Rafferty and Repatriation Commission

[2003] AATA 639

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 639

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No   W2002/8

VETERANS’ APPEALS DIVISION		)
Re		GRAEME JOHN RAFFERTY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date4 July 2003

PlacePerth

Decision

The Tribunal sets aside the decision of the Veterans’ Review Board dated 29 November 1999 and, in substitution therefor, decides that the applicant presently suffers from Generalised Anxiety Disorder (“GAD”) and that the applicant’s condition of GAD is a war-caused disease, within the meaning of s9 of the Veterans’ Entitlements Act 1986 (“the Act”), with effect from, and including, 16 August 1998.

The matter is remitted to the respondent for the purpose of determining the appropriate rate of disability pension payable to the applicant in accordance with the Act on the basis of this decision of the Tribunal.

.........(sgd S D Hotop)….......

Deputy President 

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy from 1964 to 1973 – applicant rendered “operational service” during 1966 – applicant served in police force from 1973 to 1999 – applicant claimed disability pension in November 1998 in respect of, inter alia, “stress/depression” – whether applicant suffering from Generalised Anxiety Disorder (“GAD”) – whether applicant’s GAD a “war-caused disease” – whether a reasonable hypothesis connecting applicant’s GAD with circumstances of his “operational service” – whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining applicant’s GAD to be war-caused

Veterans’ Entitlements Act 1986 ss 5D(1), 9(1), 120(1), 120(3), 120(4), 120A(3)

Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 48 of 1994, as amended by Instrument No 275 of 1995)

Statement of Principles concerning Anxiety Disorder (Instrument No 1 of 2000)

Benjamin v Repatriation Commission (2001) 34 AAR 270

Deledio v Repatriation Commission (1997) 47 ALD 261

Fogarty v Repatriation Commission [2003] FCAFC 136

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Hill (2002) 69 ALD 581

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Smith (1987) 15 FCR 327

Thomas v Repatriation Commission [2003] FCAFC 122

REASONS FOR DECISION

4 July 2003	Associate Professor S D Hotop, Deputy President
Introduction

1. This matter is again before the Tribunal following a remittal by the Federal Court of Australia. The Tribunal, in its previous decision in this matter on 7 May 2001, affirmed a decision of the Veterans’ Review Board (“VRB”) dated 29 November 1999 refusing to accept the applicant’s claim that his post traumatic stress disorder (“PTSD”) is war-caused, within the meaning of s9 of the Veterans’ Entitlements Act 1986 (“the Act”). On 21 November 2001, however, the Federal Court ordered (by consent) that the Tribunal’s decision of 7 May 2001 be set aside and that the matter be “remitted to the Tribunal differently constituted for re-hearing …”.

2.       At the re-hearing by the Tribunal, the applicant…