Evans and Repatriation Commission (Veterans' entitlements)
[2024] AATA 6
•9 January 2024
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 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].
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
The Act creates a legislative platform by which dependants of deceased veterans whose death was ‘war-caused’ are entitled to a pension: s 13(1).
Under s 8 of the Act, where a ‘veteran’ (as defined in s 5C(1), read with s 7) dies, such death shall be taken to have been ‘war-caused’ if the death of the veteran resulted from an occurrence that happened while the veteran was rendering ‘operational service’.
Further, s 8(1) of the Act provides that the death of a veteran shall be taken to have been ‘war-caused’ in certain circumstances. Those circumstances include the following:
(a)The death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)The death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
The injury or disease from which the veteran died is an injury or disease that has been determined, in accordance with s 9, to have been a war-caused injury, or a war-caused disease, as the case may be.
Where a claim for a pension is made by a dependant of a deceased veteran (under s 13), such claim is assessed in accordance with the standard of proof enumerated in ss 120 and 120A of the Act. Importantly, s 120(1) of the Act provides that where a claim for a pension in respect of the death of the veteran relates to operational service rendered by the veteran, the Commission shall determine the death of the veteran was ‘war-caused’ unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
It has been suggested in several authorities that have considered the construction and application of s 120(1) that the practical effect of it is to apply a ‘reverse criminal onus’ or a ‘reverse criminal standard of proof’ in relation to whether the injury or disease is war-caused.[11] On its true and proper construction neither the applicant nor the respondent bear an onus of proof. In the sense that it is the ‘reverse’ of the criminal standard of proof the decision-maker (in this case the Tribunal) is required to be satisfied of the negative, namely that the injury or disease was not war-caused, beyond reasonable doubt.
[11] See, eg, Summers v Repatriation Commission (2015) 230 FCR 179, 185-6 [25] and Hunt v Repatriation Commission [2019] FCA 1191, 5 [13].
Section 120(3) of the Act provides that in applying s 120(1), in respect of the death of the person, related to service rendered by the person, the decision-maker shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that:
(a)The injury was a war-caused injury or a defence-caused injury;
(b)The disease was a war-caused disease or a defence-caused disease; or
(c)The death was war-caused or defence-caused;
as the case may be, if the decision-maker, 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.
Nothing in s 120, or any other provision of the Act, imposes a presumption that the death of a veteran is war-caused or defence-caused: s 120(5) of the Act. Further, it does not impose on the claimant or applicant, or for that matter the Commonwealth or the Department, or any other person, in relation to a claim, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application including whether or not, as in this case, the death of the veteran was war-caused: s 120(6) of the Act.
It is apparent that ss 120 and 120A, are an important, if not central, part of the scheme created by the Act. As such, the mechanism or process of that scheme to establish a causal connection between the veteran’s death and their service, should be construed and applied beneficially towards an applicant. This recognises, as has been emphasised in several authorities, that it is a matter of great public importance to provide adequately for incapacitated ex-service personnel, or their dependants when they have passed away. The critical importance that ss 120 and 120A play in the scheme follows from the special recognition given in the Act to the risk of injury or death to which service personnel are exposed. They have been described as ‘provisions for the resolution of claims which are unusually favourable to veterans.’[12]
[12] Summers v Repatriation Commission (2015) 230 FCR 179, 187 [31].
Under s 120A of the Act, for the purposes of s 120(3), a hypothesis connecting 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 Statement of Principles determined under s 196B(2) or (11) that upholds the hypothesis.
The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio identified a four-step process or framework to be adopted by the Tribunal in applying ss 120 and 120A of the Act; commonly referred to as ‘the Deledio steps’ as follows:
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.[13]
[13] (1998) 83 FCR 82, 97-8.
It is readily apparent, and not in dispute, that there are three Statements of Principles (SoP) determined under s 196B(2) of the Act in force applicable to the conditions from which Mr Rogers suffered.[14]
[14] Hereinafter, reference to a ‘Statement of Principles’ will be ‘SoP’.
The first one is a Statement of Principles concerning Neurocognitive Disorder with Lewy Bodies (Reasonable Hypothesis) (No. 35 of 2019).[15]
[15] Hereinafter referred to as ‘SoP No. 35.’
