Meakin-Jones and Repatriation Commission - [2001] AATA 662

DECISION AND REASONS FOR DECISION [2001] AATA 662

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/963

VETERANS' APPEALS DIVISION       )
           Re      DAVID ROGER MEAKIN-JONES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date20 July 2001
PlaceSydney

Decision      The Tribunal affirms the decision under review.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – claim for disability pension – post traumatic stress disorder –hypotension – ulcerative colitis – operational service – whether condition meets the requirements of the relevant Statement of Principles - eligible war service - war-caused injuries or diseases - eligibility for pension - reasonableness of hypothesis to be assessed by reference to Statement of Principles – standard of proof - reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles – experiencing a stressor
Veterans' Entitlements Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), (e), 13(1)(b), (d), 14(1), (3), (4), 20(1), 68(1) "defence service", "member of the Forces", 69(1)(a), (c), 70(1)(b), (d), (9)(b), 71(1), (2)(a), (c), (d), 120(1), (3), (4), 120A(1), (3), (4), 120B(1), (3), (4).
Statement of Principles No 15 of 1994 as amended by No 225 of 1995 concerning Post Traumatic Stress Disorder

Statement of Principles No 16 of 1994 as amended by No 226 of 1995 concerning Post Traumatic Stress Disorder

Statement of Principles No 144 of 1996 as amended by No 179 of 1996 concerning Inflammatory Bowel Disease

Statement of Principles No 145 of 1996 as amended by No 180 of 1996 concerning Inflammatory Bowel Disease

Repatriation Commission v Smith (1987) 12 ALD 798
Repatriation Commission v Deledio (1997) 49 ALD 193
Re Riley and Repatriation Commission (1995) 37 ALD 717

REASONS FOR DECISION

20 July 2001 M J Sassella, Senior Member

History of the application

On 1 October 1975 David Roger Meakin-Jones ("the Applicant") lodged a claim for medical treatment and a Disability Pension with the Repatriation Department (T4). He claimed in respect of "nervous condition, anxiety."
On 5 May 1976 the Repatriation Board rejected the Applicant's claim (T7). The Board considered that the Applicant's personality disorder was not related to his service.
On 9 April 1998 the Applicant lodged a formal claim for nerves, hypertension and ulcerative colitis with the Department of Veterans' Affairs ("the DVA") (T8).
On 17 June 1998 the Repatriation Commission ("the Respondent") refused the Applicant's claims for conditions now described as hypertension, ulcerative colitis and generalised anxiety disorder with alcohol abuse (T9A).
On 31 August 1998 the Applicant wrote to the DVA requesting a review of the Respondent's decision by the Veterans' Review Board ("the VRB") (T10).
On 23 September 1998 the Respondent notified the Applicant that it would not conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T11).
On 18 April 2000 the VRB varied the diagnoses of the generalised anxiety disorder and hypertension to post traumatic stress disorder ("PTSD") and hypotension respectively. In all other respects the Repatriation Commission determination was affirmed, refusing the Applicant's claim to have…

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 Meakin-Jones and Repatriation Commission

Details

AGLC: Meakin-Jones and Repatriation Commission [2001] AATA 662
Case: [2001] AATA 662
Decision Date: 20 July 2001

CaseChat Overview and Summary

Meakin-Jones sought a disability pension from the Repatriation Commission, claiming conditions including post-traumatic stress disorder (PTSD), hypotension, and ulcerative colitis were caused by his operational service. The Commission rejected his claims, leading to a review by the Administrative Appeals Tribunal (AAT). The Tribunal was required to determine whether the Applicant's claimed conditions met the statutory requirements for a disability pension under the Veterans' Entitlements Act 1986. This involved assessing whether the conditions were caused by war service and whether they met the criteria outlined in the relevant Statements of Principles (SoP). The Tribunal had to consider the hypotheses presented by the Applicant regarding the onset and causation of his conditions, and whether these aligned with the requirements in the SoP.

The Tribunal found that the Applicant's PTSD was not linked to his operational service, as the stressor he experienced on the HMAS Vampire in 1969 did not meet the criteria in the SoP for PTSD. The Tribunal noted that the Applicant's PTSD could not be traced to a specific stressor related to his operational service, nor was it established that the Applicant was unable to obtain appropriate clinical management for his condition. The Tribunal also considered that the other conditions claimed, hypotension and ulcerative colitis, were not war-caused as they did not meet the requirements in the relevant SoPs.

The Tribunal affirmed the Repatriation Commission's decision, holding that the Applicant's claimed disabilities were not war-caused under the Act. The Tribunal found that the Applicant did not satisfy the conditions necessary to be awarded a disability pension. The reasoning was based on the application of the SoPs, which outlined the specific criteria that must be met for a condition to be considered war-caused.

