Perks and Repatriation Commission - [2000] AATA 345

DECISION AND REASONS FOR DECISION [2000] AATA 345

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S98/261

VETERANS' APPEALS DIVISION       )
           Re      BRUCE LEONARD PERKS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 3 May 2000
PlaceAdelaide

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review which decided that varicocele is not war-caused.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member )
CATCHWORDS
VETERANS AFFAIRS – veterans' entitlements – varicocele – Statement of Principles factors considered – definition of 'arisen out of' considered – meaning of 'attributable to' considered -- inability to obtain clinical management – meaning of 'aggravation' considered
Veterans' Entitlements Act 1986 ss.9, 120, 120A
Statement of Principles No. 124 of 1996
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Yates (1995) 21 AAR 331
Re Petty and Repatriation Commission (1990) 11 AAR 458
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

REASONS FOR DECISION

3 May 2000 Senior Member J.A. Kiosoglous MBE

This is an application for review by Mr Bruce Leonard Perks (the applicant) for review of that part of a decision of the Veterans' Review Board (VRB) dated 1 April 1998 (T4) which rejected varicocele as a war-caused disability.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T5), together with nine exhibits, five lodged by the applicant (Exhibits A1-A5) and four lodged by the respondent (Exhibits R1-R4). In addition, the Tribunal heard evidence from the applicant, who was represented by Mr P. Broderick of counsel. The respondent was represented by Mr G. Doube, a departmental advocate.
The issue before the Tribunal is whether the applicant's condition of varicocele is war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 (the Act).
history of the application
The applicant served in the Australian Army between 6 March 1964 and 12 January 1972, rendering eligible service in Vietnam between 5 November 1968 and 26 November 1969.
On 19 August 1996 he lodged a claim for various conditions, including varicocele (T3/17). That condition was rejected by the Repatriation Commission in a determination dated 14 November 1996 (T2). This determination was affirmed upon review by the VRB by a decision dated 1 April 1998. The VRB stated (inter alia) in their reasons for decision (T4):
"…
The veteran was unable to explain how his left sided varicocele may have been caused by eligible service. In particular, there seems to be no explanation as to how Vietnam service may have affected his left renal vein.
…
…The Board is therefore of the opinion that the material does not raise a reasonable hypothesis within the meaning of subsection 120(3)…
…"

legislation

Sub-section 9(1) of the Act provides (inter alia):
"9(1) Subject to this section, for the purposes of this Act, an injury suffered by a…

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 Perks and Repatriation Commission

Details

AGLC: Perks and Repatriation Commission [2000] AATA 345
Case: [2000] AATA 345
Decision Date: 3 May 2000

CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal (AAT) involved a veteran who sought to have his condition of varicocele recognised as a war-caused illness under the Veterans' Entitlements Act 1986. The veteran's application was rejected by the Repatriation Commission, and the decision was subsequently reviewed by the AAT. The veteran's primary argument was that his varicocele was a direct consequence of his military service and thus entitled him to compensation.

The legal issues before the AAT centred on the interpretation of several key terms and provisions within the Veterans' Entitlements Act 1986. Specifically, the AAT had to determine whether the veteran's varicocele 'arose out of' or was 'attributable to' his service, as required by the Act and the relevant Statement of Principles No. 124 of 1996. The AAT also considered the meaning of 'aggravation' and whether the veteran's inability to obtain clinical management constituted such an aggravation. The interpretation of these terms and their applicability to the veteran's condition was pivotal in deciding the outcome of the case.

The AAT examined the legislative provisions, case law, and the factual circumstances of the veteran's condition. The Tribunal concluded that the veteran had not provided sufficient evidence to establish a reasonable hypothesis that his varicocele arose out of or was attributable to his military service. The Tribunal found that the veteran's condition did not meet the criteria set out in the relevant Statement of Principles, and thus, the application for compensation was unsuccessful. The Tribunal also noted that the veteran's inability to obtain clinical management did not amount to an aggravation of his condition within the meaning of the Act.

The AAT affirmed the decision of the Repatriation Commission that varicocele is not war-caused in this instance. The Tribunal's decision was based on the lack of evidence connecting the veteran's condition to his service, and it rejected the applicant's arguments on the interpretation of the statutory provisions. This decision reinforces the stringent requirements for veterans to establish a causal link between their service and their medical conditions in order to qualify for compensation under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal cannot be satisfied on either construction that there is a reasonable hypothesis which satisfies the SoP. Accordingly, the applicant cannot be said to have satisfied section 9 of the Act and the Tribunal so finds.decision For the reasons given and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms that part of the decision under review which decided that varicocele is not war-caused. I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBESigned: ..................................................................................... Personal AssistantDate/s of Hearing 10 April 2000 Date of Decision 3 May 2000Counsel for the Applicant Mr P. Broderick Solicitor for the Applicant Lempriere Abbott McLeod Counsel for the Respondent Mr G. Doube Solicitor for the Respondent DVA

Ratio Decidendi

Legal Principle Established

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