Green and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1526

Green and Repatriation Commission (Veterans' entitlements) [2020] AATA 1526 (1 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2016/6703
Re:Phillip Green
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:1 June 2020
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disability pension – claim for PTSD – whether veteran has PTSD – Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014 (Cth) – category 1A stressor – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Filsell and Comcare (2009) 109 ALD 198; [2009] AATA 90
Green and Repatriation Commission [2007] AATA 40
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
1 June 2020
INTRODUCTION

Mr Phillip Green, the applicant in this matter (‘the veteran’), submitted a claim for disability pension with the Repatriation Commission (‘respondent’). The veteran claims to have Post-Traumatic Stress Disorder (‘PTSD’) as a result of his military service. The veteran served in the Australian Army (‘the Army’) from 20 August 1974 until 29 November 1977, including a deployment to Malaysia for three months from 1 March 1976 to 6 June 1976. His discharge in 1977 was officially recorded as “retention in the military forces not being in the interest of those forces”.[1] The veteran is now 69 years old. He is no longer engaged in employment.
[1] Exhibit A, T-Documents, T4, p. 26.
CLAIM HISTORY
On 8 September 2002 the veteran lodged a “Claim for Disability Pension” for “Hearing”, “Alcoholism”, and PTSD caused by “communist terrorist activities during my service in Malaysia. I felt threatened on several occasions by having weapons pointed at my direction.”[2] In the claim form the veteran provided more detail regarding his claimed PTSD condition:
I feel that I have a problem, because I have trouble talking to people, cannot sleep, loud noises startle me. I also only remember what I need to. I don’t like being in crowded places or driving a motor vehicle. My wife tells me that I become irritable and angry over the least trivial matters.[3]
The respondent considered that the appropriate medical diagnosis for the veteran’s claimed PTSD condition was “personality disorder”.[4]
[2] Exhibit A, T-Documents, T7, p. 63.
[3] Exhibit A, T-Documents, T7, p. 65.
[4] Exhibit A, T-Documents, T13, p. 102.
On 28 November 2002 the respondent accepted the veteran’s claim for “bilateral tinnitus”, however, it also decided that the veteran’s claimed conditions of “personality disorder” and “alcohol dependence or alcohol abuse” were not related to service.[5] The veteran sought review of this decision, and the decision was subsequently affirmed by both the Veterans’ Review…

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: [2020] AATA 1526
Decision Date: 1 June 2020

CaseChat Overview and Summary

This case concerned a veteran's claim for a disability pension due to Post-Traumatic Stress Disorder (PTSD) stemming from his service in Malaysia. The veteran alleged that his experiences during service, including exposure to conflict and aggressive military encounters, constituted a category 1A stressor as defined by the relevant Statement of Principles. The Repatriation Commission, the respondent, contended that the veteran had not experienced a category 1A stressor and, even if he had, it was not the cause of any diagnosed psychiatric condition. The matter came before Deputy President McDermott of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the veteran had PTSD and, if so, whether his condition was attributable to a category 1A stressor experienced during his military service. This required the Tribunal to assess the veteran's evidence regarding the traumatic events he claimed to have experienced and to determine if these events met the definition of a category 1A stressor under the Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014 (Cth). The Tribunal also had to consider whether, on the balance of probabilities, any such stressor was causative of a diagnosed psychiatric condition.

The Tribunal adopted the reasoning that concepts such as estoppel have no place in administrative decision-making, with the appropriate mechanism for abuse of process being section 42B of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal considered the veteran's evidence of stressful incidents in Malaysia, such as hearing about an Australian truck driver being beaten to death, communist attacks, and feeling his life was in danger. However, the Tribunal placed significant weight on the report of Dr. Arnold, a psychiatrist who examined the veteran in 2002. Dr. Arnold reported that the veteran denied experiencing key PTSD symptoms like nightmares or flashbacks and suggested the veteran was pursuing the claim for pension purposes, noting a diagnosis of Substance Abuse – Alcohol Dependency. The Tribunal found the veteran's accounts to be inconsistent over time and did not accept his assertion that he had not made the statements reported by Dr. Arnold.

