Peckham and Repatriation Commission - [2002] AATA 524

DECISION AND REASONS FOR DECISION [2002] AATA 524

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/443

VETERANS' APPEALS DIVISION

Re: DONALD PECKHAM

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Mr B.H. Pascoe, Senior Member
Date:             28 June 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – malignant neoplasm of the rectum and incisional hernia sequelae – whether factors of Statement of Principles ("SoP") satisfied – whether smoking result of service – whether sufficient to satisfy SoP – whether alcohol consumption result of service – whether sufficient to satisfy SoP – chronic bronchitis and emphysema – whether correct diagnosis – whether satisfy factor of smoking in SoP – cervical spondylosis – whether trauma to cervical spine – whether satisfy definition of trauma – decision affirmed
Veterans' Entitlements Act 1986
Benjamin v Repatriation Commission [2001] FCA 1879
Arnott v Repatriation Commission [2001] FCA 1336

REASONS FOR DECISION

28 June 2002 Mr B.H. Pascoe, Senior Member

This is an application to review a decision of the Veterans' Review Board ("VRB") which affirmed a determination of the respondent that claimed conditions of malignant neoplasm of the rectum, hernia incisional, chronic bronchitis and emphysema, diabetes mellitus, cervical spondylosis and myopia were neither war-caused nor defence-caused.
At the hearing the applicant was represented by Mr D. Hyde of counsel and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Mr D. Peckham, Dr E. Cole, a psychiatrist, Mr R. Marshall, a general surgeon, Lieutenant Colonel F. Deane and Colonel K.M. Batters. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered:
Statement re smoking and alcohol – Mr Peckham – 16 July 2001 — Exhibit A1
Trauma Statement – Mr Peckham – 2 November 2001 — Exhibit A2
Report of Mr Marshall – 6 July 2001 — Exhibit A3
Report of Dr Cole – 2 November 2001— Exhibit A4
Lifestyle Questionnaire – Mr Peckham – 2 November 2001 — Exhibit A5
VRB Transcript Hearing 27 March 2001 — Exhibit R1
Report of Mr J. Church, Writeway Research Service – 23 August 2001 — Exhibit R2
Report of Mr Church, Writeway Research Service – 13 September 2001 — Exhibit R3
Clinical notes of Dr Pearce — Exhibit R4
Extracts of applicant's service records 1-6 — Exhibit R5
Report of Dr L. Walton, psychiatrist – 14 December 2001 — Exhibit R6
Statement of Lt Colonel Deane – 12 February 2002 — Exhibit R7
Drinking Questionnaire of applicant – 7 June 1994 — Exhibit R8
Mr Peckham served in the Australian Army ("army") from 10 August 1956 to 17 October 1976. His eligible war service, which was also operational service, was in the Far East Strategic Reserve from 25 September 1957 to 18 October 1959. He rendered defence service as defined in Part IV of the Veterans' Entitlements Act 1986 ("the Act") from 7 December 1972 to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Peckham and Repatriation Commission [2002] AATA 524
Case: [2002] AATA 524
Decision Date: 28 June 2002

CaseChat Overview and Summary

The applicant, Donald Peckham, sought a review of a decision by the Veterans' Review Board that his claimed conditions, including malignant neoplasm of the rectum, hernia incisional, chronic bronchitis and emphysema, diabetes mellitus, cervical spondylosis, and myopia, were neither war-caused nor defence-caused. The case involved determining whether the claimed conditions met the criteria set out in the relevant Statements of Principles (SoP) under the Veterans' Entitlements Act 1986.

The Tribunal examined the evidence provided by Mr Peckham and the medical opinions to determine if the claimed conditions were service-related. The Tribunal found that Mr Peckham's claimed smoking and alcohol consumption habits did not sufficiently relate to his operational service to satisfy the relevant factors in the SoP for malignant neoplasm of the rectum and chronic bronchitis and emphysema. Additionally, the Tribunal concluded that the alleged trauma to the cervical spine did not meet the definition of trauma in the SoP for cervical spondylosis. The Tribunal also found that the evidence did not support a diagnosis of chronic bronchitis and emphysema, despite Mr Peckham's smoking history.

The reasoning of the Tribunal was based on the evidence presented and the requirements of the SoPs. The Tribunal found that Mr Peckham's smoking and drinking habits predated his service and did not significantly increase during his operational service. The Tribunal also noted the lack of clear evidence linking the claimed conditions to service, as required by the SoPs. Consequently, the Tribunal was satisfied, beyond reasonable doubt, that there were no sufficient grounds for finding that the claimed conditions were war-caused or defence-caused.

The final orders of the Tribunal were to affirm the decision under review by the Veterans' Review Board, rejecting the applicant's claims for compensation related to the specified conditions.

Orders