Lay and Repatriation Commission - [2002] AATA 474

DECISION AND REASONS FOR DECISION [2002] AATA 474

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1884

VETERANS' APPEALS DIVISION       )
           Re      DAWN MARY LAY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella Senior Member

Date7 June 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and decides that the applicant qualifies for payment of a pension under Part II of the Veterans' Entitlements Act 1986 with effect from 25 February 1998.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - War Widow Pension - malignant neoplasm of the prostate – cirrhosis of liver – alcohol abuse – whether consumption of animal fat increased as required by Statement of Principles

Veterans' Entitlements Act 1986 ss 6A(1) item 1(a), 7(1)(a), 8(1)(a), 11(1) "dependant" (c), 13(1)(a), (c), 14(1), (3), (4), 16(a), 20(1), 120(1), (3), (4), 120A(1), (3), 196B(1), (2), 196D.

Arnott v Repatriation Commission (2001) 32 AAR 445
Bull v Repatriation Commission [2001] FCA 1832
Harris v Repatriation Commission (2000) 31 AAR 270
Re Keenan and Repatriation Commission [2000] AATA 707
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Smith (1987) 74 ALR 537

REASONS FOR DECISION

7 June 2002 Mr M J Sassella Senior Member

HISTORY OF APPLICATION

On 25 May 1998 Dawn Mary Lay ("the applicant") lodged a claim with the Department of Veterans' Affairs ("the DVA") seeking a War Widow Pension on the basis that her deceased husband was a veteran whose death was a result of war-caused conditions (T6). Her husband was Frank Ernest Lay ("the veteran"). When he died he had accepted disabilities involving malaria, ischaemic heart disease, reactive anxiety/depression and sensori-neural hearing loss (ex TD1/1).
On 30 May 1998 a Repatriation Commission ("respondent") delegate decided to reject the claim (T7). Malignant neoplasm of the prostate was considered the cause of death and the veteran's circumstances did not meet the requirements in the Statement of Principles ("SoP") concerning malignant neoplasm of the prostate published in accordance with the Veterans' Entitlements Act 1986 ("the Act").
On 10 July 1998 Mrs Lay lodged with the Veterans' Review Board ("the VRB") an application for review of the rejection decision (T8). She said in the application that the malignant neoplasm of the prostate had little effect on the veteran's death. He had died of hepatic failure and liver cancer.
Within DVA a review of the case in accordance with s 31 of the Act was carried out but the delegate decided not to interfere with the decision (T9). It was said that malignant neoplasm of the prostate was the primary cancer and that the other conditions were secondaries.
reviewable decision
On 9 September 1999 the VRB decided to affirm the decision under review (T10). For the applicant it had been argued at the VRB that the terminal event for the veteran had been a myocardial infarction caused by the accepted condition of ischaemic heart disease. The VRB rejected this argument on the basis of medical evidence that suggested that the ischaemic heart disease was a mild condition under good control. Based on available medical reports, there had been little deterioration in the veteran's heart condition between 1978 and 1989. In particular, the VRB wrote, "Significantly, although Dr Spencer has stated that the veteran's myocardial ischaemia was a known condition at the time of his death, as the certifying medical practitioner he appears not to have thought it sufficiently significant to include it as a cause of death" (T10/37). The VRB decided that "the cause of death [was] as stated on the death certificate, that is the veteran died from hepatic failure caused by secondary cancer of the liver which had metastasised from the primary cancer of the prostate" (T10/37).
The SoP on malignant neoplasm of the prostate had not been satisfied as there was no evidence to satisfy factor (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".
On 27 September 1999 the VRB sent notification of its decision to Mrs Lay (T11).
On 13 December 1999 Mrs Lay lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision (T1).
RELEVANT LEGISLATION
The following provisions of the Veterans' Entitlements Act 1986 are relevant: ss 6A(1) item 1(a), 7(1)(a), 8(1)(a), 11(1) "dependant" (c), 13(1)(a), (c), 14(1), (3), (4), 16(a), 20(1), 120(1), (3), (4), 120A(1), (3), 196B(1), (2), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service - world wars
6A.      (1)       Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
Operational service
Item   1
Person  A member of the Defence Force
Nature of service                  (a)       continuous full-time service outside Australia
…
Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:
(a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
War-caused death
8.(1)     Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)       the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
Dependants
11.(1)   In this Act, unless the contrary intention appears:
dependant, in relation to a veteran (including a veteran who has died), means:
…
(c)       a widow or widower (other than a widow or a widower who marries or re-marries); or
…
of the veteran.
Note 1: A veteran may have more than one dependant of the kind referred to in paragraphs (a) to (d) at the same time.
Note 2: For the meaning of reinstated pensioner see section 11AA.
Note 3: Subsection (4) affects the meaning of widow in paragraph (c).
…
Eligibility for pension
13.(1)   Where:
the death of a veteran was war-caused; or
…
the Commonwealth is, subject to this Act, liable to pay:
in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
…
Claim for pension
14.(1)   Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…
Date of operation of grant of claim for pension
20.(1)   Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…
Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or veteran for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
…
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, 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)       a Statement of Principles determined under subsection 196B (2) or (11); or
(b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
…
Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
…
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).
…
Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901
The Statement of Principles relevant to this application are:

