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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Prostate cancer - animal fat consumption
Re D A Rhodes and Repatriation Commission
McDonald
V96/891
5 February 1999
[Full Text]
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Mrs Rhodes lodged an application to the Tribunal for review of a decision that the death of her late husband from prostate cancer was not war-caused. The veteran served in the Army in Australia during World War 2 and this constituted eligible war service in terms of the VE Act. Mrs Rhodes claimed that during his Army service, he developed a dietary habit involving a high fat intake, which continued in the post-war period until the diagnosis of the cancer which led to his death.
The Tribunal was required to consider the application in terms of the Statement of Principles (No 96 of 1995 as amended) which contains the following factors relating to eligible war service:
"(a) increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate; or
(b) inability to obtain appropriate clinical management for malignant neoplasm of the prostate."
Mrs Rhodes told the Tribunal that her husband came from a large family and did not have access to rich foods. During the war, he acquired a taste for large quantities of dairy products, including milk, cream and cheese. He also began to eat bacon, eggs and fried bread for breakfast.
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Medical evidence
Dr K Byrne, clinical and forensic psychologist, was of the opinion that the late veteran's dietary habits after the war could not be related to his Army service. Dr D Sime, consultant psychiatrist, was of the view that the veteran's post-war diet was related to his service.
Two medical reports on service diet during World War 2 were also before the Tribunal. A report by Dr Davidson dated May 1988 concluded that the mean content of fat and energy was slightly greater in the Defence Force diets than in the civilian diet. A report by Dr R English dated August 1998 concluded that service rations for personnel serving in Australia contained an animal fat content of 78.5 to 88.8 per cent of the civilian diet for the same period. The English report concluded that, while there was some evidence to support exposure to service rations inducing a food behavioural change to a diet high in animal fats, this was but one among many complex factors affecting an individual's food patterns and that it would be:
"... considered speculative to place much weight on a period of military service as responsible for food consumption patterns maintained for a minimum period of 20 years. It is proposed that such a link can only be described as tenuous, and unsupported by a reasonable level of evidence."
Ms Wailes, a dietician, prepared a report showing the late veteran's saturated (being equivalent of animal) fat intake increased during and after the war. She concluded that, since he gained weight during the war and remained a solid build thereafter:
"These figures indicate that during the period of the war a significant increase in animal fat intake occurred. This doubled and continued increasing over the years, an increase of 69% to the period of diagnosis."
In cross-examination, Ms Wailes agreed that other factors would also have influenced the veteran's post-war dietary habits, e.g. his wife's pattern of food preparation and consumption. Dr English's report was put to Ms Wailes who agreed that the report demonstrated a pattern inconsistent with her findings with respect to the veteran. Ms Wailes pointed out that Dr English's report was based on a statistical conclusion and, while she did not disagree with its conclusions, she maintained it was clear that the contents did not reflect the information provided in the case of this particular veteran.
Submissions
The Repatriation Commission submitted that there was no causal relationship between the veteran's war service and his post-war diet. It was submitted that it could not be said that, on the balance of probabilities, the veteran had a 40 per cent increase to at least 70 grams per day over a period of at least 25 years and that that increase was contributed to in a material degree by the veteran's war service.
Mrs Rhodes's counsel submitted that while other factors such as post-war prosperity and his wife's cooking habits had affected the veteran's diet, those factors did not displace the dietary change to a fat rich diet which first occurred during war service.
Tribunal's conclusion
The Tribunal said that while reports such as those by Drs Davidson and English provided useful comparative statistical information, they did not provide any conclusive answers in the case of a particular individual. That evidence had to be assessed on a case by case basis.
The Tribunal was satisfied that, during and after the war, until the diagnosis of his prostate condition, the veteran developed and maintained a diet high in animal fat. It was satisfied based on Ms Wailes's calculations that factor 1(a) of the Statement of Principles had been met, i.e. that the veteran experienced an increase in animal fat consumption by at least 40 per cent to at least 70 grams per day for at least 25 years before the clinical onset of the condition. The Tribunal concluded:
"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. Accordingly, the Tribunal is satisfied that s 196B(14)(d) is satisfied.
If the Tribunal is wrong about that, then the Tribunal is satisfied that the dietary habits developed by the veteran during his period of war service contributed in a material degree to the development of his disease. Again, that contribution does not need to be the sole or exclusive contribution, it just needs to be a contribution in a material degree. The reference to the adjectival 'material' is, as Davies J pointed out in Repatriation Commission v Bendy (1989) 18 ALD 144 at 146, a reference to materiality in the sense of being pertinent or likely to influence. The Tribunal is satisfied that the change in the veteran's diet arising from the increased fat intake during the period of his war service so that a pattern of high fat intake was established is one of the pertinent factors which has influenced subsequent development of his prostate cancer condition. To that extent, it is, in the opinion of the Tribunal, a contribution in a material degree to the development of that condition."
Formal decision
The Tribunal set aside the decision under review and substituted its decision that the veteran's death was war-caused.