Pascoe and Repatriation Commission

[2005] AATA 163

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 163

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/970

VETERANS' APPEALS DIVISION		)
Re		IRIS PASCOE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date23 February 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

RG Kenny
  Member

CATCHWORDS

VETERANS - benefits and entitlements - widow’s pension - operational service with  Australian Army – death from ischaemic heart disease - application of Statement of Principles for anxiety disorder, alcohol abuse/dependence and hypertension - no reasonable hypothesis of relevant relationship to service - veteran’s death not war-caused

Veterans’ Entitlements Act 1986 s6A, 7, 8, 11, 16, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCA 82; (1998) 49 ALD 193
Gorton v Repatriation Commission [2001] FCA 1194; (2001) 65 ALD 609
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Lees vRepatriation Commission (2002) 74 ALD 68

REASONS FOR DECISION

23 February 2005 Mr RG Kenny, Member

Background

1.      Cecil Pascoe served in the Australian Army from 2 March 1941 until 10 September 1941.  He died on 12 March 1985 at the age of 70 years.  His widow, Iris Pascoe, contends that her late husband’s death was causally related to his service.

2. On 4 September 2002, Mrs Pascoe lodged a claim in accordance with section 16 of the Veterans’ Entitlements Act 1986 (the Act).  On 11 October 2002, the Repatriation Commission (the respondent) determined that the veteran’s death was not service-related and rejected her claim.  That decision was affirmed by the Veterans’ Review Board on 5 August 2003 and, on 17 November 2003, Mrs Pascoe lodged an application for the matter to be reviewed by the Administrative Appeals Tribunal (the Tribunal).

Hearing

3.      At the hearing, Mrs Pascoe was represented by Mr J Selfridge of counsel and the respondent was represented by Mr B Williams, Departmental advocate.

4.      The following material was tendered and taken into evidence;

exhibit 1the documents prepared in accordance with the section 37 Administrative Appeals Tribunal Act 1975 (the T documents - T1 – T6);

exhibit 2, 3 & 4    statements, dated 5 February 2004, 2 April 2004 and 29 July 2004, respectively, by Mrs Pascoe

exhibit 5a Medical History Sheet, dated 13 October 1969, relating to the veteran.

Issue and Legislation

5. It is common ground that Mrs Pascoe is a dependant, as defined in section 11 of the Act, entitled to make a claim under section 16 of the Act for a widow’s pension. It is also common ground that the veteran rendered eligible war service in the form of operational service in accordance with sections 7 and 6A of the Act. In accordance with subsection 8 (1) of the Act, his death will be taken to have been war caused if it arose out of, or was attributable to, any eligible war service that he rendered.

6.      The standard of proof applicable to the determination of entitlement claims for operational service is set out in subsection…