Payne and Repatriation Commission [2011] AATA 86 (11 February 2011)

Last Updated: 14 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 86

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/0429

VETERANS' APPEALS DIVISION		)
	Re		LESTER JOHN PAYNE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 11 February 2011

Place Perth

Decision

The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant rendered defence service in Royal Australian Navy (RAN) from 1979 to 2006 – applicant not obese at commencement of defence service – applicant obese from 1992 to 2009 – applicant contracted type 2 diabetes mellitus (diabetes) in 2009 – applicant claimed obesity related to defence service – applicant claimed diabetes defence-caused – applicant’s obesity not related to defence service – applicant’s diabetes not defence-caused – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)

Statement of Principles concerning Diabetes Mellitus (Instrument No 12 of 2004)

REASONS FOR DECISION

11 February 2011

Deputy President S D Hotop

INTRODUCTION

1. Lester John Payne (“the applicant”), who was born in November 1961, served in the Royal Australian Navy (“RAN”) from 25 June 1979 to 30 January 2006.
2. During his RAN service the applicant rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 14 June 2001 to 30 July 2001 and from 28 July 2003 to 6 November 2003, and “defence service”, for the purposes of Part IV of the VE Act, for the remainder of his RAN service. He is currently in receipt of a disability pension under the VE Act.
3. On 18 August 2009 the applicant lodged with the Department of Veterans’ Affairs an application for an increase in the rate of his disability pension on the basis that he was suffering from “diabetes mellitus (type 2)” and that condition was either war-caused or defence-caused. In the application form Dr B J Price noted that the relevant medical diagnosis was “type 2 diabetes” and that the applicant had first consulted him for that condition on 31 July 2009.
4. On 7 September 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the applicant’s diabetes mellitus is not related to his RAN service.
5. On 17 December 2009 the Veterans’ Review Board (“VRB”) affirmed the respondent’s decision.
6. On 1 February 2010 the applicant applied to the Tribunal for review of the decision of the respondent as affirmed by the VRB.

THE ISSUE AND THE TRIBUNAL’S DETERMINATION

7. It is common ground that the issue for the Tribunal’s determination is whether the applicant’s diabetes mellitus is a defence-caused injury or a defence-caused disease for the purposes of Part IV of the VE Act.
8. For the reasons which follow, the Tribunal has determined that the applicant’s diabetes mellitus is not a defence-caused injury or a defence-caused disease for the purposes of Part IV of the VE Act.

THE EVIDENCE

9. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T11, pp 1–116) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • bundle of documents tendered by the applicant (Exhibit A1);
   • report of Mr William Hall, dated 9 September 2010, tendered by the respondent (Exhibit R1); and
   • the oral evidence of the applicant.

THE RELEVANT LEGISLATION

The VE Act

10. Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:

“ ...
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
...”

The terms “disease” and “injury” are defined in s 5D(1) as follows:

“ disease means
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”

11. Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:

“ ...
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
...”

Section 120B relevantly provides:

“ ...
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
...”

12. Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act ...”. Section 196B(3) provides:

“ (3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a) eligible war service (other than operational service) rendered by veterans; or
(b) defence service (other than hazardous service) rendered by members of the Forces; or
(ba) peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
...
Note 3: For factor related to service see subsection (14).”

Section 196B(14) relevantly provides:

“ (14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
...
(b) it arose out of, or was attributable to, that service; or
...
(d) it was contributed to in a material degree by, or was aggravated by, that service; or
...
(f) in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service; or
...”

The Statement of Principles

13. Pursuant to s 196B(3) of the VE Act, the Authority has determined a Statement of Principles (“SoP”) concerning Diabetes Mellitus. The relevant SoP which is, and has at all material times been, in force is Instrument No 12 of 2004 (“the SoP”). The SoP relevantly states:

“ ...
Basis for determining the factors

3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that diabetes mellitus and death from diabetes mellitus can be related to relevant service rendered by veterans or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factor that must exist before it can be said that, on the balance of probabilities, diabetes mellitus or death from diabetes mellitus is connected with the circumstances of a person’s relevant service is:

...
(b) in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus; or
...
Other definitions

8. For the purposes of this Statement of Principles:

...
‘being obese’ means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H² and where:
W is the person’s weight in kilograms and
H is the person’s height in metres;
...
‘relevant service’ means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
...
‘type 2 diabetes mellitus’ means non-insulin dependent diabetes mellitus.
...”