SoP 76/98 concerning alcohol dependence or alcohol abuse.
SoP 35/98 concerning cirrhosis of the liver.
SoP 84/99 concerning malignant neoplasm of the prostate.
Instrument No.76 of 1998
Statement of Principles concerning ALCOHOL DEPENDENCE OR ALCOHOL ABUSE
ICD-9-CM CODES: 303, 305.0
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.5 of 1994 (Statement of Principles concerning psychoactive substance abuse or dependence); and
(b) determines in its place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about alcohol dependence or alcohol abuse and death from alcohol dependence or alcohol abuse.
(b) For the purposes of this Statement of Principles, "alcohol dependence" means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.
The diagnostic criteria for alcohol dependence are those specified in DSM-IV, and are as follows:
A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:
(1) tolerance, as defined by either of the following:
(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect
(b) markedly diminished effect with continued use of the same amount of alcohol
(2) withdrawal, as manifested by either of the following:
(a) the characteristic withdrawal syndrome for alcohol
(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms
(3) alcohol is often taken in larger amounts or over a longer period than was intended
(4) there is a persistent desire or unsuccessful efforts to cut down or control alcohol use
(5) a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects
(6) important social, occupational or recreational activities are given up or reduced because of alcohol use
(7) alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;
"alcohol abuse" means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
The diagnostic criteria for alcohol abuse are those specified in DSM-IV, and are as follows
A. A maladaptive pattern of alcohol use leading to clinically significant impairment or distress, as manifested by one (or more) of the following, occurring within a 12-
month period:
(1) recurrent alcohol use resulting in a failure to fulfil major role obligations at work, school, or home
(2) recurrent alcohol use in situations in which it is physically hazardous
(3) recurrent alcohol -related legal problems
(4) continued alcohol use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of alcohol
B. The symptoms have never met the criteria for alcohol dependence.
The definitions for alcohol dependence and alcohol abuse exclude acute alcohol intoxication in the absence of alcohol dependence or alcohol abuse.
Alcohol dependence or alcohol abuse attracts ICD-9-CM code 303
or 305.0.
…
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 any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are:
(a) suffering from a psychiatric disorder at the time of the clinical
onset of alcohol dependence or alcohol abuse; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"DSM-IV" means the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders;
…
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
"psychiatric disorder" means any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV;
"relevant service" means:
(a) operational service; or
…
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this First day of December 1998
Instrument No.35 of 1998
Statement of Principles concerning CIRRHOSIS OF THE LIVER
ICD CODES: 571.2, 571.5, 571.6
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a)revokes Instrument No.75 of 1996; and
(b)(b) determines in its place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about cirrhosis of the liver and death from cirrhosis of the liver.
(b) For the purposes of this Statement of Principles, "cirrhosis of the liver" means a pathologically defined entity involving irreversible chronic injury of the hepatic parenchyma and includes extensive fibrosis in association with regenerative nodules, attracting ICD code 571.2, 571.5 or 571.6.
…
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 any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cirrhosis of the liver or death from cirrhosis of the liver with the circumstances of a person's relevant service are:
(a) for men, consuming at least 150kg of alcohol (contained within alcoholic drinks) within any 10 year period before the clinical onset of cirrhosis of the liver; or
…
Other definitions
7. For the purposes of this Statement of Principles:
"alcohol (contained within alcoholic drinks)" is measured by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink.
…
"ICD code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1995, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 22235 5;
…
"relevant service" means:
(a) operational service; or
…
8. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Fifth day of May 1998
Instrument No.84 of 1999
Statement of Principles concerning MALIGNANT NEOPLASM OF THE PROSTATE
ICD-10-AM CODE: C61
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.95 of 1995 and Instrument No.191 of 1996; and
(b) determines in their place the following Statement of Principles.
Kind of injury, disease or death
2. (a) This Statement of Principles is about malignant neoplasm of the prostate and death from malignant neoplasm of the prostate.
(b) For the purposes of this Statement of Principles, "malignant neoplasm of the prostate" means a primary malignant neoplasm of the cells of the prostate gland, attracting ICD-10-AM code C61. This definition excludes soft tissue sarcoma, non-Hodgkin's lymphoma and Hodgkin's disease.
…
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 any relevant service rendered by the person.
Factors
5. The factors 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 are:
…
(c) 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; or
…
Other definitions
8. For the purposes of this Statement of Principles:
"animal fat" means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;
…
"death from malignant neoplasm of the prostate" in relation to a person includes death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate;
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
"relevant service" means:
(a) operational service; or
…
"terminal event" means the proximate or ultimate cause of death and includes:
a) pneumonia;
b) respiratory failure;
c) cardiac arrest;
d) circulatory failure; or
e) cessation of brain function.
Application
9. This Instrument applies to all matters to which section 120A of the Act applies.
Dated this Ninth day of November 1999.

