Graham and Repatriation Commission

[2004] AATA 490

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 490

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/203

VETERANS' APPEALS DIVISION		)
Re		KENNETH GRAHAM

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date1 March 2004

PlaceBrisbane

Decision For reasons given orally at the hearing the Tribunal affirms the decision under review.

................Sgd.........................

Senior Member

CATCHWORDS

VETERANS AFFAIRS – benefits and pensions – applicant claims his PTSD or generalised anxiety disorder or depressive disorder are connected to service – whether reasonable hypothesis exists connecting conditions to service – whether applicant experienced a severe stressor – whether applicant experienced a severe psychosocial stressor – decision affirmed

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 49 ALD 193

Stoddart v Repatriation Commission (2003) 197 ALR 283

REASONS FOR DECISION

1 March 2004 Senior Member McCabe    

1.      This is an application for review of a decision of the Veterans’ Review Board (“the VRB”) made on 27 November 2002. That decision followed a determination of the Repatriation Commission dated 20 June 2002. The Commission decided the applicant’s post traumatic stress disorder (“PTSD”), alcohol dependence or alcohol abuse and generalised anxiety disorder were not related to his service in the Army.

2.      The VRB decision varied the Commission’s decision by amending the diagnosis of generalised anxiety disorder to major depressive disorder, but otherwise affirmed the decision.

3. The matter was heard in Townsville on 1 March 2004. The applicant was represented by Mr Honchin of counsel. The respondent was represented by Mr Stoner, a departmental advocate. The Tribunal was provided with the documents lodged pursuant to s37 Administrative Appeals Tribunal Act 1975 (“the T-documents”). The respondent also submitted a report from Dr Mulholland dated 22 October 2003, and medical certificates relating to the applicant. The applicant submitted a statement dated 5 July 2003.

4.      The Tribunal decided to affirm the decision under review.  Oral reasons were provided at the conclusion of the hearing.  The applicant has now requested a written statement of reasons.  These reasons are set out below.

Facts

5.      The applicant served with the Australian Army from 2 November 1966 until 19 April 1971.  For the purposes of the Veterans’ Entitlements Act 1986 (“the Act”) he rendered operational service from 18 March 1970 to 4 March 1971.

6.      The applicant says he has PTSD or in the alternative a generalised anxiety disorder, which has caused his alcohol dependence.  The applicant recounted to the Tribunal four separate events which he believes caused the onset of his illnesses:

Incident one: Challenging a South Vietnamese Officer while of guard duty

7.      The applicant’s statement (exhibit 2) speaks of an occasion when he was on night picket duty in his camp.  He was given strict instructions to challenge anyone wishing to enter.  During the night he observed a Vietnamese person approaching.  Feeling very nervous and apprehensive, the applicant challenged the man.  He pointed his rifle at the stranger.  As he spoke to the Vietnamese person, a non-commissioned officer (NCO) arrived and advised the Vietnamese person was a South Vietnamese officer.  The NCO offered the officer an apology, then proceeded with a “tirade of abuse” directed towards the applicant.  After the incident the applicant says he felt “lousy and apprehensive”.

Incident Two: Accompanying Australian Army Officers on trips

8.      The applicant says in his statement he travelled by road to Vung Tau with various officers.  They went to the “R and C Centre”, a school, an orphanage and the Australian Hospital.  The applicant says he felt on edge the whole time.  He never saw any enemy soldiers, nor was he ever shot at or attacked while on these trips.

Incident Three: Hearing an unauthorised weapons discharge in camp

9.      The applicant relates a third incident which he says caused him distress.  One day he was delivering mail in camp to fellow soldiers.  He had just delivered mail to a tent and was making the next delivery when he heard shots ring out from the tent.  Everyone including the applicant immediately dived to the ground.  He lay on the ground for a short period.  In cross-examination the applicant said he then continued to complete his mail deliveries.  It later emerged a soldier had just received a distressing letter and had placed it on the ground and shot it.  The applicant says after the incident he kept thinking how he could have been killed.

