Guild and Repatriation Commission (Veterans' entitlements) - [2024] AATA 523

Guild and Repatriation Commission (Veterans' entitlements) [2024] AATA 523 (26 March 2024)
Division:VETERANS' APPEALS DIVISION
File Number: 2021/4228
Re:Ian Mackenzie Guild
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:26 March 2024
Place:Sydney

The decision under review is affirmed.
................[SGD]........................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlements – pension – Statements of Principles (SoPs) – applicant claimed hypertension and cerebral small vessel disease with ataxia are war-caused – applicant claimed hypertension caused by increased salt and alcohol intake during service – whether earlier claim for ataxia finally determined – where no SoP for ataxia – whether reasonable hypothesis – whether Tribunal satisfied beyond reasonable doubt that there no sufficient ground for making determination – claimed diseases not war-caused – decision under review affirmed
Legislation
Statement of Principles concerning cerebrovascular accident (No. 65 of 2015)
Statement of Principles concerning hypertension (Reasonable Hypothesis) (No. 21 of 2022)
Statement of Principles concerning vascular neurocognitive disorder (Reasonable Hypothesis) (No. 9 of 2023)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21
Owen v Repatriation Commission (1995) 59 FCR 93; [1995] FCA 607
Repatriation Commission v Stafford (1995) 56 FCR 13; [1995] FCA 1411
Spencer v Repatriation Commission [2002] FCA 229
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
26 March 2024
INTRODUCTION

Retired Lieutenant-Colonel Ian Guild MBE OAM joined the Australian Army on 18 January 1965, having previously served in the British Army. He served as a platoon commander in Vietnam from 28 May 1965 to 6 May 1966, and on peacekeeping operations in Lebanon from 20 February 1980 to 1 April 1981. He progressed through the ranks and served with distinction. He retired from the army on 17 January 1985 and married in 1992.
In December 2015, he had a left hip arthroplasty. He became increasingly unsteady on his feet and during 2016 experienced a condition known as axial ataxia. In July 2017, a neurologist (Dr R. Joffe) diagnosed the primary cause as small vessel disease in the left cerebral hemisphere. This was not expected to improve or respond to physiotherapy.
His health has declined over the past few years. From 2018, he started experiencing cognitive decline. He had a bad fall in October 2019 and in August 2020 fell again and fractured five ribs. He had a minor stroke in hospital.[1] In April 2021, his short-term memory decline was noticeable, and in May 2021, his driver’s licence was cancelled. In July 2021 he was diagnosed with bladder cancer and had a successful operation to have the cancer removed. [2] In June 2023, he was formally diagnosed with dementia.[3]
[1] Mrs Guild’s oral evidence, Transcript, 17 October 2023, 40.
[2] Mrs Guild’s oral evidence, Transcript, 17 October 2023, 40.
[3] CVC Program Comprehensive Care Plan; Joint Tender Bundle (JTB), 343, at 344. Mrs Guild’s oral evidence, Transcript, 17 October 2023, 37.
The first claim
On 24 April 2019, Mr Guild applied for a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (VE Act).[4] His claim described three disabilities, relating to his unsteadiness, impaired hearing, and his left hip condition.[5] Mr Guild described his loss of balance as ‘Axial Ataxia’ based on a report by a neurologist. He claimed that ‘[A] knock to my head has caused some tiny blood cells in the brain to harden. This would have occurred during training or on operations in the field’.[6]
[4] His application was received by the Department on 7 May 2019: T3, 25.
[5] T3, 33.
[6] T3, 32.
On 11 December 2019, the Repatriation Commission (Commission) accepted his claim for hip osteoarthritis. His impairment rate was assessed at 55, with a Lifestyle Effects rating of five, making a total impairment rating of 60.[7] The Commission informed Mr Guild that his disability pension would be increased to 100% of the General Rate with effect from that date.[8] He had previously received 60% of the General Rate.[9]
[7] T5, 51-52.
[8] T5, 46.
[9] T5, 51.
The Commission found that his ataxia was diagnosed by a neurologist in 2017 as cerebral small vessel disease with ataxia.[10] A delegate of the Commission was satisfied that this was an appropriate diagnosis for the purposes of the claim.[11] The delegate was satisfied beyond reasonable doubt that this condition was not related to Mr Guild’s operational service.[12] The delegate was also reasonably satisfied that it was not related to any period of eligible service.[13] The delegate was satisfied, based on the information provided, including the specialist reports, that its main cause was hypertension.[14] The delegate stated:
Mr Guild contends that his condition was caused by a head trauma, causing blood clots in his brain to harden. Based on the information provided, including the specialist reports, the main cause of Mr Guild’s case is hypertension. If Mr Guild would like to review his claim for Cerebral small vessel disease with ataxia, he may benefit from first submitting a claim for hypertension.[15]
[10] See Letter from Dr R. Joffe, neurologist, dated 27 July 2017, JTB, 152, to Dr C. Cranfield, GP.
[11] T5, 50.
[12] T5, 51.
[13] T5, 51.
[14] T5, 51.
[15] T5, 50-51.
Regarding the rate of pension, the Commission determined that he was not eligible for the Special Rate or Intermediate Rates of Disability Pension, on account of his age.
Neither the decision to increase his pension rate to 100%, nor the refusal to grant the Special or Intermediate rates, are in dispute in these proceedings.
Eligibility of an Extreme Disablement Adjustment (EDA)
An EDA is payable to veterans who are severely incapacitated by service-related incapacity, but who are not eligible for either the Special or Intermediate rate.[16] The current difference between the basic pension rate and the EDA is $171.46 per fortnight ($510.40 less $338.94).[17]
[16] VE Act, section 22.
[17] VE Act, subsection 22(3), (4)
The Commission’s delegate determined that Mr Guild was not entitled to an EDA.[18] The delegate observed that to receive an EDA a veteran must be at least 65 years of age; have a degree of incapacity of 100%; and have a medical impairment rating for accepted disabilities of at least 70 points, and a lifestyle rating of at least six. As noted, Mr Guild’s impairment rate was assessed at 55, with a Lifestyle Effects rating of five, making a total impairment rating of 60.[19] His medical impairment and lifestyle ratings being less than the amounts prescribed, the delegate found that Mr Guild was not eligible for an EDA.
[18] T5, 53.
[19] T5, 51-52.
The delegate’s reasons do not explicitly refer to the claim for tinnitus and hearing loss, although 34 impairment points were assigned for tinnitus related hearing impairment.
A claimant dissatisfied with a decision of the Commission in respect of a pension claim may apply to the Veteran’s Review Board (Board) under subsection 135(1) of the VE Act to review the Commission’s decision. A claim must be made within a defined review period; that is, 12 months from the date of service of the notice of decision.[20]
[20] VE Act, subsection 135(4).
Mr Guild did not apply to the Board to review the Commission’s decision to refuse his claim for an EDA, or the finding that the claimed condition of cerebral small vessel disease with ataxia was not service related.[21] The review period ended on 11 December 2020.
[21] Section 175 provides for appeals to the Tribunal from decisions of the Board and the Commission in certain cases, but none apply in the present case. See also subsection 176(4)(b).
The second claim
On 12 May 2020, Mr Guild lodged with the Commission a claim for hypertension and ataxia.[22] On 26 May 2020, the Commission rejected the claims on the footing that they were not service-related.[23]
[22] T10, 72.
[23] T9, 64.
Hypertension
Mr Guild described the symptoms of hypertension as: ‘Blood pressure tests show hypertension. Lack of balance. Unsteadiness. Ataxia’. As to how his service caused, contributed, or aggravated his disability, he stated: ‘Exposure to culture of prolonged and excessive consumption of alcohol in excess of 300 grams per week’.[24]
[24] T10, 72.
In rejecting the claim, the Commission‘s delegate found:
Mr Guild has stated that his hypertension was caused by exposure to a culture of prolonged and excessive consumption of alcohol.
The condition has been diagnosed as Hypertension. This diagnosis is based on a Medical Report by Dr Cassandra Canfield. I am satisfied this is the appropriate diagnosis.
In determining the claim for this condition, I have applied the SOP concerning hypertension (Reasonable Hypothesis) (No. 89/2019, 64/2013), which sets out the factors that can connect the condition with service.
…
In relation to alcohol consumption, even if Mr Guild consumed the prescribed amount, it would still be necessary to relate this consumption to his war-service. Having started to drink on service is not sufficient. The Repatriation Commission will accept continued alcohol consumption due to service, when there is evidence of “Psychoactive Substance Abuse or Dependence” involving alcohol which is causally related to the veteran’s war-service. Another possible way to relate alcohol consumption to service is where the drinking is in order to “self-medicate” to overcome the symptoms of a war-caused injury or disease. I do not have sufficient evidence to find that Mr Guild has a war-caused drinking habit sufficient to meet the Statement of Principles.
In relation to salt consumption which was also referred to by Mr Guild in his supporting documentation, although the salt consumption requirements may have been met, I must consider whether that salt consumption was due to his defence service. Departmental Research indicates that salt is not addictive and that an increase of 10-12 grams of salt per day in the form of salt tablets did not increase the desire for higher salt intensities in food. Studies have also shown that increases in salt intake following repeated exposures to higher salt diets, continue as a personal choice rather than a physiological need, or dependence on salt. Therefore it can be concluded that increasing the amount of salt added to food post service and taking salt tablets during service, do not give rise to dependence or addiction to salt due to service.
Having considered all of the available evidence, I am unable to be satisfied that any of the SOP factors are met in this case.
In light of the above, I am satisfied beyond reasonable doubt that Hypertension is not related to Mr Guild’s operational service. I am also reasonably satisfied that the condition is not related to any period of eligible service. I am therefore unable to accept the claim in relation to this condition.[25]
[25] T9, 67-68.
Ataxia
Mr Guild described the symptoms of ataxia as ‘Lack of balance. Unsteadiness’. As to how his service caused, contributed, or aggravated his disability, he stated: ‘hypertension’.
In rejecting the claim, the Commission’s delegate found:
The condition has been diagnosed as cerebral small vessel disease with ataxia. This diagnosis is based on a Diagnostic Assessment from Dr C Canfield dated 10th September, 2019, supported by correspondence from Dr R Joffe, Neurologist, dated 19th July, 2017. I am satisfied this is the appropriate diagnosis for the purposes of the claim.
