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[2013] AATA 778
•1 November 2013
M [2013] AATA 778
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2012/3424 |
| Re | Jean Isabel Holden |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 1 November 2013 |
| Place | Melbourne |
The Tribunal sets aside the decision under review and substitutes a decision that Mrs Holden be granted a widow’s pension with effect from 28 July 2011.
...................................[sgd].....................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – widow’s claim – death from ischaemic heart disease – whether the veteran suffered from PTSD or other psychiatric condition – whether psychiatric condition contributed to ischaemic heart disease
Veterans' Entitlements Act 1986 ss 8(1), 9(1), 120(1), 120(3), 120A
Repatriation Commission v Bawden [2012] FCAFC 176
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Budworth [2001] FCA 142
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Repatriation Commission v Hill [2002] FCAFC 192
REASONS FOR DECISION
G. D. Friedman, Senior Member
1 November 2013
Jean Holden is the widow of Geoffrey Holden (the veteran), who died on 2 August 2011 from ischaemic heart disease (IHD). Mrs Holden applied to the respondent for a widow’s pension on the basis that her late husband suffered from a war-caused psychiatric condition which ultimately caused hypertension and led to his death from IHD. The respondent refused the claim and the decision was affirmed by the Veterans’ Review Board (VRB). Mrs Holden seeks review of the decision.
LEGISLATIVE FRAMEWORK
The veteran rendered eligible service in the Australian Army from 17 April 1944 to 12 November 1946. He served in the New Guinea area of the South West Pacific in small army ships from 2 March 1945 to 5 November 1946, so the whole of his service constitutes operational service under the Veterans’ Entitlements Act 1986.
Section 8(1) of the Act provides:
(1)Subject to this section …, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…
Section 9(1) of the Act states:
(1)Subject to this section and section 9A, 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;
…
The standard of proof in claims made in respect of the death of a veteran relating to operational service is specified in s 120(1) of the Act, which provides that the death of a veteran was war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that:
…the Commission shall be satisfied… if… 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… death with the circumstances of the particular service rendered by the person.
Section 120A of the Act provides that, for the purposes of s 120(3) of the Act:
…a hypothesis connecting 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 Statement of Principles (SoP)… that upholds the hypothesis.
In cases where s 120A of the Act applies, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 set out a four‑step process:
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…
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11)….
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…
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 the Tribunal is so satisfied, the claim must fail.
The Tribunal must first determine to its reasonable satisfaction that the veteran suffered from posttraumatic stress disorder (PTSD) or any other diagnosable psychiatric or psychological condition (Repatriation Commission v Budworth [2001] FCA 142).
ISSUES
The issues before the Tribunal are:
What is the kind of death suffered by the veteran?
Did the veteran suffer from PTSD or any other psychiatric or psychological condition and if so was the condition war-caused? If so:
Did the war-caused PTSD contribute to the veteran’s death from IHD?
WHAT IS THE KIND OF DEATH SUFFERED BY THE VETERAN?
In Repatriation Commission v Hancock (2003) 37 AAR 383 at 386 Selway J set out the approach to be followed by the Tribunal:
(a)First, the AAT was required to determine, on balance of probabilities, whether the pre-conditions other than causation, had been made out…
(b)Next, the AAT was required to determine on balance of probabilities what ‘kind of death’ Mr Hancock had suffered. This involved the identification, on balance of probabilities, of any and all SoPs and/or determinations under s 180A(2) of the Act and any other ‘kinds of death’ which were applicable to that death.
(c)If one or more SoPs were applicable, then the methodology in Deledio is applicable in relation to those ‘kinds of death’.
…
In accordance with the approach laid down in Hancock, the Tribunal finds that the pre‑conditions, other than causation, have been made out because Mrs Holden’s husband was a veteran, the veteran has died and Mrs Holden is his widow. In relation to a determination of the kind of death suffered by the veteran (step (b)), the Tribunal notes that the death certificate states that the cause of death was: cardiogenic shock (two days), ischaemic heart disease (one year) and right-sided pleural effusion (two days).
DID THE VETERAN SUFFER FROM PTSD?
In Repatriation Commission v Bawden [2012] FCAFC 176 the Full Federal Court held that the reasonable satisfaction test applies to paragraph 3(b) of the SoP for PTSD. The relevant SoP is No. 5 of 2008 concerning PTSD and paragraph 3 provides:
3(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 (e.g., unable to have loving feelings);
(vii) sense of a foreshortened future (e.g., 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.
Mrs Holden told the Tribunal that she met the veteran in about 1975 and they were married on 1 December 1978. The veteran (who was born in March 1926) had been married previously. She said that he served on small ships in the South West Pacific region. His vessels delivered supplies to the troops at night to avoid detection by the Japanese. Mrs Holden produced the veteran’s personal diary that included his location for each day of his service in that region, and she explained that the veteran did not say much about his wartime experiences until the early 2000s.
