Hoogkamer and Repatriation Commission
[2005] AATA 131
•14 February 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 131
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/679
VETERANS' APPEALS DIVISION ) Re HARRY HOOGKAMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr E K Christie, Member Date14 February 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution thereto decides that Mr Hoogkamer’s Generalized Anxiety Disorder was “war caused”. The Tribunal makes a direction that the respondent now consider the implications of this decision with respect to determining the degree of incapacity of Mr Hoogkamer from his accepted service-related disabilities and, in turn, the appropriate rate of pension entitlements.
...........[Sgd].........
E K Christie
MEMBER
CATCHWORDS
VETERANS AFFAIRS – reasonable hypothesis – Generalised Anxiety Disorder and operational service – severe psychosocial stressor
Veterans’ Entitlements Act 1986 s9, 119, 120, 120A
Repatriation Commission v Deledio (1998) 49 ALD 193
East v Repatriation Commission (1987) 74 ALR 518; (1987) 12 ALD 389
Repatriation Commission v Stares (1996) 41 ALD 212
Stoddart v Repatriation [2003] FCA 334; (2003) 74 ALD 366
Repatriation Commission vGorton (2001) 65 ALD 609
Deledio v Repatriation Commission (1997) 47 ALD 261
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
Repatriation Commission v Hill [2002] FCFCA 192
Dixon v Repatriation Commission (1999) 29 AAR 235; (1999) 59 ALD 315
Repatriation Commission v Whetton (1991) 24 ALD 690
Brew v Repatriation Commission (1999) 56 ALD 403REASONS FOR DECISION
14 February 2005 Dr E K Christie, Member 1. On 19 August 2004 the Federal Court issued the following Consent Order:
“1. ….
2.The decision of the Administrative Appeals Tribunal made on 22 December 2003 (the ‘decision’) be set aside, only in so far as it concerned the issue whether or not the applicant’s condition of Generalised Anxiety Disorder was caused by the applicant’s war service, within the meaning of ss 9, 120(3) and 120A(3) of the Veterans’ entitlements Act 1986.
3.In respect of all other issues, save for the issue identified in order 2 above, the decision is affirmed.
4.The matter be remitted to the Administrative Appeals Tribunal to be heard and determined according to law, such rehearing to be limited to the issue whether or not the applicant’s condition of Generalised Anxiety Disorder was caused by the applicant’s war service, within the meaning of ss 9, 120(3) and 120A(3) of the Veterans’ Entitlements Act 1986.
5. …”
2. At the hearing, Harry Hoogkamer was represented by Mr A Harding of Counsel. Miss E Ford of Counsel represented the Repatriation Commission.
3. At the hearing the Tribunal had in evidence before it the “Appeal Papers (Exhibit R1)” comprising the:
(A) Documents before the Administrative Appeals Tribunal
(B) Transcript of Proceedings before the AAT
(C) Final Decision and Reasons for Decision
(D) Appeals Documents, and
(E) Certificate of Examination, as well as the various documents tendered by the parties.
Facts
4. Mr Hoogkamer is now aged 56 and his period of operational service with the Australian Army in Vietnam was from 10 November 1970 to 7 October 1971.
Issues to be Decided
5. As defined in the Court Order: whether or not Mr Hoogkamer’s condition of Generalised Anxiety Disorder was caused by his war service within the meaning of ss 9, 120(3) and 120A(e) of the Veterans’ Entitlements Act 1986.
6. Mr Harry Hoogkamer gave oral evidence at the hearing. Mr Derrill De Heer gave evidence on behalf of the Applicant. Mr Harding did not require any of the respondent’s witnesses for examination.
Examination of The Factual Evidence
§ Evidence of Harry Hoogkamer
7. Mr Hoogkamer acknowledged that he had completed his apprenticeship as a printer, prior to actual service and his designated task when he went to Vietnam with the 1st Psychological Operations Unit was as a printer. He served in 1st Psychological Operations Unit where he was involved in printing photographs and statements of captured Viet Cong, or defectors, onto leaflets. This propaganda material was then distributed over the countryside from an Iroquois helicopter. Mr Hoogkamer states that he was on leaflet drops in the helicopter to distribute these pamphlets. Mr Hoogkamer stated that the first such flight he had undertaken was about five months after arriving in Vietnam on 10 November 1970. He then acknowledged that his first leaflet drop would have occurred around March 1971.
8. Whilst his “best recollection” was that he had undertaken five such flights, he later amended this figure during cross-examination to only three helicopter leaflet drops during the December 1970/January 1971 period. By accepting the military records that helicopter leaflet drops in December 1970/January 1971 had taken place, on 30, 31 December 1970 and on 8 January 1971.
9. Mr Hoogkamer stated that he had not undertaken any helicopter leaflet drops during the period Captain Hudson was Commanding Officer of his unit. Captain Hudson had arrived in Vietnam in February 1971.
10. Mr Hoogkamer said that he had never asked to go on a helicopter leaflet drop but had been told to go. However, he could not remember the name of the person who ordered him to go on the leaflet drop and simply responded by saying “a man”.
11. Mr Hoogkamer said that he “could not recall” whether he had told his treating psychiatrist [Dr Kimbell] whom he had first consulted in 2001, that he had flown on helicopter leaflet drops and of being shot at whilst in the helicopter.
12. He said that, over the years, flashbacks and dreams relating to his time in Vietnam remained and he dreamed about being shot in a helicopter and crashing.
