Lucas and Repatriation Commission - [2001] AATA 47

DECISION AND REASONS FOR DECISION [2001] AATA 47

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1998/330

VETERANS' APPEALS DIVISION          )
           Re      BEVERLEY LUCAS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Pamela Burton, Senior Member

Date29 January 2001
PlaceCanberra

Decision      The tribunal sets aside the decision under review and decides that osteoarthrosis is not war caused and hypertension and ischaemic heart disease are war-caused.
  ..................(Sgd)....................
  Pamela Burton
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – whether veteran's osteoarthrosis war-caused – hypertension – ischaemic heart disease – whether veteran's consumption of salt during service caused excessive consumption of salt after service leading to hypertension and ischaemic heart disease – osteoarthrosis not war-caused – hypertension and ischaemic heart disease war-caused
LEGISLATION
Veterans' Entitlements Act 1986
AUTHORITIES
Repatriation Commission v Keeley (2000) 98 FCR 108
Nolan and Repatriation Commission [1999] AATA 854

REASONS FOR DECISION

29 January 2001 Pamela Burton, Senior Member

This is an application by Mr Beverley Lucas (the "veteran") for review of a decision made by the Repatriation Commission (the "respondent") dated 10 November 1995.That decision rejected his claims for osteoarthrosis of the left hip, angina (ischaemic heart disease) and hypertension. On 26 August 1998 the Veteran's Review Board affirmed the decision under review.
The hearing commenced on 25 October 1999 in relation to the claimed condition of osteoarthrosis and was continued on 11 December 2000 when evidence was taken in relation to the claimed conditions of hypertension and ischaemic heart disease. Mr Paul Crabb represented the veteran and Mr Stephen Modder, taking over from Mr John Sylvestre who represented the respondent on the first day of the hearing, represented the respondent on the resumption of the hearing.
The tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents"), and medical reports and other material tendered by the parties. The tribunal heard evidence from the veteran and his wife, Mrs Heather Lucas, and telephone evidence of Dr Warwick Huntsdale, orthopaedic surgeon. The parties lodged written submissions at the conclusion of the hearing.
The veteran lodged a claim for treatment and disability pension under the Veterans' Entitlements Act 1986 ("the Act") which was received by the respondent on 28 July 1995 (T8).The claims for osteoarthrosis, hypertension and ischaemic heart disease were refused on the ground that these conditions were not war-caused.

The Issue

The question of whether a reasonable hypothesis is raised connecting the veteran's osteoarthrosis of the left hip with his service entails considering whether the veteran suffered a trauma to the joint before the clinical onset of osteoarthrosis, and the nature and extent of that trauma. Whether or not the veteran's ischaemic heart disease is considered war-caused requires the presence of hypertension before the clinical onset of the ischaemic heart disease. Whether or not a reasonable hypothesis is raised connecting the hypertension with the veteran's service requires consideration of whether or not for a period of at least six months immediately before the onset of hypertension the veteran ingested an additional 12 grams of salt per day to his pre-service consumption of salt.

The legislation

The relevant provisions of the Act are as follows:
s9 War-caused injuries or diseases
(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 the 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;

