Scanlon and Repatriation Commission
[2005] AATA 1053
•21 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1053
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/777
VETERANS’ APPEALS DIVISION
Re: MARIE THERESE SCANLON
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 21 October 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – widow's application – operational service on the part of deceased veteran – death due to cardiac arrest – well‑documented hyperlipidaemia – impact of dietary factors on hyperlipidaemia – service‑related dietary intake – decision affirmed on the basis of lack of evidence
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A
Statements of Principles
Instrument № 53 of 2003 as amended by Instrument № 94 of 2004 concerning
ischaemic heart disease
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
REASONS FOR DECISION
21 October 2005 Miss E.A. Shanahan, Member
1. This is an application by Marie Therese Scanlon (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent) dated 26 November 2002 which found that the death of the veteran was not war‑caused. subsequently affirmed by the Veterans’ Review Board (the VRB) on 7 June 2004.
2. The applicant was represented by Mr G. Chancellor of counsel, instructed by Williams Winter, solicitors. The decision of the Tribunal is that the decision under review be affirmed. The respondent was represented by Mr K. Herman, an advocate with the Department of Veterans’ Affairs.
3. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents). The parties tendered the following documents:
Report of Professor A. Sinclair dated 25 May 2005 Exhibit A1
A supplementary report Professor Sinclair dated 6 August 2005 Exhibit A2
Report of Associate Professor A. Pitt dated 29 September 2004 Exhibit A3
Clinical Notes Dr C. Arter Exhibit A4
Report of Dr B. Wood dated 8 July 2005 Exhibit R1
Report by Writeway Research Service Pty Ltd dated 16 April 2005 Exhibit R2
Supplementary report by Writeway Research Service Pty Ltd
dated 25 July 2005 Exhibit R3
Transcript of the VRB Hearing dated 7 June 2004 Exhibit R4
4. Mrs Scanlon, Professor Sinclair, Dr Pitt, Dr Wood and Captain Macdonald gave oral evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
5. On 15 November 2002 Mrs Scanlon applied for a veteran's widow’s pension. Her husband, Frances Kenneth Scanlon, died on 27 September 2002, having suddenly collapsed and died within minutes of attending a social event. The Death Certificate, provided by his general practitioner, stated the cause of death to be
Cardiac arrest - sudden
Cardiac arrhythmia (ventricular tachycardia) – minutes
Acute myocardial infarction with ischemic pain – minutes
Mild chronic obstructive airways disease
Early changes of cerebral atherosclerosis
The certifying medical practitioner, Dr C. Arter, was not present at the time of death and has presumably provided the necessary certification on his longstanding doctor/patient relationship with Mr Scanlon.
6. Mr Scanlon served in the Royal Australian Navy (the navy) from May 1943 to May 1946 The decision of the Tribunal is that the decision under review be affirmed. The decision of the Tribunal is that the decision under review be affirmed. During this period, he had eight to nine months of operational service.
7. Mrs Scanlon has claimed that her late husband's death was related to hyperlipidaemia resulting from a change in his diet, which was perpetuated throughout his life. Mr Scanlon had been documented as having raised cholesterol and triglyceride levels from 1989. From 1984, his general practitioner, Dr C. Arter, had recorded a loud systolic murmur. Initially the murmur was not localised as to its cause; but as from 1997, it was described as due to mitral incompetence.
8. Mrs Scanlon did not meet her husband until after his war service, but she believed that her late husband’s parents ran a fruit and vegetable shop. Consequently, she maintained that before he joined the navy his diet would have been predominantly fruit and vegetables. She contended that during his years of naval service this changed, with the provision of an increased amount of animal unsaturated fats. She said this lead to her husband developing a liking for such food. Mrs Scanlon claimed this liking for high fat content foods continued following his discharge from the navy; contributing to the development of hyperlipidaemia and the ultimate result of cardiac arrest from presumed coronary artery disease.
9. The hypothesis advanced on the applicant’s behalf is, therefore, that a change in diet during operational service resulted in Mr Scanlon acquiring a liking for high fat foods; and that this liking persisted throughout his life, resulting in hyperlipidaemia or dyslipaedemia, which eventually led to his sudden death.
