Midgley and Repatriation Commission
[2007] AATA 2029
•10 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2029
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600216
VETERANS' APPEAL DIVISION ) Re ROGER CHARLES MIDGLEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss E.A. Shanahan, Member
Ms Regina Perton, MemberDate10 December 2007
PlaceMelbourne
Decision The Tribunal:
1. affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;
2. varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and
3. recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.
(sgd) E.A. Shanahan
Member
VETERANS’ AFFAIRS – post traumatic stress disorder (PTSD) accepted as war‑caused in February 1994 – decision subsequently revoked after a s 31 review– PTSD not war‑caused – whether claimed stressors supported by the whole of the material before the Commission and this Tribunal – Tribunal affirms the decision – re-assessment of other accepted disabilities after the hearing – pension at the rate of 70 per cent of the General Rate effective 1 January 2005.
Veterans’ Entitlement Act 1986 s 31, s 120
Repatriation Commission v Owens (1996) 70 ALJR 904
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Bull v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Codd (2007) 95 ALD 619
Repatriation Commission v Cooke (1998) 90 FCR 307
Davis v Repatriation Commission (1997) 74 FCR 577
Re Tratt and Repatriation Commission [1999] AATA 913
Re Tosswill and Repatriation Commission [1994] AATA 9496
Byrnes v Repatriation Commission (1993) 177 CLR 564
REASONS FOR DECISION
10 December 2007 Miss E.A. Shanahan, Member Ms Regina Perton, Member 1. On 4 November 1993 Mr R. Midgley lodged a claim for an increase in his disability pension on the basis that his post traumatic stress disorder (PTSD) was war‑caused. On 4 November 1994 the Repatriation Commission (the respondent) decided that Mr Midgley’s PTSD was war‑caused. On 9 September 2005 the respondent exercised its discretion to review the decision under s 31 of the Veterans’ Entitlements Act 1986 (the Act). On review, the respondent revoked the previous decision on the basis that the condition was not war‑caused. Mr Midgley sought review of the decision by the Veterans’ Review Board (VRB) and the VRB affirmed the decision on 2 December 2005. As Mr Midgley had other accepted disabilities his rate of disability pension was restored to 60 per cent of the General Rate from 3 September 2003.
2. Mr Midgley was represented by Mr C. Thomson of counsel, who was instructed by Mr P. Liefman, solicitor. Mr K. Rudge, an advocate with the Department of Veterans’ Affairs (the Department), appeared for the respondent. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents). The parties tendered the following documents:
For the applicant:
·Statement by Mr Midgley dated 1 October 2006 – Exhibit A1
·Report by Dr S. Varma dated 9 February 2007 – Exhibit A2
For the respondent:
·T-Documents – Exhibit R1
·Report of Dr R. Sykes undated but with a covering letter dated 26 October 2006 – Exhibit R2
·Report of Mr J. Macdonald dated 15 October 2006 – Exhibit R3
·Report of Mr Macdonald dated 7 July 2007 – Exhibit R4
·A large bundle of documents under cover of a letter dated 22 August 2006 – Exhibit R5
·Report of Dr K. Byrne dated 28 March 2007 – Exhibit R6
·Geographical illustration from the book entitled Royal Australian Navy in Vietnam by Dennis Fairfax – Exhibit R7
3. Mr Midgley, Mr Macdonald and Dr Varma gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
4. Mr Midgley enlisted in the Royal Australian Navy (the Navy) on 31 May 1964 for a period of nine years. He was almost 18 years old. He was discharged as unsuitable for naval service on 8 December 1967.
5. During his three and a half years in the Navy, Mr Midgley served on the HMAS Sydney (the Sydney) on six occasions. On five of these occasions he was involved in voyages to Vung Tau Harbour in South Vietnam with the Sydney, transporting troops and equipment to and from Australia. These periods constitute operational service. The periods were:
PERIOD
VOYAGE (DURATION)
ACHORAGE IN VUNG TAU HARBOUR (DURATION)
24 April 1966 to 18 May 1966
24 days
47 hours 5 minutes
25 May 1966 to 11 June 1966
17 days
44 hours 30 minutes
8 April 1967 to 22 April 1967
14 days
16 hours 30 minutes
28 April 1967 to 12 May 1967
14 days
8 hours 10 minutes
19 May 1967 to 14 June 1967
26 days
7 hours 32 minutes
The anchorage times are sourced from the Sydney’s Log of Operational Voyages.
6. When the claim for pension was lodged on 4 November 1993 and supported by the report of Dr S. Briggs consultant psychiatrist (T8), Mr Midgley described three stressful incidents:
·Seeing American serviceman blown up by a mine in the harbour at Vung Tau.
·A general fear of mines in the harbour.
·The lack of recognition by the Australian public for what servicemen had done in Vietnam.
Mr Midgley had told Dr Briggs that he no longer drank very much alcohol and smoked only a few cigarettes. In 1983 he started having emotional outbursts and crying fits. Dr Briggs diagnosed PTSD, partly related to Mr Midgley’s naval service. A delegate of the respondent accepted that Mr Midgley suffered from PTSD and that the condition was war‑caused. The delegate decided that Mr Midgley qualified for a disability pension at 20 per cent of the General Rate.
7.Over the ensuing 14 years Mr Midgley has reported other stressful incidents:
·Seeing the surrounding hills of Vung Tau Harbour napalmed.
·Being locked in a below the sea line tiller flat (the compartment within a ship which contains the steering gear), while on action stations.
·Herbicide spraying and burning of reeds around Vung Tau Harbour.
·Seeing home movies in Japan showing human body parts.
8. Mr Midgley suffers from several conditions that have not been accepted as war‑caused, namely a back injury, depression following the failure of his marriage and undiagnosed (in that extensive investigations have failed to reveal any abnormality) neurological symptoms.
9. Following his naval service, Mr Midgley completed the motor mechanic apprenticeship he had commenced prior to his enlistment and then worked for General Motors Holden dealerships. He joined the John Deere Agricultural Equipment Company, where he was employed until approximately 1972. Mr Midgley ceased working with John Deere after he sustained a back injury in the course of his employment. From 1973 to 1976 he worked as a tour coach driver and then as a hair stylist until 1988 or 1989. He then ceased work because of his back pain.