“I’ve always had my nightmares and my memories but I never knew there was help out there because I was never a member of any organisation, I never kept in touch with any Army personnel or friends. I think the last person I spoke to was about 15 years ago and when I moved interstate to Caloundra I found out there was a Viet Veteran there and he said to me, ‘You’ve got problems. You want and go and get some help’, and that’s how it all began and then I finally found out there was help out there for me and I’m still receiving it.”
13. Mr Hoogkamer agreed with the proposition put to him in cross-examination that it had become difficult for him to distinguish between what was a nightmare and what was something that he had experienced when he was in Vietnam because they were all so real in his mind.
14. Under further cross-examination Mr Hoogkamer agreed that during the 1990s he experienced financial difficulties, a significant decline in his business as a photographer, loss of employment and considerable worry associated with his personal and family health problems. His home had to be sold to enable him to survive by downgrading to a smaller home.
15. Mr Hoogkamer gave the following responses to questions asked by the Tribunal
(a)That he had undertaken helicopter leaflet drops on “3, maybe 5 occasions”;
(b)That on each occasion he had been ordered to go by a superior ranked soldier. A different person, who was in charge of the area, gave the order to him each time;
(c)That he was in a small Unit [1st Australian Psychological Operations Unit];
(d)That he could not recall the name of any person in his Unit who had ordered him to go on the helicopter leaflet drop on the occasions that he went;
(e)That the only member of his Unit whose name he could remember, today, was Colin Lane; and
(f)That the crew on the helicopter when he went on a leaflet drop comprised the two pilots, a gunner on each side and himself.
Evidence of Derrill De Heer
16. Mr De Heer was an original member of the 1st Australian Psychological Operations Unit. He served in Vietnam as a Sergeant from April to November 1970. He left Vietnam at the time Mr Hoogkamer arrived.
17. He said that he had undertaken missions distributing leaflets from helicopters. He said helicopter leaflet drops were “normally made” at 300 metres in order to “get them targeted onto the trails that they [Viet Cong] actually used. And you needed to do that because of wind taking them off course, but also to get the concentration of the number of leaflets on to the target [the trails used by the Viet Cong].”
18. Mr De Heer agreed with the proposition that a helicopter flying at 300 metres was “certainly within small area range”.
19. Mr De Heer described the activities associated with a helicopter leaflet drop:
“The boxes of leaflets are loaded. Now, we had two forms of doing it. Initially the Americans lent us a chute that clipped into the aircraft and…. we could load the leaflets into the chute that went underneath the helicopter. As they were withdrawing a little while later, they took their chute back so we had to lean out and throw them down. If you didn’t throw them down in a helicopter, the leaflets would all come back into the aircraft much to the annoyance of the pilots but – so we had to lean out and take handfuls out of boxes and throw them down. We – so we had the number of boxes and depending generally in the early days, we produced between 50 and 60 thousand leaflets. But sometimes we would mix them with say an American leaflet which was a safe conduct pass and that would be in about the same amount so you’d get a hundred to a 120,000 leaflets. And you would be leaning out – one person would be leaning out and throwing them down. The other one would be [loading] the boxes. The idea was to get them down away from the aircraft. When the mission was finished, we would come back to a place outside of the Nui Dat task force, huddle up close to the ground because some leaflets would stick underneath the helicopter. And this was to create a draft that we would get rid of those leaflets so we didn’t bring them back into Nui Dat.”
20. Mr De Heer produced a spreadsheet for the period April 1970 to December 1971 identifying the membership of 1st Australian Psychological Operations Unit, for each month (Exhibit A2). For the three month period November 1970 to January 1971, depending on the month, there were 22-25 soldiers in the unit. However, for this entire three month period, the same twenty soldiers were present as members of the unit. However, over the entire period of operational service there were many changes in the Unit’s personnel.
Contentions and Submissions of the Parties
21. Mr Harding submitted that Mr Hoogkamer experienced a “severe psychosocial stressor” during his operational service which had led to the development of his condition of Generalised Anxiety Disorder.
22. It was Mr Harding’s contention that a key issue for the Tribunal to decide was whether the events described by Mr Hoogkamer constituted a “severe psychosocial stressor” for the purposes of the “Generalised Anxiety Disorder SoP”.
23. In his analysis of legal authorities, Mr Harding submitted that the meaning of “severe psychosocial stressor” concerns an occurrence, objectively, the nature of which evokes feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects were relevant and necessary.
24. Mr Harding relied on the following factual and opinion evidence as relevant. Considerations as to whether Mr Hoogkamer experienced a “severe psychosocial stressor”:
(a)The evidence of Professor McCarthy (Exhibit R1, Folio 129) that:
(i)Helicopters were extremely vulnerable to ground force;
(ii)The Viet Cong were extremely aggressive and “loved to have the target practice” and when under attack there was no warning before the helicopter began banking; and
(iii)On one occasion the sudden banking almost resulted in Dr John Mordike, a member of the Royal Australian Regiment, being thrown from the helicopter because he was not restrained.
(b)The Writeway Research Report (Exhibit R2) where particular reference was made to the following aspects:
· Helicopter leaflet drops were made over enemy territory;
· Captain Hudson (a former OC of the Applicant’s Unit) who stated that the helicopters were within small arms range and flown slowly (Attachment 4, p2)
· The statement by Air Cmd Coy with respect to “passenger safety” in helicopters: “Manoeuvring a helicopter, such as in steeply banked turns would not pose any danger to passengers in the cabin, even if they were unrestrained and sitting on the ends of the bench seat i.e. they would not slide or be thrown out. I submit, however, that this might not be realised by someone not versed in aerodynamics and of limited helicopter flight experience. Most combat troops received significant air experience before going to Vietnam, and it was my experience that many of them were far from comfortable during even mild manoeuvres,” (Tribunal emphasis) (Exhibit R2, p12); and
· The evidence of Mr De Heer in relation to the role and effects experienced by a member of the Psychological Operations Unit involved in helicopter leaflet drops.
