Downing and Repatriation Commission - [2000] AATA 904

DECISION AND REASONS FOR DECISION [2000] AATA 904

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1998/558

VETERANS' APPEALS DIVISION          )
           Re      ELNA MAY DOWNING
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe (Senior Member) Dr J B Morley RFD (Member) Capt E T Keane OAM RAN Rtd (Member)

Date16 October 2000
PlaceBrisbane

Decision The decision under review is affirmed.

(Sgd) K L Beddoe
Decision No. 904/2000Senior Member
CATCHWORDS
VETERAN' AFFAIRS : Reasonable hypothesis – Whether death of veteran war-caused –Whether causative link between veteran's death and eligible service – Whether causative link between hypertension and salt consumption

Veterans' Entitlements Act 1986 – s6A, s8, s120(3), s120A

Re Ovenden and Repatriation Commission 2000 AATA 80
Re Oakman and Repatriation Commission 1999 AATA 125
Re Teese and Repatriation Commission 1998 AATA 218

REASONS FOR DECISION

16 October 2000 Mr K L Beddoe (Senior Member) Dr J B Morley RFD (Member) Capt E T Keane OAM RAN Rtd (Member)

The applicant widow applied for review of a decision by the respondent that the death of her husband, Colin Downing, was not war-caused. The Veterans' Review Board affirmed the Commission's decision of 28 June 1995. The original application was dated 25 November 1994.
At the hearing Mr O'Gorman appeared for the applicant and Mr Smith represented the respondent Commission. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and the following documents were marked as exhibits:
Exhibit A                -            Statement by the applicant
Exhibit B                -            Further statement by the applicant
Exhibit C                -            Report by Dr Goodwin, Physician
Exhibit 1-            Report by Dr Grant, Senior Medical Officer with
report by Dr Kenardy dated September 1998
Exhibit 2-            Report by Dr Kenardy, Associate Professor in
Clinical Psychology
Exhibit 3-            Report by Dr Douglas, Physician.
Oral evidence was given by the applicant, her daughter and Dr Kenardy.
The deceased veteran enlisted in the Australian Army on 16 October 1940 but commenced service from 2 January 1942 and thereafter saw service in Australia and Papua New Guinea. He was discharged on 4 July 1946. Because the veteran served overseas section 6A of the Veterans' Entitlements Act 1986 ("the Act") operates to deem his service to be operational service.
Section 8 of the Act relevantly provides that the death of a veteran shall be taken to have been war-caused if the death arose out of, or was attributable to any eligible war service rendered by the veteran.
Section 120(3) of the Act requires us to consider whether there is a reasonable hypothesis, pointed to by the raised facts, which, although not proved on the balance of probabilities suggests a connection between the veteran's death and his eligible service.
The hypothesis will be a reasonable hypothesis where:
(a)it is more than a possibility with some degree of acceptance – this will usually be the case if it is proposed by a person eminent in the relevant field of expertise – i.e. it is not fanciful, lacking credit or too tenuous; and
(b)the hypothesis meets the requirements of section 120A of the Act and in particular, on the facts of this case, the Statement of Principles upholds the hypothesis.

The claim will succeed if those steps have been met unless the Tribunal is satisfied, beyond reasonable doubt, that the death was not war-caused (s120(1)).

The veteran was promoted to staff sergeant in April 1942 and posted to 8 Military District in Papua New Guinea immediately thereafter and is recorded as suffering malaria for the first time on 21 June 1942. Thereafter he is recorded as serving in tropical areas – mainly New Guinea, but also Northern Queensland, until he returned to Brisbane from Lae on 4 October 1945.
As to blood pressure it was 150/90 at 25 July 1941 i.e. prior to enlistment in the A.I.F. and 150/80 on the report of his examination on discharge dated 31 May 1946. During the same period his body weight increased from 126lbs to 154lbs.
The veteran's medical history while on service reveals incidents of:
(a)vaccination reaction causing incapacity for two days;
(b)malaria causing initial incapacity for 16 days and subsequent unspecified periods of incapacity;
(c)coryza (a rash for 24 hours also noted – probably caused by Atebrin) causing five days incapacity;
(d)abrasions and bruising resulting from motor-cycle accident with three days no duty.
The motor-cycle accident apparently had the effect of causing the veteran to cease using tobacco.
The applicant first met the veteran in 1943 and they married on 23 February 1946 while the veteran was still in the Army.
The veteran was born on 29 April 1920 and died 7 March 1972. Cause of death is set out in the death certificate as follows:
1. (a) Myocardial infarct (immediate)
(b)Coronary insufficiency (10 months)
(c)Labile (years)
(d)Hypertension (10 months)
2.Gross obesity (many years).

