Beryl Hodgson and Repatriation Commission

[2015] AATA 315

[2015] AATA 315  

Division	Veterans' Appeals Division
File Number(s)	2013/6733
Re	Beryl Hodgson
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	11 May 2015
Place	Sydney

The decision of the Veterans’ Review Board, made 18 October 2013, that the death of the late Alexander Hodgson was not war-caused, is set aside.

In substitution for the decision set aside, it is decided that the death of Mr Hodgson, on 8 November 2009, was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

............................[sgd]............................................

Deputy President J W Constance

Catchwords

VETERANS – widow’s pension – whether death of the veteran was war-caused – death from ischaemic heart disease – whether material raises reasonable hypothesis connecting death with service - hypothesis that anxiety disorder resulting from war service caused major depression which caused ischaemic heart disease – decision set aside and substituted

Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 8(1), 9(1), 120, 120A(3)

Cases

Onorato v Repatriation Commission [2011] FCA 1507.

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gosewinckel [1999] FCA 1273

Secondary Materials

Repatriation Medical Authority, Statement of Principles concerning Anxiety Disorder, No. 102 of 2014

Repatriation Medical Authority, Statement of Principles concerning Depressive Disorder, No. 27 of 2008

Repatriation Medical Authority, Statement of Principles concerning Ischaemic Heart Disease, No. 89 of 2007

REASONS FOR DECISION

Deputy President J W Constance

INTRODUCTION

1. Mrs Hodgson is the widow of the late Mr Hodgson who served in the Australian Army during the Second World War. 

2. Mrs Hodgson has applied for a pension under the Veterans’ Entitlements Act 1986 (Cth). Her application was refused by the Commission on the ground that the death of her late husband was not war-caused. Mrs Hodgson has applied to this Tribunal for a review of that decision.

3. Mrs Hodgson argues that the cause of Mr Hodgson’s death was ischaemic heart disease which was contributed to by his having major depression since, at the latest, 1986. She argues further that the depression was contributed to by an anxiety disorder he suffered as a result of stressors to which he was exposed during his operational service in the Australian Army during World War II.

4. For the reasons which follow, the decision under review will be set aside and in substitution it will be decided that Mr Hodgson’s death was war-caused.

   MATERIAL BEFORE THE TRIBUNAL

   Mr Hodgson’s service records[1] 

   [1] Exhibit R1 pp.4-6.

5. Mr Hodgson was born in 1924.  He enlisted in the Australian Army on 16 July 1943 and served until his discharge on account of demobilization on 24 December 1946. He served in New Guinea from 9 December 1944 until 27 May 1946.  Initially, Mr Hodgson was posted to Bougainville. He was transferred to Rabaul shortly after the surrender of the Japanese forces.

   Writeway Research Service Pty Ltd report

6. This report,[2] dated 13 March 2014, was prepared by Major Ian Hawke, an experienced researcher into military matters.

   [2] Exhibit A5.

7. Major Hawke reported, in part:

   At the time the Veteran was redeployed to Rabaul from Bougainville the Japanese army had surrendered and the major task was assembling them and shipping Allied and Japanese troops home for demobilisation. During this period there was an ongoing engineering work load to provide water, roads and accommodation facilities. In addition surrendered Japanese soldiers had to be guarded, about 96,000 Japanese were assembled in Rabaul (out of a total of about 150,000 in the Australian area of responsibility).

   Rabaul was a major centre for the War Crimes Tribunals. Australian military courts conducted 310 trials, the first of which commenced on 30 November 1945 and the last of which concluded on 9 April 1951. … One hundred and eighty six (186) trials were conducted in Rabaul which took place over three periods: 12 December 1945 – 31 July 1946; 7 December 1946 – 23 January 1947 and 3 April 1947 – 6 August 1947. There were three hundred and ninety (390) accused and two hundred and six(266) were convicted and sentenced. Eighty seven (87) were executed, eighty four (84) by hanging and three (3) by shooting before a firing squad, and the balance of the convicted war criminals were imprisoned for varying periods. More war crimes were conducted in Rabaul by Australian Military Courts than in any other location. The first of these trials were being conducted whilst the Veteran was in Rabaul.

   ……

   The Veteran’s disciplinary record would indicate that he was not “happy in the service”. There are several instances of his “illegal absence” and “absence without leave” and one of “conduct to the prejudice of good order and military discipline”. As minor breaches were often dealt with summarily it could be interpreted that these incidents were noteworthy. This aspect of the Veteran’s service record is consistent with a Category 2 stressor, especially subparagraph (c).

