Ashby and Repatriation Commission - [2002] AATA 647

DECISION AND REASONS FOR DECISION [2002] AATA 647

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2001/612, 730

VETERANS' APPEALS DIVISION       )
           Re      GRAHAM ASHBY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date2 August 2002
PlaceBrisbane

Decision The decisions of the Tribunal are: 1. In matter Q2001/612 – The Tribunal sets aside that part of the decision under review refusing the applicant's claim for Post Traumatic Stress Disorder and in substitution therefor the Tribunal determines that the applicant suffers from war-caused PTSD; and 2. In matter Q2001/730 – The Tribunal sets aside the decision under review that the applicant's pension be assessed at 50% of the General Rate to operate from and including 1 February 1998 and in substitution therefor determines that the applicant's pension is to be assessed at 100% of the General Rate to operate from and including 1 February 1998.

.................(Sgd).................
Mr I R Way
Member
CATCHWORDS
VETERANS AFFAIRS – Veterans' Entitlements – whether PTSD war-caused – whether pension correctly assessed – whether applicant qualifies for the Special Rate of pension

Veterans' Entitlements Act 1986 ss 9, 24, 28, 120, 196

Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Smith (1987) 74 ALR 537
Hall v Repatriation Commission (1994) 33 ALD 454
Repatriation Commission v Deledio (1998) 49 ALD 193
Cavell v Repatriation Commission (1988) 9 AAR 539
Banovich v Repatriation Commission (1986) 69 ALR 395
Repatriation Commission v Strickland (1990) 12 AAR 412
Fox v Repatriation Commission (1997) 45 ALD 317
Bowman v Repatriation Commission (1990) 19 ALD 794

REASONS FOR DECISION

2 August 2002 Mr I R Way, Member

This is an application by Graham Ashby for review of a decision of the Repatriation Commission dated 23 September 1998 which determined, among other things, that the applicant did not suffer from Post Traumatic Stress Disorder (PTSD), that bilateral pterygium was not war-caused, and assessed pension at 40% of the General Rate.
The Veterans' Review Board (VRB) on 26 June 2001, affirmed the decision regarding Post Traumatic Stress Disorder, set aside the decision regarding bilateral pterygium and determined that the condition was war-caused and assessed the applicant's rate of pension at 50% of the General Rate.
This matter is contested by the applicant on the grounds that:
(a)the applicant is entitled to benefit pursuant to the Veterans' Entitlements Act 1986 (the Act) in respect of PTSD; and
(b)the applicant's pension is not correctly assessed at 50% of the General Rate and that the applicant's rate of pension should be higher and in particular at the Special Rate.
With respect to the questions of entitlement and assessment, the Tribunal had before it two sets of documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 as follows:
· Entitlement – T1 – T6 (Tribunal Reference Q2001/612)
· Assessment – T1 – T24 (Tribunal Reference Q2001/730)
The Tribunal also received into evidence the following documents:
Exhibit A1 Statement of Graham Ashby dated 7 May 2002
Exhibit R1…

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 Ashby and Repatriation Commission

Details

AGLC: Ashby and Repatriation Commission [2002] AATA 647
Case: [2002] AATA 647
Decision Date: 2 August 2002

CaseChat Overview and Summary

In the case of Ashby v Repatriation Commission, the applicant, Mr Ashby, sought a determination of his entitlement to a disability pension under the Veterans' Entitlements Act 1986. The central issue before the court was whether Mr Ashby's post-traumatic stress disorder (PTSD) was war-caused, thereby qualifying him for the Special Rate of pension. The court had to decide on the correct assessment of Mr Ashby's pension based on the evidence presented regarding his service in Vietnam and the medical opinions on his condition.

The court examined conflicting medical evidence, with Dr Lawford and Dr Wright diagnosing PTSD, while Dr Wainwright suggested personality difficulties instead. The Tribunal accepted the respondent's view that the events Mr Ashby described during his service in Vietnam occurred. The court found Mr Ashby's account of his experiences and emotional responses credible, supporting the diagnosis of PTSD by Dr Lawford and Dr Wright. The court also accepted Dr Lawford's explanation for Mr Ashby's revisiting Vietnam and watching war-related media, considering it reasonable behaviour for someone with PTSD. Despite some inconsistencies identified by Dr Wainwright, the Tribunal concluded that these did not undermine the overall credibility of Mr Ashby's testimony.

The court ultimately decided in favour of Mr Ashby, finding that his PTSD was indeed war-caused. Consequently, Mr Ashby was entitled to the Special Rate of pension. The court's decision was grounded in the acceptance of Mr Ashby's credible account of his war experiences and the supporting medical evidence. This ruling affirmed Mr Ashby's entitlement to the appropriate level of pension under the Act.

Orders

Orders of the court

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Background

Background to the litigation

Dr B Lawford and Dr J Wainwright gave evidence by telephone and the applicant gave oral evidence.Background The applicant was born on 7 June 1946 and submitted his initial claim for disability pension and medical treatment relating to this matter, on 1 May 1998. The applicant served in the Australian Army from 13 December 1967 to 12 December 1973 and from 19 February 1975 to 17 September 1979. The applicant rendered operational service in Vietnam from 10 September 1968 to 12 September 1969 and from 17 May 1970 to 9 March 1972. The applicant rendered defence service, pursuant to the Act, from 7 December 1972 to 12 December 1973 and from 19 February 1975 to 17 September 1979. The applicant has the following conditions accepted as service related:· Malignant melanoma of the skin· Bilateral sensorineural hearing loss with tinnitus· Chronic solar skin damage· Tinea· Bi-lateral Pterygium The following conditions have not been accepted as service related: The applicant's claim is being pursued on the basis of his operational service and not on the basis of his defence service. Whether the applicant suffers PTSD requires the Tribunal to determine whether it is reasonably satisfied that the diagnosis of this condition in the applicant is established (see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20). If the applicant suffers from PTSD that disease is war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The relevant provisions of the Act are as follows:"9 War-caused injuries or diseases(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;120 Standard of proof(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease; or(c)that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994:(a)a claim under Part II that relates to the operational service rendered by a veteran;(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or(b)has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a)a Statement of Principles determined under subsection 196B(2) or (11); or(b)a determination of the Commission under subsection 180A(2);that upholds the hypothesis.(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person;as the case may be."