EVIDENCE
Mrs Marie Therese Scanlon (the applicant)
10. Mrs Scanlon is 80 years old. She met Mr Scanlon in 1947 and married him in 1949. They then lived with his parents, who had retired from their green grocery business in North Carlton, for a period of 12 months. During this time, Mr Scanlon’s mother had performed all the cooking. Mrs Scanlon said that her breakfast in the pre‑war years and in the early war years had been porridge, tea and toast. When asked whether her husband's diet was different from hers when they met, Mrs Scanlon replied No, it was the same. She was then asked the same question, in slightly different phraseology, twice more. Initially, she said: No, it was no different but then said: Yes, it was different. She stated that her husband preferred food fried in fat from bacon and sausage oils, because that was the way he liked it. In addition, he had used butter liberally. This was in contrast to what she knew or assumed of his pre‑service diet, which was essentially fruit and vegetables with occasional rabbit.
11. In her statement dated 25 June 2004, Mrs Scanlon said that her late husband had complained to her regarding the poor tasting rations he received during service. This ration was comprised of preserved foods. However, he told her that when he was serving in areas where the US Navy supplied the food, it was of a far better quality, which he enjoyed. In addition, her husband had acquired a taste for chocolate during his service and this continued throughout his life. Mrs Scanlon stated she did not eat the same food as her husband as she did not like it. She admitted that on occasion she did eat similar or the same food.
12. Some few years after his service, Mr Scanlon moved to the Mornington Peninsula and set up a business as a builder with his brother, who was qualified in this area. Mr Scanlon was able to go home for lunch. Mrs Scanlon gave evidence that for evening meals he ate mainly roasts, barbeque meats and grills. She had been unaware of when he was first diagnosed with elevated cholesterol levels; but she did know he had been prescribed Zocor. She was unaware of any pre‑existing or interval‑existing cardiac problems.
13. Under cross‑examination Mrs Scanlon said she had visited her husband's family before her marriage to him, usually on a Sunday when the evening meal would be cold meat and salad. During this period, Mr Scanlon’s mother had done all the cooking and at times she would cook something special for her son. Mrs Scanlon confirmed she had told Dr Wood that her late husband was 14½ stone when they first met, but she stated that he had never been overweight throughout the time she had known him. He had, however, "fined down" after he commenced work as a builder. Mrs Scanlon advised that throughout her married life, her husband's size had remained unaltered and that he was what is called a men's size with a 38 shirt size. She could recall these facts well as she bought most of his clothes. While she recalled that there was food rationing during the Second World War, there was no rationing when she married in 1949. Mrs Scanlon agreed that she could not recall the actual sizes of the food portions; but she could only say that her late husband had a hearty appetite
14. Mr Scanlon had worked for a period of 12 months in a dairy before he took up building as his occupation. Mrs Scanlon believed that during that period, he developed a liking for milk products. In re‑examination Mrs Scanlon confirmed that her husband had worked at the dairy for some 5 to 12 months and not as reported by Dr Wood (see later), for 5 years.
15. The Tribunal asked Mrs Scanlon how often her late husband would in fact eat a different meal from the rest of the family. She replied that this was hard to say. She said that they usually had two barbeques per week. Mrs Scanlon confirmed she had no idea that her husband had a cardiac murmur and she had only become aware of this when she read Mr Wheatley's report in 1988.
16. In re‑examination Mrs Scanlon was asked how often her mother‑in‑law had cooked a different meal for her husband. She said she thought it was just occasionally, but could not really remember.
Professor Andrew Sinclair
17. Professor Sinclair provided two reports, dated 10 May 2005 (Exhibit A1) and 6 August 2005 (Exhibit A2). Professor Sinclair is the Professor of Food Science at the RMIT University. He holds a Bachelor of Agricultural Science degree and a PhD in Biochemistry. He stated that he had authored 185 publications in the health area and had a particular interest in cardiovascular disease. Professor Sinclair was of the opinion that once people were exposed to a high fat diet, it was difficult to change that diet as it became an acquired taste. In his opinion an increased fat intake led to an elevated cholesterol level; which in turn increased the risk of ischaemic heart disease. Professor Sinclair was asked whether the quality of food provided by the US Navy in some ports was superior to that of the navy, which was essentially tinned food. He said that this may result in a preference for so‑called superior foods; and once the veteran had returned to port, a yearning for high fat foods. Given that Mr Scanlon had a strong preference for chocolate, Professor Sinclair agreed that this had a high fat content, of which 50 per cent was unsaturated and a liking for chocolate could become an acquired taste. In contrast, Professor Sinclair stated that vegetarians have lower incidents of coronary artery disease and that if Mr Scanlon’s pre‑service diet had been primarily vegetables, given that his family owned a green grocery store, such a change in diet would increase the risk of coronary artery disease.
