Rowe and Repatriation Commission

[2007] AATA 1992

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1992

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200500888

VETERANS’       APPEALS      DIVISION		)
Re		MARJORIE ALICE ROWE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member

Date29 November 2007

PlaceMelbourne

Decision The decision under review is affirmed.

(Sgd)  John Handley
Senior Member

  

VETERANS’ AFFAIRS – widows application – smoking history and connection to service conceded – only issue – kind or cause of death – whether death by ischaemic heart disease or chronic obstructive pulmonary disease as asserted by the widow or by pulmonary fibrosis as argued by the respondent and as recorded on the death certificate – extensive medical evidence – decision of Veterans' Review Board affirmed

Veterans’ Entitlements Act 1986(Cth) s 120A(2) and (4), s 8(1)(f)

Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Codd (2007) 95 ALD 619

Byrne v Repatriation Commission [2007] FCAFC 126
Fogarty v Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Budworth [2001] FCA 1421

REASONS FOR DECISION

29 November 2007   Mr John Handley, Senior Member

1.      The evidence in this application was heard over three days in Mildura and in Melbourne.  A number of specialist medical practitioners gave evidence and the written medical and clinical data was voluminous.  Through the goodwill of the parties' representatives, the only issue remaining in dispute was the cause of death of the Veteran, the late Vernon Edwin Rowe.

2.      This appeal was lodged by Mrs Rowe, his widow.  She challenged a decision made by the Veterans' Review Board (VRB) which affirmed a decision previously made by the respondent denying her application.  The late Mr Rowe was a member of the Royal Australian Air Force (RAAF) between 1942 and 1945.  He served in Australia, Canada and the United Kingdom.  At his death he was receiving pension at 100 per cent of the general rate for the accepted conditions of anxiety neurosis, bilateral sensori-neural loss, ischaemic heart disease and bilateral acquired cataracts.  Rejected disabilities were osteoarthritis of the knees, gout, fibrositis, infectious mononucleosis and interstitial fibrosing lung disease.

3.      The death certificate recorded the causes of death as pulmonary fibrosis – end stage (18 months); right heart failure (months); shingles (24 hours).

4.      It was alleged on behalf of Mrs Rowe that the kind of death (refer Repatriation Commission v Hancock [2003] FCA 711 and s 120A(2) of the Veterans’ Entitlements Act 1986 (the Act) or cause of death, (refer Repatriation Commission v Codd (2007) 95 ALD 619 at paragraph 31) was either ischaemic heart disease or chronic obstructive pulmonary disease or both. During the assessment period, two Statements of Principles (SoPs) have been issued with respect to ischaemic heart disease namely Instruments No 53 of 2003 and No 89 of 2007. The SoP in the assessment period with respect to chronic obstructive pulmonary disease was Instrument No 30 of 2004 entitled Chronic Bronchitis and Emphysema. 

5.      It was alleged by the applicant that a connection between service…