Henry and Repatriation Commission

[2004] AATA 691

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 691

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No Q2003/950

VETERANS' APPEALS DIVISION		)
Re		UNA HENRY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr IR Way, Member

Date30 June 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

IR Way
  Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – war widows’ pension – entitlement – whether causal link between veteran’s death and his war-caused emphysema – death from supra-nuclear palsy – no causal connection between death and war service - no grounds for determining that death was war-caused – decision affirmed

Veterans’ Entitlements Act 1986 ss 5(b), 6(a), 8, 11, 13, 14, 119, 120, 120A

Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Bey (1997) 149 ALR 721
Byrnes v Repatriation Commission (1993) 177 CLR 564
Cooke v Repatriation Commission (1997) 45 ALD 205

REASONS FOR DECISION

30 June 2004   Mr IR Way, Member            

1.       This is an application by Una Henry for review of a decision of the Repatriation Commission made on 27 March 2003 and affirmed by the Veterans’ Review Board (“VRB”) on 14 August 2003, that determined that the death of the applicant’s late husband, Norman Henry (“the veteran”), was not war-caused.

2. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1–T6), and other documentary evidence as follows:

Exhibit R1Report of Dr Richard Boyle dated 9 December 2003 with referral letter of Robert Bax and Associates dated 3 December 2003

Exhibit R2Report of Dr Jane Smeeton dated 19 March 2003 with attached Impairment calculations dated 18 November 1999

Exhibit R3Report of Dr Peter Rossberg dated 19 May 1999 with attached METS Assessment dated 25 May 1999

Exhibit R4Report of Dr Barry Hickey dated 31 May 1999 with attached Vitalograph dated 31 May 1999

Exhibit R5Report of Dr Glenda Powell dated 27 September 2001

Exhibit R6Repatriation Commission decision dated 22 November 1999

Exhibit R7Report of Dr Peter Grant dated 19 January 2004

3.       The applicant was self-represented and gave oral evidence.  She was assisted by her daughter, Ms Henry.  Mr B Williams, Departmental Advocate, represented the respondent.

4. Under section 13 of the Veterans’ Entitlements Act 1986 (the Act), the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was war-caused.  A dependant of a deceased veteran, including a widow (section 11) may make a claim to a pension under section 14. 

5.       The applicant is the widow of a veteran who rendered operational service as defined in sections 5(b) and 6(a) of the Act, namely, continuous full-time service outside Australia during World War II. 

6.        The veteran rendered operational service in the Australian Army from 12 January 1942 to 24 June 1946, including service in the south-west Pacific area.

7.       The veteran’s accepted service-related disabilities were:

§  Bilateral sensori-neural hearing loss with tinnitus

§  Other speech…