Long and Repatriation Commission (Veterans' entitlements) - [2018] AATA 1841

Long and Repatriation Commission (Veterans' entitlements) [2018] AATA 1841 (22 June 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/3326
Re:Terry Raymond Long
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:22 June 2018
Place:Sydney

The Tribunal varies the decision made by a delegate of the Repatriation Commission on 23 April 2015, deciding that:
·Mr Long did not suffer from Post-Traumatic Stress Disorder or Alcohol Use Disorder during the assessment period, and
·Mr Long did suffer from Persistent Depressive Disorder and Cannabis Use Disorder during the assessment period but neither condition is connected to service.

...............[sgd].........................................................
Mrs J C Kelly, Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – disability pension – post-traumatic stress disorder – alcohol use disorder – substance use disorder – depressive disorder – whether applicant suffers from medical conditions – whether there is a connection between medical conditions and eligible defence service – decision varied
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 120, 120B
Statement of Principles concerning Alcohol Use Disorder (No. 2 of 2009) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Alcohol Use Disorder (Balance of Probabilities) (No. 49 of 2017) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Depressive Disorder (No. 84 of 2015) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Substance Use Disorder (No. 4 of 2009) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
Statement of Principles concerning Substance Use Disorder (Balance of Probabilities) (No. 60 of 2017) made under subsection 196B(3) of the Veterans’ Entitlements Act 1986
CASES
Benjamin v Repatriation Commission [2001] FCA 522, (2001) 64 ALD 411
Repatriation Commission v Cooke [1998] FCA 1717, (1998) 160 ALR 17
Repatriation Commission v Moss (1982) 40 ALR 553
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
22 June 2018
BACKGROUND

Mr Long was born in 1964. He served in the Australian Army from 23 September 1981 until 22 October 1984.
On 7 October 2014, he claimed for pension for psychiatric conditions, “PTSD/Alcohol Dependence”. On 23 April 2015, a delegate of the Repatriation Commission refused the claim for PTSD, Alcohol Use Disorder and Depressive Disorder (the reviewable decision in this Tribunal). The Veteran’s Review Board (VRB) affirmed that decision on 6 June 2016.
Mr Long has a history of alcohol abuse and use of cannabis. Two psychiatrists, Doctors Brash and Smith, have diagnosed that Mr Long suffers from psychiatric conditions.
In his report dated 5 June 2014, Dr Brash diagnosed:
·Post-Traumatic Stress Disorder (PTSD),
·Depressive Disorder as a consequence of PTSD, and
·Alcohol Dependence, in remission.
In his report dated 20 March 2017, Dr Smith diagnosed:
·Alcohol Use Disorder, in remission,
·Cannabis Use Disorder, and
·Persistent Depressive Disorder.
ISSUES
The issues for the Tribunal are:
·which of those diagnoses is appropriate, and
·whether any one or more of the diagnosed conditions was/were connected to his service.
The Tribunal has to determine both the kind…

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: [2018] AATA 1841
Decision Date: 22 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Long against a decision of a delegate of the Repatriation Commission regarding his claim for a disability pension. The dispute centred on whether Mr Long suffered from certain medical conditions, specifically Post-Traumatic Stress Disorder, Alcohol Use Disorder, Substance Use Disorder, and Depressive Disorder, and crucially, whether these conditions were connected to his eligible defence service. The decision was made by Mrs J C Kelly, Senior Member, of the Tribunal.

The Tribunal was required to determine whether Mr Long suffered from Post-Traumatic Stress Disorder, Alcohol Use Disorder, and Persistent Depressive Disorder, and Cannabis Use Disorder. Furthermore, it had to assess whether any of these diagnosed conditions were connected to his defence service, applying the relevant Statements of Principles (SoPs) for Substance Use Disorder and other conditions.

In its reasoning, the Tribunal considered the applicable SoPs for Substance Use Disorder, noting that Instrument No. 4 of 2009 had been replaced by SoP No. 60 of 2017. Despite considering the factors outlined in both SoPs for connecting Substance Use Disorder to service, the Tribunal was not satisfied on the balance of probabilities that any of these factors were met. Consequently, the Tribunal varied the delegate's decision, finding that Mr Long did not suffer from Post-Traumatic Stress Disorder or Alcohol Use Disorder during the assessment period. While it was determined that Mr Long did suffer from Persistent Depressive Disorder and Cannabis Use Disorder during the assessment period, the Tribunal concluded that neither of these conditions was connected to his service.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The SoP for Substance Use Disorder was Instrument No. 4 of 2009. It has been replaced by SoP No. 60 of 2017. The Tribunal has considered the factors that must exist to connect Mr Long’s Substance Use Disorder with the circumstances of his service in both SoPs but is not satisfied on the balance of probabilities that any of the factors is satisfied.DECISION For the above reasons and taking into account all the diagnoses raised on the evidence before it, the Tribunal varies the decision made by a delegate of the Repatriation Commission on 23 April 2015, deciding that:·Mr Long did not suffer from Post-Traumatic Stress Disorder or Alcohol Use Disorder during the assessment period, and·Mr Long did suffer from Persistent Depressive Disorder and Cannabis Use Disorder during the assessment period but neither condition is connected to service.

Ratio Decidendi

Legal Principle Established

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