JOYCE and REPATRIATION COMMISSION
[2011] AATA 836
•25 November 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 836
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/0182
VETERANS' APPEALS DIVISION ) Re MICHAEL JOYCE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date25 November 2011
PlaceBrisbane
Decision The Tribunal sets aside the determination of the Repatriation Commission dated 7 May 2009 and substitutes the decision that the veteran’s posttraumatic stress disorder was a war-caused disease.
The Commonwealth of Australia is liable pursuant to s 13 of the Veterans' Entitlements Act 1986 (Cth) to pay to the applicant pension and treatment for disability caused by posttraumatic stress disorder from 17 July 2010.
This matter be remitted to the Repatriation Commission to assess the rate at which pension is to be paid for incapacity for all accepted war-caused injuries and diseases including the disease of posttraumatic stress disorder.
...............[Sgd]...............................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Air Force – Diagnosis of posttraumatic stress disorder – Application of Statements of Principles – Hypothesis that posttraumatic stress disorder war-caused reasonable – Hypothesis not disproven beyond reasonable doubt – Decision under review set aside
Acts Interpretation Act 1901 (Cth) s 29
Veterans’ Entitlements Act 1986 (Cth) s 9, 70, 120, 120A, 177, 196B
Border v Repatriation Commission (No 2) [2010] FCA 1430
Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271
Delahunty v Repatriation Commission [2004] FCA 309
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
25 November 2011 Dr M Denovan, Member INTRODUCTION
1. The applicant, Mr Michael Joyce, served as a cook in the Royal Australian Air Force from 26 April 1968 to 25 April 1974. From 15 April 1970 to 15 July 1970 he served in Vietnam, which is eligible war service and operational service pursuant to ss 6C and 7 of the Veterans’ Entitlements Act 1986 (Cth) (the Act). Mr Joyce claims that during this service he experienced two events that resulted in him now suffering from posttraumatic stress disorder (PTSD). The first of these was when he went to the assistance of a fellow soldier who was injured when a kitchen oven exploded (the oven event). The second event occurred when Mr Joyce attempted to speak to another soldier who was his friend, when both were awaiting transfer to an air base for the purpose of being Medivaced to Australia (the transfer event).
2. On 7 May 2009 the respondent rejected a claim made by Mr Joyce on 30 July 2008 for PTSD. That decision was affirmed by the Veterans’ Review Board on 7 October 2010. On 10 February 2011 Mr Joyce applied to the Administrative Appeals Tribunal (AAT) for review of that decision.
ISSUES AND THE LEGISLATION
3. The relationships between conditions and service are set out in s 70 and s 196B of the Act.
4. Psychiatrist Dr P Tucker provided a diagnosis of PTSD in his reports dated 10 March 2009 and 9 June 2011. That Mr Joyce suffers PTSD due to the two incidents he describes was not disputed by Mr Williams, the respondent’s representative.
5. For Mr Joyce’s condition of PTSD to be regarded as having arose out of, being attributable to, or contributed to in a material degree by service[1], one or more factors in the relevant Statement of Principles (SoP) must be satisfied. SoPs are brought into existence to comply with s 196B of the Act, and provide the statutorily determined relationship to service.
[1] Veterans’ Entitlements Act 1986 (Cth) ss 9(1)(b)
6. Both parties agree that the SoP relevant to Mr Joyce’s matter on the date of his claim is Instrument No 5 of 2008 and that the diagnostic criteria in paragraph 3 are satisfied. The relevant factor is 6(b), which reads::
Clause 6
…
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
Clause 9
…
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e)Being an eyewitness to or participating in, the clearance of critically injured casualties; …
7. In deciding this matter I must have regard to the provisions of the Act, in particular s 120 and 120A together with Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”).
8. The Deledio case sets out the steps to be followed in applying the above sections[2]:
[2] Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 – 98.
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11).
