Kelly and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1058

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2002/454

VETERANS’ APPEALS DIVISION		)
Re		DAVID KELLY

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Ms M J Carstairs, Member

Date12 October 2004

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes the decision that anxiety disorder is war-caused with effect from 29 October 2000.

...................(Sgd)..................

M J Carstairs
  Member          

REASONS FOR DECISION

12 October 2004 Ms MJ Carstairs, Member

1.      This is an application by David Kelly (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 9 April 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission dated 22 May 2001.

2.      At the hearing the applicant was represented by Mr R Clutterbuck of counsel instructed by Streeting Haney, Solicitors. The respondent was represented by its advocate Mr B Williams.

3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 as well as exhibits marked A1–A7 for the applicant and R1–R5 for the respondent.

BACKGROUND

4.      The applicant was born on 1 January 1945.  He was called up for National Service on 11 July 1967 and served with the 17^th Construction Workshop Unit of the Australian Army.  He served in Vietnam between 28 May 1968 and 28 May 1969 is operational service within the meaning of the Veterans’ Entitlements Act1986 (the Act). 

5.      After leaving the Army, the applicant worked as an insurance broker, including a period of six years in Papua New Guinea. He remains employed in the insurance industry.

6.      On 29 January 2001, the applicant claimed for several conditions as being related to his Army service. His claims for hearing loss, gastro-oesophageal reflux, solar skin damage, chronic bronchitis and emphysema were accepted. His claim for haemorrhoids and anxiety disorder were rejected. 

7.      In the course of the claim, the applicant’s psychiatric condition was diagnosed as post traumatic stress disorder (PTSD) on the basis of a further report of Dr J Brown, psychiatrist, who had first diagnosed the applicant as suffering generalised anxiety disorder.  The diagnosis of PTSD was accepted by the VRB. 

8.      At the hearing by this Tribunal, the applicant withdrew his claim for haemorrhoids, and also limited his claim to anxiety disorder, rather than PTSD.  The issue for the Tribunal, therefore, is whether the applicant’s psychiatric condition, however described, is related to his service.

EVIDENCE

9.      The applicant said that he was called up for military service in 1965 but had delayed his call up to complete his qualifications in accountancy.  When he joined up he was posted to the Base Ordinance Depot, responsible for the army supply system. In Vietnam he said he spent three months at Nui Dat and eight months at Vung Tau. His duties in Vietnam included ordering supplies, driving vehicles and obtaining supplies for vehicle repairs. 

10.     Army personnel in Vietnam, regardless of their posting,…