BUCHANAN and REPATRIATION COMMISSION
[2010] AATA 703
•15 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 703
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3998
VETERANS' APPEALS DIVISION ) Re ROBERT BUCHANAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Roslyn Blakley, MemberDate15 September 2010
PlaceMelbourne
Decision The Tribunal:
1. sets aside the decision under review and in substitution decides that the Applicant suffers from hypertension which is war-caused; and
2. remits the application to the Respondent for assessment of pension with effect from 1 April 2008.
John Handley
Senior Member
VETERANS' ENTITLEMENTS – hypertension – whether war-caused – operational service in Vietnam ‑ salt consumption ‑ whether ingestion of 12 grams of salt supplements per day continuously for 6 months before clinical onset of hypertension.
Veterans’ Entitlements Act 1986 (Cth) s 9, s 196B(14)(b), s 120, s 120A
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
REASONS FOR DECISION
Mr John Handley, Senior Member 15 September 2010
Dr Roslyn Blakley, Member
1. Mr Buchanan, the Applicant in these proceedings, applies for a review of a decision made by the Veterans' Review Board (the VRB) on 22 July 2009. The VRB affirmed a decision previously made by the Respondent to refuse his application to have hypertension accepted as war-caused.
2. The Applicant served with the Australian Army between July 1966 and July 1991. He served in Vietnam between 11 March 1971 and 9 March 1972 and this period constitutes operational service as defined in s 6C of the Veterans’ Entitlements Act 1986 (the Act). .
3. The Applicant submitted that his hypertension arose out of, or was attributable to his service and is therefore, war-caused as defined in s 9 of the Act. He also argued that a reasonable hypothesis existed between service and hypertension by the ingestion of salt supplements during operational service.
4. Section 120 of the Act provides that a disease or injury will be war-caused unless the decision-maker is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a Statement of Principles (SoP) in force that upholds the hypothesis. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Federal Court set out a four-step process to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act.
5. The Applicant relied on factor 5(c) of Instrument Nº 35 of 2003, the SoP concerning hypertension. Although the SoP was amended on two occasions, factor 5(c) was not and it remained in force at the date of the hearing of this review.
6. Factor 5(c) is reproduced as follows:
. . .
(c)ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension…
7. The expression salt supplements is defined at paragraph 8 of the SoP as follows:
“salt supplements” means salt added to food when cooking or eating, or salt contained in salt tablets…
8. At the commencement of the hearing, counsel for the Respondent conceded the diagnosis of hypertension. We are satisfied that the concession is properly made having regard to a summary of blood pressure readings contained at paragraph 14 of the Statement of Reasons of the VRB. That summary is based on the Applicant’s service medical records. We are satisfied that the blood pressure recorded on 30 October 1990 and subsequently satisfies the definition of hypertension in paragraph 2(b)(i) of Instrument Nº 35 of 2003. Subsequent instruments have not altered the definition.
9. The parties agreed that the clinical onset of hypertension was 30 October 1990. The blood pressure then recorded (130/100) is found within a medical board examination of that date (Exhibit A6).
10. It was also agreed that in the event the Applicant succeeded in this review, the application should be remitted to the Respondent for assessment of the rate of pension. Any increase will take effect from 1 April 2008 (six months before the application for review was lodged with the VRB in accordance with s 177(2) of the Act).
11. The issues remaining were whether the Applicant consumed 12 grams of salt supplements per day on average for a continuous period of six months before the clinical onset of hypertension and whether the consumption is related to service as determined by s 196B(14) of the Act.
EVIDENCE
Applicant
12. During the hearing the Applicant produced a vial of salt which he said weighed 12 grams. He said it was measured by a local pharmacist using an electronic scale. When the vial was compared to another vial held by the Tribunal containing 15 grams of salt, counsel for the Respondent conceded that the vial produced by the Applicant did contain 12 grams of salt (Transcript, p 14).
13. The Applicant adopted a statement taken from him on 6 October 2009 (Exhibit A2) save for a subsequent alteration in the rate of pension being an increase to 100 per cent from 50 per cent of the general rate because of a number of other accepted conditions.
14. The Applicant enlisted with the Army at the age of 19. He said prior to enlistment he enjoyed a diet at home, of cereals at breakfast with an occasional cooked meal. Lunch at school usually comprised sandwiches which were also consumed during weekends. The main evening meal was usually meat and vegetables. He said he occasionally used salt with his meals which he estimated to be a sprinkle.
