Everist and Repatriation Commission - [2000] AATA 521

DECISION AND REASONS FOR DECISION [2000] AATA 521

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1550

VETERANS' APPEALS DIVISION       )
           Re:     Elizabeth Lorna EVERIST – Legal Personal Representative of Raymond Gibson EVERIST (deceased)
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P Lynch, Member

Date28 June 2000
PlaceSydney

Decision      The Tribunal affirms the decision under review.
  ..............................................
  M T LEWIS
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - entitlement - whether atherosclerotic peripheral vascular disease attributable to defence service - Statement of Principles applied - whether suffered hypertension before clinical onset of condition - whether obtained proper clinical management for hypertension
Veterans' Entitlements Act 1986 - ss 120(1), 120(3), 120(4), 120B
Statement of Principles - No. 88 of 1995, No. 26 of 1999, No. 84 of 1995

Repatriation Commission v Keeley [2000] FCA 532
Re Everist and Repatriation Commission (AAT 10311,21 July 1995)
Re Kennedy and Repatriation Commission (1990) 21 ALD 278
Treloar and Australian Telecommunications Commission (1990) 26 FCR 316
Brew and Repatriation Commission (1999) 94 FCR 80
Re Crowe and Repatriation Commission (1999) 28 AAR 548
Johnston v Commonwealth (1982) 150 CLR 331
Lee v Minister of Pensions (No.2) (1948) 3 War Pensions Reports 1901

REASONS FOR DECISION

28 June 2000 Mrs M T Lewis, Senior Member Dr P Lynch, Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 5 November 1996 which refused a claim made by Raymond Gibson Everist ("the Veteran") in respect of atherosclerotic peripheral vascular disease affecting both legs. That decision was affirmed by the Veterans' Review Board ("the VRB") on 1 July 1998. The Veteran lodged an out of time application for review by this Tribunal on 29 October 1998 and subsequently an extension of time was granted.
The Tribunal was advised just prior to handing down its decision that the Veteran had died. Subsequently his widow, Elizabeth Lorna Everist, was appointed by the Respondent on 26 June 2000 as the Veteran's legal personal representative pursuant to s 126 of the Veterans' Entitlements Act 1986.
The Tribunal had before it the documents produced by the Respondent pursuant to the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Medical reports of Dr M G Miller, consultant physician, dated 18 June 1999, 12 October 1999 and 28 August 1994 (exhibit A);
Medical certificate of Dr G Rowe, dated 13 October 1999 (exhibit B).

The following documents were tendered as evidence on behalf of the Respondent –

Medical reports of Dr D Richards, consultant cardiologist, dated 1 April 1999 and 12 October 1999 (exhibit 1).

The Veteran was unable to give evidence at the hearing because of the effect it would have on the poor state of his health and because his memory and cognitive functions have been severely compromised due to the effects of cerebral infarcts and cerebral atrophy (exhibit B). Dr Miller was called by the Applicant and gave telephone evidence at the hearing. Dr Richards was called by the Respondent and gave evidence at the hearing.
The Veteran had extensive service in the Royal Australian Navy. He had operational service in World War 2 from 28 February 1946 to 2 January 1949. He also had operational service in Korea from 6 August 1951 to 17 October 1951. He had eligible defence service from 7 December 1972 to 2 February 1979.
legislation
The standard of proof to be applied to the Veteran's two periods of operational service is found in ss120(1) and 120(3) of the Veterans' Entitlements Act 1986 (Cth) ("the Act"), which requires the Tribunal to determine, with respect to those periods of the Veteran's operational service, that his condition was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the condition with the circumstances of the Veteran's service. The standard of proof to be applied to the Veteran's defence service is provided in s120(4) of the Act, which requires the Tribunal to determine the matter to its reasonable satisfaction. As the Veteran 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.
It is the Veteran's case that his atherosclerotic peripheral vascular disease arose from his hypertension that could have been diagnosed while he was serving in the Navy as early as March 1973 but it was not in fact diagnosed until December 1975. This relates only to his period of defence service, and therefore the standard of proof to be applied is the balance of probabilities.
The relevant Statement of Principles concerning Atherosclerotic Peripheral Vascular Disease is Instrument No. 88 of 1995. At least one of the factors in that Statement of Principles must be found by the Tribunal to exist before it can be said that on the balance of probabilities atherosclerotic peripheral vascular disease is connected with the circumstances of the Veteran's defence service. The Veteran relies on factor 1(c ) which states –
Suffering from hypertension before the clinical onset of atherosclerotic peripheral vascular disease;

The Veteran also relies on factor 5(x) in Instrument No. 26 of 1999 in respect of Hypertension, where one of the factors that must exist before it can be concluded on the balance of probabilities that hypertension is connected with the Veteran's service is –

Inability to obtain appropriate clinical management for hypertension.

