Dahl-Helm and Repatriation Commission
[2006] AATA 817
•25 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 817
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2005/278
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER DAHL-HELM Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member) Date25 September 2006
PlaceAdelaide
Decision The Tribunal sets aside the decision under review and in place of that decision determines that:
(a) Mr Dahl-Helm’s conditions of alcohol dependence (in remission) and depressive disorder are war-caused; and(b) remits the matter to the Repatriation Commission for re-assessment of the applicant’s entitlement to a pension in accordance with these Reasons for Decision, on the basis that his entitlement to pension in respect of the conditions of alcohol dependence (in remission) and depressive disorder will commence from 21 November 2004.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that alcohol dependence (in remission) and depressive disorder were war-caused – consideration of statements of principles – observing mutilated children – being threatened by gangs of armed children – decision under review set aside
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 6, 9, 13, 120(1), 120(3), 120A, 196A and 196B
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331Bushell v Repatriation Commission (1992) 175 CLR 408
Statement of Principles Instrument No 58 or 1998
Statement of Principles Instrument No 76 or 1998
REASONS FOR DECISION
25 September 2006 Mr J G Short (Member) 1. Christopher Dahl-Helm served in the Australian Army from 4 February 1969 until 21 February 1975. His operational service was from 13 May 1971 until 17 December 1971 in South Vietnam. On 21 February 2005 Mr Dahl-Helm lodged a claim for pension in respect of conditions diagnosed as depressive disorder and alcohol dependence (in remission). On 25 May 2005 the Repatriation Commission (the Commission) determined that these conditions were not war-caused. This decision was affirmed by the Veterans’ Review Board (the VRB) on 25 August 2005. On 18 October 2005 Mr Dahl-Helm lodged an application to this Tribunal.
issues before the tribunal
2. The issue before me is whether the above mentioned conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (the VE Act). Both parties accept the diagnosis of Mr Dahl-Helm’s conditions and consistently with that acceptance, I find that Mr Dahl-Helm has experienced these conditions from at least the date of his formal claim for acceptance on 21 February 2005.
contentions
3. Mr Dahl-Helm asserts that his claimed conditions are relevantly related to his operational service in Vietnam and particularly resulted from his experience of stressors in the form of first observing a great many mutilated children begging and second, being threatened by gangs of young children armed with knives, sticks and batons.
4. Mr Dahl-Helm asserts that he experienced both alcohol dependence and depressive disorder from about the time of these occurrences and certainly within 2 years of those events.
legislative background
5. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
6. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, inter alia, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
7. Section 13(1) of the VE Act provides, in effect, that where a veteran has become 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 veteran.
8. As the applicant has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, 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.
Note: This subsection is affected by section 120A.”
9. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
consideration
10. The claimed conditions of alcohol dependence (in remission) and depressive disorder are the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s 120 of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97] in the following way:
“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 under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a 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.”
11. In considering whether there is an hypothesis connecting Mr Dahl-Helm’s conditions with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
12. An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
13. As regards the first and second steps in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed conditions with Mr Dahl-Helm’s operational service. That hypothesis is that one or both of the contended events have resulted in Mr Dahl-Helm suffering alcohol dependence (in remission) and depressive disorder, and that consequently those conditions are war-caused. The second Deledio step is satisfied in that SoPs have been issued in respect of depressive disorder, Instrument No 58 of 1998, and in respect of alcohol dependence, Instrument No 76 of 1998.
14. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
depressive disorder
15. Under clause 4 of the Sop for Depressive Disorder at least one of the factors set out in clause 5 must be related to the relevant service, in this case being operational service performed by the veteran. It was asserted that the relevant factor in this case is factor 5(b):
“experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;”
16. Mr Dahl-Helm referred to two events which he asserts occurred while in South Vietnam.
Observing mutilated children
17. Mr Dahl-Helm said that he had worked primarily as a cook, stationed at Nui Dat in South Vietnam. He said that on travelling to nearby villages and during a brief stay in Vung Tau prior to his departure from South Vietnam, he observed many mutilated children, some with their legs and eyes missing. He said that some had also been severely burnt. He said that many of the children were very young and that he had been told that some of these children had been deliberately mutilated to enhance their success in begging. Mr Dahl-Helm said that he had been shocked and saddened by what had been done to them.
Being threatened by groups of armed children
18. Mr Dahl-Helm said that during one visit to Vung Tau, he had been surrounded and approached by two groups of very young Vietnamese children armed with knives, sticks and batons. Mr Dahl-Helm did not suggest that he had been chased but did say that he had been the centre of their focus and that he had felt threatened by these children. He considers that he would have been severely injured by the children had it not been for the appearance of a number of American soldiers. This caused the children to withdraw back into the darkness. Mr Dahl-Helm said that he had been in fear for his life and safety.
19. Mr Dahl-Helm said that his alcohol consumption, which he suggested had been “social” prior to his arrival in Vietnam, had gradually increased after his arrival. It greatly increased after his experience of the two above mentioned events. Similarly, Mr Dahl-Helm said that he had experienced depression from about the time of these events and that his depression had continued after his return to Australia in December 1971. He said that he recalled his 22nd birthday in Australia in July 1972. He shared a birthday party with his sister. He said that some young people at the birthday party had discovered that he had been to South Vietnam and “picked on” and abused him. Mr Dahl-Helm said that later in 1972, he had been in Townsville where he became drunk and drove his car off a wharf. He said that he had intended to kill himself. However, the car had floated and he had been picked up by a boat. He was later charged and convicted of drink driving. Mr Dahl-Helm also gave evidence that a few years later he had again attempted suicide. On this occasion his rifle had failed to discharge.
