Johnston and Repatriation Commission

[2003] AATA 595

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 595

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2002/475

VETERANS' APPEALS DIVISION		)
Re		LESLIE JAMES JOHNSTON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date26 June 2003

PlaceSydney

Decision The decision under review is therefore set aside, and in substitution, the Tribunal determines that the condition of Ischaemic Heart Disease is war-caused with effect from 5 January 2001, and the matter is remitted to the Respondent to assess the rate of pension payable to the Applicant.       

(Sgd)  Rear Admiral A R Horton AO      ……..………..................................…

Member

CATCHWORDS

VETERANS’ AFFAIRS - Veterans Entitlements - Disability Pension – whether Applicant’s condition of Ischaemic Heart Disease was war caused – Applicant’s smoking habit – whether SoP factor has been met – reasonable hypothesis.

Veterans’ Entitlements Act 1986: sections 119, 120 and 120A

Statement of Principles No 38 of 1999

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR 82  

Robertson and Repatriation Commission (1998) 50 ALD 668

Re Cornelius and Repatriation Commission [2001] AATA 890

Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)

Repatriation Commission v Bey (1997) 79 FCR 364

Mason v Repatriation Commission [2000] FCA 1409

REASONS FOR DECISION

26 June 2003 Rear Admiral A R Horton AO, Member  

1.This is an application to the Administrative Appeals Tribunal (“the Tribunal”) by Leslie Johnston (“the Applicant”) for review of a decision of the Repatriation Commission (“the Respondent”) dated 2 June 2001 as affirmed by the Veterans’ Review Board on 1 February 2002.  That decision refused a claim for Ischaemic Heart Disease and continued the disability pension at 70% of the General Rate.   The Applicant lodged an application for review by the Tribunal on 11 April 2002.

2.At the hearing before the Tribunal on 2 May 2003, the Applicant was represented by Mr N Dawson of Counsel.  Mr J Marsh, Senior Advocate, represented the Respondent.  The Applicant gave oral evidence, as did Mrs Lilian Johnston, Mr John Carroll, Mrs Beryl Fisher, Mr John Hawkins and Mr Gary Shannon.

3.The Tribunal had before it the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act1975..  The Tribunal also took into evidence the following:

Exhibit A1     Statement by the Applicant (undated)

Exhibit R1     Clinical notes of Dr K Wong, General Practitioner

Exhibit R2     Clinical notes of Dr P Russell, Cardiologist

Exhibit R3     Veterans’ Review Board Transcript of 1 February 2002

ISSUES

4.        On 5 April 2001, the Applicant lodged a claim for Ischaemic Heart Disease which was refused on the basis that there was no service relationship to “smoking and stress”..  The pension for accepted disabilities continued at 70% of the General Rate.   The Respondent accepts that the Applicant has the condition of Ischaemic Heart Disease, but that the smoking history does not satisfy the criteria in the relevant Statement of principles (“SOP”), that is No 38 of 1999, the Applicant having operational…