Moseley and Repatriation Commission
[2007] AATA 1898
•29 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1898
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S 200600206
VETERANS' APPEALS DIVISION ) Re PAUL MAYNARD MOSELEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J G Short (Member)
Dr E T Eriksen (Member)Date29 October 2007
PlaceAdelaide
Decision The Tribunal varies the diagnosis of post traumatic stress disorder (“PTSD”) to one of generalised anxiety disorder. The Tribunal sets aside the decision under review in relation to PTSD (as varied); alcohol dependence; alcohol hepatitis and gynaecomastis and in respect of those conditions, substitutes new decisions that the applicant suffers from generalised anxiety disorder; alcohol dependence; alcohol hepatitis and gynaecomastis and that these conditions are war-caused with effect from 28 February 2005.
In all other respects, the entitlement decision is affirmed. The Tribunal remits the issue of assessment following the acceptance of the above-mentioned conditions to the Repatriation Commission. The Tribunal adjourns consideration of original assessment decision sine die.
..............................................
J G SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – claim that PTSD, alcohol dependence, alcohol hepatitis and gynaecomastis are war-caused – consideration of statement of principles – assertion of stressors in the form of mortar explosions – entitlement decision varied and set aside
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A, 196
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 27
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Hancock (2003) 37 AAR 383Statement of Principles Instrument No 101 of 2007
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 76 of 1998REASONS FOR DECISION
29 October 2007 Mr J Short (Member)
Dr E T Eriksen (Member)1. Paul Moseley served in the Australian Army from 26 August 1969 until 25 August 1975. His operational service in Vietnam, which was also eligible war service, was from 4 September 1971 until 24 February 1972. Mr Moseley’s eligible defence service was from 7 December 1972 until 25 August 1975.
2. On 30 May 2005 Mr Moseley lodged a claim for medical treatment and pension for incapacity from post traumatic stress disorder (“PTSD”) with alcohol abuse, anxiety, panic disorder, hearing loss and tinnitus, chronic skin rash and lumps on skin and liver complaint. These conditions were later diagnosed as PTSD, alcohol dependence, bilateral sensorineural hearing loss, seborrhoeic dermatitis, alcohol hepatitis and gynaecomastis. On 4 January 2006, the respondent (the Commission) refused the claim for hearing loss on the grounds that there was no incapacity found. The same decision refused acceptance of the other conditions on the grounds that they were not war-caused.
3. By decision dated 26 May 2006 the Veterans’ Review Board (“VRB”) consented to the withdrawal of the application for review in respect of seborrhoeic dermatitis. The VRB affirmed the decision in relation to bilateral sensorineural hearing loss on the ground that there was no condition present and affirmed the decision in relation to PTSD, alcohol dependence, alcohol hepatitis and gynaecomastis on the basis that these conditions were not war-caused. The VRB also affirmed the pension assessment decision which, amongst other things, assessed pension at 100 percent of the general rate to operate from and including 19 April 2005. The assessment decision related to conditions of bilateral pterygia, tinnitus and chronic obstructive airways disease.
4. At the outset of hearing Mr Moseley’s counsel indicated that Mr Moseley did not seek to contest the decision as it related to bilateral sensorineural hearing loss. The Tribunal has considered the evidence in relation to this condition and was not satisfied that the condition exists. The decision in relation to sensorineural hearing loss is affirmed.
5. The applicant made no submissions in respect of the decision to assess pension at 40 percent of the general rate with effect from 28 February 2005 and at 100 percent of the general rate from and including 19 April 2005. As the Tribunal, for the reasons set out below, has now accepted other conditions as war-caused and has remitted the consideration of an appropriate rate of pension to be paid in the light of that decision, to the Commission, the Tribunal will adjourn sine die further consideration of the assessment decision.
6. The remaining issues before the Tribunal therefore are:
(a)whether Mr Moseley suffers from PTSD or from any other condition which may answer his claim for acceptance of PTSD and if so, whether PTSD and/or any other psychiatric condition is war or defence caused; and
(b)Whether Mr Moseley suffers from alcohol dependence, alcohol hepatitis and/or gynaecomastis and if so whether any of these conditions are war or defence-caused.
