Jacobsen and Repatriation Commission
[2006] AATA 981
•20 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 981
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2006/30
VETERANS' APPEALS DIVISION ) Re MARCIA JACOBSEN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Senior Member
Dr J B Morley, Member
Date20 November 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
.............[Sgd].................................
Dr K Levy, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – veteran served in Royal Australian Army – cause of death intra-abdominal bleeding and ruptured abdominal aortic aneurysm – was cause of death related to hypertension – was hypertension war-caused – salt intake – insufficient evidence of hypertension to justify a reasonable hypothesis – decision affirmed
Veterans’ Entitlements Act 1986: ss 8 (1), 120(1) (3)
Statement of Principles No 35 of 2003; No 66 of 1998
Repatriation Commission v Gosewinckel (1999) 59 ALD 690; [1999] FCA 1273
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Fogarty v Repatriation Commission [2002] FCA 1541
Repatriation Commission and Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Stares (1996) 66 FCR 594; (1996) 41 ALD 212; (1996) 23 AAR 117
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993)
East v Repatriation Commission (1987) 16 FCR 517; (1987) 74 ALR 518; (1987) 12 ALD 389; (1987) 6 AAR 492
Gilbert v Repatriation Commission (1989) 86 ALR 713; (1989) 10 AAR 73
Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 149 ALR 721; (1997) 47 ALD 481; (1997) 26 AAR 298
REASONS FOR DECISION
20 November 2006 Dr KS Levy, Senior Member and Dr J.B. Morley, Member INTRODUCTION
1. The applicant’s husband, Wesley Doil Jacobsen (the veteran) died on 20 June 2004. He served with the Royal Australian Army during World War II and was deployed to Papua New Guinea during that period. The period of service was from 16 December 1941 to 2 April 1946 and as he served outside Australia, he has had operational service for the purposes of the Veteran’s Entitlements Act 1986 (the Act).
2. The applicant submitted an application to the Repatriation Commission for widow’s pension on the basis that the veteran’s death should be recognised as being war caused. This application was rejected by the Repatriation Commission on 30 August 2004 and on review, it was rejected by the Veterans’ Review Board on 1 November 2005. The applicant now seeks review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
3. The applicant represented herself and was assisted by Ms Pamela Niche (her niece) and Mr Robert Niche. The respondent was represented by its advocate, Mr Bruce Williams.
BACKGROUND
4. The veteran was born on 16 December 1918. He enlisted in the Australian Army during World War II on 16 December 1941 and served in Papua New Guinea, which was regarded as operational service. He was discharged from the Army on 2 April 1946. He died on 20 June 2004 at the age of 85 years.
5. The material before the Tribunal showed the veteran had no recognised service related disabilities.
6. The causes of the veteran’s death as recorded on the death certificate were:
a.Intra-abdominal bleeding; and
b.Ruptured abdominal aortic aneurysm.
ISSUES
7. The issues in this case are:
(a)Whether the veteran died from hypertension which was related to the recorded causes of death; and
(b)Was the veteran’s death war-caused within the meaning of s 8 of the Veterans’ Entitlements Act 1986 (“the Act”).
RELEVANT STATUTES AND RELATED INSTRUMENTS
8. The following statutory provisions are relevant:
“VETERANS' ENTITLEMENTS ACT 1986
8. War-caused death
(1) Subject to this section, and section 9A, for the purposes of this Act, the death of a
veteran shall be taken to have been war-caused if:
(a) …
(b) the death of the veteran arose out of, or was attributable to, anyeligible war service rendered by the veteran
…
120. Standard of Proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination;
…
(3) In applying sub-section (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
9. In accordance with the Act, as this claim was made after 1 June 1994, the application must be evaluated with respect to any relevant Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA) under s 196B of the Act. The relevant SoP in relation to hypertension is Instrument Number 35 of 2003, as amended by number 3 of 2004 – Hypertension.
STANDARD OF PROOF
10. The veteran had operational service and this was not disputed by the respondent. The standard of proof therefore required to link the veteran’s war service to his death is that of a reasonable hypothesis (see s 120(3)). Once a reasonable hypothesis is established, the relevant connection of the death to war service will be proved unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(1)). In assessing whether the standard of proof is reached, the Tribunal must have reference to SoP Number 35 of 2003 in relation to the definition of hypertension in clause 2(b), which states:
Kind of injury, disease or death
2.
