Fraser and Repatriation Commission

[2005] AATA 1253

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1253

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/599

VETERANS' APPEALS  DIVISION		)
Re		BERYL WILMA FRASER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date16 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 – post eligible service diet not connected with circumstances of service – decision affirmed

Veterans’ Entitlements Act 1986: ss.5C, 7,8,13,120,120A, 196B(14)

REASONS FOR DECISION

Deputy President Don Muller        

1. Beryl Wilma Fraser, the Applicant, has claimed a widows’ pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the VEA).

2.      She claims that her late husband, Alexander William Fraser, died from the effects of a war-caused disease, namely, prostate cancer.

3.      The elements of her claim are:

(a)Alexander William Fraser died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr. Fraser 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. Fraser’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed when 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. Fraser’s death from prostate cancer was related to his RAAF service.

4.      Mrs. Fraser’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. Fraser 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)Alexander William Fraser was born in Hamilton, New South Wales on 23 April 1918.

(b)He enlisted in the RAAF on 22 May 1939.

(c)He served as an electrician and electrical fitter.

(d)He served in the RAAF for over 26 years and was discharged on 9 September 1966.

(e)He rendered operational service during World War II.  He served in Milne Bay, Madang and Port Moresby from 31 March 1945 to 4 July 1946.

(f)The balance of his service was rendered in Australia.

(g)He married his first wife, Mavis Fraser, in 1943.  She passed away in about 1971.

(h)The extract of his post World War II postings show:

4.7.46          Sydney

9.8.46          Canberra

17.6.47       Laverton

14.11.49     Richmond

23.4.51       Williamtown

30.4.52       Amberley

(i)He married, the Applicant, Beryl Wilma Fraser, on 13 October 1973.

(j)He was first treated for prostate cancer in 1990.

(k)He died on 26 November 1994.  The cause of death was Disseminated Carcinoma of the Prostate.

(l)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.

19.     Mrs. Fraser 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):

·She first met Alexander Fraser and his first wife Mavis in about 1949.  They attended the same church in Sale, Victoria.  Mr. Fraser was stationed at the Sale Air Force Base.

·Mr. Fraser and his first wife, Mavis, boarded with friends of theirs in Sale.  The friends supplied the Frasers with breakfast and dinner.  Mr. Fraser had lunch at the Base.

·The Applicant does not know what food Mr. Fraser ate when he was living at Sale.  She never visited him or his first wife at their friends’ home.

·Mr. Fraser and his first wife, Mavis, moved to Queensland in about 1952 when Mr. Fraser was posted to Amberley.  They lived at Ipswich.

·The Applicant moved to Queensland in 1960.

·The Applicant was often invited to stay with Mr. Fraser and his first wife, Mavis, for weekends.  Eventually the Applicant spent just about every weekend with the Frasers.

·Mavis Fraser was a diabetic.  She prepared meals for her husband, and for the Applicant, according to her own diabetic needs.  That is, there were no fats and no sugars.  They had a lot of steamed vegetables and fruit.  They also ate meat, chicken and fish.  The fat was trimmed from the meat.  No fat was used in the cooking.  Cereal was eaten with skim milk.  They usually had salads for lunch in the summer, and soup in the winter.

·After Beryl Fraser married Mr. Fraser in 1973, she prepared all the meals, but carried on preparing much the same type of meals as Mavis had done.  Mr. Fraser had, apparently, become used to the low fat, low sugar diet.

·Mr. Fraser had breakfast and dinner at home, and he had lunch at the Mess on Base.

·Mr. Fraser’s weight remained fairly constant at 82 kgm during their marriage.

20.     The material placed before the Tribunal indicates that Mr. Fraser’s post war diet consisted almost entirely of the food prepared by his first wife, Mavis, and by his second wife, Beryl.  The food prepared by Beryl was the same type of food as that previously prepared by Mavis.  The food prepared by Mavis was specifically tailored for her diabetic condition.  It was low in fat and low in sugar.

21.     There is no evidence as to what Mr. Fraser ate prior to service, nor any evidence as to what he ate while on operational service in New Guinea.

22.     There is no indication in the material placed before the Tribunal that Mr. Fraser’s service in Milne Bay, Madang or Port Moresby had anything to do with his diet in the years following his eligible service.  It is clear that he did not insist on eating fatty foods.  It is also clear that he was not served fatty food at home.

23.     No hypothesis is raised which links the death of Mr. Fraser with the particular circumstances of his service.

24.     The decision to reject the Applicant’s claim for a widows pension is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  14,21.3.05;  8.4.05;  10,11,12.5.05; 20,22.6.05;    30.9.05 

Date of Decision   16 December 2005
Counsel for the Applicant           Mr. D. O’Gorman
Solicitor for the Applicant            Gilshenan and Luton
Counsel for the Respondent       Ms. E. Ford
Solicitor for the Respondent       Mr. S. Francis