   The likelihood of harm from enemy action was limited – but having so many former enemy soldiers in close proximity would have been a matter of concern whilst at Rabaul. Stress would readily come from ongoing matters which in isolation would be seen as annoyances, but when they persist for months and months the impact accumulates. Included in this category are the weather, the mud, the mosquitoes and various tropical ailments. Being in a very different physical and social environment would have been challenging for a nineteen year old from Newcastle.

8. Mr Hodgson’s military service included 545 days served outside Australia.  He disembarked in Bougainville on 9 December 1944 and embarked to return to Australia on 27 May 1947.

   Newspaper report [3]

   [3] Exhibit A8.

9. A newspaper report of 25 March 1946 (at which time Mr Hodgson was in Rabaul)  stated, in part:

   In less than four weeks of trials for war crimes in the Rabaul area10 Japanese have been sentenced to death, and two of them have already been executed.

   Evidence of Mrs Hodgson, the Applicant [4]

   [4] Statement dated 27/2/2014 and oral evidence given 23/01/2014.

10. Mrs Hodgson first met Mr Hodgson in 1947 just after he returned from service.  They were married in 1951.

11. Mr Hodgson did not talk to Mrs Hodgson about his time in the Army.  She recalls that he worried excessively and that at times “he would go into his shell and sort of sit quietly for a while.”[5] She noticed this happening soon after they were married. Mr Hodgson’s mother told her that “he was never the same after he came home from the war.”[6]

    [5] Exhibit A1 para. 5.

    [6] Exhibit A1 para. 3.

12. Mrs Hodgson describes her husband as having been an irritable person at times.  She recalls him complaining of “tummy trouble.”

    Evidence of Ms Lane

13. Ms Lane is the daughter of Mr and Mrs Hodgson.  She provided a statement dated 1 June 2014[7] and gave evidence.

    [7] Exhibit A2.

14. Ms Lane describes her father as being “a very quiet man” who never wanted to talk about his war service.  He said that he wanted to forget about it.  She was aware that he had some war medals but he never showed them to her.

15. Mr Hodgson was a worrier and lacked self-confidence.  He would become withdrawn and isolate himself by spending time in his garden.  His habit of excessive worrying was particularly noticeable in the 12 months before his death.

    Evidence of Ms Meehan

16. Ms Meehan is the youngest child of Mr and Mrs Hodgson.  She provided a statement dated 4 June 2014[8] and gave evidence.

    [8] Exhibit A3.

17. Ms Meehan recalls her father as being gentle and kind, but very reclusive.  She described him as “a restless soul.”  He spent a lot of time in his garden by himself.  He was always very worried.

18. He had a lot of problems with stomach pains but, so far as Ms Meehan is aware, the cause of these pains was never determined.

    Evidence of Mr Ian Hodgson

19. Mr Ian Hodgson is the son of Mr and Mrs Hodgson.  He provided a statement dated 1 June 2014.[9]

    [9] Exhibit A6.

20. Mr Hodgson also was of the view that his father did not wish to talk about his war experiences.  He recalls that he was quite anxious and seemed to be always stressed.

    Army and Departmental records

    Medical Examination Prior to Discharge[10]

    [10] Exhibit R1 p.3.

21. This examination took place on 26 November 1946.  The form was signed by Mr Hodgson and the Medical Officer.  The only condition recorded as having been suffered by Mr Hodgson during his service was malaria.  He answered “no” to the question “Do you suffer from any other ailments of any kind?”

    Departmental H file [11]

    [11] Exhibit A7.

22. On 19 December 1974, Dr De Coek, Physician, reported that Mr Hodgson suffered nerves of stomach, burping in stomach and pains in chest.  Mr Hodgson stated that these nerves had been present from the time of his discharge from the Army.  On 17 February the following year, Dr De Coek reported that Mr Hodgson suffered functional dyspepsia.

23. On 19 December 1974, Dr Gatenby, Psychiatrist, reported that Mr Hodgson experienced a shaking feeling in his stomach on occasions, such as when attending interviews with doctors, if he became angry with his children at home, or if he had an argument at work. Dr Gatenby went on to record that Mr Hodgson “does get diarrhoea episodes at times which may be related to emotional upsets”.