(a) …
(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:
(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to reduce blood pressure,
This definition excludes temporary elevations in blood pressure
from conditions such as acute renal failure, neurogenic
hypertension, eclampsia, pre-eclampsia or medications.
11. In addition, it was contended at hearing that clause 5(c) of the SoP was the relevant criterion to be met, which prescribes as follows:
“Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of a person’s relevant service are:
(c) ingesting at least 12 grams (200 mmol)of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension; or ….”.
12. In respect of other aspects of the claim, particularly in relation to diagnosis, the “reasonable satisfaction” standard is the appropriate standard (s 120(4)); Repatriation Commission and Gosewinckel (1999) 59 ALD 690 at 691. This is generally accepted as equating to the civil standard of proof: Benjamin v Repatriation Commission (2001) 70 ALD 622 and Fogarty and Repatriation Commission [2003] FCAFC 136.
EVIDENCE
13. The following documentary exhibits were admitted into evidence:
· Exhibit 1 – the T documents lodged under s37 of the Administrative Appeals Tribunal 1975;
· Exhibit 2 – Clinical Notes of Dr Julien Valery dated 3 March 2006;
· Exhibit 3 – A further Report of Dr Julien Valery dated 31 March 2006
· Exhibit 4 – Evidence of smoking relied on by the Veterans Review Board
· Exhibit 5 – Clinical Notes : Princess Alexandra Hospital
· Exhibit 6 – Report of Dr Peter Grant dated 15 May 2006.
· Exhibit 7 – Report from the Burnett Medical Centre dated 10 April 2006.
· Exhibit 8 – Questions by the Department of Veteran’s Affairs and response by the Applicant.
· Exhibit 9 – Applicant’s statement about the veteran’s diet under cover of letter from the respondent dated 1 June 2006.
· Exhibit 10 – Greenslopes medical file
· Exhibit 11 – Department file and military medical file
14. The only witnesses who provided oral evidence were the applicant, Mrs Marcia Jacobsen and Dr William Grant for the respondent.
MRS MARCIA JACOBSEN
15. The applicant stated that she believed wives of veteran's who did not smoke were treated unfairly as military records were not accurate in a number of respects. She referred to her deceased husband as having poor eyesight and double vision, which she said was associated with hypertension. She was not aware that he had heart disease for a very long time.
16. She asserted that her husband’s military record was inaccurate and pointed to an incorrect spelling of his middle name as indicative of the standard of inaccuracy. She also referred to soldiers who died in World War II and in particular to the "bully beef and dog biscuits", which she said was "not a proper diet". She thought that her husband's consumption of salt was linked to his hypertension, which may have been related to the "bully beef" diet of World War II soldiers. There was reference in the evidence to the veteran having smoked a half a packet of cigarettes during the war, and she believed somebody would have suggested this in order to calm her husband down.
17. In cross examination, she gave evidence to the tribunal that, after the war, when she was cooking for her late husband, she would add a teaspoon of salt to each of the two saucepans, as well as adding salt to their meat; they had meat in their meals almost every night. The veteran would make his own luncheon sandwiches for work, salting these “if necessary". For example, for salads, some meats and eggs, he would use a salt shaker - but "not much". He sometimes would add salt to his meal at the table. However, after undergoing tests at Greenslopes Hospital “in the early 1980's" (presumably the October 1985 admission) he had "rationed himself on salt and fats" (exhibit 8). She also advised the tribunal that the veteran's sister had told her that, before he enlisted, their family's custom was to salt food in order to preserve it due to the pre-war lack of refrigeration facilities (exhibit 8).
18. Mrs Jacobsen also informed the tribunal that her late husband suffered badly from migraine headaches and nausea, and that he had difficulty coping with loud noises. She mentioned that her husband had hypertension tablets prescribed (Temorin), after which the headaches ceased.
MEDICAL EVIDENCE
19. The medical evidence presented to the tribunal consisted of:
- Copies of the veteran's Service Documents (exhibit 1 folios 1-8)
- The veteran's Greenslopes Hospital clinical notes, including record of admission 21 to 22 October 1985 (exhibit 10).
- Extract of clinical notes of veteran's Greenslopes Hospital admission 15 November 1988 referring to his smoking during war service as "nil except ½ pack or so during war" (exhibit 4).
