Noud and Repatriation Commission - [2007] AATA 1408

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1408
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200500744

VETERANS' APPEALS DIVISION )

Re KEITH DOUGLAS NOUD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal M J Carstairs, Senior Member
Date6 June 2007
PlaceBrisbane

Decision
The Tribunal:

1. sets aside the decisions under review as they relate to cardiomyopathy and atrial fibrillation and substitutes the decisions that cardiomyopathy and atrial fibrillation are war-caused with effect from 10 July 2003; and

2. sets aside the decision under review as it relates to post traumatic stress disorder and substitutes the decision that post traumatic stress disorder is war-caused.

The Tribunal gives liberty to the parties to make submissions, within 14 days of the date of this decision, on the date of effect for any pension payable for post traumatic stress disorder, for the reasons set out at paragraph 47-48 herein.

The matter is remitted to the Repatriation Commission for determination of the rate of pension.

..................Signed...............
Senior Member

CATCHWORDS
VETERANS’ AFFAIRS – disability pension – operational service in Vietnam as musician in Army band – shooting incident as severe stressor –alcohol consumption – connections with service – conditions of PTSD, atrial fibrillation and cardiomyopathy held to be war-caused – decisions under review set aside.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Mines v Repatriation Commission (2004) 86 ALD 62
White v Repatriation Commission [2004] FCA 633
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 134 FCR 392
REASONS FOR DECISION

6 June 2007   M J Carstairs, Senior Member

1.      Mr Keith Noud served with the Australian Army from 1967 to 1976 as a musician, playing saxophone and clarinet in the regimental band. Mr Noud had a period of operational service in Vietnam, when he was part of an operation called “Winning Hearts and Minds”, in which the band toured South Vietnam for just over two weeks, playing to the local population as part of a goodwill exercise.
2.      Mr Noud now suffers from a number of medical conditions. Those he claims as being related to his service in Vietnam are post traumatic stress disorder, cardiomyopathy and atrial fibrillation. The respondent has refused all these claims.   Another claimed condition of ischaemic heart disease was not found to be present and that claim was not pursued.
3.      Mr Noud says his medical conditions are related to his service in Vietnam, as he experienced a severe stressor when he witnessed a shooting within close proximity to the band during an open air recital in Vung Tau. Counsel for Mr Noud, Ms A Frizelle, identified this as the main issue in the case, underpinning Mr Noud’s entitlement to pension in respect of the three conditions.
ISSUES
4.      Under the legislation applying here, namely the Veterans’ Entitlements Act1986, the issues that I am required to decide are:
§ firstly, the correct diagnosis of the medical conditions, such issues being…

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 Noud and Repatriation Commission

Details

AGLC: Noud and Repatriation Commission [2007] AATA 1408
Case: [2007] AATA 1408
Decision Date: 6 June 2007

CaseChat Overview and Summary

In the case before the court, the parties involved were the Repatriation Commission and the applicant, who sought a review of decisions made by the Commission regarding his eligibility for a disability pension under the Veterans' Entitlements Act 1986 (Cth). The applicant, a former serviceman who served in Vietnam as a musician in an Army band, claimed that his conditions of post-traumatic stress disorder (PTSD), atrial fibrillation, and cardiomyopathy were caused by his operational service. The primary dispute centred on whether these medical conditions were attributable to the applicant's service in Vietnam and, if so, whether the Commission's decisions correctly assessed his eligibility for a pension.

The legal issues before the court required the determination of whether the applicant's PTSD, atrial fibrillation, and cardiomyopathy were war-caused conditions under the Veterans' Entitlements Act. The court had to consider the applicant's service in Vietnam, the specific incidents that served as severe stressors, and the link between these stressors and the onset of his medical conditions. Additionally, the court needed to examine the applicant's alcohol consumption and its impact on the conditions, as well as the overall connections between his service and the claimed conditions.

The court found that the applicant's conditions of PTSD, atrial fibrillation, and cardiomyopathy were indeed war-caused. The Tribunal held that the shooting incident during the applicant's service in Vietnam was a significant severe stressor that contributed to his PTSD. Despite the applicant's alcohol consumption, the Tribunal determined that it did not preclude a finding that his conditions were caused by his service. The Tribunal set aside the Commission's decisions regarding these conditions and substituted its own findings, holding that the conditions were war-caused. The court also granted liberty to the parties to submit on the date of effect for any pension payable for PTSD and remitted the matter to the Repatriation Commission for determining the rate of pension.

The court's final orders included setting aside the Commission's decisions concerning cardiomyopathy and atrial fibrillation, substituting decisions that these conditions were war-caused with effect from 10 July 2003, and similarly setting aside and substituting the decision regarding PTSD. The court invited the parties to make submissions on the date of effect for any pension payable for PTSD within 14 days of the decision and remitted the matter back to the Repatriation Commission to determine the rate of pension.

Orders

Orders of the court

The Tribunal:

1. sets aside the decisions under review as they relate to cardiomyopathy and atrial fibrillation and substitutes the decisions that cardiomyopathy and atrial fibrillation are war-caused with effect from 10 July 2003; and

2. sets aside the decision under review as it relates to post traumatic stress disorder and substitutes the decision that post traumatic stress disorder is war-caused.

The Tribunal gives liberty to the parties to make submissions, within 14 days of the date of this decision, on the date of effect for any pension payable for post traumatic stress disorder, for the reasons set out at paragraph 47-48 herein.

The matter is remitted to the Repatriation Commission for determination of the rate of pension.

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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