GRAEME McDONALD and REPATRIATION COMMISSION
[2013] AATA 80
•19 February 2013
[2013] AATA 80
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4499
Re
GRAEME McDONALD
APPLICANT
And
REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 19 February 2013 Place Brisbane The Tribunal affirms the decision under review.
...................[Sgd].....................................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Australian Regular Army – Application of Statement of Principles – No diagnosis of posttraumatic stress disorder in relation to an event on service – Condition not war-caused – Decision under review affirmed.
LEGISLATION
Administrative Appeal Tribunal Act 1975 (Cth) s 37
Veterans’ Entitlements Act 1986 (Cth) ss 6C, 7, 9, 120
CASES
Border v Repatriation Commission (No 2) (2010) 191 FCR 163
Budworth v Repatriation Commission (2001) 116 FCR 200
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Stoddart (2003) 77 ALD 67
Re Budworth and Repatriation Commission [2000] AATA 127
Re McDonald and Repatriation Commission [2012] AATA 344
Re Newton and Repatriation Commission [2009] AATA 485
Re Trigge and Repatriation Commission [2012] AATA 176
Woodward v Repatriation Commission (2003) 131 FCR 473; (2003) 75 ALD 420; [2003] FCAFC 160REASONS FOR DECISION
Mr R G Kenny, Senior Member
19 February 2013
BACKGROUND
On 6 May 2011, Graeme McDonald, lodged with the Repatriation Commission (“the respondent”), in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), a claim for a disability support pension for “posttraumatic stress disorder”. He contended that this was related to circumstances of his service with the Australian Regular Army (“the Army”) while he was serving in South Vietnam.
On 3 June 2011, the respondent determined that Mr McDonald’s posttraumatic stress disorder was not related to his service. That decision was affirmed by the Veterans’ Review Board (“the Board”) on 5 October 2011 and by the Administrative Appeals Tribunal (“the Tribunal”) on 7 June 2012. By consent, the Federal Court, on 11 September 2012, set aside the Tribunal decision and remitted the matter to the Tribunal to be heard and decided again. While the applicant’s notice of appeal to the Federal Court referred to other matters, the only agreed matter which provided the basis for the consent order was identified by the parties as:
The Tribunal found against the applicant, at step 4 of the Deledeo process, on the basis that the applicant “did not come face to face with an actual peril or threat thereof”. That approach is contrary to the approach taken by the Court in Border and Stoddart which focusses attention on the effect of the event, and the veteran’s perception of the event, not the (objective nature of the) threat itself.
SUBMISSIONS
Mr Matt Black, for Mr McDonald, submitted that the first task of the Tribunal on remittal was to determine, on the balance of probabilities, whether the diagnostic criteria for posttraumatic stress disorder were met by Mr McDonald during his operational service. In that sense, he has reopened the issue of the diagnosis of Mr McDonald’s psychiatric condition. In particular, he referred to criterion A as set out in para 3(b) of Instrument No. 5 of 2008, the Statement of Principles for posttraumatic stress disorder published by the Repatriation Medical Authority (“RMA”). Mr Black submitted that Mr McDonald’s circumstances were similar to those which arose in Re Trigge and Repatriation Commission[1] and that the Tribunal’s reasoning applied there to the matter of diagnosis should be adopted. He submitted that, accordingly, regard should be had to Mr McDonald’s perception of the threat of death and whether the event was capable of giving rise to that perception. To that end, he submitted, reliance should be placed on the opinion of psychiatrist Dr Bob Anderson that Mr McDonald suffered from posttraumatic stress disorder. Mr Black submitted that the Tribunal should then determine, on the application of the relevant procedural steps,[2] that it could not be satisfied beyond reasonable doubt that Mr McDonald’s posttraumatic stress disorder was not war-caused and, accordingly, set aside the decision under review.
[1] [2012] AATA 176.
[2] As set out in Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144.
Mr Martin Hanson, for the respondent, also submitted that the Tribunal’s concern was whether, on the balance of probabilities, the diagnostic criteria for posttraumatic stress disorder were met through exposure to a traumatic event on service. However, he submitted that the Tribunal should adopt the conclusion reached in its original decision that Mr McDonald was not so exposed and did not experience a relevant stressor. For that reason, he submitted, a diagnosis of posttraumatic stress disorder was not open. He submitted that this was the case even after Mr McDonald’s perceptions were considered in accordance with the terms of the remittal by the Federal Court.
