Nitz and Repatriation Commission

[2005] AATA 255

Administrative

Appeals

Tribunal

 

 

DECISION AND REASONS FOR DECISION [2005] AATA 255

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2002/273

VETERANS' APPEALS DIVISION		)
Re		ANSIS NITZ

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date24 March 2005

PlaceAdelaide

Decision The Tribunal sets aside the decision under review, and remits the matter to the respondent with a direction that the respondent asses the applicant’s entitlements on the basis that his conditions of post-traumatic stress disorder and alcohol dependence are war-caused.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – post-traumatic stress disorder – alcohol dependence – consideration of stressors – perception that shelling by HMAS Perth had hit hospital – fear that Viet Cong prisoners were booby trapped – firing at perceived enemy diver – fear that enemy diver had attached mines to ship – observation of napalm bombing – absence of record of event – whether subjective reaction of intense fear, helplessness or horror is required under Statements of Principles for alcohol dependence and post-traumatic stress disorder – decision under review set aside.

Veterans' Entitlements Act 1986, ss 9, 19, 120(1), 120(3) and 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Stoddart (2003) 77 ALD 67

Woodward v Repatriation Commission (2003) 75 ALD 420

Delahunty v Repatriation Commission [2004] FCA 309

Bull v Repatriation Commission (2001) 188 ALR 756

Elliott v Repatriation Commission (2002) 73 ALD 377

Hardman v Repatriation Commission [2004] FCA 1174

East v Repatriation Commission (1987) 16 FCR 517

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Fenner v Repatriation Commission [2005] FCA 28 (2 February 2005)

REASONS FOR DECISION

24 March 2005 Deputy President D G Jarvis

1.      Ansis Nitz served in the Royal Australian Navy from 3 June 1967 until 31 December 1973, and was engaged in operational service in Vietnam in HMAS Perth from 14 September 1970 to 8 April 1971.  During this period he was employed as a weapons radar technician.  In March 2001 he lodged a claim for pension for incapacity from conditions later diagnosed as post-traumatic stress disorder (“PTSD”) and alcohol dependence.  Mr Nitz was born on 4 February 1949.  He has an accepted disability of ischaemic heart disease.

2.      In a decision made on 18 October 2001, a delegate of the Repatriation Commission (the “Commission”) refused Mr Nitz’s claim on the ground that the conditions were not war-caused.  On 15 May 2002, the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision.  Mr Nitz has applied to this Tribunal for review of that decision.

Issue Before the Tribunal

3. The issue before the Tribunal was whether Mr Nitz’s conditions of PTSD and alcohol dependence were war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (Cth) (the “VE Act”).

4.      The Commission accepted that Mr Nitz is suffering from the conditions of PTSD and alcohol dependence, and that the clinical onset…