TXBZ and Repatriation Commission

Case [2014] AATA 19

[2014] AATA 19  

Division VETERANS' APPEALS DIVISION

File Number(s)

2012/2537

Re

TXBZ

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Mr S Penglis, Senior Member

Date 16 January 2014
Place Perth

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision dated 19 April 2012 is affirmed.

..(Sgd) S Penglis.....................

Mr S Penglis, Senior Member

Catchwords

VETERANS’ AFFAIRS – veteran claims to suffer from post-traumatic stress disorder as a result of repeated sexual assaults during the course of the Applicant’s operational service – evidence does not establish that the Applicant suffers from post-traumatic stress disorder – Tribunal is satisfied beyond reasonable doubt that, on the evidence, the alleged assaults did not occur – reviewable decision affirmed – turns on its own facts

Legislation

Veterans’ Entitlements Act 1986 (Cth), ss 120, 120A(3) and 196B(2) and (14)

Cases

Repatriation Commission v Bowden [2012] FCAFC 176

Secondary Materials

Statement of Principle No. 6 of 2008 – Posttraumatic Stress Disorder

REASONS FOR DECISION

Mr S Penglis, Senior Member

16 January 2014

  1. This matter relates to the Applicant’s claim that he suffers from post-traumatic stress disorder (PTSD) and that it was related to the Applicant’s service in the Navy.

  2. Both the Respondent and subsequently the Veterans’ Review Board refused the Applicant’s claim.

  3. For the reasons set out herein, the Tribunal also refuses the Applicant’s claim.

    Background

  4. The background facts were not in dispute.

  5. The Applicant was born on 16 July 1949.

  6. He served in the Royal Australian Navy from 5 January 1966 to 25 January 1971 and was discharged in the rank of Able Seaman Weapons Mechanic.

  7. The Applicant’s eligible war service (which is also operational service) was as follows:

    ·     Vietnam – HMAS Sydney: 8 April 1967 to 22 April 1967, 28 April 1967 to 12 May 1967 and 19 May 1967 to 14 June 1967;

    ·     Vietnam – HMAS Duchess: 18 November 1968 to 25 November 1968 and 16 November 1969 to 29 November 1969.

  8. The Applicant absented himself from the Navy without leave from on or about 25 January 1971.

  9. In 2010, the Applicant commenced treatment with Dr Megan Gilbert, Consultant Psychiatrist, and on 30 August 2010, Dr Gilbert diagnosed the Applicant as suffering from “significant PTSD as a direct consequence of experiences that he suffered whilst in the Navy”.

  10. The “experiences that he suffered whilst in the Navy” is a reference to the Applicant’s contention that, whilst in the Navy, “he was sexually abused as a seventeen-year old sailor by a senior non-commissioned officer, a regimental sergeant major of the Australian Army” and that instances of abuse occurred during the period of the Applicant’s eligible service under the Veterans’ Entitlement Act 1986 (Cth) (Act).

    The decisions made by the Respondent and the Veterans’ Review Board

  11. The Applicant lodged a claim with the Respondent on 29 June 2010.

  12. On 1 December 2010, a delegate of the Respondent rejected the claim on the basis that the claimed condition…

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Details
AGLC
TXBZ and Repatriation Commission [2014] AATA 19
Case
[2014] AATA 19
Decision Date

CaseChat Overview and Summary

In the case of TXBZ and Repatriation Commission, the applicant, a former serviceman of the Royal Australian Navy, sought compensation for post-traumatic stress disorder (PTSD) which he claimed arose from his service in Vietnam. The central dispute was whether the applicant's PTSD was related to his military service, specifically if it was attributable to or aggravated by his operational service. The matter was reviewed by the Veterans’ Review Board, which affirmed the Repatriation Commission’s decision to reject the claim, holding that there was insufficient evidence to establish a connection between the applicant’s diagnosed PTSD and his service.

