Thom and Repatriation Commission

[2005] AATA 265

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 265

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2004/913

)
Re		ALMA MARY JOSEPHINE THOM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal       Dr J D Campbell, Member

Date              24 March 2005

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Dr J D Campbell

Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claimed disease – kind of death – relationship to service – claim denied – the decision under review is affirmed.

Veterans’ Entitlement Act 1986, sections 14, 120, 120A

Statement of Principles Instrument No 84 of 1999 as amended by Instrument No 69 of 2002

Repatriation Commission v Cooke (1998) 160 ALR 17

Benjamin v Repatriation Commission (2001) 70 ALD 622

Hancock v Repatriation Commission [2003] FCA 74

REASONS FOR DECISION

24 March 2005  Dr J D Campbell, Member

1. In this matter Mrs Alma Thom seeks a review of the decision of the Repatriation Commission dated 3 November 2003 which determined that the death of her husband, Mr George Thom was not related to his service and that a war widow’s pension is therefore not payable.  This decision had been reviewed by the Veteran’s Review Board and affirmed in a decision dated 13 May 2004.

Background

1. Mr Thom served in the Royal Australian Air Force from 8 January 1940 until 12 November 1945.  The late veteran saw service with Number 453 squadron in Malaya/Singapore in 1941 and was shot down, with the crew landing behind enemy lines and making it to safety over a period of six or seven days to his squadron.  The late veteran escaped to Australia, in early 1942 and in early 1945 he was posted to Number 5 squadron on Bouganville, where again he was shot down.  The late veteran returned to civilian life in November 1945, working initially as a motor mechanic and later as an engineer for British Motor Corporation, where he remained until his retirement in 1985.  The late veteran died on 18 June 1997. 

2. Mrs Thom has previously lodged a claim in respect of the death of the late veteran.  This was rejected by the Repatriation Commission on 26 February 1998.  This decision was reviewed and affirmed by the Veterans’ Review Board on 25 November 1998 and by the Administrative Appeals Tribunal on 5 December 2000, with material relating to those decisions being included in the Tribunal documents for the current hearing.

3. The Tribunal also notes a further claim was made by Mrs Thom on 3 July 2001, with a request for a review under section 31 being made on 15 August 2002.

Issues

1. The relevant issues in this matter are:

(a)      From what diseases/injuries/condition did the late veteran suffer prior to his          death; and

(b)      What kind of death did the late veteran experience; and

(c)       Was the kind of death suffered by the late veteran arose out of or was       attributable to his service

Decision

1. For the reasons stated later in the decision, I conclude that the late veteran suffered from metastatic neoplasm of the prostate.  Further this was the kind of death suffered by the late veteran.  I find that this disease, namely metastatic neoplasm of the prostate did not arise from and/or be attributed to his period of operational service from 8 January 1940 until 12 November 1945.  In such circumstances I affirm the decision under review that the death of the late veteran was not war-caused and that Mrs Thom does not qualify for a widow’s pension.

Evidence

1. In evidence before the Tribunal during a short hearing Mrs Thom and her representative Mr Rymer OAM detailed the following material:

(a)      The late veteran had an arduous and hazardous period of service, during which he was shot down on two occasions, and escaped from Singapore in       early 1942. 

(b)      The weight of the late veteran varied:

(1)      15 November 1939 – 142 lbs       (Enlistment)

(2)      19 May 1941             - 154 lbs      (Prior to overseas service)

(3)      1941   –                    loss of weight after being shot down   in Malaya/Singapore

(4)      20 October 1945     – 150 lbs       (Madang prior to discharge)

(5)      1962  –  210 lbs

(6)      1980  –  224 lbs

(7)      After 1980                –  gradual loss of weight

(8)      1997  – 151 lbs

(c)       That the late veteran suffered from a number of conditions which included a         smoking history, bladder trouble, a nervous condition (probably post traumatic         stress disorder), severe headaches and a heart condition.

(d)      That it was difficult to understand that in the light of the late veteran’s service       and the difficulties he faced, together with the weight gain history over time,            that his death from carcinoma of the prostate should be treated any differently    from those with operational service whose prostatic carcinoma was found to            be war-caused in the test cases heard and decided in Queensland by the         Administrative Appeals Tribunal.

(e)      That after the late veteran left the Air Force he had a significant cough for a          number of years, which was helped by a tonsillectomy in the late seventies.      Further that he suffered from blinding headaches which Mrs Thom associated          with a head injury which occurred during service.  During such attacks Mrs            Thom would notice that his face would change colour to pale yellow.

(f)       Mrs Thom also related a period in 1980 (approximately) in which Mr Thom            spent a weekend in bed some two months apart, this being an unusual event.        On a third occasion with a similar stomach condition he consulted his general      practitioner and received advice from an alternate practitioner, who considered he may have had a heart attack some nine months earlier or            alternatively some cancer cells in his body.  Mrs Thom records that after a            period of 12 months he was a new man, had ceased smoking and that he           lived for 17 years after that event, with no ongoing maintenance therapy.    Mrs Thom also noted that he developed his prostatic carcinoma in 1996.

