Lindsay Reinhard and Repatriation Commission
[2013] AATA 522
[2013] AATA 522
Division VETERANS’ APPEALS DIVISION File Number(s)
2012/0575
Re
Lindsay Reinhard
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member and
Dr H Haikal-Mukhtar, MemberDate 25 July 2013 Place Sydney The decision under review is affirmed.
................[sgd]........................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – morbid obesity – whether condition is related to service – whether caloric intake cannot be compensated by physical activity for the year immediately before clinical onset – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 13, 70, 120
CASES
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Elliott v Repatriation Commission (2002) 73 ALD 377
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Hardman v Repatriation Commission (2004) 82 ALD 433
Kattenberg and Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Knight v Repatriation Commission [2010] FCA 1134
ReBetts and Repatriation Commission [2013] AATA 346
ReSummers and Repatriation Commission [2008] AATA 481
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115Youngnickel v Repatriation Commission [2004] FCA 1691
SECONDARY MATERIALS
Statement of Principles concerning Morbid Obesity Instrument No. 31 of 2003
Statement of Principles concerning Morbid Obesity Instrument No. 32 of 2003
REASONS FOR DECISION
Ms N Isenberg, Senior Member and Dr H Haikal-Mukhtar, Member
25 July 2013
BACKGROUND
The Applicant, Lindsay Reinhard, served in the Royal Australian Navy from 11 July 1971 to 20 March 1975. He had operational service in Vietnamese waters between 20 September 1971 and 16 October 1971. His service after 7 December 1972 is eligible defence service. He receives a pension for service-related conditions in relation to both knees and ankles, diabetes mellitus, non-melanotic malignant neoplasm of the skin and ischaemic heart disease. There was no dispute that the Applicant suffers morbid obesity and that, at his height, is morbidly obese at 126.74 kg.
The Applicant seeks review of the determination by the Veterans’ Review Board that his morbid obesity is not related to his service.
ISSUE BEFORE THE TRIBUNAL
The issue is whether the Applicant’s morbid obesity is war-caused (or defence-caused).
LEGISLATIVE BACKGROUND
Section 9 of the Veterans’ Entitlements Act 1986 (VE Act) provides that a disease or injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
As the veteran had operational service, the determination of whether his claimed condition is war-caused is to be made by applying subs 120(1) and 120(3) of the VE Act. Those subsections require us to find that the veteran’s condition was war‑caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding. A disease contracted by a member is defence-caused if the disease arose out of, or was attributable to, the member’s defence service: s 70(5)(a) of the VE Act. The Tribunal, in determining whether a disease suffered by a member is a “defence-caused disease” for the purposes of s 70 of the VE Act, is, pursuant to s 120(4), to decide that matter “to its reasonable satisfaction”. Therefore, the test for whether a condition is war-caused is more beneficial to a veteran than the test whether the condition is defence-caused.
The relevant Statement of Principles (SoP) is No. 31 of 2003, which defines morbid obesity as an excessive accumulation of fat in the body resulting in:
(i)a BMI [body mass index] of at least 40; or
(ii) a BMI of at least 35 together with a requirement for:
(a) ongoing, medically prescribed drug therapy for weight reduction; or
(b) surgical intervention for weight reduction other than cosmetic surgery.
Before it can be said that the Applicant’s morbid obesity is connected to his service, at least one of the factors set out in cl 5 of the SoP must be related to his service: cl 4. Mr Reinhard relies on factor 5(a):
(a) having a caloric intake that:
(i) is excessive for energy needs; and
(ii) cannot be compensated by physical activity;
for the year immediately before the clinical onset of morbid obesity.
The relevant SoP in relation to eligible defence service is No. 32 of 2003, which is in corresponding terms.
EVIDENCE
We had before us the documents lodged with the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975. The following documents were tendered at the hearing:
·Statement of Lindsay Reinhard dated 3 January 2013;
·Report of Dr Dianne Volker dated 15 June 2012;
·Medical Examination Records dated 26 November 1970, 14 May 1971 and 27 January 1975;
·Consultation notes of Dr Pearce dated 26 March 2013
·Exercise/Weight Profile for Lindsay Reinhard;
·Report of Dr David Mann dated 12 December 2012;
·Historical Research Report prepared by A.H. R. Brecht, Commodore RAN (Retired) on behalf of Writeway Research Services dated 22 August 2012.
