Bowd and Repatriation Commission - [2011] AATA 59

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 59
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3956

VETERANS’ AFFAIRS DIVISION )

Re RAYMOND BOWD

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Mr Egon Fice, Senior Member

Dr Kerry Breen, Member

Date4 February 2011
PlaceMelbourne

Decision The Tribunal affirms the decision made by the Veterans’ Review Board on 22 July 2009.

..........[sgd] Egon Fice...........
Senior Member

VETERANS’ AFFAIRS – Post Traumatic Stress Disorder – Vietnam – disability pension – traumatic event – associated with war service – standard of proof – operational service – diagnosis on the balance of probabilities – Statement of Principles – reasonable hypothesis – experiencing a server stressor – clinical onset – being confronted with an event – DSM-IV-TR – psychiatrist – generalised anxiety disorder – independent expert medical practitioner
Veterans’ Entitlements Act 1986 ss 120, 120(1), 120(4)
Byrnes v Repatriation Commission (1993) 177 CLR 564
Mines v Repatriation Commission [2004] 86 ALD 62
National Justice Compani Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327
Woodward and Another v Repatriation Commission (2003) 131 FCR 473
Statement of Principles – Post Traumatic Stress Disorder - Instrument No 5 of 2008
Statement of Principles – Post Traumatic Stress Disorder - Instrument No 3 of 1999 as amended by No 54 of 1999
4^th Edn American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders
Diagnostic Criteria for 309.81 Posttraumatic Stress Disorder
Chambers 21^st Century Dictionary
Ham, Paul ‘Vietnam: The Australian War’ (Harper Collins Publishers, 2004)
REASONS FOR DECISION

4 February 2011 Mr Egon Fice, Senior Member
Dr Kerry Breen, Member

1.      Mr Raymond Bowd was a National Serviceman having been conscripted into the Australian Army on 1 October 1969. He had operational service in South Vietnam between 15 February 1971 and 9 October 1971. He was discharged on 30 November 1971.
2.      Mr Bowd made a number of applications to the Repatriation Commission (the Commission) for a disability pension which was granted. Subsequently, on 8 June 2007 he applied for a pension for incapacity arising from a urinary tract infection. The Commission disallowed that claim. On 22 June 2007, Mr Bowd sought a review of the Commission’s decision before the Veterans’ Review Board (the VRB). Prior to the VRB making a decision regarding that application, on 15 December 2008, Mr Bowd lodged a further claim for incapacity for Post Traumatic Stress Disorder (PTSD) and for an increase in the rate of pension for his previously accepted disabilities.
3.      On 6 March 2009 the Commission accepted Mr Bowd’s application for an increase in the pension and increased his pension to 30 per cent of the general rate. However, the Commission denied his claim for PTSD. On 25 March 2009 Mr Bowd lodged an application with the…

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 Bowd and Repatriation Commission

Details

AGLC: Bowd and Repatriation Commission [2011] AATA 59
Case: [2011] AATA 59
Decision Date: 4 February 2011

CaseChat Overview and Summary

The applicant, Bowd, sought a disability pension on the grounds of Post Traumatic Stress Disorder (PTSD) associated with his service in Vietnam. The dispute centred on whether the Tribunal could infer that the applicant had experienced a traumatic event during his service that met the threshold for a diagnosis of PTSD. The matter was heard by the Social Security Appeals Tribunal (SSAT). The central legal issue was whether the Tribunal could conclude, on the balance of probabilities, that the applicant experienced a traumatic event during his service in Vietnam that led to the clinical onset of PTSD. This required the Tribunal to assess whether the evidence supported a reasonable hypothesis that the applicant was confronted with an event that would have caused a reasonable person in his position to experience severe stress, as outlined in the DSM-IV-TR criteria.

The Tribunal examined the applicant's claim against the Statement of Principles concerning PTSD and the diagnosis made by the psychiatrist. It also considered the evidence provided by an independent expert medical practitioner. The Tribunal held that it could not be satisfied on the balance of probabilities that the applicant had experienced a traumatic event during his service that was severe enough to cause PTSD. The Tribunal found that the applicant's claim of a traumatic event was not sufficiently supported by the evidence provided. The Tribunal emphasised that for a diagnosis of PTSD, there must be a clear link between the traumatic event and the symptoms experienced, and this link needed to be established with a reasonable degree of medical certainty.

The Tribunal concluded that the applicant had not met the required standard of proof to establish that his PTSD was associated with his service in Vietnam. As a result, the Tribunal affirmed the decision of the Veterans' Review Board, rejecting the applicant's claim for a disability pension. This decision underscores the necessity for clear and compelling evidence to substantiate claims of PTSD related to military service.

Orders

Orders of the court

The Tribunal affirms the decision made by the Veterans’ Review Board on 22 July 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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