Allan and Repatriation Commission
[2004] AATA 1056
•12 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1056
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/327
VETERANS' APPEALS DIVISION )
Re GRAHAM ALLAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date12 October 2004
PlaceBrisbane
Decision The Tribunal decides:
(a) to set aside the decision under review except insofar as that decision accepted the condition Bilateral Sensorineural Hearing Loss as a war-caused condition;
(b) the conditions:
(i) Post Traumatic Stress Disorder;
(ii) Alcohol Abuse; and
(iii) Irritable Bowel Syndrome;
are war-caused conditions within the terms of section 9 of the Veterans’ Entitlements Act 1986;
(c) the date of effect of this decision is 1 June 1999; and
(d) to remit the matter to the respondent for assessment of pension.
.................(Sgd)................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – pension – post traumatic stress disorder, alcohol abuse and irritable bowel syndrome – applicant experienced a severe stressor during operational service in Vietnam – hypotheses raised are reasonable – not disproved beyond reasonable doubt – conditions are war caused – decision set aside
Veterans’ Entitlements Act 1986 ss 9(1), 120(1), 120(3), 120A, 196B(2)
Administrative Appeals Tribunal Act 1975 s 35(2)
Re Allan and Repatriation Commission (2003) 77 ALD 140
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR 82
Stoddart v Repatriation Commission (2003) 197 ALR 283
Repatriation Commission v Stoddart (2003) 77 ALD 67
Woodward v Repatriation Commission (2003) 200 ALR 332REASONS FOR DECISION
12 October 2004 Senior Member KL Beddoe 1. On 1 September 1999, the applicant applied for a disability pension in respect of:
(a)“PTSD & Alcohol;
(b)Hearing Problems; and
(c)Stomach Problems.”
Those conditions were initially diagnosed by the applicant’s general practitioner, Dr McCulloch as:
(a)“Post-traumatic Stress Disorder with secondary excess intake of alcohol;
(b)Bilateral High-Tone sensorineural hearing loss; and
(c)Irritable Bowel Syndrome.”
2. On 29 March 2000, the respondent Commission notified a decision to the effect that:
(a)the claim for bilateral sensorineural hearing loss was accepted with effect from 1 June 1999;
(b)the claims for post traumatic stress disorder, alcohol dependence or alcohol abuse and irritable bowel syndrome were refused; and
(c)disability pension was assessed at 20% of the General Rate with effect from 1 June 1999.
3. On 16 May 2000, the applicant applied for review by the Veterans’ Review Board.
4. On 6 November 2000, the Veterans’ Review Board notified a decision affirming the decision so far as it related to post traumatic stress disorder, alcohol dependence or abuse and irritable bowel syndrome. Pension was re-assessed at 30% of the General Rate with effect from 1 June 1999.
5. On 29 November 2000, the applicant applied for review in this Tribunal.
6. Relying on what I was told at the hearing I understand that the application was heard by this Tribunal (differently constituted) and a decision was made. That decision was the subject of an appeal to the Federal Court but was not heard by the Court. The matter was remitted by consent back to the Tribunal without any findings that would permit the Tribunal to identify the errors of law that were the subject of the appeal.
7. It seems the matter came before the President in a directions hearing and his Honour ordered that the matter be fixed for hearing before a single member of the Tribunal, constituted by a legally qualified member, and that the matter be heard “de novo”: Re Allan and Repatriation Commission (2003) 77 ALD 140.
8. At the hearing Mr Clutterbuck appeared for the applicant and Mr Bowskill appeared for the respondent.
9. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents and further documents were tendered and marked as exhibits as follows:
Exhibit A Report by Dr Chittenden
Exhibit B Applicant’s Statement
Exhibit C Two Photographs
Exhibit D Map
Exhibit E Statement by Mr WeeksExhibit FReport by Dr Wilson (27/8/1969) [s 35(2) order applies]
Exhibits 1 and 2 Reports by Lieutenant Colonel Conant
10. The applicant was born on 20 January 1948. He was called up for service pursuant to the National Service Act commencing in October 1968 and being discharged in October 1970 with subsequent service in the Australian Reserve Force. He had operational service in South Vietnam from 6 August 1969 to 7 May 1970.
