Bracey and Repatriation Commission
[2001] AATA 1002
•10 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/426
VETERANS' APPEAL DIVISION )
Re JOHN STEWART BRACEY
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member
Date10 December 2001
Place Sydney
Decision The Tribunal determines that the decision under review be set aside and in substitution therefor finds that: (a) the Applicant's back condition is intervertebral disc prolapse at the level of L4/5, and lumbar spondylosis, and that both injuries/diseases are defence caused; and (b) the Applicant's hypertension is not a defence caused disease; and (c) the Applicant's chest condition is ischaemic heart disease, and that this disease is not defence caused; and (d) the Applicant does not suffer from chronic bronchitis and/or emphysema; and (e) the accepted defence caused diseases/injuries are remitted to the Respondent for assessment with the date of effect for the payment of a disability pension being 11 February 1998.
[sgd]Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlements - claim for disability pension - whether claimed conditions are defence caused – hypertension – ischaemic heart disease – intervertebral disc prolapse – lumbar spondylosis – chronic bronchitis and emphysema
Veterans' Entitlement Act 1986, sections 120(4), 120A
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
Dr J D Campbell, Member
In this matter Mr John Bracey ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 7 August 1998, which refused the Applicant's claim for L4/5 disc lesion, hypertension, chronic bronchitis and emphysema. This decision was affirmed by the Veterans' Review Board ("VRB") on 5 February 1999.
A hearing was held before the Tribunal on 6 November 2000 at which the Applicant was represented by Ms Buchanan, an advocate from the Veterans' Advocacy Service, Legal Aid. The Respondent was represented by Mr Wallis, a solicitor from the Department of Veterans' Affairs. The Applicant presented oral evidence to the Tribunal. The hearing was adjourned until 6 June 2001, this date being vacated, with a final hearing date of 13 August 2001. This date was also vacated on 7 August 2001 with submissions received from the parties on 10 August 2001 (Applicant), 15 August 2001 (Respondent) and Applicant in reply on 20 August 2001.
The following material was placed into evidence before the Tribunal:
Exhibit No Description Date
T1-29 pp1-151 Documents prepared pursuant to section 37 of the Administrative Tribunal Act 1975 ("the T- documents")
A1 Statement of the Applicant 15 November 1999
A2 One page of facts and figures
A3 Statement of Applicant re back condition 24 July 2000
A4 Statement of Applicant re salt consumption 2 August 2000
A5 Medical report Prof Sambrook 28 July 1999
A6 Medical report Prof Sambrook 8 August 2000
A7 Medical report Dr Miller 9 March 2000
A8 Applicants Statement of Facts and Contentions 1 November 2000
R1 Medical report Dr Richards 16 September 1999
R2 Medical report Dr Richards 29 September 2000
R3 Medical report Prof Breslin 21September 1999
R4 Medical report Prof Breslin 3 November 2000
R5 Medical report Dr Hume 11 and 12 July 2000
R6 Medical report Dr Hume 4 October 2000
R7 Respondent's Statement of Facts and Contentions 3 November 2000
R8 Medical report Prof Breslin 2 April 2001
R9 Report by Mr O'Keefe 27 March 2001
issuesThe relevant issues in this matter are:
· whether the conditions of intervertebral disc prolapse and hypertension are defence caused diseases; and
· whether the Applicant's claim for chest problems includes ischaemic heart disease.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular subsection 120(4) and section 120A.
backgroundThe Applicant was born on 30 March 1950 and served in the Navy from 1967 to 1981 being mustered as a stoker following recruit training until 1973 and thereafter as a cook until his discharge in 1981. The Applicant saw significant sea duty but was not allocated for duty in an operational area. The Applicant had eligible defence service from 7 December 1972 to 1 February 1981.
The Applicant lodged a claim on 11 May 1998 in which he claimed the following disabilities as being defence caused:
· back strain – this injury was sustained during service at HMAS Melville 1970-71
· hypertension – caused by obesity and smoking excessively
· chest problems – excessive smoking on ship and asbestos lagging.
In an accompanying statement at p102 of the T-Documents the Applicant described how chest pains and shortness of breath slows his work rate (paragraph 24) and stated that he had ceased work on grounds of ill health in February 1998 (paragraph 22)(T18).
In a claimant report on cigarette smoking the Applicant stated that he started smoking in 1966 at the rate of 10 a day and that from 1967-1981 he smoked 40 a day because they were freely available. From 1982 to 1998 he smoked 30 cigarettes a day (T19).
