Kelly and Repatriation Commission
[2004] AATA 1058
•12 October 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1058
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/454
VETERANS’ APPEALS DIVISION )
Re DAVID KELLY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date12 October 2004
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that anxiety disorder is war-caused with effect from 29 October 2000.
...................(Sgd)..................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS – operational service – claim that anxiety disorder is war caused – experiencing a severe psychosocial stressor – clinical onset
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 120A(3)
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
White v Repatriation Commission [2004] FCA 633
Re Stonehouse and Repatriation Commission [2004] AATA 707
REASONS FOR DECISION
12 October 2004 Ms MJ Carstairs, Member 1. This is an application by David Kelly (the applicant) for review of a decision made by the Veterans’ Review Board (the VRB) on 9 April 2002. The VRB affirmed a decision of a delegate of the Repatriation Commission dated 22 May 2001.
2. At the hearing the applicant was represented by Mr R Clutterbuck of counsel instructed by Streeting Haney, Solicitors. The respondent was represented by its advocate Mr B Williams.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act1975 as well as exhibits marked A1–A7 for the applicant and R1–R5 for the respondent.
BACKGROUND
4. The applicant was born on 1 January 1945. He was called up for National Service on 11 July 1967 and served with the 17th Construction Workshop Unit of the Australian Army. He served in Vietnam between 28 May 1968 and 28 May 1969 is operational service within the meaning of the Veterans’ Entitlements Act1986 (the Act).
5. After leaving the Army, the applicant worked as an insurance broker, including a period of six years in Papua New Guinea. He remains employed in the insurance industry.
6. On 29 January 2001, the applicant claimed for several conditions as being related to his Army service. His claims for hearing loss, gastro-oesophageal reflux, solar skin damage, chronic bronchitis and emphysema were accepted. His claim for haemorrhoids and anxiety disorder were rejected.
7. In the course of the claim, the applicant’s psychiatric condition was diagnosed as post traumatic stress disorder (PTSD) on the basis of a further report of Dr J Brown, psychiatrist, who had first diagnosed the applicant as suffering generalised anxiety disorder. The diagnosis of PTSD was accepted by the VRB.
8. At the hearing by this Tribunal, the applicant withdrew his claim for haemorrhoids, and also limited his claim to anxiety disorder, rather than PTSD. The issue for the Tribunal, therefore, is whether the applicant’s psychiatric condition, however described, is related to his service.
EVIDENCE
9. The applicant said that he was called up for military service in 1965 but had delayed his call up to complete his qualifications in accountancy. When he joined up he was posted to the Base Ordinance Depot, responsible for the army supply system. In Vietnam he said he spent three months at Nui Dat and eight months at Vung Tau. His duties in Vietnam included ordering supplies, driving vehicles and obtaining supplies for vehicle repairs.
10. Army personnel in Vietnam, regardless of their posting, were required to undertake guard duty of the perimeter lines which involved four-hourly watches until dawn, after which six-man clearing patrols would search the jungle close to the perimeter lines. The applicant said that during one clearing patrol the movements of a person could be heard as they conducted the search (the clearing patrol incident). The person did not identify himself but appeared to move closer, before stopping and moving off in another direction. The applicant said that he was terrified, dropped to the ground, became incontinent and feared for his life.
11. In written statements dated 24 September 2002, 17 February 2004 and 7 June 2004 (exhibits A1-A3), the applicant referred to the following incidents in Vietnam:
i.While delayed by the breakdown of his vehicle on a trip to collect ice, he was parked near a South Vietnamese hospital. He climbed onto the back of the truck and from this position he could see human limbs being taken on a trolley to the hospital incinerator (the hospital incident). He stated that the sight made him physically ill.
ii.While driving to Nui Dat from Vung Tau he came under fire, and he believed that the tray and base of the cab of the truck he was driving were hit by bullets (the bullets incident). He stated that he felt sick and in fear of his life when this happened.
iii.He witnessed bodies being taken from a helicopter at Nui Dat (the helicopter incident) when his vehicle was parked 5 metres away.
iv.While driving through an intersection in Vung Tau, South Vietnamese police commenced firing automatic rifles (the Vung Tau police incident). He stated that he felt sick and scared and hurried away. He said that he realised that he had been in danger.
12. The applicant stated that from about 1970 he experienced ongoing nightmares related to his Vietnam service. He said that he used alcohol to assist him with sleeping.
