorpe, Member

Date 10 February 2010

Place Sydney

Decision

The Tribunal sets aside the decision under review, and substitutes a decision that: 1. Mr Heinz suffers from atrial fibrillation, chronic sinusitis, osteoarthritis of the right knee, and coronary artery disease; 2. Mr Heinz’s osteoarthritis of the right knee is war-caused; 3. Mr Heinz’s atrial fibrillation, chronic sinusitis and coronary heart disease are not war-caused; and 4. The date of effect of the substituted decision in respect of the osteoarthritis of the right knee is 30 May 2005.

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CATCHWORDS

VETERANS ENTITLEMENTS – operational service – whether conditions of atrial fibrillation, sinusitis and osteoarthritis of right knee attributable to operational service –application of Statements of Principles (SoPs) – determination of whether reasonable hypothesis linking illness to operational service exists – application of standard of “beyond reasonable doubt” – satisfied beyond reasonable doubt that atrial-fibrillation and sinusitis war-caused – not satisfied to requisite standard that osteoarthritis not war-caused.

Veterans Entitlements Act – ss 6C, 7, 13, 120, 120A, 138, 196, 196B

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Meehan v Repatriation Commission [2003] FCA 1371

REASONS FOR DECISION

1. Mr Ronald Heinz served in the Royal Australian Navy in the early 1960’s. He now suffers from a number of medical conditions, and attributes some of these to his service with the Navy.
2. Mr  Heinz applies to the Tribunal for review of a decision made by the Veterans Review Board to refuse his claim for a disability pension made under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The Board decided, amongst other things, that Mr Heinz’s claimed conditions of lumbar spondylosis, ischaemic heart disease and chronic sinusitis were not “war-caused”, and that there was no medical condition corresponding to his claim for “right knee problems”. In these proceedings, he recast his claim to include claims for atrial fibrillation and coronary artery disease and withdrew those made in respect of lumbar spondylosis and ischaemic heart disease.
3. It is not in issue that Mr Heinz suffers from all claimed conditions with the exception of coronary artery disease which the respondent Commission contends is not a disease within the meaning of the Act. The Commission argues that none of the claimed conditions are war-caused and therefore Mr Heinz’s claim for a pension under the Act must fail.

PERIOD OF OPERATIONAL SERVICE

4. Mr Heinz joined the Royal Australian Navy in November 1961 and was discharged in October 1963. Several parts of that service constitute “operational service” as defined by s 6C of the Act — specifically, the periods from 28 September 1962 to 31 October 1962; 8 November to 1 December 1962; 5 to 22 December 1962; 27 January to 6 February 1963 and 7 to 16 February 1963. He joined HMAS Queenborough on 6 August 1962.

LEGISLATIVE BACKGROUND

5. The Commonwealth will be liable to pay a pension by way of compensation to Mr Heinz if he is incapacitated by a “war-caused disease”: s 13(1) of the Act.
6. Sections 120 and 120A of the Act set out the method for determining whether a disease was “war-caused’ and the standard of proof to be applied. Where, as in this matter, it is asserted that each claimed disease relates to “operational service”, we must determine that the relevant disease was “war-caused” unless satisfied beyond reasonable doubt that there is no sufficient ground for so determining: s 120(1) of the Act. We shall be satisfied beyond reasonable doubt that no sufficient ground exists, if, after considering all of the material, we are of the opinion that that material does not raise a reasonable hypothesis connecting the relevant disease with the circumstances of the particular service rendered by Mr Heinz: s 120(3).
7. Section 120A(3) of the Act provides that a hypothesis will only be “reasonable” if there is a Statement of Principles made by the Repatriation Medical Authority under subsection 196B(2) or (11) in relation to the particular condition which upholds the hypothesis. Subsection (3) does not apply where the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of the kind of disease contracted by the person: s 120A(4).

ISSUES

8. In respect of atrial fibrillation, chronic sinusitis and osteoarthritis of the right knee, the issues to be determined are:

1. Has a reasonable hypothesis been advanced connecting the condition with Mr Heinz’s operational service?
2. If so, can we be satisfied beyond reasonable doubt that there is no sufficient ground for deciding that the subject condition was “war-caused”?

A. ATRIAL FIBRILLATION

HAS A REASONABLE HYPOTHESIS BEEN RAISED?