7. As the claim for acceptance of war-caused conditions was lodged on 30 May 2005, if Mr Moseley is successful in relation to any of his entitlement claims, then the earliest date of effect, pursuant to s 20 of the Veterans’ Entitlements Act 1986 (the VE Act) would be 3 months prior to the date of lodgement, in this case 28 February 2005.
applicant’s case
8. Mr Moseley contended that he suffers from PTSD, or in the alternative, generalised anxiety disorder, along with alcohol dependence, alcohol hepatitis and gynaecomastis and that these conditions are war-caused. It was common ground that if Mr Moseley were found to suffer from a war-caused alcohol dependence, then related conditions of alcohol hepatitis and gynaecomastis should also be found to be war-caused as stemming from alcohol dependence. The Tribunal was unable to find a relevant Statement of Principles (“SoP”) relating to either alcohol hepatitis or gynaecomastis. In these circumstances the Tribunal is required to consider whether a reasonable hypothesis exists connecting these last-mentioned conditions with Mr Moseley’s service either directly or through a causal link with alcohol dependence. Mr Moseley’s local medical officer indicated in written material before the Tribunal that Mr Moseley suffers from alcohol hepatitis and gynaecomastis and that these conditions have been caused by his alcohol dependence. For the reasons provided below, the Tribunal has found that alcohol dependence is war-caused and that a reasonable hypothesis exists linking the related conditions to Mr Moseley’s war-caused alcohol dependence. Consequently, the Tribunal determines that alcohol hepatitis and gynaecomastis are war-caused.
paul moseley’s evidence
9. Mr Moseley said that he joined the Army at age 18 in 1967. He said that on his first night in Vietnam, that is on 4 September 1971, he was immediately sent for a medical and then to the Australian base at Nui Dat. He said that at midday he was shown the barracks and then told that he and others were on duty. He said that he and 13 other personnel made up a stores unit and part of their duty was to guard a perimeter of the base, approximately one kilometre long. Mr Moseley said that the perimeter comprised two lines, the first made of rolled wire. This line was flared and guarded with claymores. A second line was further out. Mr Moseley said that on his first night in Nui Dat he was required to attend for picket duty at a site located approximately 100 metres inside the first perimeter. He said that his post was a sand-bagged hole with a wooden roof. Mr Moseley said that he was on picket duty with one other man who appeared to be unconscious most of the time. He said that at about 8:00 pm he heard explosions and could see flashes and the movement of dirt. He said that he kept his head down. He said that this “attack” lasted for about ten minutes. He and his companion were then told that a mortar attack had occurred and that they should return to camp. He thinks that the explosions were about 50 metres in front of his position. Mr Moseley said that this was a frightening event and that his whole life changed after this incident. He said that there was not a lot of alcohol available at that time but this later changed and he the consumed perhaps six to eight cans of beer a day. He said that he did not drink much before his service in Vietnam. In cross-examination Mr Moseley said that he would have expected this event to have been recorded, however he was not surprised that it was not, as at that time the Nui Dat base was preparing to be down-sized or closed.
10. Mr Moseley said that approximately one week after he commenced service at Nui Dat he was working at a cleaning bay when he heard distant explosions. He located his camera and took some pictures. He said that he thinks the explosions were enemy mortar. He then left the area. He said that he probably would have told Mr Stephen Benfield about this incident but no action was taken and to his knowledge it was not investigated.
11. Mr Moseley said that he had been stationed in Vung Tau from late 1971 and that in about January 1972 he was again stationed on picket duty facing the South China Sea and guarding an area of approximately 200 metres. He said that he heard explosions and rockets and saw flares. He said that he was not sure at the time what they were but was told they were mortars. He said that this incident was very frightening but not as frightening as the incident which occurred on his first night in Nui Dat. In cross-examination Mr Moseley referred to this incident as including observations of gun-ships which were the source of the flares. He thinks that their use must have been recorded somewhere. He said that gun-ships were not uncommon but on this occasion it appeared to be a USA helicopter. Mr Moseley said that he was probably told later that the explosions had been mortars and that he probably went back to his billet afterwards. He cannot recall if a siren sounded and does not think he reported the incident to anyone. He said that he cannot be sure but does not think that the explosions were from claymores. He said there were about three explosions. Mr Moseley said that he still has dreams of these incidents.
dr olney
12. Dr Olney was a Doctor of Education. He died during the period between providing his evidence and the finalisation of the decision. He said that from May 1971 he served in Nui Dat and then from October 1971 at Vung Tau. He said that he was the officer commanding Mr Moseley’s unit. He said that there had been a number of mortar attacks. Explosions were usually from home-made rockets or from mortars. He said that in September or October 1971 there were perhaps two or three such explosions or attacks each week. He said that on one particular night his unit was required to take cover for virtually the entire night as mines were exploding in the area of the perimeter. He said that his group were firing tracer bullets. He said that there was some incoming fire but he thought that the enemy were “blundering around in our mine-field.”