- Copies of the veteran's Princess Alexandra Hospital clinical notes from 8 January 2002 to 20 June 2004 (exhibit 5).
- Copy of veteran's Death Certificate of 23 July 2004 (exhibit 1 folio 9).
- Letter to Deputy Registrar, AAT, from the applicant, referring to two stressful incidents she claims the veteran experienced during his war service, dated 12 January 2006 (exhibit 1 folios C-E).
- Clinical notes of the veteran received from Dr Julien Valery, of Sherwood, of 3 March 2006 (exhibit 2), consisting of:
-Coronary Angiogram Report by Cardiologist Dr Stephen Cox of Princess Alexandra Hospital of 9 January 2002;
-Reports to Dr Valery from Dr Queenie Lau, Cardiothoracic Surgical Registrar of Princess Alexandra Hospital, dated 21 January 2002 and 27 February 2002;
-Letters to Dr Valery from Cardiologist Dr John Hill of Woolloongabba of 17 February 2003 and 18 February 2004;
-Notification to Dr Valery of the cause of death of veteran from Dr D Sturgess, ICU Registrar of Princess Alexandra Hospital of 20 June 2004;
-Letter to Dr Valery from Dr Steven Gett, Visiting Consultant Vascular Surgeon at Princess Alexandra Hospital, undated; and
-Practice clinical notes of Dr White, Dr Makinson and Dr Valery of the veteran from 2 October 1987 to 16 June 2004.
- Letter of 31 March 2006 from Dr Valery to Mr Williams, Review Officer of the DVA Queensland State Office advising that his practice has no earlier clinical notes for the veteran than 2 October 1987 (exhibit 3).
- Letter from Burnett Medical Centre of Bundaberg on 10 April 2006 advising that the veteran's clinical notes from that practice are no longer extant (exhibit 7).
- Memorandum from Dr Peter Grant, Senior Medical Officer for DVA Queensland State Office, of 15 May 2006 (exhibit 6).
- Applicant's statement to DVA, regarding the veteran's salt intake, undated (received 31 May 2006) (exhibit 9).
- Letter from applicant regarding the veteran's salt intake, to Mr Williams, DVA Review Officer, of 12 June 2006 (exhibit 8).
20. Dr Grant was also called by the respondent to give evidence in person before the tribunal.
SUBMISSIONS
21. Mr Williams submitted that on the basis of the evidence presented, that factor 5(c) of SoP number 35 of 2003, could not be satisfied. He referred to the evidence of Dr Grant, who stated that while there was some reference to a doctor’s clinical notes in 1985 which suggested that the veteran had experienced borderline hypertension since 1939, he thought that this was inconsistent with the clinical note that he had a blood pressure reading which was normal when he was discharged from the Army in March 1946. It was noted that the first time that hypertension was potentially an issue in the medical records of the veteran was when he was admitted to Greenslopes in 1985.
22. Dr Grant also commented that the first time that hypertension is reported in the veteran’s records was when he was aged 67. Dr Grant also mentioned that the elevation of BP could have occurred over a short period. He said that stress causing hypertension could have occurred after the applicant’s army service, or that it could be of a temporary nature.
23. Mr Williams also argued that the veteran's hypertension was not caused by military service. He argued that the evidence showed that it might have arisen later in the veteran’s life, because of his consumption of salt. He further submitted to the tribunal that there was no evidence of increased preference for consuming salt since his military service. Indeed, he submitted that the evidence showed that the consumption of salt throughout his married life, that is after world War II, was similar to that used by his mother in cooking, and therefore, any preference for salt may not have been caused by the war, but rather might have been initiated prior to World War II.
CONSIDERATION
24. In arriving at a determination in this matter, the Tribunal has considered all of the oral evidence and documentary exhibits. All relevant statutory and case law and relevant legislative instruments have also been thoroughly considered.
Diagnosis
25. It is the role of the Tribunal to determine the most appropriate diagnosis. In the present case, this amounts to the most appropriate diagnosis of the cause of death. This determination is to be made by the Tribunal on the balance of probabilities and must consider the “collection of relevant symptoms” and to the appropriate SoPs (see Fogarty v Repatriation Commission [2002] FCA 1541).
26. The diagnosis here is the diagnosis relevant to the cause of death. Relevantly, the death certificate shows the causes of death to be:
a.intra-abdominal bleeding; and
b.ruptured abdominal aortic aneurysm.
