Payne and Repatriation Commission
[2003] AATA 857
•2 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 857
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2001/913
VETERANS' AFFAIRS DIVISION ) Re MARGARET PAYNE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date2 September 2003
PlaceSydney
Decision The decision under review is affirmed. ...............................................
Dr J D Campbell
Member
CATCHWORDS
Veterans' Affairs - Widow's pension - Death from Ischaemic Heart Disease - Obesity - Causal relationship to service - decision affirmed.
LEGISLATION
Veterans Entitlement Act 1986, section 8, 120, 120A
Statement of Principles Instrument No 38 of 1999, concerning Ischaemic Heart Disease
Statement of Principles Instrument No 31 of 2003, concerning Morbid Obesity
AUTHORITIES
Falconer v Repatriation Commission [2002] FCA 1336
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
2 September 2003 Dr J D Campbell, Member 1. In this application, Mrs Margaret Payne (“the Applicant”) seeks a review of the decision of the Repatriation Commission (“the Respondent”) dated 17 November 2000 which found that the death of the late veteran, Mr John Payne (“the Veteran”), was not related to service and, as a consequence, the Applicant was not entitled to a war widows’ pension. This decision had been reviewed and affirmed by the Veterans’ Review Board (‘VRB’) in a decision dated 21 May 2001.
2. A hearing was held before the Tribunal in Lismore on 3 April 2003 at which the Applicant was represented by Mr Best of Counsel. The Respondent was represented by Mr Marsh, an advocate from the Department of Veterans Affairs. The Applicant, Dr Danesi and Dr Brown presented oral evidence to the Tribunal. Final submissions were received from the Applicant on 20 May 2003, 16 July 2003 and 18 July 2003 and from the Respondent on 1 July 2003 and 17 July 2003. Further directions hearing were held on 21 and 28 August 2003 to consider matters relating to the Respondent’s final submission and a new Statement of Principles concerning morbid obesity.
3. The following material was placed into evidence before the Tribunal:
Exhibit No Description Date T1-14, pp1-77
Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
Exhibit A1
Clinical Report by Dr Hase
19 September 2002
Exhibit A2
Medical Report by Dr Danesi
16 September 2002
Exhibit A3
Curriculum Vitae Dr Danesi
8 November 2002
Exhibit A4
Applicant’s Statement of Facts and Contentions
25 October 2002
Exhibit R1
Medical Report Dr Brown
4 January 2002
Exhibit R2
Medical Report Dr Brown
12 November 2002
Exhibit R3
Respondent’s Statement of Facts and Contentions
18 December 2002
ISSUES
4. The relevant issues in this matter are whether the death of the Veteran was related to service and, in particular, whether his death from myocardial infarction and coronary artery disease was in any way causally related to his service.
LEGISLATION
5. The relevant legislation in this matter is the Veterans’ Entitlement Act 1986 (“the Act”), in particular sections 120(1), 120(3), 120A, Statement of Principles Instrument No 38 of 1999 (“SoP 38/1999”) concerning Ischaemic Heart Disease and the Repatriation Medical Authority Statement About the Causes of “Being Obese” (“the RMA Statement”)..
BACKGROUND
6. The Applicant lodged a claim with the Respondent on 10 November 2000 seeking that the death of her husband, the Veteran, be accepted as being causally related to his service, the Veteran having experienced operational service between 11 October 1941 and 17 October 1945 in World War II. The Respondent rejected the Applicant’s claim on 17 November 2000, concluding that while the Veteran’s death from coronary artery disease and underlying hypertension was attributable to his obesity, a relationship between the Veteran’s obesity and his service could not be established (T2).
7. On 21 May 2001, the Veterans’ Review Board affirmed the decision of 17 November 2000 and, in so doing, concluded that there was insufficient evidence to connect the Veteran’s obesity with his war service (T12).
APPLICANT’S EVIDENCE
8. The Applicant, in a statutory declaration dated 16 March 2001 (T11, p55), detailed that her husband died in 1969, aged 50, and that prior to his death he had been severely overweight, weighing 17 stone seven pounds, had high blood pressure and that while hospitalised for treatment of his blood pressure, he had a series of heart attacks leading to his death. The Applicant stated that the Veteran had very bad eating habits, and that when he played golf or bowls, which he did twice a week, she would prepare sandwiches for him to eat during his morning and afternoon round, with a purchased lunch in between.
9. In oral evidence, the Applicant described the eating habits of the household and in particular that of the Veteran which she described as “too much, too often”.. The Applicant considered that there was little emphasis on healthy eating in the family, although she prepared the meals for her husband and two children. The Applicant described giving large portions to her husband, who was served first, and that the Veteran was a rapid eater, with his plate nearly empty by the time she had finished serving. The Veteran would eat any leftovers.
