Hayes and Repatriation Commission (Veterans' entitlements)

[2020] AATA 999

Hayes and Repatriation Commission (Veterans' entitlements) [2020] AATA 999 (30 April 2020)

Division:VETERANS' APPEALS DIVISION

File Number:          2015/4293

Re:Kim Hayes

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:30 April 2020 

Place:Brisbane

I set aside the decision under review and substitute a decision that the disease of the veteran of an adjustment disorder with anxiety and mood symptoms was war-caused and that he is entitled to a pension. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 28 February 2012 which is the date when he lodged his claim.

.........................[SGD]...............................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veterans’ entitlements – post-traumatic stress disorder not accepted as related to service – diagnosis of condition – diagnosis of post-traumatic stress disorder  not established – diagnosis of adjustment disorder established – Deledio  steps – the relevant Statement of Principles supports the connection between the applicant’s service and adjustment disorder condition – decision under review set aside and substituted decision that adjustment disorder war caused – remitted for assessment of pension.

LEGISLATION

Veterans Entitlement Act 1986 (Cth)

CASES

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Deledio v Repatriation Commission (1997) 47 ALD 261

Ellis v Repatriation Commission [2014] FCA 847

Forrester v Repatriation Commission [2013] FCA 898

Repatriation Commission v Bawden [2012] FCAFC 176

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Gorton (2001) 110 FCR 321

Repatriation Commission v Warren [2008] FCAFC 64

Stevens v Repatriation Commission [2018] FCA 1866

Summers v Repatriation Commission (2007) 230 FCR 179

SECONDARY MATERIALS

Statement of Principles concerning Adjustment Disorder (No.23 of 2016).

Statement of Principles concerning Adjustment Disorder (No.38 of 2008).

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

30 April 2020

INTRODUCTION

1. On 4 February 2013 the respondent made a decision which denied that the claimed conditions of post-traumatic stress disorder (PTSD), tinnitus and sensorineural hearing loss were related to the service of the veteran and that there was no medical condition present to answer for the claimed conditions of osteoarthritis of both ankles and osteoarthritis of the left knee. Claims for the conditions of osteoarthritis of the right knee, lumbar spondylosis, solar keratosis and non-melanotic malignant neoplasm of skin were accepted with effect from 28 November 2011. The disability pension was assessed at 40 per cent of the general rate.

2. On 12 March 2013 the applicant lodged an application for review of the decision to the Veterans’ Review Board (VRB). On 19 June 2015 the VRB affirmed the respondent's decision in relation to the conditions of post-traumatic stress disorder, tinnitus and sensorineural hearing loss, osteoarthritis of both ankles and osteoarthritis of the left knee.

3. On 18 August 2015 the applicant lodged an application with this Tribunal for review of the decision of the VRB. In that application, the applicant claimed that his PTSD condition arose after his deployment to Western Sahara in 1993, and was further aggravated by later deployments to Bougainville and East Timor between 1998 and 2000, and should be accepted under the Veterans’ Entitlement Act 1986 (Cth) (the Act).

4. The applicant did not put forward any argument that the decision of the VRB in relation to the conditions of sensorineural hearing loss, tinnitus, osteoarthritis of both ankles and osteoarthritis of the left knee was not the correct and preferable decision. The applicant did not place any evidence before the Tribunal in relation to these conditions. After review of the material before the VRB, I consider that the VRB made the correct and preferable decision in relation to these conditions. At the initial hearing the applicant’s advocate confirmed the only condition being pursued before the Tribunal was the rejection of the claim for PTSD.  

   SERVICE

5. The applicant is a veteran who has extensive service in the Australian Army. He initially served from 20 August 1985 until 14 September 1997, including peacekeeping service rendered in Western Sahara from 17 May 1993 to 1 December 1993. This service is eligible defence service under the Act.[1]

   [1] Veterans Entitlements Act 1986 (Cth) s 6C, s68, Sch 3 Item 20.

6. On 7 September 1998, the veteran transferred to the Regular Army and continued to serve until 1 August 2013. He rendered operational service in Bougainville from 27 November 1998 to 30 March 1999 and in East Timor from 16 April 2000 to 14 October 2000. These periods of service have been held by the VRB to be eligible war service under the Act.[2]  The Tribunal was informed that the veteran has a Class A pension and now drives a truck.

   [2] Exhibit A, Section 37 T documents, T2 at folio B3.

   LEGISLATIVE FRAMEWORK

7. Section 13(1) of the Act provides that where a veteran is incapacitated from a war-caused injury or a war-caused disease the Commonwealth is liable to pay a pension by way of compensation to the veteran.

8. Section 9 of the Act provides that an injury or disease shall be taken to be war-caused if the injury suffered or diseases contracted by the veteran resulted from an occurrence that happened while the veteran was rendering operational service.

9. As the veteran has performed operational service, the determination of whether an injury or disease is war-caused is to be made by applying the standard of proof outlined in subsections 120(1), 120(3) and 120A of the Act. Subsection 120(1) of the Act provides that where a claim for a pension:

   (i)…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.

10. Subsection 120(3) of the Act also provides:

    (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.

11. Section 120A sets out how a hypothesis must be assessed:

    (1)     This section applies to any of the following claims made on or after 1 June 1994:

    (a)a claim under Part II that relates to the operational service rendered by a veteran…

    STATEMENT OF PRINCIPLES

12. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (RMA) which is an independent medical body that issues Statements of Principles (SoPs) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

13. Section 196B(2) of the Act provides that if the RMA:

    … is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

    (a) operational service rendered by veterans;

    …

    the [RMA] must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

    (d) the factors that must as a minimum exist; and

    (e) which of those factors must be related to service rendered by a person;

    before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

14. A SoP is binding on the respondent and various review bodies, including this Tribunal.

15. The SoP relevant to this matter is the Statement of Principles concerning Adjustment Disorder No. 23 of 2016.

    EVIDENCE

    Evidence of the Veteran

16. The veteran articulated in statements and oral evidence a number of incidents that he claims occurred during his overseas deployments that impacted on him and contributed to his mental health conditions.[3]

    [3]  Exhibit H, Applicant’s career timeline lodged 24 November 2015; Exhibit D, Statutory Declaration of the Applicant dated 25 November 2013.

    Butterworth, Malaysia

17. The veteran stated he witnessed a motor vehicle accident and saw a civilian get critically injured while on deployment in Butterworth in October 1987. He describes hearing a motor bike smack into the back of a truck that was parked on the side of the road. He states that he and others in the company were denied being able to give assistance as the guards would not let them through. He stated that they could see that the driver of the motor bike was ‘pretty messed up from smacking into the back of the truck…he was he wasn’t in a good way. He died there.’

18. The veteran describes traffic accidents as being a common occurrence during the road patrols he was involved in during this deployment: ‘…the traffic accidents over there are so numerous as to be unremarkable…near-misses all the time…you’re forever seeing injured people or just bashed up motor vehicles from the accidents going around ‘.

