Midavaine and Repatriation Commission
[2008] AATA 545
•27 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 545
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1815
VETERANS APPEALS DIVISION ) Re FRANKLIN MIDAVAINE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg Senior Member
Dr S H Toh Member
Date27 June 2008
PlaceSydney
Decision The decision under review is affirmed. ...................[sgd].................
Ms N Isenberg
Presiding Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that Post Traumatic Stress Disorder with co-morbid Major Depression were war-caused – consideration of Statement of Principles relating to posttraumatic stress disorder and depressive disorder – essential element of the hypothesis not made out - decision under review is affirmed.
Veterans’ Entitlements Act 1986 (Cth) - sections 5D, 9, 13, 120, 120A, 196A and 196B
Statement of Principles – Instrument No 58 of 1998 concerning depressive disorder
Statement of Principles – Instrument No 27 of 2008 concerning depressive disorder
Statement of Principles – Instrument No 3 of 1999, as amended by Instrument No 54 of 1999, concerning posttraumatic stress disorder
Statement of Principles – Instrument No 5 of 2008 concerning posttraumatic stress disorder
Fogarty v Repatriation Commission (2003) 37 AAR 363
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Budworth (2001) 116 FCR 200
Benjamin v Repatriation Commission (2001) 70 ALD 622
Gorton v Repatriation Commission (2001) 63 ALD 723
Drew v Repatriation Commission [2008] FCA 537
Repatriation Commission v Stoddart (2003) 134 FCR 392
Gerzina v Repatriation Commission [2004] FCAFC 96
Budworth and Repatriation Commission [2000] AATA 127
Delahunty v Repatriation Commission (2004) 38 AAR 511
Repatriation Commission v Warren (2007) 95 ALD 606
Repatriation Commission v Warren (2008) 101 ALD 222
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) FCR 331
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
Repatriation Commission v Bey (1997) 79 FCR 364
Youngnickel v Repatriation Commission [2004] FCA 1691
Re Robertson and Repatriation Commission (1998) 50 ALD 668
RepatriationCommission v Cornelius [2002] FCA 750
Repatriation Commission v Hill (2002) 69 ALD 581
REASONS FOR DECISION
27 June 2008 Ms N Isenberg Senior Member
Dr S H Toh Member
1. The decision under review is the decision of the Repatriation Commission (“the respondent”) dated 16 June 2006 as affirmed by the Veterans’ Review Board (“the VRB”) on 16 March 2007 that refused the claim by Mr Midavaine (“the veteran”) that his Post Traumatic Stress Disorder (“PTSD”) was war-caused.
ISSUE BEFORE THE TRIBUNAL
2. There was no dispute that Mr Midavaine suffers from Depressive Disorder. His case though was that his psychiatric condition meets the diagnostic criteria for both PTSD and Major Depression and should thus be described as PTSD with co-morbid Major Depression, and that it was caused by stressors experienced on operational service in Vietnam. The Respondent’s case was that the veteran suffers from Depressive Disorder, unrelated to his operational service.
3.The issues to be considered by the Tribunal are:
·What is/are the psychiatric condition(s) from which Mr Midavaine suffers?
·Is/are Mr Midavaine’s psychiatric condition(s) related to his service?
BACKGROUND
4. Mr Midavaine served in the Australian Army between 1 October 1969 and 30 September 1971. His “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the VE Act” and “the Act”) was from 27 August 1970 to 29 July 1971 in Vietnam.
