Wren and Repatriation Commission

[2003] AATA 1141

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1141

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2003/220

VETERANS’     APPEALS       DIVISION

Re:         DOROTHY ISABEL WREN

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             14 November 2003

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
  Member

VETERANS’ AFFAIRS - widow's entitlement - adenocarcinoma of the rectum - consumption of processed meat before and after service - whether death related to service

Veterans’ Entitlements Act 1986 ss8(1), 120, 120A

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Hill (2002) 69 ALD 581

REASONS FOR DECISION

14 November 2003  G. D. Friedman, Member

1.      This is an application by Dorothy Isabel Wren (the applicant), widow of Arthur Wren (the veteran), for review of a decision of the Veterans’ Review Board (VRB) dated 31 January 2003.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 15 July 2002 to refuse a claim for pension on the basis that the death of the veteran was not related to his service. 

2.      At the hearing of this matter on 10 November 2003 Mr B. Turner, Returned & Services League of Australia advocate, represented the applicant and Mr E. Nyhof, a Department of Veterans’ Affairs' advocate, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T11), together with four exhibits (Exhibits R1-R4) lodged by the respondent.

BACKGROUND

4.      The veteran was born on 7 May 1920.  He enlisted in the Royal Australian Air Force (RAAF) on 31 July 1940 and was discharged on 10 February 1948.  His service included four months in New Guinea (as it then was) and ten trips to Japan, each of two or three weeks’ duration.  The whole of his service constitutes operational service in accordance with the Veterans’ Entitlements Act 1986 (the Act).

5.      The respondent had previously accepted liability for the veteran's malaria and bilateral sensorineural hearing loss.  The respondent had previously rejected liability for the veteran's malignant neoplasm of the colon with metastases of the liver, malignant neoplasm of the prostate and atrial fibrillation.  In about 2000, the veteran was diagnosed with rectal cancer and died on 13 May 2002.  The cause of death was certified as …Metastatic rectal adenocarcinoma - 2 years. 

6.      On 24 February 2003 the applicant sought review of the VRB decision by the Tribunal. 

EVIDENCE

7.      In evidence to the VRB on 15 June 2001 in an earlier application, the veteran stated that before enlisting in the RAAF he lived on a 15 acre property at Hampton Park, and he ate plenty of fresh fruit and vegetables, but not a lot of meat.  He said that he ate sausages once a week, and at other times he ate stews, rabbit, chicken or occasionally a roast, and bacon once per week or fortnight.  He ate eggs for breakfast.  He told the VRB that during his service his diet changed.  There was an absence of fresh fruit or vegetables, although there was tinned meat and vegetables, and fresh fish in the South Pacific and Japan.  He stated that there was little fibre in the food.

8.      The veteran and the applicant told the VRB that after his service the veteran adhered to the service diet and did not eat fruit or vegetables.  The applicant said that they could not afford a lot of meat and she bought the cheaper cuts, but the veteran preferred white rice and biscuits, plus a meat pie or egg sandwich for lunch.  The veteran ate porridge or cereal for breakfast, so his fibre intake improved.  The veteran and the applicant stated that the veteran’s diet did not change much in the years after his service.

9.      In evidence to the VRB on 31 January 2003, the applicant stated that after service the veteran preferred processed meats such as sausages and strasburg.  She said that she used to purchase a roll of strasburg each week, and the veteran ate several slices each day for lunch.  She said that they never ate steak or other cuts of meat because these were too expensive.  The applicant told the VRB that the veteran enjoyed mincemeat, corned beef and sausages, plus bacon given to him occasionally by his brother.

10.     The respondent tendered evidence of the relative fat content of service and civilian diets during World War 2.  In a written report Animal Fat in the Australian Diet Including the Armed Services’ Rations in World War 2 dated August 1998 (Exhibit R1), Dr R. English states, at paragraph 3:

The independent analysis of the civilian and service ration diets indicates that with one exception, the service rations operating in the Second World War did not contain a higher level of animal fat than the civilian diet for an adult male, as reported in the 1944 National Household Survey…Overall it can be concluded that 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 to civilian diets.

CONSIDERATION OF THE ISSUES

11. Section 8(1) of the Act provides:

(1)        Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:

(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

12. As the veteran rendered operational service, s120 and s120A of the Act apply. The principles to be applied in such cases were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, as a four-step process:

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.  

13.     Factor 5(e) of Statement of Principles (SoP) N° 58 of 2002 concerning malignant neoplasm of the colorectum states:

…

(e)having an altered dietary pattern resulting in an increase of at least 25 grams in average daily total consumption of processed meat product for at least 10 years, where the increased consumption of processed meat product occurred at least 20 years before the clinical onset of malignant neoplasm of the colorectum;

In paragraph 8 processed meat product is defined as preserved or cured meats, including ham, frankfurters, salami and bacon. 

14.     Mr Turner said that clinical onset of rectum adenocarcinoma occurred on or about 11 May 2000.  He submitted that the applicant was relying upon the reasonable hypothesis that the veteran ate little or no processed meat before enlisting in the RAAF as his diet consisted mainly of farm produce from his parent’s property, and that his dietary pattern altered because of his RAAF service.  Mr Turner stated that there was little or no fresh meat available during service, and the availability of tinned meat contributed to the veteran’s liking for processed meats.  He said that this resulted in the required increase in consumption of processed meat products to satisfy factor 5(e) and brought the matter within the framework outlined in Deledio..  He referred the Tribunal to Kattenberg v Repatriation Commission (2002) 73 ALD 365 and submitted that the Tribunal should take into account that the altered diet continued after the veteran's service.

15.     Mr Turner submitted that the report from Dr English was based on a survey of urban households, whereas the veteran had grown up on a property that grew most of its own produce.  Therefore, the conclusions by Dr English were not directly relevant to the veteran’s situation.  He also noted that the veteran had poor dental health, and would have preferred a soft diet.

16.     Mr Nyhof submitted that the veteran had failed to satisfy factor 5(e) of the SoP and that the post-war consumption of processed meats was not causally related to the veteran's service.  He said that the veteran had served in the RAAF for six years and seven months, and remained in Australia for the entire period except for four months in New Guinea and ten trips to Japan.  In Japan the veteran’s diet was mainly fresh fish and rice.  He noted the conclusion by Dr English that the animal fat content of the diet of service personnel during the Second World War was not significantly different from that of the civilian population.

17.     Mr Nyhof referred to the VRB decision of 15 June 2001to the evidence given by the applicant and the veteran to the VRB, and emphasised that, the veteran and the applicant had told the VRB that before enlistment the veteran did not eat a lot of meat.  Yet they also referred to the consumption of sausages, stews, rabbit, chicken, roasts and bacon.  Mr Nyhof referred to the transcript of evidence given to the VRB on 31 January 2003 (Exhibit R4), in which the applicant stated that she did not know the veteran before his service, but that after his service he ate a lot of processed meat such as sausages, strasburg and mincemeat, because the veteran enjoyed this food and they could not afford steak or the more expensive cuts.

18.     Mr Nyhof submitted that there was no direct evidence of the veteran’s dietary habits before his service, so the Tribunal could not determine whether there had been a change during service.  He stated that the veteran's service amounted only to about six and a half years, which was well short of the ten years required by factor 5(e).  He noted that there was no evidence to suggest that any dental problems experienced by the veteran were related to his service.    

19.     The Tribunal reached its decision taking into account the written evidence and the submissions made at hearing.

20.     In Repatriation Commission v Hancock [2003] FCA 711, Selway J set out the correct approach as follows:

…

(a)First, the Tribunal was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out.  None of these were in dispute.

(b)Next, the Tribunal was required to determine on balance of probabilities what 'kind of death' Mr Hancock had suffered.  This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other 'kinds of death' which were applicable to that death.

(c)If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those 'kinds of death'.

(d)If only a determination under s 180A(2) is applicable, then the application must fail.

(e)If no SoP and no determination is applicable at all or to a particular "kind of death", then the methodology in Byrnes is applicable in relation to that.

21.     There was no dispute, and the Tribunal finds, that the first pre-condition other than causation (step (a)) was satisfied, and that the kind of death suffered by the veteran was rectal adenocarcinoma (step (b)).  As there is a SoP in force, the Tribunal is required to apply the methodology in Deledio to the kind of death (step (c)).

22.     The Tribunal notes the veteran’s claims before the VRB in 2001, that his diet before his service contained plenty of fresh fruit and vegetables but not a lot of meat; although he acknowledged that he ate sausages, stews, rabbits, chicken, roasts and bacon.  The submission by Mr Turner that the veteran ate little or no processed meat before enlisting in the RAAF does not accord with those claims.  The Tribunal finds that there is little or no evidence, apart from the veteran's claims, of the veteran’s  dietary habits before his service.  Therefore, the contention of a change in the veteran's dietary pattern during service is difficult to support.  Similarly, the length of the veteran’s service makes the claim of an increase in consumption of processed meat for ten years difficult to sustain.  

23.     With respect to the veteran’s diet during his service, the Tribunal takes into account that there was little fresh meat available.  However, the Tribunal also takes into account that during his ten trips to Japan the veteran ate fresh fish and rice; and that during the remainder of his service he was based in Australia (except for four months in New Guinea), and his diet was similar to that of other service personnel.  Dr English’s report concludes that there was no essential difference between the fat levels of the civilian and service diets.  There is no evidence to suggest that her report was restricted to households in an urban environment where homegrown produce was not consumed, and the evidence does not point to service rations during the World War 2 containing a higher level of animal fat than civilian diets.

24.     The Tribunal accepts that after his service the veteran ate processed meats, such as strasburg, on a regular basis.  However, on the evidence given to the VRB by the applicant in 2001, the reasons for doing so included a liking by the veteran for this type of food and budgetary constraints.

25.     Step 3 in Deledio requires that an opinion be formed as to whether the hypothesis advanced by the applicant is reasonable.  That is, whether there is material supporting or pointing to the hypothesis connecting the veteran’s death with the circumstances of the service rendered by him.  If the hypothesis is consistent with the template in the relevant SoP, then it will be reasonable.

26.     In Repatriation Commission v Hill (2002) 69 ALD 581, the Full Federal Court stated, at 596:

If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material: cf East at FCR 533…

27.     Overall, for the reasons mentioned in paragraphs 22, 23, and 24, the material or evidence does not point to an increase of at least 25 grams in average daily total consumption of processed meats by the veteran in the time frame required by factor 5(e) of SoP N° 58 of 2002 or any other factors in that SoP.  Therefore, the hypothesis is not consistent with the template and is deemed not to be a reasonable hypothesis.  Similarly, the material available to the Tribunal does not point to a hypothesis linking the state of the veteran’s dental health, or a preference for soft food, to his service.  Therefore, the claim must fail.

DECISION

28.     The Tribunal affirms the decision under review.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  10 November 2003

Date of decision:  14 November 2003
Advocate for applicant:                Mr B. Turner, RSL
Advocate for respondent:            Mr E. Nyhof

Solicitor for respondent:              Advocacy Section, Department of Veterans’ Affairs