BACKGROUND

The veteran was born on 20 November 1918 (T3/5). He grew up in Montefiores, a small town two miles from Wellington in NSW (ex R4/3). He had two brothers and two sisters. He lived at home prior to enlistment and returned to the family home after service. He commenced as a plasterer/concreter in 1932 at the local plaster works and continued in this work until 1977. He played football for Wellington prior to enlistment and after service. He also played tennis and cricket. He met the applicant in 1955. She was born on 5 December 1935 (T6). They cohabited from 1970 and married in 1977.
Mr Lay enlisted in the army on 19 May 1940 (T3/12). He saw operational service from 5 January 1942 until 9 November 1945 (T4). At least some of this was in New Guinea (ex A4). He was discharged on 16 November 1945 (T3/11). He contracted malaria during the war (T3/9).
Mr Lay died on 8 February 1990 (T5). The causes of death were noted as:
(a)Hepatic failure 1 week
(b)Secondary cancer of liver 1 month
(c)Primary cancer of prostate 1 year
In 1995 Mrs Lay had claimed a War Widow Pension (T4) but this was rejected on the basis that the cause of death was malignant neoplasm of the prostate and the SoP on malignant neoplasm of the prostate, as it then was, was not satisfied (T6).
HEARING, APPEARANCES AND EVIDENCE
On 25 May 2001 the tribunal convened a hearing in this matter in Sydney. Mr A Halstead from the NSW Legal Aid Commission represented Mrs Lay. Ms Pacey from the DVA Advocacy Service represented the Repatriation Commission.
The tribunal heard oral evidence from Mrs Lay and Ms A Bencke (a dietitian). It had access to the following documents which were admitted into evidence and given exhibit numbers as follows:

Exhibit TD1 – Section 37 Statement and associated documents (T1-T34) provided by the respondent, 25 January 2000.
Exhibit A1 – Applicant's statement, 9 February 2001.
Exhibit A2 – Statement of Ms D Evers, 2 April 2000.
Exhibit A3 – Report by Dr R J Butler, physician, 27 October 2000.
Exhibit A4 – Report by Dr Butler, 26 February 2001.
Exhibit A5 – Report by Ms A Bencke, dietitian, May 2001.
Exhibit A6 – Applicant's statement of facts and contentions, 14 May 2001.
Exhibit R1 – Report by Dr J Greenaway, physician, 12 February 2001.
Exhibit R2 – Report by Dr Greenaway, 19 February 2001.
Exhibit R3 – Report by Associate Professor R P Mattick, psychologist, 16 March 2001.
Exhibit R4 – Report by Mr W Friderich, dietitian, 12 May 2001.
Exhibit R5 – Respondent's statement of facts and contentions, 24 May 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

The tribunal finds formally that Mr Lay was a veteran who engaged in operational service in accordance with s 6A of the Act (T4).
The tribunal finds that Mr Lay died on 8 February 1990 (T5).
The tribunal finds that Mrs Lay is Mr Lay's dependent in accordance with the definition in s 11(1) of the Act. She is his widow, having been de jure married to him since 1977.
The tribunal finds that Mrs Lay lodged with DVA a valid claim for a pension in accordance with s 14(1) and (3) on 25 May 1998 (T6).
The tribunal finds that the applicant has advanced a hypothesis ("the first hypothesis") that, if reasonable, will result in her being granted a War Widow Pension. The hypothesis is that the veteran suffered from a condition of war-caused alcohol abuse which resulted in cirrhosis of the liver which in turn resulted in Mr Lay's death.
The tribunal finds that the applicant has also advanced a hypothesis ("the second hypothesis") that, if reasonable, will result in her being granted a War Widow Pension. The hypothesis is that the veteran increased his consumption of animal fat because of the food supplied during operational service by at least 40% and to at least 70gm/day for at least 20 years before contracting malignant neoplasm of the prostate which was a cause of his death.
The tribunal will consider each of these hypotheses in turn.
the first hypothesis
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in her claim that a veteran's death was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.
The second step is to ascertain whether there is a relevant SoP in force.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the veteran's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 31 AAR 270, 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

Again, in Arnott v Repatriation Commission (2001) 32 AAR 445, 452-453 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."