    Western Sahara

19. The veteran recounted another motor vehicle accident that occurred in 1993 in Western Sahara where three Russian technicians crashed their car. The veteran was on radio watch and clarified while he didn’t witness the accident, the state of the vehicle and the injured members of the team were fully described to him: ‘you could hear them on the radio, the whole time, the stress, pain, the fear for their lives not getting help in time….’.

20. The veteran explained that while on this deployment he was frequently exposed to the threat of land mines, and that it was not uncommon to find or spot ‘unexploded 500 pound bombs, cluster bomblets’ while patrolling in a vehicle or seeing ‘vehicles that were out in the desert that had hit mines at some stage and it was just the carcasses of the vehicles...’.The veteran stated the only physical protection against mines were the ballistic vests that were provided and the Nissan Patrol and that they would only drive on recent vehicle tracks and avoid undisturbed ground because of the shifting of the mines under the sand.

21. The veteran described the presence of land mines as a constant threat ‘…you never knew if that next drive was going to be tidy. But - yes. You didn’t know if it was going to go boom’. He stated that while he had experienced the threat of land mines on later deployments, the ‘level of threat was certainly the most extreme in that Western Sahara deployment’. He explained that there were also other types of threats present ‘…there was always the potential for booby traps, whether that are explosive or other types….’

22. The veteran noted that following this deployment he had consulted with medical professionals regarding his mental health as part of the debriefing process and had a ‘couple of briefings and one on one. Not terribly long time’. He struggled to feel comfortable after this deployment:  ‘I don’t know if I’ve really been truly comfortable since as such… you’re different when you come back from deployment’ but said he had settled back in to work as he ‘…did what I had to do’ but noted there were ‘a  few blips along the way’.

    Bougainville

23. While on deployment to Bougainville during the period of 1998 to 1999, the veteran describes being attacked by the local people and feeling threatened. He explained that the locals would use slingshots to ‘peg all sorts of things at the vehicles…There’s holes in the canvas of the Landrovers’. He stated there were also homemade weapons and manufactured weapons being used. He confirmed he was unarmed during this deployment. In his career snapshot statement he describes there being a ‘constant concern/fear whilst on patrols, particularly whilst at team sites’.[4]

    [4] Exhibit H, Applicant’s career timeline lodged 24 November 2015.

24. He recounted an incident where he was running on the side of the road and a ute drove past ‘within 12 to 18 inches’ of him and ‘ran over the dog that used to run to the beach with us’. He stated the dog was critically injured and he had ‘to find a good lump of stick to put the dog out of its misery’. He stated that he never knew if it was just drunken driving or ‘whether it was some form of the intimidation by the BRA, the Bougainville Revolutionary Army. I just don’t know…’ In his career snapshot statement he states he has not run voluntarily since.[5]

    [5] Ibid.

    East Timor

25. The veteran described participating in clearing patrols and fighting patrols while part of a peacekeeping force during deployment to East Timor in 2000 where he was armed. The veteran described the threat present in East Timor as different from Western Sahara, explaining ‘…there was a much more in your face threat…You know, of certainly contacts and other - other non-firearms related incidents and stuff like that…’

26. The veteran said that while none of patrols he led or participated had contact with pro-Indonesian militias or insurgents, he described experiencing constant levels of fear and threat during this deployment. He explained that ‘…the expectation each time you go out on a clearing or fighting patrol is that the potential is there for a contact to occur, so you’re wired up to react according to that the entire - the entire time…you were there, you travel around loaded ready to, to fight, carrying hand grenades and a couple of hundred rounds of ammunition and first aid kits and all that sort of stuff’.

27. The veteran noted that throughout his various deployments he had seen psychologists externally and through the defence force regarding his mental health. He stated that in 1995 following deployment to Western Sahara he had sought psychiatric treatment for a little while but stopped stating that the ‘culture was harden up and you don’t show weakness and you certainly don’t show psychological weakness that would potentially threaten your career development and possible future deployment, so you just - yes, you just faked it and didn’t say what was really going on’.

28. He described that such consultations often occurred before and after deployments as part of the briefing and debriefing process. After his later deployment in East Timor in 2000 he noted that:

    …by then well across [what] you needed to throw in to appear to be perfectly normal and not having any dramas or issues, you know, because it was frowned upon to be broken in a culture…so you knew what the psychs were after on the briefings and the debriefings and that, and you answered accordingly to - to keep your career ticking along and future deployments and the bags of gold that went with it, you know.

    Medical Reports

29. There are a number of medical reports in evidence. Extracts from those reports appear below.

    Dr Malcolm Foxcroft, Psychiatrist

30. Dr Foxcroft provided three reports dated 24 March 2011, 3 November 2011 and 18 July 2012 for the purposes of the veterans DVA claim but did not give evidence at any of the hearings of the application in this Tribunal. Dr Foxcroft stated that the veteran had been attending his practice since 21 March 2011 after being referred from an army unit medical officer.

31. In his report dated 24 March 2011,[6] Dr Foxcroft outlined the service history of the veteran:

    As you are aware she [sic] presents with a history of a depressive mood which has developed following an altercation and deterioration in mood whilst on deployment in Afghanistan in late 2010/2011.  He was charged with a number of offences and after having had initial investigation and downgrade for several of these he was eventually sent home in February 2011 for use of inappropriate language with a subordinate.

    …

    He has been in the army for 28 ½ years including 2 years in reserve service from 1997-1998 and also 1985- 1985. He went to East Timor with 6RAR in 2000 and has also been deployed to the Solomon Islands, Bougainville, Western Sahara and then Afghanistan in 2006 and 2010. He was subjected to rocket attacks on both these occasions and particularly the 2006 deployment. He was promoted to WO in 2008 and said he that his career path delayed as he had an incident where he required to use the rank of LCPL on 2 occasions. He had no other significant administrative issues.

    [6] Exhibit C, Applicant’s psychology and personnel file at pp. 11 -12.

32. Dr Foxcroft concluded in this report that the current diagnosis was ‘…major depressive disorder with possible previously post-traumatic stress disorder arising from the deployment, probably the 2006 deployment to Afghanistan’.

33. In a report dated 3 November 2011,[7] Dr Foxcroft described a continuation of the psychiatric symptoms presented by the veteran:

    “As we have discussed WO2 Hayes continues to have marked anxiety symptoms with speech impediment and other anxiety symptoms arising from his post-traumatic stress disorder and the symptoms worsen whenever he considers returning to the workplace. The conflict with the workplace remains unresolved with respect to his dispute with hierarchy which occurred in Afghanistan and has been unable to take action on any return to work plans…I believe he is unlikely to be able to return to military service and moved towards being discharged on medical grounds, psychiatrically unfit for service…”.

    [7] Exhibit B, Applicant’s service medical records.

