Budge and Repatriation Commission
[2014] AATA 276
•8 May 2014
[2014] AATA 276
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/4262
Re
Jean Budge
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member J Toohey
Date 8 May 2014 Place Sydney The Tribunal affirms the decision under review.
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Senior Member J Toohey
CATCHWORDS - VETERANS ENTITLEMENTS – claim for war widow’s pension – operational service – kind of death – hypertension – salt intake – no reasonable hypothesis raised on the material – decision under review affirmed
Legislation
Veterans Entitlement Act 1986 ss 8, 13, 120, 120A
Administrative Appeals Tribunal Act (1975) s 37
Cases
Repatriation Commission v Deledio(1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408 and 414
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Gorton [2001] FCA 1194
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
Bull v Repatriation Commission [2001] FCA 1832
REASONS FOR DECISION
Senior Member J Toohey
Background
Mr Neville Budge served in the Australian Army from July 1940 to November 1945. The whole of his service is operational service for the purposes of the Veterans Entitlement Act 1986 (the Act).
Mr Budge died on 8 September 2010 at the age of 89. His widow, Mrs Jean Budge, claims a war widow’s pension. She contends that Mr Budge developed a lifelong preference for high levels of salt in his diet as a result of his operational service, that his high salt intake led to his hypertension and, in turn, to his death from acute renal failure or ischaemic heart disease.
No issue arises in these proceedings as to the kind of death Mr Budge suffered for the purposes of the Act. It is agreed that, whether he died from acute renal failure or ischaemic heart disease, Mrs Budge’s claim rests on whether or not his hypertension was related to his service.
Legislative framework
By s 13 of the Act, Mrs Budge will be entitled to a pension if her husband’s death was “war-caused” as defined by s 8.
As Mrs Budge’s claim arises out of her husband’s operational service, the question of whether his death was “war-caused” must be assessed according to the “reasonable hypothesis” standard of proof set out in ss 120 and 120A of the Act. In effect, I must determine that Mr Budge’s death was war-caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. I shall be so satisfied if the material before me does not raise a reasonable hypothesis connecting his condition with his service.
A reasonable hypothesis connecting a veteran’s death with his or her service will be reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis: s 120A(3).
The steps to be followed in determining whether a hypothesis is reasonable are set out in Repatriation Commission v Deledio (1998) 83 FCR 82. A decision-maker must:
(i)determine whether the material before it points to a hypothesis connecting the death with the circumstances of the veteran’s service;
(ii)if so, ascertain whether there is in force a relevant SoP;
(iii)if so, form an opinion as to whether the hypothesis is reasonable, which it will be only if it conforms with an applicable SoP; and then
(iv)consider whether it is satisfied, beyond reasonable doubt, that the veteran’s death was not war-caused.
8.Each SoP sets out factors, at least one of which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting a veteran’s kind of death with his or her relevant service.
9.The material will raise a reasonable hypothesis if it points to “some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true”: Bushell v Repatriation Commission (1992) 175 CLR 408 and 414.
Relevant Statements of Principles
The SoP in force at the time of the Tribunal’s decision applies unless the claimant is unable to meet it, in which case the SoP in force at the time of the original decision applies: Repatriation Commission v Keeley [2000] FCA 532; Repatriation Commission v Gorton [2001] FCA 1194. In effect, a claimant is entitled to the application of the more beneficial SoP.
At the time of the decisions by the Repatriation Commission (the Commission) and the Veterans’ Review Board to refuse Mrs Budge’s claim, the SoP in force concerning hypertension was No 35 of 2003. It was revoked in 2013 and replaced by No 63 of 2013.
SoP No 63 of 2013 defines hypertension relevantly to mean persistently elevated blood pressure, diagnosed by a medical practitioner and evidenced by:
(i)a usual clinical blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic, or equivalent levels using ambulatory blood pressure measurement; or
(ii)a usual home blood pressure reading of greater than or equal to135 mmHg systolic or greater than or equal to 85 mmHg diastolic; or
…
(iv)the regular administration of antihypertensive therapy to reduce blood pressure.
Mrs Budge relies on factor 6(c) in the SoP: consuming at least 12 grams (200 millimoles) of salt per day on average for at least the six months before the clinical onset of hypertension.
SoP No 35 of 2003 defines hypertension relevantly to mean permanently elevated blood pressure, evidenced by:
(i)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii)the regular administration of antihypertensive therapy to reduce blood pressure.
Mrs Budge relies on factor 5(c) in the SoP: 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.
16.“Salt supplements” in factor 5(c) means “salt added to food when cooking or eating, or salt contained in salt tablets”: cl 8.
Although they are in terms substantially the same, there are differences between the current and former SoPs as follows:
(i)whereas the current SoP refers to permanently, the former refers to persistently, elevated blood pressure although, for present purposes, the evidence by which each is established is the same;
(ii)the definition of hypertension in the current SoP includes the requirement for diagnosis by a medical practitioner;
(iii)whereas the former SoP referred to, and defined, “salt supplements”, the present SoP refers only to salt intake.
