Jan Hendrik Schmidt and Repatriation Commission
[2014] AATA 760
•21 October 2014
[2014] AATA 760
Division VETERANS' APPEALS DIVISION File Number
2014/0714
Re
Jan Hendrik Schmidt
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 21 October 2014 Place Brisbane (heard in Townsville) The decision under review is affirmed.
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Deputy President P E Hack SC
Catchwords
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – posttraumatic stress disorder – whether applicant exposed to actual or threatened death or serious injury – diagnosis of posttraumatic stress disorder cannot be made – decision under review affirmed
Legislation
Veterans' Entitlements Act 1986 (Cth) ss 9, 13, 14, 120, 120A
Cases
Repatriation Commission v Bawden [2012] FCAFC 176; (2012) 206 FCR 296
Schmidt v Repatriation Commission [2004] FCA 1158
Secondary Materials
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (Fifth Ed)
Statement of Principle concerning posttraumatic stress disorder (Instrument No. 82 of 2014)Statement of Principles concerning alcohol dependence and alcohol abuse (Instrument No. 1 of 2009)
REASONS FOR DECISION
Deputy President P E Hack SC
21 October 2014
BACKGROUND
The applicant, Mr Jan Hendrik Schmidt, served in the Royal Australian Air Force between 1965 and 1983. For a period of approximately 10 weeks between July 1966 and September 1966 he served in Ubon, in north east Thailand, where Australian warplanes were based during the Vietnam conflict. Mr Schmidt’s service in Ubon constituted "operational service" as that term is used in the Veterans' Entitlements Act 1986 (Cth) (the Act). Mr Schmidt says that as the result of one or more events during the period of his operational service he now suffers from posttraumatic stress disorder and alcohol dependence.
In April 2012 Mr Schmidt applied to the respondent, the Repatriation Commission, for a disability pension in respect of those conditions. His claim was refused on
14 November 2012 and this decision was affirmed by the Veterans’ Review Board on
23 October 2013. He now seeks a review in this Tribunal.
For the reasons that follow I have concluded that the Commission's decision was correct and that it ought be affirmed.
By virtue of s 13(1) of the Act, the Commonwealth is, subject to the Act, liable to pay pension by way of compensation to a veteran who has become incapacitated by a
war-caused injury or a war-caused disease. A disease is taken to be war-caused where it resulted from an occurrence that happened while the veteran was rendering operational service.[1] The Act, by s 14, provides a mechanism by which a veteran may make a claim for pension. Where a claim relates to operational service, s 120 of the Act applies to the claim. That section, so far as is presently material, provides,
[1]See s 9(1) of the Act.
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran… relates to the operational service rendered by the veteran, the Commission shall determine… that the disease was a war-caused disease… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…
(3)In applying subsection (1)… in respect of the incapacity of a person from injury or disease…related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b)that the disease was a war-caused disease…;
...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.
(4)Except in making a determination to which subsection (1)…applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act… including the assessment or re-assessment of the rate of the pension granted under Part II…, decide the matter to its reasonable satisfaction.
In the case of operational service, the operation of s 120(3) of the Act is affected by
s 120A(3). It is a sufficient explanation for present purposes to say that it requires the reasonableness of any hypothesis propounded to be assessed by reference to the Statement of Principles, referable to the particular condition, promulgated by the Repatriation Medical Authority. The Authority has the responsibility of determining Statements of Principles that set out the factors that must be related to operational service rendered by a person if it is said that an injury, disease or death of a particular kind is connected with the circumstances of that service.
