Dunne and Repatriation Commission

Case [2007] AATA 43


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

  1. 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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AGLC
Dunne and Repatriation Commission [2007] AATA 43
Case
[2007] AATA 43
Decision Date

CaseChat Overview and Summary

The applicant, Mr Dunne, appealed a decision by the Repatriation Commission regarding the assessment of his disability pension under the Veterans' Entitlements Act 1986. The dispute centred on whether Mr Dunne's psychiatric condition, diagnosed as alcohol dependence, was related to his operational service with the Royal Australian Navy. Mr Dunne argued that his psychiatric condition, including alcohol dependence, was linked to his military service. The Commission had previously assessed his condition as anxiety disorder and alcohol intoxication, but did not recognise a link to his service. The case was heard by the Administrative Appeals Tribunal, which had the authority to review the Commission's decision under section 37 of the Administrative Appeals Tribunal Act 1975.

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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