LEGISLATIVE BACKGROUND
5. 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 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;
…
6. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. As the veteran had operational service, the determination of whether his claimed condition is war-caused is to be made by applying sections 120(1) and 120(3) of the VE Act. Those subsections require us to find that the veteran’s condition was war-caused unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
8. The Repatriation Medical Authority (“RMA”) was established under section 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”): section 196B of the VE Act. The SoP sets out the factors, one of which, as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) if it arose out of, or was attributable to, that service; or
…
EVIDENCE
9. In evidence before us were the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Act 1975 (“the T-docs”). The following documents were tendered at the hearing:
Exhibit A1 Statement of Franklin Midavaine, dated 29 October 2007
Exhibit A2 Statement of Franklin Midavaine, dated 24 January 2008
Exhibit A3 Report of Dr Dinnen, dated 2 August 2007
Exhibit A4 Military licence of Franklin Midavaine
Exhibits A5 Various photos provided by Franklin Midavaine taken in
to A13 Vietnam
Exhibit R1 Report of Dr Roberts, dated 7 January 2008
Exhibit R2 Report of Dr Roberts, dated 23 January 2008
Exhibit R3Supplementary report of Dr Roberts, dated 27 February 2008
Exhibit R4Research report from Writeway Research, dated
20 December 2007
Exhibit R5 Clinical notes of Dr Kramer
Exhibit R6Kaplan and Sadock’s Comprehensive Textbook of
Psychiatry, 8th edition, (extract pages 1728-1739)
Exhibit R7 DSM-IV-TR 4th edition, (extract pages 463-467)
In addition to these documents, we were provided with extensive written submissions by both parties after the hearing.
10. In his claim for PTSD, dated 30 January 2006, it was written on Mr Midavaine’s behalf that his symptoms were: “cannot tolerate pressure, rare nightmare, indecision, depression, headaches (and) sleeplessness”. On the claim form, in response to the question “how do you believe your service caused, contributed to, or aggravated (your) disability”, he referred to “traumatic experience in Vietnam. Emotional distress reawakened in Bourganvile (sic) undertaking missionary work during civil war. I satisfy SOP 3/1999 at 5(a)”. On the claim form it is also written that he first became aware of the symptoms and signs of PTSD in 1970-71.
11. Mr Midavaine was asked to tell us if there were any particular incidents in Vietnam that worried him at the time. He commenced by describing an incident in which he was fired upon, when driving through Hoa Long, and felt that his life was threatened.
12. His troop was supplying the expertise for building construction and the South Vietnamese were providing the labour. He had to drive in a Land Rover to collect the workers from their camp and return them in the afternoon. Afterwards he would drive back home to the base at Nui Dat. Ordinarily the route he took was via the main roads. Mr Midavaine said that he had been shown a shortcut through a village which he took on one occasion at dusk. He knew the area to be sympathetic to the Viet Cong and that there had been an engagement there shortly before he arrived in Vietnam.
13. As he was going through the village at low speed he heard loud, heavy calibre gunfire close by on his right. As there was no sign of military activity in the area, he assumed he was the target. He had his weapon with him in the vehicle, but as he was on his own he decided “that the best thing to do was to hit the accelerator and hope for the best”. In evidence he said that it was “scary” because he was all alone and felt as though he was about to get shot.
14. He said he doubted if, on his return to base, he checked his vehicle. He was sure he boasted about the incident, but did not officially report it.
15. Mr Midavaine identified several other incidents in Vietnam that worried him at the time:
·He said it was a major concern to learn that a mate had been hit with a grenade and explained that the mate and two other sappers had been carrying out humanitarian work and he was “absolutely amazed and shocked” to find him in hospital. Mr Midavaine said his friend’s legs were “shredded up” by a hand grenade and he showed Mr Midavaine the wounds. Mr Midavaine went on to say it was a reason to be more concerned than before.
·Mr Midavaine described sentry duty at night as “not at all pleasant”. He said it was “really scary” at night in the wet season when there was no stars or moon. He said he couldn’t see or hear anything and faced Hao Long, where there had been a major battle about a week before he arrived in Vietnam. He said it was “very scary” sitting there on a dark night. He said the enemy could sneak up behind you and slit your throat and he was “scared stiff”. Mr Midavaine said that when it was raining he couldn’t hear anything and he imagined the Viet Cong were coming up or around them and it was up to him to stop them.
·Mr Midavaine saw a damaged truck that had run over a mine. He said this was a major concern because he was often in trucks and the danger of mines was drummed into them.
·Mr Midavaine said that on one occasion he witnessed tracer fire coming over the base and did not know who was firing. He felt on heightened alert and worried that an attack may be coming, but nothing happened.
Post Vietnam
15. After his return from Vietnam Mr Midavaine married and he and his wife bought a house on a small banana plantation near Coffs Harbour. He also became a Christian which he believed helped him to cope with the stresses that he had experienced in Vietnam.
