Roberts and Repatriation Commission

Case [2002] AATA 351

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

  1. 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.

  2. 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…

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Roberts and Repatriation Commission [2002] AATA 351
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[2002] AATA 351
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CaseChat Overview and Summary

Dorothy Yvonne Roberts, on behalf of the estate of the late John Robert Roberts, sought a review of decisions made by the Repatriation Commission and the Veterans' Review Board regarding the deceased veteran's entitlement to a disability pension. The central issue was whether the veteran's malignant neoplasm of the prostate and generalised osteoarthrosis were caused by an increase in animal fat consumption during his service in World War II. The court had to determine if the veteran's consumption of animal fat increased by at least 40%, to at least 70 grams a day, and if this increase occurred for at least 20 years before the onset of these conditions.

The court examined the evidence provided, including written statements and expert reports. It found that during the veteran's service in World War II, his daily animal fat intake increased from 70 grams to 164 grams. This increase was sustained beyond the war period, with an average daily consumption of 179 grams from 1945 to 1976. The court noted that this period of increased consumption met the requirements of the Statement of Principles concerning Malignant Neoplasm of the Prostate and Osteoarthrosis, which mandates a 20-year period of increased animal fat intake. The court concluded that the veteran's increased animal fat consumption was related to his service, fulfilling the criteria for a service-related disability.

The court ruled in favour of the applicant, finding that the veteran's malignant neoplasm of the prostate and generalised osteoarthrosis were indeed service-related conditions, entitling the estate to a disability pension. The decision was based on the evidence that the veteran's animal fat consumption increased significantly during and after his service, meeting the conditions specified in the relevant Statement of Principles.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 decision On 25 November 1998 the VRB decided (T20) on several matters in contention between Mr Roberts and DVA: 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 LEGISLATION The 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 1986Operational service - world wars6A. (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 ForceNature 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 death8.(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; orcompensation 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. …Interpretation68.(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 Forces69.(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; orEligibility for pension under this Part70.(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 II71.(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 payments73. 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 Principles120B.(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

Ratio Decidendi

Legal Principle Established

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 service The 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." 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.