13. Dr Olney explained that his group was colloquially known as “blanket counters.” They were not trained to do the sort of work they were required to do. He said that Mr Moseley and nearly all the people who served under him were stressed. Dr Olney was referred to entries he made in the Group Log. He explained the absence of a specific reference to incoming mortars by saying that if the incidents reported to him did not eventually end up in the Task Force Report then they were not recorded anywhere. He said that “stand-tos” would be equivalent to grey alerts. He explained that in Vung Tau the word mortar was often used for home-made explosives and that none of the explosives ever landed within the Australian camp in Vung Tau.
14. In cross-examination Dr Olney referred to an entry in the log which he produced, carrying the date 4 September 1971. It reads “overtime finished.” Dr Olney said that one could infer from this that there had been an alert. He said that if there had been incoming mortar he would generally have reported this to the Australian Task Force Headquarters but that perhaps there was no time to do so or to write it down. He said that he would have thought that a mortar explosion would have been recorded but perhaps not if it had landed in the perimeter or claymore area rather than inside the camp.
15. Dr Olney also recalled one occasion when lots of mines went off and in the morning a water buffalo was found dead, having walked through the mine-field. Dr Olney said that in Vung Tau there had been no mortar attacks in his area of command, but that there had been some rocket attacks. He was not surprised that there was no record of attacks in Vung Tau as things were always happening and it just became accepted. Dr Olney concluded his evidence by repeating that he would only record an incident in his diary if it had been reported to headquarters and resulted in an alert being issued. He further said that an incident had to have been reported to have resulted in any deployment of troops.
mr stephen benfield
16. Mr Benfield recalls performing stationary bunker patrols. He recalls being scared on one particular occasion. He said that in the morning enemy drag marks were found. He said that no incoming shells were observed but there was outgoing fire.
mr michael cassidy
17. Mr Cassidy said that he recalls an incident while serving at Nui Dat in about October 1971, when he was drinking with others in the mess. He said that a black-out and stand-to had been called. He thinks a red alert was issued relating to incoming mortar. He thinks he may have heard an explosion, but does not think it fell anywhere in his immediate area. He cannot recall sirens but was ordered into a bunker. He thinks the duty officer said that there was a threat of mortars.
dr mordike
18. Dr Mordike is a Doctor of History. He prepared a report dated 20 February 2007. He said that he was based at Nui Dat from late February 1971. He was providing close support artillery and his duties included making sure that artillery and other equipment were in good repair. He remained in Nui Dat until mid-October 1971 and then, with others, was transferred to Vung Tau. He said that the Australian Task Force Log should cover anything which happened within the tactical area of command of the Task Force. He said that he had no doubt that if there had been incoming mortar at Nui Dat, it would have been recorded in the Task Force Log. Dr Mordike said that incoming mortar would have been a major incident. He said that the noise from a mortar attack would have been noticed and reported by many people. He said that at Nui Dat sirens were used to call “stand-tos.” He said that there were only two stand-tos while he was at Nui Dat, one on 3 March 1971 relating to related to outgoing fire. The second was in April 1971 when there was a visit from the Kerr Committee. He did say that sometimes sirens were sounded as a test and that there would have been practice stand-tos.
