James and Repatriation Commission
[2006] AATA 22
•13 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 22
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1237
VETERANS’ APPEALS DIVISION ) Re ERNEST JAMES Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member Ms R Hunt
Member Dr I AlexanderDate13 January 2006
PlaceSydney
Decision The Tribunal affirms the decision under review.
[Sgd] Ms R Hunt
Presiding Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Service pension – Eligible defence service - Claim for ischaemic heart disease and hypertension –No connection with defence service – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 ss 5D(1), 9(1), 120(1), 120(3), 120(4), 120A(3)
CASES
Briginshaw v Briginshaw and Anor (1938) 60 CLR 336
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327
Statement of Principles concerning Hypertension, Instrument No 36 of 2003, as amended by Instrument No 4 of 2004
Statement of Principles concerning Ischaemic Heart Disease, Instrument No 54 of 2003, as amended by Instrument No 10 of 2004
REASONS FOR DECISION
summary
1. Mr Ernest James, the applicant, sought review of a decision of the Repatriation Commission, as affirmed by the Veterans’ Review Board. Mr James sought review of the part of the decision that refused him a pension based on his suffering ischaemic heart disease and hypertension. Mr James receives a disability pension at the 60% rate in respect of some other health problems. A decision that his defence service contributed to his claimed blood pressure and heart conditions would increase his pension. The tribunal has decided that Mr James should not have his pension increased by reference to hypertension and ischaemic heart disease as set out below.
background
2. Mr James served in the Royal Australian Navy and claimed his heart and hypertension problems stemmed from his defence service during 7 December 1972 to 28 January 1994. Mr James also served in Vietnam for periods in 1971 but made no claim before the tribunal that was related to his eligible war service.
issue
3. The parties agreed that Mr James suffered from hypertension and ischaemic heart disease. At issue was whether Mr James had hypertension while in defence service or related to his defence service. Further, did this condition meet the terms of the relevant SoP, which is Instrument Number 36 of 2003 For this purpose, the tribunal was required to determine the time of clinical onset of hypertension. The tribunal then was required to review the decision as to Mr James’ claim of defence caused ischaemic heart disease. He argued that his defence-caused hypertension was the cause of his heart problem and was also therefore defence caused.
principles for consideration
4. Mr James relied on his defence service as the service which made him eligible for the additional rate of pension claimed. In this regard, s.70(1) of the Veterans’ Entitlements Act 1886 renders the Commission liable to pay pension to a veteran where that veteran has become incapacitated as a result of a defence-caused injury or disease. The circumstances in which the disease is defence caused are set out in s. 70(5) of the Act.
5. The standard of proof applied to the question of whether a disease is war caused is dealt with in s.120 of the Act. In the present case, the standard of proof is prescribed by s. 120(4) as reasonable satisfaction. This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547). Further, in Briginshaw v Briginshaw (1938) 60 CLR 336, a decision of the High Court of Australia, Dixon J, commenting on the probative value of evidence of causation in civil cases, explained that a tribunal must feel actual persuasion of an applicant’s proposition. Reasonable satisfaction is not a result of a mere mechanical comparison of probabilities independently of any belief in its reality. It cannot be independent of the facts to be proved.
6. Section 120B qualifies the application of section 120(4) in considering any alleged relationship between the injury or disease and a veteran’s eligible defence service. That is, the decision maker can be reasonably satisfied that the injury or disease was defence-caused, only if the SoP relating to that kind of injury or disease, upholds the contention that the injury or disease is, on the balance of probabilities, connected with the person’s service.
consideration of claim and evidence
7. For Mr James’ claim to succeed, he must persuade the tribunal that the onset of hypertension and/or ischaemic heart disease occurred within the framework set out in the SoPs referred to above. Mr James claimed he was suffering from hypertension during service and before the clinical onset of ischaemic heart disease. The Commission’s position is that the clinical onset of hypertension occurred later than the heart problem and was not related to service.
8. The definition of “hypertension” is contained in clause 2 of the SoP, No 36 of 2003, as amended by Instrument No 4 of 2004. Clause 2(a) provides, for the purposes of the SoP, that hypertension means permanently elevated blood pressure. The definition further sets out that this means “a usual blood pressure reading” greater than or equal to 140 mmHg and/or diastolic pressure greater than or equal to 90 mmHg. An alternative test is regular administration of antihypertensive therapy to reduce the pressure. The definition specifically excludes temporary elevations in blood pressure. Therefore, it does not suggest the disease exists if it is not “permanent” or where the systolic pressure is high at a particular time. A "usual blood pressure reading" can only be established on the basis of several readings, and cannot be established on the basis of one reading.
9. Mr James gave evidence that he had high blood pressure during his defence service although regular readings taken during his service and included in the tribunal documents did not reflect this. An examination of Mr James’ blood pressure readings during his defence service shows a generally healthy normal range. Readings we have noted include:
Date B.P Reading T-doc Ref 27.08.56 120/80 p45 05.03.58 120/80 p43 29.01.59 120/75 p41 28.11.60 115/70 p39 28.11.61 110/80 p38 10.12.62 110/80 p37 07.12.65 120/80 p36 28.11.66 170/80 p35 23.12.68 115/80 p32 30.12.68 115/80 p34 03.03.69 115/80 p33 16.04.69 120/60 p31 17.03.71 120/60 p47 18.02.72 130/85 p30 16.08.74 140/90 p29 02.07.76 105/80 p27 31.10.80 120/100 p25 28.10.81 120/80 p24 04.06.84 120/80 p23 04.05.86 120/85 p17 01.02.89 120/90 p21 29.05.89 122/96 p20 25.05.90 120/80 p15 In particular, we note the reading on 18 February 1972, which is during the relevant defence service, is 130/85 and well below the elevated level. Mr James told the tribunal that he was able to manipulate the results by vigorous exercise before the recorded readings or that the doctors who made the readings modified them. On other occasions, he said they told him to come back later after he had taken steps to improve the reading.
10. The report of Dr M F O’Rourke, a cardiovascular and hypertension specialist, who examined Mr James on 5 April 2005, shows that his blood pressure was 146/80 at that time. Dr O’Rourke noted from examination of the tribunal documents that Mr James was fit and well on joining the navy in 1956 and that there were multiple recordings of blood pressure over the years. He observed that only one of these was queried when blood pressure was taken at 122/96 on 29 May 1989. He further noted a comment on record that “BP not usually elevated”. In 1992, shortly before discharge, Mr James’ blood pressure was recorded as 120/80. Dr O’Rourke also referred to Mr James’ having cut down on alcohol since his defence service. After further detailing the medical history and records before him and noting Mr James’ claim that elevated levels were not entered during his service as this would have prevented him from going to sea, Dr O’Rourke concluded that Mr James did not satisfy factor 5(a) or (g) of the SoP as to hypertension. Dr O’Rourke found no evidence of hypertension during service and just one isolated recording of elevated blood pressure in 1997, five years after discharge.
11. Dr O’Rourke also set out at page 6 of his report that he discussed Associate Professor Richards’ report dated 8 February 2005 with Mr James. The report of Associate Professor Richards stated that Mr James “probably had hypertension in the 1970s” but that “it was not until 1996 that he received treatment”. Dr O’Rourke disagreed with both these statements. Associate Professor Richards’ report also contained the opinion that the clinical onset of ischaemic heart disease was in the 1970s when Mr James first experienced exertional chest discomfort. By contrast, Dr O’Rourke could find no record of exertional chest discomfort in the tribunal’s documents and we have not found evidence of this during service as well. Dr O’Rourke noted that Mr James told him of no exertional chest discomfort occurring before 1999. It was in 1999 that the diagnosis of ischaemic heart disease was made.
12. We do not agree with Associate Professor Richards’ opinion that Mr James suffered hypertension in the 1970s. The records before us strongly suggest otherwise. There were few readings to suggest elevated blood pressure in the 1970s although one reading in 1974 was 140/90. In our view, there was no evidence of sustained high blood pressure until 1999. Dr Pokorny made one reading on 31 October 1997 of 165/100 but made no comment about hypertension. Mr James’ own GP, Dr Rastogi, did not diagnose high blood pressure over the years that Mr James consulted him, from 1997 onwards. Dr Rastogi recorded 112/70 in July 1999 and 140/90 on 16 July 1999.
