Bailey and Repatriation Commission - [2002] AATA 444

DECISION AND REASONS FOR DECISION [2002] AATA 444

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/805

GENERAL ADMINISTRATIVE DIVISION          )
           Re      Mostyn Clive Bailey
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date 12 June 2002
Place Sydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines: (a) that the Applicant's diseases of dyslipidaemia and ischaemic heart disease are war-caused; (b) affirms the part of the decision that malignant neoplasm of the prostate is not a war-caused disability; and (c) remits the matter to the Respondent for assessment and finalisation of the Applicant's disability pension.

[sgd] Dr J D Campbell Member

Administrative
Appeals
Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/805

VETERANS' APPEALS DIVISION )

ReMOSTYN CLIVE BAILEY
Applicant

AndREPATRIATION COMMISSION
Respondent

ORDER TO AMEND WRITTEN DECISION
TribunalDr J D Campbell, Member
Date15 July 2002
PlaceSydney
WHEREAS:

the Tribunal released a written decision in this matter, dated 12 June 2002; and
it has come to the Tribunal's attention that there was an error in the decision;
the Tribunal wishes to amend the written decision so as to rectify the error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act 1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the decision reads as follows:
DivisionVeterans' Appeals Division

Decision The Tribunal determines that the decision under review be varied in so far as to incorporate the following determinations: (a) that that part of the decision of 15 July 1999 relating to the conditions of dyslipidaemia and ischaemic heart disease be set aside and in substitution thereof determines that the Applicant's diseases of dyslipidaemia and ischaemic heart disease are war-caused; (b) affirms that the Applicant's malignant neoplasm of the prostate is not war-caused; (c) that the Applicant's symptoms of constipation arise as a consequence of medication taken for his ischaemic heart disease and as such in this matter does not constitute a disease as defined in section 5(D) of the Veterans' Entitlements Act 1986 (refer paragraph 53 of the decision); (d) remits the matter to the Respondent for assessment and finalisation of the Applicant's disability pension with date of effect being 19 April 1999 (refer paragraph 53 of the decision).

[SGD] Dr J D Campbell
Member

CATCHWORDS
Veterans' Entitlements - veterans' disabilities - carcinoma of prostate – dyslipidaemia - ischaemic heart disease - constipation - issue of causation - issue of pre-war, war and post-war consumption of animal fat consumption by at least 40 per cent - issue of increase to 70 grams per day of animal fat consumption for at least 20 years

Veterans' Entitlements Act 1986 - sections 5D, 7(1), 9, 13, 22(4), 119(1)(h), 120A, 120B, 196B
Statement of Principles concerning Impotence No. 97 of 1996
Statement of Principles concerning Ischaemic Heart Disease No.38 of 1999
Statement of Principles concerning Malignant Neoplasm of the Prostate No.84 of 1999

Repatriation Commission v Gorton (2001) 110 FCR 321
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Dell v Repatriation Commission (1986) 9 ALD 596
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Webb (1998) 51 ALD 575
Gorton v Repatriation Commission (2001) 63 ALD 723
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

DR J D Campbell, Member

In this matter, Mr Mostyn Clive Bailey ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 15 July 1999 which rejected the Applicant's claim that the conditions of malignant neoplasm of the prostate, ischaemic heart disease and constipation were war-caused disabilities. This decision had been reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 28 January 2000.
A hearing was held before the Tribunal on 13 December 2001 at which the Applicant was represented by Ms Buchanan and Ms Toliopoulos, solicitors from the Legal Aid Commission. The Respondent was represented by Ms Trina McConnell and Mr Modder, solicitors from the Department of Veterans' Affairs. The Applicant, Dr Volker and Mr Friderich presented oral evidence to the Tribunal. The matter was adjourned to allow further consideration of the issues.
On 26 February 2002, the Tribunal with the concurrence of the parties, held a hearing at which both the consultant dietitians were afforded the opportunity to restate their opinions, which were subject to comments by each other and to questions from the Tribunal and the solicitors representing the parties. Written submissions were received by the Tribunal from the solicitors representing the Applicant on 18 March 2002, from the Respondent's solicitors on 5 April 2002 and from the Applicant in reply on 9 April 2002.
The following material was placed into evidence before the Tribunal:
Exhibit        Description Date
T1-T19 pp.1-124 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Applicant's Statement of Facts and Contentions          8 March 2001
A2      Statement of Applicant      21 August 2000
A3      Correspondence from Applicant to Ms Buchanan        2 April 2001
A4      Statement of Mr D Lyons   20 March 2001
A5      Report from Dr Volker        31 January 2001
A6      Report from Dr Volker        7 April 2001
A7      Report from Dr Volker        20 February 2002
A8      Statement of Applicant      25 February 2002
R1      Respondent's Statement of Facts and Contentions     10 December 2000
R2      Report from Mr Friderich    20 December 2000
R3      Report from Mr Friderich    4 June 2001
R4      Report from Dr English      12 December 2001
R5      Report from Associate Professor Pirola   30 November 2000
R6      Report from Associate Professor Pirola   7 June 2001
R7      Report from Dr Darke         29 September 2000
R8      Report from Dr Darke         12 June 2001
R9      Report from Dr Schultz      7 September 2000
R10     Clinical Notes of Dr Singh re Applicant
R11     Copy of letter from Respondent to Dr Darke      1 May 2001
R12     Report of Dr English          August 1998
R13     Report of Dr English          7 January 2002
R14     Report of Dr Kelley 12 February 2002
R15     Report of Mr Friderich        6 February 2002
R16     Advisory Council on Nutritional Table (1 page) 1938
issues
The relevant issues in this matter are:

whether the Applicant suffers from malignant neoplasm of the prostate and if so whether this is a war-caused disability;
whether the Applicant suffers from impotence and whether this medical condition in the Applicant's case falls within the jurisdiction of the Tribunal, and if so whether it is a war-caused disability;
whether the Applicant suffers from ischaemic heart disease and if so whether this condition is a war-caused disability;
whether the Applicant suffers from constipation and whether this is a disease or injury pursuant to section 5D of the Veterans' Entitlements Act 1986, and if so whether this is a war-caused disability; and
what is the appropriate assessment of the Applicant's accepted war-caused disabilities.

legislation

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 5D, 7(1), 9, 13, 22(4), 119 (1)(h), 120A, 120B, 196B.
background
The Applicant lodged a claim (T5) with the Respondent on 12 April 1999, in which he claimed that the following disabilities were war-caused:
CONDITION MEDICAL DIAGNOSIS
1. Ringing in the ears         Tinnitus
2. Heart Problems    Severe coronary artery disease
3. Skin Problems     Solar damage to both arms and legs
4. Prostate problems and effects of surgery      Adenocarcinoma of prostate and bilateral orchidectomy
5. Bowel Problems   Probable mild diverticulosis and constipation caused by cardiac medication
6. Stress       Post-Traumatic Stress Disorder

The Applicant also lodged a claim that his accepted disability of hearing loss had deteriorated.
In further material accompanying the lodgement, Dr Bellamy, a consultant cardiologist details the Applicant's need for a coronary angiogram in a report dated 16 September 1997 (T6, p35), which is later stated as indicating three vessel coronary artery disease (T6, p45). Further documentation reveals that the Applicant has had squamous cell carcinoma removed from his left leg on three occasions in 1994 (two occasions) and 1996 and actinic keratosis affecting the skin of his right shoulder (T6, pp37,38). Similarly the documentation details that the Applicant has been treated with lipid lowering drugs since the condition of dyslipidaemia was diagnosed in 1990 (T6, p43). Documentation also showed that the Applicant underwent bilateral orchidectomy as part of his treatment program for his prostate carcinoma and that this treatment had resulted in impotence (T6, p59).
On 31 May 1999, Dr Murray, a consultant psychiatrist confirmed a diagnosis of post-traumatic stress disorder, following his consultation with the Applicant on various occasions, and assessed the Applicant as having a 21 point assessment under the Guide to the Assessment of Rates of Veterans' Pensions ("GARP") Tables for this condition (T9).
On 15 July 1999, the Respondent accepted the following conditions as war-caused:
(i) bilateral tinnitus
(ii) post-traumatic stress disorder
(iii) chronic solar skin damage

and assessed the Applicant's impairment rating for each of the following accepted disabilities as follows:

post-traumatic stress disorder      21 points
sensori neural deafness                31 points
bilateral tinnitus   5 points
chronic solar skin damage               0 points

