Kevin St Clair and Repatriation Commission

[2012] AATA 911

[2012] AATA 911

Division	VETERANS' APPEALS DIVISION
File Number	2010/2292
Re	Kevin St Clair
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Regina Perton, Member
Date	21 December 2012
Place	Melbourne

The Tribunal sets aside the decision under review concerning the applicant’s dysthymic disorder and substitutes a decision that the condition is war-caused.  The Tribunal affirms the decision under review concerning haemorrhoids.  The Tribunal remits the application for calculation of the applicable rate of pension.

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Regina Perton, Member

VETERANS’ AFFAIRS – veterans’ entitlements – depressive disorder - haemorrhoids – stressors – date of clinical onset – whether conditions war caused.

Veterans’ Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Kaluza v Repatriation Commission [2012] FCA 1244

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 32

Repatriation Commission v Hill [2002] FCAFC 192

Stoddart v Repatriation Commission (2003) 197 ALR 283

REASONS FOR DECISION

Regina Perton, Member   21 December 2012

1. Kevin St Clair, who is now 64 years old, served in the Australian Army (the army) from 28 January 1970 to 15 November 1971.  He served in Vietnam from 27 August 1970 to 12 August 1971.  This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2. Mr St Clair lodged claims in 1999 and 2007 to have a number of medical conditions assessed as being war-caused.   The Repatriation Commission (the Commission) has accepted some, but not all, of those conditions as war-caused.   Mr St Clair is currently receiving a disability pension at 50 per cent of the general rate. 

3. The outstanding claims under consideration in this review are for depressive disorder and haemorrhoids.  The claim for these conditions was lodged with the Commission on 9 May 2007 and refused on 1 November 2007.  A review officer affirmed the refusals on 29 November 2007 as did the Veterans’ Review Board (VRB) on 23 March 2010.  The application to this Tribunal was lodged on 8 June 2010.

   WHAT ARE MR ST CLAIR'S MEDICAL CONDITIONS?

4. The Commission accepted that Mr St Clair's medical conditions of sensorineural hearing loss of the left ear, gastro-oesophageal reflux disease, spondylolisthesis L5-S1 and lumbar spondylosis were war-caused.  The Commission has twice rejected Mr St Clair's claims for haemorrhoids.  It has also rejected claims for depressive disorder, bilateral presbyopia, breathing problems and ankle problems. 

5. The Tribunal is required to determine to its reasonable satisfaction whether Mr St Clair suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).

6. All of the health professionals who have assessed Mr St Clair in recent years have diagnosed him as suffering from a depressive or dysthymic disorder.  There are also past diagnoses of haemorrhoids.  The Commission concedes that Mr St Clair suffers from such medical conditions but does not agree that they are war-caused.   

7. Based on the medical evidence provided, the Tribunal finds that Mr St Clair…