Ramon Will and Repatriation Commission - [2012] AATA 710

[2012] AATA 710

Division VETERANS' APPEALS DIVISION

File Number(s)

2010/1669

Re

Ramon Will

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms A F Cunningham (Senior Member)

Date 15 October 2012

Place Hobart
The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member

VETERAN’S PENSION – AVM condition – whether war caused – whether failure of appropriate medical treatment materially contributed to or aggravated the disease – Tribunal found no evidence of inappropriate medical treatment – disease not contributed to in a material degree or aggravated by defence service – decision under review affirmed
Veterans' Entitlements Act 1986, ss 5(d), 9, 70 120(4)
Young and Repatriation Commission [1990] AATA 466
REASONS FOR DECISION
Ms A F Cunningham (Senior Member)
BACKGROUND

The applicant, Ramon Will seeks the review of a decision of the Veterans Review Board which confirmed a decision of a delegate of the Repatriation Commission (the Commission) that his claim for arteriovenous malformation of the brain (AVM) was not causally related to his service with the Royal Australian Navy (RAN).
Mr Will served as a marine engineer with the RAN between 29 May 1984 and 30 June 2004. His service included a period of operational service between 12 March 1991 and 3 May 1991. Mr Will is however relying on his eligible defence service as providing the causal basis for his claim.
Mr Will has a number of accepted conditions being sensorineural hearing loss, tinnitus, tinea of the skin and pomholys.
It is not in dispute that Mr Will suffers from an AVM which is a congenital malformation of the brain for which he underwent surgery on 19 June 2006. Following the surgery Mr Will suffered a postoperative haemorrhage which resulted in severe disability. His current symptoms include numbness, tingling and temperature variations in the right hand which significantly restrict the use of his hand. Mr Will has since learnt to write with his left hand.
THE ISSUE
It is contended by the applicant that due to inappropriate medical treatment and misdiagnosis, there was a permanent worsening of his existing AVM condition.
The issue for the Tribunal to determine is whether the applicant is entitled to have the condition of AVM accepted as defence caused within the meaning of section 9 of the Veterans’ Entitlements Act 1986 (the VE act).
THE LEGISLATION
Mr Will’s AVM condition is classified as a disease under the VE Act. A war caused disease is defined in section 9 of the VE Act which states that an injury or disease suffered by a veteran shall be taken to be war caused if it was contributed to in a material degree or was aggravated by any eligible war service rendered by the veteran.
The relevant standard of proof is that contained in section 120(4) of the VE Act which provides that the Tribunal should decide the matter to its reasonable satisfaction, that is, on the balance of probabilities.
The eligibility provisions for payment of a pension under the VE Act are found in…

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

Case: [2012] AATA 710
Decision Date: 15 October 2012

CaseChat Overview and Summary

Ramon Will sought review of a decision by the Veterans Review Board which upheld the Repatriation Commission's decision that his claim for arteriovenous malformation of the brain (AVM) was not causally related to his service with the Royal Australian Navy (RAN). The Tribunal was required to determine whether Mr Will's AVM condition was contributed to in a material degree or was aggravated by his defence service within the meaning of section 70(5)(d) of the Veterans' Entitlements Act 1986. The Tribunal found no evidence of inappropriate medical treatment or failure to diagnose the AVM condition during Mr Will's service with the RAN. The Tribunal accepted the evidence of Associate Professor Brian Chambers, a consultant neurologist, who considered that Mr Will's five-minute loss of consciousness following a head injury in 1986 did not warrant a CT scan and that even if one had been performed, the AVM may not have been detected. The Tribunal also found that Mr Will did not consider the symptoms in his right hand to be troubling and did not follow up on the suggestion by chief medic Dale that he return if the symptoms persisted. The Tribunal did not find that Mr Dale's treatment was inappropriate in the circumstances and there was no basis for a conclusion that the treatment materially contributed to or aggravated the AVM condition. The decision under review was affirmed.

Orders