REPATRIATION COMMISSION and GRAHAM CHARLES PINDING
[2009] AATA 210
•30 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 210
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600220
VETERANS' APPEALS DIVISION ) Re REPATRIATION COMMISSION Applicant
And
GRAHAM CHARLES PINDING
Respondent
DECISION
Tribunal Mr J G Short (Member)
Professor P L Reilly AO (Member)Date30 March 2009
PlaceAdelaide
Decision The Tribunal:
· affirms the decision to accept depressive disorder as war-caused with effect from 30 April 2001;
· sets aside the remainder of the decision of the Veterans’ Review Board and in its place substitutes decisions that the conditions of alcohol dependence; irritable bowel syndrome and diabetes mellitus are war-caused with effect from 30 April 2001; and
· remits the matter to the Repatriation Commission for re-assessment of the respondent’s entitlement to pension in accordance with these reasons for decision.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that depressive disorder, irritable bowel syndrome and alcohol dependence are war-caused – consideration of Statements of Principles – conditions considered to be war-caused
Veterans’ Entitlements Act 1986 ss 5B, 6, 9, 13, 120(1), 120(3), 120A, 196A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Doessel (1990) 95 ALR 704Repatriation Commission v Davis (1990) 94 ALR 621
Statement of Principles Instrument No 76 of 1998
Statement of Principles Instrument No 27 of 2008
Statement of Principles Instrument No 103 of 1996REASONS FOR DECISION
30 March 2009 Mr J G Short (Member)
Professor P L Reilly AO (Member)1. Graham Pinding served in the Australian Army from 24 July 1962 to 20 December 1968. His eligible war service (which is also operational service) commenced on 21 September 1965 when he left his last port in Australia. An instrument of allotment for service in an operational area, signed on 28 December 2000 and issued under s 5B(2) of the Veterans’ Entitlements Act 1986 (the VE Act) for use by the Repatriation Commission (the Commission) in determining a person’s eligibility for entitlements under the VE Act, indicates that the 4th Royal Australian Regiment was allotted for service in an operational area between 4 October 1965 and 14 September 1966. As mentioned, Mr Pinding’s last port of call in Australia was 21 September 1965 and consequently the Tribunal has concluded, and both parties agreed, that Mr Pinding’s period of operational service extended from 21 September 1965 until at least 14 September 1966.
2. Mr Pinding’s counsel contended that once allotted for duty, operational service continued while Mr Pinding remained in an operational area. That is until 27 April 1967. We will return to this issue.
3. On 31 July 2001, Mr Pinding lodged a claim for acceptance of stress and anxiety, alcohol dependence, lower bowel problems and diabetes type 2. On 19 March 2002 the Commission accepted diabetes mellitus as war-caused. The same decision diagnosed depressive disorder and irritable bowel syndrome, but found that neither of those conditions was related to service. The same decision found alcohol dependence not to exist. The Commission went on to assess pension at 60 percent of the general rate in relation to diabetes mellitus and sensorineural hearing loss (a previously accepted condition).
4. Mr Pinding appealed to the Veterans’ Review Board (VRB). The VRB made a decision on 13 April 2006 which was expressed in ambiguous terms. The VRB described the decision under review as “The Repatriation Commission determination dated 19 March 2002 that included the decision to refuse the claim for depressive disorder”. The decision of the VRB was to set aside the decision under review and substitute its decision:
“(i)that depressive disorder is war-caused as defined in section 9 of the Veterans’ Entitlements Act 1986 (the Act);
(ii)that the Commonwealth of Australia is liable, pursuant to section 13 of the Act to pay pension for any incapacity arising from that condition from and including 30 April 2001; and
(iii)to remit the matter to the Repatriation Commission for assessment of the rate (if any) at which pension is to be paid.”
5. The use of the phrase “that included” in describing the decision under review indicates (and this Tribunal considers it correct), that the entire decision of the Commission dated 19 March 2002 was to be reviewed by the VRB. Unfortunately, the VRB appears to have set aside “the decision under review” and substituted acceptance of depressive disorder with effect from 30 April 2001. The VRB did not purport to affirm the Commission’s decisions to accept diabetes mellitus as war-caused and to assess pension reflective of diabetes mellitus and sensorineural hearing loss at 60 percent of the general rate.
6. The Tribunal considers that the intention of the VRB was to affirm all other parts of the decision of the Commission save and except that in relation to depressive disorder.
7. For the reasons described herein, it is this Tribunal’s decision to effectively ensure that diabetes mellitus, depressive disorder, alcohol dependence and irritable bowel syndrome are all considered to be war-caused with effect from 30 April 2001 and to remit the issue of assessment to the Commission for further decision. This decision will subsume the original decision of the Commission in relation to assessment of diabetes mellitus and sensorineural hearing loss at 60 percent of the general rate.