16. On the farm he thought about his Vietnam experiences although he tried to forget. He was conscious that it was an unpopular war, and that, “in the end, it was all a waste of time”.
17. He related an event when he saw headlights approaching their isolated farmhouse. He said he “went into a panic” and grabbed his rifle, which he had had since he was a child, and sat under a bush waiting to see what was going to happen. He thought that there was some kind of danger and his immediate reaction was to defend himself and his wife. He was just about to start shooting in the air to scare the intruders, when they started “tin-kettling” - a prank.
18. He started studying theology and did three years full-time study to complete his Bachelor’s degree and then, a Masters degree by correspondence. He became the mission director for his church in Australia on a voluntary part-time basis. He and his wife, who were considering missionary work, were asked to go to Bougainville, which he knew to be in a state of civil war. They went at first to examine feasibility. The whole province where they were to work had been devastated. Infrastructure had been destroyed and the people were severely traumatised. He said that from the outset he was shocked at the similarity with Vietnam. There were armed soldiers at the airport carrying weapons similar to those he had used in Vietnam 25 years before. The machine guns and the helicopters were the same as those in Vietnam.
19. Notwithstanding this, they decided to go ahead with the missionary work. They travelled to Bougainville a number of times, and moved there in 1998. They enjoyed the work, and loved the people and made a lot of friends there, but there were always problems, stresses and threats. Mr Midavaine said “it was like living in a war zone all the time”. The situation was very insecure; there was lawlessness and they felt under threat. However, they had a job to do; serving God, and they lived by faith that they would be all right.
20. In about May of 2005 they left Bougainville. The catalyst to their leaving came when there was a contractual dispute with a person who was violent, irrational and threatening. Mr Midavaine said he felt “the heart just went out of me”. He knew the police to be ineffective. He and his wife decided to leave Bougainville, and he felt unable to make sensible decisions anymore. He said that “suddenly everything kind of fell apart, the wheels came off”.
21. There had been earlier threats against him and his family. There were indirect threats regarding the building of the college itself, and there was clan rivalry. On one occasion he was threatened by a man waving a machete in his face through the car window. Once, in 2002 or 2003, when Mr Midavaine was away, a man threatened Mrs Midavaine and said he was going to kill them and burn their vehicle. Mr Midavaine said that it was traumatic to come home and find out that his wife had been threatened.
22. There were many stressful incidents in Bougainville and Mr Midavaine agreed that the seven years were fraught with dangers and continual stresses which had a cumulative effect.
23. Even while in transit in Port Moresby on the way home Mr Midavaine said he felt a “huge load ha[d] gone because [he] was no longer responsible for [the] work … and [would] no longer face the threat[s]”. On their return to Australia, he thought he would have a bit of a rest because he was “really stressed out” and anxious. He expected to take a few months’ rest, and then work as a pastor of a church until he died. Instead he “went downhill” and was unable to function and went into a “big depression”. Mr Midavaine was unable to tolerate crowds or loud music. He also could not cope with people whinging about how bad everything was in Australia when they had no idea how good they had it. He missed the work in Bougainville, because he regarded it as his life’s work. He felt worthless. Fortunately, he had some advisers in the church who counselled him. He refused medical treatment but his wife made an appointment for him to see a doctor after a few months. The GP prescribed Efexor but there were side effects (which may actually have been malaria) and he stopped the treatment. It was not until 2006 that he saw a psychologist (about four times) and talked about issues relating to his time in Bougainville and Vietnam.
24. Mr Midavaine said that he had been impatient and snappy with people, including his wife. Last year they separated briefly because he was unable to handle the stress at home but his wife talked him into coming back home. She had recommended he attend the Vietnam Veterans’ Counselling Service (“VVCS”) and through the VVCS he undertook an anger management course.
25. Until that time Mr Midavaine said he had generally had no contact with other Vietnam veterans, nor anything to do with the Army. While he had worn his army uniforms working on the farm, he would not wear them on the street nor would he go to Anzac Day parades.
