Brackin and Repatriation Commission (Veterans' entitlements)
[2018] AATA 4584
•11 December 2018
Brackin and Repatriation Commission (Veterans' entitlements) [2018] AATA 4584 (11 December 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2016/0853
Re:Bryan Brackin
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:11 December 2018
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution finds that the veteran’s anxiety disorder was war-caused. The matter is remitted to the Repatriation Commission for appropriate action in accordance with this determination.
...................[Sgd].....................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS – war caused disease – Statement of Principles for anxiety disorder – life threatening event – clinical onset – hypothesis upheld - remitted to the Commission.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Blain v Repatriation Commission [2017] FCA 114
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Bull v Repatriation Commission (2001) FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Collins v Repatriation Commission (2009) 177 FCR 28
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] FCA 898
Hill v Repatriation Commission [2005] FAFC 23
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Brady [2007] FCA 1087
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192; 69 ALD 581
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Milenz [2006] FCA 1436SECONDARY MATERIALS
Statement of Principles concerning anxiety disorder No. 102 of 2014
REASONS FOR DECISION
Deputy President J Sosso
11 December 2018
INTRODUCTION
Mr Bryan William Brackin (the veteran) seeks a review of a decision of the Veterans’ Review Board (the Board) of 2 November 2015 which determined that his claim for hypertension, gout, chronic renal failure, anxiety disorder, alcohol abuse, right eye laceration and right acromioclavicular joint disruption with osteoarthritis were not related to service and that no medical condition was present to answer his claim for “PTSD” – Exhibit 1 B2 – B11. The Board upheld a decision of the Repatriation Commission (the Commission) dated 8 August 2013 – Exhibit 1 T17, T18 pp. 102 – 115.
The Tribunal was provided with a transcript of the 2 November 2015 proceedings of the Board where the veteran appeared and gave evidence – Exhibit 5.
It was confirmed at the Hearing convened on 22 June 2018, and subsequently in written submissions on behalf of the veteran prepared by Mr Anthony Hornby dated 10 July 2018, that the veteran determined not to continue with his request for a review of the Board’s determinations relating to:
·Gout;
·Chronic renal failure;
·Alcohol abuse disorder;
·Right eye laceration;
·Right acromioclavicular joint disruption with osteoarthritis; and
·Posttraumatic stress syndrome.
The veteran also withdrew his request for review of the Board’s determination in relation to hypertension.
The only claimed condition remaining for consideration by the Tribunal is anxiety disorder.
The veteran was born in 1943 and served in the Army Reserves from 1 February 1961 until 16 November 1990. The veteran rendered operational service in South Vietnam during the period 23 July 1969 until 6 August 1969 (Exhibit 1 T3 pp. 6 – 7, Exhibit 9 p. 2) and was awarded the Vietnam Medal and the Vietnamese Campaign Medal – Exhibit 6. Whilst serving in South Vietnam, the veteran attained the rank of Lieutenant and was attached to the Royal Australian Corps of Signals – Exhibit 9 p. 2.
The veteran’s claim is based on an incident which occurred in South Vietnam in July 1969 when he was part of an overnight standing patrol. It is contended that shortly after the patrol left the Nui Dat Taskforce Base a medical officer, who was walking immediately behind the veteran, slipped and discharged his M16 rifle. It is further claimed that the bullets narrowly missed the veteran and he suffered the claimed medical condition as a result of this incident.
Originally the veteran also raised a second incident involving a visit to a local village suspected of being infiltrated by the Viet Cong and involved a child who may have been carrying a grenade. At the Hearing, Mr Hornby, on behalf of the veteran, advised that no reliance would be placed on this incident as it did not meet the requirements of either a category 1A or 1B stressor – Transcript (Tr.) 22 June 2018 pp. 11 – 12.
The veteran made a statement dated 4 February 2018 which is set out in full below – Exhibit 4:
“1. I arrived in South Vietnam on 23 July 1969 and was attached to 104 Signal Squadron.
2. After being in the country for a couple of days, I was told by the Administration Officer I could go on the next overnight standing patrol. Being a patrol of approximately 12 personnel we would go out overnight approximately two to five kilometres from the Taskforce base and provide early warning of enemy activity.
3. Before the patrol left we test fired all our weapons. On the final briefing by the Patrol Commander I was appointed second-in-command of the patrol.
4. We went through the heavy defence wire at approximately 1600 hours and proceeded into the heavy jungle.
5. Being second-in-command of the patrol I was second last moving out, with the medic behind me.
6. Moving through the heavy barbwire entanglements we finally got into the jungle. It had started to rain; the jungle was wet and the ground slippery, with lots of undergrowth on the track.
7. Just as we were outside the wire, the medic must have slipped or stumbled on the undergrowth and he fell.
8. While falling he put a burst of M-16 fire up my back, of approximately three to five rounds.
9. Naturally, when this happened, I thought my number was up. I was scared out of my wits and felt terrified. It had a marked effect on me at the thought I was nearly killed or badly wounded.
10. I saw the medic on the ground, and he appeared to be in a distraught and worried state.
11. Being second-in-command I had to get myself together so we could continue as the patrol was a crucial part of the overnight defence of the Taskforce base.
12. I got the matter under control in approximately ten minutes. The medic was back on his feet in approximately five minutes, and he was ready to proceed. I spoke with the other personnel in the immediate area. I then reported to the Patrol Commander, who was 20 to 30 metres out front, about what had occurred and we were ready to proceed.
13. After approximately 20 to 30 minutes the Patrol Commander called a halt and we adopted our positions for the overnight stay, which was 100 percent stand to, all awake, waiting, listening in our fire positions.