For the reasons that follow, these variations in the SoPs make no material difference to the outcome of Mrs Budge’s application.
Material pointing to Mr Budge’s salt intake
Material concerning Mr Budge’s salt intake at different times is found in written and oral statements by Mrs Budge and her son, Neville William Budge, in a report by Major Ian Hawke for Writeway Research Service Pty Ltd, and in written and oral evidence by Dr Dianne Volker, nutritionist and dietician.
Mrs Budge and Mr Neville Budge
20.Mrs Budge and her son both gave evidence that they recall Mr Budge telling them that he had taken salt tablets during his service. Mrs Budge said her husband loved salt, he “just couldn’t get enough of it” and “[h]is body seemed to need it”. She gave evidence that she used salt in her cooking but Mr Budge would say she had not used enough, and he would “always salt his food heavily twice” at the table, so much so that it was too salty for her and she could not eat it. She recalled him telling her he had been given salt tablets “in the islands”. She also recalled Mr Budge starting to take medication for blood pressure from around 1970.
21.Mr Neville William Budge also gave evidence that his father loved salt and would “hold the saltshaker over his food and it would be like a snow storm”. He recalled his father telling him he had a lot of salt with his food because, in the Army, he was given a lot, especially when he was in the islands in the South West Pacific. He recalled an occasion around 1970 when his father told him he was given salt tablets to reduce loss of fluids in the heat, although he did not say how many he took.
The Writeway report
22.Major Hawke prepared a historical research report on the World War II service of Mr Budge dated 2 January 2013 (the Writeway Report) and his likely salt intake during operational service the majority of which was in hot and humid climates in the Middle East, North Queensland, New Guinea, the South West Pacific and Borneo.
23.According to the Report, advice from Defence Scientists (Nutrition), Dr Graham Driver and Dr Christopher Forbes-Ewan, was that the daily salt entitlement for members of the Army during WWII was 14 grams per person irrespective of location. This reflected the culture and dining habits in all Australian households at the time.
24.The report points out that there is an element of conjecture as to the intake of any individual because there are no surviving individual records, but a “unit entitlement” of one salt tablet per man per day was demanded by Army units. Tablets were distributed at outlets such as dining halls and this supplement was in addition to the 14 grams per person per day supplied to kitchens. It was recommended that soldiers took one tablet (1.5 grams salt) per day if engaged in strenuous activity under hot conditions or in climates where persons were sweating heavily, in addition to their daily salt entitlement; whether Mr Budge would have taken one or two tablets per day was “a matter of conjecture, but it is probable”.
Dr Dianne Volker
25.Dr Volker provided a written report and gave oral evidence. I have difficulty with much of her evidence. To the extent that it expressed opinions about medical matters including Mr Budge’s kind of death and whether he had permanently elevated blood pressure levels, her written report went beyond her expertise.
26.Dr Volker gave evidence that she interviewed Mrs Budge by telephone and took a history from her. She did not have her notes of that conversation at the hearing and there are no details of the conversation in her written report. Although Dr Volker gave evidence that Mr Budge’s salt intake was elevated after service, it is not clear what information she took from Mrs Budge to support this opinion. Asked whether she took a diet history of what Mr Budge ate over the years, Dr Volker said:
No, I didn’t, and I didn’t consider I was required to. I had evidence from Mrs Budge that he consumed a lot of salt. I had the evidence from his discharge that suggested he was hypertensive on discharge. So I considered it was my responsibility to prove that hypertension at such a young age would just carry through so I have given the back ground evidence for this hypertension.
27.Dr Volker conceded there are no records confirming that Mr Budge had hypertension (until the 1990s) but said:
… this is the problem with this case in that there are two measures of hypertension before he was discharged and then the late veteran did not have recourse to medical services or we don’t have recourse to the records to show whether he was hypertensive but it is generally accepted that once hypertension develops it keeps on going particularly if salt consumption continues, which Mrs Budge certainly gave evidence of.
28.In response to questions from the Tribunal as to her estimate of Mr Budge’s salt intake after his discharge, Dr Volker said that, from that time and for the rest of his life, it was “at least seven grams per day”. She based her assessment on her knowledge of the foods consumed by Mr Budge and their food values (which I take to mean the typical amount of salt found in particular foods) and the foods commonly consumed by a man of Mr Budge’s age and profession.
29.Dr Volker’s response seemed surprising given the level of salt intake in the SoPs and her strongly expressed opinion that Mr Budge’s death was related to his service. However, when asked again, she confirmed her opinion that his intake would have been “at least seven grams per day” following his discharge and for the rest of his life. She agreed with the suggestion that it was “very easy” to take in 12 grams per day, but confirmed her evidence that, based on the factors she had outlined, Mr Budge’s intake would have been seven grams per day.
30.As there is no material that could support the hypothesis that Mr Budge’s salt intake reached the levels required by the current or former SoPs after his discharge, but there is material pointing to that level of intake in the six months prior to his discharge, the question becomes whether there is material pointing to the clinical onset of hypertension at that time.
