Greer and Repatriation Commission - [2001] AATA 372

DECISION AND REASONS FOR DECISION [2001] AATA 372

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/693

VETERANS' APPEALS DIVISION       )
           Re      MYRA GREER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date7 May 2001
PlaceSydney

Decision      The Tribunal determines that the decision under review be affirmed.
  [sgd] Dr J D Campbell
  Member
CATCHWORDS
Veterans' Entitlement - application for war widow's pension - cause of death of veteran - carcinoma of prostate - issue of war caused disease - mite infestation

Veterans' Entitlement Act 1986, sections 120, 120B

Repatriation Commission v Deledio (1998) 83 FCR 82
Gorton v Repatriation Commission [2001] FCA 286

REASONS FOR DECISION

Dr J D Campbell , Member

In this application, Mrs M Greer ("the Applicant") seeks a review of the decision of the Repatriation Commission ("the Respondent") dated 23 August 1999 that the death of the Applicant's husband, Mr George Greer, was not related to service. This decision was reviewed by the Veterans' Review Board and affirmed in a decision dated 9 February 2000.
A hearing was held before the Tribunal in Sydney on 4 April 2000 at which the self represented Applicant presented oral evidence in furthering her claim. The Respondent was represented by Mr Godwin, an advocate from the Department of Veterans' Affairs.
The following material was placed into evidence before the Tribunal:
Exhibit No  Description              Date
T1-T10 pp1-44 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Report from Hope Healthcare      5 August 2000
A2      Clinical notes Dr G Peponis
R1      Respondent's Statement of Facts and Contentions     28 March 2000

issue

The relevant issue in this matter is whether the death of the Applicant's husband was war caused.
legislation
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 120(4), 120B, 196B.
background
The Tribunal documents identify that the Applicant applied for a widows pension on 11 August 1999, and in her application stated that her late husband had died from metastatic cancer of the prostate and that he had suffered from dermatitis of both hands and forearms, both feet and his mouth during his service and thereafter. Mr Greer's date of death was recorded on the death certificate as 8 May 1990 and cause of death metastatic carcinoma of the prostate (T5, p 26).
The Respondent declined the Applicant's claim concluding that the evidence did not show any reasonable connection between the death of Mr Greer and his eligible service (T6). The matter was reviewed by the Veterans' Review Board ("VRB") and in a decision dated 9 February 2000, the finding that Mr Greer's death was not related to service was affirmed (T9).
The late veteran was born on 27 July 1921; enlisted in the Army on 28 May 1942 and served continuously within Australia until demobilisation on 17 April 1946.
applicant's evidence
The Applicant told the Tribunal that she married her late husband on 18 October 1941 and that she had two sons who lived in suburbs near to her place of residence.
The Applicant stated that her late husband suffered from a mite infestation dermatitis during his service while at Dubbo and Greta, and this dermatitis which involved his feet, hands, forearms and mouth caused her husband much stress. She stated that it recurred every three months and lasted for four to five days, with her husband becoming very moody in the days prior. She stated that her late husband had been a long time worker at the local council, and that it was only in the last few years of his life that the skin condition had not caused him the trouble of the earlier 30 years. The Applicant stated that her late husband used to drink beer on week days and whisky on weekends to help him cope with the stress and "nerves" arising from his skin condition.
In response to direct questioning from the Tribunal, the Applicant was unable to recall her late husband talking about the use of insecticides or herbicides when he was in the Army.
In relation to his diet, the Applicant stated that her husband had lived in Sydney prior to their marriage, and that during their marriage she had not noticed the veteran having a preference for particular types of meals. She stated that he enjoyed drinking milk, but in every other respect he consumed what was put before him, which was essentially meat and vegetables. The Applicant was unable to detail the specifics of the late veteran's diet to allow any particular features of that diet to stand out or indicate any evidence of unusual fat consumption preference.
submission
The Applicant essentially contended that it was the late veteran's mite dermatitis which caused him considerable stress, and that this stress played a part in the causation of the late veteran's prostate cancer and his death.
The Respondent, while noting that the late veteran did suffer from mite dermatitis, contends that the late veteran does not satisfy any of the factors nominated in the Statement of Principles ("SOP") Instrument no 96 of 1995, as amended by SOP Instrument no 192 of 1996, or indeed in the later SOP Instrument no 85 of 1999. As such on the balance of probabilities the late veteran's death from malignant neoplasm of the prostate cannot be said to be related to his period of eligible service.
consideration and findings
In preliminary matters the Tribunal observes that all of the late veteran's service was undertaken within Australia, and more specifically within the Dubbo – Bathurst – Sydney areas. As such the Tribunal concludes that the standard of proof in the matter is that of reasonable satisfaction pursuant to section 120(4) of the Act.
Further, the Tribunal is obliged, pursuant to section 120B to consider the relevant SOP as issued by the Repatriation Medical Authority ("RMA"). These SOP's set out the minimum factors, of which one must be present before a veteran's death or disease can be found to be connected to his service. In this matter the Tribunal concludes, that the appropriate SOP is no 96 of 1995 as amended by SOP no 192 of 1996. The Tribunal also considered SOP no 85 of 1999 issued on 9 November 1999, some three months after the primary decision, but concludes that there is no evidence of a contrary indication to be found in the latter SOP that would be permissive for the Tribunal to disregard the general principle that the SOP to be applied is the one in force at the time of the Repatriation Commission's primary decision. In so concluding, the Tribunal did observe that there was not a significant variation in the relevant factors between the two SOP's, and hence any question of one being perceived to be more beneficial to the Applicant in this matter is without merit.
As stated, the relevant SOP to be applied is SOP no 96 of 1995 as amended by SOP 192 of 1996, with the relevant factors being:
"(a) increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate; or
(b) inability to obtain appropriate clinical management for malignant neoplasm of the prostate."
In considering the evidence raised by the Applicant, it is clear that factor 1(b) is not applicable, for the late veteran suffered his prostate cancer some 40 years after service, and certainly there would appear no evidence of an inability to obtain appropriate clinical management.
In considering the evidence raised by the Applicant in relation to the late veteran's fat consumption, the Tribunal does conclude that the evidence given does not satisfy any of the requirements in factor 1(a), in that there is no evidence available to quantify his problem, war and post war animal fat consumption to any degree of accuracy which would allow the Tribunal to conclude that there has been an increase in animal fat consumption by at least 40% by the late veteran and that his animal fat consumption amounted to 70gms/day for at least 25 years, before the clinical onset of his malignant neoplasm of the prostate.
It is the Tribunal's finding that the late veteran does not satisfy any of the nominated factors and as such the Tribunal does find on the balance of probabilities that the late veteran's malignant disease of the prostate is not related to his war service.
The Tribunal notes that the Applicant placed much of her evidence and thinking on the issue of stress arising from the effects of the mite dermatitis. Unfortunately the matter of stress is not a factor nominated within the appropriate SOP and hence any argument citing stress as a factor must fail in these circumstances.
determination
The Tribunal determines that the decision under review be affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  4 April 2000
Date of Decision  7 May 2001
Counsel for the Applicant        Self represented
Solicitor for the Respondent    Mr Godwin