Farrow and Repatriation Commission
[2011] AATA 245
•13 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/2813
VETERANS’ APPEALS DIVISION ) Re Mr Garth Walter Farrow Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal M D Allen, Senior Member and Dr T K Austin AM, Member Date 13 April 2011
PlaceSydney
Decision 1. The decision under review is SET ASIDE and this matter is remitted to the Respondent with the direction that the diseases of Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis are war-caused.
2. The assessment of pension in respect of incapacity from all war-caused injuries and diseases suffered by the Applicant is remitted to the Respondent.
.................[sgd]........................
M D Allen, Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS: Claim for Post Traumatic Stress Disorder, Irritable Bowel Syndrome and Sinusitis as being war-caused accepted. PTSD claim involving both objective and subjective elements. Increased smoking while in Vietnamese waters sufficient to generate increased smoking habit. Irritable Bowel Syndrome aggravated by PTSD.
Claim for Intermediate Rate Pension rejected. Satisfied that age and area of residence also contributed to inability to attract an employer.
LEGISLATION
Veterans’ Entitlements Act, 1986 Ss 23, 120, 120A.
CASES
Border v Repatriation Commission (No.2) [2010] FCA 1430
McGlynn v Repatriation Commission [1981] FCA 205
Repatriation Commission v Hawkins (1993) 30 ALD 51
Article I.
Article II. REASONS FOR DECISION
13 April 2011
M D Allen, Senior Member
1. By application made 25 June 2008 the Applicant sought review of a decision of the Respondent, as affirmed by the Veterans’ Review Board (“VRB”), that rejected his claims to receive pension for the conditions of Post Traumatic Stress Disorder (“PTSD”), alcohol abuse or alcohol dependence, Irritable Bowel Syndrome (“IBS”) and acute sinusitis. Review was also sought of the VRB decision that his disability pension be assessed at 70% of the general rate of pension.
2. At the hearing of these proceedings the Applicant did not press his claim regarding alcohol abuse/dependence.
3. In relation to his condition of PTSD, the Applicant implicated one event which occurred whilst on operational service and three other events which occurred during his defence service. Because of the view we take of this matter we intend in these reasons to discuss only the Applicant’s operational service.
4. The Applicant joined the Royal Australian Navy (“RAN”) in 1961 at the age of 15 years and 6 months. He was discharged on 10 June 1986 with the rank of Warrant Officer.
5. In the period 19 March 1969 to 13 October 1969 the Applicant was a crew member of HMAS Brisbane when that vessel was allocated for duty in Vietnamese waters. The Applicant therefore had operational service during that period, see Ss6(1) VEA.
6. As the Applicant had operational service, the standard of proof in this matter is that mandated by Ss120(1) and (3) VEA which provide that any disease suffered by a Veteran and claimed to be war-caused shall be accepted as being so caused, unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of all of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the disease suffered by the Applicant with the circumstances of the service rendered by him.
7. Pursuant to s120A VEA a hypothesis will not be a “reasonable hypothesis” unless is conforms to a so called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
8. Subsection 120(6) VEA provides that neither party to this review bears any onus of proof.
9. The SoP regarding PTSD, in respect of Veterans who have had operational service, is Instrument No.5 of 2008. Paragraph 6 of that document provides that a factor must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of the persons relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder;
10. Paragraph 9 of the SoP defines a category 1A stressor as including (a) experiencing a life-threatening event.
11. The event which the Applicant claims to have been a category 1A stressor for the purposes of Instrument No.5 of 2008 is described in the report of Captain Rothwell RAN (Rtd) of 13 December 2009. At 1408 hours on 22 July 1969, whilst HMAS Brisbane was carrying out a shore bombardment, a premature explosion occurred in a gun barrel.
12. The Applicant’s account of this incident is at odds with other recollections and there are inconsistencies in the accounts the Applicant has given at different times.
13. Giving evidence to this Tribunal the Applicant said that he was in the forward Petty Officers Mess. He was sitting on a bunk and after the explosion he and the other Petty Officer to whom he had been talking ended up on the deck. There was then a call to “close up” for action stations. At the time the Applicant thought that the ship had hit a mine as the sound of the explosion and the way the ship moved was totally foreign to a normal five inch gun going off and the movement of the ship during normal firing activities. The Applicant was then directed to go forward and ascertain if there had been any damage to the front of the ship.
14. Statements by officers aboard HMAS Brisbane at the time, as detailed in Captain Rothwell’s report, are to the effect that the sound produced by the in-barrel explosion was less than the normal sound of the gun firing and that the ship never went to action stations.