The Respondent refused the Applicant's claim for the following conditions:
(i) ischaemic heart disease
(ii) malignant neoplasm of the prostate
(iii) constipation.
The Respondent did not accept the Applicant's lifestyle self-assessment of 5, instead determining the Applicant's lifestyle rating at 4 and that this with a combined impairment rating of 50 points (to achieve the combined impairment rating, individual ratings are not added arithmetically but are combined using the Combined Values Chart in GARP), resulted in a pension assessment at 90 per cent of the general rate (T12), with the date of the Respondent's decision being 15 July 1999.
The Applicant then requested a review of the Respondent's decision on 19 October 1999. The VRB affirmed the Respondent's decision on 28 January 2000.
applicant's evidence
The Applicant told the Tribunal that he was born on 8 January 1919, and that he lived with his parents and went to school at Coffs Harbour until nearly the age of 14. On leaving school, the Applicant joined his father and a friend, to undertake work, his father having had his Public works job reduced to 33 hours a week because of the depression. Together, prior to leaving school and up to the age of 18, the Applicant stated that they were involved in clearing 15 acres of forestry land and establishing a banana plantation on the cleared land. This, the Applicant stated involved walking over the mountain and back each day, a distance of four miles each way, clearing the land, digging and developing the plantation.
A fall in the price of bananas resulted in the eventual sale of the plantation. The Applicant then commenced working in the petrol industry, which involved him loading and unloading petrol drums. In August 1941, the Applicant stated, he was called up for service in the Royal Australian Air Force ("RAAF"). He served as a gunner in New Guinea and in Canberra, before his discharge in early 1946.
After his service with the RAAF, the Applicant stated that he returned to live at home for a year to 18 months undertaking cutting and other odd jobs. He then went to work in the oil industry with his uncle, his job entailing unloading of all consumables for his uncle that came up to Coffs Harbour by train or by boat. After a period, the Applicant stated that he worked for Caltex directly instead of for his uncle. His first few years with Caltex were spent working at a depot in Newcastle, then at Tamworth, Mendooran and Corinda. In 1954, the Applicant stated, he was promoted to the position of a road sales representative, a position he occupied until 1980. During his period of being a sales representative, between 1954 and 1958, the Applicant stated that he stayed in hotels and he ate hotel meals. In 1958 the Applicant got married and thereafter his travelling was reduced by about half, with a corresponding reduction in use of hotels and consumption of hotel meals. In 1980 he was transferred to Newcastle at his request, where he remained until his retirement in 1982.
In matters pertaining to his diet, the Applicant narrated the following evidence:

His father owned an adjacent block of land and he maintained a garden all year with fruit, grapes and vegetables, which he enjoyed up to his enlistment in 1941. The Applicant's father also reared poultry (12) and was a keen fisherman. The Applicant and his family consumed chicken and fish regularly, with the various other meats. The father also kept two milking cows. Milk, cream and butter were available for the family.
During his war service, meals were mostly fried in dripping oil or lard, were not over generous in quantity, and all were eaten, whether hot or cold meals of stews, corned beef, tinned ham or mutton. In addition, the Applicant stated he consumed bread and cheese with jam regularly both in New Guinea and Canberra, and in the latter situation regularly consumed Indonesian food for a period of a few months.
After the war, the Applicant continued to eat all that was put before him, as he had done during his service until he became aware of adverse effects of animal fats and dairy products as a result of Health Department's publicity.
His pre-war diet was as detailed in Appendix 2 of Dr Volker's report dated 31 January 2001 (Exhibit A5).
His wartime diet was consistent with that detailed by Dr Volker in Appendix 5 of her report dated 31 January 2001 (Exhibit A5).
His post-war diet in the early years was prepared by his mother until he became a sales representative in 1954. Thereafter his main dietary inputs came from hotel meals until 1958, when he got married and hotel meals were taken on average every alternate week. His wife grilled most of his meals unlike the overly fatty meals he had eaten in hotels. The Applicant confirmed the typical post-service meal pattern for the period 1946 - 1958 as nominated by Dr Volker in her report of 31 January 2001 (Appendix 8, Exhibit A5).

In response to questions in cross-examination, the Applicant detailed the following:

His pre-war diet was prepared by his mother and the meals included stews, plenty of vegetables, fish, chicken (on Sundays), a glass or two of milk every day, cream, and butter.
His pre-war work with his uncle was fairly physical work and he liked his food prior to service. He was eating lots of bread prior to service. His mother's cooking in those days either involved frying or boiling the food. Sweets were served mainly on the weekends.
His wartime diet was fattier as exampled by the bully beef, but that diet improved once he became a sergeant. The Applicant commenced to drink beer while he was posted at Parkes.
The physical work before service was a lot more demanding than his physical work during service.

In a further statement, the Applicant detailed the nature of his pre-war work with his uncle from 1939 until his enlistment in 1941. The Applicant detailed one day in which he and an offsider drove from Dorrigo to Coffs Harbour, loaded the 44 gallon drums from the rail wagon to the truck and returned to Dorrigo, and spent the next two days delivering petrol to customers. The other two and a half days of the week were spent working in his uncle's cordial factory (Exhibit A8).
dr volker
Dr Volker, a consultant dietitian, presented her opinion in a report dated 31 January 2001 (Exhibit A5) in which she detailed the Applicant's dietary history during three phases of his life, namely:
(a) Meal pattern before war service (1933 - 1941)
Dr Volker detailed the types of food which the Applicant could recall eating and detailed a typical meal pattern at Appendix 2 of her report. In analysing the total fat and saturated fat content of the diet, Dr Volker nominated the following considerations utilised in making such analysis:
·     Rationing started at the beginning of the war and coupons were used for butter, tea and sugar. Mr Bailey's family made their own butter and used bush honey. All the cream was used to make butter.
·     Meat was in short supply.
·     Bush honey was collected and used as a sugar substitute.
·     Chickens were used to supply eggs and eaten occasionally for Christmas and birthdays.
·     The Applicant's father fished for recreational purposes and his uncle was a fisherman, so family ate fish every weekend.
·     Drip safe and ice chest was used by the family until after the war.
·     Family vegetable garden, fruit trees and milk from the cow eased the pressure of feeding the large family.
·     Mrs Bailey senior was reputed to be an excellent cook, however, the family rarely ate cake.
Dr Volker also described the Applicant's pre-enlistment work as hard physical work.

(b) Meal pattern during war service (1941 - 1946)
Dr Volker again detailed the types of food which the Applicant could recall eating and detailed a typical meal pattern at Appendix 5 of her report. In analysing the total fat and saturated animal fat content of the diet, Dr Volker nominated the following considerations utilised in making such an analysis:
Mr Bailey always ate all the food on his plate as he was never sure if he would like the next meal or if there would be enough food available.

·     Fat on meat was considered tasty and a good source of energy (Schauer Cookery Book).
·     It is possible that, in New Guinea, Mr Bailey ate to compensate for the stressful events in New Guinea. He started to drink and smoke there. His active service was about six months because the Pilot he was attached to had finished his tour of duty, so they were all returned to Australia.
·     The cold Canberra winters would have increased Mr Bailey's appetite.

(c) Meal pattern during post-war service (1946 - 1973)
Dr Volker detailed the types of food recalled by the Applicant as being eaten between 1946 and 1958 (when the Applicant was single and from 1954 when working for Caltex, boarding and eating in hotels) and 1958 and 1973 (when the Applicant was travelling half his working time, at which time he boarded and ate in hotels, with the remainder of his meals prepared by his wife). A typical meal pattern was analysed and the following matters were taken into consideration (Appendix 8):

· During the immediate post-war period, Mr Bailey continued to eat, as he had become accustomed in the RAAF.
· After Mr Bailey's marriage in 1958, his eating pattern at home changed. Mrs Bailey did not like fat or fried foods. All the foods were grilled. Mrs Bailey's low fat preferences can be ascertained from the photographs in Appendix 7. Her facial features do not vary from her wedding photograph (1958) to a later photograph after the birth of two of her three children (1964).