Evidence

Evidence Before The Court

There is no dispute between the parties and the Tribunal accepts that the assessment period in this matter is from 1 May 1998, the date of the applicant's claim, to the present date. Applicant's Evidence In his written statement (Exhibit A1) the applicant stated he rendered operational service in Vietnam as a combat infantryman undertaking continual operations against the enemy as a forward scout and as a section commander. He stated:"6. I was personally involved in some very stressful incidents due to major contacts that I had with the enemy which resulted in Australian casualties.7. I was personally involved with dragging and carrying friends and fellow soldiers onto dust off helicopters and into armoured personal carriers for casualty evacuation. Most of my fellow soldiers were bleeding heavily and some had lost limbs.8. I saw friends and soldiers who I knew dismembered and shockingly injured. There were soaked in their own blood.9. I remember feeling stunned and momentarily frozen. I was frightened. It was hard to believe that what was happening was real. I remember shaking and thinking that it was my turn next. I thought that I would end up like these bodies, torn apart.…11. I was involved in many major contacts which resulted in Australian casualties." The applicant in his statement went on to detail the numerous major contacts he had with the enemy which resulted in Australian casualties (KIA & WIA), including assaults on enemy bunkers, mine incidents, assaults on the enemy and by the enemy and ambushes of the enemy. The applicant described his feelings on many of these occasions as "extreme fear and nervous strain", "being paralysed with fear", "angry and shaken", "sickening and distressing", "total shock" and "severe emotional distress". With respect to recall of his contacts with the enemy he said:"35. Recalling these events has been emotionally disturbing for me.36. I have intrusive thoughts of my service on a daily basis. There are smells and sounds that remind me of these past events." In his oral evidence the applicant told the Tribunal that he gets unpleasant and intrusive thoughts about his experiences in Vietnam every five to ten minutes on every day except while he is asleep. He said he has difficulty in falling asleep because of hypervigilance and being onguard wondering what might happen next. He said he is irritable and gets angry all the time, looses concentration over short periods of time, gets scared when people are behind him. He said that crowded areas, smells of decaying vegetation and the noise of helicopters caused him to think about his experiences in Vietnam. He said that he recalled both good and bad things that happened to him in Vietnam. He said he watches the "odd few" television/video programs about the war in Vietnam, mainly to see if they accurately portray what happened. With respect to his first tour of duty in Vietnam the applicant stated that he spent the first six months with A Coy 1 Battalion and then when the Battalion moved to Singapore he stayed on for the remainder of his twelve months tour with 5 Battalion.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It was submitted for the respondent that the decisions under review should be affirmed. Consideration The first question to be addressed by the Tribunal is whether the applicant suffers a psychiatric condition meeting the description provided in paragraph 2 of Instrument No 3 of 1999 (as amended by No 54 of 1999) concerning PTSD. As is often the case in matters such as this, there is conflicting medical opinion about the applicant's psychiatric condition, if any. On the one hand Dr Lawford, Consultant Psychiatrist, and Dr Clifford Wright, LMO, both are of the view that the applicant suffers from PTSD. On the other hand Dr Wainwright, Psychiatrist, is of the view that the applicant does not suffer from a psychiatric impairment rather that he suffers from personality difficulties. Central to assessing the weight to be given to these conflicting reports is the acceptance or otherwise of the applicant's history of events in Vietnam and his description of his feelings and responses to these events. At the outset it needs to be said that the respondent, after considering the available histories of Battalion operations in Vietnam at the relevant time, has accepted that events as set out by the applicant in his written statement did occur. The applicant's description of his feelings and responses to these events is of a subjective nature and it is here that the medical opinion diverges. Dr Lawford, the applicant's treating specialist and Dr Clifford Wright clearly are of the view that the applicant has honestly portrayed his feelings and responses. Dr Wainwright, while not saying that the applicant is not telling the truth, has cast doubt on the applicant's subjective statements because of inconsistencies, as he sees them, in the applicant's clinical presentation and testing; and the applicant's activities such as visiting Vietnam and watching television shows and videos about the Vietnam war. The Tribunal is satisfied that the applicant did experience horrific events in Vietnam. The Tribunal is of the view that it would be remarkable if a young man such as the applicant was at the time, did not respond to these events with intense fear and/or horror. In this respect the Tribunal accepts the applicant's evidence that he did indeed respond with intense fear and horror as he has stated. These findings give weight to the credit of the applicant. So does Dr Lawrence's explanation for the applicant revisiting Vietnam and watching television shows/videos about Vietnam, which the Tribunal accepts as reasonable. While the Tribunal is troubled by the inconsistencies found by Dr Wainwright in the applicant's clinical presentation compared with the applicant's subjective views about his responses and feelings, and the applicants lack of demonstrated stress or loss of concentration during approximately one and a half hours of giving evidence to the Tribunal, nevertheless the Tribunal accepts Dr Lawrence's explanation that the applicant has heightened avoidance characteristics and can put on a good front when confronted by new situations or new faces.