Sweeney and Repatriation Commission (Veterans' entitlements) - [2018] AATA 560

Sweeney and Repatriation Commission (Veterans' entitlements) [2018] AATA 560 (20 March 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2015/0476
Re:Anthony Sweeney
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:20 March 2018
Place:Brisbane

I vary the decision under review to provide that the post-traumatic stress disorder condition and erectile condition of the applicant are service-related conditions; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of the pension. The date of effect of the decision of the Tribunal is, in accordance with subsection 21(1) of the Veterans’ Entitlement Act 1986, determined to be 11 July 2012, being the date on which the application for an increase in pension was lodged.
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Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – claim for pension for PTSD and erectile dysfunction conditions – PTSD diagnosis not accepted – erectile dysfunction not accepted as service-related – hypothesis connecting several traumatic incidents during service with PTSD – relevant Statement of Principles’ support the hypothesis connecting service with conditions – decision varied to provide that PTSD and erectile conditions are service-related conditions – application remitted for assessment of pension.
LEGISLATION
Veterans’ Entitlements Act 1986 – ss 9, 13(1), 120, 120A, 196A, 196B(2)
CASES
Repatriation Commission v Deledio (1998) 49 ALD 193 at 206
Border v Repatriation Commission [2010] FCA 1430
Forrester v Repatriation Commission [2013] FCA 898
SECONDARY MATERIALS
Statement of Principles concerning Post-Traumatic Stress Disorder No. 5 of 2008
Statement of Principles concerning Post-Traumatic Stress Disorder No. 6 of 2008
Statement of Principles concerning Post-Traumatic Stress Disorder No. 82 of 2014
Statement of Principles concerning Post-Traumatic Stress Disorder No. 83 of 2014
Statement of Principles concerning Psoriatic Arthritis No. 5 of 2012
Statement of Principles concerning Psoriatic Arthritis No. 6 of 2012
Statement of Principles concerning Erectile Dysfunction No. 43 of 2013
Statement of Principles concerning Erectile Dysfunction No. 44 of 2013

REASONS FOR DECISION
Deputy President Dr P McDermott RFD
20 March 2018
INTRODUCTION

The applicant was 67 years old on 7 December 2010 when he made his claim to the Department of Veterans’ Affairs (DVA) for post-traumatic stress disorder (PTSD), erectile dysfunction, cam disorder in the left hip and psoriatic arthritis in the left and right hips.
On 2 April 2012 the respondent denied the applicant’s claim for PTSD on the grounds that there was no valid diagnosis of PTSD, and that the erectile dysfunction, cam disorder and psoriatic arthritis were not service related. The applicant appealed this decision to the Veterans’ Review Board (VRB).
On 20 November 2014 the VRB affirmed the respondent’s decision, rejecting the applicant’s claim for the four conditions on the same grounds and finding that the applicant’s disability pension was to continue to be assessed at 60% of the general rate.
On 2 February 2015 the applicant then applied to this Tribunal to review the original decision with regard to the conclusion that PTSD and erectile dysfunction were…

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: [2018] AATA 560
Decision Date: 20 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of Anthony Sweeney against a decision by the Repatriation Commission concerning his claim for a pension for post-traumatic stress disorder (PTSD) and erectile dysfunction. The applicant alleged that these conditions were service-related, stemming from various traumatic incidents during his naval service. The Commission had not accepted the PTSD diagnosis or that the erectile dysfunction was service-related.

The Tribunal was required to determine whether the applicant's PTSD and erectile dysfunction were service-related conditions. This involved assessing the evidence of several traumatic incidents described by the applicant during his service, including sexual assault, physical assaults, dangerous exercises in Vietnam, threats from subordinates, and an assault resulting in the loss of his front teeth. The Tribunal also had to consider the conflicting medical evidence presented by the applicant's treating psychiatrist and the medical professionals engaged by the respondent.

The Tribunal found that the applicant's account of several incidents, particularly those occurring during his service on HMAS Duchess in Vung Tau Harbour and during insurgency operations in the Malacca Straits, were consistent with periods of operational service. It also accepted the applicant's evidence regarding a sexual assault in 1962 and a later assault in 1975. Crucially, the Tribunal noted that the respondent conceded that if the PTSD claim was successful, the erectile dysfunction claim would also succeed. The Tribunal varied the decision under review to recognise both PTSD and erectile dysfunction as service-related conditions. The matter was remitted to the Repatriation Commission for the assessment of the pension, with the date of effect determined to be 11 July 2012.