13. There was no record of a blood pressure problem until the cardiac problem started in 1999. It was then that Dr Rastogi referred his patient to Dr Taylor, a cardiologist, in May 1999. Dr Taylor examined Mr James on 26 May 1999 and took a recent history of chest pain. Dr Rastogi’s notes and correspondence with Dr Taylor discuss a three-month history of anginal pain on exertion. Then, Dr P G Bannon performed heart surgery on 27 May 1999. Dr Taylor saw Mr James again after his surgery and prescribed blood pressure medication which is routine for heart surgery patients. Dr Taylor did not diagnose hypertension at this time but put Mr James on anti-hypertensive treatment because of the coronary surgery. Blood pressure was 140/80 on 26 May 1999 and on 29 October 1999. Hypertension was subsequently diagnosed in 2000 and treatment initiated. Dr Rastogi recorded low levels of 120/70 on 29 March 2000 and 130/70 on 17 April 2000.
14. Mr James claimed before the tribunal that he was able to regulate his blood pressure by taking fish oil and exercising. He gave evidence that, on occasion, his reading was high and that the doctors did not record this but allowed him to go away for a short time to fix his condition through vigorous exercise and then return for a more suitable reading, which was then recorded. He claimed he was given this assistance because he was friendly with the doctors, some of whom were drinking companions. He told the tribunal the doctors recorded good blood pressure levels because bad readings would be adverse to his career. They were aware of his position as an officer and a physical training instructor and that poor physical fitness might hold him back from promotion. He gave further evidence that he knew when his physical examinations were coming up and prepared fro them. He went on a diet to lose weight and to reduce his blood pressure and triglycerides each time he was coming up for an annual assessment. As well, he told the tribunal that he kept his own blood pressure machine to keep an eye on the readings.
15. Mr James did not provide any medical evidence to substantiate his claims that a bout of exercise could improve one’s blood pressure reading in a few hours or days. Professor O’Rourke gave evidence under questioning that a combined effort in terms of diet, alcohol intake, coffee intake and exercise to reduce a blood pressure reading would take weeks. He noted that smoking, coffee and alcohol might all increase blood pressure. We prefer to rely on the evidence of Dr O’Rourke and the official records of blood pressure readings kept during the defence service than to accept Mr James’ evidence of tampering or falsifying the naval records made on examination by the navy’s doctors. Associate Professor Richards has not presented any independent history or record of high blood pressure in the 1970s in reaching his opinion that Mr James probably had hypertension at that time. He simply refers to Mr James’ statement that his blood pressure was elevated in the 1970s. The readings to which he refers were taken years later. In reaching our finding that Mr James did not suffer hypertension in service, we place more weight on the records and readings before us as well as the opinion of Dr O’Rourke than the alternative explanation.
when was clinical onset of hypertension?
16. Clinical onset takes place at the first appearance of signs and symptoms of the condition such as to enable diagnosis at the time: Lees v Repatriation Commission (2002) 125 FCR 331. All the indications before us are that clinical onset occurred in 1999 or 2000 when Mr James’ heart problem was diagnosed and treated. This is obviously well outside the period of Mr James’ relevant defence service in the 1970s. By virtue of factor 4 in the SoP, at least one of the factors in clause 5 of the SoP must be related to Mr James’ relevant service. Mr James argued that his alcohol consumption may have contributed to the condition. However, he conceded that he had lessened his consumption in 1988/89. This is at least 10 years before clinical onset.
17. Factor 5(b) of the SoP concerning hypertension, Instrument No 36 of 2003, as amended by Instrument No 4 of 2004 was discussed before us in the context that, at the time of clinical onset of Mr James’ hypertension in 1999/2000, he may have been consuming the amount of alcohol required to satisfy the relevant Statement of Principles (SoP). The requirement in factor 5(b) is “consuming an average of at least 300 grams per week of alcohol for a continuous period of at least 6 months immediately before the clinical onset of hypertension, which cannot be decreased to less than an average of 300 grams per week of alcohol; …” . Mr James told the tribunal he has decreased his consumption of alcohol to less than 300 grams per week. As such, the material before the Tribunal fails to meet the minimum requirements of factor 5(b). Therefore, it cannot be said that the Applicant’s alcohol consumption made a contribution to the SoP requirements.
18. We further note that Associate Professor Richards concedes:
“If the date of onset of hypertension was 1996, then factor (b) would not be fulfilled.” (p3)
“…He consumed at least 300gm of alcohol per week until 1988.” (p3, emphasis added)
19. The report of Professor Mattick dated 7 June 2005 states:
“ …He cut back his drinking in 1989. Since that time he has drunk one standard drink per month.” (p12)
20. In addition, there is insufficient evidence before us to establish that Mr James’ alcohol consumption was a causal result of his service. For example, Professor Mattick in his report dated 7 June 2005 stated:
“His alcohol abuse does not appear to relate to any unpleasant or traumatic events or other events in service. There is no other event which may cause his alcohol abuse except that he simply drank heavily with friends in the Navy” (p12).
