Saturday, 2 March 2013

9. The War Widow Racket

If a man died at the age of 91½, you would hardly think that his death was due to the war. Neither would I, but I gave his widow a War Widow’s pension anyway. I was only following the law and the SoPs. Yes, this is an extreme case, but not as extreme as you might imagine. Deaths at the age of well over 80 are regularly accepted as war-caused. How, you may ask, does this happen?
The War Widow’s pension was originally intended for relatively young women, often with children in tow, who were bereft of the emotional and financial support of a husband, killed on service, or who died of his injuries or war-caught diseases soon after discharge. Those who fitted that archetype were plentiful in the immediate aftermath of the First and Second World Wars, and they had a hard row to hoe. But today the average War Widow is an old lady whose partner in life died at a ripe old age, and had not been supporting her for years, because they had both been on the Service Pension for ages. The War Widow’s pension is still predominantly a World War II phenomenon, because that conflict produced more veterans than all the later wars combined, and because most of the veterans of later wars are still alive.
Because the War Widow’s pension was originally conceived as a substitute for a civilian widow’s pension, it cannot be paid in addition to a Centrelink pension. It is only 5% more than a full single-rate old age pension. However, the addition of what is known as an Income Support Supplement, which is income- and assets-tested, plus the Domestic Allowance, raises it to approximately a third higher than the civilian widow’s pension. Also, it comes with a number of concessions, such as the coveted Gold Card, making it even more desirable. Furthermore, the basic pension is free of any income- or assets-test so, even without the abovementioned supplements, it is a boon to widows who do have significant income or assets, and to younger widows who are still working.
A War Widow’s pension, which is now also payable to widowers, is granted if the spouse’s death was due to service, or to an A/D, or if, before he died, he had been a P.O.W., or was receiving a pension at the TPI, TTI or EDA rates, or one of the special pensions for amputees or blinded veterans. At the same time, the deceased will be entitled to a War Graves plaque, because Australia is one of the few countries which commemorates deaths occurring after a war ends.
You may assume that the above mention of death due to an A/D is superfluous, being covered by the category of death due to service. But turn your mind back to the comment in Chapter 3, that the Department is not estopped by previous decisions, but must apply the current law. Frequently, one would find that a veteran had (say) heart disease accepted back in the old days, when decision making was rather sloppy. He and his wife had both assumed that if he died of that condition, his wife would receive a pension. Alas, when he did pass on, it was discovered that for decades he had been receiving a pension on dubious grounds; his heart disease could not stand up to the requirements of the SoP. This obviously upset the RSL and Legacy, for whom the benefits of widows was of prime concern, so that lobbied to have death due to an A/D made into an automatic acceptance of War Widow’s pension.

Originally, the War Widow’s pension was forfeited once the lady remarried. At the time when War Widows were young, and had children, and a husband’s wage was better than the pension, this made sense, but as time passed it lost its rationale, and various problems arose. The most obvious was that it discouraged remarriage. The custom arose in which the widow would simply live in sin with her new love, perhaps changing her name to his, and telling the neighbours that they were really married. As far as the law was concerned, this was not fraud. This all ended in 1984, when the legislation was changed to permit War Widows to keep the pension on remarriage.
Nevertheless, if you expect to be in that position, it is important to note that you must claim the pension before you tie the knot the second time, because once you remarry, you are no longer A’s widow, but turn into B’s wife.
If you are married, it is not necessary to have been living with your husband in order to be a War Widow. There have been cases where a pension has been granted where the couple have been living apart for ten or twenty years. (You’ll remember the case of Mrs Rose in Chaper 3.) I even recall one letter which read: “Can you please tell me if my husband is still alive, and if he isn’t, can I get a War Widow’s pension?” The irony is, she had a not insignificant chance of success.
On the other hand, it is not necessary for you to be married in order to obtain a War Widow’s pension – as long as you lived in a “marriage like relationship”. Why, you may ask, should this be the case? If people want the benefits of marriage, they can always marry. It is not as if marriage were difficult. Once upon a time people lived together because one was already legally married, and the aggrieved spouse refused to give him or her a divorce. But that ended with the advent of easy, no-fault divorce. One social evil has thus cured another.
