Stevens and Repatriation Commission (Veterans' entitlements) - [2017] AATA 2419

Stevens and Repatriation Commission (Veterans' entitlements) [2017] AATA 2419 (4 December 2017)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/2250
Re:Ronald Stevens
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:4 December 2017
Place:Brisbane

The decision under review is affirmed.
.........................[SGD]...............................
Senior Member T. Tavoularis
VETERANS’ AFFAIRS – Disability Pension – whether aggravation of Post-traumatic Stress Disorder was service related, specifically war-caused – Tribunal satisfied that the Applicant suffers from Post-traumatic stress disorder (‘PTSD’) – whether reasonable hypothesis raised linking aggravation of PTSD to Applicant’s operational service – consideration of template in Statement of Principles - Tribunal not satisfied hypothesis reasonable – satisfied beyond reasonable doubt that aggravation of PTSD was not war-caused – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 6, 9, 13, 120, 120A
Cases
Border v Repatriation Commission (No. 2) (2010) 191 FCR 163; [2010] FCA 1430
Re Cooke and Repatriation Commission (1998) 50 ALD 907; [1998] AATA 77
Delahunty v Repatriation Commission (2004) 38 AAR 51; [2004] FCA 309
McKenna and Repatriation Commission [1999] FCA 323
Moran and Repatriation Commission [2004] AATA 294
Parr and Repatriation Commission [2003] AATA 13
Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391
Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194
Stoddart v Repatriation Commission (2003) 74 ALD 366; [2003] FCA 334
Trigge and Repatriation Commission [2012] AATA 176
Voelker and Repatriation Commission [2016] AATA 427
Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160
Secondary Materials
Statement of Principles concerning Posttraumatic Stress Disorder (Instrument No. 82 of 2014)
REASONS FOR DECISION
Senior Member T. Tavoularis
4 December 2017
INTRODUCTION

This is an application for review of the decision by the Veterans’ Review Board (“the VRB”) dated 19 February 2016. The VRB’s decision affirmed the Repatriation Commission’s (“the Respondent”) decision dated 15 January 2015, which refused a claim by Mr Ronald Frederick Stevens (“the Applicant”) for his Post-traumatic Stress Disorder (“PTSD”) to be accepted as service-related.
BACKGROUND
The Applicant is currently 66 years old. He served in the Royal Australian Navy from

18 October 1968 until 28 July 1972 (aged 17 to 20 years old).
It has been accepted that the Applicant rendered eligible operational service in Vietnam waters, whilst on board the HMAS Sydney, during the following periods:
(i)        from 21 October 1970 to 12 November 1970;
(ii)        from 15 February 1971 to 4 March 1971;
(iii)       from 26 March 1971 to 8 April 1971; and
(iv)       from 13 May 1971 to 1 June 1971.
On those four trips the HMAS Sydney delivered troops, supplies and equipment to Vung Tau harbour within the war zone of the Vietnam conflict.
Prior to those four periods of operational service, the Applicant rendered service on board HMAS Melbourne and witnessed the horrific collision of HMAS Melbourne and USS Frank E Evans on 3 June 1969 (“the Melbourne-Evans collision”). However, this incident was not within the Applicant’s period of eligible (operational) service for…

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: [2017] AATA 2419
Decision Date: 4 December 2017

CaseChat Overview and Summary

This matter concerned an application for review of a decision by the Veterans’ Review Board (VRB), which affirmed the Repatriation Commission’s refusal to accept the applicant’s Post-traumatic Stress Disorder (PTSD) as service-related. The applicant, Ronald Frederick Stevens, served in the Royal Australian Navy and had eligible operational service in Vietnam waters. He also witnessed the harrowing collision between HMAS Melbourne and USS Frank E Evans in 1969, an incident that occurred outside his period of eligible service but was accepted as the original cause of his PTSD.

The primary legal issues before the Tribunal were whether a diagnosis of PTSD was present, whether that PTSD was war-caused by reference to the applicable Statement of Principles, and if so, what the appropriate rate of pension should be. The parties agreed that a diagnosis of PTSD was not in dispute and that the original cause of the PTSD was the Melbourne-Evans collision.