In the original decision, the Tribunal referred to the diagnosis of posttraumatic stress disorder in the following way:[3]
Dr Anderson, psychiatrist, was of the opinion is that Mr McDonald satisfies the diagnostic criteria for posttraumatic stress disorder. He included, in the three stressful experiences described to him by Mr McDonald, a version of the shooting incident at the Vung Tau concert. On that opinion as formulated on that basis, I am reasonably satisfied that a diagnosis of posttraumatic stress disorder may be applied to Mr McDonald.
[3] Re McDonald and Repatriation Commission [2012] AATA 344 at [20].
The Tribunal went on, in considering causation, to determine that the events identified by Dr Anderson had not occurred in the manner he described and, for that reason, the Tribunal was satisfied beyond reasonable doubt the condition was not war-caused. Mr Black submitted and Mr Hanson agreed that Dr Anderson had not been tested on issues relating to Mr McDonald’s perceptions at the time of the incident at Vung Tau but both accepted that the matter could be resolved on remittal without calling Dr Anderson to give further evidence.
CONSIDERATION
Neither Mr Black nor Mr Hanson challenged the manner in which the Tribunal, in its reasons for decision after the original hearing, set out the evidence or its findings of fact. The relevant evidence is not repeated here save for the following summary: Mr McDonald completed basic training in Australia and, as a musician, he was involved in Band duties as a percussionist. The Band toured South Vietnam for two weeks performing in parades and concerts. They travelled to venues with an armed Land Rover escort during which Mr McDonald was apprehensive at being so exposed to possible enemy contact. One of their billets was subjected to mortar fire on the day after they departed it. He felt exposed during concerts due to the prospect of someone “taking a shot” at the band members. At an open air concert at Vung Tau, Mr McDonald heard a gunshot and saw smoke, accompanied by a “big crowd reaction” involving “screaming”. He then heard that someone had been shot though he did not see a body, but learned subsequently that there had been a killing. Mr McDonald felt that his life was threatened and he described the experience as “pretty terrifying” because he and the other Band members were so exposed and unarmed. In a statement, Mr McDonald wrote that “a suspected [Viet Cong] was shot in front of the Band” by the “white mice”, the name for local policemen. He heard “at least one loud bang” and “saw some wispy smoke”, heard “screams” and “witnessed agitated crowd movement”.
It is not disputed that McDonald rendered eligible war service in the form of operational service, as provided for in s 7 and s 6C of the Act, respectively, from 16 September 1970 until 1 October 1970. This included the concert tour in Vietnam. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered by the veteran”.
Since the Tribunal’s decision, the Full Court of the Federal Court has confirmed the view that posttraumatic stress disorder can only be diagnosed as an illness or disease in terms of a traumatic event and that, if the decision-maker is not satisfied on the balance of probabilities in accordance with s 120(4) of the Act, that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of posttraumatic stress disorder.[4] The Court said:[5]
In our respectful opinion, the effect of the settled course of judicial authority is that a veteran is entitled to have that aspect of a claim for PTSD concerned with whether it was war-caused dealt with in accordance with the four-step process explained by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) only if it is established on the balance of probabilities that the veteran does in fact suffer from incapacity from that injury or disease: Budworth (2001) 116 FCR 200 at [19].
[4] See Repatriation Commission v Bawden [2012] FCAFC 176.
[5] Above at [40].
The Statement of Principles is not, in itself, a diagnostic instrument but it is not in dispute that the six criteria listed therein for posttraumatic stress disorder reflect those that are found in the relevant diagnostic instrument for that condition.[6] Of the six diagnostic criteria in the Statement of Principles, it is common ground that only the first is in issue. It reads:
(A) the person has 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.
[6] “DSM-IV-TR” which means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000.
In Trigge, relied upon by Mr Black, I set aside the Repatriation Commission’s decision in which a claim for posttraumatic stress disorder based upon a scare charge incident had been rejected. On the issue of diagnosis, I said:
The issue under the Act is not whether Mr Trigge suffers from PTSD but, rather, whether he does so in relation to a service-related event which meets the requirement above. Even where a medical practitioner diagnoses post-traumatic stress disorder, I must, nevertheless, be reasonably satisfied that the factual basis on which any such diagnosis is made meets the requirements of criterion A.