It was introduced back in 1916, when it was realised that many potential servicemen were living in such irregular relationships, and would not be prepared to volunteer if they knew their de factos would not be cared for in the event of their deaths. But at first, they had to be living together at the time of his service. It was only in 1973 that liaisons entered into later were included. This marks another social phenomenon: for more than thirty years successive governments have had an animus against marriage. They want to make these uncommitted, and consequently unstable unions the equivalent of holy matrimony. In the case of Service Pensions, people are classified as being either a “partnered” or “not a member of a couple”, marriage being considered only one form of partnership or coupling.
Of course, the ultimate example of government's animus against marriage is the law passed in November 2008, which treats homosexual and lesbian liaisons as the equivalent of marriage.
That this is open to abuse need hardly be mentioned, because the whole point of living in sin is to obtain the benefits of marriage without the responsibilities. In practice, the relationship is announced only when it is to their advantage to do so. For example, because couples enjoy the economy of shared expenses, pensions are one fifth higher for single (sorry, “not a member of a couple”) persons than for those who are “partnered”. Suppose, for example, he was on a Service Pension and she was on a Centrelink pension. They are legally obliged to tell their respective departments about their living arrangements, in which case both pensions would be cut by a fifth. Therefore, some couples choose to ignore the law, and pocket the money, but when the man dies, the woman comes out and bleats, “I was his de facto!”
Veterans’ Affairs used to regularly reject such claims, until they discovered that the Veterans’ Review Board was regularly accepting them. However, there was a catch. The Department would then “dob her in” to Centrelink and, hopefully, she would be forced to pay back all the extra pension she had received. On safer ground is the woman who is herself still working while living with a Veterans’ Affairs pensioner. Once he is dead, she can safely claim a War Widow’s pension. After all, he was the one who had been guilty of fraud, not her. She was under no legal obligation to report her lover’s living arrangements, however morally obliged she might have been.
And one thing the average person will find particularly hard to accept is that, in this supposedly monogamous society, a man can leave behind two War Widows: his legal widow and his de facto. In one notorious case, he left three. Although not divorced from his wife, he was partway between two de factos when his time ran out, and both of them were able to make a case that they had been in a marriage-like relationship. No doubt we will now start seeing cases where the War Widows are of opposite sex: one the legal wife, the other the boyfriend he left her for.

Let us now look as the progress of a typical War Widow’s claim. Bear in mind that most elderly widows know little about the law. They assume that, just because their husbands were veterans, they would be eligible. Or else they assume that his death was due to service because, well, it must have been, mustn’t it? As one old lady said to me: “I’m sure that the average person would agree that all the hardships of the war must have shortened his life.” As politely as possible, I tried to explain that the average person probably does not consider 80 years to be a sign of a markedly shortened life.
Most claimants have a representative from the ex-service organisations, perhaps 30 or 40 per cent from Legacy. Legacy no doubt does sterling work in helping the dependents of ex-servicemen over difficult times, but its behaviour with respect to War Widow’s pensions leaves much to be desired. Every branch is different, of course, but by and large, Legacy believes that every widow deserves a pension and that, often enough, all is fair in seeking it. They encourage widows to lodge claims without enquiring about the merits. I have spoken to widows who had no idea why they were making the claim, except that Legacy told them to. One widow, indeed, did not even know a claim had been made. A Legacy representative had simply arrived at her house in the aftermath of her husband’s death and, in the process of assisting in the grieving process, and handling the normal paperwork surrounding death, got her to sign the requisite form.
