Hardcastle and Repatriation Commission
[2000] AATA 723
•18 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 723
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/1114
VETERANS' APPEALS DIVISION )
Re Kenneth HARDCASTLE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Date18 August 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(Sgnd) Joan Dwyer
Senior Member
VETERANS' AFFAIRS - hypertension - whether war-caused - whether applicant's service related ingestion of salt supplements satisfies the requirements of factor (c) of the SoP - decision affirmed
PRACTICE AND PROCEDURE - suggestion that comments of eminent cardiologist concerning onerous requirements of SoP be referred to the Repatriation Medical Authority
Veterans' Entitlements Act 1986 ss 7, 9, 120(4), 120B
Statement of Principles Instrument No. 65 of 1998
Repatriation Commission v Keeley [2000] FCA 532
REASONS FOR DECISION
18 August 2000 Mrs Joan Dwyer, Senior Member
This is an application for review of a decision of the Repatriation Commission which was affirmed by a decision of the Veterans' Review Board ("the VRB") on 13 August 1999. The Repatriation Commission decision of 10 September 1998 found that hypertension and trigeminal neuralgia were not war-caused diseases within the meaning of that term in s 9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing Mr M Croyle of Counsel appeared for Mr Hardcastle. Mr K Rudge, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mr Croyle called Mr Hardcastle and Dr Pitt a cardiologist and until recently the Director of Cardiology at the Alfred Hospital. Mr Rudge called Ms Wailes, a dietician. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
The respondent in its Statement of Facts and Contentions conceded that if the Tribunal found that Mr Hardcastle's hypertension was a war-caused disease then the trigeminal neuralgia would also be a war-caused disease.
Mr Hardcastle served in the Australian Army during World War II from 5 November 1941 to 23 October 1945. He served in the Northern Territory and Queensland. The whole of his service constitutes eligible war service as defined in s 7 of the Act. Thus the standard of proof is that in s 120(4) of the Act which means that the Tribunal must decide the matter to its reasonable satisfaction.
The question whether or not hypertension is a war-caused disease must be determined in accordance with s 120B(3) of the Act which requires that the Tribunal is to be reasonably satisfied that hypertension is war-caused only if the connection raised between the disease and Mr Hardcastle's service is upheld by the relevant Statement of Principles ("SoP"). In this matter applying the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532, the parties agreed that the relevant SoP is Instrument No. 65 of 1998 ("the hypertension SoP").
The hypertension SoP defines hypertension in clause 2 (b) as follows:
2.. . .
(b)For the purposes of this Statement of Principles, "hypertension" means elevated blood pressure, evidenced by:
(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/ or where the diastolic reading is greater than or equal to 90 mmHg; or
. . .
Clause 4 provides as follows:
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Clause 5, so far as relevant, provides as follows:
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of a person's relevant service are:
. . .
(c)ingesting at least 15 grams (250 mmol) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension; or
. . .
There are definitions in clause 8 of the SoP of "accurate determination of hypertension" and "salt supplement". The latter term is defined as follows:
"salt supplement" means salt added to food when cooking or eating, or salt contained in salt tablets;
The issue in this matter is whether Mr Hardcastle's service related consumption of salt supplements during and subsequent to service, satisfies the requirements of factor 5(c) of the SoP so as to allow the Tribunal to be reasonably satisfied that his hypertension is a war-caused disease.
Factor 5(c) requires consideration of the time when it can be said that the "accurate determination of hypertension" occurred. Somewhat surprisingly there are no blood pressure readings in the Army Medical Records. Further Mr Hardcastle said that after his discharge in 1945 he did not attend a doctor until 1960 when he suffered a severe blood nose and hypertension was diagnosed by the doctor he attended. The VRB accepted that accurate determination of hypertension occurred in 1960. However, in preparing his case for hypertension to be accepted as war-caused, Mr Hardcastle obtained blood pressure readings from the Red Cross records as to his blood pressure readings on many occasions when he attended as a blood donor.
Those readings are set out in a letter from the Red Cross (A5). On the basis of those readings the respondent conceded, in my view correctly, the accurate determination of Mr Hardcastle's hypertension occurred in October 1953. Although he was not diagnosed as suffering hypertension at that time, and was not, perhaps unfortunately, referred by the Red Cross for medical treatment, Dr Pitt was in no doubt that the blood pressure readings set out in exhibit A5 showed hypertension from October 1953. From that date until 21 November 1957, every recorded blood pressure reading, except one, showed a systolic reading of 140 or over which meets the definition of a hypertensive reading in clause 2(b)(a) of the SoP, and which, according to Dr Pitt's evidence, is generally accepted as indicative of hypertension.
Thus I find that the accurate determination of Mr Hardcastle's hypertension occurred in October 1953. The next question is whether I can be reasonably satisfied that he was ingesting at least 15gms of salt supplements per day on average for a continuous period of at least six months immediately before October 1953.
