Down and Repatriation Commission
[2000] AATA 1036
•27 November 2000
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2000] AATA 1036
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1761
VETERANS' APPEALS DIVISION ) Re Shirley DOWN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs M T Lewis, Senior Member
Dr P Lynch, MemberDate27 November 2000
PlaceSydney
Decision The Tribunal sets aside the decision of the Delegate of the Repatriation dated 19 August 1996, and in substitution therefore, decides that the death of Frank Herbert Down was war-caused, pursuant to s8(1)(b) of the Veterans’ Entitlements Act 1986, and that Shirley Down is entitled to payment of war widow’s pension with effect on and from 28 July 1996.
..............................................
Presiding Member
M T Lewis
CATCHWORDS
VETERAN’S AFFAIRS – war widows pension – whether death of Veteran war-caused – eligible defence service – Veteran died from renal artery atherosclerotic disease that led to brain stem infarct – Statement of Principles applied – reasonable satisfaction standard of proof – smoking and hypertension relevant factors in Statements of Principles – whether increase in smoking habit arose out of or attributable to service – whether boredom and living conditions on service caused smoking habit – whether hypertension war-caused – only one high blood pressure reading taken at end of service – whether Veteran suffered from hypertension at time of discharge – meaning of “accurate determination of hypertension” in SoP – whether suffered hypertension prior to service – whether hypertension was contributed to in a material degree by eligible war service – whether failure to diagnose hypertension was an inability to obtain appropriate clinical management for hypertension according to SoP – whether smoking contributed to progression of renal artery atherosclerotic disease
Veterans’ Entitlements Act 1986 – ss 8(1)(e),120(4), 120A(2),120B, 196G
Statements of Principles – Instrument No. 62 0f 1996, Instrument No.84 of 1995, Instrument No. 40 of 1998, Instrument No. 33 of 1999
Keeley v Repatriation Commission (1999) 56 ALD 455
Repatriation Commission v Keeley (2000) 31 AAR 150
Thompson v Repatriation Commission [2000] FCA 939
Repatriation Commission v Wellington (1999) 57 ALD 507
Re Gibson and Repatriation Commission (1999) 55 ALD 194
Re Chanter and Repatriation Commission [1999] AATA 920
Re Lee and Repatriation Commission (1986) 11 ALD 56
Johnston v Commonwealth (1982) 150 CLR 331
Re Doolan and Repatriation Commission (1995) 41 ALD 557
Re Bridgeman and Repatriation Commission (1998) 50 ALD 671
Repatriation Commission v Hughes (1991) 23 ALD 270
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Law (1908) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635
REASONS FOR DECISION
27 November 2000 Mrs M T Lewis, Senior Member
Dr P Lynch, Member
1. This is a review of a decision of a delegate of the Repatriation Commission (“the Respondent”) dated 19 August 1996 which determined that the death of Frank Herbert Down (“the Veteran”) was not related to his war service. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 21 October 1998. Shirley Down (“the Applicant”), as the widow of the Veteran, lodged an application for review by this Tribunal on 7 December 1998.
2. The Tribunal had before it the documents produced by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant and Dr M G Miller gave oral evidence at the hearing. The following documents were tendered as evidence on behalf of the Applicant -
· Statement of the Applicant dated 27 May 1999 (exhibit A);
· Statement of W H McDonald dated 24 May 1999 (exhibit B);
· Medical report of Dr M G Miller, consultant physician, dated 15 September 1999 (exhibit C);
· Extract from British Encyclopaedia of Medical Practice dated 1950 (exhibit D);
· Statement of M A Simons dated 30 November 1998 (exhibit E);
The following documents were tendered as evidence on behalf of the Respondent -
· Letter from National Employee Relations Manager from W.D & H.O Wills to the Respondent (exhibit 1);
· Repatriation Commission Guideline CM 5030 (exhibit 2);
· Clinical notes from Concord Hospital (exhibit 3);
· Undated Statement signed by B Wright (exhibit 4).
3. Since the adjournment of the hearing on 17 November 1999 the Respondent, by agreement, provided a transcript of the VRB proceedings on 6 January 2000, together with submissions on behalf of the Respondent. The Applicant provided further written submissions on 25 August 2000, which essentially was a list of authorities on which she wished to rely. In response, the Respondent made further submissions on 5 September 2000.
4. The Veteran was born on 28 June 1920. He had service in the Australian Army within Australia between December 1941 and December 1945, and for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”) this is eligible service. He died on 26 June 1982 at the age of 61 years. The cause of death on the death certificate was –
I (a) Brain stem infarction days
(b) Hypotension days
(c) Septicaemia days
Pneumonia daysII Chronic renal failure years
Hypertensive nephrosclerosis years
5. Two arguments were put forward by the Applicant. Firstly, it was the Applicant’s case that the Veteran suffered hypertension on service that was not diagnosed at the time of his discharge from the Army. Consequently the Veteran was unable to obtain appropriate clinical management of his hypertension which in due course led to renal artery atherosclerosis and cerebrovascular accident, and ultimately death. In the alternative, it was submitted that the escalation of the Veteran’s smoking habit was causally related to his service as a result of boredom and the poor living conditions he experienced whilst on service, and that his smoking led to renal artery athersclerotic disease or a cerebrovascular accident, and ultimately to his death.
legislation and statements of principles
6. The standard of proof to be applied to the Veteran’s eligible service is defined in s120(4) of the Veterans’ Entitlements Act 1986 (“the Act”), that requires the Tribunal to determine whether it is reasonably satisfied that the death of the Veteran was war-caused.