13. In his claim for pension the applicant referred to clearing patrols from Nui Dat base camp and coming under fire whilst in convoys. In his discussions with Dr Brown in 2001, the applicant referred to feeling secure while at Vung Tau, but under threat in Nui Dat. He told Dr Brown about his experiences in the clearing patrol incident, the hospital incident and the bullets incident, stating, in regard to the last, that shots were fired on two occasions whilst he was travelling with convoys. Dr Brown wrote that the applicant said that the helicopter incident had unsettled him at the time. The applicant told Dr Brown that the hospital incident and the clearing patrol incident recurred in nightmares that he experienced in a cyclical pattern from the time of his Vietnam service. He said the nightmares abated for months at a time but always returned.
14. The evidence before the Tribunal included supporting statements provided by Mr T Taylor (exhibit A4), Mr J Chattin (T5) and Mr J Lynch (T5) about conditions encountered on roads in Vietnam and the requirement to undertake single vehicle movements when stores were required.
15. In a medical report dated 16 April 2001 (T4), Dr Brown stated that the applicant was referred to him by his general practitioner in 2000. The applicant told Dr Brown about the clearing patrol incident and the hospital incident. The applicant told him that these incidents continued to appear in dreams intermittently. The applicant told Dr Brown that he had not experienced anxiety before going to Vietnam, but worried excessively on his return and consumed alcohol to reduce his symptoms. He told Dr Brown that he had experienced depression since 1970, with episodes lasting from a few days to weeks.
16. Dr Brown considered that the applicant had a recurrent depressive illness related to his military service and he diagnosed the following conditions:
§ generalised anxiety disorder – onset in Vietnam
§ alcohol dependence – onset in Vietnam
§ major depression (recurrent) – onset shortly after Vietnam
Dr Brown stated that the onset of drinking during his Vietnam service suggested that stress of military service played a causative role in his condition.
17. In a written report dated 4 October 2001, Dr Brown stated that the applicant had recalled in a more recent consultation other stressful incidents including the bullets incident, the helicopter incident, the Vung Tau police incident, and an incident where a United States military policeman was thrown from the third floor of a building (the last being an incident now not relied upon as a stressor). On the basis of the additional incidents Dr Brown changed his diagnosis from anxiety disorder to PTSD.
18. In a written report dated 29 September 2003 (Exhibit R3), Dr P Mulholland, psychiatrist, reviewed the medical reports and interviewed the applicant. He noted that the applicant had an arguable case for PTSD though Dr Mulholland did not consider the incidents constituted sufficient stressors to support a diagnosis of PTSD. Dr Mulholland said that the applicant had a psychiatric condition with features of chronic anxiety and depression. He considered it was unlikely that the condition was caused by any of the stressful incidents in Vietnam.
19. In oral evidence, Dr Mulholland said that he could not obtain a precise history to determine the onset of the applicant’s anxiety and depression, although he said the conditions were longstanding. Dr Mulholland said that the applicant told him that the two incidents that concerned him most were the hospital incident and the bullets incident. Referring to the hospital incident, the applicant told him that he felt awful…really upset…pretty horrific about this matter. Dr Mulholland pointed out in his oral evidence that anxiety may be a normal reaction to stressful situations. However, under cross-examination, he agreed that if the applicant was terrified and fearful in Vietnam, this tended to suggest a diagnosis of anxiety condition at that time.
20. In a written report dated 11 March 2002 (Exhibit A5), Dr C Danesi, consultant psychiatrist, stated that the applicant repeatedly told him his symptoms had commenced 20 or more years ago and he had been undergoing counselling and other treatment for 5 to 6 years before he saw him. The applicant recounted to Dr Danesi that since returning from Vietnam he had experienced difficulty getting to sleep; had been anxious; and was disturbed by nightmares occurring about twice a week. The applicant described a pattern of problem levels of drinking also commencing in Vietnam but now under control. The applicant also told Dr Danesi that he experienced anxiety from adolescence, the anxiety showing as feelings of tremulousness and sweating in unfamiliar social situations.
21. The applicant described the clearing patrol incident to Dr Danesi and said that during the incident he experienced urinary and faecal incontinence. Dr Danesi described the applicant as somewhat distressed and close to tears when describing this incident.
22. The applicant described the hospital incident, and told Dr Danesi that when he observed the trolley of limbs being taken to a furnace he was physically ill. He told Dr Danesi that he still thinks about the hospital incident and feels nauseous if he dwells upon it. Dr Danesi said that in the history obtained from the applicant, the hospital incident and the clearing patrol incident were the most prominent.
23. Dr Danesi diagnosed the applicant as having had a childhood history of social anxiety disorder, which settled. He said that the applicant developed generalised anxiety disorder in the context of his service in Vietnam. Dr Danesi stated that the pre-existing social anxiety disorder increased his likelihood of developing generalised anxiety disorder.
