Barton and Repatriation Commission

[2005] AATA 15

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 15

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2002/1088

VETERANS' APPEALS  DIVISION		)
Re		MARGARET BARTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date10 January 2005

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley

Senior Member

VETERANS’ AFFAIRS – widow’s claim – eligible service – prior consumption of cigarettes and alcohol – increased consumption after discharge – whether death war caused – whether injury or disease attributable, arose out of or materially contributed by service – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s120(4), s120B(3), s8(1) (a), (b) and (d) and s196B(14)
Repatriation Act 1920 s101

Acts Interpretation Act 1901

Law v Repatriation Commission (1980) 29 ALR 64

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Tuite (1993) 29 ALD 609

Re Corbett and Repatriation Commission [2001] AATA 498

Re Walmsley and Repatriation Commission (AAT 11153, 12 August 1996)

Roncevich v Repatriation Commission [2003] FCAFC 146

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Bendy (1998) 18 ALD 144

Critch v Repatriation Commission (1996) 43 ALD 574

Brennan v Repatriation Commission [2004] FCA 1431

REASONS FOR DECISION

10 January 2005 Mr John Handley, Senior Member

1.      The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 22 July 2002.  The VRB then decided to affirm a decision previously made by the respondent on 11 July 2001.  The respondent then decided that the applicant’s claim for widows’ pension be refused.

2.      Mrs Barton applies as the widow of the late Eric James Barton who died on 26 July 1993 and who was then aged 83 years.

3.      The cause of death was certified as “Broncho Pneumonia/days; Aspiration Pneumonia/weeks; Parkinson’s Disease/years; Congestive Cardiac Failure/years”.

4.      The late Mr Barton served as a member of the Australian Army within Australia between 17 July 1942 and 6 December 1944.  Accordingly he was engaged in “eligible service” and the respondent’s liability therefore will be determined upon the balance of probabilities.

5.      The case on behalf of Mrs Barton was to associate death with the effects of ischaemic heart disease and hypertension.  It was put that in so far as the association with ischaemic heart disease is concerned, the deceased suffered from hypertension and had acquired a smoking habit by service.  With respect to the association between service and hypertension it was submitted that the deceased acquired an alcohol habit by service.  The applicant relied on Statements of Principles (“SOP”) which will be referred to later in these reasons.  It was also submitted – but without specific reference to a SOP or a factor within a SOP - that an association existed between service and an “anxiety condition” which also had a relationship to smoking and alcohol consumption.

6.      The respondent conceded that the deceased suffered from ischaemic heart disease and from hypertension but submitted that a connection did not exist between service and death…