Bradley and Repatriation Commission - [2001] AATA 267

DECISION AND REASONS FOR DECISION [2001] AATA 267

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/371

VETERANS APPEALS DIVISION           )
           Re      VERONICA BRADLEY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date27 March 2001
PlaceMelbourne

Decision      The decision under review is set aside and in substitution IT IS DECIDED that the conditions of hypertension and ischaemic heart disease are war caused.
  ..……Signed. Mr J. Handley.......
  Senior Member
CATCHWORDS
Veteran's Entitlements – applicant consumed salty foods in Korea or bland food to which he added salt – subsequently he consumed grossly excessive quantities of salt with meals – veteran a medical practitioner – hypertension and IHD by salt conceded – whether any 'contribution' by service or whether service 'likely to influence' – decision set aside.
Veteran's Entitlement Act 1986
Repatriation Commission v Bendy 1989 10 AAR 323
Re Repatriation Commission and Quinn (decision number 5834 decided on 23 April 1990)
Lucas and Repatriation Commission 2001 AATA 47
Repatriation Commission v Deledio 1998 49 ALD 193

REASONS FOR DECISION

27 March 2001 Mr J. Handley, Senior Member

The applicant applied to review a decision of the Veteran's Review Board ("VRB") made on 17 November 1999. The VRB then affirmed a decision previously made by the respondent on 14 May 1998 where it was then decided that the conditions of hypertension and ischaemic heart disease were not war-caused.
Regrettably, Doctor Bradley died shortly prior to the hearing of the application. The application then proceeded following an application made by Mrs Bradley under s.126 of the Veterans Entitlements Act 1986. The claim was therefore pursued on behalf of the estate of the deceased.
The hypothesis pursued in the application was that the deceased ingested "an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension (Instrument No 83 of 1995 – Factor 1(c)). According to this hypothesis it followed that the deceased ultimately developed ischaemic heart disease by reason of his hypertension and thereby satisfied Instrument No. 140 of 1996 (Factor 5(a)). The connection with service was said to be the excessive consumption of salt having originated during service by reason of the food made available to Doctor Bradley who served in Korea as a medical officer.
At the commencement of the hearing Mr Herman who appeared on behalf of the respondent conceded that the deceased did satisfy factor 1(c) of Instrument No. 83 of 1995 and that he was hypertensive as defined. No issue was taken with the certified cause of death being "ruptured abdominal aortic aneurism; ischaemic heart disease". The only issue for determination by these proceedings was whether there was a connection between the deceased's service in Korea and his subsequent excessive consumption of salt.
The late Doctor Bradley was a member of the Australian Army between 10 April 1952 and 19 April 1955. He was engaged in operational service in Korea between 12 May 1952 and 11 November 1952. At all relevant times he was a medical officer having previously qualified as a medical practitioner. Subsequent to service he was engaged in private practice as a radiation oncologist.
Mrs Bradley said that she and her husband married in 1960 being approximately 5 years after he was discharged from service. She said there was little discussion between them concerning his service but she was aware that he consumed salt tablets in Korea and commenced to use excessive quantities of salt in his meals. She said that his salt intake "was out of all proportion to what a normal person would use". Mrs Bradley did not work after marriage and prepared all meals. She said she cooked with salt however he kept "adding to it". She recalled that he would pour salt onto the side of his plate in the shape of a pyramid. She said each fork containing food would be placed into the pile of salt, which she estimated to be the equivalent of two teaspoons. She said that the deceased continued to consume salt of similar quantities until he was diagnosed with high blood pressure in the 1980's by Doctor Friedman who instructed the deceased to cease consumption of salt. Apparently Doctor Bradley did cease to consume salt but thereafter used excessive quantities of pepper.
Mrs Bradley said that she frequently discussed with her husband the reasons why he would consume salt in the quantities that he did. She did so because of her concern for his health, having previously qualified and worked as a nurse. She said Doctor Bradley would frequently respond that he consumed salt in the quantities that he did because he "needed it".
Despite having little knowledge about the circumstances of his service career, Mrs Bradley said that she was told by her husband that the meals in Korea were salty and "he had to continue to use it". Mrs Bradley said that prior to commencement of service Doctor Bradley lived with his mother who "was a good cook" and did not use extra salt in meals.
In cross-examination Mrs Bradley re-affirmed that she was concerned as to the quantities of salt that Doctor Bradley consumed and she said that her husband was also aware of the detrimental effect upon his health by his consumption of salt. However she said that "his system needed it and had to keep it going".
Mrs Bradley also re-affirmed that her husband had told her that food in Korea was salty and that he had subsequently become accustomed to the taste of salt. She acknowledged that a history taken by Doctor Cole, a consultant psychiatrist, in the month prior to her husband's death recorded that food was "bland". Mrs Bradley speculated that her husband may have then been suffering from a lack of oxygen, which may have affected his memory at the time of the consultation.
When her husband ceased consumption of salt she said he then started to use ground pepper with his food. She said her husband was a determined person and did not return to using salt.
In answer to questions from me, Mrs Bradley said that when she prepared meals for other persons no-one else consumed salt in the quantities consumed by her husband. She said that her husband "thought he needed it (salt)". She said any other person would find the amount of salt that he consumed to cause food to become inedible.
Mrs Bradley said her husband consumed 3 cooked meals per day. Each she said, involved similar quantities of salt but it was not applied to sweet foods.
She did not observe any signs of withdrawal when he ceased consumption of salt and he did not ever complain.