10. The Applicant described the Veteran’s normal weekday breakfast as consisting of cereal, eggs (two), bacon (three rashes), sausages (two or three) and toast (two slices), which he would have at 6.30am. The Applicant was unable to state as to what the Veteran would eat during the weekday, but described an evening meal as comprising meat and vegetables and dessert.
11. On weekends, the Applicant stated that there were three routine meals, with her husband cooking his own breakfast between 7 and 7.30 am prior to driving around their property on a tractor. On return, her husband would cook himself a further breakfast (eggs, sausages, toast), enjoyed a cooked lunch (meat and vegetables, occasional curry), partake of afternoon tea (scones, sponge cake), consume a normal dinner around 6pm and have supper (tea, sandwich) prior to retiring to bed.
12. The Applicant stated that the Veteran was a non -smoker and a non -drinker of alcohol, and at social occasions he would eat continuously and drink coke.
13. The Applicant was unable to recall what she had said to Dr Brown during their conversation and, in particular, a statement that the Veteran was eating normally immediately following service. The Applicant considered that the Veteran’s eating habits following service were basically similar over the period.
14. The Applicant stated that she had learnt that the Veteran, during his week as a travelling wholesaler, often consumed cream cake and coke and that this led to increased weight right from the beginning. The Applicant stated that her husband often expressed his intention to diet, but failed to carry through any dietary program, consuming food wherever he could and in a rapid fashion, often stating, “I did not really need that” and “I was so uncomfortable”.
15. The Applicant stated that the Veteran often complained that he was not comfortable, that he was going to change, that he would start his diet tomorrow, that he was not happy with his weight and that he was experiencing difficulty with his swing at golf and getting in and out of cars. The Applicant stated that her husband enjoyed his food, but that he would eat whether he was hungry or not.
16. In response to questions asked by Mr Marsh, the Applicant stated that her husband would leave home at around 7am each working day, returning home about 5:30pm. She also explained that they had moved to the farm around 1960, and that the Veteran used to drive the tractor around the 90-acre property checking the fences and undertaking spraying. The Applicant stated that her husband ceased playing golf in the mid fifties, having played on Thursdays and Saturdays, but played bowls on Saturday and Sunday thereafter, although troubled by shortness of breath in his last six years of life. The Applicant told of her husband drinking significant quantities of coke and that during their first couple of years of marriage that he ate too much and that over time she worried about his health.
OTHER FILE EVIDENCE:
17. At the enlistment medical examination on 9 June 1941, the Veteran was noted to be 69 ½ inches tall and weigh 148 pounds, with a blood pressure of 136 systolic 74 diastolic (T3, page 4). At a discharge medical examination on 15 October 1945, the Veteran was noted as weighing 174 pounds in clothes (without tunic) and his blood pressure was 125 systolic and 80 diastolic (T3, page 10).
18. On 17 January 1962, in an application to the Repatriation Commission for medical treatment, Dr Opie, the Veteran’s attending general practitioner, described the reason for the application being backache over 15 years. He further described the Veteran as a healthy male with good colour and nutrition (T4, page 4).
19. In a death certificate dated 15 August 1969, the cause of death for the Veteran was certified by Dr Opie as myocardial infarction and coronary artery disease (T7, page 26).
20. Statutory declarations from Mr Le Cornu (T7, page 35), Mr Herron (T7, page 36), Mr Coup (T7, page 37) and Mr Frith (T7, page 38) attested to the Veteran’s death in 1969, his weight at the time of death and his stressful service as a Beaufighter Pilot in World War II. In a statutory declaration dated 10 March 2001, Mr John Payne attested to his father’s excessive food and drink intake, his eating habits as a salesman and during a golf round, as well as his capacity for drinking coke (T11, pages 51-52).
CLINICAL EVIDENCE
dr danesi – consultant psychiatrist
21. In a report dated 16 September 2002 (Exhibit A2), Dr Danesi, having reviewed the material but not interviewed the Applicant, concluded that Mr Payne, more likely than not, did suffer from a binge eating disorder according to DSM IV Criteria. In reviewing the criteria, Dr Danesi made the following comments:
“Criteria A. Recurrent episodes of binge eating
(1) Eating in a discrete period of time an amount of food definitely larger than most people would eat in a similar period of time under similar circumstances.
… he would eat his way around the golf course. Not only would he eat a pile of sandwiches but also a meal at the Club House … the same thing occurred when he played lawn bowls.
(2) There was a sense of lack of control over eating during other episode.
… lack of control … he never refused food…
… he would eat whether he was hungry or not …
… had to eat food whenever it was available …
Criteria B. The binge eating episodes are associated with three or more of the following.