15. In previous evidence to the VRB the Applicant claimed that at the time of the barrel exploding he had been in the aft mess. In cross examination he could not explain this discrepancy in his evidence.
16. The Applicant stated that initially he thought that a mine had struck the ship because whilst on shore leave at Subic Bay he had been talking to an American Marine Sergeant who had said that the Viet Cong had been sending mines down the rivers attached to logs. The report of Captain Rothwell points out that the Viet Cong did adopt this practice and although vessels had been sunk as a result they were all riverine craft. To our mind that is not to the point as the Applicant was not aware of that and if a mine is floated down a river it would seem axiomatic that it could well float out to sea.
17. Dr Robinson, psychiatrist, interviewed the Applicant on three occasions at the request of the Respondent. In the history taken by Dr Robinson he recounts that the Applicant said that after being told that the noise was a premature discharge he was reassured “at least it wasn’t a mine” but that it took him the rest of the day and a couple of days afterwards to properly settle down. According to the history taken by Dr Robinson the Applicant seemed to get over the incident until a year and a half later when he was subjected to another loud explosion which shook him up and brought back memories of the first explosion.
18. In his initial report to the Respondent, Dr Robinson discussed the criteria for the diagnosis of PTSD in DSM-IV and made a clinical diagnosis of PTSD.
19. In a later report dated 19 August 2010 Dr Robinson addressed evidence that the breach explosion would have been little different to the firing of the gun. Dr Robinson states:
“The two views are not consistent. If the breach explosion was little different from the normal firing of the gun, then Mr Farrow’s history is unreliable”
If Mr Farrow’s account is accepted then criteria A1 and A2 are met, and the diagnosis of Post Traumatic Stress Disorder follows. In making my assessment I took the view that Mr Farrow’s account of the breach explosion was accurate.”
20. On balance we accept the Applicant’s account of the gun barrel explosion aboard HMAS Brisbane. The two former officers who made statements as to the loudness of the explosions were on the bridge of the ship; not below the gun mounting as was the Applicant, and they were also immediately aware of what had happened unlike the Applicant who was below decks and some time elapsed before he was told of the cause of the explosion.
21. An inconsistency in his story as to whether he was in the forward or aft Petty Officer’s Mess has been pointed out by the Respondent. The Applicant cannot explain this but we are inclined to regard this evidence as an aberration of memory. In his history to Psychiatrist Dr Robinson the Applicant has been consistent in placing himself in the forward mess.
22. In passing we must comment that the document at T15 page 103 prepared by a lay advocate is positively misleading and materially detracts from the Applicant’s credit. We are however not prepared to act on this document as it does not appear to have been signed or acknowledged as his document by the Applicant.
23. As we accept the Applicants account of how the gun barrel explosion aboard HMAS Brisbane affected him, it follows that we accept Dr Robinson’s diagnosis of PTSD. A diagnosis that was supported by the Applicant’s treating psychiatrist, Dr Miller.
24. As stated above, Instrument No.5 of 2008 states at paragraph 6(a) that a factor raising a reasonable hypothesis connecting PTSD with service is that the Veteran experienced a category 1A stressor before the onset of PTSD.
25. Furthermore for the purposes of Instrument No.5 of 2008 in order for the diagnosis of PTSD to be made the person must have been exposed to a traumatic event in which:
(i)“The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)The person’s response involved intense fear, helplessness or horror.”
26. The test so far as relates to both the diagnostic requirements for PTSD as set out in the SoP and the test in respect of Factor 6(a) were discussed by Reeves J in Border v Repatriation Commission (No2) [2010] FCA 1430 at paragraph 67, namely:
“…the answer to the question posed in relation to the event described in (a) ‘experiencing a life threatening event’ is this. The effect of the event, and not the threat itself, that has to be assessed. Moreover, it is the veteran’s perception of the event that is critical, relevantly his or her perception that it posed a threat of death. If that perception was a reasonable one, it constitutes a life-threatening event within the terms of subpara (a). That perception will be a reasonable one if, judged objectively, from the point of view of a reasonable person in the position of, and with the knowledge of, the veteran, it was capable of, and did convey the threat of death. Unlike with subparas (b) and (c), this is a mixed objective and subjective test. Since there will be a very wide range of reactions to any event involving a threat of death, this test is not to be applied in an unduly restrictive manner. Thus, while at one extreme a totally irrational or baseless reaction will be excluded, it is necessary to be more open to acceptance as one moves across the spectrum of possible reactions. Furthermore, the question is whether the event might or was capable of giving rise to the perception of the threat of death, not whether it did. For this reason, the veteran’s conduct after the event is irrelevant to the assessment. So, too, is any information not known to the veteran which showed, objectively, that the event did not pose a threat of death, eg being threatened with a gun that was in fact unloaded.”