·Mr Bailey's weight increased by two kilograms from discharge to marriage and then remained static under the influence of Mrs Bailey's lower fat meal patterns, however bread, butter and cheese continued to be consumed at the end of each meal.

Dr Volker summarised her analysis and detailed her conclusions as follows:
"Summary:
This report details Mr MC Bailey's energy intake, total fat intake and saturated fat intake at three time intervals; before, during and after service in RAAF during World War II. Estimated intakes of energy, total fat and saturated fat/day are summarised in the following table:

Time Interval     Energy Intake    Total Fat Intake Saturated Fat Intake
Before Service (1933-1941)       8.6 MJ 76 g    39 g
During Service (1941-1946)      12.7 MJ 186 g    99 g
After Service (1) (1946-1958) (2) (1958-1973)    10.3 MJ 8.8 MJ 140 g 106 g    71 g 55 g

Conclusions:
1. Was Mr Bailey's animal fat consumption increased during his war service and was this increase maintained post-service as per the requirements of the Statement of Principles concerning malignant neoplasm of the prostate? This states that "increasing animal fat consumption by at least 40% and to at least 70 grams/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate".
Yes, I estimate that Mr Bailey consumed an average of 75g/d saturated fat (animal fat) for approximately 27 years after war service. During the early years before his marriage (1946-1958), Mr Bailey either lived in the bush or boarded in hotels or boarding houses, where he continued his consumption of meat with fat, fried or stewed and bread, butter and cheese to complete the meal. After Mr Bailey's marriage, (1958-1973) his wife's low fat preferences had little effect on Mr Bailey's food intake because he spent 3 weeks out of 6 on the road for Caltex, living in hotels, eating the fried fare which was commonly served. He continued his consumption of bread, butter and cheese to end his meals.
2. Was Mr Bailey's increase in service and/or post service consumption of animal fats causally related to the circumstances of Mr Bailey's war service, food given on service, habits formed during service, psychiatric condition or otherwise?
Yes, I estimate that Mr Bailey consumed an average of 39 g/d saturated fat (animal fat) before service and this increased by over 250% to 99 g/d during war service. Mr Bailey's intake before service appeared to be relatively low in fat because of the difficulty in obtaining meat, the few "high fat" items available because of the Depression. The large number of siblings in the family and the ready availability of fruit, vegetables and fish, through family endeavours. The increase in saturated fat consumption appears to be due to the lower level of fruit, vegetables and fish in Mr Bailey's service diet, accompanied by the ready availability of foods high in animal fat such as meats, eggs, butter and cheese combined with eating everything that was served on the plate, retaining all visible fat as being tasty and providing energy. The habits formed during service were retained by Mr Bailey as a mode of eating away from home. Mr Bailey after service was a non-smoker and a light drinker, food remained his great indulgence, particularly his bread, butter and cheese.
3 & 4. Was Mr Bailey's dyslipidaemia caused by service and/or post service diet or any other circumstance related to his war service? Was there any other matter relevant?
Yes, Mr Bailey's dyslipidaemia was caused by his service and post service diet. His pre-service total fat and saturated fat intake (76 g and 39g/d) increased to (186 g and 99g/d) respectively. This mode of eating continued after service, before his marriage (140 g and 71g/d) and after marriage (106 g and 55g/d). This mode was influenced by the food habits formed in the service and the foods available in hotels and boarding houses. Mr Bailey did not have access to these foods before enlisting.
Mr Bailey is on medication to lower cholesterol, blood pressure and to ameliorate heart disease. His dietary intake of high fat foods and saturated fats during war service and post service would have contributed to his dyslipidaemia considerably.
From this evidence it is reasonable to assume that both the high fat type of food and the habit of finishing a meal with bread, butter and cheese introduced to Mr Bailey during service, did influence his meal preferences and food consumption after the war. Mr Bailey, as a young man, had had limited experience outside the family group, having grown up in a small country town, the second eldest of 10 children. He left school at 14 years of age to work on the family banana plantation, when it was sold; he loaded drums for his uncle. So it is reasonable to assume that he was a young, impressionable country boy, from a large family with a narrow range of core foods in his diet. Thus it seems reasonable to hypothesise that Mr Bailey's consumption of animal fat during war service and after war service ultimately contributed to his development of dyslipidaemia and prostatic cancer."

In a further report dated 7 April 2001 (Exhibit A6) Dr Volker asserted the following:

The food frequency approach to the recalled dietary intake is one she uses in her research, and the strength of the food frequency method (FFQ) is that it is designed to estimate a subject's usual intake of food. The weakness of the method is that it tends to overestimate intake.
Her dietary history of the Applicant did not include a cooked breakfast, morning tea, ice-cream, cream, beer or large amounts of butter.

In oral evidence before the Tribunal, Dr Volker detailed the following opinions:

The Applicant's dyslipidaemia was a consequence of high animal fat intake and an exercise level best described as sedentary. Such a diet was consumed by the Applicant during his war service and in his post-war years.
There are various strengths and weaknesses in the various methods commonly used in gaining and assessing dietary data.
The methodology used by Mr Friderich - diet recall - is not as robust as the methodology used by herself (Food Frequency Questionnaire) and that the computer program used by him for analysis (food works program) lists only current food value.
She has had more experience, and Mr Friderich does not validate his work.
The Applicant's war service was instrumental in the Applicant developing a habit of eating bread, butter and cheese to conclude a meal.

In response to questions in cross-examination, Dr Volker made the following observations:

She agreed that Dr English in her report (Exhibit R12) stated that butter was rationed from 1942 and meat from 1944.
If the Applicant was drinking two glasses of milk per day pre-war, this would have increased the fat intake by some 16 grams of fat per day, which would have been mainly animal fat (12 grams per day), which would increase his total fat consumption pre-war to 92 grams per day and energy level intake of 9.2 megajoules per day.
The Applicant had a stressful war experience and stress can cause people to eat more or eat less, with the Applicant preferring to eat bread, butter (when available), cheese and jam in New Guinea and thereafter, and this led him to put on weight during his war service.
The Applicant's energy intake pre-service was 9.2 megajoules per day, which is consistent with what would be expected of a man of the Applicant's height, weight and age and an activity factor of 1.4 (Schofield equation methodology).
The Applicant's service food history in which he experienced the flavours of higher fat foods created a habit in which the Applicant consumed high fat foods, particularly cheese over a post-war period of 20 to 30 years.
The Applicant was not undernourished at the time he enlisted in 1941 when his Body Mass Index was 24.
The Applicant's pre-war work activity has to be assessed against 1.3 (sedentary), 1.4 (light), 1.5 (light to moderate activity) and 1.6 (heavy) and if his work was considered heavy (1.6), his energy consumption requirements would necessarily be higher.

mr friderich

Mr Friderich, a consultant dietitian, in his report of 20 December 2000 (Exhibit R2), concluded that the Applicant's Body Mass Index indicated that he has always been within or just above the healthy weight range and that his analysis of the Applicant's pre-war, service and post-service diet history (methodology - dietary recall) revealed the following:
           Pre-service    Service          Post-service (1946-51)
Energy (kJ)    19526 11626 18565
Total Fat (g) 271     154     257
Animal Fat (g)          246     143     241

