Grant Martin and Repatriation Commission
[2014] AATA 600
[2014] AATA 600
Division VETERANS' APPEALS DIVISION File Number
2013/3572
Re
Grant Martin
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 26 August 2014 Place Brisbane The Tribunal sets aside the decision under review and substitutes its decision that posttraumatic stress disorder and depressive disorder are war caused in accordance with
s 9 of the Veterans’ Entitlements Act 1986 (Cth), that the applicant is entitled to receive a pension in respect of incapacity associated with those conditions from and including
13 December 2011 and that the matter of assessment be remitted to the Repatriation Commission.............................[Sgd]............................................
Mr R G Kenny, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Operational service with Royal Australian Navy – Application of Statement of Principles – Appropriate diagnosis of posttraumatic stress disorder and depressive disorder – Reasonable hypotheses of relationship to service raised – Not satisfied beyond reasonable doubt that psychiatric conditions not related to service – Posttraumatic stress disorder and depressive disorder war-caused – Decision under review set aside – Remittal of assessment to respondent
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 5B, 9, 14, 70, 120, 120A, 157(2), Sch 2
CASES
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
RepatriationCommission v Keeley (2000) 60 ALD 401
SECONDARY MATERIALS
Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (as amended by Amendment Statement of Principles No 19 of 2014).
Statement of Principles concerning Depressive Disorder, No. 27 of 2008 (as amended by Amendment Statement of Principles No 41 of 2010).
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)
Diagnostic and Statistical Manual of Mental Disorders, Text Revision (DSM-IV-TR)
REASONS FOR DECISION
Mr R G Kenny, Senior Member
26 August 2014
BACKGROUND
On 13 March 2012, Grant Martin (“the applicant”) 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 pension in respect of “post-traumatic stress disorder” and “major depressive disorder”. He contended that these were related to circumstances of his service with the Royal Australian Navy (“the RAN”). On
11 May 2012, the respondent determined that the conditions were not related to the applicant’s service and, on 13 May 2013, the Veterans’ Review Board affirmed that decision.
ISSUES AND SERVICE
The applicant rendered defence service in the RAN from 2 April 1990 until
1 February 1995.[1] Within that period, he served in the Red Sea on HMAS Canberra (“the Canberra”) in the area north of the parallel 20 degrees north latitude. In the Act, this area during the period from 13 January 1993 until 19 January 1994 is prescribed as an operational area.[2] It is not in dispute that the applicant was allotted for duty[3] in that area within that time-frame viz. from 13 November 1992 until 12 March 1993. The applicant’s period of service in the Red Sea comprises eligible war service in the form of operational service. Under s 9(1)(b) of the Act, an injury or disease will be war-caused if it arose out of, or was attributable to, any eligible war service rendered by the applicant. Under s 70(5) of the Act, an injury or disease will be defence-caused if it arose out of, or was attributable to, any of his defence service. However, it was contended on the applicant’s behalf that his psychiatric conditions were not related to his defence service.
[1] Excluding a period of operational service.
[2] See s 5B and item 15 of Schedule 2 of the Act.
[3] See Instrument of Allotment dated 3 January 2009 from Vice Chief of the Defence Force.
The standard of proof to be used in determining diagnostic matters under the Act is provided for in s 120(4). This requires that such matters be determined on the balance of probabilities.[4] For issues of causation for operational service, the standard of proof is set out in ss 120(1) and 120(3) of the Act. These read:
[4] Fogarty v Repatriation Commission [2003] FCAFC 136, [34]-[35]; (2003) 37 AAR 363 at 373.
120 Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, 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.The application of s 120(1) of the Act is affected by the terms of s 120A thereof which requires that consideration be given to any relevant Statements of Principles (“SoP”) that have been published by the Repatriation Medical Authority (“RMA”).
