Traves and Repatriation Commission - [2001] AATA 272

DECISION AND REASONS FOR DECISION [2001] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/457

VETERANS' APPEALS DIVISION          )              N1999/1814
           Re      MICHAEL TRAVES
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date5 April 2001
PlaceSydney

Decision      The Tribunal sets aside the decisions under review and in substitution for those decision decides: 1) that the accepted disabilities as of 29 April 1998 are osteoarthritis of the right knee, meniscal lesion of the right knee, hypertension, and psychoactive substance abuse or dependence involving alcohol; and 2) that the accepted disabilities as of 16 August 1998 are osteoarthritis of the right knee, meniscal lesion of the right knee, hypertension, psychoactive substance abuse or dependence involving alcohol and malignant neoplasm of the colon; and 3) that the accepted disabilities as of 14 September 1998 are osteoarthritis of the right knee, meniscal lesion of the right knee, hypertension, psychoactive substance abuse or dependence involving alcohol, malignant neoplasm of the colon and atherosclerotic peripheral vascular disease; and 4) that the rate of Disability Pension payable is 40% of the general rate on the first pension payday falling on or after 29 April 1998; 60% of the general rate on the first pension payday falling on or after 16 August 1998 and 70% of the general rate on the first pension payday falling on or after 14 September 1998.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
Veterans' Affairs – hypertension – diverticular disease of the colon – psychoactive substance abuse – clinically definable condition - alcohol abuse – reasonable hypothesis - operational service in Vietnam and Thailand - artherosclerotic peripheral vascular disease – hypertension - malignant neoplasm of the colon - statement of principles - eligible service period - causal link between alcohol abuse and service- Guide to the Assessment of Rates of Veterans' Pensions – medication - alcohol dependent - high-risk overseas situations – 15 pack years of cigarette smoking – a stressful event prior to the clinical onset of the condition - subjective symptoms of increased stress
Veterans' Entitlements Act 1986
Deledio v Repatriation Commission (1997) 47 ALD 261
Dixon v Repatriation Commission (1999) 29 AAR 235
Ferriday v Repatriation Commission (1996) 42 ALD 526

REASONS FOR DECISION

5 April 2001 M J Sassella, Senior Member

History of Applications
N1999/457

On 13 February 1998 (T4), the Applicant lodged a claim for Disability Pension for conditions of hypertension, diverticular disease of the colon and psychoactive substance abuse. He already had accepted disabilities relating to the right knee.
On 24 June 1998 (T11) the Repatriation Commission refused the Applicant's claim. It found that the Applicant did not have any clinically definable condition of psychoactive substance abuse, and since it was the Applicant's claim that hypertension was secondary to his substance abuse, it was also refused. It was further found that the Applicant's service circumstances did not cause diverticular disease of the colon. His disability pension was continued at 30% of the General Rate, effective from 10 November 1997.
On 29 October…

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 Traves and Repatriation Commission

Details

AGLC: Traves and Repatriation Commission [2001] AATA 272
Case: [2001] AATA 272
Decision Date: 5 April 2001

CaseChat Overview and Summary

In the matter of Traves and Repatriation Commission, the applicant, Mr Traves, sought a review of a decision by the Repatriation Commission to deny his claim for additional pension entitlements based on certain medical conditions he alleged were caused by his service in the military. The case was heard by the Administrative Appeals Tribunal (AAT). The central legal issues before the AAT were whether Mr Traves's conditions of psychoactive substance abuse or dependence, hypertension, malignant neoplasm of the colon, and atherosclerotic peripheral vascular disease were related to his military service and thus eligible for pension entitlements under the Veterans' Entitlements Act 1986.

The AAT examined the evidence provided by Mr Traves and other witnesses, including his service records and medical reports, to determine if the conditions met the criteria set out in relevant Statements of Principles (SoP). The Tribunal found that Mr Traves's alcohol dependence developed during his service in Ubon and Vietnam, which were high-stress environments, and that this dependence met the criteria under SoP no 5 of 1994. The Tribunal also concluded that his hypertension and other conditions were related to the stressful conditions he encountered during his service, satisfying the criteria under SoP no 87 of 1995.