24. At the time, Dr Gatenby’s diagnosis was that there was no psychiatric disorder. Dr Gatenby did record in his notes that Mr Hodgson had been exposed to shell fire and explosives for several weeks. This note was made in response to a pro-forma request for details of exposure to battle stress. He also recorded that Mr Hodgson “attributes his nervous trouble to overseas service exposure to shell fire”.

25. Medical History Sheet dated 19 December 1974

26. In this record held by the repatriation Department, Dr Callum noted that Mr Hodgson said that “he had been nervy since his discharge from the Army.”[12]

    [12]  Exhibit R1 p.13.

    Medical Assessment 1975[13]

    [13] Exhibit R1 pp.16-19

27. Army medical records include an assessment of Mr Hodgson’s medical condition made by Dr Olroyd and dated 3 April 1975.  At the conclusion of the document, Dr Olroyd noted that he had studied Mr Hodgson’s records but had not examined him.

28. The following appears in the report of Dr Olroyd:

    His genetic makeup and personality problems were certainly present p.t.e. [prior to enlistment] and in D1, 14.1.43 he declared a history of “stomach trouble”, but there was no elaboration.

    To the stresses of combat, he would be expected to react as does everyone else, by “stomach butterflies” or “stomach knots”, particularly if he had this type of genetic makeup that would give him Functional Dyspepsia later in life; but, it was not functional dyspepsia on service that he experienced, but a normal temporary, physiological response to a combat situation that would remit when the danger was passed.[14]

    [14] Exhibit R1 p.19.

29. Dr Olroyd also noted that Mr Hodgson was subjected to the noise of artillery fire while on service.[15]

    [15] Exhibit R1 p.17.

    Report of Dr Moffitt, Physician[16]

    [16] Exhibit R1 p.20.

30. In a report dated 11 February 1975, Dr Moffitt reported that Mr Hodgson was admitted to hospital after suffering severe chest pain.  No abnormality was detected on examination.

    Lingard Hospital records[17]

    [17] Exhibit R1 pp.27-41.

31. On 28 November 1986, Mr Hodgson was admitted to hospital following an attempted suicide.  He was diagnosed as suffering major depression.  He remained an inpatient until 12 December 1986.

32. The records note that Mr Hodgson was “always an anxious man”.[18]

    [18] Exhibit R1 p.35.

    Toronto Private Hospital records [19]

    [19] Exhibit A10.

33. These records show that Mr Hodgson was an inpatient from 16 May 2007 to 12 June 2007. The reason for admission was rehabilitation after undergoing a cardiac angiogram.  A report by Dr Widdup refers to Mr Hodgson having been diagnosed as having distal vessel disease.

    Multidisciplinary Patient Assessment

34. A multidisciplinary patient assessment form completed in May 2009 in respect of Mr Hodgson recorded a history of stroke in 2000.[20]

    [20] Exhibit R1 p.76.

    Evidence of Dr Dinnen, Consultant Psychiatrist

35. Dr Dinnen considered the documents available.  He provided a report dated 14 July 2014 and gave evidence.

36. In the opinion of Dr Dinnen, the records indicate that Mr Hodgson suffered major depression in 1986 and that prior to 1986 he suffered an anxiety disorder from the time of his service in Rabaul and Bougainville. In his view there was no doubt that on clinical assessment Mr Hodgson was suffering from the condition defined as unspecified anxiety disorder from the time of his service. This is consistent with the symptoms described by Dr Gatenby, the reference to Mr Hodgson never being the same after his return from the war (the statement by Mr Hodgson’s mother) and the disciplinary problems during service (the Writeway report).

37. Dr Dinnen also expressed the opinion that Mr Hodgson suffered the depressive disorder for at least five years before the clinical onset of ischaemic heart disease.[21]

    [21] Exhibit A4 p.6.

    Evidence of Dr Synnott, Consultant Psychiatrist

38. Dr Synnott also considered the documents available.  He provided a report dated 25 June 2014[22] and gave evidence.

    [22] Exhibit R2.

39. In the opinion of Dr Synnott “[on] the information available, there is insufficient evidence to suggest that Mr Hodgson had a clinically significant anxiety disorder prior to developing the depressive disorder which was diagnosed in 1986.”[23] The evidence that Mr Hodgson had a tendency to anxiety and worry indicates a particular personality style rather than a specific psychiatric condition.  Dr Synnott agreed that the opinion expressed by Dr Dinnen as to the onset of anxiety disorder was reasonable, although not one shared by him.

