Border and Repatriation Commission

[2009] AATA 924

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 924

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/3829

VETERANS' APPEALS DIVISION		)
Re		ROGER BORDER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy RFD, Senior Member

Date30 November 2009

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

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

Senior Member

Veterans’ Affairs – Veterans’ Entitlements – operational service with Australian army – application of Statement of Principles – diagnosis of generalised anxiety disorder, obsessive personality traits and post traumatic stress disorder – hypothesis raised to connect service and disease/illness – Statement of Principles in existence – no reasonable hypothesis raised – satisfied beyond reasonable doubt that disease/illness not attributable to service – decision under review affirmed.

Veterans’ Entitlements Act 1986 (Cth), ss 9, 85(2), 120(1), 120(3), 120(4), 120A, 196B(2)(d)

Administrative Appeals Tribunal Act 1975 (Cth), s 37

White v Repatriation Commission (2004) 39 AAR 67

Stoddart v Repatriation Commission (2003) 74 ALD 366

Repatriation Commission v Budworth (2001) 116 FCR 200

Makita v Sprowles (2001) 52 NSWLR 705

Bushell v Repatriation Commission (1992) 175 CLR 408

Cooke v Repatriation Commission (1997) 45 ALD 205

Repatriation Commission v Bey (1997) 149 ALR 721

East v Repatriation Commission (1987) 16 FCR 517

Repatriation Commission v Hill (2002) 69 ALD 581

Repatriation Commission v Deledio (1998) 83 FCR 82

Mann and Repatriation Commission [2008] AATA 163

Repatriation Commission v Law (1981) 147 CLR 635

Roncevich v Repatriation Commission (2005) 222 CLR 115

REASONS FOR DECISION

30 November 2009 Dr KS Levy RFD, Senior Member            

INTRODUCTION

1. The applicant, Roger Keith Border, made application for a condition of post traumatic stress disorder (“PTSD”) as a war-caused disease within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The claim was for medical treatment and pension for incapacity. The Repatriation Commission determined on 21 March 2007 that PTSD was not related to service. That decision was affirmed on review of the Veterans’ Review Board decision dated 5 June 2008.

2. It is noted that the basis of this claim is the same as an appeal by the applicant to the Administrative Appeals Tribunal in 1998 when the claim was refused. Since that time, there is further evidence of a psychiatric nature which is before this Tribunal. It is noted that at the time of filing the documents under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) in the present claim, PTSD was not recognised as a service related disability for Mr Border. However, since filing the documents, the Department of Veterans’ Affairs has recognised this condition for Mr Border for the purposes of treatment only under s 85(2) of the Act. This matter was clarified in a telephone directions hearing on 12 November 2009 between the legal representatives for the parties.

ISSUE

3. The question for the Tribunal is whether the applicant has the condition of post traumatic stress disorder and whether it is war-caused within the terms of s 9 of the…