MARION SHAW and REPATRIATION COMMISSION

[2010] AATA 381

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 381

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1285

VETERANS' APPEALS  DIVISION		)
Re		MARION SHAW

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date21 May 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Member

CATCHWORDS

VETERAN’S AFFAIRS – Pensions and benefits – Widow’s pension – Veteran’s death was not war-caused – No causal connection between veteran’s service and his increased animal fat consumption - Reasonable hypothesis test not satisfied – Decision affirmed.

Veterans’ Entitlement Act 1986 (Cth)

Burns and Repatriation Commission [2008] AATA 1078

East v Repatriation Commission (1987) 12 ALD 389

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Codd (2007) 95 ALD 619

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

21 May 2010 Dr M Denovan, Member    

INTRODUCTION

1.        Douglas Francis Shaw (“the veteran”) was born in 1924 and served in the Royal Australian Air Force during World War II from October 1942 to March 1946.  As the veteran served outside Australia, the whole period of his war-time service is operational service in accordance with the Veterans’ Entitlement Act 1986 (Cth) (“the Act”).  The veteran died on 1 December 2007 at the age of 83 years.  The cause of death was certified as metastatic prostate cancer and Parkinson’s disease.  

2.        Mrs Marion Shaw, the veteran’s widow (“the applicant”), lodged a claim for pension, on the basis that the veteran's death was war-caused.  The claim was refused by a delegate of the Commission in a decision dated 19 March 2008.   That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 23 February 2009.  The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision on 31 March 2009.   

ISSUES AND THE LAW

3.        The relevant law is contained in the Act.

4.        In Repatriation Commission v Hancock [2003] FCA 711, Selway J explained the process to be adopted at [11] when assessing a claim of this type:

(a) First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out. 

(b) Next, the Tribunal was required to determine on balance of probabilities what ‘kind of death' Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A (2) of the Act and any other ‘kinds of death' which were applicable to that death.

(c) If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death'.

(d) If only a determination under s 180A(2) is applicable, then the application must fail.

5.        In this case, the pre-conditions to addressing the issue of the relevant kind of death are not in dispute: namely that Mr Shaw was a veteran who died and Mrs Shaw is his widow.

6.        It is also not in dispute that the applicant died from metastatic carcinoma with bony metastases in the left hip and upper femur.  Mr Harding, for the applicant, submitted that the primary site was either metastatic melanoma or prostate cancer, and relied on service related exposure to sun and service related consumption of animal fat to satisfy the relevant Statements of Principles (S0Ps)[1].  Mr Williams, for the respondent, submitted that the primary site of the metastatic cancer was the prostate, and that this condition was not related to service as the veteran’s consumption of animal fat was not causally related to his service.

[1] Instrument number 28 of 2005 for malignant neoplasm of the prostate and Instrument number 79 of 2007 for Malignant Melanoma of the skin.

7.        The issues I must  determine are:

(a)the kind of death suffered by the veteran; and

(b)whether the veteran’s death was war-caused.

What was the kind of death suffered by the veteran?

8.        The kind of death to be considered is the medical cause of death including the contributing or underlying medical cause of death (Repatriation Commission v Codd 95 ALD 619 at [627])[2]. 

[2] T4/30

9.        In July 2007, Mr Shaw fell and fractured the neck of his right femur.  His right hip was replaced in August 2007.  In September 2007, after Mr Shaw had another fall it was discovered that he had a fractured left hip.  A bone scan performed in October 2007 revealed multifocal secondary metastatic cancer throughout his body[3].  Some days later a CT scan showed that Mr Shaw had an enlarged prostate.  Because of the advanced state of Mr Shaw’s ill health, no biopsy was undertaken to confirm the aetiology of the metastatic cancer.

[3] T4/30

10.      Mr Shaw was then seen by radiation oncologist Dr L Kenny.  In her report dated 26 October 2007, Dr Kenny opined that it was most likely that Mr Shaw had a primary carcinoma in his prostate with bony metastatic disease.  Dr Kenny noted that Mr Shaw’s PSA (prostate specific antigen) was not particularly elevated; however she commented that non-secretory prostate cancers are seen not infrequently.

11.      In support of his contention that Mr Shaw's primary was malignant melanoma, Mr Harding referred me to the reports of Dr Kenny dated 27 November 2008 and dermatologist Dr Mercer dated 10 October 2008.  Both reports were prepared after the veteran’s death in response to requests from Legacy Brisbane. 

12.      In that later report, Dr Kenny stated that “the origin of Mr Shaw’s metastatic cancer was not clear”, that it was from “an underdetermined primary origin”, and that it was “highly possible that his primary was not prostate”.  The letter of request sent to Dr Kenny by Legacy is not in evidence.  I consider it highly likely that Dr Kenny’s change of opinion was coerced by Legacy, and put far more weight on her earlier report which was written to and for the benefit of other medical practitioners responsible for the care and treatment of the veteran.

13.      In her report, Dr Mercer confirmed that Mr Shaw had a malignant melanoma excised in 1997.  Dr Mercer opined that it was possible that Mr Shaw’s widespread bony metastases may have come from malignant melanoma.  As Dr Mercer is a dermatologist, not an oncologist, and apparently did not treat the veteran for his terminal illness, I put far less weight on her opinion.  In any case, she raised malignant melanoma as a possible, not probable cause of the widespread metastatic disease suffered by the veteran.

