Gallagher and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 709

Gallagher and Repatriation Commission (Veterans’ entitlements) [2015] AATA 709 (15 September 2015)

Division	VETERANS’ APPEALS DIVISION
File Number(s)	2013/6749
Re	Thelma Gallagher
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin QC, Deputy President
Date	15 September 2015
Place	Sydney

The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war caused.

..................[sgd]..................................................

The Hon. Brian Tamberlin QC, Deputy President

CATCHWORDS

VETERANS’ ENTITLEMENTS – widow’s pension – whether veteran’s death was war-caused – posttraumatic stress disorder – relevant Statement of Principles – decision set aside

LEGISLATION

Veterans’ Entitlements Act 1986

SECONDARY MATERIALS

Statement of Principles concerning Alzheimer-type dementia No. 22 of 2010

Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008
Amendment Statement of Principles concerning posttraumatic stress disorder No. 19 of 2014

Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014

REASONS FOR DECISION

The Hon. Brian Tamberlin QC, Deputy President

15 September 2015

1. This is an application for review of a decision of the respondent on 19 April 2012 which refused the applicant’s claim for widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).

2. The veteran enlisted for service on 15 October 1943 and was discharged on 7 March 1946. He served overseas and his service is deemed “operational”. He died on 18 January 2012. In the event that the Tribunal determines that his death was war-caused the earliest operative date would be 19 January 2012.

3. From about January 1944 to about February 1946 the veteran served as an aircraftman in Higgins Field in Cape York. Records also indicated that he served at Merauke in New Guinea. It was claimed that he experienced severe stressors whilst on service as a result of which he developed posttraumatic stress disorder (PTSD) which was diagnosed on or about 8 November 1999 according to a report by Dr Darcy. As a result of this PTSD it is submitted the veteran developed the Alzheimer-type dementia which was a cause of death.

   STATEMENTS OF PRINCIPLES

4. Four Statements of Principles were referred to by the parties. These were:

   ·Statement of Principles concerning posttraumatic stress disorder No. 5 of 2008;

   ·Amendment Statement of Principles concerning posttraumatic stress disorder No. 19 of 2014;

   ·Statement of Principles concerning posttraumatic stress disorder No. 82 of 2014 (which revoked Instrument No. 5 of 2008, as amended by Instrument No. 19 of 2014); and

   ·Statement of Principles concerning Alzheimer-type dementia No. 22 of 2010 (as amended).

   ISSUES

5. The questions for determination are as to the kind of death suffered by the veteran and whether the death of the veteran was connected with his war service.

   EVIDENCE

6. The applicant gave evidence that she had known the veteran since he was 17 years of age and before he joined up for military service. He was a champion swimmer and had trained for the 1948 Olympics after he returned home. He was active in the surf club. She married the veteran in 1948. After the war he never went into detail about his time on service but sometimes referred to his worst experiences as being times when he had to patrol airstrips in the dark and he spoke of fears and possible threats of the enemy in the surrounding bush. He did not want to think about his experiences. He said they were awful.

7. Over a long period after the marriage he had dreadful nightmares and would cry out “Get down!” and try to protect the applicant from something. He came out in sweats and when he awakened he spoke of dreaming about being away and some of the war incidents. These dreams were a real problem. He kept a lot of things to himself and was basically a quiet man. He liked to sit against the wall to see everything when they went out and was over-vigilant and jumpy. He was irritable from time to time and would suddenly become angry but he would not give any reason.

8. The veteran’s daughter also gave evidence to the effect that her father was a quiet man and she noticed that his wartime experiences were very upsetting for him. If they came up in a topic of conversation he would be disturbed. She recalls the father had a lot of nightmares relating to his experiences of war and saw that he did not like to watch shows about the war on television and he tried to avoid memories and forget the experiences. He avoided social activities. He did not like to go out in groups. He did not like going to the pictures and he had some difficulty in showing affection but he tended to open up to his daughter at times.

9. The applicant, in an undated letter, recounts the following history. He joined the RAAF in October 1943 as a general hand in Higgins Field, Cape York, working as an emergency driver in the Transport Section. In November 1944 he applied to re muster to Drivers Motor Transport. He received notice in about February 1945 that he had to go to Merauke in New Guinea for a driver’s examination and test. He landed there in February 1945 and passed the test. He had to remain in New Guinea because he could not get a seat on the plane due to the transport situation at this time. His stay there was extended to a period of 6 – 8 weeks. While there he assisted in the unloading of drums of petrol, refuelling planes and other duties in relation to the airfield.

