Julian and Repatriation Commission
[2010] AATA 1026
•17 December 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1026
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2553
VETERANS’ APPEALS DIVISION ) Re MARGARET JULIAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr I Alexander, Member Date17 December 2010
PlaceSydney
Decision The two decisions under review are affirmed.
.......................[sgd].......................
Dr I Alexander, Senior Member
CATCHWORDS
revisitation of earlier determination that veteran’s Hypertension defence-caused – veteran did not meet diagnostic criteria for hypertension during service – appropriate to consider only contemporaneous medical standards – blood pressure readings not permanently elevated – even if veteran suffered Hypertension during service, evidence did not support conclusion that service materially contributed to or aggravated Hypertension – decisions under review affirmed
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Wedekind [2000] FCA 649
Brown v Repatriation Commission [2003] FCA 1130
Brew v Repatriation Commission (1999) 56 ALD 403
Veterans’ Entitlements Act 1986 (Cth) ss 70(1), 70(5)(d), 120(4)
Other Instruments:
Statement of Principles concerning Renal Artery Atherosclerotic Disease: Instrument No.33 of 1999
Statement of Principles concerning Hypertension: Instrument No. 36 of 2003
REASONS FOR DECISION
17 December 2010 Dr I Alexander, Member BACKGROUND
1. Mrs Margaret Julian is the widow of Harry Graham Julian, a veteran, who died 13 June 2008. In this application Mrs Julian seeks review of two decisions of the Repatriation Commission (the Commission) affirmed by the Veterans’ Review Board (the VRB) on 20 May 2009.
2. The first decision was in respect of an application lodged by the veteran dated 21 November 2007 claiming “renal failure” as a disability related to eligible service. The delegate at that time was satisfied that the appropriate medical diagnosis for the claimed condition was “atherosclerotic renovascular disease/chronic renal failure”, but decided that the condition was not related to either operational service or eligible service. A concurrent claim for an increase in the disability pension was granted.
3. The second decision was in respect of an application by Mrs Julian dated 28 July 2008 claiming a war widows’ pension following the death of her husband on the ground that his death was service related.
4. As the relevant facts were the same, the VRB dealt with both decisions concurrently.
5. Relevantly, Mr Julian served in the Royal Australian Navy (the RAN) from 16 January 1968 to March 1969, with operational service from 5 April 1968 to 6 April 1968. He also rendered eligible defence service in the RAN from 16 August 1976 until discharge on 31 December 1984.
6. This application is based on Mr Julian’s eligible defence service alone and no claim is pressed in respect of operational service.
STATUTORY SETTING
7. Section 70(1) of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act) provides that the Commonwealth is liable to pay a pension to a member of the defence forces who is incapacitated from a “defence caused disease” or a pension to dependents of a member of the defence forces whose death was “defence-caused”.
8. Section 70(5)(d) deems that a disease contracted either before the commencement of defence service or during but not arising from that service is defence-caused, if in the opinion of the Commission it was “contributed to in a material degree by, or was aggravated by, any defence service”.
9. Section 120(4) requires that the Commission should decide the matter to its reasonable satisfaction.
10. If the claim is one in respect of which there is a Statement of Principles (SOP) in force, section 120B(3) determines that that Commission can only be reasonably satisfied if :
(a) the material before the Commission raises a connection between the person’s disease and some particular service rendered by that person, and;
(b) the SOP in force upholds that the disease is, on the balance of probabilities, connected with that service.
In this application there are two SOPs in force, namely;
a) Instrument No 33 of 1999 SOP concerning Renal Artery Atherosclerotic Disease (RAA disease)
b) Instrument No. 36 of 2003 SOP concerning Hypertension
ISSUES
11. Mrs Julian contends that her husband suffered from RAA disease and that this condition was defence-caused on the basis that it was causally related to hypertension that had been present during his defence service but had been undiagnosed. She also contends that the failure to correctly diagnose Mr Julian’s hypertension led to an inability to obtain appropriate clinical management for his hypertension.