    LEGISLATION

    [23] Exhibit R2 p.2.

    War-caused death and war-caused injury

40. Subsection 8(1) of the Act relevantly provides that a veteran’s death is taken to be a war-caused if:

    (a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service; [or]

    (b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

41. Section 9 sets out the circumstances in which an injury is taken to be “war-caused”.The relevant parts of that section are:

    9       War-caused injuries or diseases

    (1)Subject to this section and section 9A, 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.

    Standard of proof

42. Section 120 relevantly provides:

    120     Standard 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.

    (4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

    …

    (6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

    (a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

    (b)the Commonwealth, the Department or any other person in relation to such a claim or application;

    any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

    Reasonable hypothesis and a Statement of Principles

43. Subsection 120A(3) provides:

    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.

    APPLYING THE LAW

44. In Repatriation Commission v Deledio[24] the Full Court of the  Federal Court set out the steps to be taken in determining claims which arise from operational service such as this:

    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 a SoP [Statement of Principles] 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 a 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.

    [24] (1998) 83 FCR 82, 97-98.

1. In Onorato v Repatriation Commission,[25] the Federal Court (Katzmann J) considered how the Deledio principles are to be applied in respect of a claim by a dependant of a deceased veteran when it is alleged that the veteran’s death was linked to eligible service by more than one medical condition.

   [25] [2011] FCA 1507.

2. Mrs Onorato’s case was based on the hypothesis that “her late husband suffered an anxiety disorder resulting from his war service, and the anxiety disorder caused the hypertension which, in turn, caused the ischaemic heart disease that caused his death.”[26]  This is a very similar hypothesis to that relied on by Mrs Hodgson, save that Mrs Hodgson alleges that the anxiety disorder caused major depression, rather than hypertension. When it determined Mrs Onorato’s claim, this Tribunal decided that, before considering whether any condition suffered by the deceased veteran was related to his war service, it had to determine whether he suffered an anxiety disorder. The Tribunal determined that, in so doing, it was required to apply the standard of reasonable satisfaction in accordance with subsection 120(4) of the Act. The Tribunal went on to hold that it was only once this decision with respect to the anxiety disorder was made that the principles set out in Deledio were to be applied.

   [26] At para.10.

3. Katzmann J said that:

   [The Commission’s] submission was that where, as here, the supposed cause of the hypertension was another disease, whether or not that disease existed was to be determined on the balance of probabilities. In my opinion the distinction is artificial, unjustifiable, and contrary to the decision in [Collins v Administrative Appeals Tribunal (2007) 163 FCR 35].

   …

   ... Here, the only antecedent questions to be established to the tribunal’s reasonable satisfaction according to s 120(4) were:

   (a)        whether Mr Onorato was dead;

   (b)         whether he died from ischaemic heart disease;

   (c) whether Mrs Onorato was dependent on him at the time of his death; and

   (d)         whether he had engaged in operational service.

   As Mrs Onorato argued, once those questions were resolved, the Deledio process began.

4. The matters referred to in sub paragraphs (a), (c) and (d) above were not in issue in Mrs Onorato’s claim.  The Court went on to say:

   In this case – a claim by a dependant of a deceased veteran – the condition for the operation of s 120(1) is the death of the veteran. Once the tribunal determined to its reasonable satisfaction in accordance with subs (4) the kind of death the veteran suffered (here, ischaemic heart disease), the subsection was exhausted.[27]

   [27] At para 42.

   ISSUES FOR DETERMINATION

5. I have to determine the following issues:

   1)Did Mr Hodgson render “operational service” and if so, when?

   2)What was the “kind of death” met by Mr Hodgson?

   3)Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

   4)If such a hypothesis is raised, is there a relevant Statement of Principles in force?

   5)If a relevant Statement of Principles is in force, is the hypothesis consistent with the “template” within that Statement?

   6)If so, am I satisfied beyond a reasonable doubt that the death of the late Mr Hodgson was not war-caused?

   DETERMINATION OF THE ISSUES

   Issue 1:  Did Mr Hodgson render operational service and if so, when?

6. On the basis of Mr Hodgson’s service records, I am satisfied that he rendered operational service in the period 16 July 1944 until 6 December 1946.  This is not in dispute. 

   Issue 2:  What was the kind of death met by Mr Hodgson?

7. The death certificate records “atherosclerosis, cerebrovascular disease, years” as a cause of Mr Hodgson’s death.[28]  Clause 3(b) of the Statement of Principles provides:

   For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.