The Tribunal was required to determine if the applicant's PTSD was war-caused, considering the Statement of Principles concerning Posttraumatic Stress Disorder. The applicant contended that while the Melbourne-Evans collision was the origin of his PTSD, his subsequent service on HMAS Sydney in Vietnam had been the major factor in reinforcing this trauma. The Tribunal noted that the diagnosis of PTSD and its original cause were not in dispute, focusing the determination on whether the condition was war-caused in accordance with the relevant legislative framework.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of the decision by the Veterans’ Review Board (“the VRB”) dated 19 February 2016. The VRB’s decision affirmed the Repatriation Commission’s (“the Respondent”) decision dated 15 January 2015, which refused a claim by Mr Ronald Frederick Stevens (“the Applicant”) for his Post-traumatic Stress Disorder (“PTSD”) to be accepted as service-related.BACKGROUND The Applicant is currently 66 years old. He served in the Royal Australian Navy from 18 October 1968 until 28 July 1972 (aged 17 to 20 years old). It has been accepted that the Applicant rendered eligible operational service in Vietnam waters, whilst on board the HMAS Sydney, during the following periods: (i) from 21 October 1970 to 12 November 1970; (ii) from 15 February 1971 to 4 March 1971; (iii) from 26 March 1971 to 8 April 1971; and (iv) from 13 May 1971 to 1 June 1971. On those four trips the HMAS Sydney delivered troops, supplies and equipment to Vung Tau harbour within the war zone of the Vietnam conflict. Prior to those four periods of operational service, the Applicant rendered service on board HMAS Melbourne and witnessed the horrific collision of HMAS Melbourne and USS Frank E Evans on 3 June 1969 (“the Melbourne-Evans collision”). However, this incident was not within the Applicant’s period of eligible (operational) service for the purposes of the Veterans’ Entitlements Act 1986 (“the Act”). The Applicant was serving on board the HMAS Melbourne when it collided with the destroyer USS Frank E Evans. The circumstances of that collision are indeed harrowing. Put simply, the USS Frank E Evans was cut in two as a result of sailing under the bow of HMAS Melbourne. Seventy-four of the crewman on the USS Frank E Evans were killed. This necessitated rescue operations from, amongst others, those aboard the HMAS Melbourne. The Applicant’s role in that rescue operation makes for sombre reading. His contribution to the rescue effort involved dealing with injured soldiers, wrapping bodies of the deceased and stowing them into freezers and, perhaps most dreadful of all, hosing off body parts of a USS Frank E Evans sailor who had fallen onto the flight deck of the HMAS Melbourne.[1][1] See Exhibit 11, Applicant’s Outline of Submissions, at [4]. The Applicant also rendered eligible defence service under the Act. However, the Applicant did not make any submissions based on his defence service. On 24 October 2014, the Applicant lodged a ‘Claim for disability pension and/or application for increase in disability pension’ for disabilities that had not yet been accepted as service related. The Applicant specifically wanted to claim compensation in respect of Posttraumatic Stress Disorder (“PTSD”), back problems and skin problems, which he asserted were war or defence caused.[2] [2] See Exhibit 3, “T documents”, T7, pp 48- 49. On 15 January 2015 a delegate of the Repatriation Commission considered his claim and made a decision as follows: “DECISIONI have accepted your claim for lumbar spondylosis, solar keratosis, osteoarthritis of the right knee and non melanotic malignant neoplasm of the skin. My decision takes effect from 24 July 2014. I have decided that cervical spondylosis and Posttraumatic Stress Disorder are not related to service. I also find that no medical condition is present to answer your claim for ‘Osteoarthritis left knee’. This part of your claim is therefore unsuccessful. [3] See Exhibit 3, T13, p 97. Disability pension is increased to 50% of the General Rate with effect from 24 July 2014.”[3]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 January 2015 a delegate of the Repatriation Commission considered his claim and made a decision as follows: “DECISIONI have accepted your claim for lumbar spondylosis, solar keratosis, osteoarthritis of the right knee and non melanotic malignant neoplasm of the skin. My decision takes effect from 24 July 2014. I have decided that cervical spondylosis and Posttraumatic Stress Disorder are not related to service. I also find that no medical condition is present to answer your claim for ‘Osteoarthritis left knee’. This part of your claim is therefore unsuccessful. [3] See Exhibit 3, T13, p 97. Disability pension is increased to 50% of the General Rate with effect from 24 July 2014.”[3] On 7 April 2015, the Applicant lodged an application for review with the Veterans’ Review Board (“VRB”), specifically appealing the decision not to accept his Posttraumatic Stress Disorder (“PTSD”) as service related. The Applicant noted that whilst the origin of his PTSD was as a result of the Melbourne-Evans collision, he contended that his service on HMAS Sydney in Vietnam “was the major factor in re-enforcing this trauma.”[4] [4] See Exhibit 3, T14, p 107. On 19 February 2016, the VRB made a decision to affirm the decision under review. Noting that the decision under review was “a Repatriation Commission decision dated 15 January 2015 which determined that posttraumatic stress disorder is not related to service.”[5] The VRB wrote to the Applicant notifying him of this decision on 6 April 2016.[6] [5] See Exhibit 3, T2, pp B2 – B9. [6] See Exhibit 3, T2, p B1. On 28 April 2016, the Applicant lodged an Application for Review of Decision with this Tribunal.[7] [7] See Exhibit 3, T1, pp A1 – A2.ISSUES The issues which fall under my consideration in this matter are as follows: (a)whether a diagnosis of PTSD is present; and if so:(b)whether that PTSD is war-caused, having reference to the applicable Statement of Principles;[8] and if so, then:(c)what the appropriate rate of pension should be. [8] See Statement of Principles concerning Posttraumatic Stress Disorder No. 82 of 2014. I will consider each of these issues and the applicable law in turn. ISSUE 1: WHETHER A DIAGNOSIS OF PTSD IS PRESENT? The Tribunal is required, before proceeding to a consideration of whether the claimed condition is war-caused, to establish the diagnosis and date of clinical onset of the claimed medical condition, in this case whether the Applicant suffers from PTSD.[9][9] See Re Cooke and Repatriation Commission (1998) 50 ALD 907; McKenna and Repatriation Commission [1999] FCA 323. Helpfully, the parties confirmed that the diagnosis of PTSD is not in dispute. They further agree that the original cause of the PTSD was the Applicant’s experience of the Melbourne-Evans collision in 1969.[10] [10] See Exhibit 11, Applicant’s Outline of Submissions at [14], and Exhibit 12, Respondent’s Outline of Submissions at [5.2(a) & (d)]. I will briefly canvass the medical expert opinions in this regard.Dr Quentin Mungomery’s opinion

Ratio Decidendi

Legal Principle Established

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