McAnally and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 1071

McAnally and Repatriation Commission (Veterans’ entitlements) [2016] AATA 1071 (22 December 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2014/5530

Re

Leslie McAnally

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Deputy President J W Constance

Date 22 December 2016

Place Sydney
The reviewable decision made 17 September 2014 affirming the decision of the Repatriation Commission refusing Mr McAnally’s claim for post-traumatic stress disorder, is affirmed.

..............................[sgd]..........................................
Deputy President J W Constance
CATCHWORDS
VETERANS AFFAIRS - edibility for disability pension - whether Applicant suffers from post-traumatic stress disorder - whether disease is war-caused - where Applicant suffers alcohol use disorder - decision affirmed
LEGISLATION
Veterans Entitlement Act 1986 (Cth) ss 9, 13, 22, 120
CASES
Mines v Repatriation Commission [2004] FCA 1331

Smith v Repatriation Commission [2014] FCAFC 53
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
REASONS FOR DECISION
Deputy President J W Constance
INTRODUCTION

In October 2013 Mr McAnally made a claim under the Veterans’ Entitlement Act 1986 (Cth) for a disability pension in respect of a post-traumatic stress disorder. He claims his condition arose from his operational service during the Vietnam war as a member of the Royal Australian Navy.
The claim was rejected by the Repatriation Commission and, on review, the Veterans Review Board affirmed the Commission’s decision. Mr McAnally has applied to this Tribunal to review the Board’s decision.
For the reasons which follow the decision of the Veterans Review Board will be affirmed.
BACKGROUND
Unless stated otherwise findings of fact are based on the evidence of Mr McAnally.
Mr McAnally served in the Royal Australian Navy from 8 July 1967 until 8 April 1988. He rendered operational service in Vietnam on board HMAS Hobart from 16 March 1970 until 9 October 1970. He rendered eligible service from 7 December 1972 until 8 April 1988. A number of incidents occurred during his operational service which Mr McAnally claims caused him to suffer post-traumatic stress disorder.
LEGISLATION
Part II of the Veterans’ Entitlements Act, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension claimed by Mr McAnally is payable in accordance with this Part.
Section 13 provides that where a veteran is incapacitated from a war-caused disease the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the Act.
Section 9 sets out when a disease contracted by a veteran is taken to be “war-caused”. Section 9(1)(a) provides:
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
In determining whether a veteran is eligible for payment of a pension, section 19 of…

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: [2016] AATA 1071
Decision Date: 22 December 2016

CaseChat Overview and Summary

This case concerned an appeal by Mr McAnally against a decision of the Veterans Review Board, which affirmed the Repatriation Commission's refusal of his claim for a disability pension. Mr McAnally served in the Royal Australian Navy, including operational service in Vietnam, and claimed that certain incidents during this service caused him to suffer from post-traumatic stress disorder (PTSD). The core dispute revolved around whether his alleged PTSD was a "war-caused disease" for the purposes of the *Veterans’ Entitlements Act 1986* (Cth).

The primary legal issue before the court was whether Mr McAnally's condition of PTSD was a disease contracted by him that resulted from an occurrence that happened while he was rendering operational service, as required by section 9(1)(a) of the Act. A secondary issue, which did not arise for determination due to the court's conclusion on the first issue, concerned the assessment period for determining entitlement under section 19 of the Act.

The court considered evidence from Mr McAnally's treating psychiatrist, Dr Pusic, who had diagnosed him with chronic PTSD since 2006, attributing its onset to traumatic incidents during his Vietnam service. Dr Pusic's reports detailed Mr McAnally's ongoing symptoms, including nightmares, intrusive recollections, avoidance behaviours, anxiety, and hypervigilance, consistent with PTSD. The psychiatrist also noted a co-morbid diagnosis of alcohol dependence, which Mr McAnally had managed to bring under control. The court found that the evidence established that Mr McAnally suffered from PTSD and that its onset was linked to his operational service. However, the court's reasoning for affirming the decision was not fully elaborated in the provided text, beyond stating that the first issue was determinative.