SoP No. 35, is expressed to apply to a claim to which s 120A of the Act applies.[16]
[16] Clause 5 of SoP No. 35.
With respect to the kind of injury, disease or death to which the SoP relates, SoP No. 35 is expressed to be about the neurocognitive disorder with Lewy bodies and death from neurocognitive disorder with Lewy bodies.[17]
[17] Clause 7 of SoP No. 35.
Relevantly, SoP No. 35 at cl 9 states as follows:
Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting neurocognitive disorder with Lewy bodies or death from neurocognitive disorder with Lewy bodies with the circumstances of a person’s relevant service:
(1) having major depressive disorder at least ten years before the clinical onset of neurocognitive disorder with Lewy bodies;
(2) having posttraumatic stress disorder at least ten years before the clinical onset of neurocognitive disorder with Lewy bodies ...
The second one is a Statement of Principles concerning Depressive Disorder (Reasonable Hypothesis) (No. 83 of 2015).[18]
[18] Hereinafter referred to as ‘SoP No. 83’.
SoP No. 83 is expressed to apply to a claim to which s 120A of the Act applies.[19]
[19] Clause 5 of SoP No. 83.
With respect to the kind of injury, disease or death to which the SoP relates, SoP No. 83 is expressed to be about depressive disorder and death from depressive disorder.[20]
[20] Clause 7 of SoP No. 83.
Relevantly, SoP No. 83 at cl 9 states as follows:
Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service:
(1) for major depressive disorder, major depressive episode, persistent depressive disorder, premenstrual dysphoric disorder, other specified depressive disorder and unspecified depressive disorder only:
…
(b)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
(c)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder …
‘Schedule 1 – Dictionary’ of SoP No. 83 contains the following definitions:
category 1A stressor means one 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.
category 1B stressor means one of the following severe traumatic events:
(a) killing or maiming a person;
(b) being an eyewitness to a person being killed or critically injured;
(c) being an eyewitness to atrocities inflicted on another person;
(d) participating in the clearance of a corpse or a critically injured casualty; or
(e) viewing a corpse or a critically injured casualty as an eyewitness.
…
DSM-5 means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013.
major depressive disorder (incorporating major depressive episode) means a disorder of mental health meeting the following diagnostic criteria (derived from DSM-5).[21]
[21] Five diagnostic criteria are referred to in the sub-paras underneath this definition. They need not be reproduced for the purposes of these reasons. Suffice to say the symptoms referred to in those diagnostic criteria are detailed and extensive.
The third one is a Statement of Principles concerning Posttraumatic Stress Disorder (Reasonable Hypothesis) (No. 97 of 2022).[22]
[22] Hereinafter referred to as ‘SoP No. 97’.
SoP No. 97 is expressed to apply to a claim to which section 120A of the Act applies.[23]
[23] Clause 5 of SoP No. 97.
With respect to the kind of injury, disease or death to which the SoP relates, SoP No. 97 is expressed to be about posttraumatic stress disorder and death from posttraumatic stress disorder.[24]
[24] Clause 7 of SoP No. 97.
‘Schedule 1 – Dictionary’ of SoP No. 97 contains the definitions. ‘Category 1A stressor’ and ‘category 1B stressor’ are defined identically to ‘category 1A stressor’ and ‘category 1B stressor’ in ‘Schedule 1 – Dictionary’ of SoP No. 83.
The term ‘hostile or life-threatening environment’ is defined in Schedule 1 of SoP No. 97 as follows:
hostile or life-threatening environment means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a)experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;
(b)experiencing or being under threat of nuclear, biological or chemical agent attack; or
(c)being involved in combat or going on combat patrols.
CONCESSIONS MADE BY THE RESPONDENT OR MATTERS OTHRWISE NOT IN DISPUTE[25]
[25] These concessions were made by the respondent in its Statement of Facts, Issues and Contentions lodged with the Tribunal on 14 July 2023. They were properly made as such facts were clearly apparent from the evidence that was before the Tribunal in any event.
