Maclean and Repatriation Commission

[2007] AATA 1855

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION 2007 AATA 1855

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q 200600751

VETERANS’ APPEALS  DIVISION		)
Re		Raymond John Maclean

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Senior Member B J McCabe
Dr G J Maynard, Member

Date16 October 2007

PlaceBrisbane (Heard in Coolangatta)

Decision The Tribunal affirms the decision to deny the claim in respect of gastro-oesophageal reflux disease. The Tribunal affirms the decision to deny the claims in respect of generalised anxiety disorder and hypertension insofar as those claims relate to operational service. The decisions are set aside and remitted to the respondent for further investigation and reconsideration to the extent the claims relate to defence service.

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................[Sgd]..............................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – special rate pension – whether applicant meets criteria in statement of principles – whether incidents identified were severe psycho-social stressors – whether conditions were war-caused – decision under review affirmed, and remitted to the respondent on the question of whether conditions were service-related

Veterans Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

16 October 2007 Senior Member B J McCabe
Dr G J Maynard, Member  

1.      Raymond Maclean asked the Repatriation Commission to accept he suffers from war-caused generalised anxiety disorder, gastro-oesophageal reflux disease and hyptertension. He says the anxiety condition arose as a result of events he witnessed during the course of operational service in Vietnam with the RAAF. The hypertension is connected to the anxiety condition, he says. He claims the reflux condition is connected with heavy smoking that he took up while on operational service. The respondent says Mr Maclean does not suffer from generalised anxiety disorder and claims the other conditions are not related to his war service with the RAAF in Vietnam in 1971-1972. It has refused to increase the pension he already receives in respect of other accepted conditions under the Veterans Entitlements Act 1986 (the Act).

2.      The outcome of this case turns on whether we accept:

(a)the applicant’s contention that a series of stressful events he witnessed in Vietnam are properly described as serious psychosocial stressors within the meaning of the relevant statement of principles, and

(b)the applicant’s smoking addiction began while he was on operational service.

the applicant’s story

3.      The applicant was born on 10 July 1935. He served in the RAAF from 22 July 1968 until 24 July 1989. He undertook operational service in Vietnam from 17 January 1971 until 29 February 1972. He subsequently rendered defence service from 7 December 1972 until he left the RAAF.

4.      While he was posted to Vietnam, the applicant served at the RAAF base in Vung Tau. He was principally involved in logistics but was occasionally required to perform other roles. He says he witnessed or was involved in a number of events that amounted to severe psychosocial stressors within the meaning of the statement of principles (SoP) relating to generalised anxiety disorder (instrument No 1 of 2000). The incidents were described in his statement of 15 January 2007 (exhibit 3). He elaborated on his statement in the course of his oral evidence before the TribunaI. We will describe each event briefly using the headings the applicant used in his statement:

(a)Operation Iron Fox. The applicant accompanied senior officers who were supervising a major offensive. He acted as aircrew in a helicopter over several days. The helicopter flew into ‘hot’ spots and the applicant says he was constantly anxious. Nothing untoward occurred.

(b)Re-supply of convoy vehicles. The applicant supervised two re-supply convoys that travelled between the RAAF base and the US Army logistics support base at Long Bin. The trips were tense as the Viet Cong had been active in the area in the past, although there were no reports of recent activity. Nothing untoward occurred.

(c)Re-supply sorties to army fire support base. The applicant acted as a crew-member on RAAF helicopters that flew to remote fire support bases. The helicopters did not land; they hovered while unloading their cargo. There was a danger the aircraft might be shot down, and the applicant was aware of at least one helicopter that had been destroyed in this way. But nothing untoward happened to the applicant.

(d)SAS or army battalion insert sorties. The applicant acted as aircrew on one or two occasions when a helicopter inserted troops into a combat zone. There was obviously a danger of being shot down during these missions, but nothing untoward happened to the applicant.

