Anderson and Repatriation Commission
[2007] AATA 1189
•29 March 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1189
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N200600315
VETERANS’ APPEALS DIVISION ) Re LORNA ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr Campbell, Member
Rear Admiral Horton AO, MemberDate29 March 2007
PlaceSydney
Decision The decision under review is set aside and in substitution thereof Mrs Anderson is entitled to payment of a war widow’s pension, with the date of effect being 26 May 2004. ..................[sgd].......................
Dr Campbell
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - War Widow Pension - veteran's death from myocardial infarction with prior ischaemic heart disease and long term obesity conditions - periods of operational service - a hypothesis involving nature and conditions of employment in the veteran's early years of service (operational), the development of a dietary habit leading to the condition of obesity - decision under review set aside.
Veterans’ Entitlement Act 1986 – sections 8, 13, 119, 120, 120A
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383
Bull v Repatriation Commission (2001) 66 ALD 271
Repatriation Commission v Hill (2002) 69 ALD 581
Cooke v Repatriation Commission (1997) 45 ALD 205
Lees v Repatriation Commission (2002) 74 ALD 68
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
29 March 2007 Dr Campbell, Member
Rear Admiral Horton AO, Member1. Mr George Anderson served in the Royal Australian Navy from 19 September 1946 to his discharge on 3 January 1966. Mr Anderson rendered 14 periods of operational service, the longest period being between his date of enlistment and 2 January 1949, with other periods being for a period of a few weeks at a time in 1956(once), 1957 (twice), 1958 (twice), 1961 (three times), 1962 (once), 1963 (three times) and 1965 (once).
2. Mr Anderson died on 23 June 2000, the cause of death nominated on the death certificate being myocardial infarction.
3. Mrs Anderson married the late veteran in 1949. Mrs Anderson lodged a claim for a war widow’s pension on 26 August 2004. Mrs Anderson’s claim was denied by the Repatriation Commission on 14 September 2004, a decision which was affirmed by the Veterans’ Review Board on 27 February 2006.
4. Mrs Anderson’s contends that her late husband’s death was war-caused in that the nature and conditions of his employment as a Stoker led to him developing a dietary habit early in his service. In turn, this led to an increase in his body weight, so much so that he became obese, a condition which remained with him for the remainder of his life, and that this condition was a causal or contributing factor to his ischaemic heart disease, which resulted in his death from myocardial infarction.
issues
5.The relevant issues in this matter are:
(a)What is the kind of death suffered by the late veteran?
(b)Is there a Statement of Principles (“SoP”) applicable to the kind of death suffered?
(c)What, if any, factor contained within the relevant SoP is applicable?
(d)Does a reasonable hypothesis exist?
(e)Does the claim succeed?
decision
6. For the reasons stated later in this decision we conclude that:
(a)The kind of death suffered by the late veteran was that of myocardial infarction consequent upon the existence of ischaemic heart disease which had been present for many years.
(b)The applicable SoP is Instrument No 53 of 2003 (as amended by Instrument 9 of 2004) concerning ischaemic heart disease.
(c)The applicable factor in this matter is factor 5(c), namely being obese before the clinical onset of ischaemic heart disease.
(d)A reasonable hypothesis does exist, namely that Mr Anderson’s employment in the Navy in his early years as a Stoker either caused or contributed to the development of an eating habit which led over time to an increase in his body weight and the development of the condition of “being obese”. The condition (“being obese”) remained for the rest of his life and caused and/or contributed to his ischaemic heart disease which led to his myocardial infarction and death.
(e)The claim does succeed in the absence of any material which would have allowed us to find that one or more of the facts particular to the hypothesis were disproved beyond reasonable doubt, or the truth of another fact, which is inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving beyond reasonable doubt the hypothesis (Byrnes v Repatriation Commission (1993) 177 CLR 564).