The Authority has made a Statement of Principle concerning posttraumatic stress disorder: Instrument No. 82 of 2014. Clause 6 of that Statement of Principles sets out factors that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder with the circumstances of a person's relevant service. Only those in paragraphs (a), (b) and (c) are suggested as having any relevance. They are in these terms:
(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
(c)living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder;
Clause 9 defines certain relevant terms. So far as is presently material, it provides:
For the purposes of this Statement of Principles:
"a category 1A stressor" means one 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;
"a hostile or life-threatening environment" means a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a)experiencing or being under threat of artillery, missile, rocket, mine or bomb attack:
(b)experiencing or being under threat of nuclear, biological or chemical agent attack; or
(c) being involved in combat or going on combat patrols;
The Authority has promulgated a Statement of Principles concerning alcohol dependence and alcohol abuse, Instrument No. 1 of 2009 which was then amended by Amendment Statement of Principles concerning alcohol use disorder Instrument No. 29 of 2014 in a way that replaced the earlier references to the conditions of alcohol dependence or alcohol abuse with the single term "alcohol use disorder". It is not suggested that anything turns on the change in description. The Commission accepts that a diagnosis of alcohol use disorder is demonstrated. Clause 6 of Instrument No. 1 of 2009, as amended, sets out the following factors that might be thought to have relevance to Mr Schmidt’s case:
(b)experiencing a category 1A stressor within the five years before the clinical onset of alcohol use disorder; or
(c)experiencing a category 1B stressor within the five years before the clinical onset of alcohol use disorder;
The definitions of category 1A stressor and category 1B stressor in the Statement of Principles concerning alcohol use disorder are, for all practical purposes, identical[2] to the definitions in the Statement of Principles concerning posttraumatic stress disorder and need not be repeated.
[2]The category 1A stressor is defined as meaning "one or more of the following severe traumatic events…"
Before considering the questions of causation there is, so far as the claim for posttraumatic stress disorder is concerned, an antecedent step: that of diagnosis. Questions of diagnosis are to be determined to the "reasonable satisfaction" of the decision maker. Where, as here, the Commission puts in issue the happening or the nature of the traumatic event said to satisfy the first of the diagnostic criteria for posttraumatic stress disorder, the Tribunal is required to conclude, to its "reasonable satisfaction", that the traumatic event occurred. As the Full Court explained in Repatriation Commission v Bawden,[3]
A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of "reasonable satisfaction" set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension. The decision-maker’s second task is to determine the aetiology of the disease by applying the Deledio process, which involves ascertaining whether there is a hypothesis, testing that hypothesis against the relevant Statement of Principles and turning to the facts to determine whether that hypothesis is excluded beyond reasonable doubt.
The Court went on to say,[4]
A finding that a traumatic event has occurred is indispensable to a diagnosis
of PTSD.[3][2012] FCAFC 176; (2012) 206 FCR 296 at [43].
[4]At [49].
Clause 3(b) of the Statement of Principles concerning posttraumatic stress disorder defines posttraumatic stress disorder as a psychiatric condition meeting certain specified diagnostic criteria derived from the Fifth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V). Only criterion A is presently relevant. It provides,
A.Exposure to actual or threatened death, serious injury, or sexual violence in one (or more) of the following ways:
(i) directly experiencing the traumatic event(s);
(ii) witnessing, in person, the event(s) as it occurred to others;
(iii)learning that the traumatic event(s) occurred to a close family member or close friend. In cases of actual or threatened death of a family member or friend, the event(s) must have been violent or accidental; or
(iv)experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (for example, first responders collecting human remains; police officers repeatedly exposed to details of child abuse). This criterion does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work-related;
Mr Schmidt referred to three significant events during his service in Ubon, although, as I understood his argument, only one of them amounted to a stressful event. The event on which he placed reliance as a traumatic event was what was described as "the red alert". Additionally, he made brief mention of an incident involving a Thai guard and another occasion when he was briefly locked up by the local police for not having a bicycle licence.
In considering these events I bear in mind that Mr Schmidt was only 18 when he served in Ubon although he had been in the Air Force for approximately 17 months prior to his posting to Ubon. Additionally, I bear in mind that the red alert event occurred about
10 days after his arrival in Ubon and at a time when he had apparently had very limited training for combat situations.
It would appear from contemporaneous documents, to which I shall return, that the occasion of the red alert was on the evening of 24 July 1966. According to Mr Schmidt, in his evidence before me, the genesis of the alert was information, said to have come from the Americans, that insurgents, sympathisers of the Vietcong, were planning to raid the base at Ubon hence the red alert was declared. They had, according to Mr Schmidt's information, been spotted on radar. Mr Schmidt was at that time under the control of
Mr Roy McGill, then a sergeant, who also gave evidence. According to Mr Schmidt, when the alert was declared he was off duty however he was required to stand to.
Mr McGill, in whose company Mr Schmidt remained for the crucial parts of the evening, told the various guards, including Mr Schmidt, to remove the first, blank, cartridge from the magazines of their rifles and to ensure that the weapon was ready for live fire, albeit with the safety on. They were required to wear helmets.
