Grosvenor and Repatriation Commission

[2002] AATA 601

DECISION AND ORAL REASONS FOR DECISION [2002] AATA 601

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2001/323

VETERANS' APPEALS  DIVISION       )          
           Re      JAMES BRENDON GROSVENOR        
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Senior Member WJF Purcell        

Date11 July 2002

PlaceAdelaide

Decision      For the reasons given orally at the Hearing of this matter, the Tribunal decides that it does not have jurisdiction in these proceedings, to make a determination in respect of the condition of post traumatic stress disorder.
  .              (Signed)
  WJF PURCELL
  (Senior Member)
CATCHWORDS
PRACTICE & PROCEDURE – jurisdiction – whether PTSD is properly before Tribunal  

ORAL REASONS FOR DECISION

11 July 2002   Senior Member WJF Purcell                 

1. The applicant has applied for review of a decision of the respondent (the Commission) dated 10 December 1998, which refused a claim for medical treatment and pension for incapacity from "stress and anxiety", which the Commission described as "psychoactive substance abuse or dependence involving alcohol".  The Commission did not accept the condition was war-caused.  The decision was affirmed by the Veterans' Review Board (VRB) on 19 February 2001.

2. The matter came on for hearing in relation to jurisdiction, as the applicant maintains that the application currently before the Tribunal includes a reconsideration of whether the applicant suffered post traumatic stress disorder (PTSD) as diagnosed by Dr Ewer, Psychiatrist, in his report of 18 February 2000.  The Commission argues that the Tribunal does not have jurisdiction to make a determination in respect of PTSD.

3. The applicant, who is 56 years of age, joined the Royal Australian Airforce (RAAF) on 14 August 1967 and was discharged on 13 August 1973.  His operational service was in Vietnam from 21 November 1969 to 20 November 1970, attached to No 2 Squadron.  He also rendered defence service from 7 December 1972 to 13 August 1973.  

4. On 16 October 1998, the applicant lodged a claim for Disability Pension, in relation to his "stress and anxiety".  In response to the question "why do you believe your service caused, contributed to or aggravated this disability?" the applicant stated "please refer to Dr E. Jensen". 

5. At the request of the Department of Veterans' Affairs (the Department), Dr Jensen, Psychiatrist, provided a report dated 3 December 1998, in which she diagnosed the condition of "alcohol dependence with psychological dependence".  She made no mention of any other psychiatric condition, nor of PTSD, and commented that the applicant's symptoms of stress and anxiety were "related to his alcohol dependency".

6. On 10 December 1998 the Commission rejected the applicant's claim, and on 15 October 1999, he lodged a further claim for acceptance of his disability of "stress and anxiety" and "alcoholic abuse".   He was advised on 4 November 1999 that this new claim was invalid as he still had a right of appeal to the VRB, and that the claim would be treated as an appeal to the VRB against the rejection of the condition of psychoactive substance abuse, or dependence involving alcohol.

7. The applicant was examined by Dr Ewer, Psychiatrist, on 2 December 1999, and he diagnosed PTSD and stated that the applicant had suffered alcohol abuse or dependence and nicotine abuse and dependence since he went to Vietnam.

8. On 20 January 2000 the applicant submitted a claim for a service pension on the grounds of permanent incapacity.  He stated that he was suffering from PSTD with alcohol abuse.  This is the first mention of PTSD in the applicant's own documents.

9. On 25 February 2000, the applicant lodged a further claim for Disability Pension, alleging as his new disability, "PTSD".  The Commission advised him on 29 February 2000, in part, as follows:

   "The Veterans' Entitlement Act does not allow the making of a further new disability claim for PTSD when an application for review in respect of the same matter is before the Veterans' Review Board.  In your case you have applied to the Veterans' Review Board for a review of the decision of the delegate of the Repatriation Commission on 10th December 1998, which dealt with the subject of your current new disability claim for PTSD.  Note that the original claim was for 'stress and anxiety', so a diagnosis of PTSD fits under this original claim."

