Hillier v Repatriation Commission

[2004] AATA 897

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 897

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/193

VETERANS' APPEALS DIVISION		)
Re		ROYDEN ALBERT HILLIER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date26 August 2004

PlaceAdelaide

Decision

The Tribunal varies the decision under review and decides that:

(a)      the applicant’s Ischaemic Heart Disease and Acute Myeloid Leukaemia are war-caused diseases;

(b)      the matter is remitted to the respondent for assessment of the appropriate rate of pension with effect from 6 August 2001; and

(c)       the decision is otherwise affirmed.

D.G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claims that three conditions are war-caused – ischaemic heart disease – acute myeloid leukaemia – depressive disorder – rate of smoking - consideration of stressors – meaning of “clinical onset” – meaning of “occurrence” – meaning of “severe psychosocial stressor” – sentry duty on HMAS Sydney – hearing of atrocities committed against Viet Cong soldiers - decision varied.

Veteran’s Entitlements Act 1986 sections 9, 120(1). 120(3), 120A and 196

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Deledio (1998) 83 FCR 82

Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Kattenberg v Repatriation Commission (2002) 73 ALD 365

White v Repatriation Commission [2004] FCA 633

Stoddart v Repatriation Commission (2003) 197 ALR 283

Repatriation Commission v Stoddart (2003) 77 ALD 67

Woodward v Repatriation Commission (2003) 75 ALD 420

Delahunty v Repatriation Commission [2004] FCA 309

Repatriation Commission v Law (1980) 31 ALR 140

REASONS FOR DECISION

26 August 2004   Deputy President D G Jarvis

1.      The applicant, Royden Albert Hillier, is a Vietnam veteran.  In a decision made on 2 May 2002, a delegate of the respondent refused the applicant’s claim for medical treatment and a pension for incapacity from conditions diagnosed as depressive disorder, bilateral sensorineural hearing loss, acute myeloid leukaemia (“AML”) and ischaemic heart disease (“IHD”), on the ground that those conditions were not war-caused.  On 29 April 2003, the Veterans’ Review Board (“VRB”) set aside the decision in relation to sensorineural hearing loss and in substitution found that the sensorineural hearing loss was war-caused and that the veteran was therefore entitled to a pension in respect of that condition from and including 6 August 2001.  The VRB otherwise affirmed the decision of the delegate with respect to depressive disorder, AML and IHD, and it is that aspect of the respondent’s decision which was the subject of the present application for review by this Tribunal.

2. The applicant was represented by Mr C Swan, solicitor, and the respondent was represented by its advocate, Mr A Crowe. The applicant, Mr Peter Clark and Ms Debra Videon gave evidence in support of the applicant’s case, and Commodore Mulcare gave evidence for the respondent. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of…