Rowlingson and Repatriation Commission

[2005] AATA 1293

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1293

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/625

VETERANS’ APPEALS  DIVISION		)
Re		MARGARET JOYCE ROWLINGSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date22 December 2005 

PlaceBrisbane

Decision The Tribunal affirms the decision to reject the claim for widows pension.

................SIGNED.............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS  – death from prostate cancer as a result of a diet high in animal fat.

Veterans’ Entitlements Act 1986: ss 5C, 7, 8, 13, 120, 120A, 196B(14)

REASONS FOR DECISION

Deputy President Don Muller        

1.Margaret Joyce Rowlingson, the applicant, has claimed a widows’ pension pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the VEA).

2.She claims that her late husband, Edward Ernest Rowlingson, died from the effects of a war-caused disease, namely, prostate cancer.

3.The elements of her claim are:

(a)Edward Ernest Rowlingson died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr. Rowlingson was in the habit of consuming food which had a high animal fat content.

(c)A diet with a high animal fat content is an accepted cause of prostate cancer.

(d)Mr. Rowlingson’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed when he served in the Australian Army.

(e)The food that he had become accustomed to eating during his years in the Army was higher in animal fat content than his pre-service diet.

(f)Thus, Mr Rowlingson’s death from prostate cancer was related to his eligible Army service.

4.Mrs Rowlingson’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his service.

5.The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.

6.Mrs Rowlingson seeks a review of that decision.

Legislative Framework

7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.

8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.

10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.

11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.

13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.

14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.

Necessary Elements of Hypothesis

15.     In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:

(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;

(b)the veteran’s war service diet, provided to him by the Army contained animal fat of (X + Y) grams per day on average;

(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.

16.     If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.

17.     In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”.  Those parts of No. 28 of 2005 relevant to this review are:

“Factors that must be related to service

4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.

Factors

5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:

….

(c)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.

Other definitions

8.        For the purposes of this Statement of Principles:

“animal fat” means fat contained in or derived from:

(a)meat, other flesh or offal from animals (including birds but excluding seafood);

(b)       dairy products;  or

(c)       eggs from birds.”

Material Placed Before the Tribunal

18.     The following matters are not in dispute and the Tribunal finds:

(a)Edward Ernest Rowlingson was born on 29 September 1921.  Some of his service records show that he was born in Brisbane, Queensland.  Other service records show that he was born in Yorkshire, England.

(b)After leaving school he worked as a labourer and as a seaman.

(c)He enlisted in the Australian Army on 27 August 1941, a month short of his 20^th birthday.

(d)His service records indicate that his “Next of Kin” was his father, Walter George Rowlingson, who lived at Pinkemba, Brisbane.

(e)He was appointed a “Cook Group II” as from 12 February 1942.

(f)He rendered operational service in New Guinea.  He arrived in Port Moresby on 17 April 1942 and left Port Moresby about five weeks later on 21 May 1942.

(g)The balance of his World War II service was rendered in southern Queensland.

(h)He was discharged on 16 January 1946.

(i)On enlistment he was 5’10” tall and weighed 140lb (63.5kgm).  On discharge (January 1946) he weighed 11st 2lb (70.8kgm).

(j)He rejoined the Army on 27 March 1947 and served until he was discharged on 4 June 1971.  His Army records show that as at March 1947, he was married to Josephine Yvonne Rowlingson, who lived at Bowen Hills, Brisbane.  He was, according to his records, still married to her as at 29 August 1953.

(k)His Army records also show that when he rejoined the Army he initially did a transport training course but he became classified as a “Painter and Decorator”.  In October 1956 he re-qualified as a Cook (Class II) and commenced full-time duties as a cook in November 1956.

(l)He married the applicant, Margaret Joyce Rowlingson, on 24 September 1955.

(m)At the time of their marriage Mr. Rowlingson was stationed at Puckapunyal and Mrs. Rowlingson lived in a flat at Rosebud West.  They continued that arrangement.

(n)The records show the following postings for Mr. Rowlingson and the corresponding addresses for his wife.

Date	Posting	Wife’s Address
15.4.56	Brisbane (Painter and Decorator)	Red Hill, Brisbane
1.8.56	Camp Hospital (Painter and Decorator)
12.11.56	Camp Hospital (Cook)
26.5.58	Greenslopes Hospital (Cook)
22.12.59	Greenslopes Hospital (Cook)	Wynnum, Queensland
22.8.60	Unfit for cooking duties
21.1.61	Downgraded to Mess Steward Transferred to Southern Command	Rosebud West, Victoria
23.1.62	Balcombe, Victoria, Mess Steward	Mt Martha, Victoria
7.2.63	Balcombe, Victoria, Mess Steward	Married Quarters, Balcombe Camp, Victoria
3.11.63	Jungle Training Camp, Canungra Mess Steward	Wynnum, Queensland
1.12.64	Jungle Training Camp, Canungra Mess Steward	Canungra, Queensland
Jan 66	Portsea, Mess Supervisor	Portsea, Victoria
1.3.68	Supervisor Army Messes

(o)Upon his retirement from the Army, Mr. Rowlingson obtained a storeman/bookkeeper job on Stradbroke Island but he had to cease work in the mid 1970s when he became ill.