As a result of his analysis, Mr Friderich came to the following conclusions:
"The diet prior to military service was high in animal fat based on the history provided by Mr Bailey. This high fat intake was required to provide sufficient energy to allow Mr Bailey to continue his extremely heavy workload. The reported intake however, does appear to be an over estimation. This may be due to the difficulty of accurately recalling the diet from over 60 years ago.
During military service, Mr Bailey had limited choice regarding the diet provided.
However, his diet whilst stationed in Canberra, did not vary significantly from the diet at home. After military service he followed his pre-service diet for a period of 5 years.
The weight gain Mr Bailey experienced during enlistment would most likely be due to the decrease in physical activity. Had Mr Bailey continued his usual high energy high fat diet whilst enlisted, his weight would have increased to a greater extent.
In my opinion, it appears that the animal fat content reported in the diet at home immediately prior to and for 5 years after service, was higher in animal fat than that provided during service. Therefore, it does not meet the Statement of Principles concerning Malignant Neoplasm of the Prostate 5(c). Based on the total evidence available, there does not appear to have been an increase in animal fat consumption by at least 40%… for at least 25 years before the clinical onset of malignant neoplasm of the prostate."
In a further report dated 4 June 2001 (Exhibit R3), Mr Friderich observed that the diets reported in their analyses by both Dr Volker and himself varied significantly. Mr Friderich again analysed the dietary histories as related to him by the Applicant, which he detailed:
           Pre-service    Service          Post-service (1946-51)       Post-service (1958-70)
Energy (kJ)    14342 11626 15321 12105
Total Fat (g) 172     154     161     109
Animal Fat (g)          163     143     152     102

Mr Friderich also contended that:
· Photographs may indicate a change in weight, which may represent a change in physical activity and as such is not necessarily a reflection of dietary changes, let alone signifying an increase in animal fat consumption.
In oral evidence before the Tribunal, Mr Friderich detailed his understanding of the term "animal fat" to include fat from sources of animal origin, including chicken and fish but not eggs and that it contains three components, namely saturated, non saturated and polyunsaturated fats from animal sources. Further, Mr Friderich explained the nature and use of the Schofield Equation from which an individual's energy requirements can be calculated to maintain weight in the circumstances of his height, weight, age and physical activity.
Mr Friderich made the following observations:
·     Dr Volker's assessment of the Applicant's energy requirements pre-war is not an accurate assessment in that using the Schofield Equation there would be a 6000 kJ per day deficit in the Applicant's estimated energy requirements resulting in a weight loss of 1 to 1.5 kilograms per week.
·     Dr Volker's assessment of the Applicant's pre-war saturated fat intake at 51 grams per day is significantly below that of the average daily consumption of animal fat at that time in metropolitan Australia which Dr English reported at 122 grams per day, with a range from 114 to 130 grams of animal fat per day for an adult male.
·     The Applicant's Body Mass Index in 1941 was 24, and that to maintain this index, the Applicant's energy intake would have to equal his energy output, which in turn depended on his level of physical activity which Mr Friderich considered to be 2.1.
·     The Applicant's Body Mass Index in 1946 was 26 and in Mr Friderich's opinion this was consistent with a lower level of physical activity during the Applicant's service, particularly the two years in Canberra.
·     The Applicant's pre-war living and work activities would rank 2.1 on the activity factor scale, and that if the Applicant had the energy input as calculated by Dr Volker, he would have lost a significant amount of weight.
·     The Applicant did not increase his animal fat daily intake as a result of his service, and that in his calculations, the Applicant's animal fat consumption decreased to 143 grams per day during service compared to a pre-service intake of 163 grams per day.
In response to questions in cross-examination Mr Friderich made the following observation:
· The Applicant's increase in weight during service was associated with a decrease in physical activity and not with an increase in dietary input, as his dietary histories indicated a reduction in food intake, and that there was not an increase in animal fat consumption during service.

dr english

In her report titled "Animal fat in the Australian diet including the Armed Services' rations in World War 2" dated August 1998 (Exhibit R12) Dr English made the following observations:
(a) The total fat level of the civilian diet before World War 2 for an adult male was high (range 130-149 grams per head per day). The level of animal fat consumption was estimated to be high (114-130 grams per head per day). The evidence for these two propositions is based on the results of a national household dietary survey conducted in the metropolitan cities in 1936-1938. The frequency distribution of total daily intake of fat for adult males in Australia in 1936-1938 is to be found at Exhibit R16.
(b) Independent analysis of the civilian and service ration diets indicate, with one exception, that the service rations operating in the Second World War did not contain a higher level of animal fat than the civilian diet for an adult male as reported in the 1944 National Household Survey. For service rations operating within Australia the animal fat content ranged from 78.5 to 88.8 per cent of the civilian diet. The service rations in the Middle East, and in New Guinea and Pacific Islands approximated the animal fat level of the civilian diet (96.2 and 92.8 per cent respectively), with the amended ration for New Guinea and the Pacific Islands exceeding that of the civilian diet by 8 per cent. The amended New Guinea and Pacific Islands Ration Scale was issued between February 1944 and 24 October 1945.
(c) Comparative Table of animal fat contents of civilian and service diets during World War 2:
Civilian diet Ration scale diets Eastern and North Command Temperate Australia Tropical Australia Middle East 1942-43 New Guinea & Pacific Islands 1944-45 New Guinea & Pacific Island (amended) 122.0g animal fat/head/day 95.8g animal fat/head/day 100.5g animal fat/head/day 108.4g animal fat/head/day 117.4g animal fat/head/day 113.2g animal fat/head/day 131.8g animal fat/head/day

(d) That overall there has been little change in the amount of total fat available for consumption in Australia from a level of 133.5 grams/head/day in 1938-1939 to 117.5 grams/head/day in 1993-1994, but there has been a major change in animal fat available for consumption, falling from an estimate of 116.9 grams/head/day in 1938-1939 to 56.0 grams/head/day in 1993-1994. Further, the average daily intake of animal fat for adult men has decreased from an estimate of 120.0 grams in 1944 to 63.4 grams in 1983 and 56.8 grams in 1995-1996.
(e) That evidence from the literature clearly shows the questionable validity of recall of past diets when compared with previously recorded data.
(f) All the evidence in the literature supports the position that an individual's food pattern result from a wide range of factors that are complex and inter-related.

In a report dated 12 December 2001 (Exhibit R4), Dr English having examined the reports of Dr Volker (Exhibit A5, A6) and Mr Friderich (Exhibit R2, R3,) and the statement and correspondence of and from the Applicant dated 21 August 2000 and 2 April 2001 respectively, stated that as the two dietitians had employed different methods for collecting data, her analyses as to the validity of such data is based mainly on assessing the veteran's energy intake from the reported daily eating pattern against an estimate of the veteran's physiological requirements based on the veteran's Body Mass Ratio for age ("the BMR") and a factor for the veteran's activity level. Further, Dr English checked to see that foods not available at the time were not included, and assessed the effect if any, of the manner of administration of the questionnaire.
Dr English, by way of example estimated the Applicant's pre-war energy requirement:

heavy level of activity 14680 kJ (13210-16150)
moderate level of activity 12580 kJ

Dr English observed that an appreciation of the limitations of dietary survey methodology reveals that errors of both omission and commission occur and that there is general acceptance of the need to use a biological or biomedical measure as an objective check of the validity of the subjective recall of dietary intake. Measures most commonly applied to validate dietary data are the scientifically established principles for estimating human energy requirements.
Dr English, in commenting on Dr Volker's primary report, noted that Dr Volker had analysed the diets of the Applicant in terms of total fat and saturated fat in lieu of animal fat. In relation to Dr Volker's analysis of the Applicant's pre-war diet, Dr English concluded that the Applicant's pre-war energy level of 8620 kJ per day (as calculated by Dr Volker), fell far short of Dr English's estimate of the Applicant's daily energy requirements of 14680 kJ per day. This deficit in energy supply would have resulted in a loss of a minimum of one kilogram per week, which could not have been sustained by the Applicant. Further Dr English pointed out that the daily energy requirement figure as calculated by Dr Volker were inconsistent with the reported daily average intakes for adult males of 15740 and 14057 kJ in 1936-1938 and 1944 respectively.
In relation to Dr Volker's assessment of the Applicant's service diet, Dr English made the following observations:
·     The weighting used to allow for different service periods is a particular issue.
·     The intake of fat and energy is considerably higher than the estimated levels in the approved service rations during World War 2.
·     The service energy level is also considerably in excess of the estimated pre-war energy intake of the veteran, when physiologically energy requirements during service are calculated as being lower because of the stated level of activity.
·     The Applicant's weight gain during service of some six kilograms is the equivalent of an extra energy intake of 110 kJ per day which is the equivalent of 3/4 teaspoon of butter, or 1 and 3/4 teaspoons of sugar or 70 ml of beer.
In relation to the two post-war periods nominated by Dr Volker, Dr English made the following comments:

The 1958-1973 diet is inadequate in terms of the daily energy intake (8800 kJ), which falls short of the calculated energy requirements.
The post 1973 diet analysis, while recognising that the veteran stated that he had reduced his fat intake because of health advice, fails to "tease-out" with sufficient diligence a period of 20 years of habitual diet.