15. At enlistment he commenced at Point Nepean Barracks in the Officer Cadet School. He enjoyed three cooked meals each day. Salt was added to the meals but he described the quantity as minimal. He later transferred to the 2nd Signal Regiment in Melbourne where he again consumed three cooked meals per day without any change in the pattern of his salt consumption.
16. After approximately 12 months, the Applicant was transferred to Papua New Guinea as a Lieutenant and was engaged as a signals officer. He was responsible for 40 Pacific Island soldiers and most of his time was spent either in an office or in a classroom. He said air conditioning was not available but the building where he worked was bordered on three sides by the sea and was ventilated by sea breezes. He consumed two salt tablets per day that he advised were provided on parade daily, along with anti‑malarial tablets. Three cooked meals were provided each day. Breakfast included eggs, bacon and sausages. Lunch and dinner consisted of meat and vegetables, with occasional salads, depending on the availability of fresh vegetables. Salt was added by him to his meals in an amount that he described as modest. He recalled the salt in shakers on the tables was hardened because of humidity. He said he picked out lumps of salt, crushed it between his fingers and sprinkled it over his food.
17. After serving in Papua New Guinea, he returned to Melbourne in late 1970 for approximately two months leave. While in Melbourne he said he and his wife often ate out. With his parents and parents-in-law (who he described as typical Australian families), he consumed meat and vegetables (Transcript, p 10). The Applicant suggested that his salt consumption decreased because he was using a salt shaker rather than his fingers.
18. The Applicant was transferred to Vietnam on 11 March 1971 where he served until 9 March 1972. He was engaged as a Troop Commander and was frequently required to lift heavy radios and generators because he was responsible for providing communications for troops. Most of his duties were undertaken outdoors, at or near the Horseshoe in Vung Tau. Some duties were also undertaken at Nui Dat.
19. When the Applicant was away from base during his service in Vietnam, he received a ration pack daily. The pack was made up of three meals. Two or three sachets of salt were also included in the pack which he used on his meals.
20. The Applicant said when he was at base he consumed three cooked meals per day which were served onto eight inch diameter dinner plates. The Applicant recalled that he drastically increased his consumption of salt in Vietnam because he was sweating profusely as a result of the climate and physical exertion (Transcript, p 12). He also recalled a Warrant Officer saying to him and others when he was a cadet at Point Nepean Barracks that consumption of salt will avoid cramping and that salt will save your life ‑ don’t waste salt ‑ make sure you use it all (Transcript, p 12).
21. When he consumed meals in the Officers’ Mess, the Applicant recalled using a four inch salt shaker with holes in its top. He also recalled that the salt shaker had rice within it to absorb moisture to allow salt to be free flowing. He said he would liberally cover food on his plate at each meal with salt. He said when his plate was lifted off the table at the completion of his meal there would be a ring of salt where his plate had been.
22. The Applicant said that the meals consumed in Vietnam were sourced from US stores and were unpalatable without salt. He said breakfast usually comprised of scrambled eggs reconstituted from powdered eggs. Lunch was usually cooked vegetables and meat which was mostly tinned. The evening meal also comprised vegetables and meat, with fruit on occasions. The Applicant was able to enjoy a supper in the Officers’ Mess which he prepared. Supper consisted of scrambled eggs (reconstituted from egg powder) on toast. He said he added salt to it. On occasions when the Applicant worked 24 hour shifts, he would consume four or five meals per day. All of those meals were cooked to which salt was liberally added.
23. The Applicant estimated that one teaspoon of salt would have been added by him to each meal consumed. He provided a sample of one teaspoon of salt in a plastic bag (Exhibit A8) and said that three level teaspoons of salt weighed 12 grams.
24. In addition to salt added by him to meals, the Applicant also used Tabasco and Worcestershire sauce. He carried his own bottle of Tabasco in his pack when he left base, together with his own pack of salt, both of which he used on meals. Worcestershire sauce was used by him in the Officers’ Mess.
25. After the Applicant returned from Vietnam he remained a member of the Army until 1991. He continued to consume three cooked meals per day provided by the Army and continued to use salt in the same quantity as he used in Vietnam. He also used Tabasco and Worcestershire sauces and stock cubes when employed on field duties or deployed on exercise, each of which contained salt.