As the tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the applicant, in the opinion of the tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
It is difficult not to engage in a fact finding exercise in step three of Deledio (above). There is an account given by the applicant. There is a rebuttal by the respondent where the respondent refers to evidence before the tribunal. However, the tribunal takes the correct approach to be to have regard to the applicant's version in step three and see whether that meets the SoP template. The tribunal can also reject the hypothesis at that stage if, on all the material before it, the tribunal considers the hypothesis to be fanciful, impossible, incredible, too remote or too tenuous (Bull v Repatriation Commission [2001] FCA 1832).
If the tribunal finds that step three has been satisfied, that means that the hypothesis raised by the applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the veteran's death did not result from a war-caused injury. It is at this point that many of the arguments put by the respondent come into play. The tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the tribunal beyond reasonable doubt that the veteran's death was not war-caused.
In the present case the first hypothesis (see paragraph 21 above) brings into play SoP 76/98 concerning alcohol abuse ( The tribunal must be satisfied that the description of alcohol abuse in clause 2(b) of the SoP accords with what is known of the veteran's alcohol history. Dr Butler commented on Mr Lay's consumption of alcohol. In ex A4 he said that, based on reports regarding Mr Lay, including reports from Wellington District Hospital, he had increased his alcohol intake upon his return from the army. He wrote:
"The wife and sister of Mr Lay also reported increased alcohol intake after his return from military service. There is no record of the quantity of alcohol consumed. …
"The development of ascites with haemorrhage and jaundice raises the possibility of alcoholic liver disease. It is difficult to assess the likelihood of alcoholic liver disease in the absence of a more complete record of alcohol intake."
In ex A4 he revisited this issue and wrote:
"I note Mr Lay's statement that in 1987 he was consuming 4 midis of beer per day and also binge drinking. Regular intake at this level (40 g of alcohol daily) represents an intake of 146 kg over 10 years. If binge drinking is added to this then Mr Lay must have consumed over 150 kg of alcohol in a 10 year period. This would therefore fulfil the requirements of [SoP 35/98] associating alcohol intake with cirrhosis of the liver.
"The presence of spider naevi on the skin together with ascites and the vomiting of blood just prior to Mr Lay's death, raise the definite possibility that Mr Lay had cirrhosis of the liver in addition to metastatic malignancy. As Mr Lay had anxiety/depression accepted as a war caused disability, I believe that his alcohol abuse was also very likely to be service related.
"I believe therefore that there is a definite possibility that war service related alcohol abuse contributed to Mr Lay's death."
Dr Greenaway wrote in ex R1, "On one of the admissions to hospital, the notes state that there are multiple spider naevi, small lesions on the skin, or affecting the small arterioles in the skin and subcutaneous tissues, which are not usually a feature of metastatic carcinoma, and much more characteristic of alcoholic liver disease. Elsewhere in the notes, on one of his attendances at an Accident & Emergency Department following trauma, the comment is made that he was smelling heavily of alcohol. … it is highly probable that there was underlying alcoholic liver disease."
In ex R2 Dr Greenaway wrote that spider naevi "are quite classically seen in alcoholic cirrhosis".
Associate Professor Mattick (ex R3) commented on alcohol consumption. He wrote:
"He was also reportedly consuming alcohol prior to service as a 'youth' but stopped drinking in 1984. His daily consumption was four middies of beer per day but after his second heart attack, presumably in 1984 and because of treatment for stress, he has drunk very little. …(page 3)
"In a statement (09.02.01) [tribunal exhibit A1] Mrs Lay indicates that she first met her husband around 1955, forming a relationship during 1960 and living together from 1970 and marrying in 1977.
"She stated that he was a very heavy drinker and would drink alcohol every day and she knew this because his eyes were always red and he would stagger about the place, fall over sometimes and 'smell like' (sic). She said that he usually drank beer but when he was binge drinking he would have sherry, brandy, whiskey [sic] and rum, and mostly he drank at pub or an RSL club in Wellington.
"When she was around him when he was drinking she believed that he must have drunk at least a dozen drinks. She knew that he was drinking heavily because he was drunk every night and would hide it by drinking raspberry cordial. She saw Dr Kharwa to obtain medication to reduce Mr Lay's rate of drinking and some tablets were provided which helped for a period but Mr Lay went back to drinking. She was unsure exactly how many drinks he had each day as she generally was not around when he drank, but she believed that he drank a lot and that he was a seasoned drinker and was drunk most days." (Pages 5-6)
Associate Professor Mattick did not conclude that Mr Lay met the criteria for alcohol abuse or dependence.
"The fact that he may have had liver disease or possibly cirrhosis of the liver or that he may regularly drink does not imply alcohol abuse or alcohol dependence.
"Individuals who drink regularly, in patterns that do not involve alcohol abuse or dependence, can still develop liver cirrhosis, although this possibility invites specialist gastroenterological opinion. Again there is a lack of information. Moreover, there is no evidence that Mr Lay had a drinking habit which was causally related to service....