The Repatriation Medical Authority has not issued a Statement of Principles for cerebral small vessel disease with ataxia. My decision is based on the evidence available to me and opinion from a contracted medical advisor. Cerebral small vessel disease refers to a condition affecting the small blood vessels in the deep part of the brain causing tiny blockages or microbleeds. The main risk factor is hypertension (high blood pressure) but other vascular risk factors including diabetes mellitus, dyslipidaemia, smoking and genetic factors may also contribute. Based on the information provided, including the specialist reports, the main cause in this case is hypertension. However, I was not able to accept hypertension as related to service on this occasion. As such, having considered all of the available evidence, I am satisfied beyond reasonable doubt that cerebral small vessel disease with ataxia is not related to Mr Guild’s operational service. I am also reasonably satisfied that the condition is not related to any period of eligible service.[26] (Emphasis added)
[26] T9, 68.
Mr Guild applied to the Board to review the Commission’s decision dated 26 May 2020,[27] and on 19 April 2021, the Board affirmed the decision.[28]
[27] T7, 61.
[28] T23, 222.
On 23 June 2021, Mr Guild applied to the Tribunal for review of the Board’s decision.[29]
[29] T1, 8, 11.
Proceedings before the Tribunal
The application was heard on 17, 18, 19 October and 8 December 2023. Mr Guild was represented by Mr T. Saunders, of counsel, instructed by Mr A. Kemp, solicitor, of Kemp & Co. Lawyers. The Respondent was represented by Mr B. O’Brien, solicitor, of Moray & Agnew Lawyers.
The Parties submitted a joint tender bundle containing the following documents:
(a)Statement of Ian Guild dated 7 December 2021
(b)Various Clinical Records of Dr Cassandra Canfield
(c)Various Clinical Records of Dr David Whalley
(d)Statement of Ann Guild dated 7 December 2021
(e)Report of Dr Mark Herman, Consultant Cardiologist dated 15 December 2021
(f)Letter from Kemp & Co Lawyers to Dr Herman dated 13 December 2021
(g)Historical research report of IGH Research dated 1 January 2022
(h)Supplementary statement of Ian Guild dated 12 April 2022
(i)Supplementary report of Dr Herman dated 2 June 2022
(j)Letter from Kemp & Co Lawyers to Dr Herman dated 26 April 2022
(k)Report of Associate Professor John England, Cardiologist dated 4 September 2023
(l)Letter from Moray & Agnew Lawyers to Associate Professor England dated 22 August 2023
(m)Supplementary report of Associate Professor John England dated 22 September 2023
I note in addition a document dated 14 April 2021 and signed by Mr Guild and entitled Alcohol Intake during Australian regular army service.
Both parties filed a Statement of Facts, Issues and Contentions and closing submissions.
The validity of the claim for ataxia
At the outset, Mr O’Brien raised a procedural issue regarding the claim for cerebral small vessel disease with ataxia. He noted that the first claim for ataxia had been rejected by the Commission on 11 December 2019, and that Mr Guild made a second claim for that condition on 12 May 2020. The review period for the rejection decision of 11 December 2019 ended on 11 December 2020. Mr Guild did not apply to the Board for review of the Commission’s decision of 11 December 2019. Therefore, said Mr O’Brien, he was not ‘empowered’ to make a fresh claim for the same condition before the original claim was finally determined, citing subsection 14(5) of the VE Act.
Mr O’Brien submitted that Mr Guild’s application for a pension based on small vessel disease with ataxia was ‘invalid’. Therefore, the Tribunal had no jurisdiction to review the Board’s decision relating to that condition. The Tribunal’s review should be confined to reviewing the Board’s decision regarding hypertension, which was not subject to any determination by the Commission in 2019.[30]
[30] RSFIC, paras 13 and 14; see also Respondent’s Closing Submissions [20].
In closing submissions Mr O’Brien suggested a caveat arising from evidence that emerged during the hearing relating to Mr Guild’s cognitive decline.[31] He had been diagnosed with dementia in June 2023.[32] The claim for hypertension included a claim for vascular dementia, which was governed by a separate Statement of Principles (SoP).[33] He therefore submitted:
3. However, on a proper construction and based on all the evidence, the further claim made by the applicant includes a claim for vascular dementia (as well as for hypertension), as the ultimate condition, for which a claim has not been previously made by the applicant. According, the Tribunal should proceed to determine whether the applicant’s hypertension and vascular dementia are war-caused within the meaning of s 9 of the Act.[34]
[31] Respondent’s Closing Submissions, [3], [15]-[20].
[32] Applicant’s Closing Submissions, at [49].
[33] Statement of Principles concerning vascular neurocognitive disorder (Reasonable Hypothesis) (No. 9 of 2023).
[34] Respondent’s Closing Submissions, [3].
Mr O’Brien submitted that the application for vascular dementia ‘as the ultimate condition’ was properly disposed of by reference to the relevant SoP. Apart from the SoP relating to hypertension,[35] he identified SoPs relating to cerebrovascular accident,[36] and vascular neurocognitive disorder.[37]
[35] Statement of Principles concerning Hypertension (Reasonable Hypothesis) (No. 21 of 2022).
[36] Statement of Principles concerning cerebrovascular accident (No. 65 of 2015).
[37] Statement of Principles concerning vascular neurocognitive disorder (Reasonable Hypothesis) (No. 9 of 2023).
Mr Saunders, on behalf of Mr Guild, submitted that the reviewable decision was a decision of the Board on 19 April 2021, which affirmed the decision of the Commission not to accept the claim for cerebral small vessel disease with ataxia.[38] The reviewable decision was not a nullity and was subject to review by the Tribunal.[39] The suggested irregularity was not perceived by the Commission or by the Board, and the point was raised for the first time in the current proceedings. The Commission was on notice about cerebral small vessel disease with ataxia from the outset of the claim process. The Commission itself had stated, in disposing of the original claim, that Mr Guild ‘may benefit’ from applying first for hypertension.[40] It was unfair and inconsistent with policy guidelines binding on the Respondent, to now press this jurisdictional point.
[38] T23, 222.
[39] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21.
[40] T5, 50-51.
Mr Saunders suggested the Respondent had raised the invalidity objection for tactical advantage, because there was no SoP for cerebral small vessel disease with ataxia. This was highly significant in view of the specific provisions of the VE Act.
The general rule under section 120 of the VE Act is that matters arising are decided to the Tribunal’s ‘reasonable satisfaction’.[41] However, this does not apply to claims for war-caused conditions arising from operational service, or defence-caused conditions arising from peace-keeping operations.[42] In these contexts, the Commission shall determine that the injury or disease or death was war-caused or defence-caused, as the case may be, ‘unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination’.[43] Moreover, subsection 120(3) provides that the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground if after considering all the material before it, it is of the opinion that it ‘does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person’.[44]
[41] VE Act, subsection 120(4).
[42] VE Act, ss 120(1), (2).
[43] VE Act, ss 120(1), (2).
[44] VE Act, subsection 120(3).
There is, however, an important qualification. By reason of subsection 120A(3), a hypothesis connecting an injury or disease with the circumstances of any particular service rendered by the person is reasonable only if there is in force, a SoP made by the Repatriation Medical Authority (Authority),[45] or a determination from the Commission,[46] that upholds the hypothesis.[47]
[45] Made under subsection 196B(2) or (11).
[46] A determination under subsection 180A(2).
[47] VE Act, s 120A(3).

This restriction does not apply if the Authority has neither determined a SoP nor declared that it does not propose to make such a SoP, in respect of the kind of injury or disease suffered by the veteran.[48]
[48] VE Act, s 120A(4).
Mr Saunders submitted that the decision of Spencer v Repatriation Commission (Spencer)[49] was relevant. In that case, Emmett J stated:
12. The disease from which a claim in respect of incapacity has been made in this case is cerebrovascular accident or cerebrovascular disease. There has been no claim in respect of incapacity from hypertension, although it may be that the logical consequence of the hypothesis advanced by the applicant is that it must be established that the disease claimed was caused by hypertension.
13. Once one accepts, however, that the Authority had neither determined a statement of principles nor declared that it did not propose to make such a statement of principles in respect of cerebrovascular disease or cerebrovascular accident at the relevant time, and that the present applicant has made a claim in respect of his incapacity from a cerebrovascular accident or cerebrovascular disease, it follows, as a matter of simple English, that the requirements of section 120A(4) are satisfied. As a consequence, section 120A(3) does not apply in relation to the applicant's claim…
[49] [2002] FCA 229; (2002) 74 ALD 362.
On the authority of Spencer, the Tribunal’s decision-making process relating to cerebral small vessel disease with ataxia (as the claimed ultimate condition) would be governed by subsections 120(1) and (3), and not by subsection 120A(3), whether or not there was a SoP applicable to one or more antecedent causes hypothesised for that ultimate condition.[50]
[50] See Respondent’s Closing Submissions, para [30].
Conclusion on invalidity
The VE legislation is beneficent in nature. This is illustrated by sections 119 and 138 of the VE Act. The Commission is required to act ‘according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities’, and in conducting a review, the Board is:
(a) not bound by technicalities, legal forms or rules of evidence; and
(b) shall act according to substantial justice and the merits and all the circumstances of the case and, without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance…[51]
[51] VE Act, s 138.
These are extraordinarily broad provisions. On their face, they appear to be potentially curative even in a case where questions of validity arise by reason of subsection 14(5), especially where time is of the essence, as it is in this case given the nature of Mr Guild’s age and health. Moreover, as Mr Saunders rightly submits, the Commission itself suggested a fresh application as a way forward and did not identify the issue as a potential obstacle when considering Mr Guild’s second application.
The Commission rejected the claim based on cerebral small vessel disease with ataxia on 11 December 2019,[52] and did so again on 26 May 2020.[53] The Board upheld the Commission’s second decision on 19 April 2021.[54] It would be a triumph of formalism over justice to require Mr Guild to make a further application to secure from the Tribunal a review on the merits relating to that condition.
[52] T5, 51.
[53] T7, 61.
[54] T23, 222.
I conclude that subsection 14(5) does not prevent the Tribunal from reviewing the Board’s decision on cerebral small vessel disease with ataxia. In affirming the decision of the Commission, the Board made a reviewable decision. It was not beyond review because of a defect in the application process. Lawlor appears to be directly in point.[55]
[55] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21.
As to the second point raised by Mr O’Brien, namely, of treating vascular dementia as within scope in these proceedings, the practical impediment in doing so is that no claim has been made to the Tribunal for that condition. It may be that vascular dementia is the consequence of hypertension or cerebral small vessel disease with ataxia, but there are difficulties in expanding the scope of the inquiry in that way. I note that the Respondent pointed to authorities which create potential obstacles for the Tribunal in considering vascular dementia as a separate condition.[56] These authorities suggest that the Tribunal cannot consider a condition that has not considered by the Commission or reviewed by the Board.
[56] Respondent’s Closing Submissions, at [18]-[19], citing Owen v Repatriation Commission (1995) 59 FCR 93; [1995] FCA 607; Repatriation Commission v Stafford (1995) 56 FCR 13; [1995] FCA 1411.
