Thompson and Repatriation Commission

[2006] AATA 104

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/332

VETERANS'     APPEALS      DIVISION

Re:         ROBERT ARTHUR THOMPSON

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             8 February 2006

Place:            Melbourne

Decision:The Tribunal:

(a)sets aside that part of the Repatriation Commission's decision made on 18 September 2001 concerning cardiomyopathy and chronic bronchitis and decides that these conditions are war-caused conditions under the Veterans' Entitlements Act 1986; and

(b)affirms that part of the Repatriation Commission's decision made on 18 September 2001 concerning cervical spondylosis.

(sgd) Regina Perton

Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - cervical spondylosis – cardiomyopathy – chronic bronchitis – alcohol consumption - smoking - whether service‑caused

Veterans’ Entitlements Act 1986 ss 119(h), 120(4), 196B(14)

Lees v Repatriation Commission (2002) 74 ALD 68

Repatriation Commission v Cornelious [2002] FCA 750'

Kattenberg v Repatriation Commission (2002) 73 ALD 365

Re Sharkey and Repatriation Commission (1988) 15 ALD 782

REASONS FOR DECISION

8 February 2006  Regina Perton, Member

1.      Robert Arthur Thompson, who was born on 12 September 1921, served in the Royal Australian Air Force (RAAF) during World War II.  He was posted to various locations in Australia between 5 March 1941 and 2 August 1945.   Part of that time was spent training to be a pilot.  The entire period is treated as eligible war service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). 

2.      Mr Thompson suffers from a number of medical conditions.  Some of these conditions have been accepted as war-caused by the Repatriation Commission: namely traumatic arthritis of the right knee, bilateral sensori-neural hearing loss, bilateral tinnitus and bilateral rotator cuff syndrome. He receives a disability pension from the Repatriation Commission at 90% of the general rate.

3.      However, the Repatriation Commission did not accept that Mr Thompson’s other conditions, cervical spondylosis, cardiomyopathy, chronic bronchitis and bilateral cataracts were service-related. The VRB affirmed the Repatriation Commission decision on 30 January 2004P.  Mr Thompson lodged an application for review of a decision of the Veterans’ Review Board (VRB) concerning cervical spondylosis, cardiomyopathy and chronic bronchitis. Mr Thompson did not seek review of the decision concerning the cataracts, for which he has now received successful treatment.   

4.      There is no dispute that Mr Thompson’s period in the RAAF constituted eligible war service or that Mr Thompson suffers from those medical conditions. The only issue before the Tribunal is whether the cervical spondylosis, cardiomyopathy and chronic bronchitis are war‑caused. 

EVIDENCE

Mr Thompson

5.      In a written statement dated 1 March 2004 (Exhibit A1) Mr Thompson stated that he was injured in a motor vehicle accident in 1938 resulting in a fractured scull and injuries to his shoulder and the right side of his face.  He experienced pain and limitation of movement in his neck as a result of the accident.  He stated that the symptoms in his neck gradually resolved; and by the time he enlisted he had no symptoms in his neck.  Mr Thompson stated that…