7. As the Applicant lodged a claim after 1 June 1994, pursuant to s 120B of the Act, the Tribunal is also required to apply the relevant Statements of Principles in determining this matter.
8. It was submitted for both parties that the case was not affected by whether the matter was determined using the Statements of Principles in place at the time of the primary decision or those currently in place. At the time those submissions were made the Full Federal Court had not heard the appeal in Keeley v Repatriation Commission (1999) 56 ALD 455.
9. However, following the Full Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108 that was handed down subsequently, and that upheld the decision of the single judge, the Respondent’s interpretation of the Full Court decision is that the Applicant must rely on her accrued rights in identifying the Statements of Principles to be used in determining this matter. Without the Tribunal considering the merit of that interpretation, as both parties consider that there is no difference for this Applicant whether the earlier or later Statements of Principles are applied, the Tribunal will determine this matter on the basis of the Statements of Principles in place at the time of the primary decision, which are -
· Instrument No.62 of 1996 concerning Cerebrovascular Accident,
· Instrument No.84 of 1995 concerning Hypertension.
10. At least one of the factors in the Cerebrovascular Accident Statement of Principles must be found by the Tribunal to exist before it can be reasonably satisfied that the death from cerebrovascular accident is connected with the circumstances of the Veteran’s service. The factors to be considered in this case are -
5.
(a) suffering from hypertension before the clinical onset of cerebrovascular accident; or
..
(j) for cerebral ischaemia only, smoking at least five cigarettes per day or the equivalent thereof, in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 10 years of cessation.
11. With respect to the Hypertension Statement of Principles, the Applicant relies on factor 1(w) which states-
inability to obtain appropriate clinical management for hypertension.
That Statement of Principles also states that factor 1(w) applies only where:
(a) the person’s hypertension was accurately determined prior to a period, or part of a period, of service to which the factor is related; and
(b) the relationship suggested between the hypertension and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), or 70(5)(d) of the Act.
The term “accurate determination of hypertension” is defined in the Statement of Principles, viz.
“accurate determination of hypertension” generally means the accurate measurement of blood pressure on a number of occasions….
That definition then proceeds to detail the standardised process to be followed, as set out in a 1994 issue of The Medical Journal of Australia.
12. The Tribunal notes that at the time the Respondent made its primary decision on 19 August 1996, there was no Statement of Principles for Renal Atherosclerotic Disease. The first “balance of probabilities” Statement of Principles for that condition was Instrument No. 40 of 1998, date of effect being 8 July 1998, which was in place at the time the VRB decision was made. After the application for review was lodged with this Tribunal Instrument No.40 of 1998 was revoked and replaced by Instrument No.33 of 1999 (which is substantively the same).
13. Pursuant to s120A(2) of the Act, if the Repatriation Medical Authority (“the RMA”) has given notice under s196G that it intends to carry out an investigation in respect of a particular injury, disease, or death, the claim must not be determined by the Commission unless the SoP has been determined or the RMA has declared that it does not propose to make such a SoP.
14. The Tribunal is mindful of the decision in Thompson v Repatriation Commission [2000] FCA 939 that in effect held that where no Statement of Principles existed at the time of the primary level decision, the Tribunal is not bound to apply a later determined Statement of Principles in making its decision if that Instrument was detrimental to the Applicant. The Tribunal is also aware that that decision is currently on appeal to the Full Federal Court. In those circumstances, when considering the renal atherosclerosis issue, the Tribunal will apply Instrument No.33 of 1999, but will also proceed to determine the matter without using a Statement of Principles.
15. Factors 5(a) and (b) of the Renal Artery Atherosclerotic Disease Statement of Principles are relevant in this case, viz.
(a) smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of renal artery atherosclerotic disease; or
(b) suffering from hypertension for a period of at least 10 years before the clinical onset of renal artery atherosclerotic disease; or
evidence
16. The Applicant met the Veteran in about 1939 or 1940. She said she knew him “pretty well” as they were dating at the time. They spent several hours together in the evenings at her house and on the weekends when they went out for picnics. On those occasions, she said she never saw him smoke. Nor did she ever see him buy cigarettes prior to the war. She recalled that the Veteran worked with the tobacco company W D & H O Wills when she met him.
17. The first time the Applicant recalled the Veteran smoking was when they first met. She said –
I can remember one incident he asked me did I smoke-I’d just met him…being smart I said oh yes because….everybody smoked, there was something wrong with you if you didn’t and so he handed me a cigarette and he told me to draw it back…I got real sick and he said “now never, ever put another cigarette in your mouth”…
18. Prior to the war the Applicant said the Veteran was a ”happy-go-lucky sort of guy” and that they both had a “terrific” social life. He played a lot of sport (cricket, bike riding, tennis, soccer) and they also went dancing and ice-skating together. During those times and other social events, she said the Veteran only smoked occasionally. She considered him only to be a social smoker, “a couple of cigarettes here and there”. She said the Veteran never smoked in her company. She said the Veteran’s father never smoked and he taught his children not to smoke.
