Bachelor and Repatriation Commission
[2006] AATA 615
•11 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 615
ADMINISTRATIVE APPEALS TRIBUNAL №V2005/95
VETERANS’ APPEALS DIVISION
Re: DAVID WILLIAM BACHELOR
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr C. Ermert, Member
Date:11 July 2006
Place:Melbourne
Decision:The decision under review is affirmed.
(sgd) C. Ermert
Member
VETERANS’ AFFAIRS ‑ veterans’ entitlements ‑ operational service ‑ alcohol abuse – epilepsy ‑ war‑caused ‑ statement of principles
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196A, 196B
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564Deledio v Repatriation Commission (1997) 47 ALD 261
Guy v Repatriation Commission [2005] FCA 562
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193
Repatriation Commission v Gorton [2001] FCA 1194
Slattery and Repatriation Commission (1998) 52 ALD 90
REASONS FOR DECISION
11 July 2006 Mr C. Ermert, Member
INTRODUCTION
1. Mr Bachelor enlisted in the Australian Army (the Army) in 1968. After his recruit training he was trained as a canteen attendant. He was subsequently posted as a canteen attendant to the Bonegilla Army base, where he started drinking heavily. Mr Bachelor served in South Vietnam from 17 March 1970 to 25 March 1971. His duties in Vietnam were a continuation of those at Bonegilla, namely issuing supplies from canteen stores and serving drinks in Other Ranks’ canteens. He continued his heavy drinking throughout his time in Vietnam.
2. On Christmas Day 1970, while at the Australian Task Force base at Nui Dat, Mr Bachelor heard three shots fired from within the area of his tent lines. He rolled off his bunk, took hold of his rifle and crawled outside his tent. After a few minutes he stood up, went back to his bunk and went to sleep. The next morning he found out that the shots he heard were from an incident in which an Australian soldier, Private Ferriday, shot three Australian sergeants in the nearby Sergeants’ Mess. Two of the sergeants died and the third was seriously wounded (the Ferriday shooting incident).
3. In January 1971, while still serving in Vietnam, Mr Bachelor suffered a fit which was subsequently diagnosed as an epileptic fit. In later years he suffered further fits which confirmed the diagnosis of epilepsy.
4. Mr Bachelor suffers from long term alcohol abuse and epilepsy. He claims that his alcohol abuse is causally related to the Ferriday shooting incident. He further claims that his epilepsy, linked to his alcohol abuse, is also related to the the Ferriday shooting incident and that both conditions are therefore war‑caused.
5. This matter arises from a determination by the Repatriation Commission dated 30 April 2001 that Mr Bachelor’s epilepsy, post traumatic stress disorder and psychoactive substance abuse or dependence involving alcohol were not war‑caused diseases. The applicant applied to the Veterans’ Review Board for a review of the decision. On 27 October 2004 the Board affirmed the decision. This application is for a review of the Board’s decision.
THE ISSUES
6. At the commencement of the hearing the issues to be determined by the Tribunal were:
·What are the diagnosed conditions from which the veteran suffers;
·Are those conditions war-caused, and if so;
·What degree of impairment is attributable to those conditions; and
·What rate of pension, if any, is payable to the veteran.
7. At the commencement of the hearing the conditions claimed were:
·post traumatic stress disorder (PTSD);
·alcohol dependence or alcohol abuse; and
·epilepsy.
8. During the hearing Mr De Marchi, the solicitor for the applicant, withdrew the claim for PTSD. Mr Rudge, the advocate for the respondent, accepted that the diagnosis of Mr Bachelor’s psychiatric condition is alcohol abuse and that he also suffers from the condition of epilepsy.
9. It was agreed between the parties that should the Tribunal find that the claimed conditions were war-caused the matter should be referred back to the Department of Veterans Affairs for assessment of impairment and pension. Therefore, the issue remaining to be determined in this matter is whether Mr Bachelor’s alcohol abuse and epilepsy are war‑caused.
LEGISLATIVE FRAMEWORK
10. The question of whether an injury or disease is taken to be war‑caused is covered in s 9 of the Veterans’ Entitlements Act 1986 (“the Act”). This section relevantly provides as follows:
9 War-caused injuries or diseases
(1)Subject to this section, … for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
11. The expression “operational service” is defined in ss 6 to 6F of the Act. Under s 6C, a person renders operational service if he or she is allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the Act. This Schedule includes, in Item 8 of Column 1, the Vietnam (Southern Zone) from and including 31 July 1962 to and including 11 January 1973.
12. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
13. It is not in dispute that Mr Bachelor has performed operational service. The determination of whether his conditions of alcohol dependence or alcohol abuse and epilepsy are war‑caused is to be determined by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:
120Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death 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 or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
Note: This subsection is affected by section 120A.
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, 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; or
(c)that the death was war-caused or defence-caused;
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.
Note: This subsection is affected by section 120A.
14. Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
(3)For the purposes of subsection 120(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.
Note: See subsection (4) about the application of this subsection.
15. Subsection (4) of s 120A excludes the operation of ss (3) in certain circumstances which are not relevant to the present proceedings.
16. Section 196A of the Act provides for the establishment of the RMA. Section 196B of the Act provides, in effect, that if the RMA is of the view that:
there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.
The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
THE CONSIDERATION PROCESS
17. The conditions of alcohol abuse and epilepsy are the subject of an SoP. Therefore, I must apply the test prescribed by s 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, in the following way:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
ALCOHOL ABUSE
18. I will take each of the claimed conditions in turn, starting with alcohol abuse.
Step 1 – Does the Material Point to a Hypothesis Connecting Alcohol Abuse with Mr Bachelor’s Operational Service?
19. All of the doctors who have examined Mr Bachelor agree that he suffers from alcohol abuse.
20. Mr De Marchi submitted that Mr Bachelor’s condition of alcohol abuse is causally related to the Ferriday shooting incident in 1970. There is evidence that Mr Bachelor was in his tent in the vicinity of the shooting. He gave evidence of hearing the shots, rolling off his bunk, grabbing his rifle and crawling out of his tent where he saw eight or so other people crouching low. He said that he was scared and shocked at the thought that a sergeant whom he had liked and regarded with some esteem had been unnecessarily killed by an Australian soldier. He stated further that not one day has passed during which he does not think of Vietnam. Mr De Marchi submitted that this incident was a severe stressor leading to the onset of alcohol abuse.
21. Although there is material that points to Mr Bachelor experiencing the shooting incident, there is no material that connects Mr Bachelor’s alcohol abuse to this incident. In his evidence Mr Bachelor stated that he was not a drinker when he joined the Army at the age of 18. He went to Kapooka for his initial training. It was while he was on leave from Kapooka that he had his first drink with his father. After his time at Kapooka, Mr Bachelor underwent further training as a canteen attendant. Then in December 1968 he was posted to Bonegilla where he worked in the canteen, including serving alcoholic drinks. Mr Bachelor said that he became a heavy drinker after he first became a canteen attendant because of peer pressure and because there was not much else to do. He was drinking at least a dozen cans of beer a day before going to Vietnam.
22. On being posted to Vietnam Mr Bachelor served for the first eight months as an attendant at a canteen at Vung Tau. In answer to a question from Mr De Marchi about changes in his drinking in Vietnam, Mr Bachelor replied “Didn’t change”. When questioned again by Mr De Marchi he added (transcript p.15):
In fact, I think it got a little bit worse over there.
Mr De Marchi: … Can you tell why it got worse? – Well, it is hard to say why it got worse because you are in a place where you can’t move and you are not going to – well, you get nervous at certain things and while you are working in the canteen you seem to drink a little bit more.
Mr De Marchi: … When you say “a little bit more” can you give an example of, you know, you were serving in the canteen --- ? --- Well, the theory was for that, it was … two for me and one for you.
Mr Bachelor went on to say that he continued his drinking for the whole time he was in Vietnam, and that beer was readily available and cheap.
23. For the final four months of his Vietnam service Mr Bachelor was posted as an attendant in an Other Ranks canteen in the Australian operational base at Nui Dat. His duties still included serving alcohol and his rate of drinking continued unchanged. It was during this period of his service that the Ferriday shooting incident occurred.
24. Mr Bachelor’s oral evidence in regard to his drinking is supported by his answers in the Alcohol Questionnaire, dated 6 November 1997, that Mr Bachelor completed for the respondent and in which he states that he began drinking after enlistment in the Army because of “peer pressure, socialising in canteen, worked in canteen”. He said he drank “every type at every opportunity” and on “most occasions - to a stupor”. His alcohol consumption changed “when in hospital” where it was “reduced due to cost, health”.
