BORDER and REPATRIATION COMMISSION - [2011] AATA 356

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 356
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3829

VETERANS’ APPEALS DIVISION )

Re ROGER BORDER

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date27 May 2011
PlaceBrisbane

Decision The decision under review is affirmed.

..............Signed..................
Deputy President

CATCHWORDS
DEFENCE & WAR – disability pension – diagnosis of posttraumatic stress disorder – whether events occurred – decision affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13, 120, 120A
Mines v Repatriation Commission [2004] FCA 1331; (2004) 40 AAR 238
Peacock v Repatriation Commission [2007] FCAFC 156; (2007) 161 FCR 256
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION

27 May 2011 Deputy President P E Hack SC

Introduction

Mr Roger Border served in the Australian Regular Army between 1967 and 1987. He undertook “operational service” (as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the Act)) in Vietnam from 13 April 1971 to 28 October 1971. Mr Border says that he suffers from posttraumatic stress disorder which he attributes to his service in Vietnam.
Initially the Repatriation Commission accepted that Mr Border suffered from posttraumatic stress disorder but concluded that it was not attributable to his service in Vietnam. The Commission’s decision of 21 March 2007 was affirmed by the Veterans’ Review Board on 5 June 2008.
Mr Border sought a review of the decision in the Tribunal. In October 2009, at a hearing before the Tribunal, differently constituted, the Commission again accepted that Mr Border suffered from posttraumatic stress disorder; it resisted his claim, successfully,[1] on the basis that the events which Mr Border pointed to as the “stressors” lacked the requisite degree of severity to satisfy the statutory test. That decision was set aside by the Federal Court[2] and the matter remitted “to be reconsidered and determined according to law”.
[1] See Re Border and Repatriation Commission [2009] AATA 924.
[2] Border v Repatriation Commission (No 2) [2010] FCA 1430.
At the outset of the hearing Mr Taylor, counsel for Mr Border, was minded to argue that the rehearing was confined to a consideration only of the factual findings made in the earlier hearing and that evidence could only be called by the Commission in very limited circumstances. When reference was made to Peacock v Repatriation Commission[3] the submission was withdrawn and the hearing proceeded on the basis that the matter was to be heard afresh.
[3] [2007] FCAFC 156; (2007) 161 FCR 256.
Importantly, the Commission made it plain that its earlier concession that Mr Border suffered posttraumatic disorder was no longer made.
The statutory setting
By virtue of s 13(1) of the Act the Commonwealth is liable to pay a pension to a veteran where the veteran has become incapacitated from a war-caused injury or war-caused disease. Section 9(1) of the Act has the effect that an injury or a disease will be taken to be a war caused injury or disease if, relevantly,
“(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.”
Where a claim is made for a pension for an incapacity from injury or disease relating to operational service rendered by a veteran the Repatriation Commission (or the Tribunal in its stead),
“…shall determine that the injury was a war-caused injury, [or] that the disease was a war-caused disease…unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”[4]
And, in making that determination, a decision-maker can be so satisfied if after a consideration of the whole of the material, the decision-maker,
“…is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, [or] disease…with the circumstances of the particular service rendered by the person”.[5]
[4] See s 120(1) of the Act.
[5] See s 120(3) of the Act.
Section 120A(3) of the Act 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.”
The effect of the statutory scheme has been authoritatively held[6] to involve the application of four steps,
1.    a determination whether the material points to an hypothesis connecting the injury or disease with the circumstances of the particular service;
2.    a consideration of whether there is in force an applicable Statement of Principles;