19. The Tribunal notes that the Applicant advised Dr Miller that the Veteran smoked less than 5 cigarettes a day before he went into the Army (exhibit C). In oral evidence the Applicant was unable to explain how she reached such a conclusion, except to say that her brothers had told her that the Veteran smoked.
20. In the Applicant’s statement dated 27 May 1999 (exhibit A) and in her oral evidence, she said that the Veteran received a couple of cartons of cigarettes as rations from his work but he never smoked his ration. Rather he sold them to his friends and the local doctor. The Applicant said she knew this because she saw the Veteran give a carton of cigarettes away quite regularly. The Tribunal notes that the Veteran’s employer advised the Department of Veterans’ Affairs that more recently the employee allowance was 100 cigarettes (5 packets) a week and it was possible that the same ration applied when the Applicant was working there (exhibit 1).
21. The Applicant said the Veteran worked as a staff driver in the Army and he then became an Inspector of Vehicles. She noticed that he was not a heavy smoker soon after enlistment. She said it was not until he went to Port Hedland, Western Australia, that he became a smoker. After having spent 12 months away, she noticed the Veteran smoked regularly when he returned home on leave for two weeks. She asked him at the time why he was smoking “so much” and she said he replied “A man’s got to do something, I just want to smoke, just have to”.
22. The Veteran advised her at that time that he did not enjoy being in the Army because it was “so desolate” and living conditions were poor including lack of hygiene, and food was “very difficult to cope with”. She also mentioned that he worked long hours as a staff driver.
23. The Applicant and Veteran married in 1942. At that time he was stationed at Gowanbrae in Pennant Hills. She recalled the Veteran told her he was sent to a place in Western Australia “to take three rest periods” because he had not been feeling well (see also T14, p49).
24. Their daughter was born in March 1945 and the Veteran returned home at that time. She said that thereafter he did not want to go back to the Army. She said that he always wanted to go into the Airforce and when he found out that was not possible, he was upset that he could not do so.
25. The Applicant recalled that the Veteran smoked heavily only after discharge from the Army. She said the Veteran probably bought more cigarettes than his work ration at that time because he smoked more than five packets of cigarettes a week. The Tribunal notes that evidence is consistent with the Applicant’s evidence at the VRB hearing (T16, p56). In her oral evidence to the Tribunal she said he smoked a packet a day and he no longer sold his cigarette ration. She understood from their sons that the Veteran stored cigarettes in his wardrobe. She also noticed the Veteran smelt of smoke when he came home from work.
26. Immediately after his discharge from the Army, the Applicant said the Veteran complained of weakness, “not complete blackouts, but having to flop down, sit down quick”. This continued all the time, and she said the doctors believed that he had pulled a muscle. He also became very irritable about things such as his driving.
27. The Applicant explained that it was only after the war that the Veteran seemed too tired to do anything. He did not go out and he ceased almost all his sporting activities. They went dancing and surfing occasionally, but the Veteran tired quickly and easily. He also complained about pain in his legs and back and he also suffered from bad headaches after the war.
28. The Applicant said she frequently asked him to see a doctor but he said “... I’ve had it in the Army, they couldn’t do anything for me then, so why worry now”. She said he felt “disgraced” to be sick and he never told her anything about his visits to the doctor. She said –
..if he wouldn’t tell me that he was dying, I can’t imagine that he would have told me much….he was just that type of fellow. He would brush it off if you said that he didn’t look well or… he should go to the doctor…
29. The Applicant said that in about 1950 she asked the doctor about the Veteran’s health and she was told he needed to reduce his blood pressure and the doctor questioned whether there was anything bothering the Veteran. She said she was not aware of any problems at that time as he was doing well in his job.
30. The Applicant said she recalled the Veteran first went to see a doctor some time after their youngest son was born in the late 1950’s, but again he did not disclose to her whether the doctor had checked his blood pressure at that time. From about 1953, and after he had been diagnosed with high blood pressure, the Applicant said the Veteran started to take sick leave about once every six weeks for a couple of days because he felt sick and tired. She said the Veteran “used to go pretty bright red in the cheeks and he’d just sort of lie around”. He did go to the doctor on those occasions, but again he would tell her that “everything’s okay…just a bit overworked”.
31. The Applicant accepted that the Veteran received treatment for hypertension in about 1957. She recalled that the Veteran had a hernia operation at which time it was discovered that he had high blood pressure. The Veteran continued to see a doctor in the 1960’s but the Veteran never acted like it was a serious problem; he said to her that he had “just a bit of blood pressure…everything’s OK”.
32. The Applicant said that in 1982 the Veteran became ill suddenly and was hospitalised for high blood pressure and kidney disease. She said he smoked up until his death, even when he was in hospital.
33. That Applicant said it was not until recently that she found out from Legacy that the Veteran suffered from high blood pressure when he left the Army. This is consistent with her written statement dated 24 March 1998 (T14, p49). In that statement the Applicant noted that when the Veteran was discharged from the Army he was asked if he had any complaints and after having explained that he had dizziness and weakness in his legs the Captain advised him that he had “a bit of war neurosis, which made him very annoyed”.