"I note it was Dr Lafferty who recorded that Mr Lay drank six to eight middies every two to three weeks. Apart from this he appears to have drunk four middies each evening. His widow asserts that he drank more heavily. At this stage the information available from the veteran himself, suggests that he drank in a moderate fashion, drinking four middies per evening and this represents a level of consumption which is at the level of safe and responsible drinking according to the NH&MRC guidelines. Above four drinks per day is a level which is likely to expose an individual to some physical or other adverse event from drinking. It may be that his cirrhosis, if it was present, was due to this normal drinking.... At this stage I cannot form a reasonable hypothesis that he did suffer from alcohol abuse or dependence. I also do not believe there is reasonable basis to conclude that he necessarily had emotional disturbance from service and this motivated his drinking and caused him to drink in a fashion which led to any illness or disability.
"However, Mr Lay probably did consume 150 kilograms of alcohol within the ten years prior to the clinical onset of cirrhosis of the liver, if others confirm that diagnosis. If he were drinking four drinks per day, he would have consumed approximately 300 grams of alcohol per week, or 15 kilograms per year and this would have been equivalent to 150 kilograms or more in ten years (allowing for him drinking six to eight drinks every two to three weeks)." (Pages 7-8)
It appears that Mr Lay consumed sufficient alcohol to satisfy the SoP concerning cirrhosis. However, Associate Professor Mattick was not satisfied that Mr Lay had an alcohol abuse problem. At the same time Associate Professor Mattick referred to Mrs Lay's account of Mr Lay staggering around the house and sometimes falling over. There is also a segment in Mrs Lay's statement that Associate Professor Mattick did not reproduce. She wrote "… He was often sick when he was drinking and would regularly vomit". For alcohol abuse under the SoP there must be the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol. The tribunal finds that Mrs Lay's documented observations, coupled with the physical manifestations attributed on balance by doctors to the drinking of alcohol, suffice to satisfy the tribunal that Mr Lay suffered from alcohol abuse.
The SoP factor relied on is factor 5(a), "suffering from a psychiatric disorder at the time of the clinical onset of alcohol … abuse". The date of onset of Mr Lay's psychiatric condition is not clear on the hypothesis and other material before the tribunal, however it was clearly present in 1987, the year in which it was accepted as a war-caused disability (ex TD1/1). Mr Lay asserted that it had its onset in 1984 (T16/57). Associate Professor Mattick referred to psychiatric medical assessments in December 1987 (ex R3/3). The date of clinical onset of the alcohol abuse is likewise unclear both hypothetically and on raised facts. However, on the available material the alcohol abuse appears to have predated the onset of the psychiatric condition. Mrs Lay lived with Mr Lay from 1970 and does not suggest in ex A1 that he alcohol abuse materially worsened or had its onset at some point after they moved in together. She describes what appears to be a steady state.
The tribunal has considered the other factors in clause 5 of the SoP. These relate to the experiencing of a severe stressor or to the inability to obtain appropriate clinical management for alcohol abuse. There is nothing before the tribunal to suggest that these are applicable.
The tribunal therefore finds that the hypothesis does not accord with the requirements in the SoP.
However, the factor relied on for cirrhosis of the liver in SoP 35/98 does not require the presence of war-caused alcohol abuse or dependence. It requires only a war-caused consumption of 150 kg of alcohol in the form of alcoholic drinks within any 10-year period before the clinical onset of cirrhosis of the liver.
SoP 35/98 defines cirrhosis of the liver in clause 2(b). It requires "irreversible chronic injury of the hepatic parenchyma and includes extensive fibrosis in association with regenerative nodules". Ms Pacey accurately submitted that no medical expert had expressly addressed this definition. However, Dr Butler (ex A4) saw cirrhosis of the liver as a "definite possibility". Dr Greenaway (ex R2) said that the "possibility of the liver being the basic hepatic pathology … is a real one, and hard to deny". The tribunal considers that these physicians would know what cirrhosis of the liver entails and would be referring to a disease such as that defined in the SoP. Dr Butler actually refers to this SoP, if not to clause 2(b). It is to be expected that he was adopting the SoP definition when adjudicating on the diagnosis of cirrhosis of the liver. The tribunal therefore finds itself reasonably satisfied that the diagnosis of cirrhosis of the liver was an appropriate diagnosis.
The hypothesis is that Mr Lay consumed 150 kg of alcohol in alcoholic drinks over a 10-year period. This hypothesis receives support from Dr Butler and Associate Professor Mattick.
Clause 4 requires that the alcohol consumption must have been related to operational service. In the applicant's statement of facts and contentions (ex A6) it was stated that, "[a]s a result of his operational service during the Second World War, the late Veteran developed a pattern of alcohol abuse that continued until his death". The respondent disagreed in its statement of facts and contentions (ex R5).
Mr Halstead quoted the veteran's sister, Ms Evers, for the proposition that Mr Lay had not been a drinker when he went to war but was from when he returned. This appears at odds with the contents of a document completed by Mr Lay, referred to by Associate Professor Mattick (ex R3/3) but not before the tribunal, in which he said that he consumed alcohol prior to service as a youth.

