NAOMI BRODIE and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 217

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/2378

VETERANS'       APPEALS        DIVISION		)
Re		NAOMI BRODIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A Shanahan, Member

Date2 April 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan

Member

VETERANS' AFFAIRS –– widow’s claim for pension ‑ veterans' death due to metastatic prostatic carcinoma ‑ contributory cause pneumonia – role if any of emphysema attributable to smoking ‑ possible cerebrovascular accident related to war‑caused smoking contributing to pneumonia ‑ decision affirmed.

Veterans' Entitlement Act 1986  ss 814 and 120

Statements of Principles:

Nº 30 of 2004 concerning chronic bronchitis and emphysema

Nº 52 of 1999 as amended by Nº 30 of 2002 concerning cerebrovascular accident

Repatriation Commission v Law (1981) 147 CLR 635

Roncevich v Repatriation Commission (2005) 222 CLR 115

Kattenberg v Repatriation Commission (2002) 73 ALD 365

McKenna v Repatriation Commission (1999) 86 FCR 144

REASONS FOR DECISION

2 April 2009 Miss E.A Shanahan, Member

1.      The applicant, Mrs Naomi Brodie is the widow of Albert Brodie who died on 5 August 2005.  The veteran served in the Australian Army between 1940 and 1946 and had operational service in New Guinea.  At the time of his death he was in receipt of a disability pension at 90 per cent of the general rate.  Mrs Brodie claimed a widow’s pension on 3 November 2005 she being a dependent of the deceased veteran.  The veterans’ cause of death had been certified as due to carcinoma of the prostate present for five years and bronchopneumonia of ten days duration.  The carcinoma of the prostate was not an accepted disability.  A delegate of the Repatriation Commission decided on 28 November 2005 that the veterans’ death was not war-caused.  This decision was reviewed and affirmed by the Veteran’s Review Board (VRB) on 4 May 2007.  Mrs Brodie applied for review of the decision to the Administrative Appeals Tribunal on 6 June 2007.

2.      Mrs Brodie sought review on the papers.  The Repatriation Commission agreed to her request and the Tribunal’s advice to proceed to a formal hearing was rejected. 

3. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents); the Freemasons Hospital inpatient records concerning the veteran; a summary of the veterans’ documented smoking history prepared by the Department of Veterans’ Affairs; a statement from the applicant; the opinion of Dr R.B Collins, Pathologist; the transcript of the VRB hearing of 4 May 2007; notes regarding the veteran’s health and behaviour in May to July 2005 prepared by Mrs Brodie and four reports and opinions from Professor J. Cade, Director of the Intensive Care Unit at The Royal Melbourne Hospital.

4.      The late Mr Brodie had the accepted disabilities of Fibrositis of the back, Disc Degeneration L5-S1, Duodenal Ulcer, Anxiety Neurosis and Synovitis of the knees.

BACKGROUND

5.      The veteran Albert Brodie was a…