Roberts and Repatriation Commission
[2002] AATA 351
•15 May 2002
DECISION AND REASONS FOR DECISION [2002] AATA 351
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A1999/31
VETERANS' APPEALS DIVISION )
Re DOROTHY YVONNE ROBERTS
Veteran
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M J Sassella Senior Member
Date15 May 2002
PlaceCanberra
Decision The tribunal affirms the decision under review in relation to generalised osteoarthrosis but sets aside the decision as it relates to malignant neoplasm of the prostate. The tribunal finds the veteran's neoplasm of the prostate to have been a war-caused disease. The date of effect of this decision is 26 November 1996.
.......... M Sassella...........................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Disability Pension - malignant neoplasm of the prostate – whether veteran increased animal fat consumption by at least 40% - whether veteran's animal fat consumption increased to at least 70 grams a day – whether veteran's consumption of animal fat increased for a period of at least 20 years before clinical onset of malignant neoplasm of prostate – whether increase in animal fat consumption was service-related – generalised osteoarthrosis – trauma to the relevant joint or joints
Veterans' Entitlements Act 1986 ss 6A(1) Item 1(a), 6C(1), 6D(2), 7(1)(a), 8(1)(a), 9(1)(a). 13(1), 14(1), (3), (4), 20(2), 68(1) ("defence service"), 69(1)(a), (b), (c), 70(1), 71(1), (2), 73, 120(1), (3), (4), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D
Statement of Principles concerning Osteoarthrosis 81/2001
Statement of Principles concerning Malignant Neoplasm of the Prostate 84/99
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Gorton (2001) 33 AAR 370
Repatriation Commission v Williams [2001] FCA 1195
Repatriation Commission v Deledio (1998) 49 ALD 193
Harris v Repatriation Commission (2000) 31 AAR 270
Arnott v Repatriation Commission (2001) 32 AAR 445
Bull v Repatriation Commission [2001] FCA 1832
Re Keenan and Repatriation Commission [2000] AATA 707
Re Karey and Repatriation Commission [2002] AATA 166
REASONS FOR DECISION
15 May 2002 Mr M J Sassella Senior Member
HISTORY OF APPLICATION
On 26 February 1997 Alick George Roberts ("the veteran") lodged with the Department of Veterans' Affairs ("DVA") an informal claim for Disability Pension (T5) in accordance with the Veterans' Entitlements Act 1986 ("the Act") in respect of several conditions, respiratory, digestive, tinea and foot problems, prostate cancer, hearing loss and haemorrhoids. On 20 March 1997 he lodged a formal claim (T6) in respect of metastatic prostate cancer, arthritis and sciatica, foot and tinea problems, digestive problems and respiratory problems. He cited 1996 as the time when he became aware of the cancer. He said that he had a high fat diet while on flying duties in bomber command in the United Kingdom in 1944-45. This continued including during service in Malaya-Korea.
On 18 July 1997 a delegate of the Repatriation Commission ("the respondent") decided to accept the claim in respect of tinea, gastro-oesophageal reflux disease ("GORD") and allergic rhinitis (T13). The claims for malignant neoplasm of the prostate ("MNP"), rheumatoid arthritis and generalised osteoarthrosis were refused. The MNP did not meet the requirements in the relevant Statement of Principles ("SoP") issued by the Repatriation Medical Authority. The claim for generalised osteoarthrosis was refused also because it did not meet any factor identified in the SoP. Disability Pension was assessed at 40% of the general rate effective from 26 November 1996.
The veteran's disabilities accepted as war-caused as at that time were:
bilateral high tone sensori neural deafness,
haemorrhoids,
hyperkeratoses and basal cell carcinoma,
tinea,
GORD,
allergic rhinitis, and
osteoarthrosis of the left hand (ex TD1/2).
Rejected as war-caused were the disabilities of:
presbyopia,
MNP,
rheumatoid arthritis,
generalised osteoarthrosis,
osteoarthrosis of the right hip,
osteoarthrosis of the left knee,
osteoarthrosis of the right knee,
osteoarthrosis of the left ankle,
osteoarthrosis of the right ankle,
osteoarthrosis of the left hip, and
osteoarthrosis of the left wrist.
On 25 July 1997 the veteran lodged with the Veterans' Review Board "the VRB") an application for review of the decision (T14).
On 20 March 1998 the respondent's delegate in DVA reviewed the rejection in accordance with s 31 of the Act and decided not to change the decision (T15).
reviewable decisionOn 25 November 1998 the VRB decided (T20) on several matters in contention between Mr Roberts and DVA:
The rheumatoid arthritis claim was withdrawn with the VRB's agreement.
Osteoarthrosis of the left hand was accepted as war-caused.
The primary decision in relation to MNP was affirmed, that is it was found not be war-caused or defence-caused. The VRB said (T20/105):
"In the Board's view, to meet with the requirements of the SOP it is necessary to establish what a person's animal fat consumption was before service in order to determine if there has been an increase of 40% or more. Additionally, it is necessary to quantify the actual consumption of animal fat. In this case no such information has been presented to the Board and it is not able to speculate on such facts.
"While the Board can accept that service personnel in World War 2 had little choice but to 'take it or leave it', the veteran ate mostly at home after February 1952, thus he provided his own food. From the late 1960's, when nutritional information was more widely known, to select a meal high in animal fat over a low-fat alternative was a personal choice.
"Consequently, having reviewed the whole of the material before it and for the reasons given above, the Board finds that the evidence raises none of the minimum factors set out in the SOP in this case. The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). …"The condition of generalised osteoarthrosis was found not to be war-caused or defence-caused. The VRB held there to be no SoP in force in relation to generalised osteoarthrosis at the time of the VRB's decision. All SoPs on osteoarthrosis were about localised forms of osteoarthrosis. The VRB said (T20/106-107):
"In circumstances where the RMA has not issued the relevant SOPs and there has [sic] been no relevant determinations or declarations made under the Act, the proper approach to be adopted by decision-makers has been considered by the Courts in a number of cases.
"The approach to be adopted by decision-makers when applying subsections 120(1) and (3) of the Act was considered by the High Court in Bushell v Repatriation Commission (1992) 109 ALR 30. The joint judgement of Mason CJ, Deane and McHugh JJ set down some of the important principles:·the material will raise a reasonable hypothesis within the meaning of subsection 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true;
·the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by medical practitioner who is eminent in the relevant field of knowledge -- conflict with other medical opinions is not sufficient to reject the hypothesis as unreasonable;
·a hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature, or if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous; and
·the decision-maker will be satisfied beyond reasonable doubt within the meaning of subsection 120(1) if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.