   [28] Exhibit R1 p.53.

8. I am satisfied on the balance of probabilities that the kind of death suffered by Mr Hodgson was death from ischaemic heart disease.  This is not in dispute.

   Issue 3:  Considering all the material before the Tribunal, does it point to a hypothesis connecting the death with the circumstances of the operational service?

9. It is put on behalf of Mrs Hodgson that the material before me points to the following hypothesis:

   … during the veteran‘s service he was exposed to stressors which caused or contributed to the development of an anxiety disorder which caused or contributed to the development of major depression which directly contributed to the development of ischaemic heart disease.[29]

   [29] Applicant’s Opening Submissions.

10. The hypothesis under consideration must go beyond one that is merely left open on the material before me.  It must be a hypothesis which is pointed to, or supported by, the material.

11. Having considered all of the material, I determine that it does point to the hypothesis put forward connecting Mr Hodgson’s death to his operational service.

12. The notes of Dr Gatenby point to Mr Hodgson being exposed to shellfire for several weeks in Bougainville.  The Writeway Research Services report points to his having been in close proximity to Japanese and other forces in Rabaul at the time of war trials and the subsequent executions of some prisoners.  The same report also points to Mr Hodgson experiencing various stressful incidents associated with war in a tropical environment.

13. The evidence of Dr Dinnen points to these experiences of Mr Hodgson while on operational service causing him to suffer an anxiety disorder from the time of his service.  Further, Dr Dinnen’s evidence points to Mr Hodgson suffering a major depressive disorder as a result of his suffering the anxiety disorder for many years. 

14. There is evidence which points to there being no connection between Mr Hodgson’s operational service and his death from ischaemic heart disease.  Significantly, the evidence of Dr Synnott that the Applicant did not suffer an anxiety disorder. However, at this point of consideration, fact-finding by way of the evaluation of competing views and the evidence on which they are based is not permissible. Considering all the material before me, there remains sufficient evidence to point to the hypothesis put forward.  This is not a case in which it could be said that the proposed hypothesis is merely left open. 

    Issue 5:  Is there a relevant Statement of Principles in force?

15. As the hypothesis links three medical conditions it is necessary to consider whether there is a Statement of Principles in force for each of those conditions.[30]

    [30] McKenna v Repatriation Commission (1996) 86 FCR 144, 151-152.

16. I am satisfied that there are three relevant Statements of Principles in force being the Statement of Principles No. 89 of 2007 as amended concerning Ischaemic Heart Disease, the Statement of Principles No. 27 of 2008 as amended concerning Depressive Disorder and Statement of Principles No.102 of 2014 concerning Anxiety Disorder. 

    Issue 5:  Is the hypothesis consistent with the “template” within each of the Statements of Principles?

    Statement of Principles concerning Ischaemic Heart Disease

17. Clause 4 of the Statement of Principles concerning Ischaemic Heart Disease provides, in part:

    4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that …… death from ischaemic heart disease can be related to relevant service rendered by veterans …….

18. Clause 5 provides:

    5.        Subject to clause 7, at least one of the factors set out in clause 6 must be related                 to the relevant service rendered by the person.

19. Clause 6 provides in part:

    6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting …… death from ischaemic heart disease with the circumstances of a person’s relevant service is:

    ...

    (o)having clinically significant depressive disorder for at least five years, before the clinical onset of ischaemic heart disease.

20. In Lees v Repatriation Commission,[31] the Full Court of the Federal Court held that, in determining clinical onset, the decision-maker cannot depart from the definition of the condition contained in the Statement of Principles.  In Kaluza v Repatriation Commission,[32] the Court held that clinical onset occurs either when symptoms can be identified which permit a doctor to say that the condition was present at that time or when a finding is made on investigation when a person attends a doctor.

    [31] [2002] FCAFC 398, at [13-16].

    [32] [2011] FCAFC 97, at [66].

21. In a medical report provided by Mr Hodgson’s General Practitioner and dated 18 March 2013,[33] it is recorded that Mr Hodgson had a history of ischaemic heart disease.  The Doctor further recorded that the first signs or symptoms of the disease was “Cerebrovascular Disease – CVA 2009 - ? also earlier AMI [acute myocardial infarction] 2002”.  There is also a record in the Multidisciplinary Patient Assessment of Mr Hodgson suffering a stroke in 2000.[34]

    [33] Exhibit R1 p.83-4.