background material:
7. Mr Anderson enlisted in the Navy at age 17. He commenced his career as a Stoker Class 3. In this role he would have spent most of his time at sea, either watch keeping at the boiler room(s) or moving around the boiler room(s), engine room(s), auxiliary machinery spaces or fuel tanks, conducting checks, repairs and measurements. This involved him frequently climbing up or down ladders, through hatches and confined spaces, in normally hot and humid conditions, particularly in the tropics; a physically demanding task which burnt a lot of energy. (Captain J.C. Macdonald RAN – Exhibit R3 )
8. Mr Anderson was promoted to a Leading Stoker in July 1950. In this role he would have moved to a more supervisory role, but would still have been required to actively work long hours in hot, confined physical spaces. (Captain J.C. Macdonald RAN- Exhibit R3)
9. Mr Anderson was promoted to Petty Officer in January 1952. The physical demands of his job would have perhaps reduced a little, as the supervisory requirements took precedence. Nevertheless he would still have remained active, frequently climbing ladders and working in confined spaces, always in demanding conditions of heat and humidity. (Captain J.C. Macdonald RAN- Exhibit R3 )
10. Mr Anderson was promoted to Chief Petty Officer (CME) on 8 May 1959. In this role, his activities were more supervisory and managerial, with day work predominantly (Captain J.C. Macdonald RAN- Exhibit R3)
Naval Diet
11.
…in the immediate post-WW2 period, while there may not have been such a variety of food, naval meals were still generous with the quality and types of food consumed largely consistent with the civilian diet at that time.” (Captain J.C. MacDonald RAN-Exhibit R3 at [19])
12. Access to the ship’s canteen was available on limited time twice a day as well as a daily beer issue, when authorised.” (Captain J.C. MacDonald RAN- Exhibit R3)
Naval Service
13. During his early service Mr Anderson served on a Landing Ship Tank (“LST”). These were small vessels, which were based in Sydney and operated primarily in Australian waters. Physical training was not a compulsory requirement for those serving in ships at sea, although physical training instructors were normally carried on larger ships. Participation in sport while in harbour was popular. For those without a sporting ability or interest, however, there was no service requirement to physically exercise or meet any standard or physical (muscular or aerobic) fitness. (Captain J.C. Macdonald RAN- Exhibit R3)
14. Navy service requirements would suggest that Mr Anderson may have been required to undergo medical examinations on enlistment, annually, on re-engagement, forecast of a posting, before embarkation for service overseas and prior to discharge. An individual’s weight was to be documented as part of this examination. (Captain J.C. Macdonald RAN- Exhibit R3)
15. Australian Navy Order 397/1966 is stated to be the first direct reference on the issue of obesity. This order draws the attention of naval medical officers to the importance of giving due consideration to obesity when carrying out physical examination. (Captain J.C. Macdonald RAN- Exhibit R3)
16. Mr Anderson’s weight on enlistment was 73.5 kilograms (11 stone & 8lbs), his height was 1.73 metres (5ft 8ins) and his Body Mass Index (“BMI”) was 24.6.
17. On 14 November 1958 Mr Anderson at a re-engagement medical was noted to have a weight 95.45 kilograms (210lbs), a height of 1.73 metres (5ft 8 ins), which equates to a BMI of 31.8.
18. On 6 May 1959 Mr Anderson underwent a medical examination in the context of promotion (CME). His weight was recorded at 108 kilograms (238 lbs). With his height unchanged this equates to a BMI of 36. Mr Anderson was referred for specialist’s opinion in the light of a two stone, increase in weight in six months. Following investigation for diabetes and pituitary fossa anomaly, no abnormality was detected, although by 19 August 1959 it is noted that he has lost two stone in weight.
19. At a further re-engagement medical on 30 October 1961, Mr Anderson’s weight was recorded at 95.45 kilograms (210 lbs), his height at 1.73 metres (5ft 8ins). This corresponds to a BMI of 31.8.
20. At his medical discharge examination on 31 December 1965, Mr Anderson’s weight was recorded at 102.5 kilograms (226 lbs) and his height at 1.73 metres (5ft 8ins). This equates to a BMI 34.3.
