Jean Isabel Holden and Repatriation Commission

[2014] AATA 810

[2014] AATA  810

Division	VETERANS' APPEALS DIVISION
File Number	2012/3424
Re	Jean Isabel Holden
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	30 October 2014
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that Mrs Holden be granted a widow's pension with effect from 28 July 2011.

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G. D. Friedman, Senior Member

VETERANS' AFFAIRS – veterans’ entitlements – widow’s claim – death from ischaemic heart disease – whether psychiatric condition contributed to ischaemic heart disease – remittal from Federal Court

LEGISLATION

Veterans' Entitlements Act 1986 (Cth) s 8

CASES

Holden and Repatriation Commission [2013] AATA 778

Repatriation Commission v Holden [2014] FCA 605

REASONS FOR DECISION

G. D. Friedman, Senior Member

30 October 2014

1. Jean Holden is the widow of Geoffrey Holden (the veteran), who died on 2 August 2011 from ischaemic heart disease (IHD).  Mrs Holden applied to the respondent for a widow’s pension under the Veterans’ Entitlements Act 1986 on the basis that her late husband suffered from a war-caused psychiatric condition which ultimately caused hypertension and led to his death from IHD.  The respondent refused the claim and the decision was affirmed by the Veterans’ Review Board.  Mrs Holden sought review of the decision and on 1 November 2013 the Tribunal set aside the decision and substituted a decision that Mrs Holden be granted a widow’s pension with effect from 28 July 2011 (Holden and Repatriation Commission [2013] AATA 778).

2. The respondent appealed the Tribunal’s decision to the Federal Court of Australia and on 12 June 2014 Mortimer J made the following orders (Repatriation Commission v Holden [2014] FCA 605):

   1.   The appeal be allowed.

   2.   The decision of the Administrative Appeals Tribunal dated 1 November 2013 be set aside.

   3.   Subject to paragraphs 4, 5 and 6 of these orders, the matter is remitted to the Tribunal as constituted for the decision made on 1 November 2013.

   4.   The Tribunal is directed to give further reasons, setting out the evidence or other material on which it based its findings in [47] and [48] of its reasons for decision dated 1 November 2013.

   5.   The reasons referred to in paragraph 4 of these orders are to be read with, and taken as supplementing, the reasons of the Tribunal given on 1 November 2013.

   6.   The Tribunal is to re-exercise its powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), in respect of the decision under review, on the material before it and in accordance with its reasons for the decision under review, as supplemented by the reasons which are the subject of paragraphs 4 and 5 of these orders.

3. The Tribunal’s Reasons for Decision dated 1 November 2013 set out the background and findings in respect of the decision under review.  In accordance with the orders of the Federal Court the Tribunal now provides its further reasons, setting out the evidence and other material on which it based its findings in [47] and [48] and substitutes the following paragraphs:

   47.In relation to the third step from Deledio the Tribunal has already found that the veteran suffered from PTSD which is a requirement of factor 6(rr)(iv) of SoP No. 89 of 2007 (as amended by SoP No. 43 of 2009) concerning IHD.  The Tribunal refers to the evidence from Dr Heffernan, who assessed the veteran in 2009, and who speculated that significant psychological dysfunction particularly evident in the context of the first marriage, and also evident in the veteran’s long-standing social isolation observed by Mrs Holden,…may be secondary to war service experience and the possible associated Post Traumatic Stress Disorder, and possible Alcohol Abuse.  Dr Heffernan recommended that the veteran be referred to an appropriate Aged Care Service for further assessment and psychological management, and stated that neuropsychological testing would be useful to clarify the underlying cognitive impairment issues.  The Tribunal also refers to the evidence from Dr Kernutt that the veteran had suffered from ongoing PTSD as a direct result of experiences during war service and was unlikely to have sought treatment for his psychological symptoms; from Mr Rose about the veteran’s demeanour and dark times; from Mrs Holden that the veteran was grumpy, irritable and angry and had anger management issues that were denied by the veteran; from Mrs Holden’s comment to Dr Heffernan that the veteran became pre-occupied with war-time experiences after his surgery in 1994 and only had one friend; and from Ms Newman that the veteran was aggressive but unemotional.  For these reasons the Tribunal considers that the hypothesis linking Mr Holden’s death from IHD with operational service (as the veteran’s war-caused PTSD was sufficient to warrant ongoing management), is reasonable and fits the template in the SoP because it is pointed to by the facts, because the veteran had PTSD at the time of clinical worsening of his IHD, even though not proved upon the balance of probabilities.  Therefore, Mrs Holden satisfies the third step.

   48.In relation to the fourth step from Deledio, on all the material the Tribunal is satisfied that the veteran’s PTSD is a disorder that attracts a diagnosis under DSM-IV-TR and was a clinically significant anxiety spectrum disorder as specified that was present at the time of clinical worsening of the veteran’s IHD. Although there is no evidence that the veteran visited a psychiatrist, clinical psychologist or general practitioner for treatment of his psychological symptoms, the Tribunal accepts the evidence from Dr Heffernan, Dr Kernutt, Mrs Holden, Mr Rose and Ms Newman about the veteran’s pre-occupation with war-time experiences after his surgery, and his demeanour as observed by Mrs Holden, Ms Newman and Mr Rose. The Tribunal concludes that his PTSD would have required a degree of management on a continuous basis at the time his IHD deteriorated. Therefore the PTSD was of a sufficient level of severity to warrant ongoing management at the time of clinical worsening of IHD. Consequently the veteran satisfies factor 6(rr)(iv) of SoP Nº 89 of 2007 (as amended by SoP Nº 43 of 2009) and Mrs Holden satisfies the fourth step. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that the veteran’s IHD contributed to his death. Therefore his death was war-caused within the meaning of s 8 of the Act.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision that Mrs Holden be granted a widow’s pension with effect from 28 July 2011.

I certify that the preceding 4 (four) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

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Associate

Dated 30 October 2014

Date of hearing	Not applicable
Date final submissions received	21 October 2014
Solicitors for the Applicant	Williams Winter
Solicitors for the Respondent	Australian Government Solicitor