Clarke and Repatriation Commission

[2004] AATA 54

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 54

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V03/147

VETERANS'      APPEALS       DIVISION		)
Re		LEO MICHAEL CLARKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date23 January 2004

PlaceMelbourne

Decision The decision under review is set aside.  In substitution IT IS DECIDED that cerebrovascular accident is war caused.  The application is remitted to the respondent for calculation of pension entitlement.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS – cerebrovascular accident – eligible service – connection with service by alcohol consumption – dispute as to quantities – inconsistency in estimates – dispute whether connection was temporal or causal – decision set aside

Veterans’ Entitlements Act 1986 (Cth), s 8(1)(b) and s 9(1)(b)

Re Cole and Repatriation Commission [2004] AATA 3

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Tuite (1993) 29 ALD 609

Statement of Principles Instrument No. 31 of 2002
Statement of Principles Instrument No. 53 of 1999
Statement of Principles Instrument No. 58 of 2003

REASONS FOR DECISION

23 January 2004   Mr J Handley, Senior Member

1.      The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 14 October 2002.  The VRB then affirmed a decision previously made by the respondent on 31 October 2001 to reject an application for cerebral ischaemia which, for the purposes of this application, and with the consent of the partieswill be referred to as cerebrovascular accident (“CVA”).

2.      The claim upon the respondent was made on 24 August 2001 and within the assessment period the only relevant Statement of Principles (“SOPs) is Instrument No. 53 of 1999 entitled “Cerebrovascular Accident”.

3.      That Instrument was amended by Instruments No. 31 of 2002 and No. 58 of 2003 but those amendments are not relevant to this review.

4.      The initial claim upon the respondent was to associate cigarette smoking with CVA but the review before this Tribunal concerned an association only between service and alcohol consumption.

5.      The relevant factor within Instrument No. 53 of 1999 is 5(e), namely:

(e)regularly consuming an average of 300g/week of alcohol (contained within alcoholic drinks), for a continuous period of at least one year immediately before the clinical onset of cerebrovascular accident.

6.      The words “alcohol (contained within alcoholic drinks)” is defined at paragraph 8 of the Instrument as the measure “by the alcohol consumption calculations utilising the Australian Standard of 10 grams of alcohol per standard alcoholic drink”..  By reason of that definition, and by reason also of the average quantity of alcohol to be consumed in order to meet factor 5(e), the applicant would need to have consumed, daily, an average of between four and five, seven ounce glasses of beer in the one year period immediately before the clinical onset of CVA.  For the purposes of these proceedings the applicant was diagnosed on 14 July 1988 as presenting with a “mild left hemiplegia” which I am satisfied was the occasion…