She said that she noticed a significant change in the veteran’s personality and emotional state at the time of major surgery for his cancer of the sinus in 1994, as the operation involved the skull and brain and resulted in significant facial scarring. Mrs Holden explained that the veteran was diagnosed with hypertension in about 2008 and developed symptoms of lethargy in 2009. The cardiac complaint was diagnosed in 2010.
She said that he had told her of a number of stressful events during his service in the South West Pacific:
oDuring a severe storm off the coast of New Guinea the veteran was fearful that his vessel would sink and he would drown (the storm event);
oThe veteran’s vessel was marooned as a result of a flat battery and the Captain sent a distress signal, which the crew believed might be intercepted by the Japanese, placing the crew’s lives at risk (the distress signal event);
oThe veteran injured his foot when he trod on a nail. The wound was treated at a hospital and the veteran was disturbed at the sight of badly-injured patients (the casualty event).
In respect of the storm event Mrs Holden produced handwritten notes which she said she wrote in 2010 after asking the veteran to describe his war experiences while he was able, and she intended to give them to his sons. The notes describe some of the vessels on which the veteran served and the locations, together with day-to-day events. The notes state that the veteran’s boat encountered a severe storm which flooded the boat and everyone on board was sick. An Australian vessel towed the boat to safety and the damage was repaired, after which the veteran resumed his duties delivering supplies.
Mr W Barsley, researcher for Writeway Research Service, stated that no record could be found in unit war diaries or other publications relating to the veteran’s service in particular small ships during the relevant period, and no record was found of a small ship encountering a severe storm. He noted the absence of any reference to a storm in the veteran’s personal diary, and said that he would have expected such a well-kept diary to have contained an entry concerning a life-threatening storm, although he could not exclude the possibility of a storm occurring in that region at the time.
Dr M McKernan, historian, stated in a report dated 28 June 2013 that in his experience of researching war diaries it could not be concluded that an action or activity that was not included in a war diary did not happen. He said that in the veteran’s case:
It is equally nonsensical to argue that because a war diary does not report that a small vessel in New Guinean waters in 1945 was caught in a terrifying storm that therefore there was no storm.
Dr P Heffernan, consultant psychiatrist, stated in a report dated 28 April 2009 that the veteran and Mrs Holden were referred to him for a psychiatric assessment in relation to an application for a review of the veteran’s disability pension. He said that Mrs Holden gave a history of the veteran’s longstanding preoccupation with his war service, in which the veteran endured a succession of terrifying experiences including a severe storm which threatened to sink the ship he was on. Dr Heffernan noted that the veteran …was clearly terrified he would die…In a further report dated 12 June 2009 Dr Heffernan reiterated the history given by Mrs Holden including the storm event.
Dr G Kernutt, consultant psychiatrist, stated in a report dated 20 May 2013 that he carried out an examination of relevant documentation and concluded that the veteran experienced significant traumatic events during war service, including the storm event.
The Tribunal accepts the evidence from Mrs Holden that on numerous occasions during their marriage the veteran told her that while serving in the New Guinea region of the South West Pacific he experienced several stressful events, including the storm event in which he was terrified that the vessel would sink and he would drown, so the Tribunal is satisfied that the storm event involved threatened death or serious injury. The Tribunal does not accept that the absence of any record of such an event in the veteran’s personal diary or in other military records means that the event did not occur, because of the wartime conditions and the fact that in a tropical area storms were common.
The Tribunal is reasonably satisfied that the storm event constitutes a traumatic event to which the veteran had been exposed, so the veteran satisfies paragraph 3(b)(A)(i) of SoP No. 5 of 2008.
In respect of the veteran’s response to the storm event, Mrs Holden told the Tribunal that the veteran was an unsociable person who was not close to his family and had few friends. She said that the marriage was not a happy one and the veteran was grumpy, irritable and angry. He did not have sleeping difficulties. She thought he was suffering from depression, particularly after the surgery in 1994.
Ms G Newman (Mrs Holden’s daughter) stated that the veteran spoke often about his war experiences to her former husband and her present husband, and that he had expressed an obvious dislike of Japanese people. She said that he was aggressive but unemotional, and she believed that he was depressed. Ms Newman said she was upset at the way the veteran treated Mrs Holden.
Mr K Rose told the Tribunal that he met the veteran in the mid-1980s and they became close friends, playing golf together regularly. Mr Rose said that the veteran had spoken often of his war experiences, and Mr Rose formed the view that the veteran had found his war service to be stressful and his life to have been in danger at the time. Mr Rose commented that the veteran suffered from depressed moods before his surgery in the 1990s and this increased following the surgery.
