Burland and Repatriation Commission - [2002] AATA 918

DECISION AND REASONS FOR DECISION [2002] AATA 918

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2001/408
VETERANS'     APPEALS       DIVISION
  Re:         ANTHONY WILLIAM BURLAND
  Applicant
  And:       REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal:       G.D. Friedman, Member
Date:             11 October 2002
Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) G.D. Friedman
Member
VETERANS' AFFAIRS - veterans' entitlements - post traumatic stress disorder - shots fired - fears for safety - radio conversations - perceived danger to other persons - whether applicant experienced a stressor
Veterans' Entitlements Act 1986 s9, 120(1), 120(3), 120(4), 120A(3)
Bull v Repatriation Commission (2002) 66 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Meehan v Repatriation Commission (2001) 64 ALD 366
O'Neil v Repatriation Commission (2001) 34 AAR 290
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

11 October 2002 G.D. Friedman, Member

This is an application by Anthony William Burland (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 14 March 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 8 July 1998 in relation to depressive disorder by amending the description of that condition to post traumatic stress disorder (PTSD). The VRB affirmed the decision that PTSD with secondary alcohol abuse and depression, diabetes mellitus, psoriasis and hypertension were not war-caused.
At the hearing of this matter on 1 October 2002 Mr P. Liefman, solicitor, represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans' Affairs, represented the respondent.
The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T17), together with four exhibits (Exhibits A1-A4) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.
BACKGROUND
The applicant was born in Melbourne on 1 March 1949. At the age of 15 he commenced an apprenticeship with the Victorian Government Printing Office. He was selected for National Service and joined the Australian Army (the army) at the conclusion of his apprenticeship on 8 July 1970. After basic training at Puckapunyal, he was sent to Queensland where he was trained as a driver with the Royal Australian Army Service Corps. From 16 June 1971 to 8 December 1971 the applicant served in South Vietnam and this period was considered to be operational service for the purpose of s9 of the Veterans' Entitlements Act 1986 (the Act). He was discharged on 7 January 1972.
After leaving the army the applicant returned to the printing industry, and in 1978 he undertook a catering course. He took up a position as a cook at a nursing home, then after six months he moved to Phillip Island to care for an ill ex-serviceman. He worked as a cook at a local hotel until his dismissal in 1994.
On 23 March 1998 the applicant made application to the Department of Veterans' Affairs for disability pension for a number of medical conditions. In the course of medical assessment he stated that he was suffering from anxiety, depression, insomnia and back pain, as well as hypertension, obesity and diabetes. He has been diagnosed as suffering from PTSD with secondary phenomena of depressive symptomology and excessive alcohol intake. On 8 July 1998 the respondent refused the application on the grounds that the claimed conditions were not war-caused. On 17 April 2001 the applicant lodged an application with the Tribunal for review of the decision of the VRB.
EVIDENCE
The applicant told the Tribunal that in Vietnam he served as a driver at the Australian Task Force headquarters at Nui Dat and his duties included driving officers, acting as a batman, and general duties in the mess and around the base. He said that two or three times each week he would do the laundry run, which consisted of him driving a Land Rover to a civilian laundry at Baria, a provincial capital about seven kilometres away. He explained that on one occasion (the shots incident), while driving to Baria with another soldier, about two months after his arrival, he heard two shots from a nearby rice field and observed dust rising from the point of impact on the side of the road. He said that he observed a number of young people in the field about 100 metres away and he quickly accelerated. The applicant stated that, although he was fearful for his safety, there were no untoward consequences. The applicant stated on his return to the base he informed a New Zealand sergeant about the incident but the sergeant did not seem interested in taking the matter further. He also said he told about five other soldiers later that day.
On another occasion (the helicopter incident) the applicant said he was on switchboard duty at the command post at night when he overheard the voice of an American helicopter pilot on the radio saying: We've been hit. We're going down. Then the radio went dead. The applicant said that he felt terror and helplessness as he assumed that the occupants of the helicopter had been killed. He said that he had no knowledge of the details or the consequences of the incident, and no action was taken by anyone at the command post at the time.
The applicant stated that on a third occasion (the artillery incident) he was again assisting in the command post when he heard an American voice on the radio, from what he assumed to be an artillery unit forward observer, saying something about the firing of an artillery piece. The applicant said the communications suddenly ceased and he feared the observer or other personnel had been killed or injured. He explained that this caused him distress and he became fearful for his life.
The Tribunal was told that the applicant's intake of alcohol escalated when he joined the army, and after returning to Australia he began to drink more heavily, a habit which he has been unable to break. He said that he has nightmares, back pain and does not relate well to people. He has lived a solitary life since his army service, and stated that he does voluntary work in his local community and visits the RSL Club several times each week.
Under cross-examination the applicant agreed that, prior to lodging his claim in 1998, he had not reported symptoms of anxiety, stress or depression. In relation to the shots incident, he said that after informing the New Zealand sergeant neither he nor his friends saw any need to report the matter to his superiors. He said his passenger believed he saw a rifle in the possession of one of the young people in the rice field.
In a written report dated 22 May 2002 (Exhibit A2) Dr C. Seabridge, consultant psychiatrist, stated that the incidents described by the applicant were sufficient to fulfil the criteria for a stressor under the relevant Statement of Principles (SoP). Dr Seabridge stated that the applicant's response was one of extreme fear, and helplessness and horror during these events. He stated:
…
I must then conclude, in view of the presence of the clinical manifestations of the consequences of severe traumatic experience, that such experience actually did occur, and is the basis of the agreed diagnosis of post traumatic stress disorder.