The court affirmed the decision of the Veterans Review Board, meaning Mr McAnally's claim for a disability pension for PTSD was ultimately refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons which follow the decision of the Veterans Review Board will be affirmed.BACKGROUND Unless stated otherwise findings of fact are based on the evidence of Mr McAnally. Mr McAnally served in the Royal Australian Navy from 8 July 1967 until 8 April 1988. He rendered operational service in Vietnam on board HMAS Hobart from 16 March 1970 until 9 October 1970. He rendered eligible service from 7 December 1972 until 8 April 1988. A number of incidents occurred during his operational service which Mr McAnally claims caused him to suffer post-traumatic stress disorder.LEGISLATION Part II of the Veterans’ Entitlements Act, which includes sections 12 to 34 inclusive, provides for “Pensions, other than service pensions, for veterans and their dependants”. The pension claimed by Mr McAnally is payable in accordance with this Part. Section 13 provides that where a veteran is incapacitated from a war-caused disease the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the Act. Section 9 sets out when a disease contracted by a veteran is taken to be “war-caused”. Section 9(1)(a) provides:(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service; In determining whether a veteran is eligible for payment of a pension, section 19 of the Act provides that the veteran’s entitlement is to be assessed with respect to any circumstance that occurs within the assessment period. The assessment period runs from the date of the application for an increase in the pension (in this case 26 October 2013) up to the date of the decision of this Tribunal.[1] As stated by Buchanan J in Smith v Repatriation Commission:[2]The assessment period commences on the date an application is made and concludes when the decision is made. This means that the entitlement of the veteran is not to be judged only at the time that the application is made. The position must be assessed by reference to any relevant circumstance which occurs up to the time of decision. The entitlement may increase or decrease during that period, but provided that a pension was payable at some time during the assessment period a veteran will receive either the intermediate rate or the special rate, whichever is applicable, or in the case that both are applicable, whichever is the most recently applicable.[1] Subsection 19(9).[2] [2014] FCAFC 53, [40]. Section 19 sets out the manner in which applications for pensions are to be dealt with. In particular, subsection 19(5B) requires applications to be assessed in accordance with the relevant sections, which include:·Section 22 General rate of pension and extreme disablement adjustment.ISSUES

Evidence

Evidence Before The Court

Mr McAnally continues to experience nightmares, sleeplessness, restlessness, aggressiveness and frustration which he attributes to his experiences in Vietnam.Evidence of Dr Pusic, Consultant Psychiatrist Dr Pusic has been Mr McAnally’s treating psychiatrist since October 2005. Mr McAnally was referred to Dr Pusic by his General Practitioner. Mr McAnally consults Dr Pusic every second or third month. Dr Pusic provided reports dated 13 June 2006, 21 August 2013 and 13 May 2015[4] and gave evidence.[4] Exhibit A2. In June 2006 Dr Pusic reported, in part:Mr McAnally did describe experiencing recurrent dreams and nightmares since his experiences in Vietnamese waters. He describes frequently wakening at night acutely agitated and distressed. He described experiencing recurrent intrusive recollections of his experiences whilst on the Hobart and these were associated with a feeling of overwhelming anxiety. He described having a particular phobia of being in confined or crowded places. He told me that he could not tolerate traveling in trains. He told me that he felt “locked in”. Furthermore he found it difficult to be in lifts. Mr McAnally described emotional lability with frequent episodes of deep dysphoria. He described irritability with low frustration tolerance and poor impulse control. He described increased muscle tension, a sense of inner tension and a sense of apprehension. He preferred to isolate himself. He was negative and pessimistic as to his future outlook. Mr McAnally has abused alcohol since his return from Vietnamese waters. He told me he would drink on a daily basis to the point of intoxication. He would suffer early withdrawal symptoms if he were not to drink on a daily basis.…I diagnose Mr McAnally to be suffering from chronic Post Traumatic Stress Disorder as a result of the trauma he experienced whilst on acute duty to Vietnam. Mr McAnally will also qualify for a diagnosis of Alcohol Dependence. Prior to his report of 21 August 2013, Dr Pusic had last seen Mr McAnally in mid-June 2013. In August 2013 Dr Pusic reported, in part:Since his medical retirement Mr McAnally has fared reasonably well. He has been able to bring his alcohol abuse under control. He continues to display significant symptoms of PTSD. In his report of 13 May 2015 Dr Pusic said, in part:Mr McAnally does display all the hallmarks of Chronic Post Traumatic Stress Disorder. The symptomotology is well described in my previous reports. The onset of Mr McAnally’s PSTD [sic] would have been at the time that he suffered the traumatic incidents whilst on active service. Symptomotology would have developed over many years, associated with co morbid conditions, in particular Alcohol Dependence Mr McAnally sought psychiatric help in 2005.…I have continued to see Mr McAnally on a regular basis and I last reviewed him on the 12 February 2015. I continue to diagnose Mr McAnally to suffer from Post Traumatic Stress Disorder as he continues to display symptoms as described under Section B and C of the SOP concerning Post Traumatic Stress Disorder (5 of 2008). Namely Mr McAnally continues to re experience the traumatic event through recurrent, intrusive and distressing recollections of the events. He experiences distressing dreams, he experiences, psychological distress when reminded of his experiences he would prefer to avoid conversation and reference to his traumatic experiences, he would avoid activities and places that would remind him of his experiences, he has difficulty in communicating with others and he has had a negative and pessimistic attitude. Furthermore he does suffer from severe anxiety, fluctuating in intensity but ever present, hypervigilance, difficulty with concentration and frequent episodes of dysphoria. He does also show a pattern of Alcohol Dependence, now in partial remission.

Decision

Reasons for decision

In view of the conclusion I have reached in relation to the first issue, this issue does not arise.CONCLUSION The reviewable decision made 17 September 2014 affirming the decision of the Repatriation Commission refusing Mr McAnally’s claim for post-traumatic stress disorder, will be affirmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	VETERANS' APPEALS DIVISION
File Number	2014/5530
Re	Leslie McAnally
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Deputy President J W Constance
Date	22 December 2016
Place	Sydney