McDonald and Repatriation Commission
[2003] AATA 740
•1 August 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2001/403
VETERANS' APPEALS DIVISION ) Re DONALD JOHN MCDONALD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date1 August 2003
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
VETERANS’ APPEALS – veterans’ entitlements – Disability Pension – whether alcohol abuse and anxiety disorder are war-caused within the meaning of section 9 of the Act – whether applicant experienced severe stressors during his operational service – standard of proof – reasonable hypothesis
Veterans’ Entitlements Act 1986 sections 120, 120A
Statement of Principles No 1 of 2000
REASONS FOR DECISION
1 August 2003 Senior Member WJF Purcell 1. This is an application for review of a decision of the Repatriation Commission (the Commission) dated 6 April 2001, insofar as it rejected the applicant’s claim for payment of Disability Pension in relation to his anxiety disorder. The Veterans’ Review Board (VRB) affirmed the decision on 15 August 2001.
2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) together with exhibits tendered by the parties. Mr White represented the applicant, who gave oral evidence, and called Dr M Ewer, Psychiatrist, as a witness. Mr Doube represented the Commission, which called Captain H Stevenson, Historian, as a witness, by way of telephone link-up.
3. The applicant, who is now 53 years of age, served in the Royal Australian Navy (the Navy) for 13½ years, from 10 October 1965, when he was nearly 16 years of age, until 6 March 1979, when he retired with the rank of Petty Officer Marine Technical Propulsion Diesel at the age of 29. He rendered 3 periods of operational service within the meaning of the Veterans’ Entitlements Act 1986 (the Act), on HMAS Sydney (the Sydney) from 8 April 1967 to 22 April 1967; from 28 April 1967 to 12 May 1967; and from 19 May 1967 to 14 June 1967, a total of 57 days. He spent 1 day in Vung Tau Harbour on each of the 3 periods of operational service.
4. The applicant maintains that his condition relates to his operational service, and the standard of proof is that of reasonable hypothesis in accordance with section 120 of the Veterans’ Entitlements Act 1986 (the Act), which, as far as is relevant for the purposes of this review, provides:
“120Standard of Proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2) …
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
5. Section 120A provides:
“120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i)the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2) …
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b) a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
…”
6. The hypothesis propounded by the applicant is that his anxiety disorder, diagnosed as “generalised anxiety disorder”, relates to his operational service, in that on the whole of the material, the severe psychosocial stressors which he experienced during his operational service, and within the 2 years immediately before the clinical onset of the condition, connect his condition with his relevant service.. In my view, the material before the Tribunal would, if correct, point to a hypothesis that the condition was war-caused. There is a Statement of Principles in force, and in accordance with that Statement of Principles at least one of the Factors set out in clause 5, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of the applicant’s relevant service.
7. The relevant Statement of Principles for the condition of generalised anxiety disorder is Instrument No 1 of 2000 (the Anxiety Disorder SoP). The applicant contends that Factor 5(a)(ii) is satisfied:
“experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”.
“Experiencing a severe psychosocial stressor” is defined as:
“… 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;”
8. The applicant submits that during his operational service in South Vietnam, he experienced severe stressors whilst aboard the Sydney, which can be summarised as follows:
(a)The barge incident
During his first trip to Vung Tau Harbour on 20 April 1967, he was primarily a crewmember on the Bofor gun. He was told by others aboard the Sydney that a Vietnamese barge, thought to contain explosives, had almost collided with the Sydney whilst it was anchored in the Harbour. He was told also that the barge was heading towards the Sydney.. He was aware that the Vietnamese could use barges, or other floating objects, containing explosives to damage Australian ships. He says that he heard that the barge contained explosives and was later destroyed.
(b)The bombing incident
During his first voyage to Vung Tau Harbour on 20 April 1967, he clearly observed aircraft firing at the mainland near Vung Tau from where the Sydney was anchored in the Harbour. He could see smoke coming from the bombs after they had hit the ground and exploded. He says that he could not tell if they were American or Australian aircraft. He was greatly concerned because it was clear people were under heavy attack, and also that the enemy might turn their attention to attacking the Sydney, or other nearby ships that were anchored in the Harbour.
9. The applicant maintains that as a consequence of these stressors, he experienced excessive anxiety and worry, which he found difficult to control. He could not concentrate on his tasks, was irritable, had difficulties falling or staying asleep, and was generally restless during his sleep.. This anxiety and worry which persisted after his first trip to Vietnam, caused him significant distress and impairment in social and occupational environments. He did not suffer from an anxiety disorder prior to his operational service.
10. The Commission contends that the applicant did not experience a “severe psychosocial stressor” as defined in the Anxiety Disorder SoP during his operational service, and cannot satisfy Factor 5(a)(ii) of Anxiety Disorder SoP. It contends further that none of the other Factors in the Anxiety Disorder SoP apply as a result of operational service; and that there is no objective evidence that the applicant was suffering from an anxiety disorder, or any other clinically significant psychiatric condition within 2 years of his operational service.
