Potts and Repatriation Commission [2000] AATA 1019 (10 November 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1019

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº V99/1081

VETERANS' APPEALS DIVISION)

Re: MADGE POTTS

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member

Date: 10 November 2000

Place: Melbourne

Decision: For reasons given orally at the hearing, the decision under review is affirmed.

(sgd) H.E. Hallowes

Senior Member

VETERANS' AFFAIRS -- entitlement -- whether hypertension, hypercholesterolemia and ischaemic heart disease war-caused -- whether service contributed to a change in the applicant's diet -- whether applicant's hypertension accurately determined -- whether inability to obtain appropriate clinical management for hypertension

Administrative Appeals Tribunal Act 1975 ss.37, 43(2A)

Veterans' Entitlements Act 1986 s.9

Statement of Principles concerning Hypertension

Instrument Nº 84 of 1995

Statement of Principles concerning Ischaemic Heart Disease

Instrument Nº 141 of 1996, as amended by Instrument Nº 78 of 1997

Instrument Nº 38 of 1998

Repatriation Commission v Bendy (1989) 10 AAR 323

Brew v Repatriation Commission (1999) FCA 1246

Repatriation Commission v Wellington (1999) FCA 1552

REASONS FOR DECISION

10 November 2000 Mrs H.E. Hallowes, Senior Member

1. At the conclusion of the hearing in this matter the terms of the decision and the reasons therefore were stated orally. The parties' representatives were advised that a copy of the settled transcript of the reasons for decision would be furnished to them. However, the applicant's solicitor then made a request that the Tribunal furnish him with a statement in writing of the reasons of the Tribunal for its decision under subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").

2. The oral reasons for decision were transcribed by Auscript, the Commonwealth reporting service. The transcript of the oral reasons is furnished to the applicant's solicitor and to the respondent as the statement in writing of the reasons for the Tribunal's decision. The transcript is as follows.

3. This is an application for review of a decision of a delegate of the Repatriation Commission made on 23 July 1998, which was affirmed by the Veterans' Review Board ("VRB") on 16 August 1999, refusing the applicant's claim that her hypertension, hypercholesterolemia and ischaemic heart disease were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").

4. On 30 March 1998 the applicant had lodged a claim that her "heart problems" were war-caused because her hypertension arose out of her "rich diet on service leading to cholesterol". Her local medical officer, Dr L. Cukiermann, whose clinical notes were before the Tribunal, diagnosed hypertension 45 years, hypercholesterolemia and probable angina. In making his decision, the delegate of the Repatriation Commission advised that the medical names for the applicant's claimed condition are hypertension, hypercholesterolemia and ischaemic heart disease. The applicant's malignant melanoma of the skin of various sites, and bilateral sensorineural hearing loss are accepted as war-caused. The delegate of the Repatriation Commission also decided on 23 July 1998 that, in reassessing the applicant's accepted disabilities, the rate of her disability pension should be increased to 50 per cent of the general rate, with effect from 30 March 1998.

5. The Tribunal had before it the documents lodged pursuant to section 37 of the AAT Act ("the documents"), together with further material lodged by both parties at the hearing.

6. The applicant did not have operational service. The matter must therefore be decided to the Tribunal's reasonable satisfaction. The Statements of Principles ("SoPs") in effect on 23 July 1998, when the delegate of the Repatriation Commission determined the matter, are relevant to the issue as to whether factors exist connecting the applicant's diseases with her war service. Those SoPs were agreed to be Instrument Nº 84 of 1995 concerning Hypertension and Instrument Nº 141 of 1996, as amended by Instrument Nº 78 of 1997 and Instrument Nº 38 of 1998, concerning Ischaemic Heart Disease.

7. The documents include more recent SoPs applied by the VRB which revoked the SoPs now agreed as the ones applying by Mr G. Moore, of counsel, who appeared for the applicant at the hearing, and Mr E. Nyhoff, an advocate with the Department of Veterans' Affairs, who appeared for the Repatriation Commission. There is no SoPs with respect to hypercholesterolemia, a type of dyslipidaemia, which is referred to in one of the factors relied on by the applicant as relating her ischaemic heart disease to her war service.

8. The factors relied on are as follows. Factors 5(a) or (d) of Instrument Nº 141 of 1996:

5. The factors that must exist before it can be said that, on the balance of probabilities, ischaemic heart disease or death from ischaemic heart disease is connected with the circumstances of a person's relevant service are:

(a) the presence of hypertension before the clinical onset of ischaemic heart disease; or

. . .

(d) the presence of dyslipidaemia before the clinical onset of ischaemic heart disease.

