Grundman and Repatriation Commission
[2000] AATA 1005
•9 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 1005
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/167
VETERANS' APPEALS DIVISION )
Re VERNA GRUNDMAN
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member, Mr I.L. Campbell, Member Associate Professor Maynard, Member
Date9 November 2000
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(Sgd) Joan Dwyer
Senior Member
VETERANS' ENTITLEMENTS – widow's pension – whether death war-caused – death certificate referred to prostrate carcinoma and ischaemic heart disease, hypertension – whether factor (c) in Hypertension/Ischaemic Heart disease SoP relating to ingestion of salt is satisfied – whether factor (b) in SoP for malignant neoplasm of the prostrate is satisfied – requirement of increase in consumption of fat related to service – no material raising the hypothesis that increase in fat consumption was due to service – decision affirmed
Statement of Principles Instruments Nos. 25 of 1999, 191 of 1996
REASONS FOR DECISION
9 November 2000 Mrs Joan Dwyer, Senior Member, Mr I.L. Campbell, Member Associate Professor Maynard, Member
This is an application for review of a decision of the Repatriation Commission made 31 March 1999, and affirmed by the Veterans' Review Board on 15 January 2000. The Repatriation Commission decided that Mr Grundman's death was not war-caused within the meaning of that term in s 8 of the Veterans' Entitlements Act 1986 ("the Act"). Mrs I Black from the office of De Marchi and Associates, solicitors, appeared for Mrs Grundman. Mr J Lenczner of Counsel appeared for the Repatriation Commission.
The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Evidence was given by Mrs Grundman and by Ms Wailes, a nutrition consultant and dietitian.
Mr Grundman served in the Air Force from 15 October 1942 to 25 April 1945. That service included service in New Guinea and thus the whole period of service is operational service as that term is defined in section 6A of the Act. Accordingly, sub-sections 121 and 123 of the Act apply. Therefore the Tribunal is required to find that Mr Grundman's death was war-caused, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
We must be so satisfied if we are of the opinion that the material before us does not raise a reasonable hypothesis to connect the death with the circumstances of the particular service rendered by Mr Grundman. As the claim was lodged after 1 June 1994, s 120A of the Act applies. A hypothesis is reasonable only if it complies with any Statement of Principles ("SoP") issued by the Repatriation Medical Authority in respect of a relevant disease. The applicant's statement of facts and contentions raised hypotheses about ischaemic heart disease and hypertension on the one hand and malignant neoplasm of the prostate on the other. Those hypotheses, it was acknowledged, had to be upheld by the relevant SoP in order for them to be accepted as reasonable hypotheses.
Mr Grundman died on 15 March 1999. The death certificate (T13) gives the cause of death and last illness as follows:
Aspiration, pneumonia - 1 week.
Metastatic prostate carcinoma - 10 years;
Ischaemic heart disease
Hypertension.
hypertension/ischaemic heart disease
The hypothesis relied on was ingestion of increased salt due to war service prior to diagnosis of hypertension. The relevant SoP, Instrument Number 25 of 1999, in factor 5(c) requires:
(c)ingesting at least 12 grams (200 mmol) of salt supplements per day on average for a continuous period of at least six months immediately before the accurate determination of hypertension;
The evidence did not raise or point to any particular quantity of salt ingestion as related to service at any particular time, nor did it allow the Tribunal to ascertain the time of accurate determination of hypertension.
Mrs Grundman said in evidence that she had no idea of the quantity of salt consumed by her husband on service, except that she believed he once wrote that he took four salt tablets per day. Mrs Wailes, in her report of 24 July 2000, wrote on this issue:
Salt consumption during service was via salty foods and the intake of an unknown number of salt tablets per day. The amount of salt in foods as purchased was high but actual intakes are hard to pin down.
Salt consumption continued at a higher level post war and was still used daily in cooking and at table during the sixties, seventies and eighties. Salt was still seen as enhancing the flavour of food … .
These results from Mr Grundman show that it is unlikely that he could be said to meet the requirements of the SOP for hypertension since neither the added salt estimated to be used before World War II or the added salt estimated to be used in the mid sixties and on, reached the limit of 12 grams of salt.
There is no evidence pointing to or raising a hypothesis of increased salt consumption related to service such as to satisfy the requirements of the relevant statement of principles.
malignant neoplasm of the prostate
The relevant SoP is Instrument Number 95 of 1995, as amended by Instrument Number 191 of 1996. That SoP contains factor (b) which recognises increased consumption of animal fats as raising a reasonable hypothesis connecting malignant neoplasm of the prostate with service. The factor is expressed as follows:
(b)Increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;
Paragraph 2 of the SoP provides that the relevant factor:
... must be related to any service rendered by the person.