11. During his service in South Vietnam the applicant was initially a signaller in 1 Field Regiment HQ Battery and later with 101 Field Battery where he replaced a signaller who had been killed, having been trained as an artillery signaller. The Field Battery consisted of six to eight 155 howitzers normally stationed at Nui Dat. The Battery (101 Field Battery) also operated in the field from time to time. Its members were required to do sentry and guard duties, including clearing patrols, on the Nui Dat perimeter and provide armed escorts for the transport platoon.
12. The applicant refers to a number of incidents:
(a)perimeter patrols and manning of weapons pits at Nui Dat several nights per week, from time to time, during which possible perimeter intrusions resulting in flares being triggered were experienced;
(b)an incoming mortar round exploded in the 101 Field Battery area at Nui Dat while the applicant was in a nearby fox hole;
(c)while on armed escort duties an ammunition truck broke down away from base camp requiring the convoy to remain with the truck overnight during which time an American aircraft firing tracer ammunition was sighted about 1.5 to 2 miles from the ammunition truck; and
(d)an alleged ammunition dump where the applicant had been working was destroyed by an incoming mortar attack within hours of the applicant ceasing work at the site.
13. The applicant asserts that each of these events, including the regular perimeter patrol duties, were stressful events for him. In relation to guarding the ammunition truck overnight he described the situation as “quite frightening”. He agreed that he had not been “shot at” during his service but had heard of others.
14. The applicant was recalled to give evidence about Exhibit F. That evidence is subject to an order under section 35(2) of the Administrative Appeals Tribunal Act 1975. The evidence acknowledges a psychological problem when the applicant was 18 years of age.
15. Mr Weeks gave general evidence about 101 Field Battery relevant to the time the applicant was in South Vietnam (Exhibit E). He confirmed the incident of the ammunition truck breaking down and the overnight wait for mechanics to fix the vehicle but said in oral evidence that he had no direct knowledge of the incident. He did say that in such a case the convoy would wait with the broken down vehicle. I have considered Mr Weeks’ evidence but concluded that it is of little assistance to the Tribunal.
16. There are three reports by Lt Colonel Conant based on his research of military records relevant to the time the applicant was serving in South Vietnam and his own knowledge from his service in South Vietnam from 3 March 1968 to 18 March 1969 – a period of time prior to the applicant’s service.
17. Mr Conant states that the last recorded mortar or rocket attack at Nui Dat occurred six weeks prior to the applicant’s arrival in South Vietnam.
18. He also states that while regular guard duty was a requirement he considers the applicant has overstated the times he was required to do guard duty. He also says that the tripping of perimeter flares was not uncommon and usually caused by animals and civilian curfew breakers.
19. In relation to the stranded ammunition truck, Mr Conant said that delivery of ammunition to a Battery would normally be by helicopter. In respect of the claimed incident he said action would have been taken by a ready response unit to secure the convoy or get it to a more secure location if required to stay out overnight. Such trucks would be a valuable target of opportunity for the enemy at that time.
20. Mr Weeks corroborated the claim that resupply of ammunition to a Field Support Base was usually by helicopter but within Phuoc Tuy Province was sometimes done by a road convoy. He said that Phuoc Tuy was under strong Viet Cong influence at the relevant time.
21. In relation to the breakdown incident, Mr Weeks said the convoy remained with the broken down ammunition truck and there was infantry support for the convoy. The breakdown occurred not far from the ultimate destination.
The Medical Evidence
22. On enlistment it was noted that the applicant had a prior history of treatment at the Dandenong Psychiatric Hospital following a conviction for stealing women’s clothing.
23. Exhibit F is a report to the “National Service Office” dated 27 August 1968 (that is, before call-up under the National Service Act) by a Dr Wilson. I do not know Dr Wilson’s speciality. The report is brief and I have made an order in terms of section 35(2) of the Administrative Appeals Tribunal Act 1975 in relation to the report. In light of the applicant’s own evidence I am satisfied the applicant suffered an emotional reaction to his father’s death in 1966 that cleared after treatment at the Dandenong Hospital.
24. The applicant does not seem to have mentioned the pre-service treatment to either Dr Cameron or Dr Chittenden but the matter was put to Dr Chittenden in evidence.
25. A report dated 18 January 2000 by Dr Cameron, Consultant Psychiatrist, and addressed to the Department of Veterans’ Affairs, diagnosed post traumatic stress disorder with a history of alcohol abuse now controlled.
26. Dr Cameron relates a brief history taken from the applicant which must be said to be exaggerated and deficient when compared with the applicant’s own evidence before the Tribunal about his time in South Vietnam. Dr Cameron noted the applicant’s assertion that he has a poor memory about events in South Vietnam.