25. Mr Harding further relied on the following expert medical opinion as a relevant consideration with respect to whether Mr Hoogkamer experienced a “severe psychosocial stressor”:
“Assuming that what he told me about flying in helicopters and so on to be correct or near correct then as far as I am concerned as a psychiatrist that would qualify as any sort of psychosocial stressor that one could imagine and would meet any of the requirements whatever the exact terminology is used as per the legislation.” (Dr Mulholland) Exhibit R2, Folio 99)
26. Mr Harding contended that the clinical onset of symptoms occurred within the two years of being exposed to a psychosocial stressor in Vietnam in 1971: “the clinical picture seems to be that he developed [Generalised Anxiety Disorder] during his period in Vietnam” (Dr Mulholland, Exhibit R2, Folio 113) and Mr Hoogkamer’s anxiety disorder occurred following exposure to the “helicopter stressor” in Vietnam [Dr Kimbell, Exhibit R2, Folio 98]. Furthermore, Mr Hoogkamer’s own evidence was clear that he had the problems since Vietnam but had thought they were a part of life and so had not sought any help.
27. Mr Harding contended that there was no medical opinion evidence to suggest that the clinical onset was in more recent times.
28. Mr Harding submitted whilst there were inconsistencies in Mr Hoogkamer’s recollection of the number and actual date of the helicopter leaflet drop missions – all his other evidence had been corroborated. Given the events occurred over 30 years ago, he contended that it would be unrealistic for him to remember the dates and times. Moreover, given the constant flux in membership of his Unit during his service in Vietnam, it was understandable that Mr Hoogkamer could not now remember who ordered him to go on the flights.
29. Mr Harding concluded with the submission that there was no medical opinion evidence to indicate that Mr Hoogkamer was confusing dreams with reality.
30. Miss Ford submitted that the whole of the evidence did not raise or point to a hypothesis connecting Mr Hoogkamer’s Generalised Anxiety Disorder with the circumstances of his operational service.
31. Miss Ford referred to the following inconsistencies in Mr Hoogkamer’s evidence:
(a)Contemporaneous evidence (Exhibit R2, Attachments 3,4) indicated helicopters were used for leaflet drops on 3 occasions only during Mr Hoogkamer’s service in Vietnam: In addition, helicopters were not used for leaflet drops in the period he first claimed to have travelled on them [about 5 months after arriving in Vietnam]; and
(b)Mr Hoogkamer originally thought he had been involved in helicopter leaflet drops on about 10 occasions – but, later he had told Dr Mulholland (26 March 2002] that it was 5 occasions. Contemporaneous records (Exhibit R2] indicate a maximum of 3 possible occasions for him to have possibly been involved;
(c)Mr Hoogkamer first gave a history to Dr Kimbell about the helicopter events in 2002 – not when he first consulted him [March 2001]. Miss Ford contended that prior to 2002 Mr Hoogkamer had been worrying about being in Vietnam as well as having to go on a helicopter. Moreover, that it was only in 2002 where reference was made to him actually being in a helicopter and being subject to the stressors; and
(d)Mr Hoogkamer’s description of helicopter leaflet drops missions differed from the evidence of Mr De Heer in that Mr De Heer said that two people were involved in the distribution of leaflets - one packing the boxes, taking them out and handing them to the person who is hanging on to the helicopter whilst leaning out and throwing out the leaflets. Mr Hoogkamer’s evidence was that he was the only person involved in dispersing the leaflets.
(e)It was Miss Ford’s contention that Mr Hoogkamer had difficulty in distinguishing between his nightmares and his memories of Vietnam – a fact she submitted had been conceded by him in his oral evidence. Furthermore, Miss Ford acknowledged that the respondent did not regard Mr Hoogkamer to be “dishonest” or “a liar” – rather that his memory of events occurring over 30 years ago was “unreliable” and that this situation was exacerbated by the fact that he was confusing his experiences of nightmares with his experiences in Vietnam.
32. Miss Ford referred to another “discrepancy” in Mr Hoogkamer’s evidence – the fact that he could not remember the names of any person from his Unit who had ordered him to go on the helicopter leaflet drops.
33. Miss Ford submitted that there was no evidence of Mr Hoogkamer requiring clinical management or treatment on return from Vietnam. Mr Hoogkamer had successfully set up his own business in 1982 which had continued successfully until after his brain tumour in the mid 1990s. Furthermore, the notes of the Golden Beach Medical Centre first indicated complaints of emotional problems in mid 2000 – a time, Miss Ford submitted, was related to other stress in his person life i.e. his son’s ill health.
34. It was Miss Ford’s contention that Mr Hoogkamer’s emotional problems coincided with the loss of his business/employment, financial problems, brain tumour and its sequelae as well as problems with his son’s health. Furthermore, she submitted that apart from his nightmares and flashbacks, Mr Hoogkamer had no other symptoms of anxiety until the late 1990s.
35. Miss Ford submitted that a relevant consideration with respect to the clinical onset of Mr Hoogkamer’s medical condition was the fact that he had been promoted twice [to Corporal, Exhibit R2, Attachment 4] at a time after the period he had claimed he had been involved with helicopter leaflet drops.