18. Professor Sinclair indicated that he was aware of the various surveys that have been conducted from 1936 to the present day. He commented that these were data not allowing for extremes with respect to high fat intake or high vegetable intake. Under‑cross examination Professor Sinclair maintained his argument that the official data reflected the average food intake for the population and for the Australian Defence Services. Professor Sinclair agreed with the proposition that with a high level of physical activity more food was required; this did not necessarily mean greater amounts of meat and dairy products. Professor Sinclair was not able to provide a timeframe within which a preference for high fat foods might evolve. Professor Sinclair agreed that, while there was a definite genetic basis for the development of hyperlipidaemia, in his opinion, environmental factors outweigh genetic factors.
19. The Tribunal requested that Professor Sinclair provide a timeframe in which it was necessary to acquire a taste for various foods. He answered that this would be one year.
Dr Aubrey Pitt
20. Dr Pitt, consultant cardiologist, provided a report dated 29 September 2004 (Exhibit A3) based on documentary evidence available regarding Mr Scanlon’s state of health and the nature of his death. In his report Dr Pitt believed that the most likely cause of Mr Scanlon’s death was myocardial ischemia due to coronary artery disease. This conclusion was supported by statistical information that 50 per cent of sudden deaths occurring outside hospital are due to ischaemic heart disease, particularly myocardial infarction. In addition, the late veteran had well documented evidence of hyperlipidaemia and more recent cognitive deterioration, which was mentioned by the applicant and which supported the probability of atherosclerosis in the coronary vascular tree.
21. Dr Pitt had noted in the documentation that in 1988 a surgeon, Dr I. Wheatley, had examined Mr Scanlon prior to a surgical procedure and had noted a loud systolic bruit. Dr Pitt was unable to find any evidence to support a valvular disease in Mr Scanlon’s medical record from Dr Arter (Exhibit A4), but he had found it almost impossible to read these notes.
22. Dr Pitt noted that the only risk factor for ischaemic heart disease that Mr Scanlon appeared to suffer from was hyperlipidaemia. In his report Dr Pitt addressed the causes of hyperlipidaemia, namely it may arise from dietary factors but may also be due to a metabolic tendency on the part of an individual and occasionally be due to a major genetic abnormality which is associated with extremely high lipids levels and a strong family history (Exhibit A3). Taking into account Mrs Scanlon's statement regarding her husband's diet, and Professor Sinclair's opinion regarding that diet, Dr Pitt concluded that a reasonable hypothesis had been raised: stating that "Mr. Scanlon's death due to ischaemic heart disease could be related to factors arising from war service" (Exhibit A3).
23. In his evidence before the Tribunal, Dr Pitt adopted his report as true and correct.
24. At the commencement of the hearing the Tribunal had given the parties notice that the Tribunal had been able to decipher the clinical notes of Dr Arter, and, in particular, it had deciphered the entry of 2 March 1987, when Dr Arter recorded the presence of an apical systolic bruit on examination of the heart. Intermittently thereafter, Dr Arter had made notes regarding the bruit, which he initially queried as being of aortic or mitral valve origin, as being unchanged. By April 1997 Dr Arter was describing this bruit as being due to mitral incompetence. At no time was any evidence of cardiac failure recorded. Nor were any investigations performed to confirm the diagnosis of mitral incompetence; and quantify, if present, the degree of mitral valve leak.
25. The Tribunal informed Dr Pitt of these entries in Dr Arter’s clinical notes and sought his opinion as to whether mitral incompetence could have contributed to Mr Scanlon’s sudden death. Dr Pitt said that mitral incompetence can certainly be associated with arrhythmias of the heart, resulting in sudden death. However, he felt on the evidence before him that ischaemic heart disease was a more likely cause in Mr Scanlon’s case. Dr Pitt could not comment on the types of food Mr Scanlon was said to have preferred in his diet. He relied on the report of Professor Sinclair. He did, however, say that hyperlipidaemia could be due to metabolic factors quite distinct from a diet high in fats.