21. On 12 November 1956 Mr Anderson is noted as complaining of intermittent attacks of abdominal pain for two years. Appetite was noted as being usually “extra good”, though he believed he had lost about two stone in 10 weeks, Mr Anderson’s condition was diagnosed as mild attacks of cholecystitis.
mrs anderson’s evidence
22. Mrs Anderson provided evidence by telephone. Mrs Anderson stated that she had difficulty in remembering the details of Mr Anderson prior to and after their marriage in 1949, although she did believe he enjoyed large meals. Mrs Anderson stated that after Mr Anderson left the service he worked as a night watchman, an activity he did not enjoy. Mrs Anderson stated that he next turned to making large concrete bricks an activity which he maintained and enjoyed. Mrs Anderson stated that Mr Anderson’s weight remained much the same after service, although at one stage it increased to 20 stone (280 lbs). Mrs Anderson stated that Mr Anderson was not particularly communicative with her about his medical problems. She knew he attended his local practitioner regularly, but was unaware that he was suffering from ischaemic heart disease, although she remembered him being tested for cholesterol and the result was a low level.
legislative context
23. Under section 13(1) of the Veterans’ Entitlement Act 1986, the Commonwealth, subject to the Act, is liable to pay a pension to a dependent where the death of the veteran was war-caused.
24. Section 8(1) of the act defines the circumstances in which a death is taken to be war caused and includes :
8 War Caused Death
(1)…
(a) …
(b) the death of a veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) …
(d) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease which would not had not been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service.”
…
25. The standard of proof to be applied in this matter is that of reasonable hypothesis detailed in sections 120(1), 120(3) and 120A of the Act.
consideration and findings
26. Much of the difficulty in this matter is created by a lack of material detailing Mr Anderson’s dietary habits prior to service and during service and the apparent absence of many service medical records detailing his weight over a twelve year period from enlistment to a re-engagement medical in November 1958. We also note an absence of post service medical records, which would perhaps assist in detailing Mr Anderson’s post service clinical history until his death in 2000. Similarly we note that Mrs Anderson’s evidence, understandably so, did little to assist in detailing such material. In keeping with section 119(h)(i) and (ii) of the Act we will take into account the issues of passage of time (Mrs Anderson’s difficulty with long term recollection) and the absence of official records and the effect that either or both issues create in the provision of material relevant to ascertaining the existence of particular facts.
27. The initial issue to be addressed is the “kind of death” suffered by the late veteran. We are satisfied on the balance of probabilities that the “kind of death” suffered by the late veteran was that nominated on the death certificate, namely myocardial infarction (2 days), ischaemic heart disease (years). (Repatriation Commission v Hancock (2003) 37 AAR 383 considered and applied.) In so finding we recognise the absence of any contrary medical opinion or clinical record which would suggest otherwise.
28. We have examined all the material before us and are satisfied that the material points to the elements nominated in the hypothesis. We note the postulated hypothesis. Mr Anderson joined the Navy in 1946, aged 17. He was trained as a Stoker and served initially on small ships. Activities as a Stoker in his early years of operational service involved high-energy (caloric) expenditure by the veteran. Such work activities encouraged a high (calories) food intake, with the nature and conditions of his work activities causing and/or contributing to a dietary habit, involving a significant intake of food (calories) to meet the energy requirements of his work. Such a dietary habit, once established, continued for the remainder of his service, and indeed for the remainder of his life. His dietary habit either caused or contributed to an increase in weight, so much so that by November 1958, his increase in weight was of such magnitude, that his weight condition at that stage can be considered as one of “being obese”. His condition of “being obese” remained for the rest of his service and for the remainder of his post-service life. This condition of “being obese” caused or contributed to the development of ischaemic heart disease, which led to his death in 2000.
29. In stating that we are satisfied that there is material pointing to each element of the hypothesis, we recognise the difficulties inherent in the absence of much background material, and notably the absence of many medical records, which should have detailed his weight during the period after enlistment to November 1958 - a period during which he was re-engaged, was posted, and was promoted on more than one occasion, activities normally associated with medical examination according to material provided by Captain J.C. Macdonald RAN. Similarly we note the effect that the passage of time has caused for Mrs Anderson in having to remember particular details of fifty plus years past.
30. Nevertheless we consider that there is material pointing to each element of the hypothesis, namely:
·His weight and height on enlistment;
·The nature of his duties (as a Stoker) early in his operational service;
·The nature of his duties in each activity/duty arising from promotion;
·The energy requirements expended in each of his occupational roles in his Navy service;
·The existence of a weight increase, with such a weight increase in itself pointing to circumstances that dietary intake in caloric terms was greater than energy expenditure (caloric);
·The availability of generous quantities of food and other food supplements (soft drink, beer, sweets) in an environment where “always being hungry” was a common experience;
·The absence of any pathological cause for the increase in weight and “the condition of being obese” (diabetes, pituitary fossa anomaly);
·The presence of abdominal pain circa 1954, which was later diagnosed as chronic cholecystitis, a condition often associated with dietary issues;
·The existence of the condition of “being obese”;
·The continuation of the existence of the condition of “being obese”, albeit with variation in the degrees of “being obese” for the remainder of his service and post service life; and
·The development of his ischaemic heart disease and his death from myocardial infarction.