Service

The Act requires that for a claim to be accepted the disability must be related to operational and/or eligible defence service. The veteran was born on 23 July 1923. He enlisted in the Australian Army on 7 October 1941 (T3, p.10). The veteran served in New Guinea from 23 January 1942 to 3 September 1946 (T3, p10 and p.19). Because the veteran served during World War II and that service included service overseas, the whole of his eligible war service constitutes operational service under section 6A of the Act.
Standard of proof
For the purposes of the Act, the standard of proof in respect of a claim for disability or death arising out of the veteran's period of operational service is as set out in sections 120(1) and 120(3) of the Act. That is, the tribunal must be satisfied that the claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. Thus the applicant's claim must fail if the material before the tribunal does not raise a reasonable hypothesis to connect the conditions which caused the veteran's death with the circumstances of the veteran's service.
Statement of principles
The tribunal must have regard to any relevant Statements of Principles ("SoPs") issued by the Repatriation Medical Authority in relation to the war-caused conditions claimed by the applicant. The SoPs state what factors must exist as a minimum before it can be said that a reasonable hypothesis has been raised connecting the conditions with circumstances of the service. The tribunal can not accept a condition as being related to service unless the evidence meets one of the factors set out in the SoP for that condition (section 120A of the Act).
A number of SoPs have been issued relating to the conditions of osteoarthrosis, hypertension and ischaemic heart disease since the veteran lodged his claim. In the matter of Repatriation Commission v Keeley (2000) 98 FCR 108, at paragraph 46, Justices Lee and Cooper held that unless a contrary intention has been "clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued." This means that a veteran whose claim has been determined by the respondent has an accrued right to have that claim assessed in any review in accordance with the SoP in force at the date of the primary determination of the claim. The date of the primary determination of the veteran's claim in this matter was 10 November 1995. Therefore, the relevant SoPs are Instrument No 71 of 1995 (20 February 1995), as amended by Instrument No 352 of 1995 (3 October 1995) for osteoarthrosis, Instrument No 85 of 1995 (8 March 1995) for ischaemic heart disease, and Instrument No 83 of 1995 (8 March 1995) for hypertension.
The tribunal must first consider whether a reasonable hypothesis is raised, first to connect the veteran's osteoarthrosis with the trauma he relies upon as having occurred during the course of his service, and secondly, to connect the veteran's ingestion of salt during his service with his hypertension and ischaemic heart disease.
Osteoarthrosis
Instrument No 71 of 1995 as amended by and set out in Instrument No 352 of 1995 relevantly reads:
Factor 2(b) for localised osteoarthrosis only,
…
(v)suffering a trauma to the relevant joint which has resulted in permanent ligamentous instability before the clinical onset of osteoarthrosis; or
(vi)suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis;
…

"Trauma to the relevant joint" is defined to mean:

[a] joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.

Hypertension

Hypertension is defined by clause 4 of Instrument No 83 of 1995 to mean:
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
where treatment for hypertension is being administered,
attracting an ICD code in the range 401 to 405.

Subject to clause 3 of the SoP (which does not apply in this matter) at least one of the factors in paragraphs 1(a) to 1(x) must be related to any service rendered by the veteran. The veteran relies on factor 1(c), which requires the veteran to have ingested an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension.
Ischaemic Heart Disease

