Patterson and Repatriation Commission
[2005] AATA 1243
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1243
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos T2001/113 and T2001/182
VETERANS' APPEALS DIVISION ) Re SYDNEY JAMES PATTERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-time Member) Date16 December 2005
PlaceHobart
Decision 1. The decision under review is set aside and in substitution thereof the Tribunal finds that the disabilities of:
Alcohol dependence or abuse
Post-traumatic stress disorder (PTSD)
are war-caused within the meaning of the Veterans’ Entitlements Act 1986 and amendments.
2. The matter is remitted to the Repatriation Commission for calculation of pension payable, the earliest date being 19 February 1999.
[Sgd B W Davis]
Part-Time Member
[2005] AATA 1243
ADMINISTRATIVE APPEALS TRIBUNAL ) T2001/113
) and
VETERANS’ APPEALS DIVISION ) T2001/182Re : SYDNEY JAMES PATTERSON
Applicant
And : REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal : Assoc Prof B W Davis AM (Part-Time Member)
Date : 4 January 2006
Place : Hobart
Decision: Following a request for clarification, the decision of 16 December 2005 is varied to read as follows:
1. Re T2001/113 the decision under review is set aside and in substitution thereof the Tribunal finds that the disabilities of:
Alcohol dependence or abuse
Post-traumatic stress disorder (PTSD)
are war-caused within the meaning of the Veterans’ Entitlements Act 1986 and amendments
2. Re T2001/182 the Tribunal affirms the VRB decision of 3 July 2001 that bilateral congenital hallux vulgas and osteoarthritis of both feet are war-caused disabilities within the meaning of Section 9 of the Act. No evidence has been submitted to demonstrate worsening of these disabilities since 2001, hence no increase in pension arises in respect of them
3. Having considered all evidence before it and noting provisions in GARP (the Guide to Assessment of Rates of Veterans’ Pensions) the Tribunal has determined that the applicant should be paid disability pension at 100 per cent of the General Rate from 19 February 1999. The case for payment at the Special Rate is not made out, but the matter is remitted to the Repatriation Commission for consideration.
[Sgd Assoc Prof B W Davis]
Part-Time Member
CATCHWORDS
Veterans' Entitlements - operational service - Vietnam - disability pension - bilateral congenital hallux valgus - osteoarthritis of both feet - alcohol dependence or abuse - post-traumatic stress disorder (PTSD) - severe stressor - reasonable hypothesis - Statements of Principles (SoP) - Veterans' Review Board (VRB).
Veterans’ Entitlements Act 1986 and Amendments – ss9, 13(1), 120(1) and (3), 120A
Repatriation Commission v Deledio [1998] 83 FCR 82
Bushell v Repatriation Commission [1992] 105 ALR 30; 175 CLR 408
Byrnes v Repatriation Commission [1993] 116 ALR 210
Stoddart v Repatriation Commission [2003] FCA 334; 74 ALD 336
Woodward v Repatriation Commission [2003] FCA 160
Constable v Repatriation Commission [2005] FCA 928
Re Demczuk and Repatriation Commission [2005] AATA 1012 (12 October 2005)
Re Skewes and Repatriation Commission [2005] AATA 1026 (17 October 2005)
REASONS FOR DECISION
16 December 2005 Associate Professor B W Davis AM (Part-time Member) The Application
1. This is an appeal against a decision of the Veterans’ Review Board (VRB) dated 8 November 2001, whereby the applicant, Sydney James Patterson, was awarded disability pension at 20 per cent of the General Rate from 19 February 2001 and at 50 per cent of the General Rate from 25 August 1999, the date that bilateral congenital hallux valgus and osteoarthritis of both feet were accepted as war-caused.
2. The case is long-running because two advocates for the applicant died during the intervening periods and two sets of claims are involved designated T2000/13 and T2000/73, but subsumed together in the VRB determination.
Applicant’s Contentions
3. In a state of facts and contentions dated 2 June 1005, it is contended as follows:
(a)that the applicant suffers from a war-caused Post-traumatic Stress Disorder, satisfying Factor 5(a) of the Statement of Principles No 3 of 1999, as amended by No 54 of 1999.
(b)that the applicant suffers from a war-caused Alcohol Dependence or Alcohol Abuse satisfying Factors 5(a) or (b) of Statements of Principle Nos 76 & 77 of 1998.
(c)that the rate of disability pension payable to the applicant is not commensurate with the degree of incapacity.
Standard of Proof
4. The applicant having rendered operational service, the standard of proof is that prescribed in ss120(1) and (3) and s120A of the Veterans’ Entitlements Act 1986 and amendments.
Background
5. Sydney James Patterson was born on 18 June 1951 and having left school at age 14, enlisted in the Army at age 17 on 4 December 1969 and was discharged on 5 February 1972. He had operational service in Vietnam from 4 March 1971 to 5 January 1972.
6. The applicant has the following incapacities currently accepted as service-related:
Hiatus Hernia
Tinea Crusis
Bilateral Sensorineural hearing loss
Bilateral Congenital Hallux Valgus
Osteoarthritis of both feet
The following incapacities are currently not accepted as being service-related:
Chest Trouble
Alcohol Dependence or Alcohol AbuseStress
The earliest date of effect for any adjustment of disability pension would be 19 February 1999.
Medical History
7. The applicant’s entry medical examination for the Army was unremarkable and he was accepted as classification FA. His discharge medical examination was very different, recording vomiting of blood following alcoholic excess OS and chronic diarrhoea OS. A subsequent DVA medical report, dated 17 February 1972 also records episodes of excessive alcohol consumption and vomiting.
8. Mr Patterson first sought help for stress and substance abuse in May 1999, when he was seen by clinical psychologist/counsellor Gillian Paxton. The veteran claimed that earlier as an army transport driver in Australia, he had been involved in transporting medivacced soldiers from South Vietnam, which he found frightening and distressing, given their wounds.
9. On arrival in South Vietnam, where he again served as transport driver, he was constantly warned about dangers of ambush and witnessed some brutalities by the “White Mice” (Vietnamese police). He was also distressed by the death of a mate who was killed by lightning. The ready availability and cheap price of liquor led to heavy consumption of alcohol and some drug taking activities. His alcohol problems continue to this day.
10. The veteran reports that on return to Australia he had a careless attitude and engaged in many fights after drinking. He was anxious, agitated and very restless. He now desires to be isolated, his sleep is restless and he suffers skin disorders. He is still using some illicit drugs.
11. The applicant’s General Practitioner, Dr J Braithwaite has treated the veteran since mid 1999 and in a report dated 28 February 2000, expressed an opinion the applicant suffered PTSD and could not tolerate work due to stress and anxiety.
12. The applicant first consulted Dr J Mathew, Psychiatrist, on 23 August 2000. Mr Patterson indicated that he arrived at Nui Dat in South Vietnam with sweat and apprehension, reinforced by Army cautions not to deviate from any transport route or he could lose his legs or worse. The applicant also claimed to have witnessed brutalities of the South Vietnamese police in the form of shooting and severe physical assaults. The availability of cheap and free liquor led to high alcohol consumption and drug abuse, which continued after discharge from the Army.
13. Dr Mathew, Psychiatrist, has seen the patient regularly on a monthly basis for counselling and supervision of his anti-depressant medication and supportive psychotherapy. The veteran’s alcohol consumption remains a major problem. He still has flashbacks of disturbing experiences in South Vietnam. Dr Mathew has on several occasions confirmed a diagnosis of Post-traumatic Stress Disorder (PTSD).
14. This diagnosis is queried by Dr Ian Sale, Psychiatrist, who has assessed the veteran twice, on behalf of the Department of Veterans’ Affairs.
History of Applications
15. On 19 May 1999 the applicant lodged a claim for stress and substance abuse to be accepted as being service-related. He also lodged an application for increase in his General Rate pension beyond the 20 per cent rate in relation to his accepted service-related incapacities.
16. On 15 November 1999 the Repatriation Commission rejected the claim for alcohol dependence or alcohol abuse, refused the claim for stress because diagnosis of the condition could not be confirmed and refused his application for increase in disability pension and continued that at 20 per cent of the General Rate.
17. On 23 November 1999 the applicant lodged an application for review with the Veterans’ Review Board and on 25 November 1999 lodged a claim for Bilateral Hallux Valgus. The latter claim was rejected by the Repatriation Commission on 25 January 2000, whereupon the applicant lodged a further application by the Veterans’ Review Board.
18. On 3 July 2001 the Veterans’ Review Board:
· Affirmed the decision in relation alcohol dependence or alcohol abuse and stress;
· Set aside the decision in relation to bilateral acquired hallux valgus and in substitution determined that bilateral congenital hallux valgus and osteoarthritis of both feet are war-caused conditions; and
· Adjourned the application in relation to assessment of pension.
19. On 8 November 2001 the VRB varied the decision under review and determined that the applicant’s disability pension be assessed at 20 per cent of the General Rate from 19 February 1999 to 50 per cent of the General Rate from 25 August 1999.
20. On 19 November 2001 Mr Patterson lodged an application for review to the AAT.
The AAT Hearing
21. The AAT hearing was conducted in Hobart on Tuesday, 22 November 2005. The applicant was assisted by Mr David Skinner of the RSL, who acted as advocate; Mr Michael Castle represented the Repatriation Commission.
22. Mr Skinner outlined initial details of the applicant’s case and Mr Sydney James Patterson was then affirmed as witness. Mr Patterson indicated he left school at an early age and prior to joining the Army had a number of manual jobs. He enlisted at age 17 and after basic training was assigned to a transport unit where he qualified as a driver. He had played a lot of sport earlier but was a modest drinker at that stage of life and during his early Army experiences. However when he became involved in transporting medivacced wounded personnel from airport arrival in Australia to hospital, he became distressed and felt sorrow for those involved. He was therefore apprehensive when informed he would be sent to Vietnam for a 12 month tour of duty.
23. He was stationed at Nui Dat and involved in amenity and supply runs to Vung Tau transporting hospital visitors, packages, mail and canteen supplies. He became friendly with a man in charge of the canteen, who had unlimited access to alcohol, thus his own consumption increased markedly and he began to use marijuana as well. He had become extremely anxious, having been told he could be ambushed and lose his legs or worse. In practice he was never fired at and never threatened in Vietnam, but witnessed various brutalities by the Vietnamese police (“White Mice”) who shot a man about 30-40 yards from him. He did not know what was going on and was petrified.
24. He could not recall why he had been AWOL on a number of occasions prior to going to Vietnam and why charges for insubordinate language prior to Vietnam were alcohol related. On return to Australia and at the time of discharge from the Army he had been an excessive drinker also using some drugs. As a result he needed psychological treatment and a medical regime. He was engaged in numerous fights, faced an assault charge for attempted murder, and had a number of drink driving convictions. He had attempted to gain employment after leaving the Army, but failed to achieve anything but a few short term tasks and had led a nomadic life until he finally returned to Tasmania.
25. Under cross-examination he described his alcohol consumption before, during and after the Army, often involving intakes of whisky, beers and “top shelf” liquor in large quantities. He admitted he had never been shot at or witnessed combat or been present when anybody was wounded or killed.
26. The veteran’s partner, Ms Debbie Lockwood was affirmed and gave evidence of her knowledge of the applicant’s personal and psychological problems. She said she had known Sydney Patterson for 23 years and had been his partner for seven years. He was difficult to live with, being irritable and suffering swings of mood and action, with high alcohol consumption and some recreational drug use throughout. He was a very restless sleeper, sweating profusely, awakening frequently and sometimes yelling out. She was aware he received a service pension, but under cross-examination said she did not know the details.