25. Mr Bachelor gave a similar history to Dr Strauss, a consultant and occupational psychiatrist, who recorded in his report dated 17 August 2005 (Exhibit A1) that “he said he became a heavy drinker after he joined the army because that was normal procedure and practice”. Mr Bachelor did not disagree with this account when asked about it in cross examination by Mr Rudge. Dr Strauss also stated “I suspect that this man was a heavy drinker by the time he arrived in Vietnam but he was non-specific about when his alcohol consumption increased but he did state that it occurred while he was in the Army”.
26. Mr De Marchi submitted that Mr Bachelor increased his alcohol consumption in Vietnam, although he acknowledged that Mr Bachelor only gave that evidence after he was questioned in more detail on the subject. That statement does not alter Mr Bachelor’s earlier evidence that he was a drinking a dozen cans of beer a day before going to Vietnam and his acceptance of Dr Strauss’s report that he became a heavy drinker after he joined the army because that was normal procedure and practice.
27. The material before me points to Mr Bachelor’s alcohol abuse starting after joining the Army and being posted to canteen attendant duties. This occurred in Australia and prior to his operational service in Vietnam. If there was a change in his drinking it occurred after Mr Bachelor’s arrival in Vietnam, some eight months before the Ferriday incident. There is no material that points to a causal or temporal connection between his alcohol abuse and the incident.
28. There is no material before me that points to the hypothesis that Mr Bachelor’s alcohol abuse is connected with the Ferriday shooting incident. As a consequence the hypothesis must fail at this point.
29. For completeness I will continue the consideration of the claim against the requirements of any SoPs that may be relevant.
Step 2 – Is There in Force an SoP?
30. Both parties agreed that the relevant SoP in force for alcohol dependence or alcohol abuse is Instrument N° 76 of 1998.
Step 3 – Does the Hypothesis Fit the Template of Instrument N°76 of 1998?
31. The relevant sections of Instrument N° 76 of 1998 are:
“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.
….
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting … alcohol abuse with the circumstances of a person’s relevant service are:
…
(b)experiencing a severe stressor within the two years immediately before the clinical onset of … alcohol abuse; or
…
(e)inability to obtain appropriate clinical management for … alcohol abuse.
Other Definitions
8.For the purposes of this Statement of Principles:
…
“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
32. As I have said earlier, it is not in dispute that Mr Bachelor is suffering from alcohol abuse. I will examine the circumstances relating to each of the relevant factors, 5(b) and 5(e).
Factor 5(b)
33. This factor contains two elements which need to be considered. The first is “experiencing a severe stressor” and the second is “within the two years immediately before the clinical onset of … alcohol abuse”. I will consider each element in turn.
Experiencing a Severe Stressor
34. “Experiencing a severe stressor” is defined in the SoP as:
the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.
35. In considering the meanings of “experienced”, “witnessed” and “confronted” I had regard to the Tribunal’s decision in Slattery and Repatriation Commission (1998) 52 ALD 90. At page 91 of the decision the Tribunal said:
… the word “witnessed” suggests that the person was present at the event involving real or present (ie actual) or threatened death, and “experienced” suggests that the person observed or encountered such an event, and the word “confronted” that he or she was faced with such an event…
36. There is no suggestion that Mr Bachelor was present at or witnessed the shooting. The question remaining is whether he encountered or was faced with the event. The evidence is that Mr Bachelor heard the shots fired and that the proximity of the sound was sufficient to make him react by reaching for his rifle and rolling off his bunk on to the floor of the tent. Even though he did not know at the time exactly what had happened, the sound of shots in the general area of the tent lines was sufficient for him to react for his immediate safety. Under these circumstances it could be said that Mr Bachelor did encounter or was faced with the event, being the Ferriday shooting.
37. The next element of the definition of “severe stressor” is that it “involved actual or threat of death or serious injury”. The Ferriday shooting resulted in the death of two sergeants and the serious wounding of a third. This element is clearly satisfied.
38. The last element is that the stressor “might evoke intense fear, helplessness or horror”. In considering this element I had regard to the findings of Tamberlin J in the Federal Court decision in Guy v Repatriation Commission [2005] FCA 562 in which he said:
19. … The Tribunal, in my view, in reaching its conclusion that the veteran had not experienced a severe stressor because there was only “an anxious moment” was applying the wrong test. Rather than asking whether the incident was of a type which might, as the Tribunal found, evoke the relevant emotions, the Tribunal asked whether the incident did evoke these emotions. Hence the reference to the incident being only “an anxious moment.”
