Brady and Repatriation Commission

[2010] AATA 346

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 346

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No: V 200500446

VETERANS' APPEALS DIVISION		)
Re		William Brady

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President
Miss E A Shanahan, Member

Date10 May 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

........(sgd G L McDonald)....

Deputy President

CATCHWORDS –remittal from Federal Court of Australia - general order that case be reheard - Tribunal not restricted to grounds advanced in the appeal - status of ‘observations’ by the Federal Court Vietnam veteran – claim for pension - various conditions - whether veteran suffered alcohol abuse or alcohol dependence - whether veteran suffered alcohol induced peripheral neuropathy - anxiety disorder - whether reasonable hypothesis - whether facts establish beyond reasonable doubt that hypothesis reasonable – decision affirmed.

Administrative Appeals Tribunal Act 1975 ss 37 and 44(4) and (5)

Veterans’ Entitlements Act 1986 ss 7(1)(a), 9, 9(1)(a), 9(1)(b), 9(1)(e)(ii), 13(1), 119(1)(h)(i), 119(1)(h)(ii), 120(1) and (3) and 120A

Briginshaw v Briginshaw [1938] 60 CLR 336

Meehan and Repatriation Commission [2003] AATA 429

Meehan v Repatriation Commission [2003] FCA 1371

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Brady [2007] FCA 1087

REASONS FOR DECISION

10 May 2010 Mr G L McDonald, Deputy President
Miss E A Shanahan, Member

1.           The applicant, who served in the Australian Army in Vietnam, lodged a claim, dated 28 February 2004, to be paid a pension under the Veterans’ Entitlements Act 1986 (the Act).  The conditions upon which he relied were generalised anxiety disorder,[1] Post Traumatic Stress Disorder (“PTSD”) and a deterioration of his hearing loss.[2]  While no apparent claim for alcohol abuse was made the delegate of respondent decided to reject anxiety depression, PTSD and alcohol abuse.[3]  Other conditions including increased hearing loss were accepted.  Since alcohol abuse has been included in all subsequent considerations of the applicant’s claim it ought to be considered in this review.  The Veteran’s Review Board affirmed the decision of the delegate but amended the claim for anxiety/depression to “anxiety disorder with co-morbid depression …”[4]  From that decision the applicant appealed to the AAT (the first AAT review).

[1] Expressed by his medical practitioner, Dr P. Nice, on the form as ‘anxiety and depression’ (the first AAT review, Exhibit A at p 19).

[2] Exhibit R1, Appeal Book, pp 97-98 and 100.

[3] Exhibit R1, Appeal Book, pp 117-118.

[4] Exhibit R1, Appeal Book, p 23.

2. In the first AAT review, the Tribunal determined that the applicant did not suffer PTSD, but he did suffer from a generalised anxiety disorder and alcohol dependence or abuse and was entitled to be paid a pension. The respondent appealed to the Federal Court. The Federal Court decided that the Tribunal had erred in finding that the applicant suffered alcohol abuse or dependence on the basis that the conditions were mutually exclusive and that evidence, which was not before the Tribunal, was required as to whether…