…
3.If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.” (at 49 ALD 206)
9. It is Mr Williams’ contention that the claim fails to meet the factor 6(b) in the SoP because Mr Joyce was not an eyewitness to either the oven event or the transfer event. Mr Williams further contends that neither of the events objectively involved a ‘critically injured’ soldier within the meaning of factor 6(b).[3]
[3] Repatriation Medical Authority Statement of Principles Instrument No 5 of 2008, paragraphs 9 (a) and (e).
10. Mr Taylor, for the applicant, contends that when considering whether the material before me points to an event that included ‘critically injured’ soldiers, I must consider both an objective and subjective approach. By this he means that, rather than objectively deciding whether the soldiers in the events Mr Joyce describes were actually critically injured, I must decide whether a reasonable person of similar age, and with similar knowledge and experience as Mr Joyce, could have, at the time the events occurred, perceived that the soldiers were critically injured.
11. In order to decide this matter I must determine whether the material before me points to Mr Joyce having experienced a category 1B stressor, as defined in the SoP, during his operational service, and, if so, whether a reasonable hypothesis is raised . If I do find a reasonable hypothesis is raised, I must then decide whether I can be satisfied beyond a reasonable doubt that Mr Joyce’s posttraumatic stress disorder was not war-caused.
EVIDENCE
12. Mr Joyce gave evidence in person at the hearing.
13. In relation to the oven event, Mr Joyce told me that on the day the oven exploded he was rostered on duty at about 4.00am or 5.00am in the sweets bay of the kitchen. In the main kitchen were two soldiers, who were making their own preparations for the day. Whilst Mr Joyce was making his usual preparations for the day, he heard a loud explosion from the main cooking area, which he indicated was about 20 metres away, separated by a wall high partition from the area in which he was working. He ran to the main kitchen. The first person he saw was Soldier Guest. When asked by Mr Joyce what was going on, Soldier Guest said the oven exploded when a cook named Clemmens attempted to light it.
14. Mr Joyce said that he then saw Mr Clemmens standing a few metres from him, close to the oven and covered in black soot. It was difficult for Mr Joyce to accurately assess the situation because of all the black soot in the air. Mr Joyce and Mr Guest immediately assisted Mr Clemmens to the ration room, where the light was better, by each taking an arm of Mr Clemmens. Mr Joyce said that he saw what he regarded as ‘dead skin’ hanging off of one of Mr Clemmens arms. He told Mr Guest to “go and get the medics”. Mr Joyce sat Mr Clemmens down and waited with him for the time it took for the medics to arrive. He spent about 10 to 20 minutes waiting with Mr Clemmens for the medics. In response to questioning Mr Joyce said that, as far as he was aware, the noise of the explosion had not alarmed any of the soldiers who were located in their sleeping area. He did recall that he and Mr Clemmens were alone until Mr Guest returned accompanied by the medics. During this time Mr Joyce told me that he and Mr Clemmens said very little to each other: it was his observation that Mr Clemmens appeared dazed and in shock. In response to questioning, Mr Joyce did not describe Mr Clemmens as having any demonstrative pain or distress. Rather, he said Mr Clemmens sat quietly and relatively still in the same spot until the medics came.
15. Mr Joyce said he had no first aid training and that at the time he felt ‘shocked’ and ‘concerned’. He believed that Mr Clemmens would possibly die.
16. A one page unsigned statement that I was told was written by Mr Clemmens was submitted at the hearing. It reads as follows:
My name is Peter William Clemmens, Date of birth [omitted]. This is what I experienced whilst on operational service with the Royal Australian Air Force (RAAF) in South Vietnam.
An injury to myself did happen whilst an industrial kitchen oven I was attempting to light exploded in my face and upper part of my body, whilst I was serving with the RAAF in South Vietnam in May/June 1970.
I was an Aircraftman (AC) serving member in the RAAF (A318383), and my mustering was a Cook. I was rostered on early shift that morning commencing at 0400 hours and part of my service duties on early shift was to light up the ovens and grill plates, etc.
