McKay and Repatriation Commission - [2005] AATA 254

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/102

VETERANS’ APPEALS DIVISION
)

Re RONALD McKAY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms M J Carstairs, Member
Date10 March 2005
Place Brisbane
DecisionThe Tribunal sets aside the decision under review and substitutes the decision that the applicant’s post traumatic stress disorder, alcohol dependence, and cardiomyopathy are war-caused with effect from 21 October 2001. The Tribunal remits the matter to the respondent for the assessment of the rate of pension payable.
.

................[Sgd]...................
M J Carstairs
Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – disability pension – war-caused injury during eligible service – whether applicant suffers from post traumatic stress disorder or other psychiatric condition – diagnosis of post traumatic stress disorder accepted – alcohol dependence and cardiomyopathy - decision under review set aside.
Veterans’ Entitlements Act 1986 ss 9, 120, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Re Martin and Repatriation Commission [2003] AATA 1128
Woodward v Repatriation Commission (2003) 75 ALD 420
Deledio v Repatriation Commission (1997) 47 ALD 261
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Hill [2002] FCAFC 192
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 74 ALD 366
Delahunty v Repatriation Commission [2004 FCA 309
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
WRITTEN REASONS FOR ORAL DECISION

29 March 2005 Ms M J Carstairs, Member

1.      This is an application by Ronald George McKay (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 11 November 2003, rejecting the applicant’s claim for pension. The applicant originally claimed for cardiomyopathy. However, in the course of the decision-making in regard to the claim, the Repatriation Commission (the respondent) dealt with four diagnosed conditions: secondary cardiomyopathy, ischaemic heart disease, post traumatic stress disorder (PTSD) and alcohol dependence or abuse. The claim for ischaemic heart disease was granted. The applicant maintains that he should be granted pension in respect of the remaining conditions.
2.      At the hearing on 9 March 2005 the applicant was represented by Mr Selfridge of counsel instructed by Sciacca’s Solicitors. The respondent was represented by Mr M Smith. The Tribunal delivered oral reasons for decision on 10 March 2005. The applicant has requested written reasons and these reasons answer that request.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act (1975) as well as exhibits marked A1-A2 for the applicant and R1-R4 for the respondent.
BACKGROUND
4.      The applicant is aged seventy-five years. He was educated to Grade 7 and left school at the age of thirteen. He served with the Royal Australian Navy (the navy) for ten years after enlisting in 1947 at the age of seventeen. It is not disputed by the respondent that the applicant has a period of eligible war service between 31 August 1951…

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 McKay and Repatriation Commission

Details

AGLC: McKay and Repatriation Commission [2005] AATA 254
Case: [2005] AATA 254
Decision Date: 10 March 2005

CaseChat Overview and Summary

In the case of McKay v Repatriation Commission, the applicant, Ronald McKay, sought review of a decision by the Veterans' Review Board rejecting his claim for pension. The applicant, who served in the Royal Australian Navy during the Korean War, originally claimed for cardiomyopathy but the Repatriation Commission dealt with four diagnosed conditions: secondary cardiomyopathy, ischaemic heart disease, post traumatic stress disorder (PTSD), and alcohol dependence or abuse. The Commission granted the claim for ischaemic heart disease but rejected the other claims. The applicant maintained that he should be granted pension in respect of the remaining conditions.

The issues before the Tribunal were whether the applicant suffered from PTSD and whether the conditions were related to his period of eligible war service. The Tribunal considered the applicant's evidence, expert medical reports, and historical records of the events he witnessed during his service in Korea. The Tribunal found that the applicant suffered from PTSD and that the condition was related to his war service, as he experienced a severe stressor during his service that met the criteria for PTSD in the applicable Statement of Principles.

The Tribunal set aside the decision under review and substituted the decision that the applicant's PTSD, alcohol dependence, and cardiomyopathy are war-caused with effect from 21 October 2001. The Tribunal remitted the matter to the respondent for the assessment of the rate of pension payable.

Orders