Ida Palmer and Repatriation Commission

[2014] AATA 571

Division	Veterans' Appeals Division
File Number	2013/5229
Re	Ida Palmer
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	15 August 2014
Place	Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]............................................

Dr M Denovan, Member

CATCHWORDS

VETERAN’S AFFAIRS – Pensions and benefits – Widow’s pension – Whether veteran’s death was war-caused – No causal connection between veteran’s service and his increased animal

fat consumption – Reasonable hypothesis test not satisfied – Decision under review affirmed

LEGISLATION

Veterans’ Entitlement Act 1986 (Cth) ss 120, 196B

CASES

Bushell v Repatriation Commission (1992) 175 CLR 408
East v Repatriation Commission (1987) 12 ALD 389
Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Deledio (1998) 83 FCR 82

SECONDARY MATERIALS

Statement of Principles concerning Malignant Neoplasm of the Prostate (No. 53 of 2014)

REASONS FOR DECISION

Dr M Denovan, Member

15 August 2014

INTRODUCTION

1. Walter Palmer (“the veteran”) was born in 1912 and served in the Australian Army during World War II from 18 December 1941 to 21 February 1946. As the veteran served outside Australia, the whole period of his war-time service is “operational service” in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”). The veteran died on 9 April 1989 at the age of 77 years. The cause of death was certified as metastatic carcinoma and carcinoma of the prostate.

2. Mrs Ida Palmer, the veteran’s widow (“the applicant”), lodged a claim for pension, on the basis that the veteran's death was war-caused. The claim was refused by a delegate of the Repatriation Commission (“the respondent”) in a decision dated 5 February 2013. That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 2 August 2013. The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision on 10 October 2013.

3. Mrs Palmer has advanced the hypothesis that her husband developed prostate cancer as a result of increasing his animal fat intake by at least 40% and to at least 50g a day, for at least 5 years of the 25 years prior to the clinical onset of the condition, as a result of his service.

4. The respondent contends that it is unlikely Mr Palmer consumed the requisite 50g of animal fat at any time, as he was reportedly an unwell man, and was advised to consume a low fat died in the 1950s and became emaciated. The respondent also contends that even if Mr Palmer did consume the requisite amount of animal fat, this was a matter of personal choice, and not related to his service.

   ISSUES AND THE LAW

5. The relevant law is contained in the Act. The Tribunal is required to determine, on the balance of probabilities, whether the pre-conditions other than causation had been made out.  Next, the Tribunal is required to determine on the balance of probabilities what ‘kind of death' the veteran suffered. This involves the identification, on the balance of probabilities, of any “kinds of death” which were…