In answer to further questions from her counsel, Mr Carmody, Mrs Bradley said that she thought that her husband needed salt in Korea because of excessive heat, which caused sweating, and would subsequently cause cramping and other illness.
Edward Cole
Doctor Cole is a consultant psychiatrist who consulted with Doctor Bradley on 4 October 2000. A report was prepared on 13 October 2000 and was received into evidence. The consultation occurred approximately 6 weeks prior to the demise of Doctor Bradley.
Doctor Cole said that he had no history from the deceased of any stress-related illness associated with service. He reported (page 4) that an "excessive amount of salt" was not used prior to service but in Korea the deceased was issued with salt tablets because of humid temperatures and excessive sweating. He said the deceased told him that the tablets were swallowed and that there was no recollection of having tasted them. He had a history that the deceased like to eat bacon and eggs but could not eat egg yolks unless they were "drowned" in salt. He had a history of the deceased informing him that food was "bland". Apparently the deceased commenced to use pepper in large quantities after he was advised by Doctor Freedman to cease using salt and thereafter "he began to use pepper as a salt substitute". Doctor Cole reported that by the time the deceased had left Korea he was "habitually using excessive salt as he had come to enjoy the taste". He reported that the deceased was "not worried in the least about his salt habit as he had reservations about what the experts had to say".
Doctor Cole said in evidence that he understood that salt was used to enhance the taste of food and when a person becomes accustomed to the taste of salt, food, (without salt) then becomes tasteless. He said that the deceased would have had a psychological addiction to salt but not a physical addiction.
In cross-examination Doctor Cole reaffirmed that there was no apparent psychological consequences suffered by the deceased from service. He was satisfied that at the time of the consultation, the deceased was honest and clear in his mind and was also satisfied that "he was on the ball".
Doctor Cole was aware that the deceased commenced to use pepper in excessive quantities as a "substitute" for salt but he did not ask the deceased whether this was an adequate substitute. He said this change of seasoning suggested that an issue for the deceased was the taste of food which was therefore a personal choice.
Doctor Cole agreed with conclusions reached by Ms Allison Wailes, a dietician engaged by the respondent that salt does not provide a chemical addiction.
When asked to comment upon whether the deceased's consumption of salt was by way of addiction or habit, Doctor Cole said that the deceased was "addicted to salt because of habit". He said the deceased had become accustomed to heavily salted food, which he enjoyed and which was tasteless without salt. He associated the deceased's consumption of salt with service because the deceased had told him that the food was tasteless without it. When asked to comment upon the apparent use of salt in moderation prior to service and why then the deceased would then go beyond moderate limits in service, Doctor Cole replied "you will have to ask him".
In re-examination Doctor Cole said that the deceased's habit or addiction to salt was partly because of taste and partly because of the deceased being compulsive.
Documents Exhibited
No other persons were called to give evidence at the hearing, however a number of documents – including witness statements were received into evidence.
The late Doctor Bradley provided a proof of evidence dated 29 March 2000 which relevantly said, in part-
"We were given salt tablets in Korea because of the hot humid climate. To the best of my recollection I took two salt tablets per day whilst in Korea. Many of our foods were preserved and had a salty taste, which I became accustomed to. Other foods were bland and to my best recollection this is when I commence adding salt in large quantities to my food. This was commented on by the two nursing sisters on my first posting after leaving Korea in 1952".
The deceased then recorded in his statement that upon discharge he used large quantities of salt at home with his parents because he did not enjoy the taste of food. He said his brother would comment on the excessive use of salt.
Mr Martin Bradley, the deceased's brother in a proof of evidence of 12 June 2000 said that he recalled the deceased "using excess salt on his food". He said that he and his wife were "staggered at the amount of salt which he applied to his food".
Ms Barbara Smith who was formerly a captain in the Royal Australian Army Nursing Corps said that she was posted to Japan between December 1952 and 1953 and worked beside Doctor Bradley. She said that she noticed and recalled that the deceased "used excessive quantities of salt with each meal to such an extent that we remonstrated with him vigorously but with no obvious effect".
Ms Wailes in a report of 15 December 2000 reported (page 3) that-
"It is generally accepted that the ingestion of salt tablets taken with fluid would not impact on the use of a high level of added salt because it would not be experienced as a salty taste".
She also reported that the
"consumption of salty food or food made salty by large amounts of added salt is the expression of a preference for a salty taste. That the use of salt continues does not indicate an addiction or habit. The preference for salt generally develops at an early age but is easily reversible over a period of some weeks when a strong reason for ceasing the use of salt exists."
Mr Tilbrook of Writeway Research Service, provided a report to the respondent on 19 November 2000. In his report he confirmed that salt tablets were issued to persons in Korea. From enquiries made by him "fresh army meals served to 3 RAR diners in Korea were prepared and cooked with only the minimum quantity of salt, with the onus being on the individual diners to add salt from dispensers on dining hall tables to meet their own personal taste and liking of salt".
Conclusion & Reasons For Decision
I am satisfied that the concessions made by the respondent were properly made. I am satisfied that the deceased was hypertensive as defined and that he did consume quantities of salt in excess of the amount prescribed by Instrument Number 83 of 1995 in the period of 6 months immediately prior to the diagnosis of hypertension.