"In the decision of Byrnes v Repatriation Commission (1993) 116 ALR 210, the High Court summarised the proper approach for applying the Bushell principles. First, it said that subsection 120(3) is to be applied before subsection 120(1). The decision-maker is required to consider whether all or some of the facts raised by the material give rise to a reasonable hypothesis connecting the claimed condition of death with war service. If the hypothesis is not reasonable, the claim fails at this point. Secondly, the High Court said that, if a reasonable hypothesis is established, subsection 120(1) is to be applied in considering the facts supporting the hypothesis. The claim will succeed at this point unless:
·one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
·the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis.
"The veteran's contention is that the exigencies of his operational service, environmental conditions and many years of training caused his generalised osteoarthrosis. While the Board can accept the arduous nature of service and the privations endured by service personnel, there is no medical evidence to support the hypothesis that such activities lead to osteoarthrosis is in multiple joints.
"Consequently, having reviewed the whole of the material before it and for the reasons given above, the Board is of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3). Therefore, the Board is satisfied beyond reasonable doubt, for the purposes of subsection 120(1), that there is no sufficient ground for determining that the veteran's generalised osteoarthrosis was war-caused. Similarly, the Board is reasonably satisfied that the material before it does not raise a connection between the veteran's generalised osteoarthrosis and his defence service as required by the Act. In these circumstances, the board is required to affirm that part of the decision under review."
On 1 December 1998 this decision was notified in a letter sent to the veteran (T23).
On 5 February 1999 the veteran lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision of the VRB (T1).
On 21 March 2000 the veteran died (ex A11). On 12 July 2000 a delegate of the respondent wrote to the tribunal to say that the executrix of the veteran's will was Mrs Dorothy Yvonne Roberts and that she would like to be appointed as legal personal representative and she wished to be appointed by the respondent to pursue the veteran's review with the tribunal. The writer told the tribunal that Mrs Roberts' request had been granted by the respondent. Mrs Roberts was therefore taken by the tribunal to be prosecuting the application for review on behalf of the veteran's estate. Mrs Roberts is the applicant in these proceedings.
RELEVANT LEGISLATIONThe following provisions of the Veterans' Entitlements Act 1986 are relevant: ss 6A(1) Item 1(a), 6C(1), 6D(2), 7(1)(a), 8(1)(a), 9(1)(a). 13(1), 14(1), (3), (4), 20(2), 68(1) ("defence service"), 69(1)(a), (b), (c), 70(1), 71(1), (2), 73, 120(1), (3), (4), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), (3), 196D.
VETERANS' ENTITLEMENTS ACT 1986
Operational service - world wars
6A. (1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.
Operational service
Item 1
Person A member of the Defence Force
Nature of service (a) continuous full-time service outside Australia…
Operational service--post World War 2 service in operational areas
6C.(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
(a) a member who was allotted for duty in that area; or
(b) a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…
Operational service--other post World War 2 service…
6D.(2) A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as:
(a) a member of the Defence force; or
(b) a member of a unit of the Defence Force;
while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).Eligible war service
7.(1) Subject to subsection (2), for the purposes of this Act:a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
War-caused death
8.(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…
War-caused injuries or diseases
9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…
Eligibility for pension
13.(1) Where:
(a) the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or
compensation to the veteran; in accordance with this Act.…
Claim for pension
14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).…
(3) A claim for a pension:
(a) shall be in writing and in accordance with a form approved by the Commission;
(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…
Date of operation of grant of claim for pension
…
(2) Where:
(a) a person makes a claim for a pension in writing, but otherwise than in accordance with a form approved for the purposes of paragraph 14(3)(a);
(b) the person subsequently makes a claim for the pension in accordance with a form so approved:
(i) at a time when the person had not been notified by the Department in writing that it would be necessary to make the claim in accordance with a form so approved; or
(ii) within 3 months after the person had been so notified; and
(c) a pension is granted to the person upon consideration of that claim in accordance with a form so approved;
the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim referred to in paragraph (a) was received at an office of the Department in Australia.…
Interpretation
68.(1) In this Part, unless the contrary intention appears:…
defence service means:
(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b) in the case of a person who:(i) was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii) continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii) was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:(iv) the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v) the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
(c) hazardous service rendered before or after the terminating date;
but does not include any period of peacekeeping service.Application of Part to members of the Forces
69.(1) Subject to this section, where a person:
(a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c) if the person:(i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii) has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
Eligibility for pension under this Part
70.(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.(2) Where:
(a) a member of the Forces or a member of a Peacekeeping Force has died;
(b) the death of the member was not defence-caused; and
(c) the member was, immediately before the member's death:(i) a member to whom subsection 22 (4) or section 24 applied by virtue of section 73; or
(ii) a member to whom section 22, 23 or 25 so applied who was in receipt of a pension the rate of which had been increased by reason that the pension was in respect of an incapacity described in item 1, 2, 3, 4, 5, 6, 7 or 8 of the table in section 27;
the Commonwealth is, subject to this Act, liable to pay pensions by way of compensation to the dependants of the member.…
Application of certain provisions of Part II
71.(1) Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.(2) For the purposes of the application of Divisions 2A, 3, 6 and 7 of Part II as provided in subsection (1):
(a) a reference in those divisions to a pension shall be read as a reference to a pension payable in accordance with this Part;
(b) a reference in those divisions to the death of a veteran that was war-caused shall be read as a reference to the death of a member of the Forces or a member of a Peacekeeping Force that was defence-caused;
(c) a reference in those divisions to a war-caused injury shall be read as a reference to a defence-caused injury;
(d) a reference in those divisions to a war-caused disease shall be read as a reference to a defence-caused disease; and
(e) a reference in those divisions to a veteran shall be read as a reference to a member of the Forces or a member of a Peacekeeping Force.…
This Division does not apply to certain payments
73. This Division does not apply to:
(a) an additional death benefit, or a severe injury adjustment, paid on or after 10 June 1997 in relation to a member of the Forces, or a member of a Peacekeeping Force, under a determination made under section 58B of the Defence Act 1903; or
(b) an act of grace payment made on or after 10 June 1997 in respect of the death or injury of a member of the Forces, or a member of a Peacekeeping Force where:(i) the death or injury occurred on or after 7 April 1994 and before 10 June 1997; and
(ii) an additional death benefit, or a severe injury adjustment, would have been payable in relation to the member under a determination referred to in paragraph (a) if the death or injury had occurred on or after 10 June 1997.
…
Standard of proof
120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.…
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or veteran for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.…
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).…
(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, 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) a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
120B.(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120 (4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).…
(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.…
Functions of Authority
196B.(1) This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or…
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Note 1: For sound medical-scientific evidence see subsection 5AB(2).
Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A).
Note 3: For factor related to service see subsection (14).…
Disallowable instrument
196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901
The following SoP provisions are relevant.