10. On 19 February 2001 the VRB affirmed the Commission's decision to reject psychoactive substance abuse or dependence involving alcohol.  I note that PTSD was mentioned in the course of the VRB hearing, but the VRB referred only to the Statement of Principles for psychoactive substance abuse or dependence, and made no determination regarding PTSD.  The applicant has applied to this Tribunal for review of that decision.

11. On 20 February 2001 the applicant lodged a further claim for "stress/anxiety/emotional behavioural".  He stated he had been treated for PTSD as a day patient at the Repatriation General Hospital.  On 23 March 2001 a delegate of the Commission advised the applicant that the claim was invalid, as he still had a right of appeal to this Tribunal.

12. On 19 August 2001 the applicant lodged a further claim for PTSD and on 4 September 2001 the Commission determined that PTSD was not war-caused.  On 13 September 2001 he lodged an application for review with the VRB.  I was informed by Mr Doube at the Hearing, that the VRB hearing will not proceed until the question of this Tribunal's jurisdiction has been decided.

13. The applicant submits that his first application for "stress and anxiety" lodged on 16 October 1998 was wrongly decided by the Commission; that the diagnosis should have been PTSD, which is also supported now by the opinion of Dr Ewer, of 18 February 2000; that the applicant's condition satisfies the diagnoses of chronic PTSD and alcohol abuse and dependence; and in effect that the applicant's original claim for stress and anxiety covers both conditions, and the current application before the Tribunal can include a reconsideration of the condition of PTSD.

14. The Commission argues that PTSD and psychoactive substance abuse, or dependence involving alcohol, are separate conditions with separate Statements of Principle.  The reviewable decision before the Tribunal relates to "psychoactive substance abuse or dependence involving alcohol" in line with Dr Jensen's diagnosis in December 1998.  The first time the Commission became aware that the applicant was suffering from PTSD was on 20 February 2000, some 14 months after the original decision regarding psychoactive substance abuse or dependence involving alcohol, when the applicant lodged a claim for a service pension.

15. The first time the applicant made a formal claim for PTSD, was on 25 February 2000, and the Commission acknowledges that the advice given to the applicant on 29 February 2000 was incorrect, and that the claim for PTSD lodged on 25 February 2000 was a valid claim.  In that event, the determination of the Commission regarding PTSD dated 4 September 2001 ought to have recognised the date of lodgment for the first claim for PTSD was really 25 February 2000, and not 29 August 2001.

16. In my view, the Commission's argument must succeed.  "PTSD" and "psychoactive substance abuse or dependence involving alcohol", are separate conditions with separate Statements of Principle.  The Commission provided incorrect advice to the applicant on 29 February 2000 that his claim could not be accepted as he still had a matter before the VRB in relation to stress and anxiety, and that a diagnosis of PTSD fitted under that original claim.  The Commission should have accepted the applicant's claim for PTSD lodged on 25 February 2000, as a separate claim, and the determination of the Commission of 4 September 2001 should reflect that the applicant's claim was lodged on 25 February 2000, in lieu of 29 August 2001.

17. The applicant has lodged an application for review to the VRB, and when the VRB has reviewed the matter, the decision will be a reviewable decision.  The applicant can apply then to this Tribunal for review of the decision, and the applications could be joined, and heard concurrently.  I consider that, until then, there is no reviewable decision in relation to the condition of PTSD, and that the Tribunal does not have jurisdiction, therefore, to make a determination in respect of the condition.

18. For these reasons, the Tribunal decides that it does not have jurisdiction in these proceedings, to make a determination in respect of the condition of PTSD.

    I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

    Signed:         .....................................................................................
      Associate

    Date of Hearing  11 July 2002
    Date of Decision  11 July 2002
    Counsel for the Applicant        Mr C Swan
    Solicitor for the Applicant         Swan Lawyers
    Counsel for the Respondent    Mr G Doube
    Solicitor for the Respondent    DVA