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 2014CASES
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
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.
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.
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.
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
Subsection 13(1) of the Veterans’ Entitlements Act 1986 (the VE Act)…
Continue reading Voelker and Repatriation Commission (Veterans’ entitlements)
Sign in free to access the full text
- AGLC
- Voelker and Repatriation Commission (Veterans’ entitlements) [2016] AATA 427
- Case
- [2016] AATA 427
- Decision Date
CaseChat Overview and Summary
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
Decision
Reasons for decision
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?