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.
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)…
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
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.