Willman and Repatriation Commission

[2007] AATA 1480

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1480

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)          No   Q2006/134

VETERANS' APPEALS DIVISION  )

Re MURIEL WILLMANN

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date28 June 2007

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

...............[Sgd].............................   RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service with Australian Army – whether congestive cardiac disease or death from congestive cardiac disease is war-caused – neither congestive heart disease or ischaemic heart disease present in veteran – death not attributable to any service-related condition – decisions affirmed

Veterans’ Entitlement Act 1986 (Cth) ss 5E, 6A, 7, 8, 9, 11, 14, 120, 120A

Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Thompson (2001) 107 FCR 235
Nicolia v Commissioner for Railways (NSW) (1970) 45 ALJR 465

Hammond and Repatriation Commission [2003] AATA 311

REASONS FOR DECISION

28 June 2007      Mr RG Kenny, Member

Background

1. Ralph Willmann (the veteran) served in the Australian Army in World War II. On 25 June 2004, a claim was lodged, under s 14 of the Veterans’ Entitlements Act 1986 (the Act), on his behalf for a pension for incapacity from various conditions including “heart disease”.  The claim form included an entry by the veteran’s treating doctor in which he was diagnosed with “congestive cardiac failure”.  Mr Willmann died on 25 June 2004.  On 6 August 2004, the Repatriation Commission (the respondent) determined that congestive heart failure was not war-caused under s 9 of the Act.  On 28 September 2004, Muriel Willmann, his “widow” and a “dependant”, as those terms are defined in ss 5E and 11, respectively, of the Act, lodged a claim under s 14 of the Act for acceptance of Mr Willmann’s death as being war-caused. On 1 October 2004, that claim was rejected by the respondent on the basis that the veteran’s death was not war-caused in accordance with s 8 of the Act.

2.      Both decisions of the respondent were affirmed by the Veterans’ Review Board (the Board) on 22 November 2005. Mrs Willmann now seeks review of those decisions by the Administrative Appeals Tribunal (the Tribunal).

Service

3.      It is not disputed and I am satisfied that Mr Willmann’s service in the army from 22 December 1941 until 2 November 1944 constitutes “eligible war service” in the form of “operational service” in accordance with ss 7 and 6A, respectively, of the Act.

Issues and Legislation

4.      The standard of proof for determining diagnostic matters under the Act, including the kind of death, is provided for in s 120(4) thereof and this requires that such matters be determined to the Tribunal’s reasonable satisfaction: see Repatriation Commission v Hancock [2003] FCA 711; Repatriation Commission v Smith (1987) 15 FLR 327 at 335; Benjamin v Repatriation Commission (2001) 70…