Alexander and Repatriation Commission

[2005] AATA 166

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 166

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/694

VETERANS' APPEALS DIVISION		)
Re		EUNICE ALEXANDER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date23 February 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

....................[Sgd].......................

RG Kenny
  Member

CATCHWORDS

VETERANS - benefits and entitlements - widow’s pension - operational service with Royal Australian Air Force - motor neurone disease - application of Statement of Principles - no reasonable hypothesis of relevant relationship to service- veteran’s death not war-caused.

Veterans Entitlements Act 1986  ss 6A, 7, 8,  11, 14, 16, 120 and 120A

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193

REASONS FOR DECISION

23 February 2005 Mr RG Kenny, Member

BACKGROUND

1. Lloyd Alexander (the veteran) served in the Royal Australian Air Force from 17 June 1943 to 10 May 1946. He died on 13 July 2003 at the age of 78 years and his widow, Eunice Alexander, contends that his death is causally associated with his service in the Air Force. On 19 August 2003, she lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of the veterans’ death as being service-related. That claim, made in accordance with sections 14 and 16 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 25 September 2003, that the veteran’s death was not related to his Air Force service.  That decision was affirmed by the Veterans’ Review Board on 11 June 2004 and, on 2 September 2004, Mrs Alexander sought review of that decision by the Administrative Appeals Tribunal (the Tribunal). 

HEARING

2.      At the hearing, Mrs Alexander was not represented.  The respondent was represented by Mr B Williams.  The following material was tendered and taken into evidence:

exhibit 1: the documents prepared in accordance with Section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1 to T6);

exhibit 2:     a medical report, dated 4 December 2004, by Dr P McGrath;

exhibit 3:      a leaflet relating to motor neurone disease.

Issues and Legislation. 

3.      It is common ground in this matter that Mr Alexander rendered operational service and eligible war service as defined in sections 6A and 7, respectively, of the Act from the period of 17 June 1943 until 10 May 1946.  It is also common ground that Mrs Alexander is the veteran’s widow and is therefore a dependant entitled to make a claim for a widow’s pension in accordance with sections 11, 14 and 16 of the Act.  There is also no dispute as to the cause of the veteran’s death.  This was recorded on the death certificate as motor neurone disease and confirmed by Dr McGrath.

4.      The issue for determination is whether the veteran’s motor neurone disease death was related to his service in accordance with the terms of subsection 8(1) of the Act which provides that it will be war caused if it arose out of or was attributable to any eligible war service that he rendered. 

5.      The standard of proof applicable to the determination of entitlement claims for operational service is set out in subsection 120(1) of the Act which reads:

“120    Standard of proof

(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”

6.      The application of that provision is affected by the terms of subsection 120(3) and 120A of the Act which require that consideration be given to any relevant Statements of Principle (SoP) which have been published by the Repatriation Medical Authority (RMA). 

Principles of Causation:  The Deledio Steps

7.      The Federal Court in Repatriation Commission v Deledio (1998) 83 FCA 82 at 92 set out a four step procedure for determining issues of causation where operational service has been rendered. The first of these steps requires that there be material that points to an hypothesis connecting the death of the veteran with service. In that regard, the applicant made reference to a range of contentions. These were that the veteran had served in parts of Asia where motor neurone disease was known to occur; that he served under conditions which could readily have enabled him to pick up some form of virus or infection which did not manifest itself for many years thereafter; that a delayed reaction to some form of service-related infection or virus was enhanced by the fact that the veteran had a highly developed immune system; and that he may have been exposed to various forms of insecticides and sprays during his service.

8.      I accept that each of those constitutes a separate hypothesis of a relationship between the condition of motor neurone disease and service. 

9.      The second of the four Deledio steps requires identification of the relevant SoPs and, in this case, the RMA has published Instrument No. 65 of 2001 for motor neurone disease. 

10.     The third Deledio step requires a consideration of whether any of the hypotheses noted above is a reasonable one and this requirement will be met if an hypothesis fits the template provided by a relevant factor and associated definition in the SoP.  For motor neurone disease, these are

(a)smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products before the clinical onset of motor neuron disease; or

(b)suffering an electrical injury within the five years before the clinical onset of motor neuron disease; or

(c)inability to obtain appropriate clinical management for motor neuron disease.

electrical injury means:

(a)     lightning strike resulting in loss of consciousness or burns; or

(b)electric shock from alternating current resulting in loss of consciousness or burns”

11.     If any of the hypotheses for motor neurone disease is reasonable, it will be necessary to then consider the fourth of the Deledio steps.  This will require a finding that the relevant condition is war-caused unless the Tribunal is satisfied beyond a reasonable doubt that such is not the case.

Deledio Step 3: Reasonableness Of Hypothesis

12.     Unfortunately, the SoP for motor neurone disease is very limited in the range of factors it provides.  In her evidence, Mrs Alexander said the veteran was not a smoker and she was not aware that he had suffered any electrical injury.  Further, there is no evidence to indicate that the veteran suffered from motor neurone disease during his service and this is confirmed by the veteran’s service medical  records and by the notation in the death certificate that the condition was present for some two and a half years.  Mrs Alexander said that she believed that the condition had started to develop from around the mid 1990s.

13.     None of the contentions that have been made by Mrs Alexander are consistent with the terms of the factors in the SoP and, therefore, none of the hypotheses advanced by her is reasonable. This means that, to the extent that Mrs Alexander relies on them, her claim can not succeed. 

DECISION

14.     The Tribunal affirms the decision under review.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:         Camille Banks
  Associate

Date/s of Hearing  2 February 2005
Date of Decision  23 February 2005
The Applicant was unrepresented and appeared in person 
For the Respondent                  Mr B Williams, Departmental Advocate