1.2 On this particular morning, I proceeded to light the ovens in the main kitchen area which could only be lit from the inside of the ovens. I carefully placed the lighted match in my right hand and placed it into this particular oven to light the burners, instantly a huge explosion occurred within the kitchen and I did believe for a few minutes that a Viet Cong enemy bomb had landed on us and exploded in the kitchen and I thought I was dying.
All I can remember of this incident is that I heard voices from two other RAAF catering members on duty that morning yelling out something which I cannot remember and I momentary [sic] saw the scared look on there [sic] faces I would never forget, not even now.
After that I could only see lightning flashes in my eyes, a whole lot of skin hanging loosely from my right elbow and also the skin on my right hand & fingers was badly damaged with a lot of the skin loosely hanging down from my hand and some skin falling off me onto the floor, I had ringing in my ears after the explosion, my face was burnt and my hair and eyebrows were badly singed.
The voices I heard was that of Aircraftman Michael Joyce (A118447) and Leading Aircraftman Peter Guest (A58238).
I immediately went into pain and shock, I was told later that I was completely traumatized during and after the incident.
1.3 I do however remember Michael Joyce while I was waiting for the medic and transport vehicle to arrive at the RAAF Ration store to transport me to the 1st Australian Army Field Hospital, Vung Tau, that he was very comforting to me and he was also reassuring me that everything will be alright.
1.4 I did not witness this incident as I was hospitalised under heavy medications after my incident the day before. To the best of my recollection it was not Paul Musk but Leading Aircraftman Alix Clark (A118497) that was injured the next day by the same oven in the kitchen explosion, it occurred at about the same time of the previous morning and I was told it was definitely the same oven that exploded that I lit the previous day that injured me, he was also admitted to the 1st Australian Army Field Hospital after his incident in the kitchen.
17. Mr Joyce next told me about the transfer event. He said he was hospitalised two to three days after the oven event, as a result of having been diagnosed with hepatitis. Prior to his own hospitalisation a friend of his, Mr Scheer, was involved in a helicopter accident where the helicopter crashed and burnt. He was aware that Mr Scheer was injured and other crewmen were killed as a result of that incident.
18. Sometime later, Mr Joyce was being prepared to be airlifted by Medivac to Australia when he saw Mr Scheer also awaiting departure by bus to the RAAF air base. He recalls that Mr Scheer had a drip in his arm, was bandaged and lying on a stretcher. Mr Joyce approached Mr Scheer to express his regards. Mr Joyce said that Mr Scheer had a ‘glazed’ look on his face and failed to acknowledge him. Mr Joyce concluded that Mr Scheer must be in a very serious and possibly critical condition.
CONSIDERATION
19. There are no issues of credit as regards to the applicant’s version of the two events that he claims caused his PTSD. Both parties agree that the first two steps of Deledio are satisfied. Both parties also agree that the relevant SoP is Instrument No 5 of 2008, and that the relevant factor of the SoP is 6(b). The hypothesis raised is that Mr Joyce developed PTSD as a result of his experiencing a category 1B stressor, by way of either the oven event, the transfer event or both.
20. That being the case, the first step in my consideration is the third Deledio step, I must form an opinion as to whether or not the hypothesis raised is a reasonable one: that is, do one or both of the incidents relied on by Mr Joyce fit into the template of the SoP, namely experiencing a category 1B stressor in factor 6(b) of Instrument No 5 of 2008?
Third Deledio Step
21. In considering whether there is a reasonable hypothesis connecting Mr Joyce’s PTSD with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis: Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271 at [21] (Bull); Elliott v Repatriation Commission (2002) 73 ALD 377 (Elliott); Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433 per Hill J at [39] – [41].
22. In Elliott, Stone J very aptly likened the decision-maker’s task at this point to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.[4]
[4] Elliott v Repatriation Commission (2002) 73 ALD 377 at [25].
