Wheat and Repatriation Commission

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1050

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/110

VETERANS' APPEALS  DIVISION		)
Re		GARY ROBERT WHEAT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Brigadier R D F Lloyd, Member

Date17 October 2003

PlacePerth

Decision

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:

(a)  to set aside the VRB decision under review of 13 February 2002 in so far as thoraco-lumbar spondylosis and localised osteoarthrosis right knee are concerned, and to accept these two conditions as being war-caused with effect from 7 December 1999;

(b)  to remit the matter of assessment of incapacity from these two conditions together with all previously accepted conditions to the Repatriation Commission;

(c)  to affirm that part of the VRB decision under review refusing acceptance of cervical spondylosis and osteoarthrosis right shoulder as being war-caused.

...........(sgd R D F Lloyd)....................

Member

2.      In the same VRB decision it affirmed the respondent’s determination of 31 October 2000 that the applicant’s claim for acceptance of the condition of peptic ulcer was refused on the basis of it having healed and hence no disability found. The applicant is not seeking review of that aspect of the VRB’s decision.

3. The applicant attended the hearing, together with his wife. He was assisted by his advocate, Mr P Lofdahl and the respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (‘the T documents”). In addition, the following documents were taken into evidence at the request of the applicant:

·     Exhibit A1: Witness statement by G R Wheat (the applicant) dated 23 July 2002;

·     Exhibit A2: Summary of applicant’s relevant activity whilst on operational service – titled “The Veterans’ Operational Service” (prepared by the applicant and his advocate) – signed by P Lofdahl and dated 30 September 2003;

·     Exhibit A3: Extract from “Vietnam – the Australian Experience” of 2 pages (the cover and one other page entitled “Fire Power”);

·     Exhibit A4: Extract from “Combat Battalion – The Eighth Battalion in Vietnam” of 4 pages.

No additional documentary evidence was handed up by the respondent, nor were any respondent witnesses called to give evidence at the hearing. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent. The Tribunal as a result regards him as an apparently honest and forthright witness and as reliable in his accuracy as one would expect in recollecting matters dating back over 30 years ago.

Service

4.      The applicant served in the Australian Army from 1 May 1968 to 30 April 1970, having been called up under the National Service Scheme. He was an infantryman and served overseas with 8^th Battalion Royal Australian Regiment (8RAR) as follows:

(a)Malaysia: 18 October 1968 to 2 May 1969

(b)Vietnam: 17 November 1969 to 11 February 1970

The Law – Entitlement to Claimed Conditions