27. The death certificate shows that the veteran had suffered from intra- abdominal bleeding for less than 24 hours prior to his death. In relation to ruptured abdominal aortic aneurysm, the death certificate certifies that the veteran had suffered from that condition for less than 48 hours prior to death. However, the applicant claims that the causes of death were related to his hypertension, which does not appear to have been formally diagnosed prior to his death.
28. Dr Grant provided evidence that in 1985, a doctor at Greenslopes Hospital had noted that the veteran suffered "a borderline hypertension since 1939". Dr Grant told the tribunal that hypertension could take three to six months to develop. In mild cases, it may take longer. However, his blood pressure may have become elevated over a short period and therefore it is difficult to say exactly when the onset of hypertension occurred.
29. It is clear however that the record shows that the veteran had normal blood pressure in March 1946 when he was discharged from the army. It is also apparent in a formal clinical note that potential borderline hypertension occurred in 1985 at Greenslopes Hospital. Dr Grant formed the view that if this were accepted as a diagnosis, it seems "at odds with normal blood pressure in 1946".
30. The difficulty with a diagnosis in this case is that the claimed conditions of hypertension do not appear on any official record of the deceased until 1985, where he was 67 years of age. On the basis of the available evidence and the opinion of medical experts, the Tribunal is not reasonably satisfied that a diagnosis of hypertension is justified. Therefore, the Tribunal finds that the veteran died from the causes noted on the official death certificate.
Preliminary Questions
31. The Tribunal must consider two pre-conditions before the substantive questions set out in the relevant legislation and SoPs are dealt with. These pre-conditions are:
a.Was Mr Jacobsen a veteran under the Veterans Entitlements Act 1986?
b.Is the “kind of injury or disease” in question consistent with a Statement of Principle which has been issued?
32. In respect of (a) no challenge is made to the veteran’s apparent war service. In respect of (b), the Tribunal has found that the veteran had the two conditions shown on the death certificate. However, there is some suggestion that he had hypertension in 1939 which may be related to the conditions from which he died. If so, SoP 35 of 2003 is relevant. Therefore, the Tribunal is proceeding on the basis that the veteran satisfies both pre-conditions.
Clinical Onset
33. Factor 5 of SoP number 30 of 2004 refers to a minimum criterion before a reasonable hypothesis can be raised connecting the death of the veteran with war service.
34. Identifying the “clinical onset” within the chronology of facts requires establishing a sufficient proximity of the events claimed to be associated with the veteran’s operational service and the manifestation of the disease and death.
35. Given the analysis presented under “diagnosis” and the evidence of the medical records of Dr William Grant, the Tribunal accepts that clinical onset of hypertension did not occur until approximately 1985.
36. The clinical onset of aortic aneurysm is determined to be as shown on the death certificate i.e. June 2004.
Is The Standard Of Proof Satisfied?
37. The standard of proof is set out in s 120(1) and s 120(3). To evaluate the requirements of s 120(3), four steps were set out by the Full Court of the Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82 at 82. These steps are:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
Step 1 of Deledio
38. In Step 1, the evidence must contain material which can establish an hypothesis which connects facts or evidence generally, which could link the veteran’s death to aortic aneurysm and which could be shown to emanate during World War II.
39. Two hypotheses could be raised:
(i)Hypothesis 1 - Is the condition of Hypertension related to service in World War II?
(ii)Hypothesis 2 - Did the veteran have hypertension before the clinical onset of aortic aneurysm?
40. An hypothesis is a proposition which can be accepted as being intuitively logical but without any substantive truth at that stage. In Repatriation Commission v Stares (1996) 41 ALD 212 at 217, it was said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact”.
41. The Tribunal must also have regard to the requirements that it must make its decision “after consideration of all of the material” (Bushell v Repatriation Commission (1992) 175 CLR 408).
42. On the basis of this material, the submissions made by the applicant and the acknowledgement by the respondent, the Tribunal finds an hypothesis is made out which connects the conditions diagnosed at death to hypertension and salt intake during the veteran’s service during World War II (Hypothesis 1). Given the link between hypertension and aortic aneurysm as per SoP No. 66 of 1998 – Aortic Aneurysm, the Tribunal finds an hypothesis is also established between hypertension and aortic aneurysm (Hypothesis 2).
