Dore and Repatriation Commission

[2004] AATA 646

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 646

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2002/1103

VETERANS' APPEALS DIVISION		)
Re		RAYMOND CHARLES DORE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date15 June 2004

PlaceSydney

Decision The decision under review is affirmed.

(Sgd)  M D Allen   
  ...................................

Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – claim for Post Traumatic Stress Disorder (PTSD) – not satisfied on balance of probabilities Applicant suffered PTSD as causative events not experienced by veteran - mere apprehension of an event happening does not equate to threatened death or injury - necessity for some actual event to have occurred – claim for Anxiety State rejected as unable to ascertain time of clinical onset so as to conform to Statement of Principles  – requirement that clinical onset be within two years of stressor

Veterans’ Entitlements Act 1986 – s 6C, ss 120(1), (3), (4) and (6), s 120A

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Benjamin v Repatriation Commission (2001) 70 ALD 622

Gerzina v Repatriation Commission [2004] FCAFC 96

Repatriation Commission v Budworth (2001) 116 FCR 200

State of New South Wales v Seedsman [2000] NSWCA 119

Repatriation Commission v Keeley (2000) 98 FCR 108

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Hill [2002] FCAFC 192

REASONS FOR DECISION

15 June 2004   Senior Member M D Allen   

1.      By application made on 5 August 2002, the Applicant sought review of a determination by the Respondent as affirmed by a Veterans' Review Board (“VRB”) that rejected his claim to have the condition described as post traumatic stress disorder (“PTSD”) attributed to his war service.

2.      Other conditions were also claimed by the Applicant at that time but the only matter pursued before this Tribunal was that of PTSD.

3.      The Applicant had service in Malaya with the 111 Light Anti Aircraft Battery, Royal Regiment of Australian Artillery from 9 June 1964 to 30 May 1996. Of that period, originally only the period between 23 October 1964 to 21 November 1964 was eligible service under the Veterans’ Entitlements Act 1986 (“VEA”). Pursuant to amendments to the said Act by the Veterans’ Affairs Legislation Amendment (Budget Measures) Act 2000 Schedule 4, the Applicant’s eligible service was between the periods 17 August 1964 to 31 May 1965 as and from 1 January 2001. This amendment does not effect eligibility criteria but would have affected the rate of pension to be paid to the Applicant had he been successful in his application.

4. As the Applicant had operational service as that term is defined in section 6C VEA, the standard of proof in this matter is that mandated by subsections 120(1) and (3) VEA. That is to say that the Tribunal shall grant the Applicant’s claim unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied beyond reasonable doubt if, after a consideration of all the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the injuries or diseases suffered by the Applicant with the circumstances of the service rendered by him. Pursuant to section 120A VEA, any hypothesis raised will not be a “reasonable hypothesis” unless it conforms with a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority in the circumstances where such an instrument has been issued.

5. Subsection 120(6) VEA provides that no party to this review bears any onus of proof.

6.      The manner in which the Tribunal must approach its task where a SoP is in force was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. Those principles are now well known and do not need recapitulation here.

7.      Notwithstanding the manner in which the Tribunal is required to approach its task as outlined in Deledio (supra), the first step is to ascertain the specific injuries or diseases suffered by the Applicant: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding, the standard of proof is to the Tribunal’s “reasonable satisfaction” and in which the SoP regime established by section 196B VEA has no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622.

8.      Initially, the Applicant was diagnosed by Psychiatrist, Dr Tsang as suffering from an adjustment disorder with angry effect. Dr Tsang also noted that the Applicant had suffered from alcohol abuse but that this was currently in remission.

9.      The Applicant’s evidence was that he had not drunk alcohol for 15 years after a warning from his general practitioner. He told Dr Tsang he had been hospitalised twice for intoxication.

10.     Prior to his appearance before the VRB, the Applicant was referred to Dr Altman, Psychiatrist. Dr Altman made a diagnosis of PTSD. At the hearing, two other reports by Dr Altman dated respectively 2 June 2003 and 4 December 2003 were in evidence.

11.     Exhibit R2 is a report by Dr Roberts, Psychiatrist to the Respondent dated 24 November 2002. In that report, Dr Roberts opines that the Applicant has no disease of the mind attributable to war service but does have a variety of physical complaints relating to possible cerebral degeneration.