Dr English found Mr Friderich's first report difficult to review because of calculation and typographical errors. In commenting upon his second report, Dr English notes :

The calculation of the Applicant's pre-war daily intake of energy (14340 kJ) is consistent with the Applicant's pre-war energy requirements (14680 kJ).
The energy level as a consequence of the service diet would fall within the energy requirements of an adult male of age 22-27 years, weighing 78 kilograms and with a light activity level, but that the energy intake for the post-war diet of 15321 kJ appears excessive.

In a third report dated 7 February 2002 (Exhibit R13), Dr English detailed the following estimates for animal fat consumption per day by an adult male in 1938/39 in accordance with criteria nominated within the Statement of Principles ("SoP'):
·     Criteria of SoP 190/191 (1996) - 122.0 g/day
·     Criteria of SoP 84/85 excluding eggs - 123.3 g/day
·     Criteria of SoP 84/85, including eggs - 126.6 g/day.

Dr English also detailed the daily energy intake per adult male in Brisbane in 1938-1939, as 15686 kJ + 402 kJ, the 95 per cent confidence interval of 402 being established from the frequency distribution.

Dr English also points again to issues and difficulties associated with poor recall of food intake, obtaining accurate measures of the true quantity of the food consumed and the use of different computerised databases by the two dietitians in their analyses. Dr English again emphasised the need to use a biological measure to validate survey data.
dr volker
In a third report dated 21 February 2002 (Exhibit A7), Dr Volker details the following observations:
(a) The pre-war level of activity of the Applicant was 1.5; that the level of 2.1 nominated by Mr Friderich and Dr English is not consistent with her understanding of the Applicant's work activities.
(b) Dr English's two earlier reports were both succinct and valid.
(c) The Applicant's total fat and animal fat g/day consumption per day for the nominated periods was:
Period Total Fat Animal Fat
Pre-War Service Post-war 1 (46-58) Post-war 2 (58-73) 76 186 144 106 69 177 133 97

schofield equation and activity

Both parties forwarded to the Tribunal a copy of the Schofield Equation and Activity Factors (Exhibit R15 & Exhibit A7) which is listed below together with a copy of the frequency distribution of total daily intake of fat in grams for adult males in the capital cities in Australia for the period 1936-1938 (Exhibit R16):
Schofield Equation for estimating metabolic rate in MJ/day in adults and children over 10 years of age.
Age Equation
Men Women 10-18 18-30 30-60 over 60 10-18 18-30 30-60 over 60 (0.074 x wt) + 2.754 = BMR (0.063 x wt) + 2.896 (0.048 x wt) + 3.653 (0.049 x wt) + 2.459 (0.056 x wt) + 2.898 (0.062 x wt) + 2.036 (0.034 x wt) + 3.538 (0.038 x wt) + 2.755
Reference: Warwick P.M. Predicting food energy requirements from estimates of energy expenditure.
Aust J Nur Diet Vol 46 Suppl 1989
Weight adjustment: add or subtract 4286kJ/day to energy requirements to increase of decrease weight by 1 kg (respectively) per week
Activity Factors Average daily basal energy expenditure of adults and children 10 years at different levels of activity, expressed as multiples of BMR:

Daily energy expenditure as multiples of BMR
Activity level    Males Females
Bed rest Very sedentary Sedentary/maintenance Light Light-moderate Moderate Heavy Very heavy      1.2 1.3 1.4 1.5 1.7 1.8 2.1 2.3      1.2 1.3 1.4 1.5 1.6 1.7 1.8 2.0

During the further hearing on 26 February 2002, Dr Volker made the following further observations:
(a) The food frequency questionnaire methodology administered was appropriate and validated in the age group.
(b) The appropriate pre-war activity factor was 1.5.
(c) The Applicant was not dependent entirely on his ration pack during World War 2, particularly when his daily food was provided from the sergeants' mess, and particularly when he was in Canberra where he had exposure to supplementary cheese and Indonesian food for a period.
(d) After the war he lived with his mother for a period, before commencing his road activities which continued up to 1973, and which involved him eating in hotels continually for approximately half the time between 1958 and 1973 as he spent half the time on the road and half the time at home. After 1973 his eating habits were as prescribed by his wife.
Mr Friderich emphasised during the second hearing, the following issues:
(a) The Applicant was involved pre-war in hard physical work and the appropriate activity factor was 2.1.
(b) The Applicant was eating a lot of food pre-war and this included significant quantities of animal fat contained within milk, cooking process, butter, cream, chicken, meat, fish and high fat morning and afternoon teas.
(c) The Applicant would have obtained his food intake in New Guinea from rations.
(d) The Applicant's basic food intake in Canberra would have been derived from rations.
(e) The Applicant did increase his weight during service and that this may have resulted from increased intake (including beer) and/or decreased activity.
(f) Post-service, despite the variation in the sources of food, the Applicant's weight remained within the healthy rank .
statement of mr lyons
Mr Lyons, a member of 22 squadron with the Applicant in New Guinea in 1943, in a statement (Exhibit A4), dated 20 March 2001 recalls the repetition of meals, namely stews and bully beef. Mr Lyons also recalls eating large quantities of cheese.
medical report dr drake
In a report dated 12 June 2001 (Exhibit R8) Dr Drake, a consultant cardiologist, details the following opinions:

The Applicant had coronary artery disease (3 vessels) diagnosed in late 1997 and confirmed by angiogram. Symptomology appeared to have commenced in 1996.
The Applicant has suffered from dyslipidaemia since early 1992.
The Applicant clinically appears to have ischaemic heart disease in 2000.
The Applicant developed chest discomfort in late 1996/early 1997, with dyslipidaemia being present since early 1992.

medical report dr schultz

Dr Schultz, a consultant psychiatrist, in his report dated 7 September 2000 (Exhibit R9), confirmed a diagnosis of post-traumatic stress disorder suffered by the Applicant and assessed this condition as having a 26 points impairment rating.
medical report dr pirola
Dr Pirola, a consultant gastroenterologist, in his report dated 7 June 2001 (Exhibit R6), concluded that the Applicant's constipation is a symptom not a separate disease, with the symptom having been present for 15 years. This constipation was worsened when the Applicant commenced taking medication for his cardiac condition. Dr Pirola considers that the impairment rating for this symptom is five points as the Applicant has frequent symptoms requiring the regular use of bulk laxative.
submissions - the applicant
Solicitors for the Applicant contended the following:
(a) In relation to malignant neoplasm of the prostate:
(1) The preferred methodology for diet history analysis is the Food Frequency Questionnaire as used by Dr Volker.
(2) The Applicant's activity level prior to service was 1.8, which equated to an animal fat consumption of 99 grams per day and an energy intake of 12kJ.
(3) The Applicant's service activity level was 1.5 and that he consumed 177 grams of animal fat during service.
(4) The Applicant's post-service activity level was 1.5, with the Applicant consuming during his after service pre-marriage period (1946-1958), 133 grams of animal fat per day, and during the period 1958-1973 his animal fat consumption when living at home was 97 grams per day and 133 grams per day when travelling for work, with the Applicant working away from home approximately 120 days a year.
(5) The appropriate Statement of Principles concerning malignant neoplasm of the prostate is Instrument No 95 of 1995 as amended by Instrument No 191 of 1996, factor 1(b) which states:
"Increasing animal fat consumption by at least 40% and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate".
(6) Both Dr Volker and Mr Friderich agree that the Applicant consumed at least 70 grams per day of animal fat, before the clinical onset of malignant neoplasm of the prostate.
(7) The Applicant increased his consumption of animal fat by at least 40 per cent for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
(8) The period of 20 years includes service and post-service animal fat intake.
(9) The 20 years is not necessarily a block period and that the days that make up the 20 years can be non-consecutive as long as the days total 20 years before the clinical onset of malignant neoplasm of the prostate. In this regard the Applicant relies upon Repatriation Commission v Gorton (2001) 110 FCR 321, where the Full Court agreed with the primary judge's interpretation of daily "to mean just about daily".
(10) The two dietitians have estimated the Applicant's consumption of animal fat over 20 years as it would be both impractical and not possible for the Applicant to recall his exact daily food consumption for a 20 year period. This is in accordance with section 119(1)(h)(i) of the Act.
(11) As a consequence it was submitted that the practical approach is to average the daily animal fat consumption over the 20 year period.
(12) The Applicant consumed 99 grams per day of animal fat prior to service, during service he consumed 177 grams of animal fat per day for four years and for 16 years post-service he consumed 133 grams of animal fat per day, which when averaged over a 20 year period equates to 141.8 grams of animal fat per day, with a four year post 1958 (after marriage) period being established at the rate of 120 days a year (when eating away from home), such an accumulation occurring over a 12 year plus period (ie at the rate of 120 days a year after 1958).
(13) The Applicant developed a habit of eating bread, butter and cheese as an extra which has continued to date and contributed to the intake of animal fat in his diet.
(14) The Applicant's impotence developed as a consequence of surgery associated with his malignant neoplasm of the prostate, whereby he underwent bilateral orchidectomy. The Applicant, it is contended satisfies factor 5(s) of the SoP Instrument No 97 of 1996 concerning impotence, and further that this matter was placed before the primary decision-maker.
(15) The Applicant suffers from ischaemic heart disease, with clinical onset in 1994 and with the diagnosis of dyslipidaemia in 1990, the latter having been contributed to by the applicant's war-developed habit of consuming bread, butter and cheese. It was contended that the Applicant satisfies factor 5(d) of SoP Instrument No 38 of 1999 concerning ischaemic heart disease in that the dyslipidaemia existed prior the clinical onset of ischaemic heart disease.

