Lees and Repatriation Commission

[2005] AATA 905

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 905

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/466

VETERANS' AFFAIRS DIVISION		)
Re		ALLAN LEES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis and Dr E T Eriksen, Member

Date16 September 2005

PlaceAdelaide

Decision The Tribunal affirms the decisions under review.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS' AFFAIRS - veteran's entitlements - generalised anxiety disorder - alcohol abuse or alcohol dependence - gastro-oesophageal reflux disease - diagnosis accepted at first hearing before Tribunal - Tribunal decided that conditions not war-caused - appeal to Federal Court allowed  - matter remitted to Tribunal differently constituted - fresh evidence received by respondent that applicant not suffering from generalised anxiety disorder or alcohol abuse - conflict of medical evidence - finding that applicant not suffering from asserted conditions during assessment period - decisions under review affirmed.

Veterans’ Entitlements Act 1986, s 19

Re Lees and Repatriation Commission [2002] AATA 98

Lees v Repatriation Commission (2002) 125 FCR 331

Re Lees and Repatriation Commission (2004) 82 ALD 150

Re Jebb and Repatriation Commission [2005] AATA 470

Benjamin v Repatriation Commission (2001) 70 ALD 622

Gerzina v Repatriation Commission [2004] FCAFC 96

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

16 September 2005   Deputy President D G Jarvis
  and Dr E T Eriksen, Member

1.      The applicant is a veteran of the Vietnam War.  He had nineteen days’ operational service on HMAS Sydney between 15 November and 3 December 1969, and eighteen days’ operational service between 16 February 1970 and 5 March 1970 on the Sydney.  He also served on HMAS Duchess, and had six days’ operational service on that vessel between 3 and 8 April 1971 and sixteen days’ operational service between 17 May and 1 June 1971.  In each case, the vessels on which he served had sailed to Vietnam.

2.      On 15 April 1999 the Repatriation Commission refused Mr Lees’ claim for pension in respect of, inter alia, generalised anxiety disorder.  In a second decision made on 13 December 1999, the Commission refused Mr Lees’ claim for pension in respect of gastro-oesophageal reflux disease and alcohol dependence or alcohol abuse.  The Commission’s decisions were affirmed by the Veterans’ Review Board (“VRB”).

3.      Mr Lees applied to this Tribunal for review of the Commission’s refusal of his claims.  The hearing proceeded on the basis that the diagnosis of the asserted conditions was not in issue.  The Tribunal found that there was no material pointing to the clinical onset of Mr Lees’ generalised anxiety disorder, alcohol abuse or alcohol dependence within two years of his experiencing certain asserted severe stressors and, accordingly, the hypothesis advanced by him was not consistent with the relevant Statements of Principles (“SoPs”), and was not therefore a reasonable hypothesis, and so his conditions were not war-caused.  The Tribunal further decided that because there was no relevant connection between Mr Lees’ war service and his alcohol abuse,…