Evans and Repatriation Commission (Veterans' entitlements) - [2024] AATA 6

Evans and Repatriation Commission (Veterans' entitlements) [2024] AATA 6 (9 January 2024)
Division:VETERANS' APPEALS DIVISION
File Number: 2022/7127
Re:Christine Evans
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:9 January 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
..................................[SGD]......................................
R Cameron, Senior Member
Catchwords
VETERANS’ AFFAIRS – veteran deceased – claim for war widow’s pension – medic in South Vietnam during Vietnam War – whether death was war-caused – neurocognitive disorder with Lewy bodies dementia – major depressive disorder and posttraumatic stress disorder – Deledio steps – hypothesis connecting death to war service – three statements of principles – hypothesis not reasonable – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Collins v Repatriation Commission (2009) 177 FCR 280
Hunt v Repatriation Commission [2019] FCA 1191
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Summers v Repatriation Commission (2015) 230 FCR 179
Secondary Materials
Repatriation Medical Authority (Cth), Statement of Principles concerning Depressive Disorder (Reasonable Hypothesis) (No. 83 of 2015) (24 September 2018)
Repatriation Medical Authority (Cth), Statement of Principles concerning Neurocognitive Disorder with Lewy Bodies (Reasonable Hypothesis) (No. 35 of 2019) (1 March 2019)
Repatriation Medical Authority (Cth), Statement of Principles concerning Posttraumatic Stress Disorder (Reasonable Hypothesis) (No. 97 of 2022) (21 October 2022)
REASONS FOR DECISION
R Cameron, Senior Member
9 January 2024
INTRODUCTION AND PROCEDURAL HISTORY

The applicant seeks review of a decision made by the Veterans’ Review Board (‘Board’) on 20 July 2022 affirming a previous decision of the respondent, the Repatriation Commission, made on 24 June 2021. The decision-maker decided that the applicant’s late husband’s death was not related to war service, and therefore, a war widow’s pension was not payable to her under s 13 of the Veterans’ Entitlements Act 1986 (‘the Act’).[1]
[1] For the purposes of these reasons the applicant's late husband will be referred to hereinafter as ‘Mr Rogers’.
The applicant applied for a war widow’s pension on 19 October 2020.[2] The grounds relied upon by the applicant as giving rise to an entitlement for such war widow’s pension were that Mr Rogers’ death from a neurocognitive disorder with Lewy bodies was ‘war-caused’ within the meaning of s 8 of the Act.
[2] The application is document T12.1.4 of the T Documents.
By a decision made by a delegate on 24 June 2021, the respondent, after considering all of the evidence before it, reached the conclusion that it was unable to relate Mr Rogers’ neurocognitive disorder with Lewy bodies to his service in the Army.[3] The delegate who made the decision reached the conclusion that she was satisfied beyond reasonable doubt that the applicant’s death was not ‘war-caused’.
[3] The delegate’s decision is at page 244 of the Joint Tribunal Book (‘JTB’).
The applicant sought review of the respondent’s 24 June 2021 decision by an application brought before the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 6
Decision Date: 9 January 2024

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension following the death of Mr. Rogers, who served as a medical assistant in South Vietnam during the Vietnam War. The applicant sought to establish that Mr. Rogers' death, primarily from aspiration pneumonia with dementia with Lewy bodies as a contributory cause, was "war-caused." The case came before the Tribunal for review of a previous decision.

The central legal issues before the Tribunal were whether Mr. Rogers suffered from major depressive disorder or post-traumatic stress disorder (PTSD) at least 10 years prior to the clinical onset of his neurocognitive disorder with Lewy bodies dementia, and if so, whether specific stressors or environmental conditions during his service were met. These questions were framed within the context of the relevant Statements of Principles (SoPs) governing claims for neurocognitive disorder with Lewy bodies and PTSD.

The Tribunal applied the "Deledio steps" to assess whether the material before it pointed to a reasonable hypothesis connecting Mr. Rogers' death to his war service. While acknowledging the traumatic nature of service as a medic in Vietnam, the Tribunal found that the medical evidence did not establish that Mr. Rogers suffered from major depressive disorder or PTSD at least 10 years before the clinical onset of his Lewy bodies dementia. Consequently, the hypothesis connecting his death to his war service did not fit within the applicable SoPs, rendering it not reasonable.

