Tina Trinder and Repatriation Commission

[2015] AATA 230

[2015] AATA  230

Division	VETERANS' APPEALS DIVISION
File Number	2013/3868; 2013/5262
Re	Tina Trinder
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Ms N Isenberg, Senior Member
Date	17 April 2015
Place	Sydney

The decisions under review are affirmed.

........................[SGD]................................................

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that veteran’s death from metastatic prostate cancer was war-caused – consideration of Statement of Principles – decisions under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 68, 120(4), 196A, 196B(2), (14)

Statement of Principles Concerning Malignant Neoplasm of the Prostate Instrument No. 29 of 2005 cl 5(a)

CASES

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Keeley (2000) 98 FCR 108

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115

REASONS FOR DECISION

Ms N Isenberg, Senior Member

17 April 2015

The decisions under review are firstly the decision of the Repatriation Commission dated 5 April 2012, as affirmed by the Veterans’ Review Board (“the VRB”) that refused the late Robert Trinder’s claim in relation to malignant neoplasm of the prostate and secondly the subsequent claim of his widow, the applicant in this matter, that the death of her husband was service related.

ISSUE BEFORE THE TRIBUNAL

1. The issue to be considered by the Tribunal is whether the veteran’s malignant neoplasm of the prostate and his “kind of death” was war-caused.

   BACKGROUND

2. Mr Robert Trinder (“the veteran”) served in the Royal Australian Army from 18 June 1980 to 26 February 1989. That service was “defence service” as defined in the Veterans’ Entitlements Act 1986 (“the Act”).[1] 

   [1] Veterans' Entitlements Act 1986 (Cth) s 68.

3. The veteran passed away on 7 July 2012. There was no dispute that the cause of death was metastatic prostate cancer. The applicant claimed that her late husband increased his animal fat consumption during service because of the nature of the food made available and therefore he became used to that type of diet and continued the habit following his discharge.

4. Subsection 120(4) of the Act applies and I am required to decide all relevant matters to my reasonable satisfaction. This means that I must decide whether, on the balance of probabilities, his death was defence-caused.

   LEGISLATIVE BACKGROUND

5. The Repatriation Medical Authority (“RMA”) was established under s 196A of the Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (“SoP”).[2] The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

   [2] Veterans' Entitlements Act 1986 (Cth) s 196B.

   CONSIDERATION

6. The SoP Concerning Malignant Neoplasm of the Prostate is Instrument No. 54 of 2014, unless the SoP at the date of the decision under review is more favourable.[3] There is only one factor in the current SoP and it is not relevant to the veteran’s circumstances, so I considered SoP No. 29 of 2005[4] (as amended) as the relevant SoP.  The applicant relied on factor 5(a) as follows:

   increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least ten years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.[5]

   [3] Repatriation Commission v Gorton [2001] FCA 1194; Repatriation Commission v Keeley (2000) 98 FCR 108.

   [4] Statement of Principles Concerning Malignant Neoplasm of the Prostate Instrument No. 29 of 2005

   [5] Ibid cl 5(a).

7. The veteran was diagnosed with malignant neoplasm of the prostate in 2008. Therefore the relevant 25 year period was from 1983. 

8. In summary, the applicant claimed that her husband enjoyed “Army” cooking so much that he changed his dietary habits because of it, and the applicant relied on the 10 years from 1983 to 1993.  

9. In particular the applicant relied on the report of 19 August 2014 of dietician Dr Diane Volker which concluded:

   [The veteran’s] animal fat consumption increased [from 97g] while he was in service to 150g animal fat. In the post-service time frame, the late veteran's animal fat consumption increased further to 155g of animal fat. This represents an increase from pre-service to post-service of 58g of animal fat and 60%. 

10. The applicant gave evidence as did dieticians, Dr Volker and Dr Mann, who gave their evidence concurrently and who had both provided reports.  

    Diet prior to service

11. The applicant met her husband in November 1986 and they married in April 1988.  Consequently her evidence in relation to his pre-service diet relied on her recollection of what she had been told by her husband. There was no independent evidence of his diet.

