Jefferys and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1927

Jefferys and Repatriation Commission (Veterans' entitlements) [2020] AATA 1927 (26 June 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/2733
Re:Adrian Jefferys
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:26 June 2020
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]....................................
Senior Member T. Tavoularis
Catchwords
VETERANS’ COMPENSATION – Veterans’ Entitlements Act 1986 (Cth) – Service Related Injury or Disease – Post Traumatic Stress Disorder – Whether PTSD Service Related – Whether pre existing sensitivity is relevant consideration – PTSD requires objectively traumatic experience – Decision affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
HNGN and Military Rehabilitation and Compensation Commission [2018] AATA 4096
McKenna and Repatriation Commission [1999] FCA 323
Re Cooke and Repatriation Commission (1998) 50 ALD 907
Repatriation Commission and Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82
Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 82 of 2014)
REASONS FOR DECISION
Senior Member T. Tavoularis
26 June 2020
INTRODUCTION

This is an application for review of the decision by the Veterans’ Review Board (‘the VRB’) dated 17 February 2017. The VRB’s decision affirmed the Repatriation Commission’s (‘the Respondent’) decision dated 16 April 2015, which refused a claim by Mr Adrian Jefferys (‘the Applicant’) for his Post-Traumatic Stress Disorder (‘PTSD’) to be accepted as service-related.[1] Specifically, the VRB decided that the Applicant’s claimed PTSD condition was not war-caused and a pension was not payable under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).
[1] Note: in its decision, the VRB, in addition to PTSD, also decided that the Applicant’s alcohol use disorder, major depressive disorder, cannabis use disorder, amphetamine use disorder, social anxiety disorder and amphetamine-induced psychotic disorder were also not war-caused.
BACKGROUND
The Applicant served in the Australian Army from

15 April 2003 to 3 June 2005. In that time, he spent a period of roughly two months in operational service in East Timor, from 16 April 2004 to 28 June 2004.
The two primary issues now propounded by the Applicant comprise the following:
(a)that his claimed condition of PTSD was caused by his operational service; and
(b)the only factor propounded by the Applicant in the Statement of Principles (‘SoP’) for PTSD (SoP 82 of 2014) is factor 6(a) (a category 1A stressor).
TIMELINE
This application has reached the Tribunal via the following timeline:
·24 January 2015: the Applicant submitted a claim for disability pension to the Department of Veterans’ Affairs on the basis of his claimed PTSD;[2]
[2] Exhibit 10, s37 T Documents, T13, pages 69-79.
·6 March 2015: the Applicant submitted a lifestyle questionnaire to the Department of Veteran’s Affairs to assist the Department to determine his eligibility for the disability pension;[3]
·16 April 2015: the Repatriation Commission made a determination that the Applicant’s claimed PTSD was not related to his eligible war service pursuant to the VEA and that a disability pension was consequently not payable;[4]
·2 June 2015: the Applicant requested that the Department of Veterans’ Affairs review the…

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: [2020] AATA 1927
Decision Date: 26 June 2020

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Veterans’ Review Board (VRB), which affirmed the Repatriation Commission’s refusal to accept the applicant, Mr Adrian Jefferys, had Post-Traumatic Stress Disorder (PTSD) that was service-related. The applicant had served in the Australian Army, including a period of operational service in East Timor. The VRB had determined that the applicant's claimed PTSD condition was not war-caused, and therefore a pension was not payable under the Veterans’ Entitlements Act 1986 (Cth).

The legal issues before the Tribunal were whether the applicant's claimed condition of PTSD was caused by his operational service, and whether the specific factor relied upon by the applicant under the relevant Statement of Principles for PTSD constituted a category 1A stressor. The applicant contended that his PTSD was a result of traumatic events experienced during his military service, including an incident where he witnessed a soldier holding another soldier at gunpoint.