36. It was Miss Ford’s submission that the central issue with respect to the clinical onset of Generalised Anxiety Disorder was whether it occurred within two years of being exposed to a psychological stressor. In Mr Hoogkamer’s case, she contended, there was no evidence of this condition developing by 1973.
37. Based on the above submissions and contentions, Miss Ford stated that he whole of the evidence did not raise a reasonable hypothesis linking Mr Hoogkamer’s operational service with his medical condition.
38. Furthermore, Miss Ford submitted if the Tribunal were to find that the hypothesis raised by the applicant was reasonable the following facts could not be established at the requisite level of proof:
(a)That the helicopter had been fired upon as would amount to a psycho-social stressor;
(b)That the clinical onset of Generalised Anxiety Disorder had occurred within 2 years of exposure to a psycho-social stressor; and
(c)Inconsistencies in Mr Hoogkamer’s evidence about the helicopter leaflet drops with respect to the number of missions, when the missions were undertaken and how the missions were done.
Statutory Requirements And Legal Principles
39. Section 120(1) of the Veteran’s Entitlement Act provides that, where a claim under Part II for a pension in respect of an incapacity from injury or disease of a veteran, or the death of a veteran relates to the operational service rendered by the veteran, “the Commission shall determine … that the injury, disease or death of the veteran was war caused …unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.”
40. Section 120(3) of the Veteran’s Entitlement Act provides that in applying subsection (1), “the Commission shall be satisfied, beyond reasonable doubt that there is no sufficient ground for determining … that the injury, disease or death was war-caused …if the Commission, after consideration of the whole of the material before it des not raise a reasonable hypotheses connecting the … injury, disease or death with the circumstances of the particular service rendered by the person”.
41. Following the introduction of Statements of Principles, the Federal Court eventually reached a position where it summarised four steps which it said amount to the course that a decision-maker must adopt in concluding whether injury, death or disease is related to service. In Repatriation Commission v Deledio (1998) 49 ALD 193 the Full Federal Court, at 206, recorded the four steps as follows:
“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 s196B(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 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 (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 s120(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 (emphasis added).” (at 49 ALD 206).
42. The following legal principles are relevant for interpreting each of the four “Deledio steps”.
Stage 1: Whether The Material before the Tribunal points to a Hypothesis that Connects the Disease of the Veteran with the Circumstances of Service
43. The meaning of “hypothesis” has been considered in the following cases:
(a) The plain meaning of “hypothesis” was considered in East v Repatriation Commission (1987) 74 ALR 518, namely:
“A proposition made as a basis for reasoning without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption.”
(b) A hypothesis is no more than a supposition or conjectural explanation of an ultimate fact: see Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
Stage 2: Whether a SoP is in Force
44. The purpose of SoPs was discussed in Stoddart v Repatriation Commission by giving effect to the observations by Allsop J in Repatriation Commission vGorton (2001) FCR 321 at 335 [58-59], as being to represent:
"...sound medical-scientific evidence and to identify, on that sound contemporary science, minimum factors relevant to the issue of the causal connection between injury, disease or death and service"
and as deploying:
"...the most up-to-date medicine and science to identify or refine the proper scientific and medical frame of reference or universe of discourse for the reliable answering of the question whether the death, injury or disease was caused by the service" (Emphasis added).
The Full Court concluded that SoPs must be construed or understood in that context.
Stage 3: Whether the Hypothesis is a Reasonable One
45. With respect to the third step referred to in Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey FCJ stated:
“The particular claim then has to fit the template laid down in the SoP …Do the facts raised by the claimant give rise to a reasonable hypothesis. Proof of facts is not in issue at this point.
46. In Horne v Repatriation Commission (1996) 24 AAR 127, Hill J decided that assumptions were permissible and that facts may be inferred. Support for this proposition was to be found by the decisions of Critch v Repatriation Commission (1996) 66 FCR 594. In Horne’s case, Hill J concluded:
“The Tribunal’s failure to appreciate that it could make assumptions, just as the High Court had done in Byrnes, and the Full Court had done in Stares was an error of law.”
47. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-570, Mason CJ, Gaudron and McHugh JJ said:
“An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis. Using these criteria ensures that the assumed fact is ‘raised’ by the material and can be relied upon as a relevant matter and therefore a “raised fact” in forming an opinion as to the reasonableness of the hypothesis”
and, at 570:
“In some cases, the hypothesis may assume the occurrence or existence of a ‘fact’. That itself does not make the hypothesis unreasonable.”
48. The High Court in Bushellv Repatriation Commission (1992) 175 CLR 408 said (at 415):
“As we have pointed out, it is not the function of s 120(3) to require the Commission … to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its function’s under s. 120(3) the Commission cannot have regard to the medical or scientific materials which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
49. As to the correct approach to be adopted in terms of whether the hypothesis raised is a reasonable one, the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564, at 571 said:
"The position may be summarised as follows:
(1) First, sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commissions give rise to a reasonable hypothesis connecting the veteran's service with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.”
50. In Repatriation Commission v Hill [2002] FCFCA 192 the Full Federal Court [at paras. 61, 67] considered the approach taken by the Tribunal in determining whether a reasonable hypothesis existed; it was not in dispute that the applicant actually suffered PTSD. The Full Federal Court concluded that the Tribunal’s inquiry - whether the material before it fitted the template in the “PTSD SoP” [i.e. whether the material before it pointed to the elements of "post-traumatic stress disorder" as defined in cl 4 of the “PTSD SoP”], was incorrect, and stated that:
"The correct issue was, assuming that [the applicant suffered] from PTSD as defined in cl 4 of the PTSD SoP, did the material raise or point to his experiencing a stressor, as defined, during his operational service?"