31. Further, as is necessary at this stage, we consider whether, in the absence or more specific material as to food habits and weight measurements over the twelve year period from 1946 to 1958, the postulated hypothesis is “too fanciful”, “too remote” or “too tenuous”. We conclude that it is not, as there was available sufficient material to negate such contentions, as well as taking into account the difficulties inherent in the absence of particular documentation. (Bull v Repatriation Commission (2001) 66 ALD 271 considered.)
statement of principles
32. The SoP applicable to the kind of death suffered by the late veteran is Instrument No 53 of 2003 as amended by Instrument No 9 of 2004 concerning ischaemic heart disease. The definition of ischaemic heart disease is defined in paragraph 2(b) of the SoP to mean “a cardiac disability characterised by insufficient blood flow to the muscle tissues of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries”. No diagnostic criteria are nominated in the SoP.
fact as nominated as creating a causal relationship with service
33. Perusal of the factors as nominated in paragraph 5 of the SoP, as amended, resulted in three factors being identified as possibly relevant in this matter. These are factors 5(a) – hypertension prior to clinical onset of ischaemic heart disease, 5(c) – being obese before the clinical onset of ischaemic heart disease and factor 5(d) – the presence of dyslipidaemia before the clinical onset of ischaemic heart disease.
34. In the absence of any material pointing to the presence of hypertension as a diagnostic entity and material pointing to the presence of dyslipidaemia, factors 5(a) and (d) were not pressed by the Applicant. We concur with such action and accept that factor 5(c) remains the only factor to be considered.
35. We note the definition of “being obese” contained with paragraph 8 of the SoP:
“being obese” means an increase in body weight by way of fat accumulation which results in a Body Mass Index (“BMI”) of 30 or greater [with the BMI being calculated by weight in kilograms divided by the Square of height in metres (BMI = W/H²).]
36. We further note the Repatriation Medical Authority Statement about the Causes of “Being Obese” (“RMA Statement”). In the RMA Statement, issued on 16 August 1996, the Authority being of a view that obesity is not “disease” or "injury” as defined in subsection 5D(1) of the Act, nominated factors as preceding and having a causal relationship to “being obese”. The factors nominated included:
(a) exposure to an environment which encourages caloric intake, where this caloric intake is excessive for energy needs and cannot be compensated by adequate physical activity, and which has resulted in a weight gain of at least 20% of the baseline weight.
…
“Baseline weight” means the weight level which was maintained prior to the effect of the particular factor satisfied.
37. While we acknowledge and note the content of the statement issued by the Authority, we remain mindful of its particular language. We express reservations as to its relevance in this matter as the SoP defines “being obese” without reference to the RMA Statement issued in 1996. In such circumstances, we nevertheless believe that reference to the RMA statement is appropriate when considering the causal relationship between the veteran’s service and “being obese”.
38. In so stating, we continue to express difficulty in properly assessing both the legal foundation and legal consequences of such a statement, when the subject of such a statement is considered to be neither a “disease” nor an “injury” as defined by the Act. Nevertheless, in this matter it does provide assistance in suggesting a set of issues to be considered in a non SoP hypothesis situation.
is the hypothesis reasonable
39. In determining whether the hypothesis is a reasonable hypothesis, this being a finding of fact, it is necessary again to consider all the material and assess whether there is material pointing to each of the essential elements nominated in the factor as creating the causal relationship with service. (Repatriation Commission v Hill (2002) 69 ALD 581 considered.) In factor 5(c) we note there are two essential elements, namely “being obese” and “before the clinical onset of ischaemic heart disease”.
