Borg and Repatriation Commission

[2003] AATA 233

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 233

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2000/1332

VETERANS'     APPEALS       DIVISION

Re:         ANTHONY SAVIOUR BORG

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       M.J. Carstairs, Member

Date:             13 March 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decisions under review and substitutes the following decisions: that the condition of PTSD is war-caused with effect from 8 April 1998; and the condition of irritable bowel syndrome is war-caused with effect from 24 June 1996.  The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.

(sgd) M.J. Carstairs

Member

VETERANS' AFFAIRS - veterans’ entitlements – irritable bowel syndrome - anxiety disorder - whether war-caused

Veterans’ Entitlements Act 1986 ss9, 120, 120A

Meehan v Repatriation Commission (2001) 64 ALD 366

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Bushell v Repatriation Commission (1992) 175 CLR 408

REASONS FOR DECISION

13 March 2003  M. J. Carstairs, Member

1.      This is an application by Anthony Saviour Borg (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 31 August 2000.  The VRB affirmed the decision of a delegate of the Repatriation Commission (the respondent) dated 10 January 1997 that functional bowel disease was not war-caused, and a decision of a delegate dated 14 October 1997 that anxiety disorder was not war‑caused.  

2.      At the hearing of this matter on 17 October 2002, Ms J. Bornstein, of counsel, represented the applicant.  There was no appearance by the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T22 and pages 103-158), together with six exhibits (Exhibits A1-A6) lodged by the applicant and six exhibits (R1‑R6) lodged prior to the hearing on behalf of the respondent.

BACKGROUND

4. The applicant was born in Malta on 13 June 1946, the youngest of seventeen children. At the age of 15 he entered a seminary to study for the priesthood. After three years of study, he left to commence full-time employment at a factory and the local dockyards. He served briefly with the British Army before migrating to Australia at the age of 19. He found work as a labourer for seven months and then worked on a farm for several months before joining the Australian Army (the army) in 1969. The applicant served in the army from 12 March 1969 until 24 August 1989 and reached the rank of Regimental Sergeant Major (Warrant Officer Class 1). He rendered defence service from 7 December 1972 until 28 August 1989. His service in Vietnam, from 18 June 1970 until 26 August 1970, was operational service for the purpose of s9 of the Veterans’ Entitlements Act 1986 (the Act).   From May 1971 he served in New Guinea (as it then was), after being medically evacuated from Vietnam and then spending some time hospitalised in Australia.

5.      On discharge from the army, the applicant worked as a warehouse manager/supervisor but resigned after less than one year because of health problems.  He worked for a bridge building company for five months, then a manufacturing plant, but resigned seven months later after experiencing severe abdominal pain, diarrhoea and rectal bleeding and was diagnosed with functional bowel disease (irritable bowel syndrome).  This condition, together with renal calculi, diverticular disease, osteoarthritis, hearing problems and hypertension led to his cessation of employment in about 1991.

6.      On 24 September 1996, the applicant lodged an application with the Department of Veterans' Affairs for disability pension for incapacity from dysfunctional bowel disease.   On 10 January 1997, the respondent diagnosed the condition as functional bowel disease and refused the application on the grounds that the condition was not war‑caused.  On 7 May 1997, the applicant lodged an application with the Department of Veterans' Affairs for disability pension for incapacity from hearing loss/tinnitus, left ankle problem and anxiety.  On 14 October 1997, the respondent diagnosed the claimed conditions as bilateral sensori-neural hearing loss, bilateral tinnitus, primary osteoarthrosis of the left ankle and generalised anxiety disorder.  The delegate refused the claims for osteoarthrosis of the left ankle and generalised anxiety disorder.

7.      On 6 November 2000, the applicant sought review by the Tribunal of the decisions to reject the claim for functional bowel disease and anxiety disorder.

EVIDENCE

8.      In an undated written statement (Exhibit A6), the applicant said that in Vietnam he was assigned as a driver of an armoured personnel carrier (APC) conveying mortars.  He said that after three weeks in Vietnam he was appointed to an APC section that carried troops and his duties included conveying personnel to fire support bases (FSB), clearance patrols, resupply, dropping off personnel and picking up stranded Vietnamese.  He stated that on one occasion, when he was driving the APC to an FSB, the APC came to an intersection controlled by a South Vietnamese policeman.  When the APC failed to stop in response to a signal, the policeman cocked his weapon and pointed it at the applicant (the cocked weapon incident).  The applicant also referred to an incident where the APC proceeded to an area after an engagement where the enemy had been killed and wounded.  His APC picked up a Vietnamese man wounded by shrapnel from a claymore mine (the wounded Vietnamese incident). 

