Black and Repatriation Commission

[2010] AATA 982

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 982

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1840

VETERANS APPEALS  DIVISION		)
Re		EILEEN BLACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J Campbell, Member

Date8 December 2010   

PlaceSydney

Decision The Tribunal affirms the decision under review.

.....................[sgd]..............................

Ms N Bell, Presiding Member   

CATCHWORDS – Veterans’ entitlements – war widows pension – cause of death – clinical onset – hypertension – usual blood pressure reading

Veterans’ Entitlements Act 1986

McKenna v Repatriation Commission (1999) 86 FCR 144

Re Robertson and Repatriation Commission (2002) 50 ALD 668

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr J Campbell, Member     

1.      

Eileen Black is the widow of Everard Black, who died on 29 July 2002 aged 81.  Mr Black served in the Australian Army as a signaller during World War II.  His period of service was from 12 January 1942 to 9 May 1946.  The whole of that service was within Australia.  Mr Black served in the Northern Territory from

19 May 1945 to 23 March 1946.  Mr Black’s service constitutes eligible but not operational service under the Veterans’ Entitlements Act1986.

2.      Mrs Black lodged a claim for widow’s pension.  Because Mr Black had eligible but not operational service, the relevant standard of proof to be applied to her claim is that of reasonable satisfaction rather than the considerably more beneficial standard of reasonable hypothesis.

2.The cause of death stated on Mr Black’s death certificate was:

Large intracerebral haemorrhage (spontaneous)   5 hours

Atrial fibrillation managed with aspirin and clopidogrel  years

Hypertension

Hypercholesterolaemia

3.      There is no issue between the parties that the “kind of death” for purposes of section 120B of the Act was death from a cerebral haemorrhage, and that Statement of Principles No. 52 of 2006 concerning Cerebrovascular Accident is applicable.

4.      The factor in that SoP that is relied on by Mrs Black is factor 6(a) in clause 6 which provides that before the Tribunal can be reasonably satisfied that death from cerebrovascular accident is connected with the circumstances of a person’s relevant service, the factor which must exist is:

6(a)     having hypertension at the time of the clinical onset of cerebrovascular accident. 

5.      There is no dispute that Mr Black suffered from hypertension prior to his cerebrovascular accident.

6.      However, for cause or contribution by service to be established by Mrs Black, the Tribunal must be reasonably satisfied that Mr Black’s hypertension was contributed to by his service.

7.      

SoP 36 of 2003 concerning Hypertension, as amended by Instruments

4 of 2004 and 12 of 2008, is the relevant SoP and is required to be applied: McKenna v Repatriation Commission (1999) 86 FCR 144.

8.      Clause 2 of the SoP defines “hypertension” as:

permanently elevated blood pressure, evidenced by:

i)  a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or

ii)  the regular administration of antihypertensive therapy to reduce blood pressure.

This definition excludes temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, eclampsia, pre-eclampsia or medications.         

9.      Factor 5 (c) of the SoP provides that before it can be said on the balance of probabilities that hypertension is connected with circumstances of a person’s relevant service, the factor which must exist is:

5(c)     ingesting at least 15 grams (250 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension.         

10.     There is no dispute that Mr Black ingested the required amount of salt supplements on service. However, the date of clinical onset of Mr Black’s hypertension is squarely in dispute. 

11.     Mrs Black contends that the clinical onset of his hypertension was at or near the time of his discharge. Alternatively, she contends that there was clinical onset in 1961, the date, according to Mrs Black’s recollection, when Mr Black commenced to take blood pressure medication.  She further contends that the conceded high level of salt ingestion in the six months prior to 1961 clinical onset was due to his service.

12.     The issues for the Tribunal to consider are therefore the date of clinical onset of Mr Black’s hypertension, and, if clinical onset was in 1961, whether Mr Black’s high level of salt ingestion was caused or contributed to by his service.

when was the clinical onset of mr black’s hypertension?

13.      “Clinical onset” occurs when a finding is made on investigation which is indicative to a doctor of the disease being present: Re Robertson and Repatriation Commission (2002) 50 ALD 668 at 670. See also Repatriation Commission v Gosewinckel (1999) 59 ALD 690 which states clinical onset cannot be found before the condition satisfies all of the requirements of the disease in the relevant SoP; and Youngnickel v Repatriation Commission[2004] FCA 1691 which requires that all the symptoms of a disease must be present before clinical onset can be found.

