Cove and Repatriation Commission (Veterans' entitlements)

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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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Details
Case
[2020] AATA 1999
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by an applicant against a decision of the Repatriation Commission regarding his claim for a disability pension. The applicant sought a pension for post-traumatic stress disorder (PTSD), irritable bowel syndrome (IBS), and alcohol use disorder, alleging these conditions were related to his operational service in the Royal Australian Navy. The core dispute revolved around whether the applicant's claimed conditions were war-caused, particularly in light of the timing of his claims and the relevant Statements of Principles. The case was heard by Deputy President McDermott.

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

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant SoPs in this matter are:·Statement of Principles concerning Alcohol Use Disorder No. 1 of 2009 (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); and·Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (Cth).EVIDENCEApplicant’s evidence The applicant provided a statement dated 16 June 2016.[17] In this statement the applicant stated that he joined the Royal Australian Navy when he was 17 ½ years old, and entered as an “adult entrant”. He stated that after three months of land-based training he joined HMAS Melbourne. He was allocated to the laundry group on-board HMAS Melbourne. HMAS Melbourne departed in January 1964.[17] Exhibit C, Applicant’s Statement dated 16 June 2016. The applicant stated that while he was on HMAS Melbourne it came into collision with HMAS Voyager. He had only just come off his shift, when the impact knocked him off his feet. He initially thought the ship had run aground. He wanted to go up to the upper deck, but when incidents like that occurred the hatches were immediately closed. He was in a small bathroom near the laundry, and there were about 10 to 12 people in that small room. The applicant was the youngest of the crew members present, all of whom were very junior in rank. The applicant stated that they all had no idea what was occurring, and there was a sense of panic among them which was understandable because of their inexperience and young age. No information was transmitted through the ship’s PA system. The applicant explained that the closed hatches had a manhole in them which could only fit one person at a time, so if an evacuation was required it would be a very slow process. They were below the waterline on the ship. There were three more hatches and three sets of gangways above them which had to be climbed to get to the upper deck. The applicant stated that they waited for what seemed like a long time until a Leading Seaman opened the manhole. He stated, “A lot of things go on in your mind during such stressful times”. When the applicant made his way up to the upper desk he stated that he had a clear view of the remaining half of the Voyager. He could see men in the water and other men on fire jumping off the Voyager. After this incident, the applicant stated that HMAS Melbourne docked for repairs. He remained living on the ship, and stated, “We were very isolated. We were never given any assistance to come to terms with what we had witnessed and experienced.” The applicant later joined the HMAS Vampire on 17 February 1966. He stated that the HMAS Vampire was a sister ship to the HMAS Voyager. Its main task was to escort HMAS Sydney to South Vietnam. HMAS Sydney was similar to HMAS Melbourne. The applicant stated that the fact that he was on a warship identical to HMAS Voyager, which was escorting a warship almost identical to HMAS Melbourne “was not lost on me and was a constant reminder of the earlier trauma that I had suffered as a consequence of the HMAS Melbourne/HMAS Voyager collision”.

Decision

Reasons for decision

The decision in application 2145 of 2016 is varied to decide that the IBS condition is war-caused: the decision is otherwise affirmed in the absence of any evidence which would allow the Tribunal to allow the claims for the other claimed condition. The applicant only made submissions in respect of the conditions of PTSD and IBS and there is no evidence before the Tribunal to enable the acceptance of other conditions. 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.DECISION 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.

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.