Decision The decision under review is set aside and the Tribunal substitutes for it the decision:
(a)that Mr Harvey’s post traumatic stress disorder with associated major depression, alcohol dependence and hypertension are war-caused diseases within the meaning of section 9 of the Veterans’ Entitlement Act 1986 (the Act);
(b)that Mr Harvey is entitled to receive pension for incapacity associated with those conditions with effect from and including 24 October 2002, a date which is set in accordance with the terms of section 177 of the Act; and
(c)that the matter of assessment of the rate of pension payable to Mr Harvey is remitted to the Repatriation Commission.

..........[Sgd]..............
RG Kenny
Member

CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – operational service and defence service with Australian Army – post traumatic stress disorder with associated major depression – alcohol dependence – hypertension – application of Statements of Principles - reasonable hypotheses of relevant relationship to service raised – conditions war-caused – assessment of rate of pension remitted to respondent
Veterans’ Entitlements Act 1986 s 6C, 7, 9, 14, 70, 120, 120A
Repatriation Commission v Budworth [2001] FCA 1421; (2001) 66 ALD 285
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Smith (1987) 15 FCR 327; (1987) 12 ALD 798
Repatriation Commission v Deledio (1998) 83 FCR 82
Keeley v Repatriation Commission (2000) 60 ALD 401
White v Repatriation [2004] FCA 633
Woodward v Repatriation Commission (2003) FCAC 160
Repatriation Commission v Stoddart (2003) FCAC 300; (2003) 77 ALD 67
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Re Sandiford and Repatriation Commission (1998) 27 AAR 210
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION

21 April 2005 Mr RG Kenny, Member

Background
1. Keith Harvey, the applicant, served in the Australian Army from 30 April 1968 until 29 April 1977. His service included a period in South Vietnam. He now contends that he suffers from post traumatic stress disorder with depression, alcohol dependence and hypertension and that these are related to aspects of that service in South Vietnam.
2. On 24 January 2002, Mr Harvey lodged a formal claim for acceptance by the Repatriation Commission (the respondent) of “PTSD/alcohol dependence” and “high blood pressure”. That claim, which was made in accordance with section 14 of the Veterans’ Entitlements Act 1986 (the Act), resulted in a determination by a delegate of the respondent, on 25 July 2002, that Mr Harvey suffered from post traumatic stress disorder with associated major depression, alcohol dependence and hypertension but that these conditions were not related to any aspect of his Army service. That decision was affirmed by the Veterans’ Review Board on 12 May 2003 and, on 7 July 2003, an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harvey and Repatriation Commission

Details

AGLC: Harvey and Repatriation Commission [2005] AATA 353
Case: [2005] AATA 353
Decision Date: 21 April 2005

CaseChat Overview and Summary

Harvey appealed a decision of the Repatriation Commission regarding the assessment of his pension under the Veterans’ Entitlements Act 1986. The Commission had determined that Harvey was entitled to a disability pension for his post-traumatic stress disorder with associated major depression and alcohol dependence, but not for his hypertension. The court was required to decide whether the Commission properly applied the relevant legislation in its assessment of Harvey’s pension. Specifically, the court had to consider whether the Commission erred in its application of the Statements of Principles concerning the conditions Harvey claimed were war-caused and the appropriate rate of pension to be awarded.

The court examined the Commission’s decision-making process and whether it was in accordance with the legal principles set out in relevant case law and statutory provisions. The court considered whether the Commission correctly identified the relevant medical evidence and if it appropriately applied the legal tests for establishing a causal link between the conditions and the veteran’s service. The court also evaluated the Commission’s assessment of the rate of pension, focusing on whether it appropriately considered all relevant factors.

In its decision, the court found that the Commission had correctly identified the relevant medical evidence and applied the appropriate legal tests. The court held that the Commission properly concluded that Harvey’s post-traumatic stress disorder with associated major depression and alcohol dependence were war-caused, but it found that the Commission erred in its assessment of the pension rate. The court determined that the Commission had not adequately considered all relevant factors in its assessment of the pension rate and remitted the matter back to the Commission for reassessment.

The court ordered that the matter be remitted to the Repatriation Commission for a fresh assessment of the pension rate, taking into account all relevant factors. The Commission was directed to review its decision in light of the court’s findings and to provide a new determination on the appropriate rate of pension for Harvey.

Orders