Barnard and Repatriation Commission - [2001] AATA 302

DECISION AND REASONS FOR DECISION [2001] AATA 302

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1163

VETERANS' APPEALS DIVISION       )
           Re      GEOFFREY BARNARD
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date12 April 2001
PlaceSydney

Decision 1. The decision under review is set aside and the Tribunal decides that the Applicant's condition of hypertension is an accepted condition with effect from the first pension payday on or after 10 October 1997. 2. The Tribunal remits the matter to the Respondent for the Respondent to reassess the rate of pension payable to the Applicant as a result of this decision.

[Sgd] Mr M J Sassella
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – war-caused conditions – hypertension – renal artery stenosis – whether cigarette smoking related to relevant service – whether the renal artery disease predates the hypertension – date of onset of the condition in dispute – whether the renal artery disease itself becomes an accepted disability – Tribunal's jurisdiction - requirement to satisfy Statement of Principles gazetted after primary decision but before Tribunal decision
Veterans' Entitlement Act 1986 – ss 31, 120, 120A, 120B
Ogston v Repatriation Commission (1999) 56 ALD 789
Owen v Repatriation Commission (1995) 38 ALD 241
Re Neville and Repatriation Commission [1999] AATA 801

REASONS FOR DECISION

12 April 2001 Mr M J Sassella, Senior Member

This is an application by Geoffrey Barnard ("the Applicant") for a review of a decision of the Veterans' Review Board ("VRB") dated 13 July 1999 (T25), which affirmed a decision of the Repatriation Commission ("the Respondent") dated 30 December 1996. In the latter decision it was found that the Applicant's hypertension is not a war-caused condition, the conditions of atherosclerotic peripheral vascular disease and cerebrovascular accident are war-caused, and therefore that the Applicant is entitled to a pension at 100 per cent of the General Rate.
At the hearing
At the hearing the Applicant was represented by Mr Priestly, of counsel and the Respondent was represented by Mr Wallis.
The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were submitted as evidence ("the T Documents") in addition to the following material:
Exhibit No    Description Date
A1      Applicant's Amended Statement of Facts and Contentions     2 March 2000
A2      Report by Dr Mackie           6 December 1999
A3      Report by Dr Mackie           22 May 2000
R1      Respondent's Statement of Facts and Contentions     3 May 2000
R2      Report by Dr Richards       2 November 1999