12.     In passing, I must state that the Applicant did not assist his own case when in cross-examination, he refused to answer questions but resorted instead to making emotive statements. He also conceded that when pressed for details before the VRB, he resorted to saying the first things that came into his head. Dr Roberts in evidence commented that he thought the Applicant suffered from cognitive impairment. As a layman who has had some experience in dealing with witnesses before courts and Tribunals, I would have to agree with Dr Roberts’ opinion given the Applicant’s presentation before me.

13.     To be fair to the Applicant however, I understand his sense of resentment towards the VRB whose service member apparently produced some publication containing an “honour roll” and used it to suggest that the death of a member of the Applicant’s unit did not occur. The Respondent’s historian’s report (Exhibit R3) clearly sets out the details concerning the accidental death of the member of the unit and I would have thought that the VRB would have realised the necessity of going to source documents before implying that a veteran is fabricating evidence. Just because an event is not recorded does not mean it did not happen and the document referred to by the VRB has on the Respondent’s own evidence shown to be incorrect.

14.     Although five events are referred to by the Applicant as significant during his operational service, only one, namely being on duty awaiting a possible Indonesian air attack on Butterworth Air Base is relevant regarding the raising of any hypothesis connecting service with a psychiatric condition, irrespective of what label is placed upon the said condition.

15.     The death of the unit member is remembered by the Applicant. I am unclear as to how involved in the events surrounding the death of the member the Applicant was but it is unnecessary to decide this. The Applicant conceded that he thinks of the said member on Anzac Day and has some regrets but otherwise, it is not an event upon which he dwells.

16.     Similarly, the events of talking to Australian wounded evacuated from South Vietnam, transporting metal caskets containing the remains of Australian servicemen killed in South Vietnam, trips to the Thai border and an exercise at China Rock were all events which while affecting the Applicant at the time, were not stressful events of such degree as to be said to raise or point to an hypothesis that they were causative of any psychiatric illness.

17.     In submissions, the Applicant’s Counsel based the Applicant’s case upon the period the Applicant was on duty manning a Bofors Anti Aircraft gun alongside Butterworth airstrip. The Applicant’s Battery was part of the air defence measures for Butterworth Air Base in the case of an Indonesian attack on Malaya. He was particularly stressed in the period between the end of November 1964 and the end of January 1965 when the Base was on red alert (ie the highest state of alert). His evidence was that the then President of Indonesia, Sukarno, had stated an attack would be made on Malaysia “when the cock crows on Christmas Eve”.   

18.     In his statement, the Applicant said:

“I was extremely stressed for my whole time as a gunner. During the shift all we could do was sit and wait for an attack and I was always nervous at the prospect we would be attacked and I would die.”

19.     During evidence in chief, the Applicant put the matter more explicitly, stating that in the first six months at Butterworth, he feared for his life and that “I was packing death” and “I was scared shitless”.

20.     It is of course common knowledge that at no time did Indonesian forces invade Malaysia (as opposed to small scale incursions) and at no time was there any Indonesian aircraft in the vicinity of the Butterworth Air Base. The Applicant’s unit was prepared for combat but at no time did it engage with Indonesian forces.

21.     Drs Altman and Roberts gave conjoint evidence in these proceedings and it was apparent that both held to their opinions and that there was no common ground between them.

22.     The Applicant was referred to Dr Altman by his “advocate” at the Return Services League (“RSL”) for the purposes of the VRB proceedings. Dr Altman has become the Applicant’s treating psychiatrist. It is Dr Altman’s opinion that the Applicant suffers from a PTSD due to his Malayan war-experiences, primarily being scared while waiting to go into action against any Indonesian aircraft that attacked Butterworth Air Base.

23.     Dr Altman also refers to the incidents of seeing Australian wounded and transporting “coffins”. Given the evidence of the Applicant to the Tribunal, I do not regard these events as having amounted to severe stressors to the Applicant.

24.     Dr Roberts does not regard the Applicant as suffering from PTSD. Apart from being of the opinion that the Applicant does not meet the diagnostic criteria as set forth in the International Classification of Diseases being ICD 10 and also DSM-IV.

