Devereaux and Repatriation Commission - [2001] AATA 557

DECISION AND REASONS FOR DECISION [2001] AATA 557

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/901

VETERANS' APPEALS DIVISION       )
           Re      NEVILLE DEVEREAUX
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr J D Campbell

Date20 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be set aside and in substitution therefor determines that: (a) the disease/injuries of generalised anxiety disorder, psychoactive substance abuse/dependence, namely alcohol, hypertension, impotence and osteoarthrosis right knee are war caused; (b) the assessment of the impairment rating for the generalised anxiety disorder and substance abuse/dependence is 39; and (c) the remaining war caused diseases/injuries are remitted to the Respondent for assessment of an individual impairment rating, a total combined impairment rating for all war caused disabilities, and the calculation of disability pension.
..............................................

DR J CAMPBELL
Member

CATCHWORDS
Veterans' Entitlements - claim for injuries/diseases to be war caused - generalised anxiety disorder - psychoactive substance abuse - hypertension - impotence - osteoarthrosis right knee - stressful events

Veterans Entitlement Act 1986 - sections 120, 120A.
Statement of Principles Instrument No. 48 of 1994
Statement of Principles Instrument No. 5 of 1994
Statement of Principles Instrument No. 83 of 1995
Statement of Principles Instrument No. 97 of 1996
Statement of Principles Instrument No. 352 of 1995

REASONS FOR DECISION

Dr J D Campbell, Member

In this application, Mr Neville Devereaux ('the Applicant') seeks a review of the decision of the Repatriation Commission ('the Respondent') dated 22 January 1998 which refused the Applicant's claim dated 30 June 1997 that the conditions of osteoarthrosis of the right knee, panic disorder with agoraphobia, hypertension and impotence were causally connected to his periods of eligible service. This decision was reviewed by the Veteran's Review Board ('VRB') and affirmed in a decision dated 7 April 1999.
A hearing was held before the Tribunal on 28 February 2001 at which the Applicant was represented by Ms Rudland of Counsel. The Respondent was represented by Mr Modder, a solicitor from the Department of Veterans' Affairs. The Applicant and Dr Dinnen presented oral evidence to the Tribunal. Written submissions were obtained from the parties with the last submission in reply, on behalf of the Applicant, being received on 30 April 2001.
The following material was placed into evidence before the Tribunal.
Exhibit No     Description    Date
T1-33 Documents prepared pursuant to section 37 of the Administrative appeals Tribunal Act 1975
A1      Applicant's further amended Statement of Facts and Contentions    2 May 2000
A2      Statement of the Applicant           22 March 2000
A3      Statement of Mr Maher      25 June 1999
A4      Medical Report Dr Giblin    6 April 2000
A5      Medical Report Dr Dinnen 23 February 2000
A6      Statement of Mr Cox          6 July 1999
R1      Medical Report Dr Lennon 12 April 2000
R2      Medical Report Professor Richards         26 May 2000
R3      Medical Report Dr Lewin    27 October 2000
R4      Medical Report Mr Mulcare           27 June 2000
R5      Medical Report Mr Mulcare           20 July 2000
R6      Respondent Statements of Facts and Contentions      27 February 2001

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: [2001] AATA 557
Decision Date: 20 June 2001

CaseChat Overview and Summary

In the case of Devereaux versus the Repatriation Commission, the applicant, a former serviceman, appealed the decision of the Commission and the Veterans' Review Board to refuse his claim for compensation under the Veterans' Entitlement Act 1986 for certain injuries and illnesses that he alleged were caused by his military service. The applicant claimed to have suffered from generalised anxiety disorder, psychoactive substance abuse, hypertension, impotence, and osteoarthrosis of the right knee, which he attributed to stressful events during his service, including a heat exhaustion episode and a Thai border incident. The Court was tasked with determining whether the applicant's claimed conditions were connected to his service and if they were war-caused as required by the legislation.

The primary legal issue before the Court was whether the applicant's claimed conditions were connected to his service and if they were war-caused. The Court considered the relevant provisions of the Veterans' Entitlement Act 1986 and the applicable Statements of Principles. The Court also examined the applicant's service records, medical evidence, and the opinions of various psychiatrists who assessed the applicant's condition. The Court had to determine if the applicant's claimed conditions met the criteria for war-causation under the Act and whether the decision of the Repatriation Commission and the Veterans' Review Board was correct.

