Langlands and Repatriation Commission

[2011] AATA 926

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 926

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/5442

VETERANS' APPEALS DIVISION		)
Re		IAN ANGUS LANGLANDS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date22 December 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

..................[sgd]..........................

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements - anxiety - alcohol dependence or abuse - stressful events - date of clinical onset - whether conditions diagnosed and war-caused - whether eligible for special rate of pension

Veterans' Entitlements Act 1986 ss 9, 24(1), 120(1)

Kaluza v Repatriation Commission [2010] FCA 1244

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 December 2011 G. D. Friedman, Senior Member

1.      Ian Langlands completed National Service in the Australian Army from 8 July 1970 to 7 January 1972.  His service included a period in Vietnam from 31 March 1971 to 8 December 1971, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2.      On 23 March 2010 he lodged a claim for incapacity from nervous disorder and alcohol arising from stressful events during his service.  The respondent refused his claim for anxiety disorder and alcohol dependence or abuse, and assessed his disability pension at 50 per cent of the general rate on the basis of other conditions that had been accepted as war-caused.  The Veterans’ Review Board (VRB) affirmed the decision and Mr Langlands seeks review of the decision.  He also seeks disability pension at the special rate.   

LEGAL FRAMEWORK

3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.        In the circumstances of this case, where Mr Langlands has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).…