Salkeld and Repatriation Commission

Case [2007] AATA 1482


Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1482

ADMINISTRATIVE APPEALS TRIBUNAL      )           

)               No Q2006/285

VETERANS’ APPEALS DIVISION                  )

Re PETER SALKELD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr RG Kenny, Member

Date                         28 June 2007

Place                       Brisbane

Decision

The Tribunal affirms the decision under review.

...................[Sgd]...........................

RG Kenny

Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – operational service with Royal Australian Navy – application of Statements of Principles – appropriate diagnosis of psychiatric conditions – generalised anxiety disorder diagnosed – relevance of claustrophobia to development of anxiety disorder – whether claustrophobia a clinically significant psychiatric condition – effects of detonation of scare charges – severe psychosocial stressor – no clinical onset of anxiety disorder within two years – reasonable hypothesis of relevant relationship to service not raised –  anxiety disorder not war-caused – decision affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 6A, 7, 9, 14, 69, 120, 120A

Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
White v Repatriation Commission [2004] FCA 633
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Youngnickel v Repatriation Commission [2004] FCA 1691
Hardman v Repatriation Commission [2004] FCA 1174

REASONS FOR DECISION

28 June 2007

Mr RG Kenny, Member

Background

1. Peter Salkeld (the applicant) served in the Royal Australian Navy (the RAN) from 25 July 1964 until 24 July 1976. On 12 July 2005, he lodged with the Repatriation Commission (the respondent), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (the Act), a claim for a disability pension for “psychological disorder” which he contended was related to his RAN service.  On 29 September 2005, the respondent accepted that Mr Salkeld suffered from anxiety disorder but determined that the condition was not related to his service.  On 14 March 2006, the Veterans’ Review Board (the Board) affirmed the decision and Mr Salkeld now seeks review of the Board’s decision by the Administrative Appeals Tribunal (the Tribunal).

Service and Standard of Proof

2.      During his RAN service, Mr Salkeld rendered eligible war service in the form of operational service, as provided for in ss 7 and 6A, respectively, of the Act as follows:

from 24 February 1965 until 7 April 1965 on HMAS Melbourne;

from 21 April 1965 until 7 May 1965 on HMAS Melbourne;

from 31 May 1965 until 22 June 1965 on HMAS Melbourne;

from 24 April 1966 until 18 May 1966 on HMAS Sydney;

from 25 May 1966 until 11 June 1966 on HMAS Sydney.

He also served a period of defence service, in accordance with s 69 of the Act, from 7 December 1972 until his discharge in 1976.

3.      The standard of proof for determining diagnostic…

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Salkeld and Repatriation Commission [2007] AATA 1482
Case
[2007] AATA 1482
Decision Date

CaseChat Overview and Summary

Salkeld sought a review of a decision by the Repatriation Commission to refuse to grant him a disability pension. The applicant, a former member of the Royal Australian Navy, alleged that his service caused him to develop a psychiatric condition, specifically generalised anxiety disorder. The Tribunal was required to determine whether the applicant's condition was a war-caused psychiatric condition as defined by the Veterans’ Entitlements Act 1986.

The Tribunal considered the relevant provisions of the Act, including sections 6A, 7, 9, 14, 69, 120, and 120A. It also examined previous cases such as Repatriation Commission v Smith, Benjamin v Repatriation Commission, Fogarty v Repatriation Commission, and others. The key issue was whether the applicant's anxiety disorder was caused by an event or events that occurred during his service, as defined by the Act. The Tribunal found that while the applicant had been diagnosed with generalised anxiety disorder, there was no evidence to support a reasonable hypothesis that the disorder was caused by an event or events during his service.

The Tribunal examined the evidence and concluded that the applicant's anxiety disorder was not caused by an event or events during his service, as required by the Act. The Tribunal found that the applicant's experience of the detonation of scare charges was a severe psychosocial stressor, but there was no evidence that this stressor caused the onset of the anxiety disorder within two years of the end of the relevant period of service. The Tribunal also considered whether claustrophobia, a condition the applicant claimed to have experienced during his service, was a relevant psychiatric condition, but found that it was not a clinically significant psychiatric condition within the meaning of the Act.

The Tribunal affirmed the decision of the Repatriation Commission to refuse to grant the applicant a disability pension. The applicant was not entitled to a disability pension as his anxiety disorder was not caused by an event or events that occurred during his service. The Tribunal's decision was based on the evidence presented and the relevant provisions of the Act.

Orders

Orders of the court

The Tribunal affirms the decision under review.

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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