Dyslipidaemia and hypertension are defined in that SoPs as:

"dyslipidaemia" generally means evidence of a persistently abnormal lipid profile after the accurate evaluation of serum lipids following a 12 hour overnight fast, and estimated on a minimum of two occasions as a:

(a) total serum cholesterol level greater than or equal to 5.5 mmol/L; or

(b) fasting serum triglyceride level greater than or equal to 2.0 mmol/L together with high density lipoprotein cholesterol level less than 0.9 mmol/L.

. . .

"hypertension" means:

(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or

(b) where treatment for hypertension is being administered.

attracting an ICD code in the range 401 to 405;

Turning to Instrument Nº 84 of 1995 concerning Hypertension, the applicant relied on factor 1(w):

1. Being of the view that, on the sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that hypertension and death from hypertension can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the Forces, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veterans' Entitlements Act 1986, that the factors that must exist before it can be said that, on the balance of probabilities, hypertension or death from hypertension is connected with the circumstances of that service, are:

. . .

(w) inability to obtain appropriate clinical management for hypertension.

Factor 1(w) only applies as follows:

3. The factors set out in paragraphs 1(u) to 1(w) apply only where:

(a) the person's hypertension was accurately determined prior to a period, or part of a period, of service to which the factor is related; and

(b) the relationship suggested between the hypertension and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), or 70(5)(d) of the Act.

Hypertension is also defined in this SoPs:

"accurate determination of hypertension" generally means the accurate measurement of blood pressure on a number of occasions. As stated in The Management of Hypertension: a consensus statement.

"hypertension" means:

(a) a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or

(b) where treatment for hypertension is being administered,

attracting an ICD code in the range 401 to 405.

Paragraph 9(1)(e) of the Act provides:

9(1) Subject to this section, 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:

. . .

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

9. Unfortunately, there is a paucity of material in the documents with respect to the applicant's medical records during service. They disclose that she was born on 15 August 1921. She served in the Royal Australian Air Force from 7 October 1942 until 19 November 1945, all service being as a telegraphist in Melbourne, apart from her final six months, when she served in Mildura. On medical examination prior to enlistment, her blood pressure on one reading was 155 over 90, when she weighed 135 pounds. She was 5 feet 4 inches tall. Prior to discharge, her blood pressure reading was 130 over 90, her weight had increased to 139 pounds. She had undergone tonsillectomy in December 1942, and a procedure for haemorrhoids in September 1945.

10. When providing information with respect to the applicant's claim, Dr Cukiermann advised that the applicant's dyslipidaemia was diagnosed in 1990, although it may have been the situation for a number of years. Hypertension was diagnosed in approximately 1953, the cause being idiopathic. Dr Cukiermann did not suggest that there was a relationship between the applicant's hypertension and her war service. The applicant told the Tribunal that she was not advised during war service that she was hypertensive, but was so advised and commenced treatment following pregnancy in 1949. Her children were born in the early 1950s. Her ischaemic heart disease was diagnosed in 1995.

11. The applicant gave evidence that following schooling, she went to a domestic college. As a child, she ate such things as steak and kidney pudding and mince, and a roast meal at the weekends, although meat did not feature in her diet as much as fresh fruit and vegetables. Her mother did not encourage sweets. She drank milk, and later tea and butter, "definitely", her father having been a farmer. The applicant said that she always liked food. She described herself as always having had a solid frame.

12. On enlistment the applicant was stationed at the Melbourne Showgrounds. The life of a telegraphist was sedentary, but she was involved in drills at the Showgrounds and she played some tennis when stationed at Mildura, which was more physical activity than she undertook both before and after war service. Sweets and drinks were available at a commercial canteen at the Showgrounds, and she said that she developed a taste for them, which has remained with her. She described the meals provided during service as hearty. On posting to Southern Area Headquarters in mid-1943, she rotated through three shifts -- morning, afternoon and night -- over a three-week period. Hot meals were provided where she was billeted, but, if she was rostered for the afternoon or evening shifts, she may miss meal times, and with other personnel, frequent a cafe on the way to work, enjoying the food, including sandwiches there available. It was during her six months posting to Mildura, at the end of her war service, that she particularly enjoyed the food, rationing not being a problem. She made omelettes for the boys on duty, also partaking herself.

13. After war service, the applicant returned to live with her parents, and reverted to the diet provided by her mother for the following three years, although she said that she would now go out and buy herself some chocolate at a shop opposite her work. She was married in 1948 and, being in charge of the kitchen, and her husband being a good provider, she was now able to indulge their pleasure in rich foods, including roasts, chops and cream sponges. Her weight increased, particularly in the early 1950s, after the birth of her children.

14. In light of her medical practitioner's advice, she has now changed her diet, but Mr Moore contended on her behalf that her liking for fatty foods was so "enhanced" by her war service, particularly as a result of the time she spent at Mildura, that her claimed diseases are war-caused, and that the chain of causation is not broken by the period of time the applicant spent with her parents before she was married, when her diet, apart from her sweet shop forays, returned to what it had been before war service.