9.      In another incident, the applicant said the APC had delivered personnel and was proceeding through a rubber plantation during an engagement with the enemy nearby, when the APC hit a jumping jack mine, causing the track of the APC to dislodge (the APC track incident).  The applicant had to alight from the APC and carry out the repairs, under protective cover from two other APCs.  The applicant had told the VRB about two other incidents, one where soldiers that he knew had been injured by mines and one where he had observed the burial of enemy dead with a bulldozer (the burial incident).  In oral evidence, referring to the latter incident, he said that he was horrified to observe the callous form of burial.

10.     The applicant said that he did not report the cocked weapon incident.  He said that it was the duty of the crew commander to report incidents.  He said he was terrified when the policeman pointed his cocked gun at him, as the driver of the APC has his head outside the cupola of the vehicle and he was most at risk in the incident.  In regard to the APC track incident, he said driving over undulating ground in the rubber plantation had caused the track to come off the sprocket.  The APC rolled, but did not tip over and he was knocked over and developed pain in subsequent days, as well as passing blood through the urethra. The applicant said that he was frightened when he had to alight from the APC and carry out the repairs, as he could hear gun fire 200 to 300 metres away from him.  He was medically evacuated from Vietnam as a result of the injury, after only four months of service there.  

11.     In regard to the wounded Vietnamese incident, the applicant said that the wounded man was frothing at the mouth and that the commander had wanted to shoot him.  The applicant said that he was afraid and disgusted, but he was not involved further and did not know what happened to the man.  He was told to drive on.

12.     In regard to his claim for irritable bowel syndrome, the applicant said that his bowel problems were present after he returned to Australia and he had the condition during his service in New Guinea in 1971 to 1973.    He said, however, that he did not seek treatment until about 1985.

13.     In a written report dated 8 June 1976, Dr A. Arden, psychiatrist, stated that he considered that the applicant was fabricating physical symptoms of renal problems in order to gain relief from his pain and anxiety.  At that time it was established that what was thought to be kidney stones in the applicant’s urethra were gravel that the applicant had inserted.   Dr Arden stated that there was no need for further psychiatric treatment, though the applicant had been provisionally diagnosed as suffering factitious disorder, which is a psychiatric disorder where a person mimics symptoms of a physical disorder.  In a report dated 19 April 1978, Dr Spragg, psychiatrist, noted that, if the applicant had any psychopathology, it remained obscure.  On 18 April 1985, Dr I. Parkin, senior psychiatric registrar, noted that the applicant had no obvious pathology but had developed a pattern of reacting to  stress  and authority by passive/aggressive means.  On 20 May 1985, the applicant was  noted as being in the care of a counsellor.  In a written report dated 3 September 1997 (T17), Dr N. Rose, psychiatrist, stated that the applicant presented with no evidence of any psychiatric disease.  He described him as a cheerful man who was prone to make up stories, but who showed no evidence of any mental condition caused by the stress of military service.  In a report dated 17 August 1998 (T page 129), Dr L. Hocking, general practitioner, stated that the applicant had abdominal pains that dated back to his army service.

14.     In a written report dated 6 July 2001 (exhibit R4), Dr K. Byrne, clinical and forensic psychologist, stated that the applicant did not describe symptoms of post traumatic stress disorder (PTSD).  He noted that the applicant recalls more about Vietnam in recent years than he did during the first twenty years after leaving Vietnam.. Dr Byrne attributed this to several factors, including the fact that the applicant was reading books about Vietnam in the late 1980s; and was involved in a claim for benefits which included seeing numerous specialists and giving evidence at a tribunal.  He noted that, while the applicant stated that he avoided watching films on the Vietnam War, it was not due to apprehension or fear, but because of perceived inaccuracies in the films.  Dr Byrne noted that the applicant only reported nightmares many years after service, and had little difficulty with concentration or with ability to relate to others.  He concluded that the applicant did not suffer from any well-recognised pattern of psychological symptoms that would equate to a diagnosis.  However, he considered that the APC track incident could be characterised as a stressful event.

15.     In a written report dated 1 September 1998 (Exhibit A2), Dr J. Cooper, consultant psychiatrist, stated that the applicant had ongoing symptoms consistent with PTSD and that he had been exposed to life-threatening trauma when he was in Vietnam.    Dr Cooper referred, in particular, to the death of the applicant’s friend by a mine and the APC incident.   Dr Cooper concluded that the applicant suffered from mild chronic PTSD, although the subsequent course of his disease was atypical.  In a supplementary report dated 23 September 2002 (Exhibit A3), Dr Cooper stated that the applicant had a mild virtually sub-syndromal PTSD and did not show the complete profile of the syndrome.