The Tribunal notes that that factor is the same as factor 5(w) in Instrument No. 84 of 1995, that being the Statement of Principles in place at the time of the primary decision. Hence, taking into account the decision of the Full Federal Court in Repatriation Commission v Keeley [2000] FCA 532, the Veteran is not in reality affected by the fact that the Statement of Principles in place at the time of the primary decision has since been revoked. The outcome is the same no matter which Statement of Principles is applied.
evidence

The Veteran was born on 3 February 1924. He joined the Royal Australian Navy in February 1946. Although the Veteran rendered two periods of operational service in World War 2 and in Korea, the focus at the hearing was on his defence service between 7 December 1972 and 2 February 1979 and its relationship with his medical conditions.
Although the Veteran was unable to give oral evidence at this hearing, he lodged an earlier claim in respect of ischaemic heart disease which was also heard by the Tribunal; Re Everist and Repatriation Commission (AAT 10311, 21 July 1995) (T11). At the hearing of that matter he provided a history of his naval service encompassing the nature of his work and the tasks required to be performed. That history, insofar as relevant, was effectively summarised as follows –
….. and after leaving school at an intermediate stage, served an apprenticeship as a fitter and turner before joining the Royal Australian Navy in February 1946. The veteran served in the occupation forces in Japan and subsequently in Korea as a Chief Petty Officer Ordnance Artificer. From thence until 1962, he served in various RAN fleet units, always in an ordnance engineering capacity. From 1962 until 1966, when he was commissioned, he was shore based, initially instructing in ordnance engineering and then as an ordnance engineer with the ASW missile project office. After commissioning, he was appointed to the Bendigo Ordnance Factory as an ordnance overseer. In 1968, he was promoted to Lieutenant Commander, and in 1970, posted to Garden Island Dockyard as assistant to the Superintending Weapons Engineer.
In December 1973, he was posted to Cockatoo Dockyard as the Quality Assurance Engineer, being responsible to the Principal Naval Overseer, initially Commander Krummel, and then Commander Fuller. His responsibilities encompassed a wide field of naval engineering, including refit officer for the half life modernisation of HMAS Yarra, and project officer for submarine refits, and at one point, post refit trials. In 1978, he was promoted to A/Commander, assuming the responsibilities of Principal Naval Overseer for engineering and refit activities at Cockatoo Dockyard.[pp5-6]
…..
Commander Fuller, in his evidence before the Board and the Tribunal, noted that the veteran had been his deputy from 1976 to 1978. His duties included refit officer during the half life modernisation of HMAS Yarra, "a major task" in the view of Commander Fuller, and as project officer for the refit of HMA submarines. In the course of his duties, "he was heavily involved in the identification and assembly of modifications for radar and gunnery equipments, which entailed many extra hours of research in order to meet project deadlines".
Before the Tribunal, the veteran indicated that in the absence of his superiors from time to time….. he was also required to undertake some of their tasks, a situation which he found stressful, considering the work "far beyond his experience". He had earlier indicated that his tasks at Cockatoo Island exposed him to a much wider range of responsibilities than he had experienced as an ordnance engineer. He stated that he found a need to work long hours, and do much work "to get ahead of the job" on his way home and at home.
He stated he experienced considerable frustration in addressing problems with stores supply, making demanding timetables hard to achieve. In response to questioning by the respondent, the veteran stated that whilst he raised the stores problem and the resulting workload problems with his superior (Commander Krummel) on one occasion that he could recall, he did not see any point in formally presenting his concerns as "there was no real answer" and he "would just have to resolve the problems" himself. He conceded that he had not complained of the stores problems or any other similar issues at his annual medical examinations.
The veteran further indicated that liaison with Cockatoo Dockyard management was sometimes difficult, particularly because of the wide range of responsibilities with which he had to deal, and the span of engineering disciplines, often outside his specialty, that he had to manage. He indicated that in the context of the two year half life modernisation of HMAS Yarra, he had to postpone leave because of job commitments.
In summary, the veteran was of the opinion that much of the work he was required to undertake during his period of service at Cockatoo Dockyard was outside his experience as an ordnance engineer, was demanding of time, research, decision-making, supervision of a multitude of trades and professional judgement in areas (and ships) where he had no previous experience. Commander Fuller confirmed his view that these duties "were of an extremely stressful nature".[pp12-13]
In those proceedings the Respondent admitted the Veteran suffered periods of stress during defence service and operational service, but submitted that the stress suffered at Cockatoo Dockyard did not contribute materially to the condition of hypertension (p11).
The Veteran was examined by Dr Miller, consultant physician, on 25 August 1995 (exhibit A). The history provided to Dr Miller corresponds with the evidence given by the Veteran in the earlier proceedings, in addition to providing further information about his service, viz. –
In 1978 the Commander retired and he was promoted in his place to the rank of Commander. He was now able to delegate the quality assurance work to his new assistant and he found that from then onwards until he left the Navy he had very much less stress. All in all he had five years of immense stress which he was able to cope with, but only by dint of intense study and application and by putting in long hours and working when off duty. During the refit of HMAS Yarra he told me that he was constantly tired and was aware that he was making mistakes which he should not have made….
In the absence of contrary evidence, the Tribunal finds that the Veteran's work history as documented above is a true account, and in the circumstances is to be regarded as the best evidence at hand before the Tribunal.
medical evidence
The Veteran's blood pressure history from the time of service in 1946 to 1995 can be summarised as follows –
Date Age Blood pressure reading and other relevant observations

