Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 43
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/137
| VETERANS’ APPEALS DIVISION | ) | ||
| Re | JOHN DUNNE | ||
Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date 2 February 2007
Place Brisbane
Decision The Tribunal:
(i) varies the decision under review by amending the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence;
(ii) affirms that decision, as varied; and
(iii) affirms the decision under review in relation to assessment of the rate of pension payable.
..........[Sgd]........
RG Kenny
Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric condition –. no diagnosis of post traumatic stress disorder - diagnosis of alcohol dependence – clinical onset of alcohol dependence more than two years after alleged stressor - no reasonable hypothesis of relevant relationship to service raised – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 14, 120, 120A
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] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Constable [2006] FCAFC 102; (2006) 151 FCR 391
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; (2003) 200 ALR 332; (2003) 75 ALD 420; (2003) 37 AAR 424
Repatriation Commission v Stoddart [2003] FCAFC 300; (2003) 134 FCR 392; (2003) 77 ALD 67; (2003) 38 AAR 176
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; (2002) 74 ALD 68; (2002) 36 AAR 484
Youngnickel v Repatriation Commission [2004] FCA 1691
Hardman v Repatriation Commission (2004) 82 ALD 433; (2004) 40 AAR 486; [2004] FCA 1174
REASONS FOR DECISION
| 2 February 2007 | Mr RG Kenny, Member |
Background
John Dunne (the applicant) served with the Royal Australian Navy (the RAN) for 12 years. On 19 August 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 dysthymic disorder, which he contended was related to his RAN service. On 13 January 2005, the respondent determined that the claim was answered by diagnoses of anxiety disorder and alcohol intoxication and also that these were unrelated to his service. In an earlier decision, dated 10 September 2004, the respondent determined that the appropriate rate of pension payable to Mr Dunne in relation to incapacity associated with conditions previously accepted as being related to his service was fifty percent (50%) of the general…
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- Dunne and Repatriation Commission [2007] AATA 43
- Case
- [2007] AATA 43
- Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with determining whether Mr Dunne's psychiatric condition, diagnosed as alcohol dependence, was connected to his military service. The key legal issue was whether there was a reasonable hypothesis that Mr Dunne's psychiatric condition had arisen out of or in the course of his operational service. The Tribunal needed to examine the clinical onset of Mr Dunne's alcohol dependence, the evidence presented regarding the onset of the condition, and the relevance of Statements of Principles concerning psychiatric conditions in the context of military service.
The Tribunal found that the clinical onset of Mr Dunne's alcohol dependence occurred more than two years after the alleged stressor during his military service. There was no reasonable hypothesis that Mr Dunne's psychiatric condition had arisen out of or in the course of his operational service. The Tribunal varied the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence but affirmed the Commission's decision regarding the assessment of the pension rate. The Tribunal upheld the Commission's assessment, concluding that the diagnosis did not meet the criteria for a link to military service.
The Tribunal's final orders included amending the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence, affirming the decision as varied, and upholding the Commission's assessment of the pension rate. The Tribunal's decision was grounded in the lack of a reasonable hypothesis connecting Mr Dunne's psychiatric condition to his service, despite the variation in diagnosis.
Orders
Orders of the court
The Tribunal:
(i) varies the decision under review by amending the diagnosis from anxiety disorder and alcohol intoxication to alcohol dependence;
(ii) affirms that decision, as varied; and
(iii) affirms the decision under review in relation to assessment of the rate of pension payable.
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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