24. In a written report dated 18 November 2001 (T4), Mr H Conant (retired Lieutenant Colonel), a researcher with Writeway Research Services, confirmed that the applicant’s duties would have required him to travel between Nui Dat and Vung Tau but considered that it was unlikely that he would have been fired upon in doing so. In a further report dated 14 October 2003 (exhibit R1), Mr Conant stated that he had researched the incidents referred to by the applicant. In regard to the hospital incident he confirmed that the location of the hospital was on a route that the applicant could have used. In oral evidence he said that after examining a schematic map of the hospital he concluded that the applicant would not have been able to see anything from the road.
25. Taking into account the statement by Mr S MacFarlane dated 13 December 2001 (T5) and Mr J Chattin dated 14 December 2001 (T5), Mr Conant agreed that the applicant would have travelled at times in a single vehicle and would have been called out to deliver parts. He said however that Army practice was that the bullets incident would be reported. Mr Conant described medical evacuation practices in Vietnam and concluded that it was unlikely the helicopter incident would have taken place at Nui Dat.
CONSIDERATION OF THE ISSUES
26. Section 9 of the Act prescribes the circumstances in which a veteran’s disease or injury shall be taken to be war‑caused. In particular the applicant’s matter raises the operation of s9(1)(a) and (b) of the Act:
9(1)Subject to this section, 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:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(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…
27. There was no dispute between the parties that the applicant had rendered operational service, and that subsections 120(1) and 120(3) of the Act apply. The Tribunal must determine that the disease or condition was war‑caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s120(1)). Subsection 120(3) is affected by s120A, applying to claims for pension made after 1 June 1994 where a veteran has rendered operational service. The operation of s120A depends upon whether there is in force a Statement of Principles (SoP) determined under s196B of the Act in respect of the kind of disease contracted by the applicant. Subsection 120A(3) provides that, for the purposes of subsection 120(3), an hypothesis connecting a disease contracted by a person with the circumstances of any particular service rendered by the person is to be regarded as reasonable only if there is in force an SoP that upholds the hypothesis.
28. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97, the Full Federal Court summarised the steps to be taken by the Tribunal in applying the legislative provisions and deciding whether a disease or injury is war-caused:
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 a SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If 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 ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war‑caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
29. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: s120(4) of the Act. In considering this first issue, the Tribunal took into account the reports of Dr Mulholland and Dr Danesi and also Dr Brown’s initial diagnosis of anxiety and depression. Dr Danesi referred to the applicant having experienced childhood social anxiety. Dr Mulholland said that the applicant’s developmental circumstances included significant adverse features such that it was possible, even probable, that these could have resulted in later psychiatric problems. The Tribunal was reasonably satisfied that the applicant suffers from generalised anxiety disorder and that he has suffered bouts of depression but does not suffer from PTSD.
30. After considering all the material the Tribunal was satisfied that the raised facts point to hypotheses connecting the applicant’s anxiety condition with his war service. These hypotheses were that the applicant experienced stressful incidents in his Vietnam service that met the definition of being severe psychosocial stressors, which is a term defined in the relevant SoP for anxiety disorder, Instrument No 1 of 2000. Mr Clutterbuck submitted that the evidence pointed to factor 5(a)(ii) or in the alternative, factor 5(a)(v) in the SoP for anxiety disorder which provides as a factor raising a connection between anxiety disorder and service (s120(3) of the Act), experiencing a severe psychosocial stressor within the two years before the clinical onset of anxiety disorder, or, in the alternative, before the clinical worsening of anxiety disorder. A severe psychosocial stressor is defined in the SoP in the following terms:
“severe psychosocial stressor” 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…
31. Mr Williams submitted that the Tribunal should not accept that the incidents relied upon met the definition of severe psychosocial stressor. He referred the Tribunal to Re Stonehouse and Repatriation Commission [2004] AATA 707, as did Mr Clutterbuck in his submission. Mr Clutterbuck submitted that factor 5(v) was pointed to by the evidence of Dr Danesi who said that the applicant had a pre-existing propensity to suffer anxiety disorder.
32. In respect of the third step as set out in Deledio, for an hypothesis to be reasonable where a SoP applies, it is necessary that the material raising the hypothesis contains all the elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192.
33. When applying the third step in Deledio, the Tribunal must form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the relevant SoP, it will be reasonable. The hypotheses raised must contain at least one of the factors in the SoP, and that factor must be related to the applicant’s service. Critical to factor 5(b) of the SoP is the issue of clinical onset of anxiety. Clinical onset is 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 (Lees v Repatriation Commission [2002] FCAFC 398). In the alternative raised hypothesis, that the applicant suffered clinical worsening of an existing condition, it is necessary that the evidence points to the applicant having a pre-existing condition of anxiety disorder that is worsened in circumstances where he experiences a severe psychosocial stressor.
