Dyce and Repatriation Commission

[2010] AATA 956

Administrative Appeals Tribunal

INTERLOCUTORY DECISION AND REASONS FOR INTERLOCUTORY DECISION [2010] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4975

VETERANS'       APPEALS      DIVISION		)
Re		GREGORY DYCE

Applicant

And REPATRIATION COMMISSION

Respondent

INTERLOCUTORY DECISION

Tribunal Mr John Handley, Senior Member
Dr K Breen, Member  

Date30 November 2010

PlaceMelbourne

Decision For reasons given orally at the hearing, the Tribunal does not have jurisdiction to determine whether post traumatic stress disorder is war‑caused.

(sgd) John Handley

Senior Member

PRACTICE AND PROCEDURE – Veterans’ entitlements ‑ applicant claimed alcohol abuse ‑ Post Traumatic Stress Disorder (PTSD) not claimed ‑ PTSD not reviewed by respondent or VRB – jurisdiction to determine whether applicant suffers from war-caused PTSD.  

Veterans’ Entitlements Act 1986

Repatriation Commission v Budworth (2001) 116 FCR 200

Benjamin v Repatriation Commission (2001) 70 ALD 622

McKerlie v Repatriation Commission [2010] FCA 1127

Mines v Repatriation Commission (2004) 86 ALD 62

Owen v Repatriation Commission (1995) 59 FCR 93

REASONS FOR INTERLOCUTORY DECISION

30 November 2010 Mr John Handley, Senior Member
Dr K Breen, Member        

1.      This application proceeded to hearing on 25 October 2010.  The representatives for both parties made submissions concerning a preliminary issue which emerged from an amended Statement of Facts Contentions lodged by the respondent on 19 October 2010.

2.      The issue concerns the jurisdiction of the Tribunal to determine whether post traumatic stress disorder (PTSD) is war-caused.  

3.      The respondent contended that PTSD had never been claimed by the applicant and a decision had not been made by the respondent or by the Veterans’ Review Board (VRB).  Therefore, review by the Administrative Appeals Tribunal (the Tribunal) was confined only to the conditions which the applicant did claim and over which decisions were made being diabetes mellitus, alcohol abuse and cervical spondylosis.

4.      The applicant contended that the Tribunal does have a power to determine whether a connection exists between service and PTSD because of its inquisitorial role and its obligation to make the correct and preferable decision having regard to the material before it.

5.      At the conclusion of the oral submissions, we adjourned and delivered oral reasons for our decision.  We decided that the Tribunal does not have jurisdiction to determine whether PTSD is war‑caused. 

6.      The oral reasons for our decision are recorded in the transcript at pages 38‑42 inclusive. 

7.      On 3 November 2010, the District Registrar received a letter from the solicitors for the applicant, requesting written reasons for the decision we delivered on 25 October. 

8.      The reasons which follow will encapsulate the reasons that we delivered previously but in a form of greater clarity.

9.      The applicant applied to review a decision made by the VRB on 6 October 2009.  The VRB affirmed a decision previously made by the respondent on 19 December 2008 to reject claims for diabetes mellitus, cervical spondylosis and alcohol abuse.  The respondent assessed pension at 30 per cent of the general rate which was also affirmed by the VRB. 

10.     Having heard the oral submissions of both representatives and having also reviewed the documents that were before us, we considered the history of the application commencing at the initial claim.  The history is as follows:

(a)The applicant made a claim for disability pension on 14 August 2008 (T4, p14-21).  The conditions claimed were diabetes mellitus, alcohol abuse and multiple sun spots (solar keratosis).

(b)In a document entitled Additional Information Sheet the applicant was asked to record details of the NEW disabilities you are now claiming as war or defence caused (T4, p22-23).  The disabilities then recorded in response were left hip pain and stiffness and back pain.

(c)On 2 October 2008, an officer of the respondent wrote a letter to Dr Seabridge, a psychiatrist, notifying him in part that the applicant had:

…submitted a compensation claim to the Department of Veterans’ Affairs for pension in relation to a psychiatric condition that he attributes to his Defence Force service (T5, p 34‑37).

