Lockhart and Repatriation Commission
[2004] AATA 55
•23 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 55
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/684
VETERANS’ APPEALS DIVISION ) Re KENNETH SAMUEL LOCKHART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date23 January 2004
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (Sgd) J Handley
Senior Member
ELIGIBLE SERVICE – review of decisions to reject claim for atrial fibrillation and ischaemic heart disease – alleged link with service by salt and hypertension – hypertension SOP not satisfied – quantities of salt per SOP not consumed – whether accepted knee injuries caused inability to exercise precipitating hypertension – SOP for knee injuries (osteoarthrosis) not reviewed – repealed and current SOPs reviewed – decision affirmed
Veterans’ Entitlements Act 1986 (Cth), s 9(1)(b) and s 120(4)
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Gorton [2001] FCA 1194
Benjamin v Repatriation Commission (2001) FCA 1879
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Cooke (1998) 52 ALD 1
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v McKenna (1998) 52 ALD 72
McKennav Repatriation Commission (1999) 86 FCR 144
Statement of Principles Instrument No. 10 of 1996
Statement of Principles Instrument No. 20 of 2003
Statement of Principles Instrument No. 26 of 1999
Statement of Principles Instrument No. 32 of 2001
Statement of Principles Instrument No. 36 of 2003
Statement of Principles Instrument No. 39 of 1999REASONS FOR DECISION
23 January 2004 Mr John Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 17 May 2002. The VRB then decided to affirm a decision previously made by the respondent on 24 May 2001 to reject applications for the conditions of pulmonary oedema, artrial fibrillation and ischaemic heart disease as being war-caused. The VRB noted that the applicant withdrew his claim for acceptance of the condition of aortic stenosis. Prior to this application being heard in this Tribunal the applicant also withdrew his claim for acceptance of the condition of pulmonary oedema. Accordingly the application proceeded only to review the decision of the VRB in so far as it concerned the rejection of atrial fibrillation and ischaemic heart disease.
2. The application was heard in Mildura on 21 May 2003 and resumed in Melbourne on 27 August 2003. The matter was then adjourned for delivery by the representatives of the parties of written submissions. Mr De Marchi appeared on behalf of the applicant and Mr Douglass appeared on behalf of the respondent. Mr Lockhart gave evidence in Mildura. Doctors Rosenbaum and Hammond both consultant cardiologists gave evidence in Melbourne on behalf of the applicant and respondent respectively.
3. Mr Lockhart is presently 90 years of age having been born on 23 May 1913. He served as a member of the Australian Army within Australia only between 7 November 1940 and 11 February 1944. Accordingly this matter is to be determined upon the balance of probabilities pursuant to s 120(4) of the Veterans’ Entitlements Act 1986 (“the Act”). Principally he served as a member of the 101 Motor Regiment in Western Australia at both Geraldton and at Perth.
4. When the claim was initially made upon the respondent, it was alleged that a smoking habit associated with service was responsible in whole or part for the injuries sought to be found as war-caused. When the matter was heard by the VRB that connection was not pursued. However the advocate for Mr Lockhart pursued a connection with service by reason of obesity and inability to undertake mildly strenuous physical activity. The latter factor was advanced having regard to Mr Lockhart presently receiving pension at 30% of the general rate by reason of the accepted conditions of osteoarthrosis of both knees.
5. When the matter was heard by the Tribunal in Mildura the advocate for Mr Lockhart sought to advance the application by connecting service and injury by hypertension, consumption of salt, consumption of cigarettes, consumption of alcohol and inability to undertake physical activity.
6. When the matter resumed in Melbourne the applicant sought to connect injury with service by hypertension, consumption of salt and inability to undertake a mildly strenuous level of physical activity only. The written submission of the applicant pleaded that Mr Lockhart had a “pre-disposition” to developing hypertension and his consumption of salt during service “would have exacerbated his pre-disposition to developing hypertension”. In conclusion it was submitted “his inability to exercise together with a previous pre-disposition to hypertension and salt intake on service all contributed to the development of hypertension . . . hypertension is a recognised factor in the development of ischaemic heart disease”.
7. The respondent denied that the applicant suffered from ischaemic heart disease. It conceded that the applicant in fact did suffer from atrial fibrillation but denied its connection to service. Additionally the respondent submitted that consideration of the condition of hypertension was not permitted by this review because it was not considered by the Repatriation Commission or by the VRB. In any event, whilst denying any connection between service and hypertension it was conceded by the respondent that the “veteran’s major diagnosis” is hypertensive heart disease and that it existed within the scope of this review (refer submissions at paragraph 5).
8. Having regard to the evidence heard in Mildura and Melbourne, the documents lodged and the submissions of the parties a number of distinct legal principles have emerged which have a material bearing on these proceedings. Those issues extend to identification of an applicable Statement of Principles (“SOPs”), findings as to diagnosis, whether consideration of a SOP other than those that specifically apply with respect to atrial fibrillation and ischaemic heart disease need to be considered and s 9(1)(b) of the Act.
9. In so far as s 9 is concerned it is remarkable that little attention was given to the nature and circumstances of the applicant’s service. It was as if some isolated blood pressure readings taken during service would permit a finding of the applicant suffering from hypertension. It was as if the admitted consumption of salt tablets would achieve the requisite minimum level to satisfy factors within the SOP which will be recited later. A proof of evidence of Mr Lockhart was not lodged by his solicitors prior to the hearing and documents which were completed on his behalf by another person were found – by reason of evidence heard in these proceedings – to be of dubious value. Indeed on one view – having regard to a smoking history completed on behalf of Mr Lockhart – it may be said that those documents were either at worst false or at best misleading. For reasons which will emerge later I am unable to find that any injury or disease alleged by Mr Lockhart arose out of or was attributable to his eligible war service (s 9(1)(b)) or that any injury or disease was contracted during eligible service or any pre-existing injury or disease was contributed to or aggravated during service (s 9(1)(e)).