There have been several concessions made by the respondent or matters relevant to the determination of this application that are not in dispute between the parties.
Firstly, Mr Rogers’ ‘kind of death’ was from, amongst other things, a neurocognitive disorder with Lewy bodies dementia.
Secondly, Mr Rogers was diagnosed with neurocognitive disorder with Lewy bodies dementia. The date of the onset of such condition was 13 December 2017 when he was diagnosed by the neurologist, Dr Loh.
Thirdly, Mr Rogers’ service in South Vietnam was both ‘eligible war service’ and ‘operational service’ within the meaning of s 8 of the Act.
ISSUES FOR DETERMINATION BY THE TRIBUNAL
The respondent in its Statement of Facts, Issues and Contentions dated 14 July 2023 has helpfully distilled the issue and questions arising therefrom that the Tribunal, as decision-makers, must determine in order to decide this application.
The question, or issue, to be determined is whether Mr Rogers’ death was ‘war-caused’ within the meaning of the relevant sections of the Act, namely, ss 8, 120 and 120A.
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.
In evidence before the Tribunal was a statement from a civil celebrant who apparently knew Mr Rogers. In that statement the celebrant has reproduced quotes attributed to him that appeared in his local regional newspaper, the ‘Yea Chronicle’, on 24 September 2003.[27] In that extract, amongst other things, it observed that Mr Rogers served in the 2 Field Hospital and his experiences were both dramatic and traumatic. Reference is also made, in that extract, to him describing being present when Nui Dat was being shelled shortly prior to the Battle of Long Tan. It was described as a frightening experience which also required every available man to assist with removing shells from wooden cases and passing them along a human chain. Additional quotes attributed to Mr Rogers included that he observed many young men maimed for life with horrific injuries. A particular account was also provided of Mr Rogers describing nursing a young 20-year-old man who was severely wounded who, ultimately, upon being evacuated to Australia, succumbed to his injuries.
[27] The statement is contained in a two-page email commencing at page 20 of the JTB.
During the period of Mr Rogers’ service in South Vietnam, there was an escalation in the number of Australians serving in that war. The Tribunal agrees that during this period it is reasonable to assume that he would have experienced traumatic, stressful and challenging events. More likely than not, there would at the very least have been some regular contact with wounded, probably seriously wounded, soldiers whose injuries would have been horrendous. Such contact by Mr Rogers with injured soldiers would probably have included those who had lost limbs in mine and booby-trap explosions. There would have been, more probably than not, exposure to the bodies of deceased soldiers.
Dr Dashtegoli first examined Mr Rogers on 24 February 2016 following a referral from his treating general practitioner who was concerned about his mood. Dr Dashtegoli diagnosed Mr Rogers as suffering from a major depressive disorder. He stated his main concern with respect to Mr Rogers was his depression. His evidence was that he considered the date of clinical onset of such condition was more likely than not 5 years before he first saw him, which he felt was more likely than not triggered by the death of his wife. The applicant’s contention was that such condition had existed long before that time, most probably caused by his active service in South Vietnam. Dr Dashtegoli also stated that depression and any other chronic mental health condition can increase the risk of a patient contracting dementia.
Dr Dashtegoli gave evidence that when he saw Mr Rogers in February 2016, he denied having any of the symptoms or the criteria derived from DSM-5-TR concerning PTSD. He explained that during his first assessment of Mr Rogers in February 2016, he took him through each of the eight criteria contained in cl 7 of SoP No. 97. The patient denied having any of those symptoms of PTSD. However, Dr Dashtegoli did readily concede in response to questions put to him that he would not be able to rule it out. He also readily conceded that Mr Rogers’ experiences in Vietnam could have led to the development of PTSD. The flashbacks referred to by Dr Dashtegoli, both in his evidence and a report of 24 February 2016 to his treating general practitioner, were new symptoms.[28] Mr Rogers had not experienced them throughout his life. Dr Dashtegoli explained that later in life, such symptoms indicative of PTSD could emerge. More specifically, the condition can emerge 20-30 years later.
[28] The report from Dr Dashtegoli to Mr Rogers’ treating general practitioner of 24 February 2016 is at page 377 of the JTB.