34. Mr W H MacDonald prepared a statement dated 24 May 1999 (exhibit B). He said he knew the Veteran for 33 years, since the age of 10. He considered his relationship with the Veteran as a “close acquaintanceship [sic]”. Prior to the war, he stated that the Veteran was an “excellent sportsman” who played A grade tennis, cricket, soccer, ice-skating and ballroom dancing. Mr MacDonald noted the following about the Veteran’s smoking habits both before and after the war –
Before the War, Frank was a very healthy, active young man who did not smoke, with a quiet caring personality and was liked by all who knew him.
After he returned from the War, I noticed he had become a smoker and he continued with this habit until almost the end of his life. Unfortunately, Frank had progressed to being a heavy smoker, having approximately one packet of cigarettes a day, sometimes more.
He had also become irritable and short tempered and often withdrawn in himself, quite unlike the Frank we had known before the War.
35. Mrs M A Simons prepared a statement dated 30 November 1998 (exhibit 3). She worked with the Veteran for 2½ years as a cigarette paper machinist. The Veteran was her brother-in-law and boss at work. She stated that the Veteran smoked “constantly” at work and that he was a very heavy smoker between 1953 and 1956. She also noted that the Veteran was a non-smoker until he took up the position he occupied, after the Army.
36. Mrs B Wright prepared a statement, undated (exhibit 4). She worked with the Veteran for about 6 years. In her statement she said that the Veteran was a chain smoker after the war, and she also noted that he had a “very responsible” job and may have been under a “fair bit of stress”.
37. Mrs D Buckthought prepared a statement dated 9 March 1998, in which she noted that she and her husband were close friends with the Veteran and that she had known him for 51 years. She often attended functions with the Veteran and visited his house. She stated that the Veteran did not smoke until he went into the Army “and like most of the men were heavy smokers when they came home”. She further noted that as the years passed, the Veteran’s smoking habit increased and he complained about feeling ill and dizzy, but that he was too proud to complain.
MEDICAL EVIDENCE
38. In a medical examination on 27 November 1945, prior to discharge, (T3, p5), the Veteran’s blood pressure was recorded at 170/100. The Veteran was 25 years of age at that time. It was also recorded at the time that the Veteran was suffering from “brownouts when bending” and that his “exercise tolerance was not too good”. However it was stated that no Medical Board was necessary and that the Veteran did not suffer from any restrictions. He was discharged from the Army on 2 Jan 1946 (T3, p13).
39. The Veteran appears to have been examined on 18 April 1940 (T3, p18) and his medical history sheet notes that apart from suffering from rheumatic fever and scabies in the past, he was in good health. The Veteran was examined again on 10 May 1943 and on that medical history sheet, the Tribunal notes that no blood pressure reading was recorded, notwithstanding the fact that space was provided for “blood pressure”. It noted however that the Veteran suffered occasional headaches but had “always done his work well” (T3, p14).
40. The Veteran was admitted to Concord Hospital on 24 June 1982. A summary from Concord Hospital (T5, p37) was provided following the Veteran’s death on 26 June 1982, viz.–
Mr Down was admitted with a two day history of weakness and vomiting.
On admission he was febrile…He had gangrenous toes on his left foot. His JVP was not raised and he had a third heart sound………a chest X-ray revealed right lower lobe pneumonia and blood culture grew strep pneumonia.
The following day on dialysis he had an episode of severe bradycardia and although resuscitated from this he had another episode 1 hour later from which he was transferred to the intensive care unit after prolonged resuscitation of about 1 hour requiring IVI Ca gluconate, adrenalin to maintain a cardiac output and glucose and insulin for hyperkalaemia during the resuscitation.
Due to dismal prognosis no further active measures were taken.
A post mortem was not performed.
41. The Tribunal also notes from the clinical records from Concord Hospital that the Veteran suffered from peripheral vascular disease and intermittent claudication for a number of years prior to his death in 1982 (exhibit 4).
42. Report of Dr C R P George, renal physician, dated 2 December 1981 noted that the Veteran smoked one packet of cigarettes a day for many years (exhibit 3). Other entries in the Concord Hospital clinical notes (exhibit 3) indicated that he smoked about 20 cigarettes per day before December 1981 when he ceased smoking.
43. Several entries in the clinical records (exhibit 3) indicated that the Veteran was diagnosed with chronic renal failure in October 1981 and was then admitted to hospital to prepare for haemodialysis.
44. The Veteran had a family history of renal problems. At the time of his admission to Concord Hospital on 4 November 1981 (exhibit 3) the Veteran gave a history of hypertension for 10 to 12 years, gout for 6 years, and rheumatic fever at the age of 9 years. He was still smoking one packet of cigarettes a day at that stage. On the same date he provided a history to another doctor who recorded “hypertension for 10-12 yrs. Has been difficult to control”.
45. During his admission to hospital at the time of his death it was recorded that he had had hypertension for 20 years. However it was also noted at that examination that the Veteran was unconscious, so the Tribunal assumes that this history was provided from some other source. Elsewhere in the clinical notes at the time of his death it was noted that he had “hypertension – uncontrollable, resulting in bilat. nephrectomy 29.4.82”. He also had peripheral vascular disease causing gangrenous left 3rd and 4th toes.
46. Dr George advised Sydney Legacy in a report dated 7 May 1998 (T12) that the Veteran’s renal problems were of “major significance” in relation to the cause of his death, and that –
Investigations performed on him towards the time of his death demonstrated incontrovertibly that he had significant atherosclerosis and that this was the cause of his renal failure.