10. With respect to the manner in which this review proceeded, a number of SOPs have been issued by the Repatriation Medical Authority (“RMA”) during the assessment period. Some contain identical factors but some raise new factors. There is therefore an issue of whether Mr Lockhart may benefit from or whether he is disadvantaged by SOPs which have been revoked or amended during the assessment period. The Full Federal Court in Repatriation Commission v Gorton [2001] FCA 1194 is the leading decision on these issues. Whilst that appeal concerned the reasonableness of a hypothesis the application of SOPs and the principles enunciated by Gorton are no less applicable in cases which are to be determined on the balance of probabilities. In Gorton, Heerey J (with whom Emmett and Allsop JJ agreed) decided at paragraphs 43 and 44 as follows:
Consistently with Keeley can a later SoP nevertheless apply?
43 I have framed the question in this way because in my view the problem does not involve any question of election on the part of a claimant. Rather the system operates in the following way. Assume an SoP in force at the time of the claim is revoked by another SoP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SoP which "is in force": s 120A(3); see s 43 AAT Act. If the current SoP "upholds" the claimant's hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
44 If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
11. Accordingly if “Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, (it) is to be conducted as if the former Statement had not been revoked” (refer decision of Lee and Cooper JJ in Repatriation Commission v Keeley (2000) 98 FCR 108).
12. The issue of diagnosis of injuries or diseases suffered by the applicant also emerged in these proceedings. There has been some controversy upon this issue because on the one hand most SOPs purport to define, for the purposes of a SOPs, the disease or injury over which the SOP is entitled. Usually the definition of the disease or injury is allied to an ICD Code. A Full Federal Court comprising Moore, Emmett and Allsop JJ decided in Benjamin v Repatriation Commission (2001) FCA 1879 that “SoPs are not relevant to the question of diagnosis” (refer paragraph 41). Diagnosis is to be decided by “reasonable satisfaction” (upon the balance of probabilities) – refer Repatriation Commission v Cooke (1998) 52 ALD 1; Repatriation Commission v Gosewinckel (1999) 59 ALD 690 and Repatriation Commission v Budworth (2001) 66 ALD 285.
13. The remaining legal issue of significance is the alleged connection between hypertension and ischaemic heart disease. It was advanced on behalf of Mr Lockhart that by reason of a SOP concerning hypertension (No. 36 of 2003) he may benefit by factor 5(m) which is a factor that connects hypertension with service on the balance of probabilities if a veteran can demonstrate an “inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of hypertension”.. It was advanced on behalf of Mr Lockhart that his accepted condition of osteoarthrosis of his knees caused him to have an inability to undertake “more than a mildly strenuous level of physical activity” thereby giving rise to hypertension. (A similar factor is contained within Instrument No. 39 of 1999 which concerns ischaemic heart disease at factor 5(h). Curiously however the qualifying period of pre-existing “inability to undertake mildly strenuous level of physical activity” is seven years).
14. For the purposes of this part of the review the connection with service was said to be service giving rise to knee injuries which caused an inability to exercise giving rise to hypertension which in turn caused the development of ischaemic heart disease. That connection is more eloquently described by Goldberg J in Repatriation Commission v McKenna (1998) 52 ALD 72 as follows:
For the purposes of s 120A (3) of the Act the hypothesis which has to be upheld by a Statement of Principles is the hypothesis which connects the disease suffered by a veteran with the circumstances of his service. So stated, the hypothesis has to point to a connection which starts with the disease in respect of which the application is made and ends with the service. That connection will comprise a number of links or factors each of which must be upheld by a Statement of Principles and, if need be, by more than one Statement of Principles.
15. Although McKenna concerned the application of a reasonable hypothesis and consideration of s 120A(3) of the Act, no lesser consideration applies with respect to applications to be determined by reasonable satisfaction pursuant to s 120B(3) of the Act.
16. The application in McKenna sought acceptance of the conditions of ischaemic heart disease and atherosclerotic peripheral vascular disease. It was critical in that review for Mr McKenna to establish satisfaction of a factor under a SOP with respect to hypertension. Despite him having had the condition of hypertension accepted by the respondent in 1985 the court concluded (as did a Full Federal Court on appeal) – that a “sub-hypothesis” must also be satisfied. For the purposes of that analysis it required satisfaction of a SOP with respect to hypertension. It was of no relevance that the condition of hypertension had been previously been accepted by the respondent as service related. The court was satisfied that subsequent to the commencement of the regime of SOPs in 1994, “the sub-hypothesis linking Mr McKenna’s hypertension with stress and anxiety attributable to his service was crucial to the hypotheses raised by the material before the Tribunal. In our view neither of these hypotheses could be said to be upheld unless the sub-hypothesis was also upheld” (refer paragraph 24 of decision of Full Federal Court in McKennav Repatriation Commission (1999) 86 FCR 144).
17. There was no evidence in Mildura of the circumstances of the applicant suffering knee injuries. Nor was any attention given by the applicant’s representative during the hearing on either day or in the written submissions as to a SOP with respect to these injuries.
18. There are references in the T-documents to Mr Lockhart having suffered a right knee injury whilst playing football. Page 30 of the T-documents contains a medical record dated 18 September 1943.. It refers to presentation by Mr Lockhart with the condition “osteoarthritis knees” and the history recorded is “football injury right knee five years ago”.. The history obtained on presentation then was “C/O aching pains both knees – night worse – for 2/12 especially after a long march. Right knee becomes puffy after a march. O/e no swelling of knees, crepitus on flexion and extension”.. A similar history and basis for cause of injury namely football is found in a medical record at page 28 although that document is not dated. If the history of knee injuries having occurred five years before 1943 is accurate, that would indicate that the injuries occurred in 1938. Mr Lockhart enlisted on 7 November 1940. I am unable to say – and it is not necessary for the purposes of this review – to enquire into the basis of the respondent accepting the injuries as war-caused other than to perhaps speculate that Mr Lockhart had pre-existing injuries to his knees which were worsened or aggravated by service consistent with the history he provided on 18 September 1943.
