Stephen McLeod and Repatriation Commission

Case [2013] AATA 606

[2013] AATA 606

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/1264

Re

Stephen McLeod

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President RP Handley
Date 28 August 2013 
Place Sydney

The Tribunal sets aside the decision under review and remits the matter to the Repatriation Commission for reconsideration with a direction that Mr McLeod’s Posttraumatic Stress Disorder is war-caused.

............................[SGD]...............................

Deputy President RP Handley

CATCHWORDS

VETERANS' AFFAIRS - disability pension – applicant saw operational service in Vietnam - whether applicant suffers from posttraumatic stress disorder - whether posttraumatic stress disorder is war-caused – Deledio test - whether applicant experienced a category 1(A) or 1(B) stressor - Tribunal not satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease - decision set aside and remitted

LEGISLATION

Veteran’s Entitlements Act 1986 ss 13, 120, 120A, 196B

CASES

Constable v Repatriation Commission [2005] FCA 928

Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight [2012] FCAFC 83

White v Repatriation Commission [2004] FCA 633

SECONDARY MATERIALS

Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008

Statement of Principles concerning Depressive Disorder, No. 27 of 2008 as amended by Statement of Principles concerning Depressive Disorder No 40 of 2010 SOP

Statement of Principles concerning Alcohol Dependence and Alcohol Abuse, No 1 of 2009

REASONS FOR DECISION

Deputy President RP Handley

Date: 28 August 2013

  1. Mr McLeod (the Applicant) has applied for review of a decision made by the Veterans’ Review Board (the VRB) affirming a decision of a delegate of the Repatriation Commission (the Respondent) to reject his claim for a disability pension in respect of Posttraumatic Stress Disorder (PTSD) with Major Depression and Alcohol Dependence on the ground that those conditions were not war-caused.

    BACKGROUND

  2. Mr McLeod was born in 1950 and is aged 62 years. He enlisted in the Royal Australian Navy at the age of 16, serving from 8 October 1966 until 16 April 1980 and working as a chef. He saw four periods of operational service in Vietnam from 20 December 1967 to 3 January 1968, 17 January 1968 to 16 February 1968, and 21 March 1968 to 26 April 1968 on HMAS Sydney, and from 14 September 1970 to 8 April 1971 on HMAS Perth. Mr McLeod also has eligible defence service from 7 December 1972 to 16 April 1980. Following his discharge from the Navy in 1980, Mr McLeod worked as an employment consultant. He ceased this work in 2005.

  3. Mr McLeod has the following accepted injuries or diseases: chronic bronchitis (2002), bilateral sensorineural hearing loss (2002), and peptic ulcer disease (2002). On 21 October 2002, a delegate of the Repatriation Commission accepted that these three conditions were service-related and granted Mr McLeod a disability pension at 70% of the General Rate. The delegate rejected the further claimed conditions of PTSD and alcohol dependence on the ground that they were not related…

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AGLC
Stephen McLeod and Repatriation Commission [2013] AATA 606
Case
[2013] AATA 606
Decision Date

CaseChat Overview and Summary

The case of Stephen McLeod and the Repatriation Commission involves a review of the Commission's decision to reject Mr McLeod's claim for a disability pension for Posttraumatic Stress Disorder (PTSD) with Major Depression and Alcohol Dependence, on the basis that these conditions were not war-caused. Mr McLeod, a former Royal Australian Navy serviceman, served operationally in Vietnam and has several service-related conditions acknowledged by the Commission. The Administrative Appeals Tribunal was tasked with determining whether the conditions claimed were war-caused, and if the Commission's rejection of Mr McLeod's claim was justified under the Veteran's Entitlements Act 1986.

The key legal issues before the court were whether the claimed conditions of PTSD, Major Depression, and Alcohol Dependence were related to Mr McLeod's operational service in Vietnam and if these conditions met the criteria for being considered war-caused. The decision hinged on the interpretation of the Act, particularly sections 120 and 120A, which outline the conditions under which a disease or injury must be considered war-caused. Additionally, the court had to assess the evidence in light of relevant Statements of Principle (SoP) concerning PTSD, Depressive Disorder, and Alcohol Dependence.

The Tribunal found that the evidence presented by Mr McLeod, including his personal testimony and the historical context of his service, did not sufficiently disprove the connection between his claimed conditions and his service in Vietnam. The Tribunal determined that the hypothesis of a connection between Mr McLeod's service and his conditions was reasonable and consistent with the applicable SoPs. Consequently, the Tribunal concluded that there was insufficient evidence to establish beyond reasonable doubt that Mr McLeod's incapacity did not arise from his war-caused disease. Therefore, the Tribunal set aside the decision of the Repatriation Commission and remitted the matter for reconsideration with the direction that Mr McLeod's PTSD is war-caused.

