Ovenden and Repatriation Commission [2000] AATA 80 (9 February 2000)

Last Updated: 14 April 2000

DECISION AND REASONS FOR DECISION [2000] AATA 80

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q97/964

VETERANS' APPEALS DIVISION )

Re BERNICE JUNE OVENDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss WJF Purcell (Senior Member) Captain ET Keane (Member) Dr DJ Cull (Member)

Date 9 February 2000

Place Brisbane

Decision The Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war-caused, with effect from 18 October 1995.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

VETERANS' AFFAIRS - veterans' entitlements - relevant Statement of Principles (SoP) - both current SoP and that existing at the time of death considered - salt intake - veteran's beliefs in necessity of salt was war-caused - salt intake related to hypertension - reasonable hypothesis satisfied

Veterans' Entitlements Act 1986 ss.8, 120, 120A

Statements of Principles No. 83 of 1995 and No. 25 of 1999

Keeley v Repatriation Commission [1999] FCA 1103

REASONS FOR DECISION

9 February 2000 Miss WJF Purcell (Senior Member) Captain ET Keane (Member) Dr DJ Cull (Member)

1. The applicant seeks review of a decision of the Repatriation Commission (the Commission) of 5 October 1995 that the death of her husband (the veteran) on 14 February 1992 was not war-caused within the meaning of section 8 of the Veterans' Entitlements Act 1986 (the Act). The decision was affirmed by the Veterans' Review Board (the VRB) on 24 July 1997.

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), and exhibits tendered by the parties. Mr O'Gorman was counsel for the applicant, who gave oral evidence and called Dr Goodwin, Physician, as a witness. Mr Smith represented the Commission and called Dr Kenardy, associate Professor of Psychology, as a witness.

3. The veteran served in the Australian Army from 6 October 1941 to 13 December 1945. He served outside Australia in the South West Pacific region for a total of 889 days, and rendered therefore, operational service. The standard of proof applicable is that of reasonable hypothesis in accordance with section 120 of the Act which, as far as is relevant for the purposes of this review provides:

"120 Standard of proof

(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.

Note: This subsection is affected by section 120A.

...

(2) 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:

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

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) 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.

Note: This subsection is affected by section 120A."

4. The veteran died on 14 February 1992 at 71 years of age. The cause of death, ascertained at post mortem on 15 February 1992, was described as "hypertensive heart disease". The applicant lodged her claim on 10 April 1995, and in accordance with section 120A of the Act the reasonableness of hypothesis is to be assessed by reference to the appropriate Repatriation Medical Authority Statement of Principles. Section 120A provides:

"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

(a) has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or

(b) has declared that it does not propose to make such a Statement of Principles.

(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.

Note: See subsection (4) about the application of this subsection.

(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:

(a) the kind of injury suffered by the person; or

(b) the kind of disease contracted by the person; or

(c) the kind of death met by the person;

as the case may be."

5. At the time of the Hearing, the Full Court of the Federal Court had not considered the question raised in Keeley v Repatriation Commission, namely whether the applicable Statement of Principle is that which prevailed at the time of the original determination, or a later Statement of Principles which was in effect at the time of the Tribunal Hearing. In this matter the Statement of Principles is that relating to hypertension and "death from hypertension". Statement of Principles No. 83 of 1995 (the 1995 SoP) was considered by the Commission in its decision of 5 October 1995. When the matter was heard in this Tribunal, Statement of Principles No. 25 of 1999 (the 1999 SoP) which is dated 25 February 1999, was in force. We indicated to the parties, at the commencement of the Hearing, that we would give consideration to the hypothesis propounded by the applicant, in accordance with both Statements of Principles.

6. The applicant contends that the veteran's service related salt habit satisfied Factor 1(c) of the 1995 SoP, and/or Factor 5(c) of the 1999 SoP.

7. The 1995 SoP, as far as is relevant for the purposes of this review, reads:

"1. ... the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting hypertension or death from hypertension with the circumstances of that service are:

...

(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; or

...

2. Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(x) must be related to any service rendered by a person.

...

4. ...

"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 OCD code in the range 401 to 405;"

8. The 1999 SoP, as far as is relevant for the purposes of this review, reads:

"Kind of injury, disease or death

2. (a) ...

(b) For the purposes of this Statement of Principles, "hypertension" means elevated blood pressure, evidence by:

(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) administration of antihypertensive therapy,

excluding temporary elevations in blood pressure from conditions such as acute renal failure, neurogenic hypertension, hypertension due to medications or hypertension associated with eclampsia or pre-eclampsia, attracting an ICD-9-CM code in the range 401 to 405.

...

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. ...

(c) ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least 6 months immediately before the accurate determination of hypertension; or

...

Other definitions

8. ...

