HOWARD JOHN KIRK and REPATRIATION COMMISSION
[2009] AATA 140
•6 March 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 140
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4713
VETERANS' APPEALS DIVISION ) Re HOWARD JOHN KIRK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President S D Hotop
Dr P A Staer, MemberDate6 March 2009
PlacePerth
Decision The Tribunal affirms the decision under review.
.............[sgd S D Hotop]........
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Royal Australian Navy from January 1967 to January 1971 – applicant rendered operational service 14–25 May 1969 – applicant suffers from posttraumatic stress disorder ("PTSD") and ischaemic heart disease – material before Tribunal raises hypothesis that applicant's PTSD and ischaemic heart disease connected with operational service – Statements of Principles –raised hypothesis connecting PTSD with operational service not upheld by relevant Statement of Principles ("SoP") – raised hypothesis not a reasonable hypothesis – PTSD not war-caused – raised hypothesis connecting ischaemic heart disease with operational service upheld by relevant SoP – raised hypothesis a reasonable hypothesis – Tribunal satisfied beyond reasonable doubt that factual foundation of raised hypothesis disproved – ischaemic heart disease not war-caused – decision under review affirmed
Veterans' Entitlements Act 1986 (Cth), s 5D(1), s 7(1), s 9(1), s 120, s 120A and s 196B
Statement of Principles concerning posttraumatic stress disorder No 5 of 2008
Statement of Principles concerning Post Traumatic Stress Disorder (Instrument No 3 of 1999 as amended by Instrument No 54 of 1999)
Statement of Principles concerning ischaemic heart disease No 89 of 2007
Bull v Repatriation Commission (2001) 188 ALR 756
Byrne v Repatriation Commission (2007) 97 ALD 359
Collins v Administrative Appeals Tribunal (2007) 96 ALD 536
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Stoddart (2003) 134 FCR 392
Stoddart v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission (2003) 131 FCR 473
REASONS FOR DECISION
6 March 2009 Deputy President S D Hotop
Dr P A Staer, MemberIntroduction
1. The applicant, Howard John Kirk, served in the Royal Australian Navy (“RAN”) from 14 January 1967 to 4 January 1971. During that period he rendered “operational service”, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 14 May 1969 to 25 May 1969 on board HMAS Vampire in Vietnam.
2. The applicant suffers from two conditions which have been accepted by the Repatriation Commission (“the respondent”) as “war-caused” for the purposes of the VE Act, namely, bilateral sensorineural hearing loss, and tinea, and he presently receives a disability pension at 40% of the “general rate” in accordance with s 22 of the VE Act.
3. On 21 July 2004 the applicant made a claim under the VE Act that he was also suffering from “stress anxiety” caused by “stressful events during service” in May 1969.
4. On 2 December 2004 a delegate of the respondent decided that the applicant was suffering from “post traumatic stress disorder” (“PTSD”) but that that condition was not related to his operational service and, therefore, was not a war-caused condition for the purposes of the VE Act.
5. On 22 February 2005 the applicant applied to the Veterans’ Review Board (“VRB”) for review of the respondent’s decision of 2 December 2004.
6. On 18 August 2006 the applicant made a claim under the VE Act that he was also suffering from “ischaemic heart disease” caused by “smoking” related to his operational service.
7. On 3 January 2007 a delegate of the respondent decided that the applicant was suffering from “ischaemic heart disease” but that that condition was not related to his operational service and, therefore, was not a war-caused condition for the purposes of the VE Act.
8. On 27 March 2007 the applicant applied to the VRB for review of the respondent’s decision of 3 January 2007.
9. On 21 August 2008 the VRB decided that the applicant’s conditions of PTSD and ischaemic heart disease were not war-caused conditions for the purposes of the VE Act and it accordingly affirmed the abovementioned decisions of the respondent in those respects.
10. On 9 October 2008 the applicant applied to the Tribunal for review of the VRB’s decision of 21 August 2008.
The Relevant Legislation
The VE Act
11. Section 9(1) relevantly provides:
“… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…”
Section 7(1) relevantly provides:
“…for the purposes of this Act:
(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service;…
…”
The word “disease” is defined in s 5D(1) as follows:
“disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
…”
Section 120, which deals with standard of proof, relevantly provides:
“(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) … 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 …;
(b)that the disease was a war-caused disease …; or
(c)that the death was war-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.
Note: This subsection is affected by section 120A.
…”
Section 120A relevantly provides:
“…
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.”
Section 196B relevantly provides:
“(1)This section sets out the functions of the Repatriation Medical Authority. The main function of the Authority is to determine Statements of Principles for the purposes of this Act …
Determination of Statement of Principles
(2)If the Authority 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; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces; or
(ca)warlike or non-warlike service rendered by members;
the Authority 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.
…
Note 3: For factor related to service see subsection (14).
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i) but for the rendering of that service by the person; or
…”
The Statements of Principles
12. The relevant Statements of Principles, as determined by the Repatriation Medical Authority under s 196B(2) of the VE Act, are set out below (see paragraphs 37, 42 and 51).
The Evidence
13. The evidence before the Tribunal comprised:
·the “T Documents” (T1–T36, pp i–xix, 1–194) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibit A1 tendered by the applicant;
·Exhibits R1 and R2 tendered by the respondent; and
· the oral evidence of the applicant and Dr Oleh Kay.
The applicant’s evidence
14. The applicant referred to incidents involving the dropping of “scare charges” from HMAS Vampire in Vung Tau Harbour, Vietnam in May 1969 when he was rendering operational service on board that ship. He said that on several occasions during his “watch” in the engine room from 4.00 pm to 8.00 pm on the day HMAS Vampire was in Vung Tau Harbour he heard a “loud bang” in the water outside the ship’s hull, and that on one occasion this occurred so close to the ship’s hull that the power cut out leaving the engine room in total darkness. He said that those “loud bangs” occurred without warning and that, when they occurred, he “didn’t know what was happening” and they “scared the living crap out of” him and “freaked [him] out”, especially because he was in a confined space below the water line and he realised what could happen if the ship’s hull was breached. He added that he had never been “trained” to deal with “scare charges” (the detonation of which had caused the “loud bangs”).
