Mulvaney and Repatriation Commission (Veterans' entitlements) [2018] AATA 4358 (22 November 2018)
Division:VETERANS’ APPEALS DIVISION
File Number: 2017/2288
Re:Stephen Mulvaney
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member L M Gallagher
Date:22 November 2018
Place:Perth
The Reviewable Decision dated 13 March 2017 is affirmed.
............[sgd]............................................................
Member L M Gallagher
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – Veterans’ Entitlements Act 1986 (Cth) – defence service – motor bike accident – whether Applicant exposed to a traumatic event – whether Applicant suffers from post-traumatic stress disorder – whether Applicant suffers from alcohol use disorder – veracity and reliability of lay evidence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
Military Compensation Act 1994 (Cth)
Veterans’ Entitlements Act 1986(Cth) – s 5D(1), s 34, s 68(1), s 68(1)(a), s 70(1),
s 70(5)(a), s 70(5)(b), s 120(4), s 120(5), s 120B(3), s 135, s 175(1)CASES
Bloomer and Repatriation Commission [2018] AATA 6672
Border v Repatriation Commission (No 2) (2010) 191 FCR 163; [2010] FCA 1430
Repatriation Commission v Bawden (2012) 206 FCR 296
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Warren [2008] FCAFC 64
Summers v Repatriation Commission (2012) 130 ALD 32
Williams and Repatriation Commission (Veterans’ entitlements) [2018] AATA 3015SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th edition, American Psychiatric Association Publishing, 1994)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th edition, American Psychiatric Association Publishing, 2013)
REASONS FOR DECISION
Member L M Gallagher
22 November 2018
BACKGROUND
Mr Mulvaney is 62 years old. He enlisted in the Royal Australian Navy (“RAN”) on 10 April 1972 and was discharged on 21 December 1992 (R3, T57).
Mr Mulvaney completed eligible service, being “defence service” as defined under subsection 68(1) of the Veterans’ Entitlements Act 1986 (Cth) (“the VEA”), from 7 December 1972 to 21 December 1992 (R3, T57).
On 12 January 2015, Mr Mulvaney lodged a claim for disability pension for:
(a)osteoarthritis of the left knee;
(b)chrondromalacia patella of the left knee;
(c)sensorineural hearing loss;
(d)tinnitus;
(e)lumbar spondylosis and mild disc degeneration at L3-4, L4-5 and L5-S1;
(f)non melanotic malignant neoplasm of the skin;
(g)rotator cuff syndrome of the right shoulder;
(h)gastro-oesophageal reflux disease (“GORD”);
(i)post-traumatic stress disorder (“PTSD”); and
(j)alcohol use disorder
(R3, T7 and T35).
On 12 March 2015, Dr Megan Gilbert, Consultant Psychiatrist, provided a report at the request of the Department of Veterans’ Affairs (“DVA”) (R3, T19). In her report, Dr Gilbert diagnosed Mr Mulvaney with PTSD and alcohol abuse. In Dr Gilbert’s view, both of Mr Mulvaney’s “problems” were a direct consequence of a motor bike accident (“MBA”) that he had in Melbourne in 1983 whilst in his navy training (R3, T19, page 73).
On 10 December 2015, a delegate of the Repatriation Commission made a determination relating to the acceptance of the claimed conditions set out at subparagraphs 3(a) to…
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- Case
- [2018] AATA 4358
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal were twofold: firstly, whether Mr Mulvaney suffered from PTSD and, if so, whether it could be reasonably satisfied that this condition was defence-caused; and secondly, whether Mr Mulvaney suffered from an alcohol use disorder and, if so, whether it could be reasonably satisfied that this disorder was defence-caused. The Tribunal noted that the question of causation would only arise if it was first established that Mr Mulvaney suffered from the claimed conditions.
The Tribunal's reasoning focused on the sufficiency of the evidence presented. It concluded that it did not have enough evidence before it to establish that Mr Mulvaney suffered from PTSD or alcohol use disorder. Consequently, the Tribunal did not proceed to consider the legislative provisions or Statements of Principles relevant to whether these conditions were defence-caused, as this issue was contingent on the prior establishment of the disorders themselves. The Tribunal affirmed the VRB's decision.
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