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

There are no relevant SoPs that exist for the condition of cam deformity of the hip.EVIDENCE The applicant articulated in statements and oral evidence a number of incidents that occurred during his service:(a)an instance of sexual assault that occurred during transit on a train between ships in April 1962;[4](b)two instances of physical assault; one in which the applicant fell backwards down a ladder and struck his head, and the second where he was struck by a sailor and fell back, striking his head, and lost consciousness;[5](c)an exercise while on the HMAS Duchess where the applicant was required to use the ship’s sea boat to ‘sweep’ the waters for evidence of dangerous flotsam, and clear any obstructions in the vicinity in Vung Tau Harbour in Vietnam; the applicant made a request, which was subsequently denied, for protection in the form of arms and ammunition as he believed this was a dangerous exercise;[6](d)an exercise while on the HMAS Duchess where the applicant was required to direct an intercepted boat carrying contraband into the harbour for which he was denied protection and was required to wait with the contraband boat for about two to three hours without support;[7](e)an instance of verbal threats from subordinates where they threatened to kill the applicant;[8] and(f)an assault whereby a member of the RAN knocked out the applicant’s two front teeth.[4] Exhibit C, Statement of Anthony Sweeney dated 14 July 2015[5] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 2 of 6[6] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 4 of 6[7] Oral evidence [8] Exhibit B, Statement of Anthony Sweeney dated 18 May 2015, p. 5 of 6 When the applicant was asked during examination in chief why he did not raise issues or the incidences above with the chain of command, he responded that he thought they had been summarily dealt with. The applicant stated in cross-examination that he did not seek treatment because people would think he was trying to dodge his duties.Medical reports There are a number of contradictory medical reports in evidence. The applicant relied on the assessment of Dr Perce Tucker, the applicant’s treating psychiatrist, who provided a report and gave evidence at a resumed hearing. The respondent relied upon the conclusions of Dr Milad and Dr Ding, who saw the applicant and provided reports for the purposes of the claim with DVA but did not give evidence at the hearing of the matter in this Tribunal. Dr Perce Tucker, Consultant Psychiatrist Dr Tucker completed a report to DVA on 1 June 2015[9] which stated in the cover letter that he sees the applicant on a regular basis “as an Inpatient and Outpatient for monitoring and management of his severe chronic PTSD… caused by traumatic physical and sexual assaults during his RAN service. This PTSD meets DSM IV and RMA diagnostic criteria for ‘stressors’ and problems / symptoms.”[9] Exhibit E, Report of Dr Tucker dated 1 June 2015 at p. 1 In the Medical Impairment Worksheet attached to the covering letter, Dr Tucker attributes an impairment rating of ‘57’ to the applicant for his claimed conditions. Dr Tucker calculated that the applicant suffered from an impairment of 20 points under Table 4.1 for subjective distress, 15 points under Table 4.2 for manifest distress, eight points under Table 4.4 for occupation, eight points under Table 4.6 for social interaction plus six points under either Table 4.5 Domestic Situation/Table 4.7 Leisure activities (which were equally scored with only one being counted towards the total impairment rating).

Decision

Reasons for decision

The respondent has properly conceded that if the applicant was successful in his claim relating to PTSD then the applicant would also succeed in relation to the claim for erectile dysfunction.CONCLUSION I vary the decision under review to provide that the post-traumatic stress disorder condition and erectile condition of the applicant are service-related conditions; the decision under review is otherwise affirmed. The application is remitted to the respondent for the assessment of the pension. The date of effect of the decision of the Tribunal is, in accordance with subsection 21(1) of the Veterans’ Entitlement Act 1986, determined to be 11 July 2012, being the date on which the application for an increase in pension was lodged.

Ratio Decidendi

Legal Principle Established

Dr Milad considered the applicant’s self-assessment in a military PTSD checklist, versus the doctor’s own scoring of the applicant on the Hamilton anxiety scale and Montgomery Asberg depression scale[22]:“The scores on the PTSD checklist self-assessment military version does [sic] not correspond well with the scores on the anxiety and depression objective scale that I performed. There is an indication that probably there is an exaggeration of symptoms on the scale to highlight his issues.”[22] Ibid at p. 185CONSIDERATION The applicant has withdrawn the claim relating to the left and right hips. After reviewing the material that had been filed this concession was properly made. For determination is whether the applicant sustained PTSD and erectile dysfunction during his operational or eligible defence service. The Tribunal was assisted by the typed document (exhibit H), which is a compilation of the three handwritten statements of the applicant (exhibits B, C and I). This typed document refers to a number of incidents occurring to the applicant during periods of his operational service and eligible defence service. Evidence relevant to the incidents occurring overseas includes the evidence of Commander W Franklin, RAN Rtd (exhibit D) and the Report of Proceedings, HMAS Duchess (exhibit G). There are five important incidents outlined by the applicant:Incident #1. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess in Vung Tau Harbour, the applicant describes an incident occurring to him involving the conduct of other sailors as he descended a ladder.Incident #2. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess in Vung Tau Harbour, the applicant describes an incident where he was tasked to man a sea boat and sweep a river mouth to render safe any item that could threaten HMAS Duchess, which included improvised explosive devices. The applicant's requests for a weapon to assist with the task were denied. Incident #3. During the period 20 September to 3 October 1965 whilst serving on HMAS Duchess the applicant's life was threatened by another sailor. The applicant describes an incident where HMAS Duchess was carrying out insurgency operations in the Malacca Straits and he was directed to man a boat carrying civilians of unknown nationality and to take the boat inshore and wait for the return of HMAS Duchess. The applicant's requests to be issued a weapon for personal protection were denied.Incident #4. During April 1962 whilst serving on HMAS Quickmarch in Australian waters the applicant was the victim of a sexual assault by other sailors.Incident #5. During 1975 and whilst on duty at the Australian Naval Toredo Maintenance Establishment at Neutral Bay in Sydney, the applicant was assaulted by a RAN sailor when the sailor punched the applicant in the mouth, causing the applicant to lose his two front teeth. Having regard to the above it is contended that matters concerning incidents #1 to #3 inclusive occurred during periods of operational service.