1.       The Tribunal varies the decision of the Repatriation Commission dated 7 January 1999 as affirmed by the Veterans’ Review Board made on 21 June 2000, which refused the claims of Mr David Stuart Tully for Post Traumatic Stress Disorder, chronic bronchitis, chronic solar skin damage, alcohol dependence or alcohol abuse, acquired cataracts, lumbar spondylosis, chronic rhinitis, hypertension, tinea, bilateral sensorineural hearing loss with tinnitus, impotence and gastro-oesophageal reflux disease
2. The Tribunal finds that Mr Tully’s conditions of Post Traumatic Stress Disorder, depressive disorder, alcohol dependence, hypertension and impotence are war-caused pursuant to section 9 of the Act.
3. The Tribunal affirms the decision of the Repatriation Commission as affirmed by the Veterans’ Review Board in regard to lumbar spondylosis, and finds that Mr Tully’s lumbar spondylosis is not war-caused pursuant to section 9 of the Act.
4.       The Applicant did not pursue his claims in relation to chronic bronchitis, chronic solar skin damage, acquired cataracts, chronic rhinitis, tinea, bilateral sensorineural hearing loss with tinnitus, and gastro-oesophageal reflux disease before this Tribunal, and accordingly, not having heard evidence with regard to these, the Tribunal affirmed the decisions of the Respondent in regard to them.
5.       The Tribunal notes that the date of effect is 25 February 1998, noting also that the date of effect for any conditions relating to the 1964/5 period would be 1 January 2001.
6.       The matter is remitted to the Repatriation Commission for assessment of Mr Tully's entitlement to disability pension.
.............................................
Ms G Ettinger,
Presiding Member

CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlement – Disability Pension - Operational Service – Reasonable hypothesis - Statements of Principles - PTSD – Diagnosis – Lumbar Spondylosis – Depressive Disorder – Hypertension – Impotence - Decision Varied
LEGISLATION
Veterans’ Entitlements Act 1986 ss 9, 120, 120A 120(1) 120(3)
Statement of Principles concerning Alcohol Dependence or Alcohol Abuse - Instrument No. 76 of 1998
Statement of Principles Instrument No.3 of 1999, as amended by Instrument No.54 of 1999, concerning Post Traumatic Stress Disorder.
Statement of Principles Instrument No.58 of 1998 concerning Depressive Disorder
Statement of Principles Instrument No.97 of 1996 as amended by No.16 of 2002 concerning Impotence
Statement of Principles Instrument No.27 of 1999 and No.46 of 2002 concerning Lumbar Spondylosis
Statement of Principles Instrument No.31 of 2001 concerning Hypertension
AUTHORITIES
Repatriation Commission v Cooke (1998) 52 ALD 1
Budworth v Repatriation Commission [2001] FCA 317
Benjamin v Repatriation Commission [2001] FCA 1879
Re Benjamin and Repatriation Commission (2000) 61 ALD 565
Repatriation Commission v Keeley (2000) 60 ALD 401
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Deledio (1998) 83 FCR 82
Deledio v Repatriation Commission [1997] 1047 FCA
Byrnes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tully and Repatriation Commission

Details

AGLC: Tully and Repatriation Commission [2003] AATA 113
Case: [2003] AATA 113
Decision Date: 7 February 2003

CaseChat Overview and Summary

The case of Tully v Repatriation Commission involved a veteran who sought to have his entitlement to a Disability Pension reviewed. The veteran, Mr. Tully, argued that he suffered from various conditions including post-traumatic stress disorder (PTSD), lumbar spondylosis, depressive disorder, hypertension, and impotence, all of which he claimed were related to his service. The matter was brought before the Federal Court of Australia.

The legal issues before the court revolved around whether Mr. Tully's conditions were reasonably attributable to his operational service. This involved examining the statements of principles set out by the Department of Veterans' Affairs, which outline the service-connected conditions for which veterans can claim. Specifically, the court needed to determine whether there was a reasonable hypothesis that Mr. Tully's PTSD, lumbar spondylosis, depressive disorder, hypertension, and impotence were caused by his service. The court also had to consider the evidence provided by the veteran and any expert medical opinions.

In reaching its decision, the court analysed the evidence presented by Mr. Tully and assessed whether it supported the connection between his conditions and his service. The court found that there was a reasonable hypothesis that Mr. Tully's PTSD, lumbar spondylosis, and depressive disorder were related to his operational service. However, regarding his claims for hypertension and impotence, the court was not persuaded that these conditions were reasonably attributable to his service. Consequently, the court varied the decision of the Repatriation Commission to reflect that Mr. Tully was entitled to a Disability Pension for PTSD, lumbar spondylosis, and depressive disorder, but not for hypertension and impotence.

The court ordered the Repatriation Commission to amend Mr. Tully's pension entitlements in accordance with the decision, ensuring that he received the appropriate compensation for the conditions found to be related to his service.

Orders