Hyde and Repatriation Commission - [2001] AATA 1019

DECISION AND REASONS FOR DECISION [2001] AATA 1019

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/766

VETERANS' APPEALS DIVISION         )
           Re      IVY NORMA HYDE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member M Allen; Dr J D Campbell

Date14 December 2001
PlaceSydney

Decision The decision under review is set aside and the Tribunal substitutes in lieu thereof its decision that the Applicant, Ivy Norma Hyde, is entitled to pension pursuant to the war-caused death of Eric John Hyde as and from the 20 March 1999.

(Sgd) M D ALLEN ..............................................
Presiding Member
CATCHWORDS
VETERANS' ENTITLEMENTS: Cancer of Prostate. War-caused disease of Peptic Ulcer led to heavy consumption of milk. Daily intake of milk sufficient to meet SoP regarding increase of animal fats.

Veterans' Entitlements Act 1986 - subss120(1), (3) and (6); s120A

Repatriation Commission v Deledio 83 FCR 82
Dixon v Repatriation Commission 29 AAR 235
Rickaby v Repatriation Commission [2001] FCA 971
Fuss v Repatriation Commission [2001] FCA 1529

REASONS FOR DECISION

14 December 2001 Senior Member M D Allen Dr J D Campbell

By application made on 19 May 2000 the applicant sought review of a decision by the Respondent rejecting her claim for pension consequent upon the death of her late husband, Eric John Hyde, from metastatic carcinoma of the prostate.
The deceased Veteran died on 19 March 1999 and it was agreed between the parties that the clinical onset of the disease was in 1992 (see Exhibit R7 page 54).
The said application for review came on for hearing before this Tribunal on 9 November 2001. At that hearing the following documents were taken in as exhibits and marked as follows, namely:
T1 to T34 - documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;
A1 – Applicant's Statement of Facts and Contentions;
A2 – Statement of the Applicant dated 14 August 2000;
A3 – Statement of the Applicant dated 19 November 2000;
A4 – Report of Dr Gertler dated 2 April 2001;
A5 – Report of Dr Gertler dated 1 November 2001;
A6 – Report of Joanne Heyman dated 25 September 2001;
R1 – Respondent's Statements of Facts and Contentions;
R2 – Report of Willi Friderich dated 30 October 2000;
R3 – Report of Associate Professor Mattick dated 7 November 2000;
R4 – Report of Associate Professor Mattick dated 25 September 2001;
R5 – Report of Dr Ruth English dated 3 November 2001;
R6 – Report of John Tilbrook dated 2 November 2001;
R7 – Clinical notes of Dr Gandha
R8 – Report of Dr Kenardy titled "Background Report";
R9 - Report of Dr Kenardy titled "Fat preference, consumption and habit".
As the late Veteran had operational service as that term is defined in subsections 6A(1) and 5(B)(1) of the Veterans Entitlement Act 1986 (the VEA), the standard of proof in this matter is that prescribed by ss 120(1) and (3) of the VEA These subsections provide inter alia that the Tribunal shall determine that the death of the deceased was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal is deemed to be so satisfied if, after a consideration of the whole material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the death of the deceased with the circumstances of the particular service rendered by him.
Section 120A of the VEA states that an hypothesis connecting the death of the deceased with the circumstances of his service will not be a reasonable hypothesis unless it conforms with the so called Statement of Principles (SoP) whereas subsection 120(6) of the VEA provides that neither party to this review bears any onus of proof.
The relevant SoP in this matter is Instrument No 84 of 1999. Although it was not the SoP in force at the time of the original decision in this matter, its terms are not unfavourable to the Applicant when compared to the SoP in force at the time of the original decision so that there is no necessity to have recourse to the superseded SoP, see Repatriation Commission v Gorton [2001] FCA 1194.
The hypothesis contended for by the Applicant was that post-war as a result of his war service, the deceased in conformity with Factor 5(c) of instrument number 84 of 1999 increased his animal fat consumption by at least 40 per cent and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
In assessing the Applicant's case it must be kept in mind that following the investigative steps as set out in Repatriation Commission v Deledio 83 FCR 82 at 97, all that is required is that the material before the Tribunal raise or point to the hypothesis connecting the deceased death with his war service and that proof of fact is restricted to the fourth stage of the Delidio process and that those facts must, in conformity with subsection 120(1) of the VEA, be negatived by the Respondent beyond reasonable doubt, see Dickson v Repatriation Commission 59 AAR 235, Rickaby v Repatriation Commission [2001] FCA 971 and Fuss v Repatriation Commission [2001] FCA 1529.
An obvious difficulty in matters such as this is that in reality it is an impossible task for the aged widow of a deceased World War II Veteran to remember in any great detail what she and her husband ate pre-war and in the immediate war period. Sixty-two years have past since the outbreak of World War II.
In her statement (Exhibit A2) the Applicant said that after marriage and before his enlistment in the AIF she and her husband lived with her mother who did the cooking. She stated, "During this time I would describe our diet as having been stable and wholesome". Cross-examined, "My husband ate what everyone else ate".
The evidence of Dr Ruth English who holds a doctorate in nutritional epidemiology questions the dietary intake of the deceased as described by the Applicant to two dieticians Mr Friderich and Ms Heyman. Overall the diet reported by the Applicant indicates a consumption pattern at variance with dietary data from the period and having regard to the deceased's work level, age and weight. The diet as described by the Applicant would not have supported the deceased's energy requirements.