Mr Croyle submitted that in considering that issue the Tribunal should not require that Mr Hardcastle establish that post service he was ingesting 15gms of salt supplements per day more than prior to service. Further he submitted that it was not necessary that the whole 15gms of salt supplements be related to relevant service. He submitted that what was required was that the Tribunal be reasonably satisfied that Mr Hardcastle ingested at least 15gms of salt supplements per day on average for a continuous period of six months immediately before October 1953 and that the ingestion of 15gms of salt supplements per day was related to, but not necessarily solely due to, his relevant service. Mr Croyle has as usual raised an interesting issue of interpretation of the SoP. However it is not necessary for me to decide that issue in this matter.
I accept Mr Hardcastle as an honest witness. I accept his evidence that during service in the Northern Territory and perhaps in Queensland he took 12 to 15 salt tablets a day after meals and also added salt to his meals. I also accept his evidence that even after service he continued to add salt to his meals because he had become used to it and because he believed that it was beneficial for him as he tended to perspire more freely than most. I also accept Mrs Hardcastle's recollection as set out in her statement (A4):
I recall regularly re-filling the salt cellars. We seemed to go through an inordinate amount of salt each week. I used to buy cooking salt in bulk and I also purchased iodised table salt. Salt of one form or the other regularly featured on the weekly grocery list.
Ken's intake was in my opinion excessive to the point that I came to criticise him for the amount he was using. I thought that he was spoiling his meals and it was insulting to my cooking. My criticisms had no effect on his use of salt at the time.It is of course extraordinarily difficult to calculate to-day in the year 2000 from the honest evidence of Mr and Mrs Hardcastle how many grams of salt supplement per day on average Mr Hardcastle was ingesting in the six months from April to October 1953. But that is what the Act and the hypertension SoP require. In order to assist in this process the practice has arisen of seeking expert evidence from dieticians. In this matter the Tribunal had a report from Ms Wailes (R1) in which she provided some calculations as to Mr Hardcastle's salt consumption prior to, during and after service.
Of course such evidence can be no more than an approximation. Ms Wailes did state in her report that a typical western diet of lots of bread, processed cereals, meat, fish or chicken, milk, margarine or butter with relatively few serves of vegetables and fruit would contain approximately 12gms of salt.
Ms Wailes in her report stated:
2.Salt Supplement means salt added to food when cooking or eating or salt contained in salt tablets.
Mr Croyle submitted that in calculating Mr Hardcastle's ingestion of salt supplements per day post war, the Tribunal should consider total salt intake as a result of processing and manufacturing of foods, not only salt added in cooking or at the table. The evidence was clear that Mr Hardcastle's consumption of salt tablets did not continue after service.
I cannot accept Mr Croyle's submission on this issue. The SoP gives a clear definition of salt supplements as set out in paragraph 7 above. It refers to "salt added to food when cooking or eating or salt contained in tablets". It does not include salt added during manufacture or processing. In those circumstances it is only the salt added to purchased foods in cooking or eating which is relevant to satisfying factor 5(c) of the SoP
Ms Wailes calculated that during the 1960's Mr Hardcastle's average daily ingestion of salt supplements as she understood the term was 4.7gms. The parties agreed that in the 1950's the figure would have been much the same. I consider Ms Wailes' interpretation of the term "salt supplements" was in accordance with the definition in the SoP. Thus on her calculations Mr Hardcastle cannot satisfy the requirements of the SoP whether or not one deducts his ingestion of salt supplements prior to and hence unrelated to service.
Mr Hardcastle suggested that Ms Wailes may, to some extent, have under estimated his ingestion of salt supplements. He asked "How long is a piece of string?" Even if that were so there is no evidence on which the Tribunal could be reasonably satisfied that from April to October 1953 Mr Hardcastle ingested at least 15gms of salt added to food when cooking or eating each day.
During service Mr Hardcastle may have been ingesting 15gms of salt supplements per day, but I am not reasonably satisfied that he maintained that high ingestion of salt subsequent to his service in the six months prior to October 1953. The SoP has strict quantitative requirements, so that I can not simply rely on an increase in salt consumption related to service. I am bound to apply the words of the SoP.
I note that Dr Pitt in his report (A6) did not commit himself to the view that Mr Hardcastle's intake after service would satisfy the SoP. He did express some reservations about the application of the SoP. He wrote:
It is not certain that his salt intake during the post-army service years was of the magnitude required in the Statement of Principles. There is however some literature support that would suggest that the requirement of the Statement of Principles is particularly onerous and that lower levels of salt intake may contribute to hypertension. It should also be noted that the literature confirms that individuals vary in sensitivity to excess salt intake, with some people being particularly sensitive developing hypertension with quite low levels of salt intake.
I suggest that those comments from an eminent cardiologist should be brought to the attention of the Repatriation Medical Authority.
I am not reasonably satisfied on the evidence that after discharge from service Mr Hardcastle's ingestion of salt supplements was at least 15gms per day on average. Thus I cannot be satisfied that he ingested at least 15gms of salt supplements per day on average for a continuous period of at least six months immediately before the accurate determination of hypertension in October 1953.
The decision under review will be affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 16 August 2000
Date of Decision 18 August 2000
Counsel for the Applicant Mr M Croyle
Solicitor for the Applicant Williams Winter Higgs
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Mr K Rudge
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