27. Retired psychiatrist, Dr Jacob Mathew was then sworn as witness. He gave details of various qualifications and 32 years experience, indicating he had retired about six months ago, leaving treatment of the applicant to Dr J Braithwaite, his general practitioner.
28. Dr Mathew said that he had examined the veteran regularly on a monthly basis from August 2000, for counselling and supervision of his anti-depressant medication and supportive psychotherapy. Mr Patterson’s alcohol consumption was a major problem, since the veteran continued to have flashbacks of disturbing experiences of service in South Vietnam. In his opinion Mr Patterson remained depressed and anxious most of the time and would continue to require psychiatric management for an indefinite period into the future. He considered the applicant suffered from PTSD and had confirmed this diagnosis on several occasions. Dr Mathew said he was amazed at Mr Patterson’s capacity to sometimes appear coherent and focussed, despite high alcohol consumption.
29. Dr Mathew said that almost anyone who had witnessed wounded soldiers and undergone the traumatic experience of a shooting by police nearby, would be likely to experience PTSD. This was queried by counsel for the respondent, who said such a claim was an evident overstatement. Under cross-examination, Dr Mathew claimed he had examined the Statement of Principles for PTSD, especially Factor 5(a) and believed it applied to the veteran.
30. Advocate for the applicant, Mr David Skinner, sought to recall Mr Patterson as witness. The veteran recalled “soft patrols” around the airfield at Nui Dat and stated he had observed wounded servicemen nearby, awaiting medivacuation. He was upset by what he saw and depression tended to increase his alcohol consumption and dependences.
31. Dr Ian Sale, psychiatrist, was contacted by phone and after being affirmed, gave evidence for the respondent. He had examined Mr Patterson on two occasions for periods approximating one hour each and had been able to study the DVA file. Dr Sale noted the veteran’s back ground and service experience, including being AWOL several times in the Army and other evidence indicating Mr Patterson could be impulsive and perhaps reckless. However he disagreed with Dr Mathew’s diagnosis of PTSD; at the time of examinations he conducted the veteran did not appear to be in a situation of anxiety or depression or any psychiatric disorder in general. He agreed that a diagnosis of alcohol and substance abuse could be made, but did not consider they met criteria in the relevant SoP.
32. In final submissions on behalf of the applicant, David Skinner said Dr Mathew had regularly seen the veteran at monthly intervals for several years, while Dr Sale had only examined him on two occasions. Dr Mathew’s diagnosis should therefore be preferred. Mr Patterson had given evidence of distress caused by incidents prior to and during service in Vietnam and this had preyed on his mind and affected his behaviour ever since Mr Patterson had suffered a “severe stressor” within the meaning of the Act, and had met the criteria specified in the relevant SoPs. It was his contention that PTSD and alcohol dependence or abuse had been demonstrated as war-caused incapacities, therefore Mr Patterson should receive pension at 100 per cent of the General Rate from February 1999 and payment at the Special Rate should be considered.
33. In closing submissions for the respondent, Mr Castle drew attention to the fact there was some evidence of an alcohol problem prior to Vietnam service, thus whether it was “war-caused” was problematical. While he did not discount the possibility Mr Patterson was in an anxious state of mind in Vietnam, the reality was most people coped with it and the veteran himself had admitted he had never been in close danger, witnessed combat or suffered any life-threatening experience, other than violence by South Vietnam policemen some distance from him and with no known outcome.
34. Mr Castle drew attention to the VRB’s detailed assessments of Mr Patterson’s condition in its determination of 3 July 2001. Neither Dr Burges Watson or Dr Sale were convinced PTSD existed, nor could they agree alcohol dependence or abuse was war-caused. The VRB had therefore concluded the evidence did not raise a reasonable hypothesis, particularly as Dr Mathew had not given a detailed diagnosis to support his claim of PTSD.