Dr Butler thought Mr Lay's alcohol abuse "very likely to be service related" (ex A4) but he did not state why he thought this.
This is an unusual case. It is usual for the applicant, in advancing a hypothesis, to suggest what it may have been about military service that caused the veteran to drink alcohol, or drink more alcohol. No such hypothetical element has been posited in this case. As matters stand, the connection between service and any increase in drinking has been presented in such a way that it could be merely temporal and not causal.
The tribunal finds that the hypothesis as advanced has not met the requirements of clause 4 of the SoP. The tribunal therefore finds that this hypothesis linking operational service with the veteran's death is not a reasonable hypothesis.
the second hypothesis
In the present case the second hypothesis (see paragraph 22 above) brings into play SoP 84/99 concerning malignant neoplasm of the prostate ( The tribunal is reasonably satisfied that Mr Lay died of malignant neoplasm of the prostate as defined in clause 2(b) of the SoP. That is based on the death certificate (T5) which was completed by Mr Lay's treating doctor. The matter is not free from doubt, however, as both Dr Butler and Dr Greenaway have some doubts. Indeed, Dr Greenaway says, "there is no doubt whatsoever in my mind that he did indeed die from liver failure" (ex R1/2). The doctors' doubts stem from certain of the physical signs recorded about Mr Lay before he died. Dr Butler saw spread of prostatic cancer to the liver without bone involvement as very unusual (ex A3, A4). Dr Greenaway saw the spider naevi on Mr Lay's skin as indicative of alcoholic liver disease rather than metastatic carcinoma (ex R1).
The hypothesis must satisfy factor 5(c) of the SoP. In the applicant's statement of facts and contentions (ex A6) the hypothesis is that Mr Lay "increased his animal fat consumption by 40 percent to 70 grams per day for 20 years. … The late Veteran had an average diet of plain foods prior to his operational service. Following that service he had an absolute preference for rich fatty foods and large meals". This is the gravamen of the material in support from Ms Evers (ex A2). The applicant knew only of his post-war diet and said that that was fatty (ex A1). His weight was said to have increased from 11 to 14 stone from 1955 until he died.
Dietitian Ms A Bencke in ex A5 certified that Mr Lay's consumption of animal fat appeared to have risen as suggested. She concluded that he consumed 65.4 grams of animal fat a day before 1940. This rose to 111.4 grams a day during the war. He then consumed 107.6 grams a day between 1970 and 1990. She suggests no figure for 1945-70 but quotes Mrs Lay as stating that his diet was even fattier then as he lived in boarding houses and hotels and often ate sausage rolls and pies as snacks. For pre-war and post-war diets Ms Bencke relied on interviews with people who lived with Mr Lay in those periods. She then used the dietitians' computer program, "Foodworks", to derive total fat and animal fat. The interviewees were Ms D Evers and Mrs Lay. Ms Bencke relied on a study by dietitian Ruth English regarding fat consumption by service people during World War II.
Ms Bencke derived a weight history as follows. Mr Law was 61 kg in 1940, 73.6 kg in 1945 and 87.3 kg in 1987. In body mass index terms these weights represented a healthy weight in 1940, overweight in 1945 and obesity in 1987.
The respondent relied on the report by dietitian Mr Friderich (ex R4). His conclusion, based largely on a statement by Ms Evers which does not seem to be before the tribunal, was as follows:
"Mr. Lay gained weight whilst in the army. Much of this weight gain would most likely have been due to a dramatic decrease in physical activity compared with that seen prior to enlistment. There is no doubt that many of the calories consumed in addition to that required to maintain weight was in the form of fat.
"In my opinion, Mr. Lay may have experienced some increase in his fat intake during operational service when compared to his pre-service diet. However, from the recollection of his sister his diet returned to that seen prior to service. The only change that maybe related to service was a change in alcohol intake.
"Even with the obvious errors in the dietary recall methodology, there appears to be no evidence to support the claim that a war caused change in dietary habits lead [sic] to an increase in animal fat consumption."
In the body of his report Mr Friderich wrote that "Diet histories were completed by Mrs. Evers for the pre and post service diets. She provided information on the dietary pattern of the Lay household before and after World War 2. The main dietary change reported was an increase in alcohol intake after the war".
Ms Bencke relied on Mrs Lay for post-war consumption and it was noted above that she expressed a figure for the post-war commencing in 1970. The period from 1945 to 1970 was blank. At the same time, Mr Friderich did not interview Ms Evers or Mrs Lay. This was a matter for comment by Mr Halstead in his submissions.
After the hearing Ms Pacey wrote to the tribunal and the applicant's representatives asking that the tribunal take note of a refusal by the Legal Aid Commission to permit Mr Friderich to interview Mrs Lay and Ms Evers. A DVA file note suggested corroboration of this state of affairs, although it seemed to refer to an interview by Associate Professor Mattick. A directions hearing was convened on 6 June 2001 to allow each party to state its case. This did not take matters much further.
The tribunal, as currently constituted at least, would make only the following comments.