In respect of the veteran's ischaemic heart disease the veteran relies upon factor 1(a) of Instrument No 85 of 1995 which requires that he suffered from the presence of hypertension before the clinical onset of ischaemic heart disease.
Contentions
The veteran contends that he experienced a trauma in February 1944 in New Guinea in an incident when the jeep in which he was travelling overturned. He also contends that during his service he was required and encouraged to take salt tablets.
The respondent contends that there were no acute symptoms lasting seven days following the incident and that as no medical intervention was required as the veteran returned to normal duties within a week to 10 days he did not suffer a trauma to the left hip joint as required by the relevant SoP. In relation to the conditions of hypertension and ischaemic heart disease, the respondent contends that the veteran's ingestion of salt prior to his service was excessive, and that after his service he continued with a high level of salt intake to accord with his taste, and unrelated to the fact that he took salt tablets during his service.
The evidence in relation to trauma to the left hip
The veteran recalls an incident which occurred in late February 1944 when he was driving a jeep pulling a trailer. The trailer jack-knifed and the jeep turned on to its side. The veteran was thrown out and landed on his left side in the muddy wet ground and lost consciousness for a short period. He was shaken and in shock but he recovered quickly. He suffered a sore left shoulder, hip and leg, abrasions and bruising. Others righted the vehicle while he watched. He drove the vehicle back to the base and reported the incident. He took the rest of the day off. He was still sore the next day and saw the RAP. The veteran undertook light duties for the rest of the week. He described his shoulder and left hip area as being "a bit bruised". He was "a bit scratched, like gravel rash", down his left side, and on his elbow and a little on his arm. His hip felt sore but he did not worry about it much. The RAP gave him medicine "for my nerves" and treated the abrasions with purple dye. The veteran said that he visited the RAP nearly every day for 10 days or longer for re-dressing for the abrasions. He said he was given Aspro, or something that looked like it each day for a week or so.
The veteran said that his hip was sore, a nagging sort of pain for a couple of days which at times he felt more than others and it gradually wore off. He described it as irritating at times. He said that it was not really severe, but was a gnawing sort of pain "that sort of come and then you walk a bit and it – depends on how I sort of stepped, I suppose, it would get – feel it in the hip". Most of the bruising went away within the week. His recall was that his hip pain had completely resolved by "a fortnight, probably longer". He said that after about three days he thought he was pretty fit, but he stayed on light duties for the rest of the week. He did not recall having any ongoing symptoms when he resumed normal duties. He said that he had "a little bit sort of soreness there, a bit sort of stiff when I get up in the morning but as I walked around it seemed to wear off".
The veteran said that he may have suffered other injuries to his hip after his service as he played football. However, he could recall none that were significant. He first noted left hip pain in 1982 or earlier, and he has been treated for osteoarthrosis since then. He has had a total of four operations, and he has a plate to hold his hip in place.
Medical Evidence in relation to osteoarthrosis
Mr Warwick Huntsdale, orthopaedic surgeon, in his telephone evidence said that he had known the veteran since about 1978, and had performed hip replacement and revisions operations on him between 1982 and 1985. He considered that 54 was a young age for osteoarthrosis to affect someone and therefore concluded that in the veteran's case is was likely to have related to trauma, such as that described by the veteran as having taken place in 1944. However, he commented that obesity is another factor in the development of degenerative joint disease.
Mr Huntsdale, in the course of his telephone evidence, offered the opinion that if the veteran had had no treatment after suffering the trauma to his hip, the acute symptoms and pain might have lasted more than 10 days. He agreed with the suggestion put by the veteran's counsel that the medication given to the veteran to settle his nerve might have had some effect on his pain level, but he assumed that the veteran would have been given pain killers as part of his treatment. Mr Huntsdale thought that painkillers might mask the extent of the pain, but he agreed that the injury was a minor injury and could not be described as acute if it settled within 3 to 4 days. Mr Huntsdale stated that he understood that "acute" symptoms would include the veteran limping and having some reduction in movement of the hip joint due to the combination of pain and swelling.
There is, however, no evidence of the veteran having been given any painkillers other than the Aspro each day to which the veteran referred. As to his level of function and mobility, the veteran's evidence is that the hip soreness did not greatly affect what he could do. He felt able to do his normal duties within three days of the incident, and in fact returned to normal duties within a week.
Conclusions in relation to osteoarthrosis
For a reasonable hypothesis to be raised connecting the veteran's osteoarthrosis with his service, his circumstances must fit within the SoP template. Clause 2(b)(vi) requires that the veteran suffered a trauma to the relevant joint (left hip) prior to the clinical onset of osteoarthrosis. The veteran suffered an injury to his left hip. The definition of trauma to the joint in the SoP requires acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint for at least a period of one week unless medical intervention has occurred. He suffered some non-specific pain and soreness. He did not suffer from acute symptoms, and the mild symptoms of hip pain all but resolved within a few days. There is no evidence of swelling or altered mobility or range of movement, other than some mild stiffness in the morning which soon went away.
I am satisfied that the veteran had no medical intervention that alleviated, masked or significantly reduced those symptoms to allow a hypothesis to be raised consistent with the SoP template. The veteran attended the RAP for a period of about ten days for the dressing of his abrasions. At most the medical treatment for his hip and pain generally was Aspro daily. I am not satisfied that short-term medication in the nature of Aspro amounts to medical intervention so as to satisfy the SoP.
I am unable, therefore, to conclude that the veteran's condition of osteoarthrosis is war-caused.
The evidence in relation to hypertension and ischaemic heart disease
There is no issue as to the diagnosis that the veteran suffers from hypertension and ischaemic heart disease. The evidence is that the veteran's hypertension was first diagnosed in 1985 (clinical notes of Dr Sharrock, Exhibit D). However, to meet the SoP requirement, the accurate determination of hypertension occurs when the veteran had a usual blood pressure reading of 140/90. There is no evidence that this was the case in 1985. It did occur in 1992. Nothing turns on the precise time when the clinical onset of the veteran's hypertension occurred, as to meet the SoP the onset of hypertension must be immediately after a continuous period of six months in which the veteran ingested an additional amount of 12 grams a day of salt. The veteran's evidence is that his excessive intake of salt continued up to 1992.
The veteran's evidence contained in his statement of 14 April 2000 (Exhibit E) is that he consumed six to 12 salt tables a day during his service in New Guinea. In his oral evidence he stated he consumed between 12 to 20 a day. He did not take the tablets with water. The veteran was advised and encouraged to take the salt tablets by his superiors who presumably thought it was necessary to replace salt lost through expiration. The tablets were made available. It is not clear what the veteran's pre-service intake of salt was, and there is evidence that he and some other members of his family used salt on their food liberally. However, having heard the veteran's evidence about his consumption of the salt tablets during the time he was in New Guinea, the manner in which he would pocket them and eat them like sweets, I have no doubt that he ingested at least more than 12 additional grams per day.
By the time he left the service he had developed a taste for salt, and without knowing the harm it might have on his health, he made no effort to break the habit. I accept the veteran's and his wife's evidence that his salt intake after his service remained high, and that it is highly probable that he consumed at least an additional 12 grams a day over his pre-service level of ingestion. He said that he might add a tablespoon of salt to his food during the day. On occasions the quantity of salt sprinkled on his food "looked like snow". Mrs Lucas verified this evidence.
Both the veteran and Mrs Lucas gave evidence that the veteran's excessive consumption of salt continued until he was diagnosed with hypertension in 1992. The tribunal is therefore satisfied that he continued to ingest more than 12 additional grams per day over his pre-service habit for the period of six months prior to the onset of hypertension. He had a continuous period of six months prior to the onset of the hypertension.
The respondent provided reports by Alison Wailes (Exhibit 1), nutritionist and dietician, and Dr Kenneth Byrne (Exhibit 2), psychologist. These reports were provided as evidence to the effect that salt consumption is not addictive. Both of these reports state that salt tablets ingested with liquid or water are unlikely to create "cravings", "feelings of pleasure" or lead to addictive consumption patterns (Exhibit 1, pp.5-6 and Exhibit 2, p.7). However, the veteran gave evidence that his manner of ingesting the tablets was to chew them before swallowing them. During cross-examination, the veteran said he could not recall being told by officers to take the tablets with water. He said the tablets were "just shoved on the table" and the soldiers were "told to take them". Dr Byrne's report supports the proposition that consuming salt with food is likely to lead to pleasurable associations with salt (Exhibit 2, p.8):
On the other hand, salt added to food makes the food taste better. As a simple example, it is difficult for companies to sell snack foods such as peanuts or potato chips that do not have salt. Salt consumed in this way then does link the use of the product with a pleasurable sensation, enhancing the likelihood that it will be used again.