As the hypothesis was deemed not reasonable, the Tribunal affirmed the reviewable decision, meaning the claim for a war widow's pension was not successful on the grounds that Mr. Rogers' death was war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Additionally, there was oral evidence from Mr Rogers’ former treating psychiatrist, Dr Dashtegoli. It should be observed that he was a most impressive witness both from the perspective of his attention to detail, recollection of his consultation with Mr Rogers, fairness and impartiality in his evidence and the way he genuinely understood his obligations to assist the Tribunal. He was of much assistance to the Tribunal.BACKGROUND FACTS The applicant’s husband, Mr Rogers, served in the Australian Army from 25 May 1964 until 24 May 1970. Between 22 April 1966 and 25 April 1967, he served in South Vietnam as a medical assistant, or as is frequently referred to, an ‘Army medic’. There can be no doubt that Mr Rogers’ posting or deployment to South Vietnam during the Vietnam War was ‘operational service’ within the meaning of the Act.[6][6] Veterans Entitlements’ Act 1986 (Cth) ss 5Q, 6 to 6F and 120. Mr Rogers died on 15 November 2018. Prior to his death, on 13 December 2017, he was diagnosed by a neurologist, Dr Poh-Sien Loh of the ‘Neurology Network Melbourne’, as suffering from diffuse Lewy body dementia. A report, or perhaps more accurately, a letter, from Dr Loh to Mr Rogers’ treating general practitioner at the Yea Medical Centre, Dr Teong Chyi Chuah, was in evidence before the Tribunal.[7][7] Page 283 of the JTB. The primary cause of Mr Rogers’ death was aspiration pneumonia. A further contributory cause of his death was found to be dementia with Lewy bodies.[8][8] Precise details of Mr Rogers’ death are found in the summary commencing at page 300 of the JTB. It should be recorded at this stage of these reasons that the diagnosis of Mr Rogers’ suffering from Lewy bodies dementia on 13 December 2017 is taken to be when the ‘clinical onset’ of the condition arose for the purposes of these claims. Further, the respondent has not contested, or otherwise disputed, that Mr Rogers suffered from this condition as and from that date, nor in any way challenged the diagnosis and conclusions expressed by Dr Loh in his letter to the treating general practitioner on that date. Reference should be made to the meaning of the term ‘clinical onset’. The words have been construed and a meaning given to them by several decisions of this Tribunal and, of course, the Federal Court. In a decision of the Full Court of the Federal Court of Australia in Lees v Repatriation Commission, Heerey, Moore and Kiefel JJ approved of a construction of such term that had been frequently adopted in previous Tribunal decisions as follows:There is a clinical onset of a disease, 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][9] (2002) 125 FCR 331, 6 [13] quoting Repatriation Commission v Cornelius [2002] FCA 750, 9 [26]. Given that there is no other medical evidence before the Tribunal identifying or establishing any other date for the clinical onset of the condition suffered by Mr Rogers, namely Lewy bodies dementia, the Tribunal is reasonably satisfied that the clinical onset of the condition was 13 December 2017.[10][10] Section 120(4) of the Act provides in relation to the standard of proof whereby except in making a determination to which sub-s (1) or (2) applies, in making any determination or decision in respect of a matter arising under the Act, the Commission shall decide the matter to its reasonable satisfaction.THE LEGISLATIVE FRAMEWORK

Evidence

Evidence Before The Court

The applicant sought review of the respondent’s 24 June 2021 decision by an application brought before the Board on 28 June 2021.[4] As already noted, the Board made the reviewable decision on 20 July 2022.[5][4] The Veterans’ Review Board application for review is at document 10.1 of the T Documents.[5] The reviewable decision is at page 73 of the JTB.THE EVIDENCE BEFORE THE TRIBUNAL The parties were helpfully able to prepare an agreed Joint Tribunal Book (‘JTB’) of documents which was received in evidence at the hearing of the application. Additionally, there was oral evidence from Mr Rogers’ former treating psychiatrist, Dr Dashtegoli. It should be observed that he was a most impressive witness both from the perspective of his attention to detail, recollection of his consultation with Mr Rogers, fairness and impartiality in his evidence and the way he genuinely understood his obligations to assist the Tribunal. He was of much assistance to the Tribunal.BACKGROUND FACTS The applicant’s husband, Mr Rogers, served in the Australian Army from 25 May 1964 until 24 May 1970. Between 22 April 1966 and 25 April 1967, he served in South Vietnam as a medical assistant, or as is frequently referred to, an ‘Army medic’. There can be no doubt that Mr Rogers’ posting or deployment to South Vietnam during the Vietnam War was ‘operational service’ within the meaning of the Act.[6][6] Veterans Entitlements’ Act 1986 (Cth) ss 5Q, 6 to 6F and 120. Mr Rogers died on 15 November 2018. Prior to his death, on 13 December 2017, he was diagnosed by a neurologist, Dr Poh-Sien Loh of the ‘Neurology Network Melbourne’, as suffering from diffuse Lewy body dementia. A report, or perhaps more accurately, a letter, from Dr Loh to Mr Rogers’ treating general practitioner at the Yea Medical Centre, Dr Teong Chyi Chuah, was in evidence before the Tribunal.[7][7] Page 283 of the JTB. The primary cause of Mr Rogers’ death was aspiration pneumonia. A further contributory cause of his death was found to be dementia with Lewy bodies.[8][8] Precise details of Mr Rogers’ death are found in the summary commencing at page 300 of the JTB. It should be recorded at this stage of these reasons that the diagnosis of Mr Rogers’ suffering from Lewy bodies dementia on 13 December 2017 is taken to be when the ‘clinical onset’ of the condition arose for the purposes of these claims. Further, the respondent has not contested, or otherwise disputed, that Mr Rogers suffered from this condition as and from that date, nor in any way challenged the diagnosis and conclusions expressed by Dr Loh in his letter to the treating general practitioner on that date. Reference should be made to the meaning of the term ‘clinical onset’. The words have been construed and a meaning given to them by several decisions of this Tribunal and, of course, the Federal Court. In a decision of the Full Court of the Federal Court of Australia in Lees v Repatriation Commission, Heerey, Moore and Kiefel JJ approved of a construction of such term that had been frequently adopted in previous Tribunal decisions as follows:There is a clinical onset of a disease, 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][9] (2002) 125 FCR 331, 6 [13] quoting Repatriation Commission v Cornelius [2002] FCA 750, 9 [26].