34. Dr Foxcroft in a further report dated 18 July 2012,[8] diagnosed the applicant with PTSD arising out of his deployments to Afghanistan in 2010 and potentially contributed to by his earlier deployment to Western Sahara in 1993:

    OPINION: This man presents with a clear diagnosis of Post-Traumatic Stress Disorder arising from 2 deployments to Afghanistan and possibly contributed to by earlier deployments to Western Sahara in 1993. Prior to the deployments he was functioning well and had been working as a Warrant Officer in the Australian Army having completed 28½ years’ service. He had become stressed, irritable and angry during the course of his deployment in 2010 resulting in deterioration in his performance and deterioration in interpersonal functioning…however it is clear from his history that the irritable moods are out of context and have occurred within the framework of Post-Traumatic Stress Disorder arising from his deployment to Afghanistan. He had been subjected to multiple rocket attacks but felt this was not an adequate reason for developing a psychiatric problem and thus had been reluctant to disclose his symptoms to relevant medical authorities. There are no other significant contributing factors that have contributed to his current psychiatric condition. His current psychiatric problems and incapacity are solely cause(d) from his military service and in particular his deployments to Afghanistan in 2006 and 2010.

    [8] Exhibit A, Section 37 T-documents, T7 at pp 67-77.

35. In reaching this diagnosis Dr Foxcroft outlined in detail the veterans background including his service history and the causes of his PTSD:

    WO Hayes had undergone a progressive deterioration in his mood since he returned from Afghanistan in November 2010 following conflict in the workplace and a sacking from his job as SSM in Afghanistan as a result of a whistle blower compliant against him.

    …

    It was apparent from history that WO Hayes has been subjected to considerable stress and a number of severe psychosocial stressors during the course of his military career.

    …

    He works as a communications systems manager. This required him to be on base in Afghanistan and as a consequence of this he was subjected to multiple rocket attacks during the course of both deployments. Mr Hayes reported that his unit and the base was subjected to between 35 and 40 rocket attacks during his first tour and during this time he was exposed to the deaths of a number of soldiers on base who were Dutch and also had problems of severe anxiety typical of the anxiety experienced by individuals who are confined to base and unable to take action against the enemy soldiers who are using mortar and rocket attacks on the base. He felt in a state of continual stress and had returned from Afghanistan on the first deployment with poor sleep, irritable moods and agitation. He had intrusive recollections and re-experiencing phenomena.

    …

    On return to the second tour he was also involved in and experienced multiple attacks on the base. He had documented between 40 and 60 attacks whilst he was there. It often would happen twice in one night. This resulted in ongoing problems with disrupted sleep, intrusive thoughts, recollections and a sense of ongoing fear that he would be killed…He became increasingly irritable, had angry outbursts and began to have difficulty dealing with his peers and subordinates. As a consequence he became short tempered  and behaved inappropriately with a female soldier calling her by inappropriate names when she refuse  to follow certain commands and instructions. He was disciplined and subsequently sent home from the tour.

    …

    Prior to returning to Australia WO Hayes had developed significant symptoms of depression secondary to his posttraumatic stress symptoms.

    …

    He reacted to these situations with feelings of helplessness and horror and described frequent periods where he was extremely scared, fearful and had difficulty focussing or concentrating during the course of his work on the deployments. He thus fulfils criteria A for DSM-IV Post Traumatic Stress Disorder. WO Hayes has undergone intrusive and repeated re-experiencing phenomena including nightmares, flashbacks and intrusive recollections of the deployment to Afghanistan and the rocket attacks. He reacts with feelings of agitation, anxiety, irritability and some panic attacks and thus fulfils criteria B for DSM-IV Post Traumatic Stress Disorder. Since return from Afghanistan he has exhibited prominent symptoms of withdrawal, detachment and isolation. He has become moody, avoids contact with people, places and people which remind him of the events.

    …

    He has lost interest in most of his recreational activities and other interests and as a consequence fulfils criteria C for DSM-IV Post Traumatic Stress Disorder. WO Hayes has problems of poor sleep with initial insomnia, middle insomnia and early wakening, very poor concentration. He has difficulty attending to task, cannot focus, cannot read…He had continued problems of hypervigilance and fulfils criteria D for DSM-IV Post Traumatic Stress Disorder. WO Hayes has developed symptoms of secondary depression with features of a Major Depressive Disorder secondary to his Post Traumatic Stress Disorder. In addition to these incidents WO Hayes has also exposed to significant difficulties in the Western Sahara when he was deployed there in 1993.

    …

    The experiences in Western Sahara in 1993 may represent a vulnerability factor in relation to Post Traumatic Stress Disorder as multiple stressors over multiple deployments increase the risk on development of Post-Traumatic Stress Disorder.

    Dr Janis Carter, Consultant Psychiatrist

1. Dr Carter provided a report dated 2 February 2016 at the request of the veteran.[9] Dr Carter stated she had been treating the veteran since May 2013 and at the date of the report she had seen the veteran on eight occasions.

   [9] Exhibit E, Report of Dr Janis Carter dated 2 February 2016.

2. Dr Carter made a diagnosis of PTSD with a clinical onset in January 1985 following the sexual assault of the veteran by a senior military officer. Dr Carter noted a material worsening of the condition following subsequent deployments to Butterworth in 1987, Western Sahara in 1993, Bougainville in 1998 to 1999, East Timor in 2000 and Afghanistan in 2006 and 2010. She noted the veteran was medically discharged from the army in 2013 due to his PTSD. 

   Dr Jerome Gelb, Psychiatrist

3. Dr Gelb completed a report dated 24 May 2017 at the request of the veteran.[10] Dr Gelb’s report identified the issues of diagnosis and the date of clinical onset of any psychiatric disorder suffered by the veteran.  

   [10] Exhibit J, Report of Dr Jerome Gelb dated 24 May 2017.

4. Dr Gelb considered that the veteran’s condition was best thought of as ‘post-traumatic stress disorder with symptoms of depression and anxiety, rather than either major depression, generalised anxiety disorder or adjustment disorder with depressed and anxious mood’.

5. Dr Gelb posited that the date of the clinical onset of the condition followed the veterans return from deployment in Western Sahara in 1993. Dr Gelb noted that at this point the veteran sought medical assistance for psychiatric symptoms and the subsequent course of his condition was characterised by ‘periods of relapses and remissions’.  Dr Gelb concluded that:

   Clearly, the straw that broke the camel’s back was his deployment to Afghanistan after which he appears to have deteriorated into full blown PTSD. Overall, I have little doubt that Mr Hayes has suffered from psychiatric symptoms as a result of his military service for nearly 30 years and it is therefore appropriate that the Australian defence force accepts liability for his condition.

6. At the resumed hearing on 10 July 2018, Dr Gelb, when asked to summarise his opinion regarding the diagnosis of the veteran stated:

   When I saw him he complained of symptoms which were characteristic of post-traumatic stress disorder, that’s been chronic and I think that’s important to say. I find it instructive to look at how many pages of documentation that there is about him complaining of psychological symptoms of one sort or another and I think one would have to say that, you know, there’s certainly evidence that he had a psychological or mental disturbance and when I saw him, I mean, he certainly, by that stage, have had experience of the symptoms of PTSD and he assented to their presence. So, all I can say, from a cross-sectional point of view and review of the documents, it appears most likely that an illness like PTSD is present…there are crises that occur, both in the person and in their environment, be it a DUI or something else, some other problem like a breakdown of a relationship or whatever it might be. It’s not accounted for by somebody with a normal mental state, it’s accounted for by someone suffering some form of psychological disturbance, long term.