… eating until feeling uncomfortably full … John Payne … says, whenever his father visited shops, he would always eat something such as a cake and coke ... Also … he would have to eat whenever food was available.
Mrs Payne says he would eat whether he was hungry or not …
… James Frith … notes Mr Payne would always have something to eat.
… fulfilling the criteria eating large quantities of food when not feeling physically hungry.
… feeling disgusted with oneself, depressed or very guilty after eating.
… Mrs Payne [said] that he would talk about diets but he was unable to restrict his intake …
Mrs Payne said that he regretted his eating habits.
Criteria C. marked distress regarding binge eating is present.
… assumed that he was distressed after bingeing. Over the decades the distress may have attenuated.
Criteria D. The bingeing occurs at least two days per week for 6 months.
He has done this for many years.
Criteria E. Binge eating is not associated with regular use of inappropriate compensatory behaviours.
None … noted in the … reports.”
Dr Danesi also noted that the Veteran experienced a number of significant stressors during World War II, and wondered whether the Veteran had a caffeine dependency in light of the amount of coke consumed.
22. In oral evidence, Dr Danesi confirmed his written opinion that the Veteran suffered from a binge eating disorder, in that he ate rapidly, he felt uncomfortably full, he consumed a lot of food and soft drink, he did not eat alone, he was concerned about his weight and felt disgust, guilt and depressed about not being able to diet and he had impaired control over his binge eating. Dr Danesi considered that the Veteran’s eating behaviour had been described as consistent by the Applicant on his return, with a gradual increase thereafter, this being Dr Danesi’s interpretation of Dr Brown’s interview with the Applicant, repeated at page three of Dr Brown’s report of 4 January 2002 (Exhibit R1). Dr Danesi also noted that Mr Payne had been reported as being a non-drinker and non-smoker and that it had been his practice to resort to food on return from an operational mission during World War II.
23. In response to questions in cross examination, Dr Danesi stated that:
· his document review entailed in relying upon in part on what Dr Brown had reported;
· eating disorders were not his area of expertise and that he would possibly defer to Dr Brown’s expertise in this area;
· his area of expertise was that of a general psychiatrist with particular experience in post traumatic stress disorder;
· he sensed a lack of control by the Veteran from page six of Dr Brown’s report of 4 January 2002;
· at page three of Dr Brown’s report of 4 January 2002 there is no comment of secretive eating behaviour, nor any indication of disgust or guilt; and,
· The Veteran did not suffer from post traumatic stress disorder.
dr hase - psychologist
24. Dr Hase, following a review of documents in this matter, detailed in his report (Exhibit A1), dated 19 September 2002, the following opinion:
“ Two factors make diagnosing Mr Payne’s condition difficult. The first is the lack of first hand information from Mr Payne himself through a clinical interview. The risk of making either a type 1 or a type 2 error (diagnosing binge eating disorder or eliminating a diagnosis of binge eating disorder) is increased in this situation. The second factor is that binge eating disorder and eating disorders in general are still poorly understood. It is possible that the diagnostic criteria for eating disorders are not sensitive enough to differentiate the range of possible disorders.
There is sufficient evidence, in my view, to justify a hypothesis that Mr Payne was in fact suffering from binge eating disorder. He: ate frequently and excessively; wanted to lose weight but was unable to do so; was obese; and ate excessively in all sorts of inappropriate circumstances. It is equally probable as not, given that a clinical interview was not possible, that Mr Payne did experience a feeling of fullness after eating and was unable to control his eating.
Furthermore, this eating disorder appeared to start immediately after his war service and there is no evidence that he had a disorder prior to that war service: in fact the evidence is that he was fit and well”.
dr brown – consultant psychiatrist
25. Dr Brown, having been requested by both parties, detailed in her report (Exhibit R1), dated 4 January 2002, the history of the Veteran’s eating behaviour and weight change as told to her by the Applicant. Dr Brown’s report includes the following:
· “… her husband’s eating seemed “OK” following his return from military service” (Exhibit R1, page three);
· it was not too long after the Veteran came back that he started to eat more excessively consuming “both the wrong type of foods and in large quantities”. This seemed to be associated with his work as a warehouse wholesaler, and his custom of not refusing food when offered;
· for the first two years after his return, the Veteran worked in his own grocery store. His weight gradually increased from around two years after his return and thereafter, when he was working on the road, with the Veteran accepting offers of food from various customers;
· the Veteran was not happy about his weight, and would talk about going on a diet, but never seriously restricted his food content or achieved any form of weight loss;
· the Veteran would eat socially with the Applicant and his friends, rather than indulge in secretive eating behaviour;
· he was always able to joke about his eating and he did not seem miserable or unhappy about eating but rather enjoyed it and appeared to gain pleasure from food; and,
· despite having a heart attack some four years before his death and being advised to lose weight, he did not do so, despite a continuing ability to play golf and bowls, with no evidence of limitation of physical activities.