15. The applicant said that he had started smoking cigarettes before joining the RAN and that he was smoking 20 cigarettes per day after joining the RAN but that he stopped smoking before he went to Vietnam in May 1969 because he and other crew members had decided to go on a “fitness/health kick”. He added, however, that, on hearing the “scare charges” explode, he “felt petrified, then relief that everything was OK” and “the first thing you did was light up a fag”. He said that he then started smoking 30–35 cigarettes per day and continued to smoke at that level until 1994 when he gave up smoking because of the cost and because he was experiencing shortness of breath and was concerned about his health.
16. The applicant referred to the incident in which HMAS Melbourne collided with USS Frank E Evans in June 1969. He said that when that collision occurred HMAS Vampire was “about 1 hour away” and when it arrived at the scene it “had to circle around slowly and pick up papers, life jackets” and other articles floating in the water. He said that no bodies were picked up by HMAS Vampire although he said that “people were still in the water” when it arrived at the scene of the collision.
17. The applicant also referred to an incident where he was seriously injured in a water skiing accident in Singapore Harbour in July 1969, but he said that he was “over that now”.
18. In cross-examination it was put to the applicant that the Report of Proceedings of HMAS Vampire for May 1969 (Exhibit R2) stated that HMAS Vampire arrived off Vung Tau at 5.30 am on 19 May, anchored at 6.45 am, and weighed anchor and proceeded out of the harbour at 11.00 am on that day. The applicant responded that the “scare charges” incidents must have occurred during his morning watch from 4.00 am to 8.00 am on that day, not during his afternoon watch from 4.00 pm to 8.00 pm as he previously stated.
19. It was also put to the applicant that in a report of Dr L S Basser regarding a consultation with the applicant on 17 July 1973 (T4, pp 16–19 – see paragraph 29 below) it is stated that the applicant “had given up smoking about 2 months before the accident” (namely, the water skiing accident in July 1969) but that he “now smokes between 20 and 40 cigarettes a day”. The applicant responded that he had stopped smoking 2 months before going to Vietnam because he was on a “fitness/health kick”, but that he took up smoking again at the rate of 30–35 cigarettes per day because of the “scare charges” in Vung Tau Harbour and continued to smoke at that rate until 1994.
Statement of the applicant
20. A signed handwritten statement of the applicant, date 17 September 1999, addressed to the Department of Veterans’ Affairs (“DVA”), states (inter alia) as follows:
“ …
I felt a lot of stress and anxiety whilst the ship was anchored in Vietnam. I felt like the Vampire was a sitting duck with no protection against an enemy attack. We had constant divers in the water to check for enemy mines. But I feel (sic) very unsafe as the ship propeller was locked for the safety of the divers which means if the ship is being attacked it will take 15 to 20 mins for the engineering crew to disengage the locking system for the propeller, and I felt like the ship was a sitting duck at all times. When I’m on watch in the machinery space, being a forced draft machinery space means we are boxed in during my watch. Whenever I hear an explosion in the water I don’t know if it is friend or foe. When I’m not on watch I find it hard to sleep due to my anxiety while lying in my bunk listening to scare charges going off.
…” (T5, pp 35-36)
The evidence of Dr Oleh Kay
21. Dr Kay, Psychiatrist, provided a report, dated 30 September 2004, concerning the applicant to the DVA as follows:
“Mr Kirk was referred by his general practitioner, Dr Farrier of Mandurah. He first consulted me on the 27th November 2003, for the assessment and treatment of a Post-Traumatic Stress Disorder. …
Since the 27th November 2003, Mr Kirk has consulted me on the following occasions – 10th December 2003, 11th February, 10th March, 7th April, 18th & 31st May, 14th & 28th June, 2nd 16th & 30th August 2004.
Mr Kirk previously saw Dr Fellows Smith who made a diagnosis of a Generalised Anxiety Disorder. He has recently been admitted to the Veterans’ PTSD Program at Hollywood Clinic.
In my opinion, Mr Kirk does not suffer from a GAD, but Post-Traumatic Stress Disorder.
Mr Kirk’s PTSD has arisen as the result of a number of experiences, two which have contributed are:-
He was on HMAS Vampire when she was escorting HMAS Melbourne at the time she collided with and sank USS Frank E Evans.
Mr Kirk was also distressed working inside the boiler of his ship whilst they were anchored outside Vung Tau Harbour in South Vietnam. He remembers being within the boiler when scare charges were intermittently discharged.
However, Mr Kirk’s PTSD is largely the result of being run over by a speed boat whilst on R&R in Singapore. He was on the bow of the speed boat when it turned sharply, he fell into the water and the boat went over the top of him. He required some 2,000 stitches and I understand he had 3 cardiac arrests on the way to the hospital.
As a result of the accident, Mr Kirk was assessed by Dr John McGeorge, Psychiatrist and certified unfit for naval service.
Mr Kirk complained of symptoms consistent with PTSD:
· he has difficulty sleeping, waking frequently,
· he has night sweats and restlessness,
· he has nightmares about being run over by a speed boat,
· during the day he suffers from increasing irritability,
· day time flashbacks precipitated by what reminds him of the speed boat accident,
· he is extremely uncomfortable talking about the experience, indeed, it took a number of appointments to obtain the full history.