The Tribunal's decision was upheld, and the Applicant's claim for a disability pension was dismissed. The Tribunal's findings were based on the evidence presented and the interpretation of the relevant legislation and SoPs. The Tribunal concluded that the Applicant did not meet the statutory requirements for a disability pension, and therefore, the Repatriation Commission's decision was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Applicant completed operational service in Vietnam during the period 14 May 1969 to 21 May 1969. His eligible service was during the period 7 December 1972 to 11 May 1973 (T9A).Documentary medical and other evidence On 25 February 1971 a RAN examining medical officer noted on the Applicant's entry history questionnaire that he had nightmares and "was once often depressed – now seldom suffers from any episodes" (T3, folio 16). In a daily service medical record of an indeterminate date in 1973, the medical officer noted that the Applicant was suffering from depression and sleep disturbance and that he wanted to leave the RAN (T3, folio 7). On 22 January 1973 a RAN outpatient record (T3, folio 8) noted that the Applicant had a reduced appetite, that there was no change in his bowel action and that he had "reversed diurnal mood variation lethargy." The Applicant also expressed a desire to leave the Navy. Further, on 24 January 1973 another entry recorded the Applicant's depression since being married, that he had lost one and a half stone and that he had reduced energy levels. He slept restlessly and suffered from nausea. This later entry also noted that the Applicant had nightmares as a child and that he liked to be alone, disappearing for two or three days at a time by himself. The examiner's opinion was that he was impulsive and immature and that he was prone to anxiety and depression when limited by discipline at home or by marriage or his employment. On 30 March 1973 a report of the medical board of survey noted that the Applicant had the disability "anxiety neurosis" (T8, folio 54). It further noted that the condition was constitutional, that it was not due to naval service but that it was aggravated by service. It found a 10% civil disability rating and a 60% naval disability rating. A further report found a 40% naval disability rating (T8, folio 55). Attached to the Applicant's claim form of 1 October 1975 was a statement that he had written in support of his application (T4, folio 23). He stated that his nerves and anxiety were caused shortly after transferring to the RAN from the Royal Navy. He found it hard to gain promotion whilst working as a submariner and noted he was being overlooked for promotion in favour of general service members who had not had the same amount of submarine training that he had had. The Applicant also noted the obvious animosities between officers and crew. On 12 January 1976 the Applicant was seen by a psychiatrist (T5). The doctor noted the Applicant resented his lack of promotion and the lack discipline in the service and became depressed as a result. He was discharged from the RAN in May 1973 because he was told that he was of no further use to the service. The doctor further noted that, according to his service documents, the Applicant was untidy and inefficient. The Applicant "tends to project his grievances on to the Navy in particular." The doctor did not consider that a diagnosis of "anxiety state" was in any way appropriate. The Applicant's behaviour was more that of a "spoilt child…I just cannot see how in any way a pension is required…"

Decision

Reasons for decision

The findings made above mean that the Tribunal has agreed with the VRB that the Applicant's disabilities are not war-caused under the Act.Decision The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Tribunal will proceed to consider each of the Applicant's claimed disabilities and its possible relationship with operational service and, if necessary, defence service.Possible relationship between PTSD and operational service The Applicant presented the following hypothesis leading to PTSD as a possible war-caused condition related to operational service. This was that the Applicant experienced a stressor on the HMAS Vampire prior to the clinical onset of PTSD in May 1969 and this led to the Applicant's PTSD. In addition it is claimed that the Applicant was unable, in the Navy, to obtain appropriate clinical management for his PTSD. The Tribunal finds that step 1 of Deledio (supra) has been satisfied. There is at least one hypothesis. There is a relevant SoP on PTSD that applies to the Applicant. This is SoP 15/1994 on PTSD as amended by 225/1995. Step 2 of Deledio (supra) is satisfied. The Tribunal finds that the third step in Deledio (supra) is satisfied. The hypotheses as presented resemble the requirements in the SoP. The fourth step in Deledio (supra) is to ascertain whether the Tribunal can be satisfied beyond reasonable doubt that any of the requirements in the relevant SoP cannot be met in the Applicant's case. Referring to the SoP on PTSD, the following questions are prompted from the terms of the SoP: Does the Applicant have PTSD as defined in paragraph 4 of the SoP? If the Applicant does not have PTSD can his claim in respect of PTSD be taken to apply to any other disability? If the Applicant has PTSD has he experienced a stressor as defined in paragraph 4 of the SoP (SoP factors 1(a) and (b))? If the Applicant has experienced a stressor was it prior to the clinical onset of PTSD (SoP factor 1(a))? If the Applicant has experienced a stressor and it was not prior to the clinical onset of PTSD, was it prior to the clinical worsening of PTSD (SoP factor 1(b))? If the Applicant did not experience a stressor was he unable to obtain appropriate clinical management for his PTSD (SoP factor 1(c))? If the answer to any of questions 3, 4 or 5 is yes, was the relevant factor related to the Applicant's operational service (SoP paragraphs 2 and 3)? Dr Hordern (T12 and Exhibit A2) provides the strongest opinion to the effect that the Applicant has PTSD. He traces the PTSD back to stressful experiences on the HMAS Vampire in 1969. He considered the condition exacerbated by the incident on the HMAS Ovens when the submarine bottomed. Dr Hordern gave evidence by telephone during the hearing. He said that the Applicant was in a difficult position when he joined the Vampire. He had been trained as a submariner in the UK Royal Navy. He was transferred to the RAN to work in Australian submarines. He found himself in Singapore working on surface vessels when he had expected to travel on to Australia. He had been in the Scottish winter in the Royal Navy and had to adjust to the hot climate in Singapore without his proper kit. He was accommodated in the stewards' and cooks' mess and had no contact with seamen. There were rumours the ship was to go to Vietnam but this was not clarified. He was given a vulnerable action station to occupy just below the ship's large guns. Asbestos flakes fell on him in action stations. He was frightened, in fear of his life. He had no knowledge what was happening. He experienced the onset of his bowel symptoms at this time.