Captain John Macdonald
26. Captain Macdonald provided two reports dated 16 April 2005 and 25 July 2005, at the request of the respondent (Exhibit R2 and Exhibit R3). In his first report (Exhibit R2) Captain Macdonald reported that Mr Scanlon had joined the Australian Military Forces (Army) and served in Victoria from 25 March 1942 to 2 October 1942; at which time he was discharged as he was required in a reserved occupation. On 11 May 1943 the late Mr Scanlon joined the Royal Australian Navy Reserve, following which he spent several months in basic training, before being posted to HMAS Inverell in Brisbane on 21 December 1943. From 8 January 1944 to September 1944, HMAS Inverell was based in Darwin and the ship's duties were to escort convoys between Darwin and Thursday Island. In September 1944 HMAS Inverell was transferred to Fremantle in Western Australia and it remained there until May 1945, performing routine escort and patrol duties; and engaged in the training and exercising of United States and Royal Navy submarines. HMAS Inverell returned to Darwin on patrol duties between June 1945 and July 1945 and it was then sent to Morotai, continuing with mainly patrol duties until 15 August 1945. From December 1945 until 3 May 1946 HMAS Inverell was based in Brisbane.
27. Captain Macdonald outlined the service ration scale provided during the relevant periods, and the variations of the ration scale according to whether the ship was in a tropical or a temperate zone. The fat content of the diet in terms of animal fat in grams per day (based on a report entitled, Nutrient Analysis of Ration Scales – World War 2, Janine Lewis, July 1998) varied from 95.8gms per day during Mr Scanlon’s training period in Australia, to 131.8gms per day between July and December 1945, when he was serving in the Morotai and Borneo areas. At that time the civilian diet contained 122gms of animal fat per day. Despite the recommended animal fat content in the diet, there was some variation onboard HMAS Inverell, as this ship had no refrigeration, which limited the availability of fresh foods. When operating in the Torres Strait area, the presence of the United States forces in the area, with their superior supplies of fresh food, supplemented the diet provided by the Australian Army Services Corp. HMAS Inverell's Reports of Proceedings between June 1944 and August 1944 carries the comment that food of good quality had been made available from US Navy food stores. Examples of the foodstuffs available were detailed and included fresh fruit, fresh ham and bacon. The other foodstuffs appear to be similar except that fresh eggs were only occasionally available from the detail issue depot: i.e. on HMAS Inverell. HMAS Inverell's Report of Proceedings of October 1944 comments on the availability of fresh food which greatly benefited the ship's company.
28. Captain Macdonald had also been asked to comment on the availability of alcohol to naval personnel during the period of Mr Scanlon’s service. This was documented in his second report (Exhibit R3). He stated that routine beer issues were unknown in ships at sea; and the beer issue in harbour was two 750mls bottles per man per week. Obviously, while in harbour ship's personnel could access alcohol from local hotels. Rum was never served by the navy.
29. In his evidence to the Tribunal, Captain Macdonald confirmed his reports and the fact that there was variation in what the HMAS Inverell crew received in comparison to the set scale of rations. As fresh food was frequently not available, it was necessary to revert to the use of tinned food. This was particularly so when the ship was serving in the Darwin and Torres Strait areas. The diet in general, and the availability of fresh food, had improved when the Americans were present in the region between 1942 and 1944. After the Americans departed the area in mid‑1944, the naval diet was described as mediocre.
30. Under cross‑examination Captain Macdonald confirmed that between December 1943 and June 1944, Mr Scanlon would have had access to what was described as good food as provided by the US Navy. After August 1944, when HMAS Inverell was transferred to Fremantle, the diet onboard the ship would also have been of better quality.
Dr Beverley Wood
31. Dr Wood has been a practising dietitian for some 45 years and holds Bachelor and Masters degrees and a PhD in her field. She provided a lengthy written report dated 8 July 2005 (Exhibit R1), having interviewed Mrs Scanlon at some length, in the company of her daughter. Dr Wood made quite extensive calculations of estimated energy and macronutrient intake per day based on the following information:
· HMAS Corvette menu outline assessment;
· the post‑service through to the retirement period menu provided by Mrs Scanlon;
· serum lipid levels recorded from the late veteran over a period of nine years; and
· the Australian Bureau of Statistics national nutritional surveys and publications of Dr Ruth English and Ms Janine Lewis,
Dr Wood concluded that Mrs Scanlon had overestimated her husband's dietary intake in the post‑service period; that there was a total lack of information regarding the late veteran’s actual dietary intake in the pre‑service and service period; and that, accepting the elevated cholesterol but normal triglyceride levels reported, no conclusion could be reached about whether his dietary intake in the post‑service period was or was not related to Mr Scanlon’s war service.
