Tina Trinder and Repatriation Commission

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[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…

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Details
Case
[2015] AATA 230
Decision Date

CaseChat Overview and Summary

In the case of Tina Trinder and the Repatriation Commission, the central issue was whether the death of the veteran, due to metastatic prostate cancer, was attributable to his service in the Defence Force. The dispute came before the Administrative Appeals Tribunal, where the primary task was to determine, on the balance of probabilities, if the veteran's death was caused by his military service. The relevant legislative framework included the Veterans' Entitlements Act 1986 (Cth) and the associated Statement of Principles (SoP), which set out the criteria linking a veteran's condition to their service. Specifically, the applicant argued that the veteran's consumption of animal fat increased significantly during his service, meeting the criteria outlined in the SoP.

The legal issues revolved around the interpretation and application of the SoP, particularly factor 5(a), which requires an increase in animal fat consumption by at least 40% to at least 50gm/day, maintained for at least ten years within the 25 years before the onset of prostate cancer. The Tribunal had to assess the credibility and sufficiency of the evidence presented, including expert reports and witness testimonies, to ascertain if the condition was "related to service" as defined in the Act. The applicant's claim was that the veteran's dietary habits changed due to his enjoyment of "Army" cooking, leading to increased animal fat intake during and after his service.

The Tribunal found that while the applicant's testimony and expert evidence suggested a significant increase in the veteran's animal fat consumption, there was insufficient independent evidence to conclusively link this dietary change to his military service. The Tribunal was required to decide the matter to their reasonable satisfaction, and in this instance, the evidence did not meet that threshold. Consequently, the Tribunal affirmed the decisions under review, denying the claim that the veteran's death was attributable to his service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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