I turn to consider the present application.
THE EVIDENCE
Ataxia
The Commission treated the applicant’s claim for ataxia as a claim for cerebral small vessel disease with ataxia.
The Lay Evidence
The evidence relating to Mr Guild’s diet including alcohol consumption is contained in Mr Guild’s statement of 7 December 2021,[57] a supplementary statement dated 12 April 2022,[58] and a statement provided by Mrs Guild dated 7 December 2021.[59]
[57] A1, 3-4.
[58] A8, 407-8.
[59] A4, 384-385.
In his first statement, Mr Guild said:
Nature of Alcohol Consumption
2I began drinking in or about 1955, when I was 18 years of age.
3Before my service in Vietnam, I recall that I would drink about two beers which is equivalent to two pints. I would say on average I would drink this amount three times a week. I played rugby at this time and therefore I maintained a relatively healthy diet which included a low consumption of alcohol.
4During my service in Vietnam, alcohol was not available while we were out on operations, which could last up to four weeks at a time. Alcohol was available at the base and we were allowed to drink whilst there, which would probably be anything between three to four days up to a week. On average, I would drink four days a week whilst we were on base. I recall that I would on average have around three beers per night on these occasions.
5Immediately after my posting to Vietnam, I recall drinking most nights of the week at the Officer’s Mess. On these occasions, I would drink anywhere between two to eight drinks per night depending on who I was with and the time. I would usually be in the company of my fellow officers.
6This routine continued until I left the Army in January 1985.
He also referred to his alcohol consumption after leaving the service:
8After leaving the Army in 1985, I worked in school fundraising in Sydney, running the Foundations at both Abbotsleigh and Shore Schools. In addition to meeting friends including colleagues from my time in the Army, there would also be school fundraising evenings, and sometimes there was dinners. I would estimate on average, I would drink two to three standard drinks per night, about three to four nights a week. I had this drinking routine for approximately 10 years.
9In July 1998, Ann and I moved to the United Kingdom for five years, as Ann wanted to be involved in her grandchildren’s lives while they were small. We lived there until February 2003 and then we moved back to Sydney. Whilst in the United Kingdom, I continued doing fundraising work, working at Oxford Brookes University, Oxford. Whilst living in the United Kingdom, on average I would drink about two to three standard drinks per nights, most nights of the week.
10I would say this drinking routine continued more of less when I returned to Sydney in 2003.
11Currently, I would say I consume on average about one standard drink a night, being either a glass of wine or a whisky with water, four to five nights a week. I believe my time in the Army, including my service in Vietnam caused me to drink more than I would have done if I had not joined the Army. I would also add that my service in Vietnam affected me as I experienced significantly stressful events which contributed to me drinking more alcohol and as a way to cope with the traumatic memories, such as those of booby traps and witnessing my fellow soldiers being killed.
In relation to salt consumption, in his statement he said:
Nature of Diet – Salt Consumption
12Before my Army service, I was sharing a flat with friends and we would eat out very regularly. I do not recall the exact food I would have eaten at the time.
13During my service in Vietnam, I recall that the type of food I would receive would depend on where I was and what was available, often we would eat noodles and the food would be salty. I would be given a ration during my service in Vietnam. I do not recall the exact food I was given in the ration, but I do recall that the food was particularly salty. I recall that all my fellow soldiers and I would comment on the food given to us being salty.
14I would say after my service in Vietnam, I became accustomed to having more salt in my food. I would often add more salt to my food during meal time.
15In recent years, my salt intake has decreased, but during my Army career, particularly my service in Vietnam, I did like my food to be high in salt and I did eat food that had relatively high amounts of salt.
In his supplementary statement, he added:
8From 1963 to 1965, whilst serving in Vietnam we would be on operations for two to three weeks at a time. During this period we had approximately six days recuperation when we ate in the mess.
9In the mess, the cuisines varied and was dependent upon where we were located.
10I often ate noodles during service which were very salty.
11Whilst on operations we had long range patrol packs that were always salty.
Mrs Guild’s evidence is contained in her statement dated 7 December 2021.[60] She stated:
4From September 1992 onwards I would say, on average, Ian drank two to three standard drinks per night, three to four nights a week.
5ln October 1998, Ian and I moved back to the United Kingdom. We stayed in the United Kingdom for five years. During our time in the United Kingdom, I would estimate that Ian had about two to three standard drinks per night, four to five nights per week.
6I would say that this continued after we returned to Sydney in February 2003.
7I am aware that Ian had experienced many traumatic events during his service in Vietnam. Since coming to live in Australia, we have met a number of people who served with him in Vietnam. A number of the wives of the Veterans have told me about the experiences of their husbands in Vietnam, and whilst doing volunteer work with the charity, Legacy. Through this, 1 have learned more about the traumas of those who served in the Vietnam War. Ian has only confided in me about a little portion of his time in Vietnam.
8I would definitely say there is connection between the increase in Ian's alcohol consumption and his experiences in Vietnam, particularly the years immediately following that stressful time.
[60] A4, 384-385.
As to salt consumption, she stated:
Nature of Diet – Salt Consumption
9From September 1992, I was surprised at the large amount of salt Ian took with his food.
10Since Ian and I were married in April 1993, I have used much less salt when cooking meals for us at home, and Ian and no longer add salt to his food, and hasn't done so now for many years
11Ian has told me that during his time in the army Ag (sic) the food given to him was relatively salty
12I am unaware of Ian’s salt intake before September 1992.
The Tribunal was provided with an extensive medical history, commensurate with the veteran’s age and health.
Mr and Mrs Guild gave oral evidence. Mrs Guild was cross-examined by Mr O’Brien.
Mr Guild
Mr Guild was examined about his service duties and his consumption of salt and alcohol. Given his state of cognitive decline, the process was unedifying and largely unproductive. He was asked questions about his frontline service in Vietnam and whether he had experienced fatalities in any of the actions in which he was involved. This process was interrupted by the Tribunal, for little value was seen in this line of questioning. Mr Saunders explained that he wished to draw a link between his alcohol consumption over the years and the nature of his service in Vietnam.[61]
[61] Transcript, 17 October 2023, 20.
It may be taken on notice that frontline service in Vietnam for a platoon commander was highly stressful.
Mr Guild said that alcohol was not available during operational service in the field. Even on the base it wasn’t excessive because one could be called to duty at any time. He had a couple of visits to Saigon for R&R (rest and recreation) and on those trips more alcohol was consumed.[62]
[62] Transcript, 17 October 2023, 22.
Mr Guild’s memory of specific details was often vague. For example, he could not remember completing a document dated 24 September 2020 relating to dietary issues. This was to be expected considering his age and the recent onset of dementia, and the Tribunal intends no disrespect to him in making this observation. Mr O’Brien elected not to cross-examine Mr Guild in the circumstances, expressing his concern that there was no utility in doing so.
Mrs Guild
Mrs Guild attended the same senior school as Mr Guild in Scotland in the 1950s, and they married forty years later, a second marriage for each of them. She is a trained cook and was observant of his diet. She noticed when she started to cook for him that he liked to add salt to his meals, and she tried to reduce his salt intake. She said that she was ‘surprised’ by the amount of salt he added to his food. Although she was not with him for lunch on most days, he added up to a quarter of a teaspoon of salt to his evening meal.[63] She added salt to vegetables during cooking and Mr Guild would add salt if he so desired.
[63] Transcript, 17 October 2023, 32.
She was asked questions about his alcohol consumption, which appeared to be moderate and constant. He did not have a drinking problem.
She was also asked about his memory. She had first noticed a deterioration in his memory generally when he forgot to buy wine for Christmas in 2019.[64] She was pressed to differentiate between his short and long-term memory and said that his short-term memory had not been very good for about two or three years,[65] and had deteriorated over the past 18 months to two years.[66]
[64] Transcript, 17 October 2023, 38.
[65] Transcript, 17 October 2023, 36.
[66] Transcript, 17 October 2023, 37.
His long-term memory had also started to decline in the middle of 2021.[67] At the present time, it was variable.
[67] Transcript, 17 October 2023, 40.
The Tribunal also heard from a military historian, Major I. Hawke, and two medical witnesses, Dr M. Herman, and Associate Professor J. England.
Major I. Hawke RFD, ED (Retd) JP
Mr Hawke provided a report and gave evidence to the Tribunal. He is not a trained historian, but his academic qualifications include a B Sc (University of NSW), BA (Australian National University), Grad Dip Edn (University of Canberra), Dip Financial Planning (Deakin University). He served as member of the CMF/Army Reserve in both Training Command and Field Force Command units. Postings included command, staff and training postings such as company commander, operations officer, battalion second in command and senior instructor. He participated in a CMF Observer training visit to Vietnam in 1971 as a CMF officer. He served as a United Nations Military Observer in Israel and Syria from February 1973 to July 1974. This tour of duty encompassed the 1973 Arab-Israeli War (the Yom Kippur war).
Mr Hawke was recognised by the Tribunal as an expert on Australia’s military history. He has given evidence as an expert in many cases involving the Commission.
Mr Hawke agreed that the information that he provided in his report was generic and not related specifically to Mr Guild. His comments about salt consumption were also based on his private research and personal observations during his own service.[68] He said that he was serving in the Reserves at the time, and there was a ration scale which included 14 grams of salt per man per day and topping up the salt requirement was an ‘article of faith’ because of the medical precepts of the day.
[68] Transcript, 17 October 2023, 48.
Mr Hawke’s evidence was helpful in relation to the military diet. His evidence is that the dissemination of salt tablets as a form of salt replacement therapy, to replace salt lost by the normal reaction of sweating in humid climates, was common practice.[69] He stated:
22. However there is much more certainty about the level of salt in army diets in the 1960s. It was doctrine at the time that soldiers doing hard physical work in the humid tropics needed to augment their diet with additional salt to offset salt loss by perspiration. His daily entitlement was 14 grams of salt per day. This scale of issue was constant irrespective of the geographic location or climatic conditions of Army units, but provision was made for the availability of additional salt for individual soldiers if required (i.e. 1½ grams per day) through the issue of salt tablets on the basis on one tablet per person. As these periods of high salt intake occurred early in his army career it is quite likely that he formed a habit of high salt intake which persisted. Additional salt was always on offer in military mess halls, civilian eating places and homes, it was customary.
23. The harmful effects from salt have since been recognized by the wider medical fraternity and the Australian community, and indeed since 1987 the Australian Defence Forces has reduced the basis of issue for salt from the wartime and post wartime entitlement level of 14 grams per day to the current entitlement of only 8 grams per person per day.
[69] JTB, 402.