20. The correct approach to take is to ask whether the event might, or could possibly, evoke the relevant emotions…
39. The evidence presented during the hearing concentrated only on the issue of whether the incident did or did not evoke the emotions of intense fear, helplessness or horror in the applicant. Nevertheless, rifle shots are, by the very nature of lethal weapons, associated with death or serious injury. I find it quite conceivable that the sound of rifle shots coming from the near vicinity of one’s tent lines might well evoke strong emotions such as intense fear, helplessness or horror. Whether the event did evoke such emotions is not for consideration at this stage of the process.
Within the Two Years Immediately Before the Clinical Onset of Alcohol Abuse
40. In considering this element of factor 5(b) it is necessary to establish the clinical onset of Mr Bachelor’s alcohol abuse.
41. As discussed in paragraphs 21 to 28 above, the material points to Mr Bachelor’s alcohol abuse commencing in Australia while he was posted as a canteen attendant at Bonegilla. That is, the material points to the clinical onset of his alcohol abuse occurring prior to his service in Vietnam, with his pattern of heavy drinking continuing from the time he arrived in Vietnam.
42. Further, there is no material before me pointing to a change in Mr Bachelor’s drinking pattern after, or as a result of, the Ferriday shooting incident. The only material relating to Mr Bachelor’s drinking and the incident is contained in the report of Dr D’Ortenzio, dated 5 August 1999 (T17), where he records Mr Bachelor saying “after [the event] he and the others in the camp went out and became very drunk that evening”. That history was challenged by Mr Rudge, but in any case it does not indicate a change in Mr Bachelor’s drinking habits. It points to one particular drinking episode with no evidence of any change to Mr Bachelor’s well-established pattern of drinking.
43. In concluding the consideration of factor 5(b), the material points to the onset of Mr Bachelor’s alcohol abuse occurring prior to the commencement of his service in Vietnam. Although there is material that points to the possibility of Mr Bachelor experiencing a severe stressor as defined in the SoP there is no material that points to the stressor occurring before the clinical onset of his alcohol abuse. Without such material factor 5(b) can not be met.
Factor 5(e) – Inability to Obtain Appropriate Clinical Management
44. In his written final submissions Mr De Marchi refers to a statement by Dr Strauss in his written report (Exhibit A1) “I believe that this man has manifested an inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse”. Mr De Marchi adduced no further evidence on this issue. When questioned by Mr Rudge regarding his statement, Dr Strauss said (transcript p. 57):
Well, he drank heavily I think for many years and didn’t really … seek treatment, and it seems to me that the only thing that slowed him down if you like, is the acute pancreatitis …
When asked whether Mr Bachelor perceived that he had a problem with alcohol Dr Strauss responded (transcript p. 58):
Well it is very difficult for me to know whether he considered it to be a problem or not. He did nothing about that problem …
45. Therefore, while there is evidence that Mr Bachelor did not seek treatment for his alcohol dependence or abuse there is no evidence that points to an inability to obtain appropriate clinical management had he sought it. I can find no material pointing to this factor of the SoP and as a consequence this element of the applicant’s claim relating to his condition of alcohol abuse fails at this point of the process.
Instrument N° 5 1994
46. As I have found unfavourably to the applicant in regard to the current SoP, I am obliged by the decision of the Federal Court in Repatriation Commission v Gorton [2001] FCA 1194 (Gorton) to consider the hypothesis in regard to the SoP in force at the date of the Commission’s determination, in this case Instrument N° 5 of 1994 on Psychoactive Substance Abuse or Dependence.
47. This SoP lists the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting psychoactive substance abuse or dependence with the circumstances of a person’s service. Under paragraph 1 of the SoP, the factors that may be relevant are:
Factors
(a)Experiencing a stressful event prior to the clinical onset of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
…
(c)Experiencing a stressful event prior to the clinical worsening of psychoactive substance abuse or dependence, and maintaining the abuse or dependence post-service; or
…
(e)Inability to obtain appropriate clinical management for psychoactive substance abuse or dependence.
Definitions
4. For the purposes of this Statement of Principles:
“stressful event” means an incident in which there were external stimuli (such as combat) that would result in psychological stress, and where there were subjective symptoms of increased stress.
48. Mr De Marchi did not rely on this SoP and presented no evidence in relation to it. Mr De Marchi concentrated only on Instrument N° 76 of 1998 which does not require symptoms of psychological stress and requires only the experiencing, witnessing or being confronted with an event.