Mr Kirk is now aged 56, is married for the second time and has been an MCRS recipient for about 10 years. He was born in Sydney, the second of three boys, to a naval family. He described his upbringing as strict, but he had an enjoyable childhood. On leaving school as a 16 year old, Mr Kirk commenced a plumbing apprenticeship, but left to (sic) the Gulf of Carpentaria, working in construction and the like prior to joining the Navy at 17½. He said that in general he enjoyed his time in the Navy and was disappointed when he was medically retired from naval service. Subsequently, he worked with Alcoa in the Power House, but has not worked since 1992.
Mr Kirk was recently assessed as suffering from PTSD and was admitted to the PTSD Program at Hollywood Clinic.
In my opinion, Mr Kirk’s symptoms fulfil the criteria for the diagnosis of PTSD as per DSM IV. His experiences predominantly relate to being run over by a speed boat whilst on R&R in Singapore. Of the DSM IV criteria, he fulfils the following:
A – 1&2
B – 1,2,3,4&5
C – 1,2,3&4
D – 1,2,3,4&5
E&F.
…” (T11)
22. In his oral evidence Dr Kay said that he has been treating the applicant since 2003 and he continues to see him on a weekly basis.
23. Dr Kay confirmed that it is his opinion that the applicant suffers from PTSD, not Generalised Anxiety Disorder. Dr Kay acknowledged the possibility that a person may suffer from co-morbid PTSD and Generalised Anxiety Disorder but he opined that that was not the applicant’s presentation.
24. As regards the cause of the applicant’s PTSD, Dr Kay said that initially he thought that the applicant’s water skiing accident of July 1969 was the most important precipitating factor but that the applicant had not spoken to him about that incident for several years and that he now “goes on about the scare charges” and his dislike of being in confined spaces. He added that the “picture” he had been getting from the applicant in recent years has been that of PTSD relating to the scare charges rather than the water skiing accident, and that his view now is that the scare charges were the “original stressor” that resulted in the applicant’s contracting PTSD. Dr Kay said, in conclusion, that he had no doubt that the applicant suffers from PTSD but that there is “some debate about the cause”.
The report of Dr James Fellows-Smith
25. Dr Fellows-Smith, Psychiatrist, provided a report, dated 1 October 1999, concerning the applicant to the DVA as follows:
“I saw the abovenamed today for the purpose of this report. He is a fifty-one year-old power station worker who has not worked for the past four years. He has two children. He presents with stress symptoms that he claims are directly related to his wartime service in Vietnam serving as a stoker on board HMAS Vampire serving in Vung Tai (sic) in 1969. His condition is complicated by medical reports, which I am not privy to at this stage. Medical officer John McGeorge in January 1970 who made a diagnosis of characterological dysfunction related to abnormal illness behaviour assessed him. Dr McGeorge prescribed the antidepressant tryptanol 25mg tds for a three month period. As this diagnosis did not warrant a medical discharge Mr Kirk was non medically discharged from the navy in 1971. He did however continue to experience psychological and behavioural symptoms primarily affecting his emotional and cognitive functioning. Mr Kirk informs me that he was reassessed in 1992 as being medically unfit by Dr Fletcher who made a diagnosis of Post Traumatic Stress Disorder based on an accident Mr Kirk had while on R&R in Singapore. Supporting his claim for service related disability Mr Kirk had also been assessed by gastroenterologist Lyndon Easton and I believe Dr Easton has made a diagnosis of Irritable Bowel aggravating gastric pathology that includes peptic ulceration requiring Pyloroplasty and highly selective vagotomy.
Mr Kirk has attended his general practitioner Dr Neels Myburgh who poses the question as to whether on mental state examination I can ascertain whether or not Mr Kirk’s emotional and behavioural problems are attributable to a Post Traumatic Stress Disorder from his accident or his wartime service.
Mr Kirk was sensitised to the prospect of injury and threatened death to himself and others as he was exposed to the casualties from the collision between HMAS Melbourne and Frank E Evans during the rescue operation from his vessel the Vampire in 1969 prior to going to Vung Tau. Whilst in Vung Tau waters he gives a familiar account of being battened down below whilst scare charges were detonated under the vessel. Mr Kirk describes a four to five day period when he was confined below decks for at least sixteen hours of the day. His claim therefore that he has developed a claustrophobic tendency from this time is understandable given the nature of the stressor. It is plausible therefore that idiosyncrasies with Mr Kirk’s personality may have made him more vulnerable to an anxiety reaction from his wartime service. As the emotional and behavioural problems primarily affect a generalised pattern of anxiety disorder it is unlikely that any post traumatic symptoms sustained from the skiing accident are contributing to his claustrophobic tendencies. Furthermore it Is unlikely that the anxiety disorder directly caused the skiing accident. Mr Kirk describes feelings of horror, intense fear and helplessness on seeing the injuries that he sustained during the skiing accident. The anxiety reaction that he experienced at the time is likely to have a component of Post Traumatic Stress as it reminded him of witnessing the casualties from the collision between the Melbourne and the Frank E Evans.
With regard to the diagnosis of Generalised Anxiety Disorder as described in DSMIV 300.02
Category A:Mr Kirk experiences excessive anxiety and worry occurring more days than not.
Category B:He finds it difficult to control the worry.
Category C:The anxiety and worry are associated with the following: restlessness and feeling keyed up and on edge, being easily fatigued, difficulty concentrating and mind going blank, irritability, muscle tension and sleep disturbance.
Category D:The focus of the anxiety and worry is not confined to the features of an axis one disorder. Although distressing the experiences that Mr Kirk had whilst serving in Vietnam do not fulfil criteria A of the diagnosis Post Traumatic Stress Disorder.
Category E:The anxiety, worry and physical symptoms cause clinically significant distress and impairment in social, occupational and interpersonal areas of functioning.
Category F:The disturbance is not due to the direct physiological effects of a substance or general medical condition.
