JAMES RICHARD IBBETSON and REPATRIATION COMMISSION - [2012] AATA 167

[2012] AATA 167

Division	VETERANS' APPEALS DIVISION
File Number	2010/3871
Re	JAMES RICHARD IBBETSON
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	16 March 2012
Place	Melbourne

The Tribunal sets aside the decision the decision under review and substitutes a decision that Mr Ibbetson suffers from post-traumatic stress disorder which is war-caused with effect from 17 April 2009. In all other respects the Tribunal affirms the decision under review.

..................[sgd]......................

G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – post-traumatic stress disorder – traumatic events – whether condition diagnosed and war-caused

Veterans' Entitlements Act 1986 ss 9, 120(1)

Benjamin v Repatriation Commission (2001) 70 ALD 622

Kaluza v Repatriation Commission [2010] FCA 1244

Mines v Repatriation Commission (2004) 86 ALD 62

Re Codd and Repatriation Commission [2008] AATA 1177

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hill [2008] FCA 50

Repatriation Commission v Warren [2007] FCA 866

REASONS FOR DECISION

G. D. Friedman, Senior Member

James Ibbetson served in the Australian Army from 22 January 1964 to 2 July 1971. His service in Vietnam from 17 January 1968 to 6 February 1969 constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Ibbetson is currently receiving a disability pension at 100 per cent of the general rate based on the acceptance by the respondent that his medical conditions of bilateral sensorineural hearing loss and ischaemic heart disease are war-caused. On 17 July 2009 Mr Ibbetson lodged a claim for post-traumatic stress disorder (PTSD) and alcohol abuse to be accepted as war-caused relating to events that occurred during his service in Vietnam. His claim was refused by the respondent and the decision was affirmed by the Veterans’ Review Board (VRB). Mr Ibbetson seeks review only of the decision regarding PTSD.

ISSUES

The issues before the Tribunal are whether Mr Ibbetson suffers from PTSD, and, if so, whether the condition is war-caused.

DOES MR IBBETSON SUFFER FROM PTSD?

The Tribunal is required to determine to its reasonable satisfaction whether Mr Ibbetson suffers from any particular injury or disease (Benjamin v Repatriation Commission (2001) 70 ALD 622).
In the Diagnostic and Statistical Manual of Mental Disorders (Fourth Ed, Text Revision) (DSM-IV) a diagnosis of PTSD requires that:
A.        The person has been exposed to a traumatic event in which both of the following were present:
(1)       the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others
(2)       the person’s response involved intense fear, helplessness, or horror…

Using this definition there must be both a traumatic event, which answers the description given, and a response of the required intensity. In Mines v Repatriation Commission (2004) 86 ALD 62 Gray J said at 74:
If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s…

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: [2012] AATA 167
Decision Date: 16 March 2012

CaseChat Overview and Summary

The applicant, James Richard Ibbetson, sought review of a decision of the Veterans’ Review Board that refused his claim for a disability pension on the basis that his post-traumatic stress disorder (PTSD) was not war-caused. Ibbetson served in the Australian Army from 22 January 1964 to 2 July 1971, including operational service in Vietnam from 17 January 1968 to 6 February 1969. He claimed that he suffered from PTSD and alcohol abuse relating to events that occurred during his service in Vietnam. The Tribunal found that Ibbetson was exposed to traumatic events during his service in Vietnam, including an incident where a satchel containing explosives was placed on the side of a bus he was travelling on. Ibbetson experienced intense fear, helplessness, and horror in response to this event, which constituted a traumatic event for the purposes of diagnosing PTSD. The Tribunal also found that Ibbetson’s PTSD was war-caused, as it satisfied the criteria set out in the applicable Statement of Principles. The Tribunal set aside the decision under review and substituted a decision that Ibbetson suffers from PTSD which is war-caused with effect from 17 April 2009. In all other respects, the decision under review was affirmed.

Orders