On 15 June 1998 Dr Pope (a general practitioner) lodged the following diagnostic reports with the Respondent (T21):
· chest problems – chronic bronchitis
· cardiac condition – cough, angina, dyspnoea, coronary artery by-pass 1991 after investigation for shortness of breath, hypertension
· respiratory condition – daily cough, breathless daily and after exertion; nil treatment for bronchitis.
A review of the service and Veterans' Affairs medical records of the Applicant reveals the following:
back problem
strained back doing P.T. at recruit training (T3, p32)
lumbosacral strain while lifting ammunition on HMAS Melbourne in May 1969 (T3, p31)
painful tip coccyx HMAS Melbourne 1970 (T3, p30)
severe pain lower back after bending down HMAS Nirimba March 1976 (T3, p25)
X-ray lumbosacral spine – there could be a slight degree of thinning of the discs between L4 and 5, suggesting a possibility of recent disc degeneration March 1976 (T3, p44)
strained back April 1977 HMAS Nirimba (T3, p24)
low back pain while lifting, with left sciatic pain November 1977 HMAS Albatross (T3, p20)
hospitalised low back pain with left sided sciatica in November/December 1979 (T3, p17)
myelography demonstrated L4 - L5 disc herniation, with discectomy performed at Royal Australian Naval Hospital Concord in February 1980 (T3, p13)
hypertension
blood pressure elevated February 1975 (T3, p28);
blood pressure elevated September 1975 (T3, p46);
blood pressure elevated February 1980 (T14, p88);
blood pressure elevated March 1980 (T7, p60);
blood pressure elevated July 1988 (T12, p83).
On 7 August 1998 the Respondent refused the Applicant's claim for L4-5 disc lesion, hypertension, chronic bronchitis and emphysema. On 5 February 1999 the VRB affirmed the decision of the Respondent.
Applicant's evidenceThe Applicant confirmed that he suffered a lumbo-sacral strain when storing ammunition on HMAS Melbourne in May 1969. He stated that the weight of the ammunition being stored was in excess of 20kgs. He is unable to remember whether there were any immediate symptoms, but he does remember his back being very painful (level 8-9) and he was unable to bend and he is unsure as to whether there was a burning sensation. His back was tender and it was difficult to get comfortable. He reported to the medical officer the next morning who prescribed tablets and light duties with no lifting or bending.
13. The Applicant also told the Tribunal of an incident which happened while he was posted to HMAS Melville in Darwin. He was lifting an anvil at the time and he felt a tearing sensation in his low back. He experienced pain (level 8-9) and his lower back was sensitive and tender. He was admitted to the RAAF hospital either the same day or the next, and after discharge he was on light duties for two to three weeks.
14. The Applicant also confirmed further episodes of injuries to his lower back, namely:
September 1967, low back pain after circuit training during his recruit training program;
March 1976, an incident when he was a cook at HMAS Nerimba one week in hospital (bed rest) and returned to light duties with no lifting or bending;
April 1977, bent the wrong way - came up sore; light duties for one week or more;
November 1977, lifting and carrying caused pain - to sickbay; symptomatic for a week; treated with aspirin and heat;
Year 1979, an incident prior to his admission to Concord;
Year 1980, surgery on his back at Concord.
15. In relation to his hypertension, the Applicant stated that he was told that he was hypertensive in 1974, when seeking treatment from the Long Beach Naval Hospital. He further advised that in relation to his salt intake, he consumed some 8-10 salt tablets with each meal when aboard ship and that he had never been advised to reduce this intake.
16. In response to questions in cross examination the Applicant stated that:
he was unable to recall the specific incident in November/December 1979 that caused back problems;
the symptoms associated with the incident of November 1977 lasted several days (2 days later deemed fit for duty);
he received no treatment for hypertension while in the navy, and commenced treatment in 1988;
he suffered from gout since mid seventies;
he lifted 10kgs more than 25 times a day in his duty as a cook and had trouble with his back several times a year;
his weight varies between 90kgs and 120kgs;
he served on HMAS Anzac for six months; HMAS Nirimba for three months; HMAS Melbourne for two years; HMAS Cerebrus (as cook); HMAS Sydney for three to four months; HMAS Perth for two years; HMAS Nirimba, HMAS Vendetta, HMAS Waterhen and HMAS Penguin (after back operation to discharge);
he received no promotion, drank two beers a day and dry at sea;
he played golf, football, cricket and enjoyed swimming - no injuries or road accidents;
he has had some trouble with his back since discharge when working as a chef, although no loss of time at work has occurred because of his back problems.
