Hore and Repatriation Commission
[2005] AATA 1286
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1286
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/371
VETERANS’ APPEALS DIVISION ) Re MARGERY ESME HORE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date22 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: ss5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1.Margery Esme Hore, the applicant, has claimed a widows’ pension pursuant to section 13 of the Veterans Entitlement Act 1986 (the VEA).
2.She claims that her late husband, Leonard James Hore, died from the effects of a war-caused disease, namely, prostate cancer.
3.The elements of her claim are:
(a)Leonard James Hore died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr Hore 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 Hore’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 Hore’s death from prostate cancer was related to his RAAF service.
4.Mrs Hore’s claim has been rejected by the Respondent on the grounds that her late husband's death was not causally related to his service.
5.The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6.Mrs Hore seeks a 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:
the veteran’s pre-war service diet contained animal fat of X grams per day on average;
the veteran’s war service diet, provided to him by the RAAF, contained animal fat of (X + Y) grams per day on average;
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)Leonard James Hore was born in Melbourne, Victoria on 7 January 1921.
(b)He enlisted in the RAAF on 11 July 1941.
(c)He served as a clerk in the RAAF.
(d)He had operational service in the South West Pacific from 6 June 1943 to 24 October 1944.
(e)He married his first wife, Dolleen, in 1944.
(f)He married his second wife, Margery Esme Hore, on 2 January 1974.
(g)He was first treated for prostate cancer in July 1988.
(h)He died on 18 March 1999. The cause of death was “(a) Disseminate prostate cancer and (b) Pneumonia cachexia”.
19.The material relating to Mr. Hore and his diet was provided by his widow, Margery Esme Hore, and by his daughter by his first wife, Bronwen Marina Malpas. Other material was presented by dieticians, Ms. Linda Kilworth and Dr. Ruth English. Mr. Hore’s service records also contained information about his postings during World War II and his weight on enlistment and discharge.
20.The material relating to Mr. Hore reveals the following:
(a)After he left school he worked as an Insurance Clerk.
(b)There is no evidence about his diet prior to his enlistment in the RAAF in July 1941.
(c)His pre-war diet was probably similar to that revealed in the 1936-38 national dietary survey which indicated that the diet of Australian adult males contained an average animal fat intake of 122 gm to 126 gm per day.
(d)On enlistment, Mr. Hore was 6’0” tall and he weighed 166lb (73 kgs).
(e)There is no evidence about his diet during his service with the RAAF in World War II. He was based in Victoria (Melbourne and Werribee) until May 1943 when he travelled to Sydney to embark for Milne Bay in June 1943. He returned to Melbourne in December 1944 where he remained until just before his discharge. The material shows that the Australian service ration from 11 July 1941 to 30 March 1942 contained 89.6 gm/day of animal fat. After that the Australian ration contained 113.9 gm/day animal fat.
(f)There is no direct evidence about Mr. Hore’s diet while he was on service in New Guinea and the South West Pacific Islands. However, the dieticians gave evidence that the South West Pacific ration packs contained on average 113.9gm/day animal fat in the early to middle stages of World War II, increasing to 132.5 gm/day of animal fat in the latter stages of World War II. Mrs. Hore said that her husband told her that at one stage he was attached to an American unit and that they had better food than the Australians.
(g)Mr. Hore’s weight on discharge was 170lb (74½ kg).
(h)After he was discharged from the RAAF he returned to work in the insurance industry.
(i)Mr. Hore’s first wife, Dolleen, the mother of Bronwen Malpas, passed away. There is no evidence as to when she died.
(j)The applicant, Margery Hore, first met Mr. Hore in 1955 but she did not marry him until after his first wife died. She married Mr. Hore on 17 January 1974.
(k)Mr. Hore had an overactive thyroid during the 1950s. It was believed that the thyroid condition kept him thin.
(l)In 1978 he had a thyroidectomy, after which he gained some weight.
(m)Mrs. Malpas, who was born in 1947, recalls that when her mother was alive, Mr. Hore’s meals and diet were much the same as they became when he married Margery. She added the following:
·The family always had a roast on Sunday evening for dinner.
·Every Monday evening the meal consisted of left over cold meat dipped in egg and flour then fried.
·Dolleen was an excellent cook and regularly made cream cakes and cream horns which Mr. Hore enjoyed.
·Mr. Hore liked cheese – camembert was his favourite.
(n)Mr. Hore was not a particularly big eater. “He refused to carry weight. He did not want to be fat.”
(o)Mr. Hore’s weight remained fairly constant throughout his life. He weighed about “10 to 12 stone” (62kgm to 74kgm).
(p)He took physical fitness seriously.
(q)Prior to his second marriage and during that marriage, Mr. Hore would run every morning for a period of at least half an hour.
(r)Mr. Hore was a member of a gymnasium that he visited up to three to four times a week to keep himself fit.
(s)Mr. Hore sent Margery to “Weight Watchers”. They used to eat the diet provided by Weight Watchers but he was the one that lost weight and she did not.
(t)Mr. Hore and his wife, Margery, ate the following types of meals:
·They would sometimes eat lamb roast, roast chicken, casserole, chops or steak for dinner.
·At lunch time Mr. Hore would have cheese and asparagus on a sandwich or salad with cold meat. Cheese and pickle sandwiches were Mr. Hore’s favourite.
·In winter for supper, Mr. Hore would have the occasional crumpet or muffin, while in summer he would have cheese and biscuits.
·For breakfast, Mr. Hore used to regularly have two boiled eggs. Margery Hore liked bacon and she introduced bacon to Mr. Hore’s breakfasts.
(u)In 1988, Mr. and Mrs. Hore retired to the Gold Coast.
(v)After he retired, Mr. Hore played golf about three times per week.
(w)In about 1989-1990, Mr. Hore ceased to go to the gymnasium or running in the mornings. Instead he would walk for an hour each morning.
21.The material placed before the Tribunal:
(a)does not reveal what Mr. Hore ate prior to service but he probably had a daily intake of about 126 gm of animal fat;
(b)does not reveal what Mr. Hore ate whilst stationed in Australia during World War II but he probably ate the normal service rations which contained a daily amount of 89.6 gm, rising to 113.9 gm, of animal fat;
(c)does not reveal what Mr. Hore ate whilst on operational service but he probably ate service rations for the area in which he was stationed, which contained a daily amount of 132.5 gm of animal fat;
(d)reveals that Mr. Hore’s two wives cooked the typical Australian meals for the period and that he ate them;
(e)reveals that Mr. Hore was not a particularly big eater;
(f)reveals that Mr. Hore was very conscious of his weight and as part of that consciousness sent his second wife to Weight Watchers;
(g)does not indicate that Mr. Hore developed a taste for animal fat during his RAAF service, but indicates the very reverse, in that he did not eat bacon for breakfast until his second wife introduced it into their breakfast diet;
(h)indicates that Mr. Hore’s weight remained fairly constant throughout his adult life at between 62 kgm and 74 kgm.
22.The whole of the material does not raise the hypothesis that Mr. Hore increased his post war intake of animal fats by any significant level, for a significant number of years, over his pre-war diet, for reasons related to his service.
23.No hypothesis is raised which links the death of Mr. Hore with the particular circumstances of his eligible 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, AssociateDate/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 22 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
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