16.     In oral evidence Dr Cooper said that there was an overlap between PTSD and anxiety disorder and a case of chronic mild PTSD would show great similarity to an anxiety disorder.  He said that a person might have both anxiety disorder and PTSD.  Dr Cooper said he considered that the applicant had psychiatric symptoms in the late 1970s because he demonstrated aberrant behaviour when he had kidney problems and this was referred to in psychiatric reports.  He stated that the diagnosis made at that time of factitious disorder was an Axis I diagnosis under the Diagnostic and Statistical Manual (DSM IV).  Dr Cooper maintained the correctness of his diagnosis of PTSD and said that his was the only report that applied the structured reporting form required by the respondent for practitioners making a diagnosis of PTSD.

17.     In a report dated 30 December 1997 (Exhibit R2), Dr S. Rodgers-Wilson, gastroenterologist, stated that he had treated the applicant since 1995.  He said that the applicant’s functional bowel syndrome was the same as irritable bowel syndrome and was related to the applicant’s diverticular disease of the colon.  Dr Rodgers‑Wilson dated this condition from the applicant’s Vietnam service, and stated that psychological stresses of his Vietnam service had provoked a change in the applicant’s gastrointestinal physiology.  Dr Rodgers‑Wilson stated that the diagnosis of renal calculi, made when the applicant was on service, was most likely incorrect and that his symptoms were more likely related to functional bowel disease.  In regard to this earlier medical history on service, a report dated 27 August 1970 (T5), completed by Dr J Hazel, medical officer, recorded the following:

Whilst on active service in Vietnam developed sudden onset of right sided loin pain.  Pain of colicky severe nature and associated with dysuria…

18.     In written reports dated 18 November 1999 (T21) and 3 April 2001 (Exhibit R5), Mr J. Tilbrook, of Writeway Research Services (Writeway), researched the applicant’s claims to having experienced stressful incidents during his service in Vietnam.  In a written report dated 18 June 2002 (Exhibit R6), Mr J. Church, of Writeway, confirmed that 2 Troop B Squadron 3 Cavalry Regiment, to which the applicant was attached, was constantly involved in ambush operations with 7 RAR at the time that the applicant was in Vietnam.  He was also able to confirm, through sources consulted (in particular the applicant’s troop commander), that the description of the wounded Vietnamese incident was accurate in details of how the APCs completed missions and set ambushes.  The commander was reported as stating that it would have been unusual for Borg not to encounter a corpse.  He also confirmed that dead or dying enemy were loaded aboard APCs.   This had also been confirmed in the report at exhibit R5.  While the APC track incident could not be confirmed through records or reports, Mr Church conceded that it might have occurred.  In his report he quoted the general comment of the commander, as follows:

I could accept any soldier who was a Crewman … suffering from his experiences, no matter how brief, later in life.  There were, on average, four major mine incidents a month with the APCs, the driver bore the brunt of this.  It definitely affected them, they mostly all smoked like chimneys and pretended to ignore the possibility.  During night ambushes a section only had six men to try and mount an effective sentry system and protect them in the event of attack. They always knew how vulnerable they were, fortunately, the enemy never twigged.  …

CONSIDERATION OF THE ISSUES

19.     In written submissions filed in advance of the hearing (Exhibit R1), Ms R. Casamento, an advocate with the Department of Veterans' Affairs, conceded that the applicant had irritable bowel syndrome, but denied that it was due to his service.  In regard to anxiety disorder, however, Ms Casamento submitted that the applicant did not suffer from a diagnosable psychiatric condition.  However, she submitted that, if the Tribunal found that the applicant had a generalised anxiety disorder, it was not attributable to his service. 