    [34] Exhibit R1 p.76

22. The material referred to above points to the clinical onset of the ischaemic heart disease being no earlier than 2000.

23. The Lingard Hospital records and the opinion of Dr Dinnen points to Mr Hodgson being diagnosed as suffering major depression in 1986 and that he suffered this condition for at least five years.

24. On the basis of the material referred to, the hypothesis is consistent with the template set out in the Statement of Principles concerning Ischaemic Heart Disease.

    Statement of Principles concerning Depressive Disorder

25. Clause 4 of the Statement of Principles concerning Depressive Disorder provides:

    4.        The Repatriation Medical Authority is of the view that there is sound medical-  scientific evidence that indicates that depressive disorder … can be related to   relevant service rendered by veteran …

26. Clause 5 provides:

    5.        Subject to clause 7, at least one of the factors set out in clause 6 must be related                 to the relevant service rendered by the person.

27. Clause 6 provides in part:

    6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder …… with the circumstances of a person’s relevant service is:

    …

    (vii)having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder.

28. In Clause 9 a clinically significant psychiatric condition is defined to mean:

    … any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner.

29. The evidence of Dr Dinnen points to Mr Hodgson’s suffering an anxiety disorder not otherwise specified from the time of his operational service until the onset of major depression in 1986. That evidence and the concern of family members point to an illness sufficiently serious to warrant ongoing management, despite that management not being sought.

30. On the basis of this material the hypothesis proposed by Mrs Hodgson is consistent with the template contained in the Statement of Principles concerning Depressive Disorder.

    Statement of Principles concerning Anxiety Disorder

31. Clause 3 of the Statement of Principles concerning Anxiety Disorder defines “anxiety disorder” to include “unspecified anxiety disorder.”    The clause further provides that:

    “other specified anxiety disorder”  and “unspecified anxiety disorder” are mental disorders (derived from DSM-5) with prominent symptoms of anxiety that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning, however, these anxiety symptoms do not meet the full diagnostic criteria for any of the other anxiety disorders.

    This definition of anxiety disorder excludes the other anxiety disorders: agoraphobia, panic disorder, selective mutism, separation anxiety disorder, social anxiety disorder, specific phobia and substance-induced anxiety disorder.

32. Clause 4 provides:

    4.        The Repatriation Medical Authority is of the view that there is sound medical-  scientific evidence that indicates that anxiety disorder… can be related to                 relevant service rendered by veterans …

33. Clause 5 provides:

    5.        Subject to clause 7, at least one of the factors set out in clause 6 must be related                 to the relevant service rendered by the person.

34. Clause 6  provides in part:

    6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder… with the circumstances of a person’s relevant service is:

    (a)for generalised anxiety disorder other specified anxiety disorder or unspecified anxiety disorder only:

    ……

    (ii)     experiencing a category 1A stressor within the five years before the clinical onset of anxiety disorder; or

    (iii)    experiencing a category 1B stressor within the five years before the clinical onset of anxiety disorder; or

    (iv)    living or working in a hostile or life-threatening environment for a cumulative period of at least four weeks within the five years before the clinical onset of anxiety disorder.

35. A category 1A stressor is defined in clause 9 as:

    ... one of the following severe traumatic events:

    (a) experiencing a life-threatening event;

    (b) being subject to a serious physical attack or assault including rape and

    sexual molestation; or

    (c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;

36. A category 1B stressor is defined in clause 9 as:

    … one of the following severe traumatic events:

    (a)       being an eyewitness to a person being killed or critically injured;

    (b)       viewing corpses or critically injured casualties as an eyewitness;

    (c)       being an eyewitness to atrocities inflicted on another person or persons;

    (d)       killing or maiming a person; or

    (e)being an eyewitness to or participating in, the clearance of critically injured casualties.

37. A “hostile or life-threatening environment” is defined in clause 9 to mean:

    … a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:

    (a)   experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;

    (b)   experiencing or being under threat of nuclear, biological or chemical agent attack; or

    (c)    being involved in combat or going on combat patrols.

38. It is argued on behalf of Mrs Hodgson that the material points to the existence of each of the factors set out in subclauses 6(a)(ii), 6(a)(iii) and 6(a)(iv) above.

39. The Respondent argues that these subclauses are not satisfied on account that there is no material pointing to clinical onset of an anxiety disorder within 5 years of the purported stressor or experience of a hostile environment.

