Boeder and Repatriation Commission - [2002] AATA 932

DECISION AND REASONS FOR DECISION [2002] AATA 932

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2001/459

VETERANS' APPEALS   DIVISION   )
           Re      WILLIAM BOEDER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J Handley (Senior Member)

Date16 October 2002
PlaceMelbourne

Decision      The decision of the Veterans' Review Board insofar as it found the applicant suffered from "avoidant personality disorder with associated depressive features" is set aside, and in substitution IT IS DECIDED- i) the applicant suffers from Post Traumatic Stress Disorder; and ii) a reasonable hypothesis exists connecting it with the applicant's service; and iii) in all other respects, the decision under review is affirmed and the application is remitted to the respondent for assessment of pension in accordance with these reasons.
  .........Sgd Mr J Handley....................
  Senior Member
VETERANS' AFFAIRS -
Service in Vietnam - applicant learnt of the death of another serviceman who was his friend - whether applicant suffers PTSD - whether he experienced a severe stressor - whether he 'experienced' or 'confronted' an event - discussion of DSM-IV criteria - decision set aside.
Veterans' Entitlement Act 1986

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Hill [2002] FCAFC 192
Benjamin v Repatriation Commission [2001] FCA 1879
Re Gregson & Repatriation Commission V2001/1400

REASONS FOR DECISION

16 October 2002 Mr J Handley (Senior Member)

The applicant applies to review a decision of the Veterans' Review Board ("VRB") made on 29 March 2001. The VRB then reviewed a number of decisions made by the Repatriation Commission on 17 June 1999.
The Repatriation Commission refused the applicant's claim for acceptance of the conditions of personality disorder with alcohol abuse, cervical spondylosis, chronic bronchitis and impotence. The Repatriation Commission also assessed the applicant's disability pension at 10% of the general rate.
The VRB varied the decision with respect to personality disorder with alcohol abuse by amending the diagnosis. It found the applicant suffered the condition of "avoidant personality disorder with associated depressive features". With respect to the condition of chronic bronchitis, the VRB amended the diagnosis to that of chronic simple bronchitis. The VRB then proceeded to affirm the decisions with respect to avoidant personality disorder with depressive features and cervical spondylosis. It then decided to set aside the decision with respect to chronic simple bronchitis and found that it was war-caused, but remitted the issue of assessment of pension to the respondent.
Subsequently, there have been a number of variations concerning the applicant's entitlement to general rate pension, with respect to conditions which have been accepted as war-caused. At the present time, the applicant receives pension at 100% of the general rate, with respect to the accepted conditions of sensorineural hearing loss of the left ear, osteoarthrosis of the left ankle and foot, chronic simple bronchitis and impotence.
The issues before the Tribunal at the hearing were whether the applicant suffered a psychiatric injury or illness and if so what diagnosis should be made.
Mr Liefman who appeared on behalf of the applicant submitted that…

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 Boeder and Repatriation Commission

Details

AGLC: Boeder and Repatriation Commission [2002] AATA 932
Case: [2002] AATA 932
Decision Date: 16 October 2002

CaseChat Overview and Summary

The applicant, William Boeder, sought review of a decision by the Veterans' Review Board (VRB), which had varied the decision of the Repatriation Commission, regarding his claim for acceptance of certain conditions as war-caused. The VRB found Boeder suffered from "avoidant personality disorder with associated depressive features." The Tribunal was required to decide whether Boeder suffered from Post Traumatic Stress Disorder (PTSD) and if so, whether it was connected to his service in Vietnam. The Tribunal also had to interpret the term "experiencing a severe stressor" as it appears in the PTSD Statement of Principles. The Tribunal found that Boeder did suffer from PTSD and that it was connected to his service, particularly the traumatic event of learning about the death of his friend, Lance Corporal John McCarthy. The Tribunal held that the term "experiencing a severe stressor" extends to learning about a traumatic event, not just witnessing or directly confronting it. The decision of the VRB was set aside, and in its place, it was decided that Boeder suffered from PTSD, which was connected to his service. The application was remitted to the respondent for reassessment of pension in accordance with these reasons.

Orders