Norris and Repatriation Commission

[2000] AATA 772

DECISION AND REASONS FOR DECISION [2000] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N97/567
VETERANS'     APPEALS        DIVISION)  
           Re:     EDNA MAY NORRIS         

Applicant

And:    REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal:       Mrs     H.E.    Hallowes, Senior     Member         

Dr   J.R. Vallentine,            Member

Date:1 September 2000

PlaceSydney

Decision:      The decision under review is affirmed.   

(sgd) Elspeth Hallowes
  Senior Member
VETERANS' AFFAIRS — widow's pension — whether death of veteran war-caused — hypertension — ischaemic heart disease — whether ingestion of additional 12 grams of salt per day
Veterans' Entitlements Act 1986 ss.8, 120, 120A
Statement of Principles concerning Ischaemic Heart Disease

Instrument Nº 85 of 1995 as amended by Instrument Nº 360 of 1995

Statement of Principles concerning Hypertension

Instrument Nº 83 of 1995

Repatriation Commission v Keeley (2000) 31 AAR 150

REASONS FOR DECISION

1 September 2000  Mrs H.E. Hallowes, Senior Member
  Dr   J.R. Vallentine,           Member

1. At the conclusion of the first day of hearing in this matter it was agreed that the matter be adjourned to provide Mrs Norris with an opportunity to obtain further information from the Department of Family and Community Services under the Freedom of Information Act 1982 and that closing submissions be made in writing. Three months after the day of hearing the Tribunal was advised that delays had occurred. The Tribunal gave directions with respect to the lodging of further material and submissions. Despite a number of contacts made by the Tribunal with Mrs Norris's solicitor, no further material or submissions were lodged and the parties were advised that the Tribunal would reserve its decision on 14 July 2000.

2. Mrs Norris had lodged her claim for widow's pension under the Veterans' Entitlements Act 1986 ("the Act") on 6 November 1995. She contended that the death of her husband, Robert Norris ("the veteran"), on 7 October 1995 was war-caused pursuant to section 8 of the Act. The veteran served in the Australian Army from 4 May 1942 to 24 January 1944. The veteran died aged 71 years. Mrs Norris advised on her claim form that the veteran had been treated for Hodgkin's disease. On 7 March 1996 a delegate of the Repatriation Commission decided that the death of the veteran was not causally related to service. On 24 February 1997 the Veterans' Review Board ("VRB") affirmed that decision.

3. The death certificate, included amongst the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") which include documents with respect to the veteran's claim for service pension, records that the veteran's death was the result of acute myocardial infarction. Mr M. Vincent of counsel, who appeared for Mrs Norris at the hearing, raised an issue when opening Mrs Norris's application, that passive smoking may be relevant as well as salt as an issue, as hypotheses which may connect the death of the veteran with the circumstances of his service through his ischaemic heart disease. Mr R. Wallis, an advocate with the Department of Veterans' Affairs, who appeared for the Repatriation Commission at the hearing, said that he could not find any evidence that the veteran smoked or that he had been exposed to passive smoking. Mr Vincent did not take the matter any further nor lead any evidence with respect to a passive smoking hypothesis.

4. The evidence before the Tribunal, including the oral evidence given by Mrs Norris and her son, Mr D. Norris, does not point to the veteran being exposed to passive smoking during his operational service in northern Australia between 22 March and 25 June 1943.   In any event, if the veteran was immersed in an atmosphere with a visible smoke haze, it would have been well outside the 15-year period before the clinical onset of his ischaemic heart disease.   Facts have therefore not been raised in this matter with respect to smoking which would raise a reasonable hypothesis to connect the veteran's ischaemic heart disease with the circumstances of his service under the Statement of Principles ("SoPs") concerning Ischaemic Heart Disease, Instrument Nº 85 of 1995 as amended by Instrument Nº 360 of 1995, the SoPs in effects when the Repatriation Commission made its decision on 7 March 1996.   Following the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 150, the Tribunal will consider the matter under the SoPs in effect at the time the Repatriation Commission made its decision, rather than the SoPs concerning Ischaemic Heart Disease included amongst the documents.

5. The other hypothesis raised by Mr Vincent was that the veteran had suffered hypertension before the clinical onset of his ischaemic heart disease (factor 1(a) of Instrument Nº 85 of 1995) and that the facts in this matter satisfy the relevant Instrument concerning Hypertension, Instrument Nº 83 of 1995, in that the veteran had 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 (factor 1(c) of Instrument Nº 83 of 1995).

6. The standard of proof the Tribunal must apply is provided under subsections 120(1) and (3) of the Act as follows:

   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:

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

   that the disease was a war-caused disease or a defence-caused disease; or

   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.

   . . .

Subsection 120A(3) now provides:

120A(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.
. . .