Incident Four: Confrontation with a Tent-Mate

10.     Finally the applicant relates a confrontation with a tent-mate.  A soldier that shared the applicant’s tent knew he was always “on edge”.  The tent-mate would take advantage of this for his own amusement.  One night, the tent-mate snuck into the tent and made some movement and noise towards the applicant who was asleep.  The applicant awoke with a fright, reached for his rifle and aimed it at the man.  The applicant says he was ready to shoot whoever it was.  The man identified himself with a yell, and the applicant lowered his rifle.  There was then a strong verbal exchange between the two.  The applicant says he had trouble getting back to sleep that night.

The Law and Application

11.     The Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 set out a four-step process the Tribunal must follow in these cases.

12.     In the first step the Tribunal must consider all the material before it and determine whether that material gives rise to a hypothesis connecting the injury with the circumstances of the particular service rendered by the person.  This test has a very low threshold: see Bushell v Repatration Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564. I think a hypothesis exists that the applicant’s PTSD and/or depressive disorder and/or generalised anxiety disorder, and consequently his alcohol abuse or dependence, were caused by the four incidents.

13.     The following statements of principle (SOPs) exist:

a.) for PTSD, number 3 of 1999;

b.) for depressive disorder, number 58 of 1998;

c.) for anxiety disorder, number 1 of 2000;

d.) for alcohol dependence, number 76 of 1998.

Does a Reasonable Hypothesis exist for PTSD?

14.     Instrument 3 of 1999 relevantly states:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder…with the circumstances of a person’s relevant service are:

(a) experiencing a severe stressor prior to the onset of post traumatic stress disorder…

15.     The SOP continues:

“experiencing a severe stressor” means the person experienced, witnessed or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s , physical integrity.

In the setting of service in the  Defence Forces, or other service where the Veteran’s Entitlements Act applies, events that qualify as stressors include:

(i) threat of serious injury or death; or

(ii) engagement with the enemy; or

(iii) witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence…

16.     There are four events which the applicant submits to satisfy the SOP.  The question is whether any of them constitutes a “severe stressor”.  However at this point it is appropriate to raise the question of diagnosis: does the applicant in fact suffer from PTSD?

The Question of Diagnosis

17.     Dr Mulholland opined on page 17 of his report (exhibit 3):

…a diagnosis of PTSD is not made because it is considered that his experiences did not reach the threshold value necessary for Criteria A….the experiences that the veteran describes are not regarded as constituting a “severe stressor”…if these [experiences] were to be accepted as…severe stressors then it would follow that nearly every soldier who had been in Vietnam would so qualify…he has experienced problems associated with depression, anxiety and excessive consumption of alcohol and some post traumatic type problems since returning from Vietnam however the issues that he would claim to have caused same do not appear to meet the relevant criteria.

18. The applicant relied on the report of Dr Athey, who diagnosed him with PTSD (at ff21-22 T4 of the T-documents). Dr Athey wrote

Although [the applicant] was not placed in a situation where he experienced witnessed or confronted with an event or events that involved actual death or serious injury, he did perceive an overall threat to his wellbeing or integrity…I…consider also that he has the symptoms of a Generalised Anxiety Disorder….I acknowledge there is a high degree of overlap in these two diagnoses, and Post Traumatic Stress Disorder is an anxiety disorder in DSM IV.

19. The applicant also relied on the opinion of Dr Likely, who also diagnosed the applicant with PTSD, complicated by major depressive disorder (f33 T4 of the T-documents). Dr Likely relied on the same events as Dr Athey in coming to his conclusion.

20.     On the balance of probabilities I prefer the diagnosis of Dr Mulholland.  Dr Athey says the applicant was not placed in a situation where he was confronted with an event or events that involved actual death or serious injury but perceived an overall threat to his wellbeing and integrity.  I agree with Dr Mulholland that this is not enough.  Dr Likely relies on the same events.  I do not accept the diagnosis for PTSD is made out on the facts.  It seems more likely the applicant suffers from an anxiety condition or a depressive disorder.  Dr Athey and Dr Likely both suggest the presence of a depressive or anxiety disorder.

21.     The claim with respect to PTSD fails because I do not accept on the medical evidence before me that the applicant suffers from the condition.

Do the facts fit the SOP for PTSD?

22.     For the sake of completeness, even if I accept the diagnosis of PTSD I am not satisfied it could be connected with his service.  The facts as recounted by him do not fit the SOP for PTSD as the four events are not severe stressors.  Dr Athey says the applicant perceived an overall threat to his wellbeing or integrity.  But that is not enough. At this point it is appropriate to discuss the decision of the Federal Court in Stoddart v Repatriation Commission (2003) 197 ALR 283. Mansfield J explained at 294 that the severe stressor need not involve an actual threat:

…it does not follow that the "threat" there referred to must involve events which judged objectively and with full information involve an actual threat of death or serious injury. That construction would appear to go beyond the purpose of SoPs.