9. Mr Heinz advances the following hypothesis in support of his contention that his condition of atrial fibrillation is “war-caused”— that there was a connection between his atrial fibrillation and ischaemic heart disease, and that the latter was connected with his smoking habit which, in turn, was “related to” the service rendered by him (namely operational service).
10. He contends that this hypothesis (or more correctly, hypothesis and sub-hypothesis) “fits” two Statements of Principles currently in force — Instruments No. 19 of 2003 (atrial fibrillation) and 89 of 2007 (ischaemic heart disease). Under the former, a reasonable hypothesis connecting atrial fibrillation with the circumstances of the person’s relevant service is said to exist if the person was suffering from ischaemic heart disease at the time of clinical onset of atrial fibrillation[1]. The latter nominates smoking as one of a number of risk factors for ischaemic heart disease, specifically:

where smoking has not ceased prior to the clinical onset of ischaemic heart disease:
...
(i) smoking an average of at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least the one year before the clinical onset of ischaemic heart disease; ...[2]

11. The hypothesis advanced by Mr Heinz rests on the following propositions:

1. That he suffered from ischaemic heart disease at the time of the clinical onset of atrial fibrillation.
2. That he had not ceased smoking prior to the clinical onset of ischaemic heart disease.
3. That for at least one year before the clinical onset of ischaemic heart disease he had smoked at least five cigarettes per day.
4. That his smoking habit was “related to” the circumstances of his “relevant service” namely, operational service.

12. In deciding whether there is some material that “points to” each of these propositions, we have had regard to all of the material before us.
13. It is common ground that Mr Heinz was suffering from ischaemic heart disease at the date of clinical onset of atrial fibrillation, namely 3 November 1992.[3]
14. There is material that points to Mr Heinz continuing to smoke after the date of clinical onset of ischaemic heart disease and smoking at least five cigarettes per day in the twelve months prior to clinical onset.[4]
15. There is also material that points to Mr Heinz’s smoking habit being “related to” operational service. This includes evidence given by Mr Heinz in these proceedings to the effect that during operational service he moved from being a “Claytons” to a “confirmed smoker”, and that the reason he took up smoking was because of a combination of peer pressure and the availability of cheap cigarettes.
16. While the Commission contends that the evidence given by Mr Heinz about his smoking habit is unreliable, it properly concedes that there is some material before us that “points to” Mr Heinz’s smoking habit being “related to” operational service. Thus, there is no issue that the hypothesis is reasonable.

CAN WE BE SATISFIED BEYOND REASONABLE DOUBT THAT ATRIAL FIBRILLATION WAS NOT WAR-CAUSED?

17. We must determine that Mr Heinz’s atrial fibrillation was a “war-caused disease” unless satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: s 120(1) of the Act. The High Court in Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564 said at 571 that by the operation of s 120(1), a claim will succeed unless:

(a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

18. Accordingly, we must decide whether any of the four facts on which Mr Heinz’s hypothesis rests are disproved beyond reasonable doubt, or whether another fact or facts, inconsistent with the advanced hypothesis, is proved beyond reasonable doubt. We note that neither party bears an evidentiary onus: s 120(6) of the Act.
19. We could not be satisfied that three of the four facts on which Mr Heinz’s hypothesis rests are disproved beyond reasonable doubt. As noted, it is common ground that Mr Heinz was suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation (Proposition 1). His claim that he continued to smoke after the onset of ischaemic heart disease (Proposition 2), and had been smoking at least five cigarettes in the 12 months prior to clinical onset (Proposition 3), is unchallenged and supported by the clinical notes of, and reports prepared by, his treating doctors.
20. The dispute centres on Proposition 4 – that the development and maintenance of Mr Heinz’s nicotine addiction, which continued for some thirty years after leaving the Navy, was “attributable to” and/or “contributed to in a material degree” by his operational service. Two issues are critical to that issue: firstly, when he took up smoking; and secondly, the point at which he became what he described as a “confirmed smoker”, by which we understand him to mean that he was addicted to nicotine or that the habit was entrenched.
21. The Commission submits that the evidence given by Mr Heinz about his smoking history is unreliable and that furthermore, the evidence as a whole raises doubts about his credit and credibility. It argues therefore that we will be satisfied beyond reasonable doubt that atrial fibrilation was not war-caused, citing in support Meehan v Repatriation Commission [2003] FCA 1371 at [12], [34]-[39] and Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 416.
22. Before considering this submission it is necessary to examine in some detail the evidence given by Mr Heinz about his smoking history.
23. Starting smoking In a questionnaire completed in August 2005 (the Questionnaire) Mr Heinz stated that he started smoking “After I joined the navy... November 1961”.
24. In evidence given in proceedings before the Board in November 2007, he said he started to smoke “some weeks” after he joined the Queenborough.
25. In a statement prepared for these proceedings, dated 16 April 2009, Mr Heinz stated:

I had started to smoke when I joined HMAS Queenborough in 1962. I smoked a maximum of 4 or 6 per day. I was “rubbished” for not being a “real smoker”. I was seen as a “Clayton’s smoker”. I’d light a cigarette and put it down in the ashtray and let it burn out before I took another drag.

I became a “confirmed smoker” about 6 months later – I was smoking between 10 and 12 per day, during periods other than on parade, in training classes or when on watch duty. I smoked Phillip Morris Light Blues (20 per pack) and bought a new pack each second or third day[5].