At some stage during the evening Mr McGill, Mr Schmidt and at least one other guard were performing sentry duty at the main gate to the Australian section of the camp.
Mr Schmidt was standing with, but slightly behind, Mr McGill. The other person who
Mr Schmidt recalls being in the group was away to his left a little further. The group was slightly illuminated by overhead lighting, intended to illuminate outside the camp, but they were not standing directly beneath the light. Without any warning a shot was fired. It was immediately obvious to Mr McGill, who thought there might have been two shots fired, that the shot or shots had come from the Australian guard just to the left of
Mr Schmidt. Mr Schmidt claims not to have realised that at the time. He says that he was "immediately fearful", had an involuntary physical reaction to hearing the shots fired and that "everyone panicked". He described the incident as "scary". Mr McGill, seemingly not at all panicked, realised that the shot or shots had come from one of his group and ran to that person. He was told that the shooter had noticed movement in the darkness outside the base and across the road.
Nothing further of any consequence occurred that evening. Mr McGill recalls that the alert lasted for about four hours. Mr Schmidt says that he remained on duty for 48 hours on that day and over the following period.
There is some objective evidence of that evening's events contained in the unit histories of the RAAF Contingent, Ubon[5] and of 79 Squadron.[6] In the former, the following is recorded for 24 and 25 July 1966:
24JUL66Base on full alert at 2200 hrs. Unidentified aircraft tracked on radar to within 5 miles north of Base. USAF Flareship dropped flares and F4 Phantom scrambled to attempt to intercept. Nil results due to low cloud cover.
25JUL66Alert state reduced to AMBER – closed camp, personal weapons – 2030 hours more information on radar tracking and one actual sighting from Tower. Base remained at alert AMBER;
The note in the Unit History of 79 Squadron is in these terms:
24JUL66Weather fine with scattered thunderstorms. Alert aircraft flew two sorties of PI’s. At 2300 hrs an actual alert Amber ground defence phase was declared. All aircraft were ready for flight and arms and ammunition were issued to all personnel. At approximately 2345 hrs the AMBER phase was raised to PINK.
25JUL66The PINK ground defence phase was carried on until 0150 hrs when it reverted to AMBER again. From 0200 hrs shifts of 16 personnel were left on guard in the 79 SQN area and the remainder were released to go to bed. At 0800 hrs the guard strength was reduced to 8. The ground defence and it was caused by radar contact with suspected enemy helicopter landings 10 miles to the north-east. This has not been confirmed yet.
[5]Exhibit 1, page 39.
[6]Exhibit 1, pages 150 – 151.
The other matters referred to by Mr Schmidt need only be briefly noted. In the first incident he was "taken hostage" by a Thai guard, who apparently had a reputation for erratic behaviour, and taken by that person 100 metres to a guardhouse. He was released once it was realised who he was. Mr McGill, who brought him back to the Australian area, asked if he was prepared to go back on duty and he was, and did so. He told me that he did not react badly to this incident. He mentioned as well an incident when he was locked up in a police station for not holding a bicycle licence but he appeared not to be concerned by the incident.
I have considerable doubts about the reliability of Mr Schmidt's account of events and in particular his evidence of his reaction to it. I accept that many years have now elapsed since the service in Ubon however there is a considerable variation in the accounts he has given over time about the events that he claims contributed to his posttraumatic stress disorder.
He saw Dr John Rogers, a consultant psychiatrist, in 2001. Dr Rogers’ report of
13 August 2001[7] refers to Mr Schmidt describing "two particularly distressing episodes occurring whilst on patrol". Those events were the incident involving the Thai guard and the incident involving the Thai police. Both are described in terms considerably more florid than he described them to me. But what is also significant is that no mention is made of the red alert or of any adverse reaction to a shot being fired in his immediate vicinity. Mr Smith made a claim for the acceptance of posttraumatic stress disorder and alcohol dependence to be accepted by the Commission in June 2001. That claim ultimately led to a hearing in the Tribunal, differently constituted, in November 2003. In the course of the hearing Mr Schmidt relied upon the incident with the Thai guard, that with the Thai police and the red alert as being the stressful events. He told the Tribunal on that occasion that he had not mentioned the red alert incident to Dr Rogers "because of the Secrecy Act".[8] The decision of the Commission was affirmed and an appeal from that decision was unsuccessful.[9]
[7]Exhibit 1, page 20.
