Dowde and Repatriation Commission
[2008] AATA 136
•21 February 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 136
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0109
VETERANS’ APPEALS DIVISION )
ReELAINE AGNES DOWDE
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalSenior Member M D Allen
Dr J Campbell, Member
Date21 February 2008
PlaceSydney
DecisionThe decision under review is affirmed.
.................[sgd].......................
M D Allen
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – review of decision affirming applicant’s husbands death not war caused – delidio principles – whether material raises reasonable hypothesis connecting death with circumstances of service rendered – hypothesis must conform to a statement of principles – evidence said to establish a hypothesis connecting death with circumstances of service disproved beyond reasonable doubt – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 sections 6A, 6C, 120, 120(1), 120(3), 120(6) and 120A
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
R v Hytch [2000] QCA 315
REASONS FOR DECISION
21 February 2008
Senior Member M D Allen
Dr J Campbell, Member
Summary
1. By application made 31 January 2006, the Applicant sought review of a decision by the Respondent that the death of her late husband, Eric Lionel Dowde, was not related his war-service.
2. At the hearing before this Tribunal there was no dispute between the parties that:
(i)The deceased was a veteran who had operational service as that term is defined in section 6A of the Veterans’Entitlements Act 1986;
(ii)The deceased died on 5 May 2004, the cause of death being metastatic prostate cancer;
(iii)The date of onset of the deceased’s cancer of the prostate was 2001;
(iv)During the course of his war-service, the deceased was wounded, and that Post Traumatic Stress Disorder had been accepted by the Respondent as being a war-caused disease;
(v)No evidence existed as to the deceased’s pre-war diet therefore it is accepted that the deceased ingested 126 grams of animal fat per day as per the final report of the Advisory Council on Nutrition (1936-1938).
3. As the deceased had operational service as that term is defined in s 6C of the VEA, a standard of proof in this matter is that mandated by subsection 120(1)(3) of the VEA.
4. Subsections 120(1) and (3) of the VEA provide that where the death of a veteran is claimed to be war-caused, it shall be accepted as being so caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death suffered by the deceased with the circumstances of the service rendered by him. Pursuant to s 120A of the VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles issued by the Repatriation Medical Authority.
5. Subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
6. The manner in which the Tribunal must approach its task where a SoP exists, was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so-called Deledio Principles are now so well known as not to require recapitulation here.
7. The current SoP in force concerning cancer of the prostate is Instrument No 28 of 2005. The case for the Applicant is that the applicable factor linking the deceased’s cancer of the prostate with his war service is Factor 5(c), namely:
… 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 onset of malignant neoplasm of the prostate.
…
8. In the Applicant's case Factor 5(c) requires that the diet of the deceased veteran be examined with regard to the period 1976 to 1981.
9. At the outset, we believe it is pertinent to repeat in these reasons the criticism developed by Dr Ruth English in Exhibit R4 regarding the task required of experts and the Tribunal when Factor 5(c) is relied upon. This case amply demonstrates the validity of Dr English's comments. She states in Exhibit R4:
…
In addressing Dr Volker’s essence of disagreement between my reports and her reports, I firstly wish to outline the problems of nutrition and epidemiology with which we are both confronted as we address the issues that arise from reporting on the Statement of Principles (SoP) concerning Malignant Neoplasm of the Prostate. Unless recorded at the time period, the true food and nutrient intakes in the past are never known with any certainty (either re-called for the pre- or post-service period). The usual diet over-time covers a minimum of 5-25 years, and the period for re-call may be ‘long-past’, referring to dietary intakes of some 30 years ago. It is important that the difficulties be emphasised of the task given to the nutrition consultants to provide professional expertise in the matter of nutrition assessment procedures set in place to assist the Tribunal in determining the outcome of applications relating to animal fat intake and prostate cancer.
Many of the veterans are deceased, some up to a decade. They are not available to provide current data on food consumption, let alone recall their diet during the pre-service or allocated post-service period, describe their pre- and post-service lifestyle and activity patterns, and provide valid weight data for the post-service period to estimate energy requirements. They are not available for their energy requirement to be measured using the identified gold standard of doubly labelled water and a current measurement will not be representative of the post-service period of the diet return. Then, because of the age and often the failing health of the Applicants, the majority of whom are widows, some with difficulty of re-call of a late veteran’s diet, weight and lifestyle. Much of the probing of Applicants to obtain exacting details of food quantities and frequencies is driven by Clause 5(c) of Instrument 28 of 2005 of the Statement of Principles concerning Malignant Neoplasm of the Prostate. This clause requires a criteria of animal fat intake at the level of grams intake per day be met, and so exact details of frequency and quantity of foods, contributing to animal fat intake per day. The problems of remembering food patterns and intake details are well documented in the literature and often relate to recall of current diet by both younger women and men.