26. In contrast, in oral evidence given in these proceedings, he said he started to smoke “some months after joining the Queenborough”[6], and later in evidence that this occurred a “long time” after joining the Queenborough [7]. He claimed that at the beginning he smoked eight to ten cigarettes a day and that “later on”, when he started to drink, this amount increased to 20 cigarettes per day.
27. He did not resile from the claim that he did not start to smoke until after joining the Queenborough[8] when questioned by the Board about the apparent discrepancy between the claim made in those proceedings and the Questionnaire. He said that the Questionnaire should not be read as nominating a “specific time” about when he started smoking but merely that he started after joining the Navy. He gave this explanation for the apparent discrepancy:

The question states: “When did you first start smoking cigarettes on a regular basis?” After I joined the navy in – I joined the navy in 1961. It doesn’t say that I started smoking in 1961, does it?
...
... my interpretation or intention of the explanation is after I joined the navy I started smoking. But it wasn’t till I joined the Queenborough in 1962 that I commenced smoking[9].

28. In these proceedings he gave a similar explanation for the alleged discrepancy[10].
29. In a report dated 15 July 2009 Professor O’Rourke recorded that Mr Heinz told him that he started smoking about four months after joining the Queenborough. He recorded that Mr Heinz nominated February 1963 as the month he started smoking.
30. The entry in Mr Heinz’s diary for 28 September 1962, the first day of operational service, reads “had a good run around Darwin and got drunk”. In a diary entry made following a long period of convalescence on 1 December 1962 Mr Heinz wrote, “would like a smoke”.
31. Amount smoked In the Questionnaire Mr Heinz wrote that he smoked between 20 to 30 cigarettes per day. In these proceedings, he admitted that this figure had been inflated on the recommendation of the RSL welfare officer who had assisted him to make his claim. He thought the correct amount was more like 10 to 15 cigarettes per day after becoming a “confirmed smoker”. According to Mr Heinz the officer had advised that the inflated figure would lend weight to his claim.
32. In answer to a question from the Board, “when did you start smoking 20 to 30 per day” Mr Heinz did not disclose that that estimate was inflated[11].
33. Reason for taking up smoking In the Questionnaire, Mr Heinz stated that he took up smoking on a regular basis because of: “stress of navy duties, peer pressure, availability of cheap cigarettes”. He told the Board that he took up smoking because he wanted to “join in” with his peers and be part of the “inner circle”. He claimed that he felt under increasing pressure to smoke when he went on shore leave. He also told the Board that when he joined the Queenborough, over half of the forty personnel smoked: “You could not see from one side of the mess to the other for the smoke”[12] — “[I] was constantly subjected to smoke”[13].
34. He gave similar evidence in these proceedings. When asked why he did not start smoking until joining the Queenborough, he explained that it was the combined effect of consistent exposure to smoke “in the mess” and peer pressure, especially when he and his colleagues went drinking on shore. Under cross-examination he insisted that even though his civilian workmates had smoked he had managed to resist peer pressure because he was “fanatical” about his sport. He made broadly the same claims to the Board.
35. Assessment of the evidence In assessing the evidence about Mr Heinz’s smoking history, s 138 of the Act requires that we take into account “any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; or

(ii) the absence of, or a deficiency in, relevant official records including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, ... was not reported to the appropriate authorities.”

36. Since making his initiating claim, Mr Heinz has given three arguably conflicting accounts about when he took up smoking — after joining the Navy, after joining the Queenborough and at some indeterminate time before joining the Queenborough. While he has given an explanation for the apparent discrepancy between the claim made in the Questionnaire and that made in oral evidence in these proceedings, he has not provided an explanation for the apparent conflict between the claim made in the statement prepared for these proceedings — that he was a light smoker when he joined the Queenborough, and his oral evidence given in these proceedings — that he did started smoking after joining the ship.
37. We accept that there is no necessary inconsistency between the claims of starting to smoke “after joining the Navy” and “after joining the Queenborough”. The inconsistency between the claim that he had been “a light smoker on joining the Queenborough” and of “not smoking until joining the Queenborough” is, however, apparently irreconcilable.
38. The only objective evidence to assist us resolve these apparently conflicting accounts is Mr Heinz’s diary. The entry for 28 September 1962, the first day of operational service, records that he “got drunk” during shore leave in Darwin. This together with his uncontradicted account that he did not start to drink until he had been smoking for “some time” [14], or at least “six months” after he took up drinking[15] provides firm evidence that he had been smoking for some time before starting operational service.
39. The necessary causal link between Mr Heinz’s smoking habit and operational service rests on evidence that he either took up smoking during that service, or became a “confirmed smoker” during the course of that service. If established to the requisite standard that Mr Heinz had become a “confirmed smoker” before the commencement of operational service, it could not be said that the development and maintenance of his smoking habit was “related to” that service, in that, it “arose out of, or was attributable to, that service”, or was, “contributed to in a material degree by, or was aggravated by, that service”, or that, “it would not have occurred but for the rendering of that service” (s 196B(14)(b), (d) and (f)(i)). This is because it is insufficient for the purpose of deciding if the service was “related to” the condition, that the material merely point to Mr Heinz having smoked during operational service or a temporal connection between smoking and service.
40. We are satisfied beyond reasonable doubt that Mr Heinz’s smoking habit was entrenched by the time he commenced operational service. That finding is consistent with Mr Heinz’s evidence that there was a significant time lag between commencing smoking and starting to drink, and his consistent claim that by the time he started to drink he had increased the amount he smoked to its maximum level — around 10 to 15 cigarettes per day — the point he characterises as when he became a “confirmed smoker”. This finding is inconsistent with the hypothesis that his smoking habit was “related to” to operational service.
41. For these reasons we are satisfied beyond reasonable doubt that there are no sufficient grounds for determining that Mr Heinz’s atrial fibrillation was a “war caused” disease.