04.02.1946 22 120/70 – enlistment medical examination

10.09.1959 35 100/60

18.03.1963 39 130/80

21.01.1964 39 110/70

28.04.1966 42 130/70

21.02.1968 44 115/75

28.02.1969 45 130/75

28.02.1969 45 Normal ECG

03.03.1970 46 Normal ECG

30.03.1971 47 110/60

28.07.1973 49 150/85

July 1974                   50                  Clinical notes of Dr Brodziak, medical consultant,
  Dated 2 December 1975 "BP July last was
  150/100 – "a minimal rise for his age group".
  ( T3, p16)
17.03.1975                51                  150/100

July 1975 51 150/100

11.07.1975 51 150/100

31.10.1975 51 Hypertension for investigation

31.10.1975 51 180/110 - Diagnosis Hypertension
Dr Brodziak's records note "For weekly BP for 1/12".

06.11.1975 51 150/105

02.12.1975 51 IVP – No renal cause for hypertension demonstrated

03.12.1975                51                  175/100. Dr Brodziak noted "recent BP not
  recorded - only 'elevated' …. Peripheral arteries do
  not appear thickened and the retinal arterioles
  show no more than a not abnormal grade I
  arteriosclerosis. Heart and chest and abdomen
  appear normal … daily diuretic may prevent any
  increase of BP but he does not need stronger anti-
  Hypertensive treatment" (T3, p16-17).

22.12.1975 51 Prescribed medication for hypertension

03.03.1976 52 150/100

17.03.1976                52                  150/100 - The Veteran was examined by Dr
  Brodziak for epigastric discomfort who noted "No
  Symptoms as regards the incidental finding of a
  Mild hypertension for which he takes a diuretic.  BP 150/100, which is an acceptable level. To
  Continue his diuretic…"

10.08.1976 52 145/105. 150/100 after 10 mins rest. ECG – ST
depression over infero-lateral leads…..

02.02.1977 52 155/100

22.06.1977 53 130/80

29.06.1977 53 ECG

15.03.1978                54                  150/82 - Dr Brodziak notes (T3, p11) blood
  pressure well controlled and normal - takes 1
  Hygroton for "mild hypertension". "No ECG for 9
  months…. He did have non-specific T. wave
  Flattening and now he has extra systoles".
17.04.1978                54                  ECG

12.07.1978 54 ECG "unchanged"

21.09.1978 54 120/80

20.11.1978 54 128/78

1985/86 61 Coronary occlusions - Sutherland Shire Hospital

02.05.1994 69 139/90 – Adalat - Dr Rowe (T12, p72)

28.08.1994 69 140/100 lying, 130/75 standing (exhibit A)

15.05.1995 70 140/100. Adalat - Dr Rowe (T12, p72)

01.06.1995 70 145/110 - start Zestil - Dr Rowe
08.06.1995 70 130/95 - increase Zestil

Dr P Tong, the Respondent's Departmental Medical Officer (T8) in a report dated 28 October 1991 opined –
..probably the veteran had been on diuretics for a number of years since December 1975 and had required continuous medical treatment for his hypertension since the 1980's. Whether & for how long his diuretic had been stopped, if it were so, before he had required further medical control in the 80's for his blood pressure is not known. But in all probability his essential hypertension could be considered to have started in 1975 and was related to his age as suggested by Dr Brodziak at the time. I agree with Dr Brodziak entirely, namely no other factor could have predisposed him to his essential hypertension.