submissions - respondent

The solicitors for the Respondent contended that:
(1) On the balance of probabilities, the Applicant suffers from a malignant neoplasm of the prostate and that the appropriate SoP in this matter is Instrument No 84 of 1999 concerning malignant neoplasm of the prostate, and in particular factor 5(c) which states:
"increasing animal fat consumption by at least 40 per cent and to at least 70 grams/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate".

(2) That factor 5(c) has not been satisfied, in that there is no material pointing to all the elements contained within factor 5(c) for the reasons nominated:

(a) Dietary survey in 1936-1938 concluded that the typical adult civilian male animal fat intake per day was 114 to 130 grams per day, which when recalculated to include poultry, game and fish totalled 123.2 grams per day.
(b) A further dietary survey in 1944 pointed to an average animal fat intake for a male adult civilian to be 122 grams/day, with dairy products providing 56.5 per cent of the animal fat content of which butter was the single largest component (32 per cent).
(c) Service rations issued during World War 2 contained a lower level of animal fat than the civilian diet for an adult male. For service rations operating within Australia, the animal fat content ranged from 78.5 per cent to 88.8 per cent of that of the civilian diet. The one exception to this was the amended New Guinea ration issued between February 1944 and October 1945, which exceeded that of the civilian diet by 8 per cent.
(d) The animal fat content in Australian diets/rations during World War 2:
Average animal fat for adult civilian male   122 grams/day
Military ration scales (all three services):
Temperate Australia from August 1942  108.4grams/day
New Guinea April 1943-January 1944  113.2grams/day
New Guinea February 1944-October 1945  131.8grams/day
(e) Butter was rationed from February 1942 to June 1950 and meat from January 1944 to June 1948, with a resulting civilian diet post-war lower in animal fat than that was available from service rations during the war, with the animal fat dietary consumption for an adult male in 1948/1949 averaging 102.5 grams per day.
(f) The animal fat intake for an adult male, both civilian and military was greater than 70 grams per day during World War 2 and continued thereafter until the late seventies, when the average animal fat intake for an adult civilian male was 75.8 grams per day.
(g) The 20 years diet commences post-service, as there is a need to establish a causal connection with service, as opposed to a temporal connection with service, that is service was a contributing cause, not merely the setting in which the event occurred.
(h) The 20 year period must be a continuous one, otherwise the causal nexus with service would be broken by events post–service.
(i) The Applicant's averaging of animal fat intake over the 20 year period to achieve an average daily intake of animal fat of 141.8 grams, thereby meeting on average the 40 per cent increase over 20 years is not consistent with the nominated requirement of factor 5(c) within Instrument No 84 of 1999, for if the figure required was to be an average it would be so stated.
(j) The consideration of the term "daily" by Heerey J in Repatriation Commission vGorton (supra) to mean "just about daily" can be distinguished in this matter in that the phrase in question involves a consideration of what is meant by the term "at least". The Respondent points to Kenny J in Connors v Repatriation Commission [2000] FCA 783 where the term "at least" is defined with reference to the Oxford Dictionary as "a qualifying phrase, attached to a quantitative designation to indicate that the amount is the smallest admissible".
(k) The Applicant's material relating to animal fat intake does not point to all the necessary elements, namely material pointing to a 40 per cent increase in animal fat consumption over 20 years and as such the hypothesis postulated is not a reasonable hypothesis.
(l) Dr Volker's assessment of the Applicant's pre-war daily intake of animal fat was inadequate, as it falls far short of the energy requirements consistent with the Applicant's age, weight and level of activity.
(m) The Applicant's level of activity pre-war was at least 1.8 if not higher, and his level of activity during service was 1.5.
(n) Dr Volker's further assessment of the Applicant's food intake was 9.5 megajoules per day pre-war as a result of the activity level being 1.5, with a fat consumption providing 32.5 per cent of the energy is an estimate that should not be relied upon as the methodology adopted by Dr Volker is in error and is one she would not use in her research.
(o) In view of all the difficulties with the pre-war diet history of the Applicant and the methodologies used to calculate the Applicant's pre-war energy requirements, the more appropriate approach would be to adopt the average animal fat intake for an adult male (114-130grams/day) as demonstrated by a National Dietary Survey in 1938-1939.
(p) The Applicant's animal fat consumption per day in his service diet was less than his pre-service diet and that the Applicant's estimation of 177 grams/day was inconsistent with both the service and civilian diets at that time.
(q) The Applicant where it, had estimated (post 1958) animal fat consumption at 133 g/day (for three weeks) and at 97 g/day for each alternate period of three weeks, should have averaged the consumption over a six week period, which would equate to 115 g/day. Further, the Respondent contends that these figures should be recalculated to 107.6 grams of animal fat per day as a consequence of the Applicant's analysis that the Applicant consumed the higher quantity (133 grams) on 120 days a year.
(r) Butter and cheese consumption were not highlighted in the Applicant's recall of his post-war diets, despite the Applicant's closing submission that butter and cheese as an extra food item continued to date and contributed to the intake of animal fat.
(s) The Applicant does suffer from ischaemic heart disease with the Applicant further suffering from dyslipidaemia prior to the clinical onset of the ischaemic heart disease. However, the Respondent contends that there is no causal connection linking the Applicant's dyslipidaemia with service.
(t) The Applicant has never claimed for the condition of impotence, and therefore the Tribunal does not have jurisdiction in the matter, particularly as a primary decision on the matter has not been made by the Respondent, nor has it been reviewed by the VRB.
(u) Constipation is not a disease but a symptom which in this matter is a consequence of medication for his ischaemic heart disease.
(v) Any argument that a benevolent view of the Applicant's care should be adopted in the light of difficult evidentiary circumstances pursuant to section 119(l)(h) of the Act should be rejected, as the latter may not be used to create a causal connection with service which ignores the reasonable hypothesis standard of proof.

