Vesperman and Repatriation Commission

[2007] AATA 1350

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1350

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600728

VETERANS’ APPEALS DIVISION		)
Re		PHYLLIS VESPERMAN

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member Peter McDermott, RFD

Dr GJ Maynard, Member

Date22 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – applicant served in Royal Australian Air Force – whether applicant’s death was war-caused – death from prostate cancer – diet high in animal fat – whether applicant’s post-war diet contained a 40% increase in consumption of animal fat compared to pre-war diet – decision affirmed

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

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 May 2007  

Introduction

1. Mrs Phyllis Vesperman has claimed a war widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the Act). Mrs Vesperman claims that her late husband, Charles Kenneth Vesperman, died from the effects of a war-caused disease, namely prostate cancer. We have to decide whether the death of the late Mr Vesperman was war-caused.

Claim of Applicant

2.      We consider that the claim of Mrs Vesperman is based upon the following contentions:-

(a)      The cause of death of the late Charles Kenneth Vesperman was   malignant neoplasm of the prostate.

(b)      For many years prior to his death, Mr Vesperman consumed 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 Vesperman’s habit of eating a diet with a high animal fat content   arose out of the diet to which he had become accustomed while he   served in the Royal Australian Air Force (the RAAF).

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

(f)       On this basis, the death of Mr Vesperman from prostate cancer was   related to his RAAF service.

3.      Mrs Vesperman’s claim has been rejected by the Repatriation Commission (the Commission) on the ground that her late husband’s death was not related to his eligible service. The Veterans’ Review Board (the Board) affirmed the decision. Mrs Vesperman seeks a review of that decision by this Tribunal.

Legislative Framework

4. Where the death of a veteran was war-caused, the Commonwealth is liable, under section 13(1)(a) of the Act, to pay a pension by way of compensation to the dependant of the veteran. The death of a veteran shall be taken to be war-caused, if the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran: see s 8(1)(b). A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see s 7(1)(a).

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

6.      This is a claim which is made under Part II of the Act for a pension in respect of the death of a veteran. Where the claim relates to the operational service rendered by the veteran, the Commission is required to determine that the death of the veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination: see s 120(1).

7.      The Act 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: see s 120(3).

8.      For the purposes of section 120(3) of the Act, 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: see s 120A(3).

9.      The Act 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: see s 196B(14)(b).

Hypothesis

10.     The contentions of Mrs Vesperman form part of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service. It was contended that the veteran’s war service diet, provided to him by the RAAF, contained animal fat at a level higher than he had previously consumed.  It was also contended that the increase in consumption of animal fat 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. If the material that has been placed before us does indicate 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 (RMA).

Statement of Principles

The SoP which we must consider is Instrument No 28 of 2005 Malignant Neoplasm of the Prostate.  We extract the relevant parts of that SoP which we have considered:-

“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.”

11.     Mrs Vesperman is also entitled to have her claim considered under an earlier SoP: Instrument No 84 of 1999, as amended by Instrument No 69 of 2002.

Service of Veteran

12.     We find that the late Mr Vesperman had operational service in the RAAF during World War II from 28 February 1941 to 22 November 1945. His period of operational service includes postings in Port Moresby and Kiriwina from 26 January 1944 to 13 October 1944. We find that he was a “veteran” within the meaning of that term in section 5C(1) of the Act. This is because he is, because of s 7 of the Act, taken to have rendered eligible war service.

Consideration

13.     Prior to his enlistment in the RAAF the late Mr Vesperman served as a clerk in the Queensland Department of Justice. After he served his country he returned to the Department of Justice. He was admitted to the bar. He also served as a magistrate and a coroner.

14.     The late Mr Vesperman married Mrs Vesperman in 1944. We find that Mrs Vesperman was a dependent of the late Mr Vesperman.

15.     Mr Vesperman died on 11 August 2004. The certified cause of death on his death certificate was metastatic carcinoma of the prostate [exhibit A, folio 18]. Admitted into evidence before us was a letter from a specialist who opined that a fall sustained by Mr Vesperman may have contributed to his death [exhibit A1]. However, that specialist gave that opinion without the benefit of having seen Mr Vesperman at the time of his death and also without the benefit of viewing the contemporaneous medical records. In examining this issue we are satisfied, on the balance of probabilities, that the cause of death of Mr Vesperman was metastatic carcinoma of the prostate. This is a malignant neoplasm of the prostate where the cancer has spread beyond that organ.