25.     In particular however, Dr Roberts opined that the mere threat of an attack by Indonesian forces could not cause a PTSD. At page 15 of his report of 24 November 2002, he referred to the definition of PTSD in Volume IV of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and what is required for the genesis of a PTSD, namely that:

“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 involve actual or threatened death or a serious injury or a threat to the physical integrity of self or others.

(2) The person’s response involved intense, fear, helplessness or horror”.

26.     At paragraph 309.81 of DSM-IV, the diagnostic features of PTSD are detailed. Discussing traumatic events, the manual states:

“Traumatic events that are experienced directly include, but are not limited to, military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness”.

27.     Although the DSM is not to be used as a forensic tool: see Gerzina v Repatriation Commission [2004] FCAFC 96, Dr Roberts has pointed out why in his opinion a diagnosis of PTSD cannot be made. The diagnosis requires a traumatic event which in this case did not happen and the reaction to the event must be one of “intense fear, helplessness, or horror”.

28.     As Dr Roberts went on to state in his report:

“While page (424) of this same text makes reference to military combat, as being a factor that may give rise to Post-traumatic stress disorder, what is difficult for me to comprehend is how a period of service in which nothing happened occurred, could possibly give rise to a disability”.

29.     Prior to seeing Dr Altman, the Applicant had been referred to Dr Tsang, Psychiatrist. In his report of 25 June 1999, Dr Tsang obtained a history that the Applicant had been a heavy drinker and had had two hospitalisations for intoxication. He also used to be a heavy smoker. Dr Tsang continued:

“…..He said he has stopped smoking cigarettes and is now only smoking marihuana occasionally when he is depressed”.

Dr Tsang then went on to opine:

“From the psychiatric point of view, I consider that Mr Dore is suffering from an Adjustment Disorder with Angry Affect. This is in response to his political views, changes in the Australian society and recent government legislative measures. I am unable to relate this directly to his war service. I am also unable to attribute his service as an aggravating factor.

From the history obtained, Mr Dore also suffered from Alcohol Abuse. This is currently in remission.”

30.     Given the pre-litigation report of Dr Tsang and the fact that no actual traumatic event as opposed to the anticipation of events occurred to the Applicant plus the fact that although the Applicant was very scared, there is no evidence that his reaction to the preparation for combat was one of intense fear, helplessness or horror (Tribunal’s emphasis). I am satisfied that the opinion of Dr Roberts is correct and that the Applicant does not suffer from PTSD.

31.     Notwithstanding that I am reasonably satisfied that the Applicant does not suffer from PTSD, I must consider whether any other psychiatric illness suffered by the Applicant is attributable to his war service. See Repatriation Commission v Budworth (2001) 116 FCR 200 at 207 or as was put by the New South Wales Court of Appeal in State of New South Wales v Seedsman [2000] NSWCA 119 at paragraph 121:

“The issue is not one of labelling, but of establishing a psychiatric injury of some character.”

32.     Cross-examined by the Applicant’s Counsel, Dr Roberts conceded that the Applicant could suffer from a mild to moderate anxiety of unknown aetiology in the context of a history of alcoholism, substance use and the lifelong history of anxiety symptoms.

33.     Whereas Dr Roberts conceded that the Applicant being frightened whilst at Butterworth could have led to an adjustment disorder, any adjustment disorder would by the definition of that disease in DSM-IV be deemed to be operative for six months after the stressor had ceased only. I deduce from that evidence that the Applicant no longer has an adjustment disorder caused by the circumstances of his war service.

34.     The suggestion that the Applicant suffers from a generalised anxiety disorder was first made by the Applicant’s general practitioner in 1999. The Applicant was then referred by the Respondent to Dr Tsang, who as stated above diagnosed an adjustment disorder.

35.     The diagnosis of generalised anxiety disorder was put to Dr Altman who opined that the symptoms referred to by the general practitioner were also applicable to PTSD. He then pointed out that PTSD is an anxiety disorder.

36.     Given the concession by Dr Roberts and the fact that PTSD is a particular type of anxiety disorder, I am satisfied that the Applicant does suffer a generalised anxiety disorder. Dr Roberts regards the aetiology of this condition as unknown although he implicates alcoholism, substance abuse and the Applicant’s upbringing. Dr Altman whilst adhering to his diagnosis of PTSD, would no doubt implicate the events of the Applicant’s service in Malaya as causative in this condition, although he does not say when either condition first manifested itself.

