Dougherty and Repatriation Commission (Veterans' entitlements) [2019] AATA 706 (16 April 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2016/3532
Re:Brian Dougherty
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:16 April 2019
Place:Sydney
For the reasons set out below, the Tribunal:
(a)affirms the Reviewable Decision in relation to the alcohol use disorder;
(b)sets aside the Reviewable Decision in relation to the hypertension; and
(c)makes a decision in substitution that the Applicant suffers from hypertension that was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).
.........................[SGD]...............................................
Senior Member Linda Kirk
CATCHWORDS
VETERANS’ AFFAIRS – disability pension claim – alcohol use disorder – hypertension – Deledio Principles – where hypothesis for claimed conditions consistent with templates in relevant Statement of Principles– whether claimed conditions were war-caused – where alcohol use disorder not war-caused – where hypertension war-caused – decision set aside in part
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Benjamin v Repatriation Commission (2001) 64 ALD 411
Blain v Repatriation Commission [2017] FCA 114
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517; [1987] FCA 242
Ellis v Repatriation Commission [2014] FCA 847
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FAFC 23; (2005) 85 ALD 1
Lees v Repatriation Commission (2002) 125 FCR 331
McLean v Repatriation Commission [2001] FCA 243
Re Parotte and Repatriation Commission [2004] AATA 536
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cooke (1998) 90 FCR 307
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 Law (1981) 147 CLR 635
Repatriation Commission v Milenz [2006] FCA 1436
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Warren (2008) 167 FCR 511
Stevens v Repatriation Commission [2018] FCA 1866SECONDARY MATERIALS
Statement of Principles concerning Alcohol Dependence and Alcohol Abuse No. 1 of 2009 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004
Statement of Principles concerning Hypertension No. 63 of 2013 for the purposes of the Veterans’ Entitlements Act 1986 and Military Rehabilitation and Compensation Act 2004REASONS FOR DECISION
Senior Member Linda Kirk
16 April 2019
INTRODUCTION AND BACKGROUND
Mr Brian Dougherty (‘the Applicant’) was born in 1949 and is 69 years old. He was conscripted into the Australian Army (‘the Army’) on 22 April 1970 when he was 20 years of age and served in the Army until his discharge on 9 December 1971.[1]
[1] T3.
The Applicant rendered operational service in South Vietnam from 17 February 1971 to 7 October 1971.[2]
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- Case
- [2019] AATA 706
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the Applicant's alcohol use disorder and hypertension were war-caused within the meaning of the Act. This required the Tribunal to consider the evidence presented by the Applicant regarding his service history and the development of these conditions, and to apply the relevant Statements of Principles and established legal principles, including the "Deledio principles," to determine if the necessary causal link to his service was established.
The Tribunal considered the Applicant's evidence concerning his drinking habits before, during, and after his national service. It noted that while the "Deledio principles" provide a useful methodology for decision-makers, they are not to be applied as a legislative mandate. The Tribunal found that the Applicant's alcohol use disorder was not war-caused, as the evidence did not establish a sufficient link between his service and the onset or aggravation of this condition. However, regarding hypertension, the Tribunal was not satisfied beyond reasonable doubt that it was not war-caused, and therefore set aside the Reviewable Decision in relation to hypertension.
Accordingly, the Tribunal affirmed the Reviewable Decision in relation to the alcohol use disorder, but set aside the Reviewable Decision concerning hypertension. The Tribunal substituted a decision that the Applicant suffers from hypertension that was war-caused.
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