Patterson and Repatriation Commission
[2005] AATA 758
•9 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 758
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/653
VETERANS' APPEALS DIVISION
Re: DAVID MITCHELL PATTERSON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member
Date: 9 August 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Senior Member
VETERANS’ AFFAIRS ‑ hypertension - obesity - salt supplement - alcohol consumption - whether related to service
Veterans’ Entitlements Act 1986 ss 9(1), 119 (1)(h), 120(4), 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Hardcastle v Repatriation Commission (2001) 33 AAR 485
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
9 July 2005 G.D. Friedman, Senior Member
1. This is an application by David Mitchell Patterson (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 4 May 2004. The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 30 September 2003 that the applicant’s hypertension was not related to his service.
2. At the hearing of this matter on 23 May 2005 and 30 June 2005 Mr G. Chancellor of counsel represented the applicant. Ms J. McCulloch, an advocate with the Department of Veterans’ Affairs (the Department), represented the respondent.
3. The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T13), with six exhibits (Exhibits A1‑A6) tendered by the applicant and five exhibits (Exhibits R1-R5) tendered by the respondent.
BACKGROUND
4. The applicant was born on 23 October 1945. After completing secondary education he studied civil engineering at Monash University, and after graduation he was employed by the Country Roads Board in bridge construction. He was called up for National Service and served in the Australian Army (the army) from 22 April 1970 until 9 December 1971. The applicant served in Vietnam from 4 February 1971 until 30 October 1971, which constitutes operational service in accordance with the Veterans’ Entitlements Act 1986 (the Act).
5. After leaving the army the applicant returned to the Country Roads Board where he remained until 1978. He then began working with the Victorian Railways as an engineer specialising in bridge construction. In 1998 his employer was privatised, and he joined the company as a manager of bridge engineering services, and he remains in that position.
6. On 14 August 2003 the applicant lodged a claim to have hearing loss and tinnitus, diabetes type 2 and hypertension accepted as war-caused. On 30 September 2003 a delegate of the respondent determined that bilateral sensorineural hearing loss, bilateral tinnitus and diabetes mellitus were war-caused. However, the delegate determined that hypertension was not accepted as war‑caused.
7. On 15 October 2003 the applicant applied to the VRB for review of the respondent’s decision of 30 September 2003. Following the VRB decision on 27 May 2004, the applicant sought review of the VRB decision by the Tribunal.
8. The issue before the Tribunal is whether the applicant’s hypertension is war‑caused.
EVIDENCE
9. In a written statement dated 25 May 2004 (Exhibit A5) the applicant said that his hypertension was diagnosed in 1978 when he attended a medical examination in connection with his application to join the Victorian Railways as an engineer. He stated that he did not have a regular treating doctor and had no idea that his blood pressure was elevated. He said that during his service in Vietnam he started eating potato chips, salted peanuts and salted cashews in the canteen, initially as an accompaniment to a glass of beer, but later as a snack away from the canteen. The applicant said that before his service in Vietnam he had eaten such salty snack foods only infrequently, but by the time of his discharge they were a regular part of his diet.
10. The applicant stated that before his army service he was a light social drinker. He said that during his service in Vietnam he began to drink regularly, and when he was not on duty he consumed alcohol (one to two small cans of full-strength beer) and salty snack foods daily. He stated that after discharge he continued to consume beer virtually daily, at a hotel with lunch on one or two days each week, and in the evenings.
11. The applicant noted that his weight at the time of his discharge was almost the same as at his enlistment. However, his weight increased after his army service, and by 1978 he considered himself to be obese (105 kg), which he attributed to his consumption of alcohol and salty snack foods. He said that his service in Vietnam contributed to his weight gain, because, to the best of his recollection, his diet and exercise were otherwise fairly similar to the pre-enlistment levels. He estimated his consumption of beer after his discharge until the time of diagnosis of hypertension to be more than 20 standard drinks of alcohol per week on average.
12. The applicant stated that following his Vietnam service he began to add salt to his meals because the food tasted bland without it. He estimated that he was consuming at least 12 gm of salt per day at the time of diagnosis of hypertension in 1978.
13. In oral evidence the applicant said that in Vietnam his role was to calculate the settings on artillery, to support infantry soldiers in the field. He said that this was a precise and stressful task. He noted that the stress and tension, plus the hot and humid climate, caused him to sweat profusely, which contributed to his increased beer consumption. He told the Tribunal that in the field there was no access to alcohol, but he spent most of the time in Nui Dat and Vang Tau, where there was ready access to beer. The applicant estimated his alcohol consumption per week, in the six months prior to the diagnosis of hypertension in 1978 as follows (Exhibit A6):
Counter meals: 2-3 glasses X 2 to 3 times per week = Average 6.25 glasses = 62.5 grams
Friday evening after work: 3-5 glasses = Average 4 standard glasses = 40 grams
Other weekday evenings at home: a large bottle once or twice a week = 1.5 X 4 standard glasses = 6 standard glasses = 60 grams
Weekends: A large bottle on one or both days (some times more) = Average 6 standard glasses = 60 grams
TOTAL = 222.5 grams
14. The applicant explained that he always had a liking for salty snack foods, but in Vietnam this increased. He produced an article by the Salt Institute How Much Sodium and How Much Chloride are in a Teaspoon of Salt? (Exhibit A3), which notes that the density of granulated evaporated salt varies depending on crystal size, structure, gradation, and degree of compaction. The article concludes that a level teaspoon of salt contains about 6 gm. The applicant estimated his salt supplement consumption per day in the 6 months prior to the diagnosis of hypertension in 1978 as follows (Exhibit A6), assuming that 1 tablespoon = 4 teaspoons = approximately 24 gm:
Added to cooking 1 teaspoon for each of 3 pots X 6 grams/2 persons [of vegetables = 18gm for 2 persons] = 9 grams [per person] - [but] not all [salt] enters the food [so] say 6 gms
Added at the table: 0.25 teaspoon = 1.5 gm
Vegetable broth = 1 pot consumed 13% of time on average (4 pots per month) = 0.13 tablespoon = 3 gm
Salt from potato chips, twisties [cheese snack] = 0.25 teaspoon say per day on average = 1.5 gm
Soy sauce on chiko roll 0.25 teaspoon per day on average = 1.5 gm
Added to hot breakfast of bacon and eggs two to three days per week = 2.5/7 divided by 7] X 0.25 teaspoon = 0.5 gm
Plus unknown other small amounts of salt supplements (eg fish and chips on Friday night and/or weekends)
TOTAL greater than 14 gms + per day on average
15. Under cross-examination the applicant agreed that at university and during his army service before Vietnam he drank beer occasionally, but not to excess. In respect of salty snack foods, the applicant agreed that in Vietnam he usually purchased snacks when drinking beer. He said that in the 1980s he changed his lifestyle and took up sailing, which helped to reduce his weight. He stated that he changed to light beer and began to exercise regularly.
16. In a written report dated 24 November 2004 (Exhibit R4), Dr N. Strauss, consultant and occupational psychiatrist, stated:
…
Assuming that this man drank two small cans of alcohol when he did drink in the evenings in Vietnam and assuming that he did not drink four or five nights a week every week while he was there I am not satisfied that it can be established that he did consume 200 grams of alcohol per week consistently during his time in Vietnam.
…
I do accept however that after he was discharged from the Army his alcohol consumption increased and he admitted that he put on a good deal of weight after he left the Army and before 1978.
I do not believe that this man has had a problem with alcohol and I am not satisfied that at any stage he suffered from alcohol dependence or abuse or that he warranted a psychiatric diagnosis of alcohol abuse. I am not satisfied that his alcohol consumption was 200 grams per week or more than that, while he was in the Australian Army at any stage.
Dr Strauss stated that the applicant told him that after he left the army his weight increased significantly because he was far less active and he had a sedentary job, and that he had always eaten salty snack foods. Dr Strauss concluded:
…Even after his discharge from the Army his alcohol consumption was never an issue for those around him or indeed for Mr Patterson himself.
In oral evidence Dr Strauss emphasised that the applicant did not drink alcohol consistently in Vietnam because he was on duty for a considerable proportion of the time. Under cross-examination Dr Strauss agreed that the applicant could not be described as a heavy drinker.
