Alan Hair and Repatriation Commission - [2013] AATA 190

[2013] AATA 190

Division Veterans’ Appeals Division

File Number(s)

2011/4583

Re

Alan Hair

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Mr John Handley, Senior Member

Date 3 April 2013

Place Melbourne
Decision The decision under review is affirmed.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – Applicant served for 6 months in South Vietnam in 1970 – claim for acceptance of post-traumatic stress disorder (PTSD) – examination of a number of claimed events failed to meet Part (A) of PTSD definition in DSM-IV – whether his collection of symptoms pointed to depressive disorder – factors in Statement of Principles concerning PTSD do not exist as a minimum – decision affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986
CASES
Repatriation Commission v Bawden (2012) 206 FCR 296

Bawden v Repatriation Commission [2012] FCA 345
Re Bawden and Repatriation Commission [2011] AATA 283
McKerlie v Repatriation Commission (2010) 52 AAR 535
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Budworth (2001) 116 FCR 200

Benjamin v Repatriation Commission (2001) 70 ALD 622

REASONS FOR DECISION
Mr John Handley, Senior Member

Mr Hair, the applicant in these proceedings, served in the Royal Australian Air Force (RAAF) for six years between 1965 and 1971. He was engaged in operational service for approximately six months between January and July 1970 in South Vietnam.
He claimed acceptance of the conditions of Post Traumatic Stress Disorder (PTSD) and Sleep Apnoea following refusal of those claims by the respondent and affirmation of those decisions by the Veterans’ Review Board (VRB). When this review commenced in Wangaratta on 6 August 2012 his counsel indicated that the claim for Sleep Apnoea was withdrawn.
The respondent denied the applicant suffers PTSD. On the first day of hearing it was contended that he suffered depression. On the last day, during closing submissions, the respondent maintained that concession but denied relevant factors within the Statement of Principles were satisfied. This issue will be discussed later.
The applicant presently receives pension at 100 per cent of the general rate for the accepted conditions of bilateral sensorineural hearing loss, bilateral tinnitus, chronic obstructive airways disease and insomnia. His ultimate objection, subject to acceptance of PTSD, is payment of pension at the special rate.
It was learnt during the hearing of this application that he has another application currently before the respondent for acceptance of alcohol abuse and/or alcohol dependence. That application is beyond the scope of this review.
THE HEARING
Ms Gobbo and Mr Purcell, both of counsel appeared for the applicant and respondent, respectively.
The applicant gave evidence on the first day of hearing in Wangaratta on 6 August 2012. The hearing resumed in Melbourne on 7 November 2012 and 25 February 2013. Evidence was heard from Dr Kenny and Dr van Ammers and Mr Barsley who had been engaged by Writeway Research Service.
The applicant relied on the clinical file of his general practitioner Dr Buckley who practices in Benalla but was not called…

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

Case: [2013] AATA 190
Decision Date

CaseChat Overview and Summary

Alan Hair sought a review of a decision by the Repatriation Commission that he did not suffer from Post Traumatic Stress Disorder (PTSD) as a result of his service in Vietnam. The matter was heard by the Administrative Appeals Tribunal (AAT). The central issue for determination was whether the applicant's service in Vietnam was connected to his PTSD. The court had to assess if the applicant's claimed symptoms and experiences during his service constituted a diagnosable injury or disease under the applicable legislative framework.

The Tribunal considered the applicant's history of symptoms and experiences, including the events during his service in Vietnam, as well as the medical evidence presented. The Tribunal noted that while the applicant had been frightened during his service, this alone did not constitute a diagnosis of PTSD. The court applied the four-step process outlined in the case of Repatriation Commission v Deledio to determine whether a reasonable hypothesis existed connecting the applicant's service and his claimed condition. The Tribunal also referred to the Full Court decision in Repatriation Commission v Bawden, which established that a traumatic event is indispensable to a PTSD diagnosis.

After reviewing the evidence, the Tribunal concluded that the applicant's symptoms did not meet the criteria for a diagnosis of PTSD. The Tribunal found that while the applicant had experienced frightening events during his service, there was insufficient evidence to establish that these events were traumatic within the meaning of the PTSD definition. Consequently, the Tribunal upheld the original decision of the Repatriation Commission.