10. Mr Midgley’s pension was increased to 50 per cent of the General Rate on 17 October 1995. It was increased to 60 per cent on 2 February 1999 and was maintained at this rate until Mr Midgley challenged the respondent’s decision dated 22 November 2002 not to increase his rate of payment. On 22 December 2003 Mr Midgley’s advocate, Mr W. Bell from the Returned and Services League, requested that the respondent exercise its discretion in accordance with s 31 of the Act and review Mr Midgley’s rate of pension. In the course of this review serious doubts arose as to whether the severe stressors described by Mr Midgley had occurred. The respondent conducted further investigations and decided that his PTSD was not war‑caused. The respondent then revoked its decision of 4 February 1994.
EVIDENCE BEFORE THE TRIBUNAL
Mr Midgley
11. Mr Midgley’s claim is summarised under the heading Background to the Application. In his evidence in chief Mr Midgley was taken to each of the claimed stressful incidents.
TILLER FLAT INCIDENT
12. Mr Midgley was rostered to work in the tiller flat for two hours on three occasions. He, along with two more senior naval personnel, worked at the site in a 1.8 by 2.4 metre soundproofed area contained within a large area of approximately 5 by 5 metres. This manning of the tiller flat occurred when the Sydney was on defence alert while entering or leaving Vung Tau Harbour. Mr Midgley believed that during these periods he was locked in the tiller flat. Mr Macdonald’s subsequent evidence was to the effect that hatches to these areas were never locked.
BLOWING UP OF A BOAT WITH THE DEATH OF ITS OCCUPANTS
13. Mr Midgley gave evidence that he had performed a surveillance of the Sydney by cutter on one occasion. The cutter was manned by four seamen and their job was to inspect the harbour surrounding the Sydney for divers, mines and debris. During the course of this surveillance he had claimed to view the blowing up of a boat thought to be manned by US military personnel who were killed in the explosion. At the VRB hearing of 2 December 2005 Mr Midgley described having seen debris fly into the air and having distinguished two bodies. Before the Tribunal he agreed this occurred at several kilometres distance and stated that he had not seen any flying body parts. He had assumed that this vessel was manned by American servicemen.
THE NAPALM INCIDENT
14. Mr Midgley thought that the napalm incident had occurred on the second or third of his trips to Vung Tau Harbour. He said he had been sleeping on deck on a gun sponson and was awoken by a brilliant flash that he likened to an oxywelding torch. Initially he thought the ship was under fire but then realised the source of the flash was fire on land, some 20 kilometres distant from the Sydney. The memory of this event had come back to him after he had fought a bushfire in Tasmania in 1973 or 1974. Mr Midgley said he was driving a bulldozer pushing up firebreaks when the fire suddenly intensified and the fire-fighter beside him on that day had just been toasted. This was the only occasion when he relived the Vietnam napalm incident (transcript p46).
15. Mr Midgley had dreamt about the tiller flat and boat explosion incident from the time of their occurrence. He dreamt most nights and had done so since childhood. His dreams regarding the claimed stressful events only became intrusive in the mid-to-late 1970s. He could not be certain of the exact dates of onset of the dreams nor their frequency. Mr Midgley dated his sensitivity and exaggerated reaction to unexpected noise from an episode in 1967 when the Sydney hit a submerged container in Bass Strait (transcript p38). Mr Midgley perceived himself to be short tempered or short fused since his service and to have suffered from broken sleep due to the dreams he later experienced.
16. In cross‑examination by Mr Rudge, Mr Midgley clarified the size of the soundproof room within a larger space containing the Sydney’s accessory steering gear. The small room was separated from the After Steering Room by a sliding door and access to the steering room was via a three square foot, watertight hatch. It was put to Mr Midgley that it would be Mr Macdonald’s evidence that these hatches were never locked. Mr Midgley said so I was led to believe that it was probably locked (transcript p50). Mr Midgley could not explain why the incident was not raised in any of his applications to the respondent until 14 October 2005. He pointed out that all the submissions had been written by others on his behalf, as he was dyslexic and had trouble both reading and writing.
17. Mr Midgley estimated that in the patrol cutter incident, the cutter would be five kilometres from the Sydney at the maximum. The escort vessel he estimated to be four to six kilometres from the Sydney and it was patrolled by its own cutter. The explosion had taken place behind a bank of reeds near the shore line. Mr Midgley said he had assumed it was an American boat manned by Americans, although he did not see either a boat or any bodies (transcript p64).
18. In cross‑examination, Mr Midgley was referred to the history he had given Mr M. Marriot, a psychologist (T13, p39). Mr Midgley told Mr Marriot that he had watched napalm drops for days on end. He agreed that that was an exaggeration and that the number of drops observed were two or perhaps three.
19. Mr Midgley confirmed that he had been trying to effect discharge from the Navy for two and a half years prior to the actual date of discharge. He explained that when he enlisted he had been told he would be able to complete his mechanic training in the Navy. This did not eventuate and Mr Midgley became disenchanted with the service. He had many verbal confrontations with a Lieutenant Blenkinsopp; culminating in Mr Midgley punching this officer and confining him to a locker while he was unconscious. This episode precipitated his discharge as unsuitable on 8 December 1967. No charges of assault were laid as in the preceding 12 months Mr Midgley had made several submissions to Federal politicians and a Ministerial enquiry was afoot. (Details reported by Mr Macdonald at Exhibit R3).
20. The Tribunal ascertained that Mr Midgley was no longer taking anti‑depressive medication but he occasionally took a Valium tablet. He saw a psychologist in Ballarat monthly and saw his psychiatrist, Dr Varma, every four to six months. Mr Midgley had stopped smoking and had reduced his alcohol intake to six stubbies per week.