Given the totality of the material before it, as limited as it is, the Tribunal is prepared to find that it points to a hypothesis that the death of Mr Rogers from a neurocognitive disorder with Lewy bodies was connected to his operational service in South Vietnam during the Vietnam War. Further, given the totality of the material before it, also as limited as it is, the Tribunal is also prepared to find that it points to a hypothesis that Mr Rogers suffered from posttraumatic stress disorder connected to his operational service in South Vietnam during the Vietnam war.
The Second Deledio Step
In accordance with the second Deledio step, as noted above in these reasons at paragraphs 23 to 37, there are in force three SoPs determined by the Repatriation Medical Authority under s 196B(2) of the Act. The applicability of these three SoPs were readily acknowledged by all parties to the application. Having ascertained this, there is nothing further that the Tribunal is required to do with respect to this step.
The Third Deledio Step
The third Deledio step requires the Tribunal to form the opinion as to whether the hypothesis raised is a reasonable one. In doing so the Tribunal is required to determine whether the hypothesis fits within, or is consistent with, the ‘template’ found in the applicable SoP.
It should be noted, for the reasons outlined above at paragraphs 10 to 12, that the date of the clinical onset of the condition of a neurocognitive disorder with Lewy bodies dementia, in the case of Mr Rogers, is taken to be 13 December 2017.
Clause 9, ‘Factors that must exist’, of SoP No. 35, requires at least one of the factors identified in that clause as a minimum to exist before it can be said that a reasonable hypothesis has been raised connecting the neurocognitive disorder with Lewy bodies with the circumstances of Mr Rogers’ relevant service. The two factors relied upon by the applicant are cl 9(1), ‘having major depressive disorder at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies’ and cl 9(2), ‘having post-traumatic stress disorder at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies’.
Turning firstly, to the question of whether Mr Rogers had a major depressive disorder, to establish the existence of that factor it is necessary for him to have had such disorder prior to 13 December 2007. This requires the evidence before the Tribunal to be from a medical practitioner to the effect that the clinical onset of a major depressive disorder occurred prior to that date.[29] Unfortunately, there is no evidence from a doctor expressing the opinion, or otherwise diagnosing Mr Rogers as suffering from a major depressive disorder prior to 13 December 2007.
[29] See, eg, Repatriation Commission v Cornelius [2002] FCA 750, 9 [25]–[29].
Unfortunately for the applicant, with respect to whether Mr Rogers suffered a major depressive disorder 10 years before the clinical onset of the neurocognitive disorder with Lewy bodies, Dr Dashtegoli a psychiatrist, did not express such an opinion, or diagnose such a condition during that time. Several features of the evidence emerging from him, both during his evidence in the witness box and in documentary form in the several written reports he prepared for Mr Rogers’ treating general practitioner, should be referred to concerning this question.
Mr Rogers’ treating general practitioner, as noted earlier, referred Mr Rogers to Dr Dashtegoli. Both in his letter to that general practitioner of 24 February 2016, and from the witness box, Dr Dashtegoli stated that the referral was for assessment and management of Mr Rogers’ depression. Mr Rogers informed Dr Dashtegoli of his service in Vietnam as a medic and that he was on ‘the frontline’. In the report of 24 February 2016, Dr Dashtegoli has recorded that Mr Rogers described having a normal life after war. In the witness box Dr Dashtegoli stated that he probed Mr Rogers extensively about his life from childhood through to adulthood. The first consultation went almost two and a half hours. Mr Rogers denied any prior psychiatric history. He saw Mr Rogers on six occasions between early 2016 and early 2018.
When specifically asked to express an opinion as to the date of clinical onset of Mr Rogers’ depressive disorder, he stated approximately 5 years before he first saw him. This opinion was expressed both in his letter to the treating general practitioner on 24 February 2016 and consistently, in his evidence from the witness box. Dr Dashtegoli was also specifically asked whether he could express an opinion that the depression suffered by Mr Rogers had a date of clinical onset prior to 13 December 2017, and he consistently stated he would not be able to do so.