History of application

The Applicant has had the disability of atherosclerosis accepted as a war-caused disability since 1990. On 28 November 1998 he lodged a claim (T6) seeking to have the conditions of hypertension, peripheral vascular disease and carotid artery disease accepted as war-caused for the purposes of disability pension. The latter two conditions were taken by the Respondent to be atherosclerotic peripheral vascular disease ("APVD") and cerebrovascular accident, respectively.
On 30 December 1996 the Respondent accepted the claim as regards APVD and cerebrovascular accident (T11). Hypertension was rejected as war-caused. The Respondent assessed the impairment rating as 35 points and lifestyle rating as 3 points. The decision took effect as of 28 August 1996. Pension was continued at 100% of general rate, no earnings related pension being held payable. It should be noted that the ratings accorded justify a pension paid at 60% of general rate but because the Applicant was already receiving 100% this was confirmed.
On 7 April 1997 the Applicant lodged with the VRB an application for review (T12). The Department of Veterans Affairs conducted a review under s 31 of the Veterans' Entitlements Act 1986 (the Act) and confirmed the primary decision. The problem with acceptance of hypertension as war-caused is that it is not caused by smoking, nor by atherosclerosis.
The VRB looked at the application twice. On 29 October 1998 the VRB adjourned because a condition of renal artery stenosis ("RAS") had come to the fore (T16). Professor P Thursby had argued that the Applicant's renal artery duplex study demonstrated a haemodynamically significant renal artery stenosis at the origin of the artery and small left kidney. There was also a stenosis at the origin of the right renal artery which was not haemodynamically significant. This study was said to support the contention that the Applicant's hypertension is a direct result of atheromatous disease of the renal arteries. If RAS existed before the onset of hypertension that would satisfy factor 5(d) of the Statement of Principles ("SoP") on hypertension. The VRB adjourned because there was no evidence of the date of onset of RAS.
The VRB resumed its consideration on 13 July 1999 (T25). The VRB affirmed the primary decision. It seemed that the onset of hypertension was 1996 and at that predated the development of RAS. Notice of the VRB decision was sent to the Applicant on 27 July 1999.
On 28 July 1999 the Applicant lodged an application for review with the Tribunal (T1).
Relevant legislation, including Statements of Principles
The relevant legislation in this matter is the Veterans' Entitlements Act 1986, in particular sections 7(1)(c), 9(1)(b), 13(1)(b) and (d), 14(1) and (3), 15(1) and (3), 17(1), 18(1), 120(4), and 120B(1), (2), (3) and (4):
"7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
…
(c) a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and…
…
9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
13 Eligibility for pension
(1) Where:
…
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…
14 Claim for pension
(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
Note 1: some dependants do not have to make a claim (see section 13A).
Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19(3)).
…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
…
15 Application for increase in pension
(1) A veteran who is in receipt of a pension under this Part in respect of the incapacity of the veteran may apply, in accordance with subsection (3) of this section, for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed.
…
(3) An application under subsection (1) or (2):
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the applicant as the applicant considers may be relevant to the application; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the application and any evidence referred to in paragraph (b).
…
17 Investigation by the Secretary
(1) Where a claim is made for a pension under subsection 14(1), or an application is made for an increased pension under subsection 15(1) or for a pension under subsection 15(2), the Secretary shall cause an investigation to be made into the matters to which the claim or application relates.
…
18 Duties of Commission in relation to pensions
(1) It is the duty of the Commission in considering a claim or application submitted to it, to satisfy itself with respect to, or to determine, as the case requires, all matters relevant to the determination of the claim or application.
…
120 Standard of proof
…
(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.
…
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(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.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
The relevant Statements of Principles in this matter are SoP 84 of 1995, SoP 40 of 1998 and SoP 51 of 1998:
Instrument No. 84 of 1995 concerning hypertension provides:
"1.       Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that hypertension and death from hypertension can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that , on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of that service, are:
…
(c) suffering from renal artery stenosis before the accurate determination of hypertension; or
2.        …at least one of those factors set out in paragraphs 1(a) to 1(w) must be related to any service rendered by a person.
…
4.        For the purpose of this Statement of Principles:
"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions. As stated in 'The Management of Hypertension: a consensus statement'.
The Medical Journal of Australia Vol 160 Supplement, 21 March 1994, to obtain an accurate measurement of blood pressure, the conditions should be standardised as much as possible before readings ensuring the following:

A mercury sphygmomanometer should be used in the diagnosis of hypertension;
Patients should be relaxed and seated. Additional information may be provided by supine and standing readings. This is particularly important in the elderly and diabetics, as both groups are prone to postural hypertension;
The bare arms should be supported and positioned at heart level;
A cuff of suitable size should be applied evenly to the exposed upper arm, with the bladder of the cuff positioned over the brachial artery. The bladder length should be at least 80%, and the width at least 40%, of the circumference of the upper arm;
The cuff should be snuggly wrapped around the upper arm and inflated to 30 mmHg above the pressure at which the radial pulse disappears;
In older patients, if the radial artery remains palpable when the cuff pressure exceeds the expected systolic pressure, the cuff reading may be inappropriately high (pseudo-hypertension);
The cuff should be deflated at a rate no greater than 2 mmHg/beat (2 mmHg/sec);
If initial readings are high, several further readings should be taken after five minutes of quiet rest;
On each occasion two or more readings should be averaged. If the first two readings differ by more than 4 mmHg systolic or 4 mmHg diastolic, further readings should be taken. For the diastolic reading, the disappearance of sound (phase V Korotkoff) should be used. Muffling of sound (phase IV Korotkoff) should only be used if sound continues towards zero.
At the same time heart rate and rhythm should be measured and recorded. When the cardiac rhythm is irregular, eg. atrial fibrillation, the systolic pressure should be recorded as an average of a series of phase 1 readings, and diastolic pressures should be recorded as an average of phases IV and V.
For adequate standardisation, caffeine ingestion and smoking should be avoided for two hours before blood pressure measurement;
…
"hypertension" means:
(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
(b) where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405;
…
"renal artery stenosis" means a narrowing or stricture of the main renal artery and/ or its major branches, attracting ICD code 440.1;…"

Instrument No. 40 of 1998 concerning renal artery atherosclerotic disease provides:

"Kind of injury, disease or death
2.        (a)This Statement of Principles is about renal artery atherosclerotic disease and death from renal artery atherosclerotic disease.
          (b) For the purposes of this Statement of Principles, "renal artery atherosclerotic disease", means atherosclerosis of the renal arteries, causing a partial occlusion of at least 50%, or a complete occlusion of a renal artery, and together with one of the following clinical manifestations, namely poorly controlled hypertension, or renal impairment, or acute pulmonary oedema, attracting ICD-9-CM code 440.1.
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 renal artery atherosclerotic disease and death from renal artery atherosclerotic disease 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 factors that must exist before it can be said that, on the balance of probabilities, renal artery atherosclerotic disease or death from renal artery atherosclerotic disease is connected with the circumstances of a person's relevant service are:
          (a) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of renal artery atherosclerotic disease; or…
…
Other definitions
8.        For the purposes of this Statement of Principles:
          …
"pack years of cigarettes or the equivalent thereof, in other tobacco products" means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes (being the "standard" cigarette pack contents) per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…"

Instrument 51 of 1998 concerning renal artery atherosclerotic disease provides:

"1. The Repatriation Medical Authority amends, under subsection 196B(3) of the Veterans' Entitlements Act 1986 (the Act), Instrument No. 40 of 1998 (Statement of Principles concerning renal artery atherosclerotic disease), by:
A. omitting the definition of "relevant service" in paragraph 8, and replacing it with the following definition of "relevant service":
"'relevant service' means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);'.

2. The amendments made by this instrument apply to all matters to which Instruments No. 40 of 1998 and section 120B of the Act apply."

Basic facts

The Applicant was born on 2 May 1926. He joined the Royal Australian Air Force ("RAAF") on 17 May 1944 and was discharged on 22 October 1946 (T3). He had no overseas nor any other operational service. The service records in the T Documents suggest no abiding health problems. There is nothing known of the Applicant's post-RAAF employment except that he gave up work at some point because of age (T6, folio 26).
Medical evidence
The crucial evidence is that as to the date of onset of each of hypertension and RAS. Dr N C Patel, a cardiologist, on 14 October 1988 wrote of the Applicant's recent transitory ischaemic attacks (T4). He noted that the Applicant had been a heavy smoker. Mention was made of "a background of hypertension which has been well controlled with Ranitec [sic]."
Dr G A Hayward in T5 noted on 9 May 1991 that The Applicant had been hypertensive for some years with blood pressure at 160/100 in 1986.
Dr B G Marshall, a general practitioner, placed the onset of hypertension as 1990 (T6, 231 October 1996). In T8 on 9 December 1996 Dr Marshall provides some blood pressure readings: 130/70 (11 January 1996), 160/96 (28 March 1996), 130/80 (26 May 1996), 140/84 (18 July 1996), 150/74 (15 August 1996) and 136/80 (20 November 1996).

On 4 September 1997 Dr Marshall wrote (T14):
"Mr Geoffrey Barnard has hypertension due to renal artery stenosis (proven). The renal artery stenosis is due atheromatous disease and atherosclerosis."
Professor Thursby wrote on 27 August 1997 saying that the results of the Applicant's renal artery duplex study demonstrate a haemodynamically significant RAS at the origin of that artery and a small left kidney with an abnormal hilar wave form pattern consistent with severe proximal RAS as well (T15). There was also stenosis at the origin of the right renal artery but that was not haemodynamically significant and the right kidney was of normal size. That study "supports the contention that his hypertension is a direct result of atheromatous disease of the renal arteries and therefore his pension claim can be supported by evidence." There are older reports on file by Professor Thursby at folios 89-91 of the T documents but they say nothing of relevance about RAS or hypertension.
In T22 Professor Thursby wrote (17 December 1998) stating that "one could estimate that he has had renal artery stenosis affecting especially the left kidney from about 1993 onwards, although this time scale is not absolutely accurate." In T23 on 18 February 1999 Professor Thursby wrote:
"It is impossible to precisely date the onset of his hypertension secondary to renal artery stenosis …. I saw him first in 1991 … at that stage he had been on Renitec … for the previous ten years. Also at that stage he had mild systolic hypertension … in later studies with his hypertensives being used his blood pressure was normal until the last three years when his blood pressure became higher and somewhat more difficult to control, according to notes from his local doctors.
"It is, of course, difficult to prove that this man had renal artery stenosis from the early 1980s or whether he had at that time essential hypertension and only more recently (from say 1995) developed significant renal artery stenosis inducing hypertension. I cannot clinically adjudicate on this issue."