Mr Reinhard provided a statement and gave evidence. Evidence was also given by Drs Volker and Mann, dieticians.
Mr Reinhard’s evidence
Mr Reinhard married in 1969. At that time, breakfast was either toast and boiled/poached egg or a serve of cereal with a slice of toast and coffee/tea. For lunch he would take a sandwich with either meat/lettuce and cheese or peanut butter/vegemite filling and fruit such as a banana or orange. Typically, they had meat and three vegetables or meat and salad for the evening meal. He would play sport once a week - tennis in the winter months and cricket in summer. For cricket there was one afternoon training session a week that went for about 1.5 hours.
His weight on entry to the RAN on 11 July 1971 was about 80 kg. He was stationed at HMAS Cerberus for six to seven weeks while undertaking initial officer training. He lived in accommodation in the officer’s mess. HMAS Cerberus was also the Navy Cooking School and provided training for stewards. The quality and quantity of food available was at a level he had never experienced before. His first meal there was lobster thermidor. Overnight his eating changed to three full course meals, together with morning and afternoon tea and supper. For breakfast, as well as juice, cereals, fruits, toast and condiments, a full English breakfast was available (bacon, sausages, baked beans, eggs, mushrooms and fried potato). Lunch and dinner were three course meals. Bread or rolls and butter were always available. Servings were considerably larger than what he had been used to prior to entry to the RAN.
Three days after entry he was selected in the RAN Victorian Inter-Service Soccer Team, which meant living in the RAAF Officer’s Mess at Point Cook for the following week as they played matches against Army and RAAF. While in Victoria he commenced playing sport most days of the week - initially as a means of filling in time. When he was not playing or training for soccer, there was also a tennis court next to the wardroom and he played with other officers undertaking basic officer training. This was to become the pattern for his life whilst in the RAN. Even while at sea he would play either volleyball, badminton or table tennis nearly every day.
On land-based establishments inter-base sport was played during the week (normally Wednesday). While at HMAS Nirimba, he also coached RAN apprentice teams in soccer and cricket as well as represented NAVY in inter-service cricket and soccer. The base also played in the local town sporting competitions on Saturdays. As well as playing soccer and cricket for the base, he was also selected in representative matches for the Penrith District and played on Sundays. He was playing sport seven days a week. He also participated in hockey, tennis, volleyball and basketball.
For the majority of the time he was in the RAN he was based at HMAS Nirimba where he lived in married quarters. For periods when his wife visited her parents he would live in the wardroom, and have meals there. Lunch was always provided in the wardroom. He also had breakfast most mornings in the wardroom and evening meals at least three nights a week, plus nights he was on duty. The catering at HMAS Nirimba was as plentiful as all other bases and seconds were always available. He was able to consume large meals without any weight gain.
His consumption of alcohol also increased while in the RAN. The bar in the wardroom was open for one hour at lunchtime and from 4.00 pm in the evening. The cost of alcohol was very cheap, and it was the practice to always have a pre-dinner drink and a wine with the meal.
At least monthly, there would be a mess dinner which he likened to a seven course degustation with matching wines. The serves were not small and wine glasses were constantly topped-up until every diner had finished each course.
During his return voyage from Vietnam in 1971 on HMAS Sydney he had fallen on a steel stairway in very rough seas in the Great Australian Bight, and sustained very bad swelling to his knee and right ankle. He was subsequently found to have suffered two fractures. The ankle injury was the start of a number of subsequent ankle sprains as the weakness caused him to often roll on his right ankle. By 1974 he had to strap both ankles for soccer and cricket and eventually his knees had to be strapped as well. By 1974 the toll of injuries resulted in him missing matches due to being unfit. At one stage he missed about three weeks straight in the soccer season.
By January 1975, with increasing periods of being unable to regularly compete and still consuming the same levels of food, his weight had increased to 77 kg. He resigned from the RAN in March 1975.
On discharge he weighed 89.03 kg.
