Milbourn and Repatriation Commission

[2008] AATA 959

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4591

VETERANS' APPEALS DIVISION		)
Re		HAZEL MILBOURN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, Member

Date28 October 2008

PlaceSydney

Decision The tribunal affirms the decision under review.

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

Ms Robin Hunt
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS –  pensions and entitlements – widow’s pension claim – death of veteran from small cell metastatic carcinoma of the lung – smoking history – claim linking smoking and death to war service – on balance not satisfied of link to service – decision affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 13(1), 120(4), 120B

Statement of Principles concerning malignant neoplasm of the lung No. 18 of 2006

Hayes v Repatriation Commission [2005] FMCA 125

Re Martyn and Repatriation Commission [2006] AATA 895

Repatriation Commission v Tuite (1993) 39 FCR 540

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

28 October 2008 Ms Robin Hunt, Senior Member
Dr John Campbell, Member          

introduction

1.      Mrs Milbourn is the widow of a veteran who served in the Australian Army between 13 January 1942 and 1 February 1943. The late Mr Milbourn suffered no accepted war-caused disabilities and died in 1987 of small cell metastatic carcinoma of the lung. It was not until 2006 that Mr Milbourn’s widow sought a pension on the basis that her late husband’s death was attributable to his war service due to a war-caused smoking habit.

issue

2.      The issue is whether Mr Milbourn’s death was related to his period of army service. If we are satisfied his death was sufficiently related to his eligible service, Mr Milbourn’s widow will be entitled to a widow’s pension.

consideration and findings

3.      Mr Milbourn died on 2 November 1987 in Royal North Shore Hospital when he succumbed to small cell metastatic carcinoma of the lung. Mrs Milbourn claimed that her late husband’s war-caused smoking contributed to his death. The decision we are reviewing is the reviewable decision of the Veterans’ Review Board (‘the VRB’), made on 7 August 2007, which confirmed the original delegate’s decision refusing a war widow’s pension because of the finding that Mr Milbourn’s death was not related to his war service.

4.      The parties agree on the background facts preceding this claim.  They agree on the cause of death and they agree that Mr Milbourn smoked when he was in the army although evidence about the periods when Mr Milbourn smoked is not entirely clear.

5.      Mrs Milbourn told us that she did not know her late husband until after his period of service but that he had told her he smoked when he was 18 and stopped for a time, aged 21, before he resumed smoking in the army. Mrs Milbourn believes her late husband smoked during service due to peer pressure, availability of tobacco in the army and stress related to service. Mrs Milbourn recollected that her…