They are no doubt acting on the principle that “you’ve got to be in it to win it”, and they feel justified in putting their client’s name into the draw. After all, on the law of averages, most claims can be accepted on very little evidence. But if the claim isn’t accepted, then Legacy, and most other ex-service organisations, will almost invariably appeal to the VRB on her behalf – even in cases they know are so weak that they did not make any submissions in the first instance. Strong ethical problems arise in such instances, because they are dragging these old ladies through the process, sometimes for years, with false hope, saying, in effect, “Don’t worry, dear. Just lodge the appeal. We’ll find a way to get you a pension.” And if they fail, they hand it over to a lawyer with the unenviable task of taking it to the AAT – all financed by the taxpayer through legal aid.
It doesn’t even stop there. At one point one major Legacy branch decided to go through all their old lost causes, and try again. Who knows? They may have overlooked something the first time, or the SoP might have changed, or perhaps the case might go to a less critical Claims Assessor. There was no need to vet them first; after all, it costs nothing to lodge a claim. Needless to say, the widows themselves had nothing to do with it; their job was merely to sign the forms.
Now the claim comes to a Claims Assessor. Usually, investigation is simple. In the vast majority of cases, death due to service means death due to smoking. The 1992 Auditor-General’s reported indicated that the average age of death in successful War Widow’s claims was 73 (it is now over 80), that 30% were automatic grants, because he had been on a TPI or EDA pension, and 90% of the rest were due to smoking. Living veterans can get pensions for hearing loss, solar skin damage, and orthopaedic conditions, but such conditions do not cause death. The biggest killers are respiratory diseases, heart diseases, and cancers, and if these cannot be related to service by way of smoking, normally no connection can be found.
In many cases, her husband had already signed a smoking questionnaire while still alive. If he didn’t, what then? As pointed out in chapter 3, the average veteran’s memory of his own smoking history is inaccurate. We can hardly expect his wife’s memory to be any better. Even if she knew him before the war, did she really take note of his habits? My own brother started smoking as a teenager; I lived with him at the time. But if you asked me to narrow it down to some specific circumstances, such as a particular job, I would be at a loss. Third parties do not normally pay that much attention. My own father smoked like a chimney, but if you asked me how much he smoked, my guesswork would be worthless. Likewise, if a widow remembered her husband smoking before he went to war, can she realistically say, decades after the event, whether or not his habit increased? He was the one who purchased the tobacco, not her.
In most cases, she did not meet him until after the war, and he was already smoking. She might be able to find brothers or sisters who could comment on his pre-enlistment habit. Otherwise – as is most commonly the case – she can say that he told her he commenced on service. Did he? I would have thought that the date a man started smoking would not have been a major topic of conversation in most households. In most cases, I suspect, she is basing it on some casual, half-remembered remarks made decades before, to which she never paid much attention until now. A memory is being created to meet the occasion – honestly, no doubt, but nevertheless artificially. The human brain, it must be again emphasized, is not a computer. Memories do not stay frozen immobile; they can be subconsciously manipulated.
Even clear recollections can be false. One lady recounted about how her airman husband had injured his hand on a moving propeller, and was given his first cigarette to calm him down as he was carried away on a stretcher. It was all very clear and convincing – except that it was wrong. The accident was specifically recorded on his service medical documents, but his pre-enlistment medical exam specifically listed him as a smoker. The anecdote was no doubt a favourite one in the family, and the cigarette on the stretcher had morphed in their minds – and probably the veteran’s as well – as his first smoke. But it wasn’t. If it had been, needless to say, it would hardly have calmed him down; it would have precipitated a coughing fit.
All these reservations weigh on the mind of the Delegate investigating the claim, but what is he to do? He has a very heavy workload. His job is to churn out decisions, with little time for investigation. Also, Legacy makes it harder by filtering the information coming to the Department. Long ago, they made the Department agree not to contact the widows directly, but to address all their questions to Legacy. The rationale was that the widow is too distressed by her recent bereavement, but that argument appears a bit contrived when the death has occurred several years before. In particular, the department is not allowed to send smoking or alcohol questionnaires to Legacy widows, but to allow Legacy to gather the information. The result is that the Delegate has to make do with the bare minimum of details supplied by Legacy, rather than the full story he would like. One Legacy branch even had its own smoking questionnaire, with a very leading question to the effect: If you do not know when your husband started smoking, provide whatever details you can eg he told me he started on service.