EVIDENCE
The applicant provided a statement, dated 6 March 2014, and gave evidence as follows. He was trained in the RAN as a radar plotter. In 1991, he joined the Canberra where he worked in the operations room and had general seamanship responsibilities. From November 1992 until March 1993, the Canberra took part in Operation Damask VI in the northern Red Sea as part of the Multinational Interception Force enforcing
United Nations sanctions against Iraq. This involved armed personnel from the Canberra, boarding and searching merchant vessels before they entered the Gulf of Aqaba. The applicant was not involved in the boarding and searching activity. He held the rank of Able Seaman at that time and his responsibility was to maintain the operations room and also to maintain the surface radar position. His working hours were long and stressful because he was responsible for alerting the ship to any activity by Iraqi forces who may have been laying mines from small boats in the Canberra’s vicinity. He had been advised that there was a threat of fishing boats being used by Iraqi forces to lay sea mines in the area. However, at no stage did the applicant observe any such mines.
In January 1993, the Canberra was required to provide Anti-Air cover for the USS Caron (“the Caron”) while it carried out a Tomahawk missile firing at targets in Iraq. This occurred on 17 January 1993 when the Canberra was stationed some 5,500 yards off the Caron’s starboard beam. The Canberra’s role in the operation was to escort and protect the Caron from enemy attack. At that time, the applicant was on the air radar and was responsible for identifying any air threat to the Caron or the Canberra during the firing. After the Tomahawk attack, the applicant and others in the operations room were verbally advised by an Officer that Iraqi forces had retaliated with missiles and aircraft. The applicant’s evidence was that this resulted in the Canberra and the Caron taking evasive action by heading due south at full speed until the threat had passed. At that time, he believed that the Canberra was under a threat of serious physical attack because he was aware that the Iraqi weaponry, in the form of both aircraft and surface missiles, was capable of reaching the Canberra and that only a few minutes of flying time was required for these to do so. He said that he feared for his life at that time. He described the Canberra as being at defence stations, the second highest state of readiness, while performing its role with the Caron.
The applicant’s evidence was that, upon returning to Australia in March 1993, he started to have panic attacks and nightmares relating to the Red Sea experiences. This lasted for about a year but eased when he left the RAN. They occurred about twice per week and would last for a couple of hours. They recommenced in about 2006. The applicant was employed by the New South Wales police service for 18 years after he left the RAN. During his police service, he experienced some significant traumatic events including shooting incidents which worsened his posttraumatic stress disorder symptoms.
R W Gates
Mr Gates was the commanding officer of the Canberra during Operation Damask VI in the Red Sea. He completed a statement on 27 February 2014 and gave oral evidence. He said that the crew of the ship maintained a cautious lookout for floating mines in the
Red Sea even though the information available was that the area was free of them. He said that the role of the Canberra was as an Anti-Air cover for the Caron. This required the Canberra to provide protection to the Caron during her missile firing into Iraq which occurred on the night of 17 February 1993. In particular, the task was to keep the missile path clear and this was done through monitoring the radar in the operations room.
Mr Gates confirmed that, after the firing, a missile alert was received. This was announced over the Canberra’s public address system and the ship moved to the status of “Air Raid Warning Yellow” for about 30 to 60 minutes. This was a heightened but precautionary state of readiness in respect of a possible missile attack. It was lower than “red” status which would have equated to being at Action Stations in respect of an immediate threat. Mr Gates said that the launching of an Iraqi missile was not confirmed and no radar sightings were observed. He said that he believed the ship was not under any immediate direct threat and that the Canberra was beyond the range of any known Scud missile sites in Iraq. However, he said that he was aware that there may have been other unknown Scud missile sites in Iraq. Mr Gates denied that the Canberra took evasive action at any time although he conceded that, as part of its role in protecting the Caron, it may have increased speed to manoeuvre itself between the Caron and the shore from which an attack may be launched.
Medical evidence
Dr Christopher Danesi, psychiatrist, has treated the applicant for several years. He completed reports on 30 April 2012, 19 December 2012 and 17 December 2013 as well as a diagnostic statement on 13 January 2012. He also gave oral evidence. Dr Danesi diagnosed posttraumatic stress disorder and major depressive disorder.
In his first report, Dr Danesi referred to the applicant’s operational service in the Red Sea and noted that the Canberra had been the subject of a missile strike. However, he also wrote that if the applicant had seen the missile on the radar it was unlikely that it could be prevented from hitting the ship. He attributed posttraumatic stress disorder to the applicant’s involvement in Operation Damask VI with the subsequent development of depressive disorder in about 2004.
