Lovel and Repatriation Commission

[2003] AATA 776

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 776

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/1154

VETERANS'     APPEALS       DIVISION

Re:         ROBERT PORTER LOVEL

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:             11 August 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes the decision that:

(a)the applicant’s aortic stenosis is war‑caused in accordance with s.9 of the Veterans' Entitlements Act 1986; and

(b)the applicant’s rate of pension remains at 100 per cent of the general rate.

(sgd) E.A. Shanahan

Member

VETERANS' AFFAIRS – hypertension – excessive salt ingestion – aortic stenosis - complex hypothesis

Veterans' Entitlements Act 1986 ss.9, 120(1), (3), 120A

Statement of Principles

Instrument Nº 54 of 2002 concerning aortic stenosis

Instrument Nº 31 of 2001 concerning hypertension

Bushell v Repatriation Commission (1992) 175 CLR 408

East v Repatriation Commission (1987) 16 FCR 517

McKenna v Repatriation Commission (1999) 86 FCR 144

Deledio v Repatriation Commission (1997) 47 ALD 261

REASONS FOR DECISION

11 August 2003  Miss E.A. Shanahan, Member

1.      This is an application for review of a decision of the Veterans’ Review Board (VRB) dated 1 August 2001, which affirmed the decision under review that the applicant’s diabetes mellitus and aortic stenosis were not war‑caused.  The applicant had submitted to the VRB that his aortic stenosis was caused by subacute bacterial endocarditis (factor 5(f) of Statement of Principles (SoP) Nº 54 of 2002 concerning aortic stenosis).  Two days prior to the hearing before this Tribunal, the applicant filed an amended statement of case wherein a new hypothesis was raised.  The applicant relied upon factor 5(e) of SoP Nº 54 of 2002 concerning aortic stenosis, …the presence of hypertension at the time of the clinical onset of aortic stenosis.  The decision regarding diabetes mellitus was not pursued.  The respondent strongly objected to the short notice given regarding the change in the hypothesis relied upon, but did not seek an adjournment.

2. The applicant was represented by Mr G. Moore, of counsel, instructed by De Marchi & Associates and the respondent by Mr G. Purcell, of counsel, instructed by Ms T. Chant, an advocate with the Department of Veterans' Affairs. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents).  The parties tendered the following documents:

·   Mr Lovel's statement on salt intake dated 30 April 2003               Exhibit A1

·   Report by WriteWay Research Services dated 1 October 2002   Exhibit A2

·   The applicant’s medical records of Dr I. McPherson  Exhibit R1

·   Report of Dr J. Hammond dated 13 November 2002  Exhibit R2

·   Bundle of document from the Repatriation Commission

dated 24 October 2002  Exhibit R3

·   A salt sachet from McDonalds   Exhibit R4

·   12 grams of salt contained in a McDonalds cup  Exhibit R5

3.      The applicant is in receipt of a pension at 100 per cent of the general rate and has the accepted disabilities of dermatitis, recurrent diarrhoea, chronic blepharitis, haemorrhoids, anxiety state and essential hypertension, dating from 1992. 

BACKGROUND TO THE APPLICATION

4. The applicant served in the Royal Australian Air Force (RAAF) from 4 April 1942 to 1 February 1946. As he served outside of Australia for part of this period, his whole service constitutes operational service. In 1965, he developed hypertension. There were a few slightly elevated isolated readings prior to this date. In 1992, the hypertension was accepted as being war‑caused. This decision by the respondent preceded the introduction of s.120A of the Veterans' Entitlements Act 1986 (the Act) in 1994 with the need to satisfy the template of the SoP as determined by the Repatriation Medical Authority. 

5.      In the mid‑1990s, the applicant developed signs of aortic stenosis and was monitored with serial echocardiograms.  In January 1998, the gradient across the aortic valve was estimated at 53 millimetres of mercury and aortic valve replacement was advised.  The applicant elected to continue with conservative treatment (T13).  In March 2002, aortic valve replacement was performed (Exhibit R1) when the gradient had reached a level of 60 millimetres of mercury and the applicant had developed shortness of breath on exertion. 

6.      On 6 December 1999, the applicant lodged a claim for diabetes and heart condition to be accepted as war‑caused (T5).  On 21 January 2000, a delegate of the respondent rejected this claim (T16).  On 17 February 2000, the delegate also rejected the applicant’s claim for an increase in disability pension (T19).  The applicant appealed to the VRB on 1 February 2000 for review of the decision regarding diabetes mellitus and aortic stenosis (T17) and again on 8 March 2000 (T20) regarding the delegate's rejection of the applicant’s claim for an increase in disability pension.  On 1 August 2001, the VRB affirmed the decisions under review.

