Lewis and Repatriation Commission
[2005] AATA 1263
•20 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1263
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/791
VETERANS' APPEALS DIVISION ) Re MARJORY JOSEPHINE LEWIS 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, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Marjory Josephine Lewis, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Lewis claims that her late husband, James Desmond Lewis, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Lewis’s claim are:
(a)James Desmond Lewis died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Lewis 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. Lewis’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while 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. Lewis’s death from prostate cancer was related to his RAAF service.
4. Mrs. Lewis’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. Lewis 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 RAAF, 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)James Desmond Lewis was born in Brisbane, Queensland on 11 May 1923.
(b)He served in the Australian Army from 20 May 1942 until 13 April 1943.
(c)On 13 April 1943 he was discharged from the Army “for the purpose of being enlisted in RAAF”.
(d)He served in the RAAF from 14 April 1943 to 10 December 1945.
(e)He rendered operational service in the United Kingdom from 1 March 1944 (when he embarked from Brisbane) until 17 October 1945 (when he disembarked in Melbourne). He was a navigator and bomber.
(f)He was promoted to the rank of Pilot Officer on 13 February 1945. He is said to have “completed numerous operations against the enemy, in the course of which he has invariably displayed the utmost fortitude, courage and devotion to duty”. He flew 46 operations over Europe, including 20 operations to Berlin.
(g)He married Marjory Lewis in 1953. They met about nine months before they were married.
(h)He was first treated for prostate cancer in January 1999.
(i)He died on 17 December 2000. The cause of death was Adenocarcinoma of the prostate.
(j)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Lewis gave oral evidence and she also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She knew her husband for nine months before they married in 1952.
(b)She completed a “dietary survey” for the purposes of this claim, on 12 November 2001. She found some of the questions confusing. She completed a further dietary survey on 26 May 2003.
(c)She did not know her husband prior to 1951 and she does not know what he ate prior to World War II.
(d)She does not know what her husband’s diet consisted of during his service with the RAAF. She was told that when he was stationed in England he boarded with a lady and her mother, who cooked mainly “English fare which included a cooked breakfast daily”.
(e)She believes that after her husband was discharged from the RAAF he lived with his mother. He was still living with his mother when they met in 1951.
(f)Her husband’s mother was an “old fashioned cook”, who used “lots of dripping”.
(g)Mrs. Lewis was given a recipe, by her mother-in-law, for her husband’s favourite fruit cake. It contained ¼lb of butter plus two eggs. She also received tips from her mother-in-law about cooking savoury pies, tarts and other pastry items. She cooked these items for her husband.
(h)Mr. Lewis liked food and “ate heartily”. He also liked beer and drank five or six stubbies per day, plus some rum.
(i)Mr. Lewis was an investigations officer with the Australian Taxation Office. He had regular trips away from home. During such trips he would eat “hotel meals” including cooked breakfasts and cooked dinners.
(j)Mr. Lewis was an active man. He played golf twice a week and had a regular weekly game of tennis.
(k)Mrs. Lewis had difficulty remembering earlier eating patterns clearly. She said that it was a “normal diet for those days.
(l)During the 1980s, Mr. Lewis retired and they moved to Brisbane, and their diet changed. There were less frequent hot breakfasts, more cereal/porridge, more sandwiches and salads, and fewer desserts. Mr. Lewis preferred to eat meat. He was not fond of salads, he regarded them as “rabbit food”.
(m)Mr. Lewis maintained the same weight for most of his life (about 82 to 85kgm). He was about 180cm tall.
20. There is no evidence as to what Mr. Lewis’s animal fat intake was prior to his service. I note that he was only 19 years of age on enlistment. I also note that after discharge he lived with his mother for the following seven years. It is most likely that he lived with his mother either immediately prior to enlistment or within no more than a few years of enlisting.
21. It appears to me that Mr. Lewis’s diet for at least seven years after his service in World War II was identical to his diet prior to service. It also appears to me that his wife, the Applicant, carried on preparing much the same type of meals for him as his mother had done, up until about 1980.
22. There is also material placed before the Tribunal to the effect that:
(a)the average male diet in Australia prior to World War II contained about 126 gm of animal fat per day. (If Mr. Lewis was living with his mother, he probably consumed more animal fat per day than the average).
(b)ration packs in the United Kingdom during the time Mr. Lewis was in England contained 86.3gm of animal fat per day. (He may have had more animal fat than that because he boarded with civilians).
(c)The ration packs provided in Australia during the time Mr. Lewis was serving in Australia never exceeded 126gm of animal fat per day.
23. The material placed before the Tribunal suggests that Mr. Lewis had a diet relatively high in animal fat content both prior to his service and after his service and that the amounts were about the same.
24. The material also suggests that Mr. Lewis’s diet during his service was probably lower in animal fat content than either his pre-war diet or his post-war diet.
25. Mr. Lewis’s service diet had nothing to do with his post-war diet. His post-war diet was basically controlled by his mother and, later, by his wife.
26. The whole of the material does not raise the hypothesis that Mr. Lewis 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.
27. No hypothesis is raised which links the death of Mr. Lewis with the particular circumstances of his eligible service.
28. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20,22.6.05; 30.9.05Date of Decision 20 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Robert Bax & Associates
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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