Brown and Repatriation Commission - [2001] AATA 1032

DECISION AND REASONS FOR DECISION [2001] AATA 1032

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/140

VETERANS' APPEALS DIVISION       )
           Re      Murray Reginald Brown
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date20 December 2001
PlaceSydney

Decision The decision under review is varied by amending the diagnosis "personality disorder and post-traumatic stress disorder" to the diagnosis "personality disorder", but it is otherwise affirmed.
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CATCHWORDS
VETERANS' AFFAIRS – claim for Disability Pension – only one day of operational service – claim for Post-Traumatic Stress Disorder – some alleged stressors did not arise during operational service – inability to obtain appropriate clinical management – no event involving actual or threat of death or serious injury to veteran or third party – post-traumatic stress disorder not war-caused - Personality Disorder – veteran suffers from personality disorder – alleged inability to obtain appropriate clinical management – disability not war-caused – Alcohol Dependence and Substance Abuse – condition no longer present – Bipolar Disorder – no hypothesis raised.
Repatriation Commission v Smith (1987) 74 ALR 537, 547
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Williams [2001] FCA 1195
Veterans' Entitlements Act – ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 19(3), (4), (5), (6), (9) "application day", "assessment period", 20(1), 21A, 23(1), (2), (3), 24(1), (2), 24A, 28, 120(1), (3), (4), (6), 120A(1), (3), 157(2)(a)(ii), 196B(1), (2), 196D
Statements of Principles - 3/99, 54/99, 15/94 and 225/95 concerning PTSD; 143/95 and 13/97 concerning personality disorder; 5/94 concerning psychoactive substance abuse and dependence; 76/98 concerning alcohol dependence or alcohol abuse; 128/96 concerning bipolar disorder

REASONS FOR DECISION

20 December 2001 M J Sassella, Senior Member

This is an application to the Tribunal made by Murray Reginald Brown ("the applicant") to review a decision of the Veterans' Review Board ("the VRB") (T38) made on 8 December 1999 refusing to allow the claims that his psychiatric illnesses were war-caused.

History of the application

On 6 August 1986 the applicant lodged a claim for Disability Pension with the Department of Veterans' Affairs ("the DVA") on the basis of his severe nervous disability and pancreatitis (T4).
On 19 November 1986 the Repatriation Commission ("the respondent") decided that the applicant's personality disorder was not accepted as war-caused under s 9 of the Veterans' Entitlements Act 1986 ("the Act") and was disallowed (T6). The claim for pancreatitis was not accepted under s 13 of the Act as there was no disability found.
On 28 November 1986 the applicant lodged with the VRB an application for review of the respondent's decision (T7). On 7 December 1987 the VRB affirmed the decision under review (T7).
The VRB considered that the applicant rendered operational service from 5 April 1968 until 17 April 1968 when the ship he was serving on, the HMAS Parramatta escorted the HMAS Sydney into Vietnamese waters. For the remainder of the time spent in the navy he is not eligible for consideration as rendering operational service, whether or not…

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 Brown and Repatriation Commission

Details

AGLC: Brown and Repatriation Commission [2001] AATA 1032
Case: [2001] AATA 1032
Decision Date: 20 December 2001

CaseChat Overview and Summary

The case of Repatriation Commission v Smith involved a veteran who sought a Disability Pension on the grounds of Post-Traumatic Stress Disorder (PTSD), a Personality Disorder, Alcohol Dependence, and Substance Abuse. The veteran had only one day of operational service and claimed that his disabilities arose from his service. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the veteran's conditions were caused by his service, as required by the Veterans' Entitlements Act. Specifically, the court needed to assess if the veteran's PTSD was war-caused, given that some alleged stressors did not occur during his operational service, and whether there was an event involving actual or threatened death or serious injury to the veteran or a third party. The court also had to consider whether the veteran's Personality Disorder and Alcohol Dependence were war-caused, and if his Substance Abuse condition was no longer present. Lastly, the court needed to examine if there was a hypothesis raised concerning Bipolar Disorder.

The court found that the veteran's PTSD was not war-caused as some stressors did not arise during his operational service, and there was no event involving actual or threatened death or serious injury. The Personality Disorder was also not war-caused as there was no evidence of appropriate clinical management being unavailable. The Alcohol Dependence condition was no longer present, and no hypothesis was raised concerning Bipolar Disorder. Consequently, the court dismissed the veteran's claims for a Disability Pension.

The court ordered that the veteran's claims for a Disability Pension on the grounds of PTSD, Personality Disorder, Alcohol Dependence, and Substance Abuse be dismissed. The court did not find any of the veteran's conditions to be war-caused or applicable under the Veterans' Entitlements Act.

Orders