Wheal and Repatriation Commission - [2002] AATA 265

DECISION AND REASONS FOR DECISION [2002] AATA 265

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/985
VETERANS'     APPEALS      DIVISION
  Re:         JOAN ISOBEL WHEAL
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             18 April 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - claim by widow - prostate cancer - consumption of animal fat - whether war-caused
Veterans' Entitlements Act 1986 ss8, 119, 120(1), 120(3), 120(4), 120A(3)
Benjamin v Repatriation Commission [2001] FCA 1879
Meehan v Repatriation Commission (2001) 64 ALD 366
Re Grundman and Repatriation Commission [2000] AATA 1005
Re Gull and Repatriation Commission [2001] AATA 95
Re Harris and Repatriation Commission [2002] AATA 230
Re Keenan and Repatriation Commission [2000] AATA 707
Re Rhodes and Repatriation Commission [1999] AATA 72
Repatriation Commission v Deledio (1998) 49 ALD 193

REASONS FOR DECISION

18 April 2002 G.D. Friedman, Member

This is an application by Joan Isobel Wheal (the applicant), widow of Graham William Wheal (the veteran), for review of a decision of the Veterans' Review Board (VRB) dated 25 June 2001. The VRB affirmed a decision of a delegate of the respondent, dated 13 October 2000, to refuse a claim for disability pension for death from malignant neoplasm (cancer or tumour) of the prostate because the death was not war-caused.
At the hearing of this matter on 11 April 2002 Mr P. Furness, solicitor, represented the applicant and Mr K. Rudge, advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T13), together with eight exhibits lodged by the applicant (Exhibits A1-A8) and one lodged by the respondent (Exhibit R1).
BACKGROUND
The veteran was born on 9 October 1923 and lived with his family in Colac. At the age of 18 he joined the Australian Army (the army) and served from 29 December 1941 to 5 August 1946 in the 2nd Field Company. He served in the South-West Pacific including New Guinea, and in accordance with s8 of the Veterans' Entitlements Act 1986 (the Act), this period constitutes operational service.
After his discharge from the army the veteran managed a snack bar in Lorne, Victoria and then bought a taxi which he operated for a number of years. In 1955 the applicant and the veteran married and the couple lived in Lorne. In 1956 the veteran contracted tuberculosis and spent one year in hospital, after which he returned to work. The illness returned and he attended hospital regularly. In about 1991 he was diagnosed with prostate cancer and died on 13 November 1995.
On 6 August 2001 the applicant sought review of the VRB decision by the Tribunal.
EVIDENCE
The applicant confirmed her written statement dated 26 July 2001 (Exhibit A2) and told the Tribunal that she and the veteran were first cousins. She said that she saw him occasionally before World War 2 (the war) and he was tall and of a slim build. She did not see him during his period of army service, and had no knowledge of his diet during this time. She stated that after the war the veteran was a well-built young man and lived with her family for several months, during which his diet included fatty food such as bacon and eggs for breakfast, grilled sausages and chops, roast meats and desserts. He also enjoyed butter, dripping, biscuits and cheese, and consequently the veteran put on weight.
The applicant stated that after their marriage she continued to cook similar foods for the veteran, and he came home for lunch every day. In 1956 the veteran was diagnosed with tuberculosis. He lost weight but continued with the same diet. The applicant said that while in hospital the veteran had no exercise and was ordered to have a complete rest. She said that his treatment included a diet that was high in fat, and gradually his weight increased. The applicant told the Tribunal that when the veteran was diagnosed with prostate cancer she had no idea that a high fat diet would have been a contributing factor. She considered that the veteran's diet after the war was responsible for his death.