Mr Macdonald (Captain Retired)
21. Mr Macdonald served in the Navy from 1957 to 1990, including serving on the HMAS Vampire, the escort vessel for the Sydney on its first trip to Vietnam in mid‑1965. In his role as a military historian with Writeway Research Services, Mr Macdonald had prepared four reports relating to Mr Midgley’s service, dated 25 July 2004 (T30), 5 April 2005 (T39), 15 October 2006 (Exhibit R3) and 7 July 2007 (Exhibit R4).
22. In researching Mr Midgley’s naval service, Mr Macdonald had amassed information from over 30 sources, starting with the Sydney’s Report of Proceedings; and, where necessary, accessing the ship’s log held in the National Archives. On the Sydney’s first two trips to Vietnam the ship had two escorts and for the next three visits one escort vessel. Where there were two escorts, these anchored north and south of the Sydney at a distance of 1,500 yards to a maximum of 2,000 yards from the Sydney. In the case of a single escort, this vessel would anchor 1,500 yards north of the Sydney. Mr Macdonald provided a map of Vung Tau Harbour showing the ships usual anchorage sites (Exhibit R7). The patrol cutters surveyed the waters around their mother ship, searching for enemy divers, mines and any unusual activity. Constant radio contact was maintained between the vessels. Any unusual sightings would be reported to the bridge of the Sydney. No record could be found of the explosion described by Mr Midgley, in either the Sydney’s Record of Proceedings or its log, or the records of the relevant escort ships. Mr Macdonald said that given that the escort ship and the Sydney were both sitting higher in the water than a cutter, they would have been able to see or have better sight of any such explosion.
THE NAPALM INCIDENT
23. Given that while in Vung Tau Harbour the ships were at defence watches, Mr Macdonald stated that sailors should not be sleeping on deck on the gun sponsons, although such practice was both common and permitted while cruising on the way to Vietnam. The Sydney was normally anchored three kilometres from the closest Vietnam land mass. While there were no reports of napalm drops while the Sydney was anchored in Vung Tau Harbour, Mr Macdonald thought it was possible that Mr Midgley might have seen such a drop on the Long Hai Hills, 20 kilometres from the Sydney’s anchorage site. At that distance a napalm drop would appear as an eruption of flame, akin to a bushfire and not a flash (transcript p74).
THE TILLER FLAT INCIDENT
24. Mr Macdonald provided a very detailed description of the After Steering Compartment and its contained, small soundproof room. The After Steering equipment provided backup steering, in the event that the ships wheelhouse was hit by gunfire or bombed. The tiller flat was only manned on entering and leaving the harbour and usually involved one hour on each occasion. A detailed description and pictures of the access hatch were provided. Mr Macdonald was adamant that the hatches were never locked when sailors where in the compartment.
HERBICIDE SPRAYING
25. Mr Macdonald had found records of herbicide spraying of the Vung Tau peninsula, but none had occurred while the Sydney was in Vung Tau Harbour.
Dr Varma
26. Dr Varma has been Mr Midgley’s treating psychiatrist since August 2002. He provided the Department with three reports dated 12 November 2002 (T19), 30 November 2003 (T23) and 9 February 2007 (Exhibit A2). Copies of Dr Varma’s clinical notes up to 8 May 2006 were included in Exhibit R5.
27. Dr Varma first saw Mr Midgley a few days after Mr Midgley’s wife had left him. Mr Midgley was in a state of crisis – emotional, agitated and constantly crying. Dr Varma found him to be depressed and anxious and commenced treatment with Zoloft and Valium. Mr Midgley had remained totally pre-occupied with these family issues for the first three to four years of Dr Varma’s management of his psychiatric condition. Dr Varma had been aware that Dr Briggs had diagnosed PTSD in 1993 but in the early stages of treatment he accepted this diagnosis and did not probe the PTSD symptoms further. He later noted that Mr Midgley’s irritability, flashbacks, inability to cope with stress, emotionality, fear and helplessness were symptoms consistent with a diagnosis of PTSD, provided there had been a traumatic event. Dr Varma obtained the history of a boat explosion, but had no knowledge of the napalm or tiller flat incidents.
28. Mr Thomson outlined the details of the tiller flat incident and sought Dr Varma’s opinion. Dr Varma said I don’t see that it will be that stressful that you might have a feeling that it’s a life threatening situation (transcript p95). Dr Varma acknowledged that Mr Midgley had generalised anxiety about being in a war zone. In cross-examination, Dr Varma said that in the initial consultation, he had concentrated on Mr Midgley’s anxiety and depression secondary to his marriage breakdown. He had accepted the diagnosis of PTSD given that Mr Midgley was in receipt of the disability pension for this condition. It was not until the Department requested a report that he took a more detailed history of Mr Midgley’s naval service. He obtained the history on 21 October 2002 recording the stressful incidents as being spraying of herbicides and helicopters flying over all the time (transcript p98 and T19 p73).
29. Dr Varma agreed that if no herbicide was sprayed while Mr Midgley was in Vung Tau Harbour, the diagnosis of PTSD could not be sustained. In his most recent report of 9 February 2007, Dr Varma had concluded …if there was no traumatic event, there cannot be a post traumatic stress disorder (Exhibit A2). He confirmed that opinion in his evidence and said that, for the spraying of the herbicide to be a severe stressor, it should involve direct physical contact with, or occur within a radius of 500 meters from, the person concerned.Dr Varma opined that the noise of helicopters flying overhead was not a sufficiently traumatic experience to support a diagnosis of PTSD.
30. Dr Varma had no previous knowledge of Mr Midgley’s experience of fighting a bushfire in 1973 until the Tribunal informed him of Mr Midgley’s evidence. He identified this event coupled with the death of Mr Midgley’s colleague at the site, as being capable of meeting the requirement of a severe stressor in the diagnosis of PTSD.
DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL
Dr Varma’s Clinical Notes
31. The entries in these notes are predominantly concerned with Mr Midgley’s depression and anxiety relating to his marriage breakdown, property settlements, child custody, difficulties selling and buying real estate, intervention orders obtained by his ex-wife, his assessment to pay child support and the changes to his disability pension and status. The notes confirm that the only stressful incidents reported to Dr Varma were those of seeing herbicides sprayed in Vietnam and the noise of helicopters flying overhead. Mr Midgley also expressed his disappointment and stress caused by the Australian civilian population’s adverse response to Vietnam veterans.
