Dadge and Repatriation Commission
[2008] AATA 473
•6 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 473
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1826
VETERANS' APPEALS DIVISION ) Re KEVIN DADGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date6 June 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..............Signed...............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – entitlement to compensation – operational service – question of what medical conditions applicant suffers from – whether medical conditions are war-caused – condition of post-traumatic stress disorder not accepted as there is no sufficiently traumatic event – condition of generalised anxiety disorder not accepted as the hypothesis put forward is not reasonable – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) – ss 13, 120, 120A, 196B
Bull v Repatriation Commission (2001) 66 ALD 271
Drew v Repatriation Commission [2008] FCA 537
East v Repatriation Commission (1987) 16 FCR 517
Mines v Repatriation Commission (2004) 86 ALD 62
Repatriation Commission v Cornelius [2002] FCA 750
Robertson and Repatriation Commission (1998) 50 ALD 668
REASONS FOR DECISION
6 June 2008 Deputy President P E Hack SC Introduction
1.The applicant, Mr Kevin Dadge, served in the Royal Australian Air Force between January 1966 and May 1988. During that time he performed “operational service”, (as that term is used in the Veterans’ Entitlements Act 1986 (Cth) (the VEA)) in Vietnam between November 1970 and June 1971.
2.Mr Dadge says that he suffers from medical conditions that were caused by his operational service and that, accordingly, the Commonwealth is liable to pay him a pension. His claim was rejected by the respondent, the Repatriation Commission, in August 2005. That refusal was affirmed by the Veterans’ Review Board on 16 April 2007.
3.Mr Dadge now seeks a review in this Tribunal.
4.There are, speaking broadly, two issues to be decided:
(a) what medical conditions does Mr Dadge suffer from?
(b) are those conditions war-caused by reference to the provisions of the VEA?
The Statutory Scheme
5.By operation of s 13(1)(b) of the VEA, the Commonwealth is liable to pay a pension by way of compensation to a veteran who is incapacitated from a war-caused injury or disease.
6.Because the claim here made is in respect of incapacity from injury or disease that is said to relate to the operational service of Mr Dadge, the Commission, and the Tribunal in its stead, is bound to determine that the injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination[1]. Despite that, in making other determinations or decisions arising under the VEA, the Commission (and the Tribunal) is to decide those matters to its reasonable satisfaction[2]. The determination that must be made in the present case on that standard is the determination of diagnosis, that is, what condition Mr Dadge suffers from.
[1] See s 120(1) of the VEA.
[2] See s 120(4) of the VEA.
7.Once matters of diagnosis are determined it is then necessary to consider whether the condition is war-caused by testing any hypothesis said to be raised against the Statement of Principles determined by the Repatriation Medical Authority pursuant to s 196B(2) of the VEA[3].
[3] See s 120(3) and s 120A(3) of the VEA.
Factual Background
8.I start by recording some matters that are not in issue. Mr Dadge was born in November 1947 and was 18 years of age when he joined the RAAF. He trained as an airframe fitter which involved the maintenance and servicing of the airframe (i.e. structures and hydraulics). In November 1970, just short of his 23rd birthday, Mr Dadge was posted with 2 Squadron to the United States Air Force base at Phan Rang. There is, within the material before the Tribunal, a map that demonstrates that that was a very large base. It housed the 35th United States Tactical Fighter Wing to which 2 Squadron was attached.
9.The entire base was surrounded by a perimeter fence. From the map and from the other material it appears that the domestic area for 2 Squadron was over one kilometre from the nearest point of the perimeter fence. That domestic area was a 5 to 10 minute bus ride[4] from the runway and tarmac areas.
[4] Mr Dadge referred to 5 minutes in his statement and 10 minutes in his oral evidence.
10.Mr Dadge worked a six day week. Periodically, he was required to work a night shift which commenced at 4pm and concluded the following morning. Every six weeks or so Mr Dadge was rostered to perform the role of roving picket of the Australian quarters in company with another Australian airman.
11.The Australian living quarters comprised four or five rows of huts. Between the huts were bunkers, concrete shelters with a roof, to which the airmen resorted in the event of an air raid or similar. It is not in dispute that at around 11am on 29 November 1970 the base was attacked. Two 107mm rockets were fired at the base. There were no Australian casualties but one United States’ serviceman was wounded. Mr Dadge estimated that the rockets landed somewhere around 100 to 150 yards from the quarters where he was at the time. The billet area “was sprayed with a lot of dust and dirt”.