12. The veteran was one of 11 children, growing up in the post war years. The father, according to the applicant, had a “basic job” and the mother never worked. Money was tight, and servings of meat were small but with large servings of vegetables. Her husband told her he would sometimes give up his share of food for his siblings. She said she met his parents in 1987 and the “baked dinner” was very small; they had to stop for pizza on the way home.

13. The applicant’s evidence was that prior to enlistment her husband did not have bacon and eggs for breakfast. There was powdered milk for the cereal as well as toast and jam.  There was a roast once a week but main courses were generally stews, meatloaf, soup and other inexpensive meals. There were minimal deserts and fruit was too expensive. 

14. The veteran had married his first wife in July 1979, prior to his enlisting, and they divorced in July 1986. From about 1971 when he was about 18, he worked for about 5 years as a delivery driver for a Laundromat, and then about 3 years as a crane driver. It is likely that he had an income and, given the size of his own family, was likely to be living with his wife (and her 2 children) in their own home. There was no evidence of the veteran’s diet during those years and it may have differed to the diet he consumed in his parents’ home; the veteran likely had his own choice of food and meals. 

15. The applicant provided a dietary survey as to how her husband would have eaten pre-service. However, by her own description, the dietary survey related to when he was younger and living with his parents. By the time he enlisted he was almost 27 years of age, so, to the extent that his pre-service diet relies on his intake during his youth, it is unreliable.

16. Some indication of the unsatisfactory nature of the evidence of his pre-service diet is in the differing views as to the pre-service diet estimated by dieticians Drs Volker and Mann. Dr Volker used the standard population intake of the time, based on research, to calculate the veteran as having a daily consumption of 97g of animal fat at that time. By contrast Dr Mann estimated that on the basis of the applicant’s dietary survey, Mr Trinder had an intake of 1536kCal/day and an animal fat intake of 85.0g/day. 

17. Furthermore, Dr Mann was of the view that as Mr Trinder’s BMI on enlisting was 21.2, that is, within the normal weight range, his food intake could not, prior to enlisting, have been at the low level indicated by the applicant. Mr Trinder would, on Dr Mann’s calculations, have needed twice the estimated amount of food to sustain good health and maintain weight. 

18. The applicant’s recollection of what she had been told by her husband about his pre-service food intake was demonstrably unreliable. While Dr Volker’s approach may be more reliable in general terms, it does not reflect the harsh conditions in which Mr Trinder grew up. Similarly, if the applicant’s account was unreliable in respect of one aspect of her evidence, the balance of her evidence must also be viewed with some caution.    

    Diet during service

19. From their conversations before he died the veteran told the applicant that his Army diet was far better than his diet prior to enlistment insofar as the quantity of food had increased. It is unclear if this included the estimated seven years he lived independently with his first wife. 

20. The applicant only saw the veteran a few times a week after they met; he lived on base, and she, with her parents. They lived together from about March 1986. She would cook steak and vegetables, as he was used to eating on base. He particularly liked steak and vegetables and two to four slices of bread. No fat was removed in the cooking. He was also fond of takeaways.

21. When she made sandwiches for his lunch, four to five times a week, they would contain leftover meat or eggs and bacon. 

22. If he was home she would make a cooked breakfast of meat or bacon with eggs, as well as cereal beforehand. About three times a week he stayed on base and ate at the mess. He spoke of having bacon and eggs for breakfast.

23. The applicant also relied on the statement of Garry Lee dated 12 May 2014. Mr Lee served in the Australian Army Catering Corps for 23 years between March 1970 and June 1993. Mr Lee wrote:

    In respect of animal fats type of products we prepared Beef, Lamb, Pork, Bacon, chicken, butter and lard. These were provided in basic cuts and in some cases required some trimming of fat. Generally fat was retained on the cuts as it provided taste and moister [sic] during the cooking process.

    During the mid 1970's we went self service which was supervised by a cook oversighting what was taken on a plate. This was for the main meal element and quantity of meat items.

    Generally we catered for 150 grams of meat per serve (cooked weight) which was considered ample. Up to 200 grams was allowed at the discretion of the catering staff

    It is my experience from observations that the physique of the diner did not necessarily reflect on the quantity of food they could eat. It was common for diners to consume two full meals when they obtained seconds.

    There were no restrictions or supervision on the amount of bread slices and condiments such as margarine or butter.