19. In reference to Dr Olney’s reports, Dr Mordike said that it was a mystery to him why a reference to a grey alert in Dr Olney’s reports dated 24 September 1971 had not been recorded elsewhere. He said that Dr Olney’s reports related to his troops at Nui Dat and later in Vung Tau, whereas the Australian Task Force Log related to all Australian troops.
major garry downs
20. Major Downs was Dr Olney’s second-in-command for virtually all of the relevant period. Major Downs said that any pertinent matter would be entered in the Task Force Log. This included any visual sightings. He said that if there had been an attack on the base it would have been reported to the Task Force headquarters. He said that he would expect that the sound of mortar would have been heard by many people and consequently reported. He said that to the best of his knowledge there had not been any incoming mortars experienced at Nui Dat.
legislative background
21. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
22. The expression “operational service” is defined in sections 6 to 6F of the VE Act. Under s 6C, a person renders operational service if he or she is, amongst other things, allotted for duty in an operational area. The expression “operational area” is defined in s 5B(1) by reference to Schedule 2 of the VE Act. This Schedule includes in Item 8 of Column 1, the Vietnam (Southern Zone) during the period from and including 31 July 1962 to and including 11 January 1973.
23. 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.
24. As Mr Moseley has performed operational service as defined in s 6 of the VE Act, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.”
25. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a SoP in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.
26. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
consideration of diagnosis
27. The issue of diagnosis is to be determined on the balance of probabilities (see s 120(4) and Bejamin v Repatriation Commission (2001) 70 ALD 622).
28. The SoP relating to PTSD and the diagnostic criteria prescribed in DSM IV require, amongst other things, the experience of a severe stressor. In his first report dated 17 June 2005 (T11/131) Dr Ewer diagnosed chronic PTSD and alcohol dependence. In relation to PTSD, Dr Ewer said:
“There is a temporal relationship between the traumas described and the development of his post-traumatic stress disorder in the sense that the latter came on directly after the former. I also believe there is a causal link between the traumas and him developing a post-traumatic stress disorder because the latter condition focuses exclusively upon the traumas I have described.”
29. In oral evidence, Dr Ewer explained that he was also of the opinion that PTSD or, as he later suggested may be the case, generalised anxiety disorder, had its clinical onset at the time of, or at least within two years of, Mr Moseley’s service in Vietnam. He also thought Mr Moseley suffered from alcohol dependence and that he had suffered from this condition since his service in Vietnam. In his first report, Dr Ewer referred to Mr Moseley suffering stressors including the observation of explosions in relatively close proximity to himself. Dr Ewer recorded that this had occurred on two occasions.
30. Mr Moseley’s evidence in relation to the observance of explosions in Vietnam was contested. The Commission’s advocate, Mr Crowe, suggested that Mr Moseley’s evidence could not be relied upon. Mr Crowe said that Mr Moseley was a man whose memory is likely to have been adversely affected by his alcohol intake and that reality may have been subsumed by recollections of dreams. He also suggested that it was inherently unlikely that Mr Moseley would have witnessed unrecorded incoming mortar on three occasions. Mr Crowe also submitted that it was extremely unlikely, if Mr Moseley has been severely affected by the observance of mortar explosions on his first night in Vietnam, that, when observing a second occasion of mortar explosions, Mr Moseley would have thought to photograph the incident rather than immediately secure himself by leaving the area.
31. Mr Crowe suggested that Dr Olney’s evidence should not be believed. Mr Crowe referred to Dr Olney’s evidence of incoming mortar as having been almost routine. He pointed out that this contradicted Mr Moseley’s own account. Mr Crowe also referred to Dr Olney’s apparent failure to record these mortar attacks in the unit diary.
32. Mr Crowe said that Mr Benfield’s evidence was inconsistent with that of Mr Moseley and Dr Olney in that Mr Benfield, although indicating that mortar activity was high, gave evidence of his understanding that all of the mortars were outgoing.
33. Mr Crowe suggested that Mr Cassidy’s evidence was of little value because although he indicated that he understood that there had been mortar fire, he had not experienced it directly. Mr Crowe suggested that Mr Cassidy may have simply heard Dr Olney’s or Mr Moseley’s account of incoming mortar.
34. Mr Crowe referred to the evidence of Dr Mordike and of Major Downs, both of whom indicated that there was no incoming mortar in Nui Dat at or about the time Mr Moseley served in that area.
35. Mr Crowe suggested that the Tribunal could be satisfied, not only on the balance of probabilities but beyond reasonable doubt, that Mr Moseley had not experienced incoming mortars and that consequently Mr Moseley’s claim for acceptance of PTSD, and perhaps the other conditions, should fail.