26. Asked whether his experience in Bougainville was more stressful than his experience in Vietnam, he said that Vietnam was so long ago and he had chosen to forget it; whereas Bougainville was “much more real”. The incidents in Bougainville were “quite life threatening” but in Bougainville he had his faith and he was there for a purpose.
27. Currently Mr Midavaine has thoughts of Vietnam daily because of “this process”.
28. The current deployment of soldiers to Iraq and Afghanistan does not bother him. When he hears fireworks – like an artillery gun - he is startled and he immediately thinks of Vietnam. Another concern is when he sees a foreign object on the road, as that brings back his training about booby traps and mines, and he will swerve to avoid it. He has times when he feels worthless.
29. He was asked about the history he had given to Dr Delaforce. He agreed that he did not tell Dr Delaforce that he thought he was being shot at when he heard the gun fire (while driving through Hoa Long), notwithstanding that he knew he was seeing him for the purposes of his PTSD claim. Mr Midavaine said the reason he did not tell him in more detail how frightened he was at that time, was because he might have forgotten it. Alternatively, he might have mentioned it but the doctor may have omitted its inclusion in his report. Mr Midavaine said at the time he saw Dr Delaforce he was very depressed.
30. As to why he gave Dr Delaforce a long history of the experiences in Bougainville, he said those experiences were “the real stressors”. The experiences in Bougainville were more recent and uppermost in his mind, whereas the experiences in Vietnam were something he had suppressed for so long that he probably didn’t think they were very relevant.
31. He explained in relation to the comment he made to Dr Dinnen, “I reckon that most of us guys suffered more trauma coming home than we did over there”, that it was more upsetting on returning from the unpopular war in Vietnam than any of the stress that occurred while serving in the war. He thought he coped pretty well up until a few years ago.
Medical evidence as to diagnosis
32. Evidence was given by consultant psychiatrists Drs Anthony Dinnen and John Roberts. We also had before us the reports of those specialists.
33. Medical evidence relating to the applicant’s mental state was also available from the report of Dr Delaforce, consultant psychiatrist dated 31 March 2006 and the clinical notes of Dr Kramer, Mr Midavaine’s GP.
34. Dr Dinnen diagnosed Mr Midavaine as suffering PTSD with co-morbid major depression, whereas Dr Roberts and Dr Delaforce made a diagnosis of major depressive disorder, single episode, in partial remission.
35. In a medical report dated 31 March 2006, Dr Kramer, referred to Mr Midavaine’s stress of “driving alone through unknown territory with South Vietnamese (sic)”. On the same date, Dr Delaforce reported that one particularly stressful incident in Vietnam was when Mr Midavaine was driving a motor vehicle alone to return to camp after taking local workers to their home. Dr Dinnen, in his report, thought Mr Midavaine’s failure to mention to Dr Delaforce that he had been fired upon was symptomatic of trying to suppress memories and an inability to recall details. In his evidence he said that suppressing memories is the most effective way of coping with trauma and depression often affects memory.
36. Drs Kramer and Delaforce did not explain why Mr Midavaine found the experience of driving the vehicle stressful. Dr Dinnen recorded a history of him coming back at “dark” one night when he went through Hoa Long, a village a mile from Nui Dat where there had previously been “a big fight” with the Viet Cong. He recorded Mr Midavaine saying that when he drove through the village alone gun fire opened up. He hit the accelerator. “It scared [him]”. Mr Midavaine also told Dr Roberts about believing he had been fired on when going through Hoa Long, when asked whether there were any distressing circumstances in Vietnam.
37. Dr Roberts referred in his evidence to passages from DSM-IV-TR and the Comprehensive Textbook of Psychiatry, in support of his opinion that a person with PTSD will inevitably exhibit physiological symptoms.
CONSIDERATION
38. Only after it is determined that a veteran is suffering from a particular condition does the question arise as to whether the condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363. Therefore our first task is to determine if Mr Midavaine suffers from a psychiatric condition, and, if so, what is that condition? Questions as to whether an applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act: Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200; Benjamin v Repatriation Commission (2001) 70 ALD 622.
39. We must apply the current Statement of Principles unless the Statement of Principles in force when the claim was first determined is more beneficial: Gorton v Repatriation Commission (2001) 63 ALD 723.