34. Both Dr Mulholland and Dr Danesi addressed the issue of clinical onset in their reports. Both doctors have stated that stated that anxiety related problems date from the applicant’s military service and symptoms of anxiety have continued since that time. Dr Brown stated that the applicant developed a number of anxiety symptoms that coincided with the stressful incidents and said that their timing was etiologically significant. This evidence points to clinical onset at the time of the applicant’s service. Dr Danesi’s evidence suggested that there was a pre-existing psychiatric condition, but his written report made the distinction between childhood social anxiety disorder which settled, and the onset of generalised anxiety disorder. Factor 5(v) is not supported by this evidence because there must be clinical worsening of anxiety disorder not of some other psychiatric condition. The definition of anxiety disorder in SoP No 1 of 2000 does not appear to include social phobia or social anxiety disorder which means that factor 5(v) cannot be met.
35. The Tribunal notes that factor 5(iii) and 5(vii) provide for hypotheses concerning a clinically significant psychiatric condition before the clinical onset or clinical worsening of anxiety disorder, and that Dr Danesi’s evidence about the applicant’s social anxiety disorder and Dr Mulholland’s reference to background developmental circumstances may be more closely related to those factors in the SoP. However the Tribunal considered that as the medical evidence is in general agreement that the clinical onset of anxiety disorder was within two years of service in Vietnam there is no need to explore these other factors, which were not raised by the parties.
36. The meaning of experiencing a severe psychosocial stressor was considered in White v Repatriation Commission [2004] FCA 633. The Court said:
On the conclusion by the Tribunal as to the absence of a "severe psychosocial stressor",…the concept of "experiencing" a "severe psychosocial stressor" in the SoP embodies both objective and subjective elements.
The reference to "an identifiable occurrence" is objective. The examples given in the definition are of the kinds of "identifiable occurrence" that are contemplated.
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".
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.
37. Some of the incidents on which the applicant relied do not meet the requirements of the definition of severe psychosocial stressor. Some of them, including the helicopter incident and the Vung Tau police incident, while unpleasant and upsetting, are not incidents that are capable of evoking the required levels of substantial distress. The applicant’s evidence about the bullets incident was vague and unsatisfactory and has varied at different points in the course of his claim. His evidence to the VRB was inconsistent with versions that he gave to medical practitioners. Dr Mulholland noted much of this in his report.
38. The patrol incident and the hospital incident come within the definition of severe psychosocial stressor, as being identifiable occurrences where the applicant experienced strong physical symptoms as an immediate reaction to the occurrence, these reactions suggesting his substantial distress. The evidence of all medical practitioners was that these two incidents had ongoing significance in the applicant’s continuing history of anxiety and depressive symptoms. The Tribunal was satisfied that the hypotheses raised in regard to the hospital incident and the clearing patrol incident were consistent with the template in the SoP as set out in factor 5(a)(ii). This means that the hypotheses are reasonable: step 3 of Deledio.
39. Under s120(1), the hypothesis will be established unless facts necessary to support the hypothesis are disproved or other facts are proved inconsistent with those raised by the hypothesis. In regard to the fourth step in Deledio, pursuant to s120(1), after having reviewed all the evidence, the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant’s anxiety is war-caused. The applicant said that observing the hospital incident had immediate adverse effects on him and he re-experiences the incident in dreams. Mr Conant sought to suggest that the applicant could not have observed the incident as described but the map of the hospital grounds on which he relied for this suggestion was not produced in evidence or provided to the applicant for comment. The Tribunal accepted the applicant’s evidence as truthful and it is uncontradicted by other evidence.
40. The Tribunal accepts the applicant’s evidence that he experienced extreme fear in the clearing patrol incident. Once again his physical symptoms were immediate, and in the history given to doctors he refers to this incident and its recurrence in his thoughts and dreams since returning from Vietnam. The Tribunal accepted the evidence of Dr Danesi that the applicant’s prior psychiatric condition of social anxiety disorder may have increased his likelihood of developing generalised anxiety disorder.
41. For these reasons the applicant satisfies the criteria and succeeds in his claim.
DECISION
42. The Tribunal sets aside the decision under review and substitutes the decision that anxiety disorder is war-caused with effect from 29 October 2000.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Sarah Oliver
AssociateDate of Hearing 15 September 2004 (Coolangatta)
Date of Decision 12 October 2004
Counsel for the Applicant Mr RJ Clutterbuck
Solicitor for the Applicant Streeting Haney Lawyers
For the Respondent Mr B Williams, Departmental Advocate
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