Dr Byrne
32. Dr Byrne, psychologist, assessed Mr Midgley on 15 November 2006 and 14 December 2006 at the request of the Department. A very detailed 38‑page report dated 28 March 2007 was provided (Exhibit R6). The stressful incidents described during these consultations were:
·The tiller flat incident.
·The boat explosion and seeing someone killed in this incident.
33. Mr Midgley placed the onset of his psychological problems as being in the late 1970s or early 1980s. These symptoms included nightmares from which he awoke crying and sweating, being easily startled, irritability and emotional volatility, depression associated with his separation and divorce, and difficulties with memory and concentration.
34. Based on the history provided by Mr Midgley, Dr Byrne diagnosed PTSD with alcohol abuse. However, Dr Byrne stated that if the Tribunal accepts that the stressful incidents described had not occurred, Mr Midgley’s psychiatric symptoms could not be attributed to his operational service.
Dr J. Tudehope
35. Dr Tudehope provided the Department with a psychiatric assessment dated 23 November 1998 (T16). Mr Midgley told Dr Tudehope that he witnessed bombings while in Vietnam and experienced various stressful incidents (unnamed) on the troop ship to Vietnam which made him fearful and tense.
36. Mr Midgley described himself as having a violent temper that had resulted in fights while in the Navy and being charged with assault on three occasions after his service ended. He had however avoided any prison sentence. At the time of the interview Mr Midgley denied current nightmares.
37. Dr Tudehope diagnosed a personality disorder preceded by symptoms of PTSD which were now no longer evident.
RELEVANT LEGISLATION
38. Section 31 of the Act provides that:
31(1)Where:
(a)the time has not expired for making application to the Board under section 135 for a review of a decision of the Commission with respect to:
(i)a claim for a pension in accordance with section 14;
(ii)an application for an increased pension, or for a pension, in accordance with section 15; or
(iii)an application for attendant allowance under section 98; or
…
(4) Where the Commission is satisfied that evidence before the Commission when it made a decision was false in a material particular, the Commission may, in its discretion, review the decision and, if it varies the decision, it may approve as the date as from which the variation shall operate a date, which may be a date before or after the commencement of the review, considered by the Commission to be appropriate in all the circumstances.
…
(6A) Where the Commission is, under subsection (6), satisfied that the rate of a pension payable to a veteran is higher than it should be by reason that the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is less than 10 per centum (including nought per centum), it shall cancel the pension that was payable to the veteran.
(6B) The cancellation of a pension payable to a veteran under subsection (6A) does not affect any decision of the Commission, the Board or the Administrative Appeals Tribunal that is in force determining that the veteran is suffering from a war-caused injury or a war-caused disease, or both.
(7) Where a determination is made under subsection (6):
(aa)by reason of the Commission having regard to a matter that affects the payment of a pension or attendant allowance in the circumstances specified in paragraph (6)(a); or
(a)by reason of the refusal or failure of a person to comply with a provision of this Act, other than:
(i)subsection 127(4) in relation to a notice under paragraph 127(1)(f); or
(ii)subsection 128(4); or
(b)by reason that an amount has been paid by way of pension or attendant allowance that, but for the false statement or misrepresentation of any person, would not have been paid;
a date earlier than the date of the determination may be specified in the determination as the date as from which the cancellation, suspension or decrease, as the case may be, is to take effect.
(7A) Subsection (7) does not apply to a determination made under subsection (6) for a reason set out in paragraph (6)(c).
39. The parties agree that Mr Midgley’s claim relating to PTSD was lodged and determined prior to 1 June 1994, therefore Statements of Principles do not apply. The standard of proof that the Tribunal must apply is set out in s 120 of the Act. The relevant sections provide:
120(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.
…
(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.
SUBMISSIONS
40. At the commencement of the hearing Mr Thomson sought clarification of the grounds for cancellation of Mr Midgley’s disability pension for PTSD, and in particular whether the respondent relied upon s 31(4) or, in the alternative, s 31(6) relating to later information. Mr Rudge said that the Tribunal was not reviewing the s 31 decision but the new decision arising from this review and relied on the Federal Court decision in Davis v Repatriation Commission (1997) 74 FCR 577 which stated that the exercise of the s 31 power was not reviewable by the Tribunal. In Davis, Sundberg J said at 582 that:
… A decision by the Commission upon a review under s31 in relation to a pension or attendant allowance is not subject to review by the Board or the AAT unless the Commission cancels or suspends the pension or attendant allowance, or varies the decision, reviewed by the Commission: … When a decision made by the Commission has been reviewed by the Board under s135 and affirmed, varied or set aside, application may be made to the AAT for a review of the decision under s175.
41. At the resumed hearing of 9 August 2007 Mr Rudge again relied on the judgement of Sundberg J above and the Tribunal’s decisions in Re Tratt and Repatriation Commission [1999] AATA 913 and Re Tosswill and Repatriation Commission [1994] AATA 9496. Both those decisions indicate that the Tribunal is not charged with a review of the methodology or reasons for a s 31 decision but is charged with the merits review of a decision resulting from this review.
42. Mr Thomson noted that the respondent has a broad discretion with respect to the date of cancellation or increase in pension and the cancelling of Mr Midgley’s pension from the date of the decision in 1993, when his PTSD was accepted as being war‑caused, would be a gross injustice given that the respondent had not reviewed Mr Midgley’s pension until 2005.
43. Mr Thomson then proceeded to submissions regarding the claimed traumatic incidents on which the claimed PTSD is based. Mr Thomson said that:
1.The tiller flat incident
Despite Mr Macdonald’s evidence, Mr Midgley believed that the hatch in the aft steering compartment was locked. Mr Thomson relied on the decisions in Stoddart v Repatriation Commission [2003] FCA 334 and Woodward v Repatriation Commission [2003] FCFA 160 and the subjective-objective approach as rendering Mr Midgley’s perception, that the hatch was bolted, reasonable.