Instrument No.81 of 2001
Statement of Principles concerning OSTEOARTHROSIS
ICD-10-AM CODES: M15, M16, M17, M18, M19
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.41 of 1998 and Instrument No.19 of 1999; and
(b) determines in their place the following Statement of Principles.Kind of injury, disease or death
2. (a) This Statement of Principles is about osteoarthrosis and death from osteoarthrosis.
(b) For the purposes of this Statement of Principles, "osteoarthrosis" means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness, attracting ICD-10-AM code M15, M16, M17, M18 or M19.…
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person's relevant service are:…
(j) suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint; or
…
Other definitions
8. For the purposes of this Statement of Principles:…
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), Second Edition, effective date of 1 July 2000, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86487 271 3;
…
"relevant service" means:
(a) operational service; or…
"trauma to the affected joint" means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;…
Application
9. This Instrument applies to all matters to which section 120A of the Act applied.
Dated this Ninth day of October 2001Instrument No.84 of 1999
Statement of Principles concerning MALIGNANT NEOPLASM OF THE PROSTATE
ICD-10-AM CODE: C61
Veterans' Entitlements Act 1986
1. The Repatriation Medical Authority under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act):
(a) revokes Instrument No.95 of 1995 and Instrument No.191 of 1996; and
(b) determines in their place the following Statement of Principles.Kind of injury, disease or death
2. (a) This Statement of Principles is about malignant neoplasm of the prostate and death from malignant neoplasm of the prostate.
(b) For the purposes of this Statement of Principles, "malignant neoplasm of the prostate" means a primary malignant neoplasm of the cells of the prostate gland, attracting ICD-10-AM code C61. This definition excludes soft tissue sarcoma, non-Hodgkin's lymphoma and Hodgkin's disease.…
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 any relevant service rendered by the person.Factors
5. The factors 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 are:…
(c) increasing animal fat consumption by at least 40% and to at least
70gm/day for at least 20 years before the clinical onset of
malignant neoplasm of the prostate; or…
Other definitions
8. For the purposes of this Statement of Principles:
"animal fat" means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;…
"death from malignant neoplasm of the prostate" in relation to a person includes death from a terminal event or condition that was contributed to by the person's malignant neoplasm of the prostate;
"ICD-10-AM code" means a number assigned to a particular kind of injury or disease in The International Statistical Classification of Diseases and Related Health Problems, 10th revision, Australian Modification (ICD-10-AM), effective date of 1 July 1998, copyrighted by the National Centre for Classification in Health, Sydney, NSW, and having ISBN 1 86451 340 3;
"relevant service" means:
(a) operational service; or…
"terminal event" means the proximate or ultimate cause of death and includes:
a) pneumonia;
b) respiratory failure;
c) cardiac arrest;
d) circulatory failure; or
e) cessation of brain function.Application
9. This Instrument applies to all matters to which section 120A of the Act
applies.
Dated this Ninth day of November 1999.
BACKGROUND
Mr Roberts was born on 22 June 1924 (T6) and he died on 21 March 2000 (ex A7). He served in the Royal Australian Air Force ("the RAAF") from 18 July 1942 to 13 September 1945 and from 2 February 1948 to 15 December 1976 (T20). His operational service was:
18 July 1942 to 13 September 1945 during World War II;
29 June 1950 to 26 November 1950 in Malaya;
27 November 1950 to 15 May 1951 in Korea; and 31 March 1958 to 9 October 1960 in the Far East Strategic Reserve (T20).
Mr Roberts also rendered defence service as defined in ss 68-71 of the Act from 7 December 1972 to 15 December 1976 (T20). He was a Wing Commander on discharge (ex A10).
Mr Roberts left school at age 15 or 16 and gained temporary employment as a shop assistant before joining the Rural Bank at age 16 (ex A10).
He worked post-service as business proprietor of the Rainbow Beach store at Rainbow Beach in Queensland. He did this from 1977 to 1980 when the rapid onset of arthritis forced him to sell up and return to Canberra (T6).
He died of "metastatic carcinoma of prostate (4 years)" and left a wife, Dorothy Yvonne ("the applicant"), and two daughters aged 13 and 21 (ex A11).
HEARING AND APPEARANCESThe tribunal convened a hearing in this matter in Canberra on 14 May 2001 and 9 July 2001. Mr Walker of counsel represented the applicant. Mr Modder of the DVA represented the respondent. The tribunal had before it the following documents which were received in evidence and given the attached exhibit numbers:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1-T28) provided by DVA on 9 March 1999.
Exhibit A1 – Letter dated 29 June 2000 from veteran's solicitor to Ms C Richards.
Exhibit A2 – Report by Ms C Richards, dietitian, 24 July 2000.
Exhibit A3 – Diet history.
Exhibit A4 – RAAF document dated 11 October 1944.
Exhibit A5 – Veteran's statement dated 21 December 1999.
Exhibit A6 – Veteran's statement dated 11 June 1999.
Exhibit A7 – Veteran's undated statement.
Exhibit A8 – Veteran's undated statement.
Exhibit A9 – Statement dated 20 July 2000 by Mrs M L C Stibbs.
Exhibit A10 – Report by Dr R J Scott, occupational physician, 16 August 1999.
Exhibit A11 – Death certificate relating to the veteran, 4 April 2000.
Exhibit A12 – Veteran's statement of facts and contentions dated 23 August 2000.
Exhibit A13 – Statutory declaration of Mr J M Roberts dated 23 May 2001.
Exhibit A14 – List of veteran's operational flights, 1944-45.
Exhibit A15 – File notes.
Exhibit A16 – Statement dated 18 July 2000 by Mr E C Pearce.
Exhibit A17 – Notes by Ms C Richards.
Exhibit A18 – Veteran's written submissions dated 6 August 2001.
Exhibit A19 – Veteran's written response to respondent's written submissions, 28 August 2001.
Exhibit R1 – Report by Mr W Friderich, dietitian, 19 March 2001.
Exhibit R2 – Report by Professor P N Sambrook, rheumatologist, dated 12 November 1999.
Exhibit R3 – Report by Mr Friderich, 14 June 2001.
Exhibit R4 – Respondent's statement of facts and contentions dated 7 May 2001.
Exhibit R5 – Respondent's written submissions, 21 August 2001.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal makes the following uncontroversial findings.
The veteran was born on 22 June 1924 and was aged 72 when he lodged his claim.
The veteran served in the army and rendered operational service as in paragraph 12 above.
The veteran lodged a valid claim on 20 March 1997 (T6) which enlivened his informal claim dated 26 February 1997 (s 20(2) of the Act).
The date of effect of any decision favourable to the applicant would be 26 November 1996 (s 20(2) of the Act).
The standard of proof in relation to whether the veteran's osteoarthrosis and/or MNP was a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to whether his osteoarthrosis and/or MNP was defence service caused is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).