3.    the formation of an opinion whether the hypothesis raised is a reasonable one, that is, whether the hypothesis fits, or is consistent with, the template found in the Statement of Principle;
4.    a consideration whether satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury or disease. Unless so satisfied, the claim must succeed.
[6] Repatriation Commission v Deledio (1998) 83 FCR 82.
There is a Statement of Principles, No 5 of 2008, concerning posttraumatic stress disorder. It describes posttraumatic stress disorder as meaning,
“(A) the person has been exposed to a traumatic event in which:
(i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii) the person’s response involved intense fear, helplessness, or horror; and
(B) the traumatic event is persistently re-experienced in one or more of the following ways:
(i) recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii) recurrent distressing dreams of the event;
(iii) acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv) intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v) physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i) efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii) efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii) inability to recall an important aspect of the trauma;
(iv) markedly diminished interest or participation in significant activities;
(v) feeling of detachment or estrangement from others;
(vi) restricted range of affect (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span); and
(D) persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i) difficulty falling or staying asleep;
(ii) irritability or outbursts of anger;
(iii) difficulty concentrating;
(iv) hypervigilance;
(v) exaggerated startle response; and
(E) duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F) the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.”
Clause 6 of the Statement of Principles sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder with the circumstances of a person’s relevant service. That relied on by Mr Border (and the only factor having any potential application) is,
“(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder.”
The expression “category 1A stressor” is defined by clause 9 as meaning one or more 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.”
It is finally necessary to notice s 120(4) of the Act. It provides,
“(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.”
The parties’ cases
Mr Border says that he suffers posttraumatic stress disorder and he says that he experienced one or more category 1A stressors before the clinical onset of that condition. The events that he says satisfy that description have been described in the proceedings as “the scorpion event”, “the torch event” and “the rockets event.”[7]
[7] In the earlier hearing he put forward what was described as “the moved base event” as a stressor. He no longer relies upon that event as being a stressor.
For its part the Commission says that I cannot be satisfied that Mr Border is suffering from posttraumatic stress disorder. That is so, it contends, because the events relied upon by Mr Border do not satisfy diagnostic criteria (A); it is said that the events, as they ought to be found to have occurred, lack the requisite severity. And, it submits that I should prefer the evidence of Professor Ivor Jones on diagnosis to the other medical opinions particularly that of Dr Perce Tucker, Mr Border’s treating psychiatrist. But, if I were to be satisfied that Mr Border has posttraumatic stress disorder, the Commission accepts that there is an hypothesis put forward and that it is reasonable. That is, in the language of Deledio, steps one to three are satisfied. Mr Border’s claim must fail at step four, the Commissioner says, because I ought to be satisfied beyond reasonable doubt that the events relied upon by Mr Border either did not happen or were not life-threatening events experienced by Mr Border.
Diagnosis
The first diagnosis of posttraumatic stress disorder appears to be that of Dr Ashim Majumdar in April 1996[8]. Then in 2002 Dr Kevin Calder-Potts concluded that the diagnosis was generalised anxiety disorder and chronic alcohol dependence.[9]
[8] Dr Majumdar was not called to give evidence however Mr Border relied upon his report of 11 October 1996 in the s 37 documents. Dr Majumdar gave that evidence to an earlier Tribunal hearing: see [1998] AATA 651 at [10].
[9] Similarly, Dr Calder-Potts was not called; his report of 2 December 2002 is also in the s 37 documents.