2.Napalm Strafing
Despite there being no record, in the Sydney’s Record of Proceedings or the archives, of napalm strafing within 20 kilometres of the Sydney while it was at anchorage in Vung Tau Harbour, while Mr Midgley was on board, Mr Thomson said that the area in question, the Long Hai Hills, was frequently subjected to such attacks.
3. The Boat Explosion Incident
Mr Thomson submitted that there were other accounts by veterans, of boats being blown up in the Vung Tau Harbour and such incidents never being officially reported, especially when Australian defence personnel were not involved.
44. Mr Thomson argued that with respect to all three incidents it was wrong to suggest that the evidence given by Mr Midgley was false (transcript of 9 August 2007 p5).
45. Mr Thomson next addressed the medical evidence before the Tribunal. He said that Dr Varma had accepted the diagnosis of PTSD, made in 1993 by Dr Briggs, and had therefore only briefly addressed the question of PTSD in earlier reports, until his latest report stating the diagnosis of PTSD could only have been made on the basis of a traumatic incident.
46. Mr Thomson contended that the Writeway Reports showed only that there was no corroboration of the claimed traumatic incidents occurring during operational service.
47. Mr Thomson challenged the respondent’s submissions with respect to new information, distinguishing the decision of Re Tratt, in which new expert evidence or, more correctly, re-consideration of the original facts had resulted in the Tribunal rejecting the original medical data and diagnosis. Mr Thomson submitted that this type of expert dissection of the facts did not pertain in Mr Midgley’s case.
48. Mr Thomson referred the Tribunal to s 119 of the Act; particularly with respect to the effect of the lapse of time, the availability of witnesses, the failure of authorities to report or note incidents and the effect of the passage of time on the memory of occurrences on the part of the applicant.
49. Mr Thomson noted that the diagnosis of the PTSD was not disputed by either party or any doctor; except that the psychiatric opinions were subject to the proviso that if there was no traumatic event during service, then the PTSD was not war‑caused.
50. Mr Thomson identified the primary hypothesis as that as a result of the explosion of a boat in the Vung Tau Harbour Mr Midgley has developed a post traumatic stress disorder (transcript of 9 August 2007 p12). However, at page 13 of the transcript he said:
…
The hypothesis is based on an assertion not supported by the material [the respondent’s assertion] In my submission that’s not correct that’s misunderstanding the situation. It’s admitted that the boat explosion did not occur, okay that can be submitted, there were not dead bodies and napalm bombing did not occur within visual range of Sydney. Being locked up in a tiller flat was not an accurate description of that particular duty and like the references to herbicide spraying formed no part of the history in earlier psychiatric reports. All those matters go to the final stage. The third stage of Deledio [as] it has now become, the situation the High Court was addressing is, if those facts are accepted can it be said that there is a reasonable hypothesis that those events – those incidents have led to his disability.
In my submission, they are not untenable. The medical evidence concurs that they could well be a cause for his disability. They probably – they are a cause of his disability unless somebody is satisfied that they didn’t occur and it’s certainly not fanciful given that there is respectable medical opinion put forward by both parties that such a hypothesis is reasonable…
RESPONDENT’S SUBMISSIONS
51. Mr Rudge first addressed the s 31 decision and reiterated that the Tribunal was not required to review the process of cancellation of Mr Midgley’s pension. The respondent had considered both s 31(4) and s 31(6) based on the Writeway Report that had not been before the respondent in 1993.
52. With respect to the diagnosis of PTSD Mr Rudge submitted that Dr Briggs, who diagnosed Mr Midgley’s condition in 1993, had attributed its development, in some degree, to his war service. Whereas Dr Tudehope, in 1998, diagnosed an enduring personality change was probably preceded by symptoms of Post Traumatic Stress Disorder which are not now evident (T16). Dr Byrne had considered in detail the factors in Mr Midgley’s background which would pre-dispose him to developing a psychological problem and could lead to such a person having problems with authority figures. Dr Byrne concluded that a diagnosis of PTSD related to service was the correct diagnosis, provided the severe stressors alleged by Mr Midgley took place. This proviso arose out of the Writeway Reports.
53. Dr Varma had assumed the diagnosis of PTSD was correct when he first saw and treated Mr Midgley. Mr Rudge submitted that Dr Varma’s evidence revealed that Mr Midgley had ceased drinking alcohol to excess many years previously. Neither Dr Varma nor Dr Byrne, nor indeed the respondent, had been made aware of Mr Midgley’s involvement in a bushfire in 1973 as this event was first described by Mr Midgley in his evidence before the Tribunal.
54. Mr Rudge submitted that the balance of the evidence points to PTSD and it points to PTSD associated with fire (transcript of 9 August 2007 p17).
55. Mr Rudge relied on the decisions of Bushell v Repatriation Commission (1992) 175 CLR 408, Repatriation Commission v Owens (1996) 70 ALJR 904, East v Repatriation Commission (1987) 16 FCR 517, Repatriation Commission v Bey (1997) 79 FCR 364 and Byrnes, but primarily on that of Bushell, as to the approach to be taken by the Tribunal. He summarised the approach as requiring the Tribunal to consider all the material before it and then decide if a reasonable hypothesis had been raised.
56. Mr Rudge concluded that the whole of the material did not point to the hypothesis raised by the applicant. It was a mere possibility and the hypothesis was too remote, not tenable and in some respects fanciful.
57. This submission was based on the evidence of Dr Varma that the helicopters flying overhead would not be accepted as a stressor for PTSD diagnostic purposes as outlined in the Diagnostic and Statistical Manual of Mental Disorders, (Fourth Edition) (DSM IV). Dr Varma stated that the herbicide spraying could be such a stressor if Mr Midgley had been directly exposed, that is if he had been present less than 500 metres from the spray. As the only herbicide spraying, albeit not reported, could have occurred at equal to or more than 20 kilometres distance, Mr Rudge submitted that this incident, if it occurred, did not meet the traumatic incident – severe stressor requirements. Mr Macdonald’s research had shown that none of the recorded herbicide sprayings occurred while the Sydney was in Vung Tau Harbour.
