MARGARET BRADLEY and REPATRIATION COMMISSION

[2009] AATA 401

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 401

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5149

VETERANS' APPEALS  DIVISION		)
Re		MARGARET BRADLEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date3 June 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Benefits and entitlements – Malignant neoplasm of the brain – Condition which caused veteran’s death not related to his operational service – Death of veteran not war-caused – War-widow’s pension not payable – Reviewable decision affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 8, 9, 13(1), 120(1), 120(3), 120A(3), 196A, 196B(2), 196B(14)

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

REASONS FOR DECISION

3 June 2009 Dr P McDermott, RFD, Senior Member  

introduction

1.      Mrs Margaret Bradley, the applicant, was a dependent of the late Mr Brian Bradley, a veteran, who had operational service with the Australian Army in Vietnam.  The applicant has applied for a war widow’s pension.  I have to decide whether the death of the late veteran was related to his service.

decisions

2.      On 26 February 2008, a delegate of the Repatriation Commission rejected a claim by the applicant for a war widow’s pension on the ground that the death of the veteran was not related to his service.

3.      The applicant sought a review of this decision from the Veterans’ Review Board.  On 29 September 2008, the Veterans’ Review Board affirmed this decision.

4.      The applicant has now applied to the Administrative Appeals Tribunal for review of the decision of the Repatriation Commission.

service

5.      The veteran served in the Australian Army from 13 September 1965 until 12 September 1968.  He rendered operational service in Vietnam from 11 June 1966 until 11 December 1966.

medical evidence of death of the veteran

6.      Initially, I am required to determine the “kind of death” suffered by the veteran: see Repatriation Commission v Hancock (2003) 37 AAR 383 at 385 [9].

7.      The death certificate records that the veteran died on 14 December 2003.  The death certificate records the cause of death as “glioblastoma multiforme” of eight months’ duration.

8.      Having regard to the death certificate, I am satisfied that a tumour of the brain was indeed the cause of the veteran’s death.

legislative framework

9. Section 9 of the Veterans’ Entitlements Act 1986 provides for when an injury or disease is taken to be war‑caused. The provision applies where “the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran”: s 9(1)(b) of the Act.

10. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay pension by way of compensation to the veteran.

11. As the veteran has performed operational service, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the Act.

12. In relation to the standard of proof, the Act provides at s 120(1) as follows:

“[w]here a claim … for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.

13. The application of s 120(1) is governed by s 120(3) of the Act, which provides that:

“ … in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person”.

statement of principles

14. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority. Section 196B(2) of the Act provides that if the Repatriation Medical Authority is of the view that sound medical-scientific evidence indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, it:

“… must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service”.

15. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14) of the Act. This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if the factor resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

16. Where the Repatriation Medical Authority has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of hypotheses contained in applications lodged after 1 June 1994 is to be assessed by reference to that SoP. This follows from the application of s 120A(3) of the Act, which provides that:

“[f]or the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B(2) or (11);  or

(b) a determination of the Commission under subsection 180A(2);

that upholds the hypothesis”.

issues

17. These proceedings concern whether the death of the late veteran was war‑caused within the meaning of s 8 of the Act, and whether the contentions of the applicant satisfy the Statement of Principles concerning malignant neoplasm of the brain No. 58 of 2008.  The applicant also has the benefit of an earlier instrument, which was in force at the date of her claim.  This earlier instrument is the Statement of Principles for malignant neoplasm of the brain No. 17 of 2003.

consideration

18.     I am bound by authority to apply the following test from the decision in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

“1.The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4.The tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved”.

19.     I must now consider all the material before me and determine whether that material points to a hypothesis connecting the condition of the veteran which caused his death with the circumstances of the particular service rendered by him.  There is no material before me which points to a hypothesis connecting the service of the veteran with the death of the veteran.  Accordingly, the “first step” in Repatriation Commission v Deledio is, in my view, not satisfied.  According to that decision, the application must fail at this stage.

20.     It is not necessary for me to apply the “second step” in Repatriation Commission v Deledio, which would require me to ascertain whether there is an SoP which has been determined by the Repatriation Medical Authority.

21.     I have already referred above to relevant SoPs concerning malignant neoplasm of the brain, namely SoPs No 58 of 2008 and No 17 of 2003.  Clause 6 of the former and clause 5 of the latter list a number of factors. At least one of these factors must exist to establish a reasonable hypothesis connecting the veteran’s death from malignant neoplasm of the brain with the circumstances of his service.

22.     The applicant has not identified any of these factors in her submissions.  However, for completeness, I have reviewed the considerable medical records that are in evidence.

23.     I do not find that any factors listed in either SoP discussed above are established.

decision

24.     I affirm the decision under review.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed:..............[Sgd]................................................................
              Mátyás Kochárdy, Research Associate

Dates of Hearing  4 December 2008; 5 February 2009
Final Submissions received      9 April 2009
Date of Decision  3 June 2009
Counsel for the Applicant         Mr B Balzamo
Solicitor for the Applicant          Compass Legal Solutions
Counsel for the Respondent     Mr G Purcell