26. In cross examination the Applicant acknowledged that salt was applied to his meals in Vietnam because the food was bland and mostly tasteless. He said again that he used salt because he was sweating excessively and because of the advice he received during his training at Point Nepean.
27. The Applicant acknowledged that he consumed two salt tablets per day in New Guinea and in Vietnam. He said that he needed more salt in Vietnam because he was engaged in more physical work. He agreed that he could have, but did not, take more than two salt tablets per day in Vietnam because he believed the salt he added to his food was adequate. The Applicant acknowledged that salt consumption was, in part, his personal choice.
28. The Applicant said the consumption of salt after he returned from Vietnam became habitual. He acknowledged that the food in Australia was superior to the food consumed in Vietnam. Nonetheless, he continued to salt his food before he tasted it and on occasions, added salt after he tasted it.
29. Between approximately 1987 and 1991, prior to his discharge from the Army, the Applicant cooked meals at home from time to time. He initially cooked with salt but the quantity that he used was unpalatable to his wife and children. He responded to their protests and eventually cooked without salt but continued to add salt to his own meals (within this period – 1990 – the Applicant suffered the clinical onset of hypertension).
30. In the six months prior to the clinical onset of hypertension, the Applicant said he had cooked breakfasts on weekends and sometimes during the week. He said he continued to apply salt in the same quantity as he did in Vietnam.
31. A typical lunch at work comprised a salad that he would bring from home with preserved meat. The salad contained radish, tomato, celery and cucumber which he would dip into a plate of salt. On occasions he would have a cooked lunch in the Officers’ Mess and again, he would add salt. On some occasions he would buy potato chips from a local take away food store and apply salt. An evening meal at home was usually cooked and salt would be applied to it.
32. The Applicant continued to use Worcestershire sauce, especially at home. He mainly used it on meat on three or four occasions per week.
Robert Kenardy
33. The Applicant relied on a report of Justin Kenardy (PhD) prepared in September 2000 (Exhibit A1). Dr Kenardy is a clinical health psychologist and Deputy Director of the Centre of National Research on Disability and Rehabilitation Medicine and Professor of Clinical Psychology at the University of Queensland. Dr Kenardy reported on the physiological and psychological effects that determine salt consumption. He concluded that there is a physiologically driven need for salt. However, an increase in salt in-take after a period of consuming higher amounts of salt is due to a hedonic preference rather than a physiological need. He explained hedonic preference as follows (at 5-6):
Hedonic preference
A hedonic, or psychological preference for salt is due to exposure and learning, rather than due to the body being in a state of sodium depletion. Sensory or hedonic preferences for particular intensities of salt develop over a period of time. Ordinarily these preferences take about 2-4 months of consuming a particular quantity of salt on a daily basis to produce an enduring preference (Capaldi, 1996). These changes in salt preferences can be formed for both increases and decreases in daily salt intake and concentrations.
Experiments by Beauchamp and colleagues (Beauchamp, 1987; Bertino, Beauchamp & Engelman, 1986) show that increases in salt intake following repeated exposure to higher salt diets indicate an underlying process that it purely sensory or hedonic (for the pleasure of the flavour) rather than because of a physiological need, or dependence on salt. Giving subjects a 10g/day increase of salt in the form of table salt on food, over six weeks, increased their preference for higher concentrations of salt on foods. However, subjects given an increase of 10g of salt per day in the form of a salt tablet (which does not carry the same taste qualities) did not increase their desire for higher salt intensities in soup or crackers.
This indicates that preferences for salt following high-salt diets are due to altered sensory experience with salt, and hedonic factors, not due to a physiological response to large amounts of sodium consumed (Bertino, et al., 1986).
SUBMISSIONS
34. At the conclusion of the Applicant's evidence and before either representative delivered closing submissions, we indicated that we were prepared to find as a fact that the Applicant did ingest 12 grams of salt supplements per day on average for a continuous period of at least six months, immediately before the clinical onset of hypertension.
35. The reasons for making that finding will be referred to later when we discuss the analysis required under the principles decided by the Full Court in Deledio at 97. The closing submissions were therefore confined to the issue of connection between service and salt consumption, addressing the fourth step in Deledio.
36. Ms Bornstein, on behalf of the Applicant, submitted the Applicant was conscious from his training to ensure that he consumed an adequate quantity of salt to avoid cramping. This was particularly so, given the advice he received as a junior cadet officer at Point Nepean.
