John Kelly and Repatriation Commission

Case [2015] AATA 56

[2015] AATA 56

Division VETERANS’ APPEALS DIVISION

File Number(s)

2011/3217

Re

John Kelly

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal Ms N Isenberg, Senior Member
Date 2 February 2015
Place Sydney

The decision under review is affirmed.

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

Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – operational service – claim that emotional problems were war-caused – consideration of Statement of Principles – diagnosis – response to alleged stressors – decision affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 196A, 196B

CASES

Fogarty v Repatriation Commission (2003) 37 AAR 363

Gerzina v Repatriation Commission [2004] FCAFC 96
Lees v Repatriation Commission (2002) 125 FCR 331
Mc Kenna v Repatriation Commission (1999) 86 FCR 144
Re Gibson and Repatriation Commission [2009] AATA 115
Re Jones and Repatriation Commission [2014] AATA 887
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Thomas (2002) 71 ALD 289
Repatriation Commission v Warren (2007) 95 ALD 606

Thomas v Repatriation Commission [2003] FCAFC 122

SECONDARY MATERIALS

Statement of Principles concerning alcohol use disorder No. 1 of 2009

Statement of Principles concerning depressive disorder No. 27 of 2008 (as amended)

Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (as amended)

REASONS FOR DECISION

Ms N Isenberg, Senior Member

2 February 2015

BACKGROUND

  1. The applicant, Mr Kelly, served in the Royal Australian Navy between 25 September 1965 and 20 May 1971.  His “operational service”, as defined in the Act, was as follows:

    ·22 April 1966 to 18 May 1966;

    ·25 May 1966 to 11 June 1966;

    ·20 December 1967 to 3 January 1968;

    ·17 January 1968 to 16 February 1968;

    ·27 March 1968 to 26 April 1968;

    ·21 May 1968 to 13 June 1968; and

    ·13 November 1968 to 28 November 1968.

  2. The applicant claimed pension for a disability described as “emotional condition”/”emotional problem” and contends that he suffers Posttraumatic Stress Disorder (PTSD), depressive disorder and alcohol dependence because of aspects of his service in Vietnamese waters aboard HMAS Sydney.

  3. He seeks review of the decision of the Repatriation Commission which was affirmed by the Veterans’ Review Board (“the VRB”) on 25 July 2011 that refused his claim that these conditions are related to service.

    ISSUE BEFORE THE TRIBUNAL

  4. The Tribunal must decides:

    ·Does Mr Kelly suffer from PTSD, depressive disorder and alcohol dependence?

    ·If so, were those conditions war-caused?

    LEGISLATIVE BACKGROUND

  5. Section 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”) provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.

  6. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is…

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AGLC
John Kelly and Repatriation Commission [2015] AATA 56
Case
[2015] AATA 56
Decision Date

CaseChat Overview and Summary

The case of John Kelly and the Repatriation Commission involves a veteran’s claim for a disability pension, asserting that his emotional problems, namely posttraumatic stress disorder (PTSD), depressive disorder, and alcohol dependence, were caused by his operational service. The Administrative Appeals Tribunal (AAT) was tasked with determining whether these conditions were war-caused, in accordance with the Veterans’ Entitlements Act 1986 (VE Act). The central legal issues were whether Mr Kelly suffered from the claimed conditions and, if so, whether those conditions were attributable to his war service.

The court examined the medical evidence provided by three doctors: Dr Smith, Dr Dinnen, and Dr Altman. Drs Dinnen and Altman diagnosed Mr Kelly with PTSD, while Dr Smith did not. Dr Smith’s opinion was primarily based on the absence of intense fear, helplessness, or horror in Mr Kelly’s responses to traumatic events, a criterion that was applicable under DSM-IV but not DSM-5. The AAT found that Mr Kelly’s experiences, such as witnessing bombing strikes from a distance of 48 km and being exposed to scare charges, did not meet the diagnostic criteria for PTSD under the current Statement of Principles concerning PTSD. The Tribunal held that the evidence did not establish, beyond reasonable doubt, that Mr Kelly’s conditions were related to his operational service. The Tribunal’s decision was affirmed, maintaining the original determination that Mr Kelly’s claimed emotional problems were not war-caused.

