Lynn and Repatriation Commission - [2011] AATA 903

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 903
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4976

VETERANS' APPEALS DIVISION )

Re ROBERT JAMES WILLIAM LYNN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Lt Col R Ormston (Ret'd) (Member)
Date16 December 2011
PlaceAdelaide

Decision
The Tribunal:

(a) sets aside the decision under review and in substitution for that decision decides that Mr Lynn’s conditions of generalised anxiety disorder and alcohol dependence are war-caused with a date of effect of 12 March 2009; and

(b) remits the matter to the respondent for assessment of the disability pension payable to Mr Lynn as a consequence of this decision.

..............................................
K BEAN
(Senior Member)

CATCHWORDS
VETERANS' AFFAIRS – Veterans' entitlements – Generalised anxiety disorder and alcohol dependence – Operational service in first Gulf War – Deledio steps – Generalised anxiety disorder war-caused – Alcohol dependence also war-caused – Decision under review set aside.
Veterans’ Entitlements Act 1986 ss 6, 9, 13(1), 120, 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Milenz (2006) 93 ALD 107
Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 1 of 2009
REASONS FOR DECISION

16 December 2011 Senior Member K Bean
Lt Col R Ormston (Ret'd) (Member)

introduction
1.The applicant, Mr Lynn, served in the Royal Australian Navy for 20 years from July 1971 to July 1991. Just prior to the ending of his service, he was deployed on operational service in the first Gulf War, between 20 November 1990 and 19 April 1991. During his operational service in the Gulf, he was Chief Petty Officer, Coxswain aboard HMAS Brisbane.
2.Following his service in the Gulf, Mr Lynn suffered a number of very significant psychiatric symptoms and in January 2010, he was diagnosed as suffering from a generalised anxiety disorder, together with alcohol dependence.
3.Prior to that formal diagnosis, in June 2009, Mr Lynn lodged a claim for a disability pension on the basis of his psychiatric symptoms. However, whilst the Repatriation Commission (the Commission) accepted that he was suffering from an anxiety disorder, the Commission decided that his anxiety disorder was not related to his service[1]. On 23 September 2010, the Veterans’ Review Board (the VRB) affirmed that decision, also concluding that his anxiety disorder was not war-caused.
[1] T4/24-29
4.On 16 November 2010, Mr Lynn applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB, giving rise to these proceedings.

the issues
5.It follows that in general terms the issues before us are as follows:
(a)whether Mr Lynn suffers from any psychiatric conditions;
(b)if so, the diagnosis for those conditions; and
(c)whether any conditions from which Mr Lynn is suffering are war-caused.

legal framework
6. Section 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act) provides, in effect, that where a veteran has become incapacitated…

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 Lynn and Repatriation Commission

Details

AGLC: Lynn and Repatriation Commission [2011] AATA 903
Case: [2011] AATA 903
Decision Date: 16 December 2011

CaseChat Overview and Summary

The case of Lynn and Repatriation Commission involved Mr Lynn, who sought to have his generalised anxiety disorder and alcohol dependence recognised as war-caused due to his operational service in the first Gulf War. The dispute was brought before the Administrative Appeals Tribunal of Australia, which had to determine whether these conditions were indeed caused by Mr Lynn's service. The Repatriation Commission, acting on behalf of the Commonwealth, was the respondent in this matter.

The legal issues that the Tribunal needed to decide included whether Mr Lynn's conditions were connected to his service in a warzone and if these conditions were caused by that service. This involved an analysis of the evidence provided by Mr Lynn and expert testimonies, along with the application of the statutory framework concerning veterans' entitlements. The Tribunal had to consider the Deledio steps, which are used to determine whether a condition is war-caused, and whether the conditions in question met the criteria set out in the relevant legislation.

The Tribunal found that both Mr Lynn's generalised anxiety disorder and alcohol dependence were war-caused, dating back to 12 March 2009. This conclusion was based on the evidence presented that linked these conditions to the stresses experienced during his service in the first Gulf War. The Tribunal set aside the previous decision that had not recognised these conditions as war-caused and ordered that the matter be remitted to the Repatriation Commission for reassessment of the disability pension payable to Mr Lynn.

The final orders of the Tribunal were to set aside the decision under review and to decide that Mr Lynn’s conditions were war-caused, effective from 12 March 2009. The matter was then remitted to the Repatriation Commission for reassessment of the disability pension to reflect this decision.

Orders

Orders of the court

The Tribunal:

(a) sets aside the decision under review and in substitution for that decision decides that Mr Lynn’s conditions of generalised anxiety disorder and alcohol dependence are war-caused with a date of effect of 12 March 2009; and

(b) remits the matter to the respondent for assessment of the disability pension payable to Mr Lynn as a consequence of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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VETERANS' APPEALS DIVISION		)
Re		ROBERT JAMES WILLIAM LYNN