Fraser and Repatriation Commission

[2002] AATA 418

DECISION AND REASONS FOR DECISION [2002] AATA 418

ADMINISTRATIVE APPEALS TRIBUNAL               Nº V1999/1370

Nº V2000/124

VETERANS'      APPEAL        DIVISION

Re:            MURRAY McARTHUR FRASER

(deceased)

Applicant

And:         REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             31 May 2002
Place:            Melbourne

Decision:The Tribunal affirms the decisions under review.

(sgd) B.H. Pascoe
  Senior Member
  VETERANS' AFFAIRS –hypertension and atrial fibrillation – whether war-caused – date of accurate determination of hypertension – date of clinical onset – whether additional salt ingested – whether higher ingestion of salt service related
Veterans' Entitlements Act 1986
Repatriation Commission v Burge [2002] FCA 623
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

31 May 2002  Mr B.H. Pascoe, Senior Member

1. These are applications to review decisions of the Veterans' Review Board ("VRB") which, on 18 August 1999, affirmed a decision of the respondent dated 15 August 1997 that the applicant's conditions of rheumatoid arthritis, bronchiectasis and hypertension were not war-caused and on 1 December 1999 affirmed the refusal by the respondent to accept the condition of atrial fibrillation as being war-caused.

2. The late veteran, Mr Fraser, died on 6 March 2000 after the applications had been lodged and his widow proceeded with the applications on behalf of his estate. At the hearing the applicant was represented by Mr D. Hyde, of counsel, and the respondent by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. Evidence was given by Mrs Fraser; Dr G. Wagner, cardiologist; Professor R. Harper, cardiologist; and Dr L. Walton, consultant psychiatrist. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered by the parties:

   Statement by Mrs Fraser dated 18 September 2000 – exhibit A1
   Report by Dr B. Collins, pathologist, dated 20 October 2000 – exhibit A2
   Report by Dr Collins dated 30 March 2001 – exhibit A3
   Report by Dr Wagner dated 29 November 2001 – exhibit A4
   Report WRITEWAY Research Services dated 28 August 2001 – exhibit A5
   Clinical onset of Dr D. Chong, general practitioner – exhibit R1
   Clinical onset of Dr Wagner – exhibit R2
   Transcript of VRB hearing of 18 August 1999 – exhibit R3
   Report of Professor Harper dated 18 September 2000 – exhibit R4
   Report of Professor Harper dated 5 September 2001 – exhibit R5
   Report WRITEWAY Research Services dated 2 August 2001 – exhibit R7
   Report WRITEWAY Research Services dated 15 August 2001 – exhibit R8
   Insurance proposal questionnaires – National Mutual Life Association of Australasia Limited 1947 and 1950 – exhibit R9

It was conceded for the applicant that the claims for the conditions of rheumatoid arthritis and bronchiectasis were not being pursued with the claims for the conditions of hypertension and atrial fibrillation remaining for consideration.

1. The late Mr Fraser served in the Australian Army from 19 November 1942 to 24 September 1946.  This constitutes eligible war service under the Veterans' Entitlements Act 1986 ("the Act") and, as he served in the South West Pacific area, the whole of such service was operational service. As Mr Fraser had operational service, s.120(1) of the Act provides that an injury or disease shall be determined as war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) provides that the Tribunal shall be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person. As the claim was made after 1 June 1994, s.120A of the Act requires the Tribunal to assess the reasonableness of a hypothesis in accordance with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority or any relevant determination or declaration under the Act. In this case the relevant SoPs are Instrument Nº 9 of 1996 concerning atrial fibrillation and Instruments Nº 83 of 1995 and Nº 31 of 2001 concerning hypertension. While the later SoP on hypertension is the relevant SoP for this hearing, the late veteran would be entitled to rely on the earlier SoP which was current at the date of his application if it is more favourable. Each of the SoPs set out the factors, one of which must relate to the late veteran's service, which must as a minimum exist before it can be said that a reasonable hypothesis has been raised. In this case the hypothesis raised was that the late veteran suffered from cardiac disease at the time of the clinical onset of atrial fibrillation (factor 5(a) of Instrument Nº 9 of 1996), such cardiac disease was the result of hypertension and the hypertension was the result of "ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension (factor 11(c) of Instrument Nº 83 of 1995). It should be noted that subsequent SoPs concerning hypertension (Instruments Nº 64 of 1998 and Nº 25 of 1999) amended the word "salt" to "salt supplements" and inserted the words "on average" before the words "for a continuous period of at least 6 months". Instrument Nº 31 of 2001 replaced the words "at the time of the accurate determination" with the words "before the clinical onset". There was no dispute between the parties, that if the Tribunal was to find that the late veteran's hypertension was war-caused, then it would follow that atrial fibrillation was war-caused also.

