Meredith and Repatriation Commission
[2008] AATA 499
•17 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 499
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/646
VETERANS' AFFAIRS DIVISION ) Re MICHAEL MEREDITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberDate17 June 2008
PlaceSydney
Decision The reviewable decision is set aside and our decision is that Mr Meredith's hypertension is war-caused. It follows that his IHD, aortic stenosis and cerebral ischaemia are also war caused. We remit the matter to the Respondent for reconsideration in accordance with our findings. ......................[sgd]........................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
VETERANS’ AFFAIRS - war pension – statement of principles - hypertension – operational service - salt supplements – whether ingestion of 12 mg of salt for 6 months immediately before clinical onset of hypertension - whether hypothesis reasonable –- held was material pointing to factor in SoP – not satisfied beyond reasonable doubt hypertension not war-caused – aortic stenosis, cerebral ischemia and ischaemic heart disease conditions war-caused - reviewable decision set aside and decision substituted - remitted for reconsideration
Veterans’ Entitlements Act 1986, ss 120, 120A
Statement of Principles concerning Aortic Stenosis (Instrument No 54 of 2002)
Statement of Principles concerning Cerebrovascular Accident (Instrument No 51 of 2006)
Statement of Principles concerning Hypertension (Instrument No 35 of 2003, as amended by No 3 of 2004 and No 11 of 2008)
Statement of Principles concerning Ischaemic Heart Disease (Instrument No 89 of 2007)
Bull v Repatriation Commission (2001) 34 AAR 326
East v Repatriation Commission (1987) 16 FCR 517
Hardcastle and Repatriation Commission [2000] AATA 723
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
17 June 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, MemberSUMMARY
1. Mr Michael Meredith served in the Australian Army from 16 January 1952 to 10 May 1960 and from 21 November 1960 to 3 September 1976. He seeks the review of a decision of the Repatriation Commission that was affirmed by the Veterans' Review Board refusing his claims for a pension in respect of incapacity from aortic stenosis, ischaemic heart disease (IHD) and cerebral ischaemia.
2. The answer to the claims lies in Mr Meredith's intake of "salt supplements". The parties accepted that he has hypertension. The relevant factor under the Statement of Principles (SoP) linking service and the disease is the ingestion of salt supplements. If his hypertension was war caused, Mr Meredith will succeed in his claim for the other conditions because the SoP for each of those conditions has as a factor linking service and the condition, hypertension at the time of clinical onset. The parties agreed that the clinical onset of all those conditions was after the clinical onset of hypertension in 1971.
3. Mr Meredith had the following periods of eligible and operational war service for the purposes of the Veterans' Entitlements Act 1986 (the Act):
- 18 October 1956 to 31 August 1957; and
- 1 September to 31 October 1957.
4. By the time of the hearing, we did not understand that there was any dispute that if Mr Meredith's claim is successful, the date of effect is 21 December 2004.
5. For the reasons set out below, we determined that Mr Meredith's hypertension was war-caused. The three conditions he claimed are therefore also war-caused.
THE ISSUES
6. The parties agree that Mr Meredith suffers from hypertension, the clinical onset of which was in 1971. The only issue is whether Mr Meredith's hypertension was war caused, which is to be decided pursuant to s 120(1) and (3) of the Act (reasonable hypothesis / beyond reasonable doubt), subject to s 120A of the Act. The relevant SoP for Hypertension is Instrument No. 35 of 2003 (as amended by No 3 of 2004 and No 11 of 2008) (the SoP). No point was taken by the Respondent that hypertension had not been the subject of the claim.
7. The relevant factor in the SoP concerning hypertension to determine whether Mr Meredith's hypertension is causally related to operational service is Factor 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.
8. In relation to the conditions Mr Meredith claimed, the diagnoses are agreed, and the dates of clinical onset are after the date of clinical onset of hypertension.
9. There is a SoP in force for each of the other conditions, and each of those SoPs lists hypertension as a factor connecting the condition with the person's service,
10. The SoP for Aortic Stenosis (Instrument No 54 of 2002) prescribes as a factor in cl 5 (e):
the presence of hypertension at the time of the clinical onset of aortic stenosis.
11. The most recent SoP for Ischaemic Heart Disease (Instrument No 89 of 2007) provides as a factor in cl 6 (a):
having hypertension before the clinical onset of ischaemic heart disease.
12. The current SoP for Cerebrovascular Accident (which is defined to include cerebral ischaemia in cl. 3(b)), is Instrument No 51 of 2006, which lists as a factor in cl 6(a):
having hypertension at the time of the clinical onset of cerebrovascular accident.