The Court found that the applicant's claim for osteoarthrosis of the right knee, panic disorder with agoraphobia, hypertension, and impotence was not war-caused. The Court accepted that the applicant had experienced stressful events during his service, but it was unable to establish a sufficient connection between those events and the onset of the applicant's claimed conditions. The Court noted that the applicant's psychiatric condition had a long history predating his service, and there was insufficient evidence to support a finding that the claimed conditions were caused by his military service. Consequently, the Court affirmed the decision of the Repatriation Commission and the Veterans' Review Board to refuse the applicant's claim for compensation.

In conclusion, the Court held that the applicant's claimed conditions were not war-caused, and therefore, the decision of the Repatriation Commission and the Veterans' Review Board to refuse the applicant's claim for compensation was correct. The Court affirmed the decision, and the applicant's appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ('the Act') and in particular ss 120(1), 120(3), and 120A.background An application was lodged with the Respondent on 30 June 1997, in which the Applicant detailed the following injuries/illnesses occasioned during service with the Far Eastern Strategic Reserve, during the periods 7 April 1960 to 15 April 1960 and 6 May 1960 to 2 June 1960 (T10): Following assessment of the application by the Respondent, the Applicant's claim for osteoarthrosis of the right knee, panic disorder with agoraphobia, hypertension and impotence, was refused on 22 January 1998 (T12). On 7 April 1999 the Veterans' Review Board affirmed the decision of the Repatriation commission.applicant's evidence The Applicant told the Tribunal that he left school at age 13, enjoyed an urban childhood and joined the Navy at age 17 on 20 June 1957, because it was his wish to do so. The Applicant stated that in July 1959 he joined the HMAS Voyager as a mechanic engineer with his main duties being as a stoker in the boiler rooms, watch keeping on machinery while at sea and general maintenance duties when in port. Following his leaving the Voyager in September 1960, the Applicant indicated that he attended a diving course at HMAS Albatross, before being posted to engine rooms on minesweepers at HMAS Waterhen and a final posting at HMAS Curlew prior to his discharge from HMAS Penguin on 14 April 1964. In describing what he considered as stressful events during his service, the Applicant nominated two in particular. Namely, the heat exhaustion episode and the Thai Border incident. In describing the heat exhaustion episode, the Applicant detailed an incident, which he stated occurred on 15 April 1960, when having docked in Hong Kong and shut down the boilers they were asked to refire the boilers in order that the ship could be moved. This, in the Applicant's view, was a very hot and hazardous activity. The Applicant described waiting outside the boiler room when first the chief stoker was dragged out with what was confirmed as a heart attack. Another six stokers were dragged out with heat exhaustion, while the Applicant waited his turn. The Applicant stated that he found this a very frightening experience. In describing the Thai Border incident, the Applicant stated that it occurred after the Hong Kong incident in early May 1960, and that it involved an exchange of about 10 sailors with 10 army personnel, with the former being given some range instruction practice with army weapons. Following this, the Applicant recounts that they were driven to a base camp after which they commenced patrolling with five to eight other men. He found this extremely tough and exhausting as they had to cut their way through the jungle with machetes. The Applicant indicated that he was not used to this type of environment and he felt a fear of being shot at, a fear of the unknown, a fear of the jungle, a fear of leeches and wild animals, including tigers and elephants, and while on picquet duty, a fear of rats.

