Denman and Repatriation Commission

[2010] AATA 943

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 943

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3762

VETERANS' APPEALS   DIVISION		)
Re		JOHN DENMAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr Saw Hooi Toh, Member

Date25 November 2010   

PlaceSydney

Decision

1.       The Tribunal sets aside the decisions under review and instead decides that Mr Denman suffers from generalised anxiety disorder; his generalised anxiety disorder is war caused; and he is eligible to be paid at the special rate of pension.

2.      This decision takes effect from 9 January 2008.

.......................[sgd]....................................

Ms N Bell, Presiding Member   

CATCHWORDS – Veterans’ Entitlements – special rate pension – generalised anxiety disorder – clinical onset

Veterans’ Entitlements Act 1986

Lees v Repatriation Commission (2002) 74 ALD 68

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr Saw Hooi Toh, Member            

1.      Mr Denman served in the Australian Army from 30 June 1965 to 29 June 1967.  He had operational service from 1 July 1966 to 11 August 1966 in Malaya in a light antiaircraft battery.

2.      Mr Denman has the following accepted injuries or diseases:

·     Bilateral sensorineural hearing loss;

·     Lumbar spondylosis;

·     Bilateral tinnitus;

·     Solar keratosis;

·     Adjustment disorder;

·     Osteoarthrosis of both knees;

·     Irritable bowel syndrome; and

·     Major depressive disorder.

3.      Mr Denman’s malaria, migraine and anxiety disorder were rejected as not war caused.  His application to the Tribunal is in respect of the decision to reject anxiety disorder.  He also appeals the decision to reject his claim for payment at the special rate of pension, this decision having flowed from the rejection of his anxiety disorder which was regarded as having an impact on his ability to work.

4.      The Commission made numerous concessions. It conceded that the correct diagnosis of the remaining unaccepted psychiatric condition suffered by Mr Denman is generalised anxiety disorder. The Commission also conceded that Mr Denman experienced a Category 2 stressor whilst on operational service, that is, his operation of antiaircraft guns in Malaya. Finally, the Commission conceded that, if anxiety disorder were to be found to be war caused, Mr Denman would satisfy all of the requirements to be paid at the special rate of pension.

5.      However, the Commission maintained that Mr Denman’s anxiety disorder is not war caused because its date of clinical onset was not within one year after he experienced the conceded Category 2 stressor and that this means that Mr Denman falls outside the relevant factor in the Statement of Principles for Anxiety Disorder.

6.      However, at the hearing Mr Denman raised a different diagnosis – adjustment disorder with anxiety and depression. Adjustment disorder and depression are already accepted conditions. In the alternative, Mr Denman submitted that he suffers from anxiety disorder.  The Commission agrees with this latter diagnosis.

7.      In view of the numerous concessions made by the Commission, the issues for the Tribunal to consider are the correct diagnosis of Mr Denman’s remaining psychiatric condition, if…