Advisory from Disability Compensation Branch

No 3 of 2001

Please note: For furthe — r information in relation to Ma — lig — n — ant Neoplasm of the Prostate and Consumption of Animal Fat refer to Advisory Note 1 of 2007.

This is an advisory note only.  Disability Compensation Branch and Legal Services Group have agreed this policy view.  It is not a Repatriation Commission Guideline or a Departmental Instruction.   The advice is not intended to conflict with the proper application of the Veterans' Entitlements Act 1986 or the judgements of the Courts.  It may be subject to change as a result of further interpretation by the Courts of the legislation.  Nevertheless it represents a considered view that should be taken into account by all delegates.

DEALING WITH CLAIMS RELATING TO POST SERVICE DIET AND MALIGNANT NEOPLASM OF THE PROSTATE

This paper is intended to assist decision-makers in applying the animal fat consumption factors in the Statements of Principles for malignant neoplasm of the prostate.  It contains a “Dietary Survey Form” for use whenever it is appropriate.

Decision-makers should also refer to Advisory No 3 of 1999 for other information.

2.The paper deals predominantly with WW2 veterans, as they are the main group to whom the SoPs apply.

Daily fat consumption

3.In relation to WW2 veterans, the requirement to have animal fat consumption of at least 70gms/day is easily satisfied, as both civilian and military diets at that time typically had animal fat content well in excess of that level.  The requirement to maintain an intake of at least 70gms/day for 20 or 25 years is also easily satisfied, as typical Australian diets contained animal fat in excess of that level until at least the 1970s.

4.This means that a general claim that a military diet was “fattier” than the previous civilian diet is untenable without a dietary history of both periods.  Individual claims must be treated on their merits.

5.The SoP factor requirement for an increase in consumption by at least 40% is the real test to be satisfied.  This is because an average civilian diet before and during WW2 contained more animal-fat than most service rations.  In addition the SoP factors require that increased level of consumption to be maintained for 20 or 25 years and for that increased consumption to be attributable to service.

Prostate Cancer and Dietary Fat

6.The President of the AAT, in the six test cases heard to date, has accepted that in some limited circumstances a veteran may have had a diet higher in fat than the civilian diet or the military diets of any other theatres of war.  A veteran of World War II who had service in the SouthWest Pacific theatre from 4 February 1944 to the end of the war in 1945 is such a circumstance.

7.However, this diet is not of the required 40% increase required by the SoP.  Nevertheless, it appears that in certain circumstances this connection could be accepted as causing post war dietary fat increases to the required level and maintenance of that increased consumption of higher amounts of dietary fat for the requisite 20-year period.

8.A second conclusion is that this connection does not apply to “eligible service” cases (see Grace).  On the balance of probabilities the military diet does not carry over to the post war civilian diet.

9.On the basis of these decisions it seems possible that operational service cases with service in the SouthWest Pacific theatre in World War 2 (post 1944) could be accepted if they were to satisfy the Statements of Principles requirements of a 40% increase. At the same time the case of Collingwood shows that the requirement for the connection and the increase is a matter that must be the subject of a finding of fact by the decision-maker, else it can not succeed.

10.Without a connection of 40% higher fat diet for a period of 20 years to an increase on service the acceptance of prostate cancer as service related is tenuous.  The connection would depend on the facts emerging from the diet questionnaires.  The AAT itself remarked that it had no evidence before it that might indicate the minimum increase or duration of an increase on service before it could be implicated in a later 40% increase.  To date there has been no such evidence available.

11.In addition, cases involving operational service in all theatres of operations might give rise to an hypothesis (see the Deledio Guidelines) where there was a pre-war diet very low in animal fat or service rations were supplemented by foods high in animal fat. All other aspects of the factor, eg the need for a 40% increase in fat consumption that lasts for at least 20 years, must still be satisfied.

What questions need to be asked?

12.There are four questions that need to be answered.  It requires a “yes” answer to all of them for the SoP factors to be satisfied.

1. Did animal-fat intake in the diet increase by at least 40%?
2. Was that increased intake maintained for at least 20 years in operational and equivalent service cases and 25 years for those with eligible WW2 or defence service post 1972?
3. Was the initial increase in animal-fat consumption attributable to service?
4. Was the increased intake over the next 20/25 years attributable to service?

Diet history

13.Self-reports of a change in dietary habit (or otherwise) are of little probative value.   Statements concerning the circumstances of service or past experiences by a veteran, or widow, are relevant, but uncorroborated self-reports on any issue are generally unreliable. However, an attempt to get as much information as possible should be made.

14.This material, including claimed alteration in a person's dietary habit, is capable of critical assessment by an appropriate specialist as long as sufficient information is made available.

15.An accredited practising dietitian is an appropriate expert to consult in relation to dietary allegations.  Such an opinion can mean that an essential fact for the hypothesis can be considered under the Deledio Guidelines at Stage 4.

16.Suitable dietitians in each State exist and Tribunal advocates can advise Claims Assessors of appropriate specialists.

The Survey Form

17.The attached Diet Survey Form is for use in situations where information is required in order to enable a dietitian to report on the level of fat consumption.

DIETARY SURVEY for   ...................................................

This dietary survey includes questions on what foods were eaten by the veteran and how often they were eaten during two different periods.  These periods cover:

2. After World War 2 for a period of at least 20 years, before the veteran's clinical signs of prostate cancer.

If you are unable to provide this information for either of these two periods (eg  if you did not know your husband before World War 2 ), please indicate this by ticking the No box.  Please record your reason for making this decision.

First we need some background information on yourself.