[2014] AATA 863
Division VETERANS' APPEALS DIVISION File Number(s)
2013/1582, 1584
Re
Timothy Paton
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr P W Taylor, SC, Senior Member Date 21 November 2014 Place Sydney The decision under review is set aside. Mr Paton’s depressive conditions are service related. In accordance with the submissions of both parties, Mr Paton’s application is consequently remitted to the Repatriation Commission to be determined in accordance with these reasons for decision.
....................[sgd]................................................
Mr P W Taylor, SC, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – depressive conditions – whether conditions are service related – decision set aside and remitted
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Military Rehabilitation and Compensation Commission v Wall (2005) 88 ALD 1; [2005] FCAFC 127
Repatriation Commission v Tuite (1993) 39 FCR 540; (1993) 29 ALD 609
SECONDARY MATERIALS
Statement of Principles concerning depressive disorder No. 28 of 2008
Statement of Principles concerning ischaemic heart disease No. 90 of 2007
REASONS FOR DECISION
Mr P W Taylor, SC, Senior Member
21 November 2014
Mr Paton is a 57 year old ex RAAF serviceman. During his service period (from 1977 to 1983) he qualified as a radio technician, and worked at RAAF bases in Victoria, South Australia and New South Wales.
In October 2005 Mr Paton underwent coronary artery bypass surgery, following an infarct resulting from ischaemic heart disease.
In July 2010 Mr Paton submitted a claim to the Department of Veterans’ Affairs seeking the acceptance of ischaemic heart disease and depressive disorder as service related and an increase in rate of pension on the basis that the accepted conditions of hearing loss and tinnitus had worsened.
At some time in 2005, the Commission had already accepted that Mr Paton had a service related hearing loss and tinnitus. He had attributed his hearing loss to working without ear muffs within 100 m of the Mirage jet warm up area at the RAAF Edinburgh base.
In his July 2010 application Mr Paton attributed his ischaemic heart disease to a substantial increase in cigarette smoking during his service life. Mr Paton described episodes of depression after his 1983 marriage break up, and claimed to have suffered from permanent depression “since heart surgery in 2006”. In October 2010, in the course of assessing Mr Paton’s application, he was diagnosed as suffering from recurrent Major Depressive Disorder and Dysthymic Disorder.
The Commission’s February 2011 decision accepted that Mr Paton’s ischaemic heart disease was service related, and increased his disability pension rate. The Commission rejected Mr Paton’s claim that his depressive illnesses were service related. That aspect of the Commission’s determination was affirmed in the Veterans’ Review Board decision of 28 February 2013. The Board’s decision is the subject of the present review proceedings.
THE PRINCIPLES FOR ATTRIBUTION
The Statement of Principles concerning depressive disorder No. 28 of 2008[1] (“SoP 28”) accepts that various depressive disorder conditions (including recurrent major depressive disorder and dysthymic disorder) can be related to service. Paragraph 6 of SoP 28…
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