Linton and Repatriation Commission - [2004] AATA 924

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 924
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/691
VETERANS' APPEALS DIVISION

Re: GRAHAM ALEXANDER LINTON
Applicant

And: REPATRIATION COMMISSION
Respondent

DECISION
Tribunal:       G.D. Friedman, Member
Date:             3 September 2004
Place:            Melbourne
Decision:      The Tribunal affirms the decision under review.
(sgd) G.D. Friedman
Member

VETERANS' AFFAIRS – veterans' entitlements - sarcoidosis - possible use of corticosteroids - whether appropriate clinical management - whether war‑caused
Veterans’ Entitlements Act 1986 s9, 120, 120A, 120(4), 120B
Lees v Repatriation Commission (2002) 74 ALD 68
REASONS FOR DECISION
3 September 2004  G.D. Friedman, Member
1.      This is an application by Graham Alexander Linton (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 30 April 2002. The VRB affirmed a decision of the Repatriation Commission (the respondent) dated 13 July 2000 to refuse the applicant's claim for pension for sarcoidosis and affirmed a decision dated 9 April 2001 to increase the rate of pension to 40 per cent of the general rate.
2.      At the hearing of this matter on 25 July 2003 and 17 November 2003 before Ms M.J. Carstairs, Member, and on 27 February 2004, 5 July 2004 and 6 August 2004 Mr D. De Marchi, solicitor, represented the applicant. Mr G. Purcell of counsel represented the respondent on 25 July 2003 and 17 November 2003, Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent on 27 February 2004 and Ms J. McCulloch, an advocate with the Department of Veterans' Affairs, represented the respondent on 5 July 2004 and 6 August 2004.
3.      The Tribunal received into evidence the documents filed under s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T18), as well as 8 exhibits (Exhibits A1‑A8) lodged by the applicant and 10 exhibits (Exhibits R1‑R10) lodged by the respondent.
BACKGROUND
4.      The applicant was born on 2 August 1950. He enlisted in the Royal Australian Navy (the navy) on 10 July 1966 and served until 31 July 1979. His service on HMAS Sydney in Vietnam from 8 May 1969 to 30 May 1969; 17 November 1969 to 5 December 1969; and 16 February 1970 to 5 March 1970 constituted operational service as defined in the Veterans' Entitlements Act 1986 (the Act). He also had defence service, as defined in the Act, from 7 December 1972 to 31 July 1979.
5.      The applicant first claimed for sarcoidosis, a lung condition, in May 1978 and on 26 June 1979. He made a second claim for bronchial asthma and sarcoidosis on 11 April 1990, which was rejected. On 1 September 1995 he again claimed for asthma and sarcoidosis and this claim was rejected by the respondent on 29 November 1995. On 14 October 1997 the applicant claimed for breathing problems, asthma and sarcoidosis, and this claim was rejected on 4 December 1997. The VRB reviewed the respondent’s decision of 29 November 1995 and on 10 August 1998 decided to consent to the withdrawal of the claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Linton and Repatriation Commission

Details

AGLC: Linton and Repatriation Commission [2004] AATA 924
Case: [2004] AATA 924
Decision Date: 3 September 2004

CaseChat Overview and Summary

In the case of Linton v Repatriation Commission, the applicant, Graham Alexander Linton, sought review of a decision by the Veterans' Review Board which affirmed a decision of the Repatriation Commission to refuse his claim for pension for sarcoidosis. The Tribunal, G.D. Friedman, examined the evidence and submissions to determine if the applicant's sarcoidosis was connected to his eligible war service. The Tribunal considered the timing of the clinical onset of sarcoidosis and whether the applicant had an inability to obtain appropriate clinical management for the condition. After reviewing the medical evidence and authorities available during the 1970s, the Tribunal concluded that the applicant's sarcoidosis was not connected to his eligible war service and affirmed the decision under review. The Tribunal found that the applicant's management of sarcoidosis was consistent with the views expressed in the available authorities, and that the decision not to treat the applicant with corticosteroids during the 1970s was appropriate. The Tribunal also found that the applicant did not have an inability to obtain appropriate clinical management for sarcoidosis, and therefore did not satisfy the risk factor in the relevant Statement of Principle.

Orders