Decision
Reasons for decision
On 12 April 2000 a delegate within the DVA reviewed Mr Bassett's case in accordance with s 31 of the Act. He decided not to intervene and alter the decision under review (T16). The same thing occurred on 3 May 2000 (T17), although this review seemed to relate to the rate of pension being paid.reviewable decision On 29 September 2000 the VRB decided (T20) to affirm the decision of the respondent (in T13). It agreed with the primary decision (in T13) in relation to malignant neoplasm of the colon and haemorrhoids for the same reasons as the primary decision-maker. In relation to Mr Bassett's skin problems the VRB found that chronic solar skin damage was not war-caused for reasons given earlier (that is, too little additional exposure to ultraviolet radiation caused by operational service). One specialist, Dr Lobel, had reported on 11 May 2000 (T18) that there was gravitational dermatitis/hyperpigmentation associated with varicose veins on Mr Bassett's left leg. The VRB accordingly considered the SoP concerning varicose veins but found that none of the factors in that SoP were satisfied in Mr Bassett's case. In relation to gravitational dermatitis/pigmentation there was no SoP and so the VRB considered these conditions in accordance with Bushell (above) and Byrnes (above). The VRB found there to be no reasonable hypothesis connecting Mr Bassett's gravitational dermatitis/hyperpigmentation to his operational service. As regards peptic ulcer, the VRB decided that the applicant had no incapacity in relation to the claim for peptic ulcer disease. On 26 October 2000 the VRB sent notification of its decision to Mr Bassett (T21). On 7 December 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision dated 29 September 2000 (T1). RELEVANT LEGISLATION The following provisions fro the Veterans' Entitlements Act 1986 are relevant: ss 5D(1) ("disease", "injury"), 6C(1), 6D(1), (2), 7(1)(a), 9(1)(a), (e)(i), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 196B(2), 196D.VETERANS ENTITLEMENTS ACT 1986Injury/disease definitions5D.(1) In this Act, unless the contrary intention appears:…disease means:(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or(b) the recurrence of such an ailment, disorder, defect or morbid condition;but does not include:(c) the aggravation of such an ailment, disorder, defect or morbid condition; or(d) a temporary departure from:(i) the normal physiological state; or(ii) the accepted ranges of physiological or biochemical measures;that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);…injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:(a) a disease; or(b) the aggravation of a physical or mental injury.Operational service - post World War 2 service in operational areas 6C(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as: (a) a member who was allotted for duty in that area; or (b) a member of a unit of the Defence Force that was allotted for duty in that area; is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.…Operational service - other post World War 2 service 6D(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that: (a) was assigned for service: (i) in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or (ii) in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or(iii) in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or (b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.(2) A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as: (a) a member of the Defence force; or (b) a member of a unit of the Defence Force; while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).Eligible war service7(1) Subject to subsection (2), for the purposes of this Act:(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and…War-caused injuries or diseases9(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…(e) the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;but not otherwise.…Eligibility for pension13(1) Where:…(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran;in accordance with this Act.Claim for pension14(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).Note 1: some dependants do not have to make a claim (see section 13A).Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).…(3) A claim for a pension:(a) shall be in writing and in accordance with a form approved by the Commission;(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.…Dates of effect that may be specified in respect of grant of claim for pension20(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.…Standard of proof120(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.Note: This subsection is affected by section 120A.…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;(b) that the disease was a war-caused disease or a defence-caused disease; or(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.Note: This subsection is affected by section 120B.(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;(c) the death of a person is war-caused or defence-caused; or(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or(b) the Commonwealth, the Department or any other person in relation to such a claim or application;any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.…Reasonableness of hypothesis to be assessed by reference to Statement of Principles120A(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the operational service rendered by a veteran;(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or(ii) the hazardous service rendered by a member of the Forces.Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).…(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B (2) or (11); or(b) a determination of the Commission under subsection 180A (2);that upholds the hypothesis.Note: See subsection (4) about the application of this subsection.…Functions of Authority196B(1)…Determination of Statement of Principles(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:(a) operational service rendered by veterans; or(b) peacekeeping service rendered by members of Peacekeeping Forces; or(c) hazardous service rendered by members of the Forces;the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:(d) the factors that must as a minimum exist; and(e) which of those factors must be related to service rendered by a person;before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.Note 1: For sound medical-scientific evidence see subsection 5AB (2).Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).Note 3: For factor related to service see subsection (14).…Disallowable instrument196D A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.…