17. In his statement dated 15 November 1999 the Applicant detailed his duties as a cook which involved cleaning duties, storing duties, meal preparation and serving of meals. Storing duties required much carrying of stores of varying weights (25lbs to 60lbs) from different parts of the ship, while preparation involved putting the food in high volume containers (Exhibit A1).
MEDICAL EVIDENCE
professor sambrook
18. In his medical report dated 28 July 1999, Professor Sambrook, a consultant rheumatologist, states that the Applicant suffers from L4/5 disc degeneration and some degree of spondylosis.
19. In considering relationship to service, Professor Sambrook considered that the ammunition lifting outside the eligible period of service was likely to be the first episode that led to intervertebral disc prolapse, and thus there may be a case to make regarding the Applicant being involved in lifting ten kilograms many times a day.
20. Professor Sambrook also raised the issue of whether the Applicant's smoking history would satisfy the factor within Statement of Principles Instrument No 131 of 1996 as amended by Instrument No 93 of 1997 concerning intervertebral disc prolapse (Exhibit A5).
21. In a further report dated 8 August 2000, Professor Sambrook, made the following statements:
"Assuming the further strains to the back described by Mr Bracey during his eligible service period involved the lifting of objects weighing more than 10kg, I consider Mr Bracey does satisfy factor 5(g) of SOP 131/1996. The history I obtained does not allow me to address whether Mr Bracey satisfies factors 5(j) in regard to the frequency of the lifting he performed. If further history did satisfy the frequency outlined in the criteria then he would satisfy factors 5(j).
The history obtained by Dr Miller in his report of 9 March 2000 would suggest that many of the weights Mr Bracey had to lift do in fact satisfy the 10kg threshold but the frequency of these lifting's still remain somewhat unclear to me. The report of Dr Hume would also suggest a history of frequent lifting during the eligible service period although this is not quantified. The written by Mr Bracey dated the 15 November 1999 also supports the frequent heavy lifting.
Assuming the history in regard to the weight he had to lift and frequency he had to perform these lifts is satisfied, as outlined in my response to question 1, then I would regard Mr Bracey's intervertebral disc prolapse as being permanently worsened by virtue of the factors 5(g) and (j) in SOP 131/1996." (Exhibit A6)
dr miller
22. In a medical report dated 9 March 2000, Dr Miller, a consultant physician, made the following comments in relation to the Applicant's various conditions (Exhibit A7):
(a) Hypertension:
(i) first manifestation of blood pressure was in 1975, and that in March 1975 the Applicant satisfied SoP Instrument No 26 of 1999 paragraph 2(b)(a), which defines hypertension. Dr Miller considered obesity to be a contributing factor, but obesity had preceded his eligible service.
(ii) that the Applicant did take extraordinarily high doses of salt in the form of salt tablets and that the Applicant satisfies factor 5(c) of the SoP Instrument No 26 of 1999 concerning hypertension.
(b) Chronic Bronchitis and Emphysema:
(i) does not consider that the Applicant's chronic bronchitis relates to service.
(c) L4 - L5 disc lesion:
(i) considers Applicant satisfies factors 5(j) and 5(g), with the trauma to the intervertebral disc satisfying the definition of trauma in paragraph 7(a)(i) of SoP Instrument No131 of 1996 as amended by Instrument No 93 of 1997.
(d) Ischaemic Heart Disease:
(i) if the Applicant's hypertension is accepted then the Applicant will satisfy factor 5(a) of SoP Instrument No 38 of 1999 concerning ischaemic heart disease.
dr richards
In two reports dated 16 September 1999 and 29 September 2000, Dr Richards, a consultant cardiologist stated the following opinion (Exhibit R2):
"Mr Bracey's blood pressure varied considerably during his service, but was often normal, and a diagnosis of hypertension was not established then. Accordingly, the salt supplements which he received during his service did not cause hypertension. The salt supplements he received were probably appropriate, to replace salt lost in sweat.
