Aitken and Repatriation Commission - [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…

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.

Continue reading Aitken and Repatriation Commission

Details

AGLC: Aitken and Repatriation Commission [2006] AATA 688
Case: [2006] AATA 688
Decision Date: 9 August 2006

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