49. Even accepting that the Ferriday shooting constitutes a “stressful event”, there remains the difficulty that the event must occur prior to the clinical onset of the substance abuse. As discussed in relation to Instrument N° 76 of 1998, there is no material that points to the Ferriday shooting incident occurring before the clinical onset of Mr Bachelor’s substance abuse. Indeed the material points to the onset occurring prior to his service in Vietnam.
50. In regard to factor 1(e), and as discussed earlier, there is no material pointing to an inability for Mr Bachelor to obtain appropriate clinical management for his substance abuse.
51. Accordingly there is no material that points to the satisfaction of any of the factors in Instrument N° 5 of 1994. Therefore, a claim in relation to the condition of alcohol abuse relying on this SoP also fails at this point.
EPILEPSY
52. The parties agree that Mr Bachelor suffers from the diagnosed condition of epilepsy. The hypothesis submitted by the applicant is that Mr Bachelor suffered the condition of alcohol abuse at the time of his Vietnam service when he first suffered an epileptic fit and that alcohol abuse is a causative factor in the clinical onset of epilepsy. There is material that points to this hypothesis and so I move on to Step 2 of the Deledio process.
53. There is in force an SoP in relation to epilepsy, that being Instrument N° 49 of 2005. An earlier SoP, Instrument N°79 of 1996, was in force at the time of the Commission’s consideration of the matter. That may be referred to later.
54. Step 3 of the process requires me to consider whether the hypothesis fits the template of the SoP. I will start with the current SoP.
Instrument N° 49 of 2005
55. Instrument N° 49 of 2005 lists several factors, at least one of which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting epilepsy with the circumstances of a person’s relevant service. Two factors may be relevant in this case:
6(k)having alcohol dependence or alcohol abuse at the time of the clinical onset of epilepsy; or
…
6(y)Inability to obtain appropriate clinical management for epilepsy.
56. I will start with factor 6(y).
Factor 6(y) – Inability to Obtain Appropriate Clinical Management
57. Factor 6(y) refers to the inability to obtain appropriate clinical management for epilepsy. It is subject to paragraph 7 of the SoP which states:
Factors that apply only to material contribution or aggravation
7.Paragraphs 6(m) to 6(y) apply only to material contribution to, or aggravation of, epilepsy where the person’s epilepsy was suffered or contracted before or during (but not arising out of) the person’s relevant service.
58. The issues arising from factor 6(y) and paragraph 7 are:
·whether there is material pointing towards an inability to obtain appropriate clinical management, and
·whether there is material pointing towards material contribution or aggravation of epilepsy.
59. In his final submissions Mr Rudge conceded the issue of clinical management when he stated (transcript p. 143):
... the evidence of Dr Chambers, I think, fairly indicates that there was an inability to obtain appropriate clinical management in Vietnam in that there was no EEG available to be given and , yes, he was disadvantaged by being in Vietnam and I think that comes within that phrase.
60. The issue of material contribution or aggravation of Mr Bachelor’s epilepsy was canvassed with Dr Chambers, a neurologist at the Austin Hospital. Dr Chambers stated on page 5 of his written report (Exhibit R2):
Even if he did have epilepsy, the failure to diagnose and treat the condition in 1971 would not impact on the severity of his epilepsy at present.
61. When asked why it would not have impacted on the present severity of the disease, his oral evidence was (transcript p 76):
Because he would always need to be on the medication, so if he came off medication he would have seizures again, so
Mr Rudge: So the underlying disease just remains the same? --- It persists, yes.
62. No other material was presented to point to a material contribution or aggravation of Mr Bachelor’s condition of epilepsy. As a consequence factor 6(y) of Instrument N° 49 of 2005 is not satisfied by the material available to me and this element of the claim fails at this point of the process.
Factor 6(k) – Having Alcohol Abuse at the Clinical Onset of Epilepsy
63. Factor 6(k) refers to having alcohol dependence or alcohol abuse at the time of the clinical onset of epilepsy. In considering this factor it is first necessary to determine the time of clinical onset of epilepsy. In evidence given over the telephone, Dr Chambers agreed that Mr Bachelor’s recorded episode in January 1971 was, more probably than not, an epileptic fit. He went on to point out that a single epileptic fit does not result in a diagnosis of epilepsy. Such a diagnosis would only result from a history of two or more epileptic fits. There is evidence that Mr Bachelor may have suffered further episodes in 1971 and 1981. Dr Chambers agreed that if those episodes had been diagnosed as epileptic seizures then the condition of epilepsy would be diagnosed. On the basis of this evidence, the clinical onset of epilepsy, that is the point at which epilepsy could be reasonably diagnosed, would be either 1971 or 1981.
