Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 392
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/840
VETERANS' APPEALS DIVISION ) Re STANISLAW KALUZA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M E C Thorpe, MemberDate14 May 2008
PlaceSydney
Decision The Tribunal varies the decision under review and finds that Mr Stanislaw Kaluza suffers from anxiety disorder, alcohol abuse and hypertension, but not PTSD or alcohol dependence. The Tribunal finds that none of the conditions claimed or diagnosed are war-caused. ...............[sgd]...............................
Ms G Ettinger Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlement – Disability Pension – Operational and Eligible Service – Reasonable hypothesis - Statements of Principles – Diagnosis – no PTSD – Veteran suffers Anxiety Disorder, Hypertension, Alcohol Abuse, which are not war-caused - decision under review varied.
Veterans’ Entitlements Act 1986 ss 9, 5D, 120, 120A, 120(1), 120(3), 120(4)
Statement of Principles concerning PostTraumatic Stress Disorder - Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, Instrument No.5 of 2008
Statement of Principles concerning Anxiety Disorder - Instrument No. 1 of 2000, No.101 of 2007
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998, Instrument No.17 of 2008
Statement of Principles concerning Hypertension - Instrument No.23 of 2003 as amended by Instrument No.3 of 2004, Instrument No.11 of 2008
Repatriation Commission v Cooke (1998) 160 ALR 17
Budworth v Repatriation Commission [2001] 63 ALD 422
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission [1997] 47 ALD 261
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Keeley (2000) 60 ALD 401
REASONS FOR DECISION
14 May 2008 Ms G Ettinger, Senior Member
Dr M E C Thorpe, Member1. Mr Kaluza is a 61 year old veteran who served in the Royal Australian Air Force (Air Force) from 29 August 1963 to 31 October 1983. He was an aircraft technician, and participated in several flights to Vietnam. Mr Kaluza told us that he undertook many overseas flights all over South East Asia and New Guinea.
2. Mr Kaluza was posted to 37 Squadron at Richmond from 5 September 1966 to 3 September 1973. The Respondent held that Mr Kaluza served on operational service for two days, one in 1969 and another in 1970, while the Veteran claimed he had served four to six days on operational service between 1968 and 1971. Mr Kaluza joined the Reserves immediately after leaving the Air Force in 1983 and remained until 2004, at times working fulltime for the Air Force. The Applicant’s eligible service was from 7 December 1972 to 31 October 1983.
3. Because Mr Kaluza served on operational service, for him to succeed, the reasonable hypothesis test pursuant to section 120 of the Veterans Entitlements Act 1986 (the Act), and the application…
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- Kaluza v Repatriation Commission [2008] AATA 392
- Case
- [2008] AATA 392
- Decision Date
CaseChat Overview and Summary
The key legal issues revolved around the interpretation and application of the Veterans' Entitlements Act and related statements of principles. The Tribunal had to determine if Mr Kaluza's conditions met the statutory criteria for being war-caused and if he was entitled to a disability pension. Specifically, the court had to consider whether Mr Kaluza's conditions could be linked to his war service on a reasonable hypothesis basis, as required by the Act. The Tribunal also needed to review the medical evidence and diagnoses provided to ascertain the causes of Mr Kaluza's conditions.
The Tribunal found that while Mr Kaluza suffered from anxiety disorder, alcohol abuse, and hypertension, these conditions were not war-caused. The Tribunal examined the medical evidence and concluded that the conditions did not meet the threshold of being reasonably attributable to Mr Kaluza's war service. The Tribunal also noted that the diagnosis of PTSD was not supported by the evidence, and Mr Kaluza's alcohol abuse was not classified as alcohol dependence under the relevant statements of principles. Consequently, the Tribunal varied the decision under review, finding that Mr Kaluza did not qualify for a disability pension based on his war service.
The Tribunal ordered that the decision under review be varied to reflect that Mr Kaluza suffers from anxiety disorder, alcohol abuse, and hypertension, but these conditions are not war-caused. Consequently, Mr Kaluza was not entitled to a disability pension under the Veterans' Entitlements Act 1986.
Orders
Orders of the court
The Tribunal varies the decision under review and finds that Mr Stanislaw Kaluza suffers from anxiety disorder, alcohol abuse and hypertension, but not PTSD or alcohol dependence. The Tribunal finds that none of the conditions claimed or diagnosed are war-caused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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