Wallace and Repatriation Commission
[2005] AATA 1289
•22 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1289
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/684
VETERANS’ APPEALS DIVISION ) Re MARJORIE JOAN WALLACE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date22 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for widows pension.
...............SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – not service related – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1.Marjorie Joan Wallace, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2.Mrs. Wallace claims that her late husband, David Austin Ernest Wallace, died from the effects of a war-caused disease, namely prostate cancer.
3.The elements of Mrs. Wallace’s claim are:
(a)David Austin Ernest Wallace died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Wallace was in the habit of consuming 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. Wallace’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 Merchant Navy.
(e)The food that he had become accustomed to eating during his years in the Merchant Navy was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Wallace’s death from prostate cancer was related to his Merchant Navy service.
4.Mrs. Wallace’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5.The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6.Mrs. Wallace seeks review of that decision.
Legislative Framework
7.Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8.Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9.Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10.The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11.Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12.Section 120(3) 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.
13.Section 120A(3) provides that for the purposes of section 120(3), 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.
14.Subsection 196B(14) of the VEA 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.
Necessary Elements of Hypothesis
15.In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the Merchant Navy, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day 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.
16.If the material placed before the Tribunal does raise 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.
17.In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“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.”
Material Placed Before the Tribunal
18.The following matters are not in dispute and the Tribunal finds:
(a)David Austin Ernest Wallace was born in Warwick, Queensland on 27 May 1913.
(b)He was a Merchant Mariner. He had operational service from 26 May 1945 to 18 October 1945 and from 29 October 1945 to 15 February 1946.
(c)He married Marjorie Joan Wallace on 5 November 1949.
(d)He was first treated for prostate cancer in 1989.
(e)He died on 16 April 1995. The cause of death was multiple bone metastases (3 years) and carcinoma of prostate (6 years).
(f)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19.Mrs. Wallace provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She met her husband in 1949 and they married later that year. Mr. Wallace was at that time an Industrial Chemist.
(b)She does not know what his diet was when he was in the Merchant Navy.
(c)After they had been married for about six months, the Wallaces bought a farm. Mr. Wallace continued to work as an Industrial Chemist.
(d)After they had been married for about 12 months Mr. Wallace decided to return to the sea as a Merchant Seaman. He obtained a job as Chief Steward on a pilot ship.
(e)During the time that he worked on the pilot ship, Mr. Wallace would be away from home for 17 days and then home for five days, before returning to sea.
(f)Mr. Wallace later secured employment on dredges.
(g)Mrs. Wallace does not know what her husband ate while he was away at sea.
(h)The typical meals that her husband had when he was at home consisted of:
·For breakfast, Mr Wallace would eat bacon and eggs or kippers or kidneys or liver or steak and kidney from the night before on toast. He could also eat two slices of toast very well buttered and he drank 2 mugs of coffees which were made of half milk half water with one teaspoon of sugar.
·For morning tea, Mr. Wallace would eat cheese and biscuits or scones with butter or cream. He would once again have a mug of tea with a lot of milk and one sugar.
·For lunch, Mr. Wallace would eat cabanas with cheese with salad with dressing such as mayonnaise and with 2 slices of bread with a lot of butter. He could also have dessert at lunch which consisted of either ice cream or whipped cream or yoghurt with nuts and fruit, plus he would always have a beer or glass of wine. He sometimes had a meat pie or pork chops for lunch.
·For afternoon tea, when he had it, he would have a piece of cake or scones with cream and always a glass of milk.
·For dinner, Mr. Wallace would eat either pig’s trotters, steak, chops, lamb, pork, chickens, stew casserole, roast, briskets or lambs fry and bacon. He would have fried chips quite often, and vegetables which were boiled and buttered.
·Mr. Wallace always had a bread roll with lots of butter spread on it.
·For dessert Mr. Wallace enjoyed eating steamed or baked puddings and ice cream.
(i)Mr. Wallace was a fit man who did a half hour of push-ups every morning until he fell ill in 1985.
20. There is no evidence as to what Mr. Wallace’s animal fat intake was prior to his service. The average at the time for the adult male population was 126 gm/day.
21. There is no evidence as to what Mr. Wallace’s animal fat intake was during his operational service as a seaman in the Merchant Navy.
22. There is, consequently, no evidence as to whether Mr. Wallace’s intake of animal fat on an average daily basis increased or decreased during his operational service.
23. There is no evidence as to whether Mr. Wallace developed a preference for food containing animal fat during his operational service or whether he had such a preference prior to his service.
24. There is no evidence that Mr. Wallace expressed a preference for food containing animal fat after his operational service. However, it is clear that he enjoyed food that was high in animal fat, when he ate at home.
25. There is no evidence as to what Mr. Wallace ate when he was working on pilot ships and dredges. It was probably plentiful and high in animal fat content.
26. The material placed before the Tribunal does not raise a hypothesis that Mr. Wallace increased his consumption of animal fat while on operational service, nor that his consumption of a diet high in animal fat after service had anything to do with his service.
27. The material before the Tribunal does not raise a reasonable hypothesis connecting the death of Mr. Wallace from prostate cancer with the circumstances of his operational service.
28. The Tribunal affirms the decision to reject the claim for widows pension.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20, 22.6.05; 30.9.05
Date of Decision 22 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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