McVeigh and Repatriation Commission

[2006] AATA 330

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 330

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/108

VETERANS' APPEALS DIVISION		)
Re		NOEL WAIN McVEIGH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date7 April 2006

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that post-traumatic stress disorder was war-caused – consideration of statements of principles – experiencing mortar shells fired from HMAS Parramatta – decision affirmed

Veterans’ Entitlements Act 1986 ss 6, 9, 20, 120, 120A, 196

Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 2
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377

Stoddart v Repatriation Commission (2003) 74 ALD 366

Statement of Principles Instrument No 3 of 1999
Statement of Principles Instrument No 54 of 1999

REASONS FOR DECISION

7 April 2006   Mr J G Short (Member)    

1.      Mr Noel McVeigh served in the Royal Australian Navy (the Navy) from 9 February 1962 until 31 December 1971.  His operational service, which was also his only period of eligible service, was between 26 May 1964 and 26 June 1964 when he served on HMAS Parramatta (Parramatta) in the Far East Strategic Reserve. 

2.      On 1 April 2004 Mr McVeigh lodged a claim for acceptance of emotional behaviour (later diagnosed as anxiety disorder), hearing loss, tinnitus, conjunctivitis, dermatitis, and urticated eczema on the basis that these conditions were war-caused.  On 26 July 2004 the Repatriation Commission (the Commission), amongst other things, refused the claim as it related to contact dermatitis and other eczema and anxiety disorder on the basis that these conditions were not service related.  On 14 March 2005 the Veterans’ Review Board (the VRB) noted Mr McVeigh’s withdrawal of the claim as it related to conjunctivitis and varied the diagnosis of the other claimed conditions to post-traumatic stress disorder (PTSD) and urticated eczema.  The VRB affirmed the Commission’s decision to refuse acceptance of these conditions as war-caused.  On 28 April 2005 Mr McVeigh lodged an appeal to this Tribunal.  At the outset of the hearing Mr McVeigh withdrew the appeal as it related to urticated eczema and proceeded only in relation to the claim for PTSD.

issue before the tribunal

3.      The issue for determination is whether Mr McVeigh’s PTSD is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept this diagnosis of Mr McVeigh’s condition.

4. It is common ground that if Mr McVeigh is successful in his claim, the earliest date of affect, pursuant to s 20 of the VE Act, would be 1 January 2004.

background

5.      Mr McVeigh was born on 30 November 1944.  He joined the Navy on 9 February 1962 and served until 31 December 1971.  His period of operational service was from 26 May 1964 until 26 June 1964.

6.      Mr McVeigh asserts in the present proceedings that his experience of an accidental mortar firing from Parramatta which occurred on 23 June 1964 caused his PTSD.

legislative background

7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“9 War-caused injuries or diseases

(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; …”

8. As the applicant has performed operational service as defined in s 6 of the VE Act, the determination of whether his PTSD is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. These sections relevantly provide as follows:

“120 Standard 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.

…

(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.”

9. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made Statements of Principles (SoPs) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:

“(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.”

Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.

consideration

10. The claimed condition of PTSD is the subject of SoPs. I will set out the relevant provisions of the SoPs below. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97] in the following way:

“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 an 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.”

11.     In considering whether there is an hypothesis connecting Mr McVeigh’s condition with his war service, and in applying the relevant Deledio steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.

12.     As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed condition with Mr McVeigh’s operational service.  That hypothesis is that an accidental mortar firing resulted in Mr McVeigh suffering PTSD and accordingly that condition is war-caused.

13. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of PTSD and it is common ground that the relevant SoP is Instrument No 3 of 1999, as amended by Instrument No 54 of 1999. In these circumstances the second step of Deledio has been established. 

14.     I now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process.

15.     Under clause 4 of the relevant SoP at lest one of the factors set out in clause 5 must be related to eligible service rendered by Mr McVeigh. Mr McVeigh asserted that the relevant factor was factor 5(a):

“experiencing a severe stressor prior to the clinical onset of post-traumatic stress disorder”

Under the definitions described in clause 8 of Instrument No 3 of 1999, “experiencing a severe stressor” has been defined as follows:

“… the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the person’s, or another person’s, physical integrity.

