Guthrie and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 361

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2001/441

VETERANS' APPEALS  DIVISION		)
Re		DAVID HUGH GUTHRIE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member

Date22 April 2003

PlacePerth

Decision

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a)  to set aside the VRB decision under review of 11 September 2001 in so far as osteoarthrosis of right knee and lumbar spondylosis are concerned;

(b)  to accept the conditions of osteoarthrosis right knee and lumbar spondylosis as being war-caused, with effect from 26 November 1999; and

(c)  to remit the matter of assessment of incapacity from these two war-caused conditions to the Repatriation Commission.

........(sgd R D F Lloyd)...........

Member

No additional documentary evidence was handed up by the respondent, nor were any respondent witnesses called to give evidence. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent. The Tribunal regards him as an honest and forthright witness and as reliable in his accuracy as one would expect in recollecting matters dating back over 30 years. It was the Tribunal’s view that the applicant was in fact probably more reliable than most in this regard because he seemed to resist the tendency to convert a guess, or a vague recollection, into a firm statement of alleged fact.

3. The applicant served in the Australian Army from 1 May 1968 to 30 April 1970, having been called up under the National Service Scheme. He served in the war in Vietnam and his consequent period of operational service under the Act is stated to be from 11 February to 5 December 1969. His eligible service as defined in the Act is limited to that period. The applicant having had operational service, Section 120(1) and 120(3) of the Act then apply and the Tribunal is required to find that the applicant’s claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of section 120A of the Act, the Tribunal is required to assess the matter in accordance with any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”).

Diagnosis of Claimed Conditions

4.      As the initial step in its review process, the Tribunal must be relevantly satisfied as to the appropriateness of the diagnosis and description of the claimed conditions. In this instance the medical opinion evidence clearly establishes that the two conditions involved for the applicant in this regard are osteoarthrosis of the right knee and lumbar spondylosis. This is also common ground for both the applicant and respondent and the Tribunal itself is reasonably satisfied from the material before it, that this is indeed the correct and appropriate description of the two claimed conditions.

Applicant’s Contentions Re Claimed Conditions

5.      The applicant’s contention is that both his right…