Briggs and Repatriation Commission

[2003] AATA 603

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 603

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2001/44

VETERANS' APPEALS DIVISION		)
Re		RAYMOND BRIGGS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member K L Beddoe
Dr K P Kennedy, OBE, Member

Mr I R Way, Member

Date27 June 2003 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) K L Beddoe

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder - alcohol dependence or abuse – whether applicant’s conditions are war caused – whether applicant has suffered a severe stressor – whether reasonable hypothesis established - whether stressor arose out of a “wilful act” of the applicant

Veterans’ Entitlements Act 1986 ss 9(3), 24, 120

Statement of Principles
    Instrument No 3 of 1999 as amended by No 54 of 1999

Instrument No 76 of 1998

Re Roncevich and Repatriation Commission [2002] AATA 343

Repatriation Commission v Levi (1994) 61 FCR 189

McPherson v Repatriation Commission (1989) 87 ALR 275

REASONS FOR DECISION

27 June 2003  Senior Member K L Beddoe
Dr K P Kennedy, OBE, Member
Mr I R Way, Member          

1.      By a decision notified on 4 January 2000 the respondent accepted the applicant’s claim to have bilateral sensorineural hearing loss with tinnitus accepted as caused by operational service but refused claims for post traumatic stress disorder (“PTSD”) and alcohol dependence or alcohol abuse.  Pension was assessed at 10% of the General Rate effective from 30 April 1999.

2.      The Veterans’ Review Board subsequently affirmed the decision to refuse the claim for PTSD and alcohol dependence or alcohol abuse.

3. The basis of the applicant’s case is that he is entitled to be paid a special rate pension in accordance with section 24 of the Veterans’ Entitlements Act 1986 (“the Act”).  It is clear, at least to the Tribunal, that the applicant cannot succeed in that claim unless the rejected disabilities are accepted.

4. At the hearing Mr Hall, solicitor, represented the applicant and Mr McAninly represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the T documents and further documents were tendered and marked as exhibits. Oral evidence was given by the applicant, Dr Gelb, a consultant psychiatrist, and Professor McCarthy.

5.      The parties were given leave to make further submissions, in writing, at the conclusion of the hearing, because the Tribunal was not satisfied that the parties had correctly identified the issues in this case.  Both parties subsequently made written submissions and those submissions have been taken into account.

6.      The applicant was born 10 August 1935 and enlisted in the Royal Australian Navy on 8 August 1952.  He was discharged medically unfit in July 1959.  The applicant had operational service in South Korean waters from 2 November 1953 to 16 July 1954 on HMAS Murchison.

7.      During service the applicant suffered a serious injury to his right leg.…