Roger Herrod and Repatriation Commission - [2015] AATA 464

[2015] AATA 464

Division VETERANS' APPEALS DIVISION

File Number

2014/1286

Re

Roger Herrod

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 30 June 2015

Place Melbourne
The Tribunal affirms the decisions under review.
.............................[sgd]...........................................
Regina Perton, Member
VETERANS’ AFFAIRS – veterans’ entitlements – alcohol abuse disorder – hypertension – sleep apnoea – stressors – date of clinical onset – whether conditions war-caused
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 120(1), 196
CASES
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Kaluza v Repatriation Commission [2012] FCA 1244
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Law (1980) 31 ALR 140
Roncevich v Repatriation Commission (2005) 222 CLR 115
Stoddart v Repatriation Commission (2003) 197 ALR 283
REASONS FOR DECISION
Regina Perton, Member
30 June 2015

Roger Herrod, who is now 69 years old, joined the Australian Army (the Army) as a national serviceman on 1 February 1967 and served until 31 January 1969. He served in Vietnam from 11 December 1967 to 10 December 1968. This period constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Herrod currently receives a service disability pension at 40 per cent of the general rate. He suffers from multiple medical conditions. The Repatriation Commission (the Commission) accepts that two of these − post-traumatic stress disorder (PTSD) and bilateral sensorineural hearing loss with tinnitus − as having been war-caused.
On 17 March 2010 Mr Herrod lodged a claim for an increase in his pension. The conditions he sought to have recognised as war-caused included hypertension, sleep apnoea, diverticular disease of the colon, mitral valve prolapse and allergic rhinitis. On 10 June 2011 the Commission rejected his claim with regard to all these conditions. His pension continued at the 40 per cent rate due to the previously accepted conditions of PTSD and bilateral sensorineural hearing loss with tinnitus.
On 30 May 2011 Mr Herrod lodged an application with the Veterans’ Review Board (VRB). In July 2011 he withdrew the claims relating to diverticular disease of the colon, allergic rhinitis and mitral valve prolapse. He continued to seek review of the Commission’s decision in relation to hypertension and sleep apnoea.
On 23 April 2013 Mr Herrod lodged a claim with the Commission in relation to alcohol dependence. On 13 June 2013 the Commission rejected the claim in relation to that condition. It accepted that he had that condition but not that it was war-caused. On 21 June 2013 Mr Herrod lodged an application with the VRB in relation to his alcohol dependence.
On 11 February 2014 the VRB reviewed the Commission’s decisions dated 10 June 2010 and 13 June 2013 in relation to Mr Herrod’s sleep apnoea, hypertension and alcohol dependence. On 24 February 2014 the VRB advised Mr Herrod that it had affirmed the Commission’s decisions that the conditions were not war-caused.
On 14…

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 Roger Herrod and Repatriation Commission

Details

AGLC: Roger Herrod and Repatriation Commission [2015] AATA 464
Case: [2015] AATA 464
Decision Date: 30 June 2015

CaseChat Overview and Summary

In the case of Roger Herrod versus the Repatriation Commission, the dispute revolves around the applicant's claim that his sleep apnoea is connected to his service in the Australian Defence Force. The case was heard by the Administrative Appeals Tribunal, which has the authority to review decisions made by the Repatriation Commission regarding war-related disability claims.

The primary legal issues before the Tribunal were whether the sleep apnoea suffered by Mr Herrod was caused by his military service and if it was a war-related condition warranting compensation. The Tribunal was tasked with evaluating the medical evidence and determining the causal link between Mr Herrod's condition and his service, as well as assessing the applicable criteria for a war-related disability.

The Tribunal, after considering the evidence presented, concluded that Mr Herrod's sleep apnoea was not caused by his service in the Australian Defence Force. The Tribunal found that there was insufficient evidence to establish a direct causal link between his military service and the onset of his sleep apnoea. The Tribunal also determined that the sleep apnoea did not meet the criteria for a war-related condition under the applicable legislation. Consequently, the Tribunal affirmed the decisions of the Repatriation Commission that rejected Mr Herrod's claim for compensation.

As a result of the Tribunal's decision, Mr Herrod's claim for compensation related to his sleep apnoea was dismissed. The Tribunal's findings were based on the lack of evidence connecting his condition to his military service and the absence of a causal link that would classify the sleep apnoea as a war-related disability. The decision upheld the Repatriation Commission's earlier determinations and concluded that Mr Herrod was not entitled to the benefits he sought.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal finds that Mr Herrod’s sleep apnoea is not war-caused.DECISION The Tribunal affirms the decisions under review.I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Ms Regina Perton, Member......................[sgd].................................AssociateDated 30 June 2015

Ratio Decidendi

Legal Principle Established

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Division	VETERANS' APPEALS DIVISION
File Number	2014/1286
Re	Roger Herrod
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Regina Perton, Member
Date	30 June 2015
Place	Melbourne