58. Mr Rudge related that Dr Varma had first reported the boat explosion episode in February 2007, based on the history Mr Midgley had given him, that American servicemen were blown up by a mine and that he, Mr Midgley, had witnessed this event. Dr Varma was unaware of the fire-fighting incident in 1973, wherein the fire‑fighter in close proximity to Mr Midgley was toasted.
59. Mr Rudge said that the history given to the psychologist, Mr Marriot, of watching napalm drop for days on end was incorrect; as Mr Macdonald’s research had showed that there were three napalm drops on 20 April 1967, all being greater than 45 kilometres from Vung Tau Harbour, although it was possible that a napalm drop took place at the Long Hai Hills, 20 kilometres from the Sydney’s anchorage. At a distance of 20 kilometres such an explosion would not result in a flash in the face (transcript of 9 August 2007 p20). Mr Rudge concluded that the hypothesis based on this event was too remote.
60. Mr Rudge contended that the claim relating to the watching of home movies developed in Japan, had not been subject to any psychiatric analysis and was considered untenable by the respondent, and should be considered so by the Tribunal.
61. With respect to the tiller flat incident, Mr Rudge brought to the Tribunal’s attention that it was first reported by an RSL Advocate on 14 October 2005, mentioned in the history given by Mr Midgley to Dr Byrne in late 2006 and considered by Dr Byrne in his report on 28 March 2007. Mr Macdonald’s evidence had completely refuted the claim that the aft steering compartment containing the tiller flat was ever locked when naval personnel where in this area. On the evidence, Mr Midgley had manned the tiller flat on three occasions each of one hour duration, while the Sydney either entered or left Vung Tau Harbour. During these times the crew were at defence and not action stations.
62. In conclusion, Mr Rudge submitted that Mr Midgley’s experiences in the Tasmanian bushfire did amount to a stressor of such severity to result in the development of PTSD and founded his flashbacks to previous fire.
63. In reply, Mr Thomson stressed that in East the Court had held that the respondent would have to negative claims beyond reasonable doubt and that the applicant had to establish something by way of a causal link which fell short of proof of the link.
64. Based on East, Mr Thomson submitted that it was a reasonable hypothesis to put the case that if the events as described occurred, then Mr Midgley suffered PTSD which was war‑caused; and the Tribunal had to ask itself if it could be satisfied beyond reasonable doubt that the events did not occur.
65. In his reply to the respondent’s submissions, Mr Thomson contended that if the advanced severe stressor incidents were not accepted as founding a diagnosis of PTSD, an alternative diagnosis to be considered by the Tribunal would be that of a generalised anxiety disorder.
66. At the conclusion of the Hearing Mr Rudge sought and was granted leave to obtain a re-assessment of Mr Ridgley’s accepted disabilities. This re-assessment, in particular that relating to Mr Midley’s chronic obstructive airways disease, resulted in the estimation of the pension payable being 70 per cent of the general rate.
TRIBUNAL’S DELIBERATIONS
On the Evidence
67. Mr Midgley’s claim of 4 November 1993 for pension was accepted by a Delegate of the respondent based on Dr S. Briggs’ psychiatric assessment and without further enquiry. The respondent granted a pension at 10 percent of the general rate for PTSD and Alcohol Abuse.
68. The s 31 review of the pension rate was requested by Mr Midgley’s RSL Advocate, Mr Bell, on 22 December 2003. It was supported by the report of Dr Varma dated 30 November 2003. As a result of this request further investigation was undertaken and Writeway Research Services was asked to research the then claimed severe stressors experienced by Mr Midgley during his short periods of operational service. On 22 December 2003 the claimed traumatic/stressful incidents were described as:
·seeing the spraying of herbicide in Vietnam,
·noise of helicopters flying overhead all the time, and
·the attitude of the Australian population to Vietnam veterans.
69. In the initial application of 1993, the stressful incidents were described as:
·seeing some American servicemen blown up by a mine in Vung Tau Harbour, quite close to where he was passing,
·the fear of mines,
·general anxiety at being in a war zone, and
·the lack of recognition for what had been done by Vietnam veterans and the negative attitude of Australian civilians toward such veterans.
70. In 2005 Mr Midgley reported further stressful instances, namely being locked below the sea-line in the tiller flat and the strafing/burning of shoreline reeds by napalm. The tiller flat incident was described in the history given to Dr Byrne (Exhibit R6) in late 2006 but was not reported to his treating psychiatrist Dr Varma.
71. The Tribunal notes Mr Midgley did not commence having nightmares relating to the boat explosion incident until the mid-1970s; and in his evidence stated that these nightmares occurred after his bushfire experiences in 1973 where the bushfire flames had rekindled memories of the boat explosion incident.
72. In his evidence before the Tribunal, Mr Midgley denied he had seen any bodies or even a boat in the so-called boat explosion incident as this explosion had occurred some four to six kilometres from the cutter in which he was patrolling. He had assumed a boat had hit a mine and that the crew of the boat had been American servicemen.
73. Mr Midgley described his previous reports of seeing napalm drops day after day as an exaggeration. He estimated he had seen napalm drops on two or three occasions at a distance of over 20 kilometres. Likewise, any spraying of herbicide and burning of reeds had occurred several kilometres away from the Sydney’s anchorage.
74. With respect to the tiller flat incident, first reported 40 years after the claimed event, Mr Midgley appeared to accept Mr Macdonald’s evidence that the hatch to the aft steering compartment was never locked when the compartment was manned, but maintained that he had believed it to have been locked.
75. Mr Midgley could not explain why he had never told any of the four psychiatrists he had seen of his involvement in the fighting of a major bushfire in Tasmania in 1973 or 1974 or that this bushfire had resulted in the death of another fire-fighter in close proximity to himself.
76. Mr Macdonald had performed in-depth research into Mr Midgley’s five trips in the Sydney to Vung Tau Harbour. He found no corroborating evidence of the boat explosion, napalm drops or the spraying of herbicides while Mr Midgley was in the harbour. He provided detailed descriptions of the tiller flat, the geography of the Vung Tau Harbour and the distances between the Sydney’s usual anchorage spot and the shoreline and surrounding hills. Despite the absence of any record to that effect, he could not rule out the possibilities of napalm drops on the Long Hai Hills at least 20 kilometres from the Sydney’s anchorage.
Psychiatric Evidence
77. All four psychiatrists diagnosed symptoms compatible with PTSD. In 1993 Dr Briggs made such a diagnosis attributing causation in part to Mr Midgley’s service (Emphasis added). In 1998 Dr Tudehope diagnosed a personality disorder preceded by PTSD symptoms which were no longer evident. Dr Varma, the treating psychiatrist, treated Mr Midgley for anxiety and depression related to the breakdown of his marriage and accepted Dr Briggs’ diagnosis of PTSD without exploring this diagnosis further. He did not delve into Mr Midgley’s PTSD symptoms, until asked to do so by the respondent in 2003, at which time he confirmed the diagnosis and that it was war-caused. The traumatic incidents considered by Dr Varma in 2003 were spraying of herbicides in Vietnam, the stress of helicopters flying over at all times and the negative sentiments of the Australian civilian population with respect to Vietnam veterans. In his later report dated 9 February 2007 (Exhibit A2) Dr Varma added the boat explosion incident, wherein Mr Midgley reported that American servicemen where blown up in a mine explosion. Dr Varma concluded that if there was no traumatic event there could not be a post traumatic stress disorder. Having been unaware of the 1973 bushfire incident, Dr Varma was asked to comment on whether this event would equate to a severe stressor as required by a DSM IV. In his opinion this event involving the death of another fire-fighter sited very close to Mr Midgley, satisfied that requirement.
78. Dr Byrne also diagnosed PTSD with the proviso that this could only be war‑caused if the claimed stressors actually occurred.
79. The standard of proof with respect to diagnosis is to the Tribunal’s reasonable satisfaction (s 120(4)). The Tribunal is satisfied from the medical evidence that the correct diagnosis is PTSD. The question whether the PTSD is war-caused or whether an alternative diagnosis of a generalised anxiety disorder should be considered, is a separate one, to be dealt with later.
APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE TRIBUNAL
80. The parties agreed that as Mr Midgley’s PTSD was accepted as war-caused with effect from 4 August 1993 the standard of proof is that provided by s 120(1) and s 120(3), as interpreted by the High Court and Federal Court of Australia, prior to the introduction of s 120A and the requirement of the Statements of Principle (SoP).
81. Mr Rudge submitted that the most authoritative decision was that of the High Court of Australia in Bushell where the Court held:
To be "reasonable", a hypothesis must possess some degree of acceptability or credibility. It is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind that constitute the relevant incidents of the veteran's service. Nor is it decisive that the medical or scientific opinion that supports the hypothesis has little support in the medical profession or among scientists. However, a hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature, nor if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. The case will be rare whence it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.
In his judgement Brennan J said (at 425):
Unless the material before the decision-maker, unaffected by any notion of onus of proof or by any presumption, raises a reasonable hypothesis of a causal connexion between the morbid condition and the veteran's operational service, the decision-maker is directed to form the relevant negative conclusion specified in par (a), (b) or (c). [s 120(3)] I shall return presently to discuss what is meant by a "reasonable hypothesis" in the context of sub-s (3), but it is clear that any reasonable hypothesis raised by the material must relate to the circumstances of the instant case, that is to say, it must relate to the morbid condition and to the circumstances of the veteran's operational service which the decision-maker finds to exist. (Obiter Dictum)
and at 426 he said:
But if, at the end of the day, when all reasonable investigation has been completed and the parties have been given an opportunity to supplement the results of the investigation with whatever relevant material they may wish to lay before the decision-maker, there is no material tending to show that a particular morbid condition exists or that a relevant circumstance of operational service occurred, the decision-maker may be satisfied beyond reasonable doubt — if it be proper to draw the inference — that there is no sufficient ground for finding that a material morbid condition exists or that a relevant circumstance of operational service occurred. In the nature of things, that would be an exceptional case. … unless the material raises such an hypothesis, the decision-maker must be satisfied beyond reasonable doubt that there is no causal connexion. … If the material does raise a reasonable hypothesis, sub-s (3) [of s 120] does not operate and the ultimate determination of a causal connexion must be made on the whole of the material pursuant to [s 120] sub‑s (1).(Obiter dictum).
82. Brennan J agreed with the definition of reasonable hypothesis in Re Dell and Repatriation Commission (1986) 9 ALD 596, and the definition of the Full Court in East.
83. In his judgement Brennan J referred to the differences between Tribunal and Court proceedings; in particular, that the proceedings of the Tribunal where in substance the review is inquisitorial. He said:
Each of the Commission, the Board and the AAT is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the AAT may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings.
84. Some nine months later, the High Court of Australia handed down it decision in Byrnes. The Court held (at 177 CLR 564):
… that the Commission should approach the determination of a claim under s 120 in the following way: (1) sub-s (3) is first applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury, disease or death with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving the hypothesis beyond reasonable doubt.
and referred to Bushell.
The High Court stated at 570:
Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis.
The Court went on to state that:
The passages in the joint judgment in Bushell that indicate that once the "raised facts" raise a reasonable hypothesis that is the end of the matter unless the raised facts are disproved should not be taken to suggest that proof beyond reasonable doubt of a further, inconsistent fact will not be sufficient, under s 120(1), to preclude a finding by the Commission that the injury was war-caused. The remarks of the majority in Bushell were directed specifically to a situation where the raised facts giving rise to the hypothesis covered "the whole of the material" bearing on the hypothesis. They were not directed to a case where the veteran relies on part only of the material before the decision maker.
85. In Hardman v Repatriation Commission [2005] FCAFC 83 the Federal Court said:
… There is a risk that the Tribunal’s primary role of fact finding can be diverted into convoluted hypothetical reasoning by too mechanical an application of the Deledio steps in any given case. Those steps, as such, are not found in the Act. There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3). Indeed, in many cases there would be no error of law involved in disposing of a case under s 120(1) without adverting to s 120(3)…
86. Based on these authorities it is open to the Tribunal to proceed directly to a consideration of Mr Midgley’s application under s 120(1).
