Nixon and Repatriation Commission - [2010] AATA 1001

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 1001
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3368

VETERANS’ APPEALS DIVISION )

Re JOHN NIXON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms Regina Perton
Miss E A Shanahan
Date13 December 2010
PlaceMelbourne

Decision The Tribunal affirms the decisions under review.
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Presiding Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ generalised anxiety disorder – lumbar spondylosis ‑ whether conditions war-caused – decisions affirmed
Veterans' Entitlements Act 1986 ss 9, 120(1), 196B(2)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Lees v Repatriation Commission [2002] FCAFC 398
Re Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission vGorton (2001) 110 FCR 321
Repatriation Commission v Hill [2002] FCAFC 192
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION [2010] AATA 1001

13 December 2010 Ms Regina Perton
Miss E A Shanahan

1.       John Nixon, who is now 65 years old, served in the Australian Army (the army) from 2 April 1967 to 18 April 1969. He served in Nui Dat, Vietnam, from 8 July 1968 to 26 March 1969. This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
2.       Mr Nixon lodged claims in October 2006 and November 2006 to have a number of medical conditions assessed as being war-caused. In March 2007 the Repatriation Commission (the Commission) accepted some, but not all, of those conditions as war-caused. Mr Nixon is currently receiving a disability pension at 20 per cent of the general rate.
WHAT ARE MR NIXON’S MEDICAL CONDITIONS?
3.       The Commission accepted that Mr Nixon’s medical conditions of tinea, bilateral sensorineural hearing loss, bilateral tinnitus, solar keratosis and non-melanotic malignant neoplasm of the skin of neck and face were war-caused. The Commission rejected Mr Nixon’s claims for anxiety state and lumbar spondylosis. In May 2008, the Veterans Review Board (VRB) affirmed the decision concerning lumbar spondylosis. The VRB varied the diagnosis from anxiety disorder to generalised anxiety disorder (GAD) but affirmed the Commission’s decision to reject the claim. In this matter, Mr Nixon is seeking to have the rejected conditions accepted as war-caused.
4.       The Tribunal is required to determine to its reasonable satisfaction whether Mr Nixon suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
5.       The Commission has conceded that Mr Nixon’s diagnoses are GAD and lumbar spondylosis but not that they are war-caused. Therefore, the Tribunal needs to make a determination on whether each of these conditions is war-caused.
ARE THE CONDITIONS WAR‑CAUSED?
Legal Framework
6. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as…

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.

Continue reading Nixon and Repatriation Commission

Details

AGLC: Nixon and Repatriation Commission [2010] AATA 1001
Case: [2010] AATA 1001
Decision Date: 13 December 2010

CaseChat Overview and Summary

Nixon, a veteran, sought a review of decisions made by the Repatriation Commission regarding his entitlements. The primary dispute centred on whether his conditions, namely generalised anxiety disorder and lumbar spondylosis, were war-caused, thereby qualifying him for additional benefits. The case was heard in the Federal Court of Australia, where the Tribunal was tasked with evaluating the Commission's decisions. The key legal issue was the interpretation of the relevant legislation concerning war-caused conditions and whether the evidence presented by Nixon sufficiently established a causal link between his conditions and his service.

The court examined the criteria for determining war-caused conditions, focusing on the legislative provisions and relevant case law. It considered the medical evidence, service records, and the nexus between the veteran's service and the onset or aggravation of his conditions. The Tribunal assessed the credibility and weight of the evidence, ensuring that the findings aligned with the statutory requirements. After a thorough analysis, the court found that the evidence did not establish the necessary causal link for the conditions to be deemed war-caused.

The Tribunal concluded that the Commission's decisions were based on a sound assessment of the evidence and proper application of the law. It determined that the veteran had not met the burden of proof required to establish that his conditions were war-caused. Consequently, the Tribunal affirmed the decisions under review, upholding the Commission's findings. The court's decision was grounded in a detailed examination of the evidence and the applicable legal standards, providing clarity on the criteria for determining war-caused conditions.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

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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