B. CHRONIC SINUSITIS

HAS A REASONABLE HYPOTHESIS BEEN RAISED?

42. Under the SoP for chronic sinusitis, Instrument No 21 of 2003, a reasonable hypothesis connecting Mr Heinz’s chronic sinusitis and operational service will exist if there is material that points to the fact that he was smoking more than ten cigarettes per day at the time of clinical onset of chronic sinusitis[16] and that his smoking habit was “related to” operational service.
43. It is common ground that the date of clinical onset of chronic sinusitis is 1968, and that there is material which points to Mr Heinz smoking at least ten cigarettes per day at that time. As previously mentioned there is also material that points to Mr Heinz’s smoking habit being “related to” operational service.
44. It follows that we can be satisfied that a reasonable hypothesis connecting Mr Heinz’s chronic sinusitis and operational service has been raised.

CAN WE BE SATISFIED BEYOND REASONABLE DOUBT THAT CHRONIC SINUSITUS WAS NOT WAR-CAUSED?

45. Given our conclusions outlined at [35]-[41] of these Reasons we can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Heinz’s chronic sinusitis was related to operational service.

C. OSTEOARTHRITIS OF THE RIGHT KNEE

HAS A REASONABLE HYPOTHESIS BEEN RAISED?

46. The relevant Statement of Principles, Instrument No. 31 of 2005 (osteoarthrosis), provides that at least one of the factors enumerated in clause 6 of that Statement must exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthritis and the circumstances of Mr Heinz’s operational service. Mr Heinz relies on the following two factors:

(g) having a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;
...
(n) for osteoarthrosis of a knee joint only, having internal derangement of the knee before the clinical onset of osteoarthrosis in that joint;

47. It is sufficient that the material points to only one of these factors; that is, they do not stand and fall together.
48. The hypothesis advanced on behalf of Mr Heinz, that there is a connection between the osteoarthrosis in his right knee and operational service, rests on the following propositions:

1. That he sustained a trauma to his right knee on 18 October 1962
2. That the clinical onset of osteoarthritis post-dated that trauma
3. That the subject trauma caused internal derangement of the right knee
4. That the clinical onset of osteoarthritis post-dated the internal derangement of the knee