Just how much value can be placed on these statements was something I discovered during one short period when I had forgotten the “deal” made between Legacy and my office. Whenever a widow stated she had met her husband after the war, I telephoned and asked for clarification. With few exceptions, as soon as I said, “How do you know when he started smoking?” or “What exactly did he tell you about why he started smoking?”, her case collapsed. She really had no clear knowledge of the facts. The confident written statement to which she had appended her signature turned out to be a result of wishful thinking, suggestion, and Legacy pushing.
On another occasion, I accidentally turned over two pages of a file at once, and failed to see the Legacy cover sheet attached to the claim form. Great, I thought, here is an unrepresented widow. I immediately telephoned her and asked what she knew about her husband’s smoking habits. Despite being given every opportunity, she resolutely denied that she knew when he started to smoke. A few weeks later, however, in came a smoking history, submitted by Legacy, stating that he had told her he commenced on service. I immediately rejected the claim, and gave reasons. Would you believe? the Legacy officer had the hide to phone and complain that I had contacted the widow directly.
Once more the old problem emerges: not only must we rely on the honesty of the claimants, but also that of their representatives. Most, no doubt, are reasonably honest, but some are not. The most egregious case was a character who used to alter the claim forms. A war widow’s claim form includes a question as to whether a veteran ever smoked. If a widow ticked “no”, this fellow would white it out and tick “yes” – presumably in order to provide a false questionnaire later on. Only when the Department noticed a pattern, and presented the evidence to his organisation, did the practice stop.

This, then, is the highly tenuous evidence on which thousands of War Widow’s pensions are being granted every year. But increasingly, veterans are dying of non-smoking diseases – for the simple reason that most of the long time smokers are already dead. This calls for a little lateral thinking by the representative in manufacturing an hypothesis. No, I don’t think “manufacture” is too strong a word. The activity is not fraudulent, but it involves the reverse of the normal coronial process. Instead of looking at the data, and then determining whether the veteran’s death is due to service, the representative (the widow usually has nothing to do with it) starts with the assumption that the connection exists, and then cherry picks the data for whatever will help the case. Occasionally the organisation has a retired doctor on retainer to tease out the hypothesis. Not infrequently, this results in a highly artificial scheme involving three or four steps – all eminently challengeable – between war and death.
A simpler approach, if the veteran had been a smoker in the past, is to challenge the cause of death. It has the drawback, of course, that the cause of death is established on the balance of probabilities, but it is worth a try. These days, for example, we are seeing Alzheimer’s disease, the most common form of dementia, claiming the lives of more and more veterans. The contention will therefore be raised that the dementia was really caused by a smoking related cerebrovascular disease. And, of course, a person does not actually die directly from dementia. The most likely scenario is that the dementia causes prolonged immobility, leading to pneumonia. Then the suggestion will be made that a smoking related lung disease rendered him more susceptible to infection. Otherwise, it will be contended that some other, smoking related disease, known to be present, contributed to the death in some minor fashion. Seldom is the point raised that death is an all-or-nothing affair which admits to no degrees of severity. Therefore, to say that something “contributed” to death is to say that, in its absence, the patient would have recovered. Nor does anyone notice how far they have come from the original intention of the pension. Instead of a young woman bereft of a husband prematurely, we have an old lady merely missing out on a few weeks or days of her husband’s terminal illness.
If the veteran were not a smoker, then they have to revert to plan B. Perhaps the war led him to suffer from an undiagnosed anxiety or depressive disorder, which led to hypertension, and thence to heart disease or a stroke. Perhaps his heart disease was caused by an undiagnosed depressive disorder, or perhaps his accepted anxiety disorder was really panic disorder. (As you may have guessed, the SoPs provide different psychiatric risk factors for heart disease, stroke, and hypertension.) A veteran may not have been an alcoholic, but his alcohol consumption was still within the risk parameters for hypertension or stroke. So perhaps he drank because of an undiagnosed psychiatric disorder. Or perhaps he merely drank because he was introduced to the stuff on service, and learned to like it.