Dr Tucker, a consultant psychiatrist, has been treating Mr Border for posttraumatic stress disorder since January 2006. Dr Tucker is of the opinion that Mr Border has severe chronic posttraumatic stress disorder and a history of past alcohol abuse. In Dr Tucker’s view Mr Border has suffered from posttraumatic stress disorder since “possibly shortly after” the events in Vietnam of which he complains.
I must say, with respect, that I found Dr Tucker’s evidence to be somewhat unsatisfactory. No attempt was made to demonstrate the logic of his diagnosis; in particular, no attention was paid in his evidence to a consideration of the severity, or otherwise, of the events that Mr Border reported as the traumatic events or to Mr Border’s responses to those events.
The Commissioner relied upon the evidence of Professor Jones, a consultant psychiatrist, who saw Mr Border in November 2008. I was impressed by his evidence. His opinion is expressed in this way:
“Mr Border gives a complex history. He was involved in a number of incidents in Vietnam which would be sufficient to qualify for a diagnosis of posttraumatic stress disorder criteria A, although there was no report about psychological consequences following from these incidents either to his medical officer when he was in the Army at his regular reviews nor when he came out not until much later until he presented in about 1996 to his own doctor and then to psychiatrist with prominent symptoms of anger.
Now, he does show many features of Post Traumatic Stress Disorder with recurrent intrusive thoughts and nightmares, generalised high level of arousal, reminders of these Vietnam experiences precipitate recollections of Vietnam incidents but also feelings of guilt that, in the radio tent incident at least, he had been a poor soldier. These reminders may lead to depressive symptoms which can last for some weeks. This effect is possibly reinforced by the behaviour of his colleagues subsequently in the other incidents described.
The problem in diagnosis is that even though the features he describes do conform moderately well, to a diagnosis of posttraumatic stress disorder and the symptoms are significantly disabling, he has had a long-standing, very high alcohol consumption and most of the features that he shows would be compatible with the alcohol abuse. This could account for the high level of anxiety, the depressive symptoms, the ready confusion, likely peripheral neuritis and the incident in which he believed he was being followed by a tank. The most parsimonious explanation is that a pathological interaction has occurred between the Vietnam experience and the consequences of long term alcohol abuse so that he shows symptoms that are a mixture of these two separate causes. A more difficult problem is to determine which has had the greater adverse effect on him. The long delay between the Vietnam experience and his presentation and the high level of alcohol consumption would suggest to me that the effects of alcohol are the most important cause of his disability”.
On a consideration of the medical evidence I find that I am not reasonably satisfied that Mr Border suffers from posttraumatic stress disorder.
But there is, in any event, a further reason to reach the conclusion that Mr Border is not suffering from posttraumatic stress disorder and that concerns the severity of the claimed traumatic events. Where, as here, there is reason to doubt the diagnosis of posttraumatic stress disorder the observations of Gray J in Mines v Repatriation Commission[10] are pertinent. His Honour said[11]:
“It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, i.e. on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PSTD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. As I have already suggested, in those circumstances, the connection between the disease and the operational service has already been determined, and the four steps in Deledio hardly need to be considered.”
[10] [2004] FCA 1331; (2004) 40 AAR 238.
[11] At [48].