Although the pattern of eating that had developed over the previous four years was exceptionally hard to change he modified his eating significantly, but not sufficient to compensate for the decrease in physical activity. Breakfast was back to cereal, toast and condiments, with bacon and eggs on the weekend. Lunch was back to pre-service lunches, although he was probably now taking at least two full sandwiches (four slices of bread). The evening meal was reduced to two basic courses but did include a dessert. The carry-over from service life was that there was often a pre-dinner drink and a wine with dinner.
He said that between 1975 and 1991 he put on about 16 kg. There were some attempts to reduce his food intake, for example, by reducing the evening meal to one course only.
From his service diet he developed an interest in cooking and for the last decade has done all the family’s cooking. He enjoys cooking flavoursome food, but tries to avoid food high in calories. Since about 1998 he has not served “plain” food, but since the mid-1990s has cut back on quantity because of his weight issue, following advice from when he was in the United Kingdom in 1992.
The Applicant gave evidence that over the years his level of physical activity reduced: he had played competition tennis, but by the mid-1990s was playing social tennis only and his final cricket season was 1996/7. He last played cricket in 1998. From the late 1990s he and his wife would go for a walk once a week. He was not conscious of a weight problem until the early 2000s. He enjoyed food and had a tendency to ignore weight gain. His food intake remained constant, but his sport had decreased. Meals became more conservative.
However, his doctor said he needed a to exercise a minimum of three times a week for 30 minutes as he had reached 136 kg in January 2004. He and his wife would walk around their 5 acre property three to four times a week – a level walk of about 5 km. By March 2005 he was very pleased that he had reduced to 122 kg. However he was having increasing difficulty with walking because of joint pain and swelling in his right ankle so stopped. He started consulting an orthopaedic specialist.
By March 2006 his weight increased to 128 kg. In September 2008, when he weighed 133 kg, until March 2009 he attempted a gym programme which included sessions with a dietician and a physiotherapist. He did low impact exercises, including on an exercise bike and rowing machine with some shoulder and upper body work. The rowing machine, in particular, caused pressure on his ankles. His evidence was that he knew when he was doing these programs he could reduce weight.
That was followed by a cortisone injection in his right ankle in February 2009 and an arthroscopy of that ankle in June 2009. He has had particular problems with a spur on the right ankle which, despite surgery, recurs and digs into the flesh.
In November 2009 he had an arthroscopy on the left knee. His doctor advised him to delay a knee replacement for as long as possible.
In January to June 2010 he undertook another gym programme and by May 2010 his weight had reduced to 125 kg. He continued to experience problems with his ankle though, as well as his knees. In November 2010 he had a total left knee replacement. After a few weeks his weight had increased to 129 kg.
In February 2011 his weight was again 130 kg and he started another gym programme because the previous programme had been so successful in assisting him to lose weight. He had to stop because of increasing exhaustion, and then in August 2011 he had chest pains. In October 2011 he had two stents inserted in his heart.
Between December 2011 and February 2012, at the suggestion of his GP, he had hydrotherapy because it would be low impact on his joints, and by January he had reduced his weight from about 130 kg to 125 kg. In February 2012 he had another arthroscopy on his right ankle and was advised to avoid pools for at least six weeks. Subsequently, the pain in his right ankle and knee are such that hydrotherapy has not been resumed. Exercise causes significant inflammation and his doctor has advised against taking anti-inflammatories because of his heart condition. Fusion is the only treatment now available for his ankle which swells daily. Currently he weighs 131 kg.
He said his doctor has told him that he will not be able to manage his weight through exercise because he is unable to sustain it. He is investigating lap-banding. He cannot lose weight by eating any less than he does now. His doctors have said that his orthopaedic conditions will improve significantly if he loses weight. Similarly, his cardiologist says his heart condition will improve if he loses weight.
He has never weighed as much as he did in 2004.
Dr Volker and Dr Mann
Dr Volker and Dr Mann disagreed about the effect of exposure to Navy food on Mr Reinhard’s post-service dietary habits. Both agreed, however, that when an individual is obese or even overweight, extra energy is required to carry that extra weight around. So, the caloric or energy intake of someone who is overweight or obese, or morbidly obese, needs to be more than that in a healthy weight-range.