In oral evidence Mr Rose stated that the veteran generally presented as happy, although he had some dark times when describing the war, and Mr Rose tried to cheer him up. Under cross-examination he agreed that the veteran was proud of his army service and attended ANZAC Day services at the local Returned Services League club.
Dr Heffernan noted that Mrs Holden referred to the veteran’s controlling manner and his limited range of participation in social activities, plus memory deterioration. Dr Heffernan said that due to time constraints and the veteran’s significant cognitive impairment he was unable to obtain details of family background or life prior to war service, and only limited details of life after service. Dr Heffernan stated in his first report that his clinical impression was of …Frontal lobe dementia, possibly secondary to significant surgery five years ago, on a background of Post Traumatic Stress Disorder.
Dr Heffernan reported that in relation to the effect of cancer surgery in 1994, Mrs Holden noted behavioural issues and memory deterioration since then. She told Dr Heffernan that the veteran had been excessively preoccupied with events that occurred during his army service, reading books about them and speaking regularly about them, particularly after the surgery. Dr Heffernan was unable to identify a history of flashbacks or nightmares pertaining to the stressful events, but stated in his second report that his clinical impression was of a …Frontal lobe dementia, possibly secondary to significant surgery five years ago. I cannot exclude a past history of Post Traumatic Stress Disorder...
Dr P McCurdy, a departmental medical officer, stated in a file note dated 14 August 2009 in relation to a claim for PTSD by the veteran: There is not enough evidence in the report of Dr P Heffernan dated 12/6/2009 to diagnose PTSD.
Dr Kernutt acknowledged in his report that there was no specific documentation of psychiatric symptoms or posttraumatic-type symptoms, although the veteran’s pre-morbid personality description would tend to indicate he kept these issues to himself but was also prone to aggressive behaviour. Dr Kernutt concluded that the veteran had suffered from PTSD as a direct result of his experiences during war service, followed by an increased preoccupation with wartime experiences as a result of frontal lobe damage arising from the 1994 surgery.
Mr M Jackson, consultant clinical neuropsychologist, stated in a report dated 16 August 2013 that he examined relevant documentation. He noted that Dr Heffernan was unable to identify a clear history of impairment in the veteran’s psychological functioning through psychiatric illness during his service experience. Mr Jackson concluded that the clinical picture was one of neuropsychological changes due to damage to the frontal lobe (acquired brain injury) arising from the 1994 surgery and were not primarily symptoms of a psychiatric condition. He stated:
All the supplied documentation indicates that whilst there may have been some symptoms of Post Traumatic Stress Disorder, that these were never of a degree that had resulted in formal psychological or psychiatric intervention and did not appear to have a major impact on his domestic or social life up to his operation.
The Tribunal accepts the evidence from Mrs Holden and Mr Rose, also told to Dr Heffernan by Mrs Holden, that the veteran persistently re-experienced the storm event by recurrent and intrusive distressing recollections of the event, including images, thoughts or perceptions (paragraph 3(b)(B) of SoP Nº 5 of 2008). Further, the veteran persistently avoided stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma) by markedly diminished interest or participation in significant activities such as family events; he demonstrated a feeling of detachment or estrangement from others by being unsociable and having few friends; and he had a restricted range of affect by being unable to have loving feelings towards his family (paragraph 3(b)(C)).
The Tribunal also finds that the veteran had persistent symptoms of increased arousal (not present before the trauma) such as irritability or outbursts of anger; and difficulty concentrating (paragraph 3(b)(D)). The Tribunal finds that the duration of the disturbance was more than one month (paragraph 3(b)(E)) and that the disturbance caused clinically significant impairment in social, occupational or other important areas of functioning (paragraph 3(b)(F)).
These findings are consistent with the conclusion reached by Dr Heffernan and also by Dr Kernutt, who made a detailed analysis of relevant documentation. Mr Jackson, who is not a qualified medical practitioner but is a clinical neuropsychologist with experience in the cognitive effects of PTSD, noted possible symptoms of PTSD but was unaware of Mrs Holden’s evidence about the veteran’s social and domestic life prior to 1994. Dr McCurdy referred only to Dr Heffernan’s second report when stating that there was insufficient evidence of PTSD. Consequently the Tribunal finds that the veteran’s response to the traumatic storm event involved intense fear, helplessness or horror, and the veteran satisfies the criteria for a diagnosis of PTSD. Therefore the Tribunal is not required to make findings in relation to the other stressful events experienced by the veteran.
WAS PTSD WAR-CAUSED?
