Atkinson and Repatriation Commission

Case [2002] AATA 491

DECISION AND REASONS FOR DECISION [2002] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/63

VETERANS' APPEALS  DIVISION       )       
           Re      GREGORY ATKINSON    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Brigadier IRW Brumfield, Member          

Date21 June 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review.           

(Sgnd)
   Brigadier IRW Brumfield
  Member
CATCHWORDS
VETERANS' AFFAIRS - whether the conditions substance abuse or dependence and generalised anxiety are war-caused.

Veterans' Entitlements Act 1986 ss 9, 120 120A, 120B, 196B

Repatriation Commission v Gorton (2000) 65 ALD 609
Re Budworth and Repatriation Commission [2000] AATA 127
Re Mulvany and Repatriation Commission [2000] AATA 535
Howe v Repatriation Commission (1999) 59 ALD 309
Jehns and Repatriation Commission [2000] AATA 484
Re Cranage and Repatriation Commission [2000] AATA 1119
Repatriation Commission v Olsen [2002] FCA 12
Re Doust and Repatriation Commssion [2001] AATA 81
Hill v Repatriation Commission [2001] FCA 1775
O'Neill v Repatriation Commission [2001] FCA 1492
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

21 June 2002         Brigadier IRW Brumfield, Member   

  1. This is an application by Gregory Atkinson for review of that part of a decision by the Repatriation Commission which rejected the applicant's claim for pension which determined, inter alia, that psychoactive substance abuse or dependence was not war-caused and assessed pension at 90% of the General Rate.  On 19 October 1999 the Veterans' Review Board varied the decision by adding the diagnosis of generalised anxiety and affirmed the decision as varied.

  2. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T6) and the following documents which were tendered as exhibits.

  • For the Applicant

Exhibit A1          Letter from Mr M Smith, Department of Veterans' Affairs dated

26 November 2001 to Messrs Streeting Haney, Lawyers

Exhibit A2          Report of Dr Peter Mulholland dated 19 November 2001

  • For the Respondent

Exhibit R1         Report of Dr William Kingswell dated 3 December 2000

  1. The method of proceeding in this matter, as set out in Exhibit A1, was agreed between the parties and the applicant gave oral evidence.

  2. The applicant was born on 14 August 1946 and served in the Australian Army from 19 April 1967 until his discharge on 18 March 1969, after completion of his National Service obligation.  He rendered operational service from 6 December 1968 to 10 January 1969 and from 10 February 1969 to 15 March 1969.

  3. The applicant ceased work on 20 October 1997 and was in receipt of a 90% disability pension.  He is also in receipt of a disability support pension.
    Standard of Proof

  4. The provisions of subsections 120(1) and 120(3) of the Veterans' Entitlements Act 1986 ("the Act") apply to the applicant's periods of operational service.  That requires that a reasonable hypothesis be raised connecting the applicant's conditions with his operational service that is not dispelled beyond reasonable doubt.  As the application was lodged after 1 June 1994, the Tribunal is required to apply relevant Statements of Principle…

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Atkinson and Repatriation Commission [2002] AATA 491
Case
[2002] AATA 491
Decision Date

CaseChat Overview and Summary

The case involves a dispute between the applicant and the Repatriation Commission concerning the eligibility for war-caused conditions of substance abuse or dependence and generalised anxiety. The applicant argued that his conditions were a result of his service, while the Repatriation Commission contested this claim. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the applicant's conditions were war-caused and thus eligible for veterans' benefits under the Veterans' Entitlements Act 1986.

The central legal issue was whether the applicant's conditions, substance abuse or dependence and generalised anxiety, were caused by his military service. The Tribunal had to consider the evidence provided, including the applicant's own statements, his service records, and psychiatric evaluations, to ascertain if these conditions were connected to his service. The Tribunal also needed to assess whether the conditions fit within the criteria established by relevant statutory instruments, such as Statements of Principles (SoPs) issued under section 196B of the Act.