The primary legal issue before the Tribunal was to determine whether the evidence presented supported a reasonable hypothesis that the applicant's PTSD was connected to his military service. The Tribunal considered the diagnosis of PTSD by Dr Megan Gilbert, the applicant's psychiatrist, and the counter-opinion of Dr Mander, who attributed the applicant's symptoms to alcohol dependence. Additionally, the Tribunal was required to assess whether the alleged sexual abuse during the applicant's service met the statutory criteria for a war-caused condition under the Veterans’ Entitlement Act 1986.

The Tribunal examined the evidence and concluded that while the applicant indeed suffered from PTSD, the evidence did not sufficiently establish that the PTSD was connected to his military service. The Tribunal found that the applicant’s account of the events was not credible enough to satisfy the statutory requirement of being "reasonably satisfied" beyond reasonable doubt. The Tribunal upheld the decision of the Veterans’ Review Board, finding that the material did not raise a reasonable hypothesis connecting the applicant’s PTSD to his service.

Accordingly, the Tribunal dismissed the applicant’s claim. The Tribunal did not find sufficient evidence to establish a causal link between the applicant's PTSD and his military service, thereby affirming the earlier decisions of the Repatriation Commission and the Veterans’ Review Board.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons set out herein, the Tribunal also refuses the Applicant’s claim.Background The background facts were not in dispute. The Applicant was born on 16 July 1949. He served in the Royal Australian Navy from 5 January 1966 to 25 January 1971 and was discharged in the rank of Able Seaman Weapons Mechanic. The Applicant’s eligible war service (which is also operational service) was as follows:· Vietnam – HMAS Sydney: 8 April 1967 to 22 April 1967, 28 April 1967 to 12 May 1967 and 19 May 1967 to 14 June 1967;· Vietnam – HMAS Duchess: 18 November 1968 to 25 November 1968 and 16 November 1969 to 29 November 1969. The Applicant absented himself from the Navy without leave from on or about 25 January 1971. In 2010, the Applicant commenced treatment with Dr Megan Gilbert, Consultant Psychiatrist, and on 30 August 2010, Dr Gilbert diagnosed the Applicant as suffering from “significant PTSD as a direct consequence of experiences that he suffered whilst in the Navy”. The “experiences that he suffered whilst in the Navy” is a reference to the Applicant’s contention that, whilst in the Navy, “he was sexually abused as a seventeen-year old sailor by a senior non-commissioned officer, a regimental sergeant major of the Australian Army” and that instances of abuse occurred during the period of the Applicant’s eligible service under the Veterans’ Entitlement Act 1986 (Cth) (Act).The decisions made by the Respondent and the Veterans’ Review Board The Applicant lodged a claim with the Respondent on 29 June 2010. On 1 December 2010, a delegate of the Respondent rejected the claim on the basis that the claimed condition was not related to the Applicant’s service. The Applicant applied to the Veterans’ Review Board to review the decision of the Respondent. On 19 April 2012, the Board affirmed the Respondent’s decision on the basis that, whilst accepting Dr Gilbert’s diagnosis of PTSD, the Board “cannot be reasonably satisfied that the events happened as described by the veteran and his response was of the requisite degree to sustain the diagnosis … consequently, for the reasons given above, the Board is reasonably satisfied that the material before it does not raise a connection between the veteran’s diagnosed post-traumatic stress disorder and the relevant services required by the Act”. That is the reviewable decision the subject of this Application.The relevant principles The law in this area is well settled and was not in dispute before the Tribunal. Section 120 of the Act relevantly applies as follows:“(1) Where a claim … for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease … as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination.(2)…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease;…as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”