Based on the evidence, the Tribunal concluded that the veteran did not suffer from PTSD. Consequently, the decision under review, which affirmed the denial of the claim, was affirmed. The Tribunal also found that the veteran's alcohol use condition, which was in remission, was not related to his service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The definition of “a category 1A stressor” is outlined in clause 9. It means one of the following severe traumatic events:(a)experiencing a life-threatening event;(b)being subject to a serious physical attack or assault…; or(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;LAY EVIDENCEVeteran’s evidence The veteran provided a statement dated 9 May 2005 as part of this Tribunal’s review of the veteran’s first claim for PTSD in which the respondent considered the appropriate medical diagnosis to be “personality disorder”.[16] In that statement the veteran detailed some of his general impressions of Malaysia. He stated that he heard of an incident where an Australian truck driver was beaten to death, and that the communists blew up cars, police stations and other things. He stated, “I believe my life was in danger the whole time I was stationed in Malaysia”. The veteran listed some of the symptoms he now suffers, including nightmares, being startled by loud noises, hot and cold flushes, irritability, anger outbursts, suicidal tendencies and being anti-social.[17] [16] Exhibit A, T-Documents, T27.[17] Exhibit A, T-Documents, T27, p. 164. The veteran outlined several incidents which occurred while he was in Malaysia, including:·Field training in thick jungle for three days, when he only had blank rounds. He could hear movement through the jungle and didn’t know what it was;·On “red letter days” (days of celebration for the communists) all sections were on night duty. It was often raining and very dark, and they could hear people setting off firecrackers or rattling the perimeter wire as if they were trying to get in. The airfield was a target because it contained Australian and Malaysian aircraft. They had no anti-terrorist training. He felt that if someone breached the fence they would have died;·One day when he was getting off a ferry he witnessed several people being arrested and one of the police officers or soldiers pointed his weapon in the veteran’s direction. He felt as though he “could have been shot at any moment”;·Whenever he left the base for recreation purposes he had to enter again through the south gate “which was manned by Malaysian guards that were high on drugs a lot of the time… The guards would usually get aggressive and point their machine pistols at us when they were requesting our ID cards”, because the south gate was so close to where the Malaysian aircraft were kept. “I had this done to me on several occasions, so I started using the north gate which was quite a walk to our barracks”; ·One night he was a passenger in a patrol truck, when a Malaysian guard at a guard house yelled at them to stop, but the driver of the truck didn’t hear this. The guard grabbed his machine pistol, and in response the veteran aimed his weapon. Another passenger yelled out “stop” and the truck stopped. The veteran was certain the guards were ready to shoot.

Decision

Reasons for decision

In light of the evidence before the Tribunal, I have concluded that the veteran does not have PTSD and therefore the decision under review must be affirmed. I also conclude that the alcohol use condition of the veteran, which is in remission, is not related to the service rendered by the veteran.DECISION I affirm the decision under review.

Ratio Decidendi

Legal Principle Established

The respondent submits that, if the Tribunal considers that the veteran does suffer from PTSD, the veteran does not satisfy the relevant SoP. The respondent considers that the veteran has failed to establish that he experienced a category 1A stressor. The respondent submits that even if it were accepted that the veteran experienced a category 1A stressor during his service in Malaysia, this was not, on the balance of probabilities, causative of any diagnosed psychiatric condition.CONSIDERATION At the outset of my consideration I state that I respectfully adopt the reasoning of Deputy President Jarvis in Filsell and Comcare[52] that concepts such as estoppel have no place in administrative decision-making. The appropriate mechanism to deal with any abuse of process in the Tribunal is s 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) where an application before the Tribunal is frivolous or vexatious. No application for a preliminary hearing under is s 42B of the AAT Act was made by the respondent.[52] (2009) 109 ALD 198; [2009] AATA 90 at [52]. After the veteran made his claim that he had PTSD he was examined by Dr Arnold. On 5 November 2002 Dr Arnold made a comprehensive 18-page report on the mental health state of the veteran.[53] Dr Arnold, who is an experienced psychiatrist, examined whether the veteran had PTSD. She reported:On specific questioning with regard to Post Traumatic Stress Disorder, he denies any nightmares, any flashback memories, any avoidance of situations that might remind him of incidents that he had been involved in the past.[53] Exhibit A, T-Documents, T12. I do not accept the assertion of the veteran that he did not make these comments to Dr Arnold. The veteran admitted probably telling Dr Arnold that he was:Fully functioning, able to earn a living, no difficulties with any psychiatric disorder except for a period of burnout some years ago. I do not accept it as plausible that Dr Arnold had not accurately reported what the veteran had said to her when he accepted that he probably told her other statements that he was reported to have made to her. Dr Arnold further reported:[54]The history given about the way in which they approached the Department for a pension, that is an acquiantence [sic] having a pension for PTSD introducing them to an advocate, who then made the diagnosis. This combined with the inconsistencies and poor history given by Mr Green and his wife, strengthen my impression that Mr Green persues [sic] this claim on the basis of obtaining a pension and that he has no psychiatric disorder or post traumatic stress disorder related to experiences whilst he was in the Army. Although he does have the diagnosis of Substance Abuse – Alcohol Dependency, he has little insight into this or wish to seek treatment for the same.[54] Exhibit A, T-Documents, T12, pp. 98-99. Ever since Dr Arnold gave her report in 2002 the veteran has on different occasions given an inconsistent account of his experiences in the military and has made several assertions of several stressful incidents. These are referred to in the report of Dr Gelb dated 27 July 2005[55] as well in later accounts of the veteran.[55] Exhibit A, T-Documents, T30.