20.     Ms Casamento submitted that the applicant did not meet the factors in the applicable Statements of Principles (SoPs) for anxiety and for irritable bowel syndrome.  In regard to generalised anxiety disorder, she said the relevant factor was factor 1(b) of SoP Nº 48 of 1994 (as amended by Instrument Nº 275 of 1995):

…experiencing a stressful event not more than two years before the clinical onset of generalised anxiety disorder;

In regard to irritable bowel syndrome, the factor to be considered was factor 5(b) in SoP Nº 103 of 1996, which provides:

…suffering a specified psychiatric condition within the six months immediately before the clinical onset of irritable bowel syndrome;

21.     Ms Casamento submitted that the facts raised by the applicant did not fit the template for generalised anxiety disorder.  She relied on the report of Dr Byrnes and submitted that the clinical onset of psychiatric disturbance, if the applicant had any diagnosable psychiatric condition, was many years after service.  This meant that the requirement in factor 1(b) of SoP Nº 48 of 1994, that onset of anxiety be within two years of a stressful event, was not met.  In regard to irritable bowel syndrome, Ms Casamento submitted that the applicant did not suffer from a specified psychiatric condition as defined in the SoP, and for this reason factor 5(b) of SoP Nº 103 of 1996 was not met.

22.     Ms Bornstein submitted that the Tribunal could be satisfied that the applicant had a psychiatric condition, either PTSD or generalised anxiety disorder, or on the evidence of Dr Cooper, both.  Ms Bornstein further submitted that Dr Cooper’s report, as that of a psychiatrist experienced in dealing with Vietnam veterans, was to be preferred to that of Dr Byrnes who did not have that clinical experience.  She submitted that the relevant factor in SoP Nº 3 of 1999 for PTSD was:

(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;

23.     Ms Bornstein submitted that, in applying the necessary steps as outlined in the Federal Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82, the Tribunal could be satisfied that the evidence pointed to hypotheses linking the applicant’s conditions with service. She submitted that the applicant’s evidence was supported, in material ways, by the research conducted by Writeway. She submitted that the material pointing to the hypothesis included Dr Byrnes’s report, where he made a limited concession concerning the presence of psychiatric disturbance. Other reports, she said, confirmed an aberrant pattern of behaviour.

24.      Ms Bornstein submitted that the applicant had experienced a severe stressor in that he had witnessed casualties and casualty clearance in the wounded Vietnamese incident and the burial incident.  The hypothesis fitted the template and was therefore reasonable.  She conceded that the applicant had exaggerated his claims before the VRB and gave versions, which he acknowledged later, were untrue.  However, she submitted that his evidence given to the Tribunal was given honestly and without exaggeration and was supported on material points by the independent research by Writeway.  She submitted that there was no material before the Tribunal to satisfy the Tribunal that the raised facts were not true.

24.     Finally, she submitted  that the Tribunal could be satisfied that a diagnosis of anxiety disorder could be made out and that the applicant met factor 5(a)(iv) of SoP Nº 1 of 2000 for anxiety disorder which provided:

Having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder.

25.     In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The Federal Court in Deledio laid down the process of deciding whether the material before the Tribunal raises a reasonable hypothesis connecting a disease, injury or death (the condition) to war service in four steps.  The first step requires the Tribunal to consider all the material before it and determine whether that material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran.

26. The second step requires the Tribunal to ascertain whether there is a relevant SoP in force. Under the third step, if an SoP is in force, the Tribunal must then form an opinion whether the hypothesis raised is a reasonable one. Section 120A(3) provides that, for the purposes of s120(3), the hypothesis is reasonable if there is in force an SoP that upholds the hypothesis, that is to say, is consistent with the template to be found in the SoP. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and the claim will fail. Section 120(3) provides that, in applying s120(1), the Tribunal shall be satisfied, beyond reasonable doubt, if after considering all the material before it, the Tribunal is of the opinion that the material does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. Under the fourth step the Tribunal must make findings on questions of fact.

27.     The Tribunal has considered each of the steps in Deledio.  The Tribunal notes that in Meehan v Repatriation Commission [2001] FCA 597 Wilcox J held that when considering the first step the Tribunal must decide whether it is reasonably satisfied, pursuant to s120(4), that there is a disease or condition as claimed. The Tribunal accepts the agreement of the parties, and finds on the basis of the evidence that the applicant has irritable bowel syndrome. In regard to the claim for PTSD, the Tribunal is satisfied, on the evidence of Dr Cooper, that the applicant has mild PTSD that has responded to treatment. Although Dr Cooper said that the applicant demonstrated only two, not three of the clinical features under criterion C for the condition in the SoP, the Tribunal is satisfied that this is as a result of treatment. At the time of Dr Cooper’s written report the Tribunal accepts that the full diagnostic features of the condition were present. The evidence, including medical reports dating from 1976, points to the applicant having psychiatric disturbance over many years. The Tribunal accepts the evidence of Dr Cooper that the features of PTSD may have been present when the applicant was treated in the 1970s, although the diagnosis of PTSD then was not commonly made.