15. In support of the applicant's contention, Mr Moore called Ms A. Wailes, consultant dietitian, to give evidence. Her report, dated 7 July 2000 was before the Tribunal. Ms Wailes told the Tribunal that she took a dietary history from the applicant. She reported with respect to high intake of saturated fat and cholesterol by an individual, which will produce the clinical condition of dyslipidaemia. She reported:

All we know for certain is that in a population with a characteristically high intake of saturated fat and cholesterol there is an increased incidence of both dyslipidaemia and cardiac and arterial disease.

16. Ms Wailes concluded that the applicant's diet histories show very high levels of saturated fats and dietary cholesterol. She noted the applicant's much higher levels of saturated fat and cholesterol during World War 2 and her post-war intake levels, which are reduced slightly, but which are higher than those pre-war. Ms Wailes went on to state that evidence exists that food preferences are set in early infancy, but they can be changed -- enhanced or diminished -- by other factors in one's social environment.

17. The Tribunal has some concerns about the figures obtained by Ms Wailes, and therefore the opinions she formed. It appears that the computer program used by her to determine the food content is based on current product, there being no figures for comparison with respect to foods the applicant may have eaten during World War 2. The weight of food intake, as recorded by Ms Wailes, varies in some instances. For example, "beef types - topside roast, baked, 1f" at lunch weighs in at 60 grams, compared to the same meal at dinner, 50 grams, and dinner during service at 42 grams.

18. Ms Wailes said in evidence that, by extrapolation of the six month Mildura diet figures related to her by the applicant, she formed the opinion that the applicant's ensuing diet had been determined by the applicant's diet at Mildura. She had only taken into account the applicant's diet in Mildura, not the applicant's diet in Melbourne, where butter was rationed, it being freely available on the applicant's evidence in Mildura. The applicant had estimated that she ate 4 ounces of butter a day, and that her intake of butter continued into the 1950s.

19. Ms Wailes did not take into account the meals the applicant had at the cafe in Melbourne, nor the chocolate she said she ate during war service and later. Rather, she focussed on animal fats in other foods. Ms Wailes did not consider the applicant's diet during the three year period after war service when the applicant lived with her parents, being of the opinion that the applicant's diet at Mildura enhanced her preference for fatty foods, such that her later intake of fat increased.

20. Ms Wailes estimated a pre-service food intake for the applicant of 2775 grams per week, during war service an intake of 2229 grams, and during the 1950s, (the Tribunal noting that that was during the applicant's child-bearing years) 3532 grams. Total fat figures for the same periods were 177.19 grams, 213.20 grams, and 206.17 grams, fats being estimated as 50.71 per cent pre-service, 61.08 per cent during war service, and 57.77 per cent post-service. Overall, the food intake recorded by Ms Wailes is remarkably similar before, during and after war service.

21. The Tribunal has some concerns about the variations that exist in Ms Wailes's figures, for example, the milk intake at breakfast before and after enlistment, table salt, which appears twice at dinner prior to enlistment, and other similar apparent discrepancies. The applicant had told Ms Wailes that she enjoyed cooking with cream, Ms Wailes adding, which the Tribunal considers significant, "which was typical at the time". Ms Wailes agreed that what we eat is a matter of personal preference, depending on what is available. The Tribunal is satisfied that the applicant preferred to eat cafe food rather than the canteen food available during war service in Melbourne. Ms Wailes agreed that women relate weight gain to the birth of their children. She conceded that she should have attached more importance to the applicant's three years post-service diet in forming her opinion.

22. Turning first to the applicant's hypertension, Mr Nyhoff did not concede that the applicant had hypertension prior to service, there being only one measurement recorded, the SoPs providing that generally, readings on a number of occasions are required for an accurate determination of hypertension. Mr Nyhoff also drew attention to the requirement with respect to factor 1(w), that the provisions of paragraph 9(1)(e) of the Act must be satisfied, that is, the contribution must be material, or aggravated by service.

23. The Tribunal is satisfied on the material before it that the applicant's hypertension is not war-caused. Whether or not she had hypertension on entry, her eligible war service did not aggravate her disease on the figures available. Nor did her war service contribute to her disease in a material degree. The Tribunal refers to Repatriation Commission v Bendy (1989) 10 AAR 323 at page 325. The applicant's war service was all in Melbourne, apart from a short period in Mildura. During war service she was treated in hospital on two occasions for other conditions. There is no suggestion that she reported any symptoms relating to raised blood pressure. The Tribunal has considered the remarks of the Full Federal Court in Brew v Repatriation Commission (1999) FCA 1246, decided 10 September 1999, with respect to whether the applicant was able to obtain appropriate clinical management of her hypertension during war service if she suffered that condition. She did not lack ability, power or capacity, and the lack of interest by medical practitioners in her blood pressure at entry and discharge suggest that, due to the prevailing medical standards, no action would, in any event, have been taken. The Tribunal also refers to Repatriation Commission v Wellington (1999) FCA 1552, decided 11 November 1999. The Tribunal is satisfied that under the SoPs concerning Hypertension, the material does not raise a connection between the applicant's hypertension and her service.