7. Dr Gelb further commented:

   My experience is that it’s fraught with risk to bring up psychological issues during service because the way that they have, historically, been treated and that is that there seems to be a correlation between someone having a psychological problem in the military and a diminution of trust by others in that person and often, discharge is pursued because the person is deemed non-deployable.

8. In cross-examination, Dr Gelb agreed he did not personally examine the veteran, and that his opinion and assessment was based on his reading of the provided material: ‘I just looked at the actual calendar, but I haven’t seen him, it really is all from the hundreds of pages of documents.…I recognise…that’s an inferior assessment to seeing the person and spending time with them. That’s definitely the case’.

9. Dr Gelb was taken to the psychological records of the veteran,[11] and the attendances by the veteran before specialists and commented ‘It appears that along the way that he was seen by mental health professionals’.

   [11] Exhibit N, documents filed by the Respondent on 20 February 2018; Transcript 10 July 2018 at p.108. 

   Dr Johan Scheepers, Consultant Psychiatrist

10. Dr Scheepers provided three medical reports and gave evidence at the initial hearing and both resumed hearings.

11. Dr Scheepers provided a report on 24 March 2016 after examining the veteran on          16 March 2016.[12]  Dr Scheepers relied upon the veteran’s service records and the interview with the veteran in reaching his diagnosis. 

    [12] Exhibit F, Report of Dr Johan Scheepers dated 24 March 2016.

12. In this report Dr Scheepers outlined the psychiatric history of the veteran:

    Mr Hayes listed multiple incidents that he believed have impacted on him and have resulted in his current mental health issues.

    …

    It is evident from the records provided that Mr Hayes suffered psychological symptoms and received treatment from early on in his military career.

    …

    A general practitioner had made a diagnosis of adjustment disorder with mood symptoms and commenced the use of sertraline in 2005…Diagnosis of PTSD is not noted in these reports, indicating largely mood disturbance related to conflict in the marital relationship.

    …

    I note a psychological report completed in November 2004, referring to previous deployments, including the Western Sahara, East Timor and Bougainville…. “Major stressors relate to the ‘double standards of higher command’ issues, that he does not agree with some of the rules and regulations in place but has ‘played the game’ with the commander”. Assessment conducted in 2008, following Mr Hayes’ deployment to Afghanistan states: “reported a positive deployment with no deployment-related concerns. He reported issues relating to his work environment, difficulties with inter personal communication and the lack of insight to his behaviour. Additionally, he reported that he was still experiencing marriage difficulties and issues relating to his knees and he reported that he expected tis to subside as she was moving out. He reported no difficulties coping with his current issue and there was no requirement for follow-up.

    Psychological assessments provided for Mr Hayes after his second deployment to Afghanistan reads as follows: Mr Hayes presented in an agitated and distressed state. He reported elevated and accumulative stress levels over the last three months, particularly since his removal from KAF. He reported a low mood, ongoing sleep difficulties, fatigue and decreased appetite. He impressed as having reached the end of his coping resources with the command decision to RTA after an extended period of ‘running on fumes’. … Mr Hayes appeared to lack insight in the events that resulted in the NTSC and consequently his perception of equality and defence ethos has been turned upside down. He impressed as being in a state of grief and shock regarding the decision to RTA…

    …

    Mr Hayes’ mental health appears to have been compromised over the last few months, with psychological indicators signifying a heightened level of distress, a [sic] growing sense of helpfulness and a presentation of significant depressive and anxiety symptoms. This appears to stem from difficulties experienced with his role with the deployed environment and maintained by a combination of adverse personality characteristics that precede his enlistment, limited interpersonal and social proficiency skills, limited insight and an inability to accept responsibility and modify behaviour. There is potential for Mr Hayes to continue to emotionally decompensate causing further interpersonal and disciplinary issues in his current workplace.

13. Dr Scheepers made a diagnosis of adjustment disorder with anxiety symptoms first evident in 2011:  

    I had noticed during the reading of available material that two previous psychiatrists had considered Mr Hayes to be diagnosed with posttraumatic stress disorder. Having scanned and read though the psychological reports that date back from Mr Hayes’ first entrance into the Australian Defence Force up until 2011, I am less convinced of the presence of a fully developed posttraumatic stress disorder. In particular, I note the absence of any such symptoms occurring before 2011. This despite numerous assessments by the psychologist of the Australian Defence Force. Mr Hayes’ symptoms appeared to develop primarily after his dispute with the military hierarchy after his tour of duty in Afghanistan in 2011... Nonetheless, I consider his symptoms to be largely those of anxiety and I also consider that there is likely to be a large degree of secondary gain overlay in his presentation. This is based on the observation that Mr Hayes “had his confidence shattered in the ADF”.

14. Dr Scheepers provided a report on 14 November 2016,[13] which he completed after having reviewed the report of Dr Foxcroft dated 12 July 2012. Dr Scheepers concluded in this report that there was some inconsistencies with the presentation of the veteran in his examination with medical practitioners over a span of years: 

    It is clear from the document that when Mr Hayes was reviewed by Dr Foxcroft in 2012 that the presentation correlated with the diagnosis of posttraumatic stress disorder. However when reviewed by ne in 2016, the presentation was markedly different. PTSD symptoms were hardly mentioned, and the clinical presentation was far closer to that of a mood disorder with comorbid anxiety symptoms. The characteristic features of PTSD such as flashbacks, nightmares, dissociative episodes and re-experiencing phenomena triggered by external events were hardly noticed at all. Hyperarousal and agitation were both clearly present, but this aspect of PTSD is not clearly differentiated from other anxiety disorders. Similarly with the mood aspect of PTSD, Mr Hayes had significant disturbance of mood but again this aspect of PTSD is not clearly different from the presentation that one would find in a major depressive disorder. Of most concern to me is the fact that when I saw Mr Hayes in 2016, I had the impression that his symptoms were exaggerated. The level of agitation displayed during the interview was not what I had expected; having assessed many individuals with PTSD in the past, this exaggerated display of symptoms was not characteristic. I am concerned that either abnormal illness behaviour, or even further, a deliberate distortion of clinical presentation is present. 

    [13] Exhibit I, Report of Dr Scheepers dated 14 November 2016.

15. Dr Scheepers provided a supplementary report on 10 January 2018,[14] which he completed after having reviewed the medical material. He stated:    

    Mr Hayes has a complex history starting at least in 1991 and spanning time until his discharge. During that timeframe numerous assessments have been made and many psychiatric diagnoses put forward including personality disorders, substance dependence, anxiety and depression. PTSD does not appear until Dr Foxcroft’s opinion of 2011.