12. The contentions are framed with reference to factor 5(b) in the SOP concerning RAA disease; ie. “suffering from hypertension for a period of at least 10 years before the clinical onset of renal artery atherosclerotic disease” and factor 5(z) in the SOP concerning Hypertension; ie. “inability to obtain appropriate clinical management for hypertension”.
13. There is no dispute that Mr Julian suffered from renal failure as a consequence of RAA disease and that this condition was the cause of his death. The material before the Tribunal suggests that the clinical onset of renal failure occurred during 1999 and it is reasonable to accept that for present purposes, this marks the time of clinical onset of the RAA disease.
14. At the hearing, the Commission did not dispute that Mr Julian had suffered from hypertension for at least 10 years and agreed with the applicant’s submission that the only issue in dispute was whether Mr Julian’s hypertension was connected with his eligible defence service and whether there was an “inability to obtain appropriate clinical management for hypertension”.
15. Although the Commission had accepted “essential hypertension”, as a war caused condition in 1988, the parties agreed that for the present application the connection between service and hypertension needed to be revisited in keeping with the relevant SOP. The relevant authority for revisiting the facts underpinning an earlier determination when determining a later claim is the Full Federal Court decision in Langley v Repatriation Commission (1993) 43 FCR 194.
MEDICAL EVIDENCE
16. Mr Julian’s service medical records during his eligible defence service from August 1976 to December 1984 indicate that his blood pressure (BP) was recorded on at least 16 occasions.
17. His systolic BP was recorded as less than 140 mmHg six times, equal to 140 five times and greater than 140 five times.
18. The diastolic BP was less than 90mmHg eleven times, equal to 90 four times and greater than 90 once.
19. There was random variability with no consistent pattern.
20. On several occasions the medical records included relevant comments by the attending medical practitioner in respect of Mr Julian’s BP.
21. On 6 July 1981 when BP was recorded as 150/90, it was noted that “on weight reducing program. BP to be re-checked in one month”.
22. On 9 September 1983, it was noted on a Daily Medical Record: “Review re BP. Resting 130/80”.
23. A Report of Medical Board of Survey dated 27 January 1984 stated: “The single high blood pressure reading will be followed by weekly surveillance to determine whether it is a true persistently raised BP or just a once only rise.”
24. A daily medical record dated 28 February 1984 noted: “High BP 6 wks ago on routine medical 150 100…weekly surveillance consistently 130 80 or 140 90…in 3 months check BP”.
25. The discharge medical examination on 24 August 1984 recorded a BP of 120/70.
26. A patient’s progress sheet, Royal Canberra Hospital, dated 26 June 1983 recorded a BP of 140/90 with a “y” entered into box for “history of hypertension” and a comment of “no treatment for hypertension”.
27. There was no contemporaneous information before the Tribunal with reference to Mr Julian’s blood pressure between his discharge in December 1984 and July 1989.
28. In an Entitlement Medical Report dated 13 July 1989, Dr Graham noted under the heading of High blood Pressure: “This condition was found on routine medical examination in 1981…since then he has required occasional drug therapy and dietary nutrition…At present he is checked at about 6 monthly intervals and still has a tendency to hypertension…low salt diet and regular exercise”.
29. In a report dated 20 September 1989, Dr Coles, Cardiologist, noted that Mr Julian gave a history of high blood pressure first being noted in 1978 during a routine medical examination but that the elevation was transient and no medication was required. Mr Julian also reported that in 1981, after returning to Australia after a three month helicopter mission, his blood pressure was found to be very high, and treatment in the form of weight reduction, dietary salt reduction and medications was started.
30. I note that apart from the brief note in 1981, described above, there was no mention of any form of treatment for hypertension in the service records.
31. Dr Coles also noted that Mr Julian reported recent high blood pressure but no treatment with medication.
32. On examination Dr Coles found Mr Julian’s BP to be 158/90 subsiding to 146/88 with rest and concluded that his “systemic hypertension is thus approaching the stage of needing regular therapy”.