Consideration and Findings

1. In addressing the issues at the heart of this matter I acknowledge that little new evidence was forthcoming during the hearing.  Of necessity I must refer to the material in evidence.  In relation to conditions present in the veteran adjacent to his death, I make the following observations:

(a)      Clinical notes of Dr Whistler

CT scan abdomen pelvis – 13 June 1996

The prostrate gland is diffusely enlarged measuring approximately 58 x 49 mms in AP and transverse dimension.  There is a diffuse increase in density throughout the regional bony structures, the appearances are highly suggestive of wide spread metastatic disease most likely from prostate primary.....could also be due to other primary neoplastic process including myeloproliferative disease such as lymphoma.

(c)       Clinical notes of Dr Hanan

Histopathology report dated 30 July 1996

TUR prostate – high grade adenocarcinoma

(c)       Dr Lyons

Performed Bone scan – 28 November 1996

The scan findings are consistent with diffuse malignant infiltration and specifically there is extensive infiltration of the posterior ribs and thoracic spine.

(d)      Death Certificate

Dr Jones – 18 June 1997

Cause of death:       (a) Hypostatic pneumonia (days)

(b) Carcinoma of prostate with boney metastases 1 year.

(e)      Opinion as to cause of death

Professor Levi – 13 July 2000

Accordingly I therefore confirm that I consider the diagnosis of metastatic carcinoma of the prostate to be the cause of Mr Thom’s death with final hypostatic pneumonia as the actual terminal event, …..as stated above I consider Mr Thom had one malignancy, namely metastatic carcinoma of the prostrate.

1. In noting the findings of the Federal Court in Repatriation Commission vCooke (1998) 160 ALR 17 and Benjamin v Repatriation Commission (2001) 70 ALD 62L, I acknowledge that the standard of proof is one of reasonable satisfaction pursuant to section 120(4) of the Act when the issue to be determined is a condition, injury or disease suffered by a veteran and similarly as to what kind of death the veteran suffered (Hancock v Repatriation Commission [2003] FCA 711)). In the matter I am reasonably satisfied that the late veteran suffered from the disease of metastatic carcinoma of the prostate prior to his death. In so finding I rely on the clinical evidence and the opinion of Professor Levi, as to both the clinical onset and disease suffered by the late veteran.

2. In considering the kind of disease suffered by the late veteran I again note the clinical evidence detailed and the opinion of Professor Levi.  This is my finding on the balance of probabilities after consideration of such evidence that the kind of death suffered by the late veteran was one in which the late veteran’s hypostatic pneumonia was contributed to by his metastatic carcinoma of the prostate.  In short, the hypostatic pneumonia was encompassed within the death from a malignant neoplasm of the prostate.

3. In addressing the issue of whether the cause of death was war-caused, I note and find that as the late veteran’s service was operational service, the standard of proof is one of reasonable hypothesis pursuant to section 120(1) and (3) of the Act.  I further note that the relevant Statement of Principles (SoP) in this matter is Instrument No 84 of 1999 as amended by Instrument No 69 of 2002 concerning malignant neoplasm of the prostate. 

4. The relevant factor to be considered in this matter is factor 5(c) which states:

   “(c)     increasing animal fat consumption by at least 40 per cent and to at least 70         gm/day for at least 20 years before the clinical onset of malignant neoplasm       of the prostate.

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

   (i)        meat, other flesh or offal from animals (including birds but excluding                   seafood).

   (ii)       dairy products, or

   (iii)      eggs from birds.”

5. I note that on 21 September 2000, Ms Shaw, a consultant clinician interviewed Mrs Thom to assist her in detailing her late husband’s animal fat consumption.  Ms Shaw concluded:

   “Unfortunately Mrs Thom’s recall of the necessary details required to calculate her late husband’s animal fat consumption at any of the required stages of life is very poor and I do not have the necessary information to do this for you.”

1. In reaching such an opinion Ms Shaw noted :

(a)      Mrs Thom had little knowledge of Mr Thom’s previous eating habits in that            they were not married, did not eat together, worked together at a garage but    did not eat together at lunch and that she did not have an opportunity to talk to    his mother about his eating habits at home as she died during the war.

(b)      No idea as to what he ate during the war, apart from bully beef.

(c)       That while after the war Mrs Thom could detail Mr Thom’s preferences for food, she was unable to quantify the amount.  Further in the 15 years he      worked as a supervisor for British Motor Corporation he was away from home      for most of the week, up to three weeks at a time.  Nevertheless Mrs Thom     was able to state that he had a large appetite, loved everything “fatty”,            frequently had second helpings, large servings of meat with fat, fish and     chips, cheese, apple pie and ice cream.