In his second report, Dr Danesi referred to the applicant’s police service, noting that he had qualified as a detective and had been involved in “major crime squad with fights, needing to pull out his weapon, investigating murders, drive by shootings” and “feuding drug families”. Dr Danesi wrote that these things preoccupied the applicant’s mind and were distressing to him. In relation to Operation Damask VI, Dr Danesi described the applicant as very anxious when tracking live missiles and worried about whether any missiles aimed at the Canberra could be shot down before striking the ship. Dr Danesi reiterated that the applicant’s posttraumatic stress disorder was attributable to his service in Operation Damask VI.
In his third report, Dr Danesi described an incident which occurred when the Canberra was berthing in Sydney Harbour prior to his operational service. In the incident, the applicant was knocked down by a rope being manipulated by crew members to attach the ship to a buoy. The applicant was dragged towards a dangerous point on the deck but was freed by other crew members. Dr Danesi recorded the applicant as advising him of nightmares relating to that incident and a return of these in 2002 after a stressful incident in the police service. Dr Danesi noted that the applicant had been involved in searching for mines in a “runabout” in the Persian Gulf. He also wrote that this was done in the context of similar actions by the Royal Navy. However, Dr Danesi also expressed the opinion in this third report that wrote that the applicant’s posttraumatic stress disorder dated from his involvement in Operation Damask VI.
In his evidence, Dr Danesi did not have his reports or any of his clinical notes. His memory was that the applicant’s posttraumatic stress disorder was attributable to the incident in Sydney Harbour. His opinion was that the applicant met all of the diagnostic criteria for posttraumatic stress disorder including that identified as criterion A in the relevant SoP.[5] He said that the stressful event which evoked fear in the applicant was the threat of the Scud missile being launched against the Canberra at the time when the ship went to a higher state of readiness. He considered that, even though Mr Gates was of the opinion that there was no danger, his opinion did not necessarily mean that the same perception was held by other crew members. His opinion was that the applicant’s perception of a threat was sufficient to meet the requirements of the SoP for posttraumatic stress disorder. Dr Danesi described the applicant’s depressive disorder as developing to a clinically significant degree as a result of his posttraumatic stress disorder.
[5] Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (as amended by Amendment Statement of Principles No 19 of 2014).
STATEMENTS OF PRINCIPLES
Relevant to the applicant’s claim for posttraumatic stress disorder is Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008 (as amended) by Amendment Statement of Principles No 19 of 2014. The applicant is entitled to the benefit of whichever of these is the more favourable.[6] In this case, the more beneficial factor is in the amending Instrument. It reads:
6(ba) having a perception of threat and/or harm to the integrity of the self as a consequence of being in what:
(i) the individual concerned; and
(ii) a reasonable person in the circumstances of that individual would have;
considered to be any or all of a threatening, hostile, hazardous and/or menacing situation and/or environment before the clinical onset of posttraumatic stress disorder; or";
[6] See Repatriation Commission v Gorton (2001) 65 ALD 609 and Repatriation Commission v Keeley (2000) 60 ALD 401.
The Statement of Principles for posttraumatic stress disorder also lists six diagnostic criteria which are taken from DSM-IV-TR.[7] The first of these is:
(A) the person has been exposed to a traumatic event in which:
(iii) 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
(iv) the person’s response involved intense fear, helplessness, or horror.
[7] The DSM-IV-TR is defined in cl 9 of the Statement of Principles to mean “The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000”.
Of relevance to depressive disorder is Statement of Principles concerning Depressive Disorder, No 27 of 2008.[8] It sets out the factors, at least one of which must exist for depressive disorder to be related to the applicant’s RAN service. The factor and associated definition relied on by the applicant read:
[8] As amended by Instrument No 40 of 2010 in a manner not relevant in this matter.