27. Exhibit A is a report by Dr Chittenden dated 27 February 2004 and addressed to the applicant’s solicitors. Dr Chittenden is a Specialist in Psychological Medicine. The report is a detailed medico-legal report.
28. Dr Chittenden relates a history generally consistent with the history asserted by the applicant before the Tribunal. Dr Chittenden described the events in South Vietnam as related by the applicant as “stressful events” and threats to the applicant’s physical integrity. In particular, she noted that the applicant had been required to replace a signaller who had been killed – however, the circumstances of the signaller’s death are not given. Dr Chittenden also refers to the applicant’s assertions of an adverse public and fellow employee reaction to him on return to Australia in circumstances where it was known he had served in South Vietnam. It seems from Dr Chittenden’s report that the “constant talk got to me” and there was not a day that went by without the applicant having some accusation hurled at him as if he was personally responsible for all that happened in South Vietnam. He found other pressures from the civilian population were severe.
29. Dr Chittenden describes a history of familial aggression, sleep problems, problems with others, especially persons connected with the applicant’s employment and constantly changing employment due to these problems.
30. Dr Chittenden diagnosed post traumatic stress disorder and alcohol abuse with recommendations for treatment. Her summary and prognosis includes the following:
“Unfortunately, on gong to Vietnam, although he was not exposed to any traumatic events, he did personally feel a threat to his own physical integrity and was extremely anxious and fearful whilst in Vietnam, having no ability to remove himself from that situation over a fairly prolonged period of time.”
And later, Dr Chittenden said:
“Mr Allan’s Post Traumatic Stress Disorder appeared to commence in Vietnam due to severe anticipatory anxiety with fear and helplessness in his situation over a long period of time. He was involved in some situations which did give rise to his reasonable feeling that he would be killed or injured, with consequent self medication with alcohol amounting to abuse and dependence since being in Vietnam and subsequently to the present day.”
31. In her oral evidence, Dr Chittenden said the major stressor during service in South Vietnam was the incident with the ammunition truck and in particular having to guard the truck overnight for an extended period. She said the applicant was anxious with anticipatory fear and would have been more anxious than others.
32. In relation to the report which is Exhibit F, Dr Chittenden said that it appeared to relate to an adolescent maturity crisis or identity crisis provoked, it seems, by the father’s death. She thought such a crisis would be short-lived.
Consideration
33. Both parties made oral and written submissions.
34. The applicant claims three diagnosed conditions as follows:
(a)Post Traumatic Stress Disorder as diagnosed by Dr Chittenden (Exhibit A);
(b)Alcohol Abuse as diagnosed by Dr Chittenden (Exhibit A); and
(c)Irritable Bowel Syndrome as diagnosed by Dr McCulloch (T4) and seen by Dr Chittenden as secondary and part of the post traumatic stress disorder and alcohol abuse (Exhibit A).
35. The respondent does not dispute that these diagnoses are correct. I am satisfied on the balance of probabilities that the applicant suffers from these conditions.
36. Both Dr Cameron and Dr Chittenden hypothesise, in effect, that the diagnosed conditions were caused by the applicant’s operational service in South Vietnam.
37. Sub-section 9(1) of the Veterans’ Entitlements Act 1986 (“the Act”) sets out the circumstances to be satisfied if the diagnosed conditions are to be accepted as war-caused diseases. The sub-section will be satisfied if these respective conditions contracted by the applicant resulted from an occurrence that happened by the applicant rendering operational service (s 9(1)(a) of the Act).
38. Because these claims relate to operational service the standard of proof to be applied to resolving whether each of the claimed conditions is war-caused is found initially in sub-sections 120(1) and 120(3) of the Act. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, the High Court explained the operation of these sub-sections as follows:
“The position may be summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
and later, at 571-2, the Court said in relation to the matter before the Court:
“If the appellant had been able to prove that he sustained a severe injury to his neck, part of the hypothesis would have been proved. Indeed, proof of a severe injury would have been the factual foundation of another hypothesis leading to the same conclusion but with a higher degree of probability than the hypothesis upon which the appellant was forced to rely. Similarly, proof beyond reasonable doubt that the appellant had not suffered a severe injury would have disproved the hypothesis put forward by Dr Rowden. In the absence of proof that the appellant had or had not sustained a severe injury, however, his case had to be determined by examining whether it was a reasonable hypothesis that his spondylosis was caused by an injury to his neck which occurred when he dived into a shallow pool causing him to be hospitalized for three days. His case could succeed even though there was no evidence that the 1943 incident had resulted in severe injury. Sustaining severe injury was part of the hypothesis; it was not a matter for proof or evidence in his case.”