The first SoP relevant to the determination of this matter is, prima facie, SoP 84/99 concerning MNP and/or the equivalent SoP for defence service. If the hypothesis fails in relation to the 1999 SoP then the SoP in force at the time of the primary decision (18 July 1997), SoP 191/96 can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195). In relation to generalised osteoarthrosis the relevant SoP is 81/01 and the equivalent SoP for defence service. If the hypothesis fails in relation to the 1999 SoP then the SoP in force at the time of the primary decision (18 July 1997), SoP 41/98 can be considered.
generalised osteoarthrosisThe tribunal now considers whether Mr Roberts' generalised osteoarthrosis can be accepted as a war-caused disease. The tribunal recognises that the full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an veteran will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the disease with the circumstances of the particular service rendered by the veteran.
The second step is to ascertain whether there is a relevant SoP in force.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the veteran's service.
Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 31 AAR 270, 282 in paragraphs 37-40 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the veteran's hypothesis. Importantly, as Heerey J noted in Deledio (25 AAR 396 at 411), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.
"38 In the instant case, it may well have been able to be said that, in light of Dr Stone's evidence, there was material consistent with altered mobility etc that was not overt, and that whether there was altered mobility was itself simply a disputed fact. But even if this were so, it would not justify any different answer to the question the Tribunal ought to have addressed.
"39 Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) 'acute signs and symptoms of altered mobility etc', Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor. Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an 'acute sign or symptom' of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.
"40 The material indicated signs and symptoms of pain, but no more. The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility … point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."
Again, in Arnott v Repatriation Commission (2001) 32 AAR 445, 452-453 the full Federal Court put the matter succinctly in paragraph 27 when it wrote:
"However, as explained above, in carrying out the third step in Repatriation Commission v Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the 'particular claim' fits the 'template' laid down in the SoP. As was stated by the Full Court … in Repatriation Commission v Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage."
As the tribunal understands it, its obligation at step 3 is to consider whether the hypothesis, in all its aspects, as advanced by, or for, or in aid of the veteran, in the opinion of the tribunal, matches the template provided in the SoP. It is therefore necessary to consider what is required in the SoP.
It is difficult not to engage in a fact finding exercise in step three of Deledio (above). There is an account given by the veteran. There is a rebuttal by the respondent where the respondent refers to evidence before the tribunal. However, the tribunal takes the correct approach to be to have regard to the veteran's version in step three and see whether that meets the SoP template.
If the tribunal finds that step three has been satisfied, that means that the hypothesis raised by the veteran is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the veteran's incapacity did not arise from a war-caused injury. It is at this point that many of the arguments put by the respondent come into play. The tribunal assesses each of these in turn to ascertain whether one, some or all serve to satisfy the tribunal beyond reasonable doubt that the veteran's disease was not war-caused.
The hypothesis advanced for the veteran is that he experienced a discrete trauma to his hips, knees and ankles on or about 21 or 22 December 1944 and that this led to osteoarthrosis of the affected joints (ex A12). Paragraphs 5-11 of ex A6 were suggested as the veteran's version of relevant events.
The relevant SoP has already been identified in paragraph 24 above. It is necessary to ascertain whether the hypothesis accords with the SoP requirements. There is a definition of osteoarthrosis in clause 2 of the SoP. The tribunal finds that the veteran had osteoarthrosis of the hips, knees and ankles. Dr Scott (ex A10) and Professor Sambrook (ex R2) diagnosed generalised osteoarthrosis and generalised osteoarthritis, respectively. Despite the differences in terminology the reports clarify that they are diagnosing the same condition. The SoP uses the term, osteoarthrosis. This diagnosis was accepted by the respondent (ex R4/2). The tribunal has no basis to query this.
The SoP factor relevant to trauma is now factor 5(j), "suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint". "Trauma to the affected joint" is defined in clause 8 of the SoP. Mr Roberts' version of the traumatic event (ex A6/3-4) includes these features:
When he was on watch in the nose of an aircraft flying at about 24,000 feet the craft went into a dive at 300 km an hour.
"Maintaining considerable forward momentum (the aircraft would have 'squashed' forward as it went into the dive) the roof of the aircraft described an arc to intercept me. This coming together was gentle and I found myself pinned to the roof, arms spread, but with legs roughly vertical in relation to the aircraft. The pilot's immediate reaction was to disconnect the automatic pilot..., and pull the wheel back to return the aircraft to straight and level. At that stage I had been travelling vertically with the aircraft at over 300 km/h; released from the 'G' forge [sic] holding me to the roof of continued so to travel as the desk/bench seat/floor of the aircraft moved back underneath to intercept me. Total time involved overall was only seconds at the most. I calculate that my speed of impact with the desk/bench seat/floor was between 200km/h and 300km/h. Probably still close to the higher figure....
"I suffered a nose bleed and felt badly shaken and battered. I impact on floor, bench seat and desk seemingly simultaneously. My head impacted right side down onto my arm and my nose within the rubber oxygen mask must also have hit the desk.... I suffered severe trauma to my shoulders and arms, lower rib cage, spine, hips, knees and ankles. I think the navigator came to my assistance and reconnected my intercom. I was of no use on the radar.... After a time I recall that I returned to the nose, plugged my heated suit into power and lay on the padded area where I normally laid for the bombing run; it was a rather comfortable position with a padded chest rest providing a pillow.... I needed assistance to negotiate the main spar and the ladder on the way out. Neither [I nor the pilot] accepted the offer of return from debriefing via Sick Quarters. The euphoria of "another operation under the belt", plus the fact that we were to go on leave next day I think gave us sufficient lift to head off to supper and bed. Today this may seem irresponsible. Sick Quarters may well have cost us, (or me at least) that two weeks' leave and we all accepted the fact that there was about a 50/50 chance that we could die on our next operation. We tended to live one day at a time....
"Acute pain, swelling, tenderness and altered mobility had developed well within 24 hours. The considerably reduced mobility lasted the major part of the two weeks' leave period. The back, hips thighs, knees, ankles and feet were all involved. Other areas (lower rib cage in particular) were also sore although they did not so much affect mobility. Although I suffered no abrasions as fortunately I was well padded, there was bruising and swelling in all areas."
He wrote that during the two weeks leave in London he could not walk beyond a short distance whereas normally he would enjoy walking around central London.
The SoP requires the following for a trauma:
(a)a discrete joint injury; and
(b)development within 24 hours of the injury of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the joint; and
(c)that these symptoms and signs last for a period of at least seven days following their onset.
The events as described by the veteran mirror the requirements within this definition.
Clause 4 requires that factor 5(j) must be related to Mr Roberts' operational service. This requirement was satisfied as the event is said to have occurred on a sortie during operational service. The hypothesis is therefore reasonable.
