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Dencher and Repatriation Commission

Dencher and Repatriation Commission

Case [2007] AATA 1530 10 July 2007

Veterans' Entitlements Act 1986

Disability Pension

Operational Service

War-Caused Disease

Generalised Anxiety Disorder

Veterans Affairs

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Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1530
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/62

VETERANS’ APPEALS DIVISION )

Re PETER DENCHER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member R Hunt, Dr J D Campbell, Member
Date10 July 2007
PlaceSydney

Decision The decision under review is affirmed.
…............[Sgd]................
Ms R Hunt
Presiding Member

CATCHWORDS
VETERANS AFFAIRS – veterans’ entitlements – disability pension – applicant served in Australian Army – rendered “operational service”– claimed disability pension - Generalised Anxiety Disorder (“GAD”) –applicant’s GAD is not a “war-caused disease” – no reasonable hypothesis connecting applicant’s GAD with circumstances of his “operational service” – tribunal satisfied beyond reasonable doubt that there is no sufficient ground for determining applicant’s GAD is war-caused – other psychiatric conditions not war-caused - decision affirmed.
Veterans’ Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A(3)
Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 1 of 2000)
Statement of Principles concerning Panic Disorder (Instrument No 9 of 1999, as amended by Instrument No 58 of 2001)
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581; [2002] FCAFC 192
Repatriation Commission v Keeley (2000) 98 FCR 108
Lees v Repatriation Commission [2002] FCAFC 398
East v Repatriation Commission (1987) 16 FCR 517
Woodward v Repatriation Commission [2003] FCAFC 160
White v Repatriation Commission (2004) 197 AAR 67
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Cornelius [2002] FCA 930
Robertson v Repatriation Commission AAT No 12666, [1990] AATA 127 (2 March 1998)
REASONS FOR DECISION

Summary
1. Mr Peter Dencher, the applicant, claims he developed generalised anxiety disorder (GAD), social anxiety disorder and panic disorder related to his service in Vietnam. This claim was rejected by the Repatriation Commission on 19 November 2004 and affirmed by the Veterans’ Review Board on 23 November 2005. Mr Dencher is already receiving a percentage of the general disability pension rate and would receive a greater percentage if his additional claim was accepted. We have found, on balance, that although Mr Dencher does suffer from generalised anxiety disorder, it is not war-caused caused or contributed to or aggravated by his operational service or other eligible service. This means that his claim has not been successful. Our reasons are set out below.
Introduction
2. The parties agree that Mr Dencher served in the Australian Army from 27 May 1969 to 6 March 1975. His service included operational service in South Vietnam from 26 May 1971 to 23 December 1971 and defence service from 7 December 1972 to 6 March 1975. Mr Dencher was aged 56 at the time of the tribunal hearing of his application for review of the decision of the Repatriation Commission to refuse his claim for generalised anxiety disorder, social anxiety disorder and panic disorder. The respondent pays Mr Dencher a pension at 20% of the general rate for…

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 Dencher and Repatriation Commission

Details

AGLC: Dencher and Repatriation Commission [2007] AATA 1530
Case: [2007] AATA 1530
Decision Date: 10 July 2007

CaseChat Overview and Summary

In the case of Dencher v Repatriation Commission, the applicant, a former serviceman of the Australian Army, sought a disability pension on the grounds of Generalised Anxiety Disorder (GAD) and other psychiatric conditions. The Repatriation Commission refused the claim, finding that the applicant’s GAD and other psychiatric conditions were not caused by his service. The applicant appealed this decision to the Administrative Appeals Tribunal (AAT), which affirmed the Commission’s decision. The applicant then sought judicial review of the AAT's decision in the Federal Court of Australia.

The primary legal issue before the court was whether the applicant's GAD and other psychiatric conditions were "war-caused diseases" within the meaning of the Veterans’ Entitlements Act 1986. The court had to consider whether there was a reasonable hypothesis that the applicant's conditions were caused by his service and whether the tribunal was correct in its finding that there was no sufficient ground to determine that the conditions were war-caused. The court was also required to assess the tribunal's application of relevant principles and authorities, including the Statements of Principles concerning GAD and Panic Disorder, and relevant case law.

The court held that the tribunal had correctly applied the relevant legislative provisions and the Statements of Principles. It was found that the tribunal had appropriately assessed the evidence and determined that there was no reasonable hypothesis connecting the applicant’s GAD with the circumstances of his operational service. The tribunal's conclusion that the applicant's GAD and other psychiatric conditions were not war-caused was not flawed. The court found no error in the tribunal's decision and affirmed the original determination by the Repatriation Commission.

The Federal Court dismissed the applicant's appeal, thereby affirming the decision of the AAT that the applicant was not entitled to a disability pension for his GAD and other psychiatric conditions.

Orders