19. In any event, there is no evidence of satisfaction by Mr Lockhart of any factor under any applicable SOP with respect to osteoarthrosis. The respondent submitted that the applicant’s employment subsequent to service as a stock and station agent may have given rise to either the presence of osteoarthrosis or the precipitation of immobility. In the absence of any evidence as to this issue at the hearing or in submissions from the applicant’s representative I cannot find, on the probabilities that the SOP for osteoarthritis is satisfied. Therefore the “sub-hypothesis” of inability to undertake mildly strenuous exercise being responsible for hypertension (and, in turn, ischaemic heart disease) cannot be satisfied.
STATEMENT OF PRINCIPLES
20. Within the assessment period there were two SOPs concerning atrial fibrillation. They are both numerated No. 10 of 1996 and No. 20 of 2003.
21. The first Instrument contains three factors only that must exist before it can be said on the balance of probabilities that atrial fibrillation is connected with service. One only of those factors was submitted as being relevant factor 5(a) which requires the - “suffering from cardiac disease at the time of the clinical onset of atrial fibrillation”. “Cardiac disease” is defined at paragraph 7 of that Instrument as:
.. . . any disease affecting the function and structure of the epicardium, myocardium or endocardium including myocardial infarction, cardiomyopathy from any cause, cardiac valvular lesions or acute trauma to the myocardium;
22. The latter Instrument (No. 20 of 2003) revoked the former Instrument and substituted 11 factors at paragraph 5 which are recited as follows:
5.The factors that must exist before it can be said that, on the balance of probabilities, atrial fibrillation or death from atrial fibrillation is connected with the circumstances of a person’s relevant service are:
(a)suffering from valvular heart disease at the time of the clinical onset of atrial fibrillation; or
(b)suffering from ischaemic heart disease at the time of the clinical onset of atrial fibrillation; or
(c)suffering from myocarditis at the time of the clinical onset of atrial fibrillation; or
(d)suffering from cardiomyopathy at the time of the clinical onset of atrial fibrillation; or
(e)suffering from congenital heart disease at the time of the clinical onset of atrial fibrillation; or
(f)suffering from congestive cardiac failure at the time of the clinical onset of atrial fibrillation; or
(g)suffering from hyperthyroidism at the time of the clinical onset of atrial fibrillation; or
(h)undergoing cardiac or thoracic surgery within the 30 days immediately before the clinical onset of atrial fibrillation; or
(i)suffering from chronic bronchitis with pulmonary obstruction at the time of the clinical onset of atrial fibrillation; or
(j)suffering from emphysema at the time of the clinical onset of atrial fibrillation; or
(k)inability to obtain appropriate clinical management for atrial fibrillation.
23. The conditions found at factors 5(g) and (i) are separately defined at paragraph 8 but for reasons which will emerge later consideration of those factors is not required.
24. Within the assessment period only one SOP was issued with respect to ischaemic heart disease and it is Instrument No. 39 of 1999. The only two relevant factors are factors 5(a) and (h) which are recorded as follows:
(a)the presence of hypertension before the clinical onset of ischaemic heart disease; or
. . .
(h)an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of ischaemic heart disease; or
25. “Hypertension” is defined at paragraph 8 as meaning:
“hypertension” means elevated baseline 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
(b) administration of antihypertensive therapy;
26. The ischaemic heart disease Instrument also contains factors with respect to obesity and smoking. The smoking of cigarettes and the alleged obesity were not contained as part of the applicant’s written submissions but questions concerning these matters were asked of the witnesses upon the resumed day in Melbourne. It is probably unnecessary to recite those factors (because ultimately I have decided that ischaemic heart disease is not service related) but for the sake of being complete factors 5(c) and (e) are recorded as follows:
(c)being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease; or
. . .
(e)where smoking has ceased prior to the clinical onset of ischaemic heart disease,
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of cessation; or
(ii)smoking at least five pack years of cigarettes or the equivalent thereof, in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 10 years of cessation; or
. . .
27. The condition of hypertension is the subject of three SOPs within the assessment period namely Instruments Nos. 26 of 1999, 32 of 2001 and 36 of 2003. In each of those Instruments factor 5(c) is identical and is relied upon by Mr Lockhart mainly:
(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; . . .
28. Instrument No. 36 of 2003 contains an additional factor upon which Mr Lockhart relied namely factor 5(m) being:
(m)an inability to undertake more than a mildly strenuous level of physical activity for at least the five years immediately before the clinical onset of hypertension; . . .
29. In each of the Instruments concerning hypertension the expression “salt supplements” is defined at paragraph 8 as meaning:
“salt supplements” means salt added to food when cooking or eating, or salt contained in salt tablets;
30. The definition of “hypertension” differs in Instruments No. 32 of 2001 and 36 of 2003 from the definition that appeared at Instrument No. 26 of 1999 to the extent that the initial reference to “administration of hypertensive therapy” as previously appeared was changed to “the regular administration of anti hypertensive therapy to reduce blood pressure”.
31. Nothing turns on this issue because the respondent in any event concedes the presence of hypertension but denies its connection with service (refer paragraph 17 of written submissions).