40. In particular, the Respondent submits that there is no material pointing to each of the symptoms required by the SoP for it to be said that a generalised anxiety disorder was present. As noted by the Federal Court in Repatriation Commission v Gosewinckel,[35] referring to the SoP relating to generalised anxiety disorder:

    Unless the symptoms [referred to in the SoP] are all present... it cannot be said, consistent with the medical-scientific standard prescribed by the SoP, that generalised anxiety was present.

    [35] [1999] FCA 1273, at para 64.

41. I agree with the Respondent in this regard. Dr Dinnen himself conceded that there was not material pointing to a diagnosis of generalised anxiety disorder within the 5 years of the cessation of Mr Hodgson’s operational service.

42. The question, however, is whether there is material pointing to the clinical onset of an ‘unspecified anxiety disorder’ within the 5 years after the purported stressors or hostile environment.

43. The evidence of Dr Dinnen points to the clinical onset of an unspecified anxiety disorder being during the time of Mr Hodgson’s service in Bougainville and Rabaul i.e.  no later than 27 May 1946. Mrs Hodgson’s evidence was that Mr Hodgson’s family described him as never the same after the war; after the war he was “forever on edge”. In addition, medical records reveal that Mr Hodgson had been “nervy since discharge”, and that he himself traced his nervous troubles back to the experience of shelling during his service.

44. The evidence points to the clinical onset of an unspecified anxiety disorder during the time of Mr Hodgson’s service in Bouganville and Rabaul. In the opinion of Dr Dinnen, Mr Hodgson suffered prominent symptoms of anxiety that caused clinically significant distress or impairment in social functioning.  He based his opinion on the history of the condition, the observations of the family and the likelihood of the condition becoming entrenched.

45. I do not accept Mrs Hodgson’s argument that the material points to Mr Hodgson experiencing either a category 1A or a category 1B stressor.  The material does not point to any of the specified events.  However the evidence does point to his having lived and worked in a hostile and life-threatening environment for at least four weeks during the time of his service in New Guinea.  The material points to the whole of that service being within five years before the clinical onset of anxiety disorder.

46. The Writeway Research Service report points to Mr Hodgson serving in Bouganville from 9 December 1944 until 23 September 1945. The report of Dr Gatenby points to Mr Hodgson being exposed to “shell fire and explosives for several weeks.” The assessment of Dr Olroyd also refers to his being exposed to artillery fire.

47. The Writeway Research Services report also points to Mr Hodgson living and working in a hostile and life-threatening environment, guarding prisoners of war in Rabaul immediately after the surrender of the Japanese forces.  Playing a role in guarding about 96,000 prisoners points to a situation characterised by a pervasive threat to life or bodily integrity.  The report indicates that Mr Hodgson was in Rabaul from 24 September 1945 until 26 May 1946.

48. I am satisfied that the hypothesis is consistent with the template set out in the Statement of Principles concerning Anxiety Disorder.

    Issue 6:  Am I satisfied beyond a reasonable doubt that the death of Mr Hodgson was not war-caused?

49. Counsel for the Commission did not argue that I could be satisfied beyond a reasonable doubt that the death of Mr Hodgson was not war-caused. Having considered all of the evidence it is clear that I cannot be so satisfied and that the Commission’s position is appropriate.

50. The evidence and reports of the various medical practitioners varies, particularly on the issue of whether Mr Hodgson suffered an anxiety disorder prior to the development of a depressive disorder.  Giving due weight to the opinions of Dr Synnott and others, I still cannot be satisfied beyond a reasonable doubt that Dr Dinnen was incorrect in the views he expressed.

    CONCLUSION

51. The decision under review, being the decision of the Veterans’ Review Board made 18 October 2013, will be set aside.

52. In substitution for the decision set aside, it will be decided that the death of the late Alexander Hodgson, on 8 November 2009, was war-caused within the meaning of the Veterans’ Entitlement Act 1986 (Cth).

I certify that the preceding 96 (ninety -six) paragraphs are a true copy of the reasons for the decision herein of

.........................[sgd]...............................................

Associate

Dated 11 May 2015

Date(s) of hearing	23, 27 January 2015
Date final submissions received	27 January 2015
Counsel for the Applicant	T Saunders
Solicitors for the Applicant	Kemp & Co Lawyers
Advocate for the Respondent	K Rudge; Department of Veterans' Affairs