Hawkins and Repatriation Commission - [2001] AATA 565

DECISION AND REASONS FOR DECISION [2001] AATA 565

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/672

VETERANS' APPEALS DIVISION       )
           Re      KENNETH ALFRED HAWKINS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date21 June 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – hypertension - impotence - osteoarthritis right shoulder - gout - depressive disorder - trait anxiety - alcohol dependence – post traumatic stress disorder – psychoactive substance abuse - whether condition related to war service –whether condition satisfies the relevant Statement of Principles – stressful event – reasonable hypothesis linking condition to war service
Veterans' Entitlements Act 1986, ss ss 7(1)(c), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 120(4). 120B(1), (3), (4)
Statement of Principles concerning Psychoactive Substance Abuse, No 6 of 1994
Harris v Repatriation Commission [2000] FCA 873
Repatriation Commission v Binding [1999] FCA 974
Budworth v Repatriation Commission [2001] FCA 317

REASONS FOR DECISION

21 June 2001 M J Sassella, Senior Member

History of the application

On 9 June 1998 Kenneth Alfred Hawkins ("the Applicant") lodged an application with the Department of Veterans' Affairs ("the DVA") claiming certain conditions as war or defence caused (T4). The conditions as stated on the application were hypertension, impotence, lumbar spondylosis, osteoarthritis, gout, cervical spondylosis, post traumatic stress disorder ("PTSD") and varicose veins. He stated on the application that service related alcohol abuse and obesity had caused his hypertension and that his impotence was caused by excessive drinking and continuous use of medication to control hypertension. The Applicant claimed that his lumbar and cervical spondylosis and osteoarthritis were caused by a trauma experienced due to a plane crash in 1944/45, as was his PTSD.
On 21 October 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claim for "hypertension, impotence, lumbar spondylosis, osteoarthritis right shoulder, osteoarthritis right knee, gout, cervical spondylosis, varicose veins both legs, depressive disorder and trait anxiety and alcohol dependence" (T9). The Respondent found variously that either the conditions were not related to service, that they failed to meet the requirements of the relevant Statement of Principles ("SoP") or that there was insufficient evidence of the claimed condition.
On 29 October 1998 the Applicant lodged an application for review of the above decision with the Veterans' Review Board ("the VRB") (T10).
On 4 December 1998 the Respondent wrote to the Applicant informing him that it had decided not to conduct a review pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).
The decision under review
The decision under review is that of the VRB dated 22 February 1999 (T13) which affirmed the decision of the Repatriation Commission of 21 October 1998. In relation to alcohol dependence the VRB relied on the report of Dr Richardson of 31 August 1998 (T8) where he stated that the Applicant's psychiatric condition was not related to wartime service but to alcohol abuse. The Applicant's alcohol dependence could therefore also not…

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 565
Decision Date: 21 June 2001

CaseChat Overview and Summary

The case of Hawkins and the Repatriation Commission involves a veteran who applied for review of the decision of the Veterans' Review Board (VRB) regarding his eligibility for certain veterans' entitlements. The veteran claimed that several of his medical conditions, including hypertension, impotence, osteoarthritis of the right shoulder, gout, depressive disorder, trait anxiety, alcohol dependence, post-traumatic stress disorder, and psychoactive substance abuse, were related to his service in the Royal Australian Air Force during World War II. The court was tasked with determining whether these conditions were related to his war service and whether they satisfied the relevant Statement of Principles. The primary legal issues revolved around the interpretation of the Veterans' Entitlements Act 1986 and the relevant Statements of Principles, specifically whether the veteran's conditions were service-related and met the criteria set out in the legislation and associated guidelines.

The court examined the evidence presented by the veteran and the medical reports to assess the connection between the claimed conditions and his war service. The veteran provided detailed accounts of his service experiences, including a plane crash, and described how his alcohol consumption began during his military training. The medical reports, including those from Dr. Schmidtman, a consultant psychiatrist, and Dr. Laden, a general practitioner, provided diagnoses and insights into the veteran's conditions and their potential origins. The court considered whether the veteran's claims were supported by sufficient evidence to establish a reasonable hypothesis linking his conditions to his war service. The VRB had previously found that the veteran's psychiatric condition was not related to wartime service but rather to alcohol abuse and that the plane crash incident did not constitute a severe stressor.