The issue in this application is whether the increased consumption of salt precipitating hypertension and ischaemic heart disease can be "attributable" to service. As was decided in Repatriation Commission v Law 1980 31 ALR 140 the expression "attributable to" involves an element of causation, and the cause need not be the sole or dominant cause. It is sufficient that the cause be a "contributing cause". Davies J., in Repatriation Commission v Bendy 1989 10 AAR 323 expanded on this analysis when he said that the "contribution" must be of a causal nature, it must be a contribution greater than de minimus, yet it must be "pertinent" or "likely to influence".
In the Tribunal decision of Re Repatriation Commission and Quinn (decision number 5834 decided on 23 April 1990) the Veteran gave evidence of having consumed tea spoons of salt with water during service to counter the effects of heat related stress. Apparently the Veteran said in evidence that he would be subject to disciplinary action if he reported sick because of heat stress and thereafter consumed salt on a regular basis. After discharge from service and when working in his garden at home, he would also consume salt by the teaspoon in the belief that it would counter the effects of excessive sweating.
In Lucas and Repatriation Commission 2001 AATA 47 decided on 29 January 2001 the veteran's evidence was that he chewed salt tablets and had no recollection of ever being instructed to swallow tablets with water. Thereafter the veteran developed a habitual association with salt and applied it liberally to food.
In the present application it is clear that the deceased commenced to consume grossly excessive quantities of salt during service which continued for many years subsequently until such time as he was advised by his doctors to cease its consumption because of its probable contribution to his high blood pressure. The consumption of salt by the deceased in this application is remarkable because of the apparent (historically) well known relationship between salt consumption and hypertension, yet the deceased – a qualified medical practitioner – not only continued to consume large quantities of salt but "had reservation about what the experts had to say".
Mr Herman submitted that the use of salt could be distinguished from the consumption of alcohol and tobacco which is well known as being addictive thereby causing a dependence. The most that could be said of the deceased's circumstance is that he consumed salt by way of habit or custom.
Mrs Bradley said that she understood her husband's food in Korea was excessively salty. Doctor Cole said that he had a history from Doctor Bradley that the food in Korea was bland. Doctor Bradley in his proof of evidence said "many of our foods were preserved and had a salty taste, which I became accustomed to. Other foods were bland and to my best recollection this is when I commenced using salt in large quantities to my food".
Doctor Cole said he agreed with comments made by Ms Wailes that salt was not addictive in a physical sense but there was a psychological addiction to salt "because of habit". He said the deceased was accustomed to heavily salting his food, which he enjoyed but which was tasteless without it. It followed, according to Doctor Cole, that there was a relationship with service because food in Korea was tasteless without salt and thereafter the deceased developed a habit for salt, which was applied excessively to meals. This response was later qualified by him, adding that the deceased was apparently also compulsive.
There would appear to be on the one hand a conflict in the evidence as to whether the food in Korea was or was not salty, yet this will not be determinative of whether a hypothesis has been raised. What is beyond doubt is that the deceased did not consume salt in equivalent quantities when he lived at home prior to service but did pursue consumption of grossly excessive quantities of salt subsequent to service. Whilst salt consumption may not necessarily be chemically addictive I am satisfied that the subsequent habit of salt consumption was likely to have been influenced (refer Bendy) by service.
As I reflect on the evidence I regret the absence of an analysis of the reasons for salt consumption as was heard and reported in Re Quinn. In that case evidence was heard from prominent physicians who had researched the effect of salt upon diet and subsequent effects upon health. Comment was also made as to whether salt consumption was addictive or habitual. I can appreciate that the respondent in the present application had taken the view that the deceased's consumption of salt was by way of preference or custom and that it had no connection with service. However, whether salt does have any addictive property is not an issue upon whether this application will rise or fall because there can be little doubt that the deceased did consume grossly excessive quantities of salt, commencing from his service in Korea and which endured for many years subsequently. Whilst Re Quinn was concerned as to whether there was a hypothesis between salt consumption and hypertension I can do no better than quote from part of the decision at paragraph 34 where Deputy President McMahon decided-
"In my view the large amount of salt consumed combined with the evidence of early onset of high blood pressure indicates that the habit borne in war-time must be regarded as "likely to influence" the subsequent phenomenon of Mr Quinns persistently high blood pressure. This is not a case such as one commonly encounters where a veteran alleges salty food in the mess or even salt tablets as the relevant causative factor. Here there is an organised, required quite abnormal ingestion of large quantities of raw salt, which according to the evidence has a direct bearing on the veteran's condition. The factual basis for the conclusion has, in my view been well and truly established in this case".
If it is not sufficiently clear from the above I am satisfied that the consumption of salt by the deceased subsequent to his service in Korea – in the grossly abnormal quantities as described – establishes a sufficient connection with his service. That is, the consumption of salt was likely to have been influenced by the Korean service. In particular, the consumption, in Korea of foods were either excessively salty or bland to which salt was added. It is a hypothesis "pointed to" by the facts.
In Repatriation Commission v Deledio 1998 49 ALD 193 at 206, four stages were prescribed which required satisfaction before a hypothesis could be said to be reasonable connecting service with injury.