Mr Bracey said that he commenced regular antihypertensive therapy in the mid 1980's. In his record, 7 July 1998, his only regular medication was for gout. It is my opinion that a diagnosis of hypertension was established in 1988, after which he began therapy."
professor breslin
24. In two reports dated 21 September 1999 and 3 November 2000, Professor Breslin, a consultant thoracic physician, concluded that the Applicant:
(a) does not have chronic bronchitis;
(b) there is no evidence of airflow limitation and he does not have chronic obstructive airways disease;
(c) the spirometry was normal;
(d) unable to diagnose any respiratory disease. (Exhibit R3 and R4)
dr hume
25. In two reports dated 11 and 12 July 2000 Dr Hume, a consultant orthopaedic surgeon, detailed the following opinion:
"I consider it is more probable than not that the disability suffered as a result of the L4/5 disc lesion relates back to the incident which Mr Bracey says occurred in 1970. He did continue to suffer from back pain following that incident. I have not had the opportunity to see any x-rays. From my discussion with Mr Bracey it appears that he did lift weights regularly in the course of his work as a cook. Even if the original incident occurred before Mr Bracey's eligible defence service from 7 December 1972 to 1 February 1981 I consider it more probable than not that his work during the eligible defence service contributed greatly to the lumbar intervertebral disc protrusion which was operated on by Dr Dan in 1980. I can not prove that there was a disc protrusion in 1970. It is very likely that disc damage occurred in 1970 and became much worse in 1977 and required operation in 1980." (Exhibit R5)
26. In a second report dated 4 October 2000 Dr Hume confirms his earlier opinion that it is very likely that this damage (disc protrusion) occurred in 1970 and became much worse in 1977 and required operation in 1980 (Exhibit R6).
MR O'KEEFE
27. Mr O'Keefe, a consulting historian, in his report dated 27 March 2001 detailed the following conclusion (Exhibit R9):
"The Reports of Proceedings of the various ships on which Mr Bracey served show that he would have spent a total of about eleven months in tropical environments during his postings. While he may have spent some of this time on shore leave or simply in port - at which times he may not have taken salt tablets - it seems likely that he would have consumed such tablets for the bulk of his time in the tropics and that the amount of salt consumed would have been fairly substantial. The references to problems with HMAS Melbourne's airconditioning and the uncomfortably hot conditions aboard the ship in 1970 and especially 1972 increase the likelihood that salt would have been consumed in large quantities on this vessel, particularly in the engine room."
submissions
the Applicant
28. The advocate for the Applicant submitted that:
in relation to entitlement claims the standard of proof is reasonable satisfaction pursuant to subsection 120(4) of the Act;
the earliest date of effect, if appeal is successful is 11 February 1998;
that the SoPs to be relied upon are the current SoPs, unless the SoP in force at the date of the Repatriation Commission decision is more beneficial. In essence the relevant SoPs are:
· SoP Instrument No 131 of 1996 as amended by Instrument No 93 of 1997 concerning intervertebral disc prolapse;
· SoP Instrument No 28 of 1999 concerning lumbar spondylosis with Instrument No 166 of 1996 being in force at the time of the primary decision;
· SoP Instrument No 32 of 2001 concerning hypertension;
· SoP Instrument No 141 of 1996, as amended by Instrument No 78 of 1997 and Instrument No 38 of 1998 (date of the primary of decision) concerning ischaemic heart disease.
29. In relation to the claim for back strain, the Applicant contends that the appropriate diagnosis for this condition is L4-5 disc degeneration with lumbar spondylosis (Professor Sambrook and Dr Miller). In relation to the intervertebral disc prolapse, the Applicant contends that he satisfies factor 5(j) of SoP Instrument No 131 of 1996 as amended by Instrument No 93 of 1997 concerning intervertebral disc prolapse in that the Applicant lifted at least 10kgs, 25 times a day for two years within the five years immediately before the clinical worsening of intervertebral disc prolapse. The Applicant also contends that factor 5(g) of the same instrument is satisfied.
30. The Applicant also contends that factor 5(s) of the SoP Instrument No 28 of 1999 concerning lumbar spondylosis, is satisfied in that the Applicant suffered a lumbar intervertebral disc prolapse before the clinical worsening of lumbar spondylosis at the level of the intervertebral disc prolapse. The Applicant also contends that he satisfies factor 5(j) of SoP Instrument No 166 of 1996.
31. In considering the claim for hypertension, the Applicant contends that he satisfies factor 5(c) of SoP Instrument No 32 of 2001 concerning hypertension in that the Applicant ingested at least 15 grams of salt supplements per day for a continuous period of at least six months immediately prior to the clinical onset of hypertension, with the diagnosis of hypertension being established in February 1975.