10. In another letter he states that during his service he did a lot of guard duty at different bases leaving him “with some frightening memories of being alone in the night patrolling airstrips and outer buildings” and that during his time at Higgins Field and Merauke he “had no chance against the enemy or anything else”. He stated that as an emergency driver at Higgins Field he transported 44 gallon drums of petrol to the airstrip.

11. Historical records indicate that bombing raids were launched from Higgins Field to targets in southern Dutch New Guinea. The Merauke Force was established in December 1942 to defend a strategic air strip. The Australian force was gradually expanded during the first half of 1943. Major airfields such as the Merauke were constructed in areas assessed to be unlikely to be attacked. There are no records of Japanese ground troops being in the vicinity. The most recent bombing attack on Merauke is recorded as having been on 9 September 1943 but there was always a threat of attack because it was a major airbase and an attractive target. As a general hand the veteran would have been highly likely to be a member of crash site teams with stresses arising from uncertainty, remoteness, threat of tropical diseases, a different physical environment and a regimented lifestyle according to the historical research report of Major Ian Hawke, an historian, in his report of 30 July 2014.

    MEDICAL EVIDENCE

12. Two psychiatrists, Dr Darcy and Dr Dinnen, have diagnosed the veteran as having PTSD. The psychiatric evidence for the respondent was given by Dr Selwyn Smith in a report of 17 March 2015. Both Dr Smith and Dr Dinnen were cross-examined in concurrent evidence on their statements. Neither of them had the opportunity to interview the deceased veteran. Both psychiatrists agreed that Dr Darcy had the decided advantage over them of having spoken with and interviewed the veteran whereas they had not had such an opportunity.

13. Dr Darcy, who produced a report dated 8 November 1999, saw the applicant in relation to nervous effects which he believed arose during his service in New Guinea and Australia from 1943 to 1946. The veteran gave a history to Dr Darcy of difficulty in sleeping and frequent bad dreams. He was restless and jumpy when sleeping and would call out in his sleep. He said he was not an irritable person before he joined the Air Force and that he didn’t drink. When he returned he was irritable and argumentative and this persisted until recent years. The veteran said his irritability and nervousness had caused his marriage to be a stormy one. He drank to excess. After the war he continued to drink heavily and when he was married he would drink 8 – 10 schooners of beer before coming home and having a few glasses of wine with his wife. The veteran recounted that he was always nervous on guard duty. He said he had to walk up and down the edges of the airfield in the open air and felt exposed and in danger. He would find a dark corner and spend as much time as he could there. He referred to an occasion when an airman on guard duty shot one of his own men and he recounted that he had to do guard duty in the bush when he didn’t know what was going to happen or what was out there. Dr Darcy concluded that his present sleep problems and overuse of alcohol during many years, as well as persistent anxiety he felt in certain circumstances were part of a PTSD which arose out of his service and that the disorder was caused by his service.

14. Dr Dinnen, a consultant psychiatrist, furnished a report dated 4 September 2014 and gave evidence. He had regard to the statements made by the applicant and her daughter and considered the s 37 documents. He knew Dr Darcy as a senior and experienced clinician who has since died. Dr Dinnen also concluded that the veteran had suffered from PTSD and developed it as a result of his war service. In his report Dr Dinnen expressed the view that the veteran had suffered a category 1A or 1B stressor and satisfied the relevant factors set out in the Statement of Principles. Dr Dinnen gave evidence as to the severe impact that an incident as described by Dr Darcy could have because of the close relationship between soldiers in wartime engagements. He considered that the veteran had PTSD for at least five years before the clinical onset of Alzheimer-type dementia satisfying factor 6(ja) of the Statement of Principles concerning Alzheimer-type dementia No. 22 of 2010.