40. In considering the element of clinical onset of ischaemic heart disease essentially the material before us is the death certificate which clearly indicates that the ischaemic heart disease has been present for some years. We note Mrs Anderson’s reference to the late veteran’s ischaemic heart disease in an application shortly after the late veteran’s death in 2000. We acknowledge the Respondent’s acceptance that the ischaemic heart disease was present some years before his death. We also note that clinical onset is where there are signs and symptoms sufficient for a medical practitioner to diagnose a condition (Cooke v Repatriation Commission (1997) 45 ALD 205 considered). Further we note that for a condition nominated in the SoP all of the diagnostic criteria must be present for the condition to be diagnosed (Lees v Repatriation commission (2002) 74 ALD 68 considered). In this matter we note the definitional criteria for the condition of ischaemic heart disease and we are satisfied that there is material pointing to such criteria (myocardial infarction). As to the criteria for clinical onset, the material points to the ischaemic heart disease being present for some years. We need take the issue of clinical onset no further, for the material, no matter how limited, does point to the clinical onset of ischaemic heart some years prior to the veteran’s death.
41. In considering the element of “being obese” we note that there is material pointing to the veteran not “being obese” at the time of enlistment; that his weight on enlistment was 162 lbs; that he enjoyed his food prior to enlistment; that post enlistment he was employed as a Stoker during his early years of operational service; that he developed abdominal pains from 1954 (approximately) which were later diagnosed as chronic cholecystitis; that there are no medical records attesting to weight between 1946 and 1958; that from November 1958 onwards, both during service and onwards, the veteran was suffering from the condition of “being obese”; that the weight recorded in November 1958 was 210 lbs with a BMI of 31.8; that thereafter, during and after service his weight fluctuated with no recorded material indicating a BMI of less than 30.
42. Further, we note, the material points to the circumstances of his service including the duties of a Stoker and the high energy needs for such activities; his various promotions over time and the duties and energy requirements expended with such activities; the nature and type of food and beverages available during the early post war years; the service instruction as regards physical exercise (non-compulsory), involvement in sport (non-compulsory) and the medical issue of excess weight.
43. Specifically in relation to the RMA statement, we observe material pointing to an environment where calorie intake is excessive for energy needs (weight gain, food availability, nature and conditions of duties), need for adequate physical activity (at sea, small vessel, no service requirements to exercise), and weight gain of greater than 20 per cent, with baseline weight being at service commencement prior to embarking on duties as a Stoker being 162 lbs and by November 1958 his weight being 210 lbs.
44. We are satisfied that there is material pointing to each element of the RMA Statement, clause (a). Whether the RMA Statement is a stand alone statement and to be considered in the context of a secondary non SoP hypothesis or whether it is integral to a SoP analysis is not of forensic concern in this matter as further consideration in either situation is congruent, with a similar outcome generated.
45. Further, again we note the absence of “of interest” material in the material before us. Such material could have either a negative or positive influence on our considerations, both in the formulation of the hypothesis and determining as to whether the hypothesis is reasonable. We must deal, however, with what material is before us, while taking into account any difficulties experienced in ascertaining the existence of any fact, matter, cause or circumstance attributable to the absence of such material and/or the passage of time. We also acknowledge that the circumstances of this matter have been the subject of much previous enquiry. In such circumstances, and subject to what has been stated in this paragraph, the absence of such material will give rise to consequences as consideration of the matter progresses.
46. In summary, at this stage we make a finding of fact that a reasonable hypothesis exists. In so stating, we are satisfied that the material points to each essential element of factor 5(c) of the SoP. Further, we are satisfied that there is material pointing to each essential element of the RMA Statement. As previously addressed, it matters not as to outcome in this matter as to whether the issue of causal connection of “being obese” to his service is dealt with by way of an SoP analysis incorporating the RMA Statement (Repatriation Commission v Deledio (1998) 83 FCR 82) or by way of a non SoP analysis (Byrnes v Repatriation Commission (1993) 177 CLR 564). In either situation the material pointing to the essential elements of a service related causation or continuation of a “being obese” hypothesis remain as previously nominated.
47. In addressing the final stage of our consideration we are again mindful of what information we do not have. In contention is the issue of what his eating habits were prior to joining the Navy. Mrs Anderson spoke vaguely of his eating habits never really changing, with memory of his pre service appetite always being healthy. While no onus of proof rests with either party we must be satisfied beyond reasonable doubt that Mr Anderson had a particular eating habit prior to joining the navy. The evidence given by Mrs Anderson does not give us such comfort for as already stated, we consider, as she did, that her memory of events 60 years ago is somewhat distant and clouded. Secondly, we again note, that his entry weight to service was 162 lbs with a BMI of 24.6 – material not consistent with the presence of an eating habit and certainly not giving rise to a condition of “being obese”.