Step 2 of Deledio
43. Step 2 seeks to identify a SoP which has been issued by the RMA and which is relevant to the disease and death in question. The relevant instruments are SoP 35 of 2003 – Hypertension; and SoP 66 of 1998 – Aortic Aneurysm.
Step 3 of Deledio
44. This step requires an assessment of whether the hypothesis in Step 1 is reasonable. A reasonable hypothesis is raised not by the existence of a mere possibility, but where the evidence shows “…some positive inference in favour of a connection between the injury, disease or death and the veteran’s or members particular service” (see explanatory memorandum to Act Number 98 of 1994 at page 107).
45. In assessing whether a raised hypothesis is “reasonable”, the Tribunal is obliged to follow the decision of the High Court of Australia in Byrnes v Repatriation Commission 1993 177 CLR 564 at 569 which held that a reasonable hypothesis is raised when “….. the material points to some fact or facts (‘the raised facts’) which support the hypothesis”. Further, at page 571, the High Court said in relation to this step that:
“The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.”
46. Clearly, to establish a reasonable hypothesis, there must be materials before the Tribunal which fit the template of the SoP for Hypertension. The relevant provisions in the SoP for hypertension are as follows:
Kind of injury, disease or death
2.
(a) …
(b) For the purposes of this Statement of Principles, “hypertension” means permanently elevated blood pressure, evidenced by:(i) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg or where the diastolic reading is greater than or equal to 90 mmHg; or
(ii) the regular administration of antihypertensive therapy to reduce blood pressure,
…
Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting hypertension or
death from hypertension with the circumstances of a person’s relevant
service are:
…
(c) ingesting at least 12 grams (200 mmol) of salt supplements per
day on average for a continuous period of at least six months
immediately before the clinical onset of hypertension; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…“death from hypertension” in relation to a person includes death from a terminal event or condition that was contributed to by the person’s hypertension;
…
47. Having regard to the SoP, the third step in the Deledio process involves the Tribunal making a relatively high level assessment of the applicant’s story to see whether it fits the template in the SoP. It is not concerned with findings of fact at this stage. However, if the applicant’s story does not fit within the template of the SoP, it will be rejected. The applicant’s story must be a credible proposition and one that is not too remote or too improbable. It must be “...more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 532 to 533).
48. In practical terms, the evidence must “point to” or “support” the hypothesis, and not merely be “left open” as a possibility: Gilbert v Repatriation Commission (1989) 86 ALR 713; Repatriation Commission v Bey (1997) 79 FCR 364. The “points to” test was approved by the High Court in Bushell and it was held that the test in s 120(3) will manifest a reasonable hypothesis in circumstances where “…. there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with operational service”. The Tribunal must therefore consider whether the applicant’s health was severely affected by salt supplements, and whether it was significant or de minimis in its contribution to the condition from which the veteran died. In other words, the Tribunal must determine whether the veteran’s death was mainly attributable to his salt supplements which may have had an origin in his military service during World War II.
Hypertension
49. The applicant has sought to raise a reasonable hypothesis that the veteran's hypertension was related to his war service. She relied on the Statement of Principles concerning Hypertension, Instrument No.35 of 2003, factor 5(c), that the veteran was:
"ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension".
50. The respondent argued that the conditions from which the veteran died are not related to military service. If the Tribunal so finds, the applicant’s case fails. The respondent pointed to –
· The pattern of salt intake by the veteran after World War II until his death. Indeed, the evidence shows he had a regular consumption of salt, but that there was no evidence of a greater preference for consuming salt since his war service.
· Evidence of salt intake prior to World War II as being informative in the present assessment. The respondent pointed to evidence that the veteran’s salt intake was similar to his mother’s cooking. Therefore, his preference for salt may have developed prior to World War II.
51. The applicant sought to establish that the veteran’s death, recorded as being caused by intra-abdominal bleeding and ruptured abdominal aortic aneurysm, was related to the his war service and to his subsequent (post war) eating habits.
52. The Tribunal has noted that the veteran served in New Guinea from 21 January 1943 to 15 February 1944, and in post-war Singapore from 13 September 1945 to 2 November 1945 (exhibit 1 folios 1 and 2). It is common knowledge that Australian troops serving in New Guinea and the Islands were encouraged to increase their salt intake to 'replenish' that lost in perspiration. However, the tribunal has no additional evidential material available to consider this hypothesis, notably:
- The Tribunal has information about the veteran's salt intake during his service. In any event, if it had been of the order of 12 grams supplement daily, by the time of his discharge on 15 March 1946, his discharge medical examination had shown that it had not caused hypertension by that date.