6. …
(a)…
(vi) having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder; …
9. …
"a clinically significant psychiatric condition" means any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;
SUBMISSIONS
For the applicant, Mr Rod Thompson accepted that the relevant SoP in relation to the applicant’s posttraumatic stress disorder was SoP No. 5 of 2008 (as amended) and that the 2014 amendment which added cl 6(ba) was applicable to the applicant’s circumstances. He also submitted that it was no longer appropriate for the Tribunal to rely on diagnostic factors for posttraumatic stress disorder in DSM-IV-TR as this had been superseded by the DSM-V. He referred to earlier submissions which had been made in the applicant’s case concerning a stressful incident which occurred during the applicant’s defence service prior to his operational service in the Red Sea. This was when the Canberra was tying up to a buoy in Sydney Harbour. Mr Thompson said that the applicant was no longer relying on that incident. Rather, he submitted that the evidence pointed to a reasonable hypothesis that the applicant’s posttraumatic stress disorder was attributable to his operational service during Operation Damask VI. He submitted that the diagnostic criteria for that condition, as set out in the SoP were met on the evidence of
Dr Danesi, and that cl 6(ba) in the SoP was also met because of the perception which the applicant held when the alarm was given that a Scud missile had been discharged by Iraqi forces towards the Canberra on the evening of 17 February 1993. Mr Thompson submitted that the hypothesis could not be disproved beyond reasonable doubt, that posttraumatic stress disorder should be determined to be war-caused and that the decision in relation to that condition be set aside.
In relation to the applicant’s depressive disorder, Mr Thompson submitted that there was a reasonable hypothesis that this condition was related to his posttraumatic stress disorder and that its clinical onset was within the time frame required in the SoP for depressive disorder. He submitted that there was no evidence to disprove beyond reasonable doubt that relationship or time-frame, that the applicant’s depressive disorder should also be determined to be war-caused and that the decision under review in relation to that condition be set aside, accordingly.
For the respondent, Mr Bruce Williams conceded that the applicant’s involvement in Operation Damask VI constitutes eligible service in the form of operational service and that the relevant SoPs were Instruments No. 5 of 2008 (as amended) and No. 27 of 2008 (as amended). He conceded that, if posttraumatic stress disorder was found to be war caused on the basis of the applicant’s involvement in Operation Damask VI, his subsequent development of depressive disorder would also be war-caused because of the SoP for that condition. However, Mr Williams submitted that there were inconsistencies in the applicant’s evidence, such that any reasonable hypothesis which may be raised on the evidence in relation to posttraumatic stress disorder was disproved beyond reasonable doubt. He submitted that the decisions under review ought be affirmed.
CONSIDERATION
The procedure for determining whether or not a particular condition which caused injury, disease or death arose out of, or was attributable to, any eligible war service that the veteran rendered was set out by the Federal Court in the following terms:[9]
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 hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or s 196B(11). ...
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 s196B(2)(d) and s196B(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 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused... 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.
Posttraumatic stress disorder
[9] See Repatriation Commission v Deledio (1998) 83 FCR 82 at 82–83.
I do not accept Mr Thompson’s submission that the amendment to the SoP for posttraumatic stress disorder negates, in some way, the applicability of DSM-IV-TR criteria in favour of those in DSM V. The SoP continues to refer to DSM-IV-TR and I am satisfied that the terms of the SoP must be applied.
I have noted the submission from Mr Williams about the inconsistencies in aspects of the evidence in this matter. In particular, these are revealed in the evidence of
Dr Danesi. His reports identify quite significant stressors relating to the applicant’s police service. He also identified the stressor concerning the Canberra in Sydney Harbour and, indeed, in his oral evidence, he attributed the applicant’s posttraumatic stress disorder to this incident. In his reports, he variously described the applicant being involved in mine searches in a runabout in the Persian Gulf and also the actual firing of an Iraqi missile at the Canberra. It would seem that these were accounts given by the applicant to
Dr Danesi. Nonetheless, in his reports, Dr Danesi maintained his opinion that the applicant’s posttraumatic stress disorder was attributable to his operational service in Operation Damask VI. Dr Danesi accepted that all of the diagnostic criteria for posttraumatic stress disorder had been met. In respect of criterion A,[10] his opinion was that, in being advised of an Iraqi missile attack on the Canberra, the applicant was confronted with an event that involved threatened death or serious injury and that, in fearing for his life, the applicant’s response to the threat involved intense fear. The applicant’s evidence was that he began to experience panic attacks after he returned to Australia which was shortly after his involvement in Operation Damask VI.
[10] See paragraph 15 (above).
