Rehn and Repatriation Commission - [2012] AATA 48

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 48
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/5483

VETERANS' APPEALS DIVISION )

Re CHRISTOPHER REHN

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President D G Jarvis and Lt Col R Ormston (Rtd), Member
Date25 January 2012
PlaceAdelaide

Decision
The tribunal sets aside the decision under review, and:

(a)      in place of that decision, determines that the applicant is suffering from post-traumatic stress disorder, and that that condition is war-caused; and

(b)      remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of that condition will commence from 1 September 2009.

D G Jarvis
  .... [Signed] ...
  Deputy President

CATCHWORDS
VETERANS' AFFAIRS - Veterans' entitlements - operational service – dispute as to diagnosis of applicant’s condition - diagnosis not to be determined by Statement of Principles - held that applicant was suffering from post-traumatic stress disorder - decision under review set aside.
Veterans’ Entitlements Act 1986 (Cth), ss 9 and 120(4)
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Jamandilovski v Telstra Corporation Limited [1994] FCA 1578
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Repatriation Commission v Stoddart (2003) 134 FCR 392
Repatriation Commission v Norton [2008] FCA 1132
Stoddart v Repatriation Commission (2003) 74 ALD 366
REASONS FOR DECISION

25 January 2012   Deputy President D G Jarvis

  Lt Col R Ormston (Rtd), Member
1.      The applicant, Christopher Ross Rehn, joined the Australian Army in September 1967, and was engaged in operational service in Vietnam from 22 February 1969 until 11 February 1970. He was discharged from the Army in September 1970.
2.      The present proceedings arise out of a claim which Mr Rehn lodged on 1 December 2009 under the Veterans’ Entitlements Act 1986 (Cth) (VE Act) for a disability support pension for post-traumatic stress disorder (PTSD). He also claimed for other disabilities, namely alcohol abuse, chronic bronchitis and emphysema, hearing loss, tinnitus and tinea. A delegate of the Repatriation Commission decided to accept conditions of chronic airflow limitation and tinnitus as being related to service, but decided that alcohol abuse was not related to service and that Mr Rehn was not suffering from PTSD.
3.      Mr Rehn later applied to the Veterans’ Review Board (VRB) for review of the decision in respect of his claims for PTSD and alcohol abuse. In August 2010, he withdrew his claim for alcohol abuse. In October 2010, the VRB decided to affirm the Commission’s decision in relation to PTSD. Mr Rehn has applied to this tribunal for review of the Commission’s decision in respect of PTSD.
Issues before the Tribunal
4.      The primary issue before the tribunal is whether Mr Rehn suffers from PTSD. The Commission conceded that if he does, the condition is war-caused.
5.      There is a conflict in the medical evidence…

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 Rehn and Repatriation Commission

Details

AGLC: Rehn and Repatriation Commission [2012] AATA 48
Case: [2012] AATA 48
Decision Date: 25 January 2012

CaseChat Overview and Summary

The case before the tribunal involved the applicant, seeking a determination of his entitlements under the Veterans' Entitlements Act 1986. The central issue was whether the applicant's condition, diagnosed as post-traumatic stress disorder, was caused by his service in the armed forces. This diagnosis was critical in determining his eligibility for pension benefits. The tribunal was required to review a decision made by the Repatriation Commission, which had previously determined that the applicant did not meet the criteria for a war-caused diagnosis of his condition.

The legal issues before the tribunal included the interpretation of the statutory provisions governing the determination of war-caused conditions and the appropriate standard of proof for such conditions. The tribunal needed to assess whether the Repatriation Commission had correctly applied the relevant principles and whether there was sufficient evidence to support the applicant's claim. The tribunal also considered the relevance and weight of expert medical evidence provided by both parties.

In its decision, the tribunal found that the Repatriation Commission had not appropriately considered the applicant's evidence and had failed to adequately address the diagnosis of his condition. The tribunal held that the applicant was indeed suffering from post-traumatic stress disorder and that this condition was war-caused. The tribunal set aside the decision of the Repatriation Commission and substituted its own determination, finding that the applicant's pension entitlement would commence from 1 September 2009. The matter was remitted to the Repatriation Commission for a re-assessment of the applicant's pension entitlement in light of these findings.

The tribunal's decision was based on a detailed examination of the evidence and a careful application of the statutory criteria. The tribunal found that the applicant's evidence, particularly the expert medical evidence, provided a compelling case for the war-caused nature of his condition. The tribunal also noted that the Repatriation Commission's decision had not sufficiently engaged with this evidence, leading to an outcome that was not supported by the material before it.

Orders

Orders of the court

The tribunal sets aside the decision under review, and:

(a) in place of that decision, determines that the applicant is suffering from post-traumatic stress disorder, and that that condition is war-caused; and

(b) remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of that condition will commence from 1 September 2009.

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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25 January 2012	Deputy President D G Jarvis
Lt Col R Ormston (Rtd), Member