49. The Commission contends that the material before us does not point to Mr Heinz having injured his right knee in October 1962, and that neither hypothesis is therefore raised. To put this argument in context, it is necessary to outline the material about the alleged injury.
50. There is no argument that Mr Heinz injured a knee during a rugby match on 18 October 1962, that he was taken to hospital by ambulance, or that this occurred during a period of operational service. What is in dispute is which knee was injured.
51. In evidence given in these proceedings Mr Heinz claimed it was the right knee. His diary entry for 18 October 1962 reads “received a very bad right knee injury playing Rugby union”. In a different pen the word “left” was crossed out and substituted with “right”. In cross-examination, Mr Heinz claimed he made the alteration a few days after the date of injury because of confusion with an earlier injury to his left knee[17].
52. In these proceedings he denied having had any surgery to his right knee other than that shortly following the October 1962 injury. He denied any surgery on his left knee.
53. A report prepared by Dr Hackworthy dated 21 September 1992 records Mr Heinz giving a history of injury to the right knee.
54. In a document completed by Mr Heinz immediately before discharge in answer to the question “have you suffered any disabilities during service?”, Mr Heinz wrote “yes injury-injury left knee football” [18].
55. Of the contemporaneous medical records produced that relate to the October 1962 injury[19], four refer to the left knee and two make no mention of which knee was injured. The records note a diagnosis of sub-periosteal haematoma [deep bruise] and of “internal derangement of the affected knee”. An in-patient record dated 6 November 1962, noted the “possibility of a mildly torn medial cartilage”.
56. These records also indicate that Mr Heinz was hospitalised for two separate periods, from 18 October to 6 November 1962 at HMS Terror, and, from 8 to 13 November 1962 in the British Hospital in Singapore. None of the medical records produced reveal why Mr Heinz was readmitted two days after being discharged from Terror. A diary entry made by Mr Heinz for 7 November recorded that while carrying garbage down the stairs, his leg “gave way and I fell down, doing my leg in again”. The British Hospital’s records indicate that he was discharged on 13 November 1962 to Sick Quarters at HMS Terror. In contrast, Mr Heinz’s diary indicates that he was confined to bed until late November, not discharged from hospital until about 7 December, and did not leave HMS Terror until 17 December.
57. None of the medical records produced refer to Mr Heinz having undergone any surgical procedure following the injury to his knee. Reference is made to a “POP [Plaster of Paris] walking cylinder” being applied — a common procedure used at the time to immobilise limbs[20]. Yet in his diary Mr Heinz recorded two procedures being carried out, both under anaesthetic — the first on 30 October 1962, when the affected leg was placed in a “pressure clamp”; — and the second on 9 November 1962, when the “hard blood [was] drained away...the bad flesh was cut out...stitched up again...the leg put in plaster”.
58. Reports prepared by rheumatologist, Professor Neil Sambrook and orthopaedic surgeon, Dr David Millons were tendered in these proceedings and both gave oral evidence. In their respective reports, they recorded that Mr Heinz gave a history of injury to the right knee. Both were of the opinion that the only conclusion available from the radiological evidence[21] was that the meniscus (cartilage) in Mr Heinz’s right knee had been removed. Both considered that the scarring on the right knee was consistent with an open meniscectomy having being performed. Both agreed that open meniscectomies were widely performed in the early sixties until replaced by arthroscopic meniscectomies some years later[22]. Both concluded that the scarring on Mr Heinz’s knee was not recent and that it was not possible to estimate its age with any certainty — Professor Sambrook thought the scarring was at least 10 years old, while Dr Millons thought it was at least 12 months old.
59. On examination, Professor Sambrook found no evidence of scarring of the left knee.
60. Professor Sambrook concluded that Mr Heinz had probably injured his right knee during the October rugby match. His opinion was based on the history given; the contemporaneous clinical notes, including the reference to possible medial damage; Mr Heinz’s diary account of the procedure performed on 9 November 1962; the evidence of the truncated right meniscus; the scarring over the right knee consistent with an open meniscectomy; and the absence of any scarring of the left knee.
61. Professor Sambrook thought the explanation for the apparent discrepancy in the medical records was “human error”. Dr Millons thought it improbable that an error of such type would be repeated by medical professionals.
62. Findings and conclusions The Commission’s argument that Mr Heinz’s claim must fail as the material before us does not “point to” an injury to the right knee during service sits uncomfortably with those authorities which have cautioned decision makers against making findings of fact when applying s 120(3) of the Act. The High Court in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408 at 413 stated that the provision is:

[C]oncerned with whether "the material" raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact.

63. The Commission’s argument that the material “points away” from the hypothesis is in truth an argument about the weight to be afforded to conflicting evidence and, consistent with the authorities, must be rejected. It is plain that there is some material that the right knee was injured in October 1962, including the evidence given by Mr Heinz in these proceedings. Whether that evidence should be accepted is not the issue for determination at this stage. Mr Heinz’s evidence about his injuring his right knee, coupled with the material on internal derangement of the affected knee[23] and the onset of osteoarthritis of the right knee after internal derangement[24], points to a hypothesis connecting the osteoarthritis in Mr Heinz’s right knee with operational service.
64. We are satisfied that a reasonable hypothesis connecting osteoarthritis and operational service is raised on the material before us.

CAN WE BE SATISIFED BEYOND REASONABLE DOUBT THAT THE OSTEOARTHRITIS OF THE RIGHT KNEE WAS NOT WAR-CAUSED?

65. The Commission contends that we can be satisfied that Mr Heinz’s claim of an injury to his right knee, on which his hypothesis rests, has been disproved to the requisite standard. In support, it points to the references to the left knee in the contemporaneous medical records, Mr Heinz’s discharge records, and the unamended diary entry for 18 October 1962. Coupled with the evidence which it contends raises doubts about his credit and credibility, the Commission argues that it is beyond doubt that Mr Heinz did not injure his right knee as claimed.
66. For convenience, we will first consider the evidence that is unrelated to the knee injury which, the Commission asserts, raises issues of credit. This includes the circumstances surrounding Mr Heinz’s discharge from service, the alleged fall in January 1963, and the account of his smoking history, which is set out above.

CLAIM ABOUT REASON FOR DISCHARGE

67. Mr Heinz was discharged from the Navy in October 1963. The stated reason for discharge was “SNLR” [Service No Longer Required].
68. In these proceedings, Mr Heinz testified that he was discharged for “medical reasons” namely problems with his knee, back, sinuses, eyes and hearing. He claimed that he was told by his Divisional officer that because of his health he no longer met “Navy requirements”.
69. Mr Heinz was subjected to a medical examination immediately prior to discharge. The examining medical officer certified that his lower extremities were “normal” [25]. In a statement completed on the same day, Mr Heinz stated that he did not suffer from any disabilities “considered due to, or aggravated by service” but that he had sustained a left knee injury on “strategic reserve”[26].
70. Mr Heinz’s Service Card”[27] contains the following notation —“1-8-63 — Cells — five days — SVD [served]”. Perplexingly discharge records describes his conduct as “very good”. Mr Heinz denied being disciplined while in the Navy or that his conduct played any role in his discharge. He also denied spending time in the cells during the course of his service[28].