21. Therefore, we find that, as Mr James decreased his consumption of alcohol to less than 300 grams per week, on the material before us, he fails to meet the minimum requirements of factor 5(b). Therefore, it cannot be said that Mr James’ alcohol consumption made a contribution to the SoP requirements for hypertension. It follows that he fails to satisfy us on the balance of probabilities that he has defence caused hypertension.
ischaemic heart disease
22. Hypertension is a factor in the Statement of Principles concerning ischaemic heart disease, Instrument No 54 of 2003, as amended by Instrument No 10 of 2004. By virtue of factor 4 in the SoP, Mr James must show at least one of the factors in clause 5 of the SoP was related to his defence service. The relevant factor reads:
5(a) the presence of hypertension before the clinical onset of ischaemic heart disease”
5(g) immersion in an atmosphere with a visible tobacco smoke haze in an enclosed space for at least 10,000 hours before the clinical onset of ischaemic heart disease, provided the last exposure to that atmosphere did not end more than five years before the clinical onset of ischaemic heart disease”
23. The definition of “ischaemic heart disease” in clause 2 of the SoP. Before it can be said that ischaemic heart disease is present, there must be cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart. The clinical onset of ischaemic heart disease was in 1999 as set out in the discussion above. As Professor O’Rourke set out on 11 April 2005:
“Mr James said that his heart trouble came on in 1999 with what he described as heartburn and reflux…he went to Dr Taylor at Liverpool who undertook stress testing and then referred him on to coronary angiography. Mr James agreed with Dr Taylor’s statement that exertional pain had been present for three months, putting the onset of symptoms in February of 1999.” (p2)
“The clinical onset of Mr James’ cardiac condition was in February of 1999 with the onset of exertional angina…” (p5)
24. The reports of Associate Professor Richards are insufficient to support a conclusion that clinical onset of ischaemic heart disease was in the 1970s. His reports do not provide any evidence of cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart at that time. Consistent with the scientific standard prescribed by the SoP, no ischaemic heart disease was present in the 1970s. The factual material before the Tribunal does not point to the existence of each element prescribed by factor 5 (a) in the SoP concerning ischaemic heart disease for several reasons. Firstly, hypertension was not present before the clinical onset of ischaemic heart disease in 1999. Clinical onset of hypertension was in 2000. In any event, the material does not establish that Mr James’ hypertension was war caused.
25. In addition, the factual material before the Tribunal does not point to the existence of each element prescribed by factor 5 (g) in the SoP concerning ischaemic heart disease for several reasons. Mr James ceased to be confined on the mess deck in a visible smoke haze, at very latest, in 1992. This history is consistently given in the reports of Professor Mattick dated 7 June 2005 (p6), Associate Professor Richards dated 8 February 2005 (p2) and Professor O’Rourke dated 11 April 2005 (p2). As such, his last immersion in an atmosphere of visible tobacco smoke haze as a result of eligible service was not within five years before the clinical onset of ischaemic heart disease, which occurred in 1999. To meet the minimum requirements in factor 5(g) the clinical onset of ischaemic heart disease would need to have occurred, at the very latest, in 1994. it cannot be said that any immersion an atmosphere of visible tobacco smoke haze as a result of eligible service made a contribution in terms of the SoP requirements.
26. The factual material before us does not point to the existence of each element prescribed by the factors in the relevant SoPs. As Mr James’ contentions are not supportable under the relevant SoPs, we cannot be reasonably satisfied that his hypertension and ischaemic heart disease are, on the balance of probabilities, connected with his service. The result is we cannot be reasonably satisfied that Mr James’ hypertension and ischaemic heart were defence-caused.
decision
27. The tribunal affirms the decision that that Mr James should not have his pension increased by reference to hypertension and ischaemic heart disease.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: ..Zoe McDonald
AssociateDate of Hearing: 7 and 8 November 2005
Date of Decision: 13 January 2006
Counsel for the Applicant: Mr D Reid
Solicitor for the Applicant: Fairbairn Lawyers
Counsel for the Respondent: Ms K Harry
Solicitor for the Respondent: Department of Veterans’ Affairs
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