DENNIS STANLEY KNAPE and REPATRIATION COMMISSION - [2012] AATA 152

[2012] AATA 152

Division	VETERANS' APPEALS DIVISION
File Number	2011/0785
Re	DENNIS STANLEY KNAPE
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	9 March 2012
Place	Melbourne

The Tribunal affirms the decision under review.

...............................[sgd].....................................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – naval service in Vietnam – post-traumatic stress disorder – traumatic event – whether condition diagnosed and war-caused – depressive disorder – whether war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Delahunty v Repatriation Commission [2004] FCA 309

Kaluza v Repatriation Commission [2010] FCA 1244

McKerlie v Repatriation Commission [2010] FCA 1127

Mines v Repatriation Commission (2004) 86 ALD 62

Re Codd and Repatriation Commission [2008] AATA 1177

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2008] FCA 50

Repatriation Commission v Warren [2007] FCA 866

Stoddart v Repatriation Commission (2003) 197 ALR 283

Woodward v Repatriation Commission (2003) 131 FCR 473

REASONS FOR DECISION

G. D. Friedman, Senior Member

9 March 2012

Dennis Knape served in the Royal Australian Navy (the navy) from 25 September 1965 to 11 December 1979 and reached the rank of Petty Officer. His service included a number of voyages to Vietnam on HMAS Melbourne, HMAS Stuart and HMAS Sydney between April 1966 and November 1972, and this constitutes operational service under the Veterans' Entitlements Act 1986 (the Act). He also rendered eligible defence service on HMAS Brisbane from 7 December 1972 to 11 December 1979.
The respondent has accepted that Mr Knape’s medical conditions of bilateral sensorineural hearing loss, bilateral tinnitus and non-melanotic malignant neoplasm of the skin are war-caused, and he receives a disability pension at 50 per cent of the general rate. The respondent rejected his claim that post-traumatic stress disorder (PTSD) and familial hypertrophic cardiomyopathy are war-caused conditions. His claim was refused by the Veterans' Review Board, and he is seeking review of the decision in respect of PTSD.

ISSUES

The issues before the Tribunal are:

Does Mr Knape suffer from PTSD arising from operational service during voyages to Vietnam? If so, is the condition war-caused?
If Mr Knape does not suffer from PTSD does he suffer from any other psychological condition? If so, is the condition war-caused?

DOES MR KNAPE SUFFER FROM PTSD ARISING FROM OPERATIONAL SERVICE DURING VOYAGES TO VIETNAM?

The Tribunal is required to determine to its reasonable satisfaction whether Mr Knape suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:
A.        The person has been exposed to a traumatic event in which both of the following were present:
(1)       the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2)       the person's response involved intense fear,…

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: [2012] AATA 152
Decision Date: 9 March 2012

CaseChat Overview and Summary

Dennis Stanley Knape (the applicant) appeals against a decision of the Veterans' Review Board (the Board) that he is not entitled to a war-caused pension for post-traumatic stress disorder (PTSD) and familial hypertrophic cardiomyopathy. The applicant claims that his service in the Royal Australian Navy, including voyages to Vietnam, caused his PTSD. The Tribunal considers whether the applicant has PTSD and whether it is war-caused, and whether he has any other war-caused psychological condition. The Tribunal affirms the Board’s decision. The applicant served in the Royal Australian Navy from 1965 to 1979, including voyages to Vietnam on HMAS Melbourne, HMAS Stuart and HMAS Sydney between 1966 and 1972. He claims that his exposure to the throwing of ‘scare charges’ while his ship was at anchor in Vung Tau harbour caused PTSD and familial hypertrophic cardiomyopathy. The Tribunal considers that the applicant has not identified a traumatic event that would amount to PTSD and is satisfied that his condition is depressive disorder. The Tribunal considers the four-step process for determining whether a war-caused condition is attributable to operational service, and concludes that the applicant’s depressive disorder is not war-caused.

Orders