Neath and Repatriation Commission

Case [2010] AATA 910


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 910

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. 2007/1678

VETERANS’ APPEALS DIVISION )
Re KENNETH neath

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date16 November 2010

PlaceSydney

Decision

The decision under review is set aside, and the Tribunal decides that the veteran’s PTSD with alcohol abuse, hypertension and neurodermatitis are war-caused, as defined in s 9 of the VE Act, with effect from 30 September 2005, the earliest date which can be set, having regard to the late lodgement of the application for review to the Veterans’ Review Board. The matter is remitted to the Repatriation Commission for assessment.

…….…..........[sgd].............................

Ms N Isenberg

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – claim that post traumatic stress disorder with alcohol dependence, hypertension and neurodermatitis were war-caused – consideration of Statement of Principles  – the Tribunal decides that the decision under review is set aside.

LEGISLATION

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

Statement of Principles – Instrument No.5 of 2008 concerning Post Traumatic Stress Disorder, as amended by No 54 of 1999

Statement of Principles- Instrument No 35 of 2003 concerning Hypertension, as amended by No 11 of 2008, and No 3 of 2004.

CASES

Benjamin v Repatriation Commission [2001] FCA 1879

Repatriation Commission v Bey (1997) 79 FCR 364

Bull v Repatriation Commission (2001) 66 ALD 271

Repatriation Commission v Budworth (2001) 116 FCR 200.

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564 

Repatriation Commission v Cooke (1998) 90 FCR 307

Delahunty v Repatriation Commission (2004) 38 AAR 511

Repatriation Commission v Deledio (1998) 83 FCR 82

Drew v Repatriation Commission [2008] FCA 537

Elliott v Repatriation Commission (2002) 73 ALD 377

Fogarty v Repatriation Commission (2003) 37 AAR 363

Gerzina v Repatriation Commission [2004] FCAFC 96

Gorton v Repatriation Commission [2001] FCA 286

Repatriation Commission v Hill [2002] FCAFC 19

Hunter v Repatriation Commission [2010] FCA 145

Lees v Repatriation Commission (2002) 125 FCR 331

Mines v Repatriation Commission [2004] FCA 1331

Repatriation Commission v Norton [2008] FCA 1132

Renton v RC [2009] FCA 268

Stoddart v Repatriation Commission [2003] FCA 334 (2003) 197 ALR 283

Repatriation Commission v Warren (2007) 95 ALD 606

Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473

Youngnickel v Repatriation Commission [2004] FCA 1691

REASONS FOR DECISION

16 November 2010

Ms N Isenberg, Senior Member

1.      Mr Neath, the Applicant, seeks review of the decision of the Repatriation Commission dated 16 May 2005 as affirmed by the Veterans’ Review Board (“the VRB”) on 19 January 2007, that refused his claim that his conditions of post traumatic stress disorder (“PTSD”) with alcohol dependence, hypertension and neurodermatitis are related to service.

BACKGROUND

2.      Mr Neath served in the Royal Australian Navy between 22 October 1966 and 29 May 1969.  His “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth)…

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Details
AGLC
Neath and Repatriation Commission [2010] AATA 910
Case
[2010] AATA 910
Decision Date

CaseChat Overview and Summary

Neath lodged an application for review of a decision by the Repatriation Commission that her claims of post traumatic stress disorder with alcohol dependence, hypertension and neurodermatitis were not war-caused. The application was heard by the Veterans’ Review Board, which upheld the Commission’s decision. The matter was remitted to the Administrative Appeals Tribunal for review of the Board’s decision. The Tribunal was required to determine whether the Board’s decision was legally sound, and whether it was open to the Board to conclude that Neath’s conditions were not war-caused.

The Tribunal noted that the Statement of Principles relevant to the matter recognised that service in the Defence Force could cause post traumatic stress disorder and alcohol dependence, but did not mention hypertension or neurodermatitis. The Tribunal found that the Board had erred in failing to consider whether the veteran’s conditions could have been caused by her service, and in failing to properly consider the evidence of the veteran and her husband. The Tribunal found that the decision of the Board was not legally sound, and that it was open to the Board to conclude that the veteran’s conditions were war-caused.

The Tribunal set aside the Board’s decision, and found that the veteran’s conditions were war-caused, as defined in section 9 of the Veterans’ Entitlements Act, with effect from 30 September 2005, the earliest date which could be set having regard to the late lodgement of the application for review to the Veterans’ Review Board. The matter was remitted to the Repatriation Commission for assessment.

Orders

Orders of the court

The decision under review is set aside, and the Tribunal decides that the veteran’s PTSD with alcohol abuse, hypertension and neurodermatitis are war-caused, as defined in s 9 of the VE Act, with effect from 30 September 2005, the earliest date which can be set, having regard to the late lodgement of the application for review to the Veterans’ Review Board. The matter is remitted to the Repatriation Commission for assessment.

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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