Van As and Repatriation Commission (Veterans’ entitlements)

Van As and Repatriation Commission (Veterans’ entitlements) [2015] AATA 789 (9 October 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/2073
Re	Kevin Van As
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr Damien Cremean Senior Member
Date	9 October 2015
Place	Melbourne

The Tribunal sets aside the decision under review with regard to chronic obstructive pulmonary disease with effect from 21 November 2012. The remaining elements of the decision are affirmed.

.................[sgd]................................

Dr Damien Cremean

VETERANS AFFAIRS — War-caused injury or disease − Emphysema − Special Rate − alone − substantial cause

Legislation

Veterans Entitlements Act 1986 (Cth), sections 24(1)(c), 24(2)(b)

Cases

Repatriation Commission v Richmond   (2014) 226 FCR 21

Repatriation Commission v Watkins (2015) 228 FCR 573

Secondary Materials

Repatriation Medical Authority, Statement of Principles for Chronic Obstructive Pulmonary Disease, No. 37 of 2014

REASONS FOR DECISION

Dr Damien Cremean

9 October 2015

1. The Applicant seeks review of the decision by the Veterans’ Review Board (the Board) on 6 February 2014 affirming the Respondent’s decisions of 5 December 2012 (V 13/0078)  and 26 February 2013 (V12/0451A).

2. These affirmed decisions refused the Applicant’s claim for his emphysema to be accepted as being war-caused under the Veterans’ Entitlements Act 1986 (Cth) (the Act) and, second, continued his disability pension under that Act at 100% of the General Rate.

3. As to the former the Applicant contends he satisfies the Statement of Principles for Chronic Obstructive Pulmonary Disease (SOP) and that under the Act his emphysema should be accepted as war-caused.

4. As to the second part of the decision, the Applicant contends he satisfies the requirements of section 24(1)(c) of the Act with respect to Special Rate.

5. The Applicant, who undertook National Service in the Australian Army from 5 June 1972 to 26 April 1974, has the following accepted disabilities: dislocated left hip; ischaemic heart disease; and major depressive disorder (chronic). Rejected disabilities are alcohol abuse; hypertension; and emphysema.

6. At the hearing the Applicant gave sworn evidence as did his brother Mr Brett Van As. Both were cross-examined, as were Doctors Pomorin and Farnbach who gave evidence by telephone. Numbers of documents including medical reports were also received into evidence.

Entitlement

1. The Respondent stated that it was prepared to leave it to the Tribunal to decide whether  the Applicant’s emphysema should be determined to be an accepted condition or not.

2. I am satisfied, on the balance of probabilities, that the Tribunal should determine that the  Applicant’s emphysema is indeed an accepted condition under the Act.

3. The Applicant, as submitted by his voluntary advocate Mr Reynolds, in my view satisfies the requirements of the SOP. The Board was reasonably satisfied, as am I, that the Applicant suffers the diagnosed condition of emphysema. Under paragraph 3 (b) of the SOP emphysema is included in the definition of chronic obstructive pulmonary disease.

4. I am not in any doubt, on the evidence, that the Applicant’s chronic obstructive pulmonary disease is due to the great many years he has spent smoking — probably far in excess…