16.     Mrs Vesperman was unable to provide details of her husband’s day to day diet prior to his joining the RAAF.  We note that in one questionnaire, that bears the date of 6 April 2006, she has referred to the fact that before his enlistment he had consumed fatty mince which was cheap. The national dietary survey of 1936-1938 has demonstrated that the average animal fat intake for an Australian adult male was 126gm per day.

17.     Mrs Vesperman has completed three dietary questionnaires about her late husband’s diet [exhibit A, folios 27-41; exhibit A, folios 56-68; exhibit R2]. The third dietary questionnaire [exhibit R2] appears to be the second questionnaire with hand written comments by Mrs Vesperman.  These all have been evaluated by the expert dieticians.  We appreciate that Mrs Vesperman has had difficulty in completing these questionnaires. The first two questionnaires would not indicate that there was a 40% increase in the consumption of animal fat as compared to the pre-war diet of the late Mr Vesperman. 

18.     The third questionnaire [exhibit R2] indicates that the late Mr Vesperman had a daily post-war consumption of 273 g of animal fat. That questionnaire details a very substantial calorific intake which the dietician says would increase weight by a considerable amount (by at least three kilograms per year) but this weight increase has not occurred. Mrs Vesperman said her husband played a good deal of golf to explain the weight control on the reported diet. However, in her evidence the dietician said this amount of exercise was totally inadequate to control Mr Vesperman’s weight on the basis of having a daily consumption of 273 g of animal fat.

19.     Mrs Vesperman also mentioned that it was common after the war for fat and dripping to be used for the cooking of food. Mrs Vesperman related how everything seemed to be cooked in fat because of problems with aluminium cooking utensils [exhibit R2, p 2]. We consider that this is the more likely reason for Mr Vesperman’s high fat intake post-war than anything that happened in his time on eligible service.

20.     The report by Dr Ruth English detailed the fat content of the rations that Mr Vesperman had access to and there was certainly no increase in fat content. Of course, one does not know if the prescribed ration was in fact what was supplied but the usual problem in wartime was one of undersupply. This probably did not occur in Mr Vesperman’s experience as he seemed to be on a secure island base with American forces. Mrs Vesperman stated that on at least one occasion the rations did not arrive and native food was relied on.

21.     In considering this application we are bound to apply the test which is prescribed by s120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

“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.”

22.     We are satisfied that the evidence before us points to a hypothesis connecting the conditions of the late Mr Vesperman’s operational service with his death. Accordingly the “first step” in Repatriation Commission v Deledio is satisfied.

23.     The “second step” in Repatriation Commission v Deledio requires us to ascertain whether there is a SoP which has been determined by the RMA.

24.     We have already mentioned that a SoP has been determined by the RMA pursuant to s 196B(2) of the Act in respect of the condition in question. This is the Malignant Neoplasm of the Prostate SoP: Instrument No 28 of 2005.

25.     We must now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP.  This step involves considering all of the material that is before us.  We are not concerned with making any findings of fact at this stage of the process.

26.     Under clause 4 of the SoP at least one of the factors set out in clause 5 must be related to the relevant service (being operational service) rendered by the veteran. It is factor 5(c) which is in contention.

27.     The whole of the material which has been placed before us does not raise the reasonable hypothesis that Mr Vesperman had increased his post-war intake of animal fats by any significant level for reasons related to his service.

28.     We have concluded after considering the expert dietician’s evidence that no reasonable hypothesis is raised which links the death of Mr Vesperman with the particular circumstances of his eligible service. The third questionnaire indicates an unrealistic post-war consumption of animal fat.

29.     Mrs Vesperman is also entitled to have her claim considered under an earlier SoP: Instrument No 84 of 1999, as amended by Instrument No 69 of 2002. We also consider that the material before us does not raise a reasonable hypothesis which satisfies the “template” in factor 5(c) of that SoP.

30.     We have accordingly considered the claims of Mrs Vesperman by reference to both SoPs.

31.     We affirm the decision under review. Our decision has the consequence that Mrs Vesperman is not granted a war widows’ pension.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott, RFD and Dr GJ Maynard, Member.

Signed:         .....................................................................................
           Fiona Kamst, Legal Research Officer

Date/s of Hearing  15 May 2007
Date of Decision  22 May 2007
Applicant  Mrs Vesperman, herself
Respondent  Mr M Smith, departmental advocate