2. In her written statement, Mrs Fraser said that she was aware that her late husband had been given salt tablets during his service in the tropics, was encouraged to use extra salt and required to eat very salted rations such as bully beef.  She met Mr Fraser in 1947 and they were married in 1950.  She said that he always liked his food highly salted and added more salt at the table after she had added salt to the cooking.  She said that, after being diagnosed as hypertensive (in 1984), the late Mr Fraser was advised to reduce his salt intake and she stopped adding salt in her cooking.  In her oral evidence, she said that she progressively reduced the amount of salt after reading newspaper comments about health problems with salt.  She could not recall saying that it was in the 1970s, as recorded in the VRB decision, or when she and Mr Fraser were in their 50s (Mr Fraser was born in 1924), as recorded by Dr Walton, but acknowledged that it may have been at that time.  Mrs Fraser said that she believed that her cooking and use of salt was of the same style as Mr Fraser's mother so that his diet pre-marriage and post-marriage was very similar.

3. In his evidence before the VRB, the late Mr Fraser stated that there was no change between his pre-war diet and post-war diet in terms of salt intake.  While stating that he was provided with salt tablets during service in the tropical climates, he did not consider that the food during service was generally saltier than that to which he had become accustomed.

4. Dr Wagner commenced treating Mr Fraser for hypertension and atrial fibrillation in July 1984 after referral from his orthopaedic surgeon.  Both conditions were treated and came under good control.  In his oral evidence, Dr Wagner said that the effect of a high salt diet on hypertension was not clearly understood in the 1940s and 1950s and that an additional 12 grams of salt per day was not unusual and could be said to have been moderate in those days.  In noting that Mr Fraser was recorded as having a blood pressure reading of 140/90 in his medical examination prior to discharge in September 1946, Dr Wagner said that it was possible that hypertension was then present.  However, with recorded blood pressure readings of 120/78 in 1947 in a medical examination for life assurance and 118/80 in a Repatriation Department medical examination in 1970, Dr Wagner acknowledged that it was not possible to conclude either way on the presence of hypertension at any particular date prior to 1984.

5. Dr Walton interviewed Mrs Fraser on 14 June 2001 and provided a report dated 21 June 2001.  He took a history of Mr Fraser's mother and Mrs Fraser adding salt when cooking and Mr Fraser adding further salt at the table.  He noted that Mrs Fraser said that she became aware of the potential risks of added salt when she and Mr Fraser were aged in their 50s which prompted her to reduce the salt added to cooking to half and remove the salt cellar from the table with Mr Fraser becoming "used to it".  Dr Walton concluded that the late veteran, for a lengthy period pre-war and post-war, opted to consume food with added salt as a matter of personal choice and taste.  He did not believe that this choice and taste was significantly altered by the intake of salt tablets during service and was unable to identify any change in salt intake after service from that pre-service.  He noted that the late veteran had no apparent difficulty in reducing the salt intake after the risk became known in his 50s.

6. Professor Harper examined the documentation provided by the respondent and produced two reports dated 18 September 2000 and 5 September 2001.  He was of the view that the clinical onset of the late Mr Fraser's hypertension was in 1984.  He said that an isolated reading in 1946, which was at the upper limit of normal, was not sufficient to make a diagnosis of hypertension, particularly when normal readings in 1947 and 1970 were considered.  He noted also that the late Mr Fraser was seeing a Dr Strang for rheumatoid arthritis prior to 1984 with no reference by Dr Strang to hypertension.  In his oral evidence, Professor Harper said that it was possible that, in 1946, blood pressure was not seriously considered and that it was reasonable that the reading was not followed up.  However, he was of the opinion that the subsequent lower pressure readings meant that it was most unlikely that hypertension was present at that early time.

