Wilson and Repatriation Commission - [2001] AATA 872

DECISION AND REASONS FOR DECISION [2001] AATA 872

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1078

VETERANS' APPEALS DIVISION       )
           Re      TERRENCE CHARLES WILSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Miss E.A. Shanahan, Member

Date19 October 2001
PlaceMelbourne

Decision      The Tribunal varies the determination of the Repatriation Commission, made 24 February 2000 and affirmed by the Veteran's Review Board on 26 July 2000, to provide that Post Traumatic Stress Disorder is a war-caused disease, and that pension is payable to the veteran at 40% of the general rate with effect from 6 September 1999.
  (Sgd)   Joan Dwyer
  Senior Member

VETERANS' AFFAIRS – whether generalised or post-traumatic stress disorder is a war-caused disease – correct diagnosis of condition – both psychiatrists called at hearing agreed that applicant suffered a psychiatric condition which resulted from his service in Vietnam – time limit for clinical onset specified in Statement of Principles for generalised anxiety disorder did not allow the veteran's psychiatric condition to be accepted as war-caused if it was diagnosed as generalised anxiety disorder – whether applicant met the diagnostic criteria for post-traumatic stress disorder – beneficial nature of the Veterans' Entitlements Act – finding that applicant suffered war-caused post-traumatic stress disorder – decision set aside
Veterans' Entitlements Act 1986 s 20(1) and (3)
Statement of Principles Instrument No. 3 of 1999
Statement of Principles Instrument No. 54 of 1999
Statement of Principles Instrument No. 1 of 2000

Benjamin v Repatriation Commission [2001] FCA 522

Budworth v Repatriation Commission [2001] FCA 317

Meehan v Repatriation Commission [2001] FCA 597

Repatriation Commission v Gosewinkel (1999) 59 ALD 690

Whitbourne v Repatriation Commission [2001] FCA 1353

REASONS FOR DECISION

19 October 2001 Mrs Joan Dwyer, Senior Member

This is an application for review of a determination of the Repatriation Commission (T14) made on 24 February 2000 and affirmed by the Veterans Review Board on 21 March 2000 (T2). The Repatriation Commission accepted the conditions of non-melanotic malignant neoplasm of the skin and bilateral sensorineural hearing loss as war-caused under the Veterans Entitlements Act 1986 ("the Act"), but decided that the conditions of generalised anxiety disorder and seborrhoeic keratosis were not war-caused. The Repatriation Commission granted Mr Wilson a disability pension at 10 percent of the general rate under the Act. The Veterans Review Board affirmed the decision under review, save that it varied the date of the effect by one day.
Mr Hyde of Counsel appeared for Mr Wilson. Mr Purcell, of Counsel, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing. Mr Wilson gave evidence. Evidence on his behalf was also given by Dr Cole, a psychiatrist. The respondent called Dr Walton, who is a psychiatrist.
Mr Wilson served in the Australian Army as a National Serviceman from 29 September 1966 to 28 September 1967. He…

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.

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Details

AGLC: Wilson and Repatriation Commission [2001] AATA 872
Case: [2001] AATA 872
Decision Date: 19 October 2001

CaseChat Overview and Summary

The case of Wilson v Repatriation Commission [2001] AATA 872 involved an appeal against a decision of the Repatriation Commission and subsequent affirmation by the Veterans' Review Board. The applicant, Terrence Charles Wilson, sought recognition of his psychiatric condition as a war-caused disease for the purposes of receiving a pension under the Veterans' Entitlements Act 1986. The Tribunal found that the applicant did suffer from a psychiatric condition resulting from his service in Vietnam and that this condition met the diagnostic criteria for post-traumatic stress disorder. The Tribunal held that the condition was war-caused and therefore entitled to pension at 40% of the general rate from 6 September 1999.

The primary legal issue before the Tribunal was whether the applicant's psychiatric condition was war-caused, and if so, whether it met the diagnostic criteria for post-traumatic stress disorder or generalised anxiety disorder as specified in the relevant Statements of Principles. The Tribunal found that the applicant's psychiatric condition met the diagnostic criteria for post-traumatic stress disorder, and therefore the condition was appropriately diagnosed as war-caused. The Tribunal rejected the respondent's argument that the applicant did not fully meet the diagnostic criteria for post-traumatic stress disorder, noting that it would be inconsistent with the beneficial nature of the Act to deny a veteran with operational service recognition of a psychiatric condition related to that service.

The Tribunal's decision was based on the evidence provided by the applicant, two psychiatrists, and a military historian. The Tribunal found that the applicant's account of two traumatic incidents during his service in Vietnam was accurate and that these incidents qualified as severe stressors under the relevant Statement of Principles. The Tribunal also found that the applicant's symptoms satisfied the diagnostic criteria for post-traumatic stress disorder, including re-experiencing the traumatic event, avoidance of stimuli associated with the trauma, and persistent symptoms of increased arousal.

The Tribunal varied the decision of the Repatriation Commission to provide that post-traumatic stress disorder is a war-caused disease and that pension is payable to the applicant at 40% of the general rate with effect from 6 September 1999.

Orders