The reasoning behind the Tribunal’s decision hinged on the specific criteria outlined in the relevant Statements of Principles and the diagnostic standards set by DSM-5. The Tribunal highlighted that the determination of whether a condition is war-caused requires a thorough evaluation of the evidence and adherence to the statutory provisions and medical guidelines. In this case, the Tribunal found that the evidence did not sufficiently support a finding that Mr Kelly’s conditions were related to his war service, thereby affirming the original decision of the Repatriation Commission. The Tribunal’s decision underscores the importance of strict adherence to the legislative and medical criteria in evaluating claims for war-caused disabilities.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal must decides:·Does Mr Kelly suffer from PTSD, depressive disorder and alcohol dependence?·If so, were those conditions war-caused?LEGISLATIVE BACKGROUND Section 9 of the Veterans’ Entitlements Act 1986 (“the VE Act”) provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s condition was war‑caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Repatriation Medical Authority (“RMA”) was established under section 196A. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service. The current SOPs relevant to this matter are:·Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014;·Statement of Principles concerning depressive disorder No. 27 of 2008 (as amended);·Statement of Principles concerning alcohol use disorder No. 1 of 2009 (as amended) (previously known as alcohol dependence and alcohol abuse). The advocate for the applicant contended that it was open to the Tribunal to consider any available SoP, in particular No. 19 of 2014 in relation to PTSD, which was revoked by the current SoP. The attraction of that SoP to the applicant’s case was that, one of the factors sought to be relied on (factor 6(ba)), namely living or working in a hostile or life-threatening environment did not have a requirement of being in that environment for a period of at least four weeks before the clinical onset of the condition (which is contained in factor 6(c) of the current SoP). I was referred to the Tribunal’s recent decision of Re Jones and Repatriation Commission [2014] AATA 887 which canvassed the authorities –Repatriation Commissionv Gorton (2001) 110 FCR 321; Repatriation Commission v Keeley (2000) 98 FCR 108, Repatriation Commission v Thomas (2002) 71 ALD 289 (and approved on appeal in Thomas v Repatriation Commission [2003] FCAFC 122) and Re Gibson and Repatriation Commission [2009] AATA 115. In Jones, where the applicant made a similar contention as in the present matter, the Tribunal considered there was no basis for any rights to arise or accrue by reference to SoPs which are promulgated after the Commission’s decision and revoked before the Tribunal’s review.

