Kenfield and Repatriation Commission - [2006] AATA 180

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2006] AATA 180
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/1325
VETERANS' APPEALS DIVISION

Re: LESLIE STEPHEN KENFIELD
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       Regina Perton, Member
Date:              1 March 2006
Place:             Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton
Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ dysthymic disorder – whether war‑caused ‑ date of clinical onset ‑ severe psychosocial stressors – decision affirmed
Veterans' Entitlements Act 1986 ss 9, 120, 120A
Fogarty v Repatriation Commission (2003) 37 AAR 363
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668
ReWitten and Repatriation Commission (1998) 54 ALD 605
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cornelious [2002] FCA 750
White v Repatriation Commission [2004] FCA 633
REASONS FOR DECISION
1 March 2006  Regina Perton, Member
1.                Leslie Kenfield is 60 years old. He served in the Australian Army from 30 June 1965 to 30 June 1968. His service included almost a year in Vietnam, from 26 April 1966 to 18 April 1967, which qualifies as operational war service. The Repatriation Commission (the respondent) has accepted that Mr Kenfield has disabilities which are war-caused, namely cheiropompholyx, bilateral sensorineural hearing loss and bilateral tinnitus; for which Mr Kenfield receives a disability pension of 40 per cent of the general rate.
2.                On 31 July 2002, Mr Kenfield lodged a claim which included a condition of nervous problems due to his war service. This condition was classified by a delegate of the respondent as Stress and Depression. On 30 September 2002 the delegate rejected the claim that Stress and Depression was war-caused. On 26 August 2003, the Veterans’ Review Board (VRB) amended the diagnosis to Depressive Disorder and Anxiety Disorder and affirmed the decision of the delegate. Another possible diagnosis of Mr Kenfield’s condition canvassed before the Tribunal is Post Traumatic Stress Disorder (PTSD).
3.                The issues before the Tribunal are:
§Is Mr Kenfield suffering from Depressive Disorder or PTSD or another differently titled but related condition?
§When did the relevant condition first affect Mr Kenfield or was first diagnosed (the clinical onset)?
§Does Mr Kenfield meet the relevant Statement of Principles (SoP)?

EVIDENCE
Mr kenfield
4. In his claim form lodged and signed on 26 July 2002 (T5), Mr Kenfield stated that he was suffering from nervous problems. He stated that he was self‑employed but that he has to take time off work because of stress. He indicated that he …had to leave former employment because of stress.
5. In an unsigned and undated written statement (that bears a facsimile header of 16 August 2004), Mr Kenfield stated that he has difficulty expressing himself verbally. He stated that he had not mentioned matters raised in this statement previously either because he felt too upset to talk about them and/or that he had suppressed particularly memories. Mr Kenfield stated that in three earlier interviews with three different psychiatrists,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kenfield and Repatriation Commission

Details

AGLC: Kenfield and Repatriation Commission [2006] AATA 180
Case: [2006] AATA 180
Decision Date: 1 March 2006

CaseChat Overview and Summary

In the case of Kenfield v Repatriation Commission, the Administrative Appeals Tribunal (AAT) was tasked with determining whether Leslie Kenfield's dysthymic disorder was caused by his war service in Vietnam. The Tribunal concluded that Mr Kenfield's condition was not attributable to his military service. The primary issue before the Tribunal was whether Mr Kenfield's psychiatric condition, specifically dysthymic disorder, was connected to his service in Vietnam. The Tribunal examined various medical opinions and the evidence presented by Mr Kenfield to assess the clinical onset and severity of his condition.

The Tribunal found that Mr Kenfield's condition was dysthymic disorder, a chronic mood disturbance. However, it was not satisfied that the condition began within two years of his service in Vietnam, as required by the relevant Statement of Principles (SoP) concerning depressive disorder. The Tribunal also concluded that the stressors cited by Mr Kenfield did not meet the definition of severe psychosocial stressors under the SoP. Therefore, the Tribunal found that the hypothesis connecting Mr Kenfield's dysthymic disorder with his war service was not reasonable, and accordingly, his condition was not deemed to be war-caused. Consequently, the Tribunal affirmed the decision of the Repatriation Commission to reject Mr Kenfield's claim for war-caused disability.

Orders