32. In regards the claim for chest problems, the Applicant, in noting that the Respondent diagnosed chronic bronchitis and emphysema, contends that the correct diagnosis is ischaemic heart disease, in that there is no disease or injury found in respect of a respiratory condition (Professor Breslin), and that there is a particular clinical history of ischaemic heart disease. It is the Applicant's contention that factor 5(a) of SoP Instrument No141 of 1996 as amended is satisfied, in that the Applicant had evidence of the presence of hypertension prior to the clinical onset of ischaemic heart disease. Further, the Applicant submitted that the Respondent had been placed on notice that the issue of ischaemic heart disease would be pursued at all preliminary conferences, in the Applicant's Statement of Facts and Contentions and in the report of Dr Miller.
respondent's submissions
33. The Respondent, relying upon the opinion of Professor Breslin, contended that the Applicant suffers from no diseases or injury in respect of a respiratory condition.
34. The Respondent argues that the issue of ischaemic heart disease is not before the Tribunal in this application; that it is the subject of separate proceedings in a different application and that issues and evidence in detail pertaining to the disorder have not been placed before the Tribunal.
35. The Respondent contends that evidence relating to the Applicant's lifting duties as a cook is not sufficiently detailed as to permit a finding that "trauma to the relevant disc" definition within the relevant SoP has been satisfied, with Professor Sambrook raising the lifting activities as a possibility. It is the Respondent's submission that the Applicant's obesity and his pre-existing Scheuermann's disease are the reasons for his original back injury in 1967, later aggravations and his ultimate surgery.
36. The Respondent contends that the diagnosis of lumbar spondylosis cannot be established on the balance of probabilities, as neither Professor Sambrook nor Dr Hume are particular as to such a definitive diagnosis.
37. In addressing the issue of the Applicant's hypertension, the Respondent submitted that the relevant SoP was Instrument No 84 of 1995, and as a consequence the Respondent contends that the diagnostic criteria for hypertension is the "accurate determination" as opposed to the "clinical onset" of hypertension. Consequently, the Respondent contends that the accurate determination of hypertension was not made until 1988, when the Applicant commenced treatment for hypertension. In the alternate the Respondent contends that the Applicant suffered from labile hypertension, and that in the light of a failure to exhibit a consistency of elevated blood pressure readings during his period of service it is further submitted that the Applicant fails to satisfy the diagnostic criteria for hypertension contained in the relevant SoP.
38. In relation to the issue of salt consumption by the Applicant during his period of eligible service, the Respondent contends, when addressing factor 5(c) of SoP Instrument No 32 of 2001 concerning hypertension, that the accurate determination of hypertension was in 1988, and that any excessive salt consumption by the Applicant, albeit voluntary, had long ceased as the Applicant left the Navy in 1981.
considerations and findings
39. In addressing the preliminary issue of what diseases and/or injuries are before the Tribunal, the Tribunal, in noting the Applicant's claim of 11 May 1998, his accompanying statement at p102 of the T-documents in which he described how chest pains and shortness of breath slows his work rate (paragraph 24) and that he had ceased work on grounds of ill health in February 1998 (paragraph 22), and the report of his general practitioner, Dr Pope, on 15 June 1998, in which he alluded to both a respiratory and cardiac condition, concludes that the Applicant's chest problems for which he claimed, are related to both respiratory and cardiac conditions. In noting the symptomatology as described, as well as the Applicant's clinical history of hypertension and coronary by-pass surgery in 1990/91, the Tribunal is reinforced in its view that the Applicant's described symptomatology related to both the lungs and the heart.
40. The Tribunal notes that the Respondent considered the Applicant's claim for chest problems to be for the diseases of chronic bronchitis and emphysema (7 August 1998). The Respondent refused the claim for the two conditions as well as a L4/5 disc lesion and hypertension on 7 August 1998. Further, the decision to refuse the Applicant's claim was affirmed by the VRB on 5 February 1999, following a hearing on the papers in Melbourne, with the Applicant agreeing to such a process in which no new material was introduced.
41. In preparation for hearing before the Tribunal particular reports were sought from relevant clinicians, with the Tribunal noting the reports of Drs Miller and Richards, and in particular Dr Miller's description of the Applicant's clinical history and symptomatology in relation to his heart condition.
