PHILLIPS and REPATRIATION COMMISSION

Case [2011] AATA 602


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 602

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No 2009/6124

VETERANS' APPEALS DIVISION )
Re NEVILLE WAYNE PHILLIPS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date30 August 2011

PlacePerth

Decision

The Tribunal:

·         varies the decision under review by:

-     varying the diagnosis of the applicant’s psychiatric condition from post traumatic stress disorder to generalised anxiety disorder; and

-     determining that the applicant has also suffered alcohol dependence but that that condition is not a war-caused injury or a war-caused disease for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth);

·         in all other respects, affirms the decision under review.

..........(sgd S D Hotop)...........

Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy (RAN) – applicant’s RAN service included operational service – applicant claimed post traumatic stress disorder (PTSD), irritable bowel syndrome (IBS) and hypertension  war-caused – applicant has not suffered PTSD – applicant has suffered generalised anxiety disorder (GAD), alcohol dependence, IBS and hypertension (diseases) – Statements of Principles (SoPs) – SoPs do not uphold contention that applicant’s diseases connected with operational service – material before Tribunal does not raise reasonable hypothesis connecting applicant’s diseases with operational service – applicant’s diseases not war-caused – decision under review varied

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B

Statement of Principles concerning alcohol dependence and alcohol abuse No 1 of 2009.

Statement of Principles concerning alcohol dependence or alcohol abuse, Instrument No 76 of 1998

Statement of Principles concerning anxiety disorder No 101 of 2007 (as amended by Instrument No 42 of 2010 and by Instrument No 15 of 2011)

Statement of Principles concerning anxiety disorder, Instrument No 1 of 2000

Statement of Principles concerning hypertension, Instrument No 35 of 2003 (as amended by Instrument No 3 of 2004 and by Statement of Principles concerning hypertension No 11 of 2008)

Statement of Principles concerning irritable bowel syndrome No 27 of 2011

Statement of Principles concerning irritable bowel syndrome, Instrument No 103 of 1996

Benjamin v Repatriation Commission (2001) 70 ALD 622

Border v Repatriation Commission (No 2) (2010) 191 FCR 163

Bull v Repatriation Commission (2001) 188 ALR 756

Byrne v Repatriation Commission (2007) 97 ALD 359

Collins v Administrative Appeals Tribunal (2007) 96 ALD 536

Hunter v Repatriation Commission (2010) 114 ALD 89

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Budworth (2001) 116 FCR 200

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

White v Repatriation Commission (2004) 39 AAR 67

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

30 August 2011 Deputy President S D Hotop

Introduction

1.Neville Wayne Philips (“the applicant”), who was born in November 1949, served in the Royal Australian Navy (“RAN”) from April 1966…

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PHILLIPS and REPATRIATION COMMISSION [2011] AATA 602
Case
[2011] AATA 602
Decision Date

CaseChat Overview and Summary

The case of Phillips and Repatriation Commission involves an applicant who served in the Royal Australian Navy and sought disability pension for various conditions, including post traumatic stress disorder, irritable bowel syndrome, and hypertension, claiming these were war-caused. The primary dispute centred on whether these conditions were connected to the applicant's operational service and, therefore, eligible for veterans' entitlements under the Veterans’ Entitlements Act 1986 (Cth). The case was heard and determined by the Administrative Appeals Tribunal.

The key legal issues that the Tribunal needed to resolve included whether the applicant's conditions were indeed war-caused, and if the Statements of Principles (SoPs) concerning these conditions could reasonably connect them to the applicant's military service. The Tribunal had to examine the evidence and the SoPs to determine if the applicant's conditions met the criteria for war-caused injuries or diseases as defined in the Act.

In its reasoning, the Tribunal found that while the applicant did not suffer from post traumatic stress disorder, they did suffer from generalised anxiety disorder, alcohol dependence, irritable bowel syndrome, and hypertension. The Tribunal concluded that the material before it did not raise a reasonable hypothesis that the applicant's conditions were connected to their operational service. Therefore, the Tribunal determined that these conditions were not war-caused. Consequently, the Tribunal varied the decision under review to reflect the correct diagnosis of generalised anxiety disorder and recognised alcohol dependence, but ruled that this condition was not war-caused.

The final orders of the Tribunal were to vary the decision under review by changing the diagnosis from post traumatic stress disorder to generalised anxiety disorder and recognising alcohol dependence, but affirming that this condition was not war-caused. In all other respects, the Tribunal affirmed the original decision.

Orders

Orders of the court

The Tribunal:

· varies the decision under review by:

- varying the diagnosis of the applicant’s psychiatric condition from post traumatic stress disorder to generalised anxiety disorder; and

- determining that the applicant has also suffered alcohol dependence but that that condition is not a war-caused injury or a war-caused disease for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth);

· in all other respects, 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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