Step four of the Deledio (above) principles requires consideration of whether the hypothesis can be disproved beyond a reasonable doubt. Dr Scott's report supported Mr Roberts' hypothesis. Professor Sambrook (ex R2) demurred:
"In regard to the episode described by Mr Roberts over the Balkans, clearly it is possible he may have sustained a significant injury to his back or lower limb if he fell heavily. And he does describe restriction of movement for about two weeks after the event, but there is no supporting medical documentation of the severity of this episode and the changes noted on x-ray really are just consistent with the veteran's age. Moreover the onset of symptoms related to any such apparent injury was about 20 years later in the early 1960s, so it is difficult to relate this to his service in that way. Thus one would conclude that he does not meet the definition of trauma for the Statement of Principles in this regard or in regard to lumber spondylosis."
The tribunal prefers the opinion of Professor Sambrook to that of Dr Scott. Professor Sambrook's specialty equips him better to provide the best evidence. He is a rheumatologist whereas Dr Scott is an occupational physician. Professor Sambrook commented on and relied on x-ray evidence. Dr Scott made no reference to these. Professor Sambrook saw that the veteran's orthopaedic situation was consistent with others of his age. Professor Sambrook's comments as to the delayed impact of the alleged trauma also appear well-founded and convincing. There is of course a dearth of evidence about this matter that has been exposed to cross-examination. In all, the tribunal finds itself convinced beyond a reasonable doubt, in accordance with s 120(1) of the Act, that there is no sufficient ground for determining that the veteran's osteoarthrosis related to his operational service.
There was no argument pressed in ex A12 that the veteran's defence service contributed to his osteoarthrosis so the tribunal finds that it is not reasonably satisfied of any such connection.
The tribunal has considered whether resort to the osteoarthrosis SoP in force as at 18 July 1997 would better assist the veteran. The tribunal finds that it would not. The difficulty for the veteran is not that his hypothesis fails to satisfy the SoP. It is that the tribunal is satisfied beyond a reasonable doubt that there is no ground for accepting a connection between the alleged events and the osteoarthrosis disease.
mnpThe hypothesis is that "[t]he veteran experienced an increase in animal fat consumption when he enlisted in the RAAF and this led to his developing MNP. The relevant SoP was identified in paragraph 24 above. It is necessary to see whether the hypothesis accords with the requirements in the SoP.
It is clear that Mr Roberts suffered from MNP. The death certificate attested to this (ex A11). The hypothesis needs to suggest that Mr Roberts:
increased his animal fat consumption by at least 40%, and
to at least 70 grams a day,
for at least 20 years,
before the clinical onset of MNP (factor 5(c)).
In addition, this increase must be related to his operational service (SoP 84/99) or defence service (SoP 85/99).
The clinical onset of Mr Roberts' MNP occurred in 1996 (T6/50).
The material presented in support of the veteran's case starts with Mr Roberts' own statements. In considering his nutritional history the tribunal will look at what is known about his pre-service life, his service food habits and his post-service nutrition.
Pre-service nutritionAt age 18 in 1942 the veteran weighed 49.9 kg (ex R1/2). He had a body mass index ("BMI") of 17.7, 20-25 (ex A2/4) being the recommended figure. In ex A5 he wrote:
"My mother was a good cook and very conscious of our diet. We lived on the fresh vegetables we grew at home along with poultry, as well as lamb and beef which we bought because they were relatively inexpensive. At the time general emphasis was not placed on vitamins and minerals in society, but yet my mother was concerned that what we ate was fresh. For example we did not have margarine because my mother thought it was cheap substitute for butter the 'real thing'. I can recall our main meal on most days consisted of meat (hot or cold) and vegetables or perhaps soup. Generally there was a variation throughout the week. After most meals we would have a small helping of sweets. It was only on Sundays that we had a larger variety of sweet breads, jams and the like which we knew as 'high tea'. Soup, meat, porridge, vegetables and salads were the predominant foods eaten in the household. On special occasions such as Christmas, Easter, parties and to a lesser extent Sundays, we ate a variety of jams, pastries, pudding, rice pudding, sago, and cakes as sweets. The quantity depended on how special the occasion was, for example Christmas there would be more as opposed to a regular Sunday."
In ex A6/5 he wrote:
"My mother was a good cook and very conscious of the need for a good balanced diet. There were occasions when the often quoted bread and dripping, fried bread, fried scones, 'toad-in-the-hole' and cheap but filling culinary makeshifts featured but these were not common. We rather liked them. Others had them and talked about them. I think in our case because we asked for them they were turned on as a type of rare treat rather than as an economy measure. In a New South Wales country town lamb and beef were the most common butcher's products, and were relatively inexpensive. We grew our own vegetables and ran some poultry some of which were killed for the table which kept expenses down. My mother shopped and catered economically and well. We were not permitted to be anything but sparing with spreads on toast and bread. I remember once asking my mother about margarine; I had read about it or had heard others talk about it. She denigrated it and described it as a cheap substitute for butter used in cooking but not very nice on bread. To satisfy my curiosity she bought some and let me try it. To me it looked like butter with easily visible lumps of what looked like animal fat through it. I found it quite unpalatable."
Mr Roberts' brother (ex A13) provided his recollection of a daily menu at the family home. A cousin, Ms M Stibbs, wrote in July 2000 that the "Roberts family always enjoyed a healthy diet and Alick's parents (George and Eva), two brothers (Norman and Merrick) and sister (Ruth) were always of normal weight."
Dietitian, Ms C Richards, assimilated this material and commented on her overall methodology to provide a report on Mr Roberts' nutritional intake over the relevant period:
"I have tried to separate collection of dietary information (from written information provided and from Dorothy Roberts) from the analysis. Diet histories were taken and were confirmed and modified twice by Alick's wife. Dorothy contacted a number of Alick's relatives and colleges [sic] to confirm the foods and amounts that were generally consumed. It was only when this process was finalised that I calculated fat intake …
"Collection of dietary information has limited accuracy especially when the information is collected posthumously. There are difficulties in accurately estimating food intake, including errors introduced by the dietitian during diet history taking, errors introduced by those providing information, and further errors in coding foods onto a data base. The dietary analysis program I have used is Food works 2.1 which is used by many dietitians in Australia and contains food data from NUTTAB 1995 (Australian food nutrition tables).
"The analysis sheets '1' [food eaten as an adolescent at home] show a close correlation between actual energy intake and estimated energy requirements based on his height and weight so I feel confident that the amounts of food eaten are reasonably accurate. Alick was very underweight when he enlisted. Energy intakes in '2' [RAAF 1942-45] and '3' [in Australia 1945-76] are also reasonably close which is encouraging in terms of accuracy of diet history taking. Alick's greater than recommended energy intake in reflected in his 13 kg weight increase from 1942 to 1948. His energy intake in later years was very large and Dorothy reports that Alick continued to gain weight up until his death although she was not sure of his actual weight.