24. The applicant has evidence of a persisting abnormal lipid profile. However, the issue still remains, in considering SoPs Instrument Nº 141 of 1996, as amended, of a connection between the applicant's dyslipidaemia and war service. Dr N. Rosenbaum, in his report dated 2 March 1999, formed the view that it appeared the applicant's changed eating habits "at the time of entry into service", led to a lifelong tendency to obesity, a predisposing factor to an elevated cholesterol. Dr R. English reported in August 1998:

Proposition

All the evidence in the literature support the position that an individual's food patterns result from a wide range of factors that are complex and inter-related. Factors affecting dietary patterns and practices include physiological factors, food accessibility, food characteristics, environmental and psychological influences, food selection practices within the household, prestige value of foods, food experiences in the early years of life. The argument that the circumstance of service with exposure to service rations induced a food behavioural change to a diet higher in animal fats is supported by evidence linking food preferences to exposure to characteristics of foods, hedonistic characteristics intrinsic to many high fat foods, image of specific foods as comprising proper meals for men and that food selection of women is constrained by their partner's preferences.

Alternately the literature lists a large range of factors influencing food choices, that generally would not be associated with a period of serving in the armed forces or other dependency on institutional feeding. Of these, major factors include experiences in early life (prior to 16 years), which are among the strongest controlling factors in food preferences, alternative reinforcers available to the subject in post-service life (eg meat and milk rationing post-war service, medical/health advice re saturated fat diet), positive effect of deprivation of specific foods (eg low fat foods enjoyed pre-war), avoidance of certain foods associated with insecurity, illness or hardship, central influence of women on family food choices, culturally determined patterns of early life, and interactions with family and friends. One major point emphasised in the literature is that food likes and dislikes function differently in relation to impact on consumption with dislikes being more strongly associated with rejection and non-use of a food, than a food like is associated with consumption of that food.

On the basis of the above review and the universal agreement in the literature that many complex factors affect an individual's food patterns, it is considered speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a minimum period of 20 years, especially during a period when medical/health advice, changing food patterns in the community, and food availability in the market-place are contrary to these food consumption patterns. It is proposed that such a link can only be described as tenuous, and unsupported by a reasonable level of evidence. (emphasis added)

25. The Tribunal is satisfied that the submissions of the applicant that her war service changed her eating habits are no more than speculative. The period of war service Ms Wailes pointed to as being responsible for her food patterns in later life was a period of only six months. The relationship between her war service and present cholesterol level is tenuous. What the applicant put to the Tribunal is the opposite of what is frequently contended, the applicant contended that she ate too well during service, rather than that she had too narrow a diet such as bully beef, which is frequently relied on by other service personnel who have served overseas, who contend that diet has contributed to their disease, and that their disease is war-caused.

26. The applicant's evidence to this Tribunal and the VRB is that she exercised her own choice as to what she ate during war service, taking the opportunity to buy her own dinner on the majority of evenings. The Tribunal finds that her pattern of eating was not so well established during war service that she was unable to easily fit back into the pattern of her mother's cooking after war service. She did avail herself of the opportunity to purchase sweet things after war service, having now the money to do so. The Tribunal is satisfied that family and social factors pointed to the food she chose to prepare once she was married. She said that she always liked butter, and she now had the opportunity to prepare the foods she liked, but the Tribunal finds that that preference was not, on the balance of probabilities, attributable to her war service. Nor did it arise out of her war service. She did not gain weight during war service to the same extent as Mr Langton, (Re Langton and Repatriation Commission (AAT 13463, 19 November 1998). She did not develop and continue a diet high in animal fat as a result of her war service. On the balance of probabilities, the factors necessary to connect the applicant's ischaemic heart disease with her war service do not exist.

27. The applicant's war service is not the cause of her dyslipidaemia. Having not satisfied the SoPs concerning Hypertension, she does not satisfy factor 5(a) of Instrument Nº141 of 1996.

28. It is for these reasons that the decision under review will be affirmed.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

signed: Catherine Thomas

Personal Assistant

Date of Hearing: 09.11.00

Date of Decision: 10.11.00

Counsel for the Applicant: Mr G. Moore

Solicitor for the Applicant: Messrs De Marchi & Associates

Solicitor for the Respondent: Mr E. Nyhof, Departmental Advocate