Re Benjamin and Repatriation Commission

Case [2000] AATA 680

DECISION AND REASONS FOR DECISION [2000] AATA 680

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N98/1821

VETERANS' APPEALS  DIVISION       )          
           Re      DAVID BENJAMIN            
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Senior Member J.A. Kiosoglous MBE    

Date9 August 2000

PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that: (a) psychoactive substance abuse is accepted as a war-caused condition; (b) post-traumatic stress disorder is rejected as a war caused condition; (c) the applicant is not entitled to special rate; and (d) the matter is remitted to the respondent to determine the applicant's general rate of pension as and from 19 June 1997.

(Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements -- special rate – general rate – PTSD – psychoactive substance abuse – diagnosis – standard of proof considered – "traumatic event" considered – "experience" considered – "stressful event" considered – "clinical onset" considered – abuse and dependence distinguished from each other – causation – alone test – number of conditions resulting in incapacity for work
Veterans' Entitlements Act 1986 s.24
Statement of Principles No. 5 of 1994
Statement of Principles No. 15 of 1994
Statement of Principles No. 76 of 1998
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gosewinkel [1999] FCA 1273
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Budworth and Repatriation Commission [2000] AATA 127
Re Howe and Repatriation Commission [1999] AATA 1006
Repatriation Commission v Keeley [2000] FCA 532
Re Mackay and Repatriation Commission [2000] AATA 483
Byrnes v Repatriation Commission (1993) 177 CLR 564
Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

9 August 2000    Senior Member J.A. Kiosoglous MBE   

  1. This is an application by Mr David Benjamin (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 21 October 1998 (T12) which affirmed a decision of a delegate of the respondent dated 26 March 1998 (T2) refusing the applicant's claim for post traumatic stress disorder (PTSD) and alcohol dependence.

  2. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with 29 exhibits, 18 lodged by the applicant (Exhibits A1-A18) and 11 lodged by the respondent (Exhibits R1-R11). In addition, the Tribunal heard evidence from the applicant, who also called Dr A. Dinnen , Consultant Psychiatrist, Dr K. Reinhardt, Consultant Psychiatrist, and Dr M. Baz, Occupational Physician. The respondent called as witnesses Dr R. Lewin, Consultant Psychiatrist, and Dr M. Burns, Occupational Physician. The applicant was represented by Ms J. Buss, of counsel, and the respondent was represented by Ms M. Doggett, a departmental advocate.

  3. The issues before the Tribunal are whether or not the applicant meets the relevant diagnostic criterion for PTSD and alcohol abuse or dependence; and if so, whether or not there is a causal connection between the conditions and his war service.  The Tribunal was also asked to…

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Re Benjamin and Repatriation Commission [2000] AATA 680
Case
[2000] AATA 680
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Mr Benjamin, sought a review of a decision made by the Repatriation Commission regarding his eligibility for veterans' entitlements under the Veterans' Entitlements Act 1986. The central dispute involved the acceptance of certain psychiatric conditions as war-caused and the determination of the appropriate rate of pension. The matter was heard by the Administrative Appeals Tribunal (AAT).

The legal issues before the AAT were whether Mr Benjamin's post-traumatic stress disorder (PTSD) and alcohol dependence should be considered war-caused conditions and, if so, what the appropriate rate of pension should be. The Tribunal also needed to determine whether the PTSD and alcohol dependence were distinct conditions or interrelated, and whether the applicant met the criteria for a special rate of pension under the relevant legislation.

The AAT found that while psychoactive substance abuse was accepted as a war-caused condition, PTSD was not. The Tribunal accepted Dr Reinhardt's evidence that Mr Benjamin's PTSD and alcohol abuse/dependence were interrelated. However, Dr Dinnen's opinion was that Mr Benjamin's alcohol dependence had dissolved any PTSD symptoms. The AAT concluded that separate assessments were necessary to determine the extent to which alcohol dependence alone was incapacitating. The Tribunal set aside the original decision and remitted the matter to the Repatriation Commission to determine the applicant's general rate of pension as of 19 June 1997.

