Rankin and Repatriation Commission
[2005] AATA 1230
•14 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1230
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1084
VETERANS APPEALS DIVISION ) Re DELMA JOYCE RANKIN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date14 December 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Eric Gordon Rankin was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986. .................SIGNED.............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – hypothesis consistent with SoP – decision set aside
Veterans’ Entitlement Act 1986: ss 7, 8, 13, 120, 120A and 196B
REASONS FOR DECISION
Deputy President Don Muller 1.Delma Joyce Rankin, the applicant, has claimed a widows’ pension pursuant to section 13 of the Veterans Entitlement Act 1986 (the VEA).
2.She claims that her late husband, Eric Gordon Rankin, died from the effects of a war-caused disease, namely, prostate cancer.
3.The elements of her claim are:
(a)Eric Gordon Rankin died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr Rankin was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is a risk factor in the contraction of prostate cancer.
(d)Mr Rankin’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed when 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 Rankin’s death from prostate cancer was related to his RAAF service.
4.Mrs Rankin’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 Rankin 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)Eric Gordon Rankin was born in Bangalow, New South Wales on 28 January 1923.
(b)He enlisted in the RAAF on 23 December 1942, during World War II.
(c)During his time in the RAAF he rendered operational service in Canada from 28 March 1942 until 24 May 1943 and in the United Kingdom from 24 May 1943 until 4 November 1945.
(d)He was discharged on 11 February 1946.
(e)He married Delma Joyce Rankin on 4 February 1956.
(f)He was diagnosed with prostate cancer in November 1991.
(g)He died on 17 March 1999. The cause of death was Hypostatic pneumonia – 1 week, and Advanced metastatic prostate carcinoma – years.
(h)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. The evidence relating to Mr. Rankin’s diet was provided by:
(a)His sister, Patricia May Baird, who was able to give evidence about Mr. Rankin’s pre-war diet, his war-diet from letters he wrote home during his overseas service and his immediate post war diet.
(b)His widow, the Applicant, who gave evidence about his diet from 1956 onwards.
(c)His daughter, Wendy Joy Ratcliffe, who did a lot of the family cooking. She left home for some time but returned to live for a few years, with her children, when her house was being built.
20. The material relating to Mr. Rankin’s diet revealed the following:
· Pre-war, he grew up in the Depression. His family had little money. They grew their own vegetables. Meat was a luxury. They ate a lot of mashed potatoes. They had an occasional rabbit. They regularly ate corn for an evening meal.
· “Mother would have the same thing every week and tried to ‘extend’ the meat as far as possible. An example was Saturday roast, Sunday – cold roast with potatoes, Monday – roast made into a stew or curry, Tuesday – if lucky corned beef, otherwise leftover stew, Wednesday – left over corned meat, Thursday – cold beef and potatoes, Friday – fish if feasible. Bread was a handmade damper and mother would buy cream and whip it into butter. They hardly drank milk in the early days.”
· They never ate bread and dripping.
· The family did not eat pork or bacon pre-war.
· On entry to the RAAF Mr. Rankin weighed 55kgs. His height was 165 cms. He was well below the ideal weight for his height.
· Whilst Mr. Rankin was stationed in Canada he regularly wrote to his family. He said that the food was “great”. He developed a liking for potato chips, big meals, maple syrup on ice-cream and dumplings, chocolate and waffles.
· When he was stationed in England he developed a taste for bacon and eggs.
· Upon discharge he weighed 66kgs.
· Upon his return to Australia and his discharge, Mr. Rankin seemed to be distressed, “he could not settle”.
· He had done panel beating before the war and he returned to the trade. He also drove cabs at night.
· He later became a poultry farmer and a garage proprietor.
· He said that he liked potato chips fried in fat. He wanted dumplings. He wanted to continue to eat bacon and eggs for breakfast.
· Mr. and Mrs. Rankin raised six daughters. All but one of the daughters assisted with the panel beating business.
· Mr. and Mrs. Rankin lived in Narangba, a suburb north of Brisbane, for approximately 39 years. The property was 7½ acres in size. Mr. Rankin fenced the property, built a roadway into the property and maintained the property. He was very physically active.
· After his marriage, Mr. Rankin continued to include the following foods in his diet.
· He liked chocolate.
· He usually ate eggs for breakfast, with bacon and tomatoes fried in dripping.
· He particularly liked steak and kidney pudding.
· He also liked devilled kidneys.
