Chesterman and Repatriation Commission

[2005] AATA 1316

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1316

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/1067

VETERANS' APPEALS  DIVISION		)
Re		CAROLINE  WILLIAMSON CHESTERMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date30 December 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Harold Geeves Chesterman was war-caused, within the meaning of that term in the Veterans’ Entitlements                 Act 1986.

...............SIGNED...............................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – war caused – decision set aside.

Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)

REASONS FOR DECISION

Deputy President Don Muller        

1. Caroline Williamson Chesterman, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).

2.      Mrs. Chesterman claims that her late husband, Harold Geeves Chesterman, died from the effects of a war-caused disease, namely prostate cancer.

3.      The elements of Mrs. Chesterman’s claim are:

(a)Harold Geeves Chesterman died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr. Chesterman was in the habit of consuming food which had a high animal fat content.

(c)A diet with a high animal fat content is an accepted cause of prostate cancer.

(d)Mr. Chesterman’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Royal Naval Reserve and the Royal Navy.

(e)The food that he had become accustomed to eating during his years in the Royal Naval Reserve and the Royal Navy was higher in animal fat content than his pre-service diet.

(f)Thus, Mr. Chesterman’s death from prostate cancer was related to his Royal Naval Reserve and Royal Navy service.

4.      Mrs. Chesterman’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.

5.      The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.

6.      Mrs. Chesterman seeks a review of that decision.

Legislative Framework

7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.

8.      Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

9.      Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.

10.     The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying…