O'Dowd and Repatriation Commission

Case [2012] AATA 789
Division VETERANS' APPEALS DIVISION

File Number

2011/0892

Re

Peter David O'Dowd

APPLICANT

And

Repatriation Commission

RESPONDENT

DIRECTION

Tribunal

Egon Fice, Senior Member
Date 30 November 2012 
Place Melbourne

The Tribunal made a Decision under s 43 of the Administrative Appeals Tribunal Act 1975 (the Act) on 13 November 2012. In accordance with s 43AA(1) of the Act, the Tribunal directs that the text in the reasons for decision be altered in the following way:

1.Deleting the following words on the cover page at the end of the paragraph entitled ‘Decision’:

The Tribunal affirms the decision of the Veterans’ Review Board made on 18 February 2011.

Replacing them with:

1.   Mr Peter O’Dowd’s Rosacea is a war-caused disease with effect from 22 July 2009.

2.   The Tribunal affirms the Veterans’ Review Board decision made on 18 February 2011 regarding Post Traumatic Stress Disorder.

3.   This matter is remitted to the Repatriation Commission for the purpose of re-assessment of the rate of pension to be paid to Mr O’Dowd. 

...[sgd Egon Fice].....................................................................

Egon Fice, Senior Member

[2012] AATA 789 

Division VETERANS' APPEALS DIVISION

File Number

2011/0892

Re

Peter David O'Dowd

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Egon Fice, Senior Member
Date 13 November 2012 
Place Melbourne

The Tribunal affirms the decision of the Veterans’ Review Board made on
18 February 2011.

....[sgd Egon Fice]....................................................................

Egon Fice, Senior Member

VETERANS’ AFFAIRS – Disability Pension – Post traumatic stress disorder – agoraphobia – was the disease a war-caused disease – standard of proof – balance of probabilities – traumatic events – operational service – hypothesis – reasonable hypothesis – Royal Australian Navy – Vietnam – Philippines – alcohol – rosacea

Veterans' Entitlements Act 1986 (Cth) ss 120, 120(1), 120(3), 120(4), 120(5), 120(6)

Bawden v Repatriation Commission (2012) 291 ALR 457
Benjamin v Repatriation Commission (2001) 34 AAR 270
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v Smith (1987) 15 FCR 327

Woodward and Another v Repatriation Commission (2003) 131 FCR 473

Chambers 21st Century Dictionary (1999, reprinted 2004)

Diagnostic and Statistical Manual of Mental Disorders (4th ed)
Dorland's Illustrated Medical Dictionary (27th ed)

Statement of Principles concerning Post Traumatic Stress Disorder - Instrument No. 5 of 2008

REASONS FOR DECISION

Egon Fice, Senior Member

13 November 2012

  1. Mr Peter O'Dowd enlisted in the Royal Australian Navy on 16 March 1963.  He was discharged on 15 March 1975.  Mr O'Dowd had operational service in Vietnam while on board HMAS Brisbane between 20 March 1969 and 13 October 1969.  He also had eligible defence service (as that expression is defined in the Veterans' Entitlements Act 1986 (VE Act)) between 7 December 1972 and 15 March 1975.

  2. On 22 October 2009 Mr O'Dowd lodged with the Department of Veterans' Affairs a…

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Details
AGLC
O'Dowd and Repatriation Commission [2012] AATA 789
Case
[2012] AATA 789
Decision Date

CaseChat Overview and Summary

The case of O'Dowd and Repatriation Commission involved a claim by Mr. O'Dowd for a disability pension based on a diagnosis of Post-Traumatic Stress Disorder (PTSD) arising from his operational service in Vietnam. The case was heard by the Federal Court of Australia, which needed to determine whether Mr. O'Dowd's PTSD was indeed a consequence of his service and, if so, whether it met the criteria for a disability pension under the relevant legislation. The court was tasked with evaluating the evidence presented regarding Mr. O'Dowd's mental health, the specific events he claimed caused his PTSD, and the connection between those events and his military service.

The primary legal issue before the court was whether Mr. O'Dowd's PTSD was connected to his service in a manner that would qualify him for a disability pension. This involved a multi-step process, starting with identifying whether the evidence presented a hypothesis linking his PTSD to specific traumatic events during his service. The court also had to consider whether there was a Statement of Principles (SoP) in force at the time of his claim that addressed the relationship between PTSD and military service, and if the hypothesis was reasonable under the terms of that SoP. Finally, the court needed to determine if Mr. O'Dowd's incapacity was indeed caused by a war-related injury, satisfying the statutory requirements for a pension under the Veterans' Entitlements Act.

The court found that while Mr. O'Dowd had been diagnosed with PTSD by three psychiatrists, the evidence did not convincingly demonstrate that he suffered significant distress or impairment as a result of this condition. Moreover, the specific events he claimed to be the source of his PTSD were deemed unreliable and were not accepted by the court. Consequently, the court concluded that there was no causal connection between Mr. O'Dowd's operational service and his claimed PTSD. The court affirmed the decision of the Veterans' Review Board, which had previously rejected Mr. O'Dowd's claim for a disability pension. The court's decision was based on the unreliability of the evidence linking the claimed traumatic events to Mr. O'Dowd's PTSD, and the absence of a sufficient causal connection under the statutory requirements.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In fact, the description given by Mr O'Dowd resembles what Mr Millar said he saw on the hospital ship. Furthermore, Mr Millar said that when he returned to HMAS Brisbane, he talked about his visit. It appears to me, for whatever reason, Mr O'Dowd has come to believe that he was involved in a visit resembling that of Mr Millar. I cannot accept his evidence on this event. I find, beyond reasonable doubt, that the event described by Mr O'Dowd regarding the visit to Subic Bay hospital did not occur. It follows that this claimed event could not be the cause of PTSD, assuming Mr O'Dowd has that mental disorder.CONCLUSION Mr O'Dowd claimed a disability pension, one of the grounds for which was the fact that he had PTSD arising out of operational service in Vietnam. Despite there being three psychiatrists who have diagnosed Mr O'Dowd with PTSD, it is with great caution that I have concluded that he does not have that mental disorder. In fact, I have found that Mr O'Dowd does not suffer from any mental disorder principally because the evidence does not disclose he suffers significant distress or impairment in social, occupational or other important areas of functioning as a consequence of PTSD. Furthermore, the evidence of symptoms described by Mr O'Dowd which it was claimed satisfied the diagnostic criteria in DSM-IV was at best equivocal and, on many occasions, contradictory. Assuming I am incorrect about the diagnosis of a mental disorder, I have nevertheless examined Mr O'Dowd's claim regarding PTSD in order to determine whether there exists a causal connection between his operational service and that disorder. I have found that there is no causal connection because I cannot accept the raised facts due to the unreliability of the evidence which Mr O'Dowd claimed to support them. I am satisfied beyond reasonable doubt that the factual foundation of the hypothesis linking Mr O'Dowd's claimed PTSD with his operational service has been disproved. Insofar as Mr O'Dowd's claim regarding PTSD is concerned, I have found that the decision of the VRB made on 18 February 2011 was correct. I affirm that decision.

Ratio Decidendi

Legal Principle Established

In the event that I am wrong about the diagnosis of PTSD, I have decided that I should assume that Mr O'Dowd has PTSD and proceed with an analysis of the connection with that condition and his operational service. CONNECTION WITH OPERATIONAL SERVICE As was explained in Deledio's case, the process involves four steps. They are:(a)consider all the material and determine whether it points to a hypothesis connecting the disease with the circumstances of the particular service rendered;(b)if the material raises a hypothesis, ascertain whether there is in force a SoP concerning the disease;(c)if there is a SoP in force, form an opinion whether the hypothesis raised is a reasonable one by reference to the "template" found in the SoP; and(d)proceed to consider under s 120(1) of the VE Act whether I am satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury.Hypothesis Although Mr O'Dowd relied on three discrete events which he said were traumatic and which occurred in the course of his operational service, he only discovered the third of those events well after he was diagnosed with PTSD by the three psychiatrists who examined him. I have already referred to the spotter pilot incident and the Subic Bay hospital incident. The third incident occurred on 16 June 1969 when HMAS Brisbane was called on to provide fire support to US troops in an area immediately south of the Demilitarised Zone (DMZ). The HMAS Brisbane Report of Proceedings for June 1969, which was in evidence, records two series of firings, the first resulting in a gun damage assessment (GDA) of 2 enemy killed in action (KIA) and 1 wounded in action (WIA); and the second resulting in 11 KIA with a further 56 forced to evacuate the area which resulted in their deaths and 9 prisoners taken following the bombardment. Mr O'Dowd was one of the crew members engaged in the gun plot responsible for setting target coordinates into the computer and firing the guns. I accept that the material before me points to a hypothesis connecting Mr O'Dowd's PTSD with his operational service.SoP in force The relevant SoP concerning PTSD is No. 5 of 2008 which came into effect on 9 January 2008. It was in force at the time Mr O'Dowd made his application for a disability pension.Is the hypothesis reasonable To be regarded as reasonable, the hypothesis must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the person's service. Mr O'Dowd relies on factors 6 (a) and (b) of the SoP which refer to experiencing a category 1A stressor and a category 1B stressor before the clinical onset of PTSD. A category 1A stressor is defined in clause 9 in the following way:"a category 1A stressor" means one or more of the following severe traumatic events:(a) experiencing a life-threatening event;(b) being subject to a serious physical attack or assault including rape and sexual molestation; or(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;…