Dawn McKenzie and Repatriation Commission

[2013] AATA 216

[2013] AATA 216

Division	Veterans' Appeals Division
File Number(s)	2010/3682
Re	Dawn McKenzie
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	11 April 2013
Place	Melbourne

The decision under review, being the decision of the Repatriation Commission made 20 November 2009 rejecting Mrs McKenzie's claim for a pension in accordance with the Veterans' Entitlements Act 1986 (Cth), is affirmed.

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

Deputy President J W Constance

CATCHWORDS

VETERANS' AND MILITARY COMPENSATION – widow’s pension – whether death was war-caused –– cardiomyopathy – malignant neoplasm of the oesophagus – whether material raises an hypothesis connecting the death with the circumstances of operational service – smoking and supply of cigarettes to members of the Australian Defence Forces –– decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A

CASES

Dixon v Repatriation Commission [1999] FCA 582

East v Repatriation Commission (1987) 16 FCR 517
Forrester and Repatriation Commission [2012] AATA 846
McKenna v Repatriation Commission (1996) 86 FCR 144

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Mrs McKenzie is the widow of the late Mr McKenzie who served in the Royal Australian Air Force during the Second World War.  He served in the Philippines.

2. Mrs McKenzie has applied for a pension under the Veterans’ Entitlements Act 1986 (Cth). Her application has been refused by the Commission and Mrs McKenzie has applied to this Tribunal for a review of that decision.

3. For the reasons which follow the decision under review will be affirmed.

   MATERIAL BEFORE THE TRIBUNAL

   Mr McKenzie’s service records

4. Mr McKenzie was a member of the Royal Australian Air Force from 10 July 1942 until 25 January 1946.  He served in the Philippines from 1 August 1945 until 27 October 1945.[1]

   [1] Exhibit RR2 p.1.

   Mrs McKenzie’s evidence

5. Mr and Mrs McKenzie were married in 1953.  Mrs McKenzie first met Mr McKenzie about one year before their marriage.

6. Mr McKenzie did not smoke tobacco at any time after he and Mrs McKenzie met.

7. Mr McKenzie told Mrs McKenzie the following:

   owhen he was serving in the Philippines his duties involved the interception and de-coding of Japanese Army signals;

   ohis duties in the Philippines were stressful; he undertook long shifts which were tedious and he felt keenly the sense of responsibility which these duties imposed upon him;

   ohe began smoking during his service years as he worked in a small group and he felt pressure to smoke;

   otobacco was readily available during his service and he received rations of tobacco;

   othere were long periods during service when he was inactive and felt bored and he would pass the time by smoking;

   oin the Philippines he served not far from where there was enemy contact;

   ohis habit extended for approximately 10 years, from about the time of his enlistment until shortly before [they] met.[2]

   [2]  Exhibit AA1.

8. Mr McKenzie did not tell Mrs McKenzie how much he smoked.

9. Mr McKenzie’s treating general practitioner for 30-40…