27. Given the above test we are satisfied that the Applicant suffers from PTSD and a reasonable hypothesis exists connecting the Applicant’s PTSD with his operational service. Further we are not satisfied that the material before us has disproved the facts upon which the hypothesis is based beyond reasonable doubt.
28. Instrument No.103 of 1996 deals with Irritable Bowel Syndrome. Factor 5(d) states:
“(d) suffering a specified psychiatric condition within the six months immediately before the clinical worsening of irritable bowel syndrome;”
29. The diagnosis of IBS was made by consultant physician Dr Colin Thursby in a report dated 7 December 2006 to the Applicant’s General Practitioner (“GP”).
30. There is a record in the Applicant’s service medical documents dated 15 November 1978 which refers to abdominal pain. It is therefore entirely possible that the Applicant was suffering from IBS at that time. Either way, once the Applicant’s PTSD has been accepted as being war caused Factor 5(d) of Instrument No.103 of 1996 raises the hypothesis that a clinical worsening of his IBS is attributable to war service.
31. We are not satisfied beyond reasonable doubt that any material before us negatives any of the facts necessary to support that hypothesis.
32. Instrument No.9 of 2010 relates to war-caused Sinusitis. Factor 6(w) reads:
“(w) smoking on average at least ten cigarettes per day, or the equivalent thereof in other tobacco products and having smoked at least one pack year of cigarettes, or the equivalent thereof in other tobacco products, at the time of the clinical worsening of sinusitis”.
33. The Applicant’s evidence was that he was an occasional smoker until he was posted to HMAS Brisbane which had been detailed for operations off Vietnam. He then increased his smoking. Whilst on the gun line he smoked between one to two packets of 25 cigarettes a day, which upon return to Australia he reduced to one packet a day. His second trip to Vietnam followed a similar pattern of heavy smoking whilst on the gun line, reducing to around a pack a day upon return to Australia.
34. As pointed out in McGlynn v Repatriation Commission [1981] FCA 205 a war-caused increase in smoking is sufficient to cause or contribute to a disease, of which smoking is an aetiological factor, being accepted as war-caused.
35. In Repatriation Commission v Hawkins (1993) 30 ALD 51 the Veteran started to smoke whilst on the way to Vietnam. Davies J at first instance and the Full Court on appeal held that smoking in such circumstances was inseparably bound up with the Veterans operational service.
36. The Applicant continued to smoke at the level of one packet of 20 cigarettes a day until he ceased smoking “20 odd years ago”.
37. A report by the Applicant’s GP dated 1 November 2007 states that he had sighted the Applicant’s service medical documents and that on 13 October 1976 a diagnosis of sinusitis and bronchitis had been made. It seems therefore that the diagnosis of sinusitis was made at a time when the Applicant was still engaged in smoking up to 20 cigarettes a day.
38. We are therefore satisfied that a reasonable hypothesis exists connecting the Applicant’s sinusitis with the circumstances of his operational service by way of aggravation. Further we are not satisfied beyond reasonable doubt that the facts necessary to support the said hypothesis have been negatived.
39. In addition to his claims to have the conditions of PTSD, IBS and Sinusitis recognised as being war-caused, the Applicant sought to have his rate of disability pension increased to the Intermediate Rate of Pension.
40. Section 23 Veterans’ Entitlements Act1986 (“VEA”) states inter alia:
“(1) This section applies to a veteran if:
(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
(aab) the veteran had not yet turned 65 when the claim or application was made; and
(a) either:
(i) the degree of incapacity of the veteran from war‑caused injury or war‑caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
(b) the veteran's incapacity from war‑caused injury or war‑caused disease, or both, is, of itself alone, of such a nature as to render the veteran incapable of undertaking remunerative work otherwise than on a part‑time basis or intermittently; and
(c) the veteran is, by reason of incapacity from war‑caused injury or war‑caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free from that incapacity; and
(d) section 24 or 25 does not apply to the veteran.
(2) Paragraph (1)(b) shall not be taken to be fulfilled in respect of a veteran who is undertaking, or is capable of undertaking, work of a particular kind:
(a) if the veteran undertakes, or is capable of undertaking, that work for 50 per centum or more of the time (excluding overtime) ordinarily worked by persons engaged in work of that kind on a full‑time basis; or
(b) in a case where paragraph (a) is inapplicable to the work which the veteran is undertaking or capable of undertaking--if the veteran is undertaking, or is capable of undertaking, that work for 20 or more hours per week.