32. Dr Wood was asked whether ready access to fruit and vegetables would affect one's attitude to eating meat, eggs and dairy products. Dr Wood said that people were likely to continue to eat what they were used to, but she could not say there was a direct relationship. The evidence had been that, as a schoolboy, the late Mr Scanlon had assisted with the deliveries of fruit and vegetables from his parents' shop. Dr Wood was asked if this would increase the energy demands on the individual. Dr Wood said, given that there was no knowledge regarding the weight of the deliveries or how often he performed these tasks, she could only comment that the late Mr Scanlon's weight at the time of enlistment was normal; and that, in the late 1930s, it was the custom to have eggs, meat and dairy products. Dr Wood also said that she had no idea how long it would take for somebody to acquire a preference or a taste for fatty food. Dr Wood agreed with Professor Sinclair's comment, that it was difficult to change an established food pattern. In the case of the late Mr Scanlon, given the lack of information, Dr Wood could only assume that he would fall within the average population studies, in particular in the 1936/1938 Bureau of Statistics surveys. She agreed that, during the war years, the food types and amounts, even the availability of some food types, may have been dictated by government policy; and that he probably followed the same pattern as the rest of the community. She believed that he probably had the same diet throughout his life except for the addition of alcohol after his discharge from the service. Dr Wood had been provided with photographs of the late Mr Scanlon by his wife: these included a wedding photograph and another taken at the age of 65. She had noted a slight increase in his weight with age. As she had not been provided with any estimate of the amount, or the size of the serving, of various food Mr Scanlon had eaten, she said an assessment was extremely difficult. Given that the late Mr Scanlon drank 40 to 50 gms of alcohol per day, it was Dr Wood's belief that he could not have had an excess of other nutrients and still have maintained his stable weight.
33. In her report Dr Wood stated that the late Mr Scanlon had worked for five years in a dairy, bringing home two pints of milk and cream on a daily basis. Dr Wood had obtained this information from Mrs Scanlon. However, as previously noted, this is in conflict with Mrs Scanlon evidence to the Tribunal, that Mr Scanlon only worked in the dairy for five months. Dr Wood doubted that she was incorrect in stating that his employment at the dairy was for five years.
34. In cross‑examination Dr Wood again stated that she had insufficient information to determine the late Mr Scanlon's pre‑service diet. In particular, a diet high in fruit and vegetables does not necessarily result in a lowered fat intake, as fruit, vegetables and cereal are low in calories. It would be necessary to eat a large volume of these nutrients to achieve the necessary energy levels. She commented that in order for vegetarians to maintain their energy levels they need to eat a large volume of non‑meat products. While Dr Wood accepted Professor Sinclair's opinion, that one could acquire a taste for animal fat, was reasonable, she could not support the opinion due to the lack of evidence regarding Mr Scanlon's pre‑service and service diet.
35. As Mrs Scanlon had said in evidence that on most weekends she and her husband had eaten barbequed foods, the Tribunal asked Dr Wood whether the fat content was lower in food cooked in this manner compared to the same food being grilled or prepared as a casserole, etc. Dr Wood said that the animal fat content would be reduced with this mode of cooking. Dr Wood also confirmed that the total animal fat content of the Australian diet has reduced progressively since the 1936/1938 National dietary survey.
DOCUMENTARY EVIDENCE
Transcript of the VRB Hearing regarding the late Veteran
Mr Francis Scanlon (Exhibit R4)
36. The VRB spoke with Mrs Scanlon regarding her husband's pre‑service diet. She admitted that she did not know a great deal about what he ate; but she supposed in those days, given his family lived above a fruit shop, that they had a lot of vegetables and so forth. She said that she was unaware of any family history of cholesterol‑related problems, in particular ischaemic heart disease; but she was aware that her late mother‑in‑law had been in excellent health. She stated she had cooked whatever her husband wanted and that he had always had "sort of a good breakfast" (Exhibit R4 p10). In their early years, their children had consumed the same diet. She said that her husband had taken a cut lunch to work which consisted of sandwiches, but on most days he came home for lunch, when they had soup or whatever was there "I suppose". Mrs Scanlon said that she was unaware as to when her husband was diagnosed with having elevated cholesterol levels, but was certain that he had never been advised to change his diet. She also confirmed that his weight had remained stable throughout their married life; although when they first met she thought he weighed about 14 stone. Mrs Scanlon could not recall when her husband started using the cholesterol lowering drug Zocor.