Given the findings, the AAT determined that the conditions were indeed war-caused and ordered the Repatriation Commission to reassess Mr Traves's pension entitlements, taking into account the newly accepted conditions. The AAT's decision was based on the evidence of the stressful conditions during service and the lack of contradiction regarding Mr Traves's claims about his alcohol use and smoking habits as coping mechanisms for the stress of service. The Tribunal also considered the medical evidence and the appropriate ratings for the conditions, adjusting the pension assessment accordingly.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In his written statement he said he had known Mr Traves since 1960. They served at the same locations in the RAAF from 1960 to June 1969, with the exception of 1967-March 1969. They have kept in touch since and, since 1998, have regularly visited each other at home. He wrote of the Applicant's heavy alcohol consumption in Ubon, the stressful ORP working conditions at Ubon and the tendency of airmen to drink heavily in Vietnam (Mr Winter was not there with the Applicant). He confirmed the Applicant's evidence as regards his current alcohol consumption. He said that Mr Traves hides "empties" from his wife. He commented that Mr Traves tends to understate his beer consumption. He said that Mr Traves can go a day without beer and he suffers no adverse effects, however, come 4.00 pm he tends to plot how and where he can get a drink. Mr Winter was confident that Mr Traves developed alcohol dependence in Ubon.Findings on material questions of fact with reference to the evidence or other material on which the findings are based The conditions contended for are best considered in the following order:1) Psychoactive substance abuse or dependence. The parties agreed that the appropriate SoP was SoP no 5 of 1994. The Tribunal agrees with the parties. The primary decision on this issue was made on 24 June 1998. This was the SoP in force on that date. Mr Traves had considerable operational service. The focus of argument in the case has been on any connection between Mr Traves's war service and his alcohol problem. Considering the principles in Deledio v Repatriation Commission (1997) 47 ALD 261, the four steps in this instance apply as follows. The hypothesis as it applies to the consumption of alcohol is that the Applicant first drank alcohol on joining the RAAF and his consumption increased to the point of being substance abuse or dependence during operational service in Ubon and Vietnam because of the conditions he encountered in those places. There is a relevant SoP, as noted above. The elements of that SoP that are to be satisfied are (i) that Mr Traves suffers from psychoactive substance abuse or dependence ("the condition") as defined in the SoP at paragraph 3; (ii) that Mr Traves experienced a stressful event prior to the clinical onset of the condition; and (iii) that Mr Traves maintained the abuse or dependence post-service (factor 1(a)). Heerey J said in Deledio (supra) at page 275 that, in applying the SoP template to the particular claim, if one of the disputed facts happens also to be a component of an SoP then the Repatriation Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. This is amplified by Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at page 243 where he states:"As the Full Court said in Deledio, it is only at the step 4 stage of the process 'that the Tribunal will be required to find facts from the material before it'. In the present case the Tribunal fused together steps 3 and 4. It should have resolved step 3 by determining whether the claims [judge's emphasis] made in the material before it satisfied the factor requirements of the Statement of Principles related to the generalised anxiety disorder; this is, still considering them as claims and without making any judgment about their truth. If the AAT had answered this question in the affirmative, the final step in carrying out the obligation imposed on the Tribunal by s 120(1) of the Act is to decide whether it is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused. If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing the appeal.

Decision

Reasons for decision

Paragraph 2 of SoP 87 of 1995 has the effect that any condition must be related to service if it is to be an accepted disability. In the present case the evidence of the veteran as to the stressful conditions in Ubon, notably his use of alcohol as a sleeping draught to counteract the noise from Phantom aircraft, evidence not contradicted, would appear to satisfy this requirement. It was this phenomenon that led to the veteran's hypertension. Likewise, the veteran has attributed aspects of his smoking pattern to service stress. In evidence he said he thought his consumption arose through the conditions in Ubon and Vietnam. It is noted, however, that he described his reason for smoking in the RAAF as "social" in his smoking questionnaire (N1999/457, T5). This tallies somewhat with Dr Burns's findings in Exhibit R4 on the reasons for the Applicant's smoking. The Tribunal considers that it would be wiser to rely on factor 1(c) in SoP no 87 of 1995 in finding in the veteran's favour as regards atherosclerotic peripheral vascular disease and that is what the Tribunal has done. Factor 1(c) relates the condition to the veteran's hypertension.Conclusion as to entitlement On the basis of the above the Tribunal has found that the following conditions are war-caused: These are conditions additional to already accepted conditions related to the veteran's right knee. The dates of effect vary, however. For psychoactive substance abuse the date of effect is 29 April 1998. For hypertension the date of effect is 29 April 1998. The date of effect for malignant neoplasm of the colon is 16 August 1998 and for atherosclerotic peripheral vascular disease it is 14 September 1998.Assessment The veteran currently receives a Disability Pension at 30% of the general rate. It is necessary to consider what effect acceptance of these additional conditions will have. The available evidence is that provided by Drs Baz and Burns, the occupational physicians in Exhibits A14 and R5, respectively. The following table compares their ratings and provides the Tribunal's assessment. Dr Levi in Exhibit R4 awarded some ratings. On the whole these are unexplained and are nil ratings. However, he used table 14.2 in the GARP and awarded 10 points in relation to the malignant neoplasm on the basis of reduced life expectancy. The discrepancy between the doctors as regards the right knee condition is based on whether table 3.2.1 in GARP is applied. Dr Burns applies table 3.2.2 and table 19.1 which have the effect of allowing a rating of 20 for the limitations on walking which is reduced to 11 under table 19.1 when a deduction is made for the impact of a non-accepted condition. The non-accepted condition was atherosclerotic peripheral vascular disease which is now accepted. Dr Baz's rationale that if peripheral vascular disease is included as an accepted disability the knee condition rates 20 points seems sound to the Tribunal. Chapter 19 does not have to be applied. Both Dr Baz and Dr Burns award a rating of 10 for the peripheral vascular disease. Dr Baz refers in her report to table 2.1.1 which is in fact appropriate for hypertension. It is unclear to the Tribunal how Dr Baz awarded a rating of 20 points in the final analysis for that condition. 10 points appears appropriate to the Tribunal.

Ratio Decidendi

Legal Principle Established

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