64. In the earlier consideration of Mr Bachelor’s alcohol abuse, the available material pointed to his suffering from alcohol abuse by the time he went to Vietnam, that is, by March 1970. Therefore, his circumstances could fit the template of factor 6(k) of the SoP regardless of whether the clinical onset was in 1971 or 1981.
65. However, the SoP also contains the following section:
Inclusion of Statements of Principles
8.In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
66. In effect this requires that Mr Bachelor’s alcohol abuse meets the requirements of the SoP dealing with alcohol abuse. As already discussed Mr Bachelor’s alcohol abuse does not meet either of the relevant SoPs.
67. As a consequence, there is no factor of Instrument N° 49 of 2005 that is met by the circumstances in this case and the claim in respect of that SoP fails at this point.
Instrument N° 79 of 1996
68. As I have found unfavourably to the applicant in regard to the current SoP I am obliged by Gorton to consider the hypothesis in regard to the SoP in force at the date of the Commission’s determination, in this case Instrument N° 79 of 1996 concerning epilepsy.
69. Instrument N° 79 of 1996 lists factors, at least one of which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting epilepsy with the circumstances of a person’s relevant service. Two factors may be relevant in this case:
5(a)suffering from psychoactive substance abuse or dependence involving alcohol for at least the five years immediately before the clinical onset of epilepsy; or
…
5(u)Inability to obtain appropriate clinical management for epilepsy.
70. The SoP also includes:
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(k) to 5(u) apply only to material contribution to, or aggravation of, epilepsy where the person’s epilepsy was suffered or contracted before or during (but not arising out of) the person’s relevant service; …
71. Turning first to factor 5(u), the earlier considerations relating to Instrument N° 49 of 2005 are equally applicable here. There is no material before me that points to a material contribution or aggravation of Mr Bachelor’s condition of epilepsy. As a consequence factor 5(u) of Instrument N° 79 of 1996 is not satisfied and this element of the claim fails at this point of the process.
72. Turning next to factor 5(a) the hypothesis is that the onset of epilepsy occurred in Vietnam. This was based on the indication of a possible epileptic seizure suffered by Mr Bachelor while in Vietnam. Mr Rudge submitted that this factor can not be satisfied because there is no evidence that he suffered from psychoactive substance abuse or dependence for five years before 1971. No evidence was led by Mr De Marchi on this issue.
73. I can find no material before me that points to the satisfaction of this factor. As a consequence, there is no factor of Instrument N° 79 of 1996 that is met by the material available to me in this case and the claim in respect of epilepsy relying on SoP fails at this point.
Deledio
The manner in which sub‑sections 120(3) and (4) of the Act inter-relate with the provisions of an SoP was considered by Heerey J in Deledio and his Honour concluded:
Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to provided or known scientific facts,
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. (emphasis added).
74. Both of the claimed conditions of alcohol abuse and epilepsy are the subject of SoPs. In considering all the material available to me I find no material pointing to the factors in the SoP that must exist before it can be said that a reasonable hypothesis has been raised connecting those conditions with Mr Bachelor’s operational service.
75. In the absence of such material the hypothesis is not upheld by the applicable SoP and is therefore not reasonable.
CONCLUSION
76. There is no material pointing towards a connection between Mr Bachelor’s alcohol abuse and the Ferriday shooting incident and hence the hypothesis relating to alcohol abuse can not be said to be reasonable. The further consideration of the alcohol abuse claim through Steps 2 and 3 of the Deledio process found no material that supported the relevant factors in the SoPs. The relevant factors in the applicable SoP relating to epilepsy are also not supported by the material available to me. As a consequence the claims for both conditions must fail.
DECISION
77. The Tribunal affirms the decision under review.
I certify that the seventy‑seven [77] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr C. Ermert, Member
(sgd) Olympia Sarrinikolaou
ClerkDates of Hearing: 30 and 31March 2006
Date of Decision: 11 July 2006
Solicitor for the applicant: Mr D. De Marchi, DeMarchi and Associates
Solicitor for the respondent: Mr K. Rudge, Department of Veterans’ Affairs
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