The hypothesis is that the applicant’s posttraumatic stress disorder arose from the threat of harm from an Iraqi missile being fired at the Canberra. Though I make no findings of fact at this stage of considering the applicant’s claim, the material in this matter points to the following: there was a missile alert after the Caron’s missiles were fired into Iraq; this resulted in the Canberra being placed on an increased level of awareness for 30 to 60 minutes; the entire ship’s crew was made aware of this over the public address system; the applicant and other radio operators were, in addition, advised verbally of this; the radio operators were immediately required to look to their radar screens for the manifestation of the threat; the applicant, because of his involvement in that process, perceived that there was a threat of harm in what he considered to be a threatening situation; that perception was one which a reasonable person in the applicant’s circumstances would have; and this occurred before the clinical onset of posttraumatic stress disorder.
On that material, I am satisfied that the requirements at cl 6(ba) of the SoP No. 5 of 2008 (as amended) are pointed to by the material before me and that, accordingly, the hypothesis advanced on the applicant’s behalf is a reasonable one. This means that the applicant’s posttraumatic stress disorder will be war-caused unless I am satisfied beyond reasonable doubt that there are facts which disprove the hypothesis or which are inconsistent with it.
I have identified some inconsistences in the evidence of Dr Danesi. As noted above, he did not have the benefit of seeing his reports or clinical notes. His reports contain some errors. He described incidents in the Gulf in the 1980s and corrected that at the hearing to the 1990s. He referred to activities of the Royal Navy in the Persian Gulf which appear to have no basis in fact. He also described a wide range of stressors experienced by the applicant but, in his reports, he maintained that the relevant stressor for the applicant’s posttraumatic stress disorder was the threat of missile attack in Operation Damask VI. I accept that the applicant perceived a very real threat from the announced missile attack and, in that regard, I am satisfied that his position and duty on the Canberra as a radar plotter was of particular significance. It has not been disputed that the threat of a missile strike on the Canberra was one which, if it materialised, would certainly have resulted, in the very least, in a threatening, hostile, hazardous and menacing situation. Given that the readiness status of the ship had been raised, this would have caused a reasonable individual in the applicant’s position to feel as he did. There were some inconsistencies in the applicant’s evidence. He described the Canberra taking evasive action when the alarm was raised about the Iraqi missile. This was denied by
Mr Gates who, nevertheless, said that the Canberra may have moved urgently to a position between the land and the Caron to provide increased protection. The applicant’s perception may be explained by his clear preoccupation at that time with being busily engaged in examining the radar screen in the operations room for a threatened missile.
I am not satisfied beyond reasonable doubt that facts on which the hypothesis rests are not made out. Also, I am not satisfied beyond reasonable doubt that there are facts inconsistent with those on which the hypothesis rests. It follows that the applicant’s posttraumatic stress disorder is war-caused in accordance with s 9 of the Act.
Depressive disorder
Mr Williams conceded that, in the event that the applicant’s posttraumatic stress disorder was war-caused, his major depressive disorder would also be war-caused. The hypothesis is that the applicant’s depressive disorder is related to the applicant’s posttraumatic stress disorder, that its onset occurred within the time frame required by the SoP and that it was clinically significant, as that term is defined in the SoP, at that time. Dr Danesi’s evidence points to those matters being met and I am satisfied that the hypothesis is a reasonable one.
I am not satisfied beyond reasonable doubt that the factors in the SoP for depressive disorder are not made out. It follows that the applicant’s depressive disorder is
war-caused in accordance with s 9 of the Act.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that posttraumatic stress disorder and depressive disorder are war caused in accordance with
s 9 of the Veterans’ Entitlements Act 1986 (Cth), that the applicant is entitled to receive a pension in respect of incapacity associated with those conditions from and including
13 December 2011[11] and that the matter of assessment be remitted to the Repatriation Commission.
[11] Set in accordance with s 157(2) of the Act.
I certify that the preceding 29 (twenty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member ............................[Sgd]............................................
Associate
Dated 26 August 2014
Date of hearing 8 August 2014 Advocate for the Applicant Rod Thompson, Australian Peacekeeper and Peacemaker Veterans Association Solicitors for the Respondent
Bruce Williams, Department of Veterans' Affairs
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