Philp and Repatriation Commission
[2005] AATA 1237
•15 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1237
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/799
VETERANS' APPEALS DIVISION ) Re RURIKO PHILP Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date15 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension. ...............SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – not war-caused – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1.Ruriko Philp, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2.Mrs. Philp claims that her late husband, Keith William Alexander Philp, died from the effects of a war-caused disease, namely prostate cancer.
3.The elements of Mrs. Philp’s claim are:
(a)Keith William Alexander Philp died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Philp 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. Philp’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. Philp’s death from prostate cancer was related to his RAAF service.
4.Mrs. Philp’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. Philp 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)Keith William Alexander Philp was born on 18 August 1909.
(b)He enlisted in the RAAF on 26 July 1937.
(c)He served as an electrician, electrical fitter and mechanic. He was qualified as an electrician prior to joining the RAAF.
(d)His postings were as follows:
26.7.37 to Laverton
20.8.45 to Point Cook
26.3.47 to Japan
13.11.50 to Korea and Japan
23.4.52 to Sydney
23.4.52 to Laverton
4.7.52 to Amberley
(e)He was allotted for service in an “operational area” in Korea from 27 June 1950 to 22 April 1952.
(f)He reached the retirement age for his rank on his 55th birthday, 18 August 1964.
(g)He then worked as an electrician for Bosch, Fortitude Valley, until he retired from the work force in 1974.
(h)He first met his wife, the applicant, in Japan in 1947. They married on 22 September 1955.
(i)He was first treated for prostate cancer on 10 February 1994.
(j)He died on 17 May 1995. The cause of death was 1(a) Sepsis – 2 weeks; 1(b) Urinary Tract Infection – 2 weeks and 1 (c) Advanced Prostate Carcinoma – 18 months.
(k)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19.Mrs. Philp provided a written statement. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She met Mr Philp in 1947 and they married on 10 September 1955.
(b)Her husband did not speak about his service to her other than it was cold in Korea.
(c)She is unaware of his diet prior to their marriage in 1955.
(d)She has no knowledge of her husband’s day to day diet prior to his joining the RAAF. Her husband often reminisced about his childhood, particularly commenting about going to the seaside for shell fish and other seafood.
(e)During his posting to Amberley, 1952-1964, Mr. Philp had breakfast and lunch at the Sergeants’ Mess.
(f)At home she cooked mainly western style food, such as roast lamb, steak, potatoes and fried fish. These meals were generally fatty and cooked in oil. Now and then she would make Japanese style food.
(g)In the latter years of their marriage, the Philp’s began to cut fat out of their diets or attempted to avoid eating it as they were aware that it was not good for them.
(h)Her husband was fond of cheese but did not take it to the extreme. He was fond of sweet foods.
(i)She tried to prepare balanced meals.
(j)When they moved to Brisbane, Mrs Philp recalls planting fruit trees, growing an assortment of vegetables and having chickens. Her husband was a keen gardener.
(k)In the later years their main meal was lunch (when she retired from lecturing at the University of Queensland). Then the evening meal consisted of soup or a lighter meal.
20. The material placed before the Tribunal:
(a)does not reveal what Mr. Philp ate prior to service;
(b)indicates that the average animal fat intake of the male population pre World War II was 126gm per day;
(c)does not reveal what Mr. Philp ate in Japan or Korea;
(d)indicates that the ration packs in Japan contained 139.8 gm of animal fat per day;
(e)does not reveal what Mr. Philp ate on his return to Australia – other than he ate breakfast and lunch at the Sergeants’ Mess;
(f)reveals that his wife cooked western style food at home in the early days of their marriage;
(g)Reveals that for about the last twenty years of his life Mr. Philp cut fat out of his diet or attempted to avoid eating it, and had soup or a light meal in the evening.
21. The whole of the material does not raise the hypothesis that Mr. Philp increased his post war intake of animal fats by any significant level, for a significant number of years, over his pre-war diet, for reasons related to his service.
22. No hypothesis is raised which links the death of Mr. Philp with the particular circumstances of his eligible service.
23. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05; 20,22.6.05; 30.9.05
Date of Decision 15 December 2005
Counsel for the Applicant Mr. A. Harding
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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