If all this fails, there is always plan C: perhaps his war-caused orthopaedic conditions prevented him from exercising, thus putting him at risk for hypertension, heart disease, and stroke.
At the primary level and the Veterans' Review Board, these artificial schemes are seldom supported with any real evidence, and so receive short shrift. It is normally only when the case is placed in the lap of some hapless lawyer for an appeal to the Administrative Appeals Tribunal that the hypothesis starts acquiring substance. At that level, they can get the taxpayer to fund them, via legal aid, to obtain a report from a compliant specialist, or to send the widow to a tame psychiatrist for a posthumous diagnosis. The department then has to spend more taxpayers’ money obtaining evidence from trustworthy specialists, and then spend more to have them give evidence at the Tribunal.
At that point, they have a major advantage: the Tribunal has a particular soft spot for widows. You will remember from Chapter 3 that, in 1983, 98% of War Widow’s claims succeeded at the RRT. The advent of the SoPs has made it a bit more difficult for the AAT, but their attitude is similar. Faced with an elderly, frail widow, members of the Tribunal will bend over backwards to give her a pension. Advocates know that they are pushing a stone uphill if they wish to defeat a claim for War Widow’s pension. The case has to be exceptionally weak or the lady exceptionally unlucky for her to fail. I remember one particularly generous Tribunal member who accepted a death claim on the basis of an hypothesis never raised at the hearing by either party. Another time, he sent me back to look for more evidence. (Alas, the extra evidence did not support the claim.)

I could give many examples of the tortuous hypotheses I have been forced to argue against, but two categories stand out as particularly egregious: the claims involving salt and fat consumption.
The first category involves hypertension or high blood pressure. This is a gateway disorder, because it is a risk factor for various cardiovascular diseases – in particular, ischaemic heart disease and cerebrovascular accident (stroke). Therefore, if the veteran’s smoking history is not good enough, plan B is to pursue hypertension. In most cases, the cause is unknown, but there are two major risk factors which are worth a try:
  • Alcohol – specifically 300 grams of alcohol per week (500 grams on the balance of probabilities). This is only four drinks a day – think about that next time you go to the pub. However, the veteran must have been incapable of reducing his consumption below 200 grams. This used to imply alcoholism – but go back to Chapter 4, and the tortuous logic of Justice Rares. However, if he wasn’t an alcoholic, there may be some problem in linking his drinking habits to service, but it is still worth a try. Or else, the next risk factor can be brought into play:
  • Salt. High blood pressure in endemic in the Western world, and the probably reason is our predilection for salt. (I really must try to reduce it.) The SoP requires 12 grams a day (15 grams on the balance of probabilities) for at least six months immediately before the onset of hypertension.
In World War II, and right up to the 1960s, servicemen posted to the tropics, especially the wet tropics, were required to take salt tablets in the mistaken belief that they were depleting their natural salt reserves through sweat. If, therefore, a serviceman came down with hypertension at the time, there would be no problem in accepting it. But, in the vast majority of cases, the onset was much later. Advocates and lawyers for the widow will therefore ask how much salt her husband ate and, if it sounds high enough, claim that he acquired the habit on service. (Living veterans hardly ever make such claims.)
How realistic is this? We do not have any good survey of pre-war salt consumption in Australian society, but it does appear to have been fairly high. Prison rations were half an ounce (14 grams) a day, so presumably the half ounce ration provided to troops, in both tropical and temperate climates, approximates what they would have been eating at home. The real issue is therefore the salt tablets, but the quantity consumed is almost impossible to ascertain. Sometimes it was just one or two grams, sometimes much more. But there is good evidence about what affects a person’s salt preference. Salt is not addictive. Rather, people fed increased quantities can develop a taste for it, just as they can get used to lower quantities. But it must be tasted – and too much is aversive ie it tastes terrible. The point it, salt tablets are normally sculled down with water, and therefore not tasted. If they are chewed or sucked, the taste will be too strong, and the victim will not acquire a taste for it. Salt tablets, in other words, will not affect a person’s long term habits. This has been repeatedly been put to the Tribunal, and they repeatedly ignore it – because, after all, they’re dealing with a widow, and they are looking for any excuse to give her a pension.