As Mr Kirk went directly to Singapore from Vietnam it is not possible to obtain collateral history from his family directly following his wartime experiences. His family did however notice a change in his personality on his return from the war. He had become more withdrawn and more irritable. He was also drinking and smoking heavily. He ceased smoking six years ago. He consumes approximately seven units of alcohol per week. His nervous condition has caused a restriction to his lifestyle that includes a modification of his career. He has chosen to work in the large engine room of power stations in preference to the confined spaces of civilian and nautical engine rooms. He is unable to travel on public transport. He gets nervous when going into crowds. He avoids going to the centre of town and shopping centres if possible. There is evidence of continual conflict with his wife. His main past time (sic) is going bush into open and solitary spaces.
Mr Kirk was born in Sydney with normal birth and development. He describes his childhood as basically happy. He mixed well at school and participated in sports.
There is no family history of psychiatric disorder. His medical history includes amblyopia requiring surgical correction at birth. His war related medical disabilities include tinnitus, deafness and skin rashes. On mental state examination Mr Kirk presented as a pleasant and coherent historian. He became mildly agitated when talking about his traumatic experiences. Here was no evidence of any major mood disorder at the time of assessment. His affect was restricted. There was no evidence of any psychotic phenomena. Cognitively he was unimpaired. His insight into his condition was good.
OPINION
Mr Kirk presents with Generalised Anxiety Disorder directly due to his wartime service in Vietnam. In addition he may have non active service related stress disorder that may or may not fulfil the criteria of Post Traumatic Stress Disorder. I understand that he has been assessed by Dr Fletcher to this end. …
…” (T6)
Additional medical evidence included in the T Documents
26. A RAN Medical Survey Report, dated 15 December 1969, records that on 29 July 1969 the applicant was “run over by a boat while water skiing” and was admitted to the British Military Hospital in Singapore suffering from lacerations to the right leg, right arm and chest and “shocked from blood loss” (T3, pp 8-9).
27. A RAN Out-patient Record, dated 15 September 1970, refers to the applicant’s having had “considerable plastic surgery with average results” and adds that he “remains emotionally disturbed” and has “periods of anxiety and depression” (T3, p11).
28. The applicant’s RAN Discharge Medical Examination Record, dated 4 January 1971, records that his “emotional stability” is “abnormal” and notes that he “has been anxious and depressed since the accident” (T3, p 6).
29. A report (undated) of Dr L S Basser to the applicant’s solicitors, regarding a consultation with the applicant on 17 July 1973 in relation to his water skiing accident, states (inter alia):
“ …
On 29th July 1969 he was water skiing and at the time was sitting on the nose of the boat, when the boat turned sharply to the left and he was thrown off and the back of the boat came over the top of him. He was struck by the propeller. This was at Singapore. He was taken to hospital.
There were lacerations to the right lower limb, right side of the chest, and right upper limb. The lacerations were sutured. He had blood transfusions. He believes there were chips from a rib and a lower part of the leg.
He was in hospital 4 or 5 weeks.
…
He complained of ‘bad nerves’ since the accident. He shakes, and feels churned in the stomach. He cannot eat or sleep. He is very irritable, and this has caused a lot of domestic trouble. He goes and drives for hours ‘to cool off’. He is having no treatment now. He has not been particularly ‘nervy’ in the past. He has lost about 2 stone in weight since the accident.
He had given up smoking about 2 months before the accident, but he now smokes between 20 and 40 cigarettes a day.
…” (T4, pp 16-17)
30. A report of Dr F W Wright-Short, Psychiatrist, dated 19 July 1973, to the applicant’s solicitors regarding his water skiing accident, states (inter alia):
“ …
THE ACCIDENT
This is stated to have occurred on 29.7.69, when he was one of a party in a hired speed boat. He was lying in the bows when the light vessel suddenly striking a wake, he was thrown overboard. As he rose to the surface he noticed that his right arm was cut, and on being dragged into the boat, found he was severely injured all down the right side. There was no loss of consciousness. He said that he felt completely panic stricken from the agonising pain and the copious bleeding.
He was four or five weeks in hospital in Singapore, and on return to HMAS Terror (sic) he had attacks of nausea and vomiting.
On return to his ship, his shipmates teased him about his scars. He was drafted to HMAS Penguin and there saw Dr McGeorge, consultant psychiatrist, who ordered Valium and Mogadon, a tranquiliser and sleeping tablet, for him. …
He has not previously had a serious accident nor any nervous disturbance.”
Dr Wright-Short had previously set out the applicant’s complaints as follows:
“ COMPLAINTS
Since the accident he is frequently beset by feelings of tremulousness associated with abdominal discomfort. These attacks occur from time to time with no obvious precipitant.
He feels that he has lost much interest in his work.
He is tongue tied at times. He feels that he cannot express himself so well in conversation. The words that he wishes to use are formed in his mind but they do not ‘come out right’, so that he is frequently misunderstood.
He cannot run because he gets short of breath.
He has lost all pleasure in food. He cannot be bothered eating and has lost weight, from nine stone to seven stone three pounds. In an endeavour to put on more flesh he buys vitamins and pick-me-ups.
He is very sensitive about his scars if they are exposed, for example, on the beach.
If he attempts to lift any weight he suffers from a cramping pain in the chest.
If he works hard he suffers cramps in the right leg. These are severe.
He feels that his personality is changed. Whereas formerly he was placid, he is now irritable, argumentative and has altered from being sociable to feeling a desire for solitude.
There is difficulty with sleep, the insomnia being both initial and intermittent through the night. His sleep is disturbed by terrifying dreams in which he relives the accident.
He describes himself as being ‘less comfortable’ in his living in ‘all sorts of ways which he cannot exactly describe’.”
