STICHER Applicant And REPATRIATION COMMISSION

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 336

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5217

VETERANS' APPEALS DIVISION		)
Re		MICHAEL STICHER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr S Karas, AO, Senior Member

Date7 May 2010

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and substitutes it for the decision that the applicant is entitled to pension under the Veterans’ Entitlements Act 1986 (Cth) on and from 23 February 2008.

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

Senior Member

5.Section 9 of the Act provides that a persons’ injury or disease is war-caused if it:

·     resulted from an occurrence on operational service;

·     arose out of or was attributable to eligible war service;

·     resulted from an accident while travelling to or from duty;

·     was due to an accident that would not have occurred or a disease that would not have been contracted but for eligible war service; or

·     was contributed to in a material degree or aggravated by eligible war service.

6.      In determining the issues, the Tribunal must apply different standards of proof in respect of the applicant’s operational and non-operational service.

7.      The standard of proof that applies in relation to operational service is that of “reasonable hypothesis” ss 120(1) and 120(3) of the Act.  Whether a hypothesis is reasonable is determined by reference to s 120A of the Act and the relevant Statement of Principles (SoPs).

8.      The standard for non-operational service is that of “reasonable satisfaction”, s 120(4) of the Act.  The Tribunal will be “reasonably satisfied” if, on the balance of probabilities, the applicant’s condition is defence-caused in accordance with s 120B of the Act and the relevant SoPs.

9.      The SoPs set out factors that, if met, satisfy the standard of proof requirements.  At least one of these factors must be found to exist before the requisite nexus between the applicants’ condition and his service may be found.  The relevant SoPs for this matter are:

·     Generalised Anxiety Disorder:  Instrument No 1 of 2007.

·     Alcohol Abuse/Dependence:  Instrument No 1 of 2009 and Instrument No 17 of 2008 which was in force at the date of the respondent’s decision.

10.     Instrument No 101 of 2007 contains the following factors:

(a)       for generalised anxiety.

(i)        being a prisoner of war before the clinical onset of anxiety disorder; or

(ii)experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or

(iii)experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or

(iv)having a significant other who experiences a category 1A stressor within the two years before the clinical onset of anxiety disorder; or

(v)experiencing a category 2 stressor within the one year before the clinical onset of anxiety disorder; or

(vi)having a clinically significant psychiatric condition within the ten years before the clinical onset of anxiety disorder; or

(vii)having a medical illness or injury which is life-threatening or which results in serious physical or cognitive disability, within…