In its decision, the court upheld the findings of the VRB, concluding that the veteran had not provided sufficient evidence to establish a causal link between his claimed conditions and his war service. The court found that the veteran's alcohol dependence and psychiatric conditions were not related to his military service and that the plane crash did not meet the criteria for a severe psychosocial stressor. Additionally, the court determined that there was insufficient evidence to support the veteran's claims regarding his other medical conditions, such as hypertension and osteoarthritis. Consequently, the court affirmed the decision of the VRB, denying the veteran's application for review and upholding the original decision that he was not entitled to the claimed veterans' entitlements.

Orders

Orders of the court

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Background

Background to the litigation

On 7 May 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision of the VRB.Background The following is largely from Dr Richardson's report (T8). The Applicant was born on 3 September 1925. His parents separated when he was about 10 years old. He initially lived with his father for three years while his sister lived with his mother. At age 13 he went to live with his mother and older sister in Bondi (Exhibit A3). He left school at age 14 gaining his intermediate certificate and then worked in clerical and accountancy positions. The Applicant married in 1948 and separated in 1973. At this time he was drinking excessively and was suffering from impotence. He remarried in 1970 but the marriage broke down 7 years later, again due to sexual problems. The Applicant has two sons from his first marriage and one daughter from his second. He is in regular contact with his younger son and daughter but has no contact with his older son (Exhibit A3). The Applicant studied accountancy through the CRTS scheme and worked for a furniture company in Dulwich for 21 years until 1968. When his first marriage broke down he moved to Wauchope where he managed a plywood mill, finishing as general manager. He then managed a motel in Port Macquarie for five years, eventually living there for 20 years. It was there that he met his second wife. After the breakdown of that marriage he moved to Forster/Tuncurry where he has lived for the past 12 years (Exhibit A6). The Applicant lives alone, renting an apartment from the Department of Housing. He currently has no DVA entitlements. The Applicant served in the Royal Australian Air Force ("the RAAF") from 1 January 1944 to 25 July 1945. He trained as an airman, but was discharged before the end of war. This service constitutes eligible service as defined in the Act. In "late 1944 or early 1945" the Applicant was involved in a plane crash (folio 45 of the T documents). He was flying a Tiger Moth aircraft during training in Benalla. He suffered only minor injuries at the time and continued flying the following day, despite being "very shocked". On 17 June 1998 the Applicant completed a claimant alcohol questionnaire for the DVA (T5). He stated that he started consuming alcohol on approximately 14 January 1944, drinking once per week. At that time he drank two schooners of beer on each occasion. In an attached statement the Applicant stated that he started drinking after joining the RAAF. He was under constant pressure due to study, exams, physical training and discipline, all of which were new experiences. Drinking on Friday nights was a means of relaxing. After the Applicant went to Narrandera with the 8EFTS he started binge drinking on weekends. After his return to civilian life he continued drinking four to six schooners per day. He had put on two stone in weight during his service, due to his excessive drinking, and started to have blood pressure and gout problems. The Applicant stated on the form that he currently drank every day, in the amount of three to four schooners of beer and one or two glasses of wine on each occasion.