CLAIM ABOUT BACK INJURY

71. In a statement prepared for these proceedings, Mr Heinz claimed that he fell down a hatch en route to Vietnam on the Queenborough in January 1963 — “we’d run into a cyclone the ladder was wet and slippery”[29]. He claimed that he was hospitalised in the US Navy Hospital at Subic Bay, the Philippines as a result. In proceedings before the Board, he said that the fall occurred in “October / November 1962”.
72. Mr Heinz’s service records indicate that he had several visits to Subic Bay throughout the period, 10 January to 23 January 1963. Daily entries made in his personal diary for this period, refer to “bad weather” but not a fall, accident or hospitalisation. In cross-examination Mr Heinz explained that this was because he made the entries in his diary two or three days after the event, and had not taken his diary to hospital.
73. Findings and Conclusions We agree with the Commission’s argument that Mr Heinz’s claims about his knee injury cannot be considered in a vacuum.
74. By his own admission, Mr Heinz knowingly gave an inflated estimate in the Questionnaire about the amount he smoked. That he did so, allegedly on the urging of another, does not exculpate Mr Heinz. It reveals that on one occasion he has been prepared to make untruthful claims to bolster his case.
75. The claims made by Mr Heinz about the circumstances surrounding his discharge from the Navy are also troubling. His claim that conduct issues had no bearing on the reason for his discharge is contradicted by the entry in his service records indicating that he spent time in detention shortly before discharge which is in turn consistent with the stated reason for discharge – “service no longer required”. Those entries are of course inconsistent with the description of Mr Heinz’s conduct as “very good”.
76. The claim that he injured his back en route to Vietnam by falling down a hatch also raises questions. No medical records have been produced to support his claim that he spent time in a US army base in January 1963 following the alleged fall (as claimed in these proceedings), or in October/November 1962 (as claimed in proceedings before the Board). While the absence of any medical records is not in itself determinative, when coupled with the absence of any mention in his diary of a stint in hospital during this period or of falling and injuring his back, it raises concerns about this evidence.
77. That Mr Heinz gave inconsistent claims about when he commenced smoking may also raise concerns about his credit. However, these inconsistencies could also be explained by the inherent difficult of accurately recalling unremarkable events that occurred almost 50 years ago.
78. It is against this background that Mr Heinz’s account of injuring his right knee must be assessed.
79. It is first necessary to comment briefly on the medical records produced to the Tribunal. An examination indicates that some records are missing or else that scant records were kept. This is apparent from the dearth of records produced; the material discrepancy between the official records and Mr Heinz’s diary about the period of hospitalisation; the absence of any mention in the official records about the reason for the second hospitalisation; and, the lack of clinical notes detailing the second — and apparently more serious — medical procedure performed on 9 November 1962.
80. The paucity of documentation does not, of course, account for the repeated references in the official records, or those made at the time by Mr Heinz, to the left knee. On the face it would appear implausible that different doctors from different organisations would record the wrong knee as having been injured and that Mr Heinz would himself make the same error.
81. We accept that contemporaneous records are generally more reliable than a subsequent account given by an interested party, especially where the passage of time between the event and account given is significant. However, it does not follow, as we understand the Commission to contend, that in this case the contemporaneous records — including those made by Mr Heinz — are determinative.
82. As the Commission points out there are a number of examples of Mr Heinz providing unreliable evidence. It could be that Mr Heinz knew that evidence to be untruthful, or alternatively, that it was the product of faulty recollection or reconstructed memory. Even accepting that his claims about his back injury, reason for discharge and smoking history are unreliable, it does not automatically follow that his evidence about injuring his right knee is also unreliable. It does, however, indicate that a cautious approach should be adopted in assessing his testimony, even more so where it is internally inconsistent and /or contradicted by other evidence.
83. Mr Heinz’s account of injury to the right knee — while contradicted by his original diary entry and discharge records — is nonetheless consistent with the history given to Dr Hackworthy a decade before making a claim for a pension.
84. His detailed contemporary account — of fasting, being “put under” in an operating theatre, of having stitches in his knee, of the “bad flesh” being cut away, of the infected wound subsequently being dressed and bandaged, of being confined to bed for a number of weeks — suggests that something more than the mere placement of the leg in a plaster cylinder occurred on 9 November 1962.
85. There is no direct evidence that the surgical procedure performed on that date was a menisectomy or, apart from Mr Heinz’s testimony, that the affected knee was the right knee. Nonetheless, there is some evidence in our view which could support both inferences being drawn:
    • The absence of evidence of scarring on the left knee, which fits uncomfortably with Mr Heinz’s description of having stitches, the “bad flesh being cut away”, the wound becoming “smelly”
    • Mr Heinz’s account of the procedure undertaken on 9 November 1962 and the subsequent convalescence
    • The recorded diagnosis of cartilage damage in the affected knee
    • The uncontested evidence of the meniscus in the right knee having been removed
    • Mr Heinz’s denial of any surgery to the right knee after November 1962 and the absence of any evidence to contradict that claim
    • Professor Sambrook’s opinion that the 9 November procedure was most probably an open meniscectomy
    • The evidence of no damage to either knee on admission to the Navy
      
86. Having scrutinised all the evidence, we cannot be satisfied beyond reasonable doubt that Mr Heinz did not injure his right knee as claimed.
87. It is plain that none of the other facts on which the hypothesis rests are disproved beyond reasonable doubt, and nor do we understand this to have been suggested by the Commission.
88. Given these findings, s 120(1) requires us to determine that the osteoarthritis in Mr Heinz’s right knee was a war-caused disease.