Decision

Reasons for decision

By reason of the fact that the medical evidence does not establish that Mr Rogers suffered from a major depressive disorder at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies, or that he had posttraumatic stress disorder at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies, the hypothesis fails to fit within the template of SoP No. 35 of 2019, Neurocognitive Disorder with Lewy Bodies (Reasonable Hypothesis). The hypothesis is therefore deemed not to be reasonable and regrettably the claim must fail. The Tribunal cannot determine for these reasons that Mr Rogers’ death was ‘war-caused.’CONCLUSION AND DECISION By reason of the foregoing matters the correct and preferable decision is to affirm the reviewable decision pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

Ratio Decidendi

Legal Principle Established

In order to determine the issue before it, the Tribunal is obliged to address the following questions:(a)Did Mr Rogers suffer from a ‘major depressive disorder’ at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies dementia (cl 9(1) of SoP No. 35)?(b)If yes to (a) above, when was the clinical onset of the major depressive disorder?(c)Further if yes to (a) above, did Mr Rogers experience a category 1A or 1B stressor within the 5 years prior to the clinical onset of the major depressive disorder (cl 9(1) of SoP No. 83)?(d)Did Mr Rogers suffer from posttraumatic stress disorder (PTSD) at least 10 years before the clinical onset of the neurocognitive disorder with Lewy bodies dementia (cl 9(2) of SoP No. 35)?(e)If yes to (d) above, did Mr Rogers experience a category 1A or 1B stressor and/or live or work in a hostile or life-threatening environment for a period of at least four weeks prior to the clinical onset of PTSD (cls 9(1), (2) and (3) of SoP No. 97)?CONSIDERATION Prior to undertaking the Deledio steps and applying ss 120 and 120A of the Act, the Tribunal must undertake several antecedent enquiries.[26][26] Collins v Repatriation Commission (2009) 177 FCR 280, 284 [18] per Mansfield and Stone JJ. The applicant, as a widow of the deceased veteran Mr Rogers, is a dependant of him in the relevant sense. The deceased veteran Mr Rogers has died, as noted above. Mr Rogers’ ‘kind of death’ was from a neurocognitive disorder with Lewy bodies dementia.The First Deledio Step With respect to the first Deledio step, the Tribunal has to determine whether all the material which is before it points to a hypothesis connecting Mr Rogers’ death with the circumstances of the service rendered by him during his deployment to South Vietnam during the Vietnam War as a medical assistant. The applicant’s advocate, Mr Horan, acknowledged that the evidence before the Tribunal as to precisely what Mr Rogers did and what he was exposed to during his deployment in South Vietnam is limited. He particularly highlighted the difficulty in obtaining access to service records, amongst other things, that might have revealed in more detail what Mr Rogers had been exposed to during such deployment. However, with some force and effect, the applicant’s advocate contended that Mr Rogers, as a medical assistant, would have been exposed to traumatic, confronting and terrible events. Such events would have included exposure to casualties from combat engagements with the enemy, including gunshot wounds and wounds caused by explosive devices, such as mines and other antipersonnel ordnance. The Tribunal considers it is appropriate to take into account the observations of the Board which described itself in its reasons, as it clearly is, ‘a specialist Tribunal’ with considerable knowledge of events that occurred during the 12 months of operational service that Mr Rogers undertook in Vietnam in 1966 and 1967. Mr Horan on behalf of the applicant, although not giving evidence, made submissions to a similar effect to the Board concerning the experiences that Mr Rogers would have faced during his deployment in South Vietnam. The Board recorded that during that period there were a significant number of contacts or battles by Australian troops with the enemy. Amongst these engagements were two large scale battles including the Battle of Long Tan on 18 August 1966 which resulted in 18 Australian deaths and 24 wounded. During that battle enemy mortar rounds were fired into the Australian base. There were apparently three and a half hours of continuous artillery fire from the Australian base at Nui Dat directed at enemy positions. Approximately 274 enemy soldiers were killed in that battle. Further there was described in the Board’s reasons ‘Operation Bribie’ which took place on 17 and 18 February 1967. That battle led to 16 Australian deaths and 55 wounded in action.