14. I remember making a conscious decision not to think about what had occurred earlier with the medic so as not to be distracted while I fulfilled my responsibility while standing to.
15. During the night we could hear voices and movement in the jungle in front of us.
16. Between 2000 and 2300 hours the 155 Howitzers gave harassing fire into suspected enemy areas. The 155 shells gave huge whistling sounds as they were fired over our heads. We could hear the explosions in the distance, and muffled voices somewhere to our front which we presumed were the enemy.
17. At first light we stood to for approximately 15 to 20 minutes, after which we returned to the Taskforce base without further incidents.
18. I can remember that the Patrol Commander commented to me that that was what happens on an overnight patrol of this nature. He also mentioned that I must have had a hair-raising experience from the rifle fire up my back and I did not look the same person who had started the patrol. I went back to the Officer’s lines in the 104 Signal Squadron, had a shower and slept for most of the day.”
Another member of this patrol, Mr Colin Hegarty, also provided a statement in support of the veteran’s claim. Mr Hegarty’s statement, which is dated 23 June 2016, is as follows – Exhibit 2:
“I was with Lt. Bryan Brackin on a fighting patrol on tour in South Vietnam in July 1969.
The Patrol had approximately 10 – 12 members and was an overnight patrol that left the main base at approximately 14:00 hours and returned at approximately 11:00 hours the next day.
Having completed two other patrols of this nature I was the Forward Scout. The Patrol proceeded out of the wire of the TASK force base and were spaced approximately 5 – 10 metres apart. Being the Forward Scout, I had proceeded about 75 – 100 metres outside the wire, when I heard a burst of fire from a M16 rifle. The shots came from behind me so I knew it was friendly fire. Approximately 10 minutes later, the Patrol has sorted itself out and we continued into the Jungle.
I found out that afternoon that the medic, who was the tail end Charlie, had put a burst of M16 fire up the back of Lt. Brackin, when he tripped over roots and foliage. Lt. Brackin was extremely lucky not to have been killed or wounded. This was confirmed to me by the medic the next day.
Lt. Brackin had only been in the country a few days and this was his first patrol. I had done a number of patrols and was appointed Forward Scout; a position only occupied by an experienced patrol member. Lt. Brackin was 2IC of the Patrol. He had been appointed by Patrol Commander Sgt. Dusty Millar because of the professionalism he showed when we test fired our weapons before the patrol.
We set up a fighting Patrol ambush just on dusk and stood to all night. During the night, the jungle was very active with enemy noises and movement being heard and 155mm Howitzers being fired over our heads as harassing fire on suspected enemy position. The Patrol had no contact with the enemy and we returned to base the next morning at about 11:00 hours.
When I saw Lt. Brackin the next day, he showed signs of stress, fatigue and he was not the person I had seen the previous afternoon before the Patrol left the base.
No doubt a burst of M16 fire up his back had affected him although he did not seek assistance or help. Like a lot of Vietnam vets they just got on with the job expected of them.”
The Tribunal was also provided a medical report dated 11 March 2016 prepared by Dr Christopher Danesi, Consultant Psychiatrist. Dr Danesi opined as follows – Exhibit 3:
“He was reviewed again today with his wife. He was last seen in 2013.
He wonders whether his Anxiety Disorder which was previously diagnosed as a Generalised Anxiety Disorder could possibly be Post Traumatic Stress Disorder.
When he was initially seen even though he acknowledged the incident which occurred to him from his short stay in Vietnam he was not complaining of PTSD symptoms.
Today he highlighted that a traumatic event on television may trigger intrusive distressing recollections of the incidents from Vietnam or also triggered by attending reunions or people talking foolishly to him.
He said he has never been one to speak to his wife about anything. He did not want to worry her or burden her. He felt that if he had done so he would not have been a proper person.
He said he had put up with his horrendous headaches for 10 to 15 years before going to see the local Doctor and on initial examination his blood pressure was 215/185 and so not easily seeking treatment is keeping with his personality.
He has reduced his alcohol consumption without any significant difference in terms of his irritability according to his wife. His irritability still dominates the clinical picture.
I told him that one of the SSRI antidepressants such as Zoloft 50mg a day could be advantageous in the management of the PTSD…”
The initial Commission decision of 8 August 2013, which determined the claimed anxiety disorder condition was not related to service, contained the followed reasons – Exhibit 1 T18 pp. 111 – 112:
“Mr Brackin has contended that his anxiety disorder was caused by:
‘While on patrol outside wire Nui Dat when the second last in patrol tripped on tree branch, discharged - M16 up my back. Further on some (sic) patrol experienced enemy voices in the bush’.
Evidence I have considered includes:
·Mr Brackin’s Australian Army medical records which make no mention of him seeking or receiving treatment for any anxiety problems. There is also no mention of him receiving any injuries from M16 gunfire. Mr Brackin’s emotional stability is also recorded as normal on all the medical board examination records.
·A psychiatric report dated 28 March 2013 by Dr Christopher Danesi which referred to the M16 gunfire incident and the hearing of enemy voices in the bush mentioned by Mr Brackin on the claim. Dr Danesi also referred to another event associated with significant distress that occurred in 1971 when Mr Brackin was in Townsville during a cyclone.
I have determined anxiety disorder using Statement of Principles, Instrument number 15 of 2011, which sets out the factors known to contribute to this condition…
I note the incidents that occurred in Vietnam however I am not satisfied on the available evidence that those incidents satisfy having experienced a category 1A stressor as defined in the Statement of Principles. The event Dr Danesi refers to that occurred in 1971 when Mr Brackin was in Townsville during a cyclone did not occur during his period of operational service.