37. It was submitted that unlike Papua New Guinea, there was a need for an increased level of salt intake in Vietnam. In Vietnam, the Applicant was required to maintain a greater level of fitness and his duties were more demanding, compared to his duties in Papua New Guinea which largely involved classroom and office work. Additionally, the Applicant was exposed to a climate in Vietnam far different to that in New Guinea and in Vietnam he did not enjoy sea breezes. The climate and the nature of his duties caused him to sweat much more than he did in Papua New Guinea. Hence, the need for salt supplements in Vietnam.
38. Ms Bornstein acknowledged that the Applicant did apply copious quantities to his food in Vietnam in order to make it palatable. She also submitted that the increase in salt consumption was caused by the advice he received during training to maintain his salt content and the change in the nature of his service in Vietnam. The climate in Vietnam together with the physical demands placed on him in Vietnam required an increase in salt in-take. Consistent with the conclusions found in the Kenardy report, the Applicant’s increased salt consumption during Vietnam altered his sensory experience with salt and produced a hedonic preference for it. This preference continued well after he completed his service in Vietnam. Therefore, it was submitted, the applicant’s hypertension was caused by his salt in-take which arose out of, or was attributable to his war-service.
39. Mr Crowe on behalf of the Respondent submitted that the Applicant did not consume 12 grams of salt supplements per day as required by factor 5(c). Alternatively, even if he did consume the required amount of salt, he did so by reason only of his personal taste and his personal choice. He said there was no need for the Applicant to consume salt in the quantities that he did after service. Mr Crowe further submitted there was no connection between service and hypertension.
40. The parties agreed that we ought to consider s 196B(14)(b) of the Act to determine whether the factor causing the injury or disease is service related. That is, whether the salt ingestion arose out of, or was attributable to service in Vietnam. We were also urged to follow the High Court decision Roncevich v Repatriation Commission (2005) 222 CLR 115 where the meaning of arose out of and attributable was discussed. We will refer to it later in our conclusions.
CONCLUSION
41. Before proceeding with an analysis under the four-step process set out in Deledio, we must identify on the balance of probabilities the injury or disease suffered by a veteran which is said to be war-caused.
42. In the present application the Applicant claims hypertension. That condition has been conceded. As a fact, we are also satisfied that the Applicant suffers hypertension and the concession made by the Respondent is properly made.
43. The hypothesis advanced by the Applicant was that his hypertension was caused by his excessive ingestion of salt during service. The material lodged with the Tribunal and examined in these proceedings, specifically the evidence of the Applicant, points to a hypothesis connecting hypertension with the circumstances of his service.
44. There is a SoP in force namely, Instrument No 35 of 2003. It has subsequently been amended but the relevant factor, 5(c), remains unaltered.
45. Accordingly, the first two stages of Deledio are satisfied.
46. The consumption of salt is consistent with factor 5(c) in the SoP concerning hypertension. The hypothesis contains one of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist before a reasonable hypothesis can be said to have been raised connecting hypertension with service. It is consistent with the template found within the SoP and it is therefore, a reasonable hypothesis.
47. The real focus of this review is the fourth step of Deledio. Only at that stage will findings of fact be made. In this case, we must determine whether the Applicant did consume at least 12 grams of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension. We must then determine whether the salt consumption was related to service (refer s 196B(14) of the Act).
48. The Applicant produced a vial of salt which he said weighed 12 grams as certified by a local pharmacist. Counsel for the Respondent conceded during the hearing that 12 grams of salt was contained in the vial. He asserted that three teaspoons of salt weighed 12 grams as demonstrated by the sample of 1 teaspoon of salt (Exhibit A8). The Applicant estimated that he applied one teaspoon of salt on each of the meals he consumed each day in Vietnam. We accept the Applicant’s evidence about the quantities of salt he added to his food based on the vigour with which salt was applied and the salt that remained on the table after his plate was removed. This indicates to us an excessive use of salt. We also note that the Applicant used sauces to flavour meals which would have contained salt. The Applicant generally had three meals per day in Vietnam but there were also occasions when he consumed up to five meals per day. On the basis of the Applicant’s evidence and the samples of salt presented, we are satisfied that as a minimum, he consumed 12 grams of salt per day during Vietnam.