42. The Tribunal also observes that the issue of the Applicant's heart condition was raised during the preliminary conferences prior to the Tribunal hearing, and also that the Applicant's statement of facts and contentions contained the contention that the claim for "chest problems" includes ischaemic heart disease.
43. The Tribunal also notes that the issue was raised by the Applicant towards the end of the hearing on 6 November 2000, with an adjournment granted during which both parties could focus on matters relevant to the next hearing day. The Tribunal notes that the next hearing day was vacated as a consequence of both parties agreeing that only submissions remained and that they could be undertaken in writing.
44. The Tribunal in considering both the material and the process which has occurred, is satisfied that both parties have had ample opportunity to address all the issues in this matter.
45. The Tribunal, in considering all the material before it, concludes that the following disease/injuries are before it, with the diagnosis of each being made on the balance of probabilities:
(a) Back strain – after considering the clinical history of the Applicant's low back difficulties and the opinions of Drs Hume and Miller and Professor Sambrook, the Tribunal concludes that the Applicant has the following disease/injury:
· an L4/5 disc lesion
· lumbar spondylosis.
(b) Hypertension.
(c) Chest Problems – after considering the clinical history of the Applicant in relation to his clinical symptomatology and the opinions of Professor and Drs Breslin, Miller, Richards and Pope, the Tribunal concludes that the Applicant has the following disease:
·Ischaemic heart disease.
46. The Tribunal also concludes that the Applicant does not have chronic bronchitis or emphysema, and in so finding relies upon the investigations undertaken by, and the report of, Professor Breslin.
47. The Tribunal, in noting that the Applicant's period of eligible defence service commenced on 7 December 1972 and concluded on 1 February 1981, concludes that the standard of proof in considering whether the Applicant's nominated diseases/injuries are connected with the circumstances of his relevant service, is the balance of probabilities.
48. In addressing the Applicant's claim for "back strain", the Tribunal, earlier in this decision, has concluded that the appropriate diagnostic nomenclature is an intervertebral disc prolapse at the L4/5 level and lumbar spondylosis.
49. In addressing the issue of connection to eligible service, the Tribunal notes that the appropriate SoP in each disease/injury consideration is the current SoP, unless the SoP existing at the time of the primary decision is more beneficial.
50. In turning to the Applicant's clinical history in relation to his lumbar disc lesion and lumbar spondylosis, the Tribunal notes that there is a description of three episodes of back problems experienced by the Applicant prior to the commencement of his period of eligible defence service, and that it was the opinion of both Professor Sambrook and Dr Hume that the latter two episodes were more than likely instrumental in the creation of the Applicant's low back lumbar disc lesion and lumbar spondylosis. Further, the Tribunal notes the Applicant's work activity history as a cook during his period of eligible defence service, which included considerable fetching and carrying activities associated with the storage, preparation and distribution of food, and in particular the carrying of items weighing ten kilograms or more at least 25 times a day. The Tribunal further notes the Applicant's clinical history during the period 1976 to 1980, in which there were at least four periods in which the Applicant suffered with acute low back pain and for which he was treated with either hospitalisation, bed rest for a week and restricted duties thereafter for a period, or alternatively was placed on light duties for a week or more and treated with heat and aspirin. The Tribunal also notes that in early 1980 the Applicant underwent surgery in Concord Hospital involving a discectomy at the level of L4/5. Further, the Tribunal observes that there was deterioration in the Applicant's low back condition during the period 1976 to early 1980 as evidenced by his clinical history, including the development of left sided sciatica from March 1976 onwards until relieved by the operation in early 1980. The Tribunal notes and accepts the opinions of Professor Sambrook and Dr Hume that the Applicant's intervertebral disc prolapse was permanently worsened, or contributed to, by the Applicant's work activities during his period of eligible defence service.
51. In considering SoP Instrument No 131 of 1996 as amended by Instrument No 93 of 1997, the Tribunal notes the following definition of trauma to the relevant disc:
" 'trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i)lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping from a height, for example in a parachute jump, or jumping down from a tank; or
(iii)a fall; or
(iv)diving into a body of water; or
(v)participating in sports, for example, football, surfing, gymnastics; or
(vi)spinal manipulation; or
(vii)a motor vehicle accident; or
(viii)a blast explosion; or
(ix)a physical attack."