(3) For the purpose of paragraph (1)(c):
(a) a veteran who is incapacitated from war‑caused injury or war‑caused disease, or both, to the extent set out in paragraph (1)(b) shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity:
(i) if the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both;
(ii) if the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; or
(iii) if the veteran has been engaged in remunerative work on a part‑time basis or intermittently for reasons other than his or her incapacity from that war‑caused injury or war‑caused disease, or both; and
(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented, by reason of that incapacity, from continuing to undertake remunerative work that the veteran was undertaking.”
41. After leaving the Navy in 1986 the Applicant was initially employed at the State Dock in Newcastle. After about three years the State Dock closed down and the Applicant obtained a position with the NSW Department of Agriculture as a Stores Officer at the Tocal College at Paterson in the Hunter Valley. He stayed in that position until he accepted a redundancy package in 2005.
42. The circumstances of the Applicant taking a redundancy were described by him as:
“… they offered redundancies. At that stage I was tossing up whether or not I would cut out my long service leave because my financial advisor had told me he didn’t want me to take any financial – didn’t want to take any long serve leave when I left. It was better tax-wise. And I was tossing up whether to take that at half pay to get me through to the end of June when I became eligible for a service pension. These redundancies came along. It was better tax-wise if I took the redundancy than the long service leave so I put in for redundancy and I got it, and I returned in early January.”
43. Since taking his redundancy the Applicant has been unable to find any employment. In evidence in chief he said:
“I looked for work. I applied with the Salvation Army at Maitland. I went down there and registered… but unfortunately, after 12/15 months I only ever had one phone call to go down. They thought they might have had a job at – they wanted me to go from Maitland to Orange to a gold mine, and that is a five hour run by car so I didn’t think that would be worthwhile me travelling all that distance. But – and basically there was nothing around.”
44. The Applicant was asked by the Presiding Member of the Tribunal: “When was the last time you actually looked for work?”, to which the Applicant replied: “Would have been two – up to two years ago after I took redundancy – six years ago. 2005/2007”.
45. In cross examination, asked about his long service leave, the Applicant said:
“And I had seventeen and a half odd years of long service up, which is quite a few weeks, and you take that out to half pay that was going to take me pretty close to June 29 when I hit 60 and I could retire.”
Later in his cross examination the following passages occur:
Question: “You were also entitled to a service pension at the age of 60, aren’t you?”
Answer: “Yes. That’s what I – 29 June that’s what I was – that was my end date I was aiming for.”
Question: “But in a country town you realise that ther aren’t many options for people over 60 to get a job?”
Answer: “Not up round Maitland and the Valley, there’s not.”; and
Question: “Well, you’ve got age too, haven’t you?”
Answer: “I’ve got age. It was dead set against me”.
46. Given the material before us we are not satisfied that it is the Applicant’s war-caused disabilities alone that render him incapable of working on a part-time basis.
47. At the time the Applicant lodged his claim he was all but 61 years of age. As he acknowledged in cross examination, in the area in which he lived there were not many job options for people aged over 60 and age was “dead set against me”.
48. The Applicant had been employed but accepted a redundancy package when offered. Apparently this offer suited him and he had been intending to retire in June 2005 when he turned 60 and was entitled to the Service Pension.
49. Although the Applicant claims he was looking for part-time work, there seems to have been little incentive for him to work given that he was, after 29 June 2005, in receipt of a service pension plus a Defence Force Retirements and Death Benefits Authority pension.
50. Whatever incentive the Applicant may have had to work however, the realities of his situation were, as he acknowledged, that his age was against him and that employment opportunities in the region where he lived were poor for people of his age. It cannot, in our opinion, be said that it was the Applicant’s war-caused incapacities alone that led to his being unable to attract an employer.
51. The decision under review is set aside and this matter is remitted to the Respondent with the direction that the diseases of PTSD, IBS and Sinusitis are war-caused.
The assessment of pension in respect of incapacity from all war-caused injuries and diseases suffered by the Applicant is remitted to the Applicant.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr T K Austin AM, Member.
Signed: ............[sgd].......................
K. Lynch, AssociateDates of Hearing 12 & 13 January, 5 April 2011
Date of Decision 13 April 2011
Counsel for the Applicant: Mr M Vincent
Solicitor for the Applicant Kemp & Co Lawyers
Counsel for the Respondent Mr G Purcell
Representative for the Respondent Department of Veterans’ Affairs
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