Peter William Wheal, son of the applicant, confirmed his written statement dated 26 July 2001 (Exhibit A3) and said that the veteran was a large man who enjoyed eating fatty foods such as barbecued meat, biscuits and cheese. Mr Wheal agreed with the applicant's statement that the veteran had a substantial appetite which continued throughout his illnesses until just prior to his death.
Lynne Marie Wheal, daughter-in-law of the applicant, said in a written statement dated 26 July 2001 (Exhibit A4) that she knew the veteran from 1978 until his death. She stated that the veteran was a big man with a big appetite who loved eating meat, cheese and sweet foods, together with a regular cooked breakfast of bacon and eggs.
Dorothy Simpson, sister of the veteran, said in a written statement dated 25 July 2001 (Exhibit A8) that she and the veteran lived with their parents in Colac before the veteran enlisted in the army. She stated that her parents grew their own fruit and vegetables, and meals consisted mainly of wholesome soups, vegetables and fresh fruit, together with meat that had been trimmed of fat by the butcher. Ms Simpson said that at that time in the local area there were no shops that sold fatty foods.
Alan Bruce Gaylard confirmed his undated written statement (Exhibit A5) and told the Tribunal that from 1949 until 1952 he drove a taxi for the veteran and they became close friends. Mr Gaylard said that while driving the taxi they often had to eat quickly, and their meals consisted of high-fat snacks and food such as fish and chips and meat pies. He stated that during this period the veteran lived alone and would cook sausages and eggs regularly.
Colin Blume confirmed his undated written statement (Exhibit A6) and told the Tribunal that during the war he served with the 2/14th Battalion in the army as an infantry soldier fighting the Japanese in New Guinea. He said that when on active service in the jungle the Australian soldiers lived mainly on ration packs containing bully beef and biscuits, and that occasionally the diet was supplemented by dehydrated vegetables, powdered eggs and sometimes fruit provided by indigenous inhabitants of the region. Mr Blume stated that he had never met the veteran, and that food consumed by field personnel such as the veteran might have differed on occasions from that of frontline infantry soldiers.
Dr John Sullivan, haematologist and oncologist, confirmed his written report dated 15 August 2001 (Exhibit A1) and told the Tribunal that the veteran had a low-fat diet prior to his enlistment in the army and that he developed a taste for high-fat food during his military service. Dr Sullivan said that this high fat intake continued after the veteran's discharge, resulting in a substantial weight gain. Dr Sullivan concluded that the veteran developed prostate cancer as a consequence of a high fat diet, which began with his dietary exposure during military service and continued for the remainder of his life, and the cancer caused his death. During cross-examination Dr Sullivan agreed that he had never met the veteran or the applicant, and that his conclusions regarding the veteran's diet were based on documents provided by the applicant's solicitor.
Alison Wailes, nutrition consultant and dietician, confirmed her written report dated 8 April 2002 (Exhibit R1) and told the Tribunal that she had been requested to give an opinion about the possibility of a relationship between the veteran's war-time diet, subsequent animal fat diet and the development of prostate cancer. She stated that, according to documents provided to her, the veteran was a tall, slim young man who was healthy and fit when he enlisted in the army. She noted that the treatment prescribed for tuberculosis suffered by the veteran involved a diet rich in energy and nutrients to ensure the best and quickest recovery. After the war his diet had become high in saturated fats except for the period prior to the diagnosis of tuberculosis.
In her report Ms Wailes analysed nutrients contained in a database derived from compiling a list of foods typically consumed during relevant periods. She also consulted the applicant to ascertain the veteran's diet history and eating patterns after the war. The results of her calculations were that the veteran's average daily intake of fat before the war was 70.2 grams, with animal fat being 40.7 grams (58% of total fat). During the war the fat intake was calculated to be 141.4 grams (animal fat: 82.0 grams), and after the war (1958 to 1978, including hospitalisation for tuberculosis) the fat intake was 262.0 grams (animal fat: 152 grams). Ms Wailes concluded that if the veteran had not served in the army it is likely that his food intake would have been less energy-dense, as it was at home before the war.