39. Sub-section 120(3) is affected by section 120A of the Act which applies to a claim, such as the present matter, made after 1 June 1994.
40. Relevant to the present matter, sub-section 120A(3) provides that an hypothesis connecting the veteran’s claimed condition with the circumstances of his operational service is a reasonable hypothesis only where there is a relevant Statement of Principles, made pursuant to sub-section 196B(2) of the Act, that upholds the hypothesis.
41. The application of sub-sections 120(1), 120(3) and 120A(3) of the Act was explained by the Federal court in Repatriation Commission v Deledio (1998) 83 FCR 82. In particular at pages 97-98 the Court set out the steps required to be taken in determining whether there is a reasonable hypothesis connecting the claimed diagnosed condition with the veteran’s operational service. In summary these steps are:
(a)Considering all the material before the Tribunal, do the raised facts point to an hypothesis connecting the claimed condition with the circumstances of the veteran’s operational service? If the answer is “no” the application must fail.
(b)If the material does raise such an hypothesis, is there a Statement of Principles (“SoP”) in force? In this case there are SoPs in force for each of the claimed conditions.
(c)The hypothesis will be a reasonable hypothesis if it is consistent with the terms of the relevant SoP, that is, it must contain one or more of the factors set out in the SoP. If it does contain one or more of these factors it is a tenable hypothesis which is a reasonable hypothesis.
42. If the raised facts are such that there is a reasonable hypothesis then the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that the claimed condition was caused by the applicant’s operational service.
43. The relevant SoPs are:
(a)Instrument No 3 of 1999 as amended in relation to Post Traumatic Stress Disorder;
(b)Instrument No 76 of 1998 in relation to Alcohol Abuse; and
(c)Instrument No 103 of 1996 in relation to Irritable Bowel Syndrome.
44. In relation to post traumatic stress disorder I am satisfied that the diagnosis is within the terms of paragraph 2 of Instrument No 3 of 1999.
45. The question is, in terms of clause 5 of the SoP, whether the applicant experienced a severe stressor prior to the clinical onset of post traumatic stress disorder.
46. “Experiencing a severe stressor” is defined by Instrument No 3 of 1999 as amended.
47. The applicant relies on a number of events as severe stressors. The requirement to do guard and patrol duties was work required to be undertaken on a regular basis. While it is understandable that persons required to undertake these duties will be apprehensive and perhaps anxious about aspects of their duties, they were truly routine duties when judged objectively, were unlikely to involve actual or threat of death or serious injury, or a threat to the applicant’s or another’s personal integrity. It seems to have been a regular occurrence that trip wires let off flares but those incidents did not result in death or serious injury, being innocent intrusions by civilians or animals.
48. More to the point is the risk of mortar rocket attack but those attacks were, on the applicant’s evidence, rare and inconsequential.
49. Much more to the point is the ammunition truck incident.
50. In Stoddart v Repatriation Commission (2003) 197 ALR 283 at 294-5 Mansfield J discussed the definition “experiencing a severe stressor” in the context of Instruments No 3 of 1999 as amended and No 76 of 1998 as follows:
“[50] In my judgment, the meaning of the word ‘threat’ as used in the definition of ‘experiencing a severe stressor’ does not require the construction or meaning contended for by the respondent and accepted by the Tribunal. The adjectival clause ‘that involved actual or threat of death or serious injury ...’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the ‘threat’ there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs. It would involve the Repatriation Medical Authority in the two SoPs being interpreted as saying (for example) that on medical-scientific evidence PTSD cannot be related to operational service where events actually experienced, and which a person with the knowledge and in the circumstances of a particular claimant could reasonably lead to that person perceiving a threat of death or serious injury or to physical integrity, did not, judged objectively and with full knowledge of all the circumstances, in fact amount to such a threat. Such an interpretation would lead to excluding from the scope of the word ‘threat’ a range of circumstances, some of which are referred to above, which commonsense indicates are matters not directly within medical-scientific evidence. That is, if a threat of serious injury or death is perceived by a claimant from actual events experienced in circumstances where, judged objectively with the knowledge and in the circumstances of the claimant, it was reasonable to perceive the threat, I do not understand it to be a medical-scientific opinion that no reasonable hypothesis can be raised connecting the condition resulting from those events with them. The definition of ‘sound medical-scientific evidence’ in s5AB(2) also indicates that the Repatriation Medical Authority would not intend to impose a prescriptive exclusion of the kind which would result from the interpretation of the SoPs which the Tribunal adopted.