In its decision, the Tribunal found that the applicant suffered from psychoactive substance abuse and generalised anxiety, as diagnosed by his treating psychiatrist, Dr Freed. The Tribunal considered the differing opinions of other psychiatrists but ultimately gave more weight to Dr Freed's long-term observations. The Tribunal examined the evidence to determine if these conditions were war-caused, following the steps outlined in previous cases such as Repatriation Commission v Delidio. The Tribunal concluded that while the applicant's service experiences, particularly learning of the death of Corporal Pearce, may have influenced his drinking, there was no direct evidence linking his psychiatric conditions to his service. Therefore, the Tribunal found that the applicant's conditions were not war-caused.

The Tribunal's final order was that the applicant's claims for war-caused substance abuse or dependence and generalised anxiety were dismissed. The decision was grounded in the lack of a direct connection between the applicant's psychiatric conditions and his service, as well as the absence of a relevant SoP that would support a hypothesis linking the conditions to his military service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He was not told much about Vung Tau before he arrived but earlier he had said that some of the crew had been there on a previous trip. He said that it was a port and that there was enemy activity in the area. He learned this information on arrival in Vung Tau. When asked why he was not in uniform when leaving the ship, he said that he "guessed that he was on leave". His shipmates who went on leave reported to him on such things as "well – go to this bar or go to that bar", "the food is good here but it's crook there", "just general information".Other Evidence The other evidence before the Tribunal came from the s 37 documents, including reports from Dr Freed, the applicant's treating psychiatrist and reports from two psychiatrists, Dr Kingswell (Exhibit R1) and Dr Mulholland (Exhibit A2). There is no basic difference in the history given to each doctor. Dr Freed noted, however, that "his story came out in dribs and drabs over a period". In relation to his psychiatric condition there is some difference of opinion. Both Drs Kingswell and Mulholland agree with Dr Freed that alcohol abuse preceded any other diagnosis of a psychiatric disorder. Both Drs Kingswell and Mulholland make the point that whilst the applicant may have experienced considerable subjective anxiety, it remains for the Tribunal to determine whether the experience or experiences encountered constitute stressful events. Both psychiatrists are highly regarded and their opinions require careful consideration but whereas Drs Mulholland and Kingswell had reported on the applicant after studying the material sent to them and then interviewed him, once in the case of Dr Kingswell and twice in the case of Dr Mulholland, Dr Freed has been the treating psychiatrist since 1997 and his reports, covering a long period, must carry more weight than those of his colleagues. Having said that, there are points of agreement between the psychiatrists and each provides additional contributions. These include: Dr Freed's reports of 5 March and 3 November 1998 are more in the nature of a response to a patient's treating local medical officer and answers to DVA questionnaire and the Tribunal must take this into account when assessing the material provided. The Tribunal now finds it necessary to define the appropriate diagnosis for the conditions claimed by the applicant. The reports by Dr Freed make it clear that the applicant suffers from alcohol abuse. Dr Freed arrived at this diagnosis in his report of 7 May 1998. He also provided a diagnosis of what he calls generalised anxiety. As seen above, Dr Mulholland has a different diagnosis for both these conditions but as he was not called to give evidence no further clarification can be made and whilst Dr Kingswell appears to be closer to Dr Freed in his diagnosis he, too, was not available to clarify his position. The Tribunal will follow the diagnosis of the treating psychiatrist Dr Freed and finds that the applicant is suffering from alcohol abuse (psychoactive substance abuse or dependence) and generalised anxiety.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

From the s 37 documents (the "T" Documents), several other points arose, in particular, Folio 63 which was a Statutory Declaration made by the applicant on 12 May 1990. Here it appears that the most important event during his first stay in Vung Tau was learning of the death of Corporal Pearce. The other two events, and in particular the truck trip to the American PX, are in the background. The applicant states that on learning of Corporal Pearce's death he began to drink heavily to cope. His service records at Folios 2–4 disclose minor infractions but no mention of disciplinary action for drunkenness during the totality of his service which is remarkable in the light of his alleged heavy drinking and remaining in an alcoholic daze for the rest of his service.Submissions and Consideration In making submissions for the applicant, Counsel drew the Tribunal's attention to the decision in Repatriation Commission v Delidio (1998) 83 FCR 82 and the steps to be followed in reaching a decision. These steps are:"1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be 'reasonable' and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (Tribunal's emphasis) It was submitted that it was common ground that the applicant had psychoactive substance abuse. In was submitted that in looking at SoP No 76 of 1998 that Factor 5(b) was important.