McCall and Repatriation Commission
[2006] AATA 1006
•24 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 1006
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/97
VETERANS' APPEALS DIVISION ) Re CHARLOTTE McCALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms MJ Carstairs, Senior Member Date24 November 2006
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the death of the veteran was war-caused in accordance with section 8 of the Veterans’ Entitlements Act 1986 and the applicant is therefore entitled to receive pension under section 13 of the Act with effect from 3 August 2002.
...............[Sgd]..............................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – war widow’s pension – veteran had WWII army service – no accepted medical conditions – peripheral vascular disease – diabetes mellitus – hypertension – Statements of Principles - salt consumption during service – salt supplements and tablets commonly given in hot climates during service – decision set aside.
Veterans’ Entitlements Act 1986
Repatriation Commission v Deledio (1997) 47 ALD 261
Re Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Towns [2003] FCA 1262
Repatriation Commission v McKenna (1998) 52 ALD 72; (1998) 28 AAR 7Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
24 November 2006 Ms MJ Carstairs, Senior Member 1. William McCall, a World War II veteran, died in 2000 at the age of eighty, after he underwent a lower limb amputation. He had suffered for some time from diabetes mellitus. His wife, Charlotte McCall, seeks a pension as his widow.
2. At the time of his death, the veteran had no medical conditions accepted by the respondent as being due to his war service. This is not a bar to Mrs McCall’s claim as his widow, if, in fact, the medical condition(s) from which the veteran died were related to his war service.
THE ISSUES
3. The question of whether Mrs McCall is entitled as his widow is governed by the provisions in s120 of the Veterans’ Entitlements Act 1986, which provides for a the standard of proof in matters of war causation where a veteran has operational service, and also by s120A which deems that standard to have been met when a hypothesis positing a possible connection with war service conforms with a factor(s) set out in a relevant Statement of Principles determined by the Repatriation Medical Authority.
4. This legislative framework was interpreted by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 as requiring decision makers to follow 4 steps in the reasoning process to determine whether a condition is war caused. In Re Repatriation Commission v Hancock [2003] FCA 711, Selway J said that in cases where a veteran has died there are two other steps before applying the Deledio methodology. Those steps are:
§ determining that the pre-conditions for a claim other than causation are made out - including that the deceased was a veteran; the applicant his widow; and that the veteran had died.
§ determining the kind of death suffered by the veteran (as referred to in s120A(4) of the Act), this needing to be established to the standard of reasonable satisfaction. (Identifying the kind of death enables the decision-maker to specify whether a Statement of Principles applies to that kind of death).
5. There is no question here that the pre-conditions are made out, in that the deceased was a veteran and Mrs McCall his widow. Given the contentions by the parties and the remaining steps set out in Deledio and Hancock, the matters in issue in this case are:
· how to characterise the veteran’s kind of death.
· does the material raise an hypothesis or hypotheses connecting that kind of death with the circumstances of the veteran’s service;
· is there a Statement (or Statements) of Principles in force, relevant to that kind of death?
· is the raised hypothesis reasonable? To be so it must contain one or more of the factors set out in relevant Statements of Principle; and
· was death war caused? This is the last of the Deledio steps – to be considered once a reasonable hypothesis is raised. Once a reasonable hypothesis is raised, the decision-maker must be satisfied beyond reasonable doubt that an injury is not war-caused. If the decision maker is not so satisfied, the claim will succeed.
6. For completeness, Mrs McCall has relied on a number of possible hypotheses during the course of review. She no longer relies upon the veteran’s smoking or his consumption of alcohol. The veteran’s history in these regards did not comply with factors in Statements of Principles because the veteran ceased these habits many years prior to his death. In a medical report dated 4 December 1962[1] an examining doctor noted that the veteran was not a drinker or smoker.
[1] Document T4, Folio 10
7. The matters primarily relied upon at the hearing and that formed part of what Mrs McCall claimed raised hypotheses were:
§ the veteran’s high consumption of salt throughout his life, which commenced during his service when he was issued with salt tablets while serving in the Northern Territory and in New Guinea;
§ the ongoing effects of significant leg injuries the veteran suffered while in service on 10 August 1943 when a lorry he was driving overturned into a river bed as it traversed a bridge about 2 miles north of Katherine in the Northern Territory.