The officer requested a medical report and the language of his letter caused us to comment during the hearing (refer transcript, p21-22).  We drew attention to the expression a compensation claim which in our experience is foreign to applications made under the Veterans’ Entitlements Act 1986 (the Act) as opposed to claims made either under the Safety, Rehabilitation and Compensation Act 1988 or the Military Rehabilitation and Compensation Act 2004. We drew attention to the language more commonly used by the respondent and found (as an example) in a document at T6, p38 where a medical practitioner was notified that the applicant had lodged a disability claim. 

Mr Thompson did not know whether a compensation claim had been made.  Whilst nothing turns on that issue, it was of interest to us that the respondent’s officer sought a medical report from a psychiatrist in relation to a psychiatric condition that he (the applicant) attributes to his defence force service.  PTSD is a psychiatric condition.  However, it is unclear why Dr Seabridge was not asked specifically to report on the claimed condition of alcohol abuse.

(d)Dr Seabridge wrote a letter to the respondent on 13 November 2008 after an examination of the applicant as requested by the respondent (T7, p53-55).  He concluded that the applicant did not satisfy the DSM‑IV criteria for alcohol abuse or alcohol dependence.  He also reported that the events in service described to him by the applicant did not amount to a severe stressor even though the clinical presentation of the applicant and his level of distress were suggestive of PTSD.  He was also of the opinion that although the service events:

…could well fulfil the requirements for a severe psycho-social stressor, Mr Dyce makes no claim to have ever suffered from clinically significant anxiety or depressive disorder, and adjustment disorder is not an appropriate diagnosis.

Dr Seabridge concluded:

…although Mr Dyce demonstrates quite significant and sustained distress from exposure to a traumatic event, a formal psychiatric diagnosis of war caused disorder does not appear to be appropriate.

(e)On 19 December 2008 the respondent decided to accept the claims for solar keratosis, left hip pain and stiffness and back pain which were described in the decision as osteoarthrosis of the left hip and lumbar spondylosis.  The claims for diabetes and cervical spondylosis were rejected.  There was also a finding that there was no medical condition present to answer your claim for ‘alcohol abuse’.

(f)On 16 January 2009 the applicant lodged an application for review with the VRB against the decision made by the respondent (T11, p83).  The applicant recorded that he:

…was not happy with the delegate’s decision with regard to my neck, alcohol and diabetes not being accepted as related to service. 

(g)On 27 March 2009 an officer of the VRB wrote to Mr Dyce to notify him of the impending listing of his application for review.  A clarification form was appended to that letter and the applicant was required to indicate which matters he wanted the VRB to review (T13, p85-86).  The applicant ticked the boxes which indicated that he intended to seek review of the decisions concerning diabetes mellitus, cervical spondylosis, alcohol abuse and pension being assessed at 30 per cent of the general rate.  The form also provided:

If there is some other matter (not listed above) that you want the Board to review that was decided or you think should have been decided by the Repatriation Commission when it considered your claim or application please indicate. 

A space is provided to respond to that enquiry.  The applicant did not make any recording in that space.  

(h)Immediately prior to the VRB convening to hear the review of the respondent’s decision, the applicant’s advocate lodged written submissions (Txix-xxii).  The advocate submitted that the applicant seeks review of the decision to refuse diabetes mellitus and the decision regarding alcohol abuse and cervical spondylosis should be affirmed.  It was recorded that the applicant does not seek review of any other aspects of the delegate’s decision.  The applicant’s advocate reiterated the written submissions before the VRB.  The advocate was asked to clarify whether he sought an affirmation or would withdraw the claims for acceptance of alcohol abuse and cervical spondylosis.  Eventually the advocate decided that he would not make submissions nor present any material with respect to those conditions and that he would run dead on them (Exhibit R3, p2-3). 

(i)On 19 October 2009, the applicant sought review of the VRB’s decision by this Tribunal.  In his application for review, the applicant recorded that the reasons for his application were error on the part of the VRB in failing to find that diabetes and alcohol abuse were war‑caused and failing to find that cervical spondylosis was defence caused.

