Hunter and Repatriation Commission

Case [2002] AATA 485

DECISION AND REASONS FOR DECISION [2002] AATA 485

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1421

VETERANS' APPEALS DIVISION          )          
           Re      BRIAN KARL HUNTER    
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr M J Sassella Senior Member Dr M E C Thorpe, Member

Date21 June 2002

PlaceSydney

Decision      The tribunal sets aside the decision under review and finds instead that the applicant suffers from the war-caused disease of anxiety disorder and that this decision is to operate with effect from 1 November 1999.  The matter is remitted to the respondent for the assessment of the proper rate of pension.      
  [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – whether post-traumatic stress disorder a war-caused disease – whether alcohol abuse or dependence a war-caused disease – whether anxiety disorder a war-caused disease – whether adjustment disorder a war-caused disease – whether veteran experienced a severe stressor – whether veteran experienced a severe psychosocial stressor – actual death, injury or threat of death or injury required for experiencing a severe stressor – diagnosis to be established to reasonable satisfaction of decision-maker – duty of decision-maker to investigate diagnoses not raised by veteran – role of veteran's representatives in identifying potential diagnoses

Veterans' Entitlements Act 1986 ss 5D(1) ("disease", "injury"), 6D, 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 22(2), 68(1) ("defence service", "member of the Forces"), 69(1)(a) – (c), 70(1)(b), (d), 71(1), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), 196D

Statement of Principles 3/99 concerning post-traumatic stress disorder as amended by 54/99
Statement of Principles 76/98 concerning alcohol dependence or alcohol abuse.
Statement of Principles 1/2000 concerning anxiety disorder

Benjamin v Repatriation Commission (2001) 34 AAR 270
Benjamin v Repatriation Commission (2001) 64 ALD 411
Budworth v Repatriation Commission (2001) 63 ALD 402
Bull v Repatriation Commission [2001] FCA 1832
Re Kelly and Repatriation Commission [2001] AATA 254
Meehan v Repatriation Commission (2001) 64 ALD 366
Repatriation Commission v Budworth (2001) 33 AAR 476
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gosewinckel (1999) 59 ALD 690

REASONS FOR DECISION

21 June 2002          Mr M J Sassella, Senior Member Dr M E C Thorpe, Member   

HISTORY OF APPLICATION

  1. On 1 February 2000 Mr Brian Karl Hunter ("the applicant") lodged with the Department of Veterans' Affairs ("DVA") a claim for a Disability Pension (T7).  He claimed for conditions post-traumatic stress disorder ("PTSD"), alcohol abuse, chronic gastritis and gastro-oesophageal reflux disease ("GORD"). 

  2. On 16 March 2000 a Repatriation Commission ("respondent") delegate decided to reject the claim for PTSD and alcohol abuse but to accept the claims for chronic gastritis and GORD (T9).  Earlier, the respondent had accepted bilateral sensori-neural hearing loss as war-caused with effect from 27 April 1998 (T6).  That attracted pension at 10% of the general rate.  The new rate of pension, effective from 1 November 1999, was 40% of the general rate because of the acceptance of the additional diseases as war-caused.

  3. On 10 May 2000 the…

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Hunter and Repatriation Commission [2002] AATA 485
Case
[2002] AATA 485
Decision Date

CaseChat Overview and Summary

The matter before the court involves Mr Hunter, a veteran, who is seeking a review of the decision of the Veterans' Review Board (VRB) to affirm the decision of the Repatriation Commission to refuse his claim for a disability pension on the grounds that he did not suffer from a war-caused disease. The primary issues before the court were whether Mr Hunter experienced a severe stressor during his operational service that would qualify as a war-caused disease under the Veterans' Entitlements Act 1986, and whether the evidence presented was sufficient to establish his claims of post-traumatic stress disorder (PTSD), alcohol abuse, anxiety disorder, and adjustment disorder as war-caused diseases.

The court considered the statutory definitions of "disease" and "injury" within the context of the Act, as well as the specific Statements of Principles concerning PTSD, alcohol dependence or abuse, anxiety disorder, and adjustment disorder. The tribunal examined the medical evidence provided by psychiatrists Dr Altman and Dr Dinnen, who diagnosed Mr Hunter with PTSD and alcohol dependence, attributing these conditions to traumatic events during his service on HMAS Teal. The court also reviewed the VRB's decision, which found that Mr Hunter did not experience a severe stressor during his operational service as defined by the relevant Statements of Principles.

