Advisory from Compensation Policy Group
No. 1/2008
This is an advisory note only. Compensation Policy Group and Legal Services have agreed with this approach. It is not a Repatriation Commission Guideline or a Departmental Instruction. The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts. It may be subject to change as a result of further interpretation by the Courts of the legislation. Nevertheless it represents a considered view that should be taken into account by all delegates.
CESSATION OF SMOKING AND INFLAMMATORY BOWEL DISEASE
The purpose of this Advisory Note is to assist decision-makers in determining the relationship between inflammatory bowel disease and death from inflammatory bowel disease and service.
Relevant Statements of Principles
The SoPs containing the relevant cessation of smoking factor are instruments 21 and 22 of 2001, concerning inflammatory bowel disease.
Cessation of Smoking Factor
The following factors in the SoPs relate to cessation of smoking:
(a) for ulcerative colitis only, in a person with a history of a regular smoking habit,
(i) ceasing to smoke within the 10 years immediately before, and
(ii) continuing not to smoke for the three months immediately before,
the clinical onset of inflammatory bowel disease; or
(b) for Crohn's disease only,
(i) smoking at least one half pack year of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of inflammatory bowel disease, and where smoking has ceased, the clinical onset has occurred within four years of cessation; or
(ii)...
(iii) smoking at least one half pack year of cigarettes or the equivalent thereof in other tobacco products before the clinical worsening of inflammatory bowel disease, and where smoking has ceased, the clinical worsening has occurred within four years of cessation.
Previous Advice
An April 2001 minute to the Repatriation Commission from the Acting Branch Head of Disability Compensation has, until now, been the source of advice on relating inflammatory bowel disease to service where the cessation of smoking factors come into play. This minute stated that:
"the only way that the "ceasing to smoke factor" can be related to service is if the cessation is due to the presence of another service related disease, eg lung cancer. That means that if a medical professional advises, or on his or her own cognisance, the veteran ceases to smoke because of the presence of another service related condition then the cessation could be said to be service related."
The Minute continues:
"Cessation of smoking can still be a factor that can be related to service even if the smoking itself is not service related. As long as at least one condition that is service related is the subject of the intention or advice to stop smoking then the cessation is service related."
Please note that this advice has been re-examined and is no longer the preferred approach.
A decision taken by the VRB on 22 September 2006 in the matter of Tasker raised questions concerning the above advice.
In this case, the Board set aside the original decision of the Commission that the veteran's ulcerative colitis was not war-caused and remitted the matter to the Commission.
The Board stated in its determination that the contention before it was "that the veteran's ulcerative colitis was directly related to the veteran's smoking habit which increased during operational service."
In finding that the condition was war-caused, having first accepted the diagnosis of ulcerative colitis and the purported date of clinical onset, the Board stated that the criteria in factor 5(a) of the SoP was met because the veteran had both ceased smoking and continued not to smoke during the required time periods before clinical onset. Significantly, the Board found on the facts that the veteran's smoking habit was war-caused and noted that he had cited "health reasons" as the catalyst for ceasing to smoke.
New Advice
Compensation Policy Group and Legal Services Group have examined the approach to cessation of smoking taken by the VRB in Tasker, in comparison with the advice given in the 2001 minute. The conclusion reached is that the decision in Tasker was a correct application of the SoP.
Decision-makers should therefore disregard the 2001 minute. In determining the relationship of inflammatory bowel disease to service where the cessation of smoking factors come into play, it is not necessary that cessation occurred as a result of another service related condition. Provided the necessary criteria of factor 5 are satisfied, including that cessation of smoking occurred and was maintained during the stated timeframes, the SoP will be met.
Sean Farrelly
National Manager
Compensation Policy Group
January 2008