He also referred to the military culture of heavy drinking and the availability of alcohol in service generally.[70] He stated:
15. For most of his service career the Veteran would have had access to alcohol whilst off duty. Whilst under command of the US 173rd Airborne Brigade he would have been issued with an American PX card. This came with an entitlement to a range of duty-free goods including two litres of alcohol per month.
16. Between 1967 and 1980 the Veteran’s postings were not in a direct operational environment and he would have had access to alcohol in unit messes and also in local civilian bars and taverns. During his UNTSO service he would have had access to duty free alcohol through the UNTSO PX store as well as local facilities.
The medical evidence
[70] JTB, 401.
Dr Mark Herman, Consultant Cardiologist
The applicant’s solicitor provided a letter of instruction dated 13 December 2021:
Mr Guild's non-accepted war-caused disabilities were:
1.    Hypertension; and
2.    Cerebral small vessel disease with ataxia
The standard of proof to be applied is as per s 120(1) and s 120 (3) in conjunction with s 120A of the VEA. That is, the Tribunal is required to find that the Veteran's injury or disease was war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for satisfying itself that the material before it does not raise a reasonable hypothesis to connect the Veteran's injury and disease with the circumstances of the particular service rendered.
The Applicant contends that, as a result of this war service, the Veteran developed a drinking habit and consumed excessive amount of salt (at least 12 grams). The Applicant contends the Veteran's drinking caused or contributed to the Veteran's non-accepted condition of hypertension and thus, cerebral small vessel disease. The Applicant contends that the Veteran satisfies factor 6(b) and (c) of the Statement of Principles Concerning Hypertension (No. 63 of 2013) and the Amended Statement of Principles concerning Hypertension (No.89 of 2019).
The Applicant contends that the Veteran's hypertension caused or material contributed to the development of cerebral small vessel disease with ataxia. The Applicant therefore contends that the Veteran's disabilities are war-caused.
Please prepare a report addressing the veteran's cause of death and the effects, if any, that his intake of salt and alcohol consumption may have had on his Hypertension and the development of Cerebral Small Vessel Disease.
In preparing your report, we request that you please consider the following issues:-
Whether in your opinion, the veteran's alcohol or high salt intake caused or materially contributed to the veterans Hypertension and subsequently cerebral small vessel disease with ataxia;
1.    Whether in your opinion, the veteran satisfies Factor 6(b) and (c) of the Statement of principles concerning Hypertension (Reasonable Hypothesis) (No. 63 of 2013) and the Amended Statement of Principles concerning Hypertension (Reasonable Hypothesis) (No. 89 of 2019);
2.    Whether, in your opinion, the veteran's hypertension caused or materially contributed to the development of Cerebral Small Vessel Disease with ataxia.
3.    We advise that we are not required to prove conclusively that the veteran's high intake of salt or alcohol consumption led to the development of Cerebral Small Vessel Disease or caused or materially contributed to Cerebral Small Vessel Disease. Apart from the cause of disease which must be established on the balance of probabilities, all we are required to establish is that there is a reasonable hypothesis connecting the disease with the circumstances of service. A reasonable hypothesis is a hypothesis that is more than a mere possibility. This test is not as strict as the test of balance of probabilities.

Dr Herman provided two reports: a report dated 15 December 2021,[71] and a supplementary report dated 2 May 2022.[72]
[71] A5, 386-389.
[72] A9, 409-410.
In his first report he stated:
Mr Guild is an 87-year-old man with hypertension and cerebral small vessel disease with ataxia…[73]
He has cerebral small vessel disease with associated ataxia, hepatitis, a number of orthopaedic injuries, deafness and chronic pancreatitis secondary to biliary calculi.[74]
[73] A5, 386.
[74] A5, 387.
As to whether Mr Guild’s alcohol or high salt intake caused or materially contributed to hypertension and subsequent cerebral small vessel disease with ataxia, he stated:
In my opinion, Mr Guild’s alcohol consumption did not fulfill the criteria of at least 300g of alcohol per week for at least 6 months before the clinical onset of his hypertension.
He tells me his hypertension has been present for 28 years (well after his service ended) and furthermore, his alcohol consumption was approximately 210g per week on average.
Regarding salt intake, it would appear that he was consuming 12-14g of salt per day during his service but I am not sure of his intake for the 6 months before the clinical onset of his hypertension.
In relation to whether he was “habituated” to a high salt intake due to his exposure to army food, I cannot make an expert opinion, as this is not my area of expertise.
There is no doubt that hypertension is strongly related to the development of small vessel cerebral disease and given his MRI findings reveal cerebellar involvement, the ataxia is supported by this.
However, I am not convinced his hypertension was service-related.
Therefore, his cerebral small vessel disease was not service related.[75]
[75] A5, 388.
Dr Herman agreed with the decision of the Commission. Significantly, he noted:
Hypertension is a multifactorial disease with significant genetic, constitutional and lifestyle factors and I am not convinced that his moderate alcohol intake and a high sodium consumption during his service years, was significantly linked to the onset of hypertension (which occurs in approximately 50% of the normal population aged >60 years of age) several years later.[76]
[76] A5, 388.
In his supplementary report, he changed his opinion. He was provided with additional briefing instructions by Mr Guild’s solicitors, and stated:
I now note that before service from 1962 to 1963, he was living in India where he cooked almost all of his meals and would have added salt.
During service, from 1958 to 1959, he spent the majority of time in Nigeria where he ate in the mess with mainly colonial English food which almost certainly had a high salt intake.
From 1963 to 1965, he would eat in the mess during recuperation periods where cuisines varied but often ate noodles which were very salty (I agree entirely with this).
Whilst in operations, the long-range patrol packs were almost always salty (I agree with this).
Furthermore, I note that during service in South Vietnam, members were issued with salt tablets and taking up to 12g of salt on a daily basis.
Given the new information available to me, it is beyond reasonable doubt that his hypertension was related to his high sodium consumption.
Furthermore, it is beyond reasonable doubt that hypertension predisposes to cerebral small vessel disease, and that it is possible that his high salt intake during service with the subsequent possible habituation post-service, provoked hypertension, and the subsequent small vessel cerebral disease.[77](Emphasis added)
[77] A9, 409.
Dr Herman’s oral evidence
Dr Herman was called by the applicant to give oral evidence.[78] Mr Saunders said that he intended to confine his questions to whether the applicant was suffering from macrovascular or microvascular disease.
[78] Transcript, 18 October 2023, 56.
In examination in chief, Dr Herman confirmed that Mr Guild suffered from small vessel cerebral vascular disease. This was based on the diagnosis of Dr Joffe, a leading neurologist in Sydney, and a report by Dr Oval, a leading geriatrician.[79] He also had access to an MRI imaged on 20 July 2017.
[79] Transcript, 18 October 2023, 57.
He stressed that hypertension was a major cause of both macrovascular and microvascular disease.[80]
[80] Transcript, 18 October 2023, 59.
He was asked whether there was a minimum timeframe to develop microvascular or macrovascular disease based on hypertension. The main variables were time and severity. It was ‘different strokes for different folks’:
But the longer you have hypertensive changes, the more pathology you're going to cause in the little arteries which cause the microvascular disease. The time – you could say how long does it take, it's not possible to postulate that.[81]
[81] Transcript, 18 October 2023, 59.
Under cross-examination, he opined that Mr Guild’s condition was more compatible with small vessel disease than macrovascular disease.
He opined that microvascular disease would have developed before he saw Dr Joffe in 2017. It would then almost certainly have been present for several years. It was entirely consistent for a person who had been on medication for hypertension since 1993 to have developed small vessel disease. The fact that he was on blood pressure medication mitigated the risk of developing cardiovascular complications but did not remove the risk.
Mr O’Brien asked Dr Herman about his briefing instructions.
Dr Herman confirmed that Mr Guild did have small vessel disease that was hypertension related but he did not consider that it was related to service. He confirmed that this was based on the material that he had been provided with including information related to alcohol and salt consumption. Mr Saunders objected to this line of questioning on the basis that the role of the medical experts was not to be satisfied as to whether Mr Guild had consumed a particular quantity of salt or alcohol. These were matters of evidence for the Tribunal and not for the doctor.
The Tribunal noted this objection but allowed some latitude, given the questions posed and materials provided in the letter of instructions.[82]
[82] Transcript, 18 October 2023, 67.
I note the following evidence:
Dr Herman, you also stated the opinion that you were not sure of Mr Guild's intake of salt for the six months before the clinical onset of his hypertension?---Yes. I would have done that, yes…
And that was the basis on which presumably you were not convinced that Mr Guild's hypertension was related to his service in relation to salt consumption?---That is correct. I didn't have sufficient evidence at the time to kind of formulate that opinion. I mean, I merely had hypertension – I wasn't convinced about the cause of the hypertension, which is multi-factorial.
And so the only – the only qualitative information that you were provided that, you know, that is potentially relevant to Mr Guild's salt consumption is that in the period, he was in Vietnam in 1965 to 1966 – you've identified that it would appear he was consuming 12 to 14 grams of salt per day during that period?---That's correct.
And other than that information, there was no other information you were provided about the quantity of salt that Mr Guild - - -?---See, look, I don't – I can't recall exactly what I had access to at the time. You know, the 350 documents, and trying to work out if someone's got hypertension because of salt, which is one tiny factor for hypertension is – I can't recall exactly what I formulated. Like, you know, what – what information was available to me at the time. But it would appear to be that yes, what was Vietnam salt intake I suppose at that time when I wrote that first report.
Just to clarify, the information you had in relation to the quality – no, the quantity of salt that was consumed was in relation to that period of service?---It would appear, possibly. Yes.
Other than that, there was no other information that you had about the quality of salt and the (indistinct) consumed at any other time?---I can't recall what it would appear to be, so I can't – I can't recall whether I was given any other information or not.
And it's – and in the absence of any such information, you weren't able to say what quality – quantity of salt Mr Guild consumed at the relevant time, that is, in the six months or over the six months before the clinical onset of hypertension?---That's correct.
Now, in that report, Dr Herman, you raised whether Mr Guild was, you say, habituated to a high salt intake due to his exposure to army food and I think your evidence was that you couldn't make an expert opinion about that because that wasn't your area of expertise?---That's correct.
I take it to mean that your lack of expertise in that area isn't just limited to salt intake to your army service, just salt intake generally?---Actually it's got to do with the duration of salt intake. In other words, if you had a lot of salt 40 years ago, do you continue to have salt 40 years later? I don't know.
That's not your area. But in any event, you weren't able to say whether consumption of salt of a particular level, of a particular period would in some way lead to that person consuming salt at a particular level after that time?---That's correct.
