KIM GRAY and REPATRIATION COMMISSION

[2009] AATA 832

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5497

VETERANS'       AFFAIRS        DIVISION		)
Re		KIM GRAY

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Mr John Handley, Senior Member  

Date28 October 2009

PlaceMelbourne

Decision The decision of the Veterans' Review Board made on 25 August 2008 is set aside and in substitution IT IS DECIDED the death of the late Peter Brasier Gray is defence-caused.

(Sgd) John Handley

Senior Member

VETERANS' ENTITLEMENTS – Application by widow – death from ischaemic heart disease – deceased suffered injuries from service authorised sporting activities – subsequently relieved from compulsory fitness assessments and withdrawal from competitive sport – weight of deceased increased – Body Mass Index greater than 30 at relevant times – deceased was obese as defined by SOP for ischaemic heart disease – increase in weight connected with service on balance of probabilities – Veterans' Review Board decision set aside

Veterans’ Entitlements Act 1986(Cth) s 5Q(1A), s 68(1), s 69, s 70(5)(a), s 120(4), s 120B,

Keeley v Repatriation Commission (1999) FCA 1103

Law v Repatriation Commission (1980) 29 ALR 64

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Law (1981) 36 ALR 411

Roncevich v Repatriation Commission [2005] HCA 40

Walsh v Rother District Council (1978) 1 ALL ER 510

Williams v Repatriation Commission [2001] FCA 601

REASONS FOR DECISION

28 October 2009 Mr John Handley, Senior Member           

1.      Mrs Gray the applicant in these proceedings is the widow of the late Peter Brasier Gray who died on 21 July 2005 at age 53 years.  Death was certified to be from ischaemic heart disease (IHD) and insulin dependant diabetes mellitus.  The Veterans’ Review Board (VRB) found that death was not defence caused and it affirmed a decision previously made by the respondent. 

2.      The late veteran was a member of the Australian Army between 9 July 1969 and 25 October 1992.  Defence Service occurred between 7 December 1972 and 25 October 1992.  The widow’s application must be established on the balance of probabilities pursuant to s 120(4) and s 120B of the Veterans’ Entitlement Act 1986 (the Act). 

3.      The applicant relied on Statement of Principle (SoP) Number 90 of 2007 entitled IHD which was in force at the date of the hearing.Factor 6(c) of that instrument recorded that death from IHD will be connected on the balance of probabilities with a person’s relevant service if that person (is) being obese for at least five years within the 15 years before the clinical onset of ischaemic heart disease.  Paragraph 5(c) of a similarly entitled instrument being number 50 of 2003 (revoked by the above Statement of Principle but existing at the date of claim) provided that the connection with service on the balance of probabilities will be found if the deceased (is) being obese for a period of at least two years within the 15 years immediately before the clinical onset of ischaemic heart disease.