52. Further, the Tribunal notes both factors 5(g) and 5(j), which state:
"5(g) suffering trauma to the relevant disc at the time of the clinical worsening of intervertebral disc prolapse; or
…
5(j) lifting about 10 kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical worsening of intervertebral disc prolapse;"
53. In addressing both the definition of trauma to an intervertebral disc and factors 5(g) and 5(j), the Tribunal is satisfied on the balance of probabilities that the Applicant's clinical and work circumstances satisfy the necessary requirements of the definition and the requirements of each factor. In so finding the Tribunal has taken into consideration the work and clinical history of the Applicant and the opinions of Professor Sambrook and Dr Hume.
54. In addressing the issue of lumbar spondylosis, the Tribunal observed that the current SoP, Instrument No 28 of 1999 concerning lumbar spondylosis defines trauma to the lumbar spine in the following terms:
" 'trauma to the lumbar spine' means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least 10 days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(b)immobilisation of the lumbar spine by splinting, or similar external agent; or
(c)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(d)surgery to the lumbar spine."
55. The Tribunal notes the following two factors, which are considered relevant to the SoP in relation to satisfying a relationship between the lumbar spondylosis and circumstances of the Applicant's eligible service:
"(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
(h) suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse..."
56. The Tribunal, having considered the Applicant's clinical history, including the discectomy undertaken in early 1980, concludes that the Applicant does satisfy the definition of trauma to the lumbar spine and further, does satisfy the elements of both factors (g) and (h). In so finding the Tribunal acknowledges the opinions of both Professor Sambrook and Dr Miller.
57. As a consequence of the Tribunal's findings, both the Applicant's intervertebral disc prolapse at level L4/5 and his lumbar spondylosis are found on the balance of probabilities to be defence caused injuries/diseases.
hypertension
58. The relevant SoP is Instrument No 32 of 2001 concerning hypertension. The Tribunal observes the definition of hypertension contained within paragraph 2(b) of the Instrument:
"(b) For the purposes of this Statement of Principles, "hypertension" means permanently elevated blood pressure, evidenced by:
(i)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
(ii)the regular administration of antihypertensive therapy to reduce blood pressure.
…"
59. The Tribunal, in addressing the definition of hypertension, notes that the blood pressure must be permanently elevated with the usual blood pressure being greater than or equal to 140 mmHg for the systolic reading and for the diastolic reading greater than or equal to 90 mmHg, or alternatively that there is the regular administration of anti-hypertensive therapy to reduce the blood pressure.
60. In this matter the Tribunal notes the various blood pressure reading contained within the clinical documentation and the nominated readings as referred to by Dr Miller in his report. It is clear to the Tribunal that there were elevated blood pressure readings in February 1975, September 1975, March 1980, February 1986 and July 1988. However, at other periods in his service in March 1975 and August 1977 (Dr Brodziak, a consultant physician) his readings were not elevated. A summary of such readings during service is as follows, with the T reference referring to a page number in the relevant T-document:
Date BP Reading T-document
4.4.67 120/90 T3/48
11.2.75 150/110, 150/100 T3/28
18.2.75 140/82, 140/90 T3/28
25.3.75 102/66 T3/28
20.6.75 140/82 T3/27
24.9.75 150/100 T3/46
20.1.76 140/90 T3/47
21.1.76 135/90 T3/47
14.5.76 118/80 T3/43
2.11.76 150/75 T3/41
3.11.76 128/80 T3/41
29.11.76 128/80 T3/39
20.4.77 130/80 T3/24
3.8.77 138/88 T3/36
26.10.77 130/85 T3/36
11.1.79 130/85 T3/34
5.12.79 170/110 T3/15
14.5.80 132/88 T3/13
61. The Tribunal concludes, following an examination of these readings, that the blood pressure was not permanently elevated during the Applicant's period of eligible service, and while there were at least seven occasions on which elevated blood pressure readings were recorded, there is no evidence in the material before the Tribunal that the Applicant was treated with anti-hypertensive therapy during his period of eligible service.
62. The Tribunal also notes that Dr Miller, in his report of 9 March 2000, considered that the Applicant's blood pressure appeared to be labile. Further, Dr Richard's reports of 16 September 1999 and 29 September 2000 state that the Applicant's blood pressure varied considerably during his service, was often normal and a diagnosis of hypertension was not established then. Dr Richards, a consultant cardiologist considered that the diagnosis of hypertension was established in 1988 when the Applicant commenced regular anti-hypertensive therapy.