11.     As may be seen from the above summary, commencing with the initial claim to the respondent and concluding with the application to this Tribunal, the applicant did not at any time ever indicate to the respondent or the VRB that he suffers from PTSD nor did he claim acceptance of it as war-caused.  Dr Seabridge mentioned PTSD in his report, we presume, in response to the letter written to him by an officer of the respondent on 2 October 2008, indicating that a compensation claim had been made by the applicant, in relation to a psychiatric condition.

12.     Counsel for the applicant acknowledged that the applicant did not claim PTSD.  It is also apparent from the documents that he did not claim severe nerves (Repatriation Commission v Budworth (2001) 116 FCR 200) or a nervous condition (Mines v Repatriation Commission (2004) 86 ALD 62). Severe nerves or a nervous condition are general descriptions that might suggest a psychiatric illness, such as PTSD, was claimed.

13.     Had the applicant claimed PTSD, the respondent would be obliged to determine whether he suffered from it and whether the condition was war‑caused.  If the respondent made an unfavourable decision and that decision was affirmed by the VRB, we would be obliged to determine whether the applicant did in fact suffer from PTSD and if so, whether it was war-caused.  If we were satisfied on the material before us that he did not suffer from PTSD, we would be obliged to determine whether his collection of symptoms constituted another disease.  (McKerlie v Repatriation Commission [2010] FCA 1127 at [31]).

14.     Mr Thomson referred to the decision in Benjamin v Repatriation Commission (2001) 70 ALD 622 where the veteran made a claim for PTSD and substance abuse. The Tribunal found that the veteran suffered from psychiatric problems. However, it failed to consider whether they were war-caused because they could not be characterised as PTSD (at [49]). The Full Court of the Federal Court decided that although the claim was for PTSD which was the condition diagnosed by the veteran’s treating doctor, the Tribunal was not precluded from reaching a conclusion that the veteran suffered from a different disability, particularly when the Tribunal found that the veteran contracted a disease that may be war-caused (at [48]). When discussing the standard of proof, the Full Court said that if the decision-maker is satisfied that psychiatric problems exist, the first step is to characterise the problems.  The decision-maker must identify the particular injury or disease suffered by the veteran having regard to the symptoms from which he suffers.  The next step is to determine whether a Statement of Principles (SoP) is in force (at [55]).

15.     It was submitted on behalf of the applicant that PTSD is a mental condition and not an injury discrete from alcohol abuse.  Relying on the decisions in McKerlie and Benjamin, it was submitted that although the original claim was for alcohol abuse, the Tribunal must not confine itself to the case being advanced by the applicant and must consider all substantive issues arising on the material and advanced before it (McKerlie at [40]; and Benjamin at [47]). Mr Thomson submitted that an alternative diagnosis of PTSD could be found having regard to the psychiatric symptoms of the applicant which were raised before the primary decision-maker and the subsequent enquiries made of Dr Seabridge and his reported response (transcript, p13 and 20).

16.     It was also submitted that in the event that an applicant makes a claim in terms which are imprecise and which characterise the disease or injury claimed (for example, a claim for severe nerves or nervous condition), the Tribunal would be obliged to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted (Budworth at [19] and Mines at [49]).

17.     Mr Purcell, on behalf of the respondent, submitted the applicant was attempting to bypass the established review pathways by not claiming or obtaining a decision capable of review.  He also relied on a decision of Finn J in Owen v Repatriation Commission (1995) 59 FCR 93 as authority for prohibition of review in the absence of a primary claim.

18.     The applicant did not make a claim for PTSD.  Had he claimed PTSD, the Tribunal would, on review, be obliged to decide whether it exists or whether his collection of symptoms – if found – attracted a different diagnosis.  However, the applicant cannot escape his obligation to make a claim for an illness or disease in precise or general terms.  When a claim is made at the primary level, the respondent is obliged to make a decision (s 135 of the Act).  A veteran is entitled to seek review by the VRB of a decision made by the respondent and review may subsequently be sought by the Tribunal of the decision made by the VRB (s 175 of the Act). 