Based on the information before me, there is no history of having experienced a category 1A stressor, as defined in the Statement of Principles, during Mr Brackin’s period of operational service.”
The veteran sought a review of the Commission’s decision but the Board affirmed that decision. In reaching its decision, the Board gave careful consideration to the M16 misfire incident and gave the following reasons – Exhibit 1 B6, 8, 9, 10:
“23. The Board drew the veteran’s attention to Mr O’Neil’s submission which indicated that the medic fired his machine gun ‘into the veteran’s backpack’. The veteran then stated to the Board that he was wearing a ‘bum pack’, not a full backpack. He said that the shots hit his pack and there ‘probably was’ some damage to his pack. The Board pointed out that earlier in the hearing Mr Brackin had described being hit in the back by the medic or the medic’s rifle but he was now saying that the weapon discharged into his pack. Mr Brackin said that it was 40 years ago. He said that there was damage to his pack but that he ‘won’t emphasise that’…
33. …The Board first considered the weapons discharge incident. For the following reasons the Board cannot be reasonably satisfied that the specific incident experienced by the veteran fulfils criterion A:
·The veteran’s evidence regarding the weapons discharge has been inconsistent on very significant matters. In his written statement he said he felt the M16 hit his back. In his initial oral evidence he said he felt the medic or the medic’s weapon hit his back but then said it must have been the weapon. After the contents of his advocate’s submission was brought to his attention he altered his oral evidence to say that the weapon discharged into his pack and caused damage to his pack. Dr Danesi has also recorded the veteran as saying that the medic fired an ‘M16 into his pack’.
·The veteran described the incident where the weapon was discharged while he was on patrol as an accident and just something that happened. All the soldiers with him were Ok and there was no problem.
·In 1962 the veteran experienced a similar incident during exercises when he fell over and accidentally discharged a blank round that caused penetration and a puncture wound to his right eye lid…
38. In regard to the weapons discharge, there is material pointing to the veteran suffering a category 1A stressor and the material therefore raises a reasonable hypothesis within the meaning of s 120(3). However, for the reasons set out earlier the Board is satisfied beyond reasonable doubt that this hypothesis is disproved…”
The Tribunal convened a hearing in Brisbane on 22 June 2018. The veteran appeared and gave evidence, and was represented by Mr Hornby. The Commission was represented by Mr Williams. Evidence was also given, via telephone, by Mr Colin Hegarty.
At the conclusion of the Hearing, a Direction was made that on or before 20 July 2018 the veteran give to the Tribunal and the Commission written submissions and that on or before 3 August 2018 the Commission do likewise.
Both parties, in accordance with this Direction, prepared written submissions which have been of assistance to the Tribunal.
LEGAL OVERVIEW
A member of the Defence Forces who has rendered continuous full-time service in an operational area, as specified in s 6C(1) of the Veterans’ Entitlements Act 1986 (the Act), is taken to have rendered operational service in the operational area. The term “operational area” is defined in s 5B(1) as an area described in column 1 of Schedule 2 of the Act during the period specified in column 2 of Schedule 2 opposite to the description of the area in column 1. For present purposes, it is sufficient, to note that the veteran’s service in South Vietnam in 1969 meets the requirements of rendering operational service in a specified operational area.
Part II of the Act provides, inter alia, for pensions for veterans who have become incapacitated from a war-caused injury or a war-caused disease.
For the purposes of the Act, an injury suffered, or a disease contracted, is taken to be “war-caused” if, inter alia, the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service – s 9(1)(a).
It is not contested that a claim under Part II of the Act that relates to operational service rendered by a veteran is assessed by reference to a reasonable hypothesis Statement of Principles (SoP) – s 120A(1)(b)(ii).
Pursuant to s 13 where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the member – s 13(1).
Subsection 120(1) provides, inter alia, that where a claim under Part II is made in respect of incapacity from a veteran’s operational service, the Commission shall determine that the injury or disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
It should be noted that s 120(1) does not create a presumption that an injury or disease was war-caused, nor does it impose an onus on a veteran to prove that it is – Repatriation Commission v Deledio (1998) 83 FCR 82 at 98.
Subsection 120(3) then outlines one circumstance where the Commission is required to find that there is “no sufficient ground” for the purposes of s 120(1) and (2). The Commission is required to find that there is no sufficient ground that an injury or disease was war-caused if:
“after consideration of all of the material before it, [the Commission] 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.”
This subsection was explained in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell) by Mason CJ, Deane and McHugh JJ (at 413-414) as follows:
“Notwithstanding the submission of counsel for the Commission, s 120(3) is not exhaustive of the content of s 120(1). Sub-section (3) is concerned with whether ‘the material’ raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, whether they be of opinion or fact…
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some material fact or facts (‘the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.”
In East v Repatriation Commission (1987) 16 FCR 517, the Full Federal Court observed that the relevant hypothesis must “find some support” in the evidence adduced and that the evidence must “point to, and not merely leave open” the hypothesis relied upon – at 532.
The difficulties inherent in ascertaining from the evidence adduced, particularly that of a medico-scientific nature, the existence of a causal connection between service and the claimed injury or disease, was addressed by the insertion of s 120A. The purpose of this section was to provide a sound and consistent basis for determining the reasonableness of a hypothesis from a medical/scientific perspective.
Subsection 120A(3) relevantly provides:
“(3) For the purposes of subsection 120(3), a hypothesis connecting….a disease contracted by 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);…”
Section 196A establishes the Repatriation Medical Authority (the Authority). The main function of the Authority is to determine SoPs – s 196B(1).