The applicant has disputed the diagnosis of obesity saying it was factually incorrect. On discharge the veteran weighed 154lbs (70kg). We are uncertain as to why (c) and (d) are separate diagnoses. The more likely diagnosis is labile hypertension.

The applicant said in evidence (Exhibit A) that the veteran always smothered his food with salt despite, it seems, advice from the applicant and others that he should not do so. He is said to have responded to such advice by saying that it was a habit formed while in New Guinea when he was given salt tablets. The applicant says that the excessive use of salt continued with only some modification until his death.
In her supplementary statement (Exhibit B) the applicant describes the consumption of salt by reference to the regular refilling of salt shakers. The applicant's evidence about heavy consumption of salt is corroborated by her daughter's evidence and is accepted as honestly given by the Tribunal.
The applicant also said that the veteran was treated for blood pressure for most of his married life. His daughter said that her father was attending a doctor (Dr Robinson) from the late 1950's. Malaria attacks were a problem for the veteran in the 10 years after his service. The applicant says that the veteran's blood pressure would rise when he was ill with malaria. He used medication to control increased blood pressure which was generally when he was ill with malaria.
The Medical Evidence
Exhibit C is a report dated 13 April 1999 by Dr Goodwin, Physician, who reviewed the section 37 documents and other documents including Exhibit A. He concluded there was no evidence of obesity as would be recognised by the Statement of Principles relating to obesity. Dr Goodwin reviewed the veteran's extensive service history in New Guinea and expressed the opinion, as a matter of fact, that it is highly likely that the veteran increased his salt intake, as he was told to do, during that service. Dr Goodwin went further and said it was general practice for soldiers serving in tropical areas to take salt tablets daily and also to increase the amount of salt showered on food. We do not know the factual basis for Dr Goodwin's statement but we see no reason to doubt that there is a factual basis for it and we take official notice on the basis that it is consistent with our understanding based on evidence in other cases. Dr Goodwin states that the habit of using quantities of salt on food was consistent with three and a half years of continuous operational service in the tropics.
Exhibit 3 is a copy of a report by Dr Douglas, Physician, dated 3 April 2000 and addressed to the Department of Veterans' Affairs. Dr Douglas considered the hypothesis that the veteran's death was, in part related, to aggravation of labile hypertension as a result of increased salt intake on service and that his labile hypertension contributed to ischaemic heart disease, which was the ultimate cause of his death.
Dr Douglas says the death certificate is confusing but he inferred that the effect of the causes of death noted was due to myocardial infarction caused by underlying coronary artery disease which in turn was contributed to by labile hypertension.
However, Dr Douglas then refers to another possible hypothesis when he notes that the veteran is reported as having variable blood pressure at different times during his married life – "when he had flare ups of malaria, his blood pressure became worse."
Dr Douglas noted the medical examination on enlistment and discharge and commented that the material does not indicate that the veteran's blood pressure was aggravated during his time of operational service, either because of salt intake or any other factor. Dr Douglas said that if the veteran had hypertension of a variety likely to be aggravated by a high salt intake then the four and a half years of operational service would cause some increase in blood pressure were he "salt sensitive hypertensive."
Exhibit 1 includes a report dated 28 May 1999 by Dr Grant, Senior Medical Officer. Dr Grant also refers to the veteran being hypertensive on enlistment; this was not made materially worse during service because of the blood pressure reading on discharge with a fall in the disatolic reading from 90 to 80. Dr Grant proceeds on the basis that there was no diagnosis of hypertension until 10 months prior to death. That finding is based on the death certificate but, in our view, seems to ignore the blood pressure reading on enlistment. That may have been discussed in Dr Grant's "earlier opinion" which is not before us.
Exhibit 1 includes a consultancy report by Dr Kenardy dated 26 October 1998 dealing with salt intake and addiction but not relating specifically to the facts of this case. That report discusses research in relation to the psychological and physiological processes that determine salt consumption and considers whether over-consumption of salt can be construed as substance dependence.
The report opines that there is no physiological need for an increased amount of sodium based on tests where untasted salt consumption was compared with tasted salt consumption. Nor is there evidence of withdrawal symptoms suggesting dependency or that over-consumption occurs because of a loss of control. In the result the report concludes that over-consumption of salt following a pattern of a high-salt diet cannot be construed as having an underlying mechanism of addiction. The physiological appetite for salt depends on depletion in the body rather than an addiction arising from use of salt.
In Exhibit 2 Dr Kenardy responded to two questions put to him by the respondent. He said that an increase in tasted salt will increase preference at approximately 50% of the increase of the actual salt consumed. He also said that taking salt tablets dissolved in water would be aversive because the salt concentration would far exceed the breakpoint of salt preference probably causing a reduction in salt preference.
In his oral evidence Dr Kenardy confirmed the contents of his written reports. He said that salt depletion drives salt appetite whereas salt preference is the cause of the use of additional salt. Consumption of salt is not habit forming and is a discretionary use based on salt preference where there is not a situation of salt depletion.
The Applicant's Submissions
Mr O'Gorman submitted that the late veteran's increased salt consumption was attributable to his war service. He said the Tribunal should find that the veteran had been ingesting extra salt amounting to 12grams per day in the six months immediately before he was diagnosed with hypertension and the veteran thereby came within paragraphs 5(c)/5(p) of the Statement of Principles (No. 64 of 1998 and No. 25 of 1999).
Mr O'Gorman relied on the blood pressure readings on enlistment and discharge and submits that there is no additional evidence other than the death certificate, as to when the veteran became hypertensive. That submission proceeds on the basis that the veteran was not hypertensive on discharge.
In essence the applicant relies on the over-consumption of salt since returning from war service and the opinion of Dr Goodwin and also the evidence of Dr Goodwin in relation to salt use during World War 2.
The Respondent's Submissions
The respondent's case is that the veteran was hypertensive on enlistment, the use of salt is discretionary – not habit forming and it is not open to the Tribunal to assume facts.
Consideration
We should say at the outset that we are conscious of a number of prior decisions in this area some of which were drawn to our attention – in particular:
Re Ovenden and Repatriation Commission                  (2000 AATA 80)
Re Oakman and Repatriation Commission                   (1999 AATA 125)
Re Teese and Repatriation Commission  (1998 AATA 218).

