Wheeler and Repatriation Commission

[2008] AATA 616

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 616

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/1697

VETERANS' APPEALS DIVISION		)
Re		PAULINE WHEELER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member

Date16 July 2008

PlaceSydney

Decision  The reviewable decision is affirmed.

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

Presiding Member
  Senior Member, Mrs Josephine Kelly

CATCHWORDS

VETERANS’ AFFAIRS – claim for war widow's pension – eligible service conceded – kind of death – whether veterans’ death war-caused – Statement of Principles concerning Chronic Bronchitis & Emphysema relied on - death certificate stated underlying cause metastatic prostate cancer and cardiopulmonary arrest – medical evidence considered – held kind of death  metastatic prostate cancer – death not caused by accepted condition coronary artery disease – reviewable decision affirmed

Administrative Appeals Tribunal Act 1975, s 37

Veterans’ Entitlements Act 1986, ss 8, 196B, 120, 120B, 196B

Statement of Principles concerning Chronic Bronchitis and Emphysema (No. 31 of 2004)

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Codd (2007) 95 ALD 619

REASONS FOR DECISION

16 July 2008 Senior Member, Mrs Josephine Kelly
Dr MEC Thorpe, Member  

1.      Mr John Wheeler served in the Australian Army between 30 July 1942 and 7 March 1946, which is eligible war service within the meaning of the Veterans' Entitlements Act 1986 (the Act). He died on 20 September 2005.  On 22 December 2005, his widow, Mrs Pauline Wheeler, applied for a pension in respect of his death.  Her application was refused on 17 January 2006 by a delegate of the Repatriation Commission who determined that Mr Wheeler's death was not war-caused.  That decision was affirmed by the Veterans' Review Board on 29 November 2006.  Mrs Wheeler seeks review of the decision as affirmed.

2.      Mr Wheeler had one accepted disability, coronary artery disease (CAD).

THE ISSUES

3.      The issues in these proceedings are:

a) What was the kind of death suffered by Mr Wheeler, and, having determined that question;

b) Was Mr Wheeler's death relevantly connected to his service?

c) Alternatively, did Mr Wheeler die from his accepted condition, coronary artery disease (see s 8(1)(f) of the Act)?

BACKGROUND

4.      Recorded on the Death Certificate, under the heading “Cause of Death and Duration of last illness,” was the following:

Part I

Cardio pulmonary arrest, seconds

Metastatic prostate cancer, 3 years

Part II

Chronic airway limitation

Chronic atrial fibrillation, years

Probable pneumonia, days

5.      Where a veteran has eligible service, the standard of proof to be applied to determine whether a death was war-caused is reasonable satisfaction (s 120(4) of the Act).   However, when a claim is made after 1 June 1994, s 120B qualifies that provision.  Section 120B requires that the material before the relevant decision-maker raise a connection between the death of the person and the particular service rendered, and that there is in force relevantly a Statement of Principles (SoP) determined under s 196B(3) of the Act that upholds the contention that the death…