And the irony is, the bogus nature of the contention can be seen as soon as you examine the big picture. If salt tablets really led to a “salt habit”, there should be just as many servicemen from tropic areas consuming large amounts of salt as there are smoking cigarettes. In fact, there should be more, because salt tablets were compulsory, while tobacco was discretionary.

But by far the most outrageous raid on the public purse involves the claims for prostate cancer. As explained in Chapter 5, if a man lives long enough, he will develop prostate cancer. Indeed, it is the second most common cause of cancer deaths in men, after lung cancer. So it has been a source of much frustration for the ex-service organisations that there does not appear to be any way to blame it on the war. The Holy Grail, of course, has been to find a link with smoking. In fact, for a short time, on the basis of some tenuous findings, the Department was conceding a connection with 25 pack years of smoking, but then the RMA came along and put the kibosh on it.
Really, apart from the egregious invocation of Agent Orange, the only risk factors for prostate cancer are masculinity, age, and animal fat, of which most Australian eat far too much. In 1999 the RMA came up with the following risk factor:
increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.
        Doesn’t look too hopeful, you might think. After all, none of our wars have lasted 20 years. But you don’t know the deviousness and ingenuity of widow’s lawyers, or the laxity of Tribunals. One team of Queensland lawyers came up with the idea: perhaps being fed fatty food during World War II caused the veteran to acquire a taste for animal fat in later life. The first such claims alleged, with the certainty of 50 year old hindsight, that the veteran came from a poor urban family who were virtually vegetarians - and, of course, the increased prosperity and food variety after the war had nothing to do with his change of diet. Later, it was extended to more mainstream cases, even when the widow had no knowledge of his pre-war diet. The irony was completely lost on them: here were widows, who had spent 40 or 50 years purchasing and preparing their husband’s food, asserting via their lawyers that his eating habits were all the result of the war. (Live veterans, as far as I know, have never made such a claim.)
Unfortunately, once such a contention looks like going to the Tribunal, it can’t just be laughed off. Contrary to popular belief, diggers posted overseas did not subsist wholly on a diet of bully beef, nor is bully beef particularly fatty – though the gelatine in which it is preserved may give that impression. But that still left open the question of just how much animal fat was present in wartime rations, and what the average prewar diet was like.
So the first step for the Department was, at great expense to the taxpayer, to commission a nutrition consultant to uncover the evidence. It turns out that there had been a major survey of the eating habits of Australian households in the period 1936-8. It indicated, in no uncertain terms, that, at the time, we ate far too much animal fat. These days, the widespread use of vegetable oils in cooking and food processing means that it is not always easy to reach the required threshold. But before the war animal fat was de rigueur. The average Australian male consumed 126 grams per day.
Next came an examination of the military ration scales issued during the war. This was a time of general food shortages, as many able bodied men were taken off the land, so you should not be surprised that most of the rations were lower in animal fat than the pre-war average. The exception was the rations issued in New Guinea and the southwest Pacific region from 4 February 1944. It was 8% above the pre-war level.
The next step in the expensive process was to collect a number of experts to discuss, in front of the Tribunal, the various scientific studies into the factors affecting food preferences. The mechanism is extremely complex. Humans have a natural taste for fat, provided it is not too concentrated. It tends to add flavour to foods. However, the level of fat which a person finds tasty can be changed with exposure. This is why most Australians, used to the meat of fattened domesticated animals, find kangaroo meat not so succulent. And, of course, the exposure to new foods is on-going, especially in the period of rising prosperity after the war, and after marrying a good cook.