- From the account given by the applicant, it is questionable whether the veteran's salt intake approached these levels following his discharge.
- It was not until almost 40 years after his discharge (ie during his Greenslopes Hospital admission 21 to 22 October 1985) that his first recorded blood pressure reading was found to be mildly raised. There is indirect evidence on the veteran's echocardiography report suggesting that his blood pressure may have been mildly raised for the previous 6-12 months. It is unfortunate that exhibits 3 and 7 confirm that there are no earlier clinical records, ie covering the period from his discharge on 15 March 1946 and his Greenslopes Hospital admission on 21 October 1985, that might provide documentation of the veteran's blood pressure. The tribunal would have been especially interested, with particular regard to factor 5(c) of the SoP concerning Hypertension, Instrument No.35 of 2003, in any recordings of the veteran's blood pressure in the six months following his discharge.
53. In view of the absence of these evidential matters, the tribunal can make no finding on factor 5(c) pertaining to the Statement of Principles concerning Hypertension, Instrument No. 35 of 2003.
54. Therefore, the Tribunal, in considering whether this raises a reasonable hypothesis, has formed the conclusion that the evidence does not satisfy the standard of proof required. Therefore, the hypothesis is untenable and the Tribunal determines that the evidence does not result in a reasonable hypothesis being raised.
Aortic Aneurysm
55. According to the Statement of Principles for Aortic Aneurysm - Instrument No.66 of 1998, the following paragraphs of that SoP are relevant:
Factors that must be related to service
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.Factors
5. The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting aortic aneurysm or
death from aortic aneurysm with the circumstances of a person’s
relevant service are:
(a) …
(b) suffering from hypertension before the clinical onset of aortic
aneurysm; or
…56. The veteran's medical service records show that, on his discharge medical examination on 15 March 1946 his blood pressure reading of 130/80 was not raised (exhibit 1 folio 8).
57. The next blood pressure reading available to the tribunal was that recorded nearly 40 years later, on his admission to Greenslopes Hospital, from 21 to 22 October 1985, following four days of chest pain. It is recorded in his Discharge Summary from that hospital that he was said to have had "borderline untreated hypertension for many years". However, his admission letter from his then general practitioner Dr White makes no reference to previous hypertension. His blood pressure on this admission was recorded at 140/95. His echocardiogram was reported to show "mild-moderate left ventricular hypertrophy". When questioned by the Tribunal on this observation, Dr Grant opined that this suggested that the veteran's blood pressure may have been mildly raised for the previous 6-12 months. He was diagnosed with atrial fibrillation and possible viral pericarditis. It appears that no treatment for hypertension was started during that admission. When the veteran was admitted to Greenslopes Hospital the following year for ocular surgery to correct a strabismus (squint), neither during that admission, nor at his subsequent Eye Clinic follow-up attendances, was any blood pressure recording noted.
58. Subsequent blood pressure readings, as obtained by the veteran's successive general practitioners in Sherwood, from 2 October 1987 until 16 June 2004, vary in the range 120-180/80-100. The first of these entries, by Dr White of 2 October 1987, records that by then the veteran was being treated with atenolol (Tenormin); and it appears that, on 6 February 1997, Dr Makinson added amiodarone (Norvasc).
59. In January 2002 the veteran underwent coronary artery bypass graft surgery in Princess Alexandra Hospital, postoperatively complicated by a heart block, for which he had a pacemaker inserted. His abdominal aortic aneurysm was also diagnosed during this admission.
60. Therefore, factor 5(b) of the Statement of Principles for Aortic Aneurysm is satisfied on this point. However, in relation to Hypothesis 2 concerning the link of hypertension to Aortic Aneurysm and the veteran’s operational service, that hypothesis cannot be sustained as the Tribunal has already found that the veteran’s hypertension does not meet the standard of proof required to be related to operational service.
Step 4
61. As a reasonable hypothesis was not raised, it is unnecessary to consider Step 4.
DECISION
62. In the circumstances, based on all of the evidence now available, the Tribunal affirms the decision under review.
I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Senior Member and Dr J.B Morley, Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 31 August 2006
Date of Decision 20 November 2006
The applicant was self-represented
For the respondent Mr B Williams, departmental advocate
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