The Tribunal dismissed the application and affirmed the decision that the applicant did not suffer from PTSD as a result of his service in Vietnam.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant said he did not give that history to Dr van Ammers (Transcript, p.47). MEDICAL EVIDENCE The applicant’s treating general practitioner, Dr Buckley, did not give evidence in this review. His clinical notes record that he made a diagnosis of PTSD at a consultation on 1 August 2001. He did record that the applicant consulted him on that day because he needs diagnoses filled in for application to DVA for disability allowance (Exhibit A3, p.4). The history recorded in his notes, on that day, does not refer to any specific events during service. He recorded that the applicant: …has been troubled to a greater or lesser extent since Vietnam service with a complex of poor sleep, alcohol & tobacco excess, depression and temperamental volatility, which was severe in the first years after return, and is tending to surface rather more again of recent… (Exhibit A3, p.4) If Dr Buckley did complete a medical questionnaire in the standard DVA form where an injury illness or disease is claimed to be war caused, it is not within the T-documents and was not lodged as an exhibit in this review. It is therefore, not known whether Dr Buckley recorded any events in service which gave rise to the diagnosis that he made. The clinical notes record the applicant presenting on 5 November 2004 and the history then taken was troubled with ongoing dreams relating to service. PTSD was again diagnosed (Exhibit A3, p.8). On 14 April 2005 Dr Buckley became aware that the applicant had consulted Dr Kenny at the request of the respondent. He recorded that the applicant had been knocked back, annoyed, appealing, wants a referral for another psychiatric opinion. He also recorded that the applicant had agreed to commence anti-depressant therapy and had accepted a referral to the community mental health service for cognitive behavioural therapy and a secondary psychiatric specialist opinion. The outcome of that referral is not known and is not evident from the clinical file. On 29 March 2006 the notes record the applicant was referred to a counsellor in Wangaratta because of PTSD. The outcome of that referral is not known save that on 17 August 2007 Dr Buckley recorded that the applicant saw counsellor, didn't find it helpful… (Exhibit A3, p. 13) I cannot locate within the clinical file of Dr Buckley any letter of referral or report he has written or received in relation to the PTSD as he diagnosed (except for a letter from Dr van Ammers to his colleague, Dr Chen, on 30 August 2010 following the applicant being accepted into the PTSD program in Geelong). There are a number of letters that he has written to and received from a consultant physician in Wangaratta in relation to sleep apnoea suffered by the applicant. On 15 November 2001 the applicant attended a medico-legal consultation with Dr Chester, a psychiatrist, at the request of the respondent. He prepared a report on 3 December 2001 and stated that the applicant had said he did not suffer any major personal traumatic experiences and was not injured or wounded apart from the ruptured eardrum that required his repatriation to Australia (Exhibit R2, p. 3).

Decision

Reasons for decision

Dr White concluded that the applicant did not suffer any other psychiatric condition. Dr Kaplan reported that in addition to PTSD the applicant was suffering from alcohol abuse.CONCLUSION AND REASONS FOR DECISION There a number of references in the exhibited documents to the applicant being frightened during his service in Vietnam – refer report of Dr Kenny (T3, p. 6); Dr Fitzgibbon (T9, p. 39); and the Notes of Ms Arbuckle (Exhibit A6). As a fact, I am satisfied the applicant was frightened during service. However, that is a symptom, rather than a diagnosis of an injury or disease. In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Court of the Federal Court set out a four step process of analysis to determine whether a reasonable hypothesis exists connecting service and a claimed condition. However, prior to commencing that process, the Tribunal must make a finding on the balance of probabilities, whether it is satisfied that the symptoms constitute an injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622 at [55]). If the collection of relevant symptoms (refer Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]) points to more than one illness, injury or disease, the Tribunal is obliged, even in the absence of being requested to do so, to make that finding. In the exercise of its inquisitorial responsibilities, the Tribunal is not limited to the case articulated by an applicant (refer McKerlie v Repatriation Commission (2010) AAR 535 at [32], [34], [44] and [45]; Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47]). The condition claimed by the applicant in this review was PTSD. Another or an alternative diagnosis, having regard to his symptoms, emerged during the hearing, namely depression. That condition will be discussed later. Shortly before the final day of the hearing of this review, the Full Court of the Federal Court delivered its decision in Repatriation Commission v Bawden (2012) 206 FCR 296. The Full Court heard an appeal against a decision of a single Judge ([2012] FCA 345) who reversed a decision by the Tribunal ([2011] AATA 283). The veteran in those appeals claimed PTSD and relied on one event in service which he contended was responsible for his condition. Ordinarily, a determination of diagnosis does not involve a finding of whether events in service did occur (that exercise is confined to the fourth step in Deledio). However, the Full Court in Bawden at [47] and [48]) established that in applications where the claimed condition is PTSD:a) it can only be diagnosed as an illness or disease if a traumatic event occurred; andb) a finding that a traumatic event occurred is indispensable to a PTSD diagnosis. The definition of PTSD is found within DSM-IV. That definition is reproduced in the relevant Statement of Principles being Instrument N° 5 of 2008 which has operated throughout the assessment period in this review. A person must be exposed to a traumatic event to satisfy one of the diagnostic criteria of the PTSD definition (paragraph 3(b)(A)(i) and (ii)). Such an event will have occurred if: the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and…

Ratio Decidendi

Legal Principle Established

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Division	Veterans’ Appeals Division
File Number(s)	2011/4583
Re	Alan Hair
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Mr John Handley, Senior Member
Date	3 April 2013
Place	Melbourne