MURIEL IRWIN and REPATRIATION COMMISSION

[2009] AATA 797

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 797

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0873

VETERANS' APPEALS DIVISION		)
Re		MURIEL IRWIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date16 October 2009

PlaceBrisbane

Decision   The Tribunal sets aside the decision under review, and substitutes the    decision that the death of the veteran was war-caused, and the Commonwealth is liable to pay pension to the applicant, with the date of effect being 2 September 2008.

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Member

CATCHWORDS

VETERANS’ AFFAIRS – claim for widow’s pension – operational service with Royal Australian Air Force – kind of death – whether veteran’s death was war-caused – decision under review set aside

Veterans’ Entitlements Act 1986 (Cth), ss 9, 120, 120A

East v Repatriation Commission (1987) 12 ALD 389

Byrnes v Repatriation Commission (1993) 177 CLR 564

Langley v Repatriation Commission [1993] FCA 299

Kattenberg v Repatriation Commission [2002] FCA 412

Repatriation Commission v Hancock [2003] FCA 711

Elson v Repatriation Commission [2004] AATA 18

Repatriation Commission v Codd (2007) 95 ALD 619

Collins v Repatriation Commission [2009] FCAFC 90

REASONS FOR DECISION

16 October 2009 Dr M Denovan, Member    

INTRODUCTION

1.      Joseph Irwin (“the veteran”) was born in 1915 and served in the Royal Australian Air Force during World War II from October 1942 to February 1946.  As the veteran served outside Australia, the whole period of his war-time service is operational service in accordance with the Veterans’ Entitlement Act 1986 (“the Act”).  The veteran died on 12 July 2007 at the age of 91 years.  The cause of death was certified as bronchopneumonia, malabsorption, bowel resection, diverticular disease, Alzheimer's disease and atrial fibrillation.  At the time of his death, the Repatriation Commission (“the Commission”) had only accepted liability for internal derangement of the left knee joint.

2.      Mrs Muriel Irwin, the veteran’s widow (“the applicant”), lodged a claim for widow’s pension, on the basis that the veteran's death was war-caused.  The claim was refused by a delegate of the Commission in a decision dated 5 March 2008.  That decision was affirmed by the Veterans’ Review Board (“the VRB”) on 27 October 2008.  The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the VRB decision.  (The appeal to this Tribunal was lodged out of time.  An extension of time was subsequently granted by Deputy President Hack on 9 March 2009).

3.      The applicant contends that the veteran’s accepted condition of internal derangement of the left knee joint reduced his mobility.  This caused the veteran to fall regularly, resulting in him contracting bronchopneumonia, from which he died.  The applicant further contends that medications the veteran consumed to treat the accepted condition caused diverticular disease, and this condition also contributed to his death.

ISSUES

4.      The issues to be determined by the Tribunal are:

(a)       the kind of death suffered by the veteran; and

(b)       whether the veteran’s death was war-caused.

applicant’s case and evidence

5.      Mr Malcolm Irwin (the veteran’s son)…