Forbes and Repatriation Commission

[2004] AATA 423

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 423

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V02/524

VETERANS'       AFFAIRS       DIVISION		)
Re		PAULETTE FORBES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley,   Senior Member
Associate Professor J Maynard,   Member

Date29 April 2004

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS – widows’ application – death by cerebral tumour – hypothesis of inability to obtain appropriate clinical management – deceased suffered headaches and trauma in service – pathology evidence of aggressive primary malignant tumour of short duration – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) s 120(6)

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock [2003] FCA 711

REASONS FOR DECISION

29 April 2004          Mr J Handley,   Senior Member
         Associate Professor J Maynard,     Member

1.      The applicant applies as the widow of the late Jack Forbes who died on 24 May 1966.  The cause of death was certified as “cerebral tumour – months”.

2.      The Veterans’ Review Board (“the VRB”) decided on 5 February 2002 to affirm a decision made by the Repatriation Commission on 23 February 2001, when it was determined that the death of the late Mr Forbes was not related to service.  By these proceedings, Mrs Forbes applies to review the decision made by the VRB.

3.      Mr Forbes was a member of the Royal Australian Air Force between 8 April 1942 and 20 November 1944.  Part of his service was in New Guinea and accordingly the whole of his service is “operational service” within the meaning of the Veterans’ Entitlements Act 1986 (“the Act”).  At the time of his death, Mr Forbes did not have any illnesses, injuries or diseases accepted as war-caused.  He had the conditions of neurasthenia and refractive error rejected as war-caused.

4.      In a Statement of Facts and Contentions lodged prior to the commencement of the hearing, Mr De Marchi on behalf of the applicant submitted that a reasonable hypothesis existed between the service of the deceased and his death by regard to an opinion expressed by Dr Byron Collins, a consultant forensic pathologist, in a report of 30 August 2002.  Dr Collins was of the opinion:

In my view, having regard to apparent incomplete investigations of the late veteran’s symptom of recurrent headaches whilst he was serving during the war and the absence of histological identification of the malignant brain lesion which could therefore not be excluded as being a slowly progressing primary tumour, there is a reasonable hypothesis linking his service and death through factor 5(c) in the Statement of Principles concerning Malignant Neoplasm of the Brain.

5.      The Statement of Facts and Contentions further submitted, by reference to the T-documents disclosing the late veteran was discharged from service as “medically unfit” and by reference within the T-documents to the late veteran suffering persisting headaches during service, that factor 5(c) of Instrument No. 40 of 1999 was met.

6.      Statement of Principles (“SOPs”)…