ANTHONY MARSH and REPATRIATION COMMISSION

[2010] AATA 114

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 114

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4564

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY MARSH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member
Dr J D Campbell, Member

Date15 February 2010

PlaceSydney

Decision The decision under review is affirmed.

....................[Sgd]...................

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that post traumatic stress disorder and depressive disorder were war-caused – consideration of Statement of Principles – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1), 120(1), 120(3), 120A, 196A, 196B(2), 196B(14)

Statement of Principles concerning depressive disorder No. 27 of 2008

Bull v Repatriation Commission (2001) 66 ALD 271

Elliott v Repatriation Commission (2002) 73 ALD 377

Fogarty v Repatriation Commission (2003) 37 AAR 363

Gorton v Repatriation Commission (2001) 63 ALD 723

Hardman v Repatriation Commission (2004) 82 ALD 433

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill (2002) 69 ALD 581

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

15 February 2010	Ms N Isenberg, Senior Member
Dr J D Campbell, Member

background

1.      Mr Marsh served in the Royal Australian Air Force (“RAAF”) from 28 October 1958 to 12 January 1979.  Mr Marsh rendered “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the Act”) from 14 September 1965 to 11 August 1966 and from 19 April 1967 to 15 August 1968.  Mr Marsh also rendered eligible defence service from 7 December 1972 to 12 January 1979, however, this is not relevant to the matter at hand, as Mr Marsh contends that he suffers a psychiatric condition attributable to his operational service in Vietnam.

2.      Mr Marsh seeks review of the Veterans’ Review Board (“VRB”) decision dated 11 July 2008, which affirmed the Repatriation Commission decision of 22 September 2006 determining that post traumatic stress disorder (“PTSD”) and depressive disorder were not service-related.

issues

3.The issues before the Tribunal are:

(a)     What psychiatric condition, if any, does Mr Marsh suffer from?

(b)     Is the condition related to his operational service?

legislative background

4. Section 9 of the Act provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service, or arose out of, or was attributable to, that service.

5.      Subsection 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay pension by way of compensation to the veteran.

6. As Mr Marsh had operational service, the determination of whether his claimed condition(s) is/are war-caused is to be made by applying subsections 120(1) and 120(3) of the Act. Those subsections require…