Burke and Repatriation Commission

[2010] AATA 793

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 793

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2294

VETERANS' APPEALS DIVISION		)
Re		MATTHEW CHARLES BURKE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date15 October 2010

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that Mr Burke suffers from post traumatic stress disorder which is war-caused with effect from 10 September 2007.  The Tribunal remits the matter to the respondent for assessment of the rate of disability pension.

..................[signed].......................

Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – peacekeeping service – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused

Veterans' Entitlements Act 1986 ss 68, 120(2), 120(3)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Delahunty v Repatriation Commission [2004] FCA 309

Gerzina v Repatriation Commission [2003] FMCA 490

Hill v Repatriation Commission [2001] FCA 1775

Lees v Repatriation Commission [2002] FCAFC 398

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Hill [2008] FCA 50

Stoddart v Repatriation Commission (2003) 197 ALR 283

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

15 October 2010 G. D. Friedman, Senior Member

1.      Matthew Burke lodged a claim for a disability pension for post traumatic stress disorder (PTSD) as a result of his service in the Western Sahara region of Africa with a United Nations peacekeeping mission in 1993/1994.  The respondent rejected the claim on the basis that he does not suffer from PTSD.

2.      The issues before the Tribunal are:

·     Does Mr Burke suffer from PTSD? If so:

·     Is the condition war-caused?

LEGAL FRAMEWORK

3. Mr Burke served in the Australian Army from 7 July 1971 to 1 September 1996. From 13 November 1993 to 25 May 1994 he had peacekeeping service within the meaning of s 68 of the Veterans’ Entitlements Act 1986 (the Act) with the United Nations Mission for the Referendum in Western Sahara (MINURSO).  The following disabilities have been accepted as war-caused:

·     Torn left medial meniscus

·     Ruptured extensor tendon right finger

·     Lumbar spondylosis

·     Sensorineural hearing loss right ear

Apart from the condition under review, Mr Burke suffers from sensorineural hearing loss left ear, which has not been accepted as war-caused.  He is currently in receipt of disability pension at 90 per cent of the general rate.

4.      Causation questions, where a veteran has rendered peacekeeping service, are addressed by applying the standard of proof in s 120(2) and s 120(3) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

5.      The Tribunal is first required to determine to its reasonable satisfaction whether Mr Burke suffers from the claimed…