The court affirmed that a disability pension cannot be granted if the disability is neither attributable to nor aggravated by military service, following proper medical assessments.

JUDGMENT : 

Johnson John, J.

The writ petitioner was the applicant in O.A. No.46 of 2018 before the Armed Forces Tribunal, Regional Bench, Kochi and as per order dated 31.08.2022, his application against non grant of disability pension for ‘Generalised Anxiety Disorder’ was dismissed for the reason that there is no basis for the challenge against the valid medical opinion that the disease was not attributable to or aggravated by military service and that there is an inordinate delay of more than 31 years in preferring the claim.

2. Heard Sri. V. K. Sathyanathan, the learned counsel for the writ petitioner and Sri. P. R. Anith Kumar, the learned counsel for respondents.

3. The learned counsel for the writ petitioner argued that the writ petitioner was enrolled in the army on 29.09.1969 and he was invalided out of service on 13.11.1976 due to low medical category. He was found suffering from disability of ‘Neurosis’ by the Invaliding Medical Board to the extent of 30% for two years. For the reason that the disability was neither attributable to nor aggravated by military service, he was not granted disability pension and the said order was challenged in O.A. No. 207 of 2013 before the Armed Forces Tribunal. As per order dated 23.06.2014, the said application was dismissed mainly for the reason that the disability was neither attributable to nor aggravated by the military service and that the disability was only for two years and the said period of two years expired in the year 1979. However, while dismissing the application, the Tribunal observed that it is always open to the applicant to move a petition for holding a re-assessment by the Medical Board to assess his disability and for that purpose, no direction of the Tribunal is necessary.

4. Subsequently the Re-assessment Medical Board found that he has disability of "Generalised Anxiety Disorder” to the extent of 40% lifelong. But, his claim for disability pension was denied for the reason that there is nothing in the Re-assessment Medical Board proceedings to show that the disability is attributable to or aggravated by military service. In the impugned order, the Tribunal also observed that as per the findings of the Release Medical Board dated 16.10.1976, the applicant was found suffering from disability of ‘Neurosis (300-b)’, which was considered neither attributable to nor aggravated by military service and assessed at 30% for two years and in the Re-assessment Medical Board findings recorded after a lapse of about 39 years, he was found suffering from ‘Generalized Anxiety Disorder’ at 40% lifelong and that the Invaliding Medical Board and the Re-Assessment Medical Board have diagnosed different medical conditions. It is further observed that there is nothing in the Re- assessment Medical Board report to show that the disability is attributable to or aggravated by military service and that the entitlement of a soldier to disability pension cannot be determined on the basis of a medical examination conducted after more than 39 years from his date of discharge.

5. The learned counsel for the writ petitioner argued that in view of Rule 9 of the Entitlement Rules for Casualty Pensionary Awards, 1982, the applicant cannot be called upon to prove the conditions of entitlements, and that a conjoint and harmonious reading of Rules 5, 9 and 14 of Entitlement Rules (supra), shows that it is to be presumed that a member have been in sound, physical and mental condition upon entering service except as to physical disabilities noted or recorded at the time of entrance and in the event of his being discharged from