Buckley and Repatriation Commission

[2002] AATA 1286

DECISION AND REASONS FOR DECISION [2002] AATA 1286

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/495

VETERANS' APPEALS DIVISION          )          
           Re      VERONICA MARY BUCKLEY    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr B J McCabe, Member  

Date13 December 2002

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.          

...................(Sgd)......................
  Mr B J McCabe
  Member
CATCHWORDS
VETERANS' AFFAIRS – war-widows' pension – entitlement – whether death of veteran causally related to war-service - hypertension - whether reasonable hypothesis established connected war-service with applicant's salt intake
Veterans' Entitlements Act 1986

REASONS FOR DECISION

13 December 2002 Mr B J McCabe, Member              

Introduction

1. The applicant in these proceedings is Mrs Veronica Buckley. Mrs Buckley has applied for a war widows' pension under the Veterans' Entitlements Act 1986.

2. Mrs Buckley is the widow of the late Kevin Martin Buckley, a veteran of World War II. Mr Buckley died on 20 November 1998. The death certificate lists bronchial pneumonia as the cause of death. Mrs Buckley says the underlying cause of death was vascular dementia. She says that condition was brought on by hypertension caused by excessive salt consumption that began when he was in the services. The respondent says the death of the veteran was not service-related, so no entitlement to a pension arises.

3. The issue in dispute between the parties was whether the evidence established the late veteran was consuming enough salt prior to the onset of hypertension to satisfy Clause 5(c) of Statement of Principles No 31 of 2001.

4. The applicant initially claimed alcohol consumption was a factor in the veteran's hypertension and death. That aspect of the claim was abandoned at the outset of the hearing.
   The Material before the Tribunal

5. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It heard oral testimony from the applicant, who also provided two written statements. The applicant's brother, Mr John Hennessy, also gave evidence. His written statement was read into the record. Mr Hennessy's statement was prepared in haste immediately prior to the commencement of the hearing: an earlier statement that was not tendered in evidence discussed the late veteran's alcohol consumption. The respondent did not have the opportunity to consider the fresh statement in detail before cross-examination, but there was no request for an adjournment. The respondent did not call any witnesses. It filed a medical report of Dr Grant dated 3 June 2002.

6. The applicant was represented by Mr O'Gorman of counsel. The respondent was represented by Mr Smith.
   The Legislative Framework and the Statements of Principles

7. The applicant must establish the veteran's death was war-caused in order to qualify for a war widows' pension. Section 120(1) of the Veterans' Entitlements Act 1986 (the VEA) says the Commission:

   "shall determine that the injury was a war-caused injury… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

1. Section 120A requires the reasonableness of the hypothesis to be tested against the relevant statement of principles issued by the Repatriation Medical Authority. The relevant statements of principles in this case are those relating to cerebrovascular accident (SoP 30 of 2002) and hypertension (SoP 31 of 2001).

2. Mr O'Gorman pointed out one of the factors that raised a reasonable hypothesis of cerebrovascular accident was hypertension (see clause 5, SoP 30 of 2002). It was therefore appropriate to concentrate on the factors set out in clause 5 of SoP 31 of 2001.

3. Clause 5 of SoP 31 of 2001sets out the factors that must exist before it can be said there is a reasonable hypothesis connecting the circumstances of service with hypertension or death from hypertension. One factor is evidence of alcohol abuse. Another (at clause 5(c)) is excessive salt intake. The Statement of Principles reads:

   "(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".

1. It is therefore necessary for me to determine as a matter of fact whether the veteran was consuming large amounts of salt immediately before he developed hypertension.
   The Factual Background

2. Mr Buckley served in the Australian Army between 22 July 1942 and 3 October 1946. He served in New Guinea during that time. There is no dispute he was on operational service.

3. Mrs Buckley did not meet the applicant until 1966. They married in 1969. She said she observed her husband using a lot of salt on his meals. He would add salt to every meat dish and to vegetables and salads. He always put salt on his tomato sandwiches for lunch. She said this came on top of the salt she used in her cooking in the ordinary course. The applicant says she went through the contents of a salt shaker each day. Mr Hennessy confirmed this evidence. He met Mr Buckley through his sister in the late 1960s, and came to know him well during the 1970s. He said he saw the late veteran use the salt shaker every meal. Mr Buckley would shake the salt shaker several times over his meal at the start and at least once more during the course of the meal. Mr Hennessy said he was a heavy salt user himself. He added Mr Buckley certainly used more salt than a normal person. 