The AAT's final orders were that psychoactive substance abuse was accepted as a war-caused condition, post-traumatic stress disorder was rejected as a war-caused condition, the applicant was not entitled to the special rate, and the matter was remitted to the Repatriation Commission to determine the applicant's general rate of pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He told the Tribunal that he lacks energy to do anything, gets angry, is forgetful and is afraid of rough weather. He stated that he had been offered employment in 1998 but refused it because Dr Reinhardt did not consider him capable of permanent employment. medical evidencedr a. dinnen Dr A. Dinnen, Consultant Psychiatrist, saw the applicant on 23 August 1999 and prepared a report dated 1 September 1999 (A13) in which he stated (inter alia):"…Opinion: This patient suffers from alcohol dependence dating from and due to his service in the Royal Australian Navy and as a result of operational service.I think it may well be the case that he did have a degree of post traumatic stress disorder but in my view any such condition has been dissolved in alcohol for many years. In other words, the symptoms and signs consistent with the diagnosis of PTSD, identified by Dr Reinhardt, are very much swamped by his chronic alcoholism.…" In oral evidence, in support of his report, he stated that he did not see enough evidence to sustain a PTSD diagnosis but that this condition might possibly be linked with alcohol dependence and the PTSD symptoms masked accordingly. He stated that the "sitting and staring into space" described by the applicant is consistent with PTSD. He further stated that the feelings of helplessness and anxiety in the applicant's particular Vietnam experience would be such so as to satisfy the definition of "stressor" contained in factor 4 of SoP No. 15 of 1994. In his opinion the risk of attack in the harbour in Vietnam would equate with the trauma equated with physical attack, robbery or mugging. dr k. reinhardt Dr K. Reinhardt, Consultant Psychiatrist, has been treating the applicant since 1997. She prepared three reports, dated 17 August 1998 (T11), 5 March 1999 (Exhibit A11) and 15 June 1999 (Exhibit A12). In the first of these dated 17 August 1998 she stated (inter alia):"…Since his trauma involved an intense feeling of fear and helplessness in the face of threat to his life, he continues to be highly anxious and hypervigilant. He still has occasional nightmares and intrusive memories, particularly when he is exposed to triggers of his trauma. He avoids thinking about his traumatic experiences and restricts his lifestyle to avoid reminders. He is emotionally detached and restricted in his range of emotions. He has initial, middle and terminal insomnia and is frequently irritable and angry.…In summary Mr Benjamin continues to meet DSM-IV criteria for Chronic Post Traumatic Stress Disorder and alcohol abuse. This is a war caused disability, and it is as a result of this alone that Mr Benjamin is no longer able to work and is restricted in other areas of functioning. …" In oral evidence, in support of her reports, Dr Reinhardt told the Tribunal that the applicant's PTSD and alcohol abuse/dependence were interrelated. She stated that the applicant continues to suffer PTSD symptoms when he is not drinking. She further stated that it was the threat of death that was the relevant precipitating factor to the PTSD, and that the threat of gunfire or mines in this case is a very powerful stressor. In relation to the applicant's dreams, she stated that they seem to have a constant thread of threat. She also stated that the symptoms of PTSD began to appear during the time on the Jeparit and afterwards, however a date of clinical onset would be hard to pin down due to the difficulty in linking isolated symptoms with a PTSD diagnosis.

Decision

Reasons for decision

It is appropriate in the circumstances to remit the matter in order that the appropriate rate, in respect of psychoactive substance abuse, can be determined. Whilst assessments have been performed and ratings given, it would be appropriate for separate assessments to be done, to reflect the alcohol dependence alone. The Tribunal notes the difficulty that will be associated with this, given, as it accepts Dr Reinhardt's evidence on this point, that there is some clear interrelationship between his alcohol dependence and other psychiatric conditions. An assessment must be performed however, as to the extent to which his alcohol dependence, being an accepted disability, is incapacitating. decision For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that: (a)psychoactive substance abuse is accepted as a war caused condition; (b)post-traumatic stress disorder is rejected as a war caused condition; (c)the applicant is not entitled to special rate; and(d)the matter is remitted to the respondent to determine the applicant's general rate of pension as and from 19 June 1997.I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBESigned: ..........................(signed).......................................... Personal AssistantDate/s of Hearing 22, 23, 24 May 2000 Date of Decision 9 August 2000Counsel for the Applicant Ms J. Buss Solicitor for the Applicant Legal Aid Commission of NSW Counsel for the Respondent Ms M. Doggett Solicitor for the Respondent DVA

Ratio Decidendi

Legal Principle Established

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