[51] The two SoPs indicate the Repatriation Medical Authority considered there is sound medical evidence indicating both ALD and PTSD can be related to operational service. The SoPs were therefore required to set out the factors which must as a minimum exist, and which of those factors must be factors related to service rendered by a person, before it can be said a reasonable hypothesis has been raised connecting those diseases with the circumstances of that service. Section 196B(14)(f) defines a factor causing or contributing to a disease as related to service rendered by a person if the disease would not have occurred but for the rendering of that service by the person. Subsections (14)(a) and (d) provide the alternatives where the disease resulted from an occurrence that happened while the person was rendering that service or was contributed to in a material degree or was aggravated by that service. It is consistent with those provisions that the SoPs should be read as meaning that a claimant experiences ‘a severe stressor’ if that person experiences, witnesses or is confronted with an event or events which that person perceived as a threat of death or serious injury or to physical integrity, and which with that person's knowledge and in that person's experience, could reasonably be so perceived.
[52]The view I have reached accords with the common meaning of ‘threat’. It is defined in The Macquarie Concise Dictionary, 2nd ed, p 1050, as:
‘an indication of probable evil to come; something that gives indication of causing evil or harm.’
The other meaning given relates to the communication of an intention to inflict harm. In my view, it is in the quoted sense that the word ‘threat’ appears in the definition of ‘experiencing a severe stressor’ in each of the SoPs. The adoption of that meaning accommodates the type of circumstance referred to in the preceding paragraph, that is a state of affairs which could reasonably be understood by a normal person in the position of the applicant as exposing that person (or others) to a detriment. The SoPs require the detriment to be death or serious injury or to physical integrity. In the 1998 Alcohol Abuse SoP there is the additional requirement that the event or events might evoke intense fear, helplessness or horror.”
51. The reasoning of Mansfield J was affirmed by the Full Court on appeal in Repatriation Commission v Stoddart (2003) 77 ALD 67 and approved in Woodward v Repatriation Commission (2003) 200 ALR 332.
52. Adopting his Honour’s reasoning I am satisfied, on the basis of the raised facts, that the incident involving the ammunition truck involved a threat of death or injury and was perceived by the applicant to be such a threat. That is made apparent by the evidence of Mr Conant who said that the broken down ammunition truck would be an “extremely attractive target” (Exhibit 2). That the threat of enemy attack was real is also shown by Mr Conant’s evidence that a ready response unit of infantry would have been despatched to protect the convoy while the truck was unserviceable. In these circumstances it was entirely reasonable that the applicant perceived that he was threatened with death or serious injury likely to be caused by an enemy attack on the “extremely attractive target”.
53. It follows that I am satisfied that factor 5(a) of Instrument No 3 of 1999 as amended has been satisfied so that I can also be satisfied that the hypothesis that post traumatic stress disorder was caused by the applicant’s operational service is a reasonable hypothesis.
54. It also follows that I am satisfied that factor 5(a) (and also 5(b)) of Instrument No 76 of 1998 is satisfied in relation to Alcohol Abuse and factor 5(b) of Instrument No 103 of 1996 is satisfied in relation to Irritable Bowel Syndrome.
55. In each case there is a reasonable hypothesis that the claimed condition was caused by the applicant’s operational service.
56. In the light of the evidence of the applicant, Mr Weeks and Mr Conant, which I accept as being honestly given and to which I should give appropriate weight bearing in mind the evidence relates to events that occurred more than 30 years ago, I cannot be satisfied that there is no sufficient ground for finding that the claimed conditions are war-caused.
57. The relevant parts of the decision under review will be set aside. There will be a decision that the claimed conditions are war-caused with effect from 1 June 1999.
58. The matter will be remitted to the respondent Commission for assessment of pension.
I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDate of Hearing 11 March 2004
Date of Decision 12 October 2004
Counsel for the Applicant Mr R Clutterbuck
Solicitor for the Applicant Streeting Haney
Counsel for the Respondent Ms H Bowskill
Solicitor for the Respondent Australian Government Solicitor
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