Re Robert James Scott and Repatriation Commission

[2009] AATA 1

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 1

ADMINISTRATIVE APPEALS TRIBUNAL      )

)         No. 2007/2242

VETERANS'        APPEALS        DIVISION		)
Re		ROBERT JAMES SCOTT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date5 January 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that generalised anxiety disorder, alcohol dependence and depressive disorder are war-caused with effect from 2 June 2005.

(sgd) G.D. Friedman

Senior Member

VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ generalised anxiety disorder ‑ alcohol dependence - depressive disorder ‑ whether conditions war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1), 196B(2)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Lees v Repatriation Commission [2002] FCAFC 398

Re Hillier and Repatriation Commission [2004] AATA 897

Re Spotswood and Repatriation Commission [2003] AATA 152

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission vGorton (2001) 110 FCR 321

Repatriation Commission v Hill [2002] FCAFC 192

Stoddart v Repatriation Commission (2003) 197 ALR 283

White v Repatriation Commission [2004] FCA 633

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

5 January 2009   G. D. Friedman, Senior Member

1.      Robert Scott served in the Australian Army from 28 September 1966 to 27 September 1968.  His service included a period in Vietnam from 4 June 1968 to 27 August 1968, which constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2.      Mr Scott is in receipt of a disability pension at 90 per cent of the general rate.  He suffers from a number of medical conditions, several of which have been accepted by the respondent as war-caused.  On 2 September 2005 Mr Scott lodged a claim for additional conditions to be accepted as war-caused.  His claim was rejected by the respondent and the Veterans’ Review Board.  Mr Scott is seeking review of the decision.

LEGAL FRAMEWORK

3. Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.

4.      In the circumstances of this case, where Mr Scott has rendered operational service, the issue of whether the diagnosed conditions were caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:

1.        The Tribunal must consider all the material which is before it and determine whether that material points…