26. In her report dated 4 January 2002, Dr Brown expressed the following opinions:
(a)the Veteran experienced stressful events during his period of operational service and also outside that service with the death of his son in a motor vehicle accident in 1968;
(b)the Veteran developed an eating habit of consuming large quantities of food during the day, a pattern which commenced some two years after his return from operational service, which was sustained in a consistent fashion for the remainder of his life.
(c)the Veteran’s eating habit history does not satisfy the criteria for a diagnosis of either binge eating or a binge eating disorder contained in the RMA Statement for the following reasons:
(i)in relation to binge eating, the Veteran, while satisfying the criteria for eating excessive quantities of food, did not satisfy the lack of control requirement during the episode, as it was evident that he enjoyed his food, this being “one of the factors which made him eat more … , rather than him feeling subjectively unable to stop eating” (Exhibit R1, page six); and,
(ii)In relation to a binge eating disorder, it was noted that the Veteran, while he often talked of intending to diet, never put such intentions into action, this being inconsistent with the type of subjective lack of control contained within the definition of “a binge-eating disorder”.. Similarly, there was no history of the Veteran complaining of feeling uncomfortably full, eating alone because of embarrassment over how much he was eating, or feeling disgust, guilt or depression after overeating. Further, while the Veteran may have been unhappy about his weight, the history does not indicate a level of distress about his eating that caused him embarrassment with others or impaired his emotional coping or day to day functioning during his adult years. There was also no evidence of the regular use of inappropriate compensatory behaviours that might indicate an alternative diagnosis of bulimia nervosa;
(d)the Veteran’s quantity of eating might meet criteria for the amount and frequency of binge eating, but the history does not indicate a lack of control over excessive eating or significant distress about binge eating;
(e)the Veteran’s history of disordered eating behaviour falls well short of the balance of probabilities standard for diagnosing a binge eating disorder;
(f)the Veteran’s weight gain during operational service might have been related to his changed pattern of eating (having to drink and eat at odd times, or whenever he could, as part of the unpredictability of his flying career), but his escalation of eating and weight sounds to have occurred more in the context of his work as a travelling wholesaler, with him eating for enjoyment and as part of a habit pattern;
(g)the Veteran’s service in the RAAF may have led to the establishment of disordered eating habits that became more entrenched over the years, but without him actually developing a binge eating disorder on any other diagnosable eating disorder;
(h)the Veteran’s eating habits did not appear to correlate with stress which he may have felt as a result of his service;
(i)there is insufficient history to make an eating disorder diagnosis of an unspecified type or any type of eating disorder. The Veteran’s eating patterns would reflect more the development of a lifestyle habit;
(j)the Veteran was obese at the time of his death, in terms of the definition contained within the RMA Statement, in that he had a weight gain of at least 20% of the baseline weight and a body mass index of 35.6. Further, on the history from the Applicant, it would appear that the Veteran was “obese” for the last five or ten years of his life; and,
(k)the Veteran was able to play 18 holes of golf in the many years prior to his first heart attack, four years before his death. Thereafter he continued to play bowls and was not impaired in his daily activity level.
27. In summary opinion at page nine of her report of 4 January 2002, Dr Brown expressed the following:
“As such, my own experience is that men of Mr Payne’s generation do not exhibit disordered eating behaviour in this fashion and I have never seen such a case. Because of this, when considering this case, my thought was to consider other possible eating disorder diagnoses or even a link between his eating behaviours and emotional problems. No such history was obtained and the best understanding that I have been able to gain of Mr Payne’s eating behaviours is that what possibly started as a habit of eating excessively, erratically and opportunistically during operational service became more entrenched in post service life. Why this occurred is uncertain, particularly as Mr Payne sounds to have coped admirably well with his wartime service and his disordered eating does not sound to be related to an emotional response to his wartime experiences. For whatever reasons, eating sounds to have become a source of enjoyment to him and a habit which he found difficult to break, but not one which can conceivably be linked to any psychiatric disorder. Although I consider that the habit pattern of his disordered eating may well have started during operational service, using the reasonable hypothesis basis I am unable to link his disordered eating habits to an actual psychiatric condition such as binge eating disorder or even using more liberal criteria of his eating being an emotional reaction to wartime experiences. Rather, he appears to have developed a habit from which he derived enjoyment and which became a way of life to him, but without indicating any particular psychiatric condition”.