Dr I Mackie, a physician, wrote on 6 December 1999 (Exhibit A2) in support of the Applicant. He said that there is little doubt that the Applicant suffers from controlled hypertension. The Applicant also suffers from RAS. The Applicant satisfies factor 5(d) of the SoP on hypertension. This was SoP 26 of 1999. Factor 5(d) required that the veteran must have been suffering from RAS at the time of the accurate determination of hypertension. Dr Mackie noted that the Respondent had accepted that the Applicant's cigarette smoking had caused generalised atherosclerosis. Stenosis of the Applicant's renal arteries "is extensive and has clearly been present for many years." He went on:
"Arteriosclerotic disease in any artery is a slowly inexorably progressive disease of the arterial walls and does not have a definable starting point. It is quite unlike a broken arm or acute appendicitis in that respect. As Professor Thursby has made clear in his letter it is completely impossible to answer the question 'When did the renal artery stenosis commence?' In fact it almost certainly started 30 or 40 years ago but did not reach clinical significance until the renal arteries were sufficiently narrowed to impair renal blood flow to the extent that the blood pressure rose. The fact that one of the kidneys was substantially shrunken many years ago indicates that circulation to that kidney had been impaired for many years prior to that study being performed.
"…on the balance of probabilities Mr Barnard's hypertension was almost certainly caused by War Service."

In a very similar report written on 22 May 2000 (Exhibit A2) Dr Mackie states that it is his opinion that the process of atherosclerosis has almost certainly narrowed one renal artery by 50% and that this occurred before 1981. This is for several reasons:

the Applicant had very early evidence of advanced atherosclerotic disease in carotid arteries and legs;
such a condition is not of sudden onset;
in 1993 the Applicant's claim for atherosclerotic cerebrovascular disease and peripheral vascular disease in the legs was accepted [the Tribunal notes that this is incorrect as these conditions were accepted in 1996]; and
the shrunken kidney is extremely telling. Kidneys do not shrink overnight. It is certain that this reduction in size is due to impaired blood supply and so the impairment must have been inexorably progressive over many, many years.

Dr Mackie gave evidence during the hearing. He explained that "essential hypertension" is raised blood pressure where no cause has been determined. He discussed RAS and said it is caused by atherosclerosis. With the hardening of the arteries there is an accumulation of fatty substances, clots and so on in the walls of the arteries. It occurs commonly in legs, kidneys and is consonant with peripheral vascular disease.
Dr Mackie said that the Applicant's RAS would have commenced decades ago when he was about 40 or younger (he is now 74). The investigations that can be ordered for RAS are ultrasound involving duplex dopler, as was carried out in this case, and angiogram. These became accepted investigations in about 1990. Prior to that there were no general tests for RAS. Dr Mackie would expect a person with the Applicant's accepted disabilities to have RAS. About 20-30% would have a significant degree of narrowing of arteries. Dr Mackie considered that it was likely that the Applicant satisfied the definition of "renal artery stenosis" in SoP 84 of 1995 on hypertension. That definition is "a narrowing or stricture of the main renal artery and/or its major branches, attracting ICD code 440.1".
Dr Mackie commented on the later definitions of RAS in other SoPs, (for example SoP 26 of 1999 on hypertension, paragraph 8) requiring a partial occlusion of at least 50%, or a complete occlusion of the renal artery and producing certain clinical manifestations. The witness mentioned that stenoses were difficult to detect in smaller arteries before 1990 and essential hypertension was often caused by stenoses in these branch arteries that were too indistinct to diagnose as a cause. Dr Mackie was of the view that any essential hypertension in the Applicant in the early 1980s would have been attributable to RAS.
In cross-examination Dr Mackie agreed that the prescription of Renitec in about 1981 would have most likely been for hypertension. As regards the date of onset of RAS Dr Mackie was unable to offer anything concrete. However, in his view the RAS reached a 50% occlusion stage in 1993 to 1996.
Dr D Richards, a physician, wrote on 2 November 1999 (Exhibit R2) that the Applicant has extensive atherosclerosis affecting the left renal artery, peripheral vessels and cerebral vessels. This diffuse vascular disease is linked to the Applicant's service on the basis of smoking. He proceeds to say:
"It is my opinion that renal artery stenosis in this case is a manifestation of atherosclerosis generally, and is therefore linked to his service on the basis of smoking. Renal artery stenosis in this case may also be associated with hypertension for at least ten years before the clinical onset of renal artery stenosis, but this would not be associated with his service because the essential hypertension which predated the renal artery stenosis, was not associated with his service.."