It is necessary then to consider the three traumatic events relied upon by Mr Border. They occurred over a period of less than a week in early September 1971 at Nui Dat. On the occasion of the scorpion event Mr Border, together with other soldiers and non-commissioned officers including Mr Peter Farrelly, were unloading stores that had been brought from Vung Tau. According to Mr Border, he felt a sharp pain in the middle finger of his left hand as he picked up a carton. He dropped the carton and observed a scorpion still attached to his finger. Mr Border described the events thereafter in this way(some spelling and grammar has been corrected),
“…I shook my hand until the scorpion fell off. Warrant Officer Farrelly who was with me at the time, and saw that I was in obvious distress at what had happened, (he later told me that I was as white as a ghost) so he grabbed hold of me as he could see that I was in shock, I could not move, all I could do was to hang onto my finger, I was in fear for my life. Mr Farrelly bodily picked me up, put me in the vehicle and rushed me off to hospital. On arrival at the hospital I was still distressed, I didn’t know what hospital I had been taken to, I was told to lie down on the bed and the doctor told me to let go of my finger. I would not let go of my finger until the doctor convinced me to let go of my finger. I was given 4 tablets to take and told that the reaction from the bite would be, pain travelling up my arm, forming a large lump under my armpit and then the pain would travel back down the arm. I do not know what the tablets were; I became light headed, very dizzy and felt nauseas in the stomach, as a result of the scorpion bite or the tablets I did not know which. I do not know whether I went to sleep over the 4 hours that I spent in hospital, I felt that I had been left by myself for that period of time and had no idea what was going to happen to me, once again I feared for my life.”
Mr Farrelly described the incident even more graphically. He said:
“Shortly into this exercise Roger screamed, and held his left hand saying that something had bitten him. An examination by myself revealed a reddish welt at that stage, and we then looked to see perhaps what had bitten him. Shortly afterwards we found a large black and very aggressive scorpion among the packages. The scorpion was despatched with, and after advising others to be careful, in case there were more, we continued to unload the Rover.
Roger began to complain about the pain generated by the bite, so much so that he quickly became unable to assist in the general unloading operation of the truck. Approximately twenty minutes later he complained that he could no longer feel his left hand and parts of his arm, and a further examination showed his hand had swelled and the reddish welt was rapidly travelling up his arm. Swelling was also very apparent on his upper arm, and I became very concerned regarding his condition and suggested that he remain seated until we had unloaded the vehicle.
Roger did this, but it soon became apparent that his condition was not getting better, but in fact was worsening by the minute. On checking, his pulse had become rapid, he was having trouble getting his breath, and he constantly moaned with the agony of the bite. At the same time the swelling of the arm and hand continued. Roger was also becoming somewhat hysterical, not knowing what really was happening to him, whilst the poison continued to coarse through his body. At this stage Roger was truly beginning to fear for his life, gasping for help, and crying with the throbbing pain created by the bite.
Without warning, Roger suddenly collapsed. His breathing was coarse and laboured, and now his face had begun to swell like a balloon, whilst his pulse was extremely rapid. With no medical treatment readily available at our point, and indeed the situation rapidly getting out of control I picked up Roger and bundled him in the company Land Rover and raced him direct to the Nui Dat base hospital for urgent treatment by the medical doctor and orderly on duty.
After ensuring that Roger was receiving the medical attention he obviously required and that he would recuperate, I returned to my base at 2 AFCU. Roger was treated by the hospital staff and kept under observation for a number of hours before being allowed to return to his unit under sedentary duties. He was unsteady on his feet, and the swelling and pain in his joints continued for several weeks later.
Roger’s condition was critical, and without the ability to transport him to the base hospital, receive the correct and proper medical attention he did, then the situation may well not have turned out the way it did.”