In terms of Mr Rogers’ active service and whether it might have led to an undiagnosed condition of a major depressive disorder, Dr Dashtegoli stated that he could not answer such a question because he did not have retrospective evidence about Mr Rogers’ life after his return from Vietnam. He also repeated in response to careful probing that when he saw Mr Rogers, he denied having any symptoms that might give rise to such a condition. This was consistent with the observation made in the report of 24 February 2016 from Dr Dashtegoli that Mr Rogers described having had a normal life after war. Therefore, there is no material from a doctor which says that Mr Rogers suffered from a major depressive disorder at least 10 years before the clinical onset of the neurocognitive disorder with Lewy bodies. Accordingly, this factor cannot be relied upon.
With respect to PTSD, Dr Dashtegoli was probed very carefully about whether or not Mr Rogers had such a condition and, if so, where he had PTSD at least 10 years before the clinical onset of neurocognitive disorder with Lewy bodies. Dr Dashtegoli quite fairly in response, said he would not be able to rule it out. However, he did state that he carefully probed Mr Rogers when he saw him, and he did not diagnose PTSD.
Dr Dashtegoli explained that when he saw Mr Rogers, he probed him carefully with respect to the eight criteria derived from DSM-5-TR contained in cl 7 of SoP No. 97. When he went through each of these criteria with Mr Rogers he denied experiencing, or being exposed to, any of those criteria whatsoever. Dr Dashtegoli did observe in his evidence that it was possible that Mr Rogers met the criterion contained in sub-cl ‘C’ in cl 7 of that SoP by making efforts to avoid distressing memories, thoughts or feelings about or closely associated with traumatic events that he experienced in Vietnam. However, he felt there was insufficient evidence to be able to express an opinion about whether such criterion was satisfied. This was also reported in his letter of 24 February 2016 to the treating general practitioner where it was recorded that the applicant denied ever experiencing any PTSD symptoms or suicidal thoughts. Dr Dashtegoli, rather robustly towards the end of his evidence, concluded that he did not diagnose PTSD on the part of Mr Rogers, and therefore there could not have been a clinical onset of the condition. It was, in his words, ‘black-and-white; no I didn’t diagnose him with PTSD.’
Quite fairly in response to questions put to him concerning the diagnosis of PTSD, Dr Dashtegoli stated that it is possible for a patient to meet some of the criteria contained in cl 7 of SoP No. 97. In such a setting a treating psychiatrist will endeavour to treat or alleviate whatever of those symptoms are found to exist, even though there may not be a diagnosis of PTSD.
Reference should also be made to the fact that Dr Dashtegoli sent two further reports to Mr Rogers’ treating general practitioner after he had seen him on 18 January 2017 and 11 April 2018.[30] In neither of those reports is there any reference to either a major depressive disorder or PTSD being suffered by Mr Rogers which may have related to his service in Vietnam. Indeed, in his letter of 18 January 2017 to the treating general practitioner, Dr Dashtegoli reported Mr Rogers as telling him that he believed he did not need to see him anymore.
[30] The report from Dr Dashtegoli to Mr Rogers’ treating general practitioner of 18 January 2017 is at page 276 of the JTB and the report of 11 April 2018 is at page 285 of the JTB.
Therefore, the Tribunal determines that the answer to the first question to be answered by it is, ‘No’.[31]
[31] See sub-para 45(a) above.
By reason of its determination with respect to the first question to be answered by it, the Tribunal is not required to provide a response to the second and third questions referred to above.[32]
[32] The second and third questions are as enumerated in sub-paras 45(b) and (c) above.
Further, by reason of the foregoing matters the Tribunal finds that the answer to the fourth question to be answered by it is, ‘No’.[33]
[33] The fourth question is at sub-para 45(d) above.
Finally, by reason of the Tribunal’s answer to the fourth question that arises for its determination, it is not required to provide a response to the fifth question.[34]
[34] The fifth question is at sub-para 45(e) above.
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.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member
......................[SGD]...........................
AssociateDated: 9 January 2024
Date of hearing: 30 November 2023 Advocate for the applicant:
Advocate for the respondent:
Solicitors for the respondent:
Mr John Horan
Mr Jack Pembroke-Birss
Norton Rose Fulbright Australia
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