(e)Sniffer missions over Long Son Island. The applicant acted as air crew in a small Kiowa helicopter on one or two occasions when the helicopter was tasked with searching out Viet Cong encampments on Long Son Island using infra-red equipment. The applicant says he sighted evidence of Viet Cong activity in the area on one occasion but he never made contact with the enemy during the course of the missions. He said it was the most distressing of all the incidents in which he was involved. He was aware that a helicopter was shot down the day after he flew, but nothing untoward happened to him.

(f)Perimeter guard duties. The applicant occasionally filled in for airfield defence guards during shortages or emergencies. He was required to stand guard at a fixed post and watch for anything untoward. He did not see anything to speak of.

(g)Rocket attacks on the airfield. The applicant says rockets hit the airfield on at least two occasions while he was stationed there. Alarms sounded and people took cover, and there was a great deal of confusion and tension. The applicant reported there were “[t]wo attacks, little in collateral damage. Mostly, for Viet Cong to let you know they can do it.” The applicant agreed in his evidence that the rockets did not land anywhere near him – or anyone else, it seems.

(h)Loading coffins/body bags in Hercules aircraft. The applicant was present on the flight-line on one occasion when he was called on to assist with the loading of several body bags or coffins onto a Hercules. The bodies of the deceased soldiers were being returned to Australia. The applicant thought there may have been nine or ten body bags or coffins – he was not sure which. He says he pondered the futility of war and wondered if he might be next. He also felt a sense of bitterness about the lack of support for the troops at home. There is no suggestion he knew any of the deceased soldiers, nor is there any evidence he saw the bodies.

(i)Periods of high alert. The applicant spoke of periods when the base was placed on high alert following intelligence reports indicating there might be an attack on the airfield or other facilities. Mr Maclean said these periods “were few and far between” and added: “no one thinks of the repercussions at that moment in time.” He did not refer to any attacks (apart from the rocket attacks described above) occurring.

(j)Night flying training exercises. The applicant was a member of the aircrew on helicopters undertaking night-time exercises. He said the exercises were dangerous and tense. Nothing untoward occurred.

5.      The applicant’s statement also referred to flights over devastated areas following a B-52 strike and visits to US Army posts in the Mekong delta. He did not provide any further information at the hearing about these matters. He said in his statement that his memory of these incidents had dimmed given the passage of time. He suggested he might have blocked out the memory of some events. In either event, he was unable to provide more specific detail about what had transpired.

6.      There was little direct evidence about the applicant’s time in Indonesia while he was undertaking defence service. His statements do not refer to his experiences there and his oral testimony only briefly mentions what transpired. Dr Morris refers in his report to the applicant’s discussion of what happened in Indonesia: it seems Mr Maclean was disgusted by the corruption he saw there. We were not told of any incidents or events in particular. We note his first marriage collapsed some time after he returned from Indonesia.

7.      The applicant also gave evidence about his smoking history. His statement dated 18 April 2007 (exhibit 4) says he began smoking in 1957 when he was 22 years of age. He said he was only a light smoker at that point, consuming between 5-8 cigarettes each day. He said he did not have the funds available to smoke more heavily because had a young family to support. He conceded he began to smoke more heavily by the time he moved onto the RAAF base at Amberley in 1968. He said the change of lifestyle saw him increase his smoking to 10-25 cigarettes per day. He said he increased his smoking when he went to Vietnam. The cigarettes were cheap and some were issued with combat rations. He said he was consuming 40-60 cigarettes per day during this period. He continued to smoke heavily (30-60 cigarettes per day) after he left Vietnam and while he worked in Indonesia until 1974 when he returned to Australia. Thereafter he continued to smoke at least 25 cigarettes per day (but up to 40 cigarettes per day in some periods) until he left the RAAF. He conceded his smoking fluctuated throughout his career. He says he gave up smoking in 1996.

8.      The applicant’s claimant report (at pp 31-32 of the T documents) offers a less detailed story. It asserts the applicant started smoking about 20-30 cigarettes each week after 1957 before jumping to 30-50 cigarettes per day in Vietnam. 

diagnosis

9.      We must first settle on diagnoses of the applicant’s conditions before we proceed to the four-step process of inquiry required under s 120 of the Act.