11. The applicant gave lengthy oral evidence. He was an unimpressive witness. I consider that he tailored his evidence in an attempt to satisfy the relevant Statements of Principles, that he prevaricated, and that much of his evidence was recent invention. This does not mean that I disregard the whole of his testimony, but that I prefer to rely upon the more acceptable evidence in areas of dispute in the evidence.
12. Dr Ewer proceeded on the assumption that the applicant’s version of events was reliable. I take that into account when deciding upon the weight to be given to his evidence and opinions. I consider Captain Stevenson to be a witness of truth, and prefer his evidence to that of the applicant in any area of dispute in the evidence..
13. The applicant completed his application for Disability Pension for “emotional disorder” on 22 August 2000. He stated “my experience whilst in service caused this disability” [T5/89], and that he first became aware of the disability in 1975. He requested to be assessed by Dr Ewer. Dr Ewer reported on 7 November 2000 that the applicant outlined 2 incidents which occurred in Vietnam. He reported, in part, as follows:
“…
1.Mr. McDonald told me that on his first trip to Vietnam a barge floated towards the Sydney. Understandably, there was concern that the barge may contain a booby-trap. Mr. McDonald told me that a large amount of explosives were found on the barge. This caused Mr. McDonald anxiety.
2. …
3.Mr. McDonald told me that he saw evidence of warfare in Vietnam. He saw planes overhead and bombs exploding on the ground. This caused Mr. McDonald to feel anxious.
…
I believe that Mr. McDonald’s Generalized Anxiety Disorder is clearly and directly related to his war service. Firstly, Mr. McDonald denied experiencing feelings of anxiety prior to his active service. Secondly, there is a temporal relationship between the stresses described and the development of his Generalized Anxiety Disorder in the sense that the latter came on directly after the former. Furthermore, Mr. McDonald’s Generalized Anxiety Disorder can be well-understood in the context of the stresses I have described.
…” [T9/103]
14. On 20 February 2001, Captain Stevenson reported to the Commission that he had examined the Report of Proceedings of the Sydney, and her logs for April, May and June 1967. He could find no record of the barge incident; nor of the observations set out in the bombing incident [T10/110]. On 1 March 2001, the applicant’s advocate, Mr Coxon, provided the Commission with the applicant’s more detailed statement describing the barge incident, which reads in part:
“… 0700 hours on 20th April 1967, HMAS SYDNEY anchored in Ganh Rai Bay near Vung Tau, South Vietnam.
Whilst at anchor, watch on deck was the order of the day. Concern was raised about some barges which were nearby. When these were investigated, the crew that was on one barge abandoned the vessel; it was subsequently found to contain large explosives.
HMAS SYDNEY left Ganh Rai Bay en route to Singapore at 2332 hours on the same day, 20th April 1967. …” [T11/112]
15. On 6 April 2001 the Commission refused the applicant’s claim, on the basis, inter alia, that there was no history of the applicant ever having experienced a “severe psychosocial stressor” in accordance with the Anxiety Disorder SoP. The applicant applied to the VRB for review of the decision. On 4 July 2001 Dr Ewer provided a further report to Mr Coxon in which, in reference to the barge incident, he noted that the applicant stated that he had been informed within minutes of the barge approaching the Sydney, that it contained a large amount of explosives; that other sailors were also informed of this development; and that the news had an adverse effect upon the applicant’s emotional state. Dr Ewer stated that he believed the applicant’s generalised anxiety disorder was caused by the barge incident. His report reads, in part:
“ … There seems little doubt this incident occurred and Mr. McDonald felt his life was threatened. He felt helpless in the face of an attack by the enemy. …” [T17/158]
16. On 15 August 2001 the VRB affirmed the Commission’s decision, and in the course of its Reasons for Decision said:
“…
Mr McDonald described a number of incidents to Dr Ewer, which were identified as possible stressors. However, the one on which Mr Coxon is relying related to the incident in which a barge, with explosives aboard was seen drifting towards the “Sydney”. In his evidence to the Board, Mr McDonald said that he did not witness the incident, but got his information from another sailor who was (or had been) on deck watch. The veteran was unable to provide any specific information about the incident. He said that he wasn’t very happy at the time. He also described seeing planes dropping bombs on shore about two miles away.
The Board is of the opinion that neither of the incidents described by the veteran satisfies the definitions for a psychosocial stressor or a severe stressor. …” [T2/10]
17. The applicant has applied to this Tribunal for review of the Commission’s decision.
18. Turning to the alleged stressors:
(a) The barge incident
The applicant does not maintain that he saw the barge approaching the Sydney, but that he was told by another seaman that the barge was found to contain explosives. Clearly, the only possibility open was that the barge was a Viet Cong or North Vietnamese barge, loaded with explosives, aimed towards the Sydney with the intention of doing damage to the Sydney. It must represent therefore an enemy attack upon the Sydney. The applicant said in evidence that he felt apprehensive; he told the VRB that he was in effect not happy about the incident, and was worried and happy to be going home. He told Dr Ewer that the initial incident caused him to be anxious; and Dr Ewer on the basis of the applicant’s version of events, has diagnosed the anxiety condition, and attributed the condition to this incident.
