Kirk and Repatriation Commission (Veterans' entitlements)

[2021] AATA 494

Kirk and Repatriation Commission (Veterans' entitlements) [2021] AATA 494 (12 March 2021)

Division:VETERANS’ APPEALS DIVISION

File Number(s):      2020/5971

Re:Robert Kirk  

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:S TAGLIERI SC, MEMBER

Date:12 March 2021

Place:Hobart

Application Dismissed

……sgd……………….…….

S Taglieri SC, Member

Catchwords

Veterans Entitlements Act 1986 – s 175 – whether the Tribunal has jurisdiction – No jurisdiction - application dismissed

Legislation
Veterans Entitlement Act 1986 (Cth)
Administrative Appeals Act 1975 (Cth)

Secondary Materials

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (2nd Ed, 1968).

REASONS FOR DECISION

BACKGROUND  

1. On 28 September 2020, the Applicant filed an application with the Tribunal seeking a review. The application identified the Repatriation Commission as Respondent but did not identify a decision of either the Repatriation Commission or Department of Veterans Affairs (DVA) as the Respondent was previously known. Nor was a copy of the decision sought to be reviewed annexed to the application.

2. Section 2 of the application form simply referred to requests the Applicant made to DVA for an explanation about “altering” a Military Medical Board finding of Chronic Schizophrenia.

3. On 9 December 2020 the Tribunal issued a direction that the Applicant file a copy of the decision he sought to have reviewed, as the Tribunal needed to satisfy itself that it had jurisdiction under the Administrative Appeals Tribunal Act 1975.

4. On 17 December 2020, the Applicant filed a copy of a letter dated 6 January 1998 from the DVA stating it had decided to accept the Applicant’s claim for entitlement to pension under the Veterans Entitlements Act 1986 (VEA), for a condition stated to be Generalised Anxiety Disorder (GAD).

5. On 19 January 2021, the Respondent filed a written outline of submissions, in which it set out the basis upon which it contended that the Tribunal did not have jurisdiction.

6. On 22 January 2021, the Tribunal conducted a directions hearing by telephone. The Applicant and Mr Rudge, representing the Respondent, participated. The Tribunal indicated that it would conduct an interlocutory hearing to determine whether it had jurisdiction to hear the application for review.

7. The Tribunal also encouraged the Applicant to seek legal advice or assistance from an RSL advocate, as the question of jurisdiction was strictly a legal one.

8. During the telephone directions hearing, the Applicant made submissions that he was aggrieved by the description or diagnostic label of his condition in the decision of the Respondent dated 6 January 1998. Essentially, he submitted that by referring to GAD in the decision, the Respondent had unlawfully altered his medical records and changed the name of the condition he was diagnosed to suffer from by the Military Medical Board.

9. During the telephone directions hearing, counsel for the Respondent maintained that the Tribunal did not have jurisdiction to hear this matter and referred to the written submissions filed and dated 19 January 2021.

10. On 29 January 2021 and 15 February 2021, the Applicant filed further documents. Some were duplicates of those already filed. The additional documents were—

    (a)Filed 29 January 2021—

    (i)a discharge medical record cover sheet dated 14 December 1966 including a diagnosis of pseudoneurotic schizophrenia.

    (b)Filed 15 February 2021—

    (ii)a letter from Dr Dax to the Attorney General’s Department dated 6 April 1982 asserting possible misdiagnosis at discharge. 

    (iii)a letter from Dr Dax to the Applicant dated 11 July 1984.

    (iv)a letter from the Department of Veterans’ Affairs to Dr Paul Sheehan in relation to a post-traumatic stress disorder (PTSD) diagnosis.

    JURISDICTIONAL HEARING

11. On 25 February 2021, the Tribunal conducted a jurisdictional hearing. The Applicant appeared in person and made submissions on his own behalf. Mr Rudge again appeared for the Respondent (via video-conference).

12. At the commencement of the hearing, the Tribunal explained to the Applicant that the only question for determination was a preliminary one, namely if there was jurisdiction to hear his matter. The Tribunal indicated for the Applicant’s benefit that it only had jurisdiction to review decisions where legislation conferred a review function on it. It emphasised that the Tribunal was not a court of record.

13. The Tribunal checked whether the Applicant had received and considered the Respondent’s submissions of 19 January 2021. Because the Applicant claimed he had not received them, a copy was made and given to him. The hearing was briefly stood over to enable the Applicant to read and consider the submissions.

14. Upon resuming the hearing, the Applicant advised that he was content to proceed and did not require an adjournment.

    CONTENTIONS

15. The Applicant was directed to s 175 of the VEA, which gives the Tribunal jurisdiction to review decisions made under the VEA. In response, the Applicant contended in substance as follows—

    (a)He questioned what medical or legal authority the Respondent had to “alter” the diagnosis that had been attributed to his condition by the Medical Board in 1967,[1] namely, Chronic Schizophrenia;

    (b)The Respondent could not change the medical condition attributed to him at the time of his discharge;

    (c)Various psychiatrists at different times since his discharge had diagnosed him with pseudoneurotic disorder, personality disorder, GAD and PTSD and he did not know if he suffered one or more of the conditions and wanted answers;

    (d)If he travelled overseas, he would only be covered for treatment relating to GAD, being his accepted condition and that did not seem correct in view of his discharge diagnosis by the Military Medical Board in 1967;

    (e)He may have been exposed to an incorrect treatment regime because of his alleged misdiagnosis;

    (f)Under the DSMII, which he says applied when he was discharged, he did not fit the criteria for chronic schizophrenia, which required (amongst other things) hospitalisation as an inpatient for six months, which had never happened;

    (g)He has painstakingly endured a diagnostic label of chronic schizophrenia for some 30 years which has adversely affected him.

    [1] Medical Board Report, 25 January 1967, filed by Applicant 17 December 2020.

16. When expressly asked to identify the decision he wanted the Tribunal to review, the Applicant stated it was the decision of 6 January 1998. Further, he maintained that the Tribunal could review the decision under s 175 of the VEA but offered no reasoning for this assertion.

17. The Tribunal commented that the Defence Service medical records, noting chronic schizophrenia, appeared to be a different department’s records to those maintained for the purpose of the Applicant’s claim for pension. The Tribunal suggested that if that were the case, it may not be a matter of altering or changing a record - it might instead be a matter of different departments keeping different records. Regardless, the Tribunal emphasised that it remained the case that the Tribunal had to be satisfied it had jurisdiction to hear the Applicant’s case.

18. Mr Rudge made oral submissions and relied on the written submissions previously filed. In summary, he contended that because the decision of 6 January 1998 had not been subject to a decision of the Veteran’s Review Board (VRB) pursuant to s 135 of the VEA, the Tribunal was without jurisdiction.

19. Elaborating on the written submissions, Mr Rudge submitted that:

    (a)The Respondent commenced a record for the Applicant once he submitted a pension claim (having become eligible to do so), following legislative amendments to the VEA in 1997. The amendments meant that the Applicant’s service in North East Thailand (including Ubon) between 31 May 1962 and 31 August 1968 was covered by his pension claim.

    (b)The Respondent had gathered expert opinions from Dr Isles, and while there were other opinions about alternate diagnoses or diagnosis being uncertain, they accepted Dr Isles’ views.

    (c)Dr Isles’ views were the basis for the decision on 6 January 1998.The Respondent drew attention to the paragraph of the decision stating— “there is no doubt…the original anxiety state arose out of his service in Ubon.”

20. The Applicant stated that he did not contest Dr Isles’ findings.

21. Mr Rudge also explained that the Defence Department and the Repatriation Commission (Department of Veterans Affairs) were entirely different departments and maintained separate records. He also stated that it was not correct to say that the DVA was under the Medical Board of the Defence Department, something the Applicant had stated.

22. In relation to the contention referred to at [15(d)], the Tribunal enquired if treatment costs had ever been refused to the Applicant and he said they had not.

    EVALUATION OF INFORMATION IN DOCUMENTS

23. The Respondent’s written submission of 19 January 2021 set out the Applicant’s history of service with the Royal Australian Air Force, between 14 February 1963 and 21 March 1967. This was not disputed by the Applicant.

24. The filed documents show that on 25 July 1997 the Applicant made a claim for pension under the VEA for Chronic Schizophrenia.[2] By the decision of 6 January 1998, the Respondent accepted his claim for pension, stating the condition from which the Applicant suffered “would be referred to as generalised anxiety disorder”. It determined at this time the rate of pension would be paid at 50% of the general rate with effect from 13 May 1997.

    [2] Letter from Dept of Veteran’s Affairs 6 January 1998 (TSR07026).

25. A copy of the Respondent’s letter filed by both parties and dated 23 January 2020 provides an explanation to the Applicant of the basis for acceptance of the pension claim for GAD and refers to the opinions of Dr Isles and Dr Brigden.

26. The filed documents received by the Tribunal show that on 18 February 1998 the Applicant requested a review of the 6 January 1998 decision under s 31 of the VEA and, if unsuccessful, a review by the VRB under s 135.[3]  The only ground for appeal at this time was stated as “underassessment in . . . rating pension at 50%”. 

    [3] Attachment C filed by Respondent on 19 January 2021.

27. Documents before the Tribunal show that the Respondent upheld the request for review under s 31 of the VEA, meaning that it decided, on 17 March 1998, that pension should be paid at the Special (totally and permanently incapacitated) Rate with effect from 13 May 1997.

28. The Respondent submitted and it is not disputed by the Applicant that the Special Rate of pension is the highest rate of disability pension available under the VEA. Further, it was submitted by the Respondent that no further review of the decision of 17 March 1998 was ever made to the VRB. This was also not disputed by the Applicant and is self-evident because there would only be a basis for further review if the application pursuant to s 31 had been unsuccessful and it was not.

    DISPOSITION

29. As the Applicant’s request for review of the decision of 6 January 1998 was favourable to him, and because he did not apply to the VRB for further review, there was no decision made by the VRB pursuant to s 135.

30. Subsection 175(1) of the VEA provides for the jurisdiction of the Administrative Appeals Tribunal with regard to decisions made under the VEA. It states:

    1.If:

    a.a decision of the Commission has been reviewed by the Board upon an application made under section 135; and

    b.either:

    (i)     the Board affirms or varies the decision; or

    (ii)    (ii)  the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;

    applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.

    "Board"means the Veterans' ReviewBoard continued in existence by section 134: s 5Q(1).

31. The decisions of the Respondent of 6 January 1998 and 17 March 1998 have not been reviewed by the VRB and the strict pre-condition for the Tribunal’s jurisdiction as stated in s 175(1)(a) is not satisfied.

32. Accordingly, the Tribunal does not have jurisdiction. The application for review dated 22 September 2020 must be dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975.

33. The Applicant is plainly upset and aggrieved by the various labels that have been attached to his psychological illness in various contexts over the years and the Tribunal has a degree of empathy for him. However, it cannot provide any redress and cannot conduct a review because it does not have jurisdiction.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of S Taglieri SC, Member.

......................[sgd]............................
Associate
Dated: 12 March 2021

Date of hearing:

25 February 2021

Solicitor for the Applicant:

Solicitor for the Respondent:

Self-represented

Mr K Rudge