If the Authority is of the view that on the medical-scientific evidence available that it is more probable than not that a particular disease, injury or death is related to the relevant service rendered by the veteran, the Authority must determine an SoP setting out:
·the factors that must exist; and
·which of those factors must be related to the service rendered by the veteran,
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service – s 196B(2).
A factor causing, or contributing to an injury, disease or death is related to service rendered by a person if it constitutes one or more of the seven circumstances outlined in s 196B(14). The relevant circumstance for this matter is:
“(a) it resulted from an occurrence that happened while the person was rendering that service…”
In this matter the relevant SoP is Instrument 102 of 2014 – Anxiety Disorder.
Anxiety Disorder is defined for the purposes of the SoP in clause (cl) 3(b) as:
“generalised anxiety disorder, anxiety disorder due to another medical condition, other specified anxiety disorder or unspecified anxiety disorder and substance/medication-induced anxiety disorder.”
In this matter the medical evidence suggests that the veteran is suffering from a generalised anxiety disorder. Clause 6 of the SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the anxiety disorder with the circumstances of the veteran’s service.
The relevant factor in this matter is cl 6(a)(ii), namely “experiencing a category 1A stressor within five years before the clinical onset of anxiety disorder;”.
A category 1A stressor is defined in cl 9 of the SoP to mean one of three types of traumatic events. For the purposes of this matter, the relevant traumatic event is as follows:
“(a) experiencing a life-threatening event”
It is helpful in this context to set out the following observations of Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275:
“it is necessary to repeat that the SoP has no function in relation to proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoP’s function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can ‘uphold’ the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to ‘provide the template within which the individual claims will be determined’. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.
Therefore when s 196B(2) says a factor ‘must…exist’ and ‘must be related to service’ it is not interfering with the functions of ss 120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts;
(ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.”
THE DELEDIO PRINCIPLES
Central to the disposition of this matter is the identification and assessment of the veteran’s hypothesis. The fact that the Act utilises the language of an “hypothesis” alerts the decision maker to the difficulties perceived by the Parliament in proving facts in a military setting, possibly many years after the event. For, as Black CJ, Ryan and Einfield JJ observed in Repatriation Commission v Stares (1996) 66 FCR 594 at 601, an hypothesis is no more than a supposition or conjectural explanation of an ultimate fact.
Here the ultimate fact is the veteran’s contraction of a generalised anxiety disorder, and the conjectural explanation for this is the veteran’s experience of a category 1A stressor in Vietnam in 1969, namely the accidental discharge of a M16 rifle near to his back and could have killed or seriously injured him.
Over the past two decades the Tribunal has approached the proper application of s 120 (and related provisions) from the prism of the methodology outlined by the Full Federal Court in Repatriation Commission v Deledio (Deledio) (1998) 83 FCR 82.
It is clear from numerous recent Federal Court decisions, that strict reliance on the “Deledio principles” as if they were a legislative mandate would be a mistake – Hill v Repatriation Commission [2005] FAFC 23; 85 ALD 1 at 16 – 17. The “methodology” outlined in any judicial decision for applying statutory provisions is only a guide. However, the Deledio “methodology” is a useful tool in guiding decision-makers through the byzantine maze of veterans’ affairs law and assists in preventing the decision maker falling into error – see Logan J, Blain v Repatriation Commission [2017] FCA 114 at [9].
The Full Court of the Federal Court in Deledio identified the following steps (97 – 98):
“At the risk of being repetitious we would restate the course which the Tribunal is to take in case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The Tribunal must then proceed to consider s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of 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.”
The methodology enunciated above continues to provide sound guidance to the Tribunal, subject to two caveats.
First, there are antecedent inquiries required of the Tribunal before applying the Deledio methodology – see Collins v Repatriation Commission (2009) 177 FCR 280 at 284 – 285. However, in this matter nothing turns on this.
Further, the second step which refers to the absence of an SoP is plainly wrong, and has been highlighted in subsequent Federal Court decisions – Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [31].
STEP ONE
The first step of the Deledio methodology is aimed at ensuring the proper application of s 120(3) of the Act.
All that is required of the Tribunal at this stage is to be reasonably satisfied that the hypothesis has some support in the material, and that the material points to, and does not merely leave open the hypothesis being relied upon – Forrester v Repatriation Commission [2013] FCA 898 at [14] (Forrester).
The hypothesis advanced by the veteran is that whilst in South Vietnam at the beginning of a night patrol the veteran was subjected to an accidental discharge of firearms by a fellow soldier and that the veteran was in immediate danger and in fear of his life – Exhibit 9 p. 4.
In Bull v Repatriation Commission [2001] FCA 1832; 66 ALD 271 Emmett and Allsop JJ made the following observation – [18]/276:
“It is important to understand the following about East. The court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis…”
Their Honours also pointed out that it is impermissible at this stage for the Tribunal to find facts or reject matters – [21]/277. The formulation of the opinion required by s 120(3) involves an assessment of the factual material before the Tribunal. It involves reaching an opinion about a factual matter – [22]/277.
Having considered the material before the Tribunal, I am satisfied that it points to the hypothesis advanced by the veteran, and, to use some of the terminology outlined by their Honours, is not patently fanciful, incredible or too remote.
STEP TWO
It is not disputed the relevant SoP for a veteran who has rendered operational service and is suffering from an anxiety disorder is Instrument 102 of 2014.
