Cove and Repatriation Commission (Veterans' entitlements) [2020] AATA 1999 (29 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Numbers:2016/2145 and 2017/3890
Re:Alan Cove
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:29 June 2020
Place:Brisbane
I vary the decision under review in application 2145 of 2016 to decide that the irritable bowel syndrome condition of the applicant was war-caused and that he is entitled to a pension, the decision is otherwise affirmed. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 29 July 2014 which is the date when he lodged his claim.
The Tribunal does not have jurisdiction to determine the claim in application 3890 of 2017 as the applicant was not empowered to lodge the claim on 25 November 2016 by virtue of the operation of subsection 15(5) of the Act.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disability pension – claim for PTSD, irritable bowel syndrome and alcohol use disorder – whether conditions related to operational service – category 1A stressor – hostile or life-threatening environment – jurisdictional issue – whether PTSD can be determined if not claimed for under original application – decision under review varied – no jurisdiction found to review decision in respect of claim filed while earlier claim not finally determined
LEGISLATION
Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (Cth)
Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis) (No. 48 of 2017) (Cth)
Statement of Principles concerning irritable bowel syndrome No. 27 of 2011 (Cth)
Statement of Principles concerning irritable bowel syndrome (Reasonable Hypothesis) (No. 65 of 2019) (Cth)
Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (Cth)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Applicant 5611 of 2013 and Military Rehabilitation and Compensation Commission, Re (2014) 63 AAR 123; [2014] AATA 121.
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Bushell v Repatriation Commission (1992) 175 CLR 408
Cameron v Repatriation Commission (2003) 77 ALD 81; [2003] FCA 1323
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111
Dawson and Repatriation Commission, Re [2004] AATA 107
East v Repatriation Commission (1987) 16 FCR 517
Forrester v Repatriation Commission [2013] FCA 898
Gilkinson v Repatriation Commission (2011) 197 FCR 102; [2011] FCAFC 133
Hatherall and Repatriation Commission, Re (2002) 70 ALD 194; [2002] AATA 77
Kaluza v Repatriation Commission (2011) 122 ALD 448; [2011] FCAFC 97
Knight v Repatriation Commission (2010) 52 AAR 547; [2010] FCA 1134
Meehan and Repatriation Commission, Re [2003] AATA 429
Mills and Repatriation Commission, Re [1989] AATA 4
Owen v Repatriation Commission (1995) 59 FCR 93
Parotte and Repatriation Commission, Re [2004] AATA 536
Repatriation Commission v Bey (1997) 79 FCR 364
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- Case
- [2020] AATA 1999
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the applicant's PTSD and IBS were war-caused, and whether the Tribunal had jurisdiction to consider a claim lodged while a previous claim for the same conditions had not yet been finally determined. Specifically, the court had to determine if the applicant's experiences during his naval service, including the collision between HMAS Melbourne and HMAS Voyager, and his subsequent service on HMAS Vampire, constituted a "category 1A stressor" or involved living in a "hostile or life-threatening environment" as defined by the relevant Statement of Principles for PTSD. The court also had to consider the timing of the clinical onset of the applicant's PTSD and whether the Tribunal had the power to review a claim filed prematurely.
The court applied the principles established in *Repatriation Commission v Deledio* to assess the connection between the applicant's operational service and his claimed conditions. For PTSD, the court examined whether the applicant experienced a category 1A stressor or lived in a hostile environment during his operational service, considering the evidence of the HMAS Melbourne/Voyager collision and his subsequent service. The court noted the importance of medical evidence in determining the date of clinical onset of PTSD. Crucially, the court found that it lacked jurisdiction to consider the claim lodged in application 3890 of 2017 because it was filed before the determination of the earlier claim in application 2145 of 2016, pursuant to subsection 15(5) of the *Veterans' Entitlements Act 1986* (Cth).
The decision under review in application 2145 of 2016 was varied to find that the applicant's IBS condition was war-caused, entitling him to a pension. The claims for PTSD and alcohol use disorder were otherwise affirmed, as there was insufficient evidence before the Tribunal to allow those claims. The matter was remitted to the respondent for the assessment of the pension rate, with a date of effect of 29 July 2014, the date the initial claim was lodged. The Tribunal confirmed it had no jurisdiction to determine the claim in application 3890 of 2017.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The applicant submits medical opinion should be acted upon when considering the diagnosis of a condition.[33] The applicant submits that he has been diagnosed with PTSD based on the opinions of two psychiatrists, Dr Martin and Dr Sundin. [33] Repatriation Commission v Warren [2007] FCA 866 at [23], Repatriation Commission v Codd [2005] FCA 888 at [48] and Repatriation Commission v Gosewinckel [1999] FCA 1273 at [55].Relationship to operational service – Deledio Steps The applicant referred to the four-step process outlined in Repatriation Commission v Deledio (“Deledio”).[34] The applicant noted that the relevant inquiry, as dictated by subsection 196B(14) of the Act, is not whether there was a connection between the applicant’s operational service and his PTSD condition, but rather whether there was a connection between that service and a factor in clause 6 of the SoP.[35][34] (1998) 83 FCR 82 at [92]-[93] and [97]-[98].[35] Repatriation Commission v Knight (2012) 202 FCR 451 at [13], referring with approval to Knight v Repatriation Commission (2010) 52 AAR 547 at [47], Katzman J.Deledio Step One The applicant’s hypothesis is that his PTSD is related to his operational service by virtue of him having stressful experiences onboard HMAS Vampire, including:·In and around Vung Tau harbour;·In the FESR when his ship stopped and searched boats; ·In the FESR when it conducted bombardments; and·In the FESR when he performed the task of repairing corroded communication cables.Deledio Step Two The applicant submits that the relevant SoP for the PTSD condition is SoP No 82 of 2014, and the relevant factors within clause 6 are:(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or…(c) living or working in a hostile or life−threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder; or The applicant notes that a “category 1A stressor” is defined in clause 9 to include (a) experiencing a life-threatening event. A “hostile or life-threatening environment” is defined to mean:a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:(a) experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;(b) experiencing or being under threat of nuclear, biological or chemical agent attack; or(c) being involved in combat or going on combat patrols;Deledio Step Three The applicant submits that this step requires consideration of:·The date of clinical onset of PTSD;·Whether the raised facts point to the applicant having experienced a relevant stressor before that date; and·Whether the relevant stressor pointed to by the raised facts occurred during a period of operational service. The applicant submits that, in accordance with Kaluza v Repatriation Commission,[36] there needs to be medical evidence to underpin a finding as to the timing of clinical onset. Both Dr Martin and Dr Sundin determined that the applicant’s PTSD was of delayed onset. Dr Sundin specified that onset was in the mid to late 1970s. [36] (2011) 280 ALR 621.