Comino and Repatriation Commission - [2007] AATA 1071

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1071

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2005/435

VETERANS’ APPEALS DIVISION

)

Re	Leslie COMINO

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date 20 February 2007

Place Brisbane

Decision

The Tribunal:

1. affirms the decision under review in relation to diabetes mellitus;

2. sets aside the decision under review in relation to anxiety disorder and irritable bowel syndrome and substitutes its decision:

(a) that anxiety disorder and irritable bowel syndrome are war-caused in accordance with section 9 of the Act;

(b) that pension is payable for associated incapacity from and including 13 February 2004; and

………[Sgd]…….
RG Kenny
Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Air Force – application of Statements of Principles – appropriate diagnosis of psychiatric and other conditions –– anxiety disorder and irritable bowel syndrome diagnosed – effects of death of cyclist in motor vehicle accident - severe psychosocial stressor – clinical onset of anxiety disorder within two years - reasonable hypothesis of relevant relationship to service raised – anxiety disorder war-caused – irritable bowel syndrome war-caused through relationship to pre-existing anxiety disorder

Administrative Appeals Tribunal Act 1975 I(Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6A, 7, 9, 14, 120, 120A, 177

Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 74 ALR 537; (1987) 12 ALD 798; (1987) 7 AAR 17
Benjamin v Repatriation Commission (2001) 70 ALD 622; (2001) 34 AAR 270; [2001] FCA 1879
Fogarty v Repatriation Commission (2003) 37 AAR 363; [2003] FCAFC 136
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Youngnickel v Repatriation Commission [2004] FCA 1691
Lees v Repatriation Commission (2002) 125 FCR 331; [2002] FCAFC 398; (2002) 74 ALD 68; (2002) 36 AAR 484
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433; (2004) 40 AAR 486

REASONS FOR DECISION

20 February 2007

Mr RG Kenny, Member

Background

Leslie Comino (the applicant) undertook a period of service with the Royal Australian Air Force (the RAAF) from 17 June 1945 until 15 October 1948. On 13 May 2004, he lodged with the Repatriation Commission (the respondent), in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “anxiety and depressive state”, “irritable bowel syndrome” and “diabetic” which he contended were related to his RAAF service. On 23 September 2004, the respondent accepted that Dr Comino suffered from anxiety disorder and irritable bowel syndrome but determined that those conditions were not related to his service. It also determined that, in response to the claim for “diabetic”, there was no diagnosable condition such as diabetes mellitus present. On 17 June 2005, the Veterans’ Review Board (the Board)…

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 Comino and Repatriation Commission

Details

AGLC: Comino and Repatriation Commission [2007] AATA 1071
Case: [2007] AATA 1071
Decision Date: 20 February 2007

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal involved a claim by a veteran for a disability pension from the Repatriation Commission, arising from his service with the Royal Australian Air Force. The veteran had been diagnosed with anxiety disorder and irritable bowel syndrome, and he sought to establish that these conditions were war-caused. The Tribunal was tasked with determining whether these conditions were related to his service and, if so, whether they were war-caused under the relevant legislative framework.

The central legal issues before the Tribunal were whether the veteran's anxiety disorder and irritable bowel syndrome were related to his service, and if so, whether they were war-caused. The Tribunal had to consider the statutory provisions under the Veterans’ Entitlements Act 1986, the relevant Statements of Principles, and the applicable case law. Specifically, the Tribunal needed to assess whether the veteran's conditions were diagnosed appropriately, and whether the onset of the anxiety disorder could be reasonably linked to his service.

The Tribunal found that the veteran's anxiety disorder and irritable bowel syndrome were war-caused, with the anxiety disorder being triggered by the severe psychosocial stressor of the death of a cyclist in a motor vehicle accident he witnessed. This event occurred within two years of the veteran's service, satisfying the criteria for a reasonable hypothesis of a relevant relationship to service. The Tribunal also determined that the irritable bowel syndrome was war-caused through its relationship to the pre-existing anxiety disorder. The Tribunal set aside the Commission's decision in relation to these conditions and substituted its own decision, affirming the Commission's decision regarding the veteran's diabetes mellitus.

The Tribunal ordered that the decision under review be affirmed in relation to diabetes mellitus, while setting aside the decision in relation to anxiety disorder and irritable bowel syndrome. The Tribunal substituted its decision that these conditions were war-caused, that a pension is payable for associated incapacity from and including 13 February 2004, and that the matter of assessment be remitted to the Repatriation Commission.

Orders

Orders of the court

The Tribunal:

1. affirms the decision under review in relation to diabetes mellitus;

2. sets aside the decision under review in relation to anxiety disorder and irritable bowel syndrome and substitutes its decision:

(a) that anxiety disorder and irritable bowel syndrome are war-caused in accordance with section 9 of the Act;

(b) that pension is payable for associated incapacity from and including 13 February 2004; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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