In her evidence Ms Wailes conceded that her calculations were based on a number of assumptions and a lack of specific information about the veteran. She suggested that her calculation for the pre-war period may have been an underestimate, and a more accurate figure for the intake of animal fat would be 62.7 grams. She maintained her figure of 82.0 grams for animal fat intake during the war, and for the period from 1958 to 1978 she revised her calculation down to 68.4 grams. Ms Wailes noted that her figures for fat intake differed considerably from those contained in the report Animal Fat in the Australian Diet Including the Armed Services' Rations in World War 2 - Scientific Review for Department of Veterans' Affairs written in August 1998 by Dr Ruth English AO (Exhibit A7). She said that Dr English had used different sources and assumptions, so that their respective conclusions were not necessarily comparable.
CONSIDERATION OF THE ISSUES
The process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease or injury (the condition) to war service is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.
There was no dispute between the parties that the veteran had rendered operational service and had suffered from malignant neoplasm of the prostate, so that s120(1) and s120(3) of the Act apply and the Tribunal must determine that the condition was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP) in force. There was no dispute between the parties that the applicable SoP concerning malignant neoplasm of the prostate was Nº 84 of 1999, which revoked Nº 95 of 1995 and Nº 191 of 1996. Factor 5(c) of the applicable SoP states:
increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate;
Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant.
Mr Furness submitted that the hypothesis fits within the template and is reasonable. He said that the word reasonable should be given a broad meaning, and he relied on the report from Ms Wailes to support his contention that the applicant meets factor 5(c). He acknowledged the differences between the reports by Ms Wailes and Dr English, and submitted that as Dr English was not available for cross-examination, the Tribunal should not draw inferences from her report that would be adverse to the applicant.
Mr Furness referred to the decision of Re Keenan and Repatriation Commission [2000] AATA 707 which also considered the question of the intake of animal fat in relation to prostate cancer. In its decision the Tribunal stated:
…
53. Both diet experts agreed that there were inherent faults in most retrospective surveys and that this survey had most of the known and publicised flaws...Professor English in her oral evidence was critical of the survey in that it could not be validated by an analysis of the energy content of the results of the applicants' answers to the survey. Such validation was impossible, as the planning of the survey to which she was a party had not been designed to allow for this validation. Whilst the Tribunal accepts the scientific unreliability of the survey, however flawed, this evidence is the best evidence the Tribunal has before it and it is on this evidence that it has to make a decision.
…
59. This general consideration of the expert evidence before the Tribunal convinced the Tribunal that because of the inherent inaccurate basis of the post-war fat consumption survey and the pre-war and wartime diet surveys all comparisons derived from these figures cannot aspire to any degree of mathematical precision. However, as indicated earlier, it is on this evidence the Tribunal must make its decision. Further, the current knowledge is limited as the processes surrounding fat preference and ingestion are both multifactorial and complex, which in turn limits the guidance available to the Tribunal as to which of the factors are the most significant amongst these many processes.

Mr Furness noted that, despite the difficulties regarding evidence of pre-war diet and the passage of time, the Tribunal found in Keenan that the relevant SoP factor was satisfied.

Mr Furness referred to Re Rhodes and Repatriation Commission [1999] AATA 72 in which the Tribunal stated:
…
20. As Ms Wailes pointed out, the results of the survey conducted by Dr Davidson (and the Tribunal also concludes the same is applicable to the survey conducted by Dr English), while providing useful comparative statistical information, does not provide any conclusive answers in the case of a particular individual. That evidence must be assessed on a case by case basis …
21. Given the Tribunal's finding that, prior to World War 2, the veteran did not enjoy a high animal fat diet and there was an increase in his animal fat consumption during the war, that the veteran continued to eat fatty foods after the war and did not return to his pre-war dietary pattern, the Tribunal is satisfied that the increase in fat intake is, at least, one of the factors related to the development of the veteran's disease. A factor contributing to the disease to be related to the war service does not need to be solely, or exclusively, related. It may be one of a number of factors. Certainly the evidence leaves the Tribunal satisfied that the veteran's first exposure to foods high in animal fat on a consistent and habit forming basis arose out of his war service. It did not arise as the result of his post-war dietary habits because by that time it was an established pattern.

Mr Furness noted that Ms Wailes prepared a report and gave evidence in that case, and the Tribunal found in favour of the applicant. He submitted that the evidence of the other witnesses strongly supported the proposition that the applicant satisfies step three. He stated further that the Act is an example of beneficial legislation that should be construed in the applicant's favour, and that s119 overcomes difficulties associated with the passage of time and reliance on recall of events that occurred many years ago.

Mr Rudge submitted that the hypothesis does not fit within the template and is not reasonable. He referred to the decision in Re Grundman and Repatriation Commission [2000] AATA 1005 in which the Tribunal stated:
…
9. Ms Wailes, in her report…obtained from Mrs Grundman a history of diet during World War II, immediately after her marriage in October 1943, and also in the 1960s. The evidence is that the malignancy was diagnosed in the 1980s. We must say that we have grave reservations about the value of the analysis performed by Ms Wailes …
…
14. Even if we were to accept Ms Wailes' report as raising facts pointing to the increased animal fat consumption after service that is required by the SoP, there is still a significant problem. There is no material raising or pointing to that increased fat consumption being related to service as required by paragraph 2 of the SoP. Mrs Grundman and Ms Wailes seem to have accepted that an increased liking for foods containing fats after service was due to fatty foods on service
In Re Gull and Repatriation Commission [2001] AATA 95 the Tribunal stated:
…
25. …As pointed out by Dr English, recall of food consumption is questionable. Ms Simonsen's estimation was very low compared with the estimate of the Australian average pre-war. Before enlistment, the veteran lived on a farm where he had access to milk, butter and cream and it may be postulated that he consumed more animal fat products than people living in a city. The Tribunal further notes Dr English's research. She states that "there is no evidence from the analysis of civilian and service diets that the rations available to servicemen during the Second World War contained excessive amounts of animal fat compared with civilian diets".
In Re Harris and Repatriation Commission [2002] AATA 230 the Tribunal stated:
…
40. I considered whether another approach to this review was to adopt the findings of Professor English of the pre-service diet of males and then determine whether a 40% increase in animal fat could be found. An approach of this type was adopted by the Tribunal in Re Keenan and Repatriation Commission 2000 AATA 707 where knowledge of pre-service diet was not known.
41. In her report Professor English concluded that the estimate of animal fat consumed in 1938/39 was 116.9 gms per day. She also records that a 1944 "Household Dietary Survey" found an estimate of 122.0 gms of animal fat was consumed by Australian males in (1944).
42. Additionally, little is known about the deceased's service other than it would appear - from the T-documents - that he served in New Guinea as an anti aircraft gunner. It would not be difficult to imagine that this was stressful. Whether this contributed to a high animal fat diet post service is not known. There was no medical evidence to support such a connection.
Mr Rudge noted that in these decisions the Tribunal was concerned about the speculative nature of the evidence and in each case the Tribunal affirmed the decision under review. He stated that in the present case the analysis provided by Ms Wailes is difficult to apply to factor 5(c), particularly as Ms Wailes relied on the accuracy of documents provided to her. Some of those documents required recall of events that took place many years ago. He also referred to the revised calculations made by Ms Wailes when she gave evidence, and stated that, on her revised figures, factor 5(c) could not be satisfied. Mr Rudge submitted that there was no evidence to show that the veteran's pre-war diet was different from that of other Australians, and the evidence suggested that at the time of enlistment the veteran was a healthy young man aged 18 years who required a large amount of food as he was still growing.

Mr Rudge submitted further that factors unrelated to war service may have contributed to any increase in animal fat intake after the war. These include working in the snack bar, driving a taxi and maintaining a high-fat diet that was similar in many ways to the pre-war diet. He also said that there was no evidence that the veteran's diet during his period of service was higher in fat content than at other times. In relation to the report by Dr English, Mr Rudge submitted that her research showed that the army ration was not a high-fat diet compared to the broader community, and that the figures for animal fat consumption in the relevant period differed markedly from those contained in the report by Ms Wailes.
In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds, after taking into account all relevant material, that the veteran suffered from malignant neoplasm of the prostate, and that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.
In respect of the second step, the Tribunal finds that SoP Nº 84 of 1999, concerning malignant neoplasm of the prostate, was in force and is relevant.
In respect of the third step, in relation to factor 5(c), the Tribunal finds that the applicant answered questions relating to events that occurred up to forty-five years ago to the best of her recollection, and that details of the veteran's diet in the periods that she was with him were plausible. The Tribunal also accepts the evidence from Mr Wheal, Ms Wheal and Mr Gaylard concerning the veteran's consumption of high-fat food. Similarly the Tribunal has no reason to doubt the general comments by Ms Simpson concerning the consumption of particular foods by the veteran and herself in their childhood.
In reviewing the authorities, the Tribunal notes that in Keenan the decision was made on the basis of surveys of pre-war and wartime consumption of animal fat, together with evidence that after the war the applicant craved a so-called American diet that was rich in animal fat. In Rhodes the Tribunal accepted that the evidence, including surveys by researchers such as Dr English and Ms Wailes, must be assessed on a case-by-case basis, and in the particular circumstances of that case the calculations by Ms Wailes supported the applicant's contentions. In Grundman, Gull and Harris the Tribunal identified problems such as a lack of evidence about the particular consumption of animal fat, and the difficulty in drawing conclusions from the use of surveys presented in support of the applications.
The Tribunal agrees with Mr Rudge that the statements by the applicant and Mrs Simpson indicate only that the veteran ate meals containing varying amounts of animal fat prepared for him in the relevant periods. There is no evidence of the veteran's actual fat intake during this time, and the Tribunal notes that the veteran joined the army two years after the commencement of the war, and his diet during his period of service probably varied according to his activities in numerous locations. There is no evidence that the veteran's diet in the post-war period differed markedly from the diet in most Australian households or that it was based on his war service. There is no evidence that the diet prescribed to the veteran for the treatment of tuberculosis caused an increase in the consumption of animal fat that was attributable to war service.
The Tribunal takes into account the revised figures for the veteran's animal fat consumption provided by Ms Wailes at the hearing, and finds that, on her calculations, there is not an increase of at least 40% and to at least 70 gm/day in the relevant period. The Tribunal also finds that there is no material contained in the report from Dr English to suggest that this finding is incorrect.
The Tribunal does not accept that the provisions of s119 of the Act overcome the lack of evidence in this application.
38. For these reasons the Tribunal is not reasonably satisfied that the malignant neoplasm of the prostate suffered by the veteran falls within factor 5(c) of the SoP that is in force. Therefore the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. The hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP, so the third step is not met. In the circumstances, there is no need for the Tribunal to consider the fourth step.
In Benjamin v Repatriation Commission [2001] FCA 1879 the Full Federal Court stated at paragraph 56:
… if the Tribunal is reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3). If, on the other hand, the Tribunal is not reasonably satisfied that the psychiatric problems presently suffered by the Veteran fall within an SoP that is in force, it will be necessary for the Tribunal to determine, on all the evidence available to it, whether s 120(3) is satisfied, without reference to s120A(3).

Applying the test set out in Benjamin, having determined that the condition suffered by the veteran does not fall within an SoP that is in force, the Tribunal must determine, on all the evidence available to it, whether s120(3) is satisfied, without reference to s120A(3). In applying s120(3) the Tribunal has considered all the material available to it, and for the reasons outlined above, including the lack of supporting evidence, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition is a war-caused condition for the purposes of s120(1).
DECISION

The Tribunal affirms the decision under review.
I certify that the forty [40] preceding paragraphs are a true copy of the reasons for the decision of:
G.D.Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  11 April 2002
Date of decision:  18 April 2002
Solicitor for applicant:                  Mr P. Furness
Advocate for respondent:            Mr K. Rudge, Advocacy Section, Department of Veterans' Affairs