McDonell and Repatriation Commission - [2008] AATA 613

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 613
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/131 &
N2006/894

VETERANS' APPEALS DIVISION )

Re TINO McDONELL

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr John Campbell, Member
Date15 July 2008
PlaceSydney

Decision
We set aside the reviewable decision, in part, finding the applicant does suffer war-caused xeroderma. We affirm the remainder of the decision that the applicant does suffer war-caused depressive disorder but not post traumatic stress disorder, alcohol dependence, irritable bowel syndrome and generalised anxiety disorder. We also remit the matter for assessment, if such an assessment has not already been done, with date of effect being 13 April 2004.

...................[Sgd]..................
Ms Robin Hunt
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act – issue of diagnosis of current psychiatric disorders – issue of relationship of such disorders to service – decision under review affirmed in relation to psychiatric disorders – decision under review varied in relation to xeroderma, which is a war-caused disease – decision in relation to irritable bowel syndrome affirmed.
Veterans’ Entitlements Act 1986 ss 9, 14, 120, 120A
Statement of Principles concerning alcohol dependence and alcohol abuse No. 76 of 1998 (revoked)
Statement of Principles concerning alcohol dependence and alcohol abuse No. 17 of 2008
Statement of Principles concerning anxiety disorder No. 1 of 2000 (revoked)
Statement of Principles concerning anxiety disorder No. 101 of 2007
Statement of Principles concerning depressive disorder No. 58 of 1998
Statement of Principles concerning depressive disorder No. 27 of 2008
Statement of Principles concerning irritable bowel syndrome No. 103 of 1996
Statement of Principles concerning irritable bowel syndrome No. 104 of 1996
Lees v Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission (2004) 39 AAR 67
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION

15 July 2008 Ms Robin Hunt, Senior Member
Dr John Campbell, Member

summary

1.      Mr Tino McDonell is a veteran, aged 58, who served in the Royal Australian Navy between 6 May 1967 and 5 May 1976. Mr McDonell had two periods of operational service, namely 14 May 1969 until 25 May 1969 and 1 November 1972 until 30 November 1972. Mr McDonell had a period of defence service from 7 December 1972 until 5 May 1976.
2.      Mr McDonell lodged an informal claim for a disability pension on 13 July 2004 in which he claimed poor hearing, irritable bowel, chest problems, asthma, stress and nerves, diabetes, dry skin, and solar skin damage, together with poor eyesight. This was followed up by a formal claim lodged on 13 September 2004.
3.      In a decision dated 10 June 2005, the Repatriation Commission accepted Mr McDonell’s claim for solar keratosis of both legs, bilateral tinnitus, sensorineural hearing loss of the left ear and pleural plaque and granted a disability pension at 10% of the general rate with the date of effect being 13 April 2004.
4.      The Repatriation Commission rejected Mr McDonell’s claim in…

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 McDonell and Repatriation Commission

Details

AGLC: McDonell and Repatriation Commission [2008] AATA 613
Case: [2008] AATA 613
Decision Date: 15 July 2008

CaseChat Overview and Summary

The case of McDonell and Repatriation Commission involves a veteran, Mr McDonell, who sought review of decisions regarding his eligibility for veterans' benefits under the Veterans’ Entitlements Act 1986. Mr McDonell argued that he suffered from multiple conditions, including depressive disorder, post-traumatic stress disorder, alcohol dependence, irritable bowel syndrome, and generalised anxiety disorder, all of which he claimed were caused by his military service. The Repatriation Commission had previously ruled against his claims, except for a diagnosis of war-caused depressive disorder. The Federal Court was tasked with reviewing these decisions.

The primary legal issues before the court were whether Mr McDonell's other conditions were indeed war-caused and therefore entitled to benefits under the Act. The court had to consider the statutory provisions and relevant Statements of Principles concerning the specific conditions, as well as previous judicial interpretations of the Act. The court also needed to determine whether the Commission's decision to affirm the diagnosis of depressive disorder was correct and whether the Commission's findings regarding xeroderma and irritable bowel syndrome were adequately supported by evidence.

The court reviewed the evidence and applicable legal standards, ultimately determining that while Mr McDonell did not suffer from post-traumatic stress disorder, alcohol dependence, irritable bowel syndrome, and generalised anxiety disorder caused by his service, he did suffer from war-caused xeroderma. The court found that the evidence did not support the existence of these other conditions, and thus upheld the Commission’s decision regarding these aspects. However, the court identified that xeroderma, a skin condition, had been overlooked by the Commission as a war-caused disease and thus set aside the decision in part regarding this condition. The court also affirmed the Commission's decision concerning the irritable bowel syndrome.

The Federal Court set aside the reviewable decision in part, finding that the applicant does indeed suffer war-caused xeroderma. The court affirmed the remainder of the decision, maintaining that the applicant does suffer from war-caused depressive disorder but not from post-traumatic stress disorder, alcohol dependence, irritable bowel syndrome, or generalised anxiety disorder. The court also remitted the matter for reassessment of xeroderma, effective from 13 April 2004, should such an assessment not have already occurred. This decision ensures that Mr McDonell's eligibility for benefits related to his recognised war-caused conditions is correctly assessed and that any oversight in identifying his xeroderma is rectified.

Orders

Orders of the court

We set aside the reviewable decision, in part, finding the applicant does suffer war-caused xeroderma. We affirm the remainder of the decision that the applicant does suffer war-caused depressive disorder but not post traumatic stress disorder, alcohol dependence, irritable bowel syndrome and generalised anxiety disorder. We also remit the matter for assessment, if such an assessment has not already been done, with date of effect being 13 April 2004.

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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15 July 2008	Ms Robin Hunt, Senior Member Dr John Campbell, Member
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