    My opinion of Mr Hayes is based on my personal observations during the interview with him and on a review of the data provided to me before that interview. As already relayed in previous reports, in my interaction with Mr Hayes there were a number of issues that concerned me. The first is that I considered his behaviour to be exaggerated, considered to be a sign of malingering or abnormal illness behaviour. In my previous experience with serious PTSD in combat veterans, such individuals are incapable of continuing their military service once they contract the condition as the symptoms are overwhelming. This clearly did not happen to Mr Hayes until the time that he was sent back from Afghanistan.

    [14] Exhibit K, Supplementary report of Dr Johan Scheepers dated 10 January 2018.

16. Dr Scheepers concluded in this supplementary report that the correct diagnosis was not PTSD:   

    With such variable presentation and with such a long history, it would be clearly clinically naive to accept that Mr Hayes is simply diagnosed with PTSD and to ignore all the other complicated complex clinical considerations. Based on my assessment of 2016, I considered Mr Hayes to have an adjustment disorder with mood and anxiety symptoms in response to the events of Afghanistan, where for procedural reasons Mr Hayes was RTA’d.  I acknowledge that this diagnosis, deemed to be the result of recent events, did not take all the other background influences into consideration.  Other diagnoses such as major depressive disorder, generalised anxiety disorder, personality disturbance, secondary gain and abnormal illness behaviour issues all need to be considered in Mr Hayes’ case.  To simply ascribe his presentation to the presence of PTSD I consider inaccurate and clinically naive. As such, I do not accept that the correct diagnosis for Mr Hayes is PTSD and hold by my original opinion.

17. Dr Scheepers gave evidence at the initial hearing on 21 October 2016 and both resumed hearings on 6 December 2017 and 10 July 2018.

18. At the initial hearing on 21 October 2016 Dr Scheepers stated in relation to the diagnosis of PTSD;

    Now, I still think that what really happened is Mr Hayes became very upset because of the situation that developed more in relation to conflict with the authorities and his loss of role in the army. .. I just think that makes more sense to me than the idea that a guy who’s has gone through many, many traumatic  experiences and didn’t develop anything from this now suddenly develops it when he’s in Afghanistan because of explosions and violence and the like. I may be wrong. I won’t argue the case to death.

19. In cross examination Dr Scheepers was taken to a service medical report dated 5 June 1995 which recorded: ‘On Monday 15 May, Corporal Hayes was found crying in the troop bay…On questioning counselling by the AC trop command RSMSSM, Corporal Hayes continued to break down claiming an inability to cope’.[15]

    [15] Exhibit C, Applicant’s psychology and personnel file at pp. 434 – 436.

20. Dr Scheepers agreed that the veteran ‘…has presented with psychological problems’. However he concluded that ‘to call it PTSD is I think really an enormous leap of the imagination’.”

21. Dr Scheepers provided a further explanation, remarking: 

    I’m not comfortable because, as I said a bit earlier, there are two things to diagnose PTSD, that you need. One is re-experiencing phenomena. In other words dreams, the flashbacks and the person re-experiencing things, right.  And the second – the thing I always see is avoidance. In other words, exposures to triggers that re-activate the incident…Now, Mr Hayes has not demonstrated either of these phenomena. He didn’t really complain too much about flashbacks, to my understanding. And avoidance wasn’t there because he was in the military or 20 years [sic] in combat so how could he avoid it? You see, so my clinical reason for saying I don’t think it’s PTSD, is really based on that observation.

22. In relation to the veteran’s internal promotion to Warrant Officer 2, Dr Scheepers agreed that if the veteran was ‘a difficult soldier he would have had a poorer outcome’. However he went on to state that he thought the veteran’s conflict with superiors and others ‘…had more to do the fact that he seemed to have lot of personal problems’.  

23. In relation to the personal issues of the veteran being symptomatic of an underlying, undiagnosed at the time, psychiatric condition Dr Scheepers answered: ‘That’s possible…’ and further remarked:

    Do we know that he’s got PTSD back then [early 90’s to 2011]? Well, look if it was, Mr Hayes was hiding it. He did not come forward and say to someone I can’t sleep at night, I keep dreaming about dead bodies, and I just – you know, whenever a gunshot goes off, I have a startle reaction you know, that’s what I would expect from someone who has PTSD. He didn’t do that. So the problem is we don’t really know the extent of it, whether there really was PTSD back then.  It’s not clinically confirmed by anybody...None of the people who saw him, psychologists and the like mention it in any of their reports, that occurred between the early 90s and right up to 2011. So this is the difficulty that we have. That, you know, here’s a man who could well have PTSD, absolutely, and could have had it from ‘93, but the clinical evidence we need is lacking.

24. At the resumed hearing on 6 December 2017, Dr Scheepers stated:

    I’ll just put to you respectfully that if someone is really ill, they can’t hide it. If they have a really severe illness, it is visible. If somebody has real PTSD, they cannot continue, they have too many overwhelming symptoms that they can’t cope with, and so it’s noticed, or they just simply present to the doctors saying, “I can’t sleep” and so on. So, if Mr Hayes did have anything really serious back then, I would want to see it in the clinical record. It‘s not just a matter of being reluctant to come forward, it’s really more a matter of, “I can’t actually deal with this. It overwhelms me.” You see, when I see real PTSD in our boys who have been to Afghanistan, that’s what I see. I see they can’t cope. At night when they sleep, they bash their wives because of their nightmares- this is the stuff that brings them to the doctor, you see? ...That’s just, you know- we’re speculating if we don’t have that sort of evidence.

25. In response to a question from the veterans’ advocate regarding the symptoms presented by the veteran from 1993 onwards, Dr Scheepers answered:

    I mean the psychology reports from back then, ’95 and so on, they all say that this was the result of domestic strife, arguments with his wife and the like. So, it’s very difficult to be very, very rigid or definite, all right? It’s a complex picture, like I said, and there’s more to it than just PTSD.

26. Dr Scheepers summarised that:

    This gentleman really presented with PTSD as a problem to Dr Foxcroft in 2012, and it’s difficult to say this condition was definitely there at any time prior to that. You know, so putting dates on it is very speculative. Maybe ’06, because ’06 was a kind of environment that does this, but he couldn’t continue with what he was doing. So, you know, trying to find an idea of the date. I would say it’s probably about the time when Dr Foxcroft saw him and diagnosed him, all right? So, that’s just a clinical, in other words based on clinical evidence, opinion…Mr Hayes was exposed to various things over a long period of time, and it probably had some effect on him, but it wouldn’t have been diagnosable, I would say, because he simply did not present. So, I think the condition was actually diagnosable there at the time when it was reported. In other words, when Dr Foxcroft saw him. So, the summary between 2006 and 2011 would be the condition became severe enough that it could be diagnosed.