The Tribunal considered the medical evidence, including reports from several psychiatrists. A key aspect of the reasoning involved the assessment of whether the applicant had experienced an objectively traumatic event as defined by the diagnostic criteria for PTSD. The Tribunal noted that while the applicant described witnessing a distressing incident, the evidence also suggested a pre-existing personality disorder and a history of behavioural issues predating and continuing after his military service. The Tribunal found that the applicant had not experienced an event that could give rise to PTSD, and that the reported incident was not consistently described or relied upon by the applicant until some years later. The Tribunal concluded that the applicant did not suffer from PTSD, and therefore the condition could not be service-related.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of the decision by the Veterans’ Review Board (‘the VRB’) dated 17 February 2017. The VRB’s decision affirmed the Repatriation Commission’s (‘the Respondent’) decision dated 16 April 2015, which refused a claim by Mr Adrian Jefferys (‘the Applicant’) for his Post-Traumatic Stress Disorder (‘PTSD’) to be accepted as service-related.[1] Specifically, the VRB decided that the Applicant’s claimed PTSD condition was not war-caused and a pension was not payable under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’).[1] Note: in its decision, the VRB, in addition to PTSD, also decided that the Applicant’s alcohol use disorder, major depressive disorder, cannabis use disorder, amphetamine use disorder, social anxiety disorder and amphetamine-induced psychotic disorder were also not war-caused.BACKGROUND The Applicant served in the Australian Army from15 April 2003 to 3 June 2005. In that time, he spent a period of roughly two months in operational service in East Timor, from 16 April 2004 to 28 June 2004. The two primary issues now propounded by the Applicant comprise the following:(a)that his claimed condition of PTSD was caused by his operational service; and(b)the only factor propounded by the Applicant in the Statement of Principles (‘SoP’) for PTSD (SoP 82 of 2014) is factor 6(a) (a category 1A stressor).TIMELINE This application has reached the Tribunal via the following timeline:·24 January 2015: the Applicant submitted a claim for disability pension to the Department of Veterans’ Affairs on the basis of his claimed PTSD;[2][2] Exhibit 10, s37 T Documents, T13, pages 69-79. ·6 March 2015: the Applicant submitted a lifestyle questionnaire to the Department of Veteran’s Affairs to assist the Department to determine his eligibility for the disability pension;[3]·16 April 2015: the Repatriation Commission made a determination that the Applicant’s claimed PTSD was not related to his eligible war service pursuant to the VEA and that a disability pension was consequently not payable;[4]·2 June 2015: the Applicant requested that the Department of Veterans’ Affairs review the immediately preceding determination of the Repatriation Commission;[5]·11 June 2015: a review officer of the Department of Veterans’ Affairs did not alter or intervene in the decision of the Repatriation Commission;[6]·17 February 2017: the VRB: ovaried the Repatriation Commission’s decision to include certain additional diagnoses (that is, not including PTSD); andodetermined that these certain additional diagnosed conditions were not related to the Applicant’s VEA eligible service and thus not war-caused;[7] and·10 May 2017: the Applicant lodged an Application for Review of the VRB’s Decision with this Tribunal.[8][3] Ibid, T17, pages 96-105.[4] Ibid, T23, pages 151-154.[5] Ibid, T24, page 155.[6] Pursuant to s31 of the VEA; see also Exhibit 10, s37 T Documents, T25, page 156.[7] Ibid, T31, pages 195-204.[8] Ibid, T2, pages 3-17.ISSUES AND PRELIMINARY ITEMS

Evidence

Evidence Before The Court

In its decision under review, the VRB also summarised the gun incident as follows:22. On this occasion Mr Jefferys was working in a shed when he head [sic] raised voices in an adjacent storage container. Mr Jefferys looked in and saw two soldiers arguing. Soldier A had Soldier B by the throat and was holding a pistol to his head. Pistols were required to be loaded outside buildings and Mr Jefferys is sure the gun was loaded. Soldier A was shouting ‘I’m going to shoot you’, and Soldier B was laughing and taunting him saying ‘Go on but you won’t.’ Mr Jefferys said that Soldier B was laughing while Soldier A looked serious, with veins bulging in his head. Mr Jefferys said that he did not fear for his safety but he immediately fetched a corporal from an adjacent office who grabbed Soldier A by the shirt, disarmed him and dragged him away. As soon as he had fetched the corporal Mr Jefferys said that he basically felt removed from the situation. 23. Mr Jefferys said that Soldier A was a normal person while Soldier B was intensely aggravating and ‘gave everyone stick’. Throughout their tour of duty Soldier B picked on Mr Jefferys. Soldier B would often deliberately bump into him in doorways and press against him; he often told Mr Jefferys that he would rape him and on occasions Soldier B would lick his ear.[13] [13] Ibid, page 199.THE MEDICAL EVIDENCE The Applicant relies on reports from three medical practitioners, comprising:(a)the report of Dr Christopher Slack, consultant psychiatrist, dated 13 March 2015;[14](b)the report of Dr Tony Wild, psychiatrist, dated 26 September 2016;[15] and(c)the reports of Dr Bruce Lawford, consultant psychiatrist, dated 18 August 2017[16] and 16 March 2018.[17]Dr Slack[14] Ibid, T20, pages 131-138.[15] Ibid, T28, pages 166-182.[16] See Exhibit 5.[17] See Exhibit 6.The report of Dr Slack In terms of a diagnosis, Dr Slack opined that, pursuant to Axis 1 of the DSM-IV diagnostic methodology, the Applicant was suffering from ‘Posttraumatic stress disorder of moderate severity, chronic.’ Dr Slack thought that, pursuant to Axis-IV of the DSM-IV, the Applicant’s PTSD was the result of ‘Exposure to traumatic events during his time in the military.’ Up to the point of providing his report, Dr Slack had been treating the Applicant for six months and noted that he did not have any history of psychiatric symptoms and that any such symptoms became evident when the Applicant returned from East Timor. In his report, Dr Slack responded to specific questions posed to him as follows:3. Has the condition worsened of been aggravated as a result of the service with the ADF after 30 June 2004?I believe most of the traumas occurred prior to that date, but there were also some traumatic incidents that Adrian believes occurred in the first week of July after he left Moliana and when he was working at Port Hera. These occurred apparently in 2004. I think one would say that his PTSD was aggravated as a result of incidents that occurred after 30 June and that aggravation is of a permanent nature.…6. What are the diagnostic criteria that support the diagnosis?Adrian has been through some traumatic events during his time in the military where he felt his life was at risk of threatened and this meets criterion A for a diagnosis of PTSD. Since that time he has suffered intrusive recollections of the incident, flashbacks and dreams of the event. There [sic] are often triggered by news events or newspaper articles. He has difficulty discussing these events and tends to avoid such discussions. There has certainly been evidence of hyperarousal with his anger and sleep disturbance and a general sense of depression and numbing and nihilistic preoccupations. His irritability has caused deterioration in his social and occupational functioning. He has lost several jobs because of his irritability and anger.…8. What is the onset of the conditions?I believe the date of onset of both the PTSD and alcohol abuse would have been June 2004. 9. In your opinion what is the relationship between the diagnosed conditions and events that occurred before or after service?I think both his PTSD and alcohol abuse developed as a result of traumatic event that mostly occurred before 30th June 2004, but there were also some traumatic events in early July which aggravated the condition. Details have been covered in the body of the report.…Prognosis:10. Would the claimant benefit from treatment?He is currently benefitting from treatment. He is seeing me on a regular basis. He has had two admissions to hospital under my care. He has managed to abstain from alcohol in the short-term. I think he will benefit from attending a drug and alcohol outpatient course and also a PTSD outpatient course and these are planned to happen later this year. I would hope that with treatment he would be able to extend his periods of abstinence from alcohol and remain abstinent and also learn techniques to deal with his distress and manage his irritability and anger.11. Capacity for employment: Has the claimant’s ability to undertake remunerative employment been affected by any disability?I believe it has been affected by his PTSD and alcohol abuse. He has lost several jobs as a result of his irritability and anger. His alcohol use also has an impact on his ability to be employed. I think it is more probable than not that the limitation is permanent. I believe he is prevented from undertaking full time employment solely because of the PTSD and this is aggravated by his alcohol abuse.[18][18] Ibid, T20, pages 135-137.