37. The VRB examined the pathology results of cholesterol triglyceride HDL and LDL levels between 1982 and 2001, noting that while in the early stages and within the normal range advocated in 1982 and 1988, these levels were, by today's standards, elevated. By 2001, when the level of cholesterol, in particular, had dropped to less than 5.5, the late Mr Scanlon's level was 4.6. In its decision (T2), the VRB concluded that, while a hypothesis had been raised, it was not a reasonable hypothesis given the lack of evidence regarding the veteran’s pre‑service diet, his service diet and his diet for the first three years after his service. Given this lack of information, the VRB could not point to a causal relationship between an increase in animal fat intake on service and the continuation of increased intake over the following 56 years.
Clinical notes of Dr Arter (Exhibit A4)
38. Unfortunately, Dr Arter has now retired and his opinion was not sought. His clinical notes have been referred to elsewhere in this decision, and they do verify the existence of hyperlipidaemia; cardiovascular diseases, as evidenced by some cognitive deterioration, and the presence of an apical systolic murmur consistent with the diagnosis of mitral incompetence. The notes do not contain any evidence of emphysema (chronic obstructive airways disease) in terms of respiratory function tests, although this was the subject, or the basis for, of Mrs Scanlon's first application for a widow’s pension. Dr Arter did not see the late veteran at the time of his death; nor did he view the body after his death. The diagnoses entered on the Death Certificate, under cause of death, are clinical opinions based on the earlier obtained history.
THE T‑DOCUMENTS
39. The T‑documents contain the data relating to Mrs Scanlon's initial application for widows pension based on the diagnosis of emphysema and they also contain the results of haematological tests for lipid levels which are not contained in Dr Arter's clinical notes. These have been referred to in Dr Wood's reports.
RELEVANT LEGISLATION
40. As the late veteran had eligible service, s 121(1) and s 121(3) of the Veterans' Entitlements Act 1986 (the Act) are attracted. As Mrs Scanlon's claim was lodged after 1 June 1994, s 120A is also relevant. The standard of proof with respect to the operational service is that of a reasonable hypothesis. The relevant Statement of Principles concerning ischaemic heart disease is Instrument 53 of 2003, as amended by Instrument 9 of 2004, which states that factors raising a reasonable hypothesis to connect ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service are:
5. …
(d)the presence of dyslipidaemia before the clinical onset of ischaemic heart disease;
…
(u)the presence of dyslipidaemia before the clinical worsening of ischaemic heart disease;
The Instrument defines dyslipidaemia as:
“dyslipidaemia” generally means evidence of a persistently abnormal lipid profile after the accurate evaluation of serum lipids following a 12 hour overnight fast, and estimated on a minimum of two occasions as a:
(a)total serum cholesterol level greater than or equal to 5.5 mmol/L; or
(b)fasting serum triglyceride level greater than or equal to 2.0 mmol/L together with high density lipoprotein cholesterol level less than 0.9 mmol/L;
41. In respect of the reasonable hypothesis standard of proof, the Tribunal is required to follow the process set out by the Full Court of the Federal Court of Australia in Repatriation Commission v. Deledio (1998) 83 FCR 82 at 97 where the Court stated:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. P
SUBMISSIONS
42. Mr G. Chancellor submitted that Mr Scanlon's diet had changed significantly from his pre‑service diet which was predominantly fruit, vegetables and cereals with very little meat to a post‑service diet high in animal fats. This change in diet was attributable to his operational service, particularly from late‑1943 to mid‑1944, when the ship on which he served, HMAS Inverell, accessed food provisions from the United States Navy, which included bacon, ham, eggs and a high animal fat content. This was in contrast to the Australian Navy diet which was, at the time, mainly poor quality tin food. The hypothesis raised was that this dietary change in service led to a preference for diet high in animal fat, which in turn led to hyperlipidaemia in the form of raised cholesterol levels; and this ultimately led to the late veteran’s sudden death; which, on the balance of probabilities, was due to ischaemic heart disease.
