Finney and Repatriation Commission

[2005] AATA 619

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 619

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/266

VETERANS' APPEALS DIVISION		)
Re		RICHARD JOSEPH FINNEY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member

Date29 June 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s depressive disorder and alcohol abuse disorder are war caused with effect from 20 September 1999.  The Tribunal remits to the respondent the assessment of rate of pension payable.

.................[Sgd]........................

M J Carstairs
  Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – depressive disorder and alcohol abuse – clinical onset – clinical worsening – severe psychosocial stressor – whether conditions related to service

Veterans’ Entitlements Act 1986 s 9, 120, 120A, 196B

White v Repatriation Commission [2004] FCA 633
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Repatriation Commission v Deledio (1998) 83 FCR 82
Hatherall and Repatriation Commission [2002] AATA 77
Delahunty V Repatriation Commission [2004] FCA 309
Repatriation Commission v Stoddart [2003] FCAFC 300

Stoddart v Repatriation Commission [2003] FCA 334

REASONS FOR DECISION

29 June 2005   Ms M J Carstairs, Member

1.      This is an application by Richard Joseph Finney (the applicant) for review of that part of a decision made by a delegate of the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (the VRB) that refused claims for depressive disorder and continued disability pension at 30% of the general rate. 

2.      At the hearing the applicant was represented by Mr A Harding of Counsel instructed by Gilshenan and Luton, Solicitors.  The respondent was represented on the first day of hearing by its advocate Mr J Stoner and on the second day by its advocate Mr M Smith.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A11 for the applicant and R1 – R4 for the respondent.

BACKGROUND

4.      The applicant is aged sixty nine.  He served in the Australian Army (the army) for over thirty years, enlisting in 1953 at the age of seventeen.   The applicant trained as a fitter and turner, specialising as a gun fitter. 

5.      The applicant had two periods of eligible war service in Malaya, as part of the Far Eastern Strategic Reserve, and in Vietnam in the period 18 September 1966 to 11 June 1967.   He relies only on the period of Vietnam service in relation to his claim.  His Vietnam service, along with his service in Malaya, is operational service under the legislation.

6.      During his Vietnam service the applicant was attached to 101 Field Battery (Fd Bty) as Battery Artificer holding the rank of Sergeant and having responsibility for technical inspection of gun sights and other aspects of gun maintenance.  He was then aged thirty years. 

7.      The applicant took discharge from the army in 1984, having risen to the rank of Warrant Officer Class 1.  Since…