Evidence

Evidence Before The Court

On 7 April 1999 the Veterans' Review Board affirmed the decision of the Repatriation commission.applicant's evidence The Applicant told the Tribunal that he left school at age 13, enjoyed an urban childhood and joined the Navy at age 17 on 20 June 1957, because it was his wish to do so. The Applicant stated that in July 1959 he joined the HMAS Voyager as a mechanic engineer with his main duties being as a stoker in the boiler rooms, watch keeping on machinery while at sea and general maintenance duties when in port. Following his leaving the Voyager in September 1960, the Applicant indicated that he attended a diving course at HMAS Albatross, before being posted to engine rooms on minesweepers at HMAS Waterhen and a final posting at HMAS Curlew prior to his discharge from HMAS Penguin on 14 April 1964. In describing what he considered as stressful events during his service, the Applicant nominated two in particular. Namely, the heat exhaustion episode and the Thai Border incident. In describing the heat exhaustion episode, the Applicant detailed an incident, which he stated occurred on 15 April 1960, when having docked in Hong Kong and shut down the boilers they were asked to refire the boilers in order that the ship could be moved. This, in the Applicant's view, was a very hot and hazardous activity. The Applicant described waiting outside the boiler room when first the chief stoker was dragged out with what was confirmed as a heart attack. Another six stokers were dragged out with heat exhaustion, while the Applicant waited his turn. The Applicant stated that he found this a very frightening experience. In describing the Thai Border incident, the Applicant stated that it occurred after the Hong Kong incident in early May 1960, and that it involved an exchange of about 10 sailors with 10 army personnel, with the former being given some range instruction practice with army weapons. Following this, the Applicant recounts that they were driven to a base camp after which they commenced patrolling with five to eight other men. He found this extremely tough and exhausting as they had to cut their way through the jungle with machetes. The Applicant indicated that he was not used to this type of environment and he felt a fear of being shot at, a fear of the unknown, a fear of the jungle, a fear of leeches and wild animals, including tigers and elephants, and while on picquet duty, a fear of rats. The Applicant also stated that he experienced stress when the generator he was operating shut down on him twice while the ship was on patrol at sea, and that he felt a great deal of pressure to get it going. The Applicant told the Tribunal that he was at home, on leave, in Perth in July 1960, when he was called back by telegram to rejoin HMAS Voyager. He stated that he was found by his father sitting on the back steps of the house crying, anxious and upset. His father took him to the local general practitioner who arranged his transfer to hospital by ambulance.

Decision

Reasons for decision

DR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: DR J

It is the Respondent's submission that the decision under review should be affirmed.consideration and findings In addressing the many issues raised in this matter, the Tribunal would first comment that the Applicant presented his evidence to the Tribunal in a low key, matter of fact and frank manner. The Tribunal considered the Applicant to have presented his story to the best of his ability and without any significant embellishment. In turning to the issues upon which this matter is concerned with, the Tribunal does conclude that the boiler room incident did occur on 15 April 1960, and not as suggested by the Respondent on 17 April 1960. In so stating, the Tribunal notes the report of Mr Tilbrook which indicates that the HMAS Voyager arrived at Hong Kong on 15 April 1960 (Page 2 Para 4), with the reference in paragraph 13 of Captain Millar's report clearly indicative of work prepared for 17 April 1960. As indicated in paragraph 48 the Tribunal accepted into evidence the oral and written material as presented by the Applicant in relation to both the boiler room incident and the exchange duty arrangements which saw the Applicant patrolling with the Army on the Thai border for a period of ten days. The Tribunal does find that both incidents occurred within periods of operational service. The Tribunal has been careful to document the Applicant's evidence of the commencement of his psychiatric episodes in July 1960 and the various contemporaneous documents completed during 1960, and particularly those which are to do with the illness at that time. In turning to the issue of diagnosis of the psychiatric illness, the Tribunal, in noting that both the Applicant and the Respondent are in agreement on this issue, find, on the balance of probabilities, that the diagnosis is generalised anxiety disorder. In making such a finding, the Tribunal has relied upon the significant number of psychiatric opinions, and particularly those of Drs Keshava, Dinnen and Lewin. In further addressing this issue, that is the generalised anxiety disorder, and having carefully addressed all the material before the Tribunal, the Tribunal does conclude that the first overt clinical manifestations of this disorder occurred in Perth in July 1960, after his return from the Far East. The Tribunal is unable to find any documentation to support Dr Lewin's contention, that the anxiety condition was long established before the 1960 incidents and episodes. The Tribunal, having considered all the material before it, concludes that such material does point to a hypothesis connecting the Applicant's service with his illness. In so stating, the Tribunal observes that the Applicant was involved in two events, which on his own evidence clearly caused him anxiety and stress, and some six weeks later resulted in his admission to hospital for an evaluation of his anxious and highly emotional disturbed state. Further, the Tribunal notes both from the evidence of the Applicant and the documented opinions of the many psychiatrists in this matter that this same psychiatric condition has continued over the many years to this time (Drs Keshava, Lewin, Dinnen and Pickering). The Tribunal also notes that Dr Lewin is of the opinion that the anxiety disorder was present prior to his navy entry and prior to his period of operational service, but as indicated earlier there is no significant evidence to point to such a conclusion, while at best all the other psychiatrists including Dr Williams talk of a pre-existing obsessional personality.