Dr Wright-Short’s report concludes as follows:
“ EXAMINATION
Mr Kirk presented as a rather anxious looking but completely convincing young man who does not appear to exaggerate his disabilities. He has scars on the lateral side of the right upper thorax which are slightly keloided, and one which has improved with plastic surgery. There are scars on the lateral side of the right leg and thigh and on the biceps area of the right arm. The medial side of the upper third of the right forearm is also scarred.
At this time he mentioned a weakness which he experienced in the right arm.
He says he feels on the whole there has been some improvement, but that things are now at a stand (sic).
I consider that this young man as the result of his scarring and disabilities, has suffered a serious impairment of his pleasure in living and that he is suffering from depression which is consequent upon his disabilities and additional to them. …
…” (T4, pp 19-21)
31. A report of Dr E F Fletcher, Psychiatrist, dated 10 December 1975, to the Australian Government Medical Officer regarding the applicant states (inter alia):
“ …
He describes the accident of the 29th of July 1969 and states that as a result of a mishap the boat ran over him in the water and he was struck by the propeller. In this accident he received injuries to the right side of his body. These are mostly in the nature of superficial lacerations which have left scars. Scaring (sic) has to some extent been ‘tidied up’ by plastic surgery. Several of the scars show keloid formation. …
…
Mr Kirk said that since the date of the accident he had never felt really quite well.
He states that of late and in fact ever since the accident he has been very irritable, cranky, and argumentative over trifles. These days he is nasty to his wife without provocation. The noise of the city distresses him and he has changed jobs very rapidly as he has journeyed around Australia. Currently Pellet Plant Attendant at Karratha. He has held this job for three months. He likes the job and says he gets on reasonably well with his boss. However he finds his relationships with other people very difficult. He is extremely selfconscious about the scars. He will not go to the beach or (sic) indeed will he remove any part of his clothing which leaves the scars visible. He stated that the scars on his chest seem to lock and he then experiences pain for a time. He said that his right thigh gets very painful at times and he has had to limit his work to light work in consequence.
…
He has been in difficulty generally since the date of the accident in interpersonal relationships. …
…
… I believe that this man suffers an anxiety state of depression and this is a direct sequel of the accident. Symptoms of course in these cases are often exacerbated by introspection regarding the accident and the future (possibly called brooding), and additionally by the presence of some organic constituent such as scars or dermatitis.
…” (T4, pp 28-30)
32. In connection with the applicant’s claim relating to ischaemic heart disease (see paragraph 6 above), Dr Nigel Farrier, the applicant’s treating general practitioner, certified on 17 August 2006 that the applicant was suffering from ischaemic heart disease and that the applicant had first consulted him regarding that condition in “1998 or 1999” (T19, p 84). Dr Farrier also completed a DVA Medical Impairment Assessment form, dated 26 October 2006, in which he confirmed that the applicant experiences symptoms of ischaemic heart disease, namely, chest pain and shortness of breath of moderate severity (T31, p 149).
Analysis and Findings
The relevant injuries/diseases
33. It is common ground that the applicant suffers from PTSD and ischaemic heart disease. On the basis of Dr Kay’s evidence (see paragraphs 21–24 above), the Tribunal finds that the applicant suffers from PTSD and that he does not suffer from Generalised Anxiety Disorder. On the basis of the documentation completed by Dr Farrier which is in evidence (see paragraph 32 above), the Tribunal finds that the applicant also suffers from ischaemic heart disease and that he has suffered from that condition since at least 1999. The Tribunal also finds that each of the applicant’s relevant conditions, namely, PTSD and ischaemic heart disease, is a “disease” (as defined in s 5D(1) of the VE Act) for the purposes of the VE Act.
Is each of the applicant’s PTSD and ischaemic heart disease a war-caused disease, within the meaning of s 9 of the VE Act?
34. This question is, in accordance with s 120(1) of the VE Act, to be determined on the “reverse criminal” standard of proof – that is to say, the Tribunal must determine that the relevant disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. Pursuant to s 120(3) of the VE Act, the Tribunal shall be so satisfied if, after consideration of the whole of the material before it, it is of the opinion that that material “does not raise a reasonable hypothesis connecting the … disease … with the circumstances of” the applicant’s operational service. If a relevant Statement of Principles (“SoP”), determined under s 196B(2) of the VE Act, is in force, a raised hypothesis connecting the relevant disease with the circumstances of the applicant’s operational service will be “reasonable” only if that SoP upholds that hypothesis: see s 120A(3) of the VE Act.
35. For the purpose of determining whether each of the applicant’s PTSD and ischaemic heart disease is a war-caused disease, within the meaning of s 9 of the VE Act, the Tribunal will follow the approach prescribed by the Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, as subsequently qualified by the Full Court: see Bull v Repatriation Commission (2001) 188 ALR 756 at 759; Woodward v Repatriation Commission (2003) 131 FCR 473 at 483; Collins v Administrative Appeals Tribunal (2007) 96 ALD 536 at 543; Byrne v Repatriation Commission (2007) 97 ALD 359 at 366.
Does the material before the Tribunal raise a hypothesis connecting the applicant’s PTSD with the circumstances of his operational service?
36. The Tribunal, having considered the whole of the material before it, is of the opinion that that material raises a hypothesis connecting the applicant’s PTSD with the circumstances of his operational service. That hypothesis, in general terms, is as follows:
· the applicant’s experience of hearing “scare charges” exploding at irregular intervals, without warning, under water outside the hull of HMAS Vampire on 19 May 1969 while he was on watch in the engine room (which was below the water line) of that ship which was then in Vung Tau Harbour, Vietnam resulted in his contracting PTSD.
The relevant SoP
37. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning PTSD. The SoP which is presently in force is:
Statement of Principles concerning posttraumatic stress disorder No 5 of 2008.
That SoP (which revoked Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, concerning post traumatic stress disorder) relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about posttraumatic stress disorder and death from posttraumatic stress disorder.