Presumably this report was sought for the purpose of the Applicant’s claim for war widow’s pension. Dr George also said –
In my opinion, the fact that Mr Down had such a high blood pressure reading during his final service days and did not receive treatment during service or for many years thereafter contributed significantly to his death. If he had not developed high blood pressure, or if it had been treated effectively, then in my opinion he would have been much less likely to die of that cause.
Dr M G Miller
Hypertension hypothesis
47. Dr Miller, consultant physician, prepared a report dated 15 September 1999 (exhibit C) for the purpose of these proceedings. The history he obtained from the Applicant was that the Veteran’s blood pressure was diagnosed in 1950, he was treated for the condition with tablets and he had suffered from blood pressure all his life. The Applicant also told Dr Miller that the Veteran was diagnosed with kidney disease in 1979/1980.
48. In respect of the smoking history, the Applicant advised Dr Miller that the Veteran was a “very light” smoker prior to service (and did not smoke 5 cigarettes a day). After service he became a heavy smoker, and smoked between 20 and 40 cigarettes daily. He continued smoking until advised to stop when kidney failure was diagnosed in 1979/1980.
49. Dr Miller opined that on all the available evidence, the Veteran suffered from high blood pressure at the time of his discharge. Considering the definition of high blood pressure and hypertension at that time, Dr Miller opined that a recording of 170/100 was very high and would have precipitated a diagnosis of hypertension. He referred to the following definition in support of his opinion (taken from the Encyclopaedia of Medical Practice, 2nd ed.,1950) -
Hypertension: A diastolic pressure of 100 may be taken as evidence of high blood pressure, whereas a systolic pressure exceeding 160 does not imply hypertension unless the diastolic pressure is also raised.
50. Dr Miller opined that after diagnosing hypertension, the next course of action would have been to repeat taking the Veteran’s blood pressure to confirm the diagnosis. If the repeated blood pressure remained elevated, then treatment would have been administered, including further investigations for kidney disease. Notwithstanding that the Veteran was about to be discharged from the Army, Dr Miller considered that investigations should have been undertaken.
51. Notwithstanding the definition of “hypertension” in Instrument No 84. of 1995, Dr Miller said he would have considered a person at the age of 27 who presented with a reading of 170/100 as hypertensive until proven otherwise. On the balance of probabilities, that abnormal reading, albeit only one reading, still had to be regarded as significant. If the Veteran had other readings that were normal Dr Miller would have diagnosed the Veteran with labile hypertension. Dr Miller said one had to accept the isolated reading at face value.
52. Dr Miller explained that standard treatment for hypertension in 1945 would have involved sedation and mild diuretics. He said theophylline-ethylene-diamine (a mild sedative), and phenobarbitone (a mild diuretic) administered together would have reduced the Veteran’s blood pressure to some degree.
53. Dr Miller opined that if appropriate treatment had been given to the Veteran, it was probable that his hypertension would not have progressed to the degree that it did in 1950. He noted that in the 1950’s there was no effective treatment for hypertension, and that the use of beta blockading agents were not discovered until the 1960’s. He did consider however, that Ansolysin could have been prescribed which would have reduced blood pressure but resulted in side effects. Considering the Veteran had very high blood pressure at an early age, Dr Miller said he probably would have prescribed that drug notwithstanding the side effects.
54. Essentially, if appropriate treatment had been given, Dr Miller considered that the end result would have been a delay in the development of the Veteran’s complications. He agreed with Dr George (T12, p46) that the Veteran’s renal problems were of major significance in relation to the cause of his death. If his high blood pressure had been treated he would have been much less likely to have died of that cause. The Veteran suffered from atherosclerosis which was the cause of his renal failure. He considered, on the balance of probabilities, that the Veteran developed renal failure in 1970. He identified the existence of a cyclical effect in the Veteran’s case with respect to his renal and hypertensive condition.
55. Dr Miller said that the Veteran was able to satisfy the “inability to obtain appropriate clinical management” factor even if he was not diagnosed with hypertension until 1960 as there were more effective treatments available by that time. He said it would have confirmed his conclusion that lack of treatment had contributed to the progression of his disease. Similarly his opinion remained unchanged if his hypertension was difficult to control from about 1970.
56. Dr Miller opined that the Veteran’s hypertension, smoking and peripheral vascular disease would have been factors in the cause of his atherosclerosis.
57. Dr Miller did not consider that a connection necessarily existed between hypertension and the “brownouts” and headaches the Veteran suffered on service. Dr Miller noted that in an overwhelming majority of cases, patients with blood pressure are not aware that they have it. Therefore, if the Veteran were not told of his blood pressure, there would have been no reason for him to seek treatment himself.