43. Mr Chancellor argued that, despite the evidence that the civilian and the service diets were almost identical; and the service diet was based on the then civilian diet, the late veteran's circumstances differed to the extent that his pre‑war diet had been low in animal fats and his diet in the relevant six‑month period was high in chocolate and animal fat substances; and perhaps later, while in Fremantle, US Navy food was also available. Thus, the late veteran’s dietary history could not be considered average as defined by the civilian population's diet. Hyperlipidaemia or dyslipaedemia had been substantiated on at least five occasions and Dr Pitt had been of the opinion that the likely cause of the late veteran’s sudden death was myocardial ischaemia related to ischaemic heart disease, i.e. atheroma. Mr Chancellor kindly reminded the Tribunal that Deledio was a case based on similar facts of a change in diet, resulting in an increased animal fat intake, which ultimately led to the death of Mr Deledio and the claim by his widow.
44. Mr Herman submitted that a reasonable hypothesis was not raised on the facts before the Tribunal. He relied upon the authority of Repatriation Commission v Bey (1997) 79 FCR 364 as to what was a reasonable hypothesis and, in particular, the reference to the decision in East v Repatriation Commission (1987) 16 FCR 517, where the Full Court said (at 534):
…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 upon the balance of probabilities.
Mr Herman quoted the Full Court in Bey (at 372):
Any doubt that attends the status of East as a corrective exposition of the law relating to s 120(3) should be dispelled. This Court re‑states the position established by East, Bushell and Byrnes. A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even thought not proved upon the balance of probabilities. That understanding of the expression gives force to the word "reasonable", is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority.
Mr Herman contended that the hypothesis raised was purely speculative and based on assumptions. Mr Herman contended that Mrs Scanlon's evidence was inconsistent on several points. He also noted that the late veteran’s weight was steady throughout the entire period under consideration.
45. Mr Herman noted that Mrs Scanlon had had difficulty recalling her husband’s exact diet and had contradicted herself on several occasions. Mrs Scanlon had no knowledge of her husband's diet before she met him, in 1947; and she had been uncertain as to the period he had worked in the dairy. Mrs Scanlon's evidence that her husband weighed 14½ stone when she met him was not consistent with her comment that his weight was unchanged throughout their marriage, and that his clothes size did not change. In addition, photographs taken at their wedding and at his 65th birthday did not reveal any evidence that he was overweight. Mr Herman submitted that there was no evidence presented to the Tribunal as to the ratio of foods ingested or the quantities of each food type. He pointed out that Professor Sinclair had agreed that his comments were based on several assumptions. While Mr Scanlon’s family had run a fruit and vegetable shop, there was nothing to indicate they were impoverished in anyway; or that his diet was primarily fruit and vegetables. The latter was an assumption by Mrs Scanlon.
46. Mr Herman submitted that Dr Pitt's evidence was that hyperlipidaemia may be due to dietary factors or due to individual metabolic status. There was no evidence presented for or against the latter proposition with respect to Mr Scanlon.
47. Mr Herman submitted that the correct and preferable decision was that no reasonable hypothesis had been raised and that the application should be refused.
THE TRIBUNALS DELIBERATIONS
48. The Tribunal finds on the balance of probabilities that the applicant's husband, Francis Scanlon, died on 27 September 2002, from an acute myocardial event, which was either a myocardial infarct or a severe arrhythmia (Cook v Repatriation Commission (1997) 45 ALD 205). From 1982, Mr Scanlon had documented hyper‑cholesterolemia. While many of the serum lipid levels in the 1980s were within the then normal parameters, these parameters have changed with time. The Tribunal notes that, at all times, Mr Scanlon’s low density lypo‑protein to high density lypo‑protein ratio (LDH/HDL) was normal and that such levels are associated with protective effect against the development of ischaemic heart disease. Dr Pitt advised that, on a statistical basis, the sudden death of the veteran was most probably due to ischaemic heart disease.
49. .The applicant has raised the hypothesis that Mr Scanlon's operational service led to a dietary change in the form of a preference for animal fats compared with his postulated pre‑service diet of high fruit and vegetables and low animal fat intake. The applicant submitted this preference continued into Mr Scanlon’s life after his service, resulting in dyslipaedemia and consequent ischaemic heart disease: the latter becoming clinically evident only at the time of his sudden death.
