Odgers and Repatriation Commission (Veterans' entitlements) - [2020] AATA 1655

Odgers and Repatriation Commission (Veterans' entitlements) [2020] AATA 1655 (9 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Number: 2015/6688
Re:Aaron Odgers
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:9 June 2020
Place:Brisbane

I set aside the decision under review and substitute a decision that the persistent depressive disorder (which includes the condition previously known as dysthymia) of the veteran was defence-caused and that he is entitled to a pension is payable in respect of that condition. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 17 September 2013 which is the date when the veteran lodged his claim.
........................................................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – claim for disease related to service – persistent depressive disorder (dysthymia), major depressive episode with anxious distress, and alcohol use disorder – whether disease related to defence service – Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth) – having alcohol use disorder at the time of theclinical worsening of depressive disorder – decision under review remitted for reconsideration for assessment of pension
LEGISLATION
Statement of Principles concerning alcohol use disorder (Reasonable Hypothesis) (No. 48 of 2017) (Cth)
Statement of Principles concerning alcohol use disorder (Balance of Probabilities) (No. 49 of 2017) (Cth)
Statement of Principles concerning depressive disorder (No. 28 of 2008) (Cth)
Statement of Principles concerning depressive disorder (No. 41 of 2010) (Cth)
Statement of Principles concerning depressive disorder (No. 83 of 2015) (Cth)
Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Dyce and Repatriation Commission [2010] AATA 956
Repatriation Commission v Bawden (2012) 206 FCR 296; [2012] FCAFC 176
Repatriation Commission v Milenz (2006) 93 ALD 107; [2006] FCA 1436
Repatriation Commission v Yates (1995) 38 ALD 80
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
9 June 2020
BACKGROUND

On 17 December 2013, Mr Aaron Odgers (‘the veteran’) lodged a claim form with the Repatriation Commission (‘the respondent’) for “disabilities that have not yet been accepted as service related”.[1] The veteran listed “Anxiety & Depression” as the disability being claimed in the form. In the claim form, the veteran indicated that he believed his disability was “caused, contributed to, or aggravated” by “Service in the Gulf War. Service Dealing with illegal immigrants. Pain from service related injuries.”.
[1] Exhibit A, T-Documents, T4.
On 20 November 2014 the respondent made a decision that the conditions of “Dysthymia” and “Alcohol harmful abuse” were not related to the veteran’s service and found that there was “no medical condition present to answer” for the condition of “anxiety disorder”.[2]
[2] Exhibit A, T-Documents, T10.
On 19 February 2015 the veteran lodged an application for review…

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: [2020] AATA 1655
Decision Date: 9 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a claim by Mr. Odgers against the Repatriation Commission concerning his entitlement to a pension for conditions allegedly related to his defence service. Mr. Odgers claimed persistent depressive disorder (dysthymia), major depressive episode with anxious distress, and alcohol use disorder. The dispute centred on whether these conditions were causally linked to his service, particularly during the Gulf War.

The primary legal issue before the Tribunal was to determine if Mr. Odgers' diagnosed depressive disorder was a "disease" for the purposes of the *Veterans' Entitlements Act 1986* (Cth) and, if so, whether it was causally related to his defence service. This required the Tribunal to apply the principles outlined in *Repatriation Commission v Bawden*, which involves identifying the symptoms, determining if they constitute a disease, and then ascertaining the aetiology of that disease by testing hypotheses against the relevant Statements of Principles and the factual evidence. The Tribunal also had to consider the interplay between the depressive disorder and the alcohol use disorder, particularly in light of the Statements of Principles concerning depressive disorders in force at the relevant times.

The Tribunal reasoned that the veteran's persistent depressive disorder was defence-caused. It noted that while the initial claim form did not explicitly include an alcohol condition, and the Tribunal lacked jurisdiction to consider a new, undetermined claim for alcohol use disorder, the veteran's alcohol use was relevant to the manifestation and concealment of his depressive disorder. Expert evidence suggested that the onset of Mr. Odgers' psychological symptoms predated his awareness of them, with his wife corroborating that he was psychologically different upon returning from the Gulf War. The Tribunal found that the veteran's experiences during the Gulf War, including exposure to hostile environments and the stress of combat operations, likely contributed to the onset of his depressive disorder, which was subsequently exacerbated by his self-medication with alcohol.