23. Taking account of all the material, a hypothesis will not be reasonable where it is “obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous” (see Bull at [18] where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517). It was said in Bull that “the material must point to the connection between service by the applicant and the claimed injury, disease or death for the claim to be reasonable.” I refer also to Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364, where in their joint judgment Northrop, Sundberg, Marshall and Merkel JJ said (at page 490) that “a “reasonable hypothesis” involves more than a mere possibility”, and is “a hypothesis pointed to by the facts, even though not proved on the balance of probabilities”.
24. I will first consider Mr Williams’ contention that the hypothesis advanced by Mr Joyce’s advocate does not meet the template in the SoP because Mr Joyce was not an ‘eyewitness’ to either of the events, for the purposes of the definition of a category 1B stressor. “An eye witness” is defined in clause 9 of the SoP as meaning:
… a person who observes an incident first hand and can give direct evidence of it. This excludes a person exposed only to media coverage of the incident.[5]
[5] Repatriation Medical Authority Statement of Principles Instrument No 5 of 2009, clause 9.
25. Although Mr Joyce was not an “eyewitness” to Mr Clemmens being injured by the explosion of the oven, I do not consider that as a result the hypothesis is unreasonable. The definition of a 1B stressor provided at clause 9 of the SoP includes a list of five severe traumatic events, only one of which must be experienced before the onset of PTSD, in order to satisfy factor 6(b) of the SoP. The first of these, (a), is that a person is an eyewitness to a person being killed or critically injured. Mr Joyce does not claim to have observed first-hand either soldier when they were injured. His claim does not satisfy the definition in clause 9, subclause (a). The next part of the definition subclause (b), requires a veteran to have “viewed corpses or critically injured casualties”. There is no requirement in clause 9(b) that the veteran witness the event that caused those critical injuries being inflicted. The hypothesis advanced by the applicant for both of the stated events is consistent with subclause (b) of the definition of a category 1B stressor, and I cannot accept Mr Williams’ contention.
26. Mr Williams’ next contention was that neither of the events experienced by Mr Joyce involved exposure to a “critically injured” casualty. “Critically injured” is not defined in the SoP. In Border v Repatriation Commission (No 2) [2010] FCA 1430 (Border), Reeves J approved of the Full Federal Court decision of Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 in which it was emphasised that the interpretation of the words in the relevant SoP are of “critical importance”.[6] In the absence of authoritative medical texts or expert evidence, the Tribunal is left with using the ordinary meaning of the words. [7]
[6] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [46].
[7] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [46], citing Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 at [113] – [114].
27. During the hearing Mr Taylor referred me to the Concise Oxford Dictionary, which defines ‘critical’ as “extremely ill and at risk of death”. Mr Williams referred me to the similar definition in the Online Chambers Dictionary, which defines ‘critical’ as “so ill or seriously injured as to be at risk of dying”. Both of these definitions are extremely similar, and in effect result in subparagraph (b) of the definition of a 1B category stressor being very similar to that of a subparagraph (a) of the definition of a category 1A stressor, which reads “experiencing a life-threatening event”. The only real practical difference between subparagraph (a) of the definition of a category 1A stressor and subparagraph (b) of the definition of a category 1B stressor is that, in the case of the former, the experience of a life-threatening event must be by the veteran, whereas the latter is an event that a veteran must witness but not necessarily experience themselves.
28. In support of their submissions, both parties referred me to Border.[8] In that decision Reeves J considered in detail the application of the third step of Deledio as it applies to a category 1A stressor, defined in subclause 9(a) of Instrument No 5 of 2008.
[8] Border v Repatriation Commission (No 2) [2010] FCA 1430.
29. Reeves J considered that, in deciding whether an event was a category 1A stressor, it was inappropriate to restrict the acceptance of a hypothesis only if certain subjective elements were said to have been experienced by the veteran.