Just in relation to the reference to clinical onset, you understood in relation to Mr Guild's hypertension that that had been present for 28 years?---Yes.
And in the history you recorded, you stated Mr Guild apparently developed hypertension around 1993?---Yes.
Do you recall where that information came from?---No, I don't recall. It would have been from the notes in front of a general practitioner's, you know, blood pressure recordings. They would have been from somewhere. I wouldn't have – I wouldn't have just randomly stated 1993, it would have been from the notes.
Then in any event you noted that it had presented well after Mr Guild's service ended?---Yes, I did find it so.
I take it that was also one of the reasons that you felt that Mr Guild's hypertension wasn't related to his service?---Well, it – I'm – it – I was related the fact that whether he was habituated or not. I couldn't answer whether he was having enormous amounts of salt because he had been exposed to salt in the 1950s and the 1960s, if he was, you know – I couldn't make a judgement as to whether that was causing hypertension. Hypertension is multi-factorial disease process. There's a lot of genetic factors, lifestyle factors, constitutional factors – it's a multi, though – salt is of one part of the whole aspect of it all.
It's not, you know, and working out exactly when or if he had salt or when he didn't have salt, it's very difficult to kind of ascertain in terms of global progress. But it was remote from the time that he had exposure to salt in the army. Whether he was habituated and then became used to having salt and that kind of persisted, and he needed more salt in his diet, would maybe contribute towards hypertension years down the line. So what you have in terms of salt intake yesterday will impact what your blood pressure is today, basically.
And I'm saying I don't know if you habituated 20 years ago because someone gave you salt in your crèche. It's just – I can't – can't – I can't say that. That was the point I was trying to make. I mean, he developed hypertension in about 1993. Salt consumption is a risk factor for hypertension development. Whether he develops a (indistinct) in it – (indistinct) salt because of exposure previously, I don't know what his salt intake was on the day before – the month before – six months before, it's difficult to ascertain. It's difficult at the best of times, let alone from a frail old man who's in his 80s and has got partial dementia…
And my point about the salt is, you know, whether he's habituated, I can't say a man who's exposed to salt, develops a likeness for it is actually – never stops eating salt. It's just not my expert area. Dieticians, psychologists, psychiatrists – those are the kind of people who could answer that question. I just don't know.
SENIOR MEMBER: Thank you. Mr O'Brien, if I may just interrupt your flow for a moment and just follow up on that, because it is troubling me. If a person is exposed to high salt at a particular point, and that triggers or amplifies a predisposition or whatever, and he becomes hypertensive at a particular point, say in 1993 as a result of exposure at a particular point. And thereafter is not exposed to the same degree of consumption, is that hypertensive condition likely to abate? Or is it likely to sustain?---A very good question. So it won't abate because he's got a high predisposition. So salt carries five percent, maybe less than five percent, a role. So it's got to do with a – in a predisposed individual because of genetics, constitutional factors, his weight, his exercise, other factors, it – salt will exacerbate it. So if you took that aspect out of it, it might reduce the blood pressure by seven over three. So you know, it might take you down to 140 to 137. One for each three. It's won't – it won't be a single entity on its own, it will be one compendium of factors which kind of relate to hypertension. It's just an exacerbator of it, and you can control – I mean, the actual numbers of five over two, seven over three at max if you reduce the salt intake. So your blood pressure, 150 over 90, and you stop salt, you can get it down to 143, 142 over 85 if you're lucky. Then trying to maintain a low salt diet is difficult. I mean, the other factors that go into it. You know, that are non-salt related. Which are probably far more important at the end of the day, anyway.
Second Report
Mr O’Brien also cross-examined Dr Herman about his change of opinion, which was said to be based on new information provided by Mr Guild’s solicitor. This is contained in his supplementary report.[83] The new information related to the fact that from 1958 to 1959 during service in the British army Mr Guild ‘spent the majority of time in Nigeria where he ate in the mess with mainly colonial English food which almost certainly had a high salt intake' and that from 1962 to 1963, Mr Guild was living in India where he identified that he cooked all of his meals and would have added salt. On the basis of this information, considered with the other material, Dr Herman concluded:
Given the new information available to me, it is beyond reasonable doubt that his hypertension was related to his high sodium consumption.
Furthermore, it is beyond reasonable doubt that hypertension predisposes to cerebral small vessel disease, and that it is possible that his high salt intake during service with the subsequent possible habituation post-service, provoked hypertension, and the subsequent small vessel cerebral disease.
[83] A10, 411.
The cross examination continued:
MR O'BRIEN: Thank you, Senior Member. So Dr Herman, I just want to go to your second report. You've got – I'm having difficulty understanding – understanding it. You were asked to provide a further report by Kemp & Co?---Yes…
You were asked to prepare a supplementary report and again you were asked to provide a report concerning the relationship between Mr Guild's hypertension and his cerebral small vessel disease with ataxia that – and his operation of war service?---Yes. (Indistinct.)
And again, if we could scroll down you were again told what the standard of proof was that the tribunal was to apply?---I suppose I was, yes. I would have been.
Well, you can see there on the screen at the last paragraphing on that page?---Yes. Yes.
And again, it was explained to you that the tribunal is required to find that the veteran's condition was war-caused unless it was satisfied beyond reasonable doubt that there's no sufficient grounds for satisfying itself in the material before it? It's not raised a reasonable hypothesis to connect the veteran's condition with the circumstances of the particular service rendered?
And we just continue on down if – this time it was explained to you that Mr Guild's contention was that he's satisfied the factors of the SOP relating to salt consumption and alcohol consumption?---Presumably, I suppose I would have read that and, Mr O'Brien, I would have gone through that, I'm sure.
And again, it was noted that Mr Guild contended that his hypertension caused the material and contributed to the development of cerebral small vessel disease with ataxia?---Yes. That I do understand.
The reason for the request to be in supplementary report appears to be based on what was identified as new evidence. You see that, Dr Herman?---Yes, I do.
And that new evidence was a report – sorry, was a statement from the applicant dated 12 April 2022?---Mm-hmm.
You recall reading that statement?---Yes, I do. I don't recall reading it. I would have read it. I don't recall, you know, this is years ago, Mr O'Brien.
And that the statement is helpfully set out there. And I just want to take you to your report in which you identified, 'during service from 1958 to 1959 he –' that is, Mr Guild – 'spent the majority of time in Nigeria where he ate in the mess with mainly colonial English food which almost certainly had a high salt intake'?---Yes. I wrote that.
And in that reference to there being almost certainly a high salt intake was your view about - - -?---Yes - - -
Consumption of mainly colonial English food?---Yes. It is.
And prior to that, you'd also noted that before Mr Guild's service – sorry, I'll just go back. So you understood, did you not, that in respect of that period of service from 1958 to 1959, when Mr Guild spent the majority of time in Nigeria, that was service in the British army?---I do.
And you'd also noted in your supplementary report that before service, from 1962 to 1963, Mr Guild was living in India where he identified that he cooked all of his meals and would have added salt?---I do.
And you also noted from 1963 to 1965, he would eat mess during recouperation periods where his cuisines varied, but often ate noodles, which were very salty?---Truly.
You agreed entirely with that?---Well, look – I'm – (indistinct) with what I've been presented. I – that's the information centred to – given to me, delivered to me, by the client…
But you also agreed with the history that whilst in operations, the long-range patrol packs were almost always salty?---He told me that. That's what he wrote in his contention, that the information I was provided. It's – yes.
Mr Saunders again objected to the relevance of this line of questioning, but the Tribunal allowed the cross-examination to continue:
MR O'BRIEN: Thank you, Senior Member. Dr Herman, I don't have much more to ask you, but I just wanted to finish those questions. So you were provided a further statement from Mr Guild and you identified from those statements the certain histories in relation to Mr Guild's salt consumption. That's correct?---I do. Yes.
And you then stated in your report, 'given the new information available to me, it is beyond reasonable doubt that his hypertension was related to his high sodium consumption'?---I should be (indistinct), I said there's more than a possibility which is not the same as beyond reasonable doubt. It's – the statement says, given the new information, there's more than a possibility – so you're thinking about possibilities. I didn't call it a probability because I'm not sure there's – you know, what the extent is and then high habituation actually goes into the whole thing. But I didn't say that it's probable. I did not say that it's – I did say it's more than possibility, and it's – yes. That's what my statement says.
Perhaps if I can – you're saying something very different to what I'm reading. What I'm reading, and we can bring this up, 'given the new information available to me, it is beyond reasonable doubt it is hypertension which related to his high sodium consumption.' Is that not your opinion?---It's reasonable – yes. It's reasonable, so I've said the odds is reasonable, yes. I did say that. I do say it.
Beyond reasonable doubt that his hypertension was related to his high sodium consumption? Is that your opinion, Dr Herman?---It is my opinion. It highly – it actually relies on habituation as well, in terms of meat, high salt intake be persisted with. So it's not – I'm not an expert, in terms of the amount of salt intake from habituation. What I'm understanding is that salt intake does provoke hypertension. And there's beyond a reasonable doubt of that, you know, whether he's habituated to utilise the salt, is not – is – I don't know.
I'm sorry, I didn't follow that last bit - - -?---So he was - - -
I just want to be absolutely - - -?---High salt intake, so it is beyond reasonable doubt. High salt intakes, regarding hypertension in an – in a predisposed individual, whether he was habituated to that is something I really can't answer. And the question of habituation is not my – but basically, he was utilising a salt intake. It would certainly provoke hypertension. So in that regard, with the information going to how much salt he had, it is beyond reasonable doubt. Yes. I stand by that.
So you stand by the statement that it's beyond reasonable doubt that his hypertension is related to his high sodium consumption?---Yes, only provoked by. And whether it's service related or not (indistinct).
…
MR O'BRIEN: I think Dr Herman has explained that – and correct me if I'm wrong, Dr Herman, you've explained that that is based on a view about habituation. Is that not the case?---Absolutely. So in someone's who's having a high salt consumption for whatever reason, it provokes hypertension, predisposes – it exacerbates hypertension in a predisposed individual. Whether the salt intake was habitual – the salt consumption at the time he developed hypertension was related to habituation is not my expert area. And then if he does have hypertension there's no doubt that hypertension is a major risk factor for small vessel disease.
So am I right in saying that your change in opinion we say is based on the new information that's available to you, assumes based on that new information that there was habituation post-service?---Yes.
And so then when you go beyond that in the next paragraph and say, 'furthermore, it's beyond reasonable doubt that hypertension predisposes to cerebral small vessel disease, and that it is possible that his high salt intake during service' – the possible habituation post-service provoked hypertension, and the subsequent small vessel cerebral disease that's again assuming habituation post-service, as is identified there. And you've given evidence, I think, before that you are not an expert on habituation in relation to salt consumption?---Yes, I'm not an expert. I'm an expert on hypertension and the effects that hypertension has on the body, rather than the causes of salt and habituation leading up to it.