… Estimate of energy requirement will require reference to use of a factorial method of assessment and dependence on correct application of scientifically endorsed predictive equations for basal metabolic rate (dependant on documentation of veteran’s weight in post-service period) and scientific documentation of physical activity levels together with personal advice from a veteran or family member about his occupational and leisure activities usually at post-service diet period.
…
10. The Applicant’s case was that a reasonable hypothesis had been raised namely, that the deceased had increased his ingestion of animal fats by at least 40% above his pre-war level of 126 grams a day, and to at least 50 grams a day due to either his war experiences and/or as a reaction to a bland diet whilst on service.
11. In support of the first limb of the Applicant’s hypothesis, she pointed to acceptance by the Respondent of a claim by the deceased to have PTSD accepted as a war-caused disease and then argued that as a result of war-caused PTSD, the deceased took refuge in a diet high in animal fats. The term “comfort food” was used in submissions by the Applicant’s counsel.
12. The deceased made claims for both anxiety and PTSD in 2003. In the claim for PTSD the Applicant makes reference to “flashbacks” and difficulty sleeping as well as referring to shrapnel wounds and “sight problems” and “body problems”.
13. There is no dispute that as a result of shrapnel wounds received whilst on operational service the deceased continued to suffer throughout his life from pieces of shrapnel that worked their way to the surface of his skin.
14. Although the deceased's treating general practitioner states in the application form to the Department of Veterans’ Affairs that the veteran first consulted him for anxiety “years ago” there is no reference whatsoever to any anxiety condition in the clinical notes of the deceased’s general practitioner, which became Exhibit R2 in these proceedings.
15. Similarly, in the material before the Tribunal, there is no evidence as to the date of clinical onset of the deceased’s PTSD. As was pointed out in Lees v Repatriation Commission [2002] FCAFC 398 and Repatriation Commission v Cornelius [2002] FCA 750, the clinical onset of a disease can be said to be:
… the presence of those signs or symptoms of a disease which if observed by a clinician would warrant the conclusion that the patient suffered from a particular illness or disease”.
…
16. In this matter the evidence before the Tribunal shows that the deceased’s naval service continued post-war and he served until 1956 when his service ceased at the expiration of the term for which he was engaged. On cessation of naval service, the deceased held senior non-commissioned officer rank and there are no records of any service offences that might indicate behavioural problems.
17. After discharge, the deceased had a good employment record and during the period in which he and his wife lived at Hawks Nest, New South Wales, it would appear he had a happy and active lifestyle. His leisure activities included deep sea fishing either in his own boat or with friends, gardening and running along the beach with his dogs. His daughter, in Exhibit A7, said:
…
3.My father was an extremely active person. If there was room on the boat, I’d go out with him and two other men when they were deep sea fishing, which was a love of his and a regular feature of his life. …
4.Apart from his love of deep sea fishing, my father also went prawning in the river, using hand nets, and spent a lot of time working in his garden. It was a magnificent garden and all his work. He also looked after the house repairs and, because of his skills as a mechanic, worked on his and others’ cars, motor mowers etc, at weekends.
…
Other evidence is that the deceased's intake of alcohol was moderate.
18. All of the indicia described above mitigate against a finding that at any time from the cessation of the deceased’s naval service to 1981, he exhibited any clinical signs or symptoms of an anxiety state, in particular PTSD.
19. We acknowledge that the deceased was diagnosed with PTSD in 2003, but at that time the deceased was suffering a terminal illness and had had a cerebro vascular accident. Although a psychiatrist’s report was tendered, giving a history of the deceased's signs and symptoms of PTSD, that report does not take a history of when the deceased first exhibited the said signs and symptoms. It is thus of limited value and does not address the issues before the Tribunal. The concept of late onset PTSD had been accepted by the Administrative Appeals Tribunal and as stated, up until 1981, there is no evidence of any signs and symptoms of this disease.
20. Exhibit R2 is the clinical notes of the deceased’s treating general practitioner from 1999. In those clinical notes that medical practitioner records that the deceased visited him once for treatment for anxiety, this being after the diagnosis of cancer of the prostate. In a report to the DVA dated 3 December 2003, that medical practitioner notes that the deceased ceased taking cipramil (an anti-depressant) 12 months previously. The first record of any prescription of cipramil is 31 January 2002.
