Voelker and Repatriation Commission (Veterans’ entitlements)

Case [2016] AATA 427

Voelker and Repatriation Commission (Veterans’ entitlements) [2016] AATA 427 (24 June 2016)

Division

VETERANS' APPEALS DIVISION

File Number

2015/0459

Re

Gerhard Herbert Voelker

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Deputy President K Bean
Lt Col R Ormston (Rtd) (Member)
Date 24 June 2016
Place Adelaide

The decision under review is affirmed, that is, the claims for post-traumatic stress disorder, generalised anxiety disorder and alcohol use disorder are refused.

.............. [Sgd] .................................................

Deputy President K Bean

CATCHWORDS

VETERANS' AFFAIRS – Veterans' entitlements – Operational service in Vietnam – Whether veteran suffers from PTSD – No evidence of traumatic event – Deledio steps – Whether veteran suffers from generalised anxiety disorder and alcohol use disorder – Whether conditions war-caused – Decision under review affirmed.

LEGISLATION

Veterans' Entitlements Act 1986, ss 6, 9, 13(1), 120 and 120A

Statement of Principles concerning alcohol use disorder Instrument No. 1 of 2009 (as amended by Instrument No. 29 of 2014)
Statement of Principles concerning posttraumatic stress disorder Instrument No. 5 of 2008
Statement of Principles concerning posttraumatic stress disorder Instrument No. 82 of 2014
Statement of Principles concerning anxiety disorder Instrument No. 102 of 2014

CASES

Re Spencer and Repatriation Commission [1997] AATA 358

Bull v Repatriation Commission (2001) 66 ALD 271

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Bawden (2012) 206 FCR 296

McKenna v Repatriation Commission (1999) 86 FCR 144

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

REASONS FOR DECISION

Deputy President K Bean
Lt Col R Ormston (Rtd) (Member)

24 June 2016

INTRODUCTION

  1. The applicant, Mr Voelker, served in the Royal Australian Navy from July 1964 to July 1970, which included four periods of operational service in Vietnam between 19 May 1967 and 13 June 1968.

  2. As a consequence of his service, Mr Voelker suffers from bilateral sensorineural hearing loss and tinnitus, which have been accepted as war-caused and for which he has been receiving a disability pension at 30% of the general rate of disability since December 2005.  He also had a condition of malignant neoplasm of the prostrate accepted as war-caused in November 2013.

  3. On 26 June 2012, Mr Voelker lodged a claim for disability pension in relation to post-traumatic stress disorder (PTSD) and anxiety.  The Repatriation Commission concluded that the appropriate diagnoses were PTSD, “generalised anxiety disorder” and “alcohol dependence” and refused the claim on 8 May 2013.[1]  On 13 May 2014, Mr Voelker applied to the Veterans’ Review Board (VRB) for a review of that decision.  On 12 December 2014, the VRB affirmed the decision of the Repatriation Commission refusing Mr Voelker’s claim for PTSD, generalised anxiety disorder and alcohol dependence.

    [1]     Exhibit 1, T4/27.

  4. On 2 February 2015, Mr Voelker applied to this Tribunal seeking review of the decision by the VRB, and giving rise to these proceedings.

    THE LEGAL FRAMEWORK

  5. Subsection 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act)…

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Details
AGLC
Voelker and Repatriation Commission (Veterans’ entitlements) [2016] AATA 427
Case
[2016] AATA 427
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Voelker against a decision of the Repatriation Commission regarding his veteran's entitlements. The dispute centred on whether Mr Voelker suffered from Post-Traumatic Stress Disorder (PTSD), generalised anxiety disorder, and alcohol use disorder, and if so, whether these conditions were war-caused. The case was heard by Deputy President K Bean of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether Mr Voelker had experienced a traumatic event or events during his operational service in Vietnam, which is a necessary criterion for a diagnosis of PTSD according to the DSM-5. Additionally, the Tribunal was required to determine if Mr Voelker's diagnosed conditions, including PTSD, generalised anxiety disorder, and alcohol use disorder, were war-caused, necessitating consideration of the "Deledio steps" in relation to the latter two conditions.

The Tribunal reasoned that while Mr Voelker experienced apprehension and felt under threat during his service, and his treating psychiatrist suspected PTSD, there was no direct evidence of a specific traumatic event. Despite counsel for Mr Voelker arguing that he should not be penalised for memory loss and that the Tribunal should consider difficulties in ascertaining facts under subsection 119(1)(h) of the VE Act, the Tribunal found that this provision did not permit substituting a presumption for absent evidence. Citing the Full Federal Court in *Repatriation Commission v Bawden*, the Tribunal held that a finding of a traumatic event is indispensable for a PTSD diagnosis. Consequently, the Tribunal was not satisfied that Mr Voelker met the diagnostic criteria for PTSD, nor that any of his claimed conditions were war-caused.

The Tribunal affirmed the decision under review, refusing Mr Voelker's claims for PTSD, generalised anxiety disorder, and alcohol use disorder.