RELEVANT BACKGROUND INFORMATION

14. The following relevant background information appears from the T Documents:
    • at the applicant’s enlistment medical examination on 12 June 1979, his height was recorded as 177 centimetres and his weight was recorded as 69 kilograms (T3, p 4);
    • at a re-engagement medical examination on 9 April 1984, his height was recorded as 180 centimetres and his weight was recorded as 86.8 kilograms (T3, p 10);
    • at a sea posting medical examination on 2 November 1987, his weight was recorded as 87 kilograms (T3, p 13);
    • he was subsequently referred to a “weight surveillance programme” which he completed and it was noted that he was “now under WSP 2” (T3, p 15);
    • at a re-engagement medical examination on 16 March 1992, his weight was recorded as 100 kilograms and it was noted that his “BMI” was 30.8 and that he was “WS 2” (T3, pp 34–35);
    • at a seagoing medical examination on 7 February 1996, his weight was recorded as 103 kilograms and it was noted that his “BMI” was 31.79 and that he was “WS II” (T4, p 76);
    • at a medical examination on 1 August 1996 for fitness to serve as a Flight Deck Marshal, his weight was recorded as 106.5 kilograms, and it was noted that his “BMI” was 32.87 and that he was “WS 3”, and that he was “Fit for Flight Deck Marshal” (T3, p 49);
    • on the 1 August 1996 medical examination record it was also noted that there was a provisional diagnosis of “obesity” and that he had been “advised to lose weight” but that it was not intended to take any action regarding his obesity (T3, pp 47, 49);
    • at a medical examination on 3 December 1997, his weight was recorded as 102 kilograms and it was noted that he had been “advised to lose weight” (T3, p 51);
    • a report of Dr Geoff Tyler, dated 19 January 2000, noted (amongst other things) that the applicant’s weight was 107 kilograms and that “urinalysis was clear” (T3, p 53);
    • on 12 May 2000 his weight was recorded as 110 kilograms and it was noted that his “BMI” was 33.4 and that he was “WS III” (T4, pp 75, 79);
    • on 31 January 2002 it was recorded that his weight was 112 kilograms and his “BMI” was 33.6 (T4, pp 75, 80);
    • on 16 July 2004 it was recorded that his weight was 109 kilograms and his “BMI” was 33.6 (T4, pp 75, 81);
    • on his discharge from the RAN on 30 January 2006 his weight was 115 kilograms and his “BMI” was 35.3 (T4, p 75);
    • on 30 July 2009 he presented to the Emergency Department at Rockingham-Kwinana Hospital and provisional diagnoses of “chest pain” and “type II diabetes mellitus” were made (T4, pp 82 – 83);
    • on 4 August 2009 a blood sugar test report stated that he had a glycosylated haemoglobin level of 9.6% (T4, p 84).

REPORT OF MR WILLIAM HALL

15. A report of Mr Hall, Consultant General Surgeon, dated 9 September 2010, in respect of his examination of the applicant on 27 August 2010, concludes with the following summary and assessment:

“ I note Mr Payne to have type 2 diabetes mellitus. It is apparent that he has been overweight since the mid 1990s and although this has been noted in his military notes with suggestion to lose weight, he does not seem to have achieved this particularly, until the diagnosis of diabetes mellitus in 2009, after which time he has apparently made a concerted effort to lose weight and increase his exercise activities.
His family history of a brother with diabetes and another one being significantly overweight is noted, but they are both currently overweight to a significant extent. When asking (sic) about his children, he stated that he has three in their teens, but noticing the file records there appears to be a child with type 1 diabetes (which he did not report to me at the time of assessment).
There must be some mild or limited degree of a genetic background in him developing the diabetes.
It is my opinion that his being significantly overweight for a large number of years, certainly since the mid 1990s, has contributed to him developing type 2 diabetes mellitus.
It is therefore my opinion that Mr Payne’s diabetes mellitus of the type 2 variety has developed progressively although apparently sub clinically over some 10+ years and certainly since the mid 1990s since when he has had a BMI greater than 30 kg/m².
There may be a range in the duration and severity of the obesity to tip individuals into type 2 diabetes and I note that he has been allowed to remain significantly overweight for some 10 years until the final diagnosis of diabetes was made in 2009 but on the balance of probability this was sufficient to create the disease in him.
...
I therefore find it probable that he did become diabetic as a consequence of his obesity which was present throughout some 10 years of his Royal Australian Navy service.
...” (Exhibit R1)

THE APPLICANT’S CASE

16. The applicant’s case is fully set out in a bundle of documents tendered by him (Exhibit A1). His case is sufficiently summarised in the following extracts from those documents:

“ Claimed Case
Mr Payne suffers from Diabetes Mellitus. Mr Payne maintains that he developed diabetes as a consequence of his Navy service. His case is that he became clinically obese in 1992 and despite regular medical examinations and reviews, remained obese for the next 12 – 14 years, until his elective discharge in January 2006.
His claim is not that his obesity was service-caused, rather that the Navy has failed in its duty-of-care, by failing to take the appropriate medical/administrative actions by:

• Informing Mr Payne that he was indeed ‘obese’,
• Informing Mr Payne of the medical ramifications of being obese,
• Informing Mr Payne of the medical ramifications of prolonged obesity,
• Initiating the appropriate Medical Administrative action, as clearly defined in RAN Standard Operating Procedures (SOPs), such as ‘weight management’ or referral to a dietician, that would have assisted Mr Payne in addressing his obesity,
• Initiating Administrative action such as promotion restriction, threat of discharge etc...., that would have necessitated Mr Payne to make the appropriate effort to reduce his weight, and
• Continually classifying Mr Payne as ‘fit for duty’ for promotion/posting action, despite his obvious obesity.

By failing to take the appropriate medical/administrative action (despite such actions being clearly and concisely outlined in RAN SOPs) the RAN has, by its inaction, legitimised Mr Payne’s obesity. The result of this inaction has also led to Mr Payne’s continual belief that his weight was ‘not an issue’ and results in a situation similar to the precedence (sic) detailed within Repatriation Commission v Tuite, in that:
‘ life in camp was a contributing cause and not merely the setting in which the event occurred’.
It should be noted that the RAN’s inaction was not merely an oversight on one or two occasions, but extended over 12 – 14 years of service, and included approximately 20 independent medical examinations, all of which resulted in Mr Payne being classified as ‘fit’ for service.
Obesity – Medical Facts

• Mr Payne joined the Royal Australian Navy (RAN) in July 1979, with his recorded weight being 68 kg.
• Mr Payne recorded a Body Mass Index (BMI) of less than 30 from June 1979 until March 1992.
• Mr Payne was recorded with a BMI exceeding 30 in March 1992.
• Mr Payne continued to record a BMI exceeding 30 from early 1994 until his elective discharge in January 2006.
• A BMI exceeding 30 classifies the individual as ‘being obese’ ...
• Despite regular medical assessments, and despite his continued obesity, Mr Payne was classified as ‘Medically Fit’ on every routine posting/promotion medical examination pre/post March 1992.
• Mr Payne, despite his continued obesity was promoted to the highest Non-Commissioned rank (Warrant Officer) and posted to Major Fleet Units (MFUs) and Operational Deployments in the Solomon Islands and Middle East.
• Although verbally advised to ‘lose weight’ on two occasions during his career, Mr Payne was subsequently ‘passed fit’ on both such occasions.
• Mr Payne was never formally advised that he ‘was obese’, nor was he advised of the potential dangers of prolonged obesity.
• The RAN, despite being aware of Mr Payne’s prolonged obesity never initiated any medical remediation action such as ‘Weight Management’ routines, referral to a dietician etc...
• The RAN failed to initiate any administrative or medical action to address Mr Payne’s prolonged obesity.
• Navy medical documents provide proof of Mr Payne’s BMI readings pre/post 1992.
• There are medically recognised connections between obesity and the development of Diabetes Mellitus.

...
Was diabetes defence caused?
In considering whether an injury or disease arose out of or was attributable to defence service, the causal connection need not be more than a contributing cause, however, the relationship between service and injury must be more than temporal. As the Full Federal Court observed in Repatriation Commission v Tuite:
‘ ...if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred...’
The standard of proof to be applied by the Tribunal is one of reasonable satisfaction, provided for in s 120(4) of the Veterans’ Entitlements Act 1986. Turning then to factor 5(b) of the Statement of Principles, it requires that the evidence on the balance of probabilities shows:
‘ in relation to type 2 diabetes mellitus, being obese for a period of at least 10 years before the clinical onset of diabetes mellitus.’
The evidence, allowing for the fact that Mr Payne was obese in March 1992 and again from early 1994 through to his discharge in January 2006, points to the requirement of the 10 year period being met.
Having satisfied the relevant factor of the SoP, Mr Payne must also satisfy para 4 of the SoP, in that;
‘ the factor must be related to any relevant service rendered by the person’.
In this area, Mr Payne need not necessarily show that his obesity was caused by his service (the causal connection is between his disease (Diabetes Mellitus) and his service), but that the factor (his obesity) be related to his service. Mr Payne submits that:

• he was regularly weighed, recorded and monitored by RAN Medical Departments from March 1992 until his discharge in January 2006,
• his BMI exceeded 30 in March 1992 and again in early 1994 until discharge,
• he was obese in March 1992 and again in early 1994 until discharge (approx 12 years),
• he ‘passed’ every medical examination to satisfy posting (including Operational Postings) and promotion requirements during his career (including those conducted post March 1992),
• he attempted and ‘passed’ all mandatory physical testing (PT) during his career, and achieved mandatory ‘Individual Readiness’ obligations post 1999 (Individual Readiness testing/compliance was introduced in 1999),
• he was never informed that he was obese, nor had he any idea that he was such,
• he was never advised of the dangers associated with obesity or prolonged obesity,
• although verbally advised on just two occasions (August 1996 (Folio 49) and December 1997 (Folio 51)) to ‘lose weight’, he was subsequently ‘passed fit’ on both such occasions,
• he was never subject to any medical action (weight surveillance, referral to dietician etc...) as a result of his obesity,
• he was never subject to administrative action (promotion restriction, threat of discharge etc...) as a result of his obesity, and
• although being fully aware of his continued obesity, the RAN failed in their ‘duty of care’ by failing to take any appropriate action to address his obesity and to negate the possibility of future diabetes.

...
Post Diagnosis
Since being diagnosed with diabetes, Mr Payne has reduced his weight by approximately 18 kg. He self-manages his diet and has significantly reduced his alcohol intake. He has purchased gym membership and attends his local gym on 2 -3 occasions per week. He has his diabetes checked regularly by his local practitioner, who has confirmed his disease is well managed by lifestyle and medication.
Summation
Mr Payne believes there has been a fundamental failure by the RAN to inform and educate him in the dangers of obesity and prolonged obesity, and to take the necessary action in identifying, then assisting him, in reducing his weight to non-obese levels.
The continual action of passing Mr Payne ‘fit’ for promotion and posting action, despite his obvious obesity, inadvertently led to Mr Payne believing, subconsciously, that there were no major problems with his weight. The inaction by the RAN also indicates that the Navy continually accepted Mr Payne’s obesity as a service related condition and endorsed such acceptance by promotion and operational postings.
As can be seen from Mr Payne’s post-diagnosis remedial action, the disease of Diabetes Mellitus may well have been avoided had the Navy taken the appropriate medical/administrative action required.” (original emphasis)

17. The applicant gave oral evidence but, because that evidence does not significantly add to the contents of the abovementioned written statement of his case, it is unnecessary to refer to it in these reasons.

ANALYSIS

18. It is common ground that the applicant suffers from type 2 diabetes mellitus, and the Tribunal so finds.
19. The applicant’s type 2 diabetes mellitus is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
20. On the basis of the evidence before it, the Tribunal is reasonably satisfied, and finds, that the clinical onset of the applicant’s type 2 diabetes mellitus occurred in 2009.
21. Pursuant to s 120(4) and s 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s type 2 diabetes mellitus is defence-caused only if the SoP “upholds the contention that the ... disease ... is, on the balance of probabilities, connected with” his defence service.
22. Pursuant to clause 5(b) of the SoP, a factor that must exist before it can be said that, on the balance of probabilities, the applicant’s type 2 diabetes mellitus is connected with the circumstances of his defence service is

“ ... being obese for a period of at least 10 years before the clinical onset of diabetes mellitus”.

The Tribunal finds, on the basis of the evidence before it, that the applicant had a “Body Mass Index” (“BMI”) of over 30 for the whole of the period from 1992 to 2009 (when the clinical onset of his type 2 diabetes mellitus occurred) and, accordingly, that he was “obese” (as defined in clause 8 of the SoP) for the whole of that period. The factor referred to in para (b) of clause 5 of the SoP therefore exists in the applicant’s case.

