BERNARD BROWN and REPATRIATION COMMISSION

[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…