· When he had porridge for breakfast he mixed butter through it and poured cream over it.
· At lunch time he would either have meat with peas; fish and chips; toasted sandwiches, a hamburger or two pies. Mr Rankin enjoyed a cup of tea or coffee at the end of his lunch and might have a piece of cake or biscuit.
· He enjoyed malted drinks.
· He would have a cup of tea with a bun, sausage roll or piece of cake for morning and afternoon teas.
· He enjoyed large servings. For dinner he enjoyed meat. He would normally eat two medium sized pieces of fried steak or a large piece of crumbed veal, or three thick sausages, or three rissoles or four lamb loin chops or two chump chops for dinner.
· On nights when they had a roast, which was about once or twice a week, the vegetables would be roasted in dripping. Other nights, the vegetables were boiled.
· It was not uncommon for potatoes to be cooked as chips two or three nights per week. He would put butter over the vegetables on his plate; and he would also put a dollop of butter on top of steak and chops.
· He also enjoyed gravy and would have gravy on pan drippings with his meals on most nights. He would also have two pieces of bread buttered with his meal.
· For dessert he would eat a steamed pudding or a bread and butter pudding or jam tarts, apple pies or creamed rice. These would normally be served with ice cream, custard or cream.
· Late in the evening he would often have a slice of toast with butter and vegemite and a Milo or a hot chocolate.
· He would normally snack during the day. He normally had a large block of chocolate at his workplace to snack on.
21. The Tribunal heard evidence from Dr. Justin Kenardy, psychologist and specialist in behavioural and rehabilitation medicine. Dr. Kenardy said:
“So that, once the war was over, whatever drive to consume that fat had been established during the war would continue irrespective of factors that were operating on that person’s environment.
That if a person had changed their preference and desire to consume fat during the war, then that would be something that would be related specifically to the fat itself that they’d consumed, not the circumstances of the war. So you would expect that that would generalise into new situations because once they’d left the war circumstances there would be – you would expect to see that that preference and desire to consume fat would continue irrespective of the circumstances that they were in.”
22. Mrs. Rankin, Mrs. Baird and Mrs. Ratcliffe supplied information about Mr. Rankin’s diet, by way of dietary surveys to expert dieticians, Ms. Linda Kilworth and Dr. Ruth English.
23. Ms. Kilworth calculated that Mr. Rankin’s pre-war diet contained animal fat of about 69 gms per day on average.
24. Mr. Rankin’s Canadian ration pack contained animal fat of about 128 gms per day.
25. Both Ms. Kilworth and Dr. English agree that Mr. Rankin was a big eater of foods containing animal fat in his post war years. He would have well and truly satisfied the SoP on this count.
26. Dr. English believes that the answers given to the dietary surveys are completely unreliable. She believes that if Mr. Rankin’s pre-war diet was as meagre as that depicted, he would not have had sufficient food to survive. She also believes that if he ate as much fat post war as claimed, he would have increased his weight to an extraordinary degree.
27. I am conscious of the fact that the dietary surveys are inherently inaccurate because of the difficulty witnesses have in recalling the details of meals eaten by someone else many years ago. Nevertheless, I accept the general thrust of the evidence that Mr. Rankin ate very poorly as a young man during the Depression years; that he ate rich foods in Canada and England, during his operational service; that he acquired a taste for rich food and continued to eat foods with a high animal fat content, in large amounts, when he returned to civilian life; that he continued that diet high in animal fat content for most of the rest of his life.
28. The material placed before the Tribunal does raise a hypothesis connecting Mr. Rankin’s death from prostate cancer with the circumstances of his eligible service.
29. The material indicates to me that SoP No. 28 of 2005 is satisfied. Therefore the hypothesis is reasonable.
30. I note the concerns that Dr. English has about the accuracy of the dietary surveys and I agree with her that the specific amounts of food noted in those surveys are probably an underestimation in the pre-war section, and an over-estimation in the post-war section. Nevertheless, I am satisfied that Mr. Rankin had a diet low in animal fat pre-war, a diet much higher in animal fat during his operational service, that he developed a taste for food containing animal fat whilst on operational service, and that he then significantly increased his animal fat intake in his post war civilian life.
31. I am not satisfied beyond a reasonable doubt that there is no sufficient ground for determining that the death of Mr. Rankin was war-caused.
32. The decision under review is set aside and in substitution the Tribunal determines that the death of Eric Gordon Rankin was war-caused.
I certify that the 32 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 14 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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