[8]Exhibit 1, page 120.
[9]Schmidt v Repatriation Commission [2004] FCA 1158.
Mr Schmidt made the claim which is the subject of the present application in April 2012. The Commission obtained a further report of Dr Rogers of 21 June 2012.[10] Dr Rogers gave this history as recounted to him by Mr Schmidt:
He describes two stressful events in particular, as well as general security concerns at the base on Thai territory but actively involved in the Vietnam War.
The first incident involved being locked up in the local civilian Police station for not having a pushbike licence. He described the aggressive encounter with an armed policeman who was expecting a bribe.
The second involved being taken prisoner by an armed Thai guard at the airbase whilst on patrol. For a period he was held hostage before other personnel intervened. He subsequently learned that the guard in question had developed a severe psychotic mental illness. The latter information accentuated his sense of fear and helplessness evoked by the event and continuing in the aftermath.
Following the hostage drama he describes marked increase in arousal with irritability, poor concentration and hyper vigilance. Re-experiencing continues up to the present in the form of memories, flashbacks and trauma dreams.
Dr Rogers concluded that a diagnosis of posttraumatic stress disorder and alcohol dependence was appropriate.
[10]Exhibit 1, pages 162 – 165.
I am unable to be satisfied that a diagnosis of posttraumatic stress disorder is able to be made in the present case because I am unable to be satisfied that any event of sufficient severity took place. Dr Rogers' diagnosis was based on a history that did not make any reference to the event which Mr Schmidt now says was the stressful event. It was a history informed by two events which, on Mr Schmidt's account before me, were of no real consequence to him. One might be dubious about the claim made in the early Tribunal hearing that Dr Rogers was not told of the red alert incident because of some concern for secrecy, but the matter having been ventilated in that hearing in 2003, there could no longer be any question of secrecy preventing Mr Schmidt from informing
Dr Rogers in 2012 of the significance of that event if, in truth, it had any significance to him.
I am not satisfied that Mr Schmidt was exposed to actual or threatened death or serious injury and thus I am not reasonably satisfied that a diagnosis of posttraumatic stress disorder can be made out. For that reason the decision of the Commission, so far as it relates to the claim for posttraumatic stress disorder, must be affirmed.
However even if that conclusion were, in some way, affected by legal error I would reach the same conclusion by considering whether the material points to a category 1A or 1B stressor before the onset of posttraumatic stress disorder. The red alert event could not possibly be regarded as "a severe traumatic event". It was not, objectively viewed, life-threatening nor could it be regarded subjectively as life threatening. And, given my conclusions about the evidence of Mr Schmidt, it will suffice to say that I would have been satisfied beyond reasonable doubt that Mr Schmidt did not, in fact, experience a category 1A or category 1B stressor before the clinical onset of posttraumatic stress disorder.
An argument was pressed, somewhat faintly, that the factor in paragraph 6(c) of the Statement of Principles concerning posttraumatic stress disorder could be relied upon where I too have been satisfied that a diagnosis of posttraumatic stress disorder was made out. There are at least two reasons why the material does not raise a reasonable hypothesis concerning that factor.
First the clause requires living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of the condition. On
Mr Schmidt's hypothesis posttraumatic stress disorder was brought on by the red alert, an event that occurred some 10 days after his arrival in Ubon. The requirement of "at least four weeks" cannot be satisfied. But beyond that, it is impossible, on the material, to describe the setting in Ubon as one "characterised by a pervasive threat to life or bodily integrity" in the manner demonstrated by the examples given. The material goes no further than suggesting that over the course of, at most, a period of 48 hours there was a perception that an attack might take place. There is simply no evidence of any pervasive threat.
For this additional reason I would affirm the Commission's decision regarding
post-traumatic stress disorder
I come to the same conclusion in relation to the claim for alcohol use disorder where the applicable Statement of Principles requires the presence of stressors, defined in an identical manner, before clinical onset. For the reasons given above none of the three events could be regarded as a severe traumatic event answering the description in the Statement of Principles.
In the result the decision of the Commission will be affirmed.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC ...................[Sgd].....................................................
Associate
Dated 21 October 2014
Date of hearing
7 October 2014
Applicant
In person
Advocate for the Respondent
Mr K Rudge, Department of Veterans' Affairs
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