Parrotte and Repatriation Commission

[2004] AATA 536

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 536

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2003/1899

VETERANS' APPEALS  DIVISION		)
Re		BRIAN PARROTTE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date27 May 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen

..............................................

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS – claim for post-traumatic stress disorder, alcohol abuse/dependence, chronic obstructive airways disease and peripheral vascular disease and hypertension as due to war service - whether Applicant experienced a severe stressor - when did smoking habit develop - acceptance of Respondent's expert that Applicant did not suffer from alcohol abuse/dependence - decision under review affirmed

Veterans' Entitlements Act 1986 - s6C, ss120(1), (3) and (6), s120A

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Smith (1987) 15 FCR 327

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Lees v Repatriation Commission [2002] FCAFC 398

REASONS FOR DECISION

27 May 2004   Senior Member M D Allen   

1.      By application made the 2^nd day of August 2001, the Applicant sought review of a decision of the Respondent that rejected his claim to have the conditions of post-traumatic stress disorder, chronic obstructive airways disease, hypertension, peripheral vascular disease and alcohol dependence or abuse attributed to his war service.

2.      The Administrative Appeals Tribunal delivered its decision affirming the decision under review on 1 August 2003.  An appeal was lodged in the Federal Court regarding that decision and on 20 November 2003, a consent decision remitted the matter to the Tribunal to be reconsidered without the parties adducing further evidence.

3.      The matter came on before me on 17 May 2004.  At the hearing, I took in as an exhibit the Appeal Book produced for the Federal Court appeal and both parties made submissions on the material before the original Tribunal as contained in the Appeal Book.

4.      As the Applicant had “operational service” as that term is defined in s6C of the Veterans’ Entitlement Act 1986 (“VEA”), the standard of proof in this matter is that prescribed by ss120(1) and (3) VEA.  That is to say, the Applicant’s claim must be granted unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  I am deemed to be so satisfied if there is no reasonable hypothesis connecting the injuries or diseases claimed by the Applicant with the circumstances of the particular service rendered by him.

5.      Section 120A VEA provides that a hypothesis raised by the material before the Tribunal shall not be regarded as being a reasonable hypothesis for the purposes of ss120 (3) unless it conforms with a so called Statement of Principle.  In this matter, the following Statement of Principles (“SoPs”) are relevant:

Instrument No. 3 of 1999             concerning Post Traumatic Stress Disorder

Instrument No. 54 of 1999          amending Instrument No 3 of 1999

Instrument No. 73 of 1997          concerning…