Wynn and Repatriation Commission (Veterans' entitlements) - [2017] AATA 608

Wynn and Repatriation Commission (Veterans' entitlements) [2017] AATA 608 (8 May 2017)

Division:Veterans' Appeals Division
File Number: 2014/6663
Re:Thelma Wynn
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member
Date:8 May 2017
Place:Sydney

The Tribunal affirms the decision under review.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – whether applicant’s death caused by his service – cause of death – cause of death prostate cancer – whether smoking history in service caused prostate cancer - prostate cancer not linked to applicant’s service – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

CASES

Repatriation Commission v Deledio, the Full Federal Court [1998] FCA 391

Repatriation Commission v Gorton [2001] FCA 1194

SECONDARY MATERIALS

Mayo Foundation for Medical Education and Research, Hyponatremia, Mayo Clinic < Medical Authority, Amendment Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 77 of 2012
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 53 of 2014
Repatriation Medical Authority, Statement of Principles concerning Malignant Neoplasm of the Prostate, No. 28 of 2005

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

8 May 2017

The decision under review

The decision under review is the decision made by the Repatriation Commission on 13 December 2013 refusing the applicant’s claim for widows’ pension which was affirmed by the Veterans’ Review Board on 1 December 2014.
If the application is successful and the pension granted, the earliest date of effect would be 4 October 2013, the day after the death of Mr Wynn, the applicant’s husband.

The law

The legislative scheme which applies in a case where a claim for a pension has been made in relation to the death of a veteran who had operational service is set out in the Veterans’ Entitlements Act 1986 (Cth) (the VEA).
Following is a summary of the steps to be taken.
First, the Tribunal must determine the “kind of death” suffered by the veteran on the balance of probabilities.
Having done that, the following steps are to be taken to determine whether the death was war caused:[1]
1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the death with the circumstances of the particular service rendered by the person. If no such hypothesis arises, the application must fail.
2If the material does raise such a hypothesis, the Tribunal must ascertain whether there is in force an SoP [Statement of Principles]…
3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" in the SoP. The hypothesis raised must contain one or more of the factors which are set out in the SoP that must exist and be related to the person's service…
4The Tribunal must then consider whether it is satisfied beyond reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 608
Decision Date: 8 May 2017

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the matter of Wynn and the Repatriation Commission concerning whether the applicant's death was caused by his service. The dispute centred on the cause of death, specifically prostate cancer, and whether the applicant's smoking history during his service contributed to this condition.

The Tribunal was required to determine whether the applicant's prostate cancer was linked to his military service. This involved assessing the evidence regarding the applicant's smoking habits during his service and the established medical and scientific understanding of the causal relationship between smoking and prostate cancer.

The Tribunal affirmed the Repatriation Commission's decision, finding that the available medical and scientific evidence did not establish a causal link between the applicant's prostate cancer and his service. The Tribunal concluded that prostate cancer is not a condition typically associated with military service, nor was there sufficient evidence to demonstrate that the applicant's smoking history during his service was the cause of his prostate cancer.

Orders