10.     There does not appear to be any dispute that the applicant suffers from gastro-oesophageal reflux disease and hypertension. The state of the applicant’s mental health remains a live issue.

11.     Dr Katz, a psychiatrist, was asked to provide an opinion about the applicant’s psychiatric condition: exhibit 2. Dr Katz concluded the applicant suffers from generalised anxiety disorder. Interestingly, Dr Katz insisted that psycho-social stressors necessarily involved threats to a person’s bodily integrity. He said other types of stressful events (including some of those described in the relevant SoP’s definition of severe psycho-social stressor) did not give rise to anxiety. At most, they could result in reactive depression. He concluded the date of onset of the applicant’s condition was around the time of the applicant’s service in Vietnam.

12.     Dr Morris provided a report at the request of the respondent: exhibit 5. Dr Morris declined to diagnose post traumatic stress disorder because he could not identify incidents in the history that would qualify as ‘severe stressors’. He accepted some of the incidents described by the applicant might qualify as severe psychosocial stressors. He did not accept that a psychosocial stressor necessarily involved a threat to bodily integrity; he pointed out that many stressful events occurring outside of a military context could trigger anxiety. He agreed some of the features of generalised anxiety disorder were present in this case. He ultimately refused to make that diagnosis because he said the applicant “does not suffer from excessive worry or apprehension lasting most of the time over prolonged periods.” Dr Morris concluded instead that Mr Maclean suffered from anxiety disorder not otherwise specified. He suggested in his oral evidence that the date of onset was about 1974.

13.     We are not persuaded there is a great deal of difference between the two reports. Although Dr Morris refrained from making a formal diagnosis of generalised anxiety disorder, he accepts there is an anxiety condition present. His refusal to diagnose generalised anxiety disorder turned on an observation about the incidence of the applicant’s periods of excessive worry. Neither doctor saw the applicant for an extended period although Dr Katz may have been in a better position to elicit an accurate history given the applicant was more likely to be comfortable with him. We think we should prefer the opinion of Dr Katz. In any event, we do not think anything turns on the distinction since the relevant SoP includes anxiety disorder not otherwise specified in the definition of anxiety conditions covered by the SoP.

14.     Having arrived at diagnoses, the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 says s 120 of the Act requires that we follow a four step process when assessing the applicant’s claim.

15.     The first step requires that we identify the applicant’s hypothesis – his theory of the case that explains what happened and how it is related to his current conditions. Mr Maclean’s theory is clear enough: he was exposed to a number of stressful situations in Vietnam and he became anxious and developed a psychiatric condition as a result. One of his responses to the stress was to smoke more heavily. The psychiatric condition contributed in turn to the onset of the hypertension and the increased level of smoking contributed to the onset of the gastro-oesophageal reflux disease. That hypothesis is aceptable.

16.     The second step requires that we identify the relevant statements of principles. In this case, the relevant SoP’s are:

(i) anxiety disorder: instrument no 1 of 2000;

(ii) hypertension: instrument no 35 of 2003 as amended by instrument no 3 of 2004; and

(iii) Gastro-oesophageal reflux disease: instrument no 11 of 2005.

17.     We will deal with the SoP relating to generalised anxiety disorder first. At the third step of the Deledio process, we must assess whether the applicant’s story as told to the Tribunal ‘fits’ the template provided by the relevant statement of principles. We do not make findings of fact at this point. We effectively accept the applicant’s story as being true for the time being.

18.     The respondent says the applicant has failed to establish that any of the events recounted in the applicant’s statements and testimony could be described as severe psychosocial stressors. In those circumstances, the respondent argues, Mr Maclean is unable to make out factor 5(a)(ii) of the SoP.

