Cameron and Repatriation Commission (Veterans' entitlements) - [2022] AATA 3807

Cameron and Repatriation Commission (Veterans' entitlements) [2022] AATA 3807 (11 November 2022)
Division:VETERANS' APPEALS DIVISION
File Number: 2020/1324
Re:Malcolm Cameron
APPLICANT

AndRepatriation Commission
RESPONDENT

Decision
Tribunal:Senior Member Dr M Evans-Bonner
Date:11 November 2022
Place:Perth

The Reviewable Decision of the Veterans’ Review Board dated 10 December 2019 to “affirm the decision under review regarding [Mr Cameron’s] Post Traumatic Stress Disorder” (PTSD), is set aside and the matter is remitted to the Respondent for reconsideration with the direction that Mr Cameron’s PTSD is defence caused.
...............[Sgd].........................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Veterans’ Entitlements Act – Statement of Principles – eligibility for an increase in pension – post-traumatic stress disorder (PTSD) – whether connected to service – peacetime injury – decision under review set aside and remitted with a direction that the Applicant’s PTSD is defence caused – power imbalance between the veteran and the Respondent both legally and financially – recommendations for reform suggested to address power imbalance and to assist veterans in similar proceedings
LEGISLATION
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth) ss 70, 70(5)(a), 70(5)(d), 120(4), 120B(3), 196B, 196B(14)
CASES
Border v Repatriation Commission (No 2) [2010] FCA 1430
Gilkinson v Repatriation Commission [2011] FCAFC 133
Kattenberg v Repatriation Commission [2002] FCA 412
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principles concerning Posttraumatic Stress Disorder No. 83 of 2014 (Repatriation Medical Authority, 24 September 2018)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
11 November 2022
The application

Mr Cameron has applied to this Tribunal for a review of part of a decision of the Veterans’ Review Board (VRB) dated 10 December 2019 (T40.2) (Reviewable Decision).
The decision that Mr Cameron appealed to the VRB was a determination made by a delegate of the Department of Veterans’ Affairs (Department) dated 7 March 2019 (T24). That determination denied acceptance of his claim for a disability pension based on post-traumatic stress disorder (PTSD) and alcohol use disorder (AUD).
Mr Cameron was partly successful in his appeal to the VRB. On 10 December 2019, the VRB affirmed the determination with respect to PTSD, but set it aside with respect to AUD. The VRB recognised that his AUD was defence caused (T40.2).
It is the VRB’s affirmation of the 7 March 2019 determination with respect to PTSD that Mr Cameron is appealing to this Tribunal.
The issue
The issue before me is whether I am reasonably satisfied (s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (VEA)) that Mr Cameron’s PTSD is due to his defence service (defence caused) under the relevant provisions of the VEA and the applicable Statement of Principles.
Mr Cameron is in receipt of a partial pension, but success in this application will result in the matter being remitted to the Respondent to assess a further increase in his pension.
submissions
Mr Cameron…

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: [2022] AATA 3807
Decision Date: 11 November 2022

CaseChat Overview and Summary

This matter concerned an appeal by Mr Cameron to the Administrative Appeals Tribunal (the Tribunal) against a decision of the Veterans’ Review Board. The Veterans’ Review Board had affirmed a prior determination that Mr Cameron's post-traumatic stress disorder (PTSD) was not defence-caused, although it had recognised his alcohol use disorder as defence-caused. Mr Cameron sought a review of the PTSD determination, as success would lead to an assessment for an increased pension.

The central legal issue before the Tribunal was whether it was reasonably satisfied, pursuant to section 120(4) of the *Veterans’ Entitlements Act 1986* (Cth), that Mr Cameron's PTSD was due to his defence service. This required the Tribunal to consider whether specific incidents during his service, namely a fall down a mine shaft (the Falling Incident) or the discovery of a red texta mark on his neck (the Red Texta Incident), constituted a "category 1A stressor" as defined by the applicable Statement of Principles. The Respondent accepted that Mr Cameron suffered from PTSD and that the Falling Incident occurred, but contended that neither incident was sufficient to be considered a defence-caused stressor, suggesting instead that his PTSD arose from post-service stressors.