BACKGROUND
8. It bears comment that there are often evidentiary difficulties in claims made by widow’s. The nature of these cases is that the widow will not have had any direct involvement with crucial events or circumstances and will be relying on what the veteran may have said, if anything, about what took place. Some provisions of the Veterans’ Entitlements Act 1986 take account of these difficulties. There is no onus of proof on either party: s120(6) of the Act. Section 119 of the Act requires decision-makers to take into account the difficulties that may stand in the way of ascertaining any fact, cause or circumstance.
9. I had the benefit of the veteran’s service medical records which provided some background to the veteran’s service and to the lorry accident near Katherine. The veteran was hospitalised for about a month after it, and was treated with morphine and sulfan tablets. The records show that he sustained concussion, lacerations to his upper and lower limbs, and severed extensor tendons of the left index finger.
10. The service medical records also revealed that when the veteran attended his discharge medical examination on 1 January 1946, the veteran - then 25 years of age - recorded a blood pressure reading of 140/85. In 1962, in a report headed Commonwealth of Australia Repatriation Department. Medical History- Part 2, this blood pressure was recorded as reading 140/90.[2]
[2] Document T4, Folio 11.
CHARACTERISING THE KIND OF DEATH
11. The veteran’s death certificate[3] recorded as the causes of death:
· Septicaemia (two weeks)
· Gangrene of limb
· Diabetes Mellitus (years)
· Cerebrovascular Accident (two weeks)
[3] Death certificate dated 7 December 2000 – Document T4, Folio 14.
12. As part of the examination of the claim the respondent’s senior medical officer, Dr P Grant, telephoned the veteran’s general practitioner Dr R Wilson[4], who confirmed that the veteran died from complications of peripheral vascular disease, for which the clearest identifiable risk was the veteran’s diabetes mellitus. Dr G Wetzig, general surgeon, had treated the veteran since 1991. Dr Wetzig confirmed that the veteran suffered from peripheral vascular disease, diabetes, and hypertension. He said that by 2000 the veteran had severe ulceration of his feet which led later that year to Dr Wetzig performing a below knee amputation of the veteran’s leg.[5] The veteran died some weeks later, the immediate causes of death being those stated in the death certificate.
[4] The detail of his discussion with Dr Wilson appears in Dr Grant’s report dated 5 April 2001 – T4, Folio 25.
[5] Exhibit A5, report dated 16 November 2005
13. Thus the medical reports and other materials before me identified certain conditions in addition to those identified in the death certificate. As the Federal Court said in Repatriation Commission v Towns [2003] FCA 1262, the expression kind of death is wide reaching and not limited to the prime cause of death in a medical sense, which is more likely what the veteran’s death certificate identified. I note that the death certificate was not certified by either Dr Wilson or Dr Wetzig. However, in view of their lengthy involvement with the treatment and care of the veteran I am satisfied that the evidence of Dr Wetzig and Dr Wilson should be accepted and thus I am reasonably satisfied, accepting also the conclusions of Dr Grant in this regard, that the veteran’s kind of death, was from complications of peripheral vascular disease.
14. I was mindful of the other conditions that were certified in the death certificate and which might have some bearing on the case - in particular cerebrovascular accident. As the case was presented before me, the primary focus became the question of the veteran’s hypertension. Both the Statements of Principles for cerebrovascular accident and for peripheral vascular disease contain a factor, expressed in similar terms, drawing a relationship between hypertension and the development of each of these conditions.
15. Dr Grant also reviewed the medical material in order to express opinions about clinical onset of relevant medical conditions which the veteran suffered. The following summarises Dr Grant’s opinion:
· Peripheral Vascular Disease: Diagnosed by Dr Wetzig on 17 July 1991 and having a likely clinical onset some ten years prior, as indicated by the significant extent of arterial changes in the veteran’s leg arteries. Dr Grant noted the absence of clinical records for the veteran after service (the medical records that we have do not pre-date the late 1980’s), and said that a more accurate estimate could not be given.
