Horton and Repatriation Commission
[2005] AATA 1262
•20 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1262
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/593
VETERANS’ APPEALS DIVISION ) Re HAZEL ISOBEL HORTON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date20 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 war-caused – decision affirmed
Veterans’ Entitlements Act 1986: ss 5C, 7,8,13,120,120A, 196 (B)(14)
REASONS FOR DECISION
Deputy President Don Muller 1.Hazel Isobel Horton, 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, John Derek Horton, died from the effects of a war-caused disease, namely, prostate cancer.
3.The elements of her claim are:
(a)John Derek Horton died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr Horton 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 Horton’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 Army.
(e)The food that he had become accustomed to eating during his years in the Army was higher in animal fat content than his pre-service diet.
(f)Thus, Mr Horton’s death from prostate cancer was related to his Army service.
4.Mrs Horton’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 Horton 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 Army, 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)John Derek Horton was born in Brisbane, Queensland on 22 December 1916.
(b)After he left school, Mr. Horton started training as an electrician and he worked part time as a radio mechanic and in a bike shop.
(c)He joined the Australian Citizen Forces on 28 August 1940.
(d)He trained at Fort Lytton, Brisbane, for various periods from 11 January 1941 until 3 November 1941.
(e)He was “taken on strength” for full-time duty with the Australian Army on 3 November 1941.
(f)He served as an electrician involved in wiring search lights and residential quarters.
(g)During his time in the Army he rendered operational service in New Guinea for one month from 2 December 1941 until 9 January 1942. The actual time spent in New Guinea was from 11 December 1941 to 3 January 1942 during which he was hospitalised with measles.
(h)He spent the remainder of his Army service in Brisbane.
(i)He met the Applicant in 1942.
(j)He was discharged from the Army on 7 February 1944 on the ground that he suffered from “Constitutional Psychoneurosis”.
(k)Mr Horton married Hazel Isobel Horton on 13 September 1947.
(l)He was diagnosed with prostate cancer in September 1981.
(m)He died on 24 September 1995. The cause of death was Prostatic carcinoma – 14 years.
(n)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. On 5 June 1950, Mr. Horton made a claim on the Repatriation Commission for the acceptance of (a) Nervous condition, and (b) Stomach condition as related to his war-service. He was diagnosed as having Constitutional Psychoneurosis with Dyspeptic symptoms. The medical reports contain the following entries:
“27.10.49 Gets gnawing pain across epigastrium in morning and before meals – relieved by food. Belches wind a lot. No haematemesis or melena.
O.E.: Ant. and post. piles – internal. Also a small fissure anteriorly. Abdo.: Slight epigastric tenderness. ? Duodenal ulcer.
To Med. O.P.D. please.
27.10.49 T.99. Urine clear. For past 2 years has had off and on attacks of epigastric pain in a.m. and about 2 hrs. p.c.
Relieved by eating and drinking milk. Gaining weight. Bowels constipated. B.P. 120/70
Abdo. Ba. Meal. R/Amphogel i.dr.prn.
To Surgical O.P.C. re piles.
22.11.49 X-ray report: stomach and duodenum N.A.D.
25.11.49 X-ray N.A.D. Amphogel idr. tds.
18.7.50
The dyspepsia seem to be of the functional type although he improves on diet and alkalies (ad phenobarb).He was boarded out of the army as a constitutional neurosis and it appears to me that his dyspepsia is just another manifestation of that condition.
Diagnosis – Functional Dyspepsia.
This seems to be related to domestic and housing conditions at the present. Does not seem to be related to W.S.”
The claims were rejected on the basis that Mr. Horton’s medical problems were not due to war-service.
20.Mrs. Horton 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 met Mr Horton in 1942 and they were married in 1947.
(a)She knows nothing about Mr. Horton’s pre-war diet, nor does she know anything about his diet whilst on service.
(b)She prepared all of his meals after they were married.
(c)Her husband had dyspepsia which she believes he developed during his Army service. It continued until he died. He drank copious quantities of milk to relieve his dyspepsia. He would always drink milk with his meals.
(d)He continued to drink milk as part of his diet, as well as ice-cream, until the 1980s when he developed an allergy to milk. He then drank a soy milk replacement called “so good”.
(e)She completed a “dietary survey” for the purposes of this claim, on 23 August 1999. She found some of the questions confusing. She completed a further dietary survey on 27 December 2001.
(f)After his discharge from the Army, Mr. Horton worked for Mains Road as an electrical assistant.
(g)They did not own a car until the 1970’s. Until that time Mr. Horton rode a bike and would walk to the train station to get to work. He regularly rode his bike for relatively lengthy periods on the weekends, for recreation.
(h)Mr Horton was very active around the home. He cemented under the house, cut the grass and did painting if there was some to be done.
(i)Mr. Horton was never overweight; he seemed to be underweight. He did not appear to her to change during their married life.
21. Mr. Horton’s height and weight were recorded on the following occasions (as far as is known):
28.8.40 (on enlistment) - 5’5” -weight 47.3.kgm
17.8.42 - 5’6½” - weight 55.4 kgm
27.6.50 - 5’7½” -weight 62.6 kgm
1961 - - weight 77 kgm
7.6.90 - - weight 69 kgm
22. The material placed before the Tribunal:
(a)does not reveal what Mr. Horton ate prior to service;
(b)indicates that the average animal fat intake of the male population pre World War II was about 126 gm per day;
(c)shows that at 47 kgm on enlistment, Mr. Horton was in the underweight range. (He probably had an animal fat intake of less than 126gm per day on average.);
(d)does not reveal what Mr. Horton ate while on service;
(e)indicates that the ration packs in New Guinea contained 113.8 gm of animal fat per day, at the time Mr. Horton was in New Guinea;
(f)indicates that he was only in New Guinea for about three weeks and that he spent most of that time in hospital with the measles;
(g)reveals that Mr. Horton’s wife cooked all of his meals at home, with no input from him apart from his consumption of milk and ice-cream;
(h)reveals that he drank copious quantities of milk and ate ice-cream because of chronic dyspepsia (which was not accepted as being related to his Army service);
(i)reveals that a significant amount of Mr. Horton’s intake of animal fat in his post war diet was due to his consumption of large quantities of milk and ice-cream.
23. The whole of the material does not raise the hypothesis that Mr. Horton 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.
24. No hypothesis is raised which links the death of Mr. Horton with the particular circumstances of his eligible service.
25. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 25 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 20 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
0
0
0