Leis and Repatriation Commission

[2004] AATA 1211

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1211

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/730

VETERANS APPEALS DIVISION		)
Re		GRAHAM MERVYN LEIS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr KS Levy, Member

Date18 November 2004  

PlaceBrisbane

Decision

The Tribunal decides that that:

1         the decision of the Veterans’ Review Board dated 8 July 2002 in relation to cardiomyopathy is set aside and it is determined that this a war-caused disease;

         2         the decision that the veteran’s cardiomyopathy is war caused, is to be remitted to the respondent for assessment of pension;

3        the Tribunal affirms the decision under review as far as it relates to (a) alcohol dependence and (b) depressive disorder; and

4     the Tribunal determined that a claim for Post Traumatic Stress Disorder was not war caused.

…..[Sgd]….

K S Levy

Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – disability pension – claimed war-caused cardiomyopathy, depressive disorder, alcohol dependence, and post traumatic stress disorder – whether hypothesis exists – whether raised facts are consistent with Statement of Principles – whether respondent can disprove necessary raised fact beyond reasonable doubt - war-caused cardiomyopathy – alcohol dependence and depressive disorder not war-caused – no severe stressor – unreasonable hypothesis regarding post traumatic stress disorder – post traumatic stress disorder not war caused

Veterans Entitlements Act 1986 s 9, 5, 13, 120

Repatriation Commission and Smith 15 FCR 327
Benjamin v Repatriation Commission 70 ALD 622
Fogarty and Repatriation Commission [2003] FCAFC 136
Repatriation Commission v Hancock [2003] FCA 711

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gosewinckel 59 ALD 690

Byrnes v Repatriation Commission (1993) 177 CLR 564

Re Robertson and Repatriation Commission 1998 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission 2004 FCA 663
Re Hillier and Repatriation Commission 2004 AATA 897

REASONS FOR DECISION

18 November 2004   Dr KS Levy, Member

Introduction

1.The applicant, Graham Mervyn Leis, has appealed under section 29(1) of the Administrative Appeals Tribunal Act 1975 (Commonwealth) against a decision of the Veterans’ Review Board dated 8 July 2002.  The applicant currently has accepted disabilities and a disability pension of 60% in relation to the following:

(a)Bilateral sensorineural hearing loss with tinnitus;

(b)Ischaemic heart disease; and

(c)Nicotine abuse.

2.There are a number of conditions previously claimed which have been unsuccessful and are not the subject of appeal in the current matter.  These conditions are lumbar spondylosis, shortness of breath and alopecia.  The Veterans’ Review Board decided on 4 January 2000 that it would reject claims in relation to alcohol abuse, depression, shortness of breath and ischaemic heart disease.  The applicant appealed these decisions and the Veterans’ Review Board reconsidered this on 13 September 2001.  The decision of the Board on that date was to adjourn the hearing in relation to alcohol abuse and depression but set aside the decision in relation to ischaemic heart disease and determined that it…