Beaver and Repatriation Commission
[2005] AATA 1265
•20 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1265
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/251
VETERANS' APPEALS DIVISION ) Re THELMA BEAVER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date20 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension. ..................SIGNED............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – not war-caused – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Thelma Beaver, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Beaver claims that her late husband, John Beaver, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Beaver’s claim are:
(a)John Beaver died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Beaver was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Beaver’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Australian Army.
(e)The food that he had become accustomed to eating during his years in the Australian Army was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Beaver’s death from prostate cancer was related to his Army service.
4. Mrs. Beaver’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5. The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6. Mrs. Beaver seeks review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused 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 death with the circumstances of the particular service rendered by the person.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting 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 Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the RAAF, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“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 the relevant service rendered by the person.
Factors
5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:
….
(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.
Other definitions
8. For the purposes of this Statement of Principles:
“animal fat” means fat contained in or derived from:
(a)meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)John Beaver was born at Sydney, New South Wales on 29 January 1930.
(b)He enlisted in the Australian Army on 15 July 1952.
(c)He rendered operational service for eight months in Korea from 20 March 1954 to 20 November 1954.
(d)He was discharged on 15 July 1955.
(e)He married Thelma Beaver on 29 October 1955.
(f)He was diagnosed with prostate cancer on 19 July 1996.
(g)He died on 10 May 1998. The cause of death was metastatic prostate cancer – 3 years.
(h)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Beaver provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She married Mr. Beaver on 29 October 1955.
(b)When Mr Beaver returned from his military service they moved to Chelmer and lived there from 1955 to 1972.
(c)Over this period Mr Beaver had several different jobs including work as a storeman, a farm hand and in an ice works.
(d)After this period at Chelmer, they moved to Goodna where Mr Beaver worked for TNT transport company from about 1973 until 1990. They lived in Goodna until Mr Beaver’s death in 1998.
(e)She has no knowledge of her husband’s diet prior to his joining the Army. She believes that he had lived in an orphanage until he was fourteen. He then “ran away” from the orphanage and obtained a job on a farm.
(f)Her husband did not talk about what he ate when he was in Korea.
(g)She completed a “dietary survey” for the purposes of this claim, which is undated. She found some of the questions confusing. She completed a further dietary survey on 6 January 2005.
(h)She worked for the first three years of their marriage. She stopped work in 1958. During that three years Mr. Beaver did the cooking. He “fried most things’ or he cooked on the bar-b-que.
(i)Her husband often had sandwiches for lunch. They would have various fillings of fish paste, cold meat, curried egg, tuna or silverside.
(j)Roast meat was eaten at least once a week and gravy would be added to this. Mrs. Beaver would use a good tablespoon of dripping in the bottom of the pan for roasts, vegetables and gravy, and also to fry meat. However not all of this dripping would have actually been eaten. She was “brought up” on this method of cooking.
(k)Butter was used during the early years of the Beaver’s marriage, switching to margarine later.
(l)Butter or margarine was added to cooked vegetables daily, such as mashed potato or pumpkin.
(m)Her husband would have toast with butter, jam and honey for breakfast and approximately 2 teaspoons of butter was spread on the bread and toast.
(n)They ate bacon and eggs on Saturdays and Sundays for breakfast.
(o)Mr. and Mrs. Beaver would have eaten home made desserts consisting of milk or rice pudding desserts almost every night between 1958 and 1972. Following this period, they might have just had some ice cream.
(p)In the 1970s the Beavers started to use vegetable oil instead of dripping in their cooking. They read, or heard, that vegetable oil was better for their health.
20. The material placed before the Tribunal:
(a)does not reveal what Mr. Beaver ate prior to service in Korea;
(b)does not reveal the average animal fat intake of the male population in the late 1940s or early 1950s;
(c)does not reveal what Mr. Beaver ate whilst on service in Korea;
(d)does not reveal the contents of the ration packs supplied to members of the Army in Korea;
(e)reveals that Mr. Beaver cooked for his wife and himself for three years between 1955 and 1958 and that he cooked mostly fried food and bar-b-qued food;
(f)reveals that the Beaver’s diet was probably fairly high in animal fat from the date of their marriage until they modified their diets in the 1970s.
21. There is simply no material to indicate what Mr. Beaver ate prior to his service in Korea. There is no material to indicate what he ate whilst on service in Korea.
22. Consequently, it is not possible to know whether his consumption of animal fat on a daily basis increased during his service in the Army. Also, it is not possible to know whether his post-service diet contained more animal fat than his pre-service diet.
23. The whole of the material does not raise the hypothesis that Mr. Beaver increased his post war intake of animal fats by any significant level, for a significant number of years, over his pre-war diet, for reasons related to his service.
24. No hypothesis is raised which links the death of Mr. Beaver with the particular circumstances of his eligible service.
25. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20,22.6.05; 30.9.05Date of Decision 20 December 2005
Counsel for the Applicant Mr. A. Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
0
0
0