63. As a consequence of the considerations undertaken the Tribunal finds that the Applicant did not satisfy the nominated criteria for a diagnosis of hypertension during his period of eligible service. In particular the Applicant did not demonstrate a permanently elevated blood pressure with either a usual blood pressure with a systolic reading equal to or greater than 140 mmHg and/or a diastolic reading which is equal to or greater than 90 mmHg, or alternatively was receiving regular administration of anti-hypertensive therapy to reduce his blood pressure.
64. It is the Tribunal's further finding that the diagnosis of hypertension is established when the Applicant commenced anti-hypertensive therapy in 1988, this being recorded by Dr Richards as the time when such therapy was commenced, and by Dr Miller as being in the late eighties.
65. The Tribunal notes that the Applicant relied upon factor 5(c) contained within instrument No 32 of 2001, which states:
"(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;…"
66. As a consequence of the Tribunal's findings that the clinical onset of hypertension as defined by the SoP did not commence to well after the Applicant's period of eligible service, and despite any findings in the affirmative that the Tribunal may make about the Applicant ingesting at least 15 grams of salt supplements per day on average for a continuous period of at least six months, it is the Tribunal's conclusion that any such ingestion was not immediately before the clinical onset of hypertension. The Tribunal finds that the factor is not satisfied.
In considering other factors, the Tribunal notes that Dr Miller considered that the Applicant's obesity was a contributing factor to the development of hypertension, but further concludes that obesity had preceded his defence service. The Tribunal also notes that the Applicant continued to have weight control issues during his service, with his weight when first presenting for enlistment in April 1967 being recorded at 200lbs, with weight on acceptance in July 1967 being 178lbs, with a height of 70 inches. The Tribunal, in considering all the material before it finds that the Applicant's obesity was established prior to his eligible defence service and that with the clinical onset of the hypertension being in 1988, the Tribunal is satisfied on the balance of probabilities that factor 5(a) is not met.
68. The Tribunal having considered all the factors nominated in paragraph 5 of Instrument No 32 of 2001 concludes that on the balance of probabilities the Applicant is unable to satisfy any particular factor nominated. The Tribunal also examined SoP Instrument No 84 of 1995 concerning hypertension, which was the SoP existing at the time of the primary decision, and similarly concludes that none of the factors nominated are satisfied. The Tribunal concludes that the Applicant's hypertension is not a defence caused disease.In relation to the Applicant's ischaemic heart disease, the Tribunal has already concluded that the diagnosis is well established by the material before the Tribunal. However, the Tribunal has also concluded that hypertension is not a defence caused disease. In considering the relevant SoP, namely Instrument No 141 of 1996 as amended by No 78 of 1997 and further amended by No 38 of 1998, the relevant factor, namely factor 5(a) which states:
"The presence of hypertension before the clinical onset of ischaemic heart disease"
as contended by the Applicant is by virtue of the Tribunal's finding that hypertension is not a defence caused disease, of little assistance to the Applicant. The same factor is reproduced as factor 5(a) in SoP 39 of 1999 (the current SoP concerning ischaemic heart disease).
70. The Tribunal in considering other factors within paragraph five of the ischaemic heart disease instrument, is unable to form a view in the absence of the relevant material having not been adduced before it by the Applicant, nor are such factors detailed with sufficient particularity in any of the documentation placed before the Tribunal. Such comments relate particularly to the issue of his cigarette smoking.
71. As a consequence the Tribunal finds that on the basis of the material placed before it, the Applicant's ischaemic heart disease is not defence caused.
determination
72. The Tribunal determines that the decision under review be set aside and in substitution therefor finds that:
(a) the Applicant's back condition is intervertebral disc prolapse at the level of L4/5, and lumbar spondylosis, and that both injuries/diseases are defence caused; and
(b) the Applicant's hypertension is not a defence caused disease; and
(c) the Applicant's chest condition is ischaemic heart disease, and that this disease is not defence caused; and
(d) the Applicant does not suffer from chronic bronchitis and/or emphysema; and
(e) the accepted defence caused diseases/injuries are remitted to the Respondent for assessment
with the date of effect for the payment of a disability pension being 11 February 1998.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: R Savage .....................................................................................
AssociateDate/s of Hearing 6 November 2000
Date of Decision 10 December 2001
Solicitor for the Applicant Ms J Buchanan
Solicitor for the Respondent Mr Wallis
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