KENNETH SAMUEL LOCKHART
32. Mr Lockhart served principally in Western Australia as a member of the 101 Motor Regiment. He achieved the rank of sergeant. He said that because of his responsibility and leadership of 30 other persons under his control he smoked cigarettes at approximately 18‑20 per day but had smoked cigarettes between 6‑8 per day from the age of 16. He dismissed a smoking questionnaire completed by his VRB advocate which recorded him smoking 20 cigarettes per day in 1939, 30 cigarette per day in 1942 and 35 cigarettes per day in 1944 remaining at that level until 1970 (refer page 51 of T-documents). Mr Lockhart said that he did not complete that document and the handwriting was not his. He agreed that he did smoke cigarettes until 1970 that did not increase his level of consumption beyond 20 per day in service. He said he increased his consumption of cigarettes beyond his pre-enlistment level because he was upset and frustrated in not having been sent to Broome in Northern Western Australia because there he wanted to be “in the action”.
33. Mr Lockhart said that he did suffer from high blood pressure prior to service for which he had been treated by his local general practitioner. He agreed that he also had treatment for it whilst enlisted and he regarded it then as being “a worry”.
34. With respect to consumption of salt Mr Lockhart said that he consumed salt tablets on three occasions per week (which were issued to him) and then for a period of approximately 18 months in duration. He also said that he applied salt to his meals but described that application as being “just a sprinkle”.. He said the salt tablets had the appearance, size and shape and of an “aspro”. He said the tablets were consumed on a regular basis except for a short period of time when he was “blood pressure evident”.
35. With respect to knee injuries Mr Lockhart said that he did have pain and discomfort during service. He said his left knee was replaced in 1993. He had previously been employed by Goldsborough Mort as a stock and station agent and he agreed that he was required to walk, stand and kneel for considerable periods each working day. At the time of the knee replacement in 1993 Mr Lockhart said that he had been restricted in the degree of walking that he had been unable to undertake and he recalled that walking up to one kilometre would require him to rest.
MAURICE ROSENBAUM
36. Dr Rosenbaum is a cardiologist who provided a medico-legal opinion at the request of the applicant’s solicitors on 16 March 2003. Dr Rosenbaum also arranged for the applicant to undergo an echocardiogram in Wycheproof on 11 June 2003. The report of 16 June 2003 was made without having examined Mr Lockhart however Dr Rosenbaum did have available to him the s 37 documents, SOPs issued by the RMA, a report of Dr Lowery of 15 November 2001 and some other medical reports and records described (in the report) as “military medical records” and “various Veterans’ Affairs medical reports”.
37. In evidence Dr Rosenbaum said that he had not observed the treatment file of the applicant’s local medical officer (“LMO”) nor had he read the report of Dr Hammond of 12 November 2002 who examined the applicant at the request of the respondent. Similarly he had not observed the reports of the applicant’s treating cardiologist or treating cardiac surgeon.
38. In his report Dr Rosenbaum was asked to consider “whether the veteran has a diagnosable condition of ischaemic heart disease”. He answered that question in the following terms:
I would answer strongly in the affirmative based on the history of coronary artery disease, the presence of coronary artery grafts and the echocardiogram finding of impaired left ventricular function. The condition further appears to be associated with impaired left ventricular function and irregularity of the heart (atrial fibrillation).
39. Dr Rosenbaum further reported that he was unable to comment upon the relationship between ischaemic heart disease and obesity, smoking, inability to undertake mildly strenuous activity and hypertension. He concluded:
I regret that on the information as it is available and structured, I cannot be more specific. It is, however, likely that a claim for war service will be established on balance of probabilities.
If it can be arranged, I should be glad to interview the claimant.
40. In evidence Dr Rosenbaum was acquainted with a blood pressure reading of the applicant taken on 28 September 1943 of 140/80. He was also informed that in February 1982 the applicant’s blood pressure was found to be 220/110. Dr Rosenbaum agreed that his blood pressure had “increased” from the time of service and said that hypertension was a substantial predisposing factor to ischaemic heart disease. He also agreed that having smoked cigarettes at up to 20 per day until 1970 would be a predisposing factor to the development of ischaemic heart disease.
41. With respect to the echocardiogram completed at Wycheproof on 11 June 2003 Dr Rosenbaum said that it demonstrated the applicant suffering mildly impaired heart muscle function by reason of left ventricle impairment. He said it also demonstrated moderate dilation of the left atrium, evidence of prior replacement of the aortic valve and the presence of atrial fibrillation.
42. When asked to comment on the probabilities of whether the applicant suffered from ischaemic heart disease Dr Rosenbaum volunteered that his notes indicated that the veteran had previously undertaken coronary artery grafting. He said “that, of course, would make the probability 100%” (of the veteran suffering ischaemic heart disease). When he was informed by the applicant’s counsel that the applicant had not ever had coronary artery grafting Dr Rosenbaum said “in that case on balance of probabilities he has coronary heart disease” (transcript p14).
43. With respect to the inability of the applicant to undertake a moderate level of exercise Dr Rosenbaum said “individuals who do little exercise have a higher chance of suffering coronary heart disease”. He regarded that as being a “predisposing factor” to the development of ischaemic heart disease.
44. With respect to the condition of atrial fibrillation Dr Rosenbaum said that if in fact the applicant does suffer from ischaemic heart disease it would be a predisposing factor to atrial fibrillation.
45. In cross-examination Dr Rosenbaum was referred to his earlier comment (paragraph 38) of a history of coronary artery disease. When he was asked to identify that history Dr Rosenbaum replied “It must, be in the T documents or I made a mistake”. When he was asked to identify the history of coronary artery grafts and the basis for him reporting that ischaemic heart disease “dates back to 1980” he gave a similar answer.
46. With respect to the blood pressure readings taken during service of 140/82 and 130/80 at discharge Dr Rosenbaum agreed with the proposition put to him by Mr Douglass that there appeared to be a reduction in blood pressure over service and a person’s blood pressure was subject to “substantial physiological variability . . . and very substantial measurement variability”.. He agreed that those qualifications would apply to the blood pressure readings taken on enlistment and at discharge and in “modern clinical practice” the readings then taken would not be of great significance.