1. Mrs Norris told the Tribunal that she met the veteran in 1940.   They were married in 1944.   She said that the veteran and members of his family perspired a lot and the veteran had told her that when he was serving in Darwin his salt intake increased "dramatically" to cope with his perspiration.   After they were married he continued to ingest large amounts of salt with his meals.   She thought that his hypertension had been diagnosed in about 1953 when he was advised to use a salt substitute.   The family doctor, Dr A. Murphy, could not remember the veteran when she had telephoned him for information although the veteran had attended Dr Murphy for 10 years.   When giving oral evidence to the Tribunal Mrs Norris said that she really did not know how much salt the veteran had ingested but she did not add it when cooking vegetables as she steamed them.   She said that she really did not know how much salt the veteran ingested while he was serving in northern Australia but she supposed "that you would have to take more salt in the tropics".   She mentioned that her son also suffers from raised blood pressure.

2. The veteran's son, Mr D. Norris, told the Tribunal that his father had been a "heavy imbiber" of salt.   He understood that his father was told to reduce his salt intake when he was placed on medication for his raised blood pressure.   He recalled his father covering slices of granny smith apples with salt.   He believed that his father developed a liking for salt after serving in the tropics.  

3. The report from Dr Murphy, placed before the Tribunal by Mr Vincent, has not assisted the Tribunal in determining this matter.  

4. Mrs Norris had understood that the veteran was diagnosed as suffering from hypertension in 1953 and that he had been prescribed tenormin.   Dr Vallentine indicated to the parties during the course of the hearing that it was his recollection that tenormin was one of the betablockers which was not on the market until 1973 and that betablockers in general were not available for clinical use in Australia until the mid-1960s.  

5. As neither party lodged any further submissions, the Tribunal turns to the respondent's contentions, provided to the Tribunal before the date of hearing, in which it was contended that the veteran's salt consumption was not of sufficient quantity and frequency to satisfy the relevant factor in the SoPs and that, even if the veteran's operational service in the Northern Territory involved the ingestion of salt tablets, such consumption did not cause him to ingest an additional 12 grams of salt per day during his later civilian life.   The veteran, not having satisfied the SoPs concerning Hypertension, the respondent contended that he failed to satisfy the SoPs concerning Ischaemic Heart Disease.  

6. In a statement of facts and contentions, lodged before the hearing on Mrs Norris's behalf, it was contended that the nature and circumstances of the veteran's service led him to increase his salt intake which contributed to his hypertension and which in turn contributed to the acute myocardial infarction which caused his death.  

7. Turning to the material before the Tribunal, it points to a hypothesis connecting the veteran's death with the circumstances of his service, that is, that his service in northern Australia, from March to June 1943, caused him to increase his ingestion of salt by 12 grams per day for at least 6 months before his hypertension was accurately determined and that his hypertension was present before the clinical onset of his ischaemic heart disease which, in turn, contributed to his death as a result of acute myocardial infarction on 8 October 1995.   The Tribunal has referred to the relevant SoPs.   Applying the SoPs the Tribunal finds that the hypothesis raised is not reasonable as it does not fit the template in the SoPs, in particular, factor 1(c) of Instrument Nº 83 of 1995.   There is little evidence with respect to the veteran's hypertension.   Mrs Norris thought that it had been diagnosed in 1953, but the thrust of her evidence was with respect to the veteran's salt intake.   The veteran's son recalled his father being on medication for blood pressure but there was an unresolved issue before the Tribunal as to what medication the veteran may have been prescribed and when.   The veteran's son remembered his father being told to reduce his salt intake.   The delegate of the Repatriation Commission found that there was no history of hypertension, the VRB noting one blood pressure reading in May 1994 of 125/80.

8. Whether or not the veteran was diagnosed as suffering from hypertension, the Tribunal considers that it is appropriate in this application to so find due to the difficulties posed for Mrs Norris in obtaining relevant evidence from treating doctors and the Department of Family and Community Services.   The Tribunal is still faced with the problem of the template in the SoPs, Instrument Nº 83 of 1995.   There is insufficient evidence before the Tribunal to point to the raised facts as being true.   The hypothesis raised is, in the Tribunal's view, untenable rather than fanciful.   The veteran was in the north for only three months.  Mrs Norris gave evidence that it was her understanding that the veteran increased his salt intake during those three months.   In her view food is very tasteless unless you put a bit of salt on it but she had no idea how much salt the veteran may have been taking with his food.   Nor did she know how much salt the veteran may have been ingesting before he enlisted for service but "he always did like salt".   On return from the north the veteran may have been ingesting the amount of salt he had consumed before service.  

9. For the Tribunal to be satisfied that a reasonable hypothesis has been raised in this application, sufficient facts would need to be raised to point to a connection between the veteran's additional intake of salt and to connect that additional intake with the circumstances of the veteran's service.   In light of the evidence before it, the Tribunal feels bound to affirm the decision under review as insufficient connecting factors are pointed to by the evidence.  

   I certify that the fifteen [15] preceding paragraphs are a true copy of the reasons for the decision herein of 

   Mrs H.E. Hallowes, Senior Member
   Dr   J.R. Vallentine,         Member

   (sgd)        Catherine Thomas
                  Personal Assistant

   Date of Hearing:                   26.10.99
   Date of Decision:                  01.09.00
   Counsel for the Applicant:     Mr M. Vincent
   Solicitor for the Applicant:     Messrs Kenneth Harrison
   Solicitor for the Respondent: Mr R. Wallis, Departmental Advocate