D. CORONARY ARTERY DISEASE

89. Mr Heinz contends that he suffers from “coronary artery disease” and that it is a war-caused disease. The Commission contends that in this case “coronary artery disease” is not a disease within the meaning of the Act.

DOES MR HEINZ SUFFER FROM “CORONARY ARTERY DISEASE”?

90. Mr Heinz’s treating cardiologist believes that he has “mild” coronary artery disease, as does cardiologist Professor O’Rourke, who assessed Mr Heinz at the request of the Commission. While he agreed that Mr Heinz “had” coronary artery disease, in Professor O’Rourke’s opinion, he could not be said to “suffer” from the condition.
91. According to Professor O’Rouke, arterial narrowing of more than 70% is “haemodynamically significant” that is, likely to bring on symptoms with exercise. He pointed out that testing in 2005 revealed a narrowing of about 40% which he characterised as “insignificant”. In his opinion, this degree of narrowing is unremarkable in people of Mr Heinz’s age.
92. Mr Heinz is currently prescribed Plavix and Lipitor. Professor O’Rouke thought this was a sensible course of treatment and explained these drugs were used to prevent further narrowing of the arteries. According to Professor O’Rouke, if Mr Heinz was not taking that medication, the narrowing would advance more rapidly. He felt that narrowing of about 40% would generally warrant review of a person’s diet and exercise habits together with appropriate medication.
93. The distinction between Mr Heinz ”having” and “suffering from” the condition upon which the Commission relies, is, in our view, a distinction without a difference. It is apparent that Mr Heinz suffers from coronary artery disease. That he has a mild form might be relevant for other purposes, but not for the determination of this preliminary issue.

DOES CORONARY ARTERY DISEASE CONSTITUTE A “DISEASE”?

94. The Act defines “disease” to relevantly mean:
    • (a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);

...

95. The Commission contends that in Mr Heinz’s case, coronary artery disease does not constitute a disease within the meaning of the Act. This is because firstly, he suffers from only a mild form of the condition; secondly, the amount of narrowing is “normal” for a person of his age; and thirdly, there is no evidence of any resultant incapacity.
96. If the first argument advanced by the Commission is accepted, the definition of “disease” would need to be read as meaning “any physical or mental ailment, disorder, defect that is not mild and/or atypical of person in the applicant’s age group”. In our view there is no warrant for adopting such a restrictive approach. It is plain on its face that the definition is broad in scope and encompasses any physical ailment, disorder or defect. That the degree of narrowing is “mild or typical for people of a certain age in our opinion, is entirely irrelevant for the purpose of deciding whether the condition constitutes a “disease”.
97. It is trite to note that there is no universal measure of “incapacity”. In this jurisdiction the criteria for incapacity are set out in "Guide to the Assessment of Rates of Veterans' Pensions" (see s 29(1) of the Act). While there can be no argument that entitlement for pension rests on a finding of incapacity we do not agree with the argument put by the Commission that the Act requires that this issue be determined as a first step before applying ss 120 and 120A.
98. That Mr Heinz’s condition is a “defect” is made clear from the decision taken by his treating cardiologist that it was necessary to prescribe medication to stop it progressing. That it is rendered asymptomatic by the use of medication does not negate the fact that this degree of arterial narrowing is a defect.
99. We are satisfied that Mr Heinz’s condition constitutes a disease within the meaning of the Act.

HAS A REASONABLE HYPOTHESIS BEEN ADVANCED?

100. “Coronary artery disease” is not covered by a SoP; nor, according to both parties, has the Repatriation Medical Authority declared that it does not propose to make a SoP in respect of it. Section 120A(4) therefore applies. It provides that in applying s 120(1), we shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that coronary artery disease was a war-caused disease if, after consideration of the whole of the material before us, we of the opinion that the material does not raise a reasonable hypothesis connecting coronary artery disease with the circumstances of the operational service rendered by Mr Heinz.
101. Accordingly we must decide whether the material before us raises a reasonable hypothesis connecting Mr Heinz’s coronary artery disease with the circumstances of his operational service. The hypothesis advanced on his behalf is essentially the same as that advanced in respect of ischaemic heart disease, namely, that smoking is a risk factor, and that Mr Heinz’s smoking habit was in turn related to his operation service.
102. Professor O’Rourke was of the opinion that the risk factors set out in the Statement of Principles for ischemic heart disease, which include — where smoking has not ceased prior to clinical onset, smoking at least five cigarettes for at least one year prior to onset — apply equally to coronary artery disease.
103. There is material before us to support the propositions on which Mr Heinz’s hypothesis rests, namely — that smoking is a risk factor for coronary artery disease, that Mr Heinz continued to smoke after the clinical onset of coronary artery disease and smoked at least five cigarettes a day after the onset of that condition; that his smoking habit was related to the circumstances of his operational service. It follows that the advanced hypothesis is reasonable.

