Louis Halvorson and Repatriation Commission

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[2012] AATA 930  

Division VETERANS' APPEALS DIVISION

File Number

2012/1445

Re

Louis Halvorson

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President S D Hotop
Date 21 December 2012
Place Perth

The decision under review is affirmed.

...(sgd) S D Hotop...............

S D Hotop, Deputy President

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Royal Australian Air Force – applicant rendered operational service – applicant suffers from social phobia and psoriasis – material before Tribunal does not raise reasonable hypothesis connecting applicant's social phobia or psoriasis with operational service – applicant’s social phobia and psoriasis not war-caused – decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B

Statement of Principles concerning psoriasis No 31 of 2012

Instrument No 56 of 2002 concerning psoriasis

CASES

Benjamin v Repatriation Commission (2001) 70 ALD 622

Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton (2001) 110 FCR 321

REASONS FOR DECISION

Deputy President S D Hotop

21 December 2012

Introduction

  1. Louis Halvorson (“the applicant”), who was born in June 1933, served in the Royal Australian Air Force (“RAAF”) from 25 March 1952 to 24 March 1964 and from 4 January 1965 to 4 April 1974.  He rendered “operational service”, for the purposes of Part II of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 12 September 1959 to 31 January 1962 and from 15 December 1969 to 20 December 1969, and “defence service”, for the purposes of Part IV of the VE Act, from 7 December 1972 to 4 April 1974.

  2. On 27 April 2010 the applicant claimed disability pension under the VE Act in respect of conditions described by him as “panic attacks/anxiety” and “skin problems” of which he first became aware in “1984” and which he claimed were war-caused or defence-caused.

  3. On 16 March 2011 a delegate of the Repatriation Commission (“the respondent”) decided that “posttraumatic stress disorder and psoriasis are not related to service”.

  4. On 20 October 2011 the Veterans’ Review Board (“VRB”) varied the delegate’s decision by substituting the diagnosis of “social phobia” for “post traumatic stress disorder”, and affirmed that decision (as varied).

  5. On 20 April 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 20 October 2011.  On 4 May 2012 the Tribunal granted to the applicant an extension of time until 20 April 2012 for the lodging of that application for review.

    The Evidence

  6. The evidence before the Tribunal comprised:

    ·the “T Documents” (T1–T12) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

    ·supplementary documents (ST1–ST12) filed by the respondent on 21 September 2012 (Exhibit R1);

    ·Exhibits A1–A3 tendered by the applicant;

    ·Exhibits R2 – R5 tendered by the respondent; and

    ·the oral evidence of Dr Jonathon Spear.

    The Applicant’s Prior Claim History

  7. The history of the applicant’s previous claims…

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Details
Case
[2012] AATA 930
Decision Date

CaseChat Overview and Summary

In the matter of Louis Halvorson and the Repatriation Commission, the applicant, Louis Halvorson, sought a review of the Commission’s decision to deny his claim for compensation for a psychiatric condition, specifically post-traumatic stress disorder (PTSD), which he attributed to his military service during the Vietnam conflict. The case was heard in the Administrative Appeals Tribunal (AAT).

The legal issues that the court had to decide included whether the applicant's PTSD was caused by his military service and if it qualified for compensation under the Veterans' Entitlements Act 1986 (VE Act). The court had to consider the applicant's medical history, the findings of various psychiatrists, and the Commission’s earlier decisions. It also had to determine if the applicant's condition met the criteria for a war-caused injury or disease under the VE Act.

The court reviewed the applicant's history of claims and the medical evidence provided. The Tribunal noted that the applicant had previously claimed compensation for anxiety, which was denied. Despite the applicant's assertions and medical opinions suggesting a link between his condition and his military service, the court found that there was insufficient evidence to establish that the applicant's PTSD was war-caused. The court relied on the reports from various medical professionals, including Dr John Pougher and Dr Lance Risbey, who provided differing opinions on the causation of the applicant's condition. Ultimately, the court concluded that the applicant's condition did not meet the statutory criteria for a war-caused injury or disease.