20. Psychiatrist, Dr M Ewer, provided a report dated 12 April 2005. In that report Dr Ewer diagnosed Mr Dahl-Helm as suffering from depressive disorder and from alcohol dependence (in remission). Dr Ewer said that he considered that both Mr Dahl-Helm’s depressive disorder and his alcohol dependence (in remission) had their clinical onset within two years of Mr Dahl-Helm’s service in South Vietnam. He said that he had formed this view in the light of evidence provided to him by Mr Dahl-Helm. He said that he was satisfied that Mr Dahl-Helm’s depressive disorder had started within two years of his Vietnam experiences by comparing the statements made by Mr Dahl-Helm about his feelings then, with the DSM IV diagnostic criteria for depressive disorder. He said that Mr Dahl-Helm suffered and continues to suffer from a major depression. He said that Mr Dahl-Helm had reported experiencing symptoms, (within two years of his experience of stressors in South Vietnam), of being distressed most of the time; being tearful; withdrawn from people; trouble sleeping; being unable to enjoy life generally and having very low self-esteem. Dr Ewer said that Mr Dahl-Helm’s report of a suicide attempt in Townsville fortified his belief that Mr Dahl-Helm experienced a major depression within two years of experiencing the asserted relevant events in South Vietnam.
21. Dr Ewer also expressed the opinion that the clinical onset of Mr Dahl-Helm’s alcohol dependence (in remission) was within two years of experiencing the asserted stressors in South Vietnam. Dr Ewer said that his opinion had been based on the information provided to him by Mr Dahl-Helm, particularly symptoms of tolerance to alcohol, and spending many more hours than had been intended drinking larger amounts than had been intended. He also referred to the fact that Mr Dahl-Helm’s drinking continued, notwithstanding significant problems such as vomiting.
22. Although not specifically addressing the Tribunal in relation to any of the first three steps described in Deledio, the Commission asserted that the probable cause of Mr Dahl-Helm’s claimed conditions was his feelings of guilt at having served in Vietnam. The Commission referred to Mr Dahl-Helm’s evidence to the effect that after being abused by young people at the shared birthday party, Mr Dahl-Helm took the abuse very much to heart as he agreed with many of the things that were being said. He believed that he had not been “one of the good guys”.
23. I have considered all the evidence before me in relation to Mr Dahl-Helm’s depressive disorder. The asserted nexus with operational service in relation to this condition is the experiencing of a severe psychosocial stressor. This term has been defined 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
24. I consider that Mr Dahl-Helm’s evidence of observing mutilated children begging, although upsetting, was not the type of event which would satisfy the definition of a severe psychosocial stressor. I do however find that the incident of being confronted and intimidated by groups of armed street children and reasonably believing that they were intent upon attacking him with their weapons, did cause Mr Dahl-Helm substantial distress and does fit the prescribed template for a severe psychosocial stressor. Step 3 of the Deledio process is satisfied in respect of depressive disorder.
alcohol dependence (in remission)
25. Mr Dahl-Helm asserted that a nexus with his service and this condition could be found through experiencing “a severe stressor”. This term is defined in clause 8 of the relevant SoP as meaning:
“… the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or others people’s physical integrity, which event or events might evoke intense fear, helplessness or horror.”
26. Mr Dahl-Helm relied on the same events as discussed in relation to the asserted cause of his depressive disorder.
27. I consider that the observation of mutilated children does not fit the template for experiencing a severe stressor as is required by factor 5(b) of the relevant SoP that is:
“experiencing a severe stressor within two years immediately before the clinical onset of alcohol dependence or alcohol abuse;”
While upsetting, this observation does not in my view involve the actual or threat of death or serious injury.
28. I find however that being threatened by groups of armed children does meet the definition of experiencing “a severe stressor”. This did involve the threat of serious injury and in my view reasonably caused Mr Dahl-Helm to experience intense fear. Step 3 of the Deledio process is satisfied in relation to alcohol dependence (in remission).
29. I now turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE Act to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. If I am not so satisfied, Mr Dahl-Helm’s claims must succeed by virtue of s 120(1) of the VE Act.
30. The Commission confined its closing remarks to submissions in respect of this fourth stage of Deledio. The Commission suggested that although Mr Dahl-Helm was attempting to tell the truth, his evidence had been self-contradictory. The Commission referred to Mr Dahl-Helm as having provided contradictory evidence in relation to his drinking pattern prior to his arrival in South Vietnam. On one occasion Mr Dahl-Helm had indicated that he had primarily consumed beer and had been a social drinker, prior to arriving in Vietnam. He later said that he had on some occasions prior to arriving in South Vietnam consumed perhaps half a bottle of rum. I was also referred to Mr Dahl-Helm’s written statement to the effect that he had been chased by armed children, whereas at hearing he said that he turned around and noticed gangs of children approaching him. I remind myself that these events are alleged to have occurred over 30 years ago, and although Mr Dahl-Helm may have been inconsistent in some particulars of his evidence, I am not satisfied that the occurrence of any of the necessary elements of either of the relevant SoPs has been disproved beyond reasonable doubt or that contrary facts have been proved beyond reasonable doubt. I am consequently not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the conditions of depressive disorder and alcohol dependence (in remission) are war-caused. I accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Dahl-Helm’s conditions are war-caused.
decision
31. For the above reasons, I set aside the decision under review and in place of that decision determine that Mr Dahl-Helm’s depressive disorder and alcohol dependence (in remission) are war-caused.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
Signed: ...............J Coulthard.........................................
AssociateDate of Hearing 16 August 2006
Date of Decision 25 September 2006
Counsel for the Applicant Mr S Churches
Solicitor for the Applicant Tindall Gask Bentley
Advocate for the Respondent Mr Adrian Crowe (DVA)
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