Arnott and Repatriation Commission - [2001] AATA 891

DECISION AND REASONS FOR DECISION [2001] AATA 891

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V 2000/849
GENERAL ADMINISTRATIVE DIVISION
  Re:         NEIL ARNOTT
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       M.J. Carstairs, Member
Date:             24 October 2001
Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant's depressive disorder is a war-caused disease. Pension is payable to the applicant at 90 per cent of the general rate on and from 8 March 1998.

(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS - entitlement - disability pension - whether post traumatic stress disorder or depressive disorder are war-caused - correct diagnosis - whether experienced a severe stressor - whether 'confronted' by a stressor – severe psycho-social stressor - depressive disorder not otherwise specified - 'clinical onset'
Veterans' Entitlements Act 1986 ss9, 120, 120A
Budworth v Repatriation Commission [2001] FCA 317
McLeod-Dryden and Repatriation Commission (1998) 53 ALD 428
Thompson and Repatriation Commission [2000] AATA 635
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gorton [2001] FCA 1194
Diagnostic and Statistical Manual of Mental Disorders 4th Ed 1994

REASONS FOR DECISION

24 October 2001 M.J. Carstairs, Member

This is an application by Neil Arnott (the applicant) for review of a decision of a delegate of the Repatriation Commission (the respondent), as affirmed by the Veterans' Review Board (the VRB), to reject the applicant's claim for post traumatic stress disorder (PTSD).
At the hearing of this matter on 9 August 2001, Mr P. Leifman, solicitor, represented the applicant, and Mr K. Rudge, advocate, represented the respondent. The Tribunal had the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 before it. The applicant's Exhibits A-C and the respondent's Exhibits 1–7 were in evidence.
BACKGROUND
The applicant was born on 15 September 1949. He served in the Australian Army from 20 November 1968 to 19 November 1977. He was assigned to the Australian Army Catering Corp. Between 28 November 1969 and 1 November 1970 he served in Vietnam. He was discharged from the army on 19 November 1977.
On 15 June 1998, the applicant made an "informal" claim for a number of medical conditions. This was followed by a formal claim on 8 September 1998. In a decision made on 12 April 1999, the respondent's delegate decided to grant only those parts of the claim that related to bilateral sensori-neural hearing loss and gastro-oesophageal reflux. The delegate further decided that payment at 80 per cent of the General Rate of pension was warranted.
The applicant sought review of these decisions with the VRB. In the course of the VRB review, the applicant withdrew all claims excepting PTSD. Through the June 1998 'informal' claim the applicant had sought acceptance of a condition identified as "anxiety condition". In the formal claim in September 1998 this was specified further as "depression, irritability, bad nerves and anxiety" (T8).
The VRB in its decision dated 22 May 2000 accepted that the applicant had PTSD, but affirmed the respondent's decision of 12 April…

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 Arnott and Repatriation Commission

Details

AGLC: Arnott and Repatriation Commission [2001] AATA 891
Case: [2001] AATA 891
Decision Date: 24 October 2001

CaseChat Overview and Summary

In the matter of Arnott and the Repatriation Commission, the applicant, a former serviceman, sought a review of the Commission's decision to deny his claim for a war-caused depressive disorder. The case was heard by the Administrative Appeals Tribunal on 9 August 2001, with Mr P. Leifman representing the applicant and Mr K. Rudge representing the Commission. The Tribunal considered the documents submitted under the Administrative Appeals Tribunal Act 1975, including the applicant's Exhibits A-C and the Commission's Exhibits 1-7.

The legal issues before the Tribunal centred on whether the applicant's depressive disorder was caused by his service in the Australian Army, specifically during his deployment in Vietnam between 28 November 1969 and 1 November 1970. The Tribunal had to assess the applicant's evidence, including his oral testimony and the documentary evidence, to determine if his condition met the criteria for a war-caused disease under relevant legislation. The Tribunal also needed to consider the appropriate rate of pension if the applicant's claim was upheld.