CAN WE BE SATISIFED BEYOND REASONABLE DOUBT THAT CORONARY ARTERY DISEASE WAS NOT WAR-CAUSED?

104. Given our findings recorded at [35]-[41] of these Reasons about Mr Heinz’s smoking history that we can be satisfied beyond reasonable doubt that there is no sufficient ground for determining that his coronary heart disease was related to operational service.

10 February 2010

I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr M E C Thorpe, Member.

Signed: ..............................[SGD]..........................................

Associate

Dates of Hearing: 26, 27 November 2009

Date of Decision: 10 February 2010

Solicitor for the Applicant: NSW Legal Aid

Counsel for the Applicant: Mr C Colborne

Solicitor for the Respondent: Department of Veterans Affairs Advocacy Section

Counsel for the Respondent: Mr G Purcell

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[1] Statements of Principle, Instrument No. 19 of 2003 (atrial fibrillation), cl 5(b).
[2] Statements of Principle, Instruments No. 89 of 2007 (ischaemic heart disease), cl 6(h)(i)
[3] See reports prepared by Dr Hackworthy, 20 October 1992 and 5 January 1993 and the evidence given by Professor O’Rourke in Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 27 November 2009) at P-124
[4] See, for example, report of Dr Hackworthy, 21 September 1992.
[5] Exhibit A8 – Statement of Ronald Heinz dated 24 April 2009.
[6] Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 26 November 2009) at P-30
[7] Ibid. at P-90
[8] Transcript of Proceedings, Re Ronald Trevor Heinz (Veterans Review Board, Senior Member Cahill and Burtt and Mr Farquhar, Member, 12 November 2007) at P-22
[9] Ibid. at P-22
[10] Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 26 November 2009) at P-90
[11] Transcript of Proceedings, Re Ronald Trevor Heinz (Veterans Review Board, Senior Member Cahill and Burtt and Mr Farquhar, Member, 12 November 2007) at P-22.
[12] Exhibit A1 - Transcript of Proceedings, Re Ronald Trevor Heinz (Veterans Review Board, Senior Member Cahill and Burtt and Mr Farquhar, Member, 12 November 2007) at P-20
[13] Ibid. at P-19
[14] Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 26 November 2009) at P-30
[15] Exhibit A8 – Statement of Ronald Heinz dated 24 April 2009.
[16] SoP, Instrument No 21 of 2003 (chronic sinusitis), cl 5(l))
[17] A medical record dated 1 May 1962 states that Mr Heinz fell and bruised his left knee. A record dated 9 June 1962, records an injury to Mr Heinz’s right knee during a Rugby match.
[18] T15 – Medical Statement of an Officer or Rating on Discharge or Demobilisation or Reversion to the Royal Navy.
[19] T15 – includes (i) “Out-Patient Record” dated 13 December 1962; (ii) “Out-Patient Record” dated 29 November 1962; (iii):”In-Patient Record” dated 6 November 1962; (iv) further “Inpatient Record” dated 6 November 1962; (v) “Report of Admission or Discharge of Patient to/from Hospital other than Royal Navy Hospital” dated 21 November 1962; and (vi) “Inpatient Record” dated 13 November 1962.
[20] Evidence of Dr Millons, Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 27 November 2009) at P-104.

“the treatment in the sixties for ligamentous injuries was often immobilisation in a plaster cylinder for a while to allow the ligaments time to heal. That may be for a period of six to eight weeks. Then, the plaster would come out and you would mobilise.”

[21] T15 – MRI Report of Dr M Wierna, 9 August 2006.
[22] Professor Sambrook thought that arthroscopic meniscectomies were not widely performed until the seventies. Dr Millons agreed but thought they did not become the “treatment of choice” until the “mid to late 1970’s”
[23] T77 – “In-Patient Record” dated 13 November 1962. Diagnosis is of “I.D.K. (L)”.
[24] Exhibit A5 – Report of Professor Sambrook, 1 September 2008.
[25] Exhibit A4 – “Medical Examination Record” dated 2 October 1963.
[26] Exhibit A4 – “Medical Statement of an Officer or rating on Discharge or Demobilisation or Reversion to the Royal navy” dated 2 October 1963
[27] Exhibit A2 – Mr Heinz’s record of service card.
[28] Transcript of Proceedings, Re Heinz and Repatriation Commission (AAT, Senior Member Britton and Dr Thorpe, Member, 26 November 2009) at,P-93 to P-94.
[29] Exhibit A7 – Statement of Ronald Heinz re: lumbar spondylosis, 24 April 2009.