37. The Applicant has raised an hypothesis that his anxiety disorder has been caused by war service. In order for this hypothesis to be a reasonable hypothesis for the purposes of subsection 120(3) VEA, it must conform with a SoP.

38.     The current SoP concerning anxiety disorder is Instrument No.1 of 2000. This instrument revoked Instruments No. 48 of 1994 as amended by Instrument No. 275 of 1995 entitled generalised anxiety disorder, which instruments were in force at the time the Applicant made his original application to the Department of Veterans’ Affairs.

39.     Instrument No.1 of 2000 requires as a factor that must exist for the existence of a reasonable hypothesis that the veteran experienced a severe psychosocial stressor within two years immediately before the clinical onset of anxiety disorder.

40.     Severe psychological stressor is defined in Instrument No.1 of 2000 as :

“An identifiable occurrence that evokes feeling 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;”

41.     Instrument No. 48 of 1994 has as a factor for the existence of a reasonable hypothesis regarding what is termed generalised anxiety disorder that the veteran experienced a stressful event not more than two years before the clinical onset of generalised anxiety disorder. Stressful event is defined as meaning an occurrence which evokes feelings of anxiety or stress.

42.     In my opinion, Instrument No. 48 of 1994 is in terms which are more favourable to the Applicant than those in Instrument No. 1 of 2000, therefore in accordance with Repatriation Commission v Keeley (2000) 98 FCR 108, I must apply Instrument No. 48 of 1994 (as amended by Instrument No. 275 of 1995) to my consideration of this matter.

43.      Factor 1(b) of Instrument No. 48 of 1994 requires that the stressful event be experienced not more than two years before the clinical onset of generalised anxiety disorder. The term “clinical onset” was stated in Lees v Repatriation Commission [2002] FCAFC 398 to mean the presence of those signs or symptoms of a disease which if observed by a clinician would warrant a conclusion that the patient suffered from a particular illness or disease. See also Branson J in Repatriation Commission v Cornelius [2002] FCA 750.

44.     As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Hill [2002] FCAFC 192, any hypothesis relied upon 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.

45.     In this matter, although the Applicant has been found to be suffering from an anxiety state (previously referred to as a generalised anxiety disorder for SoP purposes), there is no material before me from which it can be deduced when the said disease had its clinical onset.

46.     Neither the Applicant’s general practitioner who diagnosed an anxiety disorder nor Dr Roberts who conceded that the Applicant might have an anxiety disorder addressed the question of its clinical onset and there is no other material from which it could be said that each element of the SoP required for the diagnosis to be made was present at any particular time.  The only facts raised by the evidence to support any hypothesis are:

(i)        The Applicant was diagnosed with an anxiety state in 1999;

(ii)       The Applicant had operational service in Malaysia;

(iii)      During that operational service, he was at times scared or saw sights   (eg body caskets, wounded) that were upsetting.

47.      Assuming for the purpose of the hypothesis that the clinical onset of the Applicant’s anxiety state was within two years after experiencing a stressful event, namely anticipation, in armed combat with invading Indonesian forces, then the hypothesis is a reasonable one.

48.      I am however satisfied beyond reasonable doubt that the facts necessary to support the hypothesis have been shown not to exist. There is no evidence before me as to the date of onset of the Applicant’s anxiety state. The only evidence which is from Dr Tsang implicated an onset of an adjustment disorder later than two years after service due to contemporaneous lifestyle events.

49.      As facts necessary to support the hypothesis have been shown not to exist, then the hypothesis is not a reasonable one and I am deemed to be satisfied beyond reasonable doubt that there is no sufficient ground for granting the Applicant’s claim so far as it relates to an anxiety state.

50.      As the Applicant dos not suffer from PTSD and I am satisfied beyond reasonable doubt that any anxiety state suffered by him is not war-caused, the decision under review is AFFIRMED.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed:         (K. Wong)
            .....................................................................................

Associate

Dates of Hearing  19 April and 24 May 2004
Date of Decision  15 June 2004
Counsel for the Applicant         Mr C Colbourne
Solicitor for the Applicant          Dibbs Barker Gosling
Advocate for the Respondent   Mr N Bunn