In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as stressors include:

(i)threat of serious injury or death; or

(ii)engagement with the enemy; or

(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence.”

Assistance was provided by Mansfield J at first instance in Stoddart v Repatriation Commission (2003) 74 ALD 366 where he expressed the view that the test for “experiencing a severe stressor” is in two parts. First “would a reasonable person in the position and with the knowledge of the veteran objectively perceive the event relied upon as a threat of death or serious injury or to physical integrity of self or others?”; and second “If so, did the threat convey that perception to the veteran in the sense that the veteran subjectively experienced that threat?”.

16.     Mr McVeigh said that he had been serving as a cook aboard Parramatta and was attending to his duties in the ward room galley when he heard and felt explosions.  He described being scared at the time and not really knowing what was happening.  He said that he was able to look out of a small porthole and to observe some splashes in the water.  Mr McVeigh said that he had to hold on to something to stop being tossed off his feet.  He said that he then returned to his duties and shortly thereafter asked another seaman, who happened to be walking by, what had happened.  He said that the seaman told him that he did not know.  Mr McVeigh said that he went on with his duties but later that day travelled aft to dispose of some rubbish.  At this time he noticed that the mortar covers were broken and lying on the deck. 

17.     It was put to Mr McVeigh that he was only now using the word “scared” and had not done so when discussing the incident with Dr Ewer, preferring to use the word “surprised”.  Mr McVeigh was also asked why he did not use the words “scared” or “frightened” in relation to this incident when providing his evidence to the VRB.  Mr McVeigh said that he felt uncomfortable while giving evidence to the VRB.  He believed it was inappropriate for him to admit to feeling scared.  It was then pointed out to Mr McVeigh that he in fact used the word “scared” in reference to other incidents he described to the VRB.  Mr McVeigh said that he could not explain this apparent contradiction.

18.     A report of Writeway Research Service dated 21 November 2005 confirmed the accidental firing of live mortars on 23 June 1964.  The report stated that the mortars were accidentally fired ahead of the ship.  They were said to have been fired at maximum range, 1000 yards, and were set to explode at maximum depth, 1000 feet, which means that they would have exploded at that depth, 500-600 yards ahead of the ship.  The report’s author, retired Commodore P M Mulcare, expressed the view at paragraph 7 that:

“… the only indication of the explosions was a dull rumbling sound; there was no water disturbance that affected the ship, and it was not tossed around. … The veteran would have heard louder mortar explosions on other occasions when planned live mortar firings were conducted. …”

19. Mr McVeigh described a reaction of fear, then an ability to continue with his duties without any response which could be said to have been strongly affected by emotion. When considered along with all of the other material before me, I do not consider this reaction to be consistent with the asserted factor 5(a) of the relevant SoPs or with any other factors listed in the SoPs. In these circumstances the SoPs do not uphold the asserted hypothesis connecting Mr McVeigh’s PTSD with the circumstances of his operational service. As a result, the hypothesis is not reasonable and by virtue of s 120(3) of the VE Act, I must find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition is war-caused. In all of the circumstances I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the condition of PTSD was related to Mr McVeigh’s operational service.

20.     Although, in the light of my consideration of the third step in Deledio, it is not necessary for me to consider the fourth stage of the process explained in Deledio, I will state, that on the evidence before me, I am satisfied, beyond reasonable doubt, that Mr McVeigh has significantly exaggerated the physical affects of the accidental firing of the mortars and his reaction to the firing.  I find that Mr McVeigh did not perceive a threat of serious injury or death or engagement with the enemy.  In these circumstances, Mr McVeigh’s claim would not satisfy the fourth step of the process described in Deledio.

21.     The decision I have made does not mean that Mr McVeigh’s PTSD is not in some way related to other events which Mr McVeigh asserts occurred during his Navy service after his period of operational service, in particular during a later period during which he served in submarines.

conclusion

22.     The decision under review is affirmed.

I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         .............J Coulthard..........................................
  Associate

Date of Hearing  17 February 2006
Date of Decision  7 April 2006
Counsel for the Applicant         Mr C Swan
Solicitor for the Applicant          Swan Lawyers
Counsel for the Respondent     Mr A Crowe
Solicitor for the Respondent     DVA