EVIDENCE BEFORE THE TRIBUNAL

7.      The applicant and his wife gave evidence on the day of the hearing.  The applicant confirmed he was 18 years of age when he enlisted.  Prior to service, he lived at home with his parents and subsequently boarded with a family in Melbourne.  To his recollection, the only added salt he used was on eggs and tomatoes..  He had no knowledge of the salt used in the cooking of his food.  During service, his diet had changed when posted to the South Pacific Islands.  Service food had consisted primarily of bully beef, hash and beans.  The applicant told the Tribunal all of these foodstuffs tasted salty.  In addition, he had been issued with salt tablets and took one per day as advised.  In the tropics he had added salt to all cooked food and did so heavily (trans, p.23).  The applicant stated he also ate salted peanuts both during and after the war and developed what he termed, I got the craving for it [salt] (trans, p.23).  When asked to compare pre‑service with service salt ingestion, he stated there had been an increase. 

8.      After the war, the applicant’s increased use of salt on all meals continued.  He also had a preference for meats such as bacon and corned beef.  This pattern had continued until he was advised to reduce his salt intake to near zero after the development of hypertension. 

9.      Mr Purcell concentrated his questioning on the post‑service salt ingestion when the applicant was working as a train driver.  The applicant agreed that most midday meals would be sandwiches or food from the canteen.  He stated he added salt to both of these types of meals.  From about 1972, the applicant informed the Tribunal that he had been restricted from driving passenger trains because of his hypertension.  From 1972 until his retirement, he worked as a shunting engine driver and did not undertake long journeys and was, thus, able to have most of his meals at home. 

10.     The applicant's wife first met her husband in the late 1940s and they married in 1950.  She noted his excessive use of salt from the time she first met him.  Following their marriage, his use of salt continued until a dietitian advised a low salt diet in 1990.  The applicant’s wife confirmed that she added salt (one full teaspoon per pot) to all items she cooked.  While she did not add further salt to her food, her husband did.  Following the dietitian's advice in 1990, the applicant had switched to eating non‑salted peanuts.  In answer to a question posed by Mr Purcell, the applicant’s wife confirmed that in 1990 she ceased adding salt to her cooking and also removed the salt cellar from the table.  She was shown the McDonalds salt sachet (Exhibit R4) and estimated that her teaspoon of salt would have been more than that contained in the sachet.  In answer to a question posed by the Tribunal, the applicant’s wife was not able to recall how often she bought salt or what quantity of salt was contained in her salt cellars. 

DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

11.     The majority of the medical reports before the Tribunal related to accepted disabilities.  Dr M. Rosenbaum, cardiologist, and Dr J. Hammond, specialist in hypertension, prepared reports dated 18 December 2001 and 13 November 2002 respectively (Exhibit R2) relating to the applicant’s aortic stenosis.  Both reports were concerned with the question of whether or not the applicant's aortic stenosis was rheumatic in origin or due to subacute bacterial endocarditis, rather than any relationship to pre‑existing hypertension.  Any reference to factor 5(c) of the SoP had not been canvassed. 

12.     The Tribunal notes that both medical experts were of the opinion that it was most likely the applicant’s aortic stenosis was degenerative in nature.  The latter has

been confirmed by Dr J. Johns, cardiologist, who advised that the resected aortic valve was a heavily calcified trileaflet valve with no definite evidence of rheumatic valve disease (T22, p.72). 

13.     The WriteWay Research Service (WriteWay) advised that the daily salt entitlement for all Australian Army and RAAF units was 14 grams per day with an additional 1 to 1½ grams for those in the tropics (Exhibit A2).  WriteWay estimated that the applicant’s intake would have been 14½ to 15½ grams per day.  This salt entitlement had remained at this figure until 1987 when the daily salt allowance for members of the Armed Forces was reduced to 8 grams per day. 

THE RELEVANT LEGISLATION

14. Section 9(1) of the Act provides:

9(1)        Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;

(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;

(e)the injury suffered, or disease contracted, by the veteran:

(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise. …

15.     Section 120, as far as relevant, provides:

120(1)     Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

…

(3)          In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

16. Section 120A requires the Tribunal to apply any relevant SoPs. The relevant subsections of the Act state as follows:

120A(1)   This section applies to any of the following claims made on or after 1 June 1994:

(a)a claim under Part II that relates to the operational service rendered by a veteran;

(b)a claim under Part IV that relates to:

(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii)the hazardous service rendered by a member of the Forces.

