Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 481
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2677
VETERANS' APPEALS DIVISION ) Re PHILIP OLDACRES-DEAR Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop Date8 July 2011
PlacePerth
Decision The Tribunal affirms the decision under review.
..........[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force (RAAF) from 1975 to 1984 and in Royal Australian Navy from 1985 to 1989 – applicant claimed Post Traumatic Stress Disorder (PTSD) related to RAAF service – applicant claimed PTSD defence-caused – applicant has not suffered PTSD – applicant has suffered Alcohol Abuse – Statement of Principles (SoP) – SoP does not uphold contention that Alcohol Abuse connected with defence service – Alcohol Abuse not defence-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth), s 5D(1) s70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning alcohol dependence and alcohol abuse No 2 of 2009
Gerzina v Repatriation Commission [2003] FMCA 490
Hill v Repatriation Commission [2001] FCA 1775
REASONS FOR DECISION
8 July 2011 Deputy President S D Hotop Introduction
1.Philip Oldacres-Dear (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 7 January 1975 to 6 January 1984 and in the Royal Australian Navy (“RAN”) from 14 May 1985 to 13 March 1989. His RAAF service and RAN service constitute “defence service” for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”). He joined the Western Australia Police Service on 4 September 1989 and he has continued to be employed as a police officer from that date.
2.On 6 November 2008 the applicant made a claim for a disability pension under Part IV of the VE Act in respect of incapacity from various disabilities which he claimed were defence-caused, including “PTSD”, the signs and symptoms of which were described by him as “mood swings” and “sleep problems”.
3.On 5 March 2009 a delegate of the Repatriation Commission (“the respondent”) decided that the following physical conditions suffered by the applicant are related to his defence service:
· “lumbar spondylosis”, “osteoarthrosis affecting both knees”, “sensorineural hearing loss”, and “tinnitus”;
but that the following physical disabilities are not related to his defence service:
· “right hand deformity of PIP joints of ring and little fingers” and “osteoarthrosis of the left little finger”.
As regards the applicant’s claimed mental disability of “PTSD”, the delegate determined that the appropriate medical diagnoses were “alcohol abuse” and “personality disorder” and decided that neither of those disabilities was related to his defence service.
4.On 22 April 2010 the Veterans’ Review Board (“VRB”) decided that the applicant’s “right hand deformity of PIP joints of ring and little finger” is defence-caused, but affirmed the delegate’s decision of 5 March 2009 in respect of the other disabilities, including “alcohol abuse” and “personality disorder”.
5.On 28 June 2010 the applicant lodged with…
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CaseChat Overview and Summary
The legal issues before the Tribunal were whether the applicant's PTSD and Alcohol Abuse were defence-caused, and therefore eligible for a disability pension under the Veterans’ Entitlements Act 1986. The Tribunal examined the evidence presented by the applicant, including his medical records and personal accounts, against the criteria set out in the relevant Statement of Principles and previous case law. The Tribunal had to determine if the applicant's conditions met the statutory requirements for a pension, specifically if they were attributable to his service.
In its decision, the Tribunal found that the applicant did not suffer from PTSD, as claimed, and that his Alcohol Abuse was not defence-caused. The Tribunal relied on the Statement of Principles concerning alcohol dependence and abuse, which did not support the applicant's contention that his Alcohol Abuse was connected to his service. The Tribunal also referenced previous cases such as Gerzina v Repatriation Commission and Hill v Repatriation Commission to support its findings. As the applicant's claims did not meet the statutory criteria, the Tribunal affirmed the Commission's decision to deny the pension.
The final orders of the Tribunal were that the decision under review, which was the Commission's denial of the applicant's claim for a disability pension, was affirmed. The Tribunal found that the applicant did not suffer from PTSD or have Alcohol Abuse that was defence-caused, and therefore, he was not eligible for the pension. The decision highlighted the importance of meeting the statutory criteria for veterans' entitlements, and underscored the need for evidence to support claims of defence-caused conditions.
Orders
Orders of the court
The Tribunal affirms the decision 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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