Green and Repatriation Commission - [2006] AATA 397

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 397
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/347
VETERANS' AFFAIRS DIVISION

Re: MILAGROS GREEN
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal: Mr Egon Fice, Member
Date:8 May 2006
Place:Melbourne
Decision:The Tribunal sets aside the decision under review and in substitution decides that the veteran's death was war-caused.
The Tribunal remits the matter to the respondent for the purpose of calculating the pension payable to the applicant.

(sgd) Egon Fice
Member

VETERANS' AFFAIRS – entitlements - war widows' pension – malignant neoplasm of the larynx - suicide caused or contributed to by throat cancer - suicide of veteran war-caused - absence of any medical records or evidence of medical diagnosis – whether factors in Statement of Principles are raised by material before Tribunal – whether reasonable hypothesis raised connecting death with war service
Veterans' Entitlements Act 1986 ss 5C(1), 7(1), 11, 120, 120A. 175
Benjamin v Repatriation Commission (2001) 64 ALD 411
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
8 May 2006  Mr Egon Fice, Member
1. Mrs Milagros Green is the widow of Mr Wallace Henry Green. Mr Green took his own life on 29 May 1992. He was 69 years old. According to Mrs Green, Mr Green was suffering from throat cancer which caused intense depression, prolonged agonising pain, and the feeling that there was no hope of recovery, which finally caused him to take his own life. Mrs Green claimed a war widow's pension on the basis that her husband's throat cancer could be attributed to his operational service. Her claim was rejected by the Repatriation Commission (the Commission) and subsequently the Veterans’ Review Board (VRB) in a decision made on 18 January 2005. Mrs Green now seeks a review of the VRB decision pursuant to s 175 of the Veterans' Entitlements Act 1986 (the VE Act).
BACKGROUND
2.      Mr Green enlisted in the Australian Army (Army) on 23 July 1942 when he was 18 years old. He saw operational service in the South West Pacific Area between December 1943 and February 1945. He was discharged from the Army on 23 October 1945.
3.      Mr Green enlisted in the Royal Australian Air Force (RAAF) on 1 June 1949 where he served until 26 October 1956. Between 1 March 1953 and 31 May 1954, Mr Green saw operational service in Japan and Korea. His mustering was engine fitter. Upon discharge, he held the rank of corporal. The only disability mentioned on Mr Green's Medical Examination Prior to Discharge is the fact that he suffered pneumonia in December 1953 while in Korea.
4.       Mr Green did not lodge any claims for disability pension and he had no medical conditions accepted or rejected as war‑caused. He was not in receipt of any disability pension prior to his death.
5.      Mrs Green first met Mr Green…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green and Repatriation Commission

Details

AGLC: Green and Repatriation Commission [2006] AATA 397
Case: [2006] AATA 397
Decision Date: 8 May 2006

CaseChat Overview and Summary

Milagros Green, a widow, sought a war widows' pension from the Repatriation Commission on the basis that her late husband's throat cancer, which she claimed led to his suicide, was attributable to his service in the military. The Commission and the Veterans’ Review Board had previously rejected her claim. The matter was brought before the Administrative Appeals Tribunal for review. The primary legal issue was whether the veteran's death was war-caused, specifically if his throat cancer, or another severe illness, was linked to his military service. The Tribunal found that the evidence presented, although not medical, sufficiently indicated a reasonable hypothesis connecting the veteran's death with his service. The Tribunal concluded that the hypothesis was reasonable, given the lack of a definitive diagnosis and the absence of a Statement of Principles for non-malignant laryngeal conditions. Consequently, the Tribunal set aside the Commission's decision and remitted the matter for pension calculation.

The court held that the evidence, though not medical, was sufficient to raise a reasonable hypothesis connecting the veteran's death with his service. The lack of a definitive diagnosis did not preclude the possibility of the disease's existence. The Tribunal noted that the symptoms described by the widow closely matched those of throat cancer, and the absence of medical records was attributed to financial constraints. The Tribunal concluded that the hypothesis linking the veteran's death to his service was reasonable, and thus, the decision to deny the pension was set aside. The matter was remitted to the Commission to calculate the pension payable to the widow.

Orders