STEP THREE
The third step requires the Tribunal to form an opinion whether the hypothesis raised is a reasonable one. This requires the Tribunal to ascertain if the hypothesis “fits” or is “consistent with” the “template” in the relevant SoP.
Questions of reasonableness arise at both Step one and Step three, requiring the Tribunal to assess reasonableness from both a factual and medico-scientific prism. This task was explained by Mortimer J in Forrester as follows (at [32]):
“The reasonableness of a hypothesis in the context of a determination under s 120(3) therefore has two aspects: a medical or scientific aspect, and what I shall describe as a factual aspect. One looks at the factual circumstances relating to the particular veteran and the other looks to the medical or scientific basis for what is factually asserted. Since the introduction of s 120A in 1994, consideration of these aspects has become somewhat separated. However it is important to recall that they both form part of the assessment of whether a hypothesis is reasonable. A hypothesis will be reasonable if there are facts that point to or support it, but it also needs to be reasonable because a SoP determined under s 196B(2) or (3) (or medical or scientific opinion if there is no SoP) upholds it….”
The Commission does not dispute Step One, and also concedes that there is no issue on the material before the Tribunal that the veteran suffers from an anxiety disorder, being a “kind of disease” to which SoP 102 of 2014 applies. The Commission, however, contends that the material before the Tribunal does not support the relevant elements of SoP 102 of 2014.
The task required of the Tribunal when making the assessment described by Mortimer J above was explained by Black CJ, Drummond and Kenny JJ in Repatriation Commission v Hill [2002] FCAFC 192; 69 ALD 581 at [57]/597:
“a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out ‘the factors that must as a minimum exist’ and ‘which of those factors must be related to service’. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy s 120(3) and s 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.”
It is not open to the Tribunal at this stage to infer or assume that each essential SoP element is met – Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352 at[63]/365.
The Commission referred (Respondent’s Submissions on the Evidence (RSE) para 5.4) to the alleged inconsistencies in the veteran’s evidence before the Board in respect to the M16 incident. Reference was made to the veteran at various times testifying before the Board that he had been struck in the back either by the medic or by the medic’s rifle then later agreeing with his representative’s submission that the M16 discharged into his pack.
Mr Williams, on behalf of the Commission, drew the Tribunal’s attention to the following testimony of the veteran. (RSE at 5.5):
“(a) prior to the incident the medic was one to three metres behind and later corrected the distance from three and ten feet to one to two feet; and
(b) the next thing I got this sort of knock in the back and a burst goes up my back; and
(c) and as he fell forward he fired it; and
(d) he’s behind me and he’s come forward and hit my back, the burst has come up my back. Up in the air, yes; and
(e) You know, like you ever had a burst, you know, two or three metre – not a metre, say two or three feet behind you? Or maybe six inches. I don’t know how far. I don’t know how far the weapon was forward, but it…; and
(f) It was up – it went up in the air; and
(g) what do I do now Brackin? You’re 2IC, you just had it burst up your back, the medic is in a heap behind you. We need him. If he would have been just – I could have sent him back. ‘I don’t want you anymore, go home’ and we were just outside the line, so he could have gone back successfully. But we needed the medic, let’s face it. If we didn’t have the medic and we had a causalty, nobody would treat it. So, we needed a medic, so we kept him; and
(h) …I reckon it was a total success, because we had an incident going out. I got that sorted out, patrol commander was fine after he got a brief of what I sent back to him and see what was happening; and
(i) the patrol commander was debriefed, I wasn’t.
‘Have you got anything to contribute?’
Not really, You know what happened. Everything was there, just got on with life.
Obviously, he was debriefed when he went back to the squadron.
Was there any talk about the accidental firing?
Not really. The patrol commander, he said ‘what happened?’ and I told him and he said ‘OK’.
(j) There was a whole company of them (medics)
Probably 150, 100 to 150. I don’t know.
(k) Now, I can’t tell you exactly what went on behind my back, but that’s what one would assume that as he had come forward he has hit my back and the shells have gone up my back. They had to, because if they had come anywhere else, I would have been dead, I would have had three to four shells in my abdomen and my back.”
Mr Williams also referred to the veteran’s testimony to the Board (RSE para 5.6):
“In respect of the evidence before the VRB;
(a) Was it discharged into the back pack?
I don’t believe it was, because I would have seen signs of it. If it would have went into the backpack, kit could have come through the pack and did some damage to me or it would have done some severe damage to the pack.
(b) Was there damage to the back pack? (page 21)
I can’t remember, Yes, I can’t remember. I don’t believe it was damaged, all right? and
There would have been some damage to the pack; and
Well if it hit the pack, there would have been some damage to it. I don’t believe- as I said there. The weapon has come forward. I don’t believe the pack was damaged at all. I would have picked it up if it was damaged; and
‘To confirm what Mr O’Neill and I have discussed, I suggest the back pack – the small bum pack, yes, had a bit of damage to it’ (page 22).”
Mr Williams referred to the veteran’s evidence before the Tribunal (para 5.7)
“In respect of evidence before the Tribunal;
You know, as I said, if we are going to say whether the bung (sic) pack was damaged or it wasn’t damaged, I don’t – you know, to answer the question honestly, is I don’t think there was – if there was damage it was very small damage – if there was any damage there wasn’t enough damage to the pack. It could have been damage to it, there wasn’t enough damage to the pack to say I couldn’t use it. In other words, the pack was still reasonably intact; and
Well, DP1 gear means you’ve got on your basic webbing. That is, your belt, your two water bottles, two basic (?) pouches and your bum pack. We call it bum pack, right? Which all basically is attached to your belt.”
