JOYCE and REPATRIATION COMMISSION

[2011] AATA 836

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 836

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0182

VETERANS' APPEALS DIVISION		)
Re		MICHAEL JOYCE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date25 November 2011

PlaceBrisbane

Decision

The Tribunal sets aside the determination of the Repatriation Commission dated 7 May 2009 and substitutes the decision that the veteran’s posttraumatic stress disorder was a war-caused disease.

The Commonwealth of Australia is liable pursuant to s 13 of the Veterans' Entitlements Act 1986 (Cth) to pay to the applicant pension and treatment for disability caused by posttraumatic stress disorder from 17 July 2010.

This matter be remitted to the Repatriation Commission to assess the rate at which pension is to be paid for incapacity for all accepted war-caused injuries and diseases including the disease of posttraumatic stress disorder.

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

Member

CATCHWORDS

VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Air Force – Diagnosis of posttraumatic stress disorder – Application of Statements of Principles – Hypothesis that posttraumatic stress disorder war-caused reasonable – Hypothesis not disproven beyond reasonable doubt – Decision under review set aside

Acts Interpretation Act 1901 (Cth) s 29

Veterans’ Entitlements Act 1986 (Cth) s 9, 70, 120, 120A, 177, 196B

Border v Repatriation Commission (No 2) [2010] FCA 1430

Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271

Delahunty v Repatriation Commission [2004] FCA 309

East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517

Elliott v Repatriation Commission (2002) 73 ALD 377

Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433

Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

25 November 2011 Dr M Denovan, Member    

INTRODUCTION

1. The applicant, Mr Michael Joyce, served as a cook in the Royal Australian Air Force from 26 April 1968 to 25 April 1974. From 15 April 1970 to 15 July 1970 he served in Vietnam, which is eligible war service and operational service pursuant to ss 6C and 7 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). Mr Joyce claims that during this service he experienced two events that resulted in him now suffering from posttraumatic stress disorder (PTSD). The first of these was when he went to the assistance of a fellow soldier who was injured when a kitchen oven exploded (the oven event). The second event occurred when Mr Joyce attempted to speak to another soldier who was his friend, when both were awaiting transfer to an air base for the purpose of being Medivaced to Australia (the transfer event).

2.      On 7 May 2009 the respondent rejected a claim made by Mr Joyce on 30 July 2008 for PTSD. That decision was affirmed by the Veterans’ Review Board on 7 October 2010. On 10 February 2011 Mr Joyce applied to the Administrative Appeals Tribunal (AAT) for review of that decision.

ISSUES AND THE LEGISLATION