(d)      When their daughter was 13 years old she required major surgery, and at this      point in time Mrs Thom became interested in holistic medicine and became more aware of sensible eating habits – an issue she was more able to control as far as Mr Thom’s dietary habits after his retirement.

1. On 7 October 2002 Mrs Thom completed a departmental dietary questionnaire, which had been developed to obtain dietary information on animal fat intake of veterans for a series of test cases concerning prostate cancer in Queensland.  In this document completed by Mrs Thom I note the following:

(a)      Mrs Thom’s date of birth is 27 April 1923.

(b)      Unable to provide information on Mr Thom’s personal eating habits, although       did complete the schedule relating to same.

(c)       Completed the post-war dietary schedule to the best of her ability.

1. On 10 January 2003 Dr Ruth English, Nutrition Consultant, detailed in a report her analysis of the later veteran’s dietary pattern in relation to the consumption of animal fat.

(a)      Pre-war:       In the absence of any particular dietary information relating to          the late veteran, Dr English concluded that the daily animal fat level intake, based on the criteria contained in the definition of the SoP Instrument No 69     of 2002 was 126.0 grams.  Such a figure was derived from 1936-38 national        dietary survey with the daily consumption of animal fat being adjusted to take    account of the definition of animal fat in SoP Instrument No 69 of 2002.

(b)      War:              Pacific ration scale for the Pacific Islands and New Guinea    implemented from February 1944 provided a daily animal fat intake of 132.6      grams.

(c)       Post war:      Post-war intake was calculated at 170.3 grams of animal fat per      day.

1. Dr English also stated that Mrs Thom’s return was invalid for the following reasons:

(a)      The separately reported daily eating pattern does not reflect the likely intake        of animal fat according to the food frequency data as indicated by:

1. No reference in the daily eating pattern for the inclusion of cheese and      chocolate, although they are listed in the food frequency record as consumed two to four times each day.

2. A serving of meat/fish per week are listed in the food frequency pattern      compared to only one daily main meat serving with lunch time sandwiches       and some leftovers.

3. Such inconsistencies between the daily eating pattern and the food frequency      indicate that the calculated animal fat intake of 170.3 grams per day is          considerably higher than indicated by the information given in the daily eating    pattern.

1. Dr English concluded:

(a)      that the increase in daily animal fat intake pursuant to SoP Instrument No 89        of 1999 as amended by Instrument No 69 of 2002 was 35.2 per cent (126         grams to 170.93 grams per day).

(b)      that the late veteran had consumed 70 grams of animal fat per day.

(c)       increase in animal fat consumption was not due to service.

1. I have been particular in detailing the opinions and material as I have done.  I am not surprised that Mrs Thom at the age of 79 had some difficulty in working her way through the dietary survey in relation to Mr Thom’s dietary habits.  I would expect that the administration of such questionnaires be undertaken in such a manner that acknowledges the ages of an Applicant and any difficulty about which they have been forewarned.  In this matter the Respondent was forewarned of Mrs Thom’s difficulty with recall (Ms Shaw’s report of 12 September 2000).  I am unaware of any special guidance given to Mrs Thom in completing the questionnaire, so I am not surprised with the conclusion drawn by Dr English that the dietary questionnaire completed by Mrs Thom was considered to be invalid.

2. In addressing the issue of causation, I observe that there is material pointing to a hypothesis linking the late veteran’s consumption of animal fat with his malignant neoplasm of the prostate.

3. In noting again that there is a SoP concerning malignant neoplasm of the prostate, namely Instrument No 84 of 1999 as amended by Instrument 19 of 2002, I observe that factor 50C is the factor upon which the Applicant relies to tie consumption of animal fat with malignant neoplasm of the prostate.

4. I acknowledge that there is material pointing to a daily consumption of at least 70 grams of animal fat for 20 years prior to the clinical onset of the malignant neoplasm of the prostate.  On the evidence and material before me, I am unable to point to material which would demonstrate an increase of animal fat consumption on a daily basis by 40 per cent.  In so stating I am alluding to material which would point to the veteran’s pre-war daily consumption of animal fat being 126 grams; his war consumption of animal fat of being 132.6 grams per day and his post-war consumption of animal fat being 170.3 grams per day.  Such material points to an increase in daily fat consumption of 35 per cent.

5. In the absence of material pointing to an increase of daily animal fat intake by 40 per cent, I am not satisfied that the hypothesis postulated is consistent with the template detailed within factor 5(c) of SoP Instrument No 84 of 1999 as amended by Instrument No 69 of 2002.  In such circumstances I deem the hypothesis not to be a reasonable hypothesis.  In the absence of other material linking the late veteran’s death from metastatic carcinoma of the prostate with his service, the claim must fail.

6. I affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed:         Neil Glaser
  Associate

Date of Hearing  28 January 2005
Date of Decision  24 March 2005
Representative for the Applicant    Mr Doug Rymer OAM
Solicitor for the Respondent          Mr Adam Halonkin