Does Mr Midavaine suffer from a psychiatric condition?
40. Section 5D of the Act defines “disease” as:
… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development);
Post traumatic stress disorder
41. The Statement of Principles concerning PTSD, Instrument No. 5 of 2008, defines the condition as:
…
(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): (Tribunal’s underlining)
(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.
…
42. This definition is derived from the diagnostic criteria set out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), “the accepted touchstone”: Drew v Repatriation Commission [2008] FCA 537. Each of the doctors referred to DSM-IV and Dr Dinnen, in particular, dealt at length with the diagnostic criteria.
43. While Mr Midavaine identified several incidents in Vietnam that “worried him at the time”, the main submission advanced on Mr Midavaine’s behalf related to the incident while driving though Hoa Long. It was submitted that if we were to accept that Mr Midavaine was shot at then he clearly was confronted with an event that involved threatened death or serious injury.
44. We were prepared to accept on the balance of probabilities, that when driving through Hoa Long at dusk shots were fired in the vicinity of Mr Midavaine’s vehicle, such that he experienced an event that involved a threat to his physical integrity. We have come to this view notwithstanding that Mr Midavaine failed to mention the shots to Drs Kramer and Delaforce, preferring his candid evidence and the explanation of Dr Dinnen as to the likely reason for its previous omission. The historical material notes that Hoa Long was sympathetic to the Viet Cong and a major source of supplies and recruits. There was much communist activity, largely at night. There were contacts and ambushes to the west of the village, and it was acknowledged that the “by-pass” road skirted the western edge of the village. While it was recorded in the historical material that “these actions where (sic) too far away from Route 2 (sic) to pose any threat to someone driving on Route 2 through the village”, it was unclear if Route 2 was the “by-pass” referred to. However, the proximity of the road to a known area of contact, especially in the evening, leads us to the view, on the balance of probabilities, that Mr Midavaine was either in fact shot at or had a reasonable apprehension that he was being shot at: Repatriation Commission v Stoddart (2003) 134 FCR 392. Mr Midavaine knew what gunfire sounded like, that the area was sympathetic to the Viet Cong, and he had not previously been on that road alone at dusk.
45. We come then to the second limb of criterion (A), that is whether the person’s response involved intense fear, helplessness, or horror. Determination of this issue is a question of fact: Gerzina v Repatriation Commission [2004] FCAFC 96.
46. It was submitted on Mr Midavaine’s behalf that being scared for your life, as described by him to Dr Dinnen, satisfies the requirement for a response involving intense fear.
47. Mr Midavaine described it as the incident “where [he] felt that [his] life was threatened”. Mr Midavaine‘s evidence was that on hearing the gunfire he assumed he was the target. His immediate response was to accelerate so as to leave the area as quickly as possible. He described the situation, in his evidence, as “scary”. In his statement dated 29 October 2007 he wrote that he was “startled” by the sound of gunfire.
48. On return to base, only one mile away, he doubted if he checked his vehicle for damage. He boasted about the experience but did not officially report it.
49. The Tribunal in Budworth and Repatriation Commission [2000] AATA 127 described this criterion as requiring “an extremely high level of reaction to extremely traumatic stressors”.
50. While Mr Midavaine’s description of the event as “scary” and that he was “startled” by the gunfire is understandable, we are reasonably satisfied that his response lacked the intensity required in the diagnostic criterion A(ii) in DSM-IV. On his evidence, we are satisfied that his reactions do not constitute a response which involved intense fear, helplessness, or horror.
51. As to seeing the damaged truck that had run over a mine, Mr Midavaine’s counsel conceded in submissions that the description of experiencing “major concern” probably does not qualify as the sort of response required by the definition in A(ii) of the PTSD SoP. We agree. Similarly, being on “heightened alert” after witnessing tracer fire and being “scared stiff” on sentry duty at night which was “not at all pleasant”, are responses which we find do not involve intense fear, helplessness, or horror.