33. On 17 September 1991 Mr Julian was admitted to Royal Canberra Hospital following a motor bike accident. The hospital record noted that Mr Julian was on no regular medication and that there were no previous health problems.
34. On 13 October 1991, Mr Julian was again admitted to Royal Canberra Hospital following what was considered to be a transient ischaemic attack which had manifested with temporary left upper and lower limb weakness. The hospital record noted previous hypertension treated only for three weeks and also recorded no current medication.
35. Four BP readings during this admission were recorded as 160/85, 130/60, 150/80 and 130/70.
36. In a letter dated 22 January 2009, Professor George, consultant renal physician, stated that:
“A single elevated blood pressure reading does not warrant making a diagnosis of hypertension, but suggests that further readings should be checked in the near future to determine whether repeated elevated readings are persisting, in which case a diagnosis of hypertension is appropriate”.
37. In a further letter dated 22 August 2010, Professor George, in answer to a number of questions put by an advocate of the Veterans’ Advocacy Service, stated that:
“I have reviewed the blood pressure readings made between 18th June 1976 and 24th August 1984 that you have provided. The definition of hypertension has changed over the years with the result that the only ones of these that I would at the time have considered to be elevated were those of 7th June 1982 (160/80) and the 28th February 1984 (150/100) and to have diagnosed hypertension on the basis of these would have required obtaining a confirmatory elevated reading at the subsequent examination, which was not the case on each of these occasions….
Appropriate clinical management of proven hypertension would be likely to improve a patient’s longevity and reduce his risk of complications of the hypertension
Assuming that Mr Julian was not receiving treatment for hypertension during the period 1976-84, I consider that the RAN medical records demonstrate appropriate clinical management of his blood pressure as readings for this were normal on all except two occasions, the readings on those occasions were only very mildly elevated, and the elevated readings were on each occasion not confirmed on the next subsequent time of testing which would be necessary to make a confident diagnosis of hypertension.”
CONSIDERATION
38. In this application Mrs Julian contends that her husband suffered from hypertension during his eligible defence service and that the failure of the RAN to diagnose his condition resulted in an “inability to obtain appropriate clinical management for hypertension”, thereby making hypertension a defence related condition. The condition of hypertension then becomes the essential connection between Mr Julian’s eligible defence service and RAA disease which caused his death.
39. This contention is based on the presumption that Mr Julian suffered from hypertension before or during his eligible defence service and that the hypertension was diagnosable at that time.
40. After having considered all the material before me and, notwithstanding the concessions made by the Commission with respect to hypertension, I have decided that it is appropriate to revisit the presumption that Mr Julian in fact did suffer from hypertension during his defence service.
41. In doing so I am guided by the decision Repatriation Commission v Wedekind [2000] FCA 649 (17 May 2000), a case in which “failure to diagnose” and “inability to obtain appropriate clinical management” were the central issues. Kenny J summarised as follows at [12]:
“In summary, before the AAT could be reasonably satisfied that Mr Wedekind's pterygium was war-caused, it had to be satisfied that: (a) Mr Wedekind was unable to obtain appropriate clinical management for his pterygium during his war service, after having contracted the pterygium; (b) subject to (c), his inability to obtain appropriate clinical management was related to his war service; and (c) the pterygium was contracted while he was rendering war service and was contributed to in a material degree by, or was aggravated by, his war service. In the course of determining whether it was satisfied of these matters, the Tribunal needed to identify the approximate date upon which Mr Wedekind contracted his pterygium…” (emphasis added).
42. Also in Brown v Repatriation Commission [2003] FCA 1130 (17 October 2003), a case in which “inability to obtain appropriate clinical management” was at issue, Cooper J stated at [9]:
“To succeed in her claim that sarcoidosis was connected with the circumstances of her non-operational eligible war service, the applicant was required to prove on the balance of probabilities that: (a) there was a diagnosis of sarcoidosis…”
43. In my view these decisions provide authority for the proposition that when considering whether a medical condition is defence–caused the Tribunal must satisfy itself on the balance probabilities that the condition actually existed and was diagnosable before or during the relevant service.