Right. And so just to be absolutely clear, so where your … initial report … identified your opinion that Mr – your statement that you weren't convinced that Mr Guild's hypertension was service-related. Your apparent change in opinion is based on there being habituation post-service?---It is - - -
And that's why you – sorry – and that's why you have then stated that it's beyond reasonable doubt that hypertension – his hypertension was related to his high sodium consumption?---Yes. I suppose in summarising the whole thing, his hypertension is read – high sodium consumption. Whether or not that is due to habituation is not my expert area. But certainly, hypertension itself is provoked by salt intake and hypertension is a major provoker of small vessel disease.
As a general proposition you - - -?---As a general proposition. (Emphasis added)

I turn to consider the reports provided by Dr England.
Dr John England, Consultant Cardiologist
Dr England also provided two reports, the first dated 4 September 2023, and a second report on 22 September 2023.
He spent a day reviewing Mr Guild’s extensive medical history and examined him in person.[84]
[84] R1, 421, 422.
In his first report, his conclusion was unequivocal.
I do not believe that there is any relationship or connection between the findings today and his operational service and in particular, I have read extensive documents provided to me about salt intake in the tropics and alcohol consumption and then subsequent lifestyle issues after his military service.[85]
[85] R1, 423.
He was satisfied that Mr Guild suffered from hypertension and that his condition satisfied the relevant SoP.[86]
[86] SoP 63/2013, ss. 3(b); SoP 21/2022, ss. 7(2): R1, 423.
In response to a series of questions relating to whether Mr Guild ‘meets the relevant factors’ (within SoP 21/2022, section 9) by consuming a quantity of salt or alcohol, he stated:
I must go back to the previous records and simply accept what previous reports have shown, but I do not think that this is really a cause for any dispute. Given the passage of time and all the varying reports, I do not believe that we can accurately gauge what someone took decades and decades ago and I would ask this of many of the Administrative Veterans’ Review Board as to what they ate two weeks ago on a particular Thursday night, or what they did at university and what foods they ate at that time. We really need hard data like the 24 hour urine salt excretion and whether someone actually took the salt tablets while on combat duties in Vietnam, for example. I do not think it is in dispute either way.[87]
[87] R1, 425.
As to whether Mr Guild’s hypertension had caused or contributed to any other conditions, including cerebral small vessel disease with ataxia, he stated:
I agree with the decision of the Department of Veterans’ Affairs, 26 May 2020…
I have studied Mr Guild’s medical records very carefully and I have looked at the MRI scan of the brain, dated 19 July 2017. This showed evidence of multiple vascular events that could have been related to small emboli and plaque disruption from major vessels in the neck, the aorta and the aortic valve. There were multiple lesions and then subsequently, he has had strokes clinically, which fit with multiple emboli with his atrial fibrillation. There was a small anterior communicating artery aneurysm, but further on in his clinical history, he developed definitive evidence of strokes on further scans.
My opinion is that the vascular disease that we are dealing with is macrovascular of large arteries, similar to the water mains in a street and the blood vessels are like the water coming to the house and the microvascular problems are like minor blockages in the taps in the kitchen. I emphasise that the problem is out in the street with the main water mains and the aorta and carotid arteries. I also believe that some of the strokes are related to atrial fibrillation and I cannot completely exclude hypertension as causing some small vessel micro disease that would show up on an MRI scan, but would not show up on a CT scan of the brain. This is an ultrasensitive scan, which will pick up everything and I would like to give a qualification about the Australian population for a man of his age.
In my practice in rural NSW, when I do an MRI scan of the brain of a man aged over 70 years, I have never seen a normal MRI scan. All scans have evidence of microvascular disease consistent with age and to justify the high cost of an MRI scan, a radiologist must find something and always there is microvascular disease and some calcification and what we call incidentalomas. My research in rural NSW, as reported to the Cardiac Society of Australia and New Zealand in 2022 Annual Scientific Meeting, was that we find that in rural NSW there is a very high incidence of calcified coronary arteries and we have related this to the water people drink, not to their salt intake. The water in rural NSW that people drink in towns come from aquafers and the water out of the ground is very hard and has a high calcium content, whereas the water that people drink in Melbourne, for example, is soft. The hardness in the town water in Mudgee is around 280, which has to be treated with hydrated lime before it can even be drunk by the ordinary person, whereas the hardness of the water in Melbourne is less than 15.[88]
[88] Ibid, 425-426.
Dr England was asked whether he agreed with Dr Herman’s reports. He noted that Dr Herman had changed his mind regarding the connection between hypertension and small vessel disease. He attributed this to him being worn down by Mr Guild’s lawyers making ‘further demands’ to comply with their client’s request.[89] He described Dr Herman as ‘relenting’ and opining that hypertension predisposes to cerebral small vessel disease and that it is possible that his high salt intake during service with subsequent possible habituation post-service provoked hypertension and subsequent small vessel disease. Dr England then stated:
I would certainly agree with Dr Herman, but at the same time, I feel it is very difficult to be sure of what Mr Guild’s dietary and alcohol habits were so many decades before and in particular, when he mentions that prior to his Army service he shared a flat with friends and would eat out and he certainly has a very wonderful and varied life coming out to Australia to work with the Shell Petroleum Company originally.[90]
[89] Ibid, 426.
[90] Ibid, 427.
On 18 September 2023, Dr England had an hour-long consultation with Mr O’Brien, to clarify aspects of his report and provided the following written supplementary report.
MAJOR ISSUE FOR CLARIFICATION
The actual onset of permanent hypertension has been difficult to verify from the 557 pages of records. I believe that there has been intermittent blood pressure elevation over many decades and often in association with other medical issues related to joint and arthritis problems and palpitations and minor operations.
Due to Ian’s cognitive decline we must accept the statement of Mrs Guild who said that when they married in 1992 she recalled that Ian was taking tablets for blood pressure. She also noted that he put on excess salt on his food but she was uncertain as to the quantity in grams. One may have to concern with his previous marriage partner to find out more details given the memory deficit.
The diagnosis of hypertension is not in dispute but the actual date of the first onset of hypertension which was permanent and sustained requiring medical treatment goes back to around 1990. From the medical examination records at the Department of the Army, we know that he had normal blood pressure on 14 September 1973, 130/80 and on 1 October 1981 120/85. At a previous tribunal his claim for hypertension was rejected on 26 May 2020.
We have the report of his general practitioner Dr Canfield on 24 April 2019 who acknowledged that when he started attending that practice in 2012 he was taking Avapro (irbesartan) for blood pressure.
The issue of hypertension causing just a small focal lesion of the left cerebellum and hemisphere at the back of the brain is not related to the overall blood pressure. When seen by the neurologist Dr Joffe on 19 July 2017 he found just a small focal lesion in the left cerebellar hemisphere and this was related to other medical problems such as atrial fibrillation, large vessel macrovascular aorta and carotid disease together with aortic valve disease. Dr Joffe emphasised that at that time his blood pressure was well controlled!
Mr Guild has had an MRI scan on many occasions both in July 2017 and again on 17 March 2020. There was cerebral atrophy and involution and the brain has become smaller consistent with white matter gliosis and the development of cognitive decline and dementia. There was a suggestion on the scan in the mid brain of features relating to progressive supranuclear palsy and there was a small aneurysm of the anterior communicating artery. These are all features independent of hypertension.
Due to cognitive decline we must accept that it is very hard to get a definite date of onset of permanent hypertension necessitating continuous medical treatment. I do not dispute Dr Herman’s report when Mrs Guild told him that he had been taking blood pressure medications for at least twenty eight years and he raised the possibility of 1999 and we also accept that when he remarried his new wife Mrs Guild said that he was taking blood pressure tablets in 1992 and there appears to be no dispute.
I have done a lot of work on widespread arterial aging and I have linked this to diet and hypertension and medications for diabetes together with the water people drink in certain towns in rural NSW comparing tank water to aquifer town water that comes out of the ground which is hard compared to the very soft water in Melbourne. I have also been involved in a lot of studies of arterial aging and I even relate to the work of doctors in Southwest Sydney linking arterial age to property prices and the postcode where people have lived. For example, the study found that each $10,000 decrease in average pre-tax income was associated with a 1.4 increase in the difference between a postcodes average age and its average arterial age. Sydney University researchers found an inverse relationship with a postcodes average property price and its residence arterial age difference and the overall awareness of cardiovascular disease.
The report is in the International Journal of Environmental Research and Public Health 2023 Vol. 20 5699. There has also been a lot of research about the benefits of reducing salt and reducing alcohol in the long-term management of hypertension but the direct causation is still controversial. I have sought to discuss this with my PhD supervisor Professor John Chalmers at the George Institute at the University of Sydney this month.[91]
[91] R1, 434-435.
Dr England’s Oral Evidence
Dr England gave oral evidence and was examined by both counsel. He told the Tribunal that he visited Mr and Mrs Guild at their home and spent two hours with them. He undertook a full clinical examination of Mr Guild.
He prepared for the meeting by reviewing over 500 pages of medical records. His diagnosis was as follows:
Well, firstly, the question was that I confirmed that he’d had hypertension for a long period of time. I then confirmed that he was disabled, both cognitively and also physically, and that he had - evidence that he’d had a previous stroke or perhaps multiple strokes, I thought, as well as having widespread vascular disease of large vessels, particularly the aorta. I thought that he had also evidence of an aortic valve lesion. And I did confirm, though, when I was there that he’d had atrial fibrillation on and off, and he’d been treated with ablation for that many years before, but unfortunately it’d broken through and he’d had the current atrial fibrillation and a stroke that took him to North Shore Hospital. But he had a very stormy year this year, from going through his clinical history which involved multiple medical problems. There’s not just one problem with this man.
He identified three categories of medical problems: hypertension, vascular disease and a stroke or multiple strokes.
Dr England said that he was not able to get an accurate history because of his memory and had to rely on Mrs Guild. She remembered that he was taking medication for blood pressure from before they married. But it was difficult to determine what actual drug he was taking.
His treatment had fluctuated since that time according to whether he had other infections and illnesses.
With regard to vascular disease, his diagnosis was that Mr Guild suffered from macrovascular disease, not microvascular disease. He said:
[W]hen I examined him, he’s got a very loud murmur over his aortic valve, his heart. It radiates up into the arteries in his neck and also radiates down. You can hear it in the back of his chest but also in his abdomen. And the circulation to his groins is also impaired. So these are large vessels. It’s not to deny that on the more definitive tests like an MRI of the brain which can get down to just almost a millimetre, such tiny explicit resolution, there’s certainly changes there. But I’ve always felt in my clinical examination with my simple stethoscope, that he had - actually feeling his arteries, that he had no – they were hard and wobbly – that he had macrovascular disease.