The court found that the VRB's decision was legally sound, as it correctly applied the relevant provisions of the Act and the Statements of Principles. The court held that the VRB's conclusion that Mr Hunter had not experienced a severe stressor during his operational service was supported by the evidence. The court further held that the evidence did not establish that Mr Hunter's conditions were war-caused diseases within the meaning of the Act. The court dismissed Mr Hunter's appeal, affirming the VRB's decision.

The final orders of the court were that Mr Hunter's appeal be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The tribunal notes that the parties have agreed that the appropriate diagnoses are PTSD and alcohol dependence or alcohol abuse (ex R1). The only issues are whether Mr Hunter experienced stressors during operational service sufficient to satisfy the relevant SoPs.medical evidence Dr G Altman, a psychiatrist, diagnosed a severe chronic PTSD with an associated major depression and alcohol dependence resulting from Mr Hunter having witnessed the collision between the HMAS Melbourne and the Frank E Evans in 1969, not a time within his operational service (T5). Dr Altman later (T7/46) diagnosed the same illnesses but attributed their onset to Mr Hunter's service in the Malaysian Federation Anti-confrontation on the Teal from May 1965 to January 1966 when he worked as a leading radio operator. He relied on the three allegedly traumatic events summarised above in paragraph 5. Dr Altman later (T8) reiterated his earlier diagnoses but stressed more so Mr Hunter's service subsequent to the Frank E Evans collision as having aggravated the PTSD. Dr A Dinnen, a psychiatrist (ex A3), writing on 31 January 2001 was of the opinion that Mr Hunter was suffering from PTSD and alcohol abuse consequent to his service in the navy for over 21 years. "The significant traumatic events which he recounted, including his service on HMAS Teal and later on the Melbourne would provide sufficient 'stressors' in my view and based on my experience to cause a post traumatic stress disorder. The patient's initial proposition, echoed by Dr Altman's 3rd report, that service on the Teal predisposed him to the condition which was aggravated by the Melbourne/Evans collision is in accord with my opinion." Dr Dinnen recorded the following account of the applicant's experiences on the Teal:"He met the old crew that they were relieving and they described an encounter with Indonesian saboteurs. They told of being fired upon by Indonesians, and between the first and second shot they responded on the Teal with 2000 rounds of ammunition. They killed all nine infiltrators. This incident occurred in the Straits of Malacca of the Malaysia Coast."The patient said the men who recounted story did so in a somewhat macho manner. But now he knew they were in serious business. He was apprehensive about what they were going to find as they continued their mission."The patient told me there were 26 men on board the Teal. There were two other radio operators apart from himself. The main gun was a 40/60 Bofor and each man had his own small arms weapons. They were not very well armed he thought, with one antiaircraft gun and small arms. His weapon was a 303 Armalite."The patient said that he manned the wireless office while the ship was at Action Stations and was the only one to remain below decks. He was promoted to senior radio operator for this to be his responsibility. He said there were a couple of approach stations, when the ship was darkened, following radar contact. They would approach the area, then fire a star shell, and see if there was any enemy vessel. He recalled laying on the deck on his belly with his rifle, when this procedure was being carried out. There were three such episodes he recalls clearly. He describes feelings at the time as being 'absolutely terrified'."The patient told me the Teal was on duty in this fashion for eight months. They would spend twelve days carrying out operational activities and then two days in harbour undergoing replenishment."There was another incident that he describes to me. An Indonesian destroyer was inside Singapore territorial waters. He was at the radio in the wireless office and the ship was closed up to action stations. He sent off the message to the CIC (commander in chief) Far East Fleet, following the captain's orders, that their vessel intended engaging the Indonesian destroyer. They were leaving the harbour to do so. The patient said he had no knowledge below decks what was actually happening, but his instructions were that he was to get rid of any classified documents if their vessel was boarded. He was told subsequently that the Teal steamed up alongside the Indonesian destroyer, with all men on deck aiming their weapons at the vessel, and asked the destroyer what they were doing. The reply was, somewhat ingenuously, that they had lost their way and wanted to be guided back. The crisis resolved satisfactorily."