4. Mr Smith pointed out in his cross-examination of Mrs Buckley that it must have been difficult to determine precisely how much salt was being used. He was suggesting it would be difficult to establish the late veteran had been ingesting at least 12 grams of salt each day.

5. I am satisfied the late veteran was consuming at 12 grams of salt each day during the time he knew the applicant. I accept it is difficult to be precise as to the amount he consumed, but I am satisfied from the descriptions of his salt consumption that it was at least 12 grams during that period.

6. It is not enough to establish the veteran consumed upwards of 12 grams of salt each day, of course. It must be established the salt consumption was related to his war service. The Tribunal must also be satisfied he was consuming the requisite amount of salt within six months prior to the onset of the hypertension.

7. The applicant said in her statement of 27 May 2002 that she had been told her husband consumed salt tablets while he was in the Army. Mr Hennessy says soldiers in the tropics were ordered to consume salt tablets regularly because they sweated so heavily. (I note Mr Hennessy did not serve in New Guinea alongside the veteran. He was in the navy from 1954 for six years and subsequently served in the Air Force in Vietnam and elsewhere in Asia.)

8. Mr Smith acknowledged that soldiers in the tropics did consume salt tablets, but it was not clear how much salt the veteran consumed, or whether he took salt regularly.

9. The applicant also said in her statement that her husband consumed bully beef. Bully beef was preserved in salt because of the difficulties associated with refrigeration. There was no evidence provided on the salt content of bully beef, but I am prepared to assume it had a relatively high salt content because it was preserved in salt. Once again, Mr Smith pointed out there was no evidence about how much bully beef was consumed by the late veteran.

10. Mr O'Gorman referred to a report prepared by a Dr Kenardy in September 2000. The report considered the causes of salt consumption and over-consumption. Mr Smith acknowledged the respondent has made use of the report in the past and found it be reliable. Dr Kenardy concludes there are physiological explanations for salt appetite, but an individual might also develop a psychological or hedonic preference for salt in some circumstances: at p5 of the report. The report says a person who consumes the same amount of salt over a 2-4 month period might develop an enduring preference for that level of salt consumption (at 5). The report added, however, that an hedonic preference is not the same thing as an addiction: at 6. Interestingly, the report concludes (at 5, 12) that ingestion of salt in tablet form does not have any effect on salt preference – in other words, taking salt tablets will not cause an individual to become accustomed to using more salt with his or her meals. The report also indicated that salt preferences were innate, and developed early in life: at 9.

11. The applicant relied on the contents of the report but it does not help her case. It suggests, in effect, the veteran's consumption of salt tablets during the war did not cause his high level of salt intake in later years. The only possible explanation for the development of this salt preference was the consumption of bully beef, but there was no evidence about how much bully beef was consumed and whether it contains sufficient salt to cause the formation of an unhealthy preference.

12. I am also unable to conclude that the high level of salt intake evident in the 1960s and beyond was present when the veteran developed hypertension. The veteran was examined upon his discharge and the medical records do not show any evidence of hypertension. The respondent acknowledges the veteran developed hypertension at some point prior to 1966 when the applicant knew him. But Mr Smith pointed out it is impossible to fix the date of onset of the hypertension within that twenty year period. It is therefore impossible to know whether the veteran was consuming the requisite amount of salt immediately prior to that (unknown) date.

13. I agree with the respondent. The evidence does not establish the late veteran's preference for large amounts of salt was formed during the course of his service in the Army. The preference may have emerged previously or subsequently. The evidence does not establish the veteran was consuming salt prior to the onset of hypertension. It may be that his hypertension was brought on by something else, like excessive alcohol consumption.
    Conclusion

14. I am unable to conclude the late veteran satisfies the relevant statement of principles. The applicant's claim must therefore fail.

1. The decision under review is affirmed.

   I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

   Signed:         Sarah Oliver
     Associate

   Date of Hearing  6 December 2002
   Date of Decision  13 December 2002

   Counsel for the Applicant        Mr D O'Gorman
   Solicitor for the Applicant         Gilshenan and Luton
   Solicitor for the Respondent    Mr M Smith, Departmental Advocate