Material pointing to the clinical onset of hypertension
31.Professor Michael O’Rourke, cardiologist, and Professor Richard Haber, consultant physician, reviewed Mr Budge’s clinical notes and were provided with the documents filed by the Commission under section 37 of the Administrative Appeals Tribunal Act (1975) (T-documents). They provided written reports and gave oral evidence.
32.Professor O’Rourke and Professor Haber agreed that a report in October 1999 by Dr Michael Tsicalis, consultant cardiologist, which recorded Mr Budge’s blood pressure at 190/90 and noted he had been hypertensive in the previous few years, indicated that Mr Budge had persistently elevated blood pressure at that time. In Professor O’Rourke’s opinion, this was the date of clinical onset of hypertension. Professor Haber considered it possible, based on the available evidence, that Mr Budge had persistent hypertension at an earlier time.
33.The records of Mr Budge’s blood pressure readings prior to 1999 are as follows:
146/90 on 27 September 1945;
146/88 on 5 October 1945;
130/90 on 17 July 1970;
110/80 on 4 August 1970; and
136/82 on 21 September 1977.34.The readings in 1945 were taken in hospital around the time that Mr Budge was discharged. Each would meet the minimum requirement of the relevant SoP (blood pressure reading of greater than or equal to 140 mmHg systolic or greater than or equal to 90 mmHg diastolic). Mr Budge’s medical records show that, in September 1945, albumin was noted in his urine. Professor Haber and Professor O’Rourke gave evidence that albuminuria is linked to blood pressure but agreed it was unlikely that Mr Budge’s albuminuria was indicative of persistent high blood pressure. Professor O’Rourke noted that Mr Budge was discharged after four days in hospital with no albumin in his urine and no diagnosis of hypertension.
There is no record of Mr Budge’s blood pressure reading on his discharge from hospital. Professor O’Rourke thought this might be explained by the fact that a reading of 146/90 was considered normal in 1945, and it could possibly explain why there were no recordings of hypertension in Mr Budge’s service medical records and why there was no blood pressure reading on his discharge from hospital.
36.Importantly, while Professor O’Rourke and Professor Haber had differing views about some aspects of the material before the Tribunal (in particular, whether there was evidence of clinical onset of hypertension during the 1970s), they agreed that two elevated blood pressure readings is insufficient information from which to determine that Mr Budge had permanently or persistently elevated blood pressure at the time of his discharge. Both gave evidence that blood pressure readings can fluctuate with factors including stress, and Professor Haber thought one possible explanation for Mr Budge’s elevated blood pressure recordings in 1945 was that he was still on service and, once discharged, that he would have been more relaxed and his blood pressure lower.
37.There is a reference in Mr Budge’s clinical notes from September 1977 to him being on Amytal. Professor Haber gave evidence that it is possible he was prescribed Amytal to control his blood pressure. He conceded it was not the most effective treatment for hypertension but said it was given in very mild cases. Professor O’Rourke did not agree. He gave evidence there were more effective antihypertensive agents available at that time which would more likely be prescribed if there were serious concerns about Mr Budge’s blood pressure. Neither thought that any conclusion could be drawn about whether Mr Budge had hypertension in 1945 from his subsequent blood pressure readings.
38.The records concerning Mr Budge’s admission to hospital around the time of his discharge are, at best, sketchy, and there are no records concerning his attendance on doctors between 1945 and 1970. Mrs Budge’s knowledge about his medication for blood pressure is also very limited. It is submitted on her behalf that her claim should not fail for want of adequate records or other information. In particular, reference is made to s 119(1)(h) of the Act which states that, in determining and making a decision in respect to a pension, a decision-maker shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstances including the effects of the passage of time, and the absence of, or deficiency in, official records. However, it is one thing to make allowances for gaps in information or even the absence of information, but another to fill them in. In this case, for a reasonable hypothesis to be made out, there needs to be material pointing to hypertension evidenced by usual blood pressure readings at the elevated levels specified around the time Mr Budge was discharged. There is insufficient information in that regard and the gap, or absence of information, cannot be filled by inferences which would be no more than speculation.
Is a reasonable hypothesis raised?
39.A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities: East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 at [533]. A “mere possibility” is not sufficient to make a hypothesis reasonable: Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364; nor is an assumption sufficient to make a hypothesis reasonable: Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.
40.Nor is a reasonable hypothesis one that is merely plausible. It may be that its elements are raised “so slightly that the entire hypothesis [is] not to be viewed as reasonable” Bull v Repatriation Commission [2001] FCA 1832 at [5].
41.In my view, the elements of the hypothesis connecting Mr Budge’s death with his service are raised so slightly by the material that it cannot be said to be reasonable. While there is evidence that Mr Budge consumed 12 or more grams of salt per day during service, it is no more than a mere possibility, which is not supported by the doctors, that he had hypertension at the time of his discharge.
Conclusion
I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Budge’s death was war-caused. I regret that it follows that Mrs Budge’s claim must fail.
I affirm the decision under review.
44. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
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Associate
Dated 8 May 2014
Date(s) of hearing 18 March and 17 April 2014 Counsel for the Applicant Mr Tim Saunders Advocate for the Respondent Mr Tim O’Reilly
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