12.At the time of the attack Mr Dadge was off duty in his quarters. He heard the explosions and then the “incoming siren”. That required him to proceed with rifle helmet and flak jacket to the bunker adjoining his billet. The bunker was, he said, “rather dark and damp with no lights inside”. It may be helpful to set out a lengthy extract from the evidence given by Mr Dadge at the hearing. He said:
“Yeah, at the time I was in the hut on the bed and listening to a bit of music and writing a letter home to mum and dad. Myself and the other guys that were there, we heard this rather large explosion and then there was the incoming siren went off and whenever you hear the siren, the incoming siren, you get your rifle, helmet and flak jacket and make for the bunkers again. I might add that the bunkers we had to go to there were different to the other defence bunkers that if there was any likely incursion coming on. Those incursion bunkers were basically dugouts, just open dugouts. They were in the close proximity of the living quarters area, but the other air raid type bunkers were concrete shelters with a roof on and they were rather dark and damp with no lights inside and dampish inside.
Now, just to recap, you’ve explained the sequences: the explosion and then the siren? --- Yes.
Is that your recollection? --- Yeah.
Okay, and did you have any prior warning of anything being about to happen prior to you becoming aware of the explosion? --- No.
So you’ve explained that you made for the bunkers. Could you just explain the scene of this situation as it played out, the movement of the men? --- Yeah, you know, all the other guys that were around the living quarters of the area were all making for different bunkers. In between our – there was four or five long rows of huts and the bunkers were in between the huts and quite a number of guys, I don’t remember how many exactly, but all making for bunkers and a bit of pandemonium and what’s going on, you know, and all this. Some people were scrambling their way and others were a little more casual about it, but we’re all just heading for these bunkers.
Okay. So you went into the bunker, and how long would you say that you stayed in the bunker? --- A bit hard to say exactly now, but it was probably anywhere between 15 minutes and half an hour.
What were you doing whilst you were in the bunker? --- Just sitting there. Nobody giving us any instructions at all telling us what’s going on. We were just sitting there inside the bunker and wondering what was going on outside.
Did you eventually get some instructions? --- Eventually when the all clear siren went off, then we could leave the bunker and go outside.
How long would you estimate that was? --- Well, as I said, it could have been anywhere between 15 minutes and a half an hour, I think.
Now, I want to see – I withdraw that. Could you describe your state of mind in the course of this experience? --- I was quite stressed. Here I was, hadn’t been in the country very long and the incoming rocket attack siren going off and I’m thinking, “God, I’ve got another 11 months to put up with this before I go home. What am I doing? I should be back in Australia, not sitting here wondering whether somebody’s going to land one a bit closer?” Yeah, I was very stressed out about it and even some of my mates were actually looking across the road at the hill. As I mentioned earlier, there was this hill where some American officers had their quarters on the top. Well, it was just across the road from our quarters on the side of this hill where the rocket hit and our area, our billet area was sprayed with a lot of dust and dirt and so on.”
13.Mr Dadge made mention of other matters during his operational service, including occasions when the incursion siren sounded and he and the other airmen were required to attend upon a different bunker, a slit trench bunker, against the possibility of enemy incursion, and occasions when the airmen were subjected to spraying of chemicals to counteract mosquitoes, and visits to a nearby beach through territory thought to be enemy territory which made Mr Dadge “very anxious”.
14.It was not suggested by the Commission that I ought have any reason not to accept the evidence of Mr Dadge and I do so.
15.There was a further body of evidence from friends and family of Mr Dadge that compared how he appeared to them on his return from Vietnam with his manner and personality prior to that service. The evidence of his aunt, Mrs Elsie Clark, speaks of him being “a changed man” who was “depressed and very anxious” and who had “lost his happy go lucky nature”. Again I have no reason to doubt this, and similar, evidence that establishes that Mr Dadge came back from Vietnam to lay observers as “a changed man”. He himself reported having been provided with a sedative by an RAAF nurse in somewhat irregular circumstances but he discontinued use of the drug after a short period of time.
16.There is also a considerable body of evidence of more recent changes to Mr Dadge’s mood and personality. Mrs Janette Dadge, his wife since November 1972, detailed a number of changes that she has observed over the past 10 to 15 years. Similar observations were made by his daughter, Ms Tracey Price, on her return to Australia in 2001 after four years overseas.
Diagnosis
17.The claims initially made by Mr Dadge were described by him as “emotional behaviour” and irritable bowel syndrome[5]. It is accepted that the latter claim rises or falls on the basis of the former and that no separate consideration is warranted of that condition.
[5] A third claim was not pressed at the hearing.