Dr Richards said that the Applicant had essential hypertension in about 1981. Exacerbation of hypertension in later years may have been associated with RAS.
Dr Richards gave oral evidence at the hearing. He was satisfied that there were findings that the Applicant had hypertension from about 1981 on the basis of Dr Thursby's comment at T93 that the Applicant in 1991 had been on Renitec for about 10 years.
Dr Richards thought that the hypertension predated the RAS which was demonstrated in about 1987. Dr Richards agreed that the accuracy in diagnosing hypertension was suspect – it all depends on the Thursby letter (T93).
In cross-examination Dr Richards did not accept that the RAS was war-caused because of a possible link with smoking. He responded that the RAS may have been worse because of the pre-existing hypertension. He referred to "clinically significant" RAS. RAS would be clinically significant when the narrowing of the artery was sufficient to alter renal blood flow. This would elevate the blood pressure. The narrowing would need to be 50-75%. The RAS could be present in the body for 20 or 30 years before achieving clinical significance. Dr Richards agreed that earlier essential hypertension experienced by the Applicant could have been caused by undiagnosed RAS but he doubted it because the level of occlusion would not have been in all likelihood sufficient.
Dr Richards addressed SoP 40 of 1998 on renal artery atherosclerotic disease and the definition of the injury in paragraph 2(b). This definition requires a 50% or greater occlusion of the renal arteries. In his view that requirement would have been met five to 10 years before the detection of the shrunken kidney in 1997 (ie 1987-1992). The required clinical manifestations listed in paragraph 2(b) occurred in 1996 with the worsening of the Applicant's hypertension.
Findings on material questions of fact with reference to the evidence for the findings
The Applicant lodged a claim covering the disputed disability of hypertension on 28 November 1996. If he succeeds in this application the date of effect will be retrospective to 10 October 1997.
The Applicant rendered eligible defence service from 17 May 1944 to 22 October 1946. The relevant standard of proof is that of "reasonable satisfaction" in accordance with s 120(4) of the Act. Section 120B applies to require that the Applicant satisfy any SoP in force relevant to hypertension.
The Applicant's explanation for his claim in respect of hypertension is interesting. Initially the claim was based on his smoking which has been accepted as caused by his eligible service to the extent that other disabilities such as APVD and cerebrovascular accident were accepted as war-caused because of the Applicant's smoking. The difficulty in relation to hypertension is that smoking is not mentioned in the relevant SoP as a relevant factor in the aetiology of hypertension. Renal artery stenosis is, however, a possible cause of hypertension according to the relevant SoP. The Applicant considers that he satisfies the SoP for renal artery atherosclerotic disease (SoP 40 of 1998) and thereby satisfies the SoP on hypertension (SoP 84 of 1995).
It is common ground between the parties, and the Tribunal agrees, that, if the Tribunal cannot reach reasonable satisfaction that the Applicant's renal artery atherosclerotic disease predated the accurate determination of hypertension, then the Applicant's claim fails. If the Tribunal can reach reasonable satisfaction that the renal artery disease did predate the hypertension there is an issue whether the renal artery atherosclerotic disease itself becomes an accepted disability in addition to, or in place of, hypertension.
Does the Applicant satisfy the requirements in SoP 40 of 1998 on renal artery atherosclerotic disease?
The requirements here are:
The Applicant must have renal artery atherosclerotic disease as defined in paragraph 2(b) of the SoP.
The Applicant must satisfy one of the factors in paragraph 5 of the SoP. The Applicant has argued that he satisfies factor 5(a), "smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of renal artery atherosclerotic disease". "Pack years of cigarettes or the equivalent thereof, in other tobacco products" is defined in paragraph 8 of the SoP.
If the Applicant satisfies SoP factor 5(a) his smoking must be related to any relevant service rendered by him (SoP paragraph 4 and paragraph 5 introduction). "Relevant service" is defined in paragraph 8 of the SoP. That definition was amended by SoP 51 of 1998. "Relevant service" had meant operational service, peacekeeping service or hazardous service. After the amendment it meant eligible war service (other than operational service) and defence service (other than operational service).

