Smith and Repatriation Commission

[2004] AATA 869

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 869

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/406

VETERANS' APPEALS  DIVISION		)
Re		WILLIAM SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal REAR ADMIRAL A R HORTON AO

Date19 August 2004

PlaceSydney

Decision

 The Tribunal sets aside the decision under review, and substitutes its decision as follows:

(a)      a diagnosis of Post Traumatic Stress Disorder is found to be war caused effective to date 4 July 2002;

(b)       accordingly, and as agreed between the parties, Impotence is found to be war caused effective to date 4 July 2002;

(c)       the matter is remitted to the Repatriation Commission for assessment of the rate of pension.

[Sgd]  Rear Admiral A R Horton AO

CATCHWORDS

VETERANS’ ENTITLEMENTS – disability pension – claim for post traumatic stress disorder and impotence due to psychiatric disorder – if diagnosed whether resulting from operational service in RAN – necessity to meet relevant Statements of Principles – reasonable hypothesis – decision under review set aside.

Veterans’ Entitlements Act 1986 - sections 9, 13(1), 120(1), 120(3), 120(4), 120A

Statement of Principles No 3 of 1999

Byrnes v Repatriation commission (1993) 177 CLR 564

Benjamin v Repatriation Commission [2001] FCA 1879 (21 December 2001)

Gerzina v Repatriation Commission [2004] FCAFC 96 (3 May 2004)

Repatriation Commission v Stoddart [2003] FCAFC 300

Repatriation Commission v Deledio (1998) 83 FCR 82

Woodward v Repatriation Commission [2003] FCAFC 160 (30 July 2003)

Repatriation Commission v Cornelius [2002] FCA 750 (14 June 2002)

Lees v Repatriation Commission [2002] FCAFC 398

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (14 September 2001)

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Re Slattery and Repatriation Commission (1998) 52 ALD 90

REASONS FOR DECISION

19 August 2004   REAR ADMIRAL A R HORTON AO        

1.      This is an application to review decisions of a delegate of the Repatriation Commission (“the Respondent”) dated 25 October 2002, 4 November 2002 and 7 November 2002, affirmed on review by the Veterans’ Review Board (“VRB”) on 25 February 2003, that rejected the claims by Mr William Smith (“the Applicant”) for post traumatic stress disorder and anxiety disorder, ischaemic heart disease and impotence respectively.

2. At a hearing before the Administrative Appeals Tribunal (“AAT”) on 18 May 2004, Mr Smith was represented by Mr B Winship of Counsel. Ms S Kenny, advocate, represented the Respondent. The Tribunal took into evidence the section 37 documents provided by the Respondent pursuant to the Administrative Appeals Tribunal Act 1975.  The Tribunal heard oral evidence from Mr Smith and Dr R Haik, Consultant Psychiatrist.   The Tribunal also took into evidence those exhibits listed at Attachment A.

3.      At the outset, Counsel for the Applicant stated that only the matter of post traumatic stress disorder (“PTSD”) was before the Tribunal.  Counsel submitted that  should the Tribunal find for a psychiatric disorder, then acceptance of a condition of impotence should follow, it being dependent on the psychiatric condition.  The Respondent accepted that impotence would…