Stage 4: Whether the Factual Evidence before the Tribunal Discharges the Legal Standard of Proof
51. With respect to the fourth stage defined in Deledio, Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-2 stated:
“… As the Full Court said in Deledio it is only at the step 4 of the process that the Tribunal will be required to find facts from the material before it.”
52. If a reasonable hypothesis is established ss. 120(1) of the Veterans’ Entitlements Act is applied. The claim will succeed unless:
“(a)One or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)The truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis: See Byrnes v Repatriation Commission (1993) 177 CLR 564, at 571.” (Emphasis added).
Expert Evidence, Reasonable Hypothesis and Proof
53. In Repatriation Commission v Whetton (1991) 24 ALD 690 the Full Federal Court held:
“(iv) The legal principle that the Tribunal had the ultimate question of deciding the standing of the hypothesis raised and should not be deflected from that task by the opinion of experts did not mean that the Tribunal was excused from understanding and making findings upon expert evidence relevant to the question it had to decide. It meant rather that the Tribunal must not abdicate its own function...”
Establishing the Existence of a Fact: The Effects of the Passage of Time
54. Section 119(1)(h) is concerned with problems of proof inherent in the nature of the disputes that arise under the Act, which often concern events that happened many years ago [Brew v Repatriation Commission per Sundberg J (1999) 56 ALD 403 at 407] and requires the Commission to:
“….take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
the absence of, or a deficiency in, relevant official records, including an absence or difficulty resulting from the fact that an occurrence that happened during the service of a veteran….was not reported to the appropriate authorities.”
55. The proper application of subsection 119(1)(h) may be raised with respect to determining whether, on the material before the Tribunal, the hypothesis raised was a reasonable one. This subsection makes allowance for any difficulties that might lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effect of the passage of time, or the absence of, or a deficiency in relation official records.
56. In Mason v Repatriation Commission, Weinberg J stated:
“[56] ….The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:
‘…in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal’s obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it – ‘without limiting the generality of the foregoing’. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.’ (Footnotes omitted, Emphasis added).
[76] ….The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the Veterans’ Entitlements Act.”
Consideration of the Issues
57. The Tribunal had taken into account all evidence, submissions, legislation and case law in order to make the correct and preferable decision as to whether Mr Hoogkamer’s Generalised Anxiety Disorder condition was war-caused. The Tribunal has adopted the sequential stages in Deledio’s case with respect to resolving the issues in dispute.
Step 1: Whether the Material Before the Tribunal points to an hypothesis that connects the disease of the veteran with the Circumstances of Service
58. The material before the Tribunal points to a hypothesis in which the circumstances of Mr Hoogkamer’s operational service viz. involvement in helicopter leaflet drops led to an exposure to a severe psychosocial stressor which in turn lead to his Generalised Anxiety Disorder condition.
59. There is no dispute that Mr Hoogkamer now suffers from a Generalised Anxiety Disorder.
60. The material before the Tribunal points to Mr Hoogkamer, as a being member of the 1st Psychological Operations Unit in Vietnam in 1970/71 and that this Unit was involved in helicopter leaflet drops.
61. There is medical opinion evidence before the Tribunal (Dr Mulholland, Dr Kimbell) that Mr Hoogkamer experienced a psychosocial stressor whilst involved in helicopter leaflet drops.
62. Applying the principles in East and Stares, the Tribunal concludes that the essential elements are pointed to by the material before the Tribunal and so raises an hypothesis connecting the Generalised Anxiety Disorder condition of Mr Hoogkamer with the circumstances of his operational service.
Step 2: Whether a SoP is in Force
63. The relevant SoP, under s196(B)2 of the Act, is Instrument No 1 of 2000. At the hearing the parties agreed that Factor 5(a)(ii) was the relevant factor for determination:
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder or death from anxiety disorder with the circumstances of a person’s relevant service are:
(a)for Generalised Anxiety Disorder or anxiety disorder not otherwise specified, only
…
(ii)experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or …”
where a ‘severe psychosocial stressor” (at clause 8) means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
64. The question that s120(3) requires to be asked is whether some, or all, of the facts raised by the material before the decision-maker gives rise to a reasonable hypothesis connecting Mr Hoogkamer’s Generalised Anxiety Disorder condition with his war-service: See Byrnes’ case at 571.
Step 3: Whether the Hypothesis is a Reasonable One
65. It is not in dispute that Mr Hoogkamer now suffers a Generalised Anxiety Disorder condition. Accordingly, this step requires the Tribunal to determine whether the material raises or points to a reasonable hypothesis.
66. The following factual material before the Tribunal relates the circumstances of Mr Hoogkamer’s war service in 1970/71 to his psychiatric condition of Generalised Anxiety Disorder.
(a)Dr Kimbell’s history taken from Mr Hoogkamer indicating no psychological problems prior to service in Vietnam;
(b)Official records indicating 3 helicopter leaflet drops on 30 December and 31 December 1970 and 8 January 1971, which involved members of Mr Hoogkamer’s unit (Exhibit R2, including statements of Captain Hudson and Sergeant Snuggs);
(c)Mr Hoogkamer’s evidence that he was absolutely terrified of falling out of the helicopter, extremely frightened of coming under enemy fire at any time and that he was always very, very nervous and shaky when he returned from the mission;
(d)The risk of helicopters being vulnerable to small arm fire (Prof McCarthey, Captain Hudson, Exhibit R2, Oral evidence of Mr De Heer);
(e)Helicopter flights in Vietnam and perceptions on passenger safety hazards for servicemen (Air Commodore Coy, Exhibit R2);
(f)Activities associated with helicopter leaflet drops constituting a psychosocial stressor (Dr Mulholland, Exhibit R2, Folio 114; Dr Kimbell Exhibit R2 Folio 98).
