SUMMERS and REPATRIATION COMMISSION

Case [2010] AATA 803

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 803

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos 2007/3957, 2009/2689

VETERANS' APPEALS DIVISION )
Re RONALD JOHN SUMMERS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date20 October 2010

PlaceMelbourne

Decision The Tribunal affirms the decisions under review.

..................[signed]......................

Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – posttraumatic stress disorder – traumatic events – whether condition diagnosed and war-caused – alcohol dependence – whether war-caused – whether special rate of pension applies

Veterans' Entitlements Act 1986 ss 9, 24, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Mines v Repatriation Commission (2004) 86 ALD 62

Repatriation Commission v Bey (1997) 79 FCR 364

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Hill [2002] FCAFC 192

Repatriation Commission v Hill [2008] FCA 50

Stoddart v Repatriation Commission (2003) 197 ALR 283

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

20 October 2010   G. D. Friedman, Senior Member

1.      Ronald Summers served in the Australian Army from 12 July 1967 to 11 July 1969.  His service in Vietnam from 24 June 1968 to 14 October 1968, and in Australia from 14 October 1968 to 28 October 1968 (when he returned to Australia on emergency leave on compassionate grounds) constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).

2.      Mr Summers is currently receiving a disability pension at 100 per cent of the general rate.  The Commission has previously accepted that Mr Summers’ medical conditions of bilateral sensorineural hearing loss, chronic bronchitis and emphysema, and lumbar spondylosis are war-caused.  The respondent previously rejected his claims that gout and cervical spondylosis are war-caused conditions.

3.      On 10 December 2007 Mr Summers lodged a claim which was interpreted by the respondent as being for post-traumatic stress disorder (PTSD) and alcohol dependence to be accepted as war-caused.  He is also seeking a special rate pension, which is a higher rate of pension, paid to a working-age recipient who is unable to work due to accepted disabilities alone.  His applications were refused, and he is seeking review of those decisions.

ISSUES

4.      There was no dispute that Mr Summers suffers from alcohol dependence.  Therefore the issues before the Tribunal are:

·     Does Mr Summers suffer from PTSD?  If so, is the condition war-caused?

·     Is alcohol dependence war-caused?

·     Does Mr Summers qualify for a special rate pension?

DOES MR SUMMERS SUFFER FROM PTSD?

5.      The Tribunal is required to determine to its reasonable satisfaction whether Mr Summers suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).

6.      In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:

A.The person has been exposed to a traumatic event in which both of the following were present:

(1)the person experienced, witnessed, or was confronted with an event or events…

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SUMMERS and REPATRIATION COMMISSION [2010] AATA 803
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[2010] AATA 803
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CaseChat Overview and Summary

The matter before the Administrative Appeals Tribunal involved a challenge by Summers against a decision of the Repatriation Commission, which denied him the right to a special rate of pension on the basis of a disability attributable to his war service. The Tribunal was required to determine whether Summers' posttraumatic stress disorder and alcohol dependence were caused by his service in the war, and if so, whether these conditions warranted a special rate of pension. The dispute centred on the interpretation of the Veterans' Entitlements Act 1986 (Cth) and the specific criteria for determining war-related disabilities. The central legal issue was whether the Repatriation Commission had correctly applied the statutory provisions in assessing the applicant's entitlements. The Tribunal found that the Commission had correctly interpreted the relevant legislation and applied it to the facts of the case. The Tribunal determined that Summers' posttraumatic stress disorder was not diagnosed until well after his war service, and the evidence did not support a finding that it was caused by his war service. Furthermore, the Tribunal found that Summers' alcohol dependence was not related to his war service, as there was no evidence to suggest that it was a result of his experiences during the war. The Tribunal concluded that the Repatriation Commission had correctly decided that Summers was not entitled to a special rate of pension for his disabilities. The Tribunal's decision was based on a careful consideration of the evidence and the applicable legal principles. The Tribunal found that the Commission had properly exercised its discretion under the Act and had not erred in law. The Tribunal affirmed the decisions under review, upholding the Repatriation Commission's findings and conclusions.

Orders

Orders of the court

The Tribunal affirms the decisions 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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