28. In a supplementary report, dated 12 November 2002 (Exhibit R2) Dr Brown, having read the reports of Drs Danesi and Hase, confirmed her opinion, that, while Mr Payne may have consumed excessive amounts of food, the other diagnostic criteria necessary to satisfy a diagnosis of binge eating disorder were not present. Further, Dr Brown disagreed with the postulated ideas of Drs Danesi and Hase that Mr Payne was unable to control his eating, that he felt disgusted, depressed or very guilty after eating and that he had eaten until uncomfortably full, as there was no such history gained from the Applicant, nor is there any other historical information to corroborate such assumptions.
29. Dr Brown also expressed the following opinions and noted the following points in her supplementary report of 12 November 2002.
(a)It is possible that Mr Payne might have suffered from binge eating .
(b)The Applicant denied that her husband ever suffered from any particular emotional problem, and that he may have developed an unhealthy habit of excessive eating.
(c)Dr Brown is unable to provide any hypothesis relating Mr Payne’s excessive overeating behaviour specifically to any war related event or experience.
(d)The Veteran’s eating habits were mainly undertaken in “appropriate social eating situations and do not have the flavour of secretiveness, hiddeness, and eating out of social context…”.
30. In oral evidence before the Tribunal, Dr Brown confirmed her opinion expressed in her written reports and highlighted her experience in the area of eating disorders. Dr Brown stated that the history as obtained from the Applicant indicated that:
· The Veteran consumed excessive amounts of food.
· The Veteran was not secretive about his food consumption habits, nor was he ashamed or feeling guilty, and there was no evidence of loss of control over his eating behaviour.
· The Veteran was not self-conscious or embarrassed, and his eating was undertaken in social settings.
· The Veteran was apparently a well-adjusted man, with no psychological difficulties. He enjoyed contact with people, was a good worker, and experienced no emotional difficulties.
· Time may be useful in bringing to light further information.
· Abnormal eating habits may have commenced during his operational service with some weight increase, but the history would indicate that the excessive food consumption commenced two years after his return from service.
· His consistent overeating was congruent with the eating habits of an obese person, so although discomfort may have been felt as a result of his weight, this was not necessarily indicative of a loss of control. It is possible that such individuals do admit to overeating and have regret for their actions.
SUBMISSIONS
applicant
31. Attached to the Applicant’s submission of 20 May 2003 was a copy of the Veteran’s flying log. In the submission, the Veteran’s operational activities are detailed by month, with non-operational, operational and number of flights being recorded for each month for the period March 1944 – March 1945.
32. As a consequence of the analysis of the log, Mr Best, Counsel for the Applicant, submits that the Veteran flew more than one mission per day, was regularly required to fly at night, often flew missions in excess of three hours in one day, all of which, it is submitted, supports a contention that the Veteran would eat at irregular hours.
33. Mr Best contends that the stresses of the Veteran’s war service caused him to develop an eating habit, which led to either the development of a binge eating disorder or an aberrant eating habit, which led to circumstances whereby the Veteran was obese during at least two of the years within the last fifteen years of life.
34. In the alternate, Mr Best submits that the Veteran was exposed, during his service, to an environment which encouraged a caloric intake in excess of energy needs that could not be compensated by adequate physical activity. This resulted in a weight gain of at least 20 per cent of the base line weight.
35. In support of such contentions, Mr Best points to the following:
· the environment was stressful;
· the Veteran, being a non drinker and non smoker, would at the completion of a mission head for food, which may have been some form of stress/emotional relief or a way of coping with his experiences;
· the nature of the operational activity necessitated eating at irregular hours, and to eat when food was available, because of long missions;
· the environmental exposure as explained may have caused the Veteran to develop abnormal eating habits as compensation for emotional/stress issues or purely because of physical circumstances;
· the nature of his service, including both periods of flying and periods of standby, was not conducive to enable adequate physical exercise if one was eating excessively;
· his weight during service increased from 148 pounds on enlistment to 174 pounds on discharge – an increase of 17.65 per cent - with this pattern of indicative weight gain continuing until his death, at which time the late veteran weighed 238 pounds, an increase of 63 per cent.
respondent
36. Accompanying the Respondent’s submissions was a research report from Mr Piper, dated 26 May 2003, which detailed particulars about diet and exercise in the RAAF, RCAF and RAF during World War II. Extracts from the Royal Air Forces Medical Services Volume II, an official British History published in 1955, indicate the importance of physical fitness and its direct bearing on morale and fighting efficiency, and tell of a physical fitness officer at each RAF station, and facilities, games and sports being encouraged by commanders, all of which met with varying success.
37. The Respondent agrees that the applicable SoP is SoP 38/1999 concerning ischaemic heart disease, with the appropriate factor being factor (c), not factor (t) as nominated by the Applicant in submission, for the Applicant has never claimed, nor has there been evidence adduced of, any clinical worsening of heart disease by reason of obesity.