consideration and findings

In preliminary comment the Tribunal notes that the parties have agreed on the following issues, namely:
(a) The date of effect, if the Applicant is successful, is 19 April 1999.
(b) Constipation is a symptom and in this matter constipation is associated with medication prescribed for the Applicant's condition of ischaemic heart disease.
The Tribunal concurs with both agreements reached and so finds.
In turning to the major issues in contention, the Tribunal has detailed the evidentiary material that has been placed before it. As a consequence of assessing this material, the Tribunal concludes on the balance of probabilities that the Applicant suffers from the following diagnosed disabilities:
(a) Adenocarcinoma of the prostate, together with impotence, as a consequence of bilateral orchidectomy, the latter being part of the therapy program for the prostatic carcinoma.
(b) Ischaemic heart disease with constipation arising as a consequence of medication taken for the ischaemic heart disease.
(c) Dyslipidaemia.
The Tribunal also notes the following:

(1) The Applicant has the following accepted disabilities:

(a)Sensori - neural deafness
(b)Bilateral tinnitus
(c)Post-traumatic stress disorder
(d)Chronic solar skin disorder

(2) The diagnosis listed in the Applicant's claim of 8 April 1999 did refer to the two operative interventions undertaken as part of the treatment of the Applicant's adenocarcinoma of the prostate, namely

trans urethal resection of the prostate (TURP)
bilateral orchidectomy

(3) The Applicant's service involved:

a period of approximately one year and six months in Australia from 15 August 1941 to 4 February 1943;
a period of seven months in New Guinea from 23 February 1943 to 28 September 1943;
a period of approximately two years and three months from 23 October 1943 to 14 January 1946;
a total service period of 4 years and five months.

In addressing the issue of entitlement in relation to the Applicant's adenocarcinoma of the prostate, the Tribunal, in review of the Applicant's operational service in New Guinea concludes that the standard of proof in relation to this entitlement is one of reasonable hypothesis.

The Tribunal is mindful of the following authorities:
(a) Repatriation Commission v Deledio (1998) 49 ALD 193 outlined the process which is to be taken in respect of a particular injury, disease or death and the relationship to operational service. The Tribunal details points 1, 3 and 4:
"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.
…
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".

(b) In Re Dell v Repatriation Commission (1986) 9 ALD 596 at p 615 a hypothesis was defined, as indeed was the term "reasonable hypothesis":

"A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption: The Concise Oxford Dictionary.
…
The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material - that is the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis".

"… to be reasonable a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by the material -… that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis … A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved on the balance of probabilities".

(d) In Repatriation Commission v Bey (1997) 79 FCR 364 the Full Court at pp 372-373 stated:

"…While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.
…
The Respondent's contention appears to be that in requiring a causative link between the arthritis and war service, the Tribunal was acting contrary to s 119. For the reason we have given, in order for the hypothesis advanced by the Respondent to be reasonable there must be material pointing to a connection between his disease and his war service. This material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g.) The requirement to act towards substantial justice does not displace the Tribunal's obligation to act in accordance with the law".

(e) In Bull v Repatriation Commission (2001) 66 ALD 271, the Full Federal Court again revisited East v Repatriation Commission (supra), stating at p 276:

"…It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis…"

(f) In Repatriation Commission v Owens (1996) 70 ALJR 904, Repatriation Commission v Webb (1998) 51 ALD 575 and Connors v Repatriation Commission (supra) all stand for the preposition that each individual element of a factor must be pointed to by the material before the decision maker.
(g) The appropriate Statement of Principles to be considered is that which is in existence at the time of the Tribunal's decision, unless, in the face of an unfavourable decision from such application an accrued right permits the decision- maker to review the decision in accordance with the Statement of Principles existing at the time of the primary decision. (Repatriation Commission v Gorton (supra))

Moving to a consideration of all the material before it, the Tribunal observes that such material falls into relevant classes, namely primary material drawn from the Applicant, other veterans and records, with secondary material being derived as a consequence of professional analysis of the primary material and opinions on these analyses. In this matter, the Tribunal observes that it is the designated secondary material which is creating the difficulties in this matter. Nevertheless, it is clear to the Tribunal that the hypothesis postulated in this matter is essentially one in which the Applicant's service contributed and hence caused a food habit of excessive animal fat consumption, which continued after service, which in turn has contributed to causation of the Applicant's adenocarcinoma of the prostate.
In reviewing all the material before it, the Tribunal is satisfied that the hypothesis proposed is supported by the material.
In addressing the issue of whether the hypothesis is reasonable, the Tribunal observes that the appropriate Statement of Principles is Instrument No 84 of 1999 concerning Malignant Neoplasm of the Prostate. The appropriate factor 5(c) and the definition of animal fat is detailed as follows:
"5(c) increasing animal fat consumption by at least 40 per cent and to at least 70 grams/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate".

The related definition is:

" 'animal fat' means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products."

The Tribunal observes that the following elements of the factor need to be pointed to by the material before the Tribunal:

increasing animal fat consumption by at least 40 per cent;
increasing animal fat consumption to at least 70 grams a day; and
for at least 20 years before clinical onset.