18.Under the general rubric of “emotional behaviour” there are two conditions that need be considered – post traumatic stress disorder and generalised anxiety disorder. Both have been diagnosed at different times by different practitioners. There are reports available from four psychiatrists, Dr Bob Anderson, Dr Judith Gold, Dr John Gibson and Dr Catherine Oelrichs. Dr Oelrichs was the only doctor called to give evidence.
19.Dr Anderson treated Mr Dadge during 2004. Some aspects of Dr Anderson’s reports perplex me. The report of 6 January 2005 notes:
“Mr Dadge’s features of Major Depression are more fully documented in my clinical notes under the heading Complaint. He would also meet the criteria for Generalised Anxiety Disorder as well as Adjustment Disorder as mentioned in the notes but it should be recognised that in DSM IV some conditions are mutually exclusive, e.g. one cannot diagnose Adjustment Disorder if one diagnoses Post Traumatic Stress Disorder.”
Dr Anderson’s report went on to anticipate that the Commission, to which it was addressed, might have concerns about the severity of the “stressors”. That, certainly, is a concern that I have but ultimately the detail of Dr Anderson’s report is not such that I would confidently act upon it, the more so when there has been no opportunity to probe some of the conclusions reached by him without demonstrated logic.
20.Dr Gold interviewed Mr Dadge in July 2005 for the purposes of providing a report to the Commission. She has since retired from practice. Her diagnosis was of Generalised Anxiety Disorder. She was of the view that Mr Dadge’s symptomatology did not meet the criteria for post traumatic stress disorder, but again, in the absence of an ability to probe her reasons for this conclusion, it is not apparent why Dr Gold took this view.
21.Dr Gibson saw Mr Dadge for treatment on five occasions during 2006. Dr Gibson diagnosed generalised anxiety disorder.
22.I had the assistance of two reports from Dr Oelrichs and of evidence given by her in the course of the hearing. Dr Oelrichs was of the view that the appropriate diagnosis for Mr Dadge was Post Traumatic Stress Disorder (chronic), Generalised Anxiety Disorder and Major Depression (currently in remission). Her evidence expanded upon the matters set out in her reports.
23.To understand the issue that troubles me in relation to the proffered diagnosis of post traumatic stress disorder I need to examine the diagnostic criteria for the condition. Unusually for mental disorders a diagnosis of post traumatic stress disorder requires that there be a traumatic event of a particular character that evokes a response of particular gravity. The Diagnostic and Statistical Manual of Mental Disorders[6] (DSM – IV) describes the first diagnosis criteria in these terms:
“A. The person has been exposed to a traumatic event in which both of the following were present:
(1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others
(2) the person’s response involved intense fear, helplessness, or horror.”
[6] Fourth Edition, Text Revision at p 467.
24.The issue that troubles me is whether the occasion of the rocket attack on the Phan Rang base, and Mr Dadge’s reported response to it, answer the description given in the diagnostic criteria for post traumatic stress disorder. Despite the medical evidence, and despite the benefit of being able to raise my concerns directly with Dr Oelrichs, I am not satisfied that either the event or its response was of the requisite character. In adopting this approach I am not seeking to undertake the task of diagnosis; it would be impermissible of me to do so. Rather I am undertaking that part of the task of a decision-maker that Gray J described in Mines v Repatriation Commission[7] in these terms:
“It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran’s operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation.”
[7] (2004) 86 ALD 62 at 74, [48]; see also Drew v Repatriation Commission [2008] FCA 537.
25.Mr Dadge’s statements of 14 June 2004 and 31 October 2005 and his description of the event in his oral evidence did not convey to me any sense that he regarded the event as traumatic. Similarly, his response falls well short of what I would consider to be one involving “intense fear, helplessness or horror”. As high as Mr Dadge put it was that he was “quite stressed” and “very stressed” about the event.
26.Dr Anderson’s clinical notes which form part of his report record what Mr Dadge told him in relation to each of the diagnostic criteria for post traumatic stress disorder. What is said about the rocket attack is:
“Experienced in early time frame of arrivingng [sic] at Phan Rang Airbase a couple of mortars/rockets landing across the road from our living quarters”.
There are a number of other events referred to that appear to be regarded as “stressful incidents” by Mr Dadge. Mr Dadge’s response to these events is then set out as follows:
“All of the above created fear, shock and horror of being in a war zone, issued with rifle (or pistols in the case of SNCO’;s [sic] and Officers) with no ammunition and then being sprayed with an unknown and potentially lethal cocktail of chemicals at night. There were numerous occasions when we could have been killed.”