Both were of the view that Mr Reinhard was morbidly obese despite the fact that for periods he has been able to reduce his weight below the morbid obesity level.
Dr Volker was of the view that he learned to consume more food than he required while in the Navy and continued to do so after his Naval service. She referred to his enlistment in the Navy providing an introduction to three course meals and unlimited alcohol. She said he learned to consume more food than he required while in the Navy. She said there was plenty of evidence in the literature that people who have been overfed after a while get so used to it that they don’t notice, and it’s very hard for them to cut back from that level of intake. When someone has been overeating, that physiological control is not nearly as effective as exercise in reducing weight. The research is to the effect that when people are over-fed, it’s very difficult, physiologically, for them to reduce their intake after a period of over-feeding.
She was of the view that morbid obesity does not develop overnight and may take two years to develop.
Dr Volker was asked what she considered to have been the effect of Mr Reinhard’s medical conditions on his weight. She considered his knees and ankles in particular have reduced his level of mobility, and the result has been that he is unable to exercise. He will go into an exercise regime, or have corticosteroid injections, but after a period of time he can no longer continue exercising. The corticosteroid injection has diminished, and he can only have those every three months, and so he is back to not exercising and the weight continues to accumulate.
Dr Mann noted that on Mr Reinhard’s evidence he had been able to cut down on his food intake, and was able to achieve weight loss in the last few years, notwithstanding his inability to exercise. He agreed that Mr Reinhard’s service injuries had greatly limited his mobility and may have contributed significantly to his morbid obesity. In particular he noted that:
Towards the last 6 months of his service, his injuries caused him to reduce his sporting activities.
Post Service, Mr Reinhard recalls that he was greatly limited in his mobility and was not able to maintain his sporting activities.
It is clear that Mr Reinhard’s sporting pursuits post Service have been limited by his injuries during Service.
He was asked about Mr Reinhard’s recorded weight readings where he weighed, for example, 122 kg in 2005 and 125 kg in 2010, whether there was one extended period of morbid obesity which was subject to some variations where the weight dropped below BMI 40, or whether in fact there were separate periods of morbid obesity. He considered that once Mr Reinhard reached morbid obesity, a BMI of 40 or above, the variations in his weight were only very minor variations. Unless there was a significant change, where it dropped significantly below 40, he remained morbidly obese.
Dr Mann considered it would be a “very gross over-simplification” of a person’s eating behaviour if there were a suggestion that increased availability of high quantities and high quality of food, during the period of Mr Reinhard’s service, was relevant to his eating habits decades later. It is impossible to single out the effects of a single issue and what determines a person’s way of eating is extremely complicated, and includes genetically determined food preferences. Some people have more sensitive taste buds, so those people actually enjoy food far more than normal tasters. An adult’s eating behaviour is determined between the ages of two or three years old up to about the early teenage years. At any stage in an adult’s life influences are only temporary, even when they may last for, say, four years. Even so, with the right information and the right counselling, they can change a lifetime of eating habits and maintain their weight-loss for years.
He agreed in cross-examination that where there is a history of repeatedly attempting to exercise, where he has lost some weight, that has then stopped because of problems with his joints, he then puts the weight back on, that history pointed to inability to exercise contributing to weight increase.
In his report he had noted that “Mr Reinhard has been able to demonstrate that by cutting down his food intake, he has been able to lose weight.” He said that Mr Reinhard told him he had lost weight without exercise by cutting down his food intake.
CONSIDERATION
As we understand the submissions, the Applicant advanced two hypotheses:
·Mr Reinhard’s accepted orthopaedic disabilities, including his war-caused osteoarthrosis of the left ankle, materially contributed to his inability to exercise and that, as a result, his caloric intake was excessive for his energy needs;
·The Applicant’s defence service had exposed him to an environment which encouraged high caloric intake and led to a lifetime of over-eating, and this materially contributed to his morbid obesity.
As to whether either hypothesis conformed to the template in the SoP, this step (as per Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98) entails determining whether the relevant hypothesis complies with the factor. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases, Stone J likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
The question for us at this stage is, therefore, whether there is material pointing to each element of the hypothesis: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material. A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581.
