Aitken and Repatriation Commission

Case [2006] AATA 688


Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 688

ADMINISTRATIVE APPEALS TRIBUNAL          № V2004/661

№ V2004/942

VETERANS’ APPEAL  DIVISION

Re:           ROBERT AITKEN

Applicant

And:           REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       Miss E.A. Shanahan, Member

Date:9 August 2006

Place:Melbourne

Decision:The Tribunal varies the decision under review as follows:

1.The applicant’s peripheral neuropathy being diabetic in origin is war-caused with effect from 19 July 1999;

2.The applicant suffers from a generalised anxiety disorder.  This disorder is war-caused within the meaning of the Act with the date of onset being late 1969 or early 1970;

3.The applicant is qualified for the disability pension at 100 per cent of the general rate with effect from 19 July 1999; and

4.The applicant does not qualify for special or intermediate rate of pension.

(sgd) E.A. Shanahan

Member

VETERANS’ AFFAIRS – nature of psychiatric illness if any – date of onset – alcohol dependence – relationship to operational service – relevant statements of principles – events causing anxiety and stress – severe psycho‑social stress – diabetic peripheral neuropathy war-caused – intermediate rate – special rate

Veterans’ Entitlement Act 1986

Statement of Principle Instrument № 48 of 1994

Statement of Principle Instrument № 76 of 1998

Statement of Principle Instrument № 1 of 2000

Repatriation Commission v Deledio (1998) 49 ALD 193

Browne v Dunn (1894) 6R67

Banovich v Repatriation Commission 63 ALR 395

Cavell v Repatriation Commission 9 AAR 524

Woodward v Repatriation Commission 200 ALR 332

Meehan v Repatriation Commission [2003] FCA 1371

Lees v Repatriation Commission (2002) FCAFC 398

White v Repatriation Commission (2004) 633

Stoddard v Repatriation Commission 197 ALR 283

Repatriation Commission v Gosewinckel  59 ALV 690

Repatriation Commission v Keeley 98 FCR 108

O’Neil v Repatriation Commission (2001) FCA 1492

Magill v Repatriation Commission [2002] FCA 744

Repatriation Commission v Cooke 52 ALD 1

Bropho v State of Western Australia [2006] FCA 272 (21 March 2006)

REASONS FOR DECISION

9 August 2006  Miss E.A. Shanahan, Member

1.      Mr Aitken applied to the Administrative Appeals Tribunal on the 17 June 2004 for review of two decisions of the respondent.  The first, dated 28 August 2003, and affirmed by Veterans’ Review Board (VRB) on 6 May 2004, revoked an earlier determination that Mr Aitken’s post traumatic stress disorder (PTSD) with alcohol dependence was war-caused.  The second decision, which was affirmed by the VRB on 19 July 2004, rejected an application for special rate of pension.

2.      Initially, Mr Aitken’s application also sought review of the rejection of his peripheral neuropathy as being diabetic in origin and therefore war-caused.  Having obtained further expert medical opinion the respondent has conceded this condition as being war‑caused with effect from 19 July 1999.

3. The applicant was represented by Mr N. Dawson and the respondent by Ms J. MacDonnell, both of Counsel. The Tribunal had before it documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents, Exhibit R1).  The parties tendered the following documents:

·Statement of Mr Aitken, dated 20…

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Aitken and Repatriation Commission [2006] AATA 688
Case
[2006] AATA 688
Decision Date

CaseChat Overview and Summary

The applicant, Mr Aitken, appealed to the Administrative Appeals Tribunal (AAT) against the Repatriation Commission's decisions to revoke his earlier diagnosis of post-traumatic stress disorder (PTSD) with alcohol dependence and to reject his application for a special rate pension. The AAT found that Mr Aitken suffers from generalised anxiety disorder which is war-caused, with a date of onset of late 1969 or early 1970. The Tribunal found that his excessive alcohol intake commenced in 1965, prior to his operational service, and did not meet the requirements of the relevant Statement of Principle. The Tribunal varied the decision under review to find that Mr Aitken's peripheral neuropathy, being diabetic in origin, is war-caused with effect from 19 July 1999. The Tribunal also found that Mr Aitken is qualified for the disability pension at 100 per cent of the general rate with effect from 19 July 1999 and does not qualify for special or intermediate rate of pension.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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