First, it is to be expected that where an advocate for an applicant before the tribunal invites the tribunal to make adverse inferences on the basis of an expert witness's failure to interview a relevant party, any submissions the respondent wishes to make on such a matter should be presented at the time of the hearing and not later.
Second, it is an unfortunate development to see the Legal Aid Commission apparently doing other than encouraging its client to co-operate in the overall process by attending consultations with the respondent's expert witnesses where, as here, the respondent's requests are not unreasonable or oppressive. In the final analysis, the tribunal has taken note of the material that was presented to it. It lacks the power to compel a party or witness to attend an interview with a dietitian such as Mr Friderich or a psychologist such as Associate Professor Mattick.

Each report therefore has its problems. However, it can be said that there is some backing for the hypothesis advanced for Mrs Lay.
Factor 5(c) requires that the hypothesis propose that the increase in animal fat consumption took place for at least 20 years before the clinical onset of malignant neoplasm of the prostate. The date of clinical onset of malignant neoplasm of the prostate seems on the available material to have been early in 1989. Dr Spencer, Mr Lay's treating doctor is in the best position to know this information. He certified on about 8 February 1990 in T5 that Mr Lay had suffered from cancer of the prostate for one year. Mrs Lay proposed that Mr Lay had enjoyed a high fat diet from 1970 to 1990 and an even fattier diet before 1970. The 20-year requirement is encompassed in the hypothesis.
Clause 4 of the SoP requires that the increased fat consumption must be related to Mr Lay's service. There was nothing explicitly presented to explain the service relationship other than the assertion that dietitian Ruth English's findings about fatty military diets applied in Mr Lay's service experience. The tribunal is, however, aware of the statements of the tribunal (including the tribunal's then President) in Re Keenanand Repatriation Commission [2000] AATA 707 in which the tribunal said at paragraph 58, in relation to the relationship with service:
"The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected."
The tribunal considers these remarks to be applicable in this service diet case and to provide an adequate explanation for a possible service connection to consumption of fatty foods.
The tribunal finds that the applicant's hypothesis suggesting that the fatal malignant neoplasm of the prostate was war-caused is a reasonable hypothesis.
The tribunal finds that it is not satisfied beyond a reasonable doubt that the veteran's malignant neoplasm of the prostate was not war-caused. The respondent's best evidence that the hypothesis might not be sustainable came from Mr Friderich. However, his analysis was flawed in that he did not consult the applicant in the course of his work on the report.
CONCLUSION
The tribunal has found that the cause of Mr Lay's death, on the balance of probabilities, a standard supported by Repatriation Commission v Smith (1987) 74 ALR 537, 547, was malignant neoplasm of the prostate. It has further found that Mr Lay's death was war-caused. The applicant will therefore qualify for receipt of a War Widow Pension.
DECISION
The tribunal sets aside the decision under review and decides that the applicant qualifies for payment of a pension under Part II of the Veterans' Entitlements Act 1986 with effect from 25 February 1998.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  25 May 2001
Date of Decision  7 June 2002
Counsel for the Applicant        Mr A Halstead, NSW Legal Aid Commission
Solicitor for the Applicant         NSW Legal Aid Commission
Counsel for the Respondent    Ms G Pacey, DVA Advocacy Service
Solicitor for the Respondent    Mr J Marsh, DVA