Toyer and Repatriation Commission (Veterans' entitlements) - [2020] AATA 2640

Toyer and Repatriation Commission (Veterans' entitlements) [2020] AATA 2640 (28 July 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2019/0958
Re:ERIC TOYER
APPLICANT

AndREPATRIATION COMMISSION
RESPONDENT

DECISION
Tribunal:Senior Member Katter
Date:28 July 2020
Place:Brisbane

The decision that adjustment disorder with depressed mood and anxiety is not related to service is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the direction that the adjustment disorder with depressed mood and anxiety is defence-caused.
................................[SGD]........................................
Senior Member Katter
CATCHWORDS
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – decision under review remitted for reconsideration
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Ellis v Repatriation Commission (2014) 142 ALD 352; [2014] FCA 847
Kaluza v Repatriation Commission [2014] FCA 1137
SECONDARY MATERIALS
Statement of Principles concerning adjustment disorder (Reasonable Hypothesis) (No. 23 of 2016)
Statement of Principles concerning adjustment disorder (Balance of Probabilities) (No. 24 of 2016)
REASONS FOR DECISION
Senior Member Katter
28 July 2020
APPLICATION

The Applicant seeks a review of the decision that a disability pension is not payable in accordance with the Veteran’s Entitlement Act 1986 (Cth) (“the Act”).
BACKGROUND
The Applicant served in the Royal Australian Navy from 13 January 1962 until February 1973[1]. The Applicant had operational service in Vietnam from 20 September 1971 to 17 December 1971 and defence service from 7 December 1972 to 16 January 1973[2].
[1] Exhibit 1, T16, page 73 and Exhibit 1, T2(a), page 10.
[2] Exhibit 1, T2(a), page 10.
By a claim for disability pension and/or application for increase in disability pension form dated 11 December 2016[3], at part E, the Applicant stated as to details of the new disabilities claimed as war or defence caused[4]:
“Disability 1 Reduced lung capacity
Signs and symptoms Ongoing reduction in lung capacity & fitness when jogging          – free diving – scuba diving & hiking
How do you believe your service caused, contributed to, or aggravated this disability? Ongoing minimal & occasional intense exposure to asbestos fibres           during sea service & whilst maintaining ships when posted to HMAS Kuttabul    E.M.P[.]
When did you first become aware of the signs and symptoms of the disability,        or aggravation of the disability? (approx. date if known) 2013
Disability 2 Anxiety Depression
Signs and Symptoms Single diagnosis & subsequent research on asbestos-     related diseases presents a very uncertain picture for my & wife’s future
How do you believe your service caused, contributed to, or aggravated this disability? Without exposures to asbestos HMA Ships this would not have       occurred … ”
[3]           Exhibit 1, T16, page 81.
[4]           Exhibit 1, T16, page 74-75.
As to the medical diagnosis in part E of that form dated 11 December 2016[5], the Applicant stated as to “reduced lung capacity”:
[5] Exhibit 1, T16, page 81.
“Diagnosis Pleural Plaque detected in CXR @ Maclean Hosp. 19.10.16
Basis for diagnosis
CXR 19.10.16
CT Scan 21.10.16
Dr David Hope
Yamba Clinic 266462085…

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: [2020] AATA 2640
Decision Date: 28 July 2020

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 decision that a disability pension was not payable to the applicant. The applicant, who served in the Royal Australian Navy including operational service in Vietnam, claimed reduced lung capacity and anxiety/depression as defence-caused conditions, attributing them to asbestos exposure during his service. The Commission had accepted a diagnosis of pleural plaque but found the adjustment disorder with depressed mood and mild anxiety not to be service-related, and that a disability pension was not payable at that time.

The primary legal issue before the Tribunal was whether the applicant's conditions, specifically reduced lung capacity and associated psychological conditions, were service-related. This required determining if there was a reasonable hypothesis connecting the injury or disease to the applicant's operational service, in accordance with sections 120(1) and (3) of the *Veterans' Entitlements Act 1986* (Cth), as affected by section 120A. The Tribunal was also required to consider the process outlined in *Kaluza v Repatriation Commission*, which involves identifying the disease, determining if it was war-caused, considering any relevant Statements of Principles (SoPs), and weighing the evidence to see if the hypothesis connecting the disease to service was disproved beyond reasonable doubt.

The Tribunal considered that the applicant had rendered operational service, meaning the standard for establishing a service-related injury or disease was a reasonable hypothesis. The applicant argued that the evidence presented to the VRB was incomplete, particularly regarding a more recent CT scan and a report from Dr Matthew Carter which confirmed severe pleural plaques and loss of lung volume. The Tribunal noted the established legal framework for assessing such claims, which requires identifying the symptoms constituting the disease, determining if it was war-caused by considering raised facts and their reasonableness, and if an SoP is in force, ensuring the hypothesis is upheld by it. The claim succeeds if the hypothesis is not disproved beyond reasonable doubt.