In relation to the first step from Deledio, after considering evidence from Mrs Holden and the medical evidence about the storm event, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by the veteran. Therefore he satisfies the first step.
In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 5 of 2008 concerning PTSD. Factor 6 provides:
(a) experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder;
…
In paragraph 9 of the SoP:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a)experiencing a life-threatening event;
…
As there is an SoP in force, the veteran satisfies the second step.
In relation to the third step from Deledio the Tribunal takes into account that in Repatriation Commission v Hill [2002] FCAFC 192 the Federal Court held that the material must raise or point to the hypothesis that the condition was caused by operational service, which must fit the relevant SoP. In Repatriation Commission v Bey (1997) 79 FCR 364 the Federal Court held that a reasonable hypothesis involves more than a mere possibility, and is pointed to by the facts, even though not proved upon the balance of probabilities.
The Tribunal has considered all the material, including the evidence from Mrs Holden, Mr Rose and the psychiatrists about the storm event, and forms the opinion that the hypothesis raised is a reasonable one. Therefore the veteran satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran’s PTSD was due to his operational service within the meaning of the Act. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
In view of the medical evidence from Dr Heffernan and Dr Kernutt, the Tribunal finds that clinical onset of the veteran’s PTSD occurred after his operational service.
For reasons given in relation to whether the veteran suffered from PTSD, the Tribunal accepts Mrs Holden’s evidence, supported by the medical evidence, that the storm event was a life-threatening event that constituted a category 1A stressor that was experienced by the veteran before the clinical onset of PTSD. Consequently the veteran satisfies factor 6(a) of SoP Nº 5 of 2008 and satisfies the fourth step from Deledio, and the Tribunal is not satisfied beyond reasonable doubt that the incapacity did not arise from a war-caused injury. Therefore the Tribunal finds that veteran’s condition of PTSD was war-caused.
DID THE WAR-CAUSED PTSD CONTRIBUTE TO THE VETERAN’S DEATH FROM IHD?
In respect of the hypothesis that the veteran’s war-caused PTSD contributed to his death from IHD, the Tribunal determines after considering evidence from Mrs Holden and the medical evidence that the material points to the hypothesis. Therefore he satisfies the first step from Deledio.
In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 89 of 2007 (as amended by SoP Nº 43 of 2009) concerning IHD. Factor 6 in SoP Nº 89 of 2007 provides:
…
(rr) for angina, acute myocardial infarction or sudden death from ischaemic heart disease only:
…
(iv) having panic disorder within the 12 months before the clinical worsening of ischaemic heart disease; or
Paragraph 2 of SoP Nº 43 of 2009 provides:
2. The Repatriation Medical Authority amends, under subsection 196B(8) of the Veterans’ Entitlements Act 1986, Statement of Principles concerning ischaemic heart disease No. 89 of 2007 by:
…
(B) Replacing existing factor "(rr)(iv)" in clause 6 with the following:
"(rr)(iv) having a clinically significant anxiety spectrum disorder as specified, at the time of the clinical worsening of ischaemic heart disease; or";
…
(E) Inserting a new definition for "a clinically significant anxiety spectrum disorder as specified" in clause 9 as follows:
'"a clinically significant anxiety spectrum disorder as specified" means one of the following disorders:
…
(e) posttraumatic stress disorder; or
…
that attract a diagnosis under DSM-IV-TR and is sufficient to warrant ongoing management. The ongoing management may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner;'; and
As there is an SoP in force, the veteran satisfies the second step.
In relation to the third step from Deledio the Tribunal has considered all the material and forms the opinion that the hypothesis raised is a reasonable one. Therefore the veteran satisfies the third step.
In relation to the fourth step from Deledio, the Tribunal finds that the veteran’s PTSD was sufficient to warrant ongoing management, even though there is no evidence that he visited a psychiatrist, clinical psychologist or general practitioner. Consequently the veteran’s PTSD was a clinically significant anxiety spectrum disorder and the veteran satisfies factor 6(rr)(iv) of SoP Nº 89 of 2007 (as amended by SoP Nº 43 of 2009) and satisfies the fourth step. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for making a determination that the veteran’s IHD contributed to his death. Therefore his death was war-caused within the meaning of s 8 of the Act. Consequently there is no need for the Tribunal to make a finding as to the causal connection between the veteran’s IHD and hypertension.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that Mrs Holden be granted a widow’s pension with effect from 28 July 2011.
| I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
...................[sgd].....................................................
Associate
Dated 1 November 2013
| Dates of hearing | 24 and 25 October 2013 |
| Counsel for the Applicant | Ms L Martin |
| Solicitors for the Applicant | Williams Winter |
| Counsel for the Respondent | Mr G Purcell |
| Solicitors for the Respondent | Department of Veterans' Affairs |
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