The Tribunal affirmed the Repatriation Commission's decision, finding that the applicant's claim for compensation was not substantiated by the evidence. The court dismissed the applicant's appeal and upheld the original decision denying his claim for compensation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The history of the applicant’s previous claims under the VE Act and the associated medical information are summarised in paras 4.7 – 4.14 of the respondent’s Statement of Facts, Issues and Contentions dated 12 November 2012, and that summary is not disputed by the applicant (see para 4.1 of the applicant’s Statement of Facts, Issues and Contentions dated 28 November 2012). That summary is as follows:“4.7 In 1992, the Applicant claimed acceptance of ‘anxiety’ amongst other conditions. (ST1/3) The Applicant was examined by a Departmental medical officer, who reported that he became emotional when he talked about the caskets carrying the bodies of dead servicemen during the Vietnam conflict. (ST2/8) He had first noted anxiety and panic symptoms in 1984, when giving a presentation and was now anxious whenever giving a presentation.4.8The Applicant was referred to Dr John Pougher, a psychiatrist, who reported that the Applicant exhibited a mild to moderate anxiety disorder with a component of social phobia. (ST3/15) This had been evident for about 9 years. Dr Pougher noted that the Applicant became tearful and upset when talking about his Vietnam experiences, which he indicated were organising coffins and wounded evacuations but opined that this was more a manifestation of his present anxiety state than the cause. Dr Pougher did not consider that the Applicant’s psychiatric problems were related to his service.4.9On 29 March 1993, a delegate of the Repatriation Commission determined that anxiety state is not war-caused. (ST4/17)4.10In 1995, the Applicant again claimed acceptance of anxiety state as being war-caused. (ST5/21) The Applicant was seen by Dr Lance Risbey, a psychiatrist, who diagnosed him as suffering from ‘… a well-suppressed post-traumatic stress disorder (and at the very least, a chronic anxiety disorder, this being a more general term) stemming from his overseas service, with delayed onset of symptoms and with relatively minimal symptoms until 1993.’ (ST7/28) Dr Risbey pointed to incidents during the Applicant’s service in Butterworth during the Vietnam war, handling medically evacuated soldiers and the caskets of the dead as being causal.4.11On 19 June 1995, a delegate of the Repatriation Commission determined that post traumatic stress disorder is not war-caused. (ST8/30) This decision was affirmed by the Veterans’ Review Board on 15 February 1996. (ST9/33)4.12The Applicant was examined in connexion with a claim for compensation from Comcare by Dr Danny Shub, a psychiatrist, who provided a report on 4 June 1996. (ST11/40) Dr Shub opined that the Applicant suffers from an anxiety state causally related to stressful circumstances within his employment in 1984. (ST11/44) Dr Shub considered that it was possible that the Applicant’s stressful overseas RAAF service had rendered him somewhat vulnerable to the development of an emotional disorder.4.13On 8 February 1999, Dr Risbey provided another report, in which he discussed psychiatric reports from Dr Shub, Dr Zelko Mustac and Professor Peter Burvill, the latter two of which are unavailable. (T4/76) Dr Risbey referred to stressful incidents during the Applicant’s service in Butterworth in 1968 when dealing with the caskets of soldiers killed in Vietnam. (T4/78) Dr Risbey diagnosed the Applicant as suffering from a chronic anxiety state with panic attacks or perhaps an atypical post-traumatic stress disorder. (T4/81)4.14On 17 November 2009, Dr Kevin Dallimore, a dermatologist, diagnosed the Applicant as suffering from psoriasis. (T4/83)”The Applicant’s Evidence

Decision

Reasons for decision

For the sake of completeness, the Tribunal notes that the applicant did not contend that either his Social Phobia or his psoriasis is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act. Having regard to the evidence before it, the Tribunal confirms that there is no basis for such a contention.Decision For the above reasons the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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