8. The Commission has, by its appeal, sought to set aside the decision to accept depressive disorder as war-caused. All claimed conditions are however before this Tribunal and Mr Pinding has suggested that not only is his depressive disorder war-caused, but in addition, his irritable bowel syndrome and alcohol dependence are also war-caused.
issues before the tribunal
9. The parties agree that diabetes mellitus is war-caused and neither party sought to disturb the original assessment of a rate of pension at 60 percent of the general rate in relation to diabetes mellitus and sensorineural hearing loss. Noting the areas of agreement between the parties, and on the evidence before it, this Tribunal is satisfied that diabetes mellitus is war-caused with effect from 30 April 2001 and is reasonably satisfied, that in relation to assessment of conditions of diabetes mellitus and sensorineural hearing loss, that at the time of the Commission’s decision of 19 March 2002, those conditions warranted an effective rate of pension at 60 percent of the general rate.
10. The remaining issue before the Tribunal therefore is whether alcohol dependence and/or depressive disorder and/or irritable bowel syndrome are war-caused.
the respondent’s contentions
11. Mr Pinding, through his counsel, suggested that the material before the Tribunal raised a reasonable hypothesis connecting alcohol dependence with Mr Pinding’s operational service and, as a result of that condition, depressive disorder and irritable bowel syndrome are also war-caused.
12. Mr Pinding referred to two events which he said satisfied Statement of Principles (SoP) Instrument No 76 of 1998 in relation to alcohol dependence or alcohol abuse. This SoP was in effect at the time of the original decision. Particularly, Mr Pinding referred to factor 5(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. It was conceded by the Commission that if alcohol dependence were considered to be war-caused, then Mr Pinding’s other diagnosed conditions of depressive disorder and irritable bowel syndrome should also be accepted as war-caused. The Tribunal agrees this contention.
the suicide
13. The first event referred to by Mr Pinding was said to have occurred in July 1966. Mr Pinding had contracted amoebic dysentery and was hospitalised in Borneo. He said that on the second or third day of his confinement, he heard what he knew to be a gunshot. The following morning he had been advised by a nurse that a fellow soldier, known to Mr Pinding through Mr Pinding’s duties as a cook and through his social activity of playing Crown and Anchor, had committed suicide by shotgun blast to the head. Mr Pinding reported to psychiatrist Dr Ewer, that he had felt “completely buggered” as a result of this advice. At the hearing, Mr Pinding described feelings of horror. Mr Pinding said that he was due to leave hospital shortly after the suicide and while preparing to leave, found himself wandering around the base. He said that he stepped into a room which he considered may have been the butchery (the deceased had been the camp butcher). He saw blood stains on the concrete floor and on the wall.
14. Mr Pinding described a dramatic increase in his drinking habit thereafter. He said that he was so drunk that on about two occasions each week he would be unable to walk. He said he was very drunk on all other days of the week. Mr Pinding referred to, and his service records confirm, that he had been the subject of disciplinary action during the period following the suicide.
the assault
15. Mr Pinding also referred to being the victim of an assault which had occurred on 17 December 1966. It was agreed between the parties that Mr Pinding’s assault would satisfy the definition of “experiencing a severe stressor” contained in Instrument No 76 of 1998 relating to alcohol dependence or alcohol abuse. The Commission argued however, that this event occurred after the expiry of the period of allotment described in the instrument of allotment and consequently did not fall within a period of eligible service.
legislative background
16. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
17. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act.
18. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
19. As Mr Pinding has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
20. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Sub-section (4) of s 120A excludes the operation of sub-section (3) in certain circumstances which are not relevant to the present proceedings.
21. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
consideration
22. The claimed conditions of alcohol dependence, depressive disorder and irritable bowel syndrome are the subject of SoPs. We note that where a SoP exists we must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio(1998) 83 FCR 82 at 97 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
23. In considering whether there is an hypothesis connecting Mr Pinding’s conditions with his war service, and in applying the relevant Deledio steps to that end, we must consider all of the material before us, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 271 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
24. An hypothesis that (once again, after taking into account all of the material before us) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). We refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
25. Dealing first with the suicide incident (which both parties agree occurred within a period of operational service), and in respect of the first step in Deledio, we are satisfied that the material before us points to an hypothesis connecting the claimed conditions with Mr Pinding’s operational service. That hypothesis is that Mr Pinding experienced a severe stressor (the suicide) and as a result, experienced the clinical onset of alcohol dependence within two years of that stressor and that Mr Pinding’s experience of alcohol dependence existed at the time of the clinical onset of depressive disorder which existed at the time of the clinical onset of irritable bowel syndrome and that accordingly those conditions are war-caused.