38. The Respondent contends that SoP 38/1999 defines ‘being obese’ and that such obesity must be due to a cause specified in the RMA Statement. In so stating, the Respondent relied upon Tambertin J’s analysis in Falconer v Repatriation Commission [2002] FCA 1336.
39. In further contention the Respondent submits that factor (a) of the RMA Statement has three elements, namely:
· exposure to an environment which encourages caloric intake;
· the caloric intake is excessive for energy needs, and cannot be compensated by adequate physical activity;
· a weight gain of at least 20 per cent of the baseline weight.
40. The Respondent submits that there is nothing in the material which points to:
· the Veteran’s service environment being one which encouraged excessive caloric intake;
· the Veteran being urged, advised or assisted to eat excessively;
· the caloric intake being excessive for energy needs;
· an inability on the part of the Veteran to undertake adequate physical exercise;
· an inability on his part to exercise because of duty (67 per cent of days of the period between March 1944 and March 1945 involved the late veteran in no flying duties);
· a weight gain of 20 per cent above base line weight during his service;
· a service-related inability to undertake compensating physical activity; or,
· a service-related inability to undertake compensating physical activity post service if post service weight gain is to be considered causally related to service.
41. As a consequence of its contentions, the Respondent submits that the nominated hypothesis is not consistent with the template nominated in SoP 38/1999, which incorporates the RMA Statement dated 16 August 1996 (factors (c) and (a) respectively).
CONSIDERATION AND FINDINGS
42. In preliminary comment, the Tribunal observes that, as a consequence of the Veteran’s death in 1969 and the passage of time, the material before the Tribunal is unfortunately incomplete. The material is incomplete in that there is no detailed material by the Veteran himself describing the events, issues and circumstances of his service and post service experiences prior to his death in 1969.
43. The Tribunal acknowledges that it is common ground between the parties that the cause of the Veteran’s death in 1969 was myocardial infarction, with a prior history of coronary artery disease for five to six years. It is the Tribunal’s finding that the kind of death suffered by the Veteran was ischaemic heart disease as evidenced by myocardial infarction.
44. It is also agreed by both parties that the Veteran was obese at the time of his death, weighing some 238 pounds (108 kilograms), and that the body mass index was at that time in excess of 30 (approximately 40). The Tribunal concludes that there is material which points to the Veteran being obese at the time of his death, and for some years prior to his death.
45. The Tribunal, having considered all the material, observes that the Applicant submits that the following hypotheses are pointed to by the material:
(a) the Veteran had a stressful service, which in turn led to an aberrant eating habit on service which evolved to binge eating or a binge eating disorder after service which led to him being obese for many years prior to his death from ischaemic heart disease in 1969;
(b) the late veteran had a stressful service which in turn led to an aberrant eating habit on service which resulted in significant weight gain while on service and that this aberrant eating habit continued post service resulting in the late veteran being obese for many years prior to his death from ischaemic heart disease in 1969;
46. The Tribunal concludes that the material does point to two such hypotheses. The Tribunal further observes that the relevant SoP is SoP 38/1999 concerning ischaemic heart disease and that the relevant factor is factor 5(c) which states:
“(c) being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease;”
47. The Tribunal notes the definition of “being obese” contained within other definitions of paragraph eight of SoP 38/1999;
“being obese” means having an increase in body weight by way of fat accumulation beyond an arbitrary limit, and due to a cause specified in the Repatriation Medical Authority’s Statement about the causes of “being obese” signed by the Chairman of the Authority on 16 August 1996.
The measurement used to define “being obese” is the Body Mass Index (BMI).
The BMI = W/H2, where:
W is the person’s weight in kilograms and
H is the person’s height in metres.“Being obese” is where the BMI is 30 or greater. This definition excludes weight gain not resulting from fat deposition such as gross oedema, peritoneal or pleural effusion, or muscle hypertrophy. “Being obese” develops when energy intake is in excess of expenditure for a sustained period of time.
For a factor to be included as a cause of “being obese” it must have resulted in a significant weight gain, of the order of a 20 per cent increase in baseline weight, and in association with a BMI of 30 or greater”.
48. The Tribunal further notes the RMA Statement which nominates one or more of the following factors proceeding “being obese”.
“(a) exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight;
…
(c) suffering from a binge-eating disorder, which has resulted in a weight gain of at least 20% of the baseline weight.”