49. We are also satisfied that the Applicant continued to use excessive amounts of salt after his service in Vietnam. While in the Army he carried a container of salt with him, together with Tabasco sauce. Until 2005 he added salt to his food before and after tasting it. He also said that he dipped salad vegetables in salt before consuming them.
50. The Kenardy report was not challenged. We note from the extract of the report that a period of high salt intake causes an altered sensory experience which results in a hedonic preference for a high salt diet. We accept that the Applicant’s high salt intake in Vietnam caused him to consume excessive amounts of salt well after his operational service.
51. If the Applicant consumed more than two salt tablets per day, he would not have achieved the same sensory experience and hedonic preference. We reject the contention of the Respondent that the same response could have been achieved by consuming more than two salt tablets per day rather than additional salt being added to his food. We are therefore satisfied that only the ingestion of salt supplements being the salt added by the Applicant to his food, was responsible for his altered sensory experience as described by Dr Kenardy.
52. We accept the Applicant to be a witness of truth and we are satisfied that following his service in Vietnam he continued to apply salt to food despite it being of a superior quality. On his evidence there was no change in his salt consumption.
53. We are satisfied that for a continuous period of six months immediately before the clinical onset of hypertension in October 1990, the Applicant consumed salt supplements of at least 12 grams per day, on average.
54. The next issue to be determined is whether a causal link exists between the Applicant’s salt consumption and his service. Section 196B(14) of the Act provides that a factor within a SoP (refer s 196B(2)) that is said to cause or contribute to an injury or disease is related to service if it satisfies any one of its alternate circumstances. In the present application, emphasis was given to s 196B(14)(b) namely, that the ingestion of 12 grams of salt supplements per day on average consumed for six months before the clinical onset of hypertension (the factor) arose out of or was attributable to service.
55. In Roncevich the High Court considered the meaning of the words arose out of, or attributable to in the context of s 70(5) of the Act. The Court, by majority decided (at [27]): I added to the quote
The use disjunctively in s 70(5) of the expressions "arose out of" and "attributable" manifest a legislative intention to give "defence-caused" a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connection is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.
56. A similar conclusion was reached in Law v Repatriation Commission (1980) 29 ALR 64 where Toohey J decided that the words arose out of, or was attributable to should not be interpreted as if meaning caused by. Having regard to the objective of the legislation, the expression arising out of required a less proximate relationship to the injury. The decision of Toohey J was ultimately upheld by the Full Court of the Federal Court in Repatriation Commission v Law (1980) 31 ALR 140 and the High Court in Repatriation Commission v Law (1981) 36 ALR 411.
57. We are satisfied that the ingestion by the Applicant of an average of 12 grams of salt per day for a continuous period of six months before the clinical onset of hypertension, arose out of, or was attributable to his service.
58. The Applicant did use copious quantities of salt on his food in Vietnam. He emphasised on a number of occasions when giving evidence that the advice given to him as a junior cadet at Point Nepean about the need to consume salt resonated with him. That was especially so when serving in Vietnam where he performed exertive work and sweated profusely. We accept the Applicant’s evidence that the nature of his service in Vietnam caused him to increase his salt intake. The climate, together with the physically demanding work expected of him, caused concern about salt depletion. The food was also bland and this caused him to use excessive salt to make the food palatable. The residue of salt remaining after his plate was removed, almost as if his plate was a stencil, reassures us of the quantity of salt applied at each meal. We are satisfied that the Applicant’s increased salt consumption arose out of or was attributable to his operational service.
59. We therefore, cannot be satisfied beyond reasonable doubt that the hypertension suffered by the Applicant is not war-caused. A reasonable hypothesis has been raised connecting hypertension with the circumstances of the Applicant's service. The hypothesis has been upheld by the relevant SoP. The application must succeed at the fourth Deledio stage.
DECISION
60. The Tribunal:
(a)sets aside the decision under review and in substitution decides that the Applicant suffers from hypertension which is war-caused; and
(b)remits the application to the Respondent for assessment of pension with effect from 1 April 2008.
I certify that the sixty [60] preceding paragraphs are a true copy of the reasons for decision herein of
Mr John Handley, Senior Member and
Dr Roslyn Blakley, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 26 July 2010
Date of Decision 15 September 2010
Counsel for the Applicant Ms J. Bornstein
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr A. Crowe
Solicitor for the Respondent Department of Veterans’ Affairs
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