52. Counsel for Mr Midavaine did not strongly press Mr Midavaine seeing his mate who had been hit by a grenade as satisfying paragraph A of the definition. Mr Midavaine’s evidence was that he was “absolutely amazed and shocked” to find his mate in hospital. In his medical report of 31 March 2006 Dr Kramer referred to “[Mr Midavaine’s] friends wounded in conflict” as stressors. On the same date Dr Delaforce, in his report of 31 March 2006 referred to the incident as one “more stressful than usual”. Dr Dinnen noted in his report of 2 August 2007 that Mr Midavaine thought he was alright when he was in Vietnam but then saw a mate who had been blown up by a hand grenade. When Dr Roberts asked whether there were any distressing circumstances in Vietnam, Mr Midavaine referred to a mate who had been blown up by a hand grenade and seeing the scars to the lower limbs. None of that evidence leads us to a view, on the balance of probabilities, that his response was one of intense fear, helplessness, or horror.
53. We accept that people express their feelings in many ways and with varying degrees of openness or inhibition: Delahunty v Repatriation Commission (2004) 38 AAR 511. However in respect of none of the claimed stressors did Mr Midavaine have an “extremely high level of reaction” (per Budworth). Therefore, the answer to the question of whether the diagnosis was one properly made having regard to DSM-IV must be answered in the negative, per Repatriation Commission v Warren (2007) 95 ALD 606. Further, because the SoP contains the same diagnostic criterion in respect of response, we are not satisfied that Mr Midavaine’s condition is in accordance with the definition required there: Repatriation Commission v Warren (2008) 101 ALD 222.
54. There were detailed submissions about other diagnostic criteria, the Applicant’s counsel being especially critical of the views of Dr Roberts. It was unnecessary for us to address these criticisms as they related to other diagnostic criteria.
55. Having come to that view, it was not necessary for us to consider causation.
56. We were obliged to consider SoP No 3 of 1999, as amended by No 54 of 1999: Gorton v Repatriation Commission (2001) 63 ALD 723. However, the definition of PTSD in that SoP is in the same terms as the current SoP, and the outcome in applying that SoP is also the same.
Depression
57. All the medical evidence agreed that Mr Midavaine suffered depression (although Dr Dinnen thought it was co-morbid with PTSD). However, Drs Delaforce and Roberts thought the depression was single episode in partial remission.
58. We are satisfied on the balance of probabilities that Mr Midavaine suffers depression.
Is there a connection between Mr Midavaine’s depression and his operational service in Vietnam?
59. Where a SoP exists we must apply the test prescribed by section 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). ….
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.
Steps 1 and 2: is there a hypothesis and is there a SoP?
60. There were very brief submissions on Mr Midavaine’s behalf in relation to depression. The hypothesis advanced was that the condition was co-morbid with Mr Midavaine‘s war-caused PTSD, therefore depression, too, was war-caused.
61. Having regard to the submission in relation to PTSD, it is reasonable to infer a hypothesis, that the stressful events in Vietnam gave rise to his depression.
62. It was not in dispute that the current SoP relevant to the veteran’s claim is:
· Statement of Principles concerning Depressive Disorder No 27 of 2008
63. The Tribunal must apply the relevant Statement of Principles currently in force unless the Statement of Principles in force when the claim was first determined is more beneficial: Repatriation Commission v Gorton (2001) 65 ALD 609.
Step 3: does the hypothesis conform to the template in the SoP?
64. Under clause 5 of the SoP, subject to clause 7 of the SoP, at least one of the factors set out in clause 6 must be related to the veteran’s operational service.
65. The first hypothesis relied on, factor 6(a) (vii), is as follows:
… having a clinically significant psychiatric condition within the two years before the clinical onset of depressive disorder;
…
66. A “clinically significant psychiatric condition” is defined as :
… any Axis I disorder of mental health that attracts a diagnosis under DSM-IV-TR which is sufficient to warrant ongoing management, which may involve regular visits (for example, at least monthly), to a psychiatrist, clinical psychologist or general practitioner
PTSD is an Axis 1 condition.
