Colman and Repatriation Commission

[2005] AATA 74

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 74

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2002/1313   N2003/1616

VETERANS APPEALS  DIVISION		)
Re		RICHARD COLMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal P.J. Lindsay, Senior Member

Date14 January 2005  

PlaceSydney

Decision The decisions under review in respect of chronic bronchitis with chronic airflow limitation (N2002/1313) and depressive disorder (N2003/1616) are affirmed.

………………………  P J Lindsay,  Senior         Member

CATCHWORDS

VETERANS’ AFFAIRS – first reviewable decision concerns chronic airflow limitation – applicant’s smoking not related to service –  decision affirmed  - second reviewable decision concerns psychiatric condition and impotence - diagnoses of adjustment disorder and depressive disorder – whether conditions connected with service  – decision affirmed

Veterans’ Entitlements Act 1986 ss.120(1), 120(3), 120(4), 120A, 196

Repatriation Medical Authority Statements of Principles:

-     Instrument No. 58 of 1996 concerning Adjustment Disorder

-     Instrument Nos. 30 & 31 of 2004 concerning Chronic Bronchitis and Emphysema

-     Instrument No. 73 & 74 of 1997 concerning Chronic Bronchitis and Emphysema (revoked)

-     Instrument No. 58 & 59 of 1998 concerning Depressive Disorder

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Tuite (1993) 29 ALD 609

Byrnes v Repatriation Commission (1993) 177 CLR 564

Repatriation Commission v Deledio (1998) 83 FCR

Repatriation Commission v Hill (2003) 69 ALD 581

Benjamin v Repatriation Commission (2001) 34 AAR 270

Repatriation Commission v Smith (1987) 74 ALR 537

Repatriation Commission v Budworth (2001) 66 ALD 285

REASONS FOR DECISION

P.J. Lindsay, Senior Member        

1.      Richard Colman has applied under the Veterans’ Entitlements Act 1986 (the Act) to the Administrative Appeals Tribunal for review of two decisions by the Repatriation Commission:

·N2002/1313 being a decision dated 24 November 2000 to refuse Mr Colman’s claim for pension in respect of the condition ‘shortness of breath’.

·N2003/1616 being the decision dated 22 May 2003 refusing his claim for pension in respect of the condition ‘adjustment disorder and impotence’.

2.      At the hearing, Mr Colman was represented by Mr B Winship, solicitor, and the respondent by its advocate Mr N Bunn from the Department of Veterans’ Affairs.  The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Act 1975 (T documents) and the exhibits tendered at the hearing.

background

3.      Mr Colman is 50.  He served in the Royal Australian Navy from 11 July 1970, when he joined HMAS Leeuwin as a Junior Recruit, and was discharged on 15 September 2000 in the rank of lieutenant when he transferred to the Royal Australian Naval Reserve.  He had operational service in HMAS Vampire from 21 November 1972 to 26 November 1972, and eligible Defence Service from 7 December 1972.  In the course of the hearing he gave evidence as to service in East Timor, a period suggested by Mr Winship as operational service; no documentary evidence has been put before the tribunal in support of that contention.

4.      (N2002/1313) On 6 October 2000 he lodged a claim for disability pension for a number of conditions including…