Black and Repatriation Commission

[2010] AATA 982

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 982

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/1840

VETERANS APPEALS  DIVISION		)
Re		EILEEN BLACK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J Campbell, Member

Date8 December 2010   

PlaceSydney

Decision The Tribunal affirms the decision under review.

.....................[sgd]..............................

Ms N Bell, Presiding Member   

CATCHWORDS – Veterans’ entitlements – war widows pension – cause of death – clinical onset – hypertension – usual blood pressure reading

Veterans’ Entitlements Act 1986

McKenna v Repatriation Commission (1999) 86 FCR 144

Re Robertson and Repatriation Commission (2002) 50 ALD 668

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr J Campbell, Member     

1.      

Eileen Black is the widow of Everard Black, who died on 29 July 2002 aged 81.  Mr Black served in the Australian Army as a signaller during World War II.  His period of service was from 12 January 1942 to 9 May 1946.  The whole of that service was within Australia.  Mr Black served in the Northern Territory from

19 May 1945 to 23 March 1946.  Mr Black’s service constitutes eligible but not operational service under the Veterans’ Entitlements Act1986.

2.      Mrs Black lodged a claim for widow’s pension.  Because Mr Black had eligible but not operational service, the relevant standard of proof to be applied to her claim is that of reasonable satisfaction rather than the considerably more beneficial standard of reasonable hypothesis.

2.The cause of death stated on Mr Black’s death certificate was:

Large intracerebral haemorrhage (spontaneous)   5 hours

Atrial fibrillation managed with aspirin and clopidogrel  years

Hypertension

Hypercholesterolaemia

3.      There is no issue between the parties that the “kind of death” for purposes of section 120B of the Act was death from a cerebral haemorrhage, and that Statement of Principles No. 52 of 2006 concerning Cerebrovascular Accident is applicable.

4.      The factor in that SoP that is relied on by Mrs Black is factor 6(a) in clause 6 which provides that before the Tribunal can be reasonably satisfied that death from cerebrovascular accident is connected with the circumstances of a person’s relevant service, the factor which must exist is:

6(a)     having hypertension at the time of the clinical onset of cerebrovascular accident. 

5.      There is no dispute that Mr Black suffered from hypertension prior to his cerebrovascular accident.

6.      However, for cause or contribution by service to be established by Mrs Black, the Tribunal must be reasonably satisfied that Mr Black’s hypertension was contributed to by his service.

7.      

SoP 36 of 2003 concerning Hypertension, as amended by Instruments

4 of 2004 and 12 of 2008, is the relevant SoP and is required to be applied: McKenna v Repatriation Commission (1999) 86 FCR 144.

8.      Clause 2 of the SoP defines “hypertension” as:

permanently elevated blood pressure, evidenced by:

i)  a usual blood pressure reading where the systolic reading is greater than…