REPATRIATION COMMISSION and GRAHAM CHARLES PINDING - [2009] AATA 210

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)

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,…

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.

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Details

Case: [2009] AATA 210
Decision Date: 30 March 2009

CaseChat Overview and Summary

In the Administrative Appeals Tribunal, the Repatriation Commission sought review of a decision of the Veterans' Review Board, which had reviewed a decision of the Commission concerning the respondent, Graham Charles Pinding. Mr Pinding claimed that his depressive disorder, irritable bowel syndrome, alcohol dependence, and diabetes mellitus were caused by his operational service. The Tribunal had to determine whether these conditions were war-caused and thus entitled to compensation under the Veterans' Entitlements Act 1986. The central issue was whether the relevant conditions were connected to the respondent's service, as required by the Act.

The Tribunal considered various Statements of Principles, which outline conditions presumed to be war-caused, and examined whether Mr Pinding's conditions fell within these criteria. The Tribunal concluded that while depressive disorder was indeed war-caused from 30 April 2001, the Review Board had erred by not recognising the war-connection of the other conditions. The Tribunal held that irritable bowel syndrome, alcohol dependence, and diabetes mellitus were also war-caused from the same date, and set aside the Review Board's decision to the contrary. The Tribunal found that the evidence presented supported the conclusion that these conditions were connected to Mr Pinding's service.

The Tribunal affirmed the decision to recognise depressive disorder as war-caused and substituted the Review Board's decision regarding the other conditions. It found that alcohol dependence, irritable bowel syndrome, and diabetes mellitus were war-caused, effective from 30 April 2001. The matter was remitted to the Repatriation Commission for reassessment of Mr Pinding's entitlement to pension based on these findings.

Orders

Orders of the court

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.

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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VETERANS' APPEALS DIVISION		)
Re		REPATRIATION COMMISSION