McCutcheon and Repatriation Commission - [2004] AATA 329

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 329
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/1019, Q2003/871

VETERANS' APPEALS DIVISION
)

Re QUENTIN McCUTCHEON

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr I R Way, Member
Date31 March 2004
PlaceBrisbane

Decision
The Tribunal affirms the decisions under review.

(Sgd) IR Way
Member

CATCHWORDS
VETERANS’ AFFAIRS – claim for medical treatment and disability pension – diagnosis of psychiatric symptoms - no reasonable hypotheses connecting alcohol abuse to operational service in Vietnam – no severe stressor – incorrect diagnosis of post traumatic stress disorder – irritable bowel syndrome was war related – decisions under review affirmed.
Veterans' Entitlement Act 1986, ss. 9, 120, 120A, 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) FCA 334
Repatriation Commission v Stoddart [2003] FCAFC 300
Martin v Repatriation Commission [2003] AATA 1228
Budworth v Repatriation Commission [2000] AATA 127
Cranage & Repatriation Commission [2000] AATA 1119
Woodward & Repatriation Commission (2003) FCA FC160
Repatriation Commission v Cooke (1998) 160 ALR 17
REASONS FOR DECISION

31 March 2004 Mr I R Way, Member

1.       This is an application by Quentin McCutcheon for review of two decisions of the Repatriation Commission.
2.       The first decision, dated 17 January 2002, insofar as is relevant in this matter, determined that post traumatic stress disorder (PTSD) and alcohol dependence (AD) or alcohol abuse (AA) are not war caused. This decision was affirmed by the Veterans Review Board (VRB) on 11 September 2002.
3.       The second decision, dated 10 June 2003, determined that irritable bowel syndrome (IBS) is not war caused and this decision was affirmed by the VRB on 16 September 2003.
4. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 as follows:
§ Q2002/1019 (PTSD and AD or AA) – Document T1 – T6
§ Q2003/871 (IBS) – Document T1 – T6)

5.       Other documentary evidence before the Tribunal was as follows:
Exhibit A1                  Statement of Applicant dated 16 March 2003
Exhibit A2                  Statement of Applicant dated 20 November 2003
Exhibit A3                  Report of Dr Jerome Gelb dated 23 July 2003

6.       Mr D O’Gorman of Counsel, instructed by Gilshenan and Luton, appeared for the applicant. Mr M Smith, Departmental Advocate, appeared for the Respondent. The applicant gave oral evidence and Dr J Gelb, consultant psychiatrist, gave evidence by telephone.
7.       The applicant was born on 17 December 1948 and served in the Royal Australian Air Force (RAAF) from 24 January 1966 to 23 January 1972, including a period of operational service in Vietnam from 27 August 1969 to 30 July 1970.
8.       The applicant’s accepted service related disability is bilateral sensorineural hearing loss. His non-service related disabilities are PTSD, AD or AA (the applicant being eligible for treatment of PTSD) and IBS.
9.       The applicant’s hypotheses are that he suffers PTSD because of stressors he experienced in Vietnam; that he suffers AD or AA because of his war…

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.

Continue reading McCutcheon and Repatriation Commission

Details

AGLC: McCutcheon and Repatriation Commission [2004] AATA 329
Case: [2004] AATA 329
Decision Date: 31 March 2004

CaseChat Overview and Summary

The case before the Administrative Appeals Tribunal (AAT) involved McCutcheon, who had served in Vietnam during the operational service period, and the Repatriation Commission. McCutcheon sought a medical treatment and disability pension, claiming his psychiatric symptoms were attributable to his service in Vietnam. The Tribunal was tasked with determining whether McCutcheon's claims were substantiated under the Veterans' Entitlement Act 1986.

The primary legal issue for the Tribunal was whether McCutcheon's psychiatric symptoms, specifically diagnosed as post-traumatic stress disorder (PTSD), were connected to his service in Vietnam. The Tribunal had to assess the reasonableness of hypotheses linking his symptoms to his operational service, as well as whether there was a severe stressor experienced during his service. Additionally, the Tribunal examined the validity of the irritable bowel syndrome diagnosis as a war-related condition.

In its decision, the Tribunal found that there were no reasonable hypotheses connecting McCutcheon's alcohol abuse to his operational service in Vietnam. The Tribunal concluded that the evidence did not support the presence of a severe stressor during his service that could have caused the psychiatric symptoms. Furthermore, the Tribunal ruled that the diagnosis of PTSD was incorrect as it did not meet the necessary criteria. However, the Tribunal did affirm that McCutcheon's irritable bowel syndrome was related to his war service. Consequently, the Tribunal upheld the Commission's decision to reject McCutcheon's claims for a medical treatment and disability pension.

The Tribunal's final orders affirmed the decisions under review, rejecting McCutcheon's claims for medical treatment and disability pension. The Tribunal determined that there was insufficient evidence to establish a link between McCutcheon's psychiatric symptoms and his service in Vietnam, and the diagnosis of PTSD was incorrect. However, the Tribunal recognised the war-related nature of McCutcheon's irritable bowel syndrome.

Orders

Orders of the court

The Tribunal affirms the decisions under review.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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