The term "animal fat" is defined. The Tribunal concludes that the phrase "at least" indicates the smallest admissible amount, ie 40 per cent, 70 grams a day and 20 years are the smallest admissible amounts in this matter. The Tribunal adopts the definition of Kenny J in Connors v Repatriation Commission (supra) on this issue. Similarly, the Tribunal follows the definition of "daily" as meaning "just about daily" (Gorton v Repatriation Commission (2001) 63 ALD 723 which was approved by the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321).
The Tribunal does not consider that the phrase at least 70 grams a day means any more or less than at least 70 grams a day or just about every day, for it is obviously impractical, let alone realistic to consider that over a period of 20 years, there will not occur occasional circumstances in which an individual is unable to eat for a whole variety of reasons, including sickness, accident and fasting, again for a variety of necessary reasons.
However, while the Tribunal accepts that daily means just about every day, the Tribunal is of the view that where the factor speaks of increasing animal fat consumption by at least 40 per cent, and to at least 70 g/day for at least 20 years, the proper interpretation is that an increase by a minimum of 40 per cent, to at least 70 g/day must continue for at least 20 years. It would be the Tribunal's construction that the first two elements of the factor, namely at least 40 per cent, and to at least 70 grams of animal fat per day (the phrase "at least" equating to the smallest admissible amount) must continue to exist over 20 years, with both the at least 40 per cent increase and at least 70 grams being consumed each day or just about each day.
The Tribunal, in noting the Applicant's submission that the appropriate construction of the two elements would permit an average increase of at least 40 per cent per day over a 20 year period. Further, the Applicant's submission does suggest that the 20 year period does not necessarily have to be a continuous period, and that the averaging process is to include daily animal fat intake during service, daily animal fat intake on a daily basis between 1946 and 1958 and daily fat intake on 120 days a year, which relates to those days on which the Applicant consumed 133 gram a day during the period 1958-1973 to take account of those days where the Applicant was eating in hotels/clubs away from his normal domestic circumstances. In the latter situation, which was for the remaining days of each year, the Applicant consumed 97 grams of animal fat per day. Using such a methodology the Tribunal notes that it is contended that the Applicant consumed 141.8 grams of animal fat per day, as compared with the Applicant's calculation of an animal fat consumption of 99 grams per day pre service.
The Tribunal rejects the Applicant's submission as being inconsistent with the language and requirements of the factor. In so stating, the Tribunal considers that if an average figure of at least 40 percent would suffice, the word "average" would have appeared in the factor elements. Further the Tribunal expresses a similar difficulty with a 20 year period being created over a time frame of 31 years. The Tribunal, while noting that the word "continuous" is not present in the factor elements, concludes that such an interpretation must be implied, otherwise there would not be such a focus on the daily intake and the increase in the daily intake, and the factor element would speak of the cumulative intake of animal fat as opposed to the daily intake. The Tribunal further considers that the averaging of a fat intake over a discontinuous 20 years and further such an averaging to exclude days when animal fat intake is less than the purported pre-war intake, would be inconsistent with the statistical process underlying an epidemiological process which is trying to link causation with a daily or just about daily intake of animal fat.
The Tribunal, having addressed the interpretation of the elements contained within factor 5(c) turns to a consideration of all the material before it. The Tribunal in noting the progress of this matter over time, understands that much of the difficulty experienced by the dietitians in constructing dietary histories commencing 60 years ago is to be expected, and that at best any such process is going to be less than robust, and that secondary analytical material will change over time as the Applicant remembers matters concerning such dietary issues of many decades past.
In turning to the Applicant's final submission, the Tribunal notes that the Applicant considers the material to point to a pre-war daily animal fat intake of 99 grams per day, a service animal fat intake of 177 grams per day, and a post-service animal fat intake of 133 grams per day between 1946 and 1958 and an animal fat intake of 133 grams a day for 120 days a year between 1958 and 1973, and for the remaining days (245) in each year (ie between 1958 and 1973), the Applicant consumed 97 grams of animal fat per day.
The issue before the Tribunal is whether this material points to and fits the template nominated within factor 5(c) of Instrument No 84 of 1999 concerning Malignant Neoplasm of the Prostate. It is the Tribunal's finding, that while the element of 70 grams of animal fat consumption over 20 years is pointed to by the material, the material does not point to an "at least 40 per cent increase in animal fat consumption over 20 years".
In so stating, the Tribunal is mindful that the Applicant spent 18 months in Australia prior to his overseas service and that his postulated habit formation must have evolved in an environment where excess cheese and butter was available beyond what was available within service rations. Nevertheless the Tribunal does accept that the period of service following the development of a habit could be counted as part of a 20 year period, in which the particular elements within factor 5(c) are to be satisfied.
Nevertheless in the analysis of the material placed before it, the Tribunal is unable to point to material which would allow the element of a 40 per cent increase in animal fat consumption over 20 years to be met. The Tribunal acknowledges that the material has been subject to various mathematical analytical techniques, which involve an averaging of animal fat intake over service, post-service to 1958, and for intermittent periods between 1958 and 1973. This has produced a figure of an average of 141.8 grams of animal fat consumption by the Applicant over a 20-year non-continuous period.
The Tribunal does not accept this analysis as assisting the Tribunal in assessing whether the material points to all elements of the factor 5(c). Firstly, the analysis is inconsistent with what is required by the terms of the factor, and secondly the analysis involves an averaging technique, which ignores considerable periods of time in which the animal fat daily consumption is less than the pre-war animal fat consumption. Again, without being repetitive, the Tribunal concludes that the material does not point to the elements contained within factor 5(c), namely at least 40 per cent increase over at least 20 years.
As a consequence of the Tribunal's conclusions, the Tribunal finds that a reasonable hypothesis is not established. As such the Tribunal further finds that the Applicant's adenocarcinoma of the prostate is not war-caused.
As a result of the Tribunal's finding that carcinoma of the prostate was not a war-caused disease, the Tribunal does not see the necessity of addressing the issue of impotence, as it arose as part of the prostatic condition.
The Tribunal in addressing the issue of whether or not the Applicant's ischaemic heart disease is war-caused notes the hypothesis put forward, with each of the elements of the hypothesis being pointed to by the material. The hypothesis is essentially that the Applicant's dyslipidaemia was caused or contributed to by his war service and that the dyslipidaemia caused or contributed to the development of his ischaemic heart disease.
The Tribunal notes the definition of injury/disease contained in section 5D of the Act, which provides:
"5D Injury/disease definitions
(1) In this Act, unless the contrary intention appears:
blinded in an eye has the meaning given by subsection (3).
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels)."
The Tribunal observes the wide definition given to disease and in particular observes the exclusions relating to a temporary departure from the normal physiological state or the accepted ranges of physiological or biochemical measures that result either from normal physiological stress or the temporary effect of extraneous agents and the examples nominated.
The Tribunal also observes the definition of dyslipidaemia, contained within paragraph 8 of the SoP Instrument No 38 of 1999 concerning ischaemic heart disease which states:
" '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 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;"
The Tribunal further notes in this matter that the Applicant had serum cholesterol levels above 5.5mmol/L, as indicated by pathology reports in Dr Singh's clinical notes from as early as 1990 and from pathology reports in 1992 and thereafter and that treatment for this condition was instituted, as evidenced by Dr Darke's report (Exhibit R8). Further, the Tribunal notes Dr Darke's opinion that dyslipidaemia was a condition for which the Applicant received treatment.
As a consequence, the Tribunal concludes that the Applicant's condition of dyslipidaemia is a disease, for it is a disorder and/or morbid condition suffered by the Applicant that indicates the existence of disordered lipid metabolism, which is neither a temporary departure from the normal physiological state nor the accepted ranges of physiological or biochemical measures, that result from normal physiological stress or the temporary effects of extraneous agents. In so finding, the Tribunal places emphasis on the continuance of elevated lipid readings from as early as 1990 until treatment was instituted by way of medication to control the lipid levels. In essence, the Applicant's dyslipidaemia condition was not temporary and did require not just treatment, but on going treatment.
The Tribunal concludes that a hypothesis is pointed to by the material, but further notes that in relation to dyslipidaemia there is no relevant Statement of Principles, with the Tribunal further considering the matter in accordance with Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.
The Tribunal, in considering whether the hypothesis is reasonable notes that the material points to the Applicant having a daily intake of animal fat greater than 70 grams pre-war, during service and thereafter. Further the Tribunal notes the history of the Applicant's operational service, the daily consumption of cheese and butter to complete his meal commencing during service, particularly the presence of the war-caused disability of post-traumatic stress disorder, the continuance after service of his service-developed habit of eating bread, butter and cheese to complete a meal. The Tribunal notes the development of dyslipidaemia in the early nineties and the opinion of Dr Volker that his service contributed to the formation of a habit which involved the daily eating of excess animal fat, associated with daily consumption of cheese, butter and bread, which in term contributed to the development of dyslipidaemia.

The Tribunal concludes that there exists a reasonable hypothesis linking the Applicant's service by way of contribution of the development of a food habit involving the consumption of excess animal fat on a daily basis, which continued up to the diagnosis of dyslipidaemia.
Further while noting Dr English's opinion that the development of a past food habit is multi-factorial, and that the Respondent considers there is insufficient material pointing to the development of the food habit, the Tribunal finds that there is no material which would allow the Tribunal to conclude beyond reasonable doubt that the Applicant's dyslipidaemia was not war-caused.
With the finding that the Applicant's dyslipidaemia was war-caused, the Tribunal turns to further consideration of dyslipidaemia and ischaemic heart disease. The Tribunal notes that the appropriate SoP in this matter is Instrument No 38 of 1999. Further the Tribunal concludes that the elements of factor 5(d) of the Instrument No 38 of 1999 are pointed to by the material, with the consequence that the template is met. The Tribunal concludes that a reasonable hypothesis exists and in the absence of material which would allow the Tribunal to find beyond reasonable doubt that the Applicant's ischaemic heart disease was not war-caused, the Tribunal finds that the disability of ischaemic heart disease is war-caused.
assessment
With the finding that the Applicant's dyslipidaemia and ischaemic heart disease are war-caused disabilities the matter is remitted to the Respondent for assessment, with the Tribunal noting and adopting Dr Pirola's assessment that constipation as arising from treatment of the Applicant's ischaemic heart disease is 5 points. The Tribunal further notes the assessment of Dr Schultz in relation to the Applicant's post-traumatic stress disorder is 26 points. These two assessments, together with an impairment rating for his ischaemic heart disease, and a lifestyle assessment of 5, means that the Applicant will meet the necessary requirements for disability pension at 100 per cent. The Tribunal also notes a lifestyle rating of 5, and as a consequence concludes that in the circumstances the Applicant does not meet the requirements nominated in section 22 of the Act, for extreme disablement adjustment.
determination
The Tribunal determines that the decision under review be set aside and in substitution therefor determines:
(a) that the Applicant's diseases of dyslipidaemia and ischaemic heart disease are war-caused;
(b) affirms the part of the decision that malignant neoplasm of the prostate is not a war- caused disability; and
(c) remits the matter to the Respondent for assessment and finalisation of the Applicant's disability pension.
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: H. Sim        .....................................................................................
  Associate
Date/s of Hearing  13 December 2001, 26 February 2002
Date of Decision  12 June 2002
Solicitors for the Applicant        Ms Buchanan and Ms Toliopoulos
Solicitors for the Respondent Ms Trina McConnell and Mr Modder