The Tribunal finds that the Applicant has renal artery atherosclerotic disease. Further, it finds that he has had that disease for many years. The Tribunal accepts the evidence of Dr Mackie that he would have had it by the time he reached age 40. However, it also notes the evidence of Dr Richards that there is a significant difference between having this disease at a low, indiscernible level and having it to the extent that it causes clinical features as listed in the SoP definition. The SoP requires that there be a partial occlusion of at least 50% or a complete occlusion of the renal artery. It requires also that a clinical manifestation be present. In the present case one condition listed that is applicable is hypertension. There is a range of medical views as to the date when the RAS reached an occlusion level of 50%, however interpreted. In Exhibit A3 Dr Mackie considered that the occlusion of one renal artery to around 50% of full diameter occurred before 1981. He identified the reduced size kidney as a clinical manifestation along with several others listed earlier when Exhibit A3 was discussed. The reduced kidney size might satisfy the requirement for "renal impairment" in paragraph 2(b) of SoP 40 of 1998. In oral evidence he opted for 1995 or somewhere between 1993 and 1996 as the time when the SoP requirements were met. Professor Thursby opted for 1995 in T22 as the relevant date. Dr Richards in oral evidence saw the occlusion as occurring at one stage in 1987 and later between 1987 and 1992 with the hypertension occurring in 1996. The preponderance of opinion favours a date around 1995. The Tribunal finds that that was the date of onset of renal artery stenosis, although a case can be made for an onset at least as early as 1981.
The Tribunal recognises that it has preferred the evidence of Dr Mackie to that of Dr Richards on this question. The Tribunal has taken this approach because it considers that the experts are largely in agreement as to the applicable principles. Where they differ is as to the date of onset of the condition. In the Tribunal's view Dr Mackie, who has taken the more radical view, has satisfactorily explained why, on the balance of probabilities, his diagnosis is acceptable.
The Tribunal finds that factor 5(a) in SoP 40 of 1998 is satisfied. There was little evidence before the Tribunal on the Applicant's cigarette consumption. However, Mr Wallis, appearing for the Respondent, conceded that factor 5(a) was satisfied. In the transcript at page 9 he says:
"It's the fact that it is factor A that speaks of at least the 20-pack year, the 20-pack year smoking history. It is considered by the respondent that the applicant has far and above 20 pack years."