23. The critical question, however, is whether that factor is “related to” the applicant’s defence service, as required by clause 4 of the SoP.
24. Section 196B(14) of the VE Act sets out (in paras (a)–(g) various alternative circumstances in which a “factor causing, or contributing to, [a] ... disease ... is related to service”, for the purposes of SoPs determined under that section. In the present case, paras (a), (c), (e) and (g) of s 196B(14) are clearly inapplicable. As regards paras (b), (d) and (f) of s 196B(14), the question is whether the relevant “factor”, namely, the applicant’s “being obese for a period of at least 10 years before the clinical onset of diabetes mellitus” in 2009:
    • “arose out of, or was attributable to,” his defence service (para (b)); or
    • “was contributed to in a material degree by, or was aggravated by,” his defence service (para (d)); or
    • “would not have occurred ... but for the rendering of” his defence service “or ... but for changes in [his] environment consequent upon his ... having rendered that service (para (f))”.
25. The applicant has set out, in the abovementioned written statement of his case, the ways in which he claims that the relevant “factor” in his case, namely, his “being obese for a period of at least 10 years before the clinical onset of diabetes mellitus”, is “related to” his defence service. The applicant, however, acknowledges, in his written statement, that his claim is not that his being obese was caused by his defence service, but rather that the RAN “failed in its duty of care” by:
    • failing to inform him that he was obese and failing to advise him of the “medical ramifications of prolonged obesity”; and
    • failing to take any medical or administrative action in respect of his obesity but, instead, continually classifying him as medically fit for duty in respect of postings and promotions;

and he submits that his obesity was thereby “related to” his defence service.

26. The Tribunal does not accept the applicant’s submission. That submission fails to take account of s 196B(14) of the VE Act which defines the phrase “related to service” for the purposes of SoPs determined under that section. Each of the circumstances set out in paras (a)–(g) of s 196B(14) of the VE Act involves a causal connection between the relevant “factor” and the relevant “service”. In the Tribunal’s opinion, none of the respects in which the applicant submits that his “being obese for a period of at least 10 years before the clinical onset of diabetes mellitus” is related to his defence service involves any causal connection of the kinds contemplated by any of the relevant paragraphs of s 196B(14) of the VE Act. More specifically, the Tribunal is not reasonably satisfied that the applicant’s “being obese for a period of at least 10 years before the clinical onset of diabetes mellitus” (the “factor” set out in clause 5(b) of the SoP):
    • arose out of, or was attributable to, his defence service (s 196B(14)(b)); or
    • was contributed to in a material degree, or was aggravated by, his defence service (s 196B(14)(d)); or
    • would not have occurred but for his rendering defence service or but for changes in his environment consequent upon his having rendered that service (s 196B(14)(f)).

Accordingly, the Tribunal finds that that “factor” is not “related to service”, as defined in s 196B(14) of the VE Act, in respect of the applicant’s defence service.

27. It is common ground that none of the other factors set out in clause 5 of the SoP exists, or is applicable, in the applicant’s case.
28. The Tribunal concludes, therefore, that clause 4 of the SoP – which requires that “at least one of the factors set out in clause 5” be “related to any relevant service” – is not satisfied in the applicant’s case.
29. It follows that the SoP does not uphold the contention that the applicant’s type 2 diabetes mellitus is, on the balance of probabilities, connected with his defence service. That being the case, pursuant to s 120B(3) of the VE Act the Tribunal cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s type 2 diabetes mellitus is a defence-caused disease.
30. Before parting with this matter it is appropriate for the Tribunal to comment on the applicant’s claim that the RAN “failed in its duty of care”, as summarised in paragraph 25 above. In the Tribunal’s opinion the applicant’s claim has no substance. The Tribunal notes that it is common ground that the applicant was advised to lose weight following a service medical examination on 1 August 1996 and again following a service medical examination on 3 December 1997, but that, far from losing weight, he continued to gain weight thereafter. Although the applicant submitted that he was never “ordered” or “directed” to lose weight, the Tribunal accepts the respondent’s submission that, having been advised by a RAN medical officer to lose weight, it was the applicant’s own responsibility to reduce his weight and that the RAN should not be held responsible if he failed to heed and to act upon that advice.
31. As regards the applicant’s claim that he was continually classified by RAN medical officers as fit for duty in respect of postings and promotions, notwithstanding his obesity, the Tribunal accepts the respondent’s submission that it was the RAN’s responsibility to ensure that the applicant was fit for his service duties and the regular service medical examinations which he underwent were conducted solely for that purpose. Following each of those examinations it was found that, notwithstanding his obesity, he continued to be fit for service. The Tribunal notes, furthermore, that there is no medical evidence before it which indicates that the applicant’s obesity rendered him unfit for service.

DECISION

32. For the above reasons, the Tribunal affirms the decision under review.
    

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

Signed: ...............[sgd D Brodie]........................

Associate

Date of Hearing 17 January 2011

Date of Decision 11 February 2011

Representative of the Applicant Mr T Robbins

Representative of the Respondent Mr C Ponnuthurai

Compensation and Review Branch Department of Veterans' Affairs