30. His Honour observed that the definition of a category 1A stressor “makes no express mention of the type of feelings experienced by the veteran”.[9] His Honour considered that while all of the events included in the definition of a category 1A stressor “would obviously evoke feelings of severe stress, the definition seems to deliberately eschew any reference to the subjective factor as a relevant consideration in determining whether the event falls within the definition”.[10] In reference to paragraphs (b) and (c) of the definition of a 1A stressor, His Honour said:
In all of these events the obvious subjective trauma, stress and anxiety involved are irrelevant when considering whether the event hypothesised falls within the definition of a category 1A stressor.[11]
… under the third step of Deledio, the Tribunal would look to see whether or not the veteran’s duly supported hypothesis meant that he or she was involved in one of those events, and, if so, it would conclude that the event fell within, or was consistent with, the SoP and move onto the fourth step.[12]
[9] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [50].
[10] Ibid.
[11] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [50].
[12] Ibid.
31. In relation to paragraph (a) of the definition of a category 1A stressor (‘experiencing a life-threatening event’), His Honour considered that that it would be an error for a tribunal to focus on the nature of the threat itself; rather, it is the experience of the event or events that must be examined.[13] Thus, when a determination is being made about subparagraph (a) of the definition of a category 1A stressor, namely ‘experiencing a life-threatening event’, the Tribunal must assess “whether the event experienced by the veteran was a life-threatening event, rather than whether the event itself was”.[14] His Honour said:
… the Tribunal has to assess the veteran’s perception of the event or events that constitutes a life-threatening event.[15]
[13] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [54].
[14] Ibid.
[15] Border v Repatriation Commission (No 2) [2010] FCA 1430 per Reeves J at [58].
32. His Honour approved of the approach taken by Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309, in which it was said that the circumstances, knowledge and experience of the person claiming to have experienced the stressor must be considered by the Tribunal, and should not be done in an unduly restrictive manner.[16]
[16] Delahunty v Repatriation Commission [2004] FCA 309 per Tamberlin J at [27].
33. In applying these principles to my decision as to whether the hypothesis advanced by Mr Joyce is consistent with the template in the SoP of “experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder”, I must decide whether it was reasonable for a person that was in his circumstances, with similar knowledge and experience, to perceive that he was viewing critically injured casualties at either or both of the events. In considering this, there is no requirement for Mr Joyce to refer to having any particular emotions. Importantly, it is the veteran’s perception, and not his purported emotional response, that is to be considered. It is a given that if his perception was that he was exposed to an event that meets the template in the SoP that he experienced appropriate emotions.
34. Turning to the oven event, and considering the definition of ‘critically injured’ to be equated to a life-threatening event[17], the issue is whether a reasonable person, with the same position and background, could have perceived during that event that Mr Clemmens was ‘critically injured’. The event commenced when Mr Joyce heard a large explosion some 20 metres away, immediately went to the source of the explosion. The room was full of soot and he had difficulty seeing anything. After he was told what he happened he managed through the soot to see Mr Clemmens. At this point Mr Clemmens was standing immediately in front of the source of the explosion. He was covered in black soot and not moving or speaking. Mr Joyce saw what he believed to be hanging skin on his arm. Mr Joyce, with the assistance of another soldier, helped move Mr Clemmens into another room, where he sat not moving or talking. Mr Clemmens was, in Mr Joyce’s perception, suffering from shock due to his excessive injuries. Mr Joyce continued to wait with Mr Clemmens for 10 to 20 minutes whilst waiting for another soldier to return with medical help. That is where the event ended. It is not necessary, and would be inappropriate, to consider Mr Joyce’s actions or behaviour after the event.
[17] See paragraph 26.
35. At the time Mr Joyce was a twenty year-old soldier with a mustering as a cook and no medical training, and had been in Vietnam for approximately four to eight weeks when the events occurred. I accept that a reasonable person of similar age, training, knowledge and experience of Mr Joyce, who experienced the event that Mr Joyce describes, could have believed that Mr Clemmens was critically injured. Accordingly, this hypothesis is a reasonable one.