19.     The expression severe psychosocial stressor is defined in clause 8 of the SoP. We note the definition refers to an identifiable occurrence that evokes substantial feelings of distress. While many of the examples cited in the SoP refer to a course of conduct or chain of events (eg, a major illness or financial problems which may not be discrete incidents), we do not accept any of the experiences described by the applicant fall within the definition. The applicant was undoubtedly anxious during the course of his service in Vietnam, and there were times when he might have been more anxious given the circumstances. But nothing actually happened to him, and there is no reason to believe he was exposed to an obviously threatening or unusually stressful situation that would induce anxiety in a person with the applicant’s background, experience and training. We note the applicant appeared to be a willing participant in most of the adventures he described. He appeared to volunteer for most of the helicopter’ missions where he was a member of the crew. It is difficult for us to identify occurrences that we can evaluate, but even if we accept the applicant’s description of his experiences as identifiable occurrences, we are not persuaded any of them could be said to be of the same kind or intensity as the examples set out in the SoP. It follows the applicant’s claim in respect of anxiety disorder fails. His claim in respect of hypertension must also fail.

20.     We turn to the question of smoking, which is a factor in gastro-oesophageal reflux disease. Factor 5(c) of the relevant SoP refers to a veteran smoking at least ten cigarettes per day in the six months immediately preceding the onset of gastro-oesophageal reflux disease. The applicant claims he was smoking at least that much since his operational service in Vietnam. Given that his reflux condition emerged after that point, the factor is almost certainly satisfied. Or is it? The applicant’s statement says he was smoking at least 10-25 cigarettes a day after he arrived at Amberley in 1968. In other words, his statement suggests his pattern of smoking was already well-established before his period of operational service, albeit that it continued to fluctuate but generally increase in the years that followed. If we accept the applicant’s claimant report is accurate, we would accept the facts fit the template in the SoP. If we preferred the evidence contained in the statement, we would form the view the applicant’s pattern of consumption was already established before his period of operational service – and that his story does not therefore satisfy the template of the SoP. Findings on questions of fact occur at the fourth stage of the Deledio process.

21.     The two documents present different pictures of the applicant’s smoking history. The claim form suggests the applicant was a light smoker before suddenly and dramatically increasing his intake when he went to Vietnam. The statement suggests the applicant had begun to increase his smoking some time before his period of operational service. We prefer to rely on the applicant’s statement. It appears to be more carefully considered than the figures cited in the claim document included in the T documents. We note his oral testimony also appears to support the version of events offered in the statement.

22.     The applicant’s claim in respect of gastro-oesophageal reflux disease must fail. We are not satisfied on the evidence that the applicant’s smoking was connected to his operational service. While it is possible he was smoking more heavily during his time in Vietnam, we are satisfied he had an established pattern of smoking at least the minimum number of cigarettes required to explain the development of gastro-oesophageal reflux disease.

conclusion

23.     Mr Clutterbuck asked at the hearing that we also consider whether the applicant could succeed in a claim for a pension on the basis that his conditions are connected to his defence service since 1972, especially that portion of it which occurred in Indonesia in the early 1970s. We do not have enough evidence to assess a claim in that regard since virtually all of the evidence at the hearing and on the file relates to the claim with respect to operational service. It will be obvious from our reasons that a claim in respect of gastro-oesophageal reflux disease cannot succeed in any event given our finding that the pattern of smoking pre-dated the applicant’s operational service in 1971. We propose to remit the question of a claim in respect of the anxiety condition and the hypertension arising out of the applicant’s defence service to the respondent for further investigation.

24.     The decision to deny the claim in respect of gastro-oesophageal reflux disease is affirmed. The decision to deny the claims in respect of generalised anxiety disorder and hypertension is affirmed insofar as those claims relate to operational service. The decisions are remitted to the respondent for further investigation and reconsideration to the extent the claims relate to defence service.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr Graham J Maynard, Member

Signed:         .....................................................................................
  Associate:     Stephen O’Grady

Date of Hearing  26 July 2007
Date of Decision  16 October 2007
For the applicant  Mr Clutterbuck, of counsel
For the respondent                   Mr Smith, a departmental advocate