Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 749
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0262
VETERANS' APPEALS DIVISION ) Re RONALD BENTLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Brigadier A G Warner, MemberDate25 October 2011
PlacePerth
Decision The Tribunal:
· varies the decision under review by amending the diagnosis of the applicant’s depressive condition from depressive disorder to Major Depressive Disorder;
· in all other respects, affirms the decision under review.
............sgd S D Hotop......
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Australian Army – applicant’s Army service included operational service – applicant claimed Post Traumatic Stress Disorder (PTSD) and “Anxiety Depression” war-caused – applicant has not suffered PTSD – applicant has suffered Alcohol Dependence and Major Depressive Disorder (diseases) – Statements of Principles (SoPs) – SoPs do not uphold contention that applicant’s diseases connected with operational service – material before Tribunal does not raise reasonable hypothesis connecting applicant’s diseases with operational service – applicant’s diseases not war-caused
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009
Statement of Principles concerning alcohol dependence or alcohol abuse, Instrument No 76 of 1998
Statement of Principles concerning depressive disorder No 27 of 2008
Statement of Principles concerning depressive disorder No 17 of 2007
Benjamin v Repatriation Commission (2001) 70 ALD 622
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Mines v Repatriation Commission (2004) 40 AAR 238
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2011) 110 FCR 2321
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
25 October 2011 Deputy President S D Hotop
Brigadier A G Warner, MemberIntroduction
1. Ronald Bentley (“the applicant”), who was born in May 1948, enlisted in the Australian Army, pursuant to the National Service Act 1951 (Cth), on 28 January 1970 and was discharged on 17 November 1971. He rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth)(“VE Act”), in Vietnam from 22 October 1970 to 19 November 1970.
2. On 8 March 2007 the applicant lodged with the Department of Veterans’ Affairs (“DVA”) a claim for disability pension under the VE Act in respect of disabilities described as “PTSD” and “Anxiety Depression” which he claimed were caused by “exposure to traumas of war”.
3. On 11 February 2008 a delegate of the Repatriation Commission (“the respondent”) decided, in respect of the applicant’s claim for disability pension, that “post traumatic stress disorder, alcohol dependence and depressive disorder are not related to service”.
4. On 7 December 2010 the Veterans’ Review Board (“VRB”) affirmed the respondent’s…
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CaseChat Overview and Summary
The legal issues before the court were whether the applicant's diseases were connected to his operational service and whether the applicant was entitled to the claimed veterans' entitlements. The court had to determine if the applicant's diseases were connected to his operational service, and if so, whether they were war-caused. The applicant needed to establish a reasonable hypothesis that his diseases were connected to his operational service. The court considered the relevant SoPs and the material before the Tribunal to determine if the applicant's diseases were war-caused.
The Tribunal found that the applicant had not suffered from PTSD but had Alcohol Dependence and Major Depressive Disorder. The SoPs did not uphold the contention that the applicant's diseases were connected with his operational service. The material before the Tribunal did not raise a reasonable hypothesis connecting the applicant's diseases with his operational service. Therefore, the Tribunal held that the applicant's diseases were not war-caused, and the applicant was not entitled to the claimed veterans' entitlements. The Tribunal varied the decision under review by amending the diagnosis of the applicant's depressive condition from depressive disorder to Major Depressive Disorder and affirmed the decision under review in all other respects.
Orders
Orders of the court
The Tribunal:
· varies the decision under review by amending the diagnosis of the applicant’s depressive condition from depressive disorder to Major Depressive Disorder;
· in all other respects, affirms the decision under review.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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