26. The Tribunal notes that it must consider Mr Pinding’s claim in the light of any more favourable SoPs which either exist now or existed at the time of the original decision. In this case it was submitted by both parties, and the Tribunal accepts, that in relation to alcohol dependence, the most favourable SoP was that which existed at the time of the original decision, Instrument No 76 of 1998. Factor 5(b) refers to “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. The current SoP in relation to depressive disorder is Instrument No 27 of 2008. Factor 6(a)(vii) refers to “having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder”. Alcohol dependence is such a condition.
27. The current SoP in relation to irritable bowel syndrome is Instrument No 103 of 1996. Factor 5(b) refers to “suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome”. A specified psychiatric condition is described in factor 7(b) as:
“(b) a psychiatric condition with depressive features, including:
(i) major depressive disorder
…
(iii) other depressive disorders
…”
28. As SoPs exist in relation to the claimed conditions, the second step of Deledio is satisfied.
29. We now turn to the third step described in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
30. Instrument No 76 of 1998 dealing with alcohol dependence or alcohol abuse includes factor 5(b) “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse”. “Experiencing a severe stressor” means:
“the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
The Commission first attacked Mr Pinding’s credibility. The Commission pointed out that Mr Pinding’s initial claim form referred to “combat duties”. Mr Pinding made it clear at the hearing that he had never been engaged in enemy contact. Mr Pinding said that a member of the Vietnam Veterans’ Association had assisted him in filling out the form and had instructed him on what to write. Mr Pinding agreed that he should not have signed a document which was inaccurate. Mr Pinding’s counsel pointed out that Mr Pinding had never given an account of being involved in combat and that from his earliest contact with his treating psychiatrist, Dr Ewer, he had only referred to incidents which, although distressing, did not occur in the context of combat. The Tribunal had an opportunity to carefully observe Mr Pinding in providing his evidence. Dr Ewer referred to Mr Pinding as a man who was “not psychologically minded”. Although credibility is not a factor in considering step 3 of Deledio, the Tribunal formed the view that Mr Pinding was doing his best to provide an honest account of the events which occurred 40 years earlier, noting that the psychiatric evidence was that Mr Pinding may have been affected by many years of alcohol dependence.
31. The Commission also argued that the suicide incident did not satisfy the definition of “experiencing a severe stressor”. The Commission attempted to atomise the experience by breaking it into three occurrences. The first, hearing a gunshot; the second, being told of the death of his acquaintance through suicide; and the third, seeing what Mr Pinding believed to have been the suicide scene, including blood on the floor and walls. The Commission also argued that Mr Pinding’s evidence of feeling horror, did not satisfy the definition of “experiencing a severe stressor” because that definition requires the experience of events which might evoke intense fear, helplessness and horror (emphasis ours). The Tribunal understands that people will express their feelings in different ways and does not consider that any particular form of words is necessary. The Tribunal considers that the material points to Mr Pinding being confronted with an event or events which involved actual death and which might evoke intense fear, helplessness and horror and consequently matches the SoP relating to alcohol dependence.
32. The material before the Tribunal also includes Mr Pinding first experiencing alcohol dependence shortly, if not immediately, after the suicide incident. The psychiatric opinion evidence of Dr Ewer also indicates that Mr Pinding soon experienced a depressive disorder. This points to the satisfaction of factor 6(a)(vii) of Instrument No 27 of 2008 relating to depressive disorder. Irritable bowel syndrome was diagnosed much later. The material points to Mr Pinding suffering from depressive disorder within two years of his service and continuing during the six months before the clinical onset of irritable bowel syndrome. He continues to suffer from depressive disorder. The material before the Tribunal therefore includes material which would match the template described in Instrument No 103 of 1996 relating to irritable bowel syndrome, particularly factor 5(b). Step 3 is satisfied.
33. The Tribunal will now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before us, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the incapacity in question was war-caused. If we are not so satisfied, Mr Pinding’s claim in relation to alcohol dependence must succeed by virtue of s 120(1) of the VE Act. In examining this question, we note that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). We also refer to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571.3, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, subs.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
34. The Commission attacked Mr Pinding’s credibility. However, this Tribunal is satisfied that any deficit in the consistency of events related by Mr Pinding is adequately explained by the passage of time, the effect of alcohol dependence and Mr Pinding’s reliance on the advice of others. The Tribunal finds that Mr Pinding’s evidence as to the suicide incident and the evidence of its aftermath, have not been disproved beyond reasonable doubt. Further, no other facts which are inconsistent with the hypothesis based on the suicide have been proved beyond reasonable doubt. The Tribunal consequently considers alcohol dependence to have been war-caused.