47. Dr Rosenbaum also agreed that the history of smoking cigarettes was not diagnostic of ischaemic heart disease nor was the history of hypertension (subsequent to service). He agreed that there was no evidence of Mr Lockhart ever having suffered a myocardial infarction nor from angina or of myocardial ischaemia. He thought the applicant did suffer from cardiac failure because of impaired heart muscle function but agreed that cardiac failure could be related to aortic stenosis.
48. When asked whether the most likely cause of cardiac failure was either aortic stenosis or ischaemic heart disease Dr Rosenbaum replied:
The case is not really absolutely clear to me on the pre-assessment information here, and the material. But at this stage there is a substantial likelihood that the claimant has ischaemic heart disease, and if I am asked on a reasonable hypothesis basis, I would answer strongly in the affirmative.
49. When asked to express an opinion on the balance of probabilities Dr Rosenbaum replied “On the balance of probabilities, I think I would require more information”.
50. Dr Rosenbaum was then acquainted with comments made by the applicant’s treating cardiothoracic surgeon who performed aortic valve replacement at Geelong in June 2000. The note recorded that Mr Lockhart presented with aortic stenosis with a sudden onset of acute pulmonary oedema. Dr Rosenbaum agreed that acute pulmonary oedema is a feature of cardiac failure. When he was also acquainted with an opinion expressed by the applicant’s surgeon that upon angiography the applicant demonstrated calcified but not stenosed arteries with severe aortic stenosis with left ventricular dysfunction, Dr Rosenbaum agreed that the findings were consistent with aortic stenosis and with ischaemic heart disease.
51. Dr Rosenbaum was then asked to comment upon the absence of a specific reference to ischaemic heart disease in the report of the surgeon or in the report of the doctor who completed the angiogram. Dr Rosenbaum said that the condition of ischaemic heart disease had been described by a reference in the report to the presence of calcification in the coronary arteries. He said “once the arteries are diseased to the point of calcification it is adequate to cause impaired heart muscle function”.
52. In re-examination Dr Rosenbaum was acquainted with a comment in the treating clinical notes referring to the applicant as having calcified coronary arteries but without obstruction. The notes referred also to a significant lesion in the PIVA which was described by Dr Rosenbaum as the “posterior inter ventricular artery”.. He interpreted these notes as meaning that the applicant does suffer from coronary artery disease with impaired heart muscle function by reason of artery obstruction. Additionally he said that calcification “may mean that certain smaller artery branches are obstructed and not even visible”. Additionally he said that “calcification, severe calcification of the coronary arteries is coronary artery disease”.. Dr Rosenbaum said that:
Reading between the lines, what the cardiologist is saying is that the arteries are completely – are completely diseased and amongst – among all this massive disease he can only find one really badly stenosed artery but obviously he is referring to a massive disease.
53. When he was acquainted with other diagnoses of unstable angina, clinical ischaemia and severe congestive cardiac failure Dr Rosenbaum said that those comments suggested to him that Mr Lockhart was suffering from:
The clinical effects of his coronary artery disease but it is a very reasonable defence for – on the part of the crown to say that this may be due to the aortic valve disease and I have to say that on balance of probabilities it is probably due to both conditions. On a reasonable hypothesis basis it is certainly due to the coronary artery disease.
54. Additionally Dr Rosenbaum thought that unstable angina was also due to a combination of coronary artery disease and aortic valve disease. When he was acquainted with a note of an admitting registrar to the Geelong Hospital of the applicant suffering “unstable angina, cardiac ischaemia” Dr Rosenbaum said that “it means that the admitting doctor thought he had coronary heart disease” but added “the Crown could reasonably claim that these sorts of symptoms can also come with aortic stenosis”.
55. In conclusion Dr Rosenbaum was also asked to comment upon some ECG reports found at pages 32, 47 and 91 of the T-documents. He said the first ECG of 2 December 1994 demonstrated an irregular heart with atrial fibrillation over which he said he was unable to distinguish between the effective aortic stenosis and ischaemic heart disease. Similarly he was unable to make the distinction between aortic stenosis and ischaemic heart disease with respect to the ECG found at page 47 (12 July 1996) and the ECG at page 91 taken on 31 March 2000.
56. In answer to some questions from me Dr Rosenbaum said that he had no doubt that the applicant did suffer from atrial fibrillation and said it was “almost certain”. He said he was unable to say when the clinical onset of ischaemic heart disease occurred but thought that it must have been present for many years because of the presence of calcification. He said the clinical manifestation of ischaemic heart disease would have been at about the time of the first onset of chest pain and it was likely that it may have proceeded that occurrence by a further “unknown period”.. He said the clinical onset of atrial fibrillation would have been about the time of the first irregularity in heart beat which may or may not have been noticed by Mr Lockhart.
JEREMY HAMMOND
57. Dr Hammond is a cardiologist who examined the applicant at the request of the respondent and provided a report of 12 November 2002.
58. Dr Hammond concluded that Mr Lockhart suffers from hypertension, aortic stenosis, atrial fibrillation and decreased left ventricular function. It was his opinion that Mr Lockhart does not suffer from ischaemic heart disease and whilst coronary angiography reported minor coronary artery disease, it was his opinion that coronary atherosclerosis was not present of a sufficient degree to cause myocardia ischaemia or ischaemic heart disease. It was his understanding that Mr Lockhart had been treated for hypertension from the early 1970’s but available records indicated elevated blood pressure from 1982. He thought pinpointing the first onset of atrial fibrillation was uncertain but the first documented reference that he could find was in the mid-1990’s.
59. Dr Hammond concluded in his report:
The major condition which currently affects Mr Lockhart’s cardiac status is that of his poor left ventricular function.