Orders

Orders of the court

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Background

Background to the litigation

Mr McLeod (the Applicant) has applied for review of a decision made by the Veterans’ Review Board (the VRB) affirming a decision of a delegate of the Repatriation Commission (the Respondent) to reject his claim for a disability pension in respect of Posttraumatic Stress Disorder (PTSD) with Major Depression and Alcohol Dependence on the ground that those conditions were not war-caused.BACKGROUND Mr McLeod was born in 1950 and is aged 62 years. He enlisted in the Royal Australian Navy at the age of 16, serving from 8 October 1966 until 16 April 1980 and working as a chef. He saw four periods of operational service in Vietnam from 20 December 1967 to 3 January 1968, 17 January 1968 to 16 February 1968, and 21 March 1968 to 26 April 1968 on HMAS Sydney, and from 14 September 1970 to 8 April 1971 on HMAS Perth. Mr McLeod also has eligible defence service from 7 December 1972 to 16 April 1980. Following his discharge from the Navy in 1980, Mr McLeod worked as an employment consultant. He ceased this work in 2005. Mr McLeod has the following accepted injuries or diseases: chronic bronchitis (2002), bilateral sensorineural hearing loss (2002), and peptic ulcer disease (2002). On 21 October 2002, a delegate of the Repatriation Commission accepted that these three conditions were service-related and granted Mr McLeod a disability pension at 70% of the General Rate. The delegate rejected the further claimed conditions of PTSD and alcohol dependence on the ground that they were not related to service. On 15 February 2010, Mr McLeod lodged a new claim for a disability pension in respect of ‘PTSD with Major Depression and Alcohol Dependence’. On 12 April 2010, a delegate of the Repatriation Commission rejected his claim, which was affirmed by the VRB on 14 February 2012. On 30 March 2012, the Applicant applied to the Administrative Appeals Tribunal for a review of the VRB decision.THE RELEVANT LAW AND ISSUES Under s 13 of the Veteran’s Entitlements Act 1986 (the Act), a veteran will be eligible for a pension where the veteran is incapacitated from a war-caused injury or disease. An injury or disease will be war-caused if the injury occurred or the disease was contracted while the veteran was rendering operational service. Mr McLeod’s service in Vietnam is operational service as defined in the Act. Pursuant to s 120(1), where a claim for a pension in respect of incapacity relates to operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the person (s 120(3)). Section 120A requires the reasonableness of the hypothesis to be assessed by reference to applicable Statements of Principle (SoP). In this matter, the applicable SoPs are the SoP concerning Posttraumatic Stress Disorder, No. 5 of 2008 (SoP No 5 PTSD), the SoP concerning Depressive Disorder, No. 27 of 2008 as amended by SoP No 40 of 2010 (SoP No 27 Depressive Disorder), and the SoP concerning Alcohol Dependence and Alcohol Abuse, No 1 of 2009 (SoP No 1 Alcohol).

Evidence

Evidence Before The Court

The second issue for the Tribunal is whether the conditions suffered by Mr McLeod are war-caused. Because the Applicant contends that the claimed conditions relate to operational service, s 120(1) and s 120(3) of the Act apply subject to s 120A which requires that the reasonableness of the hypothesis be assessed by reference to applicable SoPs. The questions that the Tribunal must address in its decision are those set out by the Full Federal Court in Kaluza v Repatriation Commission [2010] FCA 1244 (Kaluza), which follows the Full Federal Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio). Four steps have been identified by the Court:(1)The Tribunal must consider all the material before it and determine:(a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and (b) whether that hypothesis can be regarded as reasonable if the raised facts are true. (2)If the raised facts point to a hypothesis of a connection, is there a Statement of Principles (SoP) in force in respect of the kind of disease from which the veteran suffers? (3)As there is SoPs in force (see above), the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the “template” found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?In Repatriation Commission v Knight [2012] FCAFC 83, the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis: (i)does the material before the Tribunal point to the factor relied upon; and(ii)does the material also point to that factor being related to the veteran’s operational service (s 196B(14))?Section 196B(14) sets out the circumstances in which a “factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly include (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”. (4)If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)MR MCLEOD’S EVIDENCE Mr McLeod provided a statement dated 10 August 2012 and gave evidence at the hearing. He also gave evidence at the VRB hearing on 11 November 2010 and 14 February 2012. He said he does not recall any particular incidents on his first trip to Vietnam (from 20 December 1967 to 3 January 1968). However, on his second trip he recalls there being more activity in the air and surrounding area and also that scare charges were used. He was aged 17 at the time and his experience comprised his training at HMAS Leeuwin, having joined the Navy at the age of 16 for 12 years, and his posting to HMAS Sydney including his first trip to Vietnam. (Commodore PM Mulcare RAN Rtd, who prepared a report dated 15 July 2011 for Writeway Research Services Pty Ltd at the request of the Respondent, said that Mr McLeod was posted to Sydney on 26 October 1967 as Ordinary Seaman Cook for Common Sea Training.) Mr McLeod said he had been raised in a rural dairy farming area near Dapto.

Decision

Reasons for decision

Thus, there is insufficient evidence to satisfy me beyond all reasonable doubt that Mr McLeod’s incapacity did not arise from war-caused disease. This means that Mr McLeod’s claim for a disability pension must succeed and the decision under review must be set aside. DECISION The Tribunal sets aside the decision under review and remits the matter to the Commission for reconsideration with a direction that Mr McLeod’s PTSD is war-caused.

Ratio Decidendi

Legal Principle Established

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