Lees and Repatriation Commission

[2006] AATA 2

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 2

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/650

VETERANS’ APPEALS DIVISION		)
Re		ANTHONY LEES

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date4 January 2006

PlaceBrisbane

Decision The decision under review with respect to alcohol abuse or dependence is set aside. I am satisfied the applicant’s alcohol abuse or dependence condition is war-caused.

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SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – application for increase in rate of disability pension – applicant locked in a freezer compartment while on the HMAS Sydney – event claimed as a severe stressor – diagnosis of psychiatric condition in issue – applicant does not suffer PTSD – war-caused alcohol abuse or dependence accepted – onset within two years after the severe stressor – decision under review set aside and decision substituted.

Veterans’ Entitlements Act 1986 s 120

Lees and Repatriation Commission [2005] AATA 549

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144

Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1; [1993] HCA 51

REASONS FOR DECISION

4 January 2006 Senior Member B J McCabe

1.      Anthony Lees originally made a claim for compensation under the Veterans Entitlements Act 1986 (the VEA) in respect of post traumatic stress disorder (PTSD). His application was rejected and the matter came before the Tribunal for consideration. On 9 June 2005, I determined the applicant does not suffer from PTSD because I accepted the evidence of Dr Chalk that the applicant’s acknowledged drinking problem provided a better explanation for the symptoms he was exhibiting. My reasoning on that point is set out in Lees and Repatriation Commission [2005] AATA 549. I affirmed the reviewable decision with respect to PTSD but remitted the matter to the Commission under s 42D of the Administrative Appeals Tribunal Act 1975 so it might consider whether the applicant’s alcohol abuse or dependence condition could be connected to his service.

2.      The respondent concluded the applicant’s condition was not attributable to his service. The matter has now come back to the Tribunal.

the material before the tribunal

3.      The material tendered in respect of the earlier hearing remains relevant to these proceedings. At the resumed hearing, Dr Chalk was called to give further evidence.

the factual background

4.      A detailed discussion of the facts was included in my earlier reasons. A brief summary is all that is required here: the applicant was a sailor working aboard HMAS Sydney as it made one of its trips to Vietnam in 1972. On 23 or 24 November of that year, the Sydney was anchored in Vung Tau harbour. The applicant was part of a work party detailed to retrieve stores from the freezer compartment of the ship. There was a sudden commotion as a…