14.     

As to the contention that Mr Black’s hypertension had clinical onset in 1946, the only evidence of a blood pressure reading at that time is a record of a reading of 145/80 or 85 on 16 March 1946 when Mr Black underwent a pre-discharge medical examination.  We note that this systolic reading of 145 is 5 points above the reading of 140 required by the SoP.  Despite a thorough search and a reading of

Mr Blacks service file by both parties, no other record of a blood pressure reading was found.  Mrs Black contends that, notwithstanding there is only one available reading, this reading should be considered indicative of Mr Black’s “usual” reading at that time.

15.     Professor Richard Haber gave evidence that if he had taken a reading of 145/80 in a 25 year old man he would have obtained further readings and inquired about family history.  He said that it is normal for blood pressure to vary and that there can be quite marked changes due to stress (which would raise the level) or to dilation from heat (which tends to lower the level).

16.     Professor Haber said that the term “usual” is not used by doctors in relation to blood pressure readings, but that he understood it to mean the average of a few readings.  He said:

“You know, you take a reading here, you take a reading there,and you take it then, and you just look at what is commonly the blood pressure” (transcript p. 6)

17.      Later he said:

“But as a doctor, I would like to know what a few readings, especially in a young person, is before I would jump to any very serious conclusions.”

18.     He also said that he would consider it possible that the reading in 1946 indicated the beginning of a gradual climb in blood pressure that required treatment in 1961. Later, under re-examination and questioning by the Tribunal, he said that was probable.

19.     Counsel for Mrs Black urged on us an interpretation of the word “usual” that refers to the circumstances in which the reading was taken rather than the result of the reading itself.  We do not accept this interpretation of the word in the SoP, particularly given Professor Haber’s understanding of the term.  We also consider that Mrs Black’s submission that there is significance in the use of the words “a usual blood pressure reading” as opposed to, for example, “the usual blood pressure reading” which would connote a greater level of certainty being required.  We also reject this submission.  The use of the indefinite article accords with the practice described by Professor Haber of taking a number of readings in order to determine the usual reading.

20.     It was also pointed out, on behalf of Mrs Black, that, of the last five incarnations of the SoP, the last two have had no express requirement for multiple readings.  In the first three versions of the SoP the term used was “accurate determination of hypertension” and multiple readings were required along with precise conditions in which the readings were taken and specific equipment to be used.  That requirement was removed when the fourth version of the SoP was introduced and the term “usual reading” remained.  We are not satisfied that this  evolution of the SoP indicates an intention to establish diagnosis on the basis of just one reading.  We note that the now removed term “accurate determination of hypertension” was defined to require not only mutiple readings but also precise  requirements as to a wide range of other matters as well.  We are mindful of Professor Haber’s evidence that he would take a number of readings before diagnosing hypertension.  We take this as an indication of standard clinical practice and interpret the SoP accordingly.

21.     We are not satisfied that Mr Black’s hypertension had its clinical onset in 1946.

22.     We accept Mrs Black’s evidence that her husband commenced to be treated with hypertensive medication in 1961 and take this to be the date of diagnosis and clinical onset.

was mr black’s level of salt ingestion caused or contributed to by his service?

23.     Mrs Black’s evidence was that Mr Black loved salty food and continued to ingest salt at high levels throughout the six months prior to the onset of his hypertension in 1961.  We accept that evidence.  However, there is no evidence to support the contention that his love of salty food arose out of or was contributed to by his service.  The standard of proof required in this application is reasonable satisfaction.  We cannot, on the evidence before us, be reasonably satisfied that Mr Black’s salt ingestion was caused or contributed to by his service.

24.     It follows that Mr Black’s death did not arise out of his service and nor was it contributed to by his service.  It further follows that Mrs Black is not entitled to receive a widows pension.

decision

25.     The Tribunal affirms the decision under review.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member Dr J Campbell, Member

Signed: ...................[sgd]..........................................................
  Associate

Dates of Hearing  15 September 2010
Date of Decision  8 December 2010
Counsel for the Applicant         Mr Mark Vincent 
Solicitor for the Applicant          Mr Andrew Kemp
Advocate for the Respondent   Mr Adrian Crowe