"salt supplement" means salt added to food when cooking or eating, or salt contained in salt tablets;"

9. The Commission submits, that although it concedes that on the evidence, that the veteran consumed a sufficient quantity of salt post-war to satisfy Factor 1(c) of the 1995 SoP, and Factor 5(c) of the 1999 SoP; salt is a non-addictive food, and there is no evidence of the veteran's pre-war consumption, and thus no evidence that any extra salt consumption was sufficient to satisfy either of the Statements of Principles. In addition the circumstances of the veteran's service were such that they would not lead to a change in his salt preference.

10. The applicant gave evidence that when she met the veteran in late 1941 (when he was nearly 21 years of age) he had recently joined the armed forces. She recalls eating frequently at his mother and grandparents' home, and that the veteran's salt consumption was "normal". She said that after the War his habits changed, and his salt intake rose. It was noticeable in the early 1950's, when the children of the marriage were young. She said that she tried not to put the salt shaker on the table, as she considered the veteran was using too much salt, but he always asked for the salt shaker, and she complied with his request.

11. The applicant gave evidence also, that the children would comment on the fact that the veteran put salt on everything, even fruit, and that they could always be sure as to where the veteran had been seated at the dinner table because of the large amount of salt he had shaken over the edge of the plate, onto the table. She said that she would purchase a medium sized container of salt (say 400-500 grams) every 2-3 weeks, and that when she chided the veteran for eating too much salt he would say that he was given salt tablets in the Army, and that salt was "good for you". The applicant said that the veteran continued the same level of salt consumption throughout his life.

12. The applicant called Dr Goodwin, who gave evidence of his view that the veteran acquired a salt habit during his period of service, that the habit was life long and present immediately prior to 1952 when, in Dr Goodwin's view, significant hypertension was first noticed. Dr Grant, Senior Medical Officer, Department of Veterans' Affairs, reported [Exhibit A4] on 16 March 1998, that the veteran's medical records disclosed a blood pressure reading of 140/80 on 21 September 1952 and 26 November 1952. Dr Grant stated: "On neither occasion was hypertension mentioned as a diagnosis. This is understandable as these values are borderline in any case and would not have been considered to represent hypertension at the time".

13. We note that on 4 February 1987, when the veteran was admitted to Greenslopes Hospital for an operation for tibial osteotomy of the left knee the admitting doctor recorded his blood pressure reading as 160/100 [Exhibit R4] which we accept is an accurate determination of hypertension in accordance with the definition of hypertension in both of the relevant Statements of Principles.

14. The Commission called Dr Kenardy who gave evidence of his view that preferences for salt, following high-salt diets, are due to altered sensory experience with salt, and hedonic preference for that amount and concentration of salt and are not physiologically driven. Dr Kenardy said that on the basis of current research it is unlikely that salt is addictive. On the applicant's evidence, however, the veteran consumed consistently prodigious quantities of salt over a period of more than 40 years. Although we have some misgivings about her recollection of the actual quantities of salt the veteran consumed, hers is the only evidence on this topic and she was unshaken under cross-examination. We accept her sworn evidence as to the changes in the veteran's salt intake after the War, and the levels at which he continued to consume salt until his death in 1992.

15. We are satisfied on the evidence that the veteran's salt habit was related to his relevant service, and that he ingested at least 12 grams of salt or salt supplements per day. We respect Dr Kenardy's opinion that, on the basis of current research, it is unlikely that salt is addictive. However, on the evidence before us, it was apparent, because of factors such as a belief in the necessity for taking salt which was ingrained/imposed by his Army superiors during his period of eligible service, the veteran had acquired a lifetime, severe habit which continued throughout his life. We have accepted the blood pressure reading of 160/100 on 4 February 1987, as an accurate determination of hypertension, and we are satisfied on the evidence, that Factor 1(c) of Instrument No. 83 of 1995 exists and that a reasonable hypothesis has been raised connecting the veterans' death from hypertension with the circumstances of the veteran's relevant service. We are satisfied, on the evidence also, that Factor 5(c) of Instrument No. 25 of 1999 exists, and that a reasonable hypothesis has been raised connecting the veterans' death from hypertension with the circumstances of the veteran's relevant service.

16. We are satisfied on the evidence that the veteran's death was war-caused. The applicant did not apply to the Veterans' Review Board until 18 April 1996; the earliest dated of effect is 18 October 1995 therefore. The applicant is entitled to payment of pension, with effect from 18 October 1995.

17. For these reasons, the Tribunal sets aside the decision under review and substitutes a decision that the veteran's death was war-caused, with effect from 18 October 1995.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member), Captain ET Keane (Member) and Dr DJ Cull (Member)

Signed: .....................................................................................

Personal Assistant

Date/s of Hearing 12 November 1999

Date of Decision 9 February 2000

Counsel for the Applicant Mr O'Gorman

Solicitor for Applicant Gilshenan & Luton

Counsel for the Respondent Mr Smith

Solicitor for the Respondent DVA