In Ovenden hypertension was first noticed in 1952, i.e. 7 years after discharge from war service and following excessive salt consumption after discharge. Contrary to Dr Kenardy's evidence in that case the Tribunal proceeded on the hypothesis that the veteran had a salt habit and found that a reasonable hypothesis had been raised.
In Oakman the Tribunal referred to salt tablets and crystalline salt but did not distinguish between the two. The Tribunal found that severe hypertension was diagnosed in 1966 i.e. 20 years after discharge. The diagnosis followed a series of strokes in the early 1960's. That decision seemed to depend upon a finding that blood pressure was "normal" on discharge from the Army.
In Teese the Tribunal had access to evidence of a history of blood pressure showing that the veteran was hypertensive on enlistment in 1940 but there was some improvement during service although again hypertensive on discharge in 1945. There was a subsequent history of very high blood pressure indicating a significant worsening in the years following discharge. The Tribunal proceeded on the basis that initial labile hypertension had become essential hypertension because of excessive salt intake during service – a proposition which in itself denies essential hypertension because the cause is described. The Tribunal found that there was an accurate diagnosis of hypertension on discharge and evidence of ingestion of 12 grams of salt per day for the continuous period of at least six months prior to the diagnosis.
In the present case we are satisfied the veteran was given and used salt tablets during his service in Papua New Guinea and Northern Australia. We are not satisfied, however that the taking of salt tablets could be habit forming. We therefore consider that there is no causative link between the taking of salt tablets and the subsequent over-consumption of crystalline salt after discharge. Having come to that view with the assistance of Dr Kenardy's evidence we are unable to accept Dr Goodwin's hypothesis which depends on a salt habit formed in New Guinea while taking salt tablets.
In our view Dr Goodwin's hypothesis is untenable because it does not contain any basis for a connection between ingesting salt tablets on the one hand and the subsequent habit of ingesting excessive amounts of crystalline salt. The salt tablets, being tasteless, satisfied a physiological need (real or assumed) whereas the excessive use of crystalline salt indicated a taste preference and not a physiological need.
We are also satisfied that there is no relationship between the veteran's service and the subsequent use of crystalline salt. Nor are we satisfied that the use of salt tablets during service resulted in a material contribution to or aggravation of the veteran's hypertension during service. The blood pressure readings on enlistment and discharge do not admit of such a finding.
In our view the decision under review was correct and will be affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member), Dr J B Morley RFD (Member) and Capt E T Keane OAM RAN Rtd (Member)
Signed:
  T G Lowther
   Associate
Date of Hearing  7 April 2000
Date of Decision  16 October 2000
Counsel for the Applicant  Mr D O'Gorman
Solicitor for the Applicant  Gilshenan & Luton
Representative for the Respondent         Mr Smith