67. Accordingly, based on the evaluation of all of the material before the Tribunal, there is an hypothesis pointed to by the facts, that is reasonable, as it involved more than “a mere possibility”. Furthermore, the hypothesis is reasonable as it fits the “Generalised Anxiety Disorder SoP”. In addition, whilst it could be assumed that the stressor experienced in Vietnam was a “severe psychosocial stressor”, this in itself does not make the hypothesis unreasonable: Byrnes’ case. The material will raise a reasonable hypothesis if the raised facts which support the hypothesis can be regarded as reasonable if the facts are true: Bushell’s case.
Step 4:Whether the Factual Evidence before the Tribunal Discharges the Legal Standard of Proof
68. The Tribunal turns to ss120(1) of the Act to decide whether or not it can accept that sufficient of the facts to support the hypothesis are disproved beyond reasonable doubt.
69. The first issue for the Tribunal to consider is the credibility of Mr Hoogkamer as a witness. In this regard, the Tribunal considers the following statement of Miss Ford to be significant.
“We are not saying that he [Mr Hoogkamer] is a dishonest man. We are not saying that he is a liar. We are saying that his memory is not reliable, and not many people would have a reliable memory about events 30 years ago and we also say that he is confusing his experiences of nightmares with his experiences in Vietnam.”
70. Accordingly, the Tribunal finds Mr Hoogkamer to be a credible witness. The Tribunal further recognises that any issues of his recollection of events some 35 years ago are subject to the application of s 119(1) of the Act.
71. The central issue for the Tribunal to decide is whether the events relied upon by Mr Hoogkamer during operational service meet the requirements of an identifiable occurrence contemplated by the definition of “severe psychosocial stressor”.
72. In White and Repatriation Commission [2004] FCA 633, Spender FCJ made the following observations in his analysis of “experiencing” a severe psychosocial stressor:
“The reference to ‘experiencing’ a severe psychosocial stressor has a subjective element: see, for example, Stoddart v Repatriation Commission (2003) 197 ALR 283 at 292 per Mansfield J, in relation to the phrase ‘experiencing a severe stressor’ in the SoP concerning post traumatic stress disorder (affirmed on appeal in Repatriation Commission v Stoddart (2003) 38 AAR 176). An identifiable occurrence ‘that evokes feelings of substantial distress in an individual’ also has a subjective element: see Woodward v Repatriation Commission (2003) 200 ALR 332 at 352 per Black CJ, Weinberg and Selway JJ, in relation to the phrase ‘experiencing a severe stressor’.”
73. Spender FCJ, then concluded in White’s case:
“30. In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary.”
74. In his analysis in White Spender FCJ made the following observances:
“(a)the concept of ‘experiencing’ a ‘severe psychosocial stressor’ in the SoP embodies both objective and subjective elements”;
(b)the reference to ‘an identifiable occurrence’ is objective. The examples given in the definition are of the kinds of ‘identifiable occurrence’ that are contemplated … In my opinion, the ordinary language of the definition makes it clear that the examples given are of the ‘identifiable occurrences’ contemplated, not of ‘substantial distress’. The examples are of ‘occurrences’ not emotions [Emphasis added]”; and
(c)that an identifiable occurrence was subject to the following qualification: that any occurrence no matter how trivial or innocuous it objectively is, can be a ‘serious psychosocial stressor’, means that the examples given in the definition of ‘severe psychosocial stressor’ would be not only irrelevant and devoid of utility, but positively misleading.”
75. The Tribunal firstly considers the “objective element” of the “Generalised Anxiety Disorder SoP” and the requirements for experiencing a severe psychosocial stressor.
76. There is no dispute that helicopter leaflet drops involving the 1st Psychological Operations (“Psych Ops”) Unit took place on 30, 31 December 1970 and 8 January 1971 (Evidence of Mr He Heer; Exhibit R2 – Official records). In this regard, the relevant evidence is the evidence before the Tribunal of members of the Unit present in Vietnam at that time (see Exhibit A2).
77. Sergeant Snuggs’ (Retd. Major) evidence (Exhibit R2, Attachment 9) corroborates Mr Hoogkamer’s evidence that printing team members were ordered to go on helicopter leaflet drops:
“Leaflet drops were planned based on information received from the Hoi Chanh in the hope of encouraging other VC to join the program and defect. Once planned the information/leaflet was created by the PSYCH OPS Printing Team and dropped over the selected area. The drops were carried out by PSYCH OPS Printing Team members as directed by the OC/2IC” (emphasis added)
78. Further confirmation of the involvement of PSYCH OPS Unit personnel in aerial leaflet drops can be adduced from the information provided by Lance Corporal D Wright – a photographer in the Unit [see Exhibit R2, p10 para (l)].
79. Whilst Captain PR Hudson (Retd Lt Col) provided a statement for Writeway Research (Exhibit R2, Attachment 4), he did not arrive in Vietnam until 1 February 1971 – after the last helicopter leaflet drop on 8 January 1971.