Decision

Reasons for decision

In terms of ultimate findings and conclusions, Dr Varghese’s investigations yielded the following:CONCLUSIONS…(i)The principal clinical issue is that Mr Jefferys has a ‘disorder of personality’. The personality configuration is of a mixed or non-specific type but the predominant characteristics relate to antisocial personality as per DSM (called dissocial personality in ICD 10)…A note a history of behavioural disturbance from his school days and moreover problems with Army discipline both before and after his deployment to East Timor.(ii)Individuals with this spectrum of personality configuration will almost inevitably experience problems when placed in a military situation both for themselves and more so for others…(iii)Mr Jefferys has in the past had significant alcohol abuse and also polysubstance abuse including amphetamine. I would regard both these issues as being symptomatic of the personality…(iv)I note Mr Jefferys has been diagnosed as suffering from Major Depression in the past, however given the extent of alcohol and drug abuse it does not seem to me that such a diagnosis can be made with any confidence.(v)Mr Jefferys’ current mood by self-report could be understood as constituting a Dysthemic Disorder as a reflection of his overall adverse circumstances. There is certainly no mental state evidence for Major Depression.(vi)Mr Jefferys does not suffer from PTSD nor could he suffer from this syndrome as he has not experienced any event that could possibly give rise to PTSD. I note that the incident at the dump does not rate a mention in the psychology assessment prior to return to Australia. Indeed his experience in East Timor is described in positive terms. Moreover there is no mention of the incident in psychology reports while he was still in the Army on his return to Australia. The incident and alleged PTSD is not offered as an exculpatory factor with respect to his disciplinary problems in the Army leading to discharge. The incident is not mentioned to the only psychiatrist Mr Jefferys saw in this period (Dr Green). I note Dr Green’s opinion was that the principle issues were related to personality.Further as far as I can make out from the documentation there is no mention of the incident and its putative effects for almost a decade until Mr Jefferys is seen by Dr Slack and even then it is discussed in a general way among other issues in East Timor, at least initially, before a specific incident is described, as can be gleaned from Dr Slack’s reports.I also note that the incident and its putative effect is not offered as an exculpatory factor with respect to Mr Jefferys’ criminal behaviour resulting in imprisonment nor is it mentioned to any prison psychology or counselling service documents.(vii)It seems to me that the four psychiatrists who have diagnosed PTSD have not paid attention to issues of personality or Personality Disorder when it seems to me that these are quite obvious on the data available to them. The exception is Dr Wild who notes antisocial traits in the hospital notes but not in his reports.[55][Emphasis in original, my underlining][55] See Exhibit 8, pages 32-33.

Ratio Decidendi

Legal Principle Established

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