36. In regards to the transfer incident, this event started when Mr Joyce saw Mr Scheer at the point where soldiers were awaiting a bus transfer. The event was of very short duration, and ended when Mr Joyce walked away from Mr Scheer. I am not convinced that a reasonable person in Mr Joyce’s position would perceive that Mr Scheer, who was on a stretcher, albeit with a drip and bandages, was critically injured on the basis that he had been injured in a helicopter crash some days or weeks earlier, and now appeared dazed and apparently did not recognise Mr Joyce. I consider a reasonable person in Mr Joyce’s position would have realised that a critically injured person, who was in danger of losing his life, would not be left unattended by medical staff, even for a short time, in the circumstances described by Mr Joyce. I also consider that a reasonable person in Mr Joyce’s position would likely realise that there would be a number of reasons, other than near death, that would explain Mr Scheer’s lack of recognition and dazed appearance.
Fourth Deledio Step
37. I now must consider whether I am satisfied beyond a reasonable doubt that Mr Joyce’s PTSD did not arise from his war service in Vietnam. I now must examine the facts from the material before me. This does not involve any onus of proof or the application of any presumption.
38. Mr Williams did not challenge the accuracy or validity of Mr Joyce’s account of the events. Rather, Mr Williams argued that the events he relied upon did not objectively involve any life-threatening event.
39. The statement from Mr Clemmens, in which he gives an account of his burns and states that skin was falling off his arm, is supportive of Mr Joyce’s claim. Although the statement is not signed and Mr Clemmens was not called to give evidence, the respondent accepted Mr Joyce to be a credible witness and I have no reason to question the authenticity of his claim.
40. Mr Williams’ assertion that Mr Clemmens was hospitalised for only seven days and then was returned to duties was not challenged by Mr Taylor. That being the case, whilst it may be that Mr Clemmens was fortunate and did in actual fact not sustain a life-threatening injury during the oven event, it would be inappropriate to assess Mr Joyce’s perception using information about the injury that only could have been known to him after the event in question.
41. As I cannot be satisfied beyond a reasonable doubt that Mr Joyce’s PTSD did not arise from his war service, the claim must succeed.
Date of effect
42. Section 177 of the Act sets out the rules which govern the date of effect for the payment of a pension where the AAT has set aside a decision.
43. If an application for review by the AAT is made within three months of service of the document containing the decision of the Veterans Review Board (VRB), the earliest date of effect of the decision of the AAT is the earliest date from which the VRB could, if it had granted a pension, have approved payment of the pension.[18]
[18] Veterans’ Entitlements Act 1986 (Cth) s177(2)(a).
44. If the application to the AAT is out of time, the earliest day from which pension can be paid is six months before the application to the AAT.[19]
[19] Veterans’ Entitlements Act 1986 (Cth) s 177(2)(b)(i).
45. The Acts Interpretation Act 1901 (Cth) contains the rules that are used in determining the date of service. The notification of the VRB decision is deemed to have effect at the time which the letter is delivered in the ordinary course of post.[20] The application for review by the AAT is stamped 17 January 2011. This means that Mr Joyce’s application was out of time and the earliest date my decision can have effect is 17 July 2010.[21]
[20] Acts Interpretation Act 1901 (Cth) s 29.
[21] Veterans’ Entitlements Act 1986 (Cth) s 177(2)(b)(i).
DECISION
46. The Tribunal sets aside the determination of the Repatriation Commission dated 7 May 2009 and substitutes the decision that the veteran’s posttraumatic stress disorder was a war-caused disease.
47. The Commonwealth of Australia is liable pursuant to s 13 of the Veterans' Entitlements Act 1986 (Cth) to pay to the applicant pension and treatment for disability caused by posttraumatic stress disorder from 17 July 2010.
48. This matter be remitted to the Repatriation Commission to assess the rate at which pension is to be paid for incapacity for all accepted war-caused injuries and diseases including the disease of posttraumatic stress disorder.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: .......................[Sgd]......................................................
AssociateDate/s of Hearing 27 September 2011
Date of Decision 25 November 2011
Solicitor for the Applicant Michael Taylor
The Respondent was represented by Bruce Williams, Departmental Advocate
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