The Tribunal found that the evidence presented, particularly the report from Dr Matthew Carter, indicated that the VRB decision may have been based on incomplete evidence. Consequently, the Tribunal remitted the matter to the Repatriation Commission for reconsideration, directing that the Commission should obtain and consider all relevant medical evidence, including the more recent CT scan and Dr Carter's report, to determine if a reasonable hypothesis existed connecting the applicant's conditions to his service.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant seeks a review of the decision that a disability pension is not payable in accordance with the Veteran’s Entitlement Act 1986 (Cth) (“the Act”). BACKGROUND The Applicant served in the Royal Australian Navy from 13 January 1962 until February 1973[1]. The Applicant had operational service in Vietnam from 20 September 1971 to 17 December 1971 and defence service from 7 December 1972 to 16 January 1973[2]. [1] Exhibit 1, T16, page 73 and Exhibit 1, T2(a), page 10. [2] Exhibit 1, T2(a), page 10. By a claim for disability pension and/or application for increase in disability pension form dated 11 December 2016[3], at part E, the Applicant stated as to details of the new disabilities claimed as war or defence caused[4]: “Disability 1 Reduced lung capacity Signs and symptoms Ongoing reduction in lung capacity & fitness when jogging – free diving – scuba diving & hiking How do you believe your service caused, contributed to, or aggravated this disability? Ongoing minimal & occasional intense exposure to asbestos fibres during sea service & whilst maintaining ships when posted to HMAS Kuttabul E.M.P[.]When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known) 2013 Disability 2 Anxiety Depression Signs and Symptoms Single diagnosis & subsequent research on asbestos- related diseases presents a very uncertain picture for my & wife’s future How do you believe your service caused, contributed to, or aggravated this disability? Without exposures to asbestos HMA Ships this would not have occurred … ”[3] Exhibit 1, T16, page 81. [4] Exhibit 1, T16, page 74-75. As to the medical diagnosis in part E of that form dated 11 December 2016[5], the Applicant stated as to “reduced lung capacity”: [5] Exhibit 1, T16, page 81. “Diagnosis Pleural Plaque detected in CXR @ Maclean Hosp. 19.10.16Basis for diagnosis CXR 19.10.16CT Scan 21.10.16 Dr David HopeYamba Clinic 266462085 … Nov 2016”. As to the claim form dated 11 December 2016[6], lodged on 21 December 2016, the Respondent decided on 28 June 2017[7]: “I have accepted your claim for Pleural Plaque. My decision takes effect from 21 September 2016. I have decided that Adjustment Disorder with depressed mood and mild anxiety is not related to service. I have decided that a disability pension is not payable at this time.” [6] Exhibit 1, T16, page 81. [7] Exhibit 1, T34, page 181. The reasons for the decision of the Respondent, decided on 28 June 2017, state relevantly as to why a disability pension was not payable[8]:“Assessment of Pension with effect from 21 September 2016Medical ImpairmentThe guide is arranged into Chapters for different body systems that are used to assess the degree of medical impairment.The table below summarises Mr Toyer’s medical impairment rating under the Guide:[8] Exhibit 1, T34, page 186-187. On 11 November 2017 by an application for review form, the Applicant applied for review to the Veterans’ Review Board[9]: [9] Exhibit 1, T40, page 198. “I am unhappy with the decision because …Pre 2010/11 my METS score would have been around ‘10’[.]Only recently – Oct 17 did I find out that Pleural Plaques/Asbestos was first detected in 2011 – See Initial Report 23.6.11 CXR that does ‘not’ refer Plaques. See Report CT 5/10/17 that notes Plaques were present in 2011[.]My level of fitness has deteriorated markedly in past 6-7 years. Obviously due to lung condition/asbestos[.]My condition/fitness in decline. Present METS score – 4/5[.]I had a coronary event when recently visiting Aust – dizziness – Collapsed & now have a pacemaker installed. I do suffer depression – Not clinical but due to lung condition – which is “YOURS” – Similarly anxiety due to this condition.Plenty more to come.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 11 November 2017 by an application for review form, the Applicant applied for review to the Veterans’ Review Board[9]: [9] Exhibit 1, T40, page 198. “I am unhappy with the decision because …Pre 2010/11 my METS score would have been around ‘10’[.]Only recently – Oct 17 did I find out that Pleural Plaques/Asbestos was first detected in 2011 – See Initial Report 23.6.11 CXR that does ‘not’ refer Plaques. See Report CT 5/10/17 that notes Plaques were present in 2011[.]My level of fitness has deteriorated markedly in past 6-7 years. Obviously due to lung condition/asbestos[.]My condition/fitness in decline. Present METS score – 4/5[.]I had a coronary event when recently visiting Aust – dizziness – Collapsed & now have a pacemaker installed. I do suffer depression – Not clinical but due to lung condition – which is “YOURS” – Similarly anxiety due to this condition.Plenty more to come.” The Veterans’ Review Board decided on 21 November 2018[10] to affirm the decision under review, being the decision of the Respondent dated 28 June 2017[11]. [10] Exhibit 1, T78, page 386. [11] Exhibit 1, T78, page 387. By an application for review of decision submitted to this Tribunal on 21 February 2019, the Applicant applied for review of the decision of the Veterans’ Review Board, stating the following reasons for the application[12]: “The evidence presented to the VRB was incomplete. I had a consultation in July 2018 with Dr Keith Adams for this VRB case. At that consultation I offered Dr Adams a more recent and comprehensive CT Scan dated February 2018 to complement the previous CT scan dated October 2016, which indicated plural plaques, which was subsequently linked to my service time. Dr Adams declined to accept or review the more recent CT scan and his report failed to demonstrate or acknowledge the severity of the plaques and subsequent reduced lung capacity, which has led to my adjustment disorder with depressed mood and mild anxiety. Subsequent to the VRB decision, all the evidence was reviewed by Dr Matthew Carter and his report confirmed severe plural plaques and loss of lung volume. (See letter dated 19/12/18).”[12] Exhibit 1, T2, page 6. CONSIDERATION The Applicant rendered “operational service”[13] as defined in s 6 of the Act and the Applicant’s injury or disease will therefore be found to be service-related if there is a reasonable hypothesis connecting the injury or disease to service: sub-ss 120(1) and (3) of the Act[14]. [13] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 2 on page 8. [14] There is a note in sub-ss 120(1) and (3) of the Act stating that those sub-ss are “ ... affected by section 120A”. In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take … . … As [the Applicant] contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows … :1 The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCA Trans 303)).2 If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the … Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the … Act as qualified by s 120(3) and s 120A (Budworth (at [19])).3 In applying ss 120(1), 120(3) and 120A of the … Act, the Tribunal was to consider all the material and determine whether:(i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and(ii) that hypothesis can be regarded as reasonable, if the “raised facts” are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).4 If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).5 If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is “upheld” by the SoP in the sense of being “consistent with the ‘template’ to be found in the SoP” (Deledio step three (at 97G)).6 If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.

