Dyson and Repatriation Commission

[2008] AATA 296

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 296

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3294

VETERANS' APPEALS DIVISION		)
Re		ANN DYSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy, RFD Senior Member
Associate Professor J B Morley RFD, Member

Date14 April 2008

PlaceBrisbane

Decision The decision under review is therefore affirmed.

...................[Sgd]...........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements –application for disability pension – veteran was a police dog handler with the RAAF – veteran was a smoker prior and during defence service – veteran’s death due to gastric adenocarcinoma – malignant neoplasm of the oesophagus – whether there is a causal link between disease and defence service – no causal link – application denied – decision under review affirmed.

Veterans’ Entitlements Act 1986: s 70, 120

Critch v Repatriation Commission [1996] FCA 881
Roncevich v Repatriation Commission (2001) 66 ALD 105; [2001] FCA 1320
Holthouse v Repatriation Commission (1982) 1 RPD 287
Penhall v Repatriation Commission (1992) 28 ALD 261
Repatriation Commission v Tuite (1993) 29 ALD 609
March v E & M. H Stramare Pty Ltd (1991) 171 CLR 506
Fitzgerald v Penn (1954) 91 CLR 268
Briginshaw v Briginshaw (1938) 60 CLR 336
Rejfek v McElroy (1965) 112 CLR 517
Goward v Commonwealth (1957) 97 CLR 355

REASONS FOR DECISION

14 April 2008 Dr K S Levy, Senior Member
Associate Professor J B Morley RFD, Member 

INTRODUCTION

1.               Mrs Ann Dyson has made claim for pension under the Veterans’ Entitlements Act, consequent upon the death of her husband, Robert Dyson.  Mr Dyson had served in the Royal Australian Air Force (RAAF) and applied for a disability pension on 5 December 2005.  He died shortly after that date (21 January 2006) and before the matter had been determined by the Repatriation Commission. 

2.               The veteran’s application dated 5 December 2005 was determined by the Repatriation Commission on 27 January 2006 by declining to uphold the applicant’s claim.  That decision was appealed to the Veterans’ Review Board, but was affirmed on 18 April 2007.  The applicant, Mrs Dyson, now appeals that decision to the Administrative Appeals Tribunal.

ELIGIBLE DEFENCE SERVICE

3.               Mr Dyson enlisted in the RAAF on 1 August 1972.  He was discharged on 31 July 1984, having completed 12 years of service.  Mr Dyson was a police dog-handler in the RAAF during his service. 

4.               Whilst in the RAAF, Mr Dyson served a two year posting in Singapore from December 1978 to December 1980.  During that period, he was accompanied by Mrs Dyson and his two young children.  That overseas service was not regarded as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act).

ISSUE FOR DETERMINATION

5.               The question for the Tribunal is as follows:

Did the deceased veteran’s condition of gastric adenocarcinoma arise out of, or was it attributable to, the veteran’s defence service in Singapore?

EVIDENCE

6.               At the outset, the respondent conceded that the veteran satisfied…