· Diabetes Mellitus: Dr Grant surmised, having discussed this with Dr Wilson, that the clinical onset diabetes was some five years prior to the veteran’s death in 2000. However other evidence suggested earlier onset. Dr M Donoghue confirmed diabetes from clinical notes in 1990.[6] Dr Grant conceded that Mrs McCall would be in the best position to know, and he pointed out that Dr Wilson, who had retired, had ventured the 5 year estimate without having access to his clinical notes.[7]
· Hypertension: Readings taken on 1 November 1945 and 4 December 1962 met the definition of (chronic) hypertension. Dr Grant stated that in 1945 this reading would not have attracted that label at that time in general practice and so no treatment would have been instigated.[8]
[6] Exhibit A3: Report dated 3 October 2005.
[7] I note that Mrs McCall believed the veteran had been told he had diabetes in 1984. Mrs McCall, who trained as a nurse said that she had suspected the condition before it was diagnosed because the veteran perspired freely and drank a lot of water. She said she had insisted on blood tests in 1984 after urine analysis had not revealed the presence of diabetes (Transcript 10 May 2005, folio 27).
[8] Exhibit R2, Report dated 22 June 2004.
DOES THE MATERIAL RAISE AN HYPOTHESIS CONNECTING DEATH WITH SERVICE?
16. For Mrs McCall to succeed it is necessary that the veteran’s hypertension was related to his war service. The veteran suffered from peripheral vascular disease and he also suffered a cerebrovascular accident in the week’s prior to death. There are Statements of Principle for each condition:
§ Statement of Principles No 65 of 2002 for atherosclerotic peripheral vascular disease, which provides at factor 5(c): “the presence of hypertension before the clinical onset of atherosclerotic peripheral vascular disease” as a factor which may exist to raise a reasonable hypothesis connecting death from atherosclerotic peripheral vascular disease and the relevant service.
§ Statement of Principles No 51 of 2006 (gazetted on 8 November 2006) for cerebrovascular accident, which provides in factor 6(a) “having hypertension at the time of the clinical onset of cerebrovascular accident” as a factor which can exist to raise a reasonable hypothesis connecting death from cerebrovascular accident with the relevant service.[9]
[9] This SoP postdates the hearing in this matter, however the relevant factor remains unaltered from that expressed in the previous Statement of Principles No 52 of 1999 (as amended).
17. It is a well settled principle in this area of the law that where an hypothesis seeks to connect an ultimate condition (here either cerebrovascular accident or atherosclerotic peripheral vascular disease) through an intermediate condition (here hypertension) then a factor in the Statement of Principles pertaining to the intermediate condition must itself be met: Repatriation Commission v McKenna (1998) 52 ALD 72; (1998) 28 AAR 7..
18. The Statement of Principles for hypertension, No 35 of 2003 (as amended), provides as a factor at 5(c):
ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension;
19. Hypertension is defined by permanently elevated blood pressure, as evidenced by either regular antihypertensive treatment; or a usual systolic blood pressure reading at or above 140 mmHg or a diastolic reading at or above 90 mmHg. The definition excludes temporary elevations. I note and take into account as evidence pointing to the clinical onset of hypertension, Dr Grant’s evidence that the veteran’s readings taken on 1 November 1945 and 4 December 1962 met the definition of (chronic) hypertension. Mrs McCall had a recollection that the veteran was hospitalised with double pneumonia in 1968 and it was at this time he was found to have high blood pressure and medication was prescribed.
20. I also note Dr M Donoghue confirmed that the veteran’s hypertension was treated at Yeppoon Family Practice from 1990 to 1992 and that two recordings taken in 1990 were 150/105 and 220/100, the latter requiring an admission to hospital.
21. Mrs McCall referred in her statement dated 26 June 2004[10] to the veteran’s leg injuries in the lorry accident and said that the resultant pain, stiffness and locking of his right knee (mentioned also in the medical report in 1962[11]) were frequently accompanied by cramping. She said that the veteran had been encouraged by Dr Wilson to use salt to relieve his cramps, and she said that Dr Wilson had given her that advice as well. Mrs McCall said that the veteran would sprinkle and sometimes spoon salt liberally from the salt container. Frequently a bowl of salt was used on the family meal table rather than a shaker. She estimated that the veteran added up to two teaspoons of salt to his meals per day and she noted that he loved corned beef. Mrs McCall said that although her husband had to modify his diet after being diagnosed with diabetes, he maintained his heavy usage of salt.
[10] Exhibit A2
[11] Document T4,p10
22. With reference to matters of the veteran’s service and the practice of the defence forces during the war with regard to salt supplements, Associate Professor J McCarthy, researcher with the Australian Defence Force Academy, prepared a report dated 27 June 2005[12]. In that report he referred to the unsatisfactory state of the evidence concerning the veteran’s postings to the Northern Territory. He said it was impossible to establish how long the veteran served in the Northern Territory. He confirmed that the veteran had served some four and a half months in New Guinea, embarking at Cairns on 12 August 1945 and disembarking at Brisbane on 29 December 1945.
[12] Exhibit R4
23. With regard to salt supplements, Associate Professor McCarthy stated that there was concern for troops serving in areas of high temperature in World War II. The veteran would have been supplied salt supplements while serving in the Northern Territory and Moratai, where high temperatures and humidity would make supplementation an imperative. Assuming he was a storeman, as Associate Professor McCarthy thought was most likely, he said that this would have meant that the veteran worked at high temperatures in confined spaces and would need supplements.
24. Referring to the specifications for salt supplementation issued by the defence forces Associate Professor McCarthy said that there was no standard issue salt tablet. In the navy 15 gram tablets were given to engine room staff, but 8 gram tablets to others. He was hazarding a guess that the Army issue would have been similar; however no official documents are retained in the Australian War Memorial Research Centre that enable us now to know the size and composition of salt tablets issued during the war years. He said however that the average daily consumption of salt in the 1940’s and 1950’s was 10 grammes per day. The estimates for salt needs in hot climates were 12 grammes for sedentary occupations and 24 grammes for hard work.[13]
[13] Citing A S Walker Medical Services of the RAN and RAAF (Canberra, 1961) p100
25. Associate Professor McCarthy referred also to the salt component of army rations, particularly in tinned and processed food. He noted that there were successes in growing fresh produce in the Northern Territory to supplement the ration, but concluded that an intake of salt perhaps considered unacceptable today would have been difficult to avoid while serving in the AIF between 1939-1945.
26. As the veteran was serving in hot climates and salt supplements were standard issue to servicemen in those circumstances, taken as a whole this material points to an hypothesis that the veteran was ingesting salt supplements to the necessary levels to lead to hypertension. We know that the veteran had periods of service in the Northern Territory and in New Guinea. The evidence points to the veteran being hypertensive at the end of his service. It is important to be mindful that this is not a stage of the decision making process at which facts are found.
27. As Emmett J said in Kattenberg v Repatriation Commission [2002] FCA 412, at [38], in considering whether the material raises a reasonable hypothesis, the Tribunal should not be concerned with conflicts in the material whether they be of opinion or fact:
The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts…which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
28. The evidence pointing to the veteran ingesting the stated level of salt supplements (that is 12 grams per day on average) for a continuous period of 6 months immediately before the clinical onset of hypertension presented some difficulties. One of the difficulties was identifying clinical onset of hypertension. On this Dr Grant was less clear in his oral evidence than in his written report where he had stated that the blood pressure reading taken in 1945 met the requirement of chronic hypertension. However he noted that the readings in 1945 and 1962 were all elevated. This was evidence supporting the presence of hypertension in 1945, which was then confirmed in the 1962 reading.
29. Another difficulty went to the issue of whether the veteran was ingesting salt at the required levels for six months immediately before the onset of hypertension. It was far from clear where exactly the veteran was posted. At first the evidence seemed to be that the veteran was in the Northern Territory from May to July 1942 only. As Mr McCall pointed out, this could not be the case given that the veteran was involved in the lorry accident near Katherine in August 1943. Mr Stoner amended his submissions, taking into account the evidence of Associate Professor McCarthy and Mr T Thrupp that showed the service records concerning the veteran were unclear. Mr Stoner said that in addition to the stated period in 1942, the veteran was under the South Australian line of command between 5 May 1943 and 29 October 1944. He may have been in the Northern Territory in that time. I note also that he was in Queensland and Mr McCall submitted that his father may well have required salt supplements to carry out his duties at that time.