Evidence

Evidence Before The Court

In summary, the applicant’s contentions were that his PTSD was attributable to the living and working conditions aboard HMAS Sydney (factor 6(c)); or that his first trip to Vietnam exposed him to a category 1A stressor – a life-threatening event (factor 6(a)); or that his subsequent trips to Vietnam exposed him to a category 1B stressor (factor 6(b)). If the applicant fails to establish that PTSD is war-caused or that he experienced a category 1A or 1B stressor then he cannot succeed in respect of alcohol use disorder. Similarly, if the applicant fails to establish he was exposed to a category 1A or 1B stressor then his claim for depressive disorder cannot succeed.EVIDENCE I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975. Mr Kelly gave evidence. He had previously provided several statements in support of his claim dated 11 January 2012, 22 May 2013 and 28 October 2014. He gave evidence that he was aged 18 years and one month on his first of seven trips to Vietnam. He said the ship spent about three days in harbour, returning to sea at night. He said he worked in the engine room for the first two trips and was not aware before he went that there would be scare charges. He was “90 per cent sure” he experienced scare charges on his first trip to Vietnam, which appears to have been in early May 1966. He said he was told within an hour that it had been a scare charge and not a bomb. It was pointed out to him in cross-examination that his first statement (dated 11 January 2012) contained no reference to scare charges at all. He said that at the time he did not think they were significant to his claim. He thought he had to “see” something, and, unlike the bombing he observed on subsequent trips, he did not “see” scare charges. He could not explain why he had been of that view. On the return journey after the second trip he told “the Navy” he wanted a trade transfer because it was too hot in the engine room, when actually, he said, his real reason was because of the scare charges. His experience with the scare charges, he said, made him “sensitive” to his subsequent experiences. He was scared, he said, just going into Vung Tau harbour, and was already getting flashbacks of the engine room. He was happier, returning to Vietnam, that he was not in the engine room again. He said that during one of his subsequent trips he had been posted as a lookout in Vung Tau harbour. He was 35 metres above sea level on the flag deck. He said he was told to look out for “anything dangerous”, especially in the water and about the surrounding hills, which he thought were the “Long Song Hills” and the “Long Tan Hills” (sic). He said he saw fighting in the distance while using “seven times”-magnification binoculars. He said he could clearly see vehicles or tanks 15 km away. Closer, about 5-10 km away, he could see bombs being dropped, and could see the people clearly. He said he was “terrorised” and “frightened” by what he saw. He said on one trip he saw two US planes dropping bombs on a village and ”blew all these people away”. There were massive flames which he thought was napalm. He said the Captain was scared of “the fireworks” and moved the ship 1-2 km away because it was too dangerous. Before the VRB he said he saw people being bombed on a number of occasions from a distance of 3 km.

Decision

Reasons for decision

In all of the circumstances, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Kelly’s claimed emotional conditions or emotional problems – whether PTSD, depressive disorder or alcohol dependence are related to his operational service.DECISION I therefore affirm the decision under review.

Ratio Decidendi

Legal Principle Established

In his report CDRE Mulcare referred to bombing strikes during the periods of HMAS Sydney being at anchor in Vung Tau harbour, the closet of which was 48 km away. He concluded that the veteran would have been unable to see the air strikes. In his supplementary report he referred to a report by CDRE McKay who recalled helicopters firing rockets in what he thought was the Long Hai Hills or in the riverine complex of Rung Sat. In any event it was “well to the north” of HMAS Sydney. Because CDRE McKay reported a “many seconds” delay in hearing the sound of the rocket firing CDRE Mulcare deduced the firing to be at the more distant Rung Sat. Further, there was no mention of any significant engagement in the Long Hai Hills at that time. It would not have been possible for observers, with binoculars to see the explosions impacting.CONSIDERATION Only after the Tribunal determines that a veteran is suffering from a particular condition does the question arises as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. The issue whether a disease exists, which is a question of fact, is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307; Gerzina v Repatriation Commission [2004] FCAFC 96; Repatriation Commission v Budworth (2001) 116 FCR 200. Both Dr Dinnen and Dr Altman in their reports provided a diagnosis of PTSD. Dr Smith did not find Mr Kelly to suffer PTSD. One of the reasons was that Mr Kelly did not, in his view meet the diagnostic criteria for PTSD which are outlined in the SoP for PTSD and which are derived from DSM-5. Unfortunately, I did not have the benefit of hearing oral evidence from Dr Altman or Dr Dinnen who might have elaborated upon and clarified the contents of their reports, neither of which specifically addresses the diagnostic criteria for the making of a diagnosis of PTSD. It was submitted on the applicant’s behalf that, on the question of weight to be attached to their reports it was open to the Respondent to call those doctors, in particular, Dr Altman. The applicant contended that Dr Altman, as the treating psychiatrist, was to be preferred over Dr Smith, who at best, only saw the applicant for less than an hour. Dr Smith’s failure to diagnose PTSD was based largely upon his opinion that the applicant’s response did not satisfy the criterion of a response of “intense fear, helplessness, or horror”. This was a criterion in DSM-IV, but is not part of the DSM-5 criteria. It is useful to set out criterion A as it is set out in the current SoP:A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:(i)directly experiencing the traumatic event(s);(ii)witnessing, in person, the event(s) as it occurred to others;(iii)learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or(iv)experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related;