"I have been able to establish that Alick's fat intake approximately doubled after he enlisted and that he continued to eat a very high fat intake up until his death. The extra foods given before and after flight missions were also very high in fat. The fat in the diet was predominantly of animal origin as Alick enjoyed milk, cream and butter in large amounts, fried meats and eggs [not included in the SoP definition of 'animal fat'] (that were cooked in animal fat) and desserts such as pastry."Ms Richards' overall summation was that "Alick's animal fat intake increased by 210g or 130% (meals only), and 188g or 250% (with in-flight meal and rations) after enlisting in the air force in 1942 and that he continued to eat 115g or 150% more animal fat up until 1976. The increase in animal fat was to a level greater than 70gm/day. Despite inaccuracies in diet history collection and coding it appears that Alick's diet contained substantially more animal fat after he enlisted and that he continued to eat a diet with more than 70g of animal fat per day for the rest of his life".
The tribunal has gone beyond Ms Richards' comments on Mr Roberts' pre-service diet because this material is important in explaining her methodology and in foreshadowing the overall trend in the veteran's evidence. She had to modify some of her calculations because of some peculiarities, unknown to her, of the definition of "animal fat" in the SoP, but this had a minor influence on her conclusions.
She found that Mr Roberts' average daily animal fat intake in the pre-war period was 70 grams. This is the starting point to Mr Roberts' hypothesis.
Operational serviceThe veteran provided written statements relating to these periods, but especially the World War II period, in T21/117, 124-125, ex A5, ex A6/6-10, ex A7 and ex A8/1. Exhibit A4 was a RAAF document about air force rations in World War II. From this material Ms Richards (ex A2/9) divined the following:
"[During 1942-45 when] training at Cootamundra Alick often dined in the evening at a Restaurant. Foods on the ship to Canada were described as 'rich and fatty', in UK as 'stodgy English meals'. Rationing in England also meant that the range of foodd was limited. Bread was always used as a filler. The canteen supplemented the meals with meat pies, cream desserts and jam tarts and cream. There was also pre-flight and post-flight meals designed to provide extra energy and warmth. Information from Alick Robert's declaration, Air-Cmdr (ret) E.T. Picker, W.O. Shallcross, W.O. Fincher, W.O. V. Jones, Group Cap (ret) R. Aronsen, Dorothy Roberts (wife), R Golder (sister), Prof & Mrs M. Stibbs (cousins), E.C. Pearce (friend), F. Roberts (daughter). M. Roberts (daughter)…."
For the period from 1942-45 Ms Richards found that Mr Roberts' animal fat consumption rose from 70 grams a day to 164 grams a day. His weight during this period appears not to have been recorded but it was 63.1 kg by 1947. His BMI had risen to 22.4 (ex R1/2).
This was evidence secured by the veteran and supports his hypothesis that his daily intake of animal fat rose by at least 40% (ie 234%) to more than 70g a day in operational service. Mr Roberts' suggestion of a service relationship to this increase (as required by clause 4 of the SoP) was (ex A6/14):
"In providing the above quite lengthy outline of some of my service experiences I aim to show that under the pressures of service life the consumption of those foods which I found particularly attractive provided a means of temporary relief from the daily routine. Much as I enjoyed most of the work (until the latter years) there was still constant pressure to keep on top. To sit down and enjoy a good meal with others, especially in a mess where we were impressed with the need to 'keep the hangar door closed', and talk about anything but work was indeed an enjoyable break. To that end also I refused to take work home, and avoided discussion of work there.
"From childhood I developed a liking for fatty foods but except as rare treats they were 'forbidden fruits'. Once in the RAAF those restrictions ceased, and soon also we were being quite deliberately fed fatty foods ostensibly for our own good, albeit perhaps short term but then most of us were not expected to live long. I 'got the taste' and it stayed with me."
1945-76
This time frame includes periods of operational and defence service, and some periods that are neither. However, that is not a problem, given that the hypothesis is that the increased animal fat consumption occurred in 1942-45. This period is relevant, however, because the SoP requires that the increased consumption must have persisted for 20 years. Ms Richards' report indicated that the animal fat consumption from 1945-76 was an average of 179 grams a day. This exceeds the consumption rate during operational service and was sustained for more than the 20 years before clinical onset of MNP as required by the SoP.
The tribunal, in view of this material, finds that the hypothesis satisfies step 3 of the Deledio (above) principles. The tribunal notes that the Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission [2001] FCA 1832 Emmett and Allsop JJ said:
"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. …
…
"21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.
"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. …
…
"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:
'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'"
Mr Friderich, the dietitian consulted by the respondent, was prepared (ex R1) to accept much of Ms Richards' methodology. However, he concluded that Mr Roberts was underweight on enlistment probably because economics limited the purchase of food. However, he says, "By Mr. Roberts own statement, it is clear that the fondness for high fat (high animal fat) foods was apparent prior to enlistment." Using "the Schofield Equation", Mr Friderich also concluded that Mr Roberts' weight could have risen to the level it was at his death on the basis of an increase in consumption of only 4.1 grams of fat a day. He considered the estimates of fat intake in later years as exaggerated. The tribunal considered this material but has decided, in view of Ms Richards' impressive curriculum vitae and her reasoned approach in presenting her opinion that Mr Friderich's critical view of the hypothesis does not, of itself, render the hypothesis fanciful in the sense required for it to be not a reasonable hypothesis.
It becomes necessary to consider step four of Deledio (above) and whether the tribunal can be satisfied beyond reasonable doubt that the disease was not war-caused. The tribunal finds that it is not satisfied beyond a reasonable doubt that the veteran's MNP was not war-caused. The respondent had evidence from Mr Friderich that cast some doubt on the analysis presented by Ms Richards which was in support of the hypothesis. There were some additional matters raised for the respondent. The respondent's chief evidence stemmed from Mr Friderich's two reports. The tribunal has already noted that in the first report (ex R1) Mr Friderich considered that Mr Roberts could not have remained at such a relatively low weight over the years if he had consumed as much fat as Ms Richards has suggested. In his conclusion Mr Friderich said (ex R1/4-5):
"Mr. Roberts was underweight on enlistment. This is most likely due to the limited funds available to purchase food in addition to those grown at home. By Mr. Roberts own statement, it is clear that the fondness for high fat (high animal fat) foods was apparent prior to enlistment. The deprivation Mr. Roberts experienced prior to enlistment may have lead [sic] to an increased affinity towards foods seen as 'rare treats'. Mr. Roberts has also stated that a significant proportion of the high animal fat foods consumed during WW2 were in fact not provided by the air force. He ate several meals in restaurants and canteens.
"There is no doubt that Mr. Roberts did increase his fat intake during active service in WW2. This lead [sic] to a rapid weight gain of 13.2 kg in 5 1/2 years. This weight gain continued for many years. However the weight gain seen does not correlate to the high energy intake reported.