Evidence

Evidence Before The Court

On 21 September 1999 the Applicant wrote a statement about his wartime experiences (Exhibit A4). Specifically he provided a more detailed account of the Tiger Moth plane crash. He stated that upon landing the weather conditions had changed dramatically with an extremely strong wind, tipping the plane onto its wing, whereupon it flipped over. The Applicant fell out of the plane on his neck and right shoulder. Although he felt severe pain he ignored it in order to get away from the plane, fearful that it would explode. He stated that his neck and shoulder were sore for several weeks. The Applicant also described in this statement how he started drinking during RAAF training at 2ITS at Lindfield. He got into the habit of drinking five to six schooners at a time, although the regularity or otherwise of his drinking habit at this time was not mentioned. After he left the RAAF he drank four to six schooners per day in addition to wine or spirits at night. He blamed his failed marriages on his alcohol abuse.Documentary medical evidence On 9 April 1999 Dr Schmidtman, consultant psychiatrist, reported on the Applicant (Exhibit A3). He recorded the details of the Tiger Moth crash and how the Applicant described intense feelings of guilt and shame associated with this experience. The Applicant further stated that he had experienced recurrent distressing memories of the plane crash and avoids things that will remind him of it; "he often lies awake at night thinking about the crash." Dr Schmidtman noted the Applicant's history of social withdrawal, difficulties with relationships, recurrent bouts of depression and alcohol abuse. He diagnosed the Applicant as having "chronic PTSD and secondary depression and alcohol abuse, conditions related chronologically to his plane crash whilst a trained pilot during World War II." On 30 July 1998 Dr Laden, general practitioner, provided a series of medical reports for the DVA (T7). In relation to hypertension he stated that the onset of alcohol dependence and obesity occurred in 1944 and 1947 respectively. He again noted the onset of obesity as 1947 on the medical report relating to the Applicant's gout. The gout had been treated with Chlotride and Lasix since 1958. In relation to varicose veins Dr Laden found no "thrombophlebitis of deep vein in a lower limb or the pelvis", no "congestive cardiac failure" nor any "abdominal tumour causing lower limb venous obstruction." Further, in the report relating to lumbar spondylosis, the Applicant had suffered no lumbar intervertebral disc prolapse. Dr Laden stated that the Applicant did suffer a trauma to the lumbar spine as a result of the air crash of 1945 and noted that the Applicant had suffered approximately two weeks of pain "as a direct result of the injury". He also noted this history in relation to the osteoarthritis and cervical spondylosis forms that he completed for the Applicant. (This history of pain is not consistent with the Applicant's own statement regarding injury and pain).

Decision

Reasons for decision

On 4 December 1998 the Respondent wrote to the Applicant informing him that it had decided not to conduct a review pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12). The decision under review The decision under review is that of the VRB dated 22 February 1999 (T13) which affirmed the decision of the Repatriation Commission of 21 October 1998. In relation to alcohol dependence the VRB relied on the report of Dr Richardson of 31 August 1998 (T8) where he stated that the Applicant's psychiatric condition was not related to wartime service but to alcohol abuse. The Applicant's alcohol dependence could therefore also not be related to service as per paragraph 5(a) of the relevant SoP. The VRB further found that the plane crash incident did not satisfy the definition of a "severe stressor" which would then satisfy paragraph 5(b) of the relevant SoP. The VRB found in relation to hypertension that the Applicant had high blood pressure both at the time of enlistment and discharge. It was further found that there was no evidence that the condition was aggravated by war service. The Applicant did not weigh significantly more upon discharge that he did on enlistment and the VRB had already found that his alcohol dependence was not war caused. The Applicant had insufficient evidence that would reasonably satisfy the VRB that his hypertension satisfied any of the SoP requirements concerning hypertension. The Applicant had also claimed lumbar and cervical spondylosis, attributing them to trauma suffered as a result of a plane crash during 1944. There was no evidence of any injury to the spine immediately after or within 24 hours of the crash. The VRB relied on the Applicant's own statement of 17 June 1998 where he stated that a slight bruise on the hip was his "only apparent injury" (folio 45 of the T documents). It further noted that upon discharge the Applicant had stated that he had suffered no injury during his service and that the medical examination at this time found that his neck and back were normal. The Applicant had also claimed that his conditions of osteoarthritis right shoulder and right knee were related to the previously mentioned plane crash. Again the VRB relied on the Applicant's own statement that he had suffered no severe injury at the time. There was no evidence of "trauma to a joint" which would satisfy any of the SoP factors. The VRB examined the medical evidence in relation to the Applicant's varicose veins and found no evidence that his circumstances satisfied the relevant SoP. In relation to PTSD, the Applicant had claimed that this condition was also related to his service, attributable to the aircraft crash. The VRB noted the report of Dr Richardson, psychiatrist, of 31 August 1998 (T8) where it specifically states that the Applicant does not suffer from PTSD. The report further stated that the Applicant's psychiatric history was not related to war service and that he was not entitled to a DVA payment. The VRB found no evidence of a severe psychosocial stressor, incurred during service, that would have caused depressive disorder. The circumstances of the Applicant's condition did not meet the SoP requirements.

Ratio Decidendi

Legal Principle Established

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