Captain Stevenson gave evidence which expanded upon his earlier written report. He said that there is no record of the event in the official records. He said that one would expect that such a clear and potential threat to the Sydney, if known to an ordinary seaman and the applicant, who at the time was a junior rating, would be known to the Captain of the Sydney, and other senior personnel. He considers that the event did not occur.
The applicant maintains that there is documentary evidence to support his version of events, a minute from Rear Admiral Knox in support of a submission as to whether the Sydney was “exposed to potential risk through there being a continuing danger” [Exhibit A2]. Rear Admiral Knox outlined examples of the threat at Vung Tau Harbour at annexure A as follows:
“1. In formulating HMAS SYDNEY’s programme December 1967 – July 1968, the Fleet Commander in a signal to Australian Commonwealth Naval Board on 27 October 1967 stated “Turn around in Vung Tau has been limited to one day to avoid remaining overnight in hostile anchorage. Bad weather or enemy activity could increase the time.”
2. DNI advice to CNS dated 16 July 1968 regarding Vung Tau stated “… SYDNEY should spend as little time as possible in any port in South Vietnam including Vung Tau”. In his penscript to this advice CNS wrote “I could not agree that the benefit of SYDNEY remaining off Vung Tau for longer than the minimum time required to complete her prime task justifies the possible risks involved.”
3. The Viet Cong attacked Vung Tau with rockets from Long Song Island in April 1968.
4. In June 1968 an intelligence report stated that an unidentified enemy platoon moved onto Long Song Island to reportedly shell Vung Tau with 122mm rocket and 82mm mortar.
5. A sampan carrying four Viet Cong was ambushed near Vung Tau in March 1969. A further five Viet Cong were killed when their sampan was ambushed in June 1969 north of Long Song Island.
6. Two enemy swimmers/sappers were found in Vung Tau harbour in May 1969. An improvised mine containing 60lbs of explosives and two Russian mines were located.
7. In June 1970, a black plastic bag containing explosives was found slung on a line between the wharf and the USS MEEKER COUNTY, berthed at the De Long pier in Vung Tau harbour.”
Rear Admiral Knox refers to a rocket attack in April 1968, a sampan carrying 4 Viet Cong being ambushed in March 1969, and another in May 1969. There is reference also to these sampans in the book “The Vung Tau Ferry”, a collection of anecdotes from those who served aboard the Sydney. These events occurred more than a year after the applicant’s first trip to Vung Tau Harbour, on 20 April 1967.
I prefer Captain Stevenson’s evidence and opinion that the alleged barge incident did not occur in April 1967. I am satisfied on the whole of the evidence, and find as a fact, that the alleged barge incident did not occur in the manner described by the applicant. It follows that this alleged incident does not satisfy the definition of a “severe psychosocial stressor” in accordance with the Anxiety Disorder SoP.
(b) The bombing incident
The applicant outlined in his oral evidence the detail of this incident. He said in evidence that he was aware that the North Vietnamese never had an air force, and therefore the aircraft bombing the coastline were of necessity allied aircraft. In addition, Captain Stevenson said in evidence that there was no record of such shelling or bombing on 20 April 1967.
In the course of his oral evidence, Dr Ewer said that, in effect, as the alleged bombing was allied bombing it would not satisfy the objective test for a psychosocial stressor, and in addition, the applicant stated that he felt anxious being in a war zone, and this response would not meet the subjective test for a severe psychosocial stressor in accordance with the Anxiety Disorder SoP. Mr White made no closing submissions in relation to this incident. In my opinion, this alleged stressor does not satisfy the definition of a “severe psychosocial stressor” in accordance with the Anxiety Disorder SoP.
19. I am satisfied on the evidence, and find as a fact, that the applicant did not suffer a “severe psychosocial stressor” during his operational service, and that Factor 5(a)(ii) of the Anxiety Disorder SoP is not satisfied. In my opinion, the material before the Tribunal does not raise a reasonable hypothesis connecting the condition with the circumstances of the particular service rendered by the applicant. I am satisfied on the whole of the evidence, beyond reasonable doubt, that there is not sufficient ground for determining that the applicant’s condition of generalised anxiety disorder was war-caused.
20. For these reasons, the Tribunal affirms the decision under review.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 7/8 November 2002
Date of Decision 1 August 2003
Counsel for the Applicant Mr T White
Solicitor for the Applicant Tindall Gask Bentley
Counsel for the Respondent Mr G Doube
Solicitor for the Respondent DVA
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