Patterson and Repatriation Commission
[2005] AATA 1248
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/780
VETERANS' APPEALS DIVISION ) Re VALMAE EDNA PATTERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date16 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 – post eligible service diet not connected with circumstances of service – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Valmae Edna Patterson, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Patterson claims that her late husband, Michael John Patterson, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Patterson’s claim are:
(a)Michael John Patterson died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Patterson 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. Patterson’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. Patterson’s death from prostate cancer was related to his RAAF service.
4. Mrs. Patterson’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. Patterson 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)Michael John Patterson was born at Kogarah, New South Wales on 31 May 1935.
(b)He enlisted in the RAAF on 24 January 1951.
(c)He served an Apprenticeship for four years and became an Engine Fitter.
(d)He served in the RAAF for over 24 years and was discharged on 6 June 1975.
(e)He rendered operational service in Malaya from 12 July 1958 to 19 December 1960.
(f)He also rendered defence service as defined in Part IV of the VEA from 7 December 1972 to 6 June 1975.
(g)He married Valmae Patterson on 10 September 1955.
(h)He was first treated for prostate cancer in 1992.
(i)He died on 9 November 1995. The cause of death was (a) metastatic adenocarcinoma, and (b) adenocarcinoma of prostate.
(j)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. Mrs. Patterson provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She joined the RAAF in 1954.
(b)She married Mr. Patterson on 10 September 1955.
(c)She was discharged from the RAAF in 1955, when they were married. She spent about 15 months in the RAAF. She then became a housewife.
(d)She has no knowledge of her husband’s diet prior to his joining the RAAF.
(e)Her understanding is that her husband ate at the RAAF Mess in the years that he was in the RAAF before their marriage.
(f)After their marriage, she prepared all of the meals that her husband had at home.
(g)Her husband sometimes ate at the RAAF Mess for lunch.
(h)When they lived at Butterworth Base in Malaya, she prepared all of her husband’s meals, except for some lunches and except for the periods when he was away from the base. The lunches she prepared usually consisted of salad sandwiches, sometimes with cold meat.
(i)The diet of Mr. and Mrs. Patterson in Malaya was “much the same” as they had in Australia “except that we ate a lot more curries”.
(j)She completed a “dietary survey” for the purposes of this claim, on 20 August 1999. She found some of the questions confusing. She completed a further dietary survey on 6 December 2001.
(k)Her husband had been an active man who regularly drank alcohol and smoked cigarettes.
(l)Her husband enjoyed his food and ate large portions.
(m)Her husband liked butter and would use butter on bread and toast using at least one teaspoon of butter per slice. Mr. Patterson would also butter cake before he ate it.
(n)Butter was used during the early years of the Patterson’s marriage, switching to margarine in the late 1970’s. Margarine was spread on bread and toast, as well as for topping over vegetables. Mrs. Patterson would still use butter in all cooking that required it.
(o)Vegetables consisted of either mashed potatoes which were made with butter, and milk, or chips which had been fried in dripping. Other vegetables were boiled and butter or cheese sauce would be poured on them.
(p)Meat dishes were always accompanied with gravy which was always made on the pan juices after frying the meat in a pan with dripping.
(q)Her husband always ate the fat around the side of chops and steak and he would eat the left over fat from other people who had not eaten the fat around the meat.
(r)Mr. Patterson sometimes put a dollop of butter on his steak before he ate it.
(s)While Mr. Patterson was in Malaya the RAAF medical personnel advised him to lose weight. He went on a diet to lose weight for a time. He also exercised heavily to lose weight.
(t)After discharge Mr. Patterson was self-employed in his own fruit juice business in Rockhampton from 1975 to 1986. He often ate out to entertain clients.
(u)From 1986-1994, Mr. Patterson operated a service station. He had decreased his drinking but his weight was still approximately 88 to 89 kgs.
20. The material placed before the Tribunal indicates that from the date of the marriage of Mr. and Mrs. Patterson, Mrs. Patterson prepared practically all of the meals that Mr. Patterson ate for their entire married life. She cooked for him in Australia for nearly three years before they went to Butterworth. She cooked the same meals for him, except for a lot more curries, in Butterworth as she had done for him in Australia. She cooked similar meals for him in Australia after they returned to Australia from Butterworth.
21. There is no indication in the material placed before the Tribunal that Mr. Patterson’s service in Malaya had anything whatsoever to do with his diet, either in Malaya or Australia.
22. There is nothing in the material placed before the Tribunal to suggest that Mr. Patterson’s daily consumption of animal fat increased during his service in Malaya, nor that his daily consumption of animal fat increased post his service in Malaya.
23. No hypothesis is raised which links the death of Mr. Patterson with the particular circumstances of his eligible service.
24. The decision to reject the Applicant’s claim for a widows pension is affirmed.
I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDates of Hearing 14, 21.3.05, 8.4.05, 10, 11, 12.5.05, 20, 22.6.05, 30.9.05
Date of Decision 16 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
0
0
0