He was asked whether there was anything else that caused him to consider that the condition was macrovascular. He said:
I’m just trying to think there. Just the passage of time, you know, people – it’s – people grow old and they’re likely to have more macrovascular disease, but also depending on diet and other issues, we’ve – it’s obviously been discussed earlier about microvascular disease. The older people are, the more likely you are to find it. But I – it was just that when I looked at his history, and I was looking when I examined him for confirmation that he had macrovascular disease. I didn’t – I did not have an ophthalmoscope and I have not done an examination of his retina, the eye. And the eye, of course, is a very exquisite sign of – you can actually see microvascular disease. And I think I put that at the end of my report, that eye specialists can determine the extent of vascular disease, both macro and micro just when they look at the back of the eye in the retina.
MR O’BRIEN: Just in relation to the question of diagnosis, in your opinion is there anything about Mr Guild’s treatment that led you to form a view about whether it was microvascular or macrovascular?---Not exactly, no. I don’t think so. He was – as I recall, he was on multiple medications. He was apixaban for his atrial fibrillation to prevent clots from his heart in the atrium continuing to flick off into his brain, or elsewhere, down his legs or his arms. He was on a statin drug to lower cholesterol, rosuvastatin. He was being treated for fluid with his kidney function a bit impaired. So he was having injections through his bones as well. But I did walk through his medications because his wife brought them out and showed them to me. That’s all I can say.
I think he was being treated by Dr Joffe at one point, but Dr Joffe retired, and then I think in your report you’ve identified Dr Krause as being his - - -?---Yes, I have worked with Dr Krause when Dr Krause worked out here, out west. He was a referring neurologist for us at Blue Mountains Hospital and Lithgow Hospital, and even from Mudgee Hospital, yes. So I’ve had a working relationship with Dr – Professor Krause now, yes. It’s very sad that he left the area.
He was asked whether Mr Guild’s stroke in 2020 could be regarded as a cerebrovascular accident and agreed that it could be so described. He considered that cerebrovascular incident at Royal North Shore Hospital in 2020 would come under the classification of an acute cerebrovascular accident. He had been provided a copy of the relevant SoP and said:
Yes, I was sent that in an email and I studied it again last night, and I believe that he had obviously an acute cerebrovascular accident. That’s not to deny the fact that there was ongoing other issues, as other medical specialists have alluded to, of the microvascular – but the clinical events that I think were at Royal North Shore Hospital would come under the classification of an acute cerebrovascular accident.[92]
[92] Transcript, 19 October 2023, 105.
Dr England had also studied the SoP relating to vascular neurocognitive disorder. In his opinion Mr Guild suffered from a vascular neurocognitive disorder as defined in section 7 of the relevant SoP.
Well, this man obviously was a very active, competent man, doing a lot of fundraising for Shore School, and he was involved in a lot of high profile meetings in his professional life, but now seeing him at home in his own home environment, both, you know, looking – going through issues of his cognitive function and memory and also his general mobility and looking at his – you know, I didn’t do a full neurological examination, tapping his reflexes or that, but I did look at his muscle strength and movements, comparing one side to the other, I do believe that it does come under this – these issues that he had a post-stroke dementia where things changed, and that he’s had, you know, strategic infarcts, dementia, on the MRI scan. And some of it is in what’s call the white matter, subcortical, that means in the deep part of the brain where all the fibres connecting the nerve cells are, that he had subcortical ischaemic vascular dementia as well. And I think that he’s been seen by general physicians over the time at Greenwich Rehabilitation Hospital, and you wouldn’t be sending someone to Greenwich Hospital unless they’ve had strokes or multiple strokes. And that was, I think, the impression of Dr Ogle as well. So there’s never one thing in medicine. When I’m doing a death certificate for some of my patients, I have to do almost two pages of all the different diagnoses rather than just one terminal event. I hope that – I can’t say one thing. I encompass many issues.
He was then asked to comment on any connection between Mr Guild’s operational service, that is, the service he had in Vietnam between 1965 and 1966, and the conditions from which he suffers.
Mr Saunders again objected to this line of questioning, on the basis that the connection between service and diagnosis was not a matter for expert testimony.[93] Mr O’Brien said that if Mr Saunders did not intend to ask questions of the witness about any connection between service and diagnosis then he would refrain from doing so. Mr O’Brien stressed that his questions were not relating to the SoP factors, but simply to whether the doctor could express his opinion as to a connection between his present medical condition and service in Vietnam, to which Dr England answered:
Well, I’ve read through a lot of the documents and a lot of the service documents and, you know, when he sort of came back after service, you know, his blood pressure was normal but the whole issue is very controversial about salt, in particular, what he was advised to do and how much salt he had in his service Vietnam. And some patients are salt-sensitive, some patients are salt-insensitive. And it’s been an ongoing discussion of salt and heart disease, but a lot of the problems are - research is more to do with people who have excessive salt intake as a result of their operational service and continuing to have a lot of salt ongoing in the diet. So that was I think thinking that the wartime service triggered Mr Guild to continue to have a very high salt diet. But a lot of the research in this area is more about when you take salt away does it reduce the risk of heart disease in the future. And I must say there’s been a lot of controversy, a lot of conflicting opinions. When I started my PhD at the University of Sydney, the views since then of salt and diet has changed and it’s often very parochial but – where some universities push the salt connection and what went on in Vietnam. And I actually was – gave evidence at the Vietnam Veterans about other factors in Vietnam. Particularly I gave evidence of the senate inquiry about the effects of herbicides with my patients here in the country. I gave evidence about the water that they drank and the lead intake which also contributes to hypertension. So there are a lot of multiple other factors that are totally difficult to pinpoint. But I hope – you know, I think that the Veterans’ Affairs Department is best served in determining what the effects of war service is. I hope that answers your question.
Can I just follow it up by asking, in determining a connection to service you had regard to the information about Mr Guild’s salt consumption; didn’t you?---Yes, that’s right.
And you also - - -?---That was presented to me, yes.
You also had information about his alcohol consumption; didn’t you?---That’s correct.[94]
[93] Transcript, 19 October 2023, 107.
[94] Transcript, 19 October 2023, 108-9.

Dr England was asked for his view on Dr Herman’s report:
Yes, I have respect for Dr Herman and, you know, I think he’s trying to look at the overall picture and I think he’s – I don’t dispute what he says, no.
In terms of that, can you tell the tribunal what it is about Dr Herman’s opinion that you don’t dispute where he says – well where you say in relation to Dr Herman’s second report and certainly Dr Herman relented and said that hypertension predisposes to cerebral small vessel disease, and that it is possible that his high salt intake during service with subsequent possible habituation post service provoked hypertension and subsequent small vessel disease?---
Yes, well, that’s a hypothesis on behalf of Dr Herman and I don’t dispute that fully. No, I don’t. But I think it’s not – it’s a very small part of the whole picture, as far as I can put it. And, of course, the problem with doctors always is never say never, you know, I’m afraid. But, you know, what I’ve said there that behaviour and dietary habits while service in Vietnam obviously continued on when he came back, and he could end up being salt sensitive. It was one of the factors which accelerates blood pressure. But the trouble is that if you look at Australian population probably every Australian is having 10 times more salt than they should. When you look at the World Health Organisation, you know, they feel that you should have five grams of salt a day. That’s really less than a tablespoon a day of salt. And all our processed foods have, you know, 100 times that sometimes. And the other thing, standard drinks, we look at 10 grams of alcohol, but what actually people say they drink and what they actually have it’s very hard to quantify, I find, in talking to my patients. And I ask them always about their diet and whether they add salt or what type of foods they have. And there are – all the foods – we’re trying to reduce salt in the Australian diet but we’re actually failing.[95]
[95] Transcript, 19 October 2023, 109-110.
Mr O’Brien concluded his questioning by asking about habituation. He asked Dr England whether he had expertise in the area. Although he had some experience in undertaking research into blood pressure control based upon body measurements of various chemical compounds and isotopes, his occupational work was in Lithgow where many of his patients had a high salt diet which had continued after retirement.[96]
[96] Transcript, 19 October 2023, 111.
Under cross-examination from Mr Saunders, Dr England expounded on the study of rural miners who had become habituated to salt by taste. They would say if they did not add salt to their food, it would taste bland. Dr England also agreed that by international standards Australians tended to have a high salt diet.[97]
[97] Transcript, 19 October 2023, 112.
He was asked whether in his opinion it was likely that soldiers in Vietnam were getting too much salt in their mess food and rational packs. He said that he would agree with that, based on the documents he had been provided. This doctrine was based on the notion that it was necessary to replace salt lost by excessive sweating.
There were other factors, such as lead in the water pipes or herbicides that could also lead to hypertension. He agreed that excessive salt consumption could cause hypertension. He also considered that excessive alcohol consumption, either cumulatively or alone, could produce hypertension. He referred to studies which showed that blood pressure was sensitive to the alcohol strength of beer, for example.[98]
[98] Transcript, 19 October 2023, 114.
He agreed that hypertension was one of the main causes of cerebrovascular disease:
In our community, yes, it has to be because prevalence of hypertension is so high; isn’t it? As we go age 50 and then we go look at populations aged 65, we’ve looked at particularly in the towns like Albury and Bunbury in Western Australia the incidence of treated hypertension and untreated hypertension, we believe as doctors that if we are treating hypertension we are slowing down the microvascular small vessel disease, yes.
He was asked whether hypertension was also a causal factor for macrovascular disease.
Definitely, yes. When we’re looking at coronary artery disease, there’s absolutely strong evidence that if we treat the hypertension, as well as stop smoking and other factors and lipids, cholesterol and triglycerides and diabetes, we certainly stop the progression of macrovascular coronary disease. And also particularly for people who’ve had an aortic aneurysm. If we treat the blood pressure we can reduce the risk of, first, rupture of an aortic aneurysm. So when I have a patient with macrovascular aortic disease, I try and lower their blood pressure to as low as they can tolerate without getting dizzy standing up. I go well below, you know, 130 over 80. I can try and push my patients to 110 over 70. There’s definite evidence that if you lower blood pressure you can stop damage to the aorta and you can stop the aneurysms enlarging and you can stop it rupturing. Also someone who has an aneurysm, macrovascular disease in the brain, if you keep the blood pressure down you can save their lives by preventing further subarachnoid haemorrhage.
We heard yesterday from Dr Herman that the severity and duration of hypertension, so both, if you have hypertension that’s more severe and/or you have hypertension for longer, then you’re more likely to develop small vascular disease. Do you agree with that?---I agree with Dr Herman, definitely, yes.