The Tribunal found that the applicant had provided credible evidence of his service in Vietnam and the stressful experiences he encountered there, which could reasonably be considered to have contributed to his depressive disorder. The Tribunal accepted the applicant's evidence that he was exposed to mortar fire and other combat-related activities, which were significantly different from his duties as a cook in Australia. The Tribunal determined that these experiences were sufficient to classify his condition as war-caused. Consequently, the Tribunal set aside the Commission's decision and substituted its own decision that the applicant's depressive disorder was indeed war-caused. The Tribunal also agreed with the parties that the appropriate rate of pension should be 90 per cent of the General Rate, effective from 8 March 1998, three months prior to the date of the informal claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the hearing of this matter on 9 August 2001, Mr P. Leifman, solicitor, represented the applicant, and Mr K. Rudge, advocate, represented the respondent. The Tribunal had the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 before it. The applicant's Exhibits A-C and the respondent's Exhibits 1–7 were in evidence. BACKGROUND The applicant was born on 15 September 1949. He served in the Australian Army from 20 November 1968 to 19 November 1977. He was assigned to the Australian Army Catering Corp. Between 28 November 1969 and 1 November 1970 he served in Vietnam. He was discharged from the army on 19 November 1977. On 15 June 1998, the applicant made an "informal" claim for a number of medical conditions. This was followed by a formal claim on 8 September 1998. In a decision made on 12 April 1999, the respondent's delegate decided to grant only those parts of the claim that related to bilateral sensori-neural hearing loss and gastro-oesophageal reflux. The delegate further decided that payment at 80 per cent of the General Rate of pension was warranted. The applicant sought review of these decisions with the VRB. In the course of the VRB review, the applicant withdrew all claims excepting PTSD. Through the June 1998 'informal' claim the applicant had sought acceptance of a condition identified as "anxiety condition". In the formal claim in September 1998 this was specified further as "depression, irritability, bad nerves and anxiety" (T8). The VRB in its decision dated 22 May 2000 accepted that the applicant had PTSD, but affirmed the respondent's decision of 12 April 1999 that the applicant's condition was not war-caused. The applicant sought review with the Tribunal on 4 July 2000.EVIDENCE The applicant gave oral evidence to the Tribunal. He said that he enlisted in 1968 and was posted to 8 Battalion Royal Australian Regiment (8 RAR) as a cook. He served 12 months in Vietnam from November 1969 to November 1970. 8 RAR was based at Nui Dat. He said that for the first 5 months in Vietnam he was with Administration Company of 8 RAR (Admin Coy) and worked as a cook in the officers' and sergeants' mess. He later transferred to A Company (A Coy) 8 RAR when a cook with that company became sick and returned to Australia. He recalled this occurred about March or April 1970. At the hearing he quoted from extracts from the diary of Corporal Robert Norris, dated 6 April and 8 April 1970, cited in Robert Hall's "Combat Battalion: the Eighth Battalion in Vietnam" (Allen and Unwin, 2000). Corporal Norris' diary referred to an improvement in the food at camp at Nui Dat, which the corporal attributed to the arrival of a new cook in A Coy. The applicant said that he believes that this refers to him and that the extract supports the date when he says he transferred to A Coy. After the transfer to A Coy the applicant said he was more involved than he had been in Admin Coy with soldiers going out on patrol. He also had more picket duties. His evidence also was that he would sometimes ride out on trucks dropping soldiers off on patrols. He said it was his choice to do this, for "something to do", not an assigned task. Though he was mostly at Nui Dat, he said that with both Admin Coy and when transferred to A Coy he was sent out to Fire Support Bases (FSB's) to cook or to do sentry duties.

Evidence

Evidence Before The Court

The VRB in its decision dated 22 May 2000 accepted that the applicant had PTSD, but affirmed the respondent's decision of 12 April 1999 that the applicant's condition was not war-caused. The applicant sought review with the Tribunal on 4 July 2000.EVIDENCE The applicant gave oral evidence to the Tribunal. He said that he enlisted in 1968 and was posted to 8 Battalion Royal Australian Regiment (8 RAR) as a cook. He served 12 months in Vietnam from November 1969 to November 1970. 8 RAR was based at Nui Dat. He said that for the first 5 months in Vietnam he was with Administration Company of 8 RAR (Admin Coy) and worked as a cook in the officers' and sergeants' mess. He later transferred to A Company (A Coy) 8 RAR when a cook with that company became sick and returned to Australia. He recalled this occurred about March or April 1970. At the hearing he quoted from extracts from the diary of Corporal Robert Norris, dated 6 April and 8 April 1970, cited in Robert Hall's "Combat Battalion: the Eighth Battalion in Vietnam" (Allen and Unwin, 2000). Corporal Norris' diary referred to an improvement in the food at camp at Nui Dat, which the corporal attributed to the arrival of a new cook in A Coy. The applicant said that he believes that this refers to him and that the extract supports the date when he says he transferred to A Coy. After the transfer to A Coy the applicant said he was more involved than he had been in Admin Coy with soldiers going out on patrol. He also had more picket duties. His evidence also was that he would sometimes ride out on trucks dropping soldiers off on patrols. He said it was his choice to do this, for "something to do", not an assigned task. Though he was mostly at Nui Dat, he said that with both Admin Coy and when transferred to A Coy he was sent out to Fire Support Bases (FSB's) to cook or to do sentry duties. The applicant gave evidence of five experiences in Vietnam, which he found stressful. The first occurred about three months after he went to Vietnam while he was with still with Admin Coy. He was sent out to FSB Isa for some eight days to prepare meals. At FSB Isa he said he first witnessed outgoing mortar bombardment, which he observed from a distance of ten 10 to 20 feet. He could see the mortar bombs exploding over the nearby mountain range. He had not seen mortar fire before that. He said the experience was "fascinating and terrifying at the same time" (Transcript p13). He believed that the mortar fire was part of an operation against the enemy. The second incident also involved mortar fire and also occurred during the eight days he was at FSB Isa. He said that he believed the incident involved incoming mortar fire. On this occasion he was sleeping in a trench. He said two detonations and a flash "a little distance" away woke him. He said that he observed outgoing fire but after he saw the flash, all firing ceased. He said he was told next morning that mortars had been fired. He conceded in cross-examination that the mortars may have been a kilometre away or more. He recalled being scared, as he was on his own. However he said he did not get up from the trench to look.

Decision

Reasons for decision

The question of rate of assessment was not canvassed in submissions at the hearing. The parties advised the Tribunal in writing, after the hearing that they were in agreement that, should the applicant be successful, the appropriate rate of pension would be 90 per cent of the General Rate. As Dr Cooper's and Dr Strauss's reports are essentially in agreement about the level of disability as a result of the condition, that assessment is appropriate and the Tribunal adopts it. That assessment will take effect from 8 March 1998, three months prior to the date of the informal claim. DECISION The Tribunal sets aside the decision under review and substitutes the decision that the applicant's depressive disorder is a war-caused disease. Pension is payable to the applicant at 90 per cent of the General Rate on and from 8 March 1998.I certify that the sixty-six [66] preceding paragraphs are a true copy of the reasons for the decision herein of M.J.Carstairs, Member(sgd) Catherine Thomas ClerkDate of hearing: 9 August 2001Date of decision: 24 October 2001Solicitor for applicant Mr P. Leifman, Peter J. Liefman, Barrister & SolicitorSolicitor for respondent: Mr K. Rudge, Departmental Advocate

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.