Ms Wailes, in her report, considered that hypothesis. She obtained from Mrs Grundman a history of diet during World War II, immediately after her marriage in October 1943, and also in the 1960s. The evidence is that the malignancy was diagnosed in the 1980s. We must say that we have grave reservations about the value of the analysis performed by Ms Wailes. It depended on:
(i)Mrs Grundman having an accurate recollection in the year 2000 of the diet and quantities prepared by her mother-in-law in 1943, when she and her husband lived with her in-laws for some months after their marriage on 14 October 1943, prior to her husband being transferred to Bradfield Park in New South Wales, in May 1944.
(ii)That being an accurate representation of her husband's diet at home prior to the war and prior to rationing.
(iii)Mrs Grundman, in the year 2000, having an accurate recollection of the diet and quantities she prepared in the 1960s.
(iv)The accuracy of the analysis used by Ms Wailes.
Those concerns or similar concerns have been reflected by the Tribunal in the matter of Re Collingwoodand Repatriation Commission [2000] AATA 710, at paragraph 62 and also in Re Keenan and Repatriation Commission [2000] AATA 707, at paragraph 54. We agree with the comments. Mrs Grundman seemed confused about some issues in evidence and, not surprisingly, said she had difficulty recalling quantities and frequencies of certain foods in the diet.
We regard that as showing the unreliability of the process of recalling the details of a dietary habit 60 or even 40 years on. We do not regard it as reflecting in any way adversely on Mrs Grundman. Mr Lenczner suggested to Mrs Grundman that perhaps she had sometimes prepared pasta for her husband because it was better for his gastric problems. She agreed with that suggestion, but said he had not liked pasta. Mr Lenczner then attempted to show that the whole analysis required adjustment because of introducing that alternative food into the calculations. We considered that placed undue emphasis on one answer given by Mrs Grundman to a suggestion made by Mr Lenczner.
However, we do consider that the whole process of recollection of diets in this matter was too unreliable to raise any facts from which precise calculations could be made, as required by the SoP. Ms Wailes, in her report, did conclude that a reasonable hypothesis as required by the relevant SoPs for malignant neoplasm of the prostate was raised even though she wrote:
The assumed World War II consumption of animal fat was significantly less than the pre-war consumption but may be an underestimate of actual war intake. There may be a case for seeing this likely intake as enhancing an existing liking for fatty foods which continued to develop after the war.
The evidence, in our opinion, does raise the fact of Mr Grundman eating more fat after service than before service. Ms Wailes calculated the increase as just falling short of satisfying the requirements of the SoP but by so slight a margin as in fact to be treated as satisfying the requirement.
Even if we were to accept Ms Wailes' report as raising facts pointing to the increased animal fat consumption after service that is required by the SoP, there is still a significant problem. There is no material raising or pointing to that increased fat consumption being related to service as required by paragraph 2 of the SoP. Mrs Grundman and Ms Wailes seem to have accepted that an increased liking for foods containing fats after service was due to fatty foods on service:
... enhancing an existing liking for fatty foods which continued to develop during the war.
The best information Ms Wailes could obtain was that Mr Grundman's diet during service contained significantly less fat than his pre-service diet, or even than his diet at his family home during the war. She did not explain how this could have enhanced his liking for fatty foods. Mrs Grundman said her husband enjoyed fatty foods after service but Ms Wailes agreed with Mr Lenczner that the community generally ate more fatty foods during the '60s than pre or during the war. There was nothing in the evidence explaining how the liking for fatty foods was to be related to a diet during service which contained significantly less fatty foods than the war time diet in Mr Grundman's family home.
Mr Grundman did not put on weight during service. He remained at 112 pounds as shown by the entry and final medicals. The evidence did not advance any logical reason to attribute the increase in fat consumption post service to service. All sorts of other explanations for the increased fat were raised, such as rationing during the war years, including when Mrs Grundman lived with the Grundman family, or reduced means during the pre-service years, or simply a preference for fatty foods which Mr Grundman was able to indulge after service. Nothing pointed to the increased fat consumption being due to service except a temporal connection. That, in our view, is not sufficient to raise a reasonable hypothesis connecting the death from malignant neoplasm of the prostate with the circumstances of the particular service rendered by Mr Grundman.
The decision under review will be affirmed.
I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member, Mr I.L. Campbell, Member and Associate Professor Maynard, Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 9 November 2000
Date of Decision 9 November 2000
Counsel for the Applicant Nil
Solicitor for the Applicant De Marchi and Associates
Counsel for the Respondent Mr J Lenczner
Solicitor for the Respondent Office of the Australian Government Solicitor
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