In turn, I believe that the major reasons for his poor left ventricular function has been hypertensive cardiovascular disease, with hypertension dating back a period of some thirty years.
His aortic stenosis was assessed as moderate rather than severe at operation. I believe, that his aortic condition was an additional factor, in the cause of his decreased left ventricular function.
The presence of atrial fibrillation is an additional contributing factor to his current cardiac status.
60. In evidence Dr Hammond said that Mr Lockhart had not ever undertaken coronary artery by-pass grafting. He said a report of Mr Ian Nixon the treating cardiac surgeon, described aortic valve replacement at surgery, not by-pass grafting.
61. With respect to the condition of ischaemic heart disease Dr Hammond said (transcript p26):
[T]he anatomy of the coronary arteries and for ischaemic heart disease to be present there would need to be a restriction of blood flow which would be indicated by coronary narrowing. He said “for this to occur narrowings in the coronary artery need to be of more than trivial significance and typically figures are quoted of 85 or 90 per cent narrowing usually in two of the coronary arteries before ischaemic heart disease can be manifested or may be manifested. If narrowing occurs in one artery alone even of high grade sort of 85 or 90 per cent stenosis or narrowing manifestations of ischaemic heart disease may not occur because of what we call collateral circulation; in other words the other arteries leading to the heart supply enough blood to make up the slack so to speak or to provide adequate blood flow even in the presence of a narrowing in one artery which may be angiographically or pictorially quite severe. So one needs to have a distinction in one’s mind between the finding of small areas of roughening or narrowing which have not caused any clinical or symptomatic presentation and more severe areas of narrowing causing narrowings of 85 per cent or greater usually in two of the coronary arteries before symptoms of ischaemic might be seen.
62. Dr Hammond was then asked to comment on a report of the applicant’s treating cardiologist Dr Lietl of 9 May 2000 who referred to calcified arteries without obstruction with the only significant lesion being in the PIVA. Dr Hammond said that the post interventricular artery is a small terminal branch supplying the posterior interventricular septum. He said that this material did not suggest the presence of ischaemia. He noted that the PIVA was a terminal branch of the right coronary artery and the area of the heart supplied by that artery is “extremely small”. He relied on his earlier opinion that ischaemia would need to be present in two coronary arteries and then in “typically major coronary arteries, before one gets manifestations of ischaemia because of collateral circulation to the remainder of the heart by other blood vessels coming from other branches” (transcript p27).
63. Dr Hammond noted that an echocardiogram undertaken at the Geelong Hospital demonstrated a “reduced ejection fraction” which he said was referable to a reduced left ventricular function with disease of the aortic valve which was severe and ultimately caused the need for surgery. He said that an echocardiogram could have shown the presence of ischaemic heart disease but it was likely that the poor left ventricular function was referable to disease of the aortic valve and did not indicate the presence of prior myocardial infarction or ischaemic heart disease. This he said was also supported by comments made by Mr Nixon who reported after surgery that he observed poor left ventricular function with subsequent angiography demonstrating calcified but not stenosed coronaries. These references in the opinion of Dr Hammond also indicated that there was an absence of “major narrowing or major stenosis in the coronary vessels” which was a strong indicator against the presence of ischaemic heart disease.
64. Dr Hammond said that an ECG taken in December 1994 could not distinguish between aortic stenosis and ischaemic heart disease and further confirmation or investigation would have been necessary to make a positive diagnosis. He said the presence of left ventricular hypertrophy was probably related to hypertension suffered by Mr Lockhart and the presence of aortic stenosis. He thought an ECG in July 1996 (p47) demonstrated identical findings to that of the ECG of December 1994 (p32) and he expressed a similar opinion to the manner in which that ECG should be interpreted. He said a cardiologist would not diagnose ischaemic heart disease on the basis of those two ECGs.
65. With respect to the condition of atrial fibrillation Dr Hammond thought that it was referable to pre-existing hypertension which he thought had been long-standing. He said that the hypertension was of sufficient significance to warrant a diagnosis of hypertensive heart disease. He thought that a combination of hypertensive heart disease and aortic stenosis were the contributing factors to the impaired left ventricular function. He thought that condition contributed 90 to 95% of his current situation and said that atrial fibrillation alone, was a minor additive factor to his disability caused by reduction of left ventricular function” and would only cause a modest reduction in capacity to exercise.
66. As to the connection of prior cigarette consumption and ischaemic heart disease, Dr Hammond said that every person who smoked cigarettes does not develop ischaemic heart disease and a history of prior smoking was not diagnostic of ischaemic heart disease. With respect to the blood pressure readings during service he said that caution should be exercised when interpreting those readings because they are referable to the condition of the applicant on each day that the readings were taken but more readings would be necessary to see a pattern over time. He said the readings taken during service would not be diagnostic of hypertension and the treatment methods and protocols available in the 1940’s would not suggest to him that treatment of hypertension was necessary.
67. As to the notes made by an admitting registrar at Geelong Hospital where it was recorded that on admission Mr Lockhart presented with unstable angina and cardiac ischaemia, Dr Hammond said that he would regard those comments as being “a working hypothesis” but would be subject to further investigation upon angiogram. He said that the registrar would have made an assumption based on the history then given to him and the presence of acute shortness of breath. He said that angiograms subsequently performed demonstrated that the cause of symptoms (then) were reduced left ventricular function and aortic stenosis.
68. With respect to opinions expressed by Dr Rosenbaum concerning calcified arteries and ischaemic heart disease Dr Hammond said that calcification was not uncommon particularly in elderly persons but for ischaemic heart disease to be present there must be a narrowing of coronary arteries of a significant degree in more than one artery. He said calcification of itself was not an indicator of ischaemic heart disease and on the information available to him there was no diagnostic manifestation of Mr Lockhart suffering from ischaemic heart disease.