27. At the resumed hearing on 10 July 2018, Dr Scheepers was recalled to give evidence on his report dated 10 January 2018. Dr Scheepers stated;

    For me, this is kind of part of the problem with this Hayes diagnosis, you see, because there in ’95 Hayes presents reasonably well. I mean, he’s not entirely well, he kind of had a bit of a collapse and a breakdown and so on- this is after the incident with the handgun, it’s all in ‘95’ or ’96. But he certainly does not, there, exhibit post-traumatic stress disorder. I mean, there’s no mention there of flashbacks, nightmares, hypervigilance you know, re-experiencing phenomena, avoiding behaviours and so on, right? So, in ’95, there’s definitely, at that stage yet, nothing to suggest that he developed any substantial dysfunction or anything like that

    …

    I eventually came up with the diagnosis of an adjustment disorder with anxiety…My idea was that, you know, he had really became distressed because they said to him in 2011, in Afghanistan after the incident there, “You’re going back to Australia and you are not suitable” and then you had this breakdown in his, you know, faith in the system and so on and so on. …. But you know, you could say, that “Yes, well, there was lots of mood symptoms; he could have a major depressive disorder”. He had, at various points, been seen by doctors and  they’ve said “Yes, the man has PTSD” and laid out very carefully- Dr Foxcroft as well as Dr Janis Carter- laid out very carefully, you know why they think he has PTSD. So there’s this very long and complicated history. When I saw him, which was, you know, just my one interview with him, in my interaction with him, he came across differently...but once you probably say there are many differential diagnoses, you should consider that maybe there are underlying trauma issues you should consider, maybe it’s primarily a depressive illness, maybe its childhood trauma. There’s a long history and it’s kind of hard to be rigid about what is actually the main problem.

1. In relation to the veteran’s health issues in 1995 Dr Scheepers remarked;

   The ’95 issue really is a problem because what happened there is a guy broke the law and he was being charged and he was distressed because of that. This is not a PTSD thing. Anybody who is going to be charged and go to court is distressed. That’s normal.

   …

   Cognitive disturbance is not a feature of PTSD according to DSM-5 criteria.

2. In relation to a significant incident and breakdown, Dr Scheepers explained:

   The argument that a particular stressor could tip someone over into decompensation is true. This is something that happens in psychiatric patient, but it’s not a proof of anything. It’s not a proof of diagnosis, it’s simply a clinical fact that something that happens to people with mental illness, they’re vulnerable and if something is too much for them, then they have a crisis and decompensate. But it doesn’t prove, you know, that he had PTSD or anything. I think it just proves that he‘s vulnerable, you know, that he has trauma. But when you talk about diagnosis, all right, if you want to say Mr Hayes has post-traumatic stress disorder, then you take the DSM-5 and you go through line by line and say, “yes, he’s got – yes, he’s got- yes, he’s got- yea, he’s got. And when you do that with him, when I saw him the issue wasn’t that, the issue was depression and anxiety, but look much by way of flashbacks and so on, you know, so I didn’t think that PTSD was the primary feature of his presentation when I saw him. Other people saw him when – Foxcroft saw him I 2012, it appears that the presentation was far more PTSD-like. You see, so this is the problem, it changes, and the clinical presentation changes, ad so what do you do? What are you going to call it, you know, for changes like that all the time?

3. In relation to diagnosis Dr Scheepers remarked;

   I don’t remember saying that he definitely has PTSD. He has been exposed and he probably has former-that effect- but if you want to say, you know, how would you diagnose him, I think you just say yes, the diagnosis is PTSD, end of story is not going to be a true statement as far as DVA goes, because DVA has to decide whether, you know, compensation based on a legal statement of principles applies. And in my opinion it doesn’t. In my opinion this gentleman has lots of things wrong with him and, you know, some of the phenomena of PTSD is just part of it, it’s not even necessarily the biggest part.

   CONSIDERATION

4. I am reasonably satisfied the veteran had operational service for the purposes of subsection 6C(1) of the Act. The records show that the veteran had rendered eligible defence service between 20 August 1985 and 14 September 1997, including a period of peacekeeping service in Western Sahara in 1993, and eligible operational service in Bougainville from 27 November 1998 to 30 March 1999 and in East Timor from 16 April 2000 to 14 October 2000.[16]

   [16] Veteran’s Entitlement Act 1986 (Cth) section 6 and 7;

5. The veteran will be eligible for a pension if there is a diagnosis of a condition that is related to his service by way of a reasonable hypothesis supported by the relevant SoP.[17]

   [17]  Ibid, section 120A.

   Diagnosis

6. There first needs to be the diagnosis of a disease. This was explained by the Full Court in Repatriation Commission v Warren [2008] FCAFC 64 where Lindgren and Bennett JJ remarked (at [22]):

   The operation of ss 120 and 120A of the VE Act and of SoPs made under s 196B of that Act has been discussed in Repatriation Commission v Deledio (1998) 83 FCR 82 (‘Deledio’) and subsequent cases. In Deledio, the Full Court laid down a course comprising four steps that should be followed in an assessment of whether the incapacity of a veteran from, relevantly, a disease is related to service rendered by that person. It was common ground on the hearing that the Deledio four steps are preceded by an inquiry as to whether a veteran is incapacitated from a "disease". Thus, it was common ground that this pre-Deledio step of whether there is a diagnosis of a disease as a matter of clinical assessment, must be resolved before Deledio requires the four steps noted at [26] below to be taken to determine the question of connection with service.

   Logan J (at [105]) emphasised that a SoP made under the Act had no role to play in the making of this diagnosis.

7. In Repatriation Commission v Bawden [2012] FCAFC 176, Keane CJ, Jacobson and Bennett JJ remarked (at [43]):

   A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of “reasonable satisfaction” set by s120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-makers second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt.

8. This is a case where there is a divergence of professional opinion about the mental health condition of the veteran. After reviewing the evidence before me, I rely upon the diagnosis of Dr Scheepers in his report of 24 March 2016 which diagnosed the veteran as having an adjustment disorder with anxiety and mood symptoms. I am reasonably satisfied that the veteran has an adjustment disorder with anxiety and mood symptoms. Dr Scheepers indicated that a general practitioner had made a diagnosis of an adjustment disorder with mood symptoms in 2013, but I consider that the condition was already a long-standing condition. Dr Scheepers had indicated that an adjustment disorder may persist for some years.

9. In oral evidence Dr Scheepers gave cogent reasons why he considered that the veteran did not have PTSD after his service in Western Sahara in 1993:

   I don't know how one can say that this man had PTSD in 1993, there's no evidence.  He didn't present to doctors, he didn't ask for treatment, he didn't struggle performing his duties, he seemed to be enjoying his time in the army.  Why would he be diagnosed?  I mean, one of the requirements for the diagnoses is that there should be a significant loss of ability to function socially and occupationally.  Where is that?  There's nothing like that in the records.[18]

10. Dr Scheepers remarked that:

    …psychiatry is not a precise science.  There's a lot of just - impressions involved and experience, you know.  So, I just looked at Mr Hayes and I thought, "You know, you are exaggerating and sure, you are not well".  I am not saying he is not unwell.  He's got symptoms.  But, what is the whole story and to me, the whole story is, you know, there is substance abuse, there is a depressive illness, there are anxiety symptoms, there is personality vulnerability, there is abnormal illness behaviour, you know, with exaggeration of symptoms and on top of it, there is the experience of trauma.  So, there's the overall kind of clinical picture, if you wish - a formulation, you know, is how you - what you would call it.

