Freeman; Repatriation Commission

[2000] AATA 727

DECISION AND REASONS FOR DECISION [2000] AATA 727

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V1999/648

VETERANS'     APPEALS     DIVISION     )          
           Re      REPATRIATION COMMISSION
  Applicant
           And    TERENCE HENRY FREEMAN   
  Respondent

DECISION

Tribunal       Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member   

Date21 August 2000

PlaceMelbourne

Decision      The Tribunal sets aside that part of the decision of the Veterans' Review Board, made on 24 February 1999 that post traumatic stress disorder and substance abuse are war-caused and substitutes therefor the decision that post traumatic stress disorder and psychoactive substance abuse or dependence are not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986.       
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – Post Traumatic Stress Disorder ("PTSD") – Psychoactive Substance Abuse or Dependence – whether war-caused – whether diagnosis PTSD exists – standard of proof – relevance of Statement of Principles in establishing diagnosis – decision set aside – conditions not war-caused.
Words and Phrases:  "traumatic event" – "intense fear, helplessness, horror"
Veterans' Entitlements Act 1986, ss. 9, 120, 190A, 196B
Repatriation Commission v Deledio (FFC 391/98; 22/4/98)
Keeley v Repatriation Commission (1999) FCA 1103 : 13 August 1999
Repatriation v Cooke (1998) 160 ALR 17
Re Budworth and Repatriation Commission (AAT Unreported N1995/965 and N1997/69 – 23 February 2000)
Repatriation Commission v Gosewinkel (1999) FCA 1273
Statement of Principles Instrument No. 15 of 94 (as amended by Instrument No. 225 of 1995) (Post Traumatic Stress Disorder)
Statement of Principles Instrument No. 5 of 1994 (Psychoactive Substance Abuse or Dependence)

REASONS FOR DECISION

21 August 2000       Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member               
 Introduction            

1. On 12 August 1997 the Repatriation Commission ("Commission") refused a claim made by Terence Henry Freeman for post traumatic stress disorder ("PTSD") and hyperuricemia.  The Commission further refused a claim made by Mr Freeman for substance abuse, breathing and asthma, the reason for refusal being that the diagnosis of these latter conditions could not be confirmed.

2. On 24 February 1999, after reviewing the decisions of the Commission, the Veterans' Review Board ("VRB") made a decision which was expressed in the following terms:

   "a)to affirm the decision under review in relation to breathing, asthma and hyperuricemia.  This means that the Repatriation Commission's decision is unchanged in relation to those matters.

   b)to set aside the decision under review in relation to post traumatic stress disorder and substance abuse and substitute its decision:

   (i)that those conditions were war-caused as defined in section 9 of the Veterans' Entitlements Act (the Act);

   (ii)that the Commonwealth of Australia is liable pursuant to section 13 of the Act to pay pension for any incapacity arising from those conditions from and including 28 January 1997 and

   (iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid."

3. On 17 June 1999 the Commission lodged an application with this Tribunal for review of that part of the decision of the VRB concerning PTSD and substance abuse.  It is…