67. The alternative hypotheses we identified were factors 6(a)( ii) or (iii):
(ii) experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii) experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder; or
The SoP defines a 1A and 1B stressor respectively as:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b) being subject to a serious physical attack or assault including rape and sexual molestation; or
(c) being threatened with a weapon, being held captive, being kidnapped, or being tortured;
"a category 1B stressor" means one of the following severe traumatic events:
(a) being an eyewitness to a person being killed or critically injured;
(b) viewing corpses or critically injured casualties as an eyewitness;
(c) being an eyewitness to atrocities inflicted on another person or persons;
(d) killing or maiming a person; or
(e) being an eyewitness to or participating in, the clearance of critically injured casualties;
68. This step entails determining whether each relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us, “but without making any findings of fact at this stage of the process”. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
69. At this stage we must consider all of the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
70. A “reasonable hypothesis” involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364.
71. The question for us at this stage is therefore: is there material pointing to each element of one or more of the relevant factors? Each element of a hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the Statement of Principles requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
72. As to factor 6(a)(vii), we have already found that Mr Midavaine did not have PTSD. There was no material pointing to him having any other clinically significant psychiatric condition.
73. Each of the other relevant factors requires us to consider if there is material pointing to a date of clinical onset which, at the latest, would be by 29 July 1973, two years after the end of Mr Midavaine’s service in Vietnam, allowing for the events relied on to have occurred at the very end of his service – the approach most advantageous to Mr Midavaine, given that the precise dates of the incidents nominated by Mr Midavaine are unclear.
74. Dr Delaforce noted that Mr Midavaine’s first counselling was marriage guidance in the mid 1980s, and again in the early 1990s. There was one session of counselling on his return from Bougainville. Dr Delaforce considered the clinical onset of depression to be 2005 on the basis that his GP had prescribed anti-depressants from that time.
75. The notes of Mr Midavaine’s GP date from 1982. There is no mention of any distress or psychological disturbances. The notes suggest the prescriptions of Temazepam in July 2000 and July 2001. No reasons were given in the notes, but usually Temazepam is prescribed as a sleeping pill. In August 2002 the GP notes that Mr Midavaine described himself as having a “breakdown” due to family stresses. At that time he was given information about depression. The next entry of the medical notes was in November 2005, where Mr Midavaine was diagnosed as having depression and was prescribed anti-depressants by his GP.
76. There is no definition of the term “clinical onset” in the SoPs or in the VE Act. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 where the Tribunal concluded at 670 that:
…there is a clinical onset of a disease, either 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.
77. That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius [2002] FCA 750.
78. The accepted definition of clinical onset referred to in Robertson and Cornelius relies on the classification by a doctor of symptoms upon presentation by the patient. There was no medical evidence suggesting that the condition was diagnosed at any time close to Mr Midavaine’s military service.
79. There is material before us that points to the clinical onset of depression no earlier than 2000, and more likely 2002 or 2005. Therefore, we have come to the view, without making a finding of fact, that an essential element of the hypothesis relying on factor 6(a) (i) or (ii) is not pointed to by the material before us.
80. We applied the same process to Statement of Principles 58 of 1998, the SoP in force when the claim was first determined. The relevant factors in that SoP are factors 5(b) and 5(c), and state as follows:
(b) experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder; or
(c) having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder; or
Severe psychosocial stressor is defined in the SoP 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), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
81. As discussed above, the material before us does not suggest that there was clinical onset of depression until 2000, at the very earliest. Therefore it cannot be said that an essential element of the hypothesis in either factor 5(b) or 5(c) of SoP 58 of 1998 can be made out on the material presented to the Tribunal: Repatriation Commission v Hill (2002) 69 ALD 581.
82. A reasonable hypothesis therefore has not been raised. It follows, by virtue of section 120(3) of the VE Act, we must find beyond reasonable doubt that there is no sufficient ground for determining Mr Midavaine's depression was war-caused.
DECISION
83. For the above reasons, we affirm the decision under review.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr S H Toh, Member:
Signed: ………[sgd]……………………..…..
Associate
Date of Hearing 14 – 15 April 2008
Date of Decision 27 June 2008
Counsel for the Applicant Mr C Colbourne
Solicitor for the Applicant Ms A Toliopoulos
Advocate for the Respondent Ms J Warmoll
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