Ratio Decidendi

Legal Principle Established

By an application for review of decision submitted to this Tribunal on 21 February 2019, the Applicant applied for review of the decision of the Veterans’ Review Board, stating the following reasons for the application[12]: “The evidence presented to the VRB was incomplete. I had a consultation in July 2018 with Dr Keith Adams for this VRB case. At that consultation I offered Dr Adams a more recent and comprehensive CT Scan dated February 2018 to complement the previous CT scan dated October 2016, which indicated plural plaques, which was subsequently linked to my service time. Dr Adams declined to accept or review the more recent CT scan and his report failed to demonstrate or acknowledge the severity of the plaques and subsequent reduced lung capacity, which has led to my adjustment disorder with depressed mood and mild anxiety. Subsequent to the VRB decision, all the evidence was reviewed by Dr Matthew Carter and his report confirmed severe plural plaques and loss of lung volume. (See letter dated 19/12/18).”[12] Exhibit 1, T2, page 6. CONSIDERATION The Applicant rendered “operational service”[13] as defined in s 6 of the Act and the Applicant’s injury or disease will therefore be found to be service-related if there is a reasonable hypothesis connecting the injury or disease to service: sub-ss 120(1) and (3) of the Act[14]. [13] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 23 September 2019, paragraph 2 on page 8. [14] There is a note in sub-ss 120(1) and (3) of the Act stating that those sub-ss are “ ... affected by section 120A”. In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take … . … As [the Applicant] contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows … :1 The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCA Trans 303)).2 If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the … Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the … Act as qualified by s 120(3) and s 120A (Budworth (at [19])).3 In applying ss 120(1), 120(3) and 120A of the … Act, the Tribunal was to consider all the material and determine whether:(i) it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and(ii) that hypothesis can be regarded as reasonable, if the “raised facts” are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).4 If the “raised facts” pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the “kind of disease” from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCA Trans 302)).5 If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is “upheld” by the SoP in the sense of being “consistent with the ‘template’ to be found in the SoP” (Deledio step three (at 97G)).6 If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.