The late Sir Wira Gardiner. Photo: Oranga Tamariki
A ruling backing a claim about exposure to Agent Orange, launched to "vindicate the rights" of Vietnam war veterans, has sparked a move to change how some military veterans' applications for financial support are assessed.
The late Sir Wira Gardiner made a claim in 2021 his glioblastoma brain tumour must be treated as a defence service-related condition. He died in 2022.
It was a final act of "selfless service", a ruling out this week said.
However, Tā Harawira's claim was initially declined by Veterans' Affairs in 2021.
Now, following a series of hearings, including at the High Court, the Veterans' Entitlement Appeals Board has accepted it.
"The appellant's glioblastoma must be treated as service-related under the VSA [Act]," its ruling said.
"We heard from Lady Gardiner and [advocate Ross] ... Himona at the re-hearing that this appeal was pursued over the past three years by Tā Harawira's whānau in accordance with his dying wish, not to gain any particular financial benefit for his own whānau, but to vindicate the rights of his comrades in the Vietnam veteran community.
"That is entirely consistent with Tā Harawira's record of selfless service to the nation throughout his life, both in war and peace."
The ruling has the possibility of increasing what veterans can claim by many millions of dollars.
Veterans' Affairs said it was already moving to update and implement new procedures to reflect the ruling.
However, at the same time it is appealing the ruling to the High Court.
The Minister for Veterans Chris Penk said he had been informed this was to clarify about how the Veterans' Support Act should be interpreted.
"This is a significant decision of the board."
While the legal process was carrying on, it would not be appropriate to comment further, Penk said in a statement to RNZ.
Veterans Affairs said it would not automatically be reviewing past decisions on claims.
As it was now making changes, ahead of getting that High Court clarification, "It will likely take us longer to process some of the more complex claims."
It was still worthwhile for veterans to lodge a health claim, it said on its website.
Tā Harawira served as am infantry platoon commander in Vietnam from June 1969 to May 1970.
The board accepted he had been exposed to Agent Orange, similar to a case several years earlier of another New Zealand veteran William Kenyon, whose brain tumour was accepted as linked to that exposure.
"In both cases, the time lag between exposure to Agent Orange and the diagnosis of glioblastoma was over 40 years," the ruling said.
It has not been established that dioxin was a causative or contributory connection with glioblastoma, "but such a connection cannot be ruled out".
At a hearing in September, Veterans' Affairs conceded that a link of the tumour to Agent Orange "is more than a possibility".
One factor "the fact that, of Tā Harawira's 17 siblings, he was the only one who served in Vietnam and the only one who contracted this disease", the new ruling said.
The new appeal drew the board's attention to a large number of successful claims by veterans in the US, where the Veterans' Administration found it could "not specifically rule out the possibility that the Veteran's glioblastoma was due to Agent Orange exposure".
The board said it did not need to consider the US situation, where a more stringent test than under the New Zealand law appeared to apply, though it might come up again in future.
Tā Harawira's claim for a disablement pension was first knocked back by Veterans' Affairs in September 2021.
In February 2022, a review officer upheld the decision that his tumour was not service related, but an appeal board in April that year found the review officer had had previous involvement in the case, so was disqualified from deciding on it.
In July 2022, the appeal board reversed the decision and upheld the claim.
But Veterans' Affairs appealed to the High Court on five points of law in 2023, which then directed the appeal board to take another look at it.
A re-hearing with expert witnesses was held in September this year.
In the end the only sticking point was whether the tumour-Agent Orange hypothesis was inconsistent with proved or scientific facts, the new ruling said.
VA produced an expert US opinion that said no chemical exposures had been confirmed to increase risk of glioblastoma.
But Professor of Occupational and Environmental Medicine at the University of Otago, David McBride, told the board glioblastoma was a rare cancer and the cohort of Vietnam veterans was too small to conduct reliable epidemiological studies.
This left a gap in scientific knowledge.
Other factors could be taken into account, such as that US Vietnam vets suffered excessive rates of head and neck cancers that could not be attributed to regular causes like smoking. Tā Harawira did not smoke.
The board concluded: "While such a link is as yet unproven on a scientific basis, it remains a plausible explanation for at least some of the excess deaths which have been observed among the Vietnam veterans' cohort."
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