(b)For the purposes of this Statement of Principles, ‘posttraumatic stress disorder’ means a psychiatric condition meeting the following diagnostic criteria (derived from DSM-IV-TR):
(A)the person has been exposed to a traumatic event in which:
(i)the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others; and
(ii)the person’s response involved intense fear, helplessness, or horror; and
(B)the traumatic event is persistently re-experienced in one or more of the following ways:
(i)recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions;
(ii)recurrent distressing dreams of the event;
(iii)acting or feeling as if the traumatic event were recurring (including a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated);
(iv)intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event;
(v)physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event; and
(C)persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three or more of the following:
(i)efforts to avoid thoughts, feelings, or conversations associated with the trauma;
(ii)efforts to avoid activities, places, or people that arouse recollections of the trauma;
(iii)inability to recall an important aspect of the trauma;
(iv)markedly diminished interest or participation in significant activities;
(v)feeling of detachment or estrangement from others;
(vi)restricted range of affect (eg, unable to have loving feelings);
(vii)sense of a foreshortened future (eg, does not expect to have a career, marriage, children, or a normal life span); and
(D)persistent symptoms of increased arousal (not present before the trauma), as indicated by two or more of the following:
(i)difficulty falling or staying asleep;
(ii)irritability or outbursts of anger;
(iii)difficulty concentrating;
(iv)hypervigilance;
(v)exaggerated startle response; and
(E)duration of the disturbance (indicated by the relevant symptoms set out in paragraphs (b), (c) and (d)) is more than one month; and
(F)the disturbance causes clinically significant distress or impairment in social, occupational or other important areas of functioning.
…
(d)In the application of this Statement of Principles, the definition of ‘posttraumatic stress disorder’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that posttraumatic stress disorder and death from posttraumatic stress disorder can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
…
Other definitions
9.For the purposes of this Statement of Principles:
‘a category 1A stressor’ means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
‘a category 1B stressor’ means one of the following severe traumatic events:
(a)being an eyewitness to a person being killed or critically injured;
(b)viewing corpses or critically injured casualties as an eyewitness;
(c)being an eyewitness to atrocities inflicted on another person or persons;
(d)killing or maiming a person; or
(e)being an eyewitness to or participating in, the clearance of critically injured casualties;
…
‘DSM-IV-TR’ means the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2000;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his operational service?
38. In accordance with s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s PTSD with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP. The only relevant provisions of that SoP which might arguably uphold the raised hypothesis in the present case are paras (a) and (b) of cl 6, together with cl 5.
39. The abovementioned material before the Tribunal relating to the applicant’s experience of hearing “scare charges” exploding in the course of his operational service on board HMAS Vampire in Vietnam clearly does not accord with para (b) of cl 6 of the SoP because that paragraph requires the experiencing of a “category 1B stressor” (as defined in cl 9 of the SoP) and none of the “severe traumatic events” specified in the definition of “category 1B stressor” was, having regard to that material, experienced by the applicant. As regards para (a) of cl 6 of the SoP, which requires the experiencing of a “category 1A stressor” (as defined in cl 9 of the SoP), the abovementioned material does not, in the Tribunal’s opinion, accord with that paragraph because that material does not indicate that any of the “scare charges” explosions heard by the applicant was a “life-threatening event” within the meaning of the definition of “category 1A stressor”; nor does that material indicate that either of the other “severe traumatic events” specified in that definition was experienced by the applicant.
40. The Tribunal concludes, therefore, that the raised hypothesis connecting the applicant’s PTSD with the circumstances of his operational service is not upheld by the SoP which is presently in force.
41. In that event it is necessary for the Tribunal to consider whether the raised hypothesis connecting the applicant’s PTSD with the circumstances of his operational service is upheld by the SoP which was in force when the respondent made the relevant decision on 2 December 2004: Repatriation Commission v Keeley (2000) 98 FCR 108; Repatriation Commission v Gorton (2001) 110 FCR 321.
42. The SoP concerning PTSD which was in force on 2 December 2004 is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, (“the 1999 SoP”) which relevantly states:
“ …
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
‘experiencing a severe stressor’ means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury or a threat to the person’s, or another person’s, physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;
…”
43. The definition of “experiencing a severe stressor” in the 1999 SoP was explained by the Federal Court (Mansfield J) in Stoddart v Repatriation Commission (2003) 74 ALD 366 at 379 as follows:
“ [55] In my judgment the language of the definition of 'experiencing a severe stressor’ caters for the applicant experiencing or being confronted with an event or events that involved threat of death or serious injury, or a threat to physical integrity, if the event or events which are said to constitute the threat, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity.”
His Honour had earlier (at [52]) accepted that the word “threat” in that definition bears its “common meaning” as defined in The Macquarie Concise Dictionary, namely:
“ … an indication of probable evil to come; something that gives indication of causing evil or harm.”
His Honour’s interpretation of the definition of “experiencing a severe stressor” in the SoP was followed by the Full Federal Court in Woodward v Repatriation Commission (2003) 131 FCR 473, and was upheld on appeal by the Full Court in Repatriation Commission v Stoddart (2003) 134 FCR 392.