27.When asked to explain what, in Mr Dadge’s account, she regarded as satisfying the “response” criteria Dr Oelrichs referred to Mr Dadge’s descriptions of the “pandemonium”, of airman “running around” and of “not having any idea what was going on”. It is not difficult to imagine a setting where airman, required to resort to dark, damp bunkers after a rocket attack, lack immediate direction and purpose and it may readily be accepted that “pandemonium” is an apt description of the scene. But I am unable to accept that Mr Dadge’s reported response, even in that setting, could reasonably be regarded as one which involved “intense fear, helplessness or horror”.
28.Despite the views of Dr Oelrichs and, to a lesser extent, Dr Anderson, I am far from reasonably satisfied that a diagnosis of post traumatic stress disorder is able to be made on the evidence.
29.There is, however, an acceptance by the Commission, supported by the views of Dr Oelrichs, Dr Gold and Dr Gibson, that Mr Dadge suffers from generalised anxiety disorder. I accept that this is so. The controversy about this condition is not its diagnosis but its clinical onset however that issue is not determined by reference to reasonable satisfaction.
30.Having concluded that a diagnosis of generalised anxiety disorder is open it is now necessary to consider whether I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that that condition was war-caused.
31.Mr Harding submitted, and I accept, that a consideration of all the material pointed to a hypothesis that connected Mr Dadge’s generalised anxiety disorder with the circumstances of his operational service. That hypothesis is that Mr Dadge’s experience during the rocket attack of 29 November 1970 amounted to a stressor that answered the description of a category 1A stressor in the Statement of Principles for generalised anxiety disorder and that there was clinical onset of generalised anxiety disorder within five years after that event.
32.Instrument No 101 of 2007 is the Statement of Principles dealing with Anxiety Disorder. That condition is defined for the purposes of the Statement of Principles in a way that includes generalised anxiety disorder. Clause 6 of the Statement of Principles sets out the factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder with the circumstances of relevant service. That relied upon here is clause 6 (a)(ii), “experiencing a category 1A stressor within the five years before clinical onset of anxiety disorder”.
33.A “category 1A stressor” means,
“one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured”.
34.It is next necessary to decide whether the hypothesis fits the “template” of the Statement of Principles, that is, whether it was consistent with it. The hypothesis must be reasonable, that is, more than a mere possibility and not fanciful, and it must be consistent with the known facts[8].
[8] East v Repatriation Commission (1987) 16 FCR 517 at 533; Bull v Repatriation Commission (2001) 66 ALD 271 at 276, [18].
35.I am unable to regard the hypothesis postulated here as being reasonable because I am unable to conclude that the rocket attack was a “life threatening event”. Two rockets landed at some distance from Mr Dadge, he took shelter and no further attack took place. Mr Dadge did not regard the event as life threatening, he put it no higher than as being “stressful”.
36.There is, in any event, a further reason to conclude that the hypothesis is not reasonable and that relates to the temporal element of clinical onset. Clinical onset occurs “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present”[9]. While there is unchallenged lay evidence from family and friends that Mr Dadge was a “different person” following his service in Vietnam, there is no medical evidence that points to clinical onset within five years of that service (treating the whole of that service as the event for the purposes of this discussion). The evidence of Dr Oelrichs was that generalised anxiety disorder has been present for around a period of 10 years. That, as it happens, accords broadly with the evidence of Mrs Dadge about her observations of alterations to her husband’s mood and manner. But ultimately it is the complete absence of any evidence that points to clinical onset that leads me to conclude that the hypothesis is not reasonable for this additional reason.
[9]Robertson and Repatriation Commission (1998) 50 ALD 668 at 670, [23]; Repatriation Commission v Cornelius [2002] FCA 750 at [26].
37.Having reached this point I ought also consider whether the hypothesis advanced fits with the superseded Statement of Principles, Instrument No 1 of 2000. That, in clause 5(a)(ii), referred to:
“experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder.”
38.It will be immediately apparent that under this Statement of Principles the hypothesis is not reasonable, having regard to the issue of clinical onset. The same is true having regard to the definition of severe psychosocial stressor as meaning:
“an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”.
39.For the reasons I have already canvassed I do not regard the evidence here as pointing to any occurrence with the requisite gravity or the requisite response by Mr Dadge.
40.It follows that I would affirm the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ....................Signed..............................................
Jacqueline Woods, AssociateDates of Hearing 16 April 2008 & 19 May 2008
Date of Decision 6 June 2008
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Cockburn Legal and Consulting
Solicitor for the Respondent Departmental Advocate
0
6
0