Even if you are being medicated, you’re still at risk, and if it’s being controlled, your hypertension, you’re still at risk of small vascular disease. Do you agree?---Yes, I’d agree with that, yes. [99]
[99] Transcript, 19 October 2023, 115.
Dr England did not dispute the diagnosis of small vessel disease by physicians he respected, but explained his reasoning as follows:
I was trying to make a balance between macro vascular disease, big vessel, as against the micro vascular things that are seen on an MRI scan. And I think if you go to my report, I said that as you get older it’s – when I order MRI scans I invariably see microvascular disease and it’s always in the report…
Well, we know it was in the report in July of ‘19 – of ‘17, because it says so.
…
No, look, I agree with Dr Herman and these reports of the MRI. I don’t discount that at all. I was just trying to make a balance between large vessel and small vessel and trying to say which I felt was more important but - - -
All right?---Dr Joffe was a great neurologist but was a great proponent of microvascular disease. He spoke about it widely. He was well-known throughout Sydney, and I talked to Professor Michael Halmagyi, the Professor of neurology at Sydney University and Royal Prince Alfred Hospital, and when I mentioned Dr Joffe he said, ‘Microvascular Joffe’. You know, that was just – that’s a little bit of gossip within the neurology - - -
Would you agree with this proposition, Doctor, for this case: the two are not mutually exclusive. You can have microvascular disease and macrovascular disease. They’re both operating in (indistinct)?---Absolutely. Absolutely. I agree.
And that’s what – and would you agree that’s what’s happening here?---I agree with you, yes. Absolutely.[100]
[100] Transcript, 19 October 2023, 116.
Finally, in re-examination Mr O’Brien asked whether Dr England agreed that salt could cause hypertension:
You were asked about whether you don’t – I think the question was you don’t disagree that excessive salt consumption can cause hypertension. And you were asked that it was multifactorial?---Yes.
I think you accepted that salt was one of the reasons or one of the causes?---Yes.
I think reference was made to similar evidence that Dr Herman gave yesterday. Dr Herman’s evidence was that his – he felt that contribution of salt towards hypertension was five per cent. Is that something you would agree with?---Yes, I’d agree with Dr Herman, yes.
CONSIDERATION
I am satisfied that the refusal of the Board to accept Mr Guild’s claim for ataxia caused by cerebral small vessel disease is reviewable by this Tribunal. There is ample material before the Tribunal that Mr Guild suffers from such a condition. This material may be found in the MRI scans undertaken by Dr Joffe in July 2017 and the associated clinical notes, to which reference has previously been made. The parties agree that there is no SoP relating to cerebral small vessel disease.
As noted above, by reason of section 120 of the VE Act, claims for war-caused conditions arising from operational service, or defence-caused conditions arising from peace-keeping operations are subject to special rules relating to the standard of proof.[101] The Commission shall determine that the injury or disease or death was war-caused or defence-caused, as the case may be, ‘unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination’.[102] Moreover, subsection 120(3) provides that the Commission shall be satisfied beyond reasonable doubt that there is no sufficient ground if after considering all the material before it, it is of the opinion that it ‘does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person’.[103]
[101] VE Act, ss 120(1),(2)
[102] VE Act, ss 120(1), (2).
[103] VE Act, subsection 120(3).
Does the material raise a reasonable hypothesis?
The overarching hypothesis raised by Mr Guild is that his service exposed him to excessive salt and alcohol consumption, and that these factors, either alone or in combination, produced a hypertensive vascular condition which led ultimately to the development of cerebral small vessel disease with ataxia. This is based on two underlying hypotheses. First, that salt consumption in the military during his operational service exceeded safe levels with the possibility of habituation and continued use long after the operational service ended. Secondly, that a culture of alcohol consumption in the Australian military contributed to a lifelong habit of at least moderate and consistent drinking. Each of the factors can produce hypertension and subsequent cerebral small vessel disease.
I have carefully examined the material presented to the Tribunal, including the historical evidence presented by Mr Hawke, and the written and oral evidence of Mr and Mrs Guild. I have also examined the medical evidence presented by two medical specialists, Dr Herman and Dr England. This material in totality raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by Mr Guild, namely war service in Vietnam in 1965 and peace-keeping operations in Lebanon in 1980-81. Therefore, I do not hold the opinion that the material before the Tribunal ‘does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person’. Of course, if I did hold such an opinion, I would be satisfied beyond reasonable doubt that there is no sufficient ground for making a determination connecting his ataxia with his particular service.
The ultimate issue
I therefore turn to the question whether, considering the evidence relating specifically to Mr Guild, I am satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the applicant’s condition of cerebral small vessel disease with ataxia was war-caused or defence-caused.
In turning to this final question, one resists the temptation to provide some circumlocution for the nature of the task – the expression ‘beyond reasonable doubt’ is resistant to interpretation.[104]
[104] In the context of proof of criminal guilt, attempts to do so lead inevitably to error.
A requirement to be satisfied beyond reasonable doubt that there is no sufficient ground for ‘making a determination’ sets a very high bar. Mr Saunders has suggested that the bar is somewhat lower than it would be if the matter was to be determined under one of the SoPs involving degrees of salt consumption or alcohol use in an applicable SoP, given the decision in Spencer. Be that as it may, it is still a high bar, and very much in Mr Guild’s favour, as it should be, given the service provided by members of the armed forces during wartime or peace-keeping operations.
The question is whether there is ‘no sufficient ground for making a determination’.
Memory
The difficulty that faces the Tribunal in this case arises not just from the procedural and legal technicalities associated with the claim, but from the ravages of time itself. Mr Guild is advancing towards the inevitability that faces all mortal beings and is losing the mental acuity that defined his earlier very active life. His declining memory has presented challenges for his legal representative, for the Respondent’s lawyers, and for the Tribunal. Moreover, his second marriage, though it undoubtedly has been a blessing, occurred in 1992, many years after his operational service was rendered. Had Mrs Guild known that she would be asked to remember details of his alcohol and salt consumption she would no doubt have applied her mind to that task with the same diligence she applied as a trained cook.
Lack of evidence of actual salt or alcohol consumption
There is no evidence before the Tribunal relating specifically to Mr Guild’s alcohol or salt consumption during the time in question.
Evidence as to the availability of salt may be found in Mr Hawke’s report, and in the evidence given by Mr and Mrs Guild. I accept that Mr Guild was partial to salt and at least from 1992, Mrs Guild made efforts to reduce his salt intake.
Moreover, it may be accepted that during his operational service salt was available as a supplement, and military ration packs were high in salt content. This was consistent with the best dietary opinion at the time, but above the standards that would now be regarded as prudent.
There is evidence that Mr Guild’s drinking was consistent and at moderate levels. There is no evidence that his drinking was the cause of any social or domestic problems or impeded in any way the progression of his outstanding career.
The chronology compiled by Mr Guild with Mrs Guild’s assistance was prepared nearly four decades after the completion of his operational service.[105] In that document he states that alcohol was not available when they were ‘out on operations’ but when at the base he would drink on average four times a week, around three beers per night. For a man of his age and fitness at the time, this would seem to be a moderate rate of consumption.
[105] See Alcohol Intake during Australian regular army service, document dated 14 April 2021.
The evidence appears to be that Mr Guild was a moderate drinker throughout his life, and apart from acknowledging that soldiers ‘hit the booze’ when on leave in Saigon, does not appear to have changed his drinking habit much over the years.
Habituation
In relation to salt habituation, the medical evidence before the Tribunal is very lean. Neither medical expert professed any professional expertise in this area. Dr England’s expertise in this area was limited to some experiments which involved the chemical breakdown of habituated subjects. He did not claim general expertise in this area.[106] Dr Herman also eschewed any specific expertise. He said that he could not make an expert opinion, as this was not his area of professional expertise.[107] In the absence of medical evidence, findings about the persistency and intensity salt of habituation are not justified.
[106] Transcript, 19 October 2023, 111.
[107] A5, 388.
By contrast, the addictive power of alcohol is a matter of public knowledge, but even here, the evidence relating to Mr Guild’s patterns of alcohol consumption to operational service is not extensive.
Alternative factors
The degree to which his drinking or salt consumption may have added to chronic health problems is not readily amenable to medical science. The medical evidence is that hypertension is widespread amongst persons over 50 years of age and the causes are multifactorial. In the best diagnostic setting, the precise causes of hypertension, as the hypothesised antecedent condition of small vessel disease with ataxia, are hard to determine. As Dr England said, it is never ‘one thing’ in medicine.
CONCLUSION
Overall, I am satisfied that there is no sufficient ground for making a determination that the applicant’s condition of cerebral small vessel disease with ataxia was war-caused or defence-caused. I am so satisfied beyond reasonable doubt.
Given the view that I take about the condition of ataxia, an independent consideration of hypertension by reference to the quantitative standards for alcohol and salt consumption under the applicable SoP is inutile. However, for the avoidance of doubt, I am also satisfied beyond reasonable doubt that the evidence relating to his specific intake during the operational periods and subsequently falls short of those benchmarks.
I note the reference by Mr O’Brien to other SoPs that may be applicable to Mr Guild’s medical condition. He identified SoPs relating to cerebrovascular accident,[108] and vascular neurocognitive disorder.[109]
[108] Statement of Principles concerning cerebrovascular accident No. 65 of 2015.
[109] Statement of Principles concerning Vascular Neurocognitive Disorder (Reasonable Hypothesis) No. 9 of 2023.
The task of the Tribunal is to conduct a review of the decision made by the Board. It does not have a roving commission with respect to any new condition that may be diagnosed during the Tribunal hearing.
I note that section 15 of the VE Act provides a mechanism by which an application may be made for an increase in the rate of the pension on the ground that the incapacity of the veteran has increased since the rate of the pension was assessed or last assessed. It is not clear whether the applicant has availed himself of this process.
DECISION
The decision under review is affirmed.

I certify that the preceding 137 (one hundred and thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

...........[SGD].............................................................
Associate
Dated: 26 March 2024

Dates of hearing: 17, 18, 19 October and 8 December 2023

Counsel for the Applicant: Mr T. Saunders

Solicitors for the Applicant: Kemp & Co. Lawyers

Solicitors for the Respondent: Mr B. O'Brien, Moray & Agnew Lawyers

Dates of hearing:	17, 18, 19 October and 8 December 2023
Counsel for the Applicant:	Mr T. Saunders
Solicitors for the Applicant:	Kemp & Co. Lawyers
Solicitors for the Respondent:	Mr B. O'Brien, Moray & Agnew Lawyers