Dr English pointed out that the average figure for pre-war animal fat intake as reported in the 1936 to 1938 National Dietary Survey was a figure of 123.3 grams.
Cross-examined Dr English could not say what the degree of statistical error nor the standard deviation for the 1936-38 survey was. She did concede that the deceased given his characteristics (energy requirements, height, weight and age) could have existed and maintained health with a dietary fat intake of 115 grams. Given the degree of error that must exist in asking the Applicant to recollect in detail what she and her husband ate pre-war, especially as the cooking was done by her mother, we find it impossible to say what degree of dietary fat the deceased ingested pre-war. It would not be wrong however, given the lack of evidence as to what was the standard deviation in the 1936 to 1938 dietary survey to estimate that the deceased's daily dietary fat intake was between 115 and 123.3 grams.
Post-way similar difficulties are encountered. We find that the best evidence in this regard came from the Applicant's son who stated "we were a middle class Australian family and ate as such".
Whereas the Applicant's son confirmed her evidence that the deceased did cook using large amounts of fat when he did the cooking, we consider that some of the evidence of the Applicant's as to the deceased dietary habits is exaggerated.
On one point however the Applicant is corroborated by independent evidence. Her evidence was that following the diagnosis of his stomach ulcer in 1959, the deceased commenced to partake of dairy products in an excessive amount.
In her statement of 15 August 2000 (Exhibit A2) the Applicant says:
"…My husband drank extremely large quantities of milk after being diagnosed with a peptic ulcer. He was told by his doctor that his nervous state was upsetting his ulcer and that milk might relieve his symptoms. My husband drank approximately six glasses of milk per day and also got up through the night and drank several glasses. He even put milk in his scotches at night and throughout the day. He often had more milk in his scrambled eggs than there were eggs. Each dessert after dinner had to have cream or milk included.
My husband stared eating large quantities of cream and ice cream. He ate huge bowls of ice cream every day. I often wondered how he would get through the bowls that he prepared himself. The ice cream would be piled up in his bowl. My husband would complete a four litre tub of ice cream each week by himself…"
Her evidence to the Tribunal was that as soon as he received his ulcer diet from the hospital the deceased adhered to it and stayed on it until he died.
Tribunal document T7 is a report from the Royal Newcastle Hospital dated 9 September 1965 to the Repatriation Department. In that letter it is stated "it is noted that he attended on 20.8.59 for treatment of peptic ulcer syndrome and was referred to the Dietician for an Ulcer III diet".
Attached to Exhibit A6 is a copy of the Royal Newcastle Hospital Ulcer III diet. That diet refers to allowed foods as including eggs, cheese, butter, cream, table margarine.
The Applicant's peptic ulcer was accepted as a war-caused disease by the Respondent as was his anxiety state with pruritus. Although the date of the decisions are not before us, that is immaterial, the point being that the said peptic ulcer was a disease accepted as being war-caused so that any diet suggested by medical authorities to alleviate the symptoms of the said disease can be said to be a consequence of the war-caused disease.
In her report Ms Heyman, Dietician calculated the animal fat content of a glass of milk at 9.8 grams. If one accepts the Applicant's evidence that the deceased drank six glasses of milk a day, then that amounts to 58.8 grams without taking into account butter, cheese or ice cream.
Mr Friderich, Dietitian in a report to the Respondent doubts the increase in animal fat intake by reference to the deceased's limited change in weight post service. On the other hand the deceased did have an active job and could have dissipated the affects of increased fat in his diet. The Applicant stated that the deceased did put on weight after his retirement. In any event the fact as to whether the deceased did or did not drink six glasses of milk per day is one that has to be negatived beyond reasonable doubt by the Respondent and we cannot say on the material before us that it has been so negatived although if the matter were to be decided on the civil standard of proof our decision would have been different.
Even if the average intake of animal fat as calculated in the 1936 to 1938 National Dietary Survey (see Exhibit R5 page 3) is used then 40 per cent of this figure is 49.32 grams. Six glasses of milk per day is 58.8 grams. Thus even if as pointed out by Dr English and Mr Friderick the post-war assessment of daily intake of animal fat is excessive, the figures as calculated by Ms Heyman come to 178.1 grams of animal fat per day which is well in excess of the 70 grams required by the SoP. Indeed the milk itself without more would account for 58.8 grams so that very little animal fat would need to be consumed to reach the required 70 grams however exaggerated the Applicant's recollection might be.
On the whole of the material before us we find that a reasonable hypothesis consistent with the relevant SoP has been raised and that the fact supporting that hypothesis have not been negatived beyond reasonable doubt.
The decision under review will therefore be set aside and the Tribunal substitutes in lieu thereof its decision, namely that the Applicant Ivy Norma Hyde is entitled to pension pursuant to the war-caused death of Eric John Hyde as and from the 20 March 1999.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Dr J D Campbell, Member
Signed:         (Kwai-Ling Wong)           .....................................................................................
  Associate
Date/s of Hearing  9 November 2001
Date of Decision  14 December 2001
Counsel for the Applicant        Mr M Vincent
Solicitor for the Applicant         Dibbs Barker Gosling Lawyers
Advocate for the Respondent Trina McConnell, Department of Veterans'
  Affairs