Both hypotheses, it was clear as a simple matter of interpretation of the factor, require the necessary elements to be considered in relation to the year immediately before the clinical onset of morbid obesity. As to clinical onset, there was no dispute that the clinical onset of Mr Reinhard’s morbid obesity was in about 2003, over 30 years after his operational service and 28 years after he left the Navy.
The Applicant’s first hypothesis that, for the year immediately before the clinical onset of morbid obesity in 2003, his caloric intake was excessive for his energy needs, because it could not be compensated by physical activity due to his war-caused conditions. The contention was that, as a matter of construction, “caloric intake” will, as a matter of fact, be excessive for energy needs if it cannot be compensated by physical activity, and that therefore “excessive for energy needs” in the factor is redundant.
Drs Volker and Mann agreed that Mr Reinhard’s caloric intake at the relevant time was excessive for his energy needs. We accept, therefore, that there is material before us that points to the Applicant, in the year immediately before the clinical onset of morbid obesity in 2003, having a caloric intake which was excessive for his energy needs.
There is also material before us that points to his reduced ability to undertake physical activity.
Therefore, we have come to the view, without making a find of fact, that every essential element of the hypothesis is pointed to by the material before us. A reasonable hypothesis therefore is raised.
Section 120(1) of the VE Act provides that the claim will succeed, unless we are satisfied, beyond reasonable doubt, that there are no sufficient grounds for determining that the Applicant’s condition was war-caused. If we are not so satisfied, Mr Reinhard’s claim must succeed: s 120(1) of the VE Act. In examining this question, we note that there is no onus of proof: s 120(6) of the VE Act and Bushell v Repatriation Commission (1992) 175 CLR 408.
The evidence, which we accept, is that Mr Reinhard engaged in significant sporting exercise during his service until he started having trouble with his knees and ankles, such that from 1974 he started missing games. He continued playing sport, albeit at a reduced level, and his weight increased to 105 kg by 1991. His evidence was that his conditions deteriorated further and that by the late 1990s he was unable to play any sport at all. From that time he and his wife would go for a walk once a week. He was not conscious of a weight problem until into the 2000s. He enjoyed food and had a tendency to ignore weight gain.
In 2003 his weight of 136 kg gave him a BMI in excess of 40 and he was then clinically morbidly obese. His doctor recommended a minimum of 30 minutes exercise three times a week, and the Applicant and his wife would walk around their 5 acre property three to four times a week. That resulted in a weight reduction to 122 kg within 14-15 months.
As we see it, this creates two problems. Firstly, the factor requires that for the year immediately before the clinical onset of morbid obesity, the Applicant’s caloric intake cannot be compensated by physical activity. Clinical onset was no later than 2003. There was no direct evidence as to his exercise capability in the year prior to that time. We accept that the Applicant no longer had a strenuous exercise regime. However, his evidence was that in the year following clinical onset he was able to walk about 5 km three to four times a week, which resulted in a weight reduction of 14 kg within 14-15 months. It is fair to assume therefore, that he also had that capability in the year before clinical onset. We therefore find that for the year immediately before the clinical onset of morbid obesity, the Applicant’s caloric intake was in fact capable of being compensated by physical activity. Further, we agree with Senior Member McCabe’s approach in Re Summers and Repatriation Commission [2008] AATA 481 at [7] that “cannot be compensated by physical activity” contemplates something related to service that actually prevents physical activity, and that circumstances or conditions that merely discourage or inhibit physical activity without preventing it are not enough.
The second problem we see is that, having reduced his weight to 122 kg the Applicant no longer had a BMI of at least 40, and therefore was not, on weight alone, within the definition of morbidly obese. While he did have a BMI of at least 35 there was no evidence that, at the time of clinical onset, he had a requirement for ongoing, medically prescribed drug therapy for weight reduction, or surgical intervention for weight reduction other than cosmetic surgery, in accordance with the alternative definition of morbid obesity. Consequently, he did not continue to meet the definition of morbid obesity in the SoP. In the intervening years his weight has fluctuated. In particular, in the period under review, the Applicant’s weight had fallen to 125 kg (on 12 January 2011). Neither doctor saw this fluctuation as a problem. Dr Volker regarded the Applicant as a person who was morbidly obese, despite periods when he was able to reduce his weight to below the morbid obesity level. Dr Mann also did not consider that morbid obesity could be divided into separate periods, because he found the variations in the Applicant’s weight only to be “minor” and not significantly below a BMI of 40.
