[2015] AATA 346
Division VETERANS' APPEALS DIVISION File Number
2014/3348
Re
Lin Yin Mossman
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President I R Molloy
Date 21 May 2015 Place Brisbane The decision under review is set aside and in substitution there is a finding that Barry Mossman's death on 19 September 1993 was war-caused. The date of effect is 22 April 2013.
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Deputy President I R Molloy
CATCHWORDS
VETERANS’ AFFAIRS - War widow's pension – Whether death war-caused – Whether tobacco consumption related to service – Reasonable hypothesis connecting death with service –- Hypothesis considered reasonable - Ischaemic heart disease – Decision set aside and substituted
LEGISLATION
Veterans’ Entitlements Act1986 (Cth)
Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Kaluza v Repatriation Commission (2011) 280 ALR 621
Kattenberg v Repatriation Commission (2002) 73 ALD 365REASONS FOR DECISION
Deputy President I R Molloy
21 May 2015
This is an application by Lin Yin Mossman for review of a decision of the Repatriation Commission (“the Commission”) dated 28 August 2013, affirmed by the Veterans’ Review Board on 6 June 2014.
The decision was to reject Mrs Mossman’s claim that the death of her husband, Barry Mossman (“the veteran”), who died on 19 September 1993, aged 51 years, was war-caused within the meaning of s 8 of the Veterans’ Entitlements Act1986 (Cth) (“the Act”).
It is not disputed that the deceased was a veteran and that he rendered service in the Australian Army from 24 May 1960 to 1 June 1980, including operational service in Malaya and Borneo from 9 April 1963 to 18 July 1965, and in Vietnam from 7 May 1970 to 5 May 1971.
The claim is that the veteran’s death was a result of a smoking habit attributable to his service in Vietnam. The claim is that the veteran’s cigarette consumption escalated significantly during his time in Vietnam and remained at that level for the rest of his life.
Evidence was given by Mrs Mossman and the deceased’s son, David Charles Mossman, both of whom were cross-examined. Evidence by way of a written report, dated 26 January 2015, was provided by a consultant historian, Dr Albert Palazzo.[1]
1 Exhibit 4.
BACKGROUND
Mrs Mossman said she met the veteran in 1963 or 1964 in Malacca where she was working in a bank. They married on 17 April 1965.
In 1966 the veteran was transferred to Sydney, and they lived at Holdsworthy. The veteran was transferred back to Malaysia and then back to Australia, this time to Melbourne.
There was evidence from Mrs Mossman that when she met the veteran he smoked no more than one or two cigarettes a day. She said he drank beer at the Sergeants’ Mess every week.
She said she hated his smoking, and also his drinking, and made her feelings known. In…
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- Case
- [2015] AATA 346
- Decision Date
CaseChat Overview and Summary
In reaching its decision, the AAT considered the evidence provided by Mrs Mossman and her son, David Charles Mossman, as well as the report by the consultant historian, Dr Albert Palazzo. Mrs Mossman testified that her husband's smoking and drinking habits significantly increased after his return from Vietnam, and he attributed his smoking to a coping mechanism for stress during his service. The AAT found that Mrs Mossman's testimony about her husband's changed habits post-Vietnam was credible. The tribunal also accepted Dr Palazzo's report that the veteran's service involved physically exhausting environments and the realities of war, which could contribute to stress and unhealthy habits such as smoking. The AAT concluded that there was a reasonable hypothesis that the veteran's ischaemic heart disease was related to his service in Vietnam, and thus, his death was war-caused. Consequently, the decision of the Repatriation Commission was set aside, and a war widow's pension was awarded to Mrs Mossman.
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Evidence
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Decision
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