RONALD HEINZ and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 97

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   2007/5864

DIVISION		)
Re		RONALD HEINZ

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member A K Britton

Doctor M E C Thorpe, Member

Date10 February 2010

PlaceSydney

Decision

The Tribunal sets aside the decision under review, and substitutes a decision that:

1. Mr Heinz suffers from atrial fibrillation, chronic sinusitis, osteoarthritis of the right knee, and coronary artery disease;

2. Mr Heinz’s osteoarthritis of the right knee is war-caused;

3. Mr Heinz’s atrial fibrillation, chronic sinusitis and coronary heart disease are not war-caused; and

4. The date of effect of the substituted decision in respect of the osteoarthritis of the right knee is 30 May 2005.

........................[SGD].................                   .......................[SGD]...............

CATCHWORDS

VETERANS ENTITLEMENTS – operational service – whether conditions of atrial fibrillation, sinusitis and osteoarthritis of right knee attributable to operational service –application of Statements of Principles (SoPs) – determination of whether reasonable hypothesis linking illness to operational service exists – application of standard of “beyond reasonable doubt” – satisfied beyond reasonable doubt that atrial-fibrillation and sinusitis war-caused – not satisfied to requisite standard that osteoarthritis not war-caused.

Veterans Entitlements Act – ss 6C, 7, 13, 120, 120A, 138, 196, 196B

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Meehan v Repatriation Commission [2003] FCA 1371

REASONS FOR DECISION

1.Mr Ronald Heinz served in the Royal Australian Navy in the early 1960’s.  He now suffers from a number of medical conditions, and attributes some of these to his service with the Navy.  

2.Mr  Heinz applies to the Tribunal for review of a decision made by the Veterans Review Board to refuse his claim for a disability pension made under the Veterans’ Entitlement Act 1986 (Cth) (the Act). The Board decided, amongst other things, that Mr Heinz’s claimed conditions of lumbar spondylosis, ischaemic heart disease and chronic sinusitis were not “war-caused”, and that there was no medical condition corresponding to his claim for “right knee problems”.  In these proceedings, he recast his claim to include claims for atrial fibrillation and coronary artery disease and withdrew those made in respect of lumbar spondylosis and ischaemic heart disease.

3.It is not in issue that Mr Heinz suffers from all claimed conditions with the exception of coronary artery disease which the respondent Commission contends is not a disease within the meaning of the Act.  The Commission argues that none of the claimed conditions are war-caused and therefore Mr Heinz’s claim for a pension under the Act must fail. 

Period of operational service

4.Mr Heinz joined the Royal Australian Navy in November 1961 and was discharged in October 1963. Several parts of that service constitute “operational service” as defined by s 6C of the Act — specifically, the periods from 28 September 1962 to 31 October 1962; 8 November to 1 December 1962; 5 to 22 December 1962; 27 January to 6 February 1963 and 7 to 16 February…