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

Mr Voelker also said that while HMAS Sydney only spent a few hours each trip actually in Vung Tau harbour, loading and unloading troops and supplies, he was apprehensive for much of the trip, worrying about what might happen. He cited going to action stations in the Strait of Malacca, en route to Vietnam on one of his trips, when the ship was “closed down”, which exacerbated his fear and anxiety. He said he recalls that he felt “under threat” for the entire duration of each voyage.The medical evidence In a report dated 4 May 2006,[8] Dr Martyn Ewer, Psychiatrist, said that “Mr Voelker’s score results do not indicate he is suffering from Post-Traumatic Stress Disorder”, adding however that “it is difficult to comment upon the cause of Mr Voelker’s problems given that he could not remember when he went to Vietnam and given that he could recall few of the details of his time in Vietnam”.[8] Exhibit 1, T10/62. In a report dated 21 January 2013,[9] Mr Voelker’s treating Psychiatrist, Dr Dan Short, said:I have no evidence, but strongly suspect that [Mr Voelker’s] memory disturbance is a function of some form of underlying mental health disorder, such as Post Traumatic Stress Disorder … but at this point in time, we have been unable to uncover any evidence of history of exposure to traumatic incidents. [9] Exhibit 1, T15/80. In a further report dated 16 September 2014,[10] Dr Short stated:In my opinion, during his operational service, Mr Voelker was operating in [a] threatening, hostile, hazardous and/or menacing environment before the clinical onset of his Post Traumatic Stress Disorder. (emphasis in original).However, Dr Short made no mention of any specific traumatic event or events.[10] Exhibit 1, T17/97. In a report dated 17 December 2015,[11] in response to a letter from the respondent seeking further opinion, Dr Short explained:… we have gradually been able to piece together some of [Mr Voelker’s] experiences whilst serving, particularly on the HMAS Sydney and it is during this time that I believe he experienced the traumatic event(s), which led to him developing Post Traumatic Stress Disorder.He added “As a result of his memory disturbance we have not yet been able to describe any specific incidents fulfilling the diagnostic criteria”. [11] Exhibit 2.Consideration The first issue for us to determine is whether Mr Voelker experienced a traumatic event or events during his operational service, necessary to support a diagnosis of PTSD in accordance with the DSM-5. Mr Miller, who appeared as counsel for Mr Voelker, conceded that Mr Voelker had no recollection of experiencing a traumatic event or events during his operational service. However, he argued that Mr Voelker should not be penalised for his loss of memory and that it would be appropriate for the Tribunal to conclude that Mr Voelker had experienced a traumatic event or events during his operational service. Mr Crowe, representing the respondent, noted that subs 119(1)(h) of the VE Act requires the Commission, and the Tribunal, to “take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance”. However, he argued that that does not extend to substituting a presumption of what might have happened where evidence does not exist, citing Re Spencer and Repatriation Commission [1997] AATA 358 at [46] where it was held that “there must be something in the material before the Tribunal before it can take into account the direction given by paragraph (h) [of subsection 119(1)].”

Decision

Reasons for decision

We have concluded that Mr Voelker has not met the diagnostic criteria for PTSD, and even if he had, this condition could not be considered to be war-caused. We have also concluded that his generalised anxiety disorder and alcohol use disorder are not war-caused.DECISION The decision under review is affirmed, that is, the claims for PTSD, generalised anxiety disorder and alcohol use disorder are refused.

Ratio Decidendi

Legal Principle Established

In a report dated 17 December 2015,[11] in response to a letter from the respondent seeking further opinion, Dr Short explained:… we have gradually been able to piece together some of [Mr Voelker’s] experiences whilst serving, particularly on the HMAS Sydney and it is during this time that I believe he experienced the traumatic event(s), which led to him developing Post Traumatic Stress Disorder.He added “As a result of his memory disturbance we have not yet been able to describe any specific incidents fulfilling the diagnostic criteria”. [11] Exhibit 2.Consideration The first issue for us to determine is whether Mr Voelker experienced a traumatic event or events during his operational service, necessary to support a diagnosis of PTSD in accordance with the DSM-5. Mr Miller, who appeared as counsel for Mr Voelker, conceded that Mr Voelker had no recollection of experiencing a traumatic event or events during his operational service. However, he argued that Mr Voelker should not be penalised for his loss of memory and that it would be appropriate for the Tribunal to conclude that Mr Voelker had experienced a traumatic event or events during his operational service. Mr Crowe, representing the respondent, noted that subs 119(1)(h) of the VE Act requires the Commission, and the Tribunal, to “take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance”. However, he argued that that does not extend to substituting a presumption of what might have happened where evidence does not exist, citing Re Spencer and Repatriation Commission [1997] AATA 358 at [46] where it was held that “there must be something in the material before the Tribunal before it can take into account the direction given by paragraph (h) [of subsection 119(1)].” After considering the evidence, we acknowledge the difficulties faced by Mr Voelker in recalling the circumstances of his operational service which occurred nearly 50 years ago. However, the Full Federal Court made clear in Repatriation Commission v Bawden (2012) 206 FCR 296 at 307 that “a finding that a traumatic event has occurred is indispensable to a diagnosis of PTSD.” In the absence of any evidence that Mr Voelker experienced a traumatic event or events during his operational service, we are not satisfied that he meets the diagnostic criteria for PTSD specified in DSM-5. Accordingly, we are not satisfied he suffers from PTSD, or suffered from PTSD at any relevant time.WAS ANY SUCH CONDITION WAR-CAUSED? While we have concluded that Mr Voelker has not met the diagnostic criteria for PTSD, for completeness we will briefly address the issue of whether any such condition may have been war-caused, which depends upon our consideration of the issues raised at each of the four Deledio steps outlined earlier. We will accordingly address each of those steps in turn, by reference to the material before us and the contentions of the parties. Does the material point to an hypothesis connecting Mr Voelker’s diagnosis with his service?