[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
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).
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.
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?
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.
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).
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.
Based on the medical evidence provided, the Tribunal finds that Mr St Clair…
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CaseChat Overview and Summary
The Board addressed the issue of causation by examining the medical evidence provided by the applicant. Regarding the dysthymic disorder, the Board found that the evidence supported a war-caused diagnosis, and thus set aside the original decision. The Board determined that the condition was indeed caused by the applicant's service, leading to the substitution of the original decision with one recognising the war-caused nature of the disorder. For the haemorrhoids, the Board found that the evidence did not sufficiently establish a war-related cause, affirming the original decision that the condition was not war-caused. Consequently, the Board remitted the case for the calculation of the applicable rate of pension, considering the newly established war-caused status of the dysthymic disorder.
The outcome of the review was that the original decision concerning the haemorrhoids was upheld, while the decision regarding the dysthymic disorder was altered to recognise its war-caused nature. The Board also directed that the pension rate be recalculated in light of this change.
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Evidence
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