Note 1:     Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2:     For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

(2)          If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

(b)has declared that it does not propose to make such a Statement of Principles.

(3)          For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B (2) or (11); or

(b)a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note:       See subsection (4) about the application of this subsection.

(4)          Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a)       the kind of injury suffered by the person; or

(b)       the kind of disease contracted by the person; or

(c)       the kind of death met by the person;

as the case may be.

17.     The applicant relied on SoP Nº 54 of 2002 concerning aortic stenosis.  The relevant factor in this SoP is factor 5(e).  The applicant also relied on SoP Nº 31 of 2001 concerning hypertension and, in particular, factor 5(c).

SUBMISSIONS

18.     The applicant submitted that the 14½ to 15½ grams of salt ingestion during operational service resulted in a habit of excessive salt intake.  This pattern of salt use continued post‑service until 1990 when a dietitian had advised a low salt diet.  The applicant’s hypertension was diagnosed in 1965. 

19.     Mr Moore submitted that, despite the applicant and his wife's inability to recall all details of his salt intake, a reasonable hypothesis was raised and that, given the passage of time, attempts to quantify exact salt intake was impossible. 

20.     Mr Purcell tendered Exhibits R4 and R5, containing known amounts of salt.  The Tribunal declined to test run these exhibits in a salt cellar or the like.  Mr Purcell had attempted to quantify the applicant’s post‑service salt intake based on the evidence before the Tribunal.  He concluded that this was not more than 7 grams per day and thus factor 5(c) of the SoP requiring 12 grams or more of salt per day was not met.  It was pointed out that there was no evidence before the Tribunal regarding the average Australian salt intake prior to World War 2.

21.     The respondent submitted that, if the applicant had acquired a habit of excessive salt intake during service, his ability to cease salt intake, when advised to do so in 1990, would negate any craving for salt (trans p.60). 

22.     In reply, Mr Moore referred to the steps the Tribunal must take in reaching its decision, as outlined in Deledio v Repatriation Commission (1997) 47 ALD 261, and submitted that the applicant's proposed hypothesis and the evidence met all requirements. Based on the applicant and his wife's evidence, the Tribunal could not be satisfied beyond reasonable doubt that the applicant’s hypertension was not war‑caused.

APPLICATION OF THE LEGISLATION TO THE FACTS BEFORE THE TRIBUNAL

23.     On 3 May 2003, the applicant submitted a new hypothesis relating his claimed aortic stenosis to the previously accepted disability of hypertension.  This was based on factor 5(c) of SoP Nº 31 of 2001 concerning hypertension.  The evidence before the Tribunal was derived solely on the applicant and his wife's evidence, as prior expert medical opinion did not address the applicant’s salt intake pre‑service, during service or post‑service.  The evidence of the applicant and his wife supports the hypothesis. 

24. The applicant’s accepted disability of hypertension preceded the legislative requirements of s.120A of the Act, the establishment of the Repatriation Medical Authority and the issuance of SoPs. As the recent hypothesis is complex, the Tribunal is required to reconsider the accepted disability of hypertension. However, the transitional provisions relating to s.120A and the authority of McKenna v Repatriation Commission (1999) 86 FCR 144 protect the applicant’s current rate of pension.

25.     The submitted hypothesis is supported by the applicant’s evidence and that of his wife and is not contrary to proved or known scientific fact.  In the absence of any evidence to the contrary, the hypothesis meets the template requirements in factor 5(c) of SoP Nº 31 of 2001.  As a corollary to this finding, SoP Nº 54 of 2002 concerning aortic stenosis, factor 5(e) is met.

26.     The Tribunal cannot be satisfied beyond reasonable doubt that the raised hypothesis is disproved.

DECISION

27.     The Tribunal sets aside the decision under review and substitutes the decision that:

(a)the applicant’s aortic stenosis is war‑caused in accordance with s.9 of the Veterans' Entitlements Act 1986; and

(b)the applicant’s rate of pension remains at 100 per cent of the general rate.

I certify that the twenty‑seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd)     Catherine Thomas
            Clerk

Date of Hearing:  6 May 2003

Date of Decision:  11 August 2003
Solicitor for the applicant:            Mr D. De Marchi, De Marchi & Associates

Counsel for the respondent:        Mr G. Purcell
Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs