Warfe and Repatriation Commission - [2001] AATA 264

DECISION AND REASONS FOR DECISION [2001] AATA 264

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/77

VETERANS' APPEALS DIVISION       )
           Re      PETER WARFE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal C P Webster, Senior Member

Date3 April 2001
PlaceCanberra

Decision      The Tribunal sets aside the decision under review and decides that hypertension was caused and that hyperlipaedaemia was aggravated by the applicant's service in Rwanda between 11 February 1995 and 23 August 1995.
  [Sgd C P Webster]
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - whether veteran's hypertension or hyperlipaedaemia caused by hazardous service - whether consumption of fatty foods or salt during service led to either hypertension or hyperlipaedaemia
LEGISLATION
Veterans' Entitlements Act 1986
AUTHORITIES
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

3 April 2001 C P Webster, Senior Member

Issues

Peter George Warfe (the "applicant") seeks review of a decision of the Repatriation Commission (the "Commission") of 5 February 1998 which was affirmed by the Veterans' Review Board on 15 November 1999 to refuse a claim by the applicant that hypertension and hyperlipaedaemia were caused by the applicant's service in the Australian Army.
The applicant alleges that his medical conditions were as a result of his service in Rwanda as part of the United Nations Assistance Mission from 11 February 1995 to 23 August 1995. It is agreed that this period service for the purposes of the Veterans' Entitlements Act 1986 (the "Act") and that subsections 120(2) and 120(3) of the Act apply. It is also agreed that the relevant Statement of Principles in respect of hypertension is Instrument No 83 of 1995 and that there is no Statement of Principles relating to hyperlipaedaemia.
Evidence
The applicant gave oral evidence. His evidence was as follows:
(a)That he is a qualified medical practitioner and for 27 years up to January 2000 he served as an officer in the Australian Army.
(b)That between 11 February 1995 and 23 August 1995 he served in Rwanda as the force medical officer and senior health adviser in the United Nations Administration.
(c)That during his service in Rwanda he was accommodated with United Nations Headquarters staff in a secure compound separate from the rest of the Australian contingent. He was supplied with rations by the United Nations and had to rely on European ration packs.
(d)That the salt content in the ration packs exceeded that recommended by the Australian National Health and Medical Research Council recommendation of 12 grams per day.
(e)That the ration packs and meals were prepared by a local cook who also added salt to all cooking and because the meals were bland and unappetising the applicant also added liberal quantities of salt and tomato sauce and soy sauce (both containing salt).
(f)That the applicant's daily salt intake whilst in Rwanda exceeded 30 grams per day for 7 months.
(g)That before his service in Rwanda the applicant was advised by his medical advisers that his lipids were elevated and that he should be on a low fat diet.
(h)That while the applicant was in Rwanda he had no access to low fat dairy products and that he could therefore not follow a low fat diet while in Rwanda. The ration packs provided to the applicant contained many high fat products and the local Rwandan food eaten by the applicant was also high in saturated fat.
(i)That during his last week of service in Rwanda the applicant was first advised that his blood pressure was elevated and that it should be monitored on his return to Australia.
(j)That upon his return to Australia the applicant had a medical examination in November 1995 and his blood pressure was elevated. He was told that his blood pressure should be monitored to see whether he had hypertension. In mid-1997 he was advised by his medical practitioner that his blood pressure was elevated that he was diagnosed as suffering hypertension. He was prescribed anti-hypertensive medication and referred to a cardiologist.
(k)In May 1997 the applicant was diagnosed by Dr Maureen O'Neill as suffering hyperlipaedaemia which had become unstable. At that time he was prescribed medication for hyperlipaedaemia at about the same time the applicant was prescribed medication for high blood pressure.
Under cross-examination the applicant agreed that he had high blood pressure readings prior to his service in Rwanda specifically in 1971 and in 1991. The applicant attributed these readings to the specific stresses that he was under at the times that these readings were taken.
Dr Deborah Hayes, a cardiologist, gave oral evidence on behalf of the applicant and her report of 7 September 2000 was tendered into evidence (Exhibit A1). Dr Hayes's opinion was that the applicant was diagnosed in 1997 as suffering hypertension after his return from Rwanda. Dr Hayes considered that factor 5(c) of Statement of Principles No 83 of 1995 was applicable.
She considered that hyperlipaedaemia was a disease being a persistent abnormality in the applicant's blood which increases his risk of vascular events in the future. She considered that the applicant's diet in Rwanda could have temporarily worsened the applicant's cholesterol reading.
Dr Hayes considered that the risk posed by the hyperlipaedaemia has been aggravated by the hypertension suffered by the applicant.
The respondent did not adduce oral evidence. In addition to the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the "T documents") a report of Dr John Carter, consultant Endocrinologist, dated 29 June 2000 was tendered (Exhibit R1). In that report Dr Carter stated that he did not consider hyperlipaedaemia to be an injury or disease which causes incapacity and did not consider that the applicant's service had caused or aggravated his hyperlipaedaemia.
The tribunal accepts the evidence of Dr Warfe as truthful and makes findings of fact in accordance with his evidence. The tribunal accepts the opinion of Dr Hayes that the applicant was diagnosed in 1997 as suffering hypertension. The tribunal therefore finds that Dr Warfe was diagnosed as suffering hypertension shortly after his return from Rwanda where he consumed an additional 12 grams per day of salt for a period of at least 6 months.
The law
The relevant law regarding the approach of the Tribunal is set out in the Full Federal Court decision of Repatriation Commission v Deledio (1998) 49 ALD 193.
The first stage is to determine whether the material points to a hypothesis connecting the injury or disease with the relevant service. In the present case there is a reasonable hypothesis connecting both hypertension and hyperlipaedaemia to the applicant's service.
If a Statement of Principles is in force the Tribunal must determine whether the "template" in the Statement of Principles is satisfied. In this case there is a Statement of Principles in respect of hypertension (No 83 of 1995) and the applicant satisfies factor 1(c) which sets out one of the minimum factors to be satisfied:
"(c)ingesting an additional 12 grams per day of salt for a continuous period of at least 6 months immediately before the accurate determination of hypertension."
In the present case the applicant satisfies the Statement of Principles as far as the condition of hypertension is concerned.
The Tribunal must now consider whether it is satisfied beyond reasonable doubt that the hypertension was not caused by the applicant's service in Rwanda. The Tribunal is not so satisfied so that the claim for hypertension must succeed.
In the case of the claim for hyperlipaedaemia there is no relevant Statement of Principles. The Tribunal must therefore consider whether a reasonable hypothesis has been established without the benefit of a Statement of Principles.
Dr Hayes considered that hyperlipaedaemia was a disease which would have been temporarily worsened by the applicant's service in Rwanda which required him to eat additional salt and fatty foods.
The Tribunal considers a reasonable hypothesis has been raised.
The Tribunal is not satisfied beyond reasonable doubt that the applicant did not suffer a disease, hyperlipaedaemia, arising from his service in Rwanda.
The Tribunal has two competing medical opinions namely a report of Dr Carter and a report and oral evidence of Dr Hayes. There is no reason to prefer the opinion of Dr Carter over the opinion of Dr Hayes or for otherwise dismissing the opinion of Dr Hayes.
Decision
The Tribunal sets aside the decision under review and decides that hypertension was caused and that hyperlipaedaemia was aggravated by the applicant's service in Rwanda between 11 February 1995 and 23 August 1995.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of C P Webster, Senior Member
Signed:         .....................................................................................
  Personal Assistant
Dates of Hearing  27 November 2000 and 31 January 2001
Date of Decision  3 April 2001
Counsel for the Applicant        Paul Crabb
Counsel for the Respondent    Stephen Modder