48. A further matter raised was that both food consumption and a food habit is a matter of individual choice and that Mr Anderson was responsible alone for his condition of “being obese”, and that he enjoyed personal responsibility for not only his dietary intake, but also for his weight control by undertaking the necessary energy expenditure by way of exercise through involvement in sport or physical training. In arguing that commencement of a dietary habit and/or continuance of a dietary habit, in the absence of any underlying pathology, is a matter of personal choice, those that so argue would attempt to deny the influence of surrounding circumstances on the making of such decisions. More often than not the adoption and/or continuance of a dietary habit is a reflection of several factors, including physiological, psychological and opportunistic issues, such as availability, frequency and nature of food. To single out one element such as personal choice in the equation does not, we believe, greatly assist the deliberation. In such circumstances we conclude that the issue of choice and responsibility, while certainly a contributing factor to dietary habits, does not of itself alone generate sufficient evidentiary weight, even if we were satisfied beyond reasonable doubt that it is a factor in this matter, to disprove beyond reasonable doubt, other facts in the hypothesis, thus disproving beyond reasonable doubt, the hypothesis.
49. Thirdly, and perhaps in the context of personal choice and personal responsibility, the issue of Mr Anderson’s condition of “being obese” has only a temporal as opposed to causal connection with his service. We acknowledge that the reasonable hypothesis, as a matter of its creation, necessitates both a temporal and causative connection with service. While there is a twelve year gap in the recording of Mr Anderson’s weight, there is clear evidence that his weight increased significantly during service and that despite particular evidence as to the continuance of his condition of “being obese”, Mr Anderson was re-engaged and promoted.
50. The hypothesis details circumstances of his service which contributed to a dietary habit and weight gain. There can be no argument that his weight gain occurred during service (temporal) and an increased food intake leading to a food habit as a consequence of his energy expenditure as a Stoker, with the acquired food habit continuing once his energy expenditures were less as a consequence of change of duties with promotions, or alternatively with less energy usage (causal, as arising out of). The contention that there was no causal connection with service is easy to state but material supporting such a contention is in itself hypothetical as it is essentially an inference drawn from facts that cannot be established other than by assuming they exist in material which has not surfaced in this matter. As an example the contention would necessitate an assumption of a series of facts, namely that Mr Anderson had a dietary habit before service, that any dietary habit either before or during service was self-caused, that such a self-caused habit was related solely to issues other than the circumstances of his service.
51. Further, in the factual analysis, we note evidence of gall bladder disease as early as 1954 and that such a disease is often associated with circumstances surrounding dietary intake.
52. It is our opinion that for an argument in this matter suggesting repudiation of service causation not on the grounds of possibility, nor on the grounds of reasonable satisfaction, but on a beyond reasonable doubt standard of proof, there must exist some facts, their existence being found on the beyond reasonable doubt standard. In the absence of such facts being established, the reasonable hypothesis connecting the condition of “being obese” with the circumstances of his service either by way of causation or contribution to his “being obese” and subsequent development of ischaemic heart disease and death remains extant.
53. In such circumstances, Mrs Anderson’s claim must succeed, as there is no material before us which permits us to find that one of the constituent fact(s) of the hypothesis was disproved beyond reasonable doubt or that another fact(s), inconsistent with the hypothesis, was proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
54. In conclusion, we find Mr Anderson’s death was war-caused and as a consequence Mrs Anderson is entitled to payment of a war widow pension.
55. The decision under review is set aside and in substitution thereof Mrs Anderson is entitled to payment of a war widow pension, with the date of effect being 26 May 2004.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr Campbell, Member and Rear Admiral Horton AO, Member.
Signed: ………[Emily Gadsby]..........
AssociateDate/s of Hearing 19 January 2007
Date of Decision 29 March 2007
Solicitor for the Applicant Ms V Doran, Taree Vietnam
Veterans Association
Solicitor for the Respondent Mr N Bunn, Department of Veterans’ Affairs
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