The tribunal finds that the manner of the veteran's consumption of salt tablets during his service enhanced the veteran's liking for salt in a way that led to excessive consumption of salt with his food.

The respondent cited the case of Nolan and Repatriation Commission [1999] AATA 854. That case contained different facts in relation to the consumption of salt tablets during service. There was nothing to indicate that the veteran in Nolan chewed his salt tablets without water when ingesting them during service.
Conclusions in relation to hypertension and ischaemic heart disease
The material points to a hypothesis linking these diseases to his service. There are SoPs in force which must be taken into account. The hypothesis meets the SoP templates. The veteran ingested sufficient quantities of salt during his service and after discharge up to the onset of his hypertension. The hypertension preceded the onset of ischaemic heart disease. The fact the veteran's blood pressure was normal on discharge and that hypertension was not accurately diagnosed until many years of further ingestion of large quantities of salt as a civilian does not invalidate the hypothesis. Even accepting that salt is not an addictive substance, given that the veteran's excessive intake of salt was established during his service and he had developed a taste for it and a habit of using it, and in the absence of any advice that for the sake of his health a reduction of intake in salt was necessary, his service has materially contributed to his ongoing excessive salt intake. There being a reasonable hypothesis that meets the SoP templates, the facts are supportive of the connection. The tribunal is not satisfied beyond reasonable doubt that the condition in this matter was not war-caused. The tribunal finds that the veteran's conditions of hypertension and angina (ischaemic heart disease) are war-caused.
Decision
The tribunal sets aside the decision under review and decides that osteoarthrosis is not war caused and hypertension and ischaemic heart disease are war-caused.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Pamela Burton, Senior Member
Signed:         James Enderbury           .....................................................................................
  Associate
Date/s of Hearing  25 October 1999 and 11 December 2000
Date of Decision  29 January 2001
Counsel for the Applicant        Mr Paul Crabb
Solicitor for the Applicant         Snedden Hall & Gallop
Counsel for the Respondent    Mr Stephen Modder
Solicitor for the Respondent    Department of Veterans' Affairs, Advocacy