Then there was the task of examining the dietary survey forms completed by the widows. It was soon discovered, and accepted by the Tribunal, that they were largely unreliable. For a person to remember the types and amounts of food consumed decades ago is a tall order at best; taller still when the information has to come second hand from the spouse. Although the questionnaire was made as simple as possible, many widows were confused by it. As a check on their accuracy, dietitians were required to do energy flow calculations ie estimate the amount of energy intake the veteran received from his food, and the amount expended in work. Time and again it was established that a veteran could not possibly eat as much as his widow claimed without becoming the size of a house. To complicate it all, most widows did not know their husbands prior to enlistment.
Even so, the lawyers were not prepared to give up. Finally, a series of test cases were heard, in which it was agreed that the only issue was the consumption of animal fat. All of the veterans had served in the right area at the right time and, evidence to the contrary being absent, it was assumed that their pre-war animal fat consumption was the same as the national average. Considering the general inaccuracy of the information available, and the great number of variables affecting eating habits, the outcome should have been a no-brainer. Apart from anything else, even if the new rations in 1944/45 were wholly responsible for any change in the subject’s food preference, they would have increase his animal fat consumption only 8%, instead of the required 40%. (This was long before Kattenberg muddied the waters.) Besides, when all the rhetoric was removed, the contention came down to this: because of a few months’ exposure to slightly more fatty tinned meat, and the like, a veteran came home with a lifetime desire to put butter on his bread and milk on his breakfast cereal, and help himself to ice-cream and pie for dessert, plus whatever roast meat and homemade biscuits his wife put in front of him. How could anybody, whose feet were still attached to the ground, accept such a suggestion?
The Tribunal did. You forget, they were dealing with elderly widows. That would be sufficient to cloud the minds of most Tribunal members. They came down on the side of the applicants. The logic of the written decision was not terribly clear, but it seemed to be that, if the war contributed to a man’s post-war eating habits, even to a small extent, then his eating habits, and hence his prostate cancer, were attributable to the war.
Faced with this, the Commission developed its policy. Firstly, if – as was usually the case – it had no evidence concerning a veteran’s pre-enlistment eating habits, then the national pre-war average would apply. I will state here and now that this policy is contrary to law. Case law is quite clear that if a piece of evidence is lacking, then it is lacking, and it cannot be obtained by making assumptions.
Secondly, if the veteran served in New Guinea or the southwest Pacific from 4 February 1944 for at least six months, then they would concede that the war affected his eating habits. Later, after the lawyers presented more evidence, they reduced it to three months. It then becomes a matter of determining whether there had been an increase of 40%. Dietitians, who had originally been employed to provide dietary advice to veterans and widows, found themselves spending their time number crunching questionnaires provided by helpful ex-service organisations. One consolation is that, if they fail at the primary level, they will normally fail at the Board or the Tribunal, but that does not stop them from clogging up the system with appeals.
This particular racket may be approaching its use-by date. From September 2005 a new SoP came into force. It reduced the amount of animal fat required to 50 grams. Any Australian could probably meet that. However, the 40% increase has to have been “for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate”. That will be harder to satisfy than the original requirement of any 20 years between the end of the war and the onset of the disease.
Vietnam veterans can, of course, avail themselves of the Agent Orange concession. Veterans of other wars will just have to die of something else.
Finally, if all else fails, and even the Tribunal rejects a claim, there is one last resort: lodge a new claim and try again. Of course, it will get short shrift at the primary level and the Veterans' Review Board, but once it goes to the Administrative Appeals Tribunal, it still has a fighting chance. I have known cases which have come before a new, more generous Tribunal member, with no new evidence provided, and been accepted. In such cases, the Tribunal’s written reasons are invariably short and simple, and fail to mention the detailed logic of the earlier Tribunal which rejected the claim.

After the pension is paid, there is one last act to be performed. A War Graves plaque will be placed on the veteran’s headstone, and people passing by will place their hands on their breasts and say, “There lies a man who gave his life for his country!” If they look closer, they may marvel that he was 91½ years old at the time.

Continue to next chapter

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