Dr I Mackie, FRACP, in his report dated 29 April 1998 (T24, p134) in response to a question from the Respondent regarding appropriate clinical management during the period 1975 to 1978, said he was not convinced that the Veteran's blood pressure was adequately controlled. However he was provided with only two blood pressure readings for that period and opined that assessment of blood pressure even in the 1970's required multiple blood pressure readings over a prolonged period. He also said that diastolic readings of 100 or more are "always worrying". He added that there were medications in 1976 more potent than Hygroton which were being used regularly in the management of hypertension.
In another report dated 1 April 1992, (T9) Dr I Mackie stated that the Veteran suffered "significant hypertension at the age of 51 and it was not at any stage treated adequately in that he was only given diuretics". Dr Mackie did not accept the Veteran's hypertension as mild and insignificant as he had diastolic readings of over 100 mm and required treatment.
Dr Mackie, in his report dated 5 August 1993 (T10), notes the effect of stress and its impact on the Veteran's hypertension. He opined that the Veteran's occupational stress from working at the Cockatoo Dockyard in late 1974/early 1975 may well have been a relevant factor in the genesis of his hypertensive vascular disease.
Dr Miller, consultant physician, examined the Veteran on 25 August 1994 and prepared 3 medical reports dated 28 August 1994, June 18 1999 and 12 October 1999 (exhibit 1). He is also qualified as a cardiologist. In oral evidence, Dr Miller identified hypertension and atherosclerosis as the two main causes of the Veteran's condition; hypertension contributing to his atherosclerosis and the atherosclerosis being the cause of the peripheral vascular disease.
Dr Miller said the Veteran's blood pressure first became abnormal when it increased in July 1973 to 150/85. According to the guidelines of the WHO and the International Society of Hypertension in 1993, systolic hypertension of 150 was considered abnormal.

Dr Miller also considered the Veteran's subsequent blood pressure readings between March 1975 and February 1977 to be significantly abnormal. Dr Miller opined that the readings remained high until February 1977, with an average reading of 150/100. Following treatment, readings of 150/100 and 140/105 were recorded in August 1976 and in February 1977 it was 155/100. This meant that his blood pressure really had not changed. Dr Miller attributed this to unsatisfactory treatment.
Dr Miller opined that in hindsight the Veteran first showed signs of the clinical onset of hypertension as early as March 1973 (using the 1993 criteria). If he was using 1975 criteria, the clinical onset would have been March 1975. If he was examining him in the 1960's-1970's, Dr Miller would have been suspicious of a systolic 150 but he would not have diagnosed that as being pathological.
Dr Miller referred to The Encyclopaedia of Medical Practice 1950 which specified criteria for the diagnosis of hypertension in 1950. At that time diastolic pressure of 100 was considered to be abnormal even though a systolic elevation of 150 was not necessarily abnormal. The Encyclopaedia also states –
Hypertension where the systolic is elevated to 150 or higher and the diastolic of 100 is definitely abnormal.

Dr Miller said that in 1975 the Veteran's blood pressure had elevated despite treatment with diuretics.