In oral evidence Dr Seabridge stated that the response to the three incidents was based on the applicant's experience and his perception of the danger at the time.

In a written report dated 3 July 1998 Dr L. Chester, consultant psychiatrist, stated:
…
Although the Mr Burland referred to occasional disturbing dreams, these do not seem to be about specific traumatic experiences and do not seem to be very frequent or of major significance.
…
With regard to Mr Burland's military service, the history indicates that he served as a driver in a transport unit for six months in Vietnam from June 1971. However, there is no evidence to indicate that he was subject to any major traumatic experiences, was never injured or wounded and did not require any medical or psychiatric treatment either during or after his military service. The evidence suggests that he dealt well with his military experiences.
In a written report dated 8 April 2002 (Exhibit R1) Dr L. Walton, consultant psychiatrist, stated:
… Having noted the comments of the Veterans' Review Board regarding whether or not the veteran experienced a stressor, I should have thought it was open to determining that the veteran had experienced such a stressor by virtue of being shot at, albeit briefly, and inaccurately, as this does constitute a threat of death or serious injury, however, that is a matter of fact to be determined by the Tribunal rather than a matter of psychiatric expertise and I make no further comment. In terms of the subjective response, which I believe does fall within my area of expertise, I am reliant upon the veteran describing himself as being terrified, and if that is accepted then it would seem that his response would fall within intense fear or horror.
In written reports dated 28 January 2002 and 27 August 2002 (Exhibit R2) Lieutenant-Colonel H. Conant, of Writeway Research Service, stated that in relation to the shots incident the laundry run attracted little attention and was seldom the target for enemy or other attention. He said that there would have existed regulations or standing orders requiring the reporting of such an incident, and no record has been identified. In relation to the helicopter incident and the artillery incident, Lieutenant-Colonel Conant said that the applicant's contentions are difficult to accept. He noted that aircraft radio frequencies were different from those used by ground forces. He said that technically a radio operator could have listened to the aircraft frequency but there was no operational need to do so. He stated that short, incomplete radio transmissions involving American personnel were common because of atmospheric quirks affecting signal transmissions, and no incidents involving aircraft crashes or the possible results of artillery fire have been identified.
In oral evidence Lieutenant-Colonel Conant agreed that in Vietnam the regulations and standing orders were not necessarily followed in their entirety at all times.
CONSIDERATION OF THE ISSUES
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 is laid down by the Federal Court of Australia in Repatriation Commission v Deledio (1998) 49 ALD 193 as a four-step process. 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.
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.
Mr Liefman submitted that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran, and that the hypothesis fits within the template and is reasonable. He said that the recollection of the applicant in relation to the three incidents was clear and plausible, and that as a consequence, the applicant had feared for his life. Mr Liefman noted that Lieutenant-Colonel Conant had acknowledged that the failure by the New Zealand sergeant to report the shots incident was not remarkable in the circumstances. In relation to the helicopter incident and the artillery incident Mr Liefman stated that, although atmospheric quirks affecting radio transmissions were possible, air to ground communications were not uncommon. He said that in a small command post there was a strong possibility that a switchboard operator would occasionally overhear radio communications from American ground forces and pilots.
Mr Liefman referred the Tribunal to O'Neil v Repatriation Commission (2001) 34 AAR 290 in which North J stated in relation to the SoP concerning generalised anxiety disorder at page 292:
… It seems oddly inappropriate, hence unlikely to have been intended, that in order to ascertain whether an occurrence was experienced which evoked feelings of anxiety or stress, the Tribunal is to test that subjective experience against some objective factor. If the conclusion is reached that, objectively, such an occurrence could not reasonably evoke the feelings necessary to satisfy the SoPs, it seems illogical to find, at the same time, that the applicant did in fact experience such feelings. doubt that the relevant SoPs were intended to operate in such a way. Such a construction is not properly open on the SoPs.

