Duel and Repatriation Commission
[2005] AATA 1311
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1311
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/1271
VETERANS' APPEALS DIVISION ) Re EDNA FLORENCE DUEL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 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 related to service – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Edna Florence Duel, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Duel claims that her late husband, Eric James Duel, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Duel’s claim are:
(a)Eric James Duel died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Duel 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. Duel’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 Royal Australian Air Force (the RAAF).
(e)The food that he had become accustomed to eating during his years in the RAAF was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Duel’s death from prostate cancer was related to his RAAF service.
4. Mrs. Duel’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. Duel 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)Eric James Duel was born at Yeppoon, Queensland on 18 April 1925
(b)He enlisted in the RAAF on 22 April 1943.
(c)He served in the RAAF for almost 3 years and was discharged on 14 January 1946.
(d)He rendered operational service. He served continuously in the United Kingdom, embarking from Sydney on 21 January 1944 and returning to Sydney on 28 November 1945. He was a wireless operator on the planes flying missions over Germany.
(e)He married Edna Florence Duel on 19 April 1952.
(f)He was first diagnosed with prostate cancer in August 1989.
(g)He died on 29 September 1989. The cause of death was (a) renal failure, and (b) prostatic carcinoma.
(h)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Duel 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 met Mr. Duel in approximately 1947 or 1948 when she was approximately 20 years of age.
(b)She married Mr. Duel on 19 April 1952.
(c)She has no knowledge of her husband’s diet prior to his joining the RAAF.
(d)Her husband did not tell her a lot about his experiences during the war. He told her that they always knew when they were going out on a mission because they got bacon and eggs for breakfast. They regarded it as similar to a “last rites” exercise.
(e)Her husband told her that when they were not doing missions they spent most of that time drinking and smoking.
(f)Her understanding was that her husband ate at the RAAF Mess when he was in the RAAF.
(g)After they were married she prepared all of the family meals at home. She also prepared her husband’s lunches for him to take to work.
(h)Her husband worked as a clerk for the Brisbane City Council both before and after the war. He worked on the payroll trucks.
(i)She completed a “dietary survey” for the purposes of this claim, on 1 September 1999 and 23 July 2001. She found some of the questions confusing. She completed a further dietary survey which is undated.
(j)Mrs. Duel saw photos of her husband at the age of 17 when he was of a slim build. When she met him in 1947 – 1948 he was of ‘stocky’ build.
(k)Her husband had a good appetite, ate large portions and enjoyed meat, chips, camp pie and other junk food after returning from the war.
(l)Mrs. Duel would either roast the meat or fry it in a frying pan with dripping. Her husband always ate the fat around the side of chops and steaks.
(m)Mrs. Duel would use about two spoonfuls of lard and dripping when roasting the meat. She would then use this dripping to make gravy.
(n)Dinners would vary and consist of beef, steak, roast, lamb or beef stew, pork sausages, pork chops, or mutton.
(o)Vegetables were either roasted or boiled with butter added. Potatoes and pumpkin would be mashed with butter and milk added.
(p)Mrs. Duel would make meals for her two sons, and her husband. She was careful about making a healthy diet for them. She was quite careful because her husband had ulcers.
(q)Mrs. Duel would try to give her husband a healthy sandwich or salad for lunch at work, usually made with camp pie, corned meat or ham. The sandwiches were made with brown or white bread. Sometimes he would not eat the salad or not have time to eat lunch at work.
(r)Her husband would sometimes buy meat pies or chips for lunch as well as the packed lunch.
(s)During their marriage they would both have take-away hamburgers or fried chicken about once a week.
(t)During the early years of their marriage her husband would eat desserts of tinned cream or whipped cream and home made apple pie or slices. From about the 1970s onwards her husband enjoyed desserts with ice cream.
(u)Her husband would normally eat a hot breakfast every morning, sometimes he would have a beef sausage and an egg.
(v)Her husband occasionally ate morning or afternoon tea or coffee and a biscuit. However when he was working as a clerk he would normally only have a coffee. If he had had a cooked breakfast he would only have coffee for morning tea.
(w)Her husband was an active man who played cricket, football and golf. He played tennis fixtures at least once a week. He also practised on other occasions during the week.
(x)She regulated how much fat her husband ate. They were really not “fat eaters”. They sometimes had “light meals”.
20. There is no evidence about what Mr. Duel ate prior to his enlistment in the RAAF. He probably had a diet similar to the average Australian adult male at the time. According to Dr. English, nutritionist, an Australian nutrition survey conducted in 1936-38 concluded that the average adult Australian male consumed between 122 and 126 gm of animal fat per day.
21. There is no evidence about what Mr. Duel ate during his RAAF service in Australia or in the United Kingdom, apart from the fact that he got bacon and eggs for breakfast prior to going on a mission. I assume that bacon and eggs for breakfast was not served on a regular basis. Dr. English has produced figures which show that service ration packs contained animal fat in the amounts of 107.7 gm/day in Australia and 86.3 gm/day in the United Kingdom.
22. The evidence shows that Mr. Duel did not have much of a say in what he ate after he was married. His wife controlled their eating patterns. She regulated how much fat her husband ate. She obviously believed that fatty food was not good for people with ulcers. She said that they were not fat eaters and that they sometimes had light meals.
23. The whole of the material placed before the Tribunal indicates that Mr. Duel may have consumed less animal fat whilst he was in the RAAF than he did before his service. It certainly does not indicate that he increased his animal fat intake after he joined the RAAF and it does not indicate that he developed any particular preference for fatty food, nor any other food preference for that matter.
24. The whole of the material does not raise the hypothesis that Mr. Duel increased his consumption of animal fat whilst he was in the RAAF, nor does it raise the hypothesis that he increased his post war intake of animal fats by any significant level, for a significant number of years, over his pre-war diet, for any reasons related to his service.
25. No hypothesis is raised which links the death of Mr. Duel with the particular circumstances of his eligible service.
26. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 26 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 23 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
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