The Veteran's first treatment for blood pressure did not commence until December 1975, nine months after elevated blood pressure was first detected. Dr Miller did not consider that delay to be good medical practice. He said that if someone had presented to him with 150/100 blood pressure reading in 1975 he would have repeated the blood pressure, perhaps on a weekly basis. He would have investigated suitable causes of blood pressure and would have commenced treatment before investigations were finalised. He would have taken at least three blood pressure readings, a few days apart, before commencing treatment. Indeed, he would have commenced treatment after three weeks. He said that at least two blood pressure readings performed weekly (or monthly) would have to be taken before one would diagnose hypertension. If blood pressure remained elevated he would then have commenced treatment. Indeed Dr Miller alerted the Tribunal to the fact that in October 1975 there were weekly blood pressure readings ordered for one month that apparently were not done (T3, p20). He recalled asking the Veteran about this, but he was unable to remember. Dr Miller also said that he would have referred the Veteran to a specialist within a month after knowing that the treatment was unsatisfactory.
Dr Miller opined that in 1975 appropriate treatment for blood pressure after diagnosis of hypertension was made, would begin with prescription of a diuretic, followed by monthly or more frequent monitoring. One would also inquire from the patient as to proximal risk factors for elevation. Dr Miller noted that in 1975 the effects of alcohol were not as well recognised as now. Nonetheless one would have investigated lifestyle and emotional stress. Perhaps weekly, and over a period of the next few months he would then have assessed whether the treatment was satisfactory. If it was assessed to be inadequate, he would then have considered prescribing other medication such as a beta blockading agent or calcium antagonist. He said he would have started using a drug like Verapamil or Isoptin (calcium antagonist) added to the diuretic. If that did not work, then the dosage could have been increased or one could have tried a combination of treatments. A further alternative would have been to prescribe Aldomet. Essentially, one would start with a single medication and then go to double treatment, observing side effects and interaction between medications, proceeding to triple treatment if required.
Dr Miller said the problem with the treatment the Veteran underwent in 1975 was the fact that there was no continuous monitoring. He did not consider six monthly blood pressure readings over a period of three years as "monitoring". Even if the blood pressure reading was improving after treatment, at the very least one would have monitored the Veteran monthly.
Dr Miller opined that it was very likely, but difficult to prove, that there was still an underlying abnormality in the Veteran's blood pressure despite that it was being controlled for a time by the diuretic. He said if a diuretic works, it usually works within a short period of days after the commencement of treatment. He said that the diuretic was probably having an effect on his blood pressure towards the end of 1978, but it should have been ceased for a period to observe the effect on his blood pressure in order to confirm that conclusion.
Dr Miller noted also that an ECG taken in August 1976 indicated abnormality, suggesting target organ involvement from a high blood pressure over a much earlier period, suggesting that the atherosclerosis had been contributed to by factors, such as age, hypertension, serum lipids and family history. Serum lipids at that time were normal and cholesterol would also have been considered normal using 1975 criteria. Elevated blood pressure from the period between 1973 to the date of the ECG abnormality in 1976 was sufficient time for this to have had an effect on the Veteran's heart.
Dr Miller agreed that subsequent to February 1977 the Veteran's blood pressure reading on 26 June 1977 had returned to normal. Dr Miller considered that the Veteran had systolic hypertension in March 1978 and normal blood pressure in September and November 1978 when apparently he was taking a diuretic.
Dr Miller understood the Veteran stopped taking diuretics some time in 1979, after he left the Navy and after Dr De Souza changed the treatment. One could infer from that, notwithstanding the apparently normal readings in late 1978, that there was still monitoring and adjustment of the medication in 1979. Nonetheless, in Dr Miller's opinion, despite that monitoring, on the balance of probabilities, the Veteran's blood pressure was not properly controlled.
In his report dated 28 August 1994 (exhibit A) Dr Miller opined that the Veteran developed hypertension during the period of his eligible defence service from December 1972. He also noted that the Veteran was also experiencing very severe work stress at Cockatoo Dockyard during that period. Dr Miller expressed no doubt that the Veteran was exposed to chronic stress from the period 1973 until 1978. He considered it significant that during this period the Veteran's blood pressure rose from being normal to hypertensive.
Dr Miller noted evidence in the literature of prolonged stress temporarily increasing blood pressure, and said that doctors agreed that temporary elevation of blood pressure can occur during emotional stress. If the emotional stress continues, blood pressure cannot return to normal unless the stress dissipates. Therefore he considered on the available readings that the Veteran's blood pressure decreased after February 1977, it was back to normal on 22 June 1977, and by 1978 the emotional stress of his work had dissipated hence blood pressure returning to normal.
Dr Miller opined that it was good clinical management to investigate the possibility of stress contributing to hypertension and to remove the person from the source of the stress to reduce the hypertension. Although stress was recognised as causing elevation to blood pressure in 1999 it was certainly also a factor in 1975. If the Veteran was removed from his stressful job, Dr Miller considered the blood pressure would have dropped after the treatment with diuretic.
