Burge and Repatriation Commission

[2003] AATA 1133

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1133

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V2001/1647

VETERANS' APPEALS  DIVISION		)
Re		LESLIE BURGE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Miss E.A. Shanahan, Member

Date12 November 2003

PlaceMelbourne

Decision

1.         The Tribunal varies the decision under review to provide that cerebellar haemorrhage resulting from ischaemic infarct and anxiety disorder not otherwise specified are war-caused diseases.

2.         The matter is remitted to the Repatriation Commission for assessment of the rate of pension payable.

(Sgd) Joan Dwyer

Senior Member

VETERANS’ AFFAIRS – whether cerebellar haemorrhage and anxiety disorder are war-caused diseases – operational service – application of relevant Statements of Principle

cerebellar haemorrhage – whether secondary to cerebral ischaemia and infarct – or whether a primary haemorrhage – Tribunal reasonably satisfied that veteran had cerebral ischaemia leading to ischaemic infarct followed by a cerebral haemorrhage – relevant factor in SoP relied on smoking habit – veteran’s evidence pointing to satisfaction of requirements of factor 5(k)(i) of SoP but some medical records contradicting that evidence – Tribunal not satisfied beyond reasonable doubt that veteran’s evidence as to smoking not accurate – cerebellar haemorrhage found to be war-caused

anxiety disorder – whether veteran suffers a psychiatric condition related to cerebellar haemorrhage – veteran’s late wife had given history of development of symptoms anxiety after cerebellar haemorrhage to doctors and in earlier AAT hearing – consideration of time and manner in which Tribunal to decide whether it is reasonably satisfied that veteran suffers an anxiety disorder and diagnosis of that disorder – whether reference to definitions in SoP is appropriate at time of deciding those issues to Tribunal’s reasonable satisfaction – finding as to symptoms from which veteran suffers – whether appropriate for Tribunal to consider a diagnosis in the relevant SoP, but not relied on by the parties – whether material pointing to a relevant factor in SoP – finding that veteran suffers from war-caused diseases of anxiety disorder not otherwise specified – matter remitted to Repatriation Commission for assessment of rate of pension payable

PRACTICE AND PROCEDURE – reference to histories given by veteran’s late wife to medical witnesses and to evidence given by her at earlier AAT hearing

Veterans' Entitlements Act 1986 ss 7, 9, 119(1)(h)(i), 120, 120A

Statements of Principles -
No. 52 of 1999 – Cerebrovascular Accident

No. 1 of 2000 – Anxiety Disorder

Repatriation Commission v Burge [2002] FCA 623 (10 May 2002)

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 160 ALR 17

Repatriation Commission v Gosewinckel [1999] FCA 1273, 59 ALD 690

Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 34 AAR 27

Grant v Repatriation Commission [1999] FCA 1629 paragraphs 17-18; 57 ALD 1

Fogarty v Repatriation Commission  [2003] FCAFC 136

Lees v Repatriation Commission [2002] FCAFC 398