(p)He was diagnosed with prostate cancer in September 1986. 

(q)He died on 28 July 1996.  The cause of death was Disseminated Carcinomatosis, (1 year) and Prostatic Carcinoma (years).

(r)He was a veteran within the meaning of that term in section 5C(1) of the VEA.

19.Mrs. Rowlingson provided a written statement and gave oral evidence.  She also provided statements to the expert dieticians about her late husband’s diet.  She made the following points (among others):

(a)She met her husband in late 1954 and they were married nine months later.

(b)She thought that her husband was a cook in the Army when they met and she was also under the impression that he was a cook for the whole of his Army service.

(c)Her husband did not discuss his early life.  He told her that he lived with his mother, a brother and two sisters and that they struggled financially because their father had left them.

(d)Her husband told her that when he enlisted in the Army he was only 16 years old and that he had to “put his age up to get in”.

(e)He also told her that he had “served with the commandos near the end of World War II”.

(f)Mr. Rowlingson’s eating pattern was as follows when he was able to have his meals at home with his wife.

·     Breakfast:  He was “not big on a cooked breakfast”.  He had bacon and eggs perhaps three times per week.  Otherwise he ate porridge or Weetbix.  He preferred a light breakfast.

·     Lunch:  This was his main meal of the day.  He ate steak or sausages or chops with eggs plus vegetables and bread and butter.  He sometimes had fish for lunch.  In hot weather he would have cold meat and salad, or sandwiches containing ham, cheese and pickles.  He did not particularly like salads.  He did not like tomatoes or lettuce.

·     Dinner: He preferred a light evening meal.  Sometimes he would have a couple of pies (sometimes they bought pies, other times he would make a pie.)  They often had soup or a salad plus, perhaps, some pudding.

·     He only had one big meal per day.

·     He did not eat much fruit.

20.Mr. Rowlingson’s service records indicate that he weighed 63.5kgm on enlistment in 1941, as a 20 year old, 70.8kgm on discharge in 1946 and 66.7kgm on discharge in 1971.

21.A report by Dr. Ruth English, dietician, is to the effect that if Mr. Rowlingson had eaten as much as his widow recorded in her dietary surveys, Mr. Rowlingson would have gained weight in excess of 62kg each year.

22.There is no evidence as to what Mr. Rowlingson’s animal fat intake was prior to his World War II service.  His pre-war occupation has been recorded as “labourer” in some documents and “sailor” in others.  The material shows that a 1936-38 Australian survey into the eating habits of Australians revealed that the average adult male consumed about 126gm of animal fat per day.  Mr. Rowlingson may have fitted the average at the time.

23.There is no specific evidence about what Mr. Rowlingson ate in the Army.  During Mr. Rowlingson’s World War II service, the New Guinea food ration, when he was in New Guinea for five weeks, contained 113.9gm of animal fat per day.  The ration packs for Army personnel in Australia contained less animal fat than that.

24.The evidence, such as it is, suggests that Mr. Rowlingson’s intake of animal fat during service was probably less than it was prior to service.

25.There is no evidence about Mr. Rowlingson’s diet during the approximately six years of his first marriage, which seems to have been between early 1947 and late 1953.

26.From about 1954 until he was discharged in 1971, Mr. Rowlingson apparently ate only one big meal per day.  There does not seem to have been anything out of the ordinary about the food he ate.  He sometimes had a cooked breakfast but mostly had porridge or Weetbix.  He usually had a cooked lunch.  He usually had a light evening meal.  There is no evidence that he particularly had a preference for meals high in animal fat content.

27.Mr. Rowlingson was not particularly heavy.  He weighed a modest 66.7kgm on discharge in 1971 when he was 50 years of age. This was lighter than he had been in 1946.

28.The material placed before the Tribunal does not show that Mr. Rowlingson’s diet on eligible service was higher in animal fat content than his pre-war diet.

29.The material placed before the Tribunal does not show that Mr. Rowlingson developed a preference for a diet high in animal fat, and certainly does not show that there was any connection between the food he ate after his World War II service and the circumstances of his eligible service.

30.The whole of the material does not raise a hypothesis that Mr. Rowlingson increased his post war intake of animal fat by any significant amount, for any significant period, over his pre-war diet, for any reasons related to his service.

31.No hypothesis is raised which links the death of Mr. Rowlingson with the particular circumstances of his eligible service.

32.The decision to reject the applicant’s claim for a widows pension is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/s of Hearing  14,21.3.05;  8.4.05;  10,11,12.5.05;
  20, 22.6.05;  30.9.05                  
Date of Decision  22 December 2005
Counsel for the Applicant         Mr. A. Harding
Solicitor for the Applicant          Gilshenan and Luton
Counsel for the Respondent     Ms. E. Ford
Solicitor for the Respondent      Mr. S. Francis