69. In cross-examination Dr Hammond dismissed the suggestions put to him by Mr De Marchi that the presence of a PIVA lesion, together with unstable angina, calcified arteries and the possible presence of a myocardial infarction pointed to the applicant probably suffering from ischaemic heart disease.
70. Dr Hammond repeated his earlier evidence that a lesion at PIVA would not compromise circulation and would not be responsible for chest pain. He said that the findings on coronary angiogram subsequent to presentation at the Geelong Hospital would suggest that the applicant in fact did not present with unstable angina and interpreting the entire ECG reports did not permit a conclusion that a myocardial infarct had previously occurred. Additionally he said that calcified arteries do not of themselves evidence ischaemic heart disease. He said calcified arteries are stiffened or rigid and do not compromise blood flow (as would be expected by ischaemic heart disease). Dr Hammond said that a diagnosis of unstable angina (which he regarded as being unsound) calcified arteries, a PIVA lesion and interpretations of ECGs cannot be taken in isolation. He said an ECG (for example) alone would not permit the diagnosis of ischaemic heart disease. He said that “one has to look at the combination of the investigations including the coronary angiogram and other features and . . . . on my interpretation of the combination of investigations I was unable to convince myself that the veteran had ischaemic heart disease.” When this issue again emerged during the cross-examination Dr Hammond said that the provisional diagnosis made at the Geelong Hospital “became less and less likely” after further investigations were performed. He said “it is a matter of making sure one does not take things in isolation and out of context and perhaps over emphasising particular points which might be misleading to the Tribunal”.
71. An issue then emerged between the parties as to whether in the opinion of Dr Hammond the applicant suffered ischaemic heart disease as defined by SOP No. 39 of 1999. Objection was taken by Mr Douglass to the question because the findings of the Full Court in Benjamin. For the purposes of this analysis – and to end the discussion – I permitted the question being put to him. Dr Hammond read the definition as it appears in Instrument No. 39 of 1999 and said (transcript p43):
I am – having interviewed Mr Lockhart, examined him and studied all the documents here, and studied all these various issues, I was not able to reach the conclusion that Mr Lockhart suffered from ischaemic heart disease.
72. Dr Hammond said that the PIVA lesion and the calcification were incidental findings only. He described the expression “incidental finding” as a finding on investigation which was “not germane or of relevance in relation to his clinical presentation with the problems at that time of severe cardiac failure due to . . . intraventricular function”. Dr Hammond had no doubt that the applicant did suffer from left ventricular hypertrophy which indicated the presence of hypertension of long-standing.
73. At the conclusion of his evidence Dr Hammond was notified that subsequent to the provision of his report, the RMA published another SOP with respect to atrial fibrillation (No.. 20 of 2003). He was asked to look at paragraph 5 and advise whether any of the conditions listed against the factors apply in the present case. He said that the applicant did suffer from valvular disease by reason of the presence of aortic stenosis. He again denied the presence of ischaemic heart disease and said there was nothing which pointed to the applicant suffering from myocarditis, cardiomyopathy, congenital heart disease, congested cardiac failure, hyperthyroidism, thoracic surgery, chronic bronchitis or emphysema. In conclusion therefore he agreed that the applicant did suffer from valvular heart disease at the time of the clinical onset of atrial fibrillation but only by reason of aortic stenosis.
74. With respect to the left ventricular impairment, Dr Hammond said that would have an effect upon the function of the myocardium which would be consistent with the definition of “cardiac disease” (within the definition of “cardiac disease” as it appears in Instrument No. 10 of 1996).
CONCLUSION AND REASONS FOR DECISION
75. Despite the ambit of the claim made by Mr Lockhart at primary level and before the VRB, this review was concerned only with the conditions of ischaemic heart disease and atrial fibrillation. For reasons given earlier, the SOPs concerning ischaemic heart disease (No. 39 of 1999) will only be satisfied if factors relied upon by the applicant, exist on the balance of probabilities in order to connect with service. There is also the overriding factor of whether it can be found on the probabilities that the veteran in fact does suffer from ischaemic heart disease. In order to meet the “sub-hypothesis” of hypertension (in order to satisfy the SOP with respect to ischaemic heart disease) Mr Lockhart would also need to establish that he meets at least one of the factors in one of the SOPs that have been issued with respect to hypertension (No. 26 of 1999, No. 32 of 2001 and No. 36 of 2003).
76. There is no doubt in the present case that the applicant does suffer from hypertension. A common factor relied upon by the applicant with respect to establishing satisfaction of the hypertension SOPs was “ingesting at least 15 grams . . .. of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension”.. The only other applicable factor relied upon in this review was a factor which appeared in Instrument No. 36 of 2003 being “the inability to undertake a mildly strenuous level of physical activity”.. For reasons given earlier, that factor cannot be achieved. Accordingly the remaining factor under the hypertension SOP (common to all three SOPs) was the ingestion of salt supplements. The only evidence of salt consumption was being issued with salt tablets for a period of approximately 18 months during service. The number of tablets issued was not known but apparently they were issued and consumed on about three occasions each week. Additionally the applicant said that he “sprinkled” salt on to his meals.
77. An attempt to comprehend what is envisaged by “15 grams of salt” was alleviated (to some extent) by one of the part-time Members of this Tribunal obtaining salt samples from the Forensic Science Institute in Melbourne. By the samples provided, 15 grams of salt occupies a vial approximately three quarters of an inch in diameter and approximately one and a quarter inches in height. That is a significant quantity of salt. It is far greater than what can be envisaged by salt tablets on three occasions per week and by salt being “sprinkled” on to food. The factor as to consumption of salt in each of the three SOPs concerning hypertension requires ingestion of 15 grams of salt per day. I could not be satisfied on the balance of probabilities that the applicant consumed salt at this quantity and I cannot therefore be satisfied that factor 5(c) as it appears in each of three SOPs exists.