80. Whilst Mr Hoogkamer cannot recollect who ordered him to go on helicopter leaflet drops, there is also no evidence before the Tribunal that identifies the OC/2IC of the PSYCH OPS Unit in December 1970/ January 1971 who would have directed Units members to go on a leaflet drop mission. Nor have these officers provided any evidence to the Tribunal in relation to Unit members who were ordered to go on such missions. Such evidence could rebut the evidence of Mr Hoogkamer.
81. After some 35 years Mr Hoogkamer cannot recollect the officers who ordered him to go on the helicopter leaflet drops, the actual dates and number of missions as well as members of his Unit involved in each mission. However, the Respondent has not provided in any information in regard to the officers who directed PSYCH OPS Printing Team members to carry out helicopter leaflet drops at this time. The Tribunal has made an earlier finding that Mr Hoogkamer was a credible witness. Furthermore, the Tribunal finds his evidence relating to the involvement of PSYCH OPS Printing Team members in helicopter leaflet drops to be independently corroborated.
82. Given the above findings, the Tribunal concludes that one or more facts necessary to support the first link in the hypothesis – an “identifiable occurrence” i.e. Mr Hoogkamer’s involvement in helicopter leaflet drops in Vietnam in December 1970/January 1971 has not been disproved beyond reasonable doubt. Moreover, in making this finding the Tribunal concludes that it has not “invented any evidence” to establish that connection in a situation where there have been problems of his remembering “details of events” ie by applying s119(1)(n) to ensure that those matters are taken into account: Mason’s case.
83. The “identifiable” occurrence involved the distribution of propaganda material in enemy territory from a helicopter at low levels, where the doors had been removed and where no safety harness were available. A risk of being shot down by the Viet Cong was present. The evidence before the Tribunal indicated that:
“(a)Ensuring that leaflets actually fell into or near the target zone was problematical at best. For this purpose it was necessary to fly low and slow; low as being within small arms range (Exhibit R2, Attachment 4, Captain Hudson)
(b)The evidence of Prof McCarthy (Exhibit R1, Folio 129): see para 24(a) of this decision; and
(c)The oral evidence of Mr De Heer that a helicopter flying at 300 metres was ‘certainly within small arms range’.
(d)The statement of Mr De Heer that leaflet drops occurred ‘only in daylight hours and over ‘hostile areas’. If the aircraft was fired upon, the aircraft was not allowed to return fire. It was seen as improbable to drop leaflets to tell the enemy to surrender or to return to the Government and to shoot them at the same time; ‘this has a MACV, II FFV and 1 ATF direction’. Mr De Heer described leaflet drops as an operation undertaken in hazardous circumstances: see Exhibit A1.
(e)The history taken by Dr Mulholland from Mr Hoogkamer ‘indicated that the noise in the Huey was such that he would not have been able to tell whether they were being shot at or not’.” (Exhibit R1, Folio 110).
84. There was also a perception held by some troops of being thrown out of a helicopter:
“(a)5. Passenger Safety. Manoeuvring a helicopter such as in steeply banked turns would not pose any danger to passengers in the cabin, even if they were unrestrained and sitting on the ends of the bench seat. i.e. they would not slide or be thrown out. I submit, however, that this might not be realised by someone not versed in aerodynamics and of limited helicopter flight experience. Most combat troops received significant air experience before going to Vietnam, and it was my experience that many of them were far from comfortable during even mild manoeuvres: Wing Cmd Coy (Retd Air Comm) [Exhibit R2, Attachment 6]; (Emphasis added)
(b)In this regard the following observations of Sgt Snuggs are relevant as Mr Hoogkamer would come within the group of concern identified by Wing Cmd Coy:
‘I knew H Hoogkamer very well… Being a NS he had not experienced the same rigorous training and breadth of experiences that usually confronted and hardened a regular serviceman’:” Exhibit R2, Attachment 9.
85. Given the above characteristics of the “identifiable occurrence” experienced by Mr Hoogkamer in Vietnam, the Tribunal concludes that the occurrence was not “trivial” or “innocuous”. Furthermore, Dr Mulholland’s opinion evidence in this regard is significant in that a helicopter leaflet drop, as described to him, would quality for any definition of a psychosocial stressor.
86. The Tribunal next considers the “subjective element” of the “Generalised Anxiety Disorder SoP” experiencing a severe psychosocial stressor.
87. The Tribunal accepts the evidence of Mr Hoogkamer of the impacts of the helicopter leaflet drops upon him:
§ absolutely terrified of falling out of the helicopter as he was unrestrained at all times
§ extremely frightened of coming under enemy fire
§ being very, very nervous and shaking when he returned from a mission.
The Tribunal accepts Mr Hoogkamer’s response. It is quite clear in this regard.
88. Furthermore, the Tribunal considers it relevant Mr De Heer described the work of PSYCH OPS Unit as a “new area of work for the military and there was no training given in the skills needed. There was no formal or informal standing operating procedures (SoPs)”: Exhibit A1.
89. Given the conclusion of the Tribunal on the “hazard characteristics” of helicopter leaflet drops (paras 83, 84) the Tribunal accepts the account given by Mr Hoogkamer on the impacts on him arising from these missions and concludes that the “identifiable occurrence” evoked feelings of substantial distress in him: White’s case.
90. The Tribunal next considers the expert medical opinion in relation to the “identifiable occurrence” as a psychosocial stressor. The expert psychiatric opinion before the Tribunal is consistent. Dr Kimbell (Exhibit R1 Folio 98 24 June 2002) describes the “helicopter leaflet drop stressor” as a “severe psychosocial stressor”. Dr Mulhullond (Exhibit R1, Folio 114) states:
“Assuming that what he told me about flying in helicopters and so on to be correct or near correct then as far as I am concerned as a psychiatrist that would qualify as any sort of psychosocial stressor that one could imagine and would meet any of the requirements whatever the exact terminology is used as per relevant legislation.” (Tribunal emphasis).
