Mines and Repatriation Commission - [2003] AATA 658

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 658
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/192
VETERANS' APPEALS DIVISION

Re: JOHN WILLIAM MINES
Applicant

And: REPATRIATION COMMISION
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             14 July 2003
Place:            Melbourne
Decision:The Tribunal affirms the decision under review.

(sgd) E.A. Shanahan
Member

VETERANS' AFFAIRS – operational service – post traumatic stress disorder – alcohol abuse – conflicting evidence
Veterans' Entitlements Act 1986 ss.120(1), (3), 120A
Statement of Principles
Instrument Nº 3 of 1999 as amended by Instrument Nº 54 of 1999
          concerning post traumatic stress disorder
      Instrument Nº 1 of 2000 concerning generalised anxiety disorder
      Instrument Nº 76 of 1998 concerning psychoactive substance abuse or dependence
Instrument Nº 52 of 2002 and/or Nº 62 of 1999 concerning gastro‑oesophageal reflux
          disease
Instrument Nº 39 of 1997 concerning sleep apnoea
Instrument Nº 31 of 2001 and/or Nº 64 of 1998 concerning hypertension
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Cooke (1998) 90 FCR 307
REASONS FOR DECISION
9 July 2003  Miss E.A. Shanahan, Member
1.      This is an application arising from a decision of the Veterans’ Review Board (VRB) dated 13 January 1999 and a second decision dated 30 April 2001, which found that the applicant's hypertension, atrial fibrillation, sleep apnoea, gastrooesophageal reflux disease, bilateral myopia, nervous condition and substance abuse were not war‑caused in accordance with the Veterans' Entitlements Act 1986 (the Act). The VRB had affirmed the previous decisions of the Repatriation Commission. The applicant is in receipt of a 20 per cent of general rate pension for his accepted disabilities of bilateral tinnitus and bilateral sensorineural hearing loss. The applicant did not pursue review of the decisions of the VRB relating to his claim for atrial fibrillation and bilateral myopia.
2. The applicant was represented by Mr D. De Marchi, solicitor, and the respondent by Mr G. Purcell, of counsel, instructed by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. The hearing was conducted over three days, 14 November 2002, 16 December 2002 and 30 January 2003. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act1975 (the T documents). The parties tendered the following documents:
·   Applicant’s statement dated 6 September 2002  Exhibit A1
·   Report by Dr E. Cole, psychiatrist, dated 11 June 2002               Exhibit A2
·   Report by Mr R. Marshall, general surgeon, dated 6 June 2002 Exhibit A3
·   Echocardiogram report by Dr M. Krawczyszyn,
consultant cardiologist, dated 8 February 2002  Exhibit A4
·   Clinical notes of Dr R. Searle, numbered 1‑23
received 3 April 2002  Exhibit R1

·   Transcript of VRB hearing dated 5 February 2002  Exhibit R2
·   WriteWay Research Report dated 30 June 2002  Exhibit R3
·   WriteWay Research Report dated 9 August 2002  Exhibit R4
·   WriteWay Research Report dated 12 August 2002  Exhibit R5
·   WriteWay Research Report dated 28…

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.

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Details

AGLC: Mines and Repatriation Commission [2003] AATA 658
Case: [2003] AATA 658
Decision Date: 14 July 2003

CaseChat Overview and Summary

In this case, the applicant, John William Mines, sought a review of the Veterans' Review Board's (VRB) decision, which found that certain disabilities were not war-caused in accordance with the Veterans' Entitlements Act 1986. The applicant claimed that his operational service in Vietnam had led to a psychiatric condition and alcohol abuse, which subsequently caused hypertension, sleep apnoea, gastrooesophageal reflux disease, and substance abuse. The Tribunal was required to determine whether the applicant's claimed disabilities were connected to his war service, based on the relevant Statements of Principles (SoPs) and the evidence presented.

The Tribunal found that the applicant's hypothesis that his Vietnam service and the stressors he suffered therein led to a psychiatric disorder and alcohol abuse was reasonable. However, upon examining the evidence, the Tribunal concluded that the applicant did not meet the requirements of the relevant SoPs. The Tribunal found that the applicant's claimed stressors, such as the Saigon firefight, did not occur as alleged, and the severity of the claimed stressors was in doubt. Additionally, the Tribunal found that the applicant did not meet the diagnostic criteria for alcohol abuse, and his claimed disabilities were more likely a result of his cardiac condition, which developed after his service in Vietnam.

Based on the reasoning above, the Tribunal affirmed the decision under review, finding that the applicant's claimed disabilities were not war-caused in accordance with the Veterans' Entitlements Act 1986.

Orders