BERNARD BROWN and REPATRIATION COMMISSION

Case [2009] AATA 870


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 870

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/4413

VETERANS' APPEALS DIVISION )
Re BERNARD BROWN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date11 November 2009

PlaceBrisbane

Decision

The Tribunal affirms the decision under review.  

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

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – Service with Royal Australian Navy – Diagnosed conditions of posttraumatic stress disorder, depressive disorder and alcohol dependence – Conditions not related to period of operational or eligible service – Decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 9, 19, 70, 120, 120A, 120B

Repatriation Commission v Milenz (2006) 93 ALD 107

Stoddart v Repatriation Commission (2003) 74 ALD 366

REASONS FOR DECISION

11 November 2009 Mr S Karas, AO, Senior Member

BACKGROUND

1.      Bernard Brown (“the applicant”) served with the Royal Australian Navy (“the Navy”) from 11 February 1967 until 10 February 1976.  He rendered operational service in South Vietnamese waters as follows:

·   Aboard the HMAS Duchess:

18 November 1968 – 25 November 1968; and

16 November 1969 – 29 November 1969.

·Aboard the HMAS Sydney:

20 September 1971 – 16 October 1971;

26 October 1971 – 18 November 1971;

24 November 1971 – 17 December 1971;

14 February 1972 – 9 March 1972; and

1 November 1972 – 30 November 1972.

2.      In a decision dated 30 November 2004, the Administrative Appeals Tribunal (“the Tribunal”) determined that the applicant’s diagnosed conditions of depressive disorder and posttraumatic stress disorder (“PTSD”) had no causal nexus with his eligible service.

3. Under review is that part of a Repatriation Commission (“the respondent”) decision dated 4 April 2008 which refused the applicant’s claim for pension and treatment in relation to the conditions diagnosed as depressive disorder, PTSD and alcohol dependence (in remission). That decision was based on the grounds that those conditions were neither war-caused nor defence-caused as defined by ss 9 and 70 of the Veterans’ Entitlements Act 1986 (“the Act”).  The Veterans’ Review Board affirmed the decision on 18 August 2008.

ISSUES AND LEGISLATION

4. The issues for the Tribunal to determine are whether the conditions of depressive disorder, PTSD and alcohol dependence (in remission) are war-caused within the meaning of s 9 of the Act. In so determining, it is necessary to consider whether the applicant experienced a category 1A, 1B or category 2 stressor (as defined in the various Statements of Principle listed below) during and attributable to his eligible service.

5. Section 9 of the Act provides that a person’s injury or disease is war-caused if it:

·   resulted from an occurrence on operational service;

·   arose out of or was attributable to eligible war service;

·   resulted from an accident while travelling to or from duty;

·   was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or

·   was contributed to in a material degree…

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BERNARD BROWN and REPATRIATION COMMISSION [2009] AATA 870
Case
[2009] AATA 870
Decision Date

CaseChat Overview and Summary

Bernard Brown, as an applicant for veterans' entitlements, challenged a decision made by the Repatriation Commission, which was ultimately upheld by the Administrative Appeals Tribunal. The dispute centred on whether Mr Brown's diagnosed conditions of posttraumatic stress disorder, depressive disorder, and alcohol dependence were related to his period of service with the Royal Australian Navy. The Tribunal was tasked with determining whether these conditions met the criteria under the Veterans’ Entitlements Act 1986 (Cth) for a service-related disability. The key legal issues revolved around the interpretation of the relevant sections of the Act, specifically sections 9, 19, 70, 120, 120A, and 120B, and the application of previous case law such as Repatriation Commission v Milenz and Stoddart v Repatriation Commission.

In its reasoning, the Tribunal examined the evidence provided by Mr Brown regarding his service and the onset of his conditions. It found that there was insufficient evidence to establish a causal link between the diagnosed conditions and his period of operational or eligible service. The Tribunal relied on the principles set forth in previous cases, particularly the need for a direct link between the service and the claimed conditions. It held that the onus of proof rested on Mr Brown to demonstrate that his conditions were related to his service, a burden he had not met. Consequently, the Tribunal affirmed the decision of the Repatriation Commission to deny Mr Brown's claim for veterans' entitlements.

In light of the Tribunal's decision, it was affirmed that the determination made by the Repatriation Commission would stand. Mr Brown's application for veterans' entitlements was dismissed, and the Tribunal upheld the original decision. The Tribunal's decision underscores the stringent requirements for establishing a causal link between a veteran's service and their diagnosed conditions for the purpose of claiming entitlements under the Veterans’ Entitlements Act 1986 (Cth).

Orders

Orders of the court

The Tribunal 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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