35. Mr Castle said that although the veteran had succumbed to the ready availability of liquor in Vietnam and did suffer anxiety and depression now, but it is debatable whether Mr Patterson ever really experienced a severe stressor sufficient to prove his disabilities were war-caused. Nonetheless, if the Tribunal was mindful of accepting a diagnosis of PTSD as war-caused, the issue of Special Rate would still have to be assessed, with little supportive evidence available to make that judgment.
Analysis
36. The Tribunal is required to conduct a de-nova review of all available evidence, bearing in mind statutory provisions and any relevant judicial determinations.
37. The relevant legislation is the Veterans’ Entitlements Act 1986, in particular ss9, 13(1), 120(1), 120(3) and 120A. Sections 9 and 13(1) define “war-caused injuries or diseases” and “eligibility for pension”, but the standard of proof for veterans with operational service is that of a reasonable hypothesis, applying ss120(1) and 120(3) of the Act. This in turn is affected by s120A. Here the decision-maker shall determine that the injury was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt that there is no sufficient ground for making the determination.
38. As Mr Patterson has operational service, application of the law must follow the procedure enunciated by the Full Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82, which held that the requisite process is as follows:
“1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B (12) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
39. With respect to determining whether an hypothesis is reasonable, the Tribunal notes Heerey J’s approach in Deledio v Repatriation Commission (supra) which followed the “reasonableness” test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Deledio (supra):
“… …
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”
40. In the case of Mr Patterson the relevant Statements of Principle concerning Alcohol Dependence or Alcohol Abuse are Instruments Nos 76 of 1998, as amended by No 77 of 1998, especially Factor 5(b) which reads:
“…(b)experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or…”
41. In the case of PTSD the relevant SoP is Instrument No 3 of 1999, as amended by No 54 of 1999, especially Factor 5(a) which reads:
“…(a)experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder; or …”
42. Neither of these factors should be considered in isolation; the entire SoP must be considered in detail.
43. The initial task for the Tribunal is to determine whether the material before it gives rise to a plausible hypothesis connecting the applicant’s claimed disabilities to the particular circumstances of his operational service. No question of fact arises at this stage.
44. It is uncontested that the veteran has suffered from alcohol dependence or alcohol abuse from at least 1972 onwards and also claims anxiety, depression and other problems arising from disturbing experiences prior to and during operational service in South Vietnam. Having considered all evidence and documentation before it, including medical reports, the Tribunal believes a reasonable hypothesis could be postulated that his claimed disabilities arose from events linked to operational service.
45. The next matter to be determined is whether relevant SoP exist, concerning alcohol dependence or abuse and PTSD. As already noted, such SoP do exist i.e. Instruments Nos 76 and 77 of 1998 and Instruments Nos 3 and 54 of 1999.
46. Given that SoPs are in force, the Tribunal must next consider whether any hypothesis raised is consistent with the template, i.e. whether one or more Factors exist, relative to the veteran’s operational service, as required by the Act. In Mr Patterson’s case counsel for the applicant has claimed he underwent a severe stressor within the meaning of Factor 5 of Instruments Nos 76 and 77 of 1998 (Alcohol Dependence or Abuse) and/or Factor 5 of Instruments No 3 and 54 of 1999. In each case the term “severe stressor” is defined as meaning the “… person experienced, witnessed or was confronted with an event or events that involved actual or threat of death, or serious injury, or a threat to the person’s, or another person’s physical integrity.”
47. Until comparatively recently the term “severe stressor” was literally interpreted as involving actual physical danger to the person, such that death or injury could result. Following a number of recent AAT and Federal Court decisions, it is now accepted that a more subjective element must be considered, namely whether an individual believes he or she were in substantial danger. For detailed discussion see Stoddart v Repatriation Commission [2003] FCA 334 and FCA FC 300; Guy v Repatriation Commission [2005] FCA 562 and Constable v Repatriation Commission [2005] FCA 928.