Mr Williams submitted that the M16 incident did not meet the threshold of experiencing a life threatening event. This was so as the veteran contradicted himself during the course of his evidence both to the Board and the Tribunal. Mr Williams contended that at various times the veteran had testified that the M16 discharged into the air but also into his back (or, more accurately, “bum”) pack. Mr Williams made the following submission (RSE at 5.11):
“The respondent submits the Tribunal have regard to the following facts; the applicant assessed the incident at the time and decided to retain the medic in the patrol and advising the patrol commander that all was OK. The event was not discussed further that day or his statement sought for a debriefing. A charge arising out of the accidental discharge did not proceed or discussed by the applicant the next day in a social context.”
Mr Williams contended (RSE para 5.18) that Mr Hegarty did not witness the incident and that his statutory declaration was of limited assistance.
Finally, Mr Williams pointed out (RSE para 5.22) that the veteran’s medical records disclosed a training injury in 1962 which has been previously referred to as an n incident involving a firearm with injury to the applicant’s right eye brow and an injury to his right shoulder whilst playing football in 1972. However, there are no references in the medical records to injuries or conditions relevant to this matter.
Both the veteran during the course of his testimony on 22 June 2018 (Tr. p. 30) and Mr Hornby in his final Written Summary (WS) submitted that the Board proceedings were conducted in a way that was ultimately unfair for the veteran.
The veteran claimed that the Board badgered “the inside out of me. They were bullies, they bullied me. They tried to get me to change my mind. They weren’t there to hear my side of it, they were there to just hear their own side of it, as far as I can see. They bullied me badly” – Tr. 22 June 2018 p. 30.
Mr Hornby made the following submission – WS p. 2:
“As an Advocate I draw your attention to the Transcript of the VRB, (exhibit 5) I have very strong opinion as to the conduct of this particular VRB.
It is easy to put a person with a psychological condition under pressure with constant clarification of a particular point in the veteran’s contention, along with leading statements, for him to change in part his contention.
A reading of the transcript will prove my statement….”
Having read the Transcript I do not believe the Board deliberately conducted its Hearing in an unfair or bullying manner. Indeed, a fair reading of the Transcript would suggest that the three Members constituting the Board were earnestly endeavouring to deal with the myriad of issues that necessarily arose due to the veteran claiming a number of conditions. The Tribunal formed the opinion that the Board conducted a fair and professional Hearing.
Nonetheless, the Tribunal is conscious that the veteran is a sick man. The Tribunal Hearing was delayed for some time because of his state of health, and it became obvious during the proceedings that the veteran became tired and could get confused if questioned for a prolonged period of time. It was for this reason that I adjourned proceedings at 11.03 am on 22 June 2018 as I observed that the veteran was visibly getting tired (Tr. 22 June 2018 p. 39).
This matter needs to be ventilated as much of Mr Williams case is predicated on the unreliability of the veteran’s evidence and the number of seeming contradictions in his testimony.
Mr Hornby submitted (WS p. 4) that this matter “comes down to credibility, credibility of both Mr Brackin and the witness Mr Colin Hegarty.”
Having closely observed the veteran’s testimony, the Tribunal formed a favourable view of his truthfulness. The veteran answered questions directly and did not give evasive answers. He presented as an honest and straightforward witness and not as a person prone to embellishing events or overly analysing questions before giving a response.
Clause 6 of the SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the veteran’s anxiety disorder with his operational service. Accordingly, the first task required of the Tribunal is whether one or more of the factors itemised in Clause 6 are satisfied or ‘raised’. Only if a positive response is evinced to this inquiry does the Tribunal then move to the next issue, namely whether the relevant factor or factors is or are related to service.
Here, as previously noted, the relevant factor is Clause 6(a)(ii) namely experiencing a category 1A stressor within five years before the clinical onset of anxiety disorder. The relevant severe traumatic event constituting a category 1A stressor on the evidence in this matter, is experiencing a life-threatening event.
What constitutes a “life-threatening event” was explained by Reeves J in Border v Repatriation Commission (No 2) (2010) 191 FCR 163. His Honour made the following observation (at [67]/180):
“It is the effect of the event and not the threat itself that has to be assessed. Moreover, it is the veteran’s perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of the veteran, it was capable of, and did convey the threat of death.”
If the Tribunal accepts the veteran’s version of events, then the M16 discharge would constitute a life threatening event as explained by Reves J.
Mr Williams contends that the evidence is basically so vague, scant and contradictory that it is not open to the Tribunal to conclude that the veteran experienced a life threatening event in the manner described by the veteran. The Tribunal does not accept that this is the case.
The veteran’s version of the events surrounding the accidental discharge by the medic of his M16 rifle is consistent and plausible. The veteran has testified both before the Board and the Tribunal that he was second in command of an overnight standing patrol and was stationed second from the end. The last soldier was a medic who, shortly after leaving the Australian base, fell or tripped and accidentally discharged his M16 rifle.
Much has been made of the distance between the medic and the veteran when the incident occurred, whether the M16 discharged upwards but very close to the back and head of the veteran, whether there was one or more rounds discharged, whether the M16 fired into the veteran’s “bum” pack, whether the “bum” pack was damaged and, finally, whether the medic hit the back of the veteran when he fell or whether the medic’s rifle hit the back of the veteran.
