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Tribunal: Senior Member Michael McGrowdie

The applicant was the widow of a Second World War veteran who served in the Australian Air Force and flew low flying aircraft around New Guinea. The veteran suffered traumatic experiences and on at least one occasion was picked up by local native inhabitants after being shot down. The veteran took to alcohol following his military engagements and this habit continued for many years. He died of prostate cancer in a nursing home on 11 September 2013 aged 95 years. The issue in this case was whether alcohol consumption was induced by service and that consumption materially contributed to the development of his prostate cancer and subsequent death. That is, whether he died as a result of wartime service.

Section 196B(14)(d) of the Veterans Entitlement Act 1986 (the Act), provides that a factor causing or contributing to death is related to service if “it was contributed to in a material degree by, or was aggravated by, that service”. In respect of this question, section 120 of the Act requires there to be a “reasonable hypothesis” connecting the death with the circumstances of the particular service rendered by the person, beyond reasonable doubt.

The veteran died from a cancer technically referred to as malignant neoplasm of the prostate. The Repatriation Medical Authority released a Statement of Principles concerning Malignant Neoplasm of the Prostate, which provides the criterion to be satisfied in order for death from the condition to be considered related to service. It provides that the sufferer of the condition must have been “drinking at least 200 kilograms of alcohol within any ten year period within the 20 years before the clinical onset of malignant neoplasm of the prostate”.

The issue in the matter concerned “clinical onset” of the disease, which is not defined in the relevant legislation. “Clinical onset” was discussed in detail in Lees v Repatriation Commission [2002] FCAFC 398. The Court indicated that it is not sufficient to later identify when a process commenced, but rather determining when the process could be clinically identified.

The veteran had PSA blood tests taken in the 1990’s, which can flag prostate cancer if levels are elevated. In August 1998 the veteran registered an abnormal PSA reading, which the Tribunal considered to be the appropriate date for the purposes of determining the clinical onset of the cancer. Therefore, in order to satisfy the criterion the veteran must have consumed 200 kilograms within any ten year period within the 20 years before the clinical onset, that date being August 1978.

The evidence before the Tribunal was that there was heavy drinking between August 1978 and August 1985, a period of seven years. The Tribunal heard evidence from the applicant’s daughters about the veteran’s drinking habits and took into account evidence provided by an oncologist called by the Repatriation Commission. With the benefit of this evidence, the Tribunal reasoned that the veteran probably consumed in excess of 33 kilograms per year for 7 years, a total 231 kilograms for that period. The Tribunal concluded that in those seven years, and the following three, there was likely to have been consumption in excess of the required amount in accordance with the statement of principles.

The Tribunal concluded, as the reasonable hypothesis made out, that the veteran’s drinking followed from his war time experiences and the veteran’s death was war-caused. That is, because war experiences led to excessive drinking, the level of drinking was a material factor in the veteran developing prostate cancer and that prostate cancer was a cause of death. Accordingly, the applicant, being the widow of the veteran, was entitled to benefits.

Read the full written decision on AustLII.