Decision

Reasons for decision

On 25 May 2000 a delegate within DVA reviewed the decision in question in accordance with s 31 of the Veterans' Entitlements Act 1986 ("the Act") and decided that there were no grounds for interfering with the decision under review (T11).reviewable decision On 9 August 2000 the VRB decided to affirm the decision under review (T13). It identified the case in support of the condition of PTSD as follows: The VRB conceded the stressful nature of the experiences but considered that, as in each case there had been a perceived rather than real threat of death or serious injury, Mr Hunter had not experienced a severe stressor within the terms of the SoP. The VRB considered the period of Mr Hunter's defence service and found nothing there related to the development of PTSD. There was therefore no reasonable hypothesis to connect the applicant's eligible service with his PTSD. As regards alcohol dependence and alcohol abuse, the VRB found the relevant SoP not satisfied because of the lack of a severe stressor and the lack of a psychiatric disorder that was related to eligible service. On 22 August 2000 the VRB wrote to Mr Hunter to advise its decision (T14). On 6 September 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the decision as affirmed by the VRB (T1).RELEVANT LEGISLATION The following provisions of the Veterans' Entitlements Act 1986 are relevant: ss 5D(1) ("disease", "injury"), 6D, 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 21A, 22(2), 68(1) ("defence service", "member of the Forces"), 69(1)(a) – (c), 70(1)(b), (d), 71(1), 73(1), 120(1), (3), (4), (5), (6), 120A(1), (3), 120B(1), (3), 196B(1), (2), 196D.VETERANS' ENTITLEMENTS ACT 1986Injury/disease definitions5D.(1) In this Act, unless the contrary intention appears:…disease means:(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or(b) the recurrence of such an ailment, disorder, defect or morbid condition;but does not include:(c) the aggravation of such an ailment, disorder, defect or morbid condition; or(d) a temporary departure from:(i) the normal physiological state; or(ii) the accepted ranges of physiological or biochemical measures;that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels);…injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:(a) a disease; or(b) the aggravation of a physical or mental injury.…Operational service - other post World War 2 service 6D.(1) This section applies to a member of the Defence Force who, or a member of a unit of the Defence Force that: (a) was assigned for service: (i) in Singapore at any time during the period from and including 29 June 1950 to and including 31 August 1957; or (ii) in Japan at any time during the period from and including 28 April 1952 to and including 19 April 1956; or(iii) in North East Thailand (including Ubon) at any time during the period from and including 31 May 1962 to and including 24 June 1965; or (b) was, at any time during the period from and including 1 August 1960 and including 27 May 1963, in the area comprising the territory of Singapore and the country then known as the Federation of Malaya;but so applies only if the member, or the unit of the member, is included in a written instrument issued by the Defence Force for use by the Commission in determining a person's eligibility for entitlements under this Act.(2) A person to whom this section applies is taken to have been rendering operational service during any period during which he or she was rendering continuous full-time service as:(a) a member of the Defence force; or (b) a member of a unit of the Defence Force; while the person was in the area described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be).(3) For the purposes of subsection (2), the operational service of a person to whom this section applies: (a) is taken to have started: (i) if the person was in Australia on the day (relevant day) from which his or her unit was assigned for service as described in paragraph (1)(a) or attached to the Far East Strategic Reserve (as the case may be)—on the day on which the member left the last port of call in Australia for that service; or (ii) if the person was outside Australia on the relevant day—on that day; and(b) is taken to have ended:(i) if the member was assigned for service in another country or area outside Australia (not being an operational area)—the day from which the member was assigned to that other country or area, or the day on which the member arrived at that other area, whichever is the later; or (ii) in any other case—the day on which the member arrived at the first port of call in Australia on returning from operational service.Eligible war service 7.(1) Subject to subsection (2), for the purposes of this Act: (a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …War-caused injuries or diseases 9.(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; …(e) the injury suffered, or disease contracted, by the veteran: …(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service; and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; but not otherwise. …Eligibility for pension 13.(1) Where: …(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease; the Commonwealth is, subject to this Act, liable to pay: …(d) in the case of the incapacity of the veteran—pension by way of compensation to the veteran; in accordance with this Act. …Claim for pension 14.(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3). …(3) A claim for a pension: (a) shall be in writing and in accordance with a form approved by the Commission; (b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and (c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b). (4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim. …Date of operation of grant of claim for pension 20.(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14(3)(a) was received at an office of the Department in Australia. …Determination of degree of incapacity 21A.