19.     It follows that the jurisdiction of the Tribunal is enlivened by a claim being made, a decision by the respondent and a subsequent decision on that claim by the VRB.  In reviewing the VRB’s decision, the Tribunal is required to make the correct or preferable decision according to the material before it and should not limit itself to the case articulated by the applicant (Benjamin at [47]). Accordingly, the Tribunal’s decision would have regard either to the injury or disease as claimed or the collection of symptoms for which a diagnostic label could be made. However, on the applicant’s submissions, the Tribunal has been called upon to disregard the issue of jurisdiction. It is one thing to make a finding of diagnosis when the material before the Tribunal points to it, as in Benjamin, McKerlie and Mines.  It is another for the Tribunal to allow an applicant to circumvent the preliminary review processes set out in the Act.

20.     Whilst there might be similarities in the clinical criteria which define a disease there will always be distinctions.  It does not follow in our view that by reason of PTSD and alcohol abuse being psychiatric in nature that the respondent was obliged, faced with a claim for alcohol abuse, to consider whether the applicant also suffered PTSD and make a decision that PTSD was or was not war‑caused. 

21.     Whilst DSM-IV clearly records that both PTSD and alcohol abuse are psychiatric conditions, the clinical definition of each, as found within DSM-IV are distinctly different.  It does not follow that a person who suffers alcohol abuse necessarily suffers PTSD.  Had the applicant initially claimed PTSD in addition to alcohol abuse there would be no doubt that the Tribunal would be obliged to determine whether it or some other like disease was war-caused (refer discussion above in Benjamin, Budworth and Mines).

22.     In the absence of a claim for PTSD or some other like condition (even if expressed in imprecise or vague terms, for example severe nerves or nervous problems) there is no legal obligation on the primary decision-maker and ultimately the VRB and the Tribunal to make a finding (Owen).

23.     In the event that the Tribunal makes a finding of diagnosis from a collection of symptoms – irrespective of whether a condition is claimed with particularity or in general or loose terms – it is responding by way of review to the claim before it.  In the present case the primary decision‑maker and the VRB did review the claimed condition of alcohol abuse.  When the hearing currently before the hearing resumes we will also consider the claim made by the veteran for alcohol abuse. 

24.     It was submitted that an alternative diagnosis (transcript, p13) or an alternative description could be made for the applicant’s psychiatric symptoms (transcript, p20).  We did not understand these submissions to mean the applicant was urging us to find PTSD as an alternative to alcohol abuse, but rather, PTSD should be found in addition to alcohol abuse.  That is, another illness or disease should be found.

25.     In conclusion, there must be a claim for an illness or disease either in precise terms or general terms.  A finding, in the alternative is permissible if it is truly an alternative; for example where PTSD is claimed and the symptoms do not fit the DSM-IV criteria but the symptoms fit the clinical criteria for depressive disorder.  In such a case, depressive disorder would be the alternative description of the claimed illness.  We would be obliged to make that finding.  It would be the different disability as discussed by the Full Court in Benjamin (refer [14] above).

26.     A finding that the psychiatric illness or disease of alcohol abuse is before us does not permit us to find that there is another psychiatric illness or disease - in this case PTSD – that can also be the subject of review. 

27.     To reach that conclusion would ignore the provisions of s 135 and s 175 of the Act and bypass review of the VRB.

28.     For all the above reasons we are satisfied that PTSD was not claimed, there was no decision concerning it capable of review and we have no jurisdiction to find whether it or a collection of other like symptoms is war-caused.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the interlocutory decision herein of  

Mr John Handley, Senior Member; and
Dr Kerry Breen, Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  25 October 2010

Date of Oral Reasons                  25 October 2010

Date of Written Reasons             30 November 2010
Counsel for the Applicant            Mr C. Thomson
Solicitor for the Applicant             Williams Winter Solicitors
Counsel for the Respondent        Mr G. Purcell
Solicitor for the Respondent        Department of Veterans’ Affairs