"Based on the evidence available it is not clear whether the dietary habits Mr. Roberts claims to have developed were based on the food available during service. Mr Roberts appears to have had a fondness to [sic] these foods prior to enlistment. The ease of access to the high fat foods he was deprived of, as a child and young man would have significantly influenced his desire to consume these foods.
"By determining the energy required to cause the increase in body weight experienced by Mr. Roberts, it is clear that the likelihood that fat intake rose by 40 % as per SOP, is unlikely. If the increase in energy was entirely due to an increase in animal fat, only an additional 4.1 grams per day was consumed. This only equates to an increase of 5.5%. Therefore, Mr. Roberts would not make the requirements of the Statement of Principles concerning Malignant Neoplasm of the Prostate 5(c) if he had followed the alleged diet for 20 years."In his later report (ex R3) Mr Friderich wrote that "Mr. Roberts supplemented his diet with high fat foods from the beginning of military service. Whilst there is little doubt that Mr. Roberts food intake increased, and subsequently his total animal fat intake, the causes appear to be related to improvements in the availability of foods and Mr Roberts improved economic situation, and not necessarily military service".
In her oral evidence Ms Richards answered Mr Friderich's comments and provided certain additional information of potential value.
As regards the veteran's fondness for fatty foods, Ms Richards said:
"[F]rom all reports, this man really enjoyed the fat portion of the food, and from what we gather, he continued to gain weight right from the time he was 18 up until t[he] time he died. That he had a natural preference for fatty foods, and would seek them out. He is eating physiologically possible amounts of fat, although high by today's standards, and given that his weight tended to increase right through, it would sound as though he was -- well, he would have been eating in excess of his requirements, most of the time. So that -- and it's very much more easy to over eat with fats because they are per gram, higher in energy, than carbohydrate and protein." (Transcript, 14.05.01, 31)
In relation to Mr Friderich's first report she said:
"[H]is comments estimate the energy requirement, and once again, I think these really can't be taken as accurate levels because of, one, this man was gaining weight all the time, so his energy intake was always greater than his energy requirement. Two, that the Friderich's estimated energy requirements are very much below the estimated calories available, energy available, to service people that we have from information from the Jannine Lewis article, and I suspect that the intakes were more likely to be 15,000 to 16,000 kilojoules, not 10 or 11 like Mr Friderich would have us believe. That once again you can't make statements based things like -- you know, the statement like, 'Assuming weight gain was steady between 1942 and 1958 the additional energy consumed per day equivalates [sic] to 153 kilojoules if physical activity remained constant.' I mean, this is an unlikely thing to happen between 1942 and 1958. And he's also brought it back to an equivalence of four grams of fat per day and food isn't eaten just as fat; food is eaten as protein, fats, carbohydrates. So I really don't like that sort of -- that's a real value judgment based on the science, but in people that doesn't really stand up because people will move city, the temperature changes, their activity changes, their food changes. And as your body gets heavier, you require more energy to move around. Mr Friderich also claims that I had interviews with people that are now deceased and I don't -- I didn't. The other comment I had to make was that the increase in butter intake alone up to 113 grams per day contributes more than the 70 grams of animal fat required by the Veterans' Affairs as a baseline for the statement of principles. And given that he had extra food above this, we know that he definitely had more than 70 grams of animal fat per day, at least from 1976. There is also a lot of information -- there's a lot of information in the Ruth English article and the one attached to the back of that on eating, you know, disclaiming this idea that you can get allergic -- not allergic -- get hooked onto fatty foods, but in a lot of the stuff that Alick has written he refers to this idea that fatty foods were forbidden fruit, that they were somewhat -- they were really desirable, that when he had the chance he loved to eat these fatty foods that he couldn't get as a child, and he's even used the word 'hooked on' fatty foods at various -- predicted, his use those words himself, that attempts to reduce them were difficult because he actually felt addicted to them. There is also information available in the Ruth English article that not only did Alick find these foods desirable, but American troops in a study in 1985 cited beef and milk as prestige foods and that preferred foods were listed as beef, milk, french fries, ice cream and biscuits, and that's on page 22 and page 23 of the Ruth English article." (Transcript, 14.05.01, 31-32).
Ms Richards told Mr Modder that:
"[T]here are comments in Alick's notes saying that the reason for having sortie meals and having high fat meals during missions was to keep their body temperature up and that somehow these foods were considered extremely important. So high fat foods were seen as part of an important training diet." (Transcript, 14.05.01, 33)
Mr Modder asked what she saw about operational service as creating a liking for fatty foods. She responded that service made those foods available. She said that he also early on in service as well as later would seek out food that he thought tasted nice. For instance, when he was at Cootamundra he disliked the food in the messes and would always supplement it with food from the canteen or from a restaurant. ... "I mean the sort of foods that he liked was potato chips and mixed grills and I think he mentions in Cootamundra this banana -- banana and ice cream desert, banana sundae, that he remembers from many years before as being something that was really wonderful. So he likes the taste of foods, he likes high fat food, the service obviously gave him opportunities to eat these foods." (Transcript, 14.05.01, 34)
Mr Modder asked whether he actually disliked the food that was provided for him by the air force. Ms Richards responded that she didn't think he disliked it, but he liked to supplement it. (Transcript, 14.05.01, 34)
In relation to Mr Roberts' weight in later life, Ms Richards agreed that there were no records of that weight, however she believed that he would have been in the obese group by the time he died. (Transcript, 14.05.01, 35)
Mr Friderich had commented that a loss of weight by Mr Roberts in 1958-59 had not been satisfactorily explained. Ms Richards in the transcript at page 36 noted that this drop in weight coincided with a change in posting. This was when he was moved to Malaysia. "He moved ahead of his first wife and children and he was living and eating in a mess for a number of months, three or four months before they joined him. It's Butterworth, isn't it, in Malaysia?... now, after they joined him they moved into married quarters and he still ate in the mess at lunchtime and the evening meal was prepared by a Chinese Malay cook who used to, according to Alick and his documents, used to try and prepare fairly rich meals, so they were like, you know, special type of Chinese food rather than every day. So I just speculate that it was when he was on his own eating in the mess, prior to his wife joining him, but that's what I got out of the notes.... he might have just been working hard and not pay much attention to what he was eating." (Transcript, 14.05.01, 36-37)
Mr Modder, for the respondent, in his written submissions (ex R5) homed in on Mr Roberts' weight loss in 1958 and suggested that this militated against Ms Richards' thesis that Mr Roberts had a craving for fatty foods.
Mr Modder referred to the fact that Mrs Roberts had seen Ms Richards about weight and diet matters and suggested that it was artificial to attribute the veteran's situation to his wartime diet and ignore the family context within which he made his food choices.
Mr Modder suggested that Mr Roberts' weight was relatively normal compared to most Australian males of his age, 60 % of whom are overweight. Ms Richards had provided this figure in her evidence.