17. In a written report dated 18 October 2004 (Exhibit R3), Dr R. English, nutrition consultant, noted that, in respect of the relationship between the applicant’s obesity in 1978 and his operational service in 1971, the applicant’s weight on enlistment was almost the same as on discharge. She said that the salty snack foods identified by the applicant as being responsible for his obesity were food choices that were purchased in the canteen and consumed by him away from the mess setting, and therefore, were not part of the service diet.
18. Dr English noted that the applicant has not provided detailed dietary intake data to substantiate his claim of consuming 200 gm of alcohol per week, has not completed an alcohol questionnaire and has given non-specific information on the quantities of beer consumed.
19. Dr English said that the foods (salted nuts, cashews and potato chips), stated by the applicant to be the cause of his hypertension, are not covered in the definition of salt supplements in the Statement of Principles (SoP) for hypertension. The definition refers to salt added to food when cooking or eating, or in salt tablets, and does not include salt added by food manufacturers during the processing of commercial products. Dr English referred to the applicant’s estimates in Exhibit A6, and stated (Exhibit R3):
…It is difficult if not impossible to estimate the veteran’s intake of salt from this information, because of the accepted scientific difficulty of measuring sodium/salt intake of an individual through any recognised method of dietary survey, particularly for past recall. The 24-hour urinary excretion of sodium is accepted as the only valid measurement of current sodium intake, because of the difficulty of measuring sodium or salt intake due to the variability of sodium compounds (including salt) added in food processing, home‑cooking or at the table…the measurement of salt so added does not allow for the loss of salt in cooking water and other liquids, plus wastage and sharing of meal dishes.
Any personal recall of salt intake lacks scientific credibility, especially as no validation check can be applied as with general dietary recall.
Dr English concluded that, based on findings in the scientific literature relating to the complexity of factors that shape an individual’s food choices and habits, the applicant’s stated consumption of peanuts and other salted snack foods, and his taste for salt before the diagnosis of hypertension, are not a result of his operational service.
20. In oral evidence Dr English explained that the applicant’s salt intake appears to have been a lifetime habit. She questioned the accuracy of the applicant’s estimate that one teaspoon of salt weighs 6 gm; and she questioned his estimate of the amount of salt added to his food, because of the uncertainty about the volume of liquid involved. Dr English doubted that the applicant’s salt supplement amounted to 12 gm per day on average, and emphasised that the applicant consumed snack foods in Vietnam in addition to prescribed meals. Under cross-examination Dr English said that the hot weather and sweating by the applicant in Vietnam would not necessarily lead to a greater salt intake, because the body adapts to salt loss in different ways.
21. In a written statement dated 20 March 2004 (T13, p45) Ms A. Hardidge, the applicant’s sister, said:
¡…During our childhood and adolescent years, our use of salt supplements was much the same for all members of the family including David. Use was fairly minimal, and I would say what would be described as normal for most families. Salt was added to the cooking, but only in small amounts. Salted cashews and peanuts and other like foodstuffs were eaten rarely on special occasions, such as at Christmas family gatherings.
…
¡After David’s return from Vietnam…I can clearly recall that David showed a strong liking for salted peanuts, cashew nuts and potato chips and always added a lot of salt from the shaker at the table, regardless of whether the cooking had been salted to most people’s liking.
22. In a written statement dated 20 March 2004 (T13, 43) Mrs P. Patterson, the applicant’s wife, said that she and the applicant met in 1972 and were married in 1973, after the applicant’s army service. She said:
…
Firstly, in the preparation and cooking of vegetables, soup and salad I always would need to add more salt than I was previously used to, as David would complain of it being tasteless unless I did so, which I found most frustrating. Even adding more salt than I was generally accustomed to would still not be enough, as David would invariably still add salt at the table. The amount of salt added would vary from about one teaspoon for each pot of vegetables to a very large amount for the vegetable broth that David liked very much….David would still add salt to the bowl to get the taste he liked.
David also had a preference for snacks and savouries with high salt contents.
23. In oral evidence Mrs Patterson stated that after their wedding the applicant began to increase in weight. She said that he used to drink one large bottle of beer each night, and on Fridays, when he was working for the Country Roads Board, he drank at a hotel with his colleagues after work. She said that he changed to light beer in about 1985. Under cross-examination Mrs Patterson said that the applicant tried to lose weight in the mid‑980s and she assisted by cooking different foods.
24. In a written report dated September 2000 (Exhibit A4) on the psychological and physiological effects that determine salt consumption, Dr J. Kennedy noted that evidence suggests that there is a physiologically-driven appetite for salt, which is the result of the body being in a state of sodium depletion, and is driven by the sodium in salt, not the chloride. He concluded (at p8):
…The over-consumption of salt following a pattern of high-salt diet cannot be construed as having an underlying mechanism of addiction. The physiological appetite for salt cannot be regarded as an addictive process either, as substance dependence is a result of the use of a substance, not the depletion of a substance in the body.
25. In a written report dated 21 April 2005 (Exhibit R5) written for Writeway Research Service Pty Ltd, Mr P. Pearson stated that the applicant was in Vietnam for 268 days as a Command Post Operator - Field (Artillery) based at 1 Australian Task Force base at Nui Dat. When not at Nui Dat he was deployed with a field battery at fire support bases operating howitzers. Mr Pearson estimated that the applicant could have spent between 114 and 146 days in conditions which allowed access to a canteen.
26. In an article called The Dominance of salt in manufactured food in the sodium intake of affluent societies published in The Lancet dated 21 February 1987 (Exhibit R6), W. James, A Ralph and C. Sanchez-Castillo stated (at p427):
…
We have found that only 20-36% of salt added during cooking is recovered in fresh vegetables, the rest being discarded in the cooking water. Food left behind in saucepans or on plates will further reduce its dietary contribution. Epidemiological data obtained by use of our lithium tagging technique suggest that with British cooking methods only 24% of the salt added in cooking is on average actually ingested by members of the household
27. In oral evidence to the VRB on 4 May 2004 (Exhibit R1) the applicant stated (at pp12-13) that after his discharge he adopted his former lifestyle which was:
…pretty much with family and friends but not a lot of going down [to] the pub and drinking and consuming those sorts of things [high-salt snack foods]. I mean, when I was in Vietnam, that would be a regular thing but I guess - I have a few close friends but I wouldn’t go out to the pub drinking with them but obviously that still continued on, the eating chips and peanuts and things that were salty like spring rolls and those sorts of things which I - I got too fat eating those things at one stage…
CONSIDERATION OF THE ISSUES
28. Section 9(1) of the Act provides:
9(1) Subject to this section and section 9A, 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;
…
29. Mr Chancellor submitted that, on the material as a whole, there is a reasonable hypothesis connecting hypertension suffered by the applicant with the circumstances of all or one of his conditions such as obesity, alcohol consumption and salt intake during operational service in Vietnam. He stated that the clinical onset of hypertension occurred in 1978 when the applicant’s elevated blood pressure was discovered during a medical examination. He said that the applicant had eaten salty snack foods before his service in Vietnam, but only infrequently. But during operational service he came to eat this type of food on a daily basis, whenever possible, and by the time of his discharge salty snack foods were part of his daily diet.
30. Mr Chancellor said that prior to his Vietnam service the applicant considered himself to be a light social drinker, but that during his time in Vietnam he came to drink on average 1 to 2 cans of full-strength beer daily in order to relieve the stress of his duties in the artillery, because of the hot weather and to participate in the social life of his unit. He said the applicant continued the habit when he left the army, consuming more than 20 standard drinks per week. Mr Chancellor noted that the applicant’s weight remained fairly constant during his service (170 lb (77 kg) on enlistment and 169 lb (77 kg) on discharge), but after his discharge he gradually gained weight until he reached 105 kg in 1978. He submitted that the applicant’s alcohol consumption and the consumption of salty snack foods in Vietnam contributed to his weight gain and to his hypertension.
31. Mr Chancellor said that the evidence from the applicant and his wife, supported by evidence from his sister, was clear that, in addition to eating salty snack foods, the applicant took to adding salt to his meals after his service in Vietnam, because the applicant found the taste of food to be bland. He stated that the applicant believes that he was consuming at least 12 gm of salt per day in the period before the diagnosis of hypertension, and the table prepared by the applicant (Exhibit A6) demonstrates that the consumption was a conservative estimate that allowed for errors. Mr Chancellor submitted that Dr English is a dietician and not a clinician, and that her evidence must be taken in the context of relevant scientific studies.
32. Mr Chancellor referred the Tribunal to Repatriation Commission v Law (1980) 31 ALR 140 in which the Federal Court held:
It seems clear that the expression “attributable to” in each case involves an element of causation. The cause need not be the sole or dominant cause: It is sufficient to show “attributability” if the cause is one of a number of causes provided it is a contributing cause.
He also referred to Kattenberg v Repatriation Commission (2002) 73 ALD 365, where he said that the Federal Court had held that smoking did not need to be wholly attributable to service but only required a contribution by the applicant’s war service. He submitted that, by analogy, the relevant issue in the matter before the Tribunal was whether the applicant’s war service made a contribution to his drinking habits and/or salt ingestion habits and/or obesity.
33. Ms McCulloch submitted that, on his own evidence, the applicant drank alcohol while at university and at army postings in Puckapunyal, Sydney and Townsville, and continued to do so after operational service. She noted his evidence that his consumption increased after his marriage in 1973 and that, even at its highest, the evidence did not support a consumption of 200 gm of alcohol per week.
34. Ms McCulloch submitted that the SoP which deals with salt consumption refers to salt added to food when cooking or eating. That excludes pre-packaged salty snack foods (Hardcastle v Repatriation Commission (2001) 33 AAR 485), that were available at places frequented by the applicant. She also noted that the applicant was unable to quantify the amount of snack foods he had consumed in Vietnam.
35. Ms McCulloch submitted that the evidence from the applicant, Mrs Patterson and the applicant’s sister in respect of salt added to food was vague and speculative. This was especially the case in relation to the amount added to food by the applicant’s mother before his service in Vietnam. Therefore, the table prepared by the applicant (Exhibit A6) was unreliable and inaccurate. Ms McCulloch also referred to the discretionary use of salt as described by Dr Kennedy.
36. Ms McCulloch accepted that in 1978 the applicant was clinically obese, but noted that the applicant had given evidence that after discharge from the army his weight had increased gradually. She submitted this was probably due to issues such as a sedentary occupation, family commitments and alcohol consumption. She said that there was no connection with his operational service.
37. The Tribunal reached its decision taking into account the written and oral evidence and the submissions made at the hearing.
38. The question of whether a condition exists is to be decided as a preliminary issue (Fogarty v Repatriation Commission (2003) 37 AAR 363), on the balance of probabilities, under s 120(4) of the Act. There was no dispute between the parties that the applicant suffered from hypertension.
39. The principles to be applied, in cases where s 120A of the Act applies, were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 as a four-step process:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. 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)). 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.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
40. The Tribunal has considered each of the four steps from Deledio. In respect of the first step, the Tribunal finds that, after taking into account all relevant matters, the material points to a hypothesis connecting the hypertension to the circumstances of the particular service rendered by the applicant.
41. In respect of the second step from Deledio, there was no dispute between the parties, and the Tribunal finds, that SoP N° 35 of 2003 (as amended by SoP N° 3 of 2004) concerning hypertension was in force and is relevant. The relevant factors are:
(a)being obese at the time of the clinical onset of hypertension;
(b)consuming an average of at least 200 grams per week of alcohol which cannot be decreased to less than an average of 200 grams per week, at the time of the clinical onset of hypertension;
(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; …
In paragraph 8 of the SoP
“alcohol” is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink;
“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (BMI) of 30 or greater.
The BMI = W/H2 and where:
W is the person’s weight in kilograms andH is the person’s height in metres;
…
"salt supplements" means salt added to food when cooking or eating, or salt contained in salt tablets.
42. In respect of the third step from Deledio, in relation to factor 5(a) of the SoP, the Tribunal accepts that the applicant was obese at the time of the clinical onset of hypertension. In the circumstances there is material or evidence pointing to the hypothesis being a reasonable one, and it is consistent with the template in the SoP (Repatriation Commission v Hill (2002) 69 ALD 581), and the applicant satisfies the third step.
43. In respect of the third step from Deledio, in relation to factor 5(b) of the SoP, the Tribunal takes into account the estimates given by the applicant, in Exhibit 6, of his alcohol consumption in 1978. The Tribunal takes into account the evidence from Dr Strauss, who described the applicant’s alcohol consumption before and after service and concluded that the applicant was not a heavy drinker, and that the applicant’s post-service consumption was mainly beer consumed with counter lunches once or twice per week and in the evenings. The Tribunal also notes Dr English’s evidence that the applicant did not provide dietary intake data to substantiate his claim that he consumed 200 gm of alcohol per week in 1978, and her comments that he has not completed an alcohol questionnaire to substantiate his claim. The Tribunal further notes the applicant’s evidence that after Vietnam his alcohol consumption increased. The Tribunal finally notes that the applicant told Dr Strauss that after leaving the army his alcohol consumption was never an issue for him or those around him.
44. The Tribunal accepts the submission from Ms McCulloch that the estimates provided by the applicant in Exhibit A6 are unreliable and are not supported by objective evidence. For these reasons the Tribunal concludes that the applicant was not consuming at least 200 gm (20 standard drinks) per week on average at the time of the clinical onset of hypertension in 1978. As a result there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the SoP concerning hypertension (Hill). Therefore, the applicant does not satisfy the third step from Deledio in relation to factor 5(b).
45. In respect of the third step from Deledio, in relation to factor 5(c) of the SoP, The Tribunal takes into account the estimates given by the applicant in Exhibit A6 and the assumptions underlying the figures provided by him, and the research conducted by Dr Kennedy and the James study about salt ingestion, plus research cited by Dr English. The Tribunal accepts Ms McCulloch’s submission that the term salt supplements as defined in the SoP is confined to salt added to food when cooking or eating, and salt tablets. On this basis the Tribunal does not accept that salt used in packaged snack foods fits within the definition.
46. The Tribunal agrees with Ms McCulloch that the estimates of his salt consumption by the applicant are speculative. The Tribunal also agrees that the figures given in Exhibit A6, as a re-construction of events that took place many years ago, are unreliable and inaccurate, and the amounts listed for salt contained in potato chips, Twisties and soy sauce should be disregarded. For these reasons the Tribunal finds that the applicant did not ingest at least 12 gm of salt supplements per day on average, at least 6 months immediately before the clinical onset of hypertension. In the circumstances there is no material or evidence pointing to the hypothesis being a reasonable one, and it is not consistent with the template in the SoP concerning hypertension (Hill). The applicant does not satisfy the third step from Deledio in relation to factor 5 (c) of the SoP.
47. Relating to factor 5(a) of the SoP, in respect of the fourth step from Deledio, concerning whether the Tribunal is satisfied beyond reasonable doubt that the evidence before it demonstrates that the hypothesis cannot be sustained, the Tribunal is called upon to make findings of fact. The Tribunal accepts the evidence that, although the applicant increased his alcohol consumption after service, his weight on enlistment and discharge was almost the same, despite his evidence of developing a liking for salty snack foods in Vietnam. The Tribunal accepts the submission from Ms McCulloch that the applicant’s gradual increase in weight was consistent with factors noted by Dr Strauss such as being far less active and having a sedentary job. The Tribunal also agrees with Ms McCulloch that factors such as family responsibilities contributed to his weight gain.
48. The applicant admitted to feeling fitter at the time of his discharge than before or during service. He started eating high-fat snack foods such as Chiko Rolls and having counter lunches at a hotel about twice each week. Therefore, there was no causal connection between the applicant’s obesity and the development of hypertension. For these reasons, the Tribunal is satisfied beyond reasonable doubt that there is no causal connection between the applicant’s obesity and operational service during the relevant period, and that the hypothesis cannot be sustained. Therefore, the Tribunal finds that the fourth step from Deledio is not satisfied, and the claim does not succeed.
49. The Tribunal takes into account the beneficial nature of the Act, the effect of the passage of time and the deficiency in official records (s 119(1)(h) of the Act). In Re Sharkey and Repatriation Commission (1988) 15 ALD 782 the Tribunal noted that s 119(1(h) cannot be used to provide evidence of facts if none exists. In the matter before it the Tribunal is satisfied, on all the material presented, that s 119(1)(h) does not assist the applicant such as to enable the Tribunal to find in his favour.
DECISION
50. The Tribunal affirms the decision under review.
I certify that the fifty [50] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 23 May 2005
30 June 2005
Date of decision: 9 August 2005
Counsel for applicant: Mr G. Chancellor
Solicitor for applicant: Williams WinterAdvocate for respondent: Ms J. McCulloch
Solicitor for respondent: Department of Veterans’ Affairs
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