The Tribunal has made a finding that Mr Hoogkamer was involved in helicopter leaflet drops, as well as the hazard characteristics of the leaflet drops in Vietnam and so offsets Dr Mulholland’s assumption. Accordingly the Tribunal concludes that the expert medical opinion confirms that Mr Hoogkamer was exposed to a psychosocial stressor.
91. Given all of the above conclusions, the Tribunal finds that both the objective and subjective elements of the concept “experiencing a severe psychosocial stressor” as defined in the “Generalised Anxiety Disorder SoP” have been satisfied according to the principles in White’s case.
92. The final issue for the Tribunal to decide is the time of clinical onset of the symptoms of Generalised Anxiety Disorder. The Tribunal makes the general observation that “Generalised Anxiety Disorder” as a diagnostic psychiatric disorder was first recognised in DSM IV 1987.
93. In Re Robertson and Repatriation Commission (1999) 50 ALD 668, the Tribunal gave the following meaning to the phrase “clinical onset”:
“The ‘clinical onset’ of a disease occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
94. The Tribunal has considered the expert medical opinion in relation to this issue.
(a)Dr Kimbell (Exhibit R1, Folio 84, 15 March 2001) refers to Mr Hoogkamer experiencing anxiety which continued whilst in the Army. His history also records Mr Hoogkamer being worried about going up in helicopters and being shot at or falling out of helicopters. In addition, that over the years he had experienced nightmares of being shot at and tortured. He had given a history of irritability, insomnia, impaired concentration and muscle tension;
(b)Dr Kimbell’s later report (Exhibit R1, Folio 98, 24 June 2002) expressed the medical opinion that Mr Hoogkamer’s anxiety disorder occurred following exposure to the stressor associated with helicopter leaflet drops; and
(c)Dr Mulholland (Exhibit R1, Folio 113, 26 March 2002) expressed the medical opinion that Mr Hoogkamer’s psychiatric disorders – including Generalised Anxiety Disorder, provide a “clinical picture” that seems to be that Mr Hoogkamer developed this condition during his period in Vietnam.
95. The Tribunal considers it significant that Mr Hoogkamer’s treating psychiatrist (Dr Kimbell) has expressed the medical opinion that his Generalised Anxiety Disorder arose following exposure to a stressor in Vietnam. Such an opinion would have been made in the context of being aware of the complete history of the Hoogkamer family and life events over time – yet his opinion clearly identifies the onset of the disorder in Vietnam, not at some later date. Similarly, Dr Mulholland’s opinion was based on taking a complete history from Mr Hoogkamer and this provided the foundation for his opinion that the onset of the disorder occurred during the period of Mr Hoogkamer’s operational service.
96. The Respondent has referred to observations made by Captain Hudson and made inference in relation to the onset of Mr Hoogkamer’s anxiety disorder. For example:
“T/Cpl Hoogkamer was a better than average soldier who expressed no apparent anxieties to me and performed very well in his duties whilst in Vietnam.”
Such a statement needs to be considered in the context of the following statement, also by Capt. Hudson:
“There is a period of time where T/Cpl Hoogkamer was serving in 1 Psyops [sic] Unit before I arrived as the OC. It is possible that the Unit was dropping many tons of leaflets using Iroquois helicopters before I took command. I am reasonably certain that during my command leaflets drops were curtailed in number and quantity and that all of these were undertaken from fixed wing aircraft” (Tribunal emphasis)
97. Accordingly, the Tribunal makes the observation that the period when Captain Hudson was OC of the PSYCH OPS Printing Unit, coincided with a period of operational service by Mr Hoogkamer when no helicopter leaflet drops were undertaken and Mr Hoogkamer was no longer directly exposed to the “helicopter leaflet drop stressor”.
98. The Tribunal concludes that, Mr Hoogkamer experienced a severe psychosocial stressor in Vietnam and within the two years immediately before the clinical onset of anxiety disorder. That is, Factor 5(a)(ii) of the “Generalised Anxiety Disorder SoP” has been satisfied.
99. Each case must be considered on its merits. In this particular matter, for all of the above reasons and based on all the evidence and material before it, the Tribunal finds that for the purposes of subsection 120(1) of the Act, one or more facts that support the hypothesis have not been disproved beyond reasonable doubt: Byrne’s case.
100. Consequently, the Tribunal finds there are sufficient grounds for determining, at the requisite level of proof imposed by subsection 120(1), and in accordance with the legal framework outlined in this decision, that there is a connection between Mr Hoogkamer’s Generalised Anxiety Disorder and his operational service.
101. The Tribunal decides to set aside the decision under review and in substitution thereto decides that Mr Hoogkamer has a service-related disability. The Tribunal makes a direction that the respondent now consider the implications of this decision with respect to determining the degree of incapacity of Mr Hoogkamer from his accepted service-related disabilities and, in turn, the appropriate rate of pension entitlements.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member
Signed: C Banks
Associate
Date/s of Hearing 15 December 2004
Date of Decision 14 February 2005
Counsel for the Applicant Miss E Ford
Solicitor for the Applicant Australian Government Solicitor
Counsel for the Respondent Mr A Harding
Solicitor for the Respondent Gilshenan and Luton, Solicitors
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