48. The Tribunal must now proceed to consider whether under ss120(1) and (3) of the Act it is satisfied beyond reasonable doubt that the veteran’s disabilities were not war-caused, otherwise the claim must succeed. It is only at this stage that the Tribunal is obliged to find facts from the material before it. In so doing no question of onus of proof or application of presumption is involved.
49. The advocate for the applicant has claimed Mr Patterson’s alcohol dependence or abuse satisfies Factor 5(b) of SoP Nos 76 and 77 of 1998, i.e. “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or …”.
50. Although Mr Patterson claims to have been only a social drinker prior to and during the initial phases of his army career, there is some evidence of heavier consumption, with episodes of AWOL and insubordinate language, as well as drink-driving charges during this period. The veteran attributes his later alcoholism to the ready availability of liquor and high consumption during operational service. His Army discharge papers certainly demonstrate alcohol dependence and some drug problems in 1973, with self-admission this has continued ever since.
51. In the view of the Tribunal it is debatable whether the alcohol disability is actually war-caused or whether it was free access to liquor during operational service which led to a worsening of a pre-existing condition; nonetheless the disability does appear service linked. There is no evidence to confirm alcohol dependence or abuse was contracted before army service.
52. Turning to the issue of claimed PTSD, the advocate for the applicant has argued Factors 5(a) and 5(b) apply, namely experiencing a severe stressor prior to the clinical onset of PTSD, or prior to the clinical worsening of PTSD. The difficulty here is to determine whether a severe stressor actually occurred and if so, when; as well as noting that the long gap between discharge from military service in 1972 and May 1999 when the veteran first attended the VVCS, seeking counselling and treatment for his disabilities.
53. The veteran admits he was never shot at or witnessed combat in South Vietnam and had not been present when anyone was wounded or killed, other than an incident at a distance, when a civilian was wounded by the South Vietnamese police. He said he had been petrified, not knowing what was going on and having been previously advised that if challenged he was not to move. He attributed his severe anxiety and depression to stress induced by witnessing casualties medivacced to Australia and later witnessing more casualties at Nui Dat airport. He felt extremely sorry for those involved and this manifested itself subsequently in irritability, mood swings and sleeplessness, as well as alcoholism and substance abuse.
54. The Tribunal notes differences of opinion in the medical evidence. Dr J Mathew having examined and counselled the veteran from August 2000 onwards, is firmly of the belief the applicant has PTSD and will require ongoing treatment. Dr Ian Sale who examined the applicant twice is less convinced, saying that at the times he was carrying out his diagnosis, Mr Patterson did not display any features in history or mental state suggestive of anxiety or depression or psychiatric disorder in general. The Tribunal notes that Mr Patterson appeared calm and focussed during the AAT hearing and the same may have occurred during Dr Sale’s diagnosis. Dr Mathew concedes it is amazing the veteran can cope reasonably well, despite high alcohol intake and some substance abuse, nonetheless he does not believe this calm state is the norm and the applicant continues to need counselling and assistance for substantial psychiatric problems.
55. Dr Sale said it was not a case of totally different diagnosis between himself and Dr Mathew; both agreed there is a history of alcoholism and substance abuse, but Dr Mathew considered the trauma of seeing wounded soldiers was bound to result in PTSD, Dr Sale said he did not agree, knowing soldiers reacted to situations in different ways and often coped well. In Mr Patterson’s case he did not consider the diagnosis met the criteria of the relevant SoP.
56. In closing submissions advocate for the applicant argued Dr Mathew’s diagnosis should be preferred, because it involved assessments over a substantial timeframe and numerous examinations. Counsel for the respondent replied it was debatable whether a real stressor had occurred, other than Mr Patterson’s subjective feelings; he considered Dr Mathew had overstated his case.