In the present case I am satisfied that the first two stages are satisfied, namely that a hypothesis is pointed to by the facts connecting service with hypertension and ischaemic heart disease. As may be gleaned also from the foregoing there are relevant and applicable Statements of Principles.
Insofar as stage 3 is concerned, I am satisfied that the hypothesis is reasonable. This is because I am satisfied that the hypothesis fits the "template" found within the Statement of Principle by reason of the relevant factors existing as a minimum. The material points to a connection between service and injury, which cannot be said to be contrary to proved or known scientific facts nor fanciful.
Insofar as the fourth stage of Deledio is concerned – applying section 120(1) - I am not satisfied, beyond reasonable doubt that the death of the late Doctor Bradley was not war-caused.
Entitlement to veteran's pensions is fundamentally beneficial in nature and excludes only those applications, which are fanciful or unreal or inconsistent with known facts. In all of the circumstances I am satisfied that the decision under review should be set aside and in substitution therefore it is decided that the conditions of hypertension and ischaemic heart disease are war caused.

I certify that the preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member.
Signed:         ....Carolyn Irons .............................................
  Secretary
Date/s of Hearing  1 March 2001
Date of Decision  27 March 2001
Counsel for the Applicant        Mr Carmody
Solicitor for the Applicant         Williams Winter & Higgs
Counsel for the Respondent    Kevin Herman
Solicitor for the Respondent    Departmental Representative