The veteran was cross-examined at considerable length by Mr Williams about the seeming contradictions in his version of events. However, at one point in answering questions posed, the veteran said – Tr. 22 June 2018 p. 32:
“Now, I can’t tell you exactly what went on behind my back…”
It needs to be recalled that the incident in question occurred almost 50 years ago. The veteran had only been in South Vietnam for a few days and was participating in his first patrol. The incident happened in a split second, and the evidence suggests that the veteran was traumatised. The very nature of the patrol required the incident to be assessed quickly and for the patrol to recommence quickly. The basic elements of the incident are not in doubt: namely that the veteran was on a patrol and that there was an incident with the discharge of a firearm. There is an even more important aspect to the factual matrix before the Tribunal. Unlike many other claims under the Act, not only did the Tribunal have the benefit of receiving and observing the oral testimony of the veteran, but the Tribunal had the further benefit of receiving evidence from another veteran who was present when the incident occurred in 1969.
It is the case that Mr Hegarty did not see the incident as he was in front of the patrol and not in the rear. However, he testified that “I can recall it quite distinctly because I heard the shots from behind straight up” – Tr. 22 June 2018 p. 53. Further he was later asked what happened and was informed “that apparently the medic bloody had tripped up and what the hell he was doing with a cocked weapon I’ll never know but that was what was explained to me” – Tr. 23 June 2018 p. 54.
Based on the evidence before the Tribunal, I am satisfied, on the balance, that the veteran did experience a category 1A stressor whilst serving in South Vietnam, namely a life threatening event which was the accidental discharge of the M16 rifle by the medic.
However, this conclusion does not exhaust the task required of the Tribunal. The second aspect of the factor is that there must be “clinical onset” of the anxiety disorder within five years of the incident.
The term “clinical onset” is not defined in the SoP, but has been the subject of extensive Federal Court jurisprudence: see Repatriation Commission v Cornelius [2002] FCA 750 at [26] and Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 336. It is not disputed that clinical onset occurs either:
(a)when the veteran becomes aware of some feature or symptom which enables a doctor to say the disease is present at that time; or
(b)when a finding is made on investigation which is indicative to a doctor of the disease being present.
The test for clinical onset is disjunctive – Kaluza v Repatriation Commission [2011] FCAFC 97 at [66].
As previously mentioned, “generalised anxiety disorder” is defined by cl 3(b) of the SoP. It is necessary for the Tribunal to assess whether the evidence presented fits the definition of “generalised anxiety disorder” as defined, and not anxiety disorder in general – see Lees v Repatriation Commission (2002) 125 FCR 331 at 336-337.
In the 28 March 2013 report of Dr Danesi, the veteran is noted to be suffering from long- standing difficulties with sleep, worrying, ruminations, irritable at work, irritable at home, abusive to his wife, overly uptight, dwelling on matters, long standing difficulties with worry and short with people – Exhibit 1 T15 pp. 97 - 100. The conditions described by Dr Danesi “fit” the definition of “generalised anxiety disorder”.
The next task is to ascertain if clinical onset of the veteran’s anxiety disorder occurred within five years of the South Vietnam incident.
In determining whether the factor is met it is necessary that there is “evidence from a medical practitioner determining for the purposes of the …SoP whether the disease is or was present at a particular time” – Repatriation Commission v Brady [2007] FCA 1087 at [36].
It will be noted that the SoP requires “clinical onset”. In Repatriation Commission v Milenz [2006] FCA 1436 Finn J had to consider the term “clinical worsening”. His Honour noted that in the particular SoP he was considering that term was not defined, but went on to determine (at [35]):
“What is clear, in my view, is that the Tribunal misconstrued what was comprehended by the clinical worsening requirement of par 5(d) of the SoP. That requirement imposed a medical-scientific standard, not a lay standard. Though the Tribunal found a clinical worsening of Mr Milenz’s alcohol abuse, it did not address whether there was a worsening in the disease as defined and manifest. It simply inferred a worsening because, ‘after operational service, the quantity, type and frequency of alcohol consumed was far greater’. These are not features or manifest symptoms of the disease defined in par 2(b) of the SoP.”
The same medical-scientific standard is required for assessing the date of clinical onset of anxiety disorder. Fortunately, the Tribunal has the benefit of Dr Danesi’s report of 28 March 2013. Dr Danesi noted that the veteran was “unsure when all this anxiety started other than being there for many years”. Whilst the veteran was unable to suggest a time when his anxiety disorder first manifested itself, his wife, when interviewed by Dr Danesi “gave the date of onset of Mr Brackin’s difficulties around the age of 30.” – Exhibit 1 T15 p. 99.
Dr Danesi opined that the “onset of Mr Brackin’s anxiety disorder would be around the age of 30 as noted by his wife” – Exhibit 1 T15 p. 100. As the veteran was born in 1943 this would suggest a clinical date of onset of 1973. As the category 1A stressor event was in 1969, the date of clinical onset was within the prescribed five year period. Accordingly, the evidence fits the requirements of cl 6(a)(ii) of the SoP.
It should also be noted that Mr Hegarty, when giving evidence, testified to the physical change in the veteran by the conclusion of the patrol – Tr. 22 June 2018 pp. 55 – 56:
“..in your statement you say, ‘When I saw Lieutenant Brackin the next day he showed signs of stress fatigue and he was not the person I had seen the previous afternoon before the patrol left the base.’ Can you explain to me then…the basis of making that statement? How did you form that view? If you cannot remember speaking to him how did you form that view? --- Well, a picture tells a thousand bloody words but I know that when…he fronted up to join the patrol…He seemed fairly bloody keen to get out there when most of us would rather be bloody having a sleep…no sooner had we gone through the bloody wire that I hear bloody shots from behind and then I automatically stopped…I didn’t have any contact talking to Lieutenant Brackin on the way out because he’s way back behind me and I’ve got nothing to bloody talk about anyhow…But when I did get back the next day…I did notice with Lieutenant Brackin…he didn’t seem to be the same bloke as – as enthusiastic as when he first bloody joined the patrol…I think he got a shock by having a bloody few shots up your bloody arse, I’m telling you, it’s not a pleasant thing…”
It seemed quite clear listening to Mr Hegarty’s evidence that the M16 misfire incident had significant impacted on the veteran’s mental state, and this was obvious to Mr Hegarty who had no prior knowledge of the veteran and had only became acquainted with him the previous day.