Dr Miller also stated that if appropriate treatment had been given, the Veteran's blood pressure would not have accelerated to the same degree. If treatment had commenced earlier, the onset of his complications would not have developed as early as they did. If treatment while on service had been of a nature to control the Veteran's blood pressure, the subsequent development of peripheral vascular disease would not have occurred when it did. Dr Miller said, however, that in spite of the best treatment for hypertension in the 1970's, it was likely that the Veteran would have developed peripheral vascular disease in any case. Therefore, the issue was whether his condition was accelerated.
Dr Richards is a consultant cardiologist. He obtained his basic medical qualifications in 1973, and gained his knowledge of best medical practice in the treatment of hypertension in 1975 at the Hypertension Clinic when he was an intern and hospital registrar. He qualified as a cardiologist in about 1980/1981. He prepared 2 medical reports dated 1 April 1999 and 12 October 1999 (exhibit 1).
In his report dated 1 April 1999 (exhibit 1), Dr Richards noted that the Veteran first had documented sustained hypertension in December 1975. In oral evidence, however, he said that although the clinical onset of hypertension was 1975, he was unable to specify whether it was in March, June or October of that year. With a background of normal pressure for several years, the fact that his blood pressure was elevated in March was not enough to constitute a diagnosis of hypertension at that time. Indeed during 1975, his blood pressure was consistently elevated until late 1975 when he was treated.
Dr Richards explained that blood pressure is a dynamic physiological observation that can depend on a number of factors including the time of day, the amount of time the patient has rested, the circumstances before the observation of blood pressure, and the presence of pain or anxiety or other symptoms.
Dr Richards clarified that in 1975, borderline hypertension, as defined in the textbooks of that time, referred to recorded blood pressure readings averaging 150/90 and 160/100, with occasional normal readings and no evidence of target organ damage. Mild hypertension at that time was considered to be a diastolic of 95 to 100 or 105 mm. In a person younger than 40 years, the upper limit of normal blood pressure was 140/90 with an adjustment made for age on the assumption that normal blood pressure tended to rise with age.
Dr Richards disagreed with Dr Miller's view that because the Veteran's blood pressure was still high in 1976 and early 1977, that was a result of inappropriate clinical management. In 1975, the Veteran was 51 years old. Dr Richards considered persistent systolic readings of 150 to 160 and diastolic readings of 92 to 100 would have been seen as borderline hypertension in that era for a person of the Veteran's age and it would have raised the need for investigation as was undertaken in this case. However it was not inappropriate clinical management of hypertension to leave a 51 year old person with a blood pressure reading of 150/100 without treatment or monitoring for a period of 4 months. Dr Richards said this reading fell into the low end of borderline hypertension for someone aged 51 years, and it was common in civilian practice in 1975 not to treat blood pressure of that level. According to Dr Richards, the range of recordings which exist in this case would not have alarmed him nor those who were teaching him to manage hypertension at that time in civilian practice.
Furthermore, Dr Richards considered the frequency of monitoring observations in this case was probably sufficient because the Veteran's blood pressure did not rise above 150/100. He considered it "best practice", as opposed to common practice, to allow a person who at the age of 51 presents a blood pressure reading of 150/100 to not be observed for 4 months. To make a diagnosis of hypertension prematurely may be inappropriate. Furthermore the other medications available would have resulted in significant side effects. All in all, it would have been inappropriate to act more aggressively at that time.
Dr Richards explained that the management and diagnosis of hypertension is different now from 1975. Although blood pressure rises with age, Dr Richards explained that current practice is to control blood pressure at any age. Hence doctors are now more aggressive in the diagnosis and treatment of hypertension. If a person presented now with a blood pressure reading of 150/100 following a similar reading four months earlier, it was reasonable to review him/her some three to four months later on the basis that the blood pressure was stable at that level. Dr Richards emphasised that the investigations undertaken on the Veteran in about November 1975 were conducted at the right time.
In his report dated 1 April 1999 (exhibit 1), Dr Richards opined that the clinical management of the Veteran's hypertension had been appropriate because when hypertension was diagnosed, primary renal and adrenal causes for hypertension were sought and regular diuretic therapy was introduced. Although his blood pressure was elevated subsequent to treatment of his condition, Dr Richards indicated that it is impossible to know whether different therapeutic regimes at the time of onset of treatment would have achieved better control of his blood pressure earlier than was the case.
In the Veteran's case in 1975, his renal function was normal, he did not have retinopathy, or left ventricular hypertrophy. He also had no features to suggest that he had end organ damage due to sustained hypertension at that time. This was not to say that in the absence of any end organ damage, one would not make a diagnosis of hypertension where blood pressure is persistently elevated; in fact one would. However at the same time, diagnosis would not be made on one or two observations of blood pressure alone.
