Schlegel and Repatriation Commission

[2008] AATA 1039

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1039

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2007/0011

VETERANS AFFAIRS  DIVISION		)
Re		ROMAULD SCHLEGEL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S. Webb, Member
Dr M. Miller AO

Date20 November 2008

PlaceCanberra

Decision The decision under review is affirmed.

.............[Signed].................................

Mr S. Webb, Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS - operational service in Vietnam - claim for war-caused post traumatic stress disorder - diagnosis of PTSD not established - Generalised Anxiety Disorder – hypothesis of connection to service not consistent with Statement of Principles – Disorder not arising from or related to service - decision affirmed

Veterans' Entitlements Act 1986 ss 9,13, 119, 120, 120A

Repatriation Commission v Warren [2008] FCAFC 64
Peacock v Repatriation Commission (2007) 161 FCR 256
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82

Mines v Repatriation Commission (2004) 86 ALD 62
Masliczek v Repatriation Commission [2008] FCA 1535

Repatriation Commission v Bey (1997) 79 FCR 364
Dunlop v Repatriation Commission [2003] FCAFC 201.
East v Repatriation Commission (1987) 16 FCR 517

Connors v Repatriation Commission (2000) 59 ALD 61

Gorton v Repatriation Commission [2001] FCA 286.
Lees v Repatriation Commission [2002] FCAFC 398.

REASONS FOR DECISION

20 November 2008 Mr S. Webb, Member
Dr M. Miller AO     

1.      Romauld Schlegel was called up for National Service and served in Vietnam. He lodged a claim for a disability pension, asserting that he suffered from Post Traumatic Stress Disorder that was war-caused. This aspect of his claim was rejected. It was found that he suffered from Generalised Anxiety Disorder that was not war-caused. Mr Schlegel is unhappy with that decision, as affirmed by the Veterans’ Review Board, and he has applied for review.

2.      Prior to the hearing, the Tribunal was provided with a copy of a document purportedly setting out facts that had been agreed by the parties and issues that were in dispute. In that document it appeared that the parties agreed that Mr Schlegel “suffers from Generalised Anxiety Disorder with Depression”. At the outset of the hearing Mr Schlegel’s representative, Mr John Orr of Capital Lawyers, informed the Tribunal that no claim was pressed in relation to any condition, including Generalised Anxiety Disorder, other than PTSD. Mr Orr purported to qualify this by stating that any sequellae of PTSD is pressed as war-caused. As it appears to us, Mr Orr’s purported concessions were not clearly comprehensible or helpful. These matters were put to Mr Orr and he withdrew any concession concerning the diagnosis of Generalised Anxiety Disorder.

3. In these circumstances, being mindful of the settled authorities concerning concessions in veterans’ matters such as this,[1] and in fairness to Mr Schlegel, we are not prepared to accept and will not proceed on the basis of any concession proffered by Mr Orr concerning the diagnosis or war-causation of any psychiatric condition Mr Schlegel is found to suffer. We…