14.      I find it significant that after being diagnosed by Dr Kenny with metastatic disease, Mr Shaw was subsequently treated by consultant physician and geriatrician Dr P Aitken, and oncologist Dr R Abraham.  The reports of Dr Aitken are included in evidence[4].  Whist no report of Dr Abraham is in evidence, the later report of Dr Aitken refers to Mr Shaw having been reviewed by Dr Abraham who “managed his presumed prostate cancer”.  By inference, Dr Aitken and Dr Abraham considered that the presentation of Mr Shaw was consistent with that of metastases due to prostate cancer.  Palliative care physician, Pat Treston also considered the diagnosis was probably metastatic carcinoma of the prostate[5].  There is no evidence that any doctor prior to the veteran’s death contemplated that the primary was malignant melanoma.

[4] T4/22

[5] T4/26

15.      Accordingly, I am satisfied on the balance of probabilities that the kind of death suffered by Mr Shaw was metastatic prostate carcinoma, and that malignant melanoma did not contribute to the kind of death of the veteran.

Was the veteran’s kind of death war-caused?

16.      The hypothesis advanced on behalf of the applicant is that the veteran’s circumstances satisfy factor 5(c) of the SoP which provides:

5. (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;

17.      At this stage in the process Deledio prescribes that, I must consider whether the material before me points to positive answers to the following questions: first, did Mr Shaw increase his animal fat consumption to the required degree and for the required period of time; and second, if so, was that increase connected to his operational service? (Burns and Repatriation Commission [2008] AATA 1078, at [10]).

18.      Mrs Shaw completed a dietary survey and gave evidence at the hearing in relation to her husband’s animal fat consumption.  Mrs Shaw told me that in some instances the information she provided in the survey reflected her husband’s dietary habits after his diet was modified when he was diagnosed with diabetes in 1993.  Prior to 1993, his diet included more animal fat.

19.      Mrs Shaw did not know her husband before the war and so was not able to give evidence about his animal fat consumption prior to his service.  Both parties agree that the correct approach is to assume that the veteran consumed an average consumption of animal fat in his diet prior to enlistment.  Both parties referred me to a report by Dr Ruth English[6] which has been relied on by the Tribunal in previous matters of a similar nature.  The report outlines the animal fat content in pre-war civilian, wartime army rations and, post war trends in animal fat.  The average pre‑war animal fat consumption is estimated to be 128grams per day[7].

[6] Exhibit 5: Animal Fat in the Australian Diet including The Armed Services’ Rations in World War 2.

[7] Exhibit 5: Animal Fat in the Australian Diet including The Armed Services’ Rations in World War 2.

20.      Dietician/nutritionist, Mrs Trudy Williams, reviewed the applicant’s dietary survey and concluded that the veteran had a post war fat increase of 49.8%[8].

[8] Exhibit 2: Dietary survey for Douglas SHAW deceased. 

21.      I consider that there is material that points to Mr Shaw having increased his animal fat consumption post war by an amount and for a period that would satisfy the requirements of factor 5(c) contained in the relevant SoP.  The next consideration is whether there is evidence that this increase was causally related to his service.

22.      Both parties agree that on the basis of the veteran’s service records and Dr English’s report, Mr Shaw would have been exposed to an increase in animal fat of 5 grams a day for a period of only six weeks whilst posted to New Guinea and the Islands.  During the remainder of his service, both parties accept that the veteran is assumed to have consumed the typical army rations which contained less animal fat than the average civilian pre-war diet[9].

[9] Exhibit 5: Animal Fat in the Australian Diet including The Armed Services’ Rations in World War 2.

23.      Mr Williams contended that consuming an increase in dietary animal fat during the period is insufficient to modify any food preference.  In his written submissions, Mr Harding referred to evidence given before previous hearings by psychologist Dr Kenardy in support of his contention that the short period of high animal fat intake could have been sufficient to change the veteran’s preference and desire to eat animal fat.

24.      Mrs Shaw’s evidence was that her husband expressed no particular food preferences, however he did not like lambs fry and kidneys.  She provided no evidence which points to Mr Shaw’s increase in consumption of animal fat being causally related to his service.  Dr Kenardy’s evidence refers to how a person would consume fat if they developed a preference for fat during service.  In my opinion, it does not advance the applicant’s case, and is certainly not evidence that points to the proposition that Mr Shaw would have developed a preference for animal fat during his service.

25.      The Act does not permit the Tribunal to find that a causal link exists where there is no evidence: Mason v Repatriation Commission [2000] FCA 1409, per Weinberg J at [75] to [76].

26.      In the Full Federal Court decision of East v Repatriation Commission (1987) 12 ALD 389, the Court concluded that “a ‘reasonable hypothesis’ required more than a possibility, not fanciful or unreal, consistent with the known facts”.

27.      I have therefore formed the opinion that the hypothesis raised by the material before me is not reasonable because the material does not point to a causal connection between Mr Shaw’s service and his increased consumption of animal fat.

DECISION

28.      The decision under review is affirmed.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed: ....................[Sgd]................................................
              Kate Slack, Research Associate

Date/s of Hearing  7 April 2010
Date of Decision  21 May 2010
Counsel for the Applicant         Mr Anthony Harding
Solicitor for the Applicant          Mr John Cockburn
Solicitor for the Respondent     Mr Bruce Williams