In paragraph 16 of ex R5 Mr Modder wrote:
"The crux of the matter is: what is the causal link to service, not the amount of fat consumed. Ms Richards could not answer this question. She adhered to the school of thought that the consumption of animal fats was habit inducing, and believed that the Veteran's craving for animal fats had been manifested by 1945. This is inconsistent with the observations in paragraph [69 of these reasons] above. In short we do not know how any increase in animal fat consumption during operational service is linked to post-War diet."
The tribunal finds that Mr Roberts had a pre-existing liking for foods rich in animal fats. The best evidence for this is in paragraphs 51 and 52 above where the veteran is quoted as having said as much in statements he made before he died.
The tribunal finds that the veteran's exposure to high energy, high animal fat content foods in the United Kingdom during the 1942-45 period permitted him to become used to having access to such foods. This is essentially the thesis advanced by Ms Richards.
The tribunal finds that Mr Roberts thereafter sought out foods high in animal fat whenever he could. The tribunal relies on the evidence assembled for Ms Richards by the applicant in making this finding. The tribunal finds that the evidence on which Ms Richards based her findings was probative. The tribunal agrees with paragraph 20 of the written submissions made for the applicant by Mr Crabb (ex A18) where he cited with approval paragraph 58 of the tribunal's decision in Re Keenan and Repatriation Commission [2000] AATA 707 in which the tribunal said:
"The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected." (Tribunal's emphasis)
The tribunal relies on this passage also as a foundation for a finding that the veteran's increased animal fat consumption during the war was related to his operational service. The tribunal also relies on the veteran's own evidence above in paragraph 60 on this point. The tribunal finds that the veteran's quest for high animal fat foods during service and otherwise after he had this exposure during World War II was at least in part attributable to the exposure he had to such foods during World War II. It is conceivable that the veteran would have continued to regard high animal fat foods as "forbidden fruit" had they not become daily fare for him in 1942-45.
The tribunal has decided that it prefers the evidence of Ms Richards to that of Mr Friderich where the two diverge. The tribunal accepts Ms Richards' criticisms of Mr Friderich's use of the Schofield Equation to rebut her evidence. A similarly constituted tribunal in Re Karey and Repatriation Commission [2002] AATA 166 considered this issue and said:
"18. Ms Richards was asked to comment on the report by Mr Friderich (Ex R1) who is also a dietitian. He had used a different methodology in his report. He had assigned to Mr Karey an activity factor which changed over time. This relates to a sample of people and produces an average of activity done by those with the sample characteristics. As Ms Richards said, it requires a qualitative judgment as to whether the assessor thinks the subject's activity level is light, moderate or active.
"19. Ms Richards was not enthusiastic about this methodology. She said:'I have quite a lot of personal experience in tube feeding patients where I use the Schofield equation and I use an activity factor and I'm invariably out. You know, you find that the patient's weight falls or gains, and usually you can finally work out their energy requirement by sequential weighing on certain activity level, because it's only when you have someone who's tube fed that you have the luxury of knowing exactly how many calories are going in and often if they' re bedridden exactly how inactive they are" (transcript, 14.5.01, 22).
'…
"21. Mr Friderich had said that Mr Karey's reported energy intake would have made him significantly underweight before service and morbidly obese after service. However, as Ms Richards said, such generalisations cannot really be applied because of the individual response to overfeeding and other personal differences. Ms Richards was of the view that the only practical way to accurately estimate a free living person's energy requirement is to establish energy intake and take weight measurements regularly. The other way to proceed is to look at someone's energy requirement and inquire how much they eat."
It seems to the tribunal that the Schofield Equation is most probably a useful tool for providing a rule of thumb in the dietitian's diagnostic process, and may be especially useful in working with a person with a possible dietary problem. However, its generalised conclusions seem ill-adapted to arriving at any sort of definitive position in a matter such as this where the veteran has died or the veteran is alive but the evidence on food consumption is indefinite. In such circumstances the tribunal considers Ms Richards' methodology to be more appropriate because of its allowances for subjectivity.
The tribunal finds that Mr Roberts continued with his high animal fat diet for at least the 20 years required by the SoP. The tribunal relies on the evidence of the applicant and on the records of Mr Roberts' weight over the years. The tribunal, for reasons given already in paragraph 75, and referring to the second bullet point in paragraph 66 above, prefers Ms Richards' evidence in support of this finding to Mr Friderich's evidence which purported to cast doubt upon it.
In making these findings the tribunal notes that Ms Richards effectively answered many of Mr Friderich's objections.
The amounts of fat Mr Roberts is said to have eaten can physiologically be eaten by a person (paragraph 66 above).
Ms Richards relied on evidence that high fat foods were seen as part of an important training diet (paragraph 66 above).
Ms Richards provided a reasonable theory to explain the period of Mr Roberts' weight loss (paragraph 66 above).
The tribunal takes Mr Modder's point that one should consider the family setting and its contribution to the veteran's fat consumption (paragraph 68 above), however, the tribunal considers that that would be only contributory to the situation. At least equally contributory would be Mr Roberts' operational service experience. The tribunal indicates then that a service contribution is all that is required under the Act.
The tribunal also considered Mr Modder's point that Mr Roberts' weight was relatively normal by reference to most Australian males of his age (paragraph 69 above). Although Mr Modder succeeded in obtaining some measure of endorsement for this view from Ms Richards, it was not a ringing endorsement. Part of the problem is the lack of definite evidence on Mr Roberts' weight at death. However, even if that proposition is accurate, the tribunal considers that it falls into the same category as Mr Friderich's opinions based on what one might expect to find generally in the population. The SoP is not based on such considerations. It requires a finding of consumption of a certain type of food at a certain level over a certain period. There is no requirement as to absolute weight or a rate of weight gain.
CONCLUSIONThe tribunal has noted and accepted the veteran's decision to withdraw at the VRB his appeal in respect of the denial of his claim in respect of rheumatoid arthritis.
The tribunal has agreed with the Repatriation Commission and the VRB that the veteran's generalised osteoarthrosis was neither a war-caused nor a defence caused disease.
The tribunal has found that the veteran's MNP was a war-caused disease.
DECISIONThe tribunal affirms the decision under review in relation to generalised osteoarthrosis but sets aside the decision as it relates to malignant neoplasm of the prostate. The tribunal finds the veteran's neoplasm of the prostate to have been a war-caused disease. The date of effect of this decision is 26 November 1996.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella
Senior MemberSigned: D Popple .....................................................................................
For AssociateDates of Hearing 14 May 2001 and 9 July 2001
Date of Decision 15 May 2002
Counsel for the Applicant Mr P Walker
Solicitor for the Applicant Mr P Crabb, Snedden Hall & Gallop, Lawyers
Counsel for the Respondent Mr S Modder, DVA Advocacy Service
Solicitor for the Respondent Mr J Marsh, DVA
2
8
0