44. An examination of Mr Julian’s service medical records, in my view, clearly demonstrates that on several occasions the medical practitioners examining him recorded elevated blood pressure readings but, after additional blood pressure monitoring, did not make a definitive diagnosis of hypertension. I can only assume that they had considered that the diagnostic criteria for hypertension at that time had not been met.
45. Professor George in his letter of 22 August 2010 clearly indicated that he also would not have diagnosed hypertension on the blood pressure readings recorded in the service records.
46. Counsel for Mrs Julian submitted that the Tribunal should disregard this part of Professor George’s opinion on the basis that that the criteria for the diagnosis have changed and that he should have based his opinion according to the criteria set out in the current SOP.
47. To suggest that the diagnosis of a medical condition should be based on anything other than contemporaneous medical standards I consider somewhat unusual and not supported by existing authority.
48. In Brew v Repatriation Commission (1999) 56 ALD 403 (23 April 1999), a case in which “inability to obtain appropriate clinical management” was at issue, Sundberg J stated at 407:
“In so far as the applicant’s representative submitted that the applicant’s inability to obtain appropriate clinical management occurred by the absence of present day technology to diagnose the condition we respectfully agree with the submissions of Mr Herman. Only contemporaneous medical standards, practices and technology can be considered.”
49. Futhermore the SOP defines hypertension as:
“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;
…”
50. In my view the key factor is this definition is that the blood pressure must be “permanently elevated”.
51. I read nothing in Professor’s George’s documents that suggests that the requirement for permanent elevation has changed over time. In respect of the change in definition of hypertension I have interpreted his opinion as meaning that the levels at which blood pressure readings are to be considered elevated have changed. In his letter of 22 June 2009 he clearly indicated that the diagnosis of hypertension requires that “repeated elevated readings are persisting” which I consider to be synonymous with the meaning of “permanent elevation” as defined in the SOP.
52. On reviewing the various blood pressure readings during Mr Julian’s defence service I am not reasonably satisfied that that his usual readings were permanently elevated. The blood pressure readings showed significant variation with many in the normal range even as defined in the current SOP. In fact the last reading prior to discharge was in the normal range.
53. Also, the material before the Tribunal suggests that the pattern of single elevated blood pressure readings alternating with normal readings, even when using the SOP criteria, continued after Mr Julian left the RAN until at least 1991.
54. Furthermore even I were to assume that Mr Julian did suffer from “hypertension” during his eligible defence service I am not satisfied that the evidence before me supports a conclusion that his defence service materially contributed or aggravated his “hypertension” as required by section 70(5)(d) of the VE Act.
55. Counsel for Mrs Julian submitted that there “was no doubt in the veteran’s case that therapy would have improved his condition in relation to his longevity and the avoidance of possible complications” and cited Professor George’s opinion of 22 August 2010 as support for this submission. Counsel also submitted that Professor George supported the contention that “the veteran’s inability to obtain appropriate clinical management, did make a material contribution to, or aggravate his hypertension”
56. I have some difficulty with Counsel’s submissions as Professor George merely stated that :
“Appropriate clinical management of proven hypertension would be likely to improve a patient’s longevity and reduce his risk of complications of the hypertension.”
57. This statement is clearly a comment about hypertension in general and does not demonstrate any actual assessment of Mr Julian’s blood pressure in respect of any contribution to or aggravation by his defence service.
58. In conclusion, for reasons set out above, I accept that during his defence service Mr Julian had intermittent blood pressure readings that were elevated but I am not reasonably satisfied that his blood pressure was permanently elevated at that time.
59. Accordingly I find that Mr Julian did not suffer from hypertension during his defence service which means that Mrs Julian’s application for review has been unsuccessful.
DECISION
60. The two decisions under review are affirmed.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander
Signed: .....................[sgd]...........................................................
AssociateDate/s of Hearing 29 November 2010
Date of Decision 17 December 2010
Counsel for the Applicant Mr P JormRepresentative for the Respondent Mr N Bunn, Department of Veterans' Affairs
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