13. Therefore if Mr Meredith is successful in relation to hypertension, he succeeds in relation to the other claimed conditions as well.
THE CASE FOR THE RESPONDENT
14. By the end of the hearing, Mr O'Reilly, who appeared for the Repatriation Commission, conceded, properly in our opinion, that there was a hypothesis linking Mr Meredith's operational service with hypertension. The hypothesis is that Mr Meredith increased his salt ingestion because of his operational service in Malaya and continued a high level of salt intake thereafter which caused his hypertension.
15. However, Mr O'Reilly argued that it was not a reasonable hypothesis because it was too tenuous, fanciful, remote, or speculative. He referred us to East v Repatriation Commission (1987) 16 FCR 517. Mr O'Reilly pointed to two aspects of the hypothesis which he argued fell into that category. First, he argued that there was no material pointing to Mr Meredith's satisfying factor 5(c) of the SoP, that is, that he ingested 12 grams of salt supplements per day on average for a continuous period of at least six months immediately before the clinical onset of hypertension in 1971.
16. The second aspect which Mr O'Reilly argued fell into the too speculative/remote category was the causative link between Mr Meredith's operational service in Malaya and a consequential increased ingestion of salt supplements which continued thereafter and until 1971. Mr O'Reilly argued that while in Malaya Mr Meredith swallowed the salt tablets and therefore did not taste them. Mr Meredith liked salt before operational service and after operational service, and that relevantly there was no causative link with service.
CONSIDERATION
17. "Salt supplements" are defined in cl 8 of the SoP:
“Salt Supplements” means salt added to food when cooking or eating, or salt contained in salt tablets.
18. We understood Ms Wood, counsel for Mr Meredith, to argue that salt added to bread, biscuits, processed rations and other foodstuffs during the manufacturing process, fall within the definition of “salt supplements". We do not accept that proposition. We agree with Senior Member Dwyer's opinion in Hardcastle and Repatriation Commission [2000] AATA 723 that the definition is clear, and it does not include salt added during the manufacture or processing of food.
19. In terms of the steps set out in Repatriation Commission v Deledio (1998) 83 FCR 82, there is no issue in relation to the first two steps. Our analysis therefore starts at the third step outlined in Deledio at 97:
If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e) [of the Act]). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
20. Does the material before us point to Mr Meredith's salt intake being increased because of his operational service and his ingestion being 12 mgs per day for six month before the clinical onset of his hypertension in 1971?
21. We had in evidence a statement from Mr Meredith, as well as his oral evidence. Mr Meredith gave evidence of adding salt to his food before joining the Army, of the increased salt intake when he was in Malaya because he knew it was important to take salt, "the more salt, the better". It was understood that an insufficient daily intake of salt would lead to debility and an inability to carry out one's duties. While in Malaya he "assumed" that he took two salt tablets from the saucer containing the tablets at every meal, and "presumed" he took about every meal in barracks and salted his food liberally. He also described the salt content in food rations. However, as we have already said, we do not take such salt into account. In his statement he provides an estimate that "we – including me – would each have consumed at least 2 ozs (57gms) of salt per day”.
22. Mr Meredith described eating in the mess on his return to Australia before he married. He was no longer taking salt tablets but had plenty of salt on his food, for example on bacon and eggs for breakfast, roast for lunch and equivalent for the evening meal. He was used to it.
23. When he married he had some meals in the canteen, for example for six months while he was at Puckapunyal and his wife was in Melbourne, and at other times when he was away from home for various periods. When he moved to Canberra in 1970, he only ate in the mess when on inspections. Lunch was never eaten at home.
24. When asked by his counsel, Ms Wood, how much salt he had ingested at the time he was told to cut down because of hypertension, Mr Meredith said that he could not recall, but then said he imagined about 24 grams a day – although he also said "you don't measure" salt. He said that he had a chemist show him 24 grams and that it did not seem to be a terrible lot, when he cast his mind back to the 1960s and 1970s.
25. During 1971, before he started to cut down on salt, he said he "imagined", "thought" his breakfast was cereal and toast at home and he would not have salt on that. He said there was salt in cornflakes and butter. We do not take that into account. He emphasised that he loved butter on toast. At that time, his morning tea would have been biscuits and coffee. For lunch, he had sandwiches from the canteen, rarely cooked meals. However it was hard to recall. He mentioned that he has had a stroke. He also mentioned meat pies which would have had salt added commercially and tomato sauce. Afternoon tea was biscuits, and his evening meal was a roast or fricassee. He thought his wife had started to reduce the salt intake and he would have asked for it to be salted.