11. Dr Scheepers further explained why he considered that the veteran could not be diagnosed with PTSD:

    ….from my own perspective I didn’t see what I considered the core features of posttraumatic stress disorder and they are first of all flashbacks, nightmares, 20 intrusive images and dissociative events. That is the main thing. The second thing is I would expect someone to have an avoidance problem. In other words, they avoid things that trigger them. Now, if, you know, if you’ve got a man who has become unwell because of the army and military events then I don’t see how he can continue in the military. The PTSD can’t be too severe or important if you can continue, you know.

12. Dr Scheepers further explained:

    My experience of veterans is this: if they have significant PTSD, they cannot continue in the army.  They have to leave within 18 months of the onset of the condition, because it overwhelms them.  So, the only time Mr Hayes seems to have been overwhelmed by this stuff is in 2011.  So, maybe by then, you know, things had gotten so severe that he could no longer cope, but if you look at the real issue in 2011, it was because he used inappropriate language and they didn't want him in the service anymore.

13. Dr Scheepers referred to the ‘...Psychological screening record from 2007, this is after he came back from Afghanistan.  So, you read that and there's nothing there.  He says, "It was fine, I loved it, I enjoyed myself.’ [19]

    [19] Exhibit B, Applicant’s service medical records at p.77.

14. Dr Scheepers in giving evidence acknowledged that the presentation of the veteran is complicated. He explained why he considered that the veteran exaggerated his symptoms when he saw him:

    His manner was ridiculous, you know.  It was so over the top, the way he bounced his leg, the way he was shaking and shivering, and he wouldn't come in without his wife.  He said, "If she doesn't come in, I don't want to do this".  You know, it was really, really, very unusual.  I've seen many patients with PTSD and I've never seen anybody quite that, sort of, over the top, you know, being edgy and sort of, you know, incapable and stuttering and all this sort of stuff and the problem is with exaggerated symptoms is that that is a sign of malingering.

15. The advocate of the veteran put to Dr Scheepers that ‘those symptoms you described that he may be exaggerating, may well have been a consequence of his anxiety’. Dr Scheepers answered:

    - Well, fair enough.  But, do you know, the thing is, I have done probably, I don't know, 150 such interviews with people with PTSD from the army.  So, I have had a lot of exposure to men with this condition and I've never seen anybody carry on like that.  It was way over the top, you know, like, what on earth?  Like, how bad are you that you present in this manner?  So, I was a bit, let's say, alerted, you know, to the possibility that this was unusually excessive.

16. I consider that Dr Scheepers was fair in remarking that he “just thought” that the veteran had “possibly exaggerated” his symptoms.  I consider that the “exaggeration” of symptoms may not be deliberate but could be a manifestation of some mental disorder of the veteran. Dr Scheepers in giving evidence remarked ‘…the clinical picture is really a lot more than just PTSD.  There are many other things at play here, including personality vulnerability.’ Dr Scheepers made that remark in the context of discussing a psychological report of 5 June 1995, which concerned the reaction of the veteran to being charged for disciplinary offences.[20]

    [20] Exhibit C, Applicant’s psychology and personnel file at pp. 434-436.

17. I consider that Dr Scheepers was giving an honest and balanced opinion when he concluded ‘but honestly, to call it PTSD I think, would be stretching it’. There is no material before the Tribunal which points to the veteran having PTSD after his service in Western Sahara in 1993. After the veteran served in Western Sahara he was progressively promoted and attained the rank of Warrant Officer. A service psychological report from 2015 indicated that the veteran was a ‘JNCO who strives to achieve high results in all areas of his employment’.[21] I am mindful that Dr Scheepers had stated in his oral evidence that if a veteran has significant PTSD they usually cannot continue to serve in the Army. The first diagnosis of the PTSD condition was in 2011 after the service of the veteran in Afghanistan.

    [21] Ibid.

18. In his report dated 24 May 2017, Dr Gelb states that upon his return from service in Western Sahara the veteran sought medical assistance for psychiatric symptoms. However, in cross-examination it became apparent that Dr Gelb was referring to two DUI incidents in between 1993 and 1995 and a medical record which indicated that the veteran was counselled for stress in 1995, which was recorded to be mainly triggered and maintained by difficulties in his marriage.[22] Dr Gelb in giving evidence confirmed that he had not personally seen the veteran and quite properly stated that it would be an inferior assessment to seeing the person and spending time with them. In the circumstances I do not consider that Dr Gelb had relied upon a medical record which indicated that treatment was sought by the veteran upon his return from Western Sahara in 1993. Having reviewed the psychiatric records of the veteran I have not seen any evidence that the applicant was reluctant to seek medical assistance when it was needed by him. Dr Gelb had not personally assessed the veteran; accordingly, I do not place great weight upon his opinion that a PTSD condition was attributable to his service in Western Sahara in 1993, however, I certainly accept his conclusion that the veteran was stressed in 1995. 

    [22] Exhibit C, Applicant’s psychology and personnel file at pp. 8-10.

19. While I am not reasonably satisfied that the veteran had PTSD after his service in Western Sahara in 1993, I certainly give some weight to the opinion of Dr Foxcroft that the mental health condition of the veteran was contributed to by his service in Western Sahara. Dr Foxcroft reported that the veteran was exposed to significant difficulties in the Western Sahara when he was deployed there in 1993.[23] Dr Foxcroft was not called by the applicant. Initially, the respondent requested the attendance of Dr Foxcroft before the Tribunal. The latest hearing certificate of the respondent dated 20 December 2017 did not require Dr Foxcroft to attend the Tribunal for cross-examination.  His opinion concerning the service of the veteran in Western Sahara could therefore not be examined.                Dr Scheepers indicated that he certainly had respect for the opinion of Dr Foxcroft who is a specialist of some seniority.  In the circumstances, I consider that it is fair to give some weight to the opinion of Dr Foxcroft who considered that the deployment to Western Sahara in 1993had made a contribution to the condition of the veteran.

    [23] Exhibit A, Section 37 T-documents, T7 at p.37.

20. During the hearing I indicated that I had just one question to ask the veteran. I referred to the report of Dr Scheepers dated 24 March 2016 in which it is stated: ‘In 1993 while in the Western Sahara Mr Hayes witnessed a serious injury of Russian soldiers’, and asked whether that was what the veteran had told Dr Scheepers. The veteran answered ’No. No.  A very much briefer account than I provided for you, sir’. The veteran agreed that he did not actually see the Russian soldiers being injured: ‘No. There were - there were Russian soldiers in the mission, absolutely.  These three were Russian technicians, so they were UN civilians that did maintenance on the UN facilities and equipment’ and that he was on the radio ‘talking to them, so I didn’t physically see them’. I am reasonably satisfied that the veteran did not physically witness any serious injury of Russian soldiers in Western Sahara.

    Onset

21. While I have concluded that the veteran had an adjustment disorder with anxiety and mood symptoms, it is important to determine when there was the onset of the condition. Dr Foxcroft in his report dated 18 July 2012 remarked that the experiences of the veteran in Western Sahara may represent a “vulnerability factor” and that his mental health condition was ‘…possibly contributed to by earlier deployments to Western Sahara in 1993’.[24] Dr Scheepers in giving evidence had agreed in cross-examination that the development of the psychological condition of the veteran ‘has basically spread itself over from about ‘93 through to 2010’. It was in 1993 that the veteran served in Western Sahara. The veteran himself in discussing his service in Western Sahara at the hearing had remarked it was: ‘…the scariest [deployment] from that perspective of not having done it before and not knowing if the threat was worse than briefed’. Having regard to all the circumstances I consider that it is fair to conclude that the onset of the adjustment disorder condition of the veteran was during his service in Western Sahara in 1993.

    [24] Ibid at p. 73

    Deledio

22. The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) formulated this four-step process when assessing the hypothesis:[25]

    (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 a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

    (3) If a 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 ss 196B(2)(d) and (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 s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.

    [25] Repatriation Commission v Deledio (1998) 83 FCR 82 at [97]–[98].

23. There have been a number of decisions of the Federal Court of Australia concerning the application of the Deledio principle. A relevant decision is Summers v Repatriation Commission (2007) 230 FCR 179 (Kenny, Murphy and Beach JJ)., where a Full Court of the Federal Court of Australia approved Heerey J’s formulation in Deledio at first instance, where his Honour said:[26]

    ...the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and 120(3) as expounded by the High Court in Bushell and Byrnes....

    ...it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis. In the words of the minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to “provide the template within which the individual claims will be determined”. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact.

    ...The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

    (i) contrary to proved or known scientific facts;

    (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

    (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.

    [26] Deledio v Repatriation Commission (1997) 47 ALD 261 at 273-275.

1. In Forrester v Repatriation Commission [2013] FCA 898 at [26] Mortimer J observed that in Collins v Administrative Appeals Tribunal (Collins),[27] Allsop J (as he then was) explained that the second sentence in the second paragraph is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of sections 120 and 120A of the Act.

   Step 1 of Deledio

   [27] (2007) 163 FCR 35 at [31].

2. The first Deledio step requires the examination of the material to ascertain whether it points to a hypothesis connecting the disease of the veteran with the circumstances of the particular service rendered by him. Whether the material points to or supports a hypothesis is a matter which can be determined by inference or assumption. It has been said that ‘a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact’.[28]

   [28] Ellis v Repatriation Commission[2014] FCA 847 at [15]; see also Forrester v Repatriation Commission[2013] FCA 898 at [30].

3. I consider that the material before me points to a hypothesis connecting the veteran’s adjustment disorder condition to his relevant service in Western Sahara in 1993.

   Step 2 of Deledio

4. The relevant SoP, which is in force, is SoP No. 23 of 2016 relating to Adjustment Disorder. Having regard to the decision which I make in this case it is not necessary for me to determine whether the veteran has an accrued right to have his application considered under the previous SoP No. 38 of 2008, which was in force at the time of the respondent’s decision under the principles explained in Repatriation Commission v Gorton (2001) 110 FCR 321 at [42]-[43] (Heerey J, with whom Emmett J agreed) and [65]-[69] (Allsop J).

   Step 3 of Deledio

5. Allsop J (as he then was) in Collins summarises the relevant principles in relation to this step at [48]: [29]

   ·The Tribunal must consider the whole of the material before it;

   ·The Tribunal must form an opinion as to whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of the service;

   ·The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis;

   ·At the stage of formation of the opinion, no question of fact finding arises;

   ·The formation of the opinion involves the reaching of a factual conclusion and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material.

   [29] Collins v Administrative Appeals Tribunal (2007) 163 FCR 35.

6. Recently, in Stevens v Repatriation Commission [2018] FCA 1866 (at [24]), Logan J referred to Collins, where the Full Court observed:

   The dividing line between impermissible fact-finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern.

7. The relevant factor in SoP No.23 of 2016 is factor 9(3) which refers to where a person’s relevant service involves:

   (3) living or working in a hostile or life-threatening environment for a cumulative period of at least four weeks within the three months before the clinical onset of adjustment disorder.

8. The phrase “a hostile or life-threatening environment” is defined in Schedule 1 of         SoP No.23 of 2016:

   …."a hostile or life-threatening environment" 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;…

9. The veteran was deployed to Western Sahara from 17 May 1993 to 1 December 1993 and therefore meets the requirement of living and working in that location for a cumulative period in excess of four weeks as prescribed by SoP No. 23 of 2016.

10. The veteran gave evidence that while on various deployments including Western Sahara there were a number of incidents involving land mines. The veteran described that during his deployment to Western Sahara, a Russian Land Rover was blown up by land mines and he provided communication support for the evacuation of those injured. The army doctor also died in a helicopter crash when the when the Swiss Med Porter crashed. The veteran stated that he ‘…got health and medical briefs and a mine awareness brief’ prior to the deployment to Western Sahara. He also mentioned that there were not only mines but also unexploded ordinance under the shifting sands. While the applicant served in Western Sahara he was working in a hostile or threatening environment, he was under a pervasive threat from mines. The material raises a reasonable hypothesis connecting the disease of the veteran with the circumstances of his service in Western Sahara in 1993.

11. I should record that the statutory declaration of the veteran that is in evidence,[30] raises questions relating to whether a category 2 stressor, as defined in Schedule 1 of           SoP No.23 of 2016, has been experienced by the veteran. It is not necessary for me to consider this issue as I have already concluded that the material raises a reasonable hypothesis connecting the disease of the veteran with the circumstances of his service in Western Sahara in 1993.

    Step 4 of Deledio

    [30] Exhibit D, Statutory declaration of Applicant declared on 25 November 2013.

12. I am now required to consider, under section 120(1) of the Act, whether, for the hypothesis, I am satisfied ‘beyond reasonable doubt’ that the veteran's disease was not war-caused. In Forrester v Repatriation Commission [2013] FCA 898 at [80] Mortimer J in discussing the fourth step in Deledio, has referred to ‘the very high level of satisfaction required to reject a veteran’s claim at [this] stage’. There is no evidence which would enable me to be satisfied beyond a reasonable doubt that the disease of the veteran was not war-caused. There was certainly no submission made that I should make a finding that the disease was not war-caused.

13. I wish to acknowledge the assistance of the respondent in providing the considerable documentation that is in evidence before the Tribunal. I further acknowledge the assistance of the veterans advocate in this matter.

    DECISION

14. I set aside the decision under review and substitute a decision that the disease of the veteran of an adjustment disorder with anxiety and mood symptoms was war-caused and that he is entitled to a pension. The application is remitted to the respondent for assessment of the rate of pension payable. I have determined that the date of effect of this decision is 28 February 2012 which is the date when he lodged his claim.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................[SGD]...............................

Associate

Dated: 30 April 2020

Dates of hearing(s):	21 October 2016, 6 December 2017 and 10 July 2018.
Date final submissions received:	1 October 2018
Advocate for the Veteran:	Mr R Thompson
Representative for the Respondent:	Mr B Williams