(1)The Commission shall, subject to subsections (2) and (3), determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions. (2) Subject to subsection (3), the degree of incapacity shall be determined as 10% or a multiple of 10%, but not exceeding 100%. (3) The Commission may determine that the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, is less than 10% (including 0%), and, where it does so, it shall not assess a rate of pension, but shall refuse to grant a pension to the veteran on the ground that the extent of the incapacity of the veteran from that war-caused injury or war-caused disease, or both, is insufficient to justify the grant of a pension. General rate of pension and extreme disablement adjustment22.(1) ……(2) Subject to this Division, the rate at which pension is payable to a veteran to whom this section applies in respect of the incapacity of the veteran from war-caused injury or war-caused disease, or both, is the rate per fortnight that constitutes the same percentage of the general rate as the percentage determined by the Commission in accordance with section 21A to be the degree of incapacity of the veteran from that war-caused injury or war-caused disease, or both, as the case may be.…Interpretation68.(1) In this Part, unless the contrary intention appears:…defence service means:(a) continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and(b) in the case of a person who:(i) was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;(ii) continued so to render continuous full-time service until and including the day immediately before the terminating date; and(iii) was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date; includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:(iv) the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or(v) the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve; whichever occurs first; and…member of the Forces means a person to whom this Part applies by virtue of section 69 or 69A;…Application of Part to members of the Forces69.(1) Subject to this section, where a person:(a) has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or(b) is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;this Part applies to the person:(c) if the person:(i) has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and(ii) has, whether before or after that date, completed 3 years' effective full-time service as such a member; or…Eligibility for pension under this Part70.(1) Where:…(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;the Commonwealth is, subject to this Act, liable to pay:…(d) in the case of the incapacity of the member—pension by way of compensation to the member;in accordance with this Act.…Application of certain provisions of Part II71.(1) Divisions 2A, 3, 6 and 7 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as they apply to and in relation to pensions payable in accordance with Part II.…Application of Divisions 4 and 5 of Part II73.(1) The provisions of Divisions 4 and 5 of Part II apply to and in relation to pensions payable in accordance with this Part in like manner as those provisions apply in relation to pensions payable in accordance with Part II.…Standard of proof 120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Note: This subsection is affected by section 120A. …(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. Note: This subsection is affected by section 120A. (4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction. (5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;(c) the death of a person is war-caused or defence-caused; or(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act. (6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application. …Reasonableness of hypothesis to be assessed by reference to Statement of Principles 120A.(1) This section applies to any of the following claims made on or after 1 June 1994: (a) a claim under Part II that relates to the operational service rendered by a veteran; (b) a claim under Part IV that relates to: (i) the peacekeeping service rendered by a member of a Peacekeeping Force; or (ii) the hazardous service rendered by a member of the Forces. Note 1: Subsections 120(1), (2) and (3) are relevant to these claims. Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). …(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force: a Statement of Principles determined under subsection 196B(2) or (11); or a determination of the Commission under subsection 180A(2); that upholds the hypothesis. Note: See subsection (4) about the application of this subsection. …Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles120B.(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.Note 1: Subsection 120 (4) is relevant to these claims.Note 2: For hazardous service and member of the Forces see subsection 5Q (1A).(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or(b) has declared that it does not propose to make such a Statement of Principles.(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and(b) there is in force:(i) a Statement of Principles determined under subsection 196B (3) or (12); or(ii) a determination of the Commission under subsection 180A (3);that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.…Functions of Authority 196B.(1) This section sets out the functions of the Repatriation Medical Authority. Determination of Statement of Principles (2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to: (a) operational service rendered by veterans; or (b) peacekeeping service rendered by members of Peacekeeping Forces; or (c) hazardous service rendered by members of the Forces; the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out: (d) the factors that must as a minimum exist; and (e) which of those factors must be related to service rendered by a person; before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service. Note 1: For sound medical-scientific evidence see subsection 5AB(2). Note 2: For peacekeeping service , member of a Peacekeeping Force , hazardous service and member of the Forces see subsection 5Q(1A). Note 3: For factor related to service see subsection (14). …Disallowable instrument 196D. A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Ratio Decidendi

Legal Principle Established

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