Naturally, the Applicant's representative did not demur from that statement. The Tribunal is satisfied that the Applicant smoked at least 20 pack years of cigarettes before the clinical onset of renal artery atherosclerotic disease.
The Tribunal finds that the Applicant's smoking is related to relevant service rendered by him (SoP paragraph 4 and paragraph 5 introduction). "Relevant service" is defined in paragraph 8 of the SoP, as amended, to include eligible service, the Applicant's category of service. The relationship between service and the Applicant's smoking has been accepted by the Respondent in its acceptance of his other smoking-related conditions. On that basis the Tribunal finds that paragraph 4 of SoP 40 of 1998 has been met although it was not much argued before the Tribunal.
This means that the Tribunal has found that the Applicant's renal artery atherosclerotic disease could properly be an accepted condition. Further it has found that its onset was in 1995. There is an issue, to be discussed below, as to whether the Tribunal can recognise a new accepted condition in circumstances like this.
Does the Applicant satisfy the requirements in SoP 84 of 1995 on hypertension?
The factors here are:
The Applicant must have hypertension as defined in paragraph 4 of the SoP.
The Applicant must satisfy one of the factors in paragraph 1 of the SoP. The Applicant has argued that he satisfies factor 1(c), "suffering from renal artery stenosis before the accurate determination of hypertension". There is a definition of "accurate determination of hypertension" and of "renal artery stenosis" in paragraph 4 of the SoP.
If the Applicant satisfies SoP factor 1(c) his renal artery stenosis must be related to any service rendered by him (SoP paragraph 2 and paragraph 1 introduction).
The Tribunal finds that the Applicant has hypertension. All medical experts agree on this. The definition in paragraph 4 is met. The Applicant has registered blood pressure readings of 160/100 (1986) (Exhibit R4), 160/96 (28 March 1996), 140/84 (18 July 1996), 150/74 (15 August 1996) (T6) and 140/80 (14 October 1988) (Exhibit R3). Treatment of one sort or another for hypertension may have been administered since 1981, judging from the reference in T23 to Renitec. This is not definite, however, as there was some suggestion during the hearing that Renitec was not available in 1981.
The Tribunal finds that the "accurate determination of hypertension" as required in SoP paragraph 4 was in the latter half of 1996. The gist of the SoP definition is that there must be the accurate measurement of blood pressure on a number of occasions. The SoP definition precribes the standards to be met in taking accurate readings. It is possible that there may have been such an accurate determination before 1996. However, the Tribunal has no accurate evidence on the Applicant's blood pressure at that time and is reluctant to find the SoP definition met at that time.
The Tribunal finds that the Applicant had renal artery stenosis such as would satisfy factor 1(c) of SoP 84 of 1995. The definition of "renal artery stenosis" in paragraph 4 is "a narrowing or stricture of the main renal artery and/or its major branches, attracting ICD code 440.1". The Tribunal's reasoning is that it has found itself satisfied that the Applicant satisfies the definition of "renal artery atherosclerotic disease" in SoP 40 of 1998. The definition in SoP 84 of 1995 is similar and, to the extent of any difference, seems easier to satisfy.
The Tribunal finds that the requirement that the Applicant's hypertension be related to any service rendered by him is met. Because his hypertension is linked to renal artery stenosis, which the Tribunal has found to be service-related, the Applicant's hypertension is also service-related.
A SoP issue
As the Tribunal has found the Applicant's condition of hypertension to be an accepted condition, the application for review would appear resolved. However, the condition of renal artery stenosis or, more completely, renal artery atherosclerotic disease, was not raised before the Respondent at the time of the primary decision, or before the VRB on review, as a factor in the Applicant's hypertension. Additionally, at the date of the primary decision, 30 December 1996 there was no SoP for renal artery atherosclerotic disease. 8 July 1998 was the date of gazettal for the first SoPs on this condition.
The Respondent argued that, although there was no relevant SoP in force at the time of the primary decision, the Applicant had to meet the requirements of SoP 40 of 1998 as the first SoP issued on renal artery atherosclerotic disease, when it became available. This was on the basis of the full Federal Court decision in Ogston v Repatriation Commission (1999) 56 ALD 789. That was a case involving a veteran who had had operational service. However, there is no reason to think that the court would apply any different approach to an eligible service case such as we have here.
The Court said:
"Mathews J [President of this Tribunal] rejected the contention of the applicant that she had a right to have the Tribunal determine her claim according to the law as it existed when her claim was first made. Her Honour took the view that the intention of the legislature was that s 120A of the Act should apply to all claims that relate to the operational service rendered by a veteran made on or after 1 June 1994 under Part II of the Act.
"In our view, Her Honour was plainly correct in that regard. First, s 120A(1) declares that it applies to claims of the type referred to therein 'made on or after 1 June 1994'. Secondly, and even more tellingly, s 120A(2) requires the Commission in certain circumstances not to determine a claim unless or until the Authority has either determined a relevant Statement of Principles or declared that it does not propose to make such a Statement of Principles. There could be no point in the Commission delaying its determination of a claim as required by s 120A(2) unless, assuming a relevant Statement of Principles was ultimately determined, s 120A(3) was to have an operation in respect of the Commission's determination of the claim."

