Re Clarke and Repatriation Commission - [2000] AATA 545

DECISION AND REASONS FOR DECISION [2000] AATA 545

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V98/1149

VETERANS' APPEALS DIVISION       )
           Re      James CLARKE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member Dr C Re, Member

Date4 July 2000
PlaceMelbourne

Decision      1.        The Tribunal varies the decision of the Repatriation Commission made 11 July 1997 and affirmed by the Veterans' Review Board on 19 August 1998 to provide, by consent, that the diagnosis of the claimed condition "post traumatic stress disorder" be changed to "anxiety disorder not otherwise specified" and that anxiety disorder not otherwise specified be accepted as a war-caused disease with effect from 9 June 1996. 2.   The Tribunal varies the decision of the Repatriation Commission made 14 July 1997 and affirmed by the Veterans' Review Board on 19 August 1998 to provide that neither irritable bowel syndrome nor megacolon is a war-caused disease. 3.     The Tribunal varies the decision of the Veterans Review Board as to assessment made 19 August 1998, to provide that Mr Clarke is entitled to payment of pension at 60% of the general rate with effect from 9 June 1996. 4.     The Tribunal reserves liberty to the parties to apply.
  (Sgnd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS - whether veteran suffers from post traumatic stress disorder and irritable bowel syndrome or megacolon - whether suffering from alternative war-related condition of anxiety disorder not otherwise specified - applicability of SoP when no SoP in force at the time claim made and comes into force later - whether reasonable hypothesis connecting megacolon with circumstances of the particular services rendered - assessment of pension in respect of accepted war-caused conditions

Keeley v Repatriation Commission (1999) 56 ALD 455

Repatriation Commission v Keeley [2000] FCA 532

Ogston v Repatriation Commission (1999) 29 AAR 89

Repatriation Commission v Cooke (1998) 52 ALD 1

Re Repatriation Commission and Bey (1997) 47 ALD 481

REASONS FOR DECISION

4 July 2000 Mrs Joan Dwyer, Senior Member Mr A Argent, Member Dr C Re, Member

This is an application for review of two decisions of the Repatriation Commission made 11 July 1997 and 14 July 1997 which in part rejected claims for post traumatic stress disorder ("PTSD") (11 July 1997 T12) and for irritable bowel syndrome (14 July 1997 T13) to be accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act"). Each of those decisions also accepted certain conditions as war-caused. The decision of 11 July 1997 (T12) also granted Mr Clarke pension under s 22 of the Act, at 30% of the general rate with effect from 9 June 1996. The decision of 14 July 1997 (T13) accepted claims for psychoactive substance abuse or dependence and impotence and increased the rate of pension to 40% of the general rate from 15 January 1997. The rejections of the claims to have post traumatic stress disorder ("PTSD") and irritable bowel syndrome accepted as war-caused were affirmed by the Veterans'…

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 Re Clarke and Repatriation Commission

Details

AGLC: Re Clarke and Repatriation Commission [2000] AATA 545
Case: [2000] AATA 545
Decision Date: 4 July 2000

CaseChat Overview and Summary

This case involves an application for review of two decisions of the Repatriation Commission, made on 11 July 1997 and 14 July 1997, which rejected claims for post traumatic stress disorder (PTSD) and irritable bowel syndrome to be accepted as war-caused diseases under the Veterans' Entitlements Act 1986. The decision of 11 July 1997 also granted Mr Clarke pension under the Act, at 30% of the general rate with effect from 9 June 1996. The decision of 14 July 1997 accepted claims for psychoactive substance abuse or dependence and impotence and increased the rate of pension to 40% of the general rate from 15 January 1997. The rejections of the claims to have PTSD and irritable bowel syndrome accepted as war-caused were affirmed by the Veterans' Review Board on 19 August 1998. The VRB also substituted its own decision as to assessment for that of the Repatriation Commission, deciding that Mr Clarke was entitled to pension at 50% of the General Rate with effect from 14 January 1997. That decision of the VRB as to assessment is also the subject of this review. The Tribunal found that the diagnosis of the claimed condition PTSD should be changed to "anxiety disorder not otherwise specified" and that anxiety disorder not otherwise specified be accepted as a war-caused disease with effect from 9 June 1996. The Tribunal also found that neither irritable bowel syndrome nor megacolon is a war-caused disease. Lastly, the Tribunal found that Mr Clarke is entitled to payment of pension at 60% of the general rate with effect from 9 June 1996.

Orders