15. The opinion of Dr Smith was that there was no clear and convincing evidence that the veteran developed diagnostic criteria for PTSD. He considered that the type of events reported would not be sufficient to satisfy the stressor A required for the diagnosis of PTSD. He did not consider that the evidence indicated the veteran had experienced repeated or extreme exposure to traumatic events and that being on patrol duty would not be sufficient to satisfy the severe stressor A criteria required for diagnosis of PTSD. He thought such events may have resulted in a transitory anxiety. He did not think there was clear and convincing clinical evidence that the veteran experienced true dissociative flashback episodes. He did not think one could reliably link the nightmares to military service and he considered that the veteran’s excess alcohol intake could explain the restlessness, agitation, irritability and outbursts of anger. He did not consider that the report of Dr Darcy convincingly established PTSD because he considered it important that the veteran had never engaged with the enemy or witnessed the event involving an airman on guard duty shooting one of his own men. His conclusion is that it is improbable that the veteran experienced PTSD. He did not believe that the veteran had experienced a category 1A or 1B stressor in his service. In his oral testimony he expressed the view that if there were post-traumatic stress disorder then it would have manifested itself at an earlier time than 1999.

    CONSIDERATION

16. The kind of death suffered by the applicant must be determined on the balance of probabilities. The kind of death suffered by the veteran is the medical cause of death. In this case the cause of death was dementia. The relevant Statement of Principles is for Alzheimer-type dementia Instrument No. 22 of 2010 and the relevant factor is 6(ja) which requires having posttraumatic stress disorder at least five years before the clinical onset of Alzheimer-type dementia.

17. In my opinion the applicable Statement of Principles relating to PTSD is Instrument No. 82 of 2014. Under factor 6(c) of that Instrument the factor which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting PTSD with the circumstances of a person’s relevant service is that the veteran was “living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder”. This 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.

18. In the present case I consider that this factor has been satisfied. The veteran had, in the course, of his service been exposed to danger and was in a state of fear serving in a vulnerable and strategically important airfield where there had previously been bombing attack raids. This was a hostile environment in that he was exposed to the pervasive threat of bombing attack or enemy ground attack from the surroundings in New Guinea. He was exposed to possible attack on the perimeter of the airfield. His statements and his consistent erratic emotional behaviour over many decades and his drinking habits and social introversion support a conclusion that his war-service during this period was causally connected to diagnosis of a condition of PTSD sufficient to satisfy factor 6(c) of Instrument No. 82 of 2014. The stresses on him were intense and the behaviour persisted.

19. As to the lengthy period before the diagnosis of PTSD I prefer the evidence of Dr Dinnen to that of Dr Smith. Dr Dinnen stated that an important feature of PTSD is that it can be delayed in its manifestation for many years after exposure to the traumatic events. Dr Smith stated that delayed onset PTSD was “highly questionable” and “hotly debated”. In addition, the diagnosis of Dr Dinnen, is strongly reinforced by the earlier diagnosis of Dr D’Arcy, who interviewed the veteran. Overall, I prefer the evidence of Dr Dinnen and the opinion of Dr D’Arcy and I accept that the veteran had PTSD at least five years before the clinical onset of the Alzheimer-type dementia.

20. During the hearing there was some discussion as to the applicability of Instrument No. 19 of 2014 which amended Instrument No. 5 of 2008 and its relevance arising from the fact that it was revoked by clause 2 of Instrument No. 82 of 2014. The applicant raised an argument that, notwithstanding the revocation, the new factor 6(ba) in Instrument No. 19 of 2014 should be applied. This factor is arguably more favourable to the applicant’s case than the factors contained in the later Instrument No. 82 of 2014. However, it is not necessary for me to determine the relevance of that amendment because I consider that the applicant satisfies factor 6(c) of the later Instrument No. 82 of 2014. The respondent concedes that Instrument No. 82 of 2014 does apply in the present case.

    CONCLUSION

21. I am satisfied that the material points to a hypothesis that the veteran’s death was war-caused having regard to his service and that this hypothesis satisfies the requirements of Instrument No. 22 of 2010 and Instrument No. 82 of 2014 and I am satisfied that such hypothesis is not fanciful or remote. The respondent has not established beyond reasonable doubt that there is no connection between the veteran’s death and his war service.

    DECISION

22. The decision under review is set aside and in substitution the Tribunal decides that the veteran’s death was war caused.

I certify that the preceding 22 (twenty -two) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

...................[sgd].................................................

Associate

Dated 15 September 2015

Dates of hearing	28 and 29 July 2015
Date final submissions received	10 August 2015
Counsel for the Applicant	Mr T Saunders
Solicitors for the Applicant	Kemp & Co. Lawyers
Advocate for the Respondent	Mr T O’Reilly, Department of Veterans’ Affairs