MICHAEL TRACEY RODSTED and REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 658

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200400235

VETERANS' APPEALS DIVISION		)
Re		MICHAEL TRACEY RODSTED

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis
Mr S Ellis AM (Member)

Date1 September 2009

PlaceAdelaide

Decision

The tribunal varies the decision under review by deciding that:

(a)      the applicant is not suffering from post-traumatic stress disorder, but the tribunal otherwise affirms the decision under review in relation to that condition; and

(b)      the applicant is not suffering from a depressive disorder, and his condition of alcohol dependence was not war-caused, and as a result, the applicant is not entitled to disability pension or medical treatment in respect of those conditions.

D G Jarvis

(Signed)
  (Deputy President)

6.      Because the conditions of alcohol abuse/dependence and depression were not diagnosed until after the first hearing in this tribunal, the claim for pension insofar as it relates to those conditions has not been considered by the Commission or by the VRB.  However, by its amended statement of facts, issues and contentions dated 5 December 2006, the Commission accepted that the tribunal was obliged to consider the case raised by the evidence before it even if the further conditions had not been specifically claimed by the applicant.  We are satisfied that this is the position, and that we have jurisdiction to determine the applicant’s claim insofar as it is based on the two further conditions in question: see Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47] - [51].

7.      Our conclusions as to the above issues and our reasons for decision may be summarised as follows.

(a)The issue of diagnosis must be decided as a preliminary issue, on the balance of probabilities.

(b)Mr Rodsted has not suffered from PTSD or a depressive disorder during the assessment period referred to in s 19(9) of the VE Act, being the period between the date of lodging his application and the date of this decision, but was suffering from alcohol dependence between the date of lodgement until about November 2005, when this condition went into remission.

(c)In determining whether the condition of alcohol dependence was war-caused, we find that there is material before us that:

·is consistent with a factor in the relevant Statement of Principles (SoP) for alcohol dependence, because there is evidence before us that Mr Rodsted was suffering from clinically significant psychiatric conditions, namely PTSD and alcohol abuse, prior to the clinical onset of alcohol dependence;

·a factor in the relevant SoP for PTSD is met (thereby connecting his PTSD with his war-service), because there is evidence before us that Mr Rodsted experienced a traumatic event (namely an asserted specific event involving the explosion of a scare charge) in the course of his operational service, and prior to the clinical onset of PTSD; and

·further, the relevant factor in the relevant SoP for alcohol abuse is also met (thereby connecting his alcohol abuse with his war service),…