Consequently, the Tribunal set aside the decision under review and substituted a decision that Mr. Odgers' persistent depressive disorder was defence-caused, and a pension is payable. The matter was remitted to the Repatriation Commission for the assessment of the rate of pension payable, with the date of effect set as 17 September 2013, the date the veteran lodged his claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A further SoP was included within the documents filed with the Tribunal by the respondent, namely, the Statement of Principles concerning depressive disorder (No. 28 of 2008) (Cth).[8] This SoP was amended by the Statement of Principles concerning depressive disorder (No. 41 of 2010) (Cth) with the amendments taking effect from 12 May 2010. This SoP, as amended, was then revoked by the Statement of Principles concerning depressive disorder (No. 84 of 2015) (Cth) which commenced on 20 July 2015. This SoP, as amended, was in force at the time of the veteran’s claim in December 2013 and applies to claims relating to defence service.EVIDENCEVeteran’s evidence[8] Exhibit A, T-Documents, T16.Statements The veteran provided a statement prepared by his advocate, Mr D.J. Chalk, together with his application on 19 February 2015, to the VRB for review of the respondent’s decision dated 20 November 2014.[9][9] Exhibit A, T-Documents, T12. Mr Chalk stated:I believe that the Disability diagnosed by Dr. Penkaj Relan [consulting psychiatrist] DYSTHYMIA... is as a result of Mr Odgers Service, particularly during his service in “The Gulf War” as Sailor in the Royal Australian Navy. He was a Boiler Room Attendant during his service in the “Gulf” where the threat of mines was the most worrying especially for Personal [sic] below decks of the Ship. The concern was enhanced when he heard that another Ship had hit a mine in the area they had been in beforehand as well as finding they had been alerted to 2 Iraqi Jet Fighters. The Ship went to Action Stations and an SM1 was readied for action. The Aircraft remained out of Effective Range approximately 5 miles. These actions do not relate to a Category 2 Stressor [Depressive Disorder SOP 27 of 2008 but does match PTSD 82 of 2014 A Hostile or Life – Threatening Environment sub para [a].The initial application was a request to investigate a claim for “ANXIETY and DEPRESSION.” This was a layman’s diagnosis as explained by the Veteran that he felt at times he was anxious and a bit down at times which was diagnosed by Dr Relan after a Consultation and Dysthemia [sic]. He also diagnosed Alcohol Harmful Use at that time. This diagnosis was as Dr [Relan] explained in his report was as a result of his Naval Service…The pain and suffering is as a result of his accepted Disabilities.The Veteran was also subjected to ongoing Trauma as a Sailor on Patrol Ships conducting Stop the Boats dealing with Illegal Immigrants Boats for 3 years… The veteran provided a statement on 13 August 2018 during the course of this application.[10] The veteran’s statement outlined the following:[10] Exhibit L.·The veteran joined the Navy in 1987 at 15 years of age;·Following his 2.5 year apprenticeship he was posted to HMAS Brisbane where he “did a few trips around Australia” before he participated in the Rim of the Pacific Exercise (‘RIMPAC’) in 1990;·In May of 1990 he was informed of a pending deployment to operation Damask/Desert Storm of which he said: “I had mixed emotions of excitement and apprehension.”;·He said he was “19, and working in the Boiler room (which is locked Down when at action stations and defence watches), and in a full fire fighting suit for Action Stations, I was pretty scared”. He arrived in the Gulf in November 1990;·He said that: “When Hostilities commenced we went to Action Stations. I was in full fire fighting rig… We weren’t sure what response the Iraqi navy and Air force would give, so we were pretty stressed out. During Hostilities we witnessed a Tomahawk Cruise Missile track around our position at a range of around 1 mile and height around 10m. That was a bit concerning as we were in its direct path to its target. USS Tripoli hit a mine and 3 personnel were killed. This scared the hell out of us as we were 20 miles in front of her on the same track.”;·He worked in the “most [forward] Machinery Space” and added that they transited through a mine field for 36 hours, during which time “going down the hole” was very intense. His bunk was “outboard and about 2m below the water line. With approx. 25mm of steel between us and any mines, it wasn’t a very nice place to sleep.”;·He added that on one occasion towards the end of the war they detected two Iraqi MiG fighter jets in their sector, they readied a SM1 Missile, the Iraqi jets were engaged by the USS Midway’s combat air patrol and that the Iraqi jets remained around 3 miles out of the HMAS Brisbane’s “effective kill range.” he added that “the actual war lasted 48 days.”;·Before and after the war he was allowed ashore in Bahrain and Abu Dhabi. He said: “We were encouraged by senior staff to drink our stresses away. We could do this in the International Hotels and at the Coalition Bases. We often drank until ‘the bad man went away’. All up we spent approx. 4 months in defence watches (6 hrs on 6 hrs off) which was extremely exhausting. We stopped in Singapore on the way home and in Brisbane. We were all drunk every time we went ashore.”;·No counselling was ever offered to him;·Sea going allowance was almost an extra 25% pay and so they “hid [their] conditions” and self-medicated them with alcohol;·The motto on DDGs was “harden up and drink through it” which he did at every opportunity;·He and the members of his crew would meet up for “warming flashes” where they would drink heavily until 12:30AM and return to the ship for a “flash up” at 4:00AM about which he said “We got pretty good at lighting boilers drunk”;·There was a bullying culture rampant in the Navy during the 80s and 90s which he supposed was a way of coping with stress and that he was known to have a short fuse and a quick wit;·His wife noticed changes on his return from the Gulf and he “drank through” issues at home. His wife warned him that she would leave him if he didn’t stop drinking, however, this did not eventuate. Around that time he would consume 18-24 drinks in a session on a weekend;·He suffered physical injuries while drinking between 1993 and 1998;·He still drinks approximately six standard drinks nightly and that he has received medical advice to cut down. He tries to have at least one alcohol free day per week;·He considers that he is still using coping mechanisms from the 80s and 90s which are not acceptable now;·As to the decision of the VRB, he considered it was wrong for a number of reasons including that “No statement was made by myself or my wife with regard to Alcohol Use, as the condition I had claimed was anxiety/depressive disorder. The alcohol abuse was first diagnosed by Dr Relan during his assessment and also by Dr Bayley.”; and·As to his claim for depressive disorder, he considers he has had a positive response to anti-depressive therapy, and that “it is probable that the condition was manifested during the Gulf War and was hidden by self medicated Alcohol Abuse and Bullying”.Veteran’s oral evidence