Moreover, the veteran was assessed by Dr Mark Whittington, Psychiatrist in 2014. Whist Dr Whittington was of the opinion that the veteran was suffering from a post-traumatic stress disorder, he referred to the M16 misfire incident as one of the stressors that had brought about this condition. He referred to the veteran being plagued by “nightmares, flashbacks and day time recollections” and “having intolerance, irritability and over reacting” – Exhibit 1 T21 pp. 122 – 123. Putting aside Dr Whittington’s diagnosis, it is also clear from reading his report, that the veteran was suffering mental health problems stemming from the 1969 incident, and the manifest symptoms correlate with the symptomatology of generalised anxiety order as specified in cl 3(b) of SoP 102 of 2014.
Finally, cl 5 requires that at least one of the factors in cl 6 must be “related to” the relevant service rendered by the veteran. As previously noted, s 196C(14)(a) provides that a factor is related to service rendered by a person if “it resulted from an occurrence that happened while the person was rendering that service.”
Consequently, the hypothesis raised by the veteran is a reasonable one as it fits, or is consistent with, the template found in SoP 102 of 2014.
It follows, therefore, that the veteran has satisfied Step three of the Deledio methodology.
STEP FOUR
Having dealt with the requirements of s 120(3), the Tribunal is now required to consider s 120(1). This subsection requires that the Commission shall determine that injury, disease or death was war-caused “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
The task required of the Tribunal at this stage was helpfully explained by Mason CJ, Deane and McHugh JJ in Bushell (at 416) as follows:
“The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the Commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the Commission or because the raised facts depend on inferences which the Commission is satisfied cannot be drawn, the Commission will be satisfied that there is no sufficient ground for making the determination. But unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed; we cannot conceive of a case where, for the purpose of s 120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, ‘beyond reasonable doubt, that there is no sufficient ground for making the determination’ even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient simply to treat the case as governed by the application of s 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.”
As such in order that the veteran’s claim be rejected at this stage of the inquiry, the tribunal of fact must find that the facts necessary to support the hypothesis are disproved beyond reasonable doubt or that a fact contrary to the raised hypothesis, and which is fatal to it, has been proved beyond reasonable doubt – see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570 – 571.
The term “beyond reasonable doubt” carries with it the criminal law standard of proof. The policy rationale for this unusual state of affairs was explained by Murphy J in Repatriation Commission v Law (1981) 147 CLR 635 at 638 – 639 as follows:
“In ancient and modern civilizations the treatment of former soldiers and sailors has been an important social issue. Historically the tendency has been to discard them and ignore the physical, social or economic damage to them by military service. The Australian solution to the problem of ensuring that the costs of war-related loses were borne by society rather than fall on the injured persons or their dependents was the adoption (along with other measures) of the ‘onus of proof’ section in war veterans legislation which requires the Commonwealth or its agency to disprove a claim rather than to require the claimant to prove it. It has been obvious that this remedial section would result and has resulted in many claims being allowed which in truth were not well-founded. This was the price of ensuring that no valid claim was rejected because of insufficiency of proof.”
It flows from these explanations that it is at this stage of the inquiry that findings of fact are made by the Commission, or, on review, by the Board, and, finally, the Tribunal. In this matter the following factual findings are made:
(a)the veteran rendered operational service whilst stationed in South Vietnam in late July and early August 1969;
(b)the veteran was a lieutenant, Royal Australian Corps of Signals, during his service in South Vietnam;
(c)the veteran participated in an overnight patrol “outside the wire”;
(d)the veteran was appointed second in charge of the patrol;
(e)the veteran was positioned second last in the patrol, with a medic behind him;
(f)shortly after leaving Nui Dat Army base the medic slipped and accidentally discharged his M16 rifle;
(g)a bullet or bullets narrowly missed the veteran;
(h)the patrol continued and during the night voices were heard in the jungle, which were thought to be those of Viet Cong soldiers;
(i)the patrol returned to Nui Dat Base the next day;
(j)the veteran was visibly upset by the incident and this was observed by Mr Hegarty;
(k)by 1973 the veteran was exhibiting symptoms of an anxiety disorder;
(l)the anxiety disorder was causally related to the 1969 M16 accidental misfire incident.
Accordingly, there are no grounds for a finding that either one or more of the facts necessary to support the veteran’s hypothesis have been disproved beyond reasonable doubt or that the truth of any material fact which is inconsistent with the hypothesis has been proved beyond a reasonable doubt.
DECISION
The Tribunal sets aside the decision under review and in substitution finds that the veteran’s anxiety disorder was war-caused. The matter is remitted to the Commission for appropriate action in accordance with this determination.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
.......................[Sgd].................................................
Associate
Dated: 11 December 2018
Date of hearing: 22 June 2018 Date final submissions received: 3 August 2018 Advocate for the Applicant: Mr Anthony Hornby Solicitors for the Applicant: Veteran's Support Centre Advocate for the Respondent: Mr Bruce Williams Solicitors for the Respondent: Department of Veterans' Affairs
1
20
0