Smith and Repatriation Commission - [2002] AATA 526

DECISION AND REASONS FOR DECISION [2002] AATA 526

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V00/1424

VETERANS' APPEALS DIVISION       )
           Re      RAYMOND JOHN SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member Mr A Argent, Member

Date28 June 2002
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and in substitution decides that Post Traumatic Stress Disorder and Alcohol Abuse or Dependence are war-caused diseases.
  (Sgd) Joan Dwyer
  Senior Member
VETERANS' AFFAIRS – whether post traumatic stress disorder and alcohol substance abuse war-caused – meaning of "experiencing a severe stressor" in Statement of Principles Instrument No. 3 of 1999 as amended by No. 54 of 1999 – meaning of "experiencing a severe stressor" in Instrument No. 76 of 1998 – decision set aside

Veterans' Entitlements Act 1986 ss 9, 120(1) and (3)

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Budworth (2001) 66 ALD 285
Statement of Principles Instrument No. 3 of 1999
Statement of Principles Instrument No. 54 of 1999
Statement of Principles Instrument No. 76 of 1998

REASONS FOR DECISION

28 June 2002 Mrs Joan Dwyer, Senior Member Mr A Argent, Member

background

This is an application for review of a decision of the Repatriation Commission made 15 December 1999 (T10 pp31–35) and affirmed by the Veterans' Review Board ("the VRB") on 18 August 2000 (T2 ppvi–xv). The Repatriation Commission ("the Commission") refused Mr Smith's claim to have "emotional behaviour problems" later diagnosed as post traumatic stress disorder ("PTSD"), and alcohol substance abuse accepted as war-caused diseases under s 9 of the Veterans' Entitlements Act 1986 ("the Act").
Mr Moore, of Counsel, appeared for Mr Smith. Mr Purcell, of Counsel, appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered during the hearing. Mr Smith gave evidence. Evidence was also given on his behalf by Dr Carroll, who served in HMAS Sydney at the same time as Mr Smith and who is the Secretary of the HMAS Sydney and Vietnam Logistic Support Veteran's [sic] Association. The respondent called Commodore Mulcare, a naval historian. The Tribunal received two further respondent's exhibits (R6 and R7), and written submissions from Counsel for the parties after the hearing had concluded.
Mr Smith served in the Royal Australian Navy from 28 February 1966 to 27 July 1969. The periods of service which are relevant are the periods of operational service while Mr Smith was serving in HMAS Sydney on voyages to Vietnam. Those periods are as follows:
8 April 1967 to 22 April 1967
28 April 1967 to 12 May 1967
19 May 1967 to 14 June 1967
20 December 1967 to 3 January 1968
17 January 1968 to 17 February 1968
27 March 1968 to 26 April 1968
21 May 1968 to 13 June 1968
13 November 1968 to 28 November 1968
8 February 1969 to 25 February 1969
8 May 1969…

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.

Continue reading Smith and Repatriation Commission

Details

AGLC: Smith and Repatriation Commission [2002] AATA 526
Case: [2002] AATA 526
Decision Date: 28 June 2002

CaseChat Overview and Summary

In the case of Smith and Repatriation Commission, the primary issue before the court was to determine whether the applicant, Mr Smith, had developed Post-Traumatic Stress Disorder (PTSD) as a result of his military service, and if so, the date of the clinical onset of the disorder. Additionally, the court needed to assess whether Mr Smith’s alcohol abuse was a consequence of his PTSD, thereby qualifying it as a war-caused disease.

The court examined the evidence provided by various medical professionals, including Dr Thacore, Dr Schrueder, and Dr Walton. The medical reports indicated that Mr Smith exhibited symptoms of PTSD and alcohol abuse, but there was no precise date provided for the clinical onset of PTSD. Dr Thacore diagnosed PTSD on 12 December 1999, while Dr Walton noted a history of excessive alcohol consumption starting after certain traumatic incidents. Despite the lack of a specific onset date for PTSD, the court concluded that Mr Smith experienced severe stressors prior to the clinical onset of his PTSD, satisfying the criteria for a war-caused disease.

After considering the evidence, the court ruled that PTSD was indeed a war-caused disease for Mr Smith. The court also determined that Mr Smith’s alcohol abuse was a consequence of his PTSD, thereby qualifying it as a war-caused disease. This decision was based on the diagnostic criteria for alcohol dependence and the evidence provided by Dr Walton, which showed a pattern of escalating alcohol consumption and compromised social, occupational, and recreational activities.

The final orders of the court were that PTSD and alcohol abuse were recognised as war-caused diseases for Mr Smith, and he was entitled to the benefits and compensation associated with these conditions.

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

Full text does not contain this section.

Decision

Reasons for decision

There is no evidence as to the date of clinical onset of PTSD. Mr Smith has given a history of suffering some of the symptoms reported to the psychiatrists since his discharge from service. The first diagnosis of PTSD would seem to have been by Dr Thacore who saw Mr Smith on 12 December 1999 (T9). On that occasion Dr Thacore obtained a history of longstanding problems dating back some years, but there were no precise dates other than the break up of his marriage about 10 years earlier and the fight which led to him being put on a good behaviour bond in 1990. Dr Walton, at page 2 of his report, describes the habit of drinking to excess as having started after the depth charge exposure and then states that Mr Smith went AWOL a few times to go drinking following the sampan incident. He describes a reduction of alcohol consumption after meeting his wife, the marriage and then the marriage failure and a resumption of heavier drinking. Dr Walton noted consultation with a general practitioner for about 15 years but no psychiatric treatment.CONCLUSION AS TO PTSD The evidence does not allow us to determine the date of clinical onset of PTSD. It is clear however that Mr Smith experienced his severe stressors prior to the clinical onset of his PTSD as required by factor (a) of the SoP. We find that PTSD is a war-caused disease.ALCOHOL ABUSE Dr Thacore noted that Mr Smith had developed alcoholism, Dr Schrueder diagnosed War Related Post Traumatic Stress Disorder with chronic alcohol dependence consequent upon the PTSD. Dr Walton wrote at pages 5 and 6, paragraph 3, of his report:This veteran provides a history of sustained excessive alcohol consumption. There does seem to be a pattern of escalation over the years, perhaps indicative of tolerance. I obtained no clear history of withdrawal symptoms but the veteran admits to consuming larger amounts than intended on occasions. There has been the one unsuccessful effort to avoid alcohol use and clearly important social, occupational and recreational activities have been compromised by this veteran's alcohol misuse.This veteran is properly described as an alcohol abuser but because he meets the diagnostic criteria in relation to alcohol dependency, that is the preferred clinical diagnosis. Dr Walton in that paragraph refers to the diagnostic criteria for alcohol dependence. The DSM-IV diagnostic criteria are set out in the SoP and are as follows:A maladaptive pattern of alcohol use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following, occurring at any time in the same 12-month period:(1) tolerance, as defined by either of the following:(a) a need for markedly increased amounts of alcohol to achieve intoxication or desired effect(b) markedly diminished effect with continued use of the same amount of alcohol(2)withdrawal, as manifested by either of the following:(a) the characteristic withdrawal syndrome for alcohol(b) the same (or closely related) substance is taken to relieve or avoid withdrawal symptoms(3)alcohol is often taken in larger amounts or over a longer period than was intended(4)there is a persistent desire or unsuccessful efforts to cut down or control alcohol use(5)a great deal of time is spent in activities necessary to obtain alcohol, use alcohol or recover from its effects(6)important social, occupational or recreational activities are given up or reduced because of alcohol use(7)alcohol use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by alcohol;

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.