49. The Tribunal observes that the following terms are explained in the same RMA Statement:
“Explanation of terms used:
“baseline weight” means the weight level which was being maintained prior to the effect of the particular factor specified;
“binge-eating” is said to occur when a person within any 2-hour period eats an amount of food that is definitely larger than most people would eat during a similar period of time and under similar circumstances, and the person has a sense of lack of control over eating during the episode (eg a feeling that one cannot stop eating or control what, or how much, one is eating);
“a binge-eating disorder” means recurrent episodes (on average, at least 2 days per week for a period of at least 6 months) of binge eating associated with subjective and behavioural indicators (ie eating very rapidly; eating until feeling uncomfortably full; eating large amounts of food when not hungry; eating alone because of embarrassment over how much one is eating, and feeling disgust, guilt, or depression after overeating) of impaired control over, and significant distress about, the binge eating, and the absence of the regular use of inappropriate compensatory behaviours (such as self-induced vomiting, misuse of laxatives and other medications, fasting and excessive exercise) that are characteristic of Bulimia Nervosa attracting ICD code 307.50;”
50. The Tribunal also acknowledges the analysis of Tamberlin J in Falconer v Repatriation Commission [2002] FCA 1336 and his conclusion at para 20:
“20 There is a definition of “disease” in the Statements of Principles which incorporates by reference selected parts of the Obesity Statement. Therefore, the incorporated description of obesity must be read as forming part of the Statements of Principles which, as the Tribunal has found, do not uphold the hypothesis in respect of either disease. “Being obese” is not a free standing concept to which a general reference is made in the Obesity Statement. Rather, it is obesity of a particular description which is incorporated as part of the Statements of Principles. Therefore, it is only a certain class or subset of the condition of “being obese” which is incorporated as a binding Statement of Principles.”
51. In addressing whether each of the postulated hypotheses are reasonable hypotheses, the Tribunal turns to consider whether either and/or both nominated hypotheses are consistent with the template nominated in the SoP 38/1999, factor 5(c) as extended by the definition of “being obese” in paragraph eight and the causes of being obese nominated in the RMA Statement dated 16 August 1996. In undertaking this task the Tribunal must consider all the material and observe whether the material points to each element of the relevant factor nominated in the relevant SoP.
52. In turning to a consideration of factor (a) of being obese, the Tribunal notes the following elements:
(a) exposure to an environment which encourages caloric intake;
(b) the caloric intake is excessive for energy needs;
(c)the caloric intake cannot be compensated by adequate physical activity;
(d) a resultant weight gain of at least 20 per cent of the baseline weight.
53. The Tribunal, in noting the word “encourage” within element (a) and the definition of that word as meaning “ … incite; … advise … promote, or assist …” (the Shorter Oxford English Dictionary), acknowledges that the material points to the Veteran eating on return from operational mission to relieve stress, as opposed to drinking, sleeping or smoking. As such, the material does point to the Veteran serving in an environment which created stress and it was this stress that promoted or encouraged his caloric intake.
54. In considering element (b), the material points to the Veteran increasing his baseline weight from 148 pounds in June 1941 to 174 pounds in clothes less tunic in October 1945. Thus the material points to an increase in weight of some 26 pounds (less clothes – minus tunic) over a four-year period. Accordingly, the material points to a caloric intake in excess of energy needs.
55. In addressing the third element, the material in relation to the particulars relating to the Veteran’s physical activity schedule is not abundant for obvious reasons (no evidence from the Veteran). The Tribunal observes that the material that is present, however, does not point to any reason or circumstance, apart from operational duty requirements associated with preparing to fly, waiting to fly and flying, that prevented the Veteran from undertaking adequate physical exercise to compensate for the caloric intake.
56. The Tribunal, in considering the fourth element, observes that there is an absence of material pointing to the Veteran having a resultant weight gain of at least 20 per cent of the base line weight during his operational service, with the material pointing to a weight gain of a lesser amount.
57. The Tribunal notes the contention made by the Applicant that there is material pointing to a weight gain of well in excess of 20 per cent of the base line weight at the time of, and for many years prior to, the Veteran’s death. Further, the Applicant contends that the aberrant eating habit which commenced during his operational service was in evidence throughout the remainder of his life.
58. The Tribunal also notes that the material points to a resumption of normal eating habits for a period of two years following the Veteran’s return from operational service in late 1945. Further, the material points to either a resumption of an abnormal eating habit or the commencement of a new abnormal eating habit when the Veteran commenced his travelling wholesaler’s work activities some two years after service.
59. The Tribunal, in addressing such a scenario and noting that the material does point to a continuance of an abnormal eating habit, again reflects upon the elements of factor (a) of being obese. The Tribunal, in accepting that the material points to a continuance of an aberrant eating pattern post service and that the caloric intake was excessive for energy needs, particularly when he commenced work as a travelling wholesaler, observes that the material does not point to any particular circumstance, or circumstances, which would have prevented the Veteran from undertaking adequate physical activity to compensate for the caloric intake. Indeed, the Tribunal observes that the material points to the Veteran undertaking a schedule of sporting activity (golf, bowls), and that such activity (golf) and other activities were undertaken without any limitation on his physical activity, with the exception that golf was ceased after his first heart attack. Further, the material points to the Veteran being a well adjusted man, a steady worker, good husband and well respected in his social and work areas, indicating an absence of material pointing towards any psychological component in preventing him from undertaking adequate physical exercise to compensate for his caloric intake.