28.     In respect of the first step, the Tribunal finds, after taking into account all relevant material that the material points to hypotheses connecting the two claimed conditions with the circumstances of the particular service rendered by the applicant.

29.     In respect of the second step, the Tribunal finds that SoP Nº 1 of 2000, SoP Nº 2 of 2000 concerning anxiety disorder, SoP Nº 3 of 1999 concerning PTSD and SoP Nº 103 of 1996 concerning irritable bowel syndrome were determined by the Repatriation Medical Authority under s196B(2) or (11) of the Act and are in force.   In addition, the earlier SoPs for generalised anxiety disorder (SoPs Nº 48 and 49 of 1994 as amended by SoPs Nº 275 and 276 of 1995, for both operational service and defence service) and for anxiety disorder due to a general medical condition (SoPs Nº 380 and 381 of 1995) may be considered by the Tribunal: Repatriation Commission v Gorton (2001) AAR 370.

30.     In respect of PTSD, applying the third step from Deledio, the Tribunal accepts that the applicant, while having a record of exaggerating claims and admitting to embellishing his evidence on earlier occasions, was now endeavouring to give a full account of the incidents in which he was involved.  His evidence was supported by the Writeway reports.  The Tribunal accepts the applicant’s evidence that he witnessed events that were stressful to him.  The Tribunal accepts that he feared for his life in the APC track incident, and that he experienced horror and fear in the wounded Vietnamese incident and in the burial incident. The Tribunal accepts Dr Cooper’s evidence that the applicant’s symptoms of PTSD may have gone undiagnosed during the 1970’s.

31.     The Tribunal is satisfied that the APC track incident and the wounded Vietnamese incident occurred and were events that meet the definition of severe stressor in the SoP for PTSD, being events that involved actual or threat of death or serious injury to self or others.   Therefore, the hypothesis fits the template provided for in factor 5(a) of the SoP for PTSD: experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder.   Consequently, the third step of Deledio is met in regard to the claim for PTSD.

32.     Applying the fourth step in Deledio, in regard to PTSD, the Tribunal must consider, under s120(1), whether it is satisfied beyond reasonable doubt that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed: Bushell v Repatriation Commission (1992) 175 CLR 408.In considering the matters under s120(1) the Tribunal accepts the evidence of Mr Tilbrook, and that of Mr Church that the applicant as the driver of the APC would have been exposed to the experiences that the applicant claims in regard to the wounded Vietnamese incident and the APC track incident and accepts the applicant’s evidence that he experienced these events. Therefore, no reasonable doubt is raised under s120(1) and the claim in regard to PTSD succeeds. The date of effect for this decision is 8 April 1998, being six months prior to the request for review of the decision by the VRB.

33.     PTSD is listed amongst the specified psychiatric conditions set out in the definition provisions in the SoP for irritable bowel syndrome.  The applicant recalled symptoms of bowel disturbance when he was in New Guinea in 1971, though he did not seek treatment until 1985.  The evidence of Dr Rodgers-Wilson supports the applicant, both in regard to clinical onset, where he stated that the diagnosis of renal calculi made at the time was incorrect and that the applicant had functional bowel disease in Vietnam.  The Tribunal accepts this as evidence of the onset of the condition, and accepts Dr Rodgers-Wilson’s evidence that psychological stresses in Vietnam were the cause of a change in the applicant’s gastrointestinal physiology.  There is ample medical evidence of psychiatric issues being addressed in regard to the applicant during the 1970s with provisional diagnoses of depression, anxiety, and factitious disorder.  As it is established that the applicant has PTSD, factor 5(b) of SoP Nº 103 of 1996 is met and the hypothesis is reasonable, as. 

34.     In regard to the fourth step from Deledio, pursuant to s120(1), having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s irritable bowel syndrome is war-caused.  Therefore, the claim in regard to irritable bowel disease succeeds.  The date of effect of the decision is 24 June 1996, being three months before the applicant made the claim.

DECISION

35.     The Tribunal sets aside the decisions under review and substitutes the following decisions: that the condition of PTSD is war-caused with effect from 8 April 1998; and the condition of irritable bowel syndrome is war-caused with effect from 24 June 1996.  The Tribunal remits the matter to the respondent for assessment of the rate of pension payable.

I certify that the thirty‑five [35] preceding paragraphs are a true copy of the reasons for the decision of

M.J. Carstairs, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  17 October  2001
Date of decision:  3 March 2003
Counsel for applicant                   Ms J. Bornstein
Solicitor for applicant:                  Geoffrey Tobin
Advocate for respondent:            No Appearance