23.     Mansfield J went on to explain the requirement, at 296:

In my judgment the language of the definition of "experiencing a severe stressor" caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity."

24.     The reasoning of Mansfield J was upheld on appeal in Repatriation Commission v Stoddart [2003] FCAFC 300.

25.     The question becomes whether any of the four events were capable of conveying and did (subjectively) convey the risk of death or serious injury or risk to physical integrity, if judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant.  The applicant’s knowledge and experience are therefore relevant.  I note having joined the Army in 1966 he was an experienced serviceman.

26.     I do not think that, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant, any of the four events were capable of conveying a risk of death or serious injury or risk to physical integrity.

Does a Reasonable Hypothesis exist for Depressive Disorder?

27.     The applicant relies on instrument number 58 of 1998.  The factors on which he relies are 5(b) and 5(c).  They state:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder…with the person’s relevant service are:…

(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or

(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder…

28.     The key term is defined in the instrument.  It says:

“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems…

29.     I can accept a diagnosis of a depressive disorder, based on the reports of Dr Athey and Dr Likely.  But it must be ascertained whether the illness can be connected to the service.  The key question, then, is whether any of the four events experienced by the applicant can be considered a severe psychosocial stressor. 

30.     I am not satisfied any of them are severe psychosocial stressors.  While I accept the applicant was stressed, tense and disconcerted by the four events, I am not satisfied the events evoked the requisite feelings of “substantial distress” in him. 

31.     When he challenged the South Vietnamese officer, and was reprimanded strongly for it, the applicant says he felt “lousy and apprehensive”.  When he heard the gunfire in camp, he dived to the ground immediately.  But after a short while he got up and continued delivering the mail.  After the confrontation with his tent-mate, the applicant went back to sleep, albeit after some time.  These reactions do not suggest the sort of substantial distress evoked by an event such as being shot, or being assaulted, or suffering severe illness or injury.  Finally, even if his travel with Australian Army officers in South Vietnam could be construed as an “identifiable occurrence”, I do not think it is a severe psychosocial stressor:  he was nervous and “keyed up” but did not suffer substantial distress of the sort envisaged by the instrument.  Factor 5(b) is not satisfied.

32.     Factor 5(c) is not met either because the applicant did not suffer a psychiatric disorder (related to service) within two years immediately before the clinical onset of the depressive disorder.

33.     The hypothesis is not reasonable.  The depressive disorder cannot be connected to service, and the claim in relation to it fails at this point.

Does a Reasonable Hypothesis exist for Generalised Anxiety Disorder?

34.     The instrument which deals with anxiety disorder is number 1 of 2000.  It relevantly states:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder…with the circumstances of a person’s relevant service are:

(a) for generalised anxiety disorder or anxiety disorder not otherwise specified, only..

(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or

(iii) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of anxiety disorder…

35.     I have established above that I do not believe the events experienced by the applicant qualify as severe psychosocial stressors.  Factor 5(a)(ii) is not satisfied.  Further, there is no evidence to suggest the applicant had a clinically significant psychiatric condition (related to service) within the two years immediately before the clinical onset of anxiety disorder: factor 5(a)(iii) is not satisfied either.

Does a Reasonable Hypothesis exist for Alcohol Dependence or Abuse?

36.     The relevant SOP here is number 76 of 1998.  The applicant says his alcohol dependence arose as a consequence of his depressive disorder or PTSD.  As I am unable to connect either of them with the applicant’s war service, his alcohol dependence cannot be connected to his war service either.  His claim relating to alcohol dependence must fail.

Conclusion

37.     None of the conditions which the applicant claims fit with the relevant SOPs.  The hypotheses are not reasonable.  All of the claims must fail.  The decision under review is affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe.

Signed:         .....................................................................................
  Associate: Thomas Ritchie

Date/s of Hearing: 1 March 2004
Date of Decision: 1 March 2004
The applicant was represented by Mr Honchin
The respondent was represented by Mr Stoner, a departmental advocate