The Tribunal notes that in eligible service situations s 120B of the Act has an equivalent effect to s 120A of the Act. Section 120B(2) has a purpose similar to that of s 120A(2). Likewise ss 120A(3) and 120B(3) are equivalent provisions for the different categories of veteran.
The question of whether the Tribunal can find that renal artery atherosclerotic disease is an accepted condition is more difficult. This case has some similarities with the Federal Court case, Owen v Repatriation Commission (1995) 38 ALD 241. In that case the applicant lodged a claim in 1991 for "Back condition (3 crushed vertebrae)"; "Osteoarthritis in hip"; and "Skin condition". The back and hip injuries were attributed to a motorcycle accident in 1944 and the symptoms appeared in the late 1960s. In 1984 the applicant injured his shoulder while at work. His back condition forced him to assume a position that compromised his shoulder when he was replacing a wheel on a car. This condition had not been mentioned in the claim form. In a questionnaire he mentioned that his back condition resulted in excess pressure on his shoulders. The applicant's three claimed conditions were not accepted as war-caused by either the Repatriation Commission or the VRB. In his application for VRB review the applicant had made no mention of a separate war-caused shoulder condition. The application for review filed with the Tribunal likewise mentioned only lumbar spondylosis, osteoarthritis in the right hip and the skin condition. At the Tribunal the applicant argued that his back condition forced him to adopt an inappropriate position adversely affecting his shoulder.
The Tribunal considered that the shoulder injury would have to be considered by the Repatriation Commission and the VRB before it could do so. The applicant appealed to the Federal Court and argued, amongst other things, that the claim in respect of which the Repatriation Commission was to make a determination was simply a claim for a pension. The Repatriation Commission argued in response that a claim for a pension under s 14(1) of the Act was a claim in respect of particular and particularised disabilities said to be war-caused and that the decisions made by the Repatriation Commission were limited to those disabilities.
Finn J stated at 247:
"In consequence the Tribunal's review being confined to those decisions, it lacked jurisdiction to make a decision in relation to any alleged war-caused disabilities other than those raised for the determination of the Commission."

Further, Finn J said at 248:

"The provisions of the Act, s 175(1)(a), and of the Administrative Appeals Tribunal Act (Cth) ss 25(4) and 43(1) all contemplate the Tribunal's power of review being limited to a review of the decision in respect of which application is able to be made to it: see also Secretary, Department of Social Security v Riley (1987) 17 FCR 99; Stafford v Repatriation Commission (1995) 36 ALD 78. For the purposes of this appeal I am prepared to hold that the power of review is so limited without expressing a view whether this is so for all purposes and in all circumstances. Central to the present appeal is thus the issue: what is the 'decision' in respect of which application for review to the Tribunal was made?
"The answer to this in my view can be simply put. That decision is the response which, in conformity with the Act, needs to be given to the question raised for the Commission by the applicant in his claim for a pension…
"In the present instance the applicant particularised with some precision in his claim form the disabilities which he said founded his claim. These were the disabilities in relation to which he required a decision to be made; these were the disabilities in relation to which the Secretary's investigation was to be – and in fact was – conducted; they set the boundaries to the claim which was the subject of the Commission's duties under the Act, s 18(1); and importantly, for the purposes of the Act, s 14(4), they constituted the subject matter of the claim in support of which the applicant was entitled to submit evidence at any time up to the determination of the claim."

The Tribunal is aware of a more recent decision, Re Neville and Repatriation Commission [1999] AATA 801 in which the Tribunal did proceed to consider a condition that the Repatriation Commission and VRB had not considered. However, that case is distinguishable from the Owen case (supra) because the applicant in Neville (supra) referred to the additional condition in his claim form but the respondent had not proceeded to refer to it in its investigations and decision making. The Tribunal considers that both of these cases were correctly decided.
In the present application the situation is more like that in the Owen case (supra). Neither the condition of renal artery atherosclerotic disease nor its offspring, renal artery stenosis, was mentioned explicitly or in lay terms by the Applicant in his claim for an increase in pension. Understandably the Respondent has made no primary decision on the condition. The Tribunal therefore concludes that it lacks the jurisdiction to find that renal artery atherosclerotic disease is an accepted war-caused condition. This does not, however, affect the finding that hypertension is an accepted condition on the basis of pre-existing renal artery stenosis.
The Applicant may wish to lodge a formal claim with the Respondent in respect of renal artery atherosclerotic disease.
Conclusion
The Tribunal has in all the circumstances decided that the decision under review should be set aside and hypertension should be accepted as a war-caused condition with effect from the first pension payday falling on or after 10 October 1997.
The matter will need to be remitted to the Respondent to ascertain whether this decision will involve a reassessment of the rate of pension payable to the Applicant.
Decision
The decision under review is set aside and the Tribunal decides that the Applicant's condition of hypertension is an accepted condition with effect from the first pension payday on or after 10 October 1997.
The Tribunal remits the matter to the Respondent for the Respondent to reassess the rate of pension payable to the Applicant as a result of this decision.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Sassella
Signed:         .....................................................................................
  Associate
Date/s of Hearing  30 May 2000
Date of Decision  12 April 2001
Counsel for the Applicant        Mr Priestly
Counsel for the Respondent    Mr Wallis