36. The Tribunal carefully considered all of the evidence relating to stressors alleged to have been experienced by Mr Moseley in Vietnam. The Tribunal accepts that there are inconsistencies in the evidence provided by those witnesses who said that mortar fire was apparent in Nui Dat. The Tribunal has also noted Mr Benfield’s indication that he later learned that all mortar activity observed in Vietnam was outgoing mortar. It is also noted that Mr Cassidy’s evidence was of what he had heard rather than directly experienced.
37. Mr Moseley’s first experience of mortar attacks is said to have occurred on his first night in Nui Dat. The Tribunal accepts that being required to perform duty guarding an area of perimeter fencing on a person’s first night in Vietnam may well have been a frightening experience. The Tribunal considers it possible that Mr Moseley heard some explosions on that night, perhaps of perimeter mines. The Tribunal recognises however that Mr Moseley may have simply fabricated these events or may now be convinced of events which did not occur. On the balance of probabilities (the relevant test for issues of diagnosis), the Tribunal is not satisfied that Mr Moseley experienced explosions either on his first night in Vietnam and/or later, which involved actual or threat of death or serious injury or a threat to his or another person’s physical integrity. The existence of stressors in this case in the form of explosions in close proximity to Mr Moseley was mentioned by Dr Ewer as a necessary pre-requisite for a diagnosis of PTSD. The Tribunal is not satisfied that Mr Moseley suffers from PTSD.
38. Dr Ewer was asked to provide a second report on diagnosis, on the assumption that Mr Moseley did not experience the stressors which formed part of the initial history provided to Dr Ewer.
39. Dr Ewer’s second report dated 5 April 2007 (Exhibit A4) opines that if stressors were not experienced by Mr Moseley in Vietnam then Mr Moseley is likely to be suffering from generalised anxiety disorder and alcohol dependence. It was agreed between the parties, and on the evidence before it, the Tribunal finds, that Mr Moseley suffers from these two last-mentioned conditions. The Tribunal consequently proceeded to consider whether either or both of these conditions could be considered to be relevantly related to service.
40. The diagnosed conditions of generalised anxiety disorder and alcohol dependence are the subject of SoPs. The Tribunal notes that where a SoP exists it must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4 The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
41. The SoP relating to generalised anxiety disorder at the time of the claim was Instrument No 1 of 2000 as amended. Subsequently, but before the Tribunal made its determination, a fresh SoP was issued in relation to anxiety disorder being Instrument No 101 of 2007. The Tribunal must use the SoP which was more beneficial to Mr Moseley. In the circumstances of this case the Tribunal considers Instrument No 1 of 2000 to be more beneficial to Mr Moseley. The SoP relating to alcohol dependence is Instrument No 76 of 1998.
42. In considering whether there is an hypothesis connecting Mr Moseley’s conditions with his war service, and in applying the relevant Deledio steps to that end, the Tribunal must consider all of the material before it, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.
43. An hypothesis (once again, after taking into account all of the material before the Tribunal) which could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). The Tribunal also refers to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
44. The suggested hypothesis in relation to generalised anxiety disorder is that the Mr Moseley suffered from a severe psychosocial stressor while in Vietnam and that the clinical onset of generalised anxiety disorder occurred within two years of experiencing such a stressor (Factor 5(a)(ii) of Instrument No 1 of 2000). A veteran’s history provided by that veteran to a medical practitioner is part of the material before the Tribunal, as is Dr Ewer’s opinion (albeit reliant upon the history provided by Mr Moseley), that the clinical onset of generalised anxiety disorder was within two years of experiencing the stressor. The Tribunal considers that a hypothesis arises on the material before it, and as a statement of principle is in force relating to generalised anxiety disorder, steps one and two of Deledio are satisfied.
45. The Tribunal now turns to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis fits or matches one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before the Tribunal but without making any finding of facts at this stage of the process. As mentioned, the history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: see Lees v Repatriation Commission (2002) 125 FCR 331. In this case it is suggested that Mr Moseley experienced a severe psychosocial stressor within two years of the clinical onset of generalised anxiety disorder. The history provided to Dr Ewer and Mr Moseley’s evidence to this Tribunal included the experience of explosions in close proximity to Mr Moseley and Mr Moseley’s feelings of fear and distress. This Tribunal considers that the hypothesis is reasonable in that it meets the template found in the SoP.
