MARGERY JOYCE SWINDELLS and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 482

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/6297

VETERANS’       AFFAIRS       DIVISION		)
Re		MARGERY JOYCE SWINDELLS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr Egon Fice, Senior Member
Miss E A Shanahan, Member

Date30 June 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

(sgd) Egon Fice

Senior Member

VETERANS’ AFFAIRS – ischaemic heart disease – contribution to veteran’s death – kind of death – pathological changes leading to death - death caused by hypercalcaemia and progressive low grade lymphoma

Veterans’ Entitlement Act 1986  ss 7, 8, 13, 120, 120A, 196B

Collins v Repatriation Commission [2009] FCAFC 90

Doolette v Repatriation Commission (1990) 21 ALD 489

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Law (1980) 31 ALR 140

Repatriation Commission v Law (1981) 147 CLR 635

REASONS FOR DECISION

30 June 2010 Mr Egon Fice, Senior Member
Miss E A Shanahan, Member       

1.      Mrs Margery Joyce Swindells is the widow of Mr Keith Alex Swindells, who died on 25 December 2006.  She lodged an application for a widow’s pension with the Department of Veterans’ Affairs (DVA) on 6 February 2007.  Mr Swindells’ death was certified by Dr A Waldron, who listed the causes of death as hypercalcemia of six months duration; progressive low grade lymphoma of 10 months duration; and chronic lymphocytic leukaemia of 18 months duration.  Mrs Swindells’ contended that underlying existing ischaemic heart disease, a condition which the DVA had accepted as being war-caused, contributed to her husband’s death. 

2.      Mr Swindells served in the Royal Australian Air Force (RAAF) from 27 January 1944 to 7 March 1945.  His service constitutes eligible war service as that expression is defined in the Veterans’ Entitlements Act 1986 (the Act) because Mr Swindells served in the South West Pacific area.  The Repatriation Commission (the Commission) accepted that the whole of Mr Swindells’ service was operational service.

3.      On 4 April 2007 a delegate of the Commission determined that Mr Swindells’ death was not related to his war service and therefore a pension was not payable to Mrs Swindells.  She sought a review of that decision by the Veterans’ Review Board (VRB).  On 19 November 2007 the VRB affirmed the Commission’s decision.  Mrs Swindells now seeks a review of the VRB decision by this Tribunal.

4.      We are required to determine:

(a)       the kind of death (cause of death) met by Mr Swindells; and

(b)whether Mr Swindells’ death was war-caused within the meaning of s 8 of the Act.

KIND OF DEATH

5.      Where the death of a veteran was war-caused, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the dependants of the veteran in accordance with the Act (s 13).  To be eligible to receive the pension Mrs Swindells must establish that her husband’s death was war-caused.

6.      Section 8 of the Act provides that, for…