Decision

Reasons for decision

The respondent in final submissions has submitted that if the veteran is successful the date of effect of my decision is 17 September 2013. The veteran has not made any submissions on the date of effect if he was successful. I consider that it is appropriate to make the 17 September 2013 the date of effect of my decision as this is the date when he lodged his claim.DECISION I set aside the decision under review and substitute a decision that the persistent depressive disorder (which includes the condition previously known as dysthymia) of the veteran was defence-caused and a pension is payable in respect of that condition. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 17 September 2013 which is the date when the veteran lodged his claim.

Ratio Decidendi

Legal Principle Established

Dr Bayley was taken to the reports of Dr Relan and she was invited to comment on Dr Relan’s opinion that “the origins of the psychological symptoms and distress was somewhere around the late 1990’s for both the diagnosed psychiatric conditions. This was when Mr Odgers first became aware of these symptoms”. Dr Bayley remarked:I believe that the onset of Mr Odgers’ psychological symptoms was earlier – in the early 1990’s and that with regards to become aware of them, that’s a bit – insight is a difficult thing but he certainly can say on retrospect to me and his wife backs this up that he was – like I said, functionally different with regard to psychological state when he came back from the first Gulf War. So that – basically I am saying that he was aware on retrospect and his wife was aware at the time that he wasn’t functioning as well psychologically in the social and emotional sense. Perhaps, you know, maybe if he had been better with regards his mood he would have achieved at high levels in the navy. I really can’t comment on that. He suffered psychological impacts when he came back from – in the 1990’s – early 1990’s so that is my understanding of the course of his psychological symptoms. psychiatric symptoms. I’m not sure if I answered your question but that is – Dr Relan and I have a different opinion on that.CONSIDERATION When this Tribunal first convened a hearing of this application there were submissions made by the respondent in relation to the relevance of the claim for alcohol and alcohol abuse. In the original claim form the veteran had made a claim for “anxiety and depression”; there are no claims on that form relating to any alcohol condition. The general practitioner who signed the claim form did not make any notation that the veteran had an alcohol condition.[20] By consent, the original hearing was adjourned to enable the veteran to lodge a new claim for an alcohol condition, but this new claim has not been determined.[20] Exhibit A, T-Documents, T4, pp. 67-68. Having regard to the fact that the veteran had not in his initial claim form made a claim for an alcohol condition, it is settled that this Tribunal does not have jurisdiction to consider the new claim for the alcohol condition.[21][21] Dyce and Repatriation Commission [2010] AATA 956. I now must consider the claim for anxiety and depression. In his claim form the veteran has indicated that his claim relates to his service in the Gulf War and the events of Operation Relex. In Repatriation Commission v Bawden, Keane CJ, Jacobson and Bennett JJ remarked:[22]A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-maker’s second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt.[22] (2012) 206 FCR 296; [2012] FCAFC 176 at [43].