Dr Richards agreed with the comments made by Dr Brodziak (T3, pp16-17) that the Veteran was suffering from mild hypertension in the circumstances where his electrolytes had been checked, urine analysed, and intravenous pyelogram showed no evidence of a primary adrenal or renal cause for hypertension. He also agreed with the treatment of a daily diuretic prescribed by Dr Brodziak and that the Veteran did not need any stronger anti-hypertensive treatment. Although Dr Miller recognised the use of other agents such as calcium antagonists, beta blockers and Aldomet, Dr Richards indicated that calcium antagonists were new on the market at that time, commonly caused constipation, were poorly tolerated by patients and considered to be "lousy anti-hypertensives". Beta blocking agents were also new and commonly associated with asthma, nightmares and impotence and were not pushed as first line therapy. Aldomet was also available at the time. However it often caused neurological side effects and one would not have rushed to use that line of treatment.
Dr Richards said the fact that the Veteran's blood pressure was unequivocally normal on simple therapy for two years when he was taking Hygroton suggested that the treatment was quite adequate and appropriate. Notwithstanding that he was on diuretics for 1½ years after commencing medication with no sign of improvement, Dr Richards considered there was no deterioration in the Veteran's blood pressure and this would have been interpreted as effective treatment at the time.
With respect to stress, Dr Richards did not agree with Dr Miller that the Veteran should have been taken away from his stressful work environment on the basis of the blood pressure readings alone as there was no evidence that his blood pressure was harmful at the time.
submissions
Applicant
It was submitted that in relying on the evidence of Dr Mackie and Dr Miller, there was clear indication of a high blood pressure reading (150/100) in March 1975, which was similarly recorded in July 1975, but investigation of the condition did not occur until after 31 October 1975 when a reading of 180/110 was recorded. The first significant recording of elevation in the Veteran's blood pressure was in March 1975. It was submitted that such a delay in instigating investigation and treatment was inadequate. On this basis the Veteran met the relevant factor in the Statements of Principles in order to establish that the failure to treat his hypertension contributed to the earlier onset or acceleration of peripheral vascular disease.
The Tribunal was urged to consider Dr Miller's view that good clinical management of hypertension involves removing that person from a stressful situation; in this case there was evidence of constant elevated blood pressure until mid 1976.
It was submitted that the first Australian case that accepted inability to obtain appropriate clinical management" giving rise to legal liability was Johnston v Commonwealth (1982) 150 CLR 331. In that case, the High Court cited the English decision of Lee v Minister of Pensions (No.2) (1948) 3 WPAR 1901, where Denning J stated in relation to the definition of "appropriate medical treatment" at 1914 -
Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service….
It was submitted that failure to treat the Veteran's hypertension earlier than December 1975 contributed to the acceleration of the onset of his peripheral vascular disease. The issue of contribution has been discussed Re Kennedy and Repatriation Commission (1990) 21 ALD 278 and in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316. In Treloar the Full Federal Court said, at 323 –
All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth, be part of the cause. If they are not, then they do not "contribute".
…..Once the link is established however, it matters not that the contribution be large or small.
It was submitted that on the balance of probabilities the evidence before the Tribunal indicated that the Veteran's inability to obtain proper clinical management of his hypertension contributed to the early onset of the disease; that is, one could have diagnosed it in March 1975 but this was not done. This contributed to the early onset of hypertension that then contributed to the early onset of peripheral vascular disease which led to the amputation of the Veteran's left leg.
Respondent
It was submitted that it was clear from Dr Richards' evidence that a high blood pressure reading does not necessarily lead to making a diagnosis of hypertension. It was also evident that monitoring blood pressure readings over a number of months was the best practice at that time.
On the evidence of Dr Richards the Veteran's blood pressure remained constant at 150/100 which itself was not a cause for concern at that time. Moreover, it could have been dangerous to diagnose hypertension too early. The Respondent relied on Dr Richards' view that alternative treatment to the diuretics would be likely to have had negative side effects, and in that context, the treatment the Veteran received was appropriate at the time.
With regard to stress, it was submitted that it was not a relevant factor in this case. No evidence had been received from the Veteran in relation to that. Further it was evident in any case, from Dr Richards' view that it would not have been appropriate to remove a person from a stressful situation just because of high blood pressure readings.
In essence, relying upon the conclusions reached by Dr Richards, any progression of hypertension in this case would have been the same whether treatment was in a civilian or military setting. It was submitted that all that could have been done was done. The Veteran was treated with a diuretic. His blood pressure did not worsen – it remained constant and started to improve after mid 1977 which, according to Dr Richards, was the best outcome that could have been achieved at the time. Essentially, appropriate investigations were undertaken and appropriate therapy was instituted. It was submitted that that meets the test for appropriate clinical management which is implied in the decision of the Full Federal Court in Brew v Repatriation Commission (1999) 94 FCR 80 and the decision of the Tribunal Re Crowe and Repatriation Commission (1999) 28 AAR 548.
consideration of evidence and findings of fact

The Tribunal considers that the decision of the Full Federal Court in Brew is not directly on point and therefore is not relevant in the present proceedings. Brew deals with a case where the Veteran was in some way inhibited from seeking medical treatment, rather than being unable to do so because of his service. However, the Tribunal's decision Re Crowe is directly on point. In that matter the Tribunal held that –
1.        The factor "inability to obtain appropriate treatment" could not be satisfied by applying modern medical practice and/or knowledge as though it existed in 1942.
2.        The inability to obtain appropriate clinical management must be solely due to the exigencies of service in the armed forces.
3.        The veteran would not have been treated any differently in 1942-1944 if he had been in civilian life at the time, and in the service he was managed according to accepted medical knowledge and standard practice at the time.
On the evidence the Tribunal finds that the Veteran suffered from borderline hypertension during his eligible defence service. While on to-day's standards the reading in July 1973 would alert a doctor to the need to monitor and investigate whether there was a clinical elevation in blood pressure, the Tribunal finds that in 1973 that was not accepted medical practice. The Tribunal notes, however, that the Veteran was undergoing regular routine medical examinations during his eligible defence service, and so there was a level of monitoring occurring routinely. Moreover, the Tribunal considers that, following Re Crowe (supra) with which the Tribunal agrees, the accepted clinical practice at the time of the Veteran's eligible defence service is the standard to be applied.
The Tribunal finds on the evidence of Dr Richards which it prefers, that the commencement of treatment with a diuretic in December 1975, following more intensive monitoring from 31 October 1975, was consistent even with best practice at the time. The fact that the Veteran's blood pressure remained elevated by to-day's standards is not relevant. As it continued to be at a "borderline" level despite treatment was not sufficient reason in 1975/1976 to move to more aggressive treatment. Dr Brodziak, who treated the Veteran's hypertension, considered that his blood pressure of 150/100 in March 1976 while being treated with diuretics was an "acceptable level", and Dr Richards confirmed that as being consistent with best practice at the time.
The Tribunal notes the evidence of Dr Miller that the vigilant monitoring and treatment routines were consistent with best practice in 1975. There is a conflict of medical evidence on this issue, with Dr Richards describing a different protocol. This is a matter where the Tribunal is required to prefer one opinion rather than the other. The Tribunal gives greater weight to the opinion of Dr Richards, which is consistent with the practice demonstrated by Dr Brodziak.
Having found that the Veteran's hypertension at the relevant time was only ever "borderline", and taking into account that it was monitored and treated in accordance with what the Tribunal considers to be consistent with best practice at the time, and having noted that his blood pressure reverted to normal for a period after he moved from his stressful work in the Navy and before his discharge, the Tribunal considers that all reasonable steps were taken to provide appropriate clinical management of the condition. Having found that the Veteran received appropriate clinical management for his hypertension, the issue of contribution of his hypertension to the later development of his atherosclerotic peripheral vascular disease does not arise.
The Veteran raised the issue of the temporary elevation of blood pressure because of the stress of his work in the Navy. However, stress is not a factor included in the Statement of Principles in respect of hypertension and therefore the failure of the Navy to move the Veteran from the source of his stress cannot be taken into account in the consideration of this matter. However, applying the principles identified by the Full Federal Court in Treloar (supra), even if stress had a temporary effect on keeping the Veteran's hypertension elevated during his eligible defence service, the Tribunal finds on the evidence that it is reasonably satisfied that because hypertension was only borderline and reverted to normal before his discharge from the Navy, there was no contribution from the hypertension that he suffered on service to the later development of his atherosclerotic peripheral vascular disease.
On the basis of these findings the Veteran does not satisfy the relevant factors in the Statements of Principles. The Tribunal therefore affirms the decision under review in respect of atherosclerotic peripheral vascular disease.
I certify that the 62 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:         .....................................................................................
  Associate
Date/s of Hearing  15 October 1999
Date of Decision  28 June 2000
Counsel for the Applicant        N/A
Solicitor for the Applicant         Anastasia Toliopoulos, Legal Aid Commission
Counsel for the Respondent    N/A
Solicitor for the Respondent    Susie Breuer, Dept. of Veterans' Affairs