If the view of the dieticians were accepted, it would still not assist the Applicant. While the Applicant’s increasing mobility problems may, in recent years, have had a greater impact on his ability to exercise to “compensate” for his caloric intake, on the view of both dieticians, the clinical onset of morbid obesity, as defined in the SoP, would remain at 2003. For the reasons discussed above, we have found that the Applicant was, in the year before clinical onset, able to compensate for his caloric intake by physical activity. In that respect, the matter differs from Re Betts and Repatriation Commission [2013] AATA 346 (Betts), to which the Applicant’s counsel referred.
If we were to reject the evidence of both experts – which we are not inclined to do – and find that each occasion when Mr Reinhard had a BMI in excess of 40 (or met the alternative definition of morbid obesity) was a fresh “clinical onset”, then the outcome might have been different. We accept that there was evidence of a significant decrease in Mr Reinhard’s activity because of his accepted disabilities, but in the years after 2002-3.
The matter also differs from Betts because the weight loss this applicant achieved from time to time was not minimal (despite Dr Mann describing it as “minor”), because he was able to lose up to 10 per cent of his body weight.
Detailed submissions were made on the Applicant’s behalf about “contribution” in s 196B(14)(d). Perram J in Gilkinson v Repatriation Commission (2011) 197 FCR 102 at 104 said the expression connotes “a relationship of substantial causality although it is clear that sole causality is not meant”. We do not think this is a matter for consideration of “material contribution”, because we have found as a fact that in the year before clinical onset the Applicant was able to walk for exercise several times a week, which, even after the clinical onset of morbid obesity, resulted in a weight reduction of 14 kg within 14-15 months.
Having reviewed the whole of the material before us, and for the reasons given above, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant’s morbid obesity was war-caused. For the same reason the Tribunal is not satisfied on the balance of probabilities that the Applicant’s morbid obesity was causally-related to his defence-caused conditions.
As to the second hypothesis, that the Applicant’s defence service had exposed him to an environment which encouraged a continued high caloric intake which, in the year before the clinical onset in 2003, materially contributed to his morbid obesity. We observe that the Applicant’s evidence was that immediately on his enlistment, that is before his eligible service (which did not commence until late September 1971), he was exposed to an abundance of fine food. There was no clear evidence of the service diet during the Applicant’s operational service, but it is doubtful that shipboard meals in a warzone would be nearly as lavish as those ashore. Indeed, there was no contention on behalf of the Applicant that his operational service played a part in his excessive eating habit. According to Dr Volker, a relatively short exposure to a different diet could be responsible for developing lifelong habits. The Applicant’s eligible defence service did not commence until December 1972, by which time, on Dr Volker’s view, his excessive eating habits were established.
Further, there was no evidence that Mr Reinhard was required or expected (with the possible exception of monthly mess dinners) to eat large quantities of food during his service. Cf Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115.
We also consider that the view of Dr Volker, which we accept, does not leave room for contending that the Applicant’s eligible defence service made a material contribution to his morbid obesity. Cf Knight v Repatriation Commission [2010] FCA 1134 and Kattenberg and Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365.
We therefore find, on the balance of probabilities, that the Applicant’s morbid obesity was not causally related to his eligible defence service.
CONCLUSION
In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant’s morbid obesity related to either his operational nor, on the balance of probabilities, to his eligible defence service.
DECISION
The decision under review is affirmed.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr H Haikal-Mukhtar, Member ................[sgd]........................................................
Associate
Dated 25 July 2013
Dates of hearing 18 and 19 April 20131 Counsel for the Applicant Mr C Colborne Solicitors for the Applicant Legal Aid NSW Advocate for the Respondent Mr A Crowe, Department of Veterans' Affairs
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