50. The applicant has relied on Instrument 53 of 2003, as amended by Instrument 9 of 2004, concerning ischaemic heart disease, wherein the Repatriation Medical Authority has delineated the factors which must be present at a minimum before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person's relevant service. The applicant has identified factors 5(d) and 5(u).
51. Factor 5(d) is the presence of dyslipidaemia before the clinical onset of ischaemic heart disease. Factor 5(u) is not relevant to the matter before the Tribunal as it only applies where the person's ischaemic heart disease was suffered or contracted before or during the person's relevant service.
52. Instrument 53 of 2003 defines dyslipidaemia as
generally means evidence of a persistently abnormal lipid profile after the accurate evaluation of serum lipids following a 12 hour overnight fast, and estimated on a minimum of two occasions as a:
(a)total serum cholesterol level greater than or equal to 5.5 mmol/L; or
(b)fasting serum triglyceride level greater than or equal to 2.0 mmol/L together with high density lipoprotein cholesterol level less than 0.9 mmol/L;
53. Having examined all the material before it in accordance with s 120(3), and considered the effect of s 119 of the Act, the Tribunal is unable to conclude that the material points to a causal relationship between Mr Scanlon’s dyslipidaemia and his operational service. The hypothesis raised is thus unreasonable.
54. The applicant met her late husband in 1947 and they married in 1949. She has no firsthand knowledge of his pre‑service diet, but has supposed (Exhibit R4) that as the late Mr Scanlon's parents owned and operated a green grocery, he would have eaten more fruit and vegetables and less animal fat than the usual civilian population. The applicant's evidence before the VRB and this Tribunal has been inconsistent at times, and she was unable to state the size or volume of foodstuffs in any serve she prepared for her husband.
55. This lack of detail about Mr Scanlon’s diet before his service has prevented Dr Wood providing an accurate estimation of "the estimated energy and macronutrient composition" of any pre‑service diet, and led to her reliance on the 1936/1938 Australian Bureau of Statistics national nutritional survey figures; with the result that there was no evidence of an increased fat intake during Mr Scanlon’s period of service, and it is possible there was a reduction. (The civilian diet in 1936/1938 contained 145gms per day of animal fat and the navy’s diet, in the relevant period, 122 to 154gms per day; with the navy service diet or wartime Ration Scales being based on the civilian dietary intake with some allowances made for climatic zones of service.)
56. Dr Wood's estimation of the late veteran’s daily animal fat intake after his service (based on information provided by the applicant, found by Dr Wood to be an over‑estimation) was 132gms.
57. Professor Sinclair did not attempt to quantify Mr Scanlon’s animal fat intake at any time. However, he addressed the concepts of preferred foodstuffs, establishing a dietary pattern that was difficult to reverse; and the relationship between a high animal fat intake and the development of dyslipaedemia. Professor Sinclair did address Mr Scanlon’s diet after his service in terms of the type of food eaten which, he said, was high in amounts of saturated fat.
58. The applicant contends that Mr Scanlon was not an average citizen and that he did not therefore fit within the national survey figures. There is no material before the Tribunal to support this argument, only supposition. In Bey, the Full Court of the Federal Court restated the position established by East, Bushell and Byrnes where the Court said (at 372‑373):
A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”,….
59. The material in this matter merely points to a possibility that is not substantiated by a full examination of the material.
60. The applicant had directed the Tribunal to the facts of Deledio, as it involved a claim based on an increased intake of animal fats after the period of service, as a result of the service diet. The Tribunal distinguishes the facts of Deledio in that the applicant in that matter had married the deceased, Mr Deledio, two years before he had enlisted and three years before his operational service; and therefore the applicant had firsthand knowledge of Mr Deledio’s diet before his service.
61. The material before the Tribunal does not support a causal relationship between the late veteran’s service and the development, 35 years later, of dyslipaedemia, leading to ischaemic heart disease or clinical onset in September 2002 in the form of sudden death. The hypothesis raised is not reasonable and does not satisfy the third step in Deledio.
62. The Tribunal affirms the decision under review.
I certify that the sixty‑two [62] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 22 August 2005
Date of Decision: 21 October 2005
Council for the applicant: Mr G. Chancellor
Solicitor for the applicant: Williams WinterAdvocate for the respondent: Mr K. Herman
Solicitor for the respondent: Department of Veterans’ Affairs
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