21. The report referred to above at para 20 also states, “Once he left service he bottled up his symptoms and became introspective. He tends to avoid contact with others”. These remarks do not suggest that until the time of his terminal cancer of the prostate, much less up until 1981, the deceased had an undiagnosed PTSD. Other clinical notes going back to December 1982 make no mention of any anxiety symptoms. The comment “tends to avoid contact with others” is in direct contrast to the evidence given by the deceased’s daughter.
22. A medical report dated 17 April 1984 from Repatriation General Hospital Concord reads inter alia:
Patient aged 64 presents with a history that for only the last 3 months he has had some headaches above the left eye and sometimes under the eye. On an average these headaches are occurring about once a week …
…
His general health has been good. He has had no other serious illnesses or operations in the past.
..
The cause of Mr. Dowde’s headaches are not clear. I think it is unlikely to be related to the metallic fragment as this seems to have remained fairly dormant about 40 years. …
…
23. Dr Volker PhD, nutritionist, was allowed to give anecdotal evidence as to persons experiencing stress resorting to “comfort food”. Dr English, the nutritionist called by the Respondent, refused to express any opinion as to any link between “stress” and a resort to eating stating that this was a question for a psychiatrist or a psychologist. On reflection, we agree with Dr English and find that for Dr Volker to express an opinion as to any link between anxiety and a tendency to indulge in particular foods, or to overeat is outside the realm of her expertise.
24. Discussing the basis for dietary preferences, Dr English stated that the major factor that has been identified in virtually all research papers is that food habits are based upon food that people become used to when growing up.
25. The basis for the second hypothesis advanced by the Applicant was that because of the blandness of the deceased’s diet in the navy, he resorted post-service to fresh food with flavour, namely freshly cooked meat, three times a day, meat with fat untrimmed, and diary products such as milk, cream and cheese.
26. Dr English was also cross-examined regarding a reaction to a bland diet and stated she knew of no references that had been able to show that relationship.
27. A difficulty with the hypothesis suggested by Dr Volker is, as she makes clear in her first report, war-service dietary estimates for the deceased could not be made and were not validated. At page 5 of Exhibit A9, Dr Volker states:
… Mrs Dowde reported that her husband maintained that the food was always greasy, often tinned and that he consumed three meat meals per day. When naval allowances were compared with the various army ration scale allowances, it can be concluded that the naval diet contained more butter and cheese. …
No comment is made in the reports as to the flavour of the meals.
28. Dr English in her evidence pointed out that fat intake has never been regarded as addictive as opposed to alcohol and tobacco.
29. As stated above, Factor 5(c) of Instrument No 28 of 2005 requires the calculation of animal fat consumption by the deceased. In this matter, the Applicant has answered a questionnaire relating to the deceased’s diet on four different occasions. As to the validity of those surveys, Dr English in her report of 30 March 2007 said at page 14:
…
There are a number of scientific positions about which there is international agreement in published papers in refereed journals, and in official country reports and recommendations on nutrition principles, relating to the validity of dietary recall. Irrespective of the choice of dietary survey methodology or diet form completed, it is not possible to validate the accuracy of food intake in either the near or distant past, as subjectively reported by applicants, without access to dietary information of food intake recorded at that time, or some objective measure of the validity of the reported intake. This recall becomes more questionable, if based on the memory of a surrogate (such as a spouse) and not the recall of the person whose diet is under examination.
…
30. In evidence, Dr English agreed with the Tribunal that it would be unwise to rely on any analysis of the data before it by virtue of the basic unreliability of the data.
31. The following is an extract from the transcript of the proceedings when Dr English was questioned by Tribunal member Dr Campbell (page 22):
…
Q:Therefore, would it be fair for us to conclude that if the data is unreliable, as you've suggested that it is, then to rely upon any analysis of that data [it] would be an unwise thing to do?
A:Well, that’s a conclusion that I would come to in relation to my reporting in this particular case that the data is unreliable because it can’t be validated in terms of energy intake consistent with energy requirement.
…
32. At page 5 of Exhibit R3, Dr English records:
…
In the telephone interviews, Mrs Dowde provided information on the deceased veteran’s occupation, activity/lifestyle and weight during 1976 to 1981. The Applicant confirmed that the veteran had maintained a healthy weight of 10 ½ stone (66.8 kg) at this time, less than his discharge weight at medical examination of 15.5.56 of 11 stone, 6 lb (72.7 kg). The available medical reports do not record the veteran’s body weight until several months after his diagnosis of prostate cancer in May 2001. On 10.10.01, a weight of 70 kg, height 168 cm and body mass index of 24.8 (just falling within the healthy weight range of 18.5 to 25) are reported for the veteran … .
…
33. Essentially, the conflict between Dr Volker and Dr English is that, whereas Dr English considers that the dietary returns for the deceased are invalid, Dr Volker regards them as valid.