78. Accordingly whilst I am satisfied as a fact that Mr Lockhart does suffer from hypertension I cannot be satisfied that any of the factors within the SOP as to hypertension exist. Accordingly the “sub-hypothesis” is not established.
79. It therefore follows that factor 5(a) in the ischaemic heart disease SOP is not achieved because the applicant is unable to demonstrate “the presence of hypertension before the clinical onset of ischaemic heart disease”. The diagnosis of hypertension as it appears in factor 5(a) of the ischaemic heart disease SOP is clearly referable to that condition being found to exist within a SOP connecting it with service. For reasons given above I am not satisfied that the factors under the SOP concerning hypertension do in fact exist. Similarly I would also dismiss factor 5(h) as having been satisfied for reasons given above namely the applicant has been unable to demonstrate “an inability to undertake more than a mildly strenuous level of physical activity”.
80. If I am wrong in the above analysis I should say by way of completion that I am not satisfied, as a fact, that Mr Lockhart does suffer from ischaemic heart disease.
81. I was impressed by the evidence of Dr Hammond. I thought his approach to the opinions he expressed both in his reports and at the Tribunal were sound, well reasoned and consistent with contemporary medical opinion. I note that he examined the applicant, he perused all available medical data and withstood the rigour of cross-examination. Alternatively, I was disappointed in the quality of evidence of Dr Rosenbaum. He did not ever examine Mr Lockhart and his opinions were expressed on the basis of incomplete documented material. He made fundamental errors (for example he confused coronary artery grafting with aortic surgery for aortic stenosis) and said that calcified arteries of themselves amounted to the presence of ischaemic heart disease. I regarded Dr Rosenbaum as being ambivalent in the evidence he gave at the Tribunal when some material was put to him and having now reviewed his evidence – by reference to the transcript – I would not be satisfied that if all of the available medical data was now given to him that he would hold the opinions that he expressed at the Tribunal.
82. Accordingly I am satisfied and find as a fact that the presence of calcified arteries does not amount to the presence of ischaemic heart disease. Similarly I am not satisfied that the applicant has in fact suffered from unstable angina nor can it be said that a PIVA lesion amounts to the presence of ischaemic heart disease. Despite written submissions to the contrary, this finding is not inconsistent with the definition of ischaemic heart disease. A PIVA lesion, as was described by both doctors is not an acute or chronic cardiac disability arising from an imbalance between the supply and myocardial demand for oxygen resulting from coronary atheroma or coronary vasospasm (refer 2(b) in SOP Instrument No. 39 of 1999). I would not be satisfied that even on the most favourable interpretation of the three ECGs put into evidence by these proceedings that it could be said on the balance of probabilities that there is evidence of a pre-existing myocardial infarction. I am satisfied on the angiogram performed at the Geelong Hospital and the results of surgery as reported by Mr Nixon that the predominant complaint of the applicant is poor left ventricular function, referable to aortic stenosis which is no longer under review by these proceedings.
83. The remaining injury under review in these proceedings is that of atrial fibrillation. Two SOPs existed within the assessment period. The most recent being No. 20 of 2003 as put to Dr Hammond in evidence. It was his opinion that none of the conditions found at factors 5(a) to (j) exist save for valvular heart disease (factor 5(a)) which in his opinion was relevant to aortic stenosis only. That condition was withdrawn at the VRB and is not under review in these proceedings.
84. Because the SOP “in force” (refer Gorton) does not assist the applicant, consideration is then given to the repealed SOP, Instrument No. 10 of 1996. The only applicable factor is 5(a) namely:
(a)suffering from cardiac disease at the time of the clinical onset of atrial fibrillation; or
. .. .
“Cardiac disease” is defined at paragraph 7 as:
“cardiac disease” means any disease affecting the function and structure of the epicardium, myocardium or endocardium including myocardial infarction, cardiomyopathy from any cause, cardiac valvular lesions or acute trauma to the myocardium;
85. Dr Hammond agreed with questions of Mr De Marchi that the applicant suffered “Cardiac disease”, as defined because his impaired left ventricle, caused by aortic stenosis and hypertension (transcript p30) would affect the myocardium (transcript p46). This analysis was said to support the applicant’s case of meeting the repealed SOP.. I do not concur. The condition of aortic stenosis was not under review in these proceedings and was withdrawn at the VRB. Hypertension – as may be seen from earlier reasons – is not related to service. The necessary “links” between service and atrial fibrillation are absent. The SOP is not satisfied. The submission (written submissions, p5) that “The applicant also clearly meets the SoP for Atrial Fibrillation, Instrument No. 10 of 1996 Factor 5(a)” is unsupported by reference to any evidence or legal proposition. I think this is because there is no evidence in support and the submission must fail.
86. In conclusion, there were submissions made by Mr De Marchi of Mr Lockhart having a “predisposition” to the development of hypertension and the subsequent consumption of salt during service would have “exacerbated his predisposition to developing hypertension”.. It was further put that the inability to exercise together with the predisposition to hypertension and salt intake on service all contributed to the development of hypertension.
87. A “predisposition” to suffering from injury or disease is a concept foreign to review of veterans’ entitlements and is inconsistent with the regime of satisfaction of SOPs.
88. In all of the circumstances I am obliged, for the above reasons, to find on the balance of probabilities that the conditions of atrial fibrillation and ischaemic heart disease are not related to service. I note that the applicant withdrew the application for review of the condition of pulmonary oedema.
89. In all of the circumstances the decision of the VRB made on 17 May 2002 is affirmed.
I certify that the 89 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: Holly Weston
AssociateDates of Hearing 21 May and 27 August 2003
Date of Decision 23 January 2004
Solicitor for the Applicant Mr D De Marchi
Departmental Advocate Mr R Douglass
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