Mr Farrelly had a recollection of the orderly telling him that Mr Border was to be given painkillers.
Dr Michael Naughton is a medical practitioner who, in that capacity, undertook two tours of duty in Vietnam. Dr Naughton described the likely effect of a scorpion bite (which he in fact experienced personally whilst in Vietnam) as a painful lesion that would settle down. He says that the description given by Mr Farrelly of Mr Border’s reaction to the scorpion bite is a “very good account” of Mr Border suffering anaphylactic shock. However the difficulty I have is that the treatment that Mr Border says that he was given at 8 Field Ambulance was not the treatment that a soldier would receive for a suspected anaphylactic shock. On the contrary, according to Dr Naughton, the giving of any tablets to a patient in anaphylactic shock was simply wrong because of the risk of the patient intubating the tablets during respiratory distress. A patient, presenting with the signs and symptoms of anaphylactic shock would be given adrenalin intravenously, and put on oxygen before being transferred to the 1^st Australian Field Hospital where it would be expected that the patient would remain for “a couple of days”.
The description by Mr Border and Mr Farrelly is so much at odds with the treatment given at 8 Field Ambulance that I am not reasonably satisfied that Mr Border’s response was as he and Mr Farrelly described. The accounts of both of them are, in my view, grossly exaggerated. Whilst I am satisfied that Mr Border was bitten by a scorpion I am well short of being satisfied that that event involved threatened death or serious injury to Mr Border and I am not satisfied that his response involved intense fear, helplessness or horror.
The second incident relied upon by Mr Border occurred on the night of the scorpion bite. Mr Border, having spent some hours under observation at 8 Field Ambulance, was discharged back to his unit and was required to perform duty as the Duty Sergeant that evening despite, he says, still feeling “light headed and dizzy” from the scorpion bite or medication. At some stage during the evening the order to “stand to” was given signifying a possible contact with the enemy. When one of the radio posts did not report in Mr Border was sent to check on the post. Being still light headed and dizzy he could not find his path and became disoriented. As a result, he says, he switched on his torch in order to see. When he did that, someone nearby, who must have been another Australian soldier, said to him in a “stern voice”,
“Turn the bloody torch off or I will bloody shoot you.”
Mr Border said that when he heard this,
“…a feeling of helplessness came over me and I feared for my life, I didn’t realise at the time, (due to the after effects of the scorpion bite and the medication) that I had put the physical integrity of the people around me in danger."
Again, I am not reasonably satisfied that the event described by Mr Border had the characteristics required by the diagnostic criteria. Mr Border could not possibly have seen the comment made as a real threat to shoot him and it cannot have been seen other than as banter between troops. There cannot have been, on Mr Border’s account of events, any real threat of death or serious injury to Mr Border or to his fellow soldiers nor could there have been the requisite response.
The final incident claimed by Mr Border to be a stressor occurred approximately three days after the other two events. Mr Border says that Staff Sergeant Michael Fitzgerald, who was the Ammunition Technician at the Nui Dat Ammunition Point, sent him to the airstrip to collect “some suspected faulty rockets”. He says that he unknowingly handled them in such a way that there was a risk of them exploding. This, he said, was pointed out to him bluntly by a RAAF sergeant nearby. He says,
“…the feeling of fear for my life and those around me came over me, as again I had put at risk the physical integrity of the people around me and myself.”
Mr Fitzgerald’s evidence was that it is inconceivable that he would have sent Mr Border to handle rockets of this nature. It was never part of the role of soldiers like Mr Border, untrained in the handling of explosives, to deal with faulty rockets. Mr Fitzgerald was the Ammunition Technician within the unit that had the training, and the obligation, to deal with faulty rockets.
I accept Mr Fitzgerald’s evidence without question and reject that of Mr Border to the contrary. Mr Fitzgerald’s evidence struck me as inherently logical and sound. It is absurd to think that Mr Fitzgerald would send an untrained and unqualified soldier to handle unstable ordnance.
It is enough to say that I am not satisfied that the rockets event took place at all.
It follows that I am not reasonably satisfied that the traumatic events complained of by Mr Border happened, or happened in the way described by him. Both Dr Tucker and Professor Jones accepted that a diagnosis of posttraumatic stress disorder could not be made on this basis. Thus I am not reasonably satisfied that Mr Border suffers from posttraumatic stress disorder. Whilst not the subject of any submissions in the hearing I would reach the same conclusion having regard to the Statement of Principles for posttraumatic stress disorder in force at the time when the Commission considered Mr Border’s claim[12].
[12] Cf Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321
Whilst it is unnecessary to do so having regard to my conclusions on diagnosis I propose to deal briefly with the question of causation.
Relevantly, clause 6(a) of the Statement of Principles requires that the subject must experience a life-threatening event. Were it necessary for me to do so I would be satisfied beyond reasonable doubt that the scorpion event was not a life threatening event. I would reach that conclusion by reference to the treatment administered to Mr Border – some antihistamine tablets and observation – which is consistent with the normal reaction to a scorpion bite and which is quite inconsistent with the treatment that would have been administered had Mr Border reacted as he and Mr Farrelly described. I simply do not accept that their evidence, almost 40 years after the event, is reliable and reject it as inconsistent with what is established as being the treatment administered.
Similarly I would be satisfied beyond reasonable doubt that the torch event was not a life threatening event. The words used to Mr Border could only ever by regarded as banter between soldiers.
Finally, I would be satisfied beyond reasonable doubt by Mr Fitzgerald’s evidence that the rockets event did not occur.
It follows that I would affirm the decision under review.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:……...Signed.........................................................
  Associate
Dates of Hearing  5 – 6 May 2011
Date of Decision  27 May 2011
Counsel for the Applicant         Mr M J Taylor
Solicitors for the Applicant        Wallace Davies
Counsel for the Respondent     Miss E Ford
Solicitor for the Respondent     Australian Government Solicitor