34. Dr English's opinion is summed up at page 3 of Exhibit R3:
…
Although the dietary return for Mr Dowde for the post-service period has been analysed to show that the veteran increased his animal fat intake by more than 40 percent over his assigned pre-service intake, it is concluded that this return is invalid. The animal fat intake and total energy intake of the diet that the late veteran is reported to be eating during his post-service period are excessive and are not commensurate with his age, his body weight, his occupation and leisure activity. The reason for this inconsistency is clearly the significant over-reporting of the veteran’s post-service diet, as detailed in the questionnaire return for Mr Dowde.
…
35. Dr Volker, on the other hand, explains the deceased’s maintenance of a healthy weight as due to his activity levels and his metabolism.
36. Dr Volker took issue with Dr English's methodology, in particular her reliance upon what are known as the Schofield Equations. In the opinion of Dr Volker, it was not possible to apply these equations to individuals. Dr Volker’s opinion on this was based upon her reading of a paper by P.M. Warwick in the “Australian Journal of Nutrition and Dietetics” (1989).46.
37. The study carried out by Schofield to which both Drs Volker and English referred, appeared in the publication Human Nutrition: Clinical Nutrition (1985) 39C. Suppl 1 5-41. As Dr English pointed out in her evidence, the equations set out by Schofield in his paper, are applied by the National Health and Medical Research Council of Australia.
38. We are satisfied that Dr English in the course of her cross-examination answered the criticisms regarding the methodology and sampling used in the Schofield study raised by Dr Volker. Dr Volker, in attacking the study, relied upon the paper by Warwick. It was Dr English's opinion that Dr Volker had misinterpreted this paper and as Dr English was a member of the steering committee to whom Dr Warwick reported, we accept Dr English's interpretation of the findings in that paper in preference to Dr Volker.
39. We were more persuaded by the evidence of Dr English in this mater and accept her conclusion that if the dietary survey regarding the deceased were correct, it would have been expected that he would show significant weight gain. In particular, we find that Dr Volker’s opinion as to the deceased’s metabolism is pure speculation with no factual basis.
40. The figures given by Dr English were that on the dietary returns prepared by the Applicant, the deceased would have had a weekly weight gain of .2 of a kilo, which if taken over 52 weeks, would be a weight gain of 10 kilos. As this did not occur then clearly the figures provided for the deceased as to his animal fat intake are incorrect.
41. Given that the deceased towards the end of his life was diagnosed with PTSD, it may be said a hypothesis has been raised connecting his death with war service. Similarly, as he served on board naval vessels in time of war, it might be speculated that his diet was not an optimum one as regards freshness and flavour.
42. Notwithstanding those hypotheses might be said to have been raised, we are satisfied beyond a reasonable doubt that:
(i)The deceased did not increase his intake of animal fats because of any war-caused anxiety state (of which PTSD is but one);
(ii)That nothing in his diet during war service caused him to increase his intake of animal fats post-service; and
(iii)The dietary surveys completed by the Applicant are inaccurate and not to be relied upon.
43. In R v Hytch [2000] QCA 315 at para 51, McKenzie J said:
…
“Chamberlain [No 2] requires that no element of the offence be inferred adversely to an accused unless the intermediate facts, from which the inference is drawn be proved beyond reasonable doubt. But as Shepherd holds, Chamberlain [No 2] imposed no requirement that the jury accept beyond reasonable doubt every piece of inculpatory evidence relevant to the existence of intermediate fact. The evaluation of evidence is a matter for each juror to approach in the light of his or her experience of life but the standard of proof beyond reasonable doubt governs the finding of facts essential to the guilt of the accused on the offence charged. The pieces of evidence are strands in a cable tending to establish a material fact, but intermediate facts established by evidence are links in the chain of proof of the fact to be inferred. The standard of proof applies to links; it says nothing about the strands”.
…
44. In this matter therefore, not every strand, that is to say every piece of evidence in the Applicant’s case, which, it is said establishes a hypothesis, need be disproved beyond reasonable doubt. But as we are satisfied beyond reasonable doubt that the required relationship to service and the required factor, namely the increased intake of animal fat by at least 40 percent over five years, have been negatived beyond reasonable doubt then the whole hypothesis can be said to be disproved to that standard.
45. The decision under review is therefore affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell, Member
Signed: ...........[sgd].....................
Mwela Kapapa, AssociateDate/s of Hearing: 21 January 2008
Date of Decision: 21 February 2008
Counsel for the Applicant: Mr L Karp
Solicitor for the Applicant: Veterans’ Advocacy Service, Legal Aid
Advocate for the Respondent: Department of Veterans Affairs
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