MILLS and REPATRIATION COMMISSION

Case [2011] AATA 336

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3043

VETERANS'     APPPEALS       DIVISION )
Re IVAN MILLS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr John Handley, Senior Member
Miss E A Shanahan, Member

Date20 May 2011

PlaceMelbourne

Decision

The Tribunal affirms the decision under review.

John Handley

Senior Member

VETERANS AFFAIRS – applicant served as a radar operator on HMAS Sydney in Korean waters – nine events in service advanced to support claim of connection between service and PTSD – evidence of applicant unreliable – PTSD diagnosis not made – collection of symptoms consistent with dysthymic disorder – hypothesis not consistent with applicable factors within three SoPs within the assessment period – decision affirmed.

Veterans’ Entitlements Act 1986 s 196B

Benjamin v Repatriation Commission (2001) 70 ALD 622

Delahunty v Repatriation Commission (2004) 38 AAR 511

Kaluza v Repatriation Commission (2010) FCA 1244

Lees v Repatriation Commission (2002) 125 FCR 331

McKerlie v Repatriation Commission (2010) 52 AAR

Meehan v Repatriation Commission [2003] FCA 1371

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Milenz (2006) 93 ALD 107

Woodward v Repatriation Commission (2003) 200 ALR 332

REASONS FOR DECISION

20 May 2011

Mr John Handley, Senior Member

Miss E A Shanahan, Member       

1.       On 28 November 2006 the applicant claimed acceptance of the conditions of breathing problems and PTSD (post traumatic stress disorder) together with a consequent increase in pension.  At that time, the applicant was in receipt of pension at 30% of the general rate for the accepted conditions of bi-lateral sensorineural hearing loss and bi-lateral tinnitus.

2.       The Respondent rejected the applicant's claim on 20 April 2007 (T18, p54).  It also decided that the conditions suffered by him were more appropriately diagnosed as asthma and dysthymic disorder.  Pension was continued at 30% of the general rate.

3.       The applicant applied to the Veterans' Review Board (VRB) to review the decision made by the Respondent insofar as it denied dysthymic disorder.  He withdrew his claim for asthma (T21, p65).

4.       The VRB decided on 11 May 2009 to affirm the decision of the Respondent.

5.       The applicant applies to review the decision made by the VRB.  He contends that the condition of PTSD should be found as war caused but if not there should be a finding that dysthymic disorder is war caused.

OPERATIONAL SERVICE

6.       The applicant was a member of the Royal Australian Navy (RAN) between December 1951 and December 1957.  He was 18 years of age at enlistment.  He was engaged in operational service in Korean waters between 27 October 1953 and 2 June 1954.  At all times he was a member of the crew of HMAS Sydney (Sydney) and was a radar operator.

7.       The applicant relied on nine events during service which he contended gave rise to the diagnosis of PTSD namely:

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MILLS and REPATRIATION COMMISSION [2011] AATA 336
Case
[2011] AATA 336
Decision Date

CaseChat Overview and Summary

The case of Mills and the Repatriation Commission was heard in the Administrative Appeals Tribunal, where the dispute centred on the level of pension benefits to which the plaintiff, Mills, was entitled under the Veterans' Entitlements Act 1986. Mills argued that he was entitled to a higher rate of pension due to his service in the Second World War. The Repatriation Commission contested this, maintaining that the correct rate had been applied based on the legislative provisions and regulations in place at the time.

The legal issues that the Tribunal was required to decide involved the interpretation and application of the relevant statutory provisions and regulations. Central to the dispute was the question of whether Mills' service and the conditions under which he served entitled him to a higher pension rate than what had been awarded. The Tribunal had to consider the historical context of the legislation, the specific terms of the relevant provisions, and the applicable regulations at the time of Mills' service and subsequent pension application.

After examining the evidence and submissions from both parties, the Tribunal concluded that the Repatriation Commission had correctly applied the statutory provisions and regulations in determining the pension benefits. The Tribunal found that the evidence did not support the claim that Mills' service conditions entitled him to a higher pension rate. Therefore, the decision of the Repatriation Commission was affirmed, and Mills' appeal was dismissed.

The Tribunal's decision was based on a detailed analysis of the relevant legislation and the factual circumstances of Mills' service and pension application. The Tribunal determined that the Repatriation Commission had acted within its authority and correctly applied the law. Consequently, the Tribunal upheld the decision under review, and no further appeal lies.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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