[2013] AATA 303
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/2329
Re
Donald Ambler
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal The Hon R J Groom AO, Deputy President
Date 15 May 2013 Place Hobart Decision Summary
The Tribunal decides that:
(a)The applicant suffers from Recurrent Major Depressive Disorder and not from Post-traumatic Stress Disorder.
(b)In all other respects the decision under review is affirmed.
........................................................................
Deputy President
Catchwords
Veteran's Affairs - disability pension - applicant rendered defence service in Royal Australian Navy - traumatic incidents during service - claim of defence-caused PTSD - correct diagnosis is Recurrent Major Depressive Disorder - connection raised between disease and service rendered by applicant - relevant Statement of Principles does not uphold connection - disease not defence-caused - except for different diagnosis decision under review affirmed.
LEGISLATION
Veterans' Entitlements Act 1986 ss 70 (5), 120(4), 120B(3)
Statement of Principle's Concerning Depressive Disorder No. 28 of 2008
CASES
Repatriation Commission v Smith (1987) 15 FCR 327
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Bawden (2012) FCAFC 176
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Cornelius (2002) 69 ALD 250
Repatriation Commission v Wedekind [2000] FCA 649Brew v Repatriation Commission (1999) 56 ALD 403
REASONS FOR DECISION
The Hon R J Groom AO, Deputy President
INTRODUCTION
This is a review of the decision made by the Veterans’ Review Board (“VRB”) on 7 March 2011.
The decision of the VRB affirmed an earlier decision of the Repatriation Commission which had refused Mr Ambler’s claim under the Veterans’ Entitlements Act 1986 (“the Act”) that the Post Traumatic Stress Disorder (“PTSD”) from which it was alleged he suffered was defence-caused.
Mr Ambler served in the Royal Australian Navy from 12 January 1981 to 12 January 2001. During his 20 year career in the navy he achieved several promotions and had attained the rank of Petty Officer prior to the date of his discharge.
The whole period of Mr Ambler’s full-time continuous service is “defence service” within the meaning of that term in s 68 of the Act.
The Repatriation Commission had previously accepted a number of other medical conditions suffered by Mr Ambler as being defence-caused. If it is established that he also suffers PTSD, or some alternative psychiatric condition, he would then be entitled to be paid a pension at a higher rate.
THE LEGISLATION
A person who has rendered defence service is eligible to receive a pension under Part IV of the Act if he or she suffers from an injury or disease which was “defence-caused”. An injury or disease is “defence-caused” if it “arose out of or was attributable” to any defence service. It is sufficient if the injury or disease was “contributed to in a material degree by or aggravated by” any defence service.
Section 70(5) of the Act relevantly provides as follows:
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part…
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CaseChat Overview and Summary
The tribunal carefully considered the medical evidence provided by various psychiatrists and psychologists. The tribunal noted that Mr Ambler's wife provided a witness statement identifying symptoms she had observed in him that are consistent with PTSD. The tribunal also considered the evidence of three psychiatrists who gave oral evidence, including two treating psychiatrists, Dr Carter and Dr Jensen, and an independent psychiatrist, Dr Sale. The tribunal reviewed written reports from these and other medical professionals. The tribunal found that Dr Carter consistently diagnosed Mr Ambler with PTSD, linking it to traumatic events during his service, while Dr Jensen changed her opinion over time. The tribunal ultimately decided that Mr Ambler suffers from recurrent major depressive disorder rather than PTSD, and that his condition was not connected to his defence service.
In light of the tribunal's findings, it decided to affirm the original decision of the Repatriation Commission in all respects except for the nature of Mr Ambler's condition, which it determined to be recurrent major depressive disorder. Consequently, the tribunal did not uphold the applicant's claim that his condition was connected to his defence service, and therefore, the tribunal was not reasonably satisfied that his condition was defence-caused.
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