Thom and Repatriation Commission [2000] AATA 1069 (5 December 2000)

Last Updated: 5 December 2000

DECISION AND REASONS FOR DECISION [2000] AATA 1069

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1999/447

VETERANS' APPEALS DIVISION )

Re Alma Mary Josephine THOM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 5 December 2000

Place Sydney

Decision The Tribunal affirms the decision under review.

..............................................

M T Lewis

Senior Member

CATCHWORDS

VETERAN'S AFFAIRS - veteran died from carcinoma of prostate with bony metastases - whether service caused a change in Veteran's eating habits that resulted in 40% increase in animal fat consumption - whether Veteran's high fat diet was war-caused - Statement of Principles applied - whether reasonable hypothesis that Veteran's death was war-caused -

Veteran's Entitlements Act 1986 ss120(1) and (3)

Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 26 February 1998 that determined that the death of Arthur Thom ("the Veteran") was not causally related to his war service. Alma Mary Josephine Thom ("the Applicant") sought review of that decision by the Veteran's Review Board ("the VRB") on 15 May 1998. The VRB affirmed the decision under review on 25 November 1998. The Applicant was advised of that decision by letter on 1 February 1999, and on 25 May 1999 she sought review of that decision by this Tribunal.

2. At the hearing the Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Respondent tendered the following documentary evidence -

* Report of Ms Jane Shaw, dietician, dated 21 September 2000 (exhibit 1)

* Letter of instruction from Respondent to Ms Shaw and additional service documents (exhibit 2)

* Clinical notes from Nowra Community Hospital in respect of Arthur Thom (exhibit 3)

* Clinical notes from Dr I Hanan, Nowra, in respect of Arthur Thom (exhibit 4)

* Clinical notes from Dr P Whistler, Nowra, in respect of Arthur Thom (exhibit 5)

* Report from Professor Levi, oncologist, dated 13 July 2000 (exhibit 6)

The Applicant gave oral evidence at the hearing.

3. The Veteran served in the Royal Australian Air Force from 8 January 1940 to 12 November 1945, which included two periods overseas; the first was from August 1941 until March 1942 when he served in Malaya, Singapore and Sumatra; the second was from March 1945 until October 1945 in Bougainville and Madang. When he enlisted he was an aircraft hand/mechanic and during service he achieved a number of promotions, culminating with the rank of flight sergeant at discharge. Because of the Veteran's overseas service he is deemed to have operational service for the purpose of determining this claim. The veteran died on 18 June 1997. The cause of death was primary carcinoma of the prostate with bony metastases.

4. As the Veteran had operational service, this matter falls for determination pursuant to ss120(1) and (3) of the Veteran's Entitlements Act 1986 ("the Act"). That requires a reasonable hypothesis to be raised connecting the Veteran's death with his war service, that is not dispelled beyond reasonable doubt. As the Applicant lodged her application for review after 1 June 1994 the Tribunal is required pursuant to s120A of the Act, to apply the relevant Statement of Principles in respect of carcinoma of the prostate. At the time of the primary decision the relevant statement of principles was Instrument No. 95 of 1995 as amended by Instrument No. 191 of 1996. Pursuant to the Full Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108 the Applicant has an accrued right to have her matter determined using the Statement of Principles in place at the time of the primary decision.

5. It was the Respondent's submission that the applicant was required to pursue her accrued right in these circumstances and therefore Instrument no. 95 of 1995 as amended by Instrument No. 191 of 1996 was the Statement of Principles to be applied. The Applicant's representative agreed that those Statements of Principles as amended were in all relevant ways similar to the most recent Statement of Principles, Instrument No.84 of 1999. The Applicant sought to rely on factor 5(c) of the latest Statement of Principles which was the same as factor 1(b) in the earlier Statement of Principles, viz,

"increasing animal fat consumption by at least 40% to at least 70g/day for at least 20 years before the clinical onset of malignant neoplasma prostate."

In the alternative it was the Applicant's submission that the Veteran did not die from a primary carcinoma of the prostate and that the primary site was unknown. The hypothesis that the Applicant pursued was that since the Veteran's discharge from the RAAF, he has had a life time of ill health.

6. In respect of the diagnosis of primary carcinoma of the prostate, the Tribunal must be reasonably satisfied that the Veteran suffered from that condition and that it caused his death. The Tribunal has examined in detail the clinical notes from the Nowra Community Hospital that deal with his hospital admissions over some 13 months prior to his death. All those admissions were for adenocarcinoma of the prostate. A pathology report (exhibit 3 p121) revealed a high grade adenocarcinoma on microscopic histopathology examination following trans-urethral resection on 31 July 1996. A CT examination of the abdomen and pelvis on 13 June 1996 showed that the prostate gland was diffusely enlarged and there was a diffuse increase in density throughout the regional bony structures, highly suggestive of wide-spread metastatic disease most likely from the prostate primary. Extensive bony involvement was confirmed with plain X-rays of the abdomen and pelvis and there was also involvement of the upper femur. At that time there was also marked distension of the urinary bladder. Following the trans-urethral resection the Veteran was still unable to void and therefore a permanent indwelling catheter was in place. For a number of months prior to his death he suffered anaemia related to his carcinoma of the prostate and was admitted to hospital for short periods for blood transfusions. A whole body scan was performed on 28 November on 1996. The findings were consistent with diffuse malignant infiltration and there was extensive infiltration of the posterior ribs and thoracic spine (exhibit 4 p17).

7. On the basis of the documentary evidence before the Tribunal, including but not confined to the report of Professor Levi (exhibit 6), the Tribunal is reasonably satisfied that the Veteran suffered from a primary carcinoma of the prostate with multiple bony metastasis, and that he died from that condition. The Applicant questioned whether perhaps the malignancy was in the bladder rather than in the prostate. There is no evidence to confirm that hypothesis in the clinical notes, and indeed the radiological evidence is clearly against it.

8. There is evidence that the Veteran suffered from lumbar spondylosis and hypertension but these conditions were in no way implicated in his death. The Tribunal accepts the Applicant's evidence that the Veteran had an extremely stressful war service, during which he suffered malaria and dengue fever, and that he survived two aeroplane crashes. Moreover, at the time of the first crash he struggled in enemy territory for six days without food before reaching help. He returned to Australia in a condition of severe weight loss and poor nutrition. I also accept that the Veteran suffered chronically from severe headaches after his service. However there is absolutely no evidence before me that associates any of the above conditions with the later development of carcinoma of the prostate. Indeed that condition was not diagnosed until 1996, when secondaries were also identified. The Applicant's evidence was that the Veteran avoided medical consultations. It is quite likely that the carcinoma of the prostate was present for a number of years prior to its diagnosis.

9. In respect of the high fat diet hypothesis, the Tribunal notes the evidence of the Applicant and Ms Shaw, dietician. The history that the Applicant gave Ms Shaw is consistent with that given to the Tribunal. She had little knowledge of the Veteran's diet prior to service. She had no idea of his diet during service apart from bully beef. The Applicant met the Veteran in 1938 when she was aged 15 years and recalled him at that stage being tall and thin. She did not think that his height had increased from the time she first met him. They married in 1943 after his first period of overseas service when he had survived the first aeroplane crash. The Tribunal notes from service documents that the Veteran's height was 5 ft 11 inches; in November 1939 he was 142 lbs. and in 1941 after he enlisted he was 154 lbs. He was 152 lbs on discharge from the RAAF.

10. The Applicant understood that the Veteran's later service in New Guinea was stressful and again his aeroplane was shot down by the Japanese inside enemy lines. She said that he did not ever tell her about this but another serviceman who attended the Veteran's funeral advised her of it.