35. It was agreed between the parties that if the Tribunal found alcohol dependence to be war-caused, then depressive disorder and irritable bowel syndrome should also be found to be war-caused. The necessary causal nexus between war service and the conditions of depressive disorder and irritable bowel syndrome rely on a war-caused alcohol dependence pre-dating depressive disorder which in turn existed at the time of clinical onset of irritable bowel syndrome. The Tribunal is not satisfied that alcohol dependence did not exist during the two years before the clinical onset of depressive disorder (psychiatrist Dr Ewer refers) and that depressive disorder existed within six months of the clinical onset of irritable bowel syndrome.
36. In the light of the abovementioned circumstances, the Tribunal is satisfied that Mr Pinding’s depressive disorder and irritable bowel syndrome are war-caused with effect from 30 April 2001, that is three months before Mr Pinding lodged his claim for entitlement.
operational service
37. Returning now to the issue of operational service, the Tribunal notes that the second incident described by Mr Pinding (an assault) occurred on 17 December 1966, that is three months after the expiry of the instrument of allotment of persons under the VE Act to Malaysia, Singapore and Brunei. Although it was not necessary to decide this issue in order to determine Mr Pinding’s claims for acceptance of alcohol dependence, depressive disorder and irritable bowel syndrome, the Tribunal expresses the view that notwithstanding Mr Pinding’s presence in an operational area during a period extending beyond 14 September 1966, in order to qualify as operational service, two things are necessary. First, a person needs to be in an operational area. Secondly, that person must be allotted for duty in that area. The period of allotment in this case ended on 14 September 1966. The fact that Malaysia remained an operational area until 30 September 1967 does not mean that those servicemen who remained beyond the period of allotment were performing operational service. It appears that a force remained ready for redeployment if hostilities resumed. Federal Court decisions of Repatriation Commission v Doessel (1990) 95 ALR 704 and Repatriation Commission v Davis (1990) 94 ALR 621, equated the notion of being allotted for service with the concept of a posting. This interpretation reflected the then s 5(12) of the VE Act. Subsequently, s 5B(2) of the VE Act was enacted and reads as follows:
“5B War and operational area related definitions
…
Allotted for duty
(2)A reference in this Act to a person, or a unit of the Defence Force, that was allotted for duty in an operational area is a reference:
(a)in the case of duty that was carried out in an operational area described in item 1, 2, 3, 4, 5, 6, 7 or 8 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
(b)in the case of duty that was carried out in an operational area described in item 9, 10, 11, 12, 13 or 14 of Schedule 2 (in column 1)—to a person, or unit of the Defence Force, that is allotted for duty in the area (whether retrospectively or otherwise) by written instrument signed by the Vice Chief of the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act; or
(c)to a person, or unit of the Defence Force, that is, by written instrument signed by the Minister for Defence, taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 (in column 1).”
38. This sub-section refers to “allotted for duty in the area (whether retrospectively or otherwise) by written instrument issued by the Defence Force for use by the Commission in determining a person’s eligibility for entitlements under this Act”. The Commission produced such a written instrument of allotment dated 28 December 2000. This instrument purports to be issued by the Defence Force under s 5B(2) of the VE Act for use by the Commission in determining a person’s eligibility for entitlements under the VE Act. Clause 2 of that instrument provides “each unit or part of a unit of the Defence Force identified in the schedule below was allotted for duty in the operational area described in item 7 of column 1 of Schedule 2 of the Act for the period specified in column 2 of the schedule opposite the unit”. The use of the phrase “for the period” implies a closed period.In column 2 is a reference to a period from 1 October 1965 until 14 September 1966. Service thereafter is in this Tribunal’s view, not service while allotted for duty and consequently not operational service.
39. In the light of this view and if it had been necessary, the Tribunal would have determined that the assault incident which occurred on 17 December 1966 did not fall within a period of eligible service and consequently could not found a successful application for acceptance of conditions which may have resulted from that assault.
40. Noting the ambiguous way in which the VRB expressed its decision, the Tribunal will repeat that its intention is to ensure that diabetes mellitus, alcohol dependence, depressive disorder and irritable bowel syndrome are all considered accepted disabilities with effect from 30 April 2001. The Tribunal will remit the issue of assessment to the Commission.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
And Professor P L Reilly AO (Member)Signed: .....................................................................................
AssociateDate of Hearing 22 January 2009
Date of Decision 30 March 2009Advocate for the Applicant Mr A Crowe
DVA
Counsel for the Respondent Mr N Floreani
Solicitor for the Respondent Tindall Gask Bentley
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