    My experience is that the meals we service [sic] during the 1970’s – 1980’s were nutritional wholesome and what the soldier wanted in quantity and style regardless of the guidelines we followed.

    On reflection the diet we followed is vastly different to what I would recommend today in respect of health eating

24. He provided sample menus with low fat options clearly marked. Mr Lee was not called to give evidence. It is clear though, that an important element of his account of mess arrangements was that from the mid-1970s there was self-service. Although catering quantities were in accordance with guidelines, “self-service” would suggest that the type and quantity of food an individual put on their plate was entirely a matter for them, as was a decision to partake of “seconds”. Mr Lee’s evidence was of choice and of meals that were nutritionally wholesome. Doctors Mann and Volker agreed that there were healthy choices and that it was a matter of personal preference as to what selection was made, as in any cafeteria.

25. The doctors agreed that the veteran’s diet during and post service was high in fat and calories. Dr Mann observed though that on discharge the veteran had a BMI of 22.6, which is in the healthy range. If he had consumed the quantity claimed by the applicant he would have been consuming more than 1000 calories a day in excess of his daily requirement. 

26. Both doctors agreed that one explanation for the veteran’s increase in weight during service could have been muscle bulk. They also agreed that his diet was not uncommon.

    Diet post service

27. After the veteran left the Army in 1988 he worked at BHP as a labourer. He often worked afternoon or night shifts. The applicant would pack him a meal consisting of meat or cheese sandwiches or stew or pizza. He would generally get his own breakfast of Weetbix but about three times a week would have a cooked breakfast of bacon and eggs, or two toasted sandwiches with meat or cheese. He had less bacon and eggs than in service but this was replaced with cold roasts left over from the night before.

28. The veteran sustained an injury at work in 1995 at which time his weight had been

    
    

    70-75 kg. After that time his weight increased. Prior to his becoming ill, the applicant said, he was always nibbling and had very bad habits. The applicant could not recall that her husband had consulted a dietician in 2003 but it was consistent with her recollection that he was recorded as being morbidly obese in June 2003 by the Illawarra Area Health Service. She recalled at some stage he had to eat celery and carrots. During the last six months of his life he was on morphine and his diet was affected. 

    CONCLUSION

29. Overall I am not reasonably satisfied that the evidence demonstrates the requisite increase in animal fat consumption. The unreliable nature of the evidence about the veteran’s family diet, and the complete absence of evidence about his diet in the years immediately before enlistment make any calculation problematic. Added to this is the applicant’s unreliability in respect of the veteran’s service and post-service diet. Of special relevance is that on discharge the veteran had gained very little weight which was at odds with the evidence about excessive consumption generally, and of animal fats in particular.  

30. Even if I were satisfied that the evidence demonstrates the requisite increase in fat consumption I must still be reasonably satisfied as to the connection with the veteran’s service. In Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115; the High Court, in considering the connection between a person’s service and the claimed condition said:

    ... whether an event arises in the course of an activity ... depends upon such matters as the nature of the person's employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.

31. In this case, there was no requirement that the veteran make unhealthy choices in his selection of food at the mess – there were healthy options but he chose otherwise. Even if he acquired a taste for unhealthy foods there was no requirement to continue in that manner of eating at home. While there was some evidence that he continued to eat at the mess instead of at home some nights there was no evidence of a requirement that he do so. In any event, as I have found, the mess afforded healthy eating options. 

32. For the reasons given above, I am reasonably satisfied that the material before me does not raise a connection between the veteran’s service and his malignant neoplasm of the prostate or consequent death. I therefore affirm the decisions under review.

33. I am sympathetic to the applicant’s position that her husband’s service had an adverse effect on his health, and that she had supported him through his ill-health. Sadly, not all conditions can be related back to time spent in the Defence force. 

    DECISION

34. For the above reasons, I affirm the decisions under review.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

............................[sgd]............................................

Associate

Dated 17 April 2015

Date of hearing	11 February 2015
Counsel for the Applicant	Ms C Mudge
Solicitors for the Applicant	KCI Lawyers
Solicitors for the Respondent	Mr K Rudge, Department of Veteran's Affairs

[6] Roncevich v Repatriation Commission (2005) 222 CLR 115 [23]