Mr Harding submitted that, with the scare charge incident, Mr Trigge experienced a threat to his physical integrity to which his response involved intense fear. He conceded that the scare charge incident did not, in an objective sense, constitute an actual threat to Mr Trigge. However, he submitted that the concept of “threat” was partially subjective and that it was sufficient if Mr Trigge had a perception of threat. In that regard, he relied on Border v Repatriation Commission (No 2).[7] In Re Newton and Repatriation Commission,[8] I determined that criterion A in SoP No 5 of 2008 for PTSD may be interpreted in the manner contended by Mr Harding.[9] I accept Mr Harding’s submission that this is consistent with Border v Repatriation Commission (No 2) even though the court in that case was concerned with issues of causation in SoP No 5 of 2008 and not the diagnostic criteria for PTSD.
[7] (2010) 191 FCR 163.
[8] [2009] AATA 485.
[9] At para 45.
I accept, as submitted by Mr Black, that criterion A in the Statement of Principles should be interpreted that way.[10] In the original decision, the Tribunal found that there was a shooting at the Vung Tau concert, that it involved civilian police rather than Viet Cong but that the shooting did not result in death. The Tribunal also found that Mr McDonald did not come face to face with an actual peril or threat thereof. However, I accept, on further analysis of Mr McDonald’s evidence, that he perceived that there was a threat of death arising from his hearing of the gunshot, especially in the light of his general apprehension at being unarmed and vulnerable and with only limited experience of activity in a war zone.
[10] See also Woodward v Repatriation Commission (2003) 75 ALD 420; [2003] FCAFC 160 and Repatriation Commission v Stoddart (2003) 77 ALD 67. Those cases were decided in respect of the meaning of the term “experiencing a severe stressor” in factor (b) of Instrument No 76 of 1998 for alcohol abuse.
The second component of criterion A requires that Mr McDonald’s response to the shooting event have involved “intense fear, helplessness, or horror”. Mr McDonald’s evidence was that, when the shot was fired, he felt that his life was threatened, that he wished he “was elsewhere” and that the experience was “pretty terrifying”. He said that he “did not take cover” and, in his evidence to the Board,[11] Mr McDonald said that the band continued to play for about 15 minutes, that he “wondered what it was” and that he felt “very tense, helpless and vulnerable”. In a statement, dated 20 September 2011, he wrote that his initial reaction was “What the-expletive-was that?”. Dr Anderson reported Mr McDonald’s reaction as being “shocked” although Dr Anderson also described him as being “horrified that someone could be shot in front of the band” and that he felt “helpless, fearful and sad”. In Re Budworth and Repatriation Commission,[12] the Tribunal described the level of response in the second part of criterion A as an “extremely high level of reaction” and not a “general apprehension or a relief to be out of a perceived dangerous situation”. On appeal, the Federal Court in Budworth v Repatriation Commission[13] referred with approval to the Tribunal’s interpretation of “intense fear” as requiring a high level of reaction.
[11] See T2 in Exhibit 1 taken into evidence as part of material prepared under s 37 of the Administrative Appeal Tribunal Act 1975.
[12] [2000] AATA 127 at [62]-[64].
[13] (2001) 63 ALD 422 at 441.
The feelings described by Mr McDonald cover a spectrum of reactions. On the balance of probabilities, I am satisfied that none of his descriptors reach the level of intense fear, helplessness, or horror. The most telling of his reactions in that regard is that the Band continued to play for a period. That does not support the types of reaction listed in the second component of criterion A in the Statement of Principles.
It follows that I am reasonably satisfied that a relevant component of diagnostic criterion A is not met. As this is an essential threshold element of the diagnostic criteria, I am reasonably satisfied that that the factual basis for making a diagnosis of posttraumatic stress disorder, in relation to the incident with the Band at Vung Tau, is not present.
RELATIONSHIP TO SERVICE
As a diagnosis in relationship to the incident can not be made, I am be satisfied beyond reasonable doubt that the condition is not war-caused.
DECISION
The Tribunal affirms the decision under review.
18. I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
....................[Sgd]....................................................
Associate
Dated 19 February 2013
Date of hearing 5 February 2013 Counsel for the applicant Matt Black
Solicitors for the applicant Cockburn Legal
Solicitors for the respondent Australian Government Solicitor
0
8
0