Moseley and Repatriation Commission

Case [2007] AATA 1898

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1898

ADMINISTRATIVE APPEALS TRIBUNAL      )

) No S 200600206

VETERANS' APPEALS DIVISION )
Re PAUL MAYNARD MOSELEY

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Dr E T Eriksen (Member)

Date29 October 2007

PlaceAdelaide

Decision

The Tribunal varies the diagnosis of post traumatic stress disorder (“PTSD”) to one of generalised anxiety disorder.  The Tribunal sets aside the decision under review in relation to PTSD (as varied); alcohol dependence; alcohol hepatitis and gynaecomastis and in respect of those conditions, substitutes new decisions that the applicant suffers from generalised anxiety disorder; alcohol dependence; alcohol hepatitis and gynaecomastis and that these conditions are war-caused with effect from 28 February 2005.

In all other respects, the entitlement decision is affirmed.  The Tribunal remits the issue of assessment following the acceptance of the above-mentioned conditions to the Repatriation Commission.  The Tribunal adjourns consideration of original assessment decision sine die.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that PTSD, alcohol dependence, alcohol hepatitis and gynaecomastis are war-caused – consideration of statement of principles – assertion of stressors in the form of mortar explosions – entitlement decision varied and set aside

Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196

Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383

Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 76 of 1998

REASONS FOR DECISION

29 October 2007   Mr J Short (Member)
  Dr E T Eriksen (Member)           

1.      Paul Moseley served in the Australian Army from 26 August 1969 until 25 August 1975.  His operational service in Vietnam, which was also eligible war service, was from 4 September 1971 until 24 February 1972.  Mr Moseley’s eligible defence service was from 7 December 1972 until 25 August 1975.

2.      On 30 May 2005 Mr Moseley lodged a claim for medical treatment and pension for incapacity from post traumatic stress disorder (“PTSD”) with alcohol abuse, anxiety, panic disorder, hearing loss and tinnitus, chronic skin rash and lumps on skin and liver complaint.  These conditions were later diagnosed as PTSD, alcohol dependence, bilateral sensorineural hearing loss, seborrhoeic dermatitis, alcohol hepatitis and gynaecomastis.  On 4 January 2006, the respondent (the Commission) refused the claim for hearing loss on the grounds that there was no incapacity found.  The same…

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AGLC
Moseley and Repatriation Commission [2007] AATA 1898
Case
[2007] AATA 1898
Decision Date

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal was a dispute between the applicant and the Repatriation Commission regarding the applicant's claim for veterans' entitlements. The applicant, Moseley, sought to have his PTSD, alcohol dependence, alcohol hepatitis, and gynaecomastia recognised as war-caused. The Repatriation Commission had previously denied the claim, prompting Moseley to appeal to the Tribunal. The Tribunal was required to consider whether Moseley's conditions were war-caused and, if so, whether they were appropriately compensated under the Veterans' Entitlements Act 1986.

The primary legal issues the Tribunal needed to address were whether Moseley's conditions met the criteria for war-causation as outlined in the relevant legislative and regulatory instruments, including the Statement of Principles. The Tribunal had to evaluate the evidence presented by Moseley and determine whether the Repatriation Commission's decision was legally sound. In particular, the Tribunal needed to consider whether the Repatriation Commission had correctly applied the principles in Benjamin v Repatriation Commission and other relevant cases. Additionally, the Tribunal had to assess the credibility of Moseley's evidence concerning the stressors he experienced during his service, such as mortar explosions.

The Tribunal found that the Repatriation Commission's decision was flawed in several respects. Firstly, the Tribunal varied the diagnosis of PTSD to generalised anxiety disorder, acknowledging that this condition was also war-caused. Secondly, the Tribunal set aside the Commission's decisions regarding PTSD, alcohol dependence, alcohol hepatitis, and gynaecomastia, substituting new decisions that these conditions were war-caused from 28 February 2005. The Tribunal determined that the Repatriation Commission had not adequately considered the evidence of stressors and had misapplied the relevant principles in Benjamin v Repatriation Commission. Consequently, the Tribunal remitted the issue of assessment to the Repatriation Commission and adjourned consideration of the original assessment decision indefinitely.

The Tribunal's final orders varied the diagnosis of PTSD to generalised anxiety disorder, set aside the Commission's decisions on PTSD, alcohol dependence, alcohol hepatitis, and gynaecomastia, and substituted new decisions that these conditions were war-caused from 28 February 2005. The Tribunal affirmed the entitlement decision in all other respects and remitted the issue of assessment to the Repatriation Commission. The consideration of the original assessment decision was adjourned sine die.

Orders

Orders of the court

The Tribunal varies the diagnosis of post traumatic stress disorder (“PTSD”) to one of generalised anxiety disorder. The Tribunal sets aside the decision under review in relation to PTSD (as varied); alcohol dependence; alcohol hepatitis and gynaecomastis and in respect of those conditions, substitutes new decisions that the applicant suffers from generalised anxiety disorder; alcohol dependence; alcohol hepatitis and gynaecomastis and that these conditions are war-caused with effect from 28 February 2005.

In all other respects, the entitlement decision is affirmed. The Tribunal remits the issue of assessment following the acceptance of the above-mentioned conditions to the Repatriation Commission. The Tribunal adjourns consideration of original assessment decision sine die.

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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