11. Following the Veteran's discharge he returned to work as a motor mechanic and worked in that capacity for some 15 or 16 years whilst obtaining engineering qualifications. When aged about 42 years he changed his employment and went to work as an engineer for British Motors. That job involved considerable travelling and regularly he was away for a whole week at a time and sometimes two weeks at a time. From then until he retired he was mostly working away from home, living out of motels. She said she had no idea of his diet while he was away from home but she knew that "he liked his food" and when he returned home on weekends he ate large meals.

12. The Applicant said that after the Veteran left the RAAF she was aware that he liked ice creams and pies and was very fond of steak. He weighed 15 stone at the age of 42 years, having steadily gained weight since his discharge from the RAAF. His highest weight was at about the age of 45 years. She thought that he would not have put on more than one stone between the ages of 42 and 45 years. She was constantly encouraging him to decrease his weight, but without success. The Veteran ceased work at the age of 65 years and the Applicant said his weight came down somewhat with his retirement but his weight was always a problem. However, in the few years prior to his death he lost considerable weight.

13. Ms Shaw noted that the Veteran's weight of 15 stone (94.95 kg) at the age of 42 years put him in the top third of the Australian Nutrition foundation healthy weight range chart. The only disagreement the Applicant had with Ms Shaw's report was that the Applicant did not cook food in animal fact.

14. There is no evidence before the Tribunal to indicate that the Veteran's diet on service caused him to gain weight considerably on service or to pursue the diet that the Applicant described after his service. Despite careful taking of evidence regarding any association, and cross examination on behalf of the Respondent, there was absolutely no evidence to support the Applicant's case.

15. Having considered all the evidence before the Tribunal I find that there is no evidence that the circumstances of the Veteran's service caused an increase in his animal fat consumption by at least 40%. That is in no way downgrading his meritorious service. However, the Applicant admitted that when the Veteran became quiet and depressed without revealing the reason for this to her, he may go off his food rather than eat more at those times. She said she never asked him what was distressing him at that time but had always assumed that he was bothered by memories of his war service.

16. I note that there is an absolute dearth of evidence on the Veteran's diet before and during service, which makes it impossible to conclude that he had a 40% increase in fat consumption as a result of his war service. It is very likely because of the increase in his weight after his discharge from the RAAF, that he had a high fat diet, but that on its own does not implicate his service in any way.

17. It was submitted for the Applicant that it was unfair that many other Veterans or their widows had their claims accepted at times prior to 1 June 1994 in respect of carcinoma of the prostate, but that in this case despite the Veteran's meritorious service, this claim must be considered in accordance with the Statement of Principles. It was noted that the Veteran was a heavy smoker and that many other veteran's claims were accepted on the basis of a smoking habit. It was also submitted that had this Veteran claimed for his war caused disabilities prior to his death then his widow would now be granted war widow's pension as he would have been in receipt of a Special Rate pension.

18. Whatever the state of the Veteran's health prior to becoming afflicted with carcinoma of the prostate, the fact remains he chose not to lodge any claims and therefore the Tribunal is unable to take any of those speculations into account. Many of the submissions made on behalf of the Applicant by her representative were in relation to medical issues about which he had no medical support. Indeed had the Applicant's advocate properly understood the medical and legal issues involved in this matter she may have decided not to proceed with her claim to hearing.

19. As the hypothesis raised does not meet the factors in the Statement of Principles the Tribunal is unable to conclude that a reasonable hypothesis has been raised. Therefore the requirements of s120(3) of the Act have not been met and therefore the Tribunal must conclude the Veteran's service was in no way related to his death. The decision under review is therefore affirmed.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis

Signed: .....................................................................................

Associate

Date/s of Hearing 9 November 2000

Date of Decision 5 December 2000

Counsel for the Applicant Mr Doug Rymer

Solicitor for the Applicant

Counsel for the Respondent Ms Philippa Hook

Solicitor for the Respondent