Evidence

Evidence Before The Court

The 2 main issues in this matter are as follows:(c)does the Applicant suffer from PTSD? If so,(d)whether the evidence raises a reasonable hypothesis that the Applicant’s PTSD:(i)arose out of or is attributable to; or(ii)was contributed to in a material degree or aggravated by,the Applicant’s operational service.The medical evidence Dr Gilbert gave evidence before the Tribunal on behalf of the Applicant. Based on what she was told by the Applicant, Dr Gilbert is firmly of the opinion that the Applicant suffers from PTSD. The Respondent called Dr Mander to give evidence on its behalf. Dr Mander was firmly of the opinion that the Applicant did not suffer from PTSD and that “all of the symptoms he describes can be accounted for” by the fact that the Applicant is “alcohol dependent”. In her written report dated 30 August 2010, Dr Gilbert recorded the “history of presenting complaint” as follows:“(The Applicant) says that he has had problems since he left the navy. He said he originally joined up when he was fifteen and a half and after doing a year of training at Leeuwin before he was posted on the HMAS Sydney as an ordinary seaman. Whilst on the Sydney he did about five trips up to Vietnam as this boat was known as “the Vung Tau ferry”. (The Applicant) stated that soon after he joined the ship he was molested by an army RSM who was the army personnel on the boat. He said that this happened regularly and that he was too frightened to tell anyone as he felt he would be blamed. (The Applicant) remained on the Sydney for about six to eight months and then was sent to Cerberus and then to Rushcutter’s Bay where he wanted to become a clearance diver. Unfortunately he couldn’t clear his ears in a decompression chamber so this failed and he ultimately became a weapons mechanic. (The Applicant) was then posted on the HMAS Duchess to be a weapons mechanic where he stayed for the next two years and did multiple trips up to Vietnam.Each time he would return the were based in Sydney and they would have their breaks at a local hotel where once again he was molested by the same army RSM who also drank at this hotel.After (the Applicant) left the Duchess he was by this stage an able seaman and he ended up at HMAS Kuttabul. He remained there for about five years but the molestation started again and reached such a level that after one particularly bad episode he decided he couldn’t take it any more. At this point he ran to New Zealand telling no-one including his parents where he had gone and remained there for the next ten years believing that after ten years he would be pronounced dead and no-one would come looking for him. After ten years he returned to Australia.Since his time in the navy (the Applicant) states that he has had flashbacks and nightmares concerning this situation of being molested. He says he is preoccupied with thoughts of it, feels guilty and bad and has been frightened to talk about it. He avoids situations that would bring it up including when he marches on Anzac Day. Specifically he marches with the army rather than the navy for fear of it coming out. The Applicant says he has poor concentration and is easily upset and angered. He has withdrawn into himself and says that his whole lifestyle is solitary. He has therefore a very small social life and no leisure pastimes. The Applicant suffers from poor sleep with middle and terminal insomnia.”

Decision

Reasons for decision

The “experiences that he suffered whilst in the Navy” is a reference to the Applicant’s contention that, whilst in the Navy, “he was sexually abused as a seventeen-year old sailor by a senior non-commissioned officer, a regimental sergeant major of the Australian Army” and that instances of abuse occurred during the period of the Applicant’s eligible service under the Veterans’ Entitlement Act 1986 (Cth) (Act).The decisions made by the Respondent and the Veterans’ Review Board The Applicant lodged a claim with the Respondent on 29 June 2010. On 1 December 2010, a delegate of the Respondent rejected the claim on the basis that the claimed condition was not related to the Applicant’s service. The Applicant applied to the Veterans’ Review Board to review the decision of the Respondent. On 19 April 2012, the Board affirmed the Respondent’s decision on the basis that, whilst accepting Dr Gilbert’s diagnosis of PTSD, the Board “cannot be reasonably satisfied that the events happened as described by the veteran and his response was of the requisite degree to sustain the diagnosis … consequently, for the reasons given above, the Board is reasonably satisfied that the material before it does not raise a connection between the veteran’s diagnosed post-traumatic stress disorder and the relevant services required by the Act”. That is the reviewable decision the subject of this Application.The relevant principles The law in this area is well settled and was not in dispute before the Tribunal. Section 120 of the Act relevantly applies as follows:“(1) Where a claim … for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease … as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination.(2)…(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a)that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease;…as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.” Section 120A(3) of the Act relevantly applies as follows:“For the purpose of s120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a)a Statement of Principles determined under subsection 196B(2) or (11); or(b)a determination of the Commission under subsection 180A(2):that upholds the hypothesis.”

Ratio Decidendi

Legal Principle Established

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