Smoking hypothesis
58. Dr Miller opined that the Veteran had significantly increased his cigarette consumption during his war, more probably than not, because of peer pressure, the availability of cheap cigarettes and stress on service in remote Western Australia. He considered that the Statement of Principles concerning Cerebrovascular Accident was satisfied because the Veteran smoked at least 5 cigarettes per day for at least 5 years before the clinical onset of his cerebrovascular accident and that he suffered his brain stem infarction within 10 years of cessation of smoking.
submissions
Hypertension
59. It was submitted for the Applicant that the Veteran’s hypertension was first documented on his discharge from the Army on 27 November 1945, that being a blood pressure reading of 170/100. On the evidence of Dr Miller that was supported by Dr George, such a reading for a man aged 25 years should have been regarded as abnormal, and if appropriate treatment had been given at the time, by way of sedation and mild diuretics, the Veteran’s hypertension would not have progressed to the degree it did. Consequently, the Veteran satisfied the relevant factor dealing with inability to obtain proper and clinical management for hypertension.
60. The Applicant relied on the decision of the Federal Court in Repatriation Commission v Wellington (1999) 57 ALD 507 that held that “appropriate clinical management” as set out in a Statement of Principles is made out by reference to medical standards that applied at the time in question. The Applicant also relied on the decision of the Tribunal Re Gibson and Repatriation Commission (1999) 55 ALD 194, where the following remarks were made with respect to the phrase “appropriate clinical management (at 218-219) –
The phrase “appropriate clinical management” is not defined in the SoP and should be interpreted according to its commonly understood meaning having regard to standard prudent medical practice. Clinical management is an ongoing and dynamic process and “appropriate clinical management” of a disease, in the Tribunal’s opinion, involves the timely diagnosis, and the preparation and execution of a plan of action and treatment, of that disease by a suitably qualified and competent medical practitioner exercising due care, skill and diligence.
61. It was submitted for the Respondent that the key issue in this case was whether the Veteran was actually diagnosed with hypertension. It was submitted that in order to satisfy the phrase “inability to appropriate clinical management” in this case, it was necessary in the first instance to satisfy the definition of “accurate determination of hypertension” as provided in clause 4 of the Statement of Principles. This raised the question of whether one reading was enough to make a diagnosis of hypertension.
62. On the authority of Re Chanter and Repatriation Commission [1999] AATA 920, it was submitted that one high blood pressure recording was not sufficient to satisfy the definition of hypertension in the Statement of Principles. This view was reinforced by the word “usual” in the definition of “hypertension” and the phrase “on a number of occasions” inserted in the meaning of “accurate determination of hypertension”. On the evidence of Dr Miller, it was submitted that normal medical practice would not have considered one reading of high blood pressure enough to diagnose hypertension. It was submitted that factor 1(w) could not be invoked in this case until it was determined that the Veteran actually suffered from hypertension.
63. It was also submitted for the Respondent that there was an insufficient basis to speculate that nothing was said to the Veteran at the exit medical about the issue of his single high blood pressure, particularly as the Applicant’s evidence to the Tribunal was that the Veteran would not have said anything to her at that stage. Moreover, it was submitted that there was a strong suggestion made at the VRB hearing that the Veteran may have been warned at his discharge medical about his blood pressure reading.
64. In the alternative, it was submitted that the Veteran would still have to satisfy the phrase “inability to obtain appropriate clinical management for hypertension”. It was submitted that ignorance of the diagnosis was not a situation which satisfied that requirement; that is, the fact that the doctor overlooked the diagnosis was insufficient to meet the test of “inability”. It was submitted that there was no way of knowing whether or not the doctor offered a regime of medical treatment or advised the Veteran that he suffered from hypertension.
65. It was submitted that the facts of this case were unique in that the Veteran was about to be discharged from the Army within a few weeks at the time his blood pressure was taken. It was submitted that if his hypertension was still troubling him, the Veteran had the ability to consult another doctor if he had not been advised that he was suffering from the condition. If he had been told, he also had the choice to do nothing about it, which on the evidence could well have been the case.
66. With respect to the issue of aggravation, it was submitted that the severity of the progress of the Applicant’s disease had to be significant before it could be said that the disease was war-caused: Re Lee and Repatriation Commission (1986) 11 ALD 56. It was submitted that the evidence on this point was merely speculative. The Tribunal was urged to consider whether the failure to obtain appropriate clinical management of the Veteran’s hypertension made a definite change to the progression of his disease. On the authority of Johnston v Commonwealth (1982) 150 CLR 331 it was submitted that an active change in the course of the disease was necessary as a result of the inability to treat the condition. It was submitted that there was no active change in the course of the Veteran’s hypertension as a result of any failure to diagnose.
Smoking
67. It was submitted for the Applicant that the Veteran was a light social smoker prior to his war service, and that he sold his cigarette rations which he obtained from his employment to his doctor and friends. It was submitted that on discharge from the Army he had become a very heavy smoker - a habit that continued until his death. It was submitted that the increase in his smoking was a product of his operational service. It was the Applicant’s evidence that the Veteran’s service caused him to be bored and stressed, that he did not like being in the Army and had attempted to transfer to the Airforce. It was submitted that if the Veteran had not returned to Western Australia when he was very unhappy on service, he would probably have remained a very light social smoker.
68. It was submitted for the Applicant that the boredom, stress and dislike of the Army felt by the Veteran on service had a causal influence on his decision to commence smoking: Re Doolan and Repatriation Commission (1995) 41 ALD 557, Repatriation Commission v Tuite (1993) 39 FCR 540. Although there was no direct evidence of the exact time the Veteran commenced smoking, it was submitted that it was widely known that peer pressure, the stresses of service, coupled with the ready availability of cigarettes contributed to many service personnel acquiring a smoking habit: Re Bridgeman and Repatriation Commission (1998) 50 ALD 671.
