Creamer and Repatriation Commission

[2008] AATA 1015

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1015

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/0057

VETERANS' APPEALS DIVISION		)
Re		OLIVE CREAMER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member
Mr R G Kenny, Member

Date12 November 2008

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – widow’s pension – war-caused death – whether death of veteran by septicaemia, diverticulitis and diverticulosis was attributable to any eligible war service – standard of proof – death was not war-caused – decision under review affirmed.

Veterans’ Entitlements Act 1986 s 8(1), 13(1), 120(1), 120(4), 120B

Hayes v Repatriation Commission [2005] FMCA 125

REASONS FOR DECISION

12 November 2008 Dr M Denovan, Member    
Mr R G Kenny, Member

INTRODUCTION

1.      Mrs Creamer is the widow of a veteran who served in the Australian Army between 13 September 1941 and 3 May 1944, including service outside of Australia. The late Mr Creamer suffered from chronic airflow limitation and scars of ulcers on both legs. These were his only accepted war-caused disabilities at the time of his death, on 3 March 2005. The death certificate indicates that Mr Creamer died from septicaemia, diverticulitis and diverticulosis. Mrs Creamer sought a pension on the basis that her late husband’s death was attributable to his war service due to one or both of his accepted disabilities.

ISSUE

2.      The issue that we have to decide is whether Mr Creamer’s death was related to his period of army service.

Applicant’s case

3.      Mrs Creamer claimed that her late husband’s ulcer scars on his legs or his chronic airflow limitation contributed to his death. On 12 September 2007 the Veterans’ Review Board affirmed the original delegate’s decision refusing a war widow’s pension.

4.      Mrs Creamer told us that her late husband developed leg ulcers whilst serving in New Guinea, and that it took seven months for them to heal. The ulcers reoccurred all his life, the most recent occasion was two years prior to his death. Mrs Creamer contended that the infection that was responsible for the original ulcers stayed in Mr Creamer’s body, and as well as causing recurrent leg ulcers, was likely responsible for a bladder infection Mr Creamer suffered from on one occasion, and for mouth ulcers that he suffered in the weeks prior to his death. Mrs Creamer contended that the infection would likely have infected other areas of his body, and could have been responsible for Mr Creamer’s diverticulitis or septicaemia or both. Mrs Creamer also contended that infection may have lead to amyloid disease, and that this condition may have contributed to Mr Creamer’s death.

5.      Mrs Creamer, with the assistance of her daughter, Ms Elson, provided a number of articles downloaded from the Internet, including articles from the Mayo Clinic, that she claimed supported her contentions, and these are included in the evidence before us. One of these articles indicates that it is possible for military…