[2014] AATA 606
Division VETERANS' APPEALS DIVISION File Number
2013/4267
Re
Kenneth Hopkins
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 27 August 2014 Place Brisbane The Tribunal affirms the decision under review.
............................[Sgd]............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Operational service and defence service with Australian Regular Army – Application of Statements of Principles – Diagnosis of Alzheimer-type dementia – Clinical onset – Reasonable hypothesis of relevant relationship to service raised – Not satisfied beyond reasonable doubt that Alzheimer-type dementia war-caused – Decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), ss 6C, 7, 9, 14, 68, 119, 120, 120A, 126
CASES
Dunlop v Repatriation Commission [2002] FCA 1400
Fogarty v Repatriation Commission [2003] FCAFC 136
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331.
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144Sloan v Repatriation Commission [2012] FCA 1079
SECONDARY MATERIALS
Statements of Principles concerning Alzheimer-type dementia No. 22 of 2010 as amended by Amending Statement of Principles No. 17 of 2014.
REASONS FOR DECISION
Mr R G Kenny, Senior Member
27 August 2014
BACKGROUND
On 18 September 2012, Audrey Hopkins was the wife of Kenneth Hopkins
(“the veteran”) when she lodged, on the veteran’s behalf, a claim in accordance with
s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission for “Alzheimer–type dementia”. She contended that this related to his service in the Australian Regular Army (“the army”). On 12 February 2013, a delegate of the Repatriation Commission rejected that claim. On 6 June 2013, the
Veterans’ Review Board (“the Board”) affirmed that decision. On 10 December 2013, the veteran died and, in accordance with s 126 of the Act, Mrs Hopkins has continued the claim as his legal personal representative.
SERVICE and ISSUES
The veteran served in the army from 30 May 1952 until 4 April 1975. This included the period from 13 November 1968 until 26 November 1969 of eligible war service in the form of operational service in South Vietnam under ss 7 and 6C of the Act. It also included the period of defence service, in accordance with s 68 of the Act, from
7 December 1972 until he was discharged. It is common ground that no issues arise in relation to the veteran’s defence service.
Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered”. The standard of proof to be used in determining diagnostic matters is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[1] For issues of causation for operational service, the standard of proof is set out in ss 120(1) and (3) of the Act. These read:
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- Case
- [2014] AATA 606
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the veteran's Alzheimer-type dementia was war-caused, specifically if it could be reasonably hypothesised that the condition had a relevant relationship to his service. This involved assessing the evidence provided by Mrs Hopkins, who submitted various documents and gave oral testimony regarding the veteran's smoking habits and lifestyle changes. The court also needed to evaluate the strength of the evidence linking the condition to the service, considering whether the condition was sufficiently linked to the service to be considered war-caused.
The court concluded that, although a reasonable hypothesis of a relevant relationship to service was raised, the evidence did not satisfy the threshold of being satisfied beyond reasonable doubt that the Alzheimer-type dementia was war-caused. Mrs Hopkins' testimony and the documentary evidence provided were deemed insufficient to establish a causal link between the veteran's smoking during service and his dementia. The court thus affirmed the decision of the Repatriation Commission, finding that the veteran's Alzheimer-type dementia was not war-caused.
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