57. Given the provisions of s120A of the Veterans’ Entitlements Act 1986 (“the Act”) and amendments, the Tribunal is required to find claimed disabilities were war-caused, unless it is satisfied beyond reasonable doubt that the disabilities were not war-caused or did not arise from operational service. There is no evidence to suggest the applicant’s identified disabilities totally arose prior to service or that they originated at an identified date after service; all evidence points towards accepting they arose and worsened during army service and in that sense are war-caused.
58. Having reached this determination the Tribunal would normally refer the matter back to the Repatriation Commission (Veterans’ Affairs) for calculation of pension payable. However, counsel for the respondent has correctly pointed out, if the claim for PTSD is accepted then a pension rate of 60 per cent of the General Rate from 19 February 1999 and 90 per cent from 25 August 1999 would be in contemplation and payment at the Special Rate would need to be considered.
59. Mr Patterson is under 65 years of age and his degree of incapacity from war-caused disabilities is 70 per cent or more, therefore under s24 of the Act there are three criteria which must be met before the veteran is eligible for the Special Rate of pension:
“(a) incapacity from war-caused disabilities must be at least 70%; and
(b)the disabilities alone must be such as to prevent the veteran from working more than eight hours per week; and
(c)the incapacities must be such as to have caused a loss of salary, wages or earnings that the veteran would not be suffering if free of such incapacities.”
With respect to incapacity, it is the war-caused disabilities alone which must render the veteran incapable of undertaking remunerative work for periods aggregating more than eight hours per week.
60. There are numerous case determinations by the AAT and Federal Court dealing with interpretation of the phrase “of itself alone”. See, for example Cavell v Repatriation Commission (1998) 9 AAR 534, Flentjar v Repatriation Commission (1997) 48 ALD 1, Repatriation Commission v Hendy (2002) CA 602, also Wright v Repatriation Commission (2005) FCA 7.
61. Turning more directly to Mr Patterson’s situation, there is not a substantial body of evidence upon which to form a judgment. The applicant himself claims that after army service he sought employment on building sites and in mainland mining areas, but he was nomadic and unsettled, drinking heavily as well as getting involved in fights which led to assault charges and limited his employment prospects. It was only some time after he returned to Tasmania that he accepted family advice to attend the Vietnam Veterans’ Counselling Service in 1999, which led to subsequent treatment by Dr Mathew from August 2000 onwards.
62. Counsel for the respondent noted that the applicant had tried self-employment at one stage, but appeared to have ceased work in 1995, being on unemployment relief until he was granted a veteran’s disability pension in February 1999. There is no firm evidence available to confirm it was war-caused disabilities alone, which caused him to cease employment, although it might be expected that a combination of alcohol dependence, substance abuse and aggression would have severely limited his prospects.
63. The Tribunal agrees there is little in the way of medical evidence or other documentation to indicate precisely why and when the veteran ceased employment, thus it cannot be inferred it was war-caused disabilities alone which generated this situation. Neither Dr Sale or Dr Mathew make comment on this matter; Dr Braithwaite, the applicant’s treating general practitioner is the only one who claims possible permanent incapacity of the veteran, but no grounds are stated, nor is there confirmation it was war-caused disabilities alone which precluded work from a specific date.
64. In summary, having considered all evidence anew, the Tribunal is of a view on the balance of probabilities that the veteran’s disabilities of alcohol dependence or abuse and PTSD are war-caused within the meaning of the Act. However the case for disability pension at the Special Rate is not made out.
Decision
65. The decision under review is set aside and in substitution thereof the Tribunal finds that the disabilities of:
Alcohol dependence or abuse
Post-traumatic stress disorder (PTSD)
are war-caused within the meaning of the Veterans’ Entitlements Act 1986 and amendments.
66. The matter is remitted to the Repatriation Commission for calculation of pension payable, the earliest date being 19 February 1999.
I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 22 November 2005
Date of Decision 16 December 2005
Representative for the Applicant Mr David Skinner
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans' Affairs
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