The Tribunal found Mr Cameron to be an honest and credible witness, accepting his evidence regarding the Falling Incident, the Red Texta Incident, and the subsequent ostracisation he experienced. The Tribunal also noted the general consensus in the medical evidence that Mr Cameron suffers from PTSD. Ultimately, the Tribunal was reasonably satisfied that Mr Cameron's PTSD was defence-caused. The Tribunal set aside the Veterans’ Review Board's decision and remitted the matter to the Respondent with a direction that Mr Cameron's PTSD be accepted as defence-caused. The Tribunal also commented on the power imbalance between veterans and the Repatriation Commission, suggesting reforms to address this.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During cross-examination, Mr Cameron described that when he fell parts of his body hit a steel plate which caused injuries to his head (requiring stitches above and below his eye), a broken arm, injuries to his knees and ankle, and damage to the balance caps in his ears. Mr Cameron also stated that he was able to self-diagnose his injuries, which was something he learnt in the military, by making sure his toes were moving, his ankles were moving, legs, then hips and so on (transcript/41). The veracity of Mr Cameron’s evidence I found Mr Cameron to be an honest and credible witness. It was evident that the process of pursuing this compensation claim had been distressing to him, and the process of giving evidence at the hearing was difficult for him. Mr Cameron is to be commended for giving evidence under those circumstances. As I mentioned above, when these proceedings commenced, the Respondent questioned whether the Falling Incident had occurred. After hearing Mr Cameron’s evidence at the hearing, the Respondent obtained instructions and confirmed that the Respondent accepted that the incident occurred. After hearing Mr Cameron’s evidence, I have no reason to doubt him. I believe Mr Cameron to be truthful and I find that he gave evidence to the best of his recollection. I accept his evidence concerning his ostracisation following his medical downgrading. I accept that the Falling Incident and Red Texta Incident occurred in the manner described by Mr Cameron, and that those incidents affected Mr Cameron in the manner he described. does MR CAMERON suffer from PTSD? There is general consensus in the medical evidence before me that Mr Cameron suffers from PTSD. For example, in a letter dated 3 April 2018, Consultant Psychiatrist Dr Matthew Samuel wrote that Mr Cameron had completed a 10-week trauma recovery program between January and March 2018 to assist him to manage the symptoms associated with PTSD (ST13/724). In a report dated 5 November 2019 (ST11/579), Dr Samuel stated a diagnosis of “PTSD and Alcohol Use Disorder” for Mr Cameron. In a letter dated 24 May 2018 (ST12/656), Clinical Psychologist Jasmine Trigwell stated that Mr Cameron, “reports experiencing a number of severe, complex, and long-standing symptoms consistent with a diagnosis of post-traumatic stress disorder”. A discharge summary from a hospital clinic dated 13 July 2018 (ST13/1143) states a “principal diagnosis” of “alcohol abuse” and an “additional diagnosis” of “PTSD anxiety”. In an appointment note dated 8 November 2019, Clinical Psychologist Jasmine Trigwell referred to Mr Cameron’s “typical fear-based symptoms of PTSD” (ST12/614). In a report dated 16 July 2020 (ST2/476-488), Dr O’Daly, who was Mr Cameron’s treating psychiatrist from January 2018, stated a diagnosis of “PTSD and alcohol use disorder in remission”, being standalone conditions, with alcohol use disorder being secondary to the underlying standalone condition of PTSD (ST2/483). On the next page of his report, Dr O’Daly stated that Mr Cameron “meets the criteria for category A” according to the DSM-V (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) diagnostic criteria.

Decision

Reasons for decision

Mr Cameron has applied to this Tribunal for a review of part of a decision of the Veterans’ Review Board (VRB) dated 10 December 2019 (T40.2) (Reviewable Decision). The decision that Mr Cameron appealed to the VRB was a determination made by a delegate of the Department of Veterans’ Affairs (Department) dated 7 March 2019 (T24). That determination denied acceptance of his claim for a disability pension based on post-traumatic stress disorder (PTSD) and alcohol use disorder (AUD). Mr Cameron was partly successful in his appeal to the VRB. On 10 December 2019, the VRB affirmed the determination with respect to PTSD, but set it aside with respect to AUD. The VRB recognised that his AUD was defence caused (T40.2). It is the VRB’s affirmation of the 7 March 2019 determination with respect to PTSD that Mr Cameron is appealing to this Tribunal. The issue The issue before me is whether I am reasonably satisfied (s 120(4) of the Veterans’ Entitlements Act 1986 (Cth) (VEA)) that Mr Cameron’s PTSD is due to his defence service (defence caused) under the relevant provisions of the VEA and the applicable Statement of Principles. Mr Cameron is in receipt of a partial pension, but success in this application will result in the matter being remitted to the Respondent to assess a further increase in his pension. submissions Mr Cameron claims that he suffered a category 1A stressor that caused his PTSD when he fell down a mine shaft in July 1988 whilst on a night-time navigation exercise (Falling Incident). At that time, he was completing a training course to achieve the rank of corporal. Additionally, or alternately, Mr Cameron submitted that during another training exercise, in 1992, when he awoke, he had a red texta (marker pen) mark on his neck which further exacerbated his hypervigilance and choking nightmares of having his throat cut (Red Texta Incident). The Respondent accepts that Mr Cameron suffers from PTSD but contends that I should not be reasonably satisfied that it was due to the Falling Incident or the Red Texta Incident. After Mr Cameron’s evidence at the hearing, the Respondent accepted that the Falling Incident occurred. However, the Respondent submitted that it was insufficient to constitute a category 1A stressor. Relying on the evidence of Dr Jonathan Spear, Consultant Psychiatrist, the Respondent submitted that the evidence supports a finding that Mr Cameron’s PTSD arose from stressors after his discharge from military service, for example, because of a workplace accident which occurred in February 1996 and therefore that Mr Cameron’s PTSD is not defence caused. The hearing This application was heard by Microsoft Teams on 6 July 2022 and 7 July 2022. Mr Cameron was represented by Mr D Dixon who was formerly a Senior Advocate at the RSL, but who has now retired and appeared pro-bono for Mr Cameron. I sincerely thank Mr Dixon for his efforts in assisting Mr Cameron pro-bono. The work of advocates such as Mr Dixon is extremely important to veterans’ and is to be commended. The Respondent was represented by Ms L Cooper from The Australian Government Solicitor.

Ratio Decidendi

Legal Principle Established

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