44. In the Tribunal’s opinion the applicant’s own evidence regarding his subjective reaction to hearing “scare charges” exploding under water outside the hull of HMAS Vampire in Vung Tau Harbour on 19 May 1969 does not accord with “experiencing a severe stressor” (as defined in cl 8 of the SoP) for the purposes of para (a) in cl 5 of the SoP. More specifically, the applicant’s reaction to hearing those explosions was, having regard to his oral evidence, in the nature of being startled or alarmed and momentarily feeling frightened about the possible consequences if the ship’s hull were breached. In his written statement (T5, pp 35–36) the applicant referred to his feeling “a lot of stress and anxiety while the ship was anchored in Vietnam” because he felt that the ship was a “sitting duck with no protection against an enemy attack”. As regards his reaction to hearing explosions in the water, he referred in his statement to his not knowing whether it was “friend or foe”, and, as regards his reaction to “scare charges” in particular, he referred to his difficulty in sleeping because of his “anxiety”. In the Tribunal’s opinion, the applicant’s evidence (including his written statement) does not indicate that, when he heard “scare charges” exploding in the water during his watch on board HMAS Vampire in Vung Tau Harbour, Vietnam in the morning of 19 May 1969, he perceived a threat (as commonly understood) of death or serious injury, or a threat to his, or another person’s, physical integrity, within the meaning of the definition of “experiencing a severe stressor” in cl 8 of the 1999 SoP.
45. The Tribunal is of the opinion, therefore, that the material before it does not raise a hypothesis which accords, or is consistent, with the 1999 SoP.
Conclusion – the applicant’s PTSD is not war-caused
46. The Tribunal is, accordingly, of the opinion that the material before it does not raise a hypothesis connecting the applicant’s PTSD with the circumstances of his operational service which is upheld by either the SoP which is presently in force or the 1999 SoP. It follows, pursuant to s 120A(3) of the VE Act, that the material before the Tribunal does not raise a reasonable hypothesis connecting the applicant’s PTSD with the circumstances of his operational service.
47. In accordance with s 120(3) of the VE Act, therefore, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s PTSD is a war-caused disease.
48. The Tribunal concludes, pursuant to s 120(1) of the VE Act, that the applicant’s PTSD is not a war-caused disease, within the meaning of s 9 of the VE Act.
49. The Tribunal notes that, having regard to the whole of the medical evidence before it, it is satisfied, beyond reasonable doubt, that the applicant’s PTSD was precipitated by, and is wholly attributable to, the water skiing accident in which he was involved in July 1969 (that is, outside his period of operational service).
Does the material before the Tribunal raise a hypothesis connecting the applicant’s ischaemic heart disease with the circumstances of his operational service?
50. The Tribunal, having considered the whole of the material before it, is of the opinion that that material raises a hypothesis, connecting the applicant’s ischaemic heart disease with the circumstances of his operational service, as follows:
· by reason of the stress and anxiety he experienced in the course of his operational service in May 1969, he then resumed smoking at the rate of 30–35 cigarettes per day and continued to smoke at that rate until 1994 when he quit smoking, after which, as a result of that cigarette smoking, he contracted ischaemic heart disease; and
· his psychiatric condition also contributed to his contracting ischaemic heart disease.
The relevant SoP
51. The Repatriation Medical Authority has determined, under s 196B(2) of the VE Act, a SoP concerning ischaemic heart disease. The SoP which is presently in force is:
Statement of Principles concerning ischaemic heart disease No 89 of 2007.
That SoP (which revoked Instrument No 53 of 2003, as amended by Instrument No 9 of 2004, concerning ischaemic heart disease) relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about ischaemic heart disease and death from ischaemic heart disease.
(b)For the purposes of this Statement of Principles, ‘ischaemic heart disease’ means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
…
(d)In the application of this Statement of Principles, the definition of ‘ischaemic heart disease’ is that given at paragraph 3(b) above.
Basis for determining the factors
4.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that ischaemic heart disease and death from ischaemic heart disease can be related to relevant service rendered by veterans, …
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant services is:
…
(g)where smoking has ceased prior to the clinical onset of ischaemic heart disease:
(i)smoking at least one pack year but less than five pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within five years of smoking cessation; or
(ii)smoking at least five pack years but less than 20 pack years of cigarettes or the equivalent thereof in other tobacco products, and the clinical onset of ischaemic heart disease has occurred within 15 years of smoking cessation; or
(iii)smoking at least 20 pack years of cigarettes or the equivalent thereof in other tobacco products, before the clinical onset of ischaemic heart disease; or
…
(o)having clinically significant depressive disorder for at least five years, before the clinical onset of ischaemic heart disease; or
…
Other definitions
9.For the purposes of this Statement of Principles:
…
‘cigarettes per day or the equivalent thereof in other tobacco products’ means either cigarettes, pipe tobacco or cigars, alone or in any combination where one tailor made cigarette approximates one gram of tobacco; or one gram of cigar, pipe or other smoking tobacco;
…
‘pack year of cigarettes or the equivalent thereof in other tobacco products’ means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
‘pack years of cigarettes or the equivalent thereof in other tobacco products’ means a calculation of consumption where one pack year of cigarettes equals twenty tailor made cigarettes per day for a period of one calendar year, or 7300 cigarettes. One tailor made cigarette approximates one gram of tobacco or one gram of cigar or pipe tobacco by weight. One pack year of tailor made cigarettes equates to 7300 cigarettes, or 7.3kg of smoking tobacco by weight. Tobacco products means either cigarettes, pipe tobacco or cigars smoked, alone or in any combination;
…”
Does the material before the Tribunal raise a reasonable hypothesis connecting the applicant’s ischaemic heart disease with the circumstances of his operational service?
52. In accordance with s 120A(3) of the VE Act, a hypothesis raised by the material before the Tribunal, connecting the applicant’s ischaemic heart disease with the circumstances of his operational service, will be a reasonable hypothesis only if it is upheld by the relevant SoP. The only relevant provisions of that SoP relied upon by the applicant for the purpose of upholding the raised hypothesis are paras (g) and (o) of cl 6, together with cl 5.
53. The material before the Tribunal does not accord with para (o) of cl 6 of the SoP because, although that material points to the applicant’s having suffered from depression, stress and anxiety and, ultimately, PTSD, it does not point to the applicant’s having had a “clinically significant depressive disorder”, within the meaning of para (o), that was related to his operational service. As regards the depression from which the applicant was suffering in the 1970s, the material before the Tribunal points to that being entirely related to the applicant’s water skiing accident in July 1969 (see paragraphs 27, 28, 30 and 31 above).