Mr Liefman submitted that, on this basis, and taking into account the evidence from Dr Walton and Dr Seabridge, the relevant factor in the SoP for PTSD is satisfied, so that the hypothesis is reasonable, and that the applicant satisfies the third and fourth steps of Deledio.

With respect to the other conditions, Mr Liefman submitted that these would flow from the Tribunal's acceptance of PTSD as being war-caused.
Mr Rudge referred the Tribunal to Repatriation Commission v Hill [2002] FCAFC 192 in which the Full Federal Court noted earlier authority and stated at para 4:
…
If an essential element of a hypothesis is not raised (or pointed to) by the material before the decision-maker, then the hypothesis is not raised by that material.

Mr Rudge submitted that the evidence as a whole does not point to or raise a hypothesis that fits the relevant SoPs, and that the link between PTSD and war service was too tenuous. He referred to the evidence from Lieutenant Colonel Conant that the shots incident was a serious matter that would have been reported and recorded, particularly as the applicant and six other soldiers were made aware of the matter. Mr Rudge submitted that the other incidents were based on fragments of conversations that may have been taken out of context and were not supported by the evidence, so the hypothesis was not consistent with the applicable SoP. Mr Rudge said that in this event the applicant would be unable to satisfy factor 1(a) of the SoP for PTSD and that, as a consequence, he would be unable to satisfy the relevant factors in the SoPs concerning the remaining conditions.

In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
The Tribunal has considered each of the steps in Deledio and notes that in Meehan v Repatriation Commission (2001) 64 ALD 366 Wilcox J held that, when considering the first step, the Tribunal must decide whether it is reasonably satisfied, in accordance with s120(4), that there is a condition as claimed. In respect of the first step, the Tribunal finds that the applicant suffered from PTSD with secondary alcohol abuse and depression, diabetes mellitus, psoriasis and hypertension. After taking into account all relevant material, the Tribunal finds that the material points to a hypothesis connecting the applicant's conditions with the circumstances of the particular service rendered by the applicant, so he satisfies the first step.
In respect of the second step, the Tribunal finds that SoP Nº 15 of 1994 as amended by Nº 225 of 1995 concerning PTSD, Nº 58 of 1998 concerning depressive disorder, Nº 5 of 1994 concerning psychoactive substance abuse or dependence, Nº 31 of 2001 concerning hypertension, Nº 47 of 1996 as amended by Nº 187 of 1996 concerning diabetes mellitus, and Nº 21 of 1998 concerning psoriasis were in force and are relevant.
In respect of the third step, the Tribunal notes that factor 1(a) of SoP Nº 15 of 1994 concerning PTSD requires,
experiencing a stressor prior to the clinical onset of post traumatic stress disorder;

Paragraph 4 of the SoP defines experiencing a stressor as:

…
(a)the person experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the person's, or other people's, physical integrity; and
(b)the person's response involved intense fear, helplessness or horror;

In Bull v Repatriation Commission (2002) 66 ALD 271 the Federal Court agreed with the analysis of reasonable hypothesis in East v Repatriation Commission (1987) 16 FCR 517 and stated at page 276:
…
18. 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…
19. Before proceeding any further two comments are appropriate. First, it should be borne in mind that the hypothesis to be raised by the material must be one connecting the disease or injury or death with the circumstances of service. Second, the phrases used by the court such as "not obviously fanciful', "not impossible", "not incredible", "tenable", "not too remote" and "not too tenuous" are useful elucidators of the meaning of "reasonable". This is especially so given the subtle range of meaning of the words and phrase "reasonable", "unreasonable" and "not unreasonable". Much depends on context and purpose. However, the words of elucidation should not be substituted for the words of the statute…What is required of the decision-maker by subs 120(3) is the formation of an opinion that the material before it does or does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service.

The Court quoted East approvingly, at page 276:

…
A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.

In respect of the third step, in relation to factor 1(a) of SoP Nº 15 of 1994 concerning PTSD, the Tribunal takes into account the evidence by the applicant, and notes that his recollection was first made nearly thirty years after the event. The Tribunal also takes into account that there is no evidence corroborating the applicant's version of events and no witnesses have come forward. The Tribunal accepts the evidence from Lieutenant-Colonel Conant that there is no record or investigation of an event fitting the description of the shots incident, even though the incident, as related by the applicant, would be a serious matter and was claimed to be known to a number of army personnel. There is no credible evidence about the applicant's reaction at the time of the incident or afterwards, and no explanation for the presence of a group of young people in the rice field or accurate description of their actions.

In relation to the helicopter incident and the artillery incident the Tribunal accepts the evidence from Lieutenant-Colonel Conant that, due to atmospheric quirks, the applicant may have overheard fragments of radio communications while operating the switchboard at the command post in Nui Dat. However, there is no corroborative evidence that the alleged conversations related to potentially dangerous situations. There is no evidence that other persons present at the time reacted in a way consistent with the applicant's interpretation, or that injuries or fatalities occurred in such circumstances.
For these reasons, and applying the principles set out in Bull and East, the Tribunal finds that the hypothesis raised does not meet the requirement of more than a possibility, not fanciful or unreal, consistent with the known facts. The Tribunal is not satisfied that the applicant meets the criteria in paragraph 4(a) of SoP Nº 15 of 1994, so he does not satisfy the definition of experiencing a stressor. Consequently he does not satisfy factor 1(a) of the SoP. Therefore the hypothesis does not fit, that is to say, is not consistent with the template to be found in the SoP. The Tribunal finds that the hypothesis connecting the condition of PTSD with the circumstances of the particular service rendered by the applicant is not reasonable. Therefore, the third step of Deledio is not met. Accordingly, there is no need for the Tribunal to consider the fourth step involving application of the facts.
In applying s120(3) of the Act the Tribunal has considered all the material available to it and, for the reasons outlined above, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that PTSD is a war-caused condition for the purposes of s120(1). Therefore, the Tribunal finds that this and the remaining conditions were not war-caused.
DECISION
The Tribunal affirms the decision under review.
I certify that the thirty-three [33] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Member
(sgd)       Catherine Thomas
              Clerk
Date of hearing:  1 October 2002
Date of decision:  11 October 2002
Advocate for applicant:               Mr P. Liefman
Solicitor for applicant:                  Peter J. Liefman
Advocate for respondent:            Mr K. Rudge
Solicitor for respondent:              Advocacy Section, Department of Veterans' Affairs