46. In reaching the view that the third step of Deledio is satisfied the Tribunal considered, amongst other things, the meaning of “clinical onset” of generalised anxiety disorder. This term was discussed by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“ … there is a clinical onset of disease, either when a person becomes aware of some feature or symptom which enables the doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to the doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750.
47. Dr Ewer was satisfied that the clinical onset of generalised anxiety disorder was at least within two years of Mr Moseley’s operational service in Vietnam. Dr Ewer recorded a history of Mr Moseley suffering from depression, anxiety, insomnia and lethargy (“I was always uptight”) when he returned to Australian. He was worrying excessively much of the time, he had difficulty trusting people, his memory and concentration were poor and he had difficulty functioning. Dr Ewer said that not all of these symptoms are indicative of generalised anxiety disorder. However, Dr Ewer said that Mr Moseley did describe sufficient symptoms to allow him to form the opinion that Mr Moseley was suffering generalised anxiety disorder during or shortly after, his operational service.
48. The Tribunal then considered the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before the Tribunal, bearing in mind the provisions of s 120(1) of the VE Act which are to the effect that the claim will succeed unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused. If the Tribunal is not so satisfied, Mr Moseley’s claim must succeed by virtue of s 120(1) of the VE Act. In examining this question, the Tribunal notes that there is no onus of proof (see s 120(6) of the VE Act, and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell v Repatriation Commission (1992) 175 CLR 408 at pages 424.8 to 425.5). The Tribunal also refers to Byrnes v Repatriation Commission (1993) 177 CLR 564 at page 571, where Mason CJ, Gaudron and McHugh JJ said:
“If a reasonable hypothesis is established, subs.(1) of s.120 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, beyond reasonable doubt, the hypothesis.”
49. The Tribunal was not satisfied on the balance of probabilities that Mr Moseley experienced an event which satisfied the definition of experiencing a severe psychosocial stressor. However, as mentioned, in considering step four of Deledio and because Mr Moseley performed operational service, the relevant question is whether the Tribunal is satisfied beyond reasonable doubt that one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt. Although it is unlikely that explosions occurring on or around the perimeter of either Vung Tau or Nui Dat bases would go unrecorded and although it would seem unlikely that a person suffering from a significant alcohol dependence and from a generalised anxiety disorder would not have the symptoms or practical effects of these conditions revealed in some way in their service record, the Tribunal is not satisfied beyond reasonable doubt that any of the bases upon which the hypothesis rests do not exist. The evidence of experiencing a severe psychosocial stressor and its consequences have not been disproved beyond reasonable doubt. Further, no other facts which are inconsistent with the hypothesis have been proved beyond reasonable doubt. The Tribunal finds Mr Moseley’s generalise anxiety disorder to be war-caused.
50. Although the Tribunal has found that Mr Moseley suffers from a service related generalised anxiety disorder through satisfaction of SoP instrument No 1 of 2000 relating to generalised anxiety disorder, the Tribunal wishes to record that on, the evidence, the Tribunal would be satisfied that Mr Moseley’s generalised anxiety disorder is war-caused through satisfaction of SoP instrument No 101 of 2007 relating to generalised anxiety disorder, particularly through satisfaction of Factor 6 (a)(ii) That is “experiencing a category 1A stressor within five years before the clinical onset of anxiety disorder.” A category 1A stressor is defined in that SoP as including:
“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…”
Mr Moseley’s evidence of being in close proximity to at least one explosion in his first night in Vietnam and Dr Ewer’s opinion as to diagnosis is sufficient to allow the Tribunal to find, if it were necessary, that Mr Moseley’s anxiety was war-caused to the satisfaction of this SoP.
consideration of alcohol dependence
51. The Tribunal next turned to consider whether Mr Moseley’s alcohol dependence was war-caused. Two hypotheses were suggested. One related to the clinical onset of alcohol dependence within two years after experiencing a severe stressor (Factor 5(b) of SoP No 76 of 1998) in Vietnam. The applicant referred to explosions in close proximity to himself. The second related to satisfaction of Factor 5(a) of SoP No 76 of 1998, “suffering from a pshyciatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse.”