69. The Respondent conceded that with respect to the hypertension factor in the Renal Artery Atherosclerotic Disease Statement of Principles, the Veteran satisfied the 20 pack years requirement, but the causal relationship between smoking and service had not been made out. It was submitted that the increase in smoking was not causally related to service. The evidence before the Tribunal was illustrative only of a temporal connection with the Veteran’s service that was insufficient: Repatriation Commission v Hughes (1991) 23 ALD 270.
70. Moreover, it was submitted for the Respondent that there was no evidence to suggest peer pressure or that the Veteran was bored or stressed on service. Even if there was, it was necessary that such factors had to be part of the cause and not just part of the circumstances in which the cause operated, which was not the case: Repatriation Commission v Tuite (supra). It was submitted that the real causes of the increase in the Veteran’s smoking were attributable to the availability of cigarettes both before and after service, changed circumstances and interests including stress from overworking after having returned from the Army.
71. It was submitted that there was insufficient evidence to indicate the causal connection for the balance of probabilities test. The crucial issue of causal connection was only left open.
72. The Respondent submitted that the case law relied upon by the Applicant was distinguished from the facts of this case.
consideration of evidence and findings of fact
73. The Tribunal notes that the Veteran died as a result of dialysis for his renal condition, and that he suffered hypotension and a consequent brain stem infarct prior to his death as a direct result of his renal complications. The Tribunal also notes that according to the death certificate, chronic renal failure and hypertensive nephrosclerosis were the stated causes of the Veteran’s death. On the medical evidence before it, the Tribunal is reasonably satisfied that the sole cause of the Veteran’s death was renal artery atherosclerotic disease. Accordingly, the Tribunal finds the Statement of Principles to be applied is that relating to Renal Artery Atherosclerotic Disease.
Was the Veteran’s hypertension war-caused?
74. That the Veteran suffered from hypertension prior to his death is not at issue. The real issue is whether he suffered from hypertension at the time of his discharge from the Army. It is not at issue that his blood pressure reading at that time was 170/100, or that this was an abnormal reading.
75. The Tribunal finds it most surprising that a blood pressure reading of 170/100 was not investigated prior to discharge, as a Medical Board examination might have been necessary as a consequence. On the clinical examination document there appears to have been an attempt made by the doctor to underline the blood pressure reading of 170/100 and to underline the entry “exercise tolerance not too good”. One could interpret that these aspects were considered by the doctor to be significant. It is always possible, of course, that this reading was discussed with the Veteran but there is no evidence of this. Additionally, the Applicant was not able to provide further insight on this issue as her evidence was to the effect that the Veteran did not discuss any health problems that he had with her.
76. It is also surprising that the only record of the Veteran’s blood pressure was at the time of his discharge. His blood pressure was not recorded at his enlistment medical examination (T.docs. p14) although there was provision on the form for blood pressure to be recorded. The Tribunal assumes that as the Veteran was classified A1 on enlistment his blood pressure was normal but not recorded. It was noted at the time of the Veteran’s enlistment that he suffered from occasional headaches and that he had previously suffered from concussion.
77. On the evidence of Dr Miller the Tribunal finds that even in 1945 it would “generally” have been the practice to undertake an accurate measurement of blood pressure on a number of occasions before diagnosing and treating blood pressure – yet this was not done in spite of a reading of 170/100 being clearly abnormal. Applying the Statement of Principles, although the accurate determination of hypertension “generally” requires the accurate measurement of blood pressure “on a number of occasions”, the Tribunal finds that, in the particular circumstances of this case, the “general” practice was not followed, and the Applicant should not be disadvantaged because of that.
78. However, assuming for the moment that the Veteran suffered from diagnosable but not diagnosed hypertension at the time of his discharge medical examination, the Tribunal is also required in paragraph 3 to apply factor (w) “only where the person’s hypertension was accurately determined prior to a period … of service to which the factor is related” and that “the relationship between the hypertension and the particular service of a person is a relationship set out in paragraph 8(1)(e)… of the Act”. Paragraph 8(1)(e) provides –
the injury or disease from which the veteran died:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
79. In effect the Tribunal can only consider the Applicant’s hypertension and its connection with service in a contributory or aggravation sense pursuant to s8(1)(e) of the Act. Applying s8(1)(e)(ii), the Tribunal is not reasonably satisfied that the hypertension, that was diagnosable at the time of the Veteran’s discharge from the Army, was suffered “before the commencement of the period … of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service” (emphasis added). In effect, to meet the requirements of s8(1)(e)(ii) the Veteran would have to have had hypertension prior to his enlistment, and there is absolutely no evidence of that.
80. Hence the Applicant’s case fails to meet the Statement of Principles in respect of hypertension on this ground alone, without considering whether in fact the Applicant obtained inappropriate clinical management of hypertension on the basis that he was not diagnosed with the condition. Accordingly, the Tribunal is reasonably satisfied that the Veteran’s hypertension was not war caused.
81. Having decided that the Veteran’s hypertension was not war-caused, the Tribunal also determines that the Veteran does not meet factor 5(b) of the Renal Artery Atherosclerotic Disease Statement of Principles.
Did the Veteran have a war-caused smoking habit?