87. Mr Rudge has submitted that a reasonable hypothesis was not raised as the connection to service by way of the claimed incidents was negated by the evidence before the Tribunal that those incidents did not occur. In the alternative, he argued that if the hypothesis was raised after consideration by the Tribunal of all the material before it, the hypothesis was unreasonable as it was too remote or too tenuous.
88. Mr Thomson has submitted that the material before the Tribunal does point to a hypothesis, despite his comment at page 13 of the transcript of 9 August 2007, as previously reported in paragraph 50 of these reasons.
89. Having examined all the material before it, and accepting that Mr Midgley’s successful claim for PTSD being war-caused occurred in 1993, the Tribunal has proceeded to consider the matter under s 120(1). The Tribunal finds that the claimed severe stressors did not meet the requirements of DSMIV for PTSD and alcohol abuse and thus those conditions were not war-caused. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making an alternative decision.
90. For the sake of completeness, the Tribunal has also considered the applicant’s claim under s 120(3). Having examined and considered all the material before it, the Tribunal concludes that some of this material, but not all, points to a possible hypothesis relating the applicant’s PTSD and alcohol abuse (the latter no longer being in existence) to some of the traumatic or stressor incidents claimed. These incidents have been identified as: seeing a boat explode in Vung Tau Harbour with presumably American defence personnel being killed in close proximity to the veteran while conducting cutter duties; seeing, over many days, napalm bombing of the shorelines (later corrected to the Long Hai Hills some twenty kilometers from the Sydney’s anchorage); and an episode wherein the applicant believed he was locked in a tiller flat on the Sydney on three occasions, each for periods of one hour. The Tribunal notes that these incidents have been reported over a period of some 13 years and have varied in their detail. The tiller flat incident was not raised until late in 2006, some 40 years after the incident was claimed to have occurred.
91. In his evidence Mr Midgley denied that he had seen a boat explode on the shoreline of the harbour and that he had seen any defence personnel injured or any body parts ejected into the air. He acknowledged that the napalm drop had occurred at least 20 kilometers away from the Sydney’s anchorage and that the herbicide spraying as reported had been several kilometers distance from the Sydney’s anchorage. With respect to the tiller flat incident, Mr Midgley accepted the evidence of Mr Macdonald, but maintained that he had thought that the hatch had been locked.
92. The Writeway Research Report essentially said that none of these events had occurred. Mr Macdonald did however state that there could have been some napalm bombing by New Zealand Forces while Mr Midgley was in harbour in Vung Tau. However, such napalm strikes occurred in the Long Hai Hills, 20 plus kilometers from the Sydney’s anchorage.
93. The Tribunal finds these claimed severe stressors or traumatic incidents to be too remote or too fanciful to satisfy the requirements of s 120(3). The Tribunal relies on the evidence of Dr Varma and Dr Byrne. Dr Varma is the treating psychiatrist. When acquainted with all the evidence before the Tribunal, Dr Varma opined that none of the claimed incidents equated to a severe stressor as defined in DSM IV. While Dr Varma negated the claimed incidents as being of a sufficient severity to found a diagnosis of PTSD, he regarded the bush-fire incident of 1973 as being of sufficient severity as a stressor to found a diagnosis of PTSD.
94. The Tribunal finds that the claimed stressful or traumatic incidents as related by Mr Midgley either did not occur or did not meet the required level of severity to be classified as a severe stressor. This conclusion is based primarily on the medical evidence before the Tribunal, and the fact that Mr Midgley, in the evidence he gave before the Tribunal, resiled from or modified the description of the severity of the stressors that he had previously given.
95. The Tribunal affirms the decision under review.
96. The Tribunal has elected to address the issue raised by Mr Thomson, in his submission in reply, with respect to the alternative diagnosis of general anxiety disorder. While it was open to the Tribunal to consider this diagnosis, none of the psychiatrists had entertained or addressed this alternative diagnosis; nor was it possible for the Tribunal in its inquisitorial role to put this alternative to Dr Varma. (see Hill at [47]).
97. The Tribunal notes Dr Varma’s opinion that the bushfire incident in 1973 was a stressor of sufficient severity as to found a diagnosis of PTSD.
98. Mr Midgley’s claimed stressors have varied over the past 14 years with the tiller flat episode first being raised in 2006. The Tribunal was informed that Mr Midgley was unable to provide corroborating evidence as the seamen with whom he served were now deceased. There appeared to be no point in the Tribunal exercising its inquisitorial powers under s 37, s 38 and s 33(1)(c) of the Administrative Appeals Tribunal Act 1975 to obtain further information.
99. The Tribunal agrees with the respondent’s submission that it is not required to consider the procedural steps taken by the respondent in the s 31 review and that the Tribunal’s jurisdiction is only attracted by the decision resulting from such review; and in this instance that is the decision by the delegate of the respondent dated 9 September 2005, as affirmed by the VRB on 2 December 2005.
100. Section 31(7) of the Act provides for variation in the date of effect of the respondent’s decision following a s 31 review. The Tribunal recommends that the respondent vary the date of effect of the reversal of the decision dated 4 November 1994 to 2 December 2005.
DECISION
101. The Tribunal:
1.affirms the decision dated 9 September 2005 to the extent that it finds that the applicant’s PTSD is not war‑caused;
2.varies the decision dated 9 September 2005 with respect to the assessment of the applicant’s other accepted disabilities by increasing the rate of disability pension to 70 per cent of the general rate, with effect from 1 January 2005; and
3.recommends that the respondent reconsider the date of effect of the reversal of the decision of 4 November 1994.
I certify that the one hundred and one [101] preceding paragraphs are a true copy of the reasons for the decision of:
Miss E.A. Shanahan, Member
Ms Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 2 and 8 August 2007
Date of decision: 10 December 2007
Counsel for applicant: Mr C. Thomson
Solicitor for applicant: Peter J. Liefman
Counsel for respondent: Mr K. Rudge
Solicitor for respondent: Department of Veterans’ Affairs
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