30. It seems to me that, taking into account the operation of s 119 of the Act and acting in accordance with substantial justice and the merits of the case, this case requires that I take account of the difficulties that may stand in the way of ascertaining any fact, cause or circumstance. I take into account that we cannot ascertain the exact amounts of salt given to soldiers working in the kind of work that the veteran was doing in the Northern Territory, in Queensland and in New Guinea. These records have not been kept. I also take into account that we cannot be certain of the veteran’s postings, but Mr McCall has a recollection that his father spoke of substantial service taking place in the Northern Territory, and the respondent concedes that the veteran may have been there between May 1943 and October 1944. The significance of this is that it points to substantial periods of time when the veteran would have taken salt supplements, and this supports the hypothesis that he developed a habit of high salt intake and believed that there were beneficial effects to the taking of salt. He may well have required salt supplements in Queensland and he then had five months in New Guinea. The material taken as a whole points to the veteran consuming the required amount of salt supplements for 6 months immediately before the clinical onset of hypertension.
31. We know from Mrs McCall’s evidence that the veteran would regularly add to prepared food at least 2 teaspoons of salt each day, and had a liking for salty foods. Mrs McCall also gave evidence that the injury the veteran sustained to his leg in the lorry accident led to cramps in that leg, which he relieved by taking salt. As the lorry accident occurred in 1943, we can infer that this may have been another reason to encourage a higher salt intake. When this evidence is considered together with the evidence of Associate Professor McCarthy, it seems to me that it is reasonable that the veteran, having developed a salt supplementation habit during his service in the Northern Territory, was applying salt to his food to the level stated in the Statement of Principles for hypertension. I bear in mind also Associate Professor McCarthy’s conclusion that unacceptably high salt levels would have been a feature of army rations in tinned and preserved food.
32. The material relating to the veteran’s salt habits and consumption points to the requisite levels being met during his service and immediately prior to the onset of hypertension in 1945 when the veteran was then 25 years of age. This fits the template in factor 5(c) of the Statement of Principles for hypertension. Accordingly, it raises reasonable hypotheses of a causal connection with death, whether death is attributable to cerebrovascular accident or complications of peripheral vascular disease.
WAS THE DEATH WAR CAUSED?
33. In this last of the Deledio steps, I must decide whether I am satisfied beyond reasonable doubt that the veteran’s death was not war-caused within the relevant provisions set out in s 8 of the Act. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved beyond reasonable doubt or the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
34. I have outlined sufficiently the evidence that I have taken into account and have noted the gaps in the evidence. We cannot know with certainty what the components or quantities of salt supplementation were for servicemen in hot climates in World War II. However certainty is not a requirement of this legislation, and s 119 is a reminder that the absence of official records shall not be a bar to according substantial justice to a case. That section also refers to the effects of the passage of time, especially on the availability of witnesses. As will often be the case in claims by widows, the most telling absence of evidence is that we have nothing directly from the veteran concerning his war service. Matters that were within his knowledge, concerning his postings and the time he spent in the Northern Territory and in Queensland, remained a matter of conjecture. Further, in the present matter the veteran had no conditions accepted as due to his war service.
35. I was not satisfied that the veteran was not ingesting 12 grams of salt supplements per day on average for a continuous period of at least six months before the clinical onset of hypertension at the end of 1945. He developed hypertension that was related to his service through the ingestion of salt supplements during his service and this contributed to complications of peripheral vascular disease and cerebrovascular accident from which the veteran died. I am not satisfied beyond reasonable doubt that the veteran’s death was not war caused within the meaning of s8 of the Act.
DECISION
36. The Tribunal sets aside the decision under review and substitutes the decision that the death of the veteran was war-caused in accordance with section 8 of the Veterans’ Entitlements Act 1986 and the applicant is therefore entitled to receive pension under section 13 of the Act with effect from 3 August 2002.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 10 May 2005 [at Rockhampton]; 3 July 2006
Date of Decision 24 November 2006
For the Applicant Mr T McCall
For the Respondent M J Stoner, Departmental Advocate
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