7. It was submitted for the applicant that increased salt intake during service produced hypertension which was present on discharge in 1946.  Alternatively, it was argued that the increased salt during the war caused the late veteran to adopt a habit of a high salt intake which increased consistently until the onset of hypertension.  It was said to be a reasonable hypothesis that war service caused an increased ingestion of an additional 12 grams of salt which resulted in hypertension and atrial fibrillation.

8. For the respondent, it was submitted that there was no accurate determination of hypertension until 1984; that well in excess of six months prior to that accurate determination the late veteran had reduced his salt intake well below the additional 12 grams per day, and that the evidence showed that salt supplements during the war had not caused any increase in salt ingestion thereafter when compared to pre-war. 

9. In a recent decision of Drummond J of the Federal Court in Repatriation Commission v Burge [2002] FCA 623 (10 May 2002), his Honour stated that the Tribunal is required, consistent with the decision of the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82:

   …

   (i)first, to consider the whole of the material before it and determine whether that material points to a hypothesis connecting the claimed conditions with the circumstances of the particular service rendered by the veteran, being a hypothesis that is not too fanciful, remote or tenuous;

   (ii)secondly, to identify the applicable Statement of Principles;

   (iii)thirdly, to determine whether the hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles; and

   (iv)finally, if such a hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles, to determine whether the factual foundation of the hypothesis is displaced beyond reasonable doubt.  

In this case there is a hypothesis which has been raised connecting the claimed condition of hypertension with the particular service rendered by the late veteran and connecting that condition with atrial fibrillation.  While the relevant SoP concerning hypertension is that current at the date of the Tribunal hearing, Instrument Nº 31 of 2001, the veteran is entitled to rely on the SoP current at the date of the claim, Instrument Nº 83 of 1995.  That earlier SoP referred to "salt" rather than "salt supplements" and "the accurate determination of hypertension" rather than "the clinical onset of hypertension".  The material before the Tribunal, however, does not point to the hypothesis being upheld by either SoP and, even if it could be said to so point, the factual foundation of the hypothesis cannot satisfy the requirements of the SoPs. 

1. The first question of fact requiring to be found is the date on which it could be said there was either an accurate determination of hypertension or the clinical onset of hypertension.  There is evidence of one reading of blood pressure at 140/90 in September 1946.  While reference was made in the hearing to the next recorded reading in 1950, it seems clear from the documents submitted that this reading was done in April 1947.  While attached to a statement in connection with a proposal for life assurance in 1950, there is another statement dated 17 April 1947.  The medical report containing the reading is in the same handwriting and refers to the late Mr Fraser being 22 years of age to his nearest birthday.  Being born on 5 November 1924, it seems clear that the medical report showing a reading of120/78 was in April 1947, some seven months after discharge.  The 1995 SoP defines "accurate determination" as the accurate measurement of blood pressure on a number of occasions.  Given the lower reading seven months later and a subsequent lower reading a further 23 years later, I am satisfied that there was no accurate determination of hypertension prior to 1984. 

2. The second question of fact on which the hypothesis relies is a war-caused ingesting of an additional 12 grams per day of salt.  The evidence of Mrs Fraser, as given to this Tribunal, to the VRB and to Dr Walton, was that there was no increase in the amount of salt ingested by the late Mr Fraser after discharge compared with the amount ingested prior to the war.  With the issue of salt tablets during service, it is possible that the amount of salt ingested during that service was higher but, after service, there was no increase compared with pre-service.  In addition, the evidence satisfies me that there was a conscious reduction in salt intake at some time in the 1970s and, therefore, more than four years before the accurate determination or clinical onset of hypertension.

3. As a result, I am satisfied beyond reasonable doubt that the hypothesis raised is not supported by a relevant SoP.  Consequently, the decision that the late veteran's condition of hypertension was not war-caused should be affirmed.  As it was accepted on behalf of the applicant that the condition of atrial fibrillation relied on a finding that hypertension was war-caused, it follows that the decision in relation to atrial fibrillation should be affirmed also.

   I certify that the fourteen [14] preceding paragraphs are a true copy of the reasons for the decision herein of
   Mr B.H. Pascoe, Senior Member

   (sgd)       Catherine Thomas
                 Clerk

   Date of Hearing:  5 March 2002
   Date of Decision:  31 May 2002
   Counsel for the applicant:           Mr D. Hyde
   Solicitor for the applicant:           Messrs De Marchi & Associates

   Solicitor for the respondent:        Ms J. McCulloch, Advocacy Section,
     Department of Veterans' Affairs