26. During cross-examination, Mr Meredith said that it was hard to quantify how much salt he had had, "you don't measure it". He admitted that he could not really say how much. It was hard to recall last week, and that some things are very clear and other things he has to be reminded of.
27. Mr Meredith’s wife, Mrs Meredith, also gave evidence. She was a registered nurse and worked until she had their first child in 1966. When they moved to Canberra in 1970 they spent more time together because Mr Meredith worked 9 to 5 and did not go away a lot. She kept a closer eye on him and noticed that he got irritable, had headaches and was red-faced and a bit difficult to get on with. She always thought that her husband was a heavy user of salt. When she did not use it in her cooking, he had it on the table and complained that the food needed salt. He had breakfast and the evening meal at home and lunch at work at that time. She thought breakfast would have been toast or cereal – she never cooked breakfast - although her husband would sometimes, probably bacon and eggs. The evening meal was meat and vegetables, or sometimes pasta. The crockery was brown and she would see salt on Mr Meredith's plate, but it was not there when she washed the plate. She said that from her personal experience she could recognise that a sachet of salt was one level teaspoon. Mr Meredith would have two or three sachets of salt on his lunch and dinner. She tried to reduce the salt intake because of one of her daughters, when that child was 6, 7 or 8, in early to mid 1971. Eventually, they did not have salt on the table. She substituted sauces to flavour food.
28. By way of medical evidence, we had Mr Meredith's medical records from the Department of Veterans' Affairs, some further documents from his service records, and reports from Dr Butler, consultant physician, and Dr Edwards, physician. Dr Edwards addressed the critical issue of whether Mr Meredith satisfied the relevant SoP factor. Dr Butler did not. However, Dr Edwards referred to Instrument 36 of 2003, which was not the relevant SoP. The relevant instrument is No. 35 of 2003, which specifies 12 grams rather than 15 grams per day, for the ingestion of salt supplements during the six months preceding clinical onset of hypertension. Dr Edwards' opinion was that there was no evidence that Mr Meredith ingested 15 grams of salt supplements a day.
29. Ms Wood relied on Dr Edwards' report to establish that a teaspoon of salt is 5 grams. Dr Edwards stated that 15 grams daily is an amount equal to three heaped teaspoons of salt. That suggests that a heaped teaspoon of salt is 5 grams, and a level teaspoon a smaller amount. Ms Wood argued that it followed that, on the evidence of Mrs Meredith alone, Mr Meredith was:
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.
CONCLUSION
30. The hypothesis in this case will only be reasonable if there is material pointing to the essential elements of the SoP (Repatriation Commission v Hill (2002) 69 ALD 581). As mentioned above, Mr O'Reilly raised two questions in relation to the SoP. His argument in relation to East was put it in terms of what the Full Federal Court described in Bull v Repatriation Commission (2001) 34 AAR 326 at 331 as "words of elucidation" which:
should not be substituted for the words of the statute … What is required of the decision-maker by s 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.
31. In our opinion the material before us points to Mr Meredith's ingestion of salt supplements, including table salt, increasing during and because of his service in Malaya, and that Mr Meredith continued using a higher amount of salt supplements thereafter until he began reducing it sometime after the clinical onset of hypertension.
32. This is a case where the quantity of salt ingested is specified in the SoP, and therefore the hypothesis cannot be described as reasonable unless there is material that points to Mr Meredith ingesting the specified quantity of salt in the relevant six month period (see East at 533). Does the material before us point to Mr Meredith's ingesting 12 grams of salt for six months immediately preceding the clinical onset of hypertension?
33. We conclude that there is material before us, particularly the evidence of Mrs Meredith, which is consistent with that aspect of the SoP.
34. We conclude that there is material before us which is consistent with the SoP and therefore the hypothesis is reasonable.
35. Going to the final step in Deledio, on the evidence before us, we are not satisfied beyond reasonable doubt that Mr Meredith's hypertension is not war caused (s 120(3) of the Act).
DECISION
36. For the above reasons, the reviewable decision is set aside and our decision is that Mr Meredith's hypertension is war-caused. It follows that his IHD, aortic stenosis and cerebral ischaemia are also war caused. We remit the matter to the Respondent for reconsideration in accordance with our findings.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Dr MEC Thorpe, Member.Signed: ………[sgd]……….
Steven Mulipola, Associate
Date of hearing: 8 February 2008
Date of decision: 17 June 2008
Counsel for the Applicant: Ms E Wood
Solicitors for the Applicant: Legal Aid Commission of NSW
Representative for the Respondent: Advocacy, Department of Veterans’ Affairs
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