52. It was common ground, and the Tribunal has found, that Mr Moseley suffers from alcohol dependence. Mr Crowe suggested that Mr Moseley’s alcohol dependence did not have its clinical onset while Mr Moseley was in Vietnam or within two years of his arrival in that country. Mr Crowe suggested that if the clinical onset of alcohol dependence had been within two years of experiencing a severe stressor in Vietnam then Mr Moseley’s record (noting that he remained in the Army for some time after his return from Vietnam) is likely to have contained a record indicating dysfunction at work. In this regard the Tribunal notes that Mr Moseley was charged with drink driving in 1973. The period of two years after Mr Moseley’s first arrival in Vietnam ended in September 1973. It is likely therefore that this incident of drink driving occurred within two years of Mr Moseley’s arrival in Vietnam.
53. The Tribunal again followed the procedure suggested in Deledio. The material before it included Mr Moseley’s statement concerning severe stressors experienced in Vietnam and of the early clinical onset of generalised anxiety disorder. The material also includes evidence of the experience of at least one severe stressor in Vietnam and again, the onset of generalised anxiety disorder within the following two years. The Tribunal is of the view that the material raises a reasonable hypothesis connecting alcohol dependence with war service and that a SoP exists. Steps one and two of Deledio are established. In relation to step three, the Tribunal considered that an hypothesis, particularly one relating to the claimed onset of generalised anxiety disorder within two years of the experience of a severe psychosocial stressor and possibly pre-dating the clinical onset of alcohol dependence matches or meets the template described in Factor 5(b) of Instrument No 76 of 1998. The Tribunal also considered that the material before it pointed to an hypothesis which matched Factor 5(a) of instrument No 76 of 1998, that is, Mr Moseley suffered from a pyschiatric disorder, in this case generalised anxiety disorder, at the time of clinical onset of alcohol dependence or alcohol abuse. In these circumstances step three of Deledio is established.
54. In considering step four, the Tribunal noted Mr Crowe’s submission that it was unlikely that Mr Moseley, if he did experience alcohol dependence within two years of his arrival in Vietnam, would have been able to adequately perform his service duties while in Vietnam. He suggested therefore that the clinical onset of alcohol dependence is unlikely to have occurred within two years of service in Vietnam. Even if such a circumstance is unlikely, the Tribunal is not satisfied, beyond reasonable doubt, that the clinical onset of alcohol dependence did not post-date the clinical onset of generalised anxiety disorder or that this last-mentioned condition, which the Tribunal has found to have been war-caused, was not extant at the time of the clinical onset of alcohol dependence. The Tribunal is satisfied that Factor 5(a) of the alcohol dependence SoP is established. The basis upon which the hypothesis rests has not been disproved beyond reasonable doubt and no other fact which is inconsistent with a necessary basis for the hypothesis has been proved beyond reasonable doubt. Alcohol dependence is war-caused.
55. Had it been necessary, the Tribunal would also be satisfied that alcohol dependence was war caused through the link described in Factor 5(b) of the alcohol dependence SoP.
alcohol hepatitis and gynaecomastis
56. The second paragraph of Deledio is, according to Selway J in RepatriationCommission v Hancock (2003) 37 AAR 383 at [10], incorrect. This is because where no SoP is in force a veteran’s application will not necessarily fail. It is to be determined in accordance with ss 120(1) and 120(3) of the VE Act and in accordance with the approach explained in cases such as Byrnes (supra). The Tribunal considered whether SoP Instrument No 35 of 1998 relating to cirrhosis of the liver may be appropriate in considering the diagnosed condition of alcohol hepatitis. The Tribunal considered that it was not and that there were no SoPs relating to alcohol hepatitis or gynaecomastis. The Tribunal therefore considered the evidence before it and particularly noted the opinion of Mr Moseley’s local medical officer, an opinion which was not contested by the Commission and was to the effect that alcohol hepatitis and gynaecomastis were caused by alcohol dependence. As alcohol dependence has been determined to be war-caused the Tribunal is satisfied that both alcohol hepatitis and gynaecomastis are war-caused.
57. In the light of the above mentioned circumstances, the Tribunal sets aside the decision under review. The Tribunal varies the diagnosis of PTSD to one of generalised anxiety disorder and substitutes a new decision that generalised anxiety disorder, alcohol