82. The Tribunal notes that the Veteran was aged 21 years at the time of enlistment and that he worked for a tobacco company, WD and HO Wills, prior to enlistment and since the age of 15 years (VRB transcript). He certainly had time to develop a smoking habit prior to service, rather than to be merely a social smoker, as the Applicant would have the Tribunal believe. Her evidence that the Veteran received a weekly ration from his employer of 100 cigarettes and that she had observed him on occasions disposing of a carton of cigarettes to other people, is accepted by the Tribunal of evidence that the Veteran smoked less that 100 cigarettes a week. The variability of the Applicant’s evidence about the Veteran’s pre-enlistment smoking habit does not enable the Tribunal to be reasonably satisfied that he was a non-smoker or an occasional smoker prior to service.
83. It was the Applicant’s evidence that the Veteran increased his smoking on service in Western Australia because of boredom and the stress which his poor living conditions caused him. This is the only evidence before the Tribunal that goes to the fact of the Veteran increasing his smoking on service and that such increase was related to his conditions of service. While in general the Tribunal was concerned about the reliability of the Applicant’s evidence, on this issue the Tribunal uses its own knowledge from many other veterans who served during World War II, that smoking was a common practice to relieve boredom and stress.
84. The Tribunal has taken into account the decision of the Federal Court in Repatriation Commission v Tuite (1993) 39 FCR 540. In applying that case, the Tribunal must be satisfied, on the balance of probabilities that the Veteran’s eligible war service contributed causally to his death in a material degree and that it must be an operative cause rather than merely being part of the circumstances in which the cause operates. Hence, it is open to the Tribunal to find that the circumstances of camp life are capable of contributing to the continuation and worsening of the Veteran’s smoking habit. The Tribunal is reasonably satisfied that the Veteran increased his smoking on service as a result of his conditions of service.
85. There is an abundance of evidence that the Veteran had a significant smoking habit by the time he left the Army. He returned to his pre-war employment with W D and H O Wills, and stayed there until his retirement. There is lay evidence before the Tribunal that the Veteran was a very heavy smoker in the 1950s, and the Veteran himself has provided a history at the time of medical examinations during the 1970s and through to the time of his death, that he smoked 20 cigarettes a day until about six months before he died.
86. With respect to the issue of “attributability”, the Full Court of the Federal Court in Repatriation Commission v Law (1980) 31 ALR 140, held that “the cause need not be the sole or dominant cause: it is sufficient to show ”attributability” if the cause is one of a number of causes provided it is a contributing cause” (at 151). The Tribunal has followed that reasoning [which was approved by the High Court on appeal in Repatriation Commission v Law (1981) 147 CLR 635] in considering the issue of the Veteran’s smoking.
87. The Tribunal is reasonably satisfied that, having increased his smoking habit on service, the Veteran then maintained that level of smoking after service because of the addictive effect of cigarette smoking. Although the Veteran returned to a work environment where cigarettes were readily available to him, the Tribunal cannot be reasonably satisfied that that was the only factor that caused him to continue his smoking habit. The continuation of his smoking was also caused by the habit, which he increased on service as a result of the conditions of service. This is sufficient for the Tribunal to find that the Veteran had a war-caused smoking habit.
Was the Veteran’s war-caused smoking habit causally implicated in his death?
88. On the evidence the Tribunal also finds that the Veteran smoked at least 20 pack years of cigarettes between the time of his discharge from the Army and 1965. The date 1965 was identified as a date 20 years after the Veteran’s discharge, and allowing a consumption of 20 cigarettes per day. It is also a date before the clinical onset of his renal artery atherosclerotic disease. Clinical notes from Concord Hospital (exhibit 3) indicate that chronic renal failure was diagnosed in 1981 and that his hypertension had been difficult to control for the previous ten years. The Tribunal notes that “poorly controlled hypertension” is identified in the Statement of Principles for Renal Artery Atherosclerotic Disease as a clinical manifestation of that condition.
89. Hence, at least by 1981, and possibly as early as 1971, the Veteran suffered from chronic renal failure, and at least by 1971 he met the requirement of factor 5(a) of the Statement of Principles of smoking at least 20 pack years of cigarettes before the clinical onset of the condition. Therefore, the Tribunal finds that the Veteran’s war-caused smoking habit contributed to his renal artery atherosclerotic disease. Taking account of the decision of the Federal Court in Thompson (supra) the Tribunal finds that this is also established on the balance of probabilities without using a Statement of Principles.
90. As the Veteran’s renal artery atherosclerotic disease was the primary cause of his death, and as smoking is a causal factor in the development of that condition, then the Tribunal is reasonably satisfied that the Veteran’s death was war caused.
91. As the application to the VRB was lodged out of time the earliest effective date for payment of pension to the Applicant is 28 July 1996, being a date no earlier than six months before her application was lodged with the VRB. The Tribunal so finds.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member, and Dr P Lynch, Member
Signed: ....................A.Kanetkar..................................................
AssociateDate/s of Hearing 17 November 1999
Date of Decision 27 November 2000
Counsel for the Applicant N/A
Solicitor for the Applicant A.Toliopoulos, Legal Aid Commission
Counsel for the Respondent N/A
Solicitor for the Respondent R.Wilde, Dept. of Veterans' Affairs
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