Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 316
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2008/5584
VETERANS' APPEALS DIVISION ) Re RONALD GEOFFREY KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Roslyn Blakley, Member
Date13 May 2011
PlaceMelbourne
Decision 1. The decision of the Veterans’ Review Board under review in these proceeding with respect to lumbar spondylosis and alcohol dependence is affirmed.
2. The decision under review with respect to Post Traumatic Stress Disorder (PTSD) is set aside and in substitution we decide the applicant suffers PTSD and co-morbid Major Depressive Disorder, both conditions being war-caused.
..................[signed]......................
Senior Member
VETERANS’ AFFAIRS – operational service in Vietnam –– fall in trench while intoxicated ‑ lumbar spondylosis – recovery of tank with blood – bodies piled on side of road – gun pointed at applicant ‑ post traumatic stress disorder – major depressive disorder – diagnosis – whether war‑caused
Veterans’ Entitlements Act 1986 ss 6C, 120, 120A, 128
Border v Repatriation Commission (No 2) [2010] FCA 1430
Hunter v Repatriation Commission (2010) 114 ALD 89
Kaluza v Repatriation Commission (2010) FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Mines v Repatriation Commission (2004) 85 ALD 62
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
13 May 2011 Mr John Handley, Senior Member Dr Roslyn Blakley, Member 1. Mr Kelly (the applicant) is a 63 year old Vietnam Veteran who applied for review of a decision of the Veterans' Review Board (VRB) made on 25 September 2008. The VRB decided to affirm a decision made by the respondent on 25 October 2005 refusing the applicant’s claim for acceptance of post traumatic stress disorder (PTSD), alcohol dependence and lumbar spondylosis.
2. The applicant currently receives pension at 90 per cent of the general rate for the accepted conditions of eye strain, sprain of left ankle, migraine, bilateral hearing loss and tinnitus, solar keratosis, osteoarthrosis of the left ankle and foot, tinea and malignant melanoma of the skin.
3. The applicant has also made claims for pneumonia, hypertension, cirrhosis, osteoarthrosis of the right ankle and foot, gastro oesophageal reflux disease and hiatus hernia which have not been accepted by the Respondent.
4. On the first day of hearing Mr Moore of Counsel who appeared on behalf of the applicant, advised that the claim for alcohol dependence was abandoned. Accordingly, the applicant only pursued his claims for PTSD (or in the alternative, major depression and lumbar spondylosis).
5. Whilst the ultimate objective of the applicant is to obtain pension at the special rate, it was submitted that in the event that one or both claimed injuries were accepted, the application should be remitted to the respondent for assessment of pension.
6. Mr Rudge, who appeared on behalf of the…
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CaseChat Overview and Summary
The court was required to determine whether the applicant's lumbar spondylosis and alcohol dependence were war-caused, as well as whether he suffered from PTSD and Major Depressive Disorder, which were also claimed to be war-caused. The crux of the matter was to assess the nexus between the applicant's conditions and his service in Vietnam, specifically whether his experiences during the war had a significant contribution to his current state of health.
In reaching its decision, the court considered the evidence presented regarding the applicant's experiences in Vietnam, including falling in a trench while intoxicated, witnessing the recovery of a tank with blood, and seeing bodies piled on the side of the road. It also took into account the applicant being threatened with a gun. The court found that these experiences were traumatic and likely to have contributed to the development of PTSD and Major Depressive Disorder. However, the court upheld the previous decision regarding lumbar spondylosis and alcohol dependence, finding no sufficient evidence to conclude these conditions were war-caused.
The orders of the court were to affirm the decision of the Veterans’ Review Board concerning lumbar spondylosis and alcohol dependence, while setting aside the decision regarding PTSD. In its place, the court determined that the applicant did indeed suffer from PTSD and co-morbid Major Depressive Disorder, both of which were caused by his war service.
Orders
Orders of the court
1. The decision of the Veterans’ Review Board under review in these proceeding with respect to lumbar spondylosis and alcohol dependence is affirmed.
2. The decision under review with respect to Post Traumatic Stress Disorder (PTSD) is set aside and in substitution we decide the applicant suffers PTSD and co-morbid Major Depressive Disorder, both conditions being 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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