60. In summary, the Tribunal, in relation to the hypothesis involving being obese and factor (a) in the RMA Statement concludes that such a hypothesis is not a reasonable hypothesis. In so stating, the Tribunal, mindful that there were two scenarios considered (service and post service), acknowledges that the material does not point to or “raise” facts which are consistent with each element within factor (a).
61. In turning to the second subhypothesis involving factor (c), the Tribunal, noting the definitions of “binge eating” and a “binge eating disorder” in the RMA Statement, observes that there must be material pointing to the following elements:
(a) “binge eating”:
§eating within a two hour period an amount of food that is definitely larger than most people would eat during a similar period of time and under similar circumstances; and
§the person has a lack of control over eating during that episode (a feeling that one cannot stop eating or control what or how much one is eating;
(b) “binge eating disorder”
§binge eating for two days per week for a period of at least six months associated with these subjective and behavioural indicators:
(i) eating very rapidly;
(ii) eating until feeling uncomfortably full;
(iii) eating large amounts of food when not hungry;
(iv)eating alone because of embarrassment, over how much one is eating; and,
(v) feeling disgust, guilt or depression after over eating;
§such indicators are indicators of impaired control over and significant distress about the binge eating; and
§there is an absence of the regular use of inappropriate compensatory behaviours that are characteristic of Bulimia Nervosa.
62. The Tribunal, having again considered all the material, and again noting the difficulties in this matter (in that there is no material directly received from the Veteran as regards his eating habits either during service or post service), observes that the material does point to the following:
· the Veteran developing a habit of eating food during service at varying times, and eating as opposed to drinking alcohol and/or smoking on return from operational missions;
· an absence of material pointing to either a binge eating habit or a binge eating disorder consistent with the explanations rendered in the RMA Statement during the Veteran’s service;
· Post service:
(a)the Veteran ate significant quantities of food within a two hour period (eg. the eating scenario whilst he was playing golf/bowls);
(b)the Veteran never restricted his food or soft drink (coca cola) consumption and enjoyed food ;
(c)the Veteran would eat socially with family and friends; he did not indulge in secretive eating behaviour, suffered no embarrassment because of his eating, and was not miserable or unhappy about his eating behaviour – indeed, he gained pleasure from food;
(d)the Veteran consumed excessive quantities of food for at least two days per week over many years; and
(e)the Veteran ate rapidly (see the Applicant’s oral evidence at paragraph nine, above).
63. The Tribunal further notes that the material does not point to the following:
· the Veteran feeling disgust, guilt or depression after over eating;
· the Veteran making regular use of inappropriate compensating behaviours; or
· that he ate alone because of embarrassment over how much he ate.
64. In summary, the Tribunal concludes that the sub-hypothesis relating “being obese” to the Veteran suffering from a binge eating disorder is not a reasonable hypothesis, in that the material before the Tribunal neither points to each element detailed in factor (c) of the RMA Statement nor, more particularly, to the definitional elements of “binge eating” and “binge eating disorder” as outlined in the previous paragraphs. In essence, the sub-hypothesis is not a reasonable hypothesis as it is not consistent with the template nominated by SoP 38/1999, as extended by the incorporation of the RMA Statement.
65. The Tribunal, having concluded that the two sub-hypotheses are not reasonable hypotheses, further concludes that, as there is no material pointing to the Veteran’s obesity being causally related to service, the principal hypothesis concerning factor 5(c) of SoP 38/1999 is also not a reasonable hypothesis, as it is not consistent with the template found within that SoP. Accordingly the Applicant’s case must fail.
66. The Tribunal, in addressing this matter, also considered the relevance of SoP Instrument No 31 of 2003 concerning morbid obesity, and while the Veteran may have met the definitional requirements of morbid obesity (BMI in excess of 40), the relevant factors 5(a) and 5(c) involve consideration of matters of a similar nature (factor 5(c)) or a similar but more restricted nature (factor 5(a)) as those already considered in SoP 38/1999. For the same reasoning, any sub-hypotheses including morbid obesity are not reasonable and the Applicant’s claim must fail.
DETERMINATION
67. The Tribunal determines that the decision under review is affirmed.
I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member
Signed: C. Gregson
AssociateDate/s of Hearing 3 April 2003
Date of Decision 2 September 2003
Counsel for the Applicant Mr Mark Best
Solicitor for the Applicant Mr Ben Carroll
Advocate for the Respondent Mr Jim Marsh
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