54. As regards the applicant’s cigarette smoking history, the material before the Tribunal is as follows:
· a report of Dr L S Basser prepared in relation to a consultation with the applicant on 17 July 1973 states, in the course of setting out the applicant’s history, that the applicant “had given up smoking about 2 months before the accident” – namely, the water skiing accident of 29 July 1969 – but that he “now smokes between 20 and 40 cigarettes a day” (T4, p17);
· a DVA “Claimant Report – Smoking” form completed by the applicant, dated 11 August 2006, details his smoking history as follows:
-he first started smoking on a regular basis in 1966 and he then smoked 10 cigarettes per day;
-in 1968 he increased his rate of smoking to 20 cigarettes per day;
-in May 1969 he further increased his rate of smoking to 35 cigarettes per day by reason of “stress relief”;
-in 1994 he ceased smoking (T29);
· the applicant’s oral evidence that he had been smoking 20 cigarettes per day and that, 2 months before going to Vietnam in May 1969, he stopped smoking because he was on a “fitness/health kick”, but that, on hearing the “scare charges” explode in Vung Tau Harbour in May 1969, he started smoking again at the rate of 30–35 cigarettes per day and he continued to smoke at that rate until 1994 when he finally quit smoking.
55. In the Tribunal’s opinion, that material, considered as a whole, accords with para (g) of cl 6, together with cl 5, of the relevant SoP. Accordingly, the Tribunal is of the opinion that the material before it raises a reasonable hypothesis connecting the applicant’s ischaemic heart disease with the circumstances of his operational service.
Is the applicant’s ischaemic heart disease a war-caused disease?
56. Pursuant to s 120 (1) of the VE Act the Tribunal must determine that the applicant’s ischaemic heart disease is a war-caused disease “unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”. In determining this matter the Tribunal is required to make a factual finding in respect of the applicant’s cigarette smoking having regard to the material before it.
57. The Tribunal notes that there are inconsistencies in the material before it regarding the applicant’s smoking history referred to in paragraph 54 above. In particular, the history as recorded by Dr Basser in July 1973 that the applicant had given up smoking 2 months before the July 1969 water skiing accident – that is, in May 1969 – is inconsistent with the smoking history stated in the applicant’s report to the DVA in August 2006 and in his oral evidence. There is, furthermore, a significant inconsistency between the applicant’s report to the DVA and his oral evidence, namely, that in his oral evidence he said that had given up smoking 2 months before he went to Vietnam in May 1969 – that is, in March 1969 – whereas in his report to the DVA he indicated that he had smoked cigarettes on a regular basis from 1966 to 1994, initially at the rate of 10 per day, increasing to 20 per day in 1968 and increasing further to 35 per day from May 1969 until 1994 when he ceased smoking.
58. In the Tribunal’s opinion the most reliable material before it regarding the applicant’s cigarette smoking history is Dr Basser’s report which was prepared in July 1973, only about 4 years after the applicant’s operational service in Vietnam in May 1969 and his serious water skiing accident in July 1969. The Tribunal, on the other hand, regards the information provided by the applicant regarding his cigarette smoking history to the DVA in August 2006 and to the Tribunal in February 2009 as unreliable having regard to its obviously self-serving nature, the passage of time since 1969, and, most importantly, the inconsistency referred to in the preceding paragraph. The Tribunal regards the applicant’s novel evidence that he had ceased smoking 2 months before his operational service in Vietnam in May 1969 as a belated attempt by him to explain away Dr Basser’s statement that he had given up smoking 2 months before the water skiing accident in July 1969 as an error by Dr Basser. The Tribunal does not accept that Dr Basser made such an error, not least because Dr Basser’s report is focused on the water skiing accident and does not refer to the applicant’s service in Vietnam. The Tribunal does not accept the applicant’s evidence that he had ceased smoking 2 months before going to Vietnam in May 1969 and, in the Tribunal’s opinion, that false evidence calls into question the credibility of the applicant’s evidence generally and the information provided by him to the DVA regarding his cigarette smoking history.
59. The Tribunal accepts the reference in Dr Basser’s report to the applicant’s cigarette smoking history in the period 1969-1973 as true and correct and, on the basis of that report, it is satisfied, beyond reasonable doubt, that the applicant ceased cigarette smoking in or about May 1969 but that as at 17 July 1973 (when he saw Dr Basser) he was smoking 20–40 cigarettes per day. The Tribunal is also satisfied, beyond reasonable doubt, on the basis of Dr Basser’s report, that the applicant’s subsequent resumption of smoking at the rate of 20–40 cigarettes per day was entirely attributable to the effects of his water skiing accident in July 1969.
60. Accordingly, the Tribunal is satisfied, beyond reasonable doubt, that the applicant’s consumption of cigarettes in the period 1969–1994 was not related to his operational service in Vietnam in May 1969.
61. The Tribunal is, therefore, satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant’s ischaemic heart disease is a war-caused disease.
62. The Tribunal concludes, pursuant to s 120(1) of the VE Act, that the applicant’s ischaemic heart disease is not a war-caused disease, within the meaning of s 9 of the VE Act.
Conclusion
63. The determination of the Tribunal is that neither the applicant’s PTSD nor his ischaemic heart disease is a war-caused injury or a war-caused disease, within the meaning of s 9 of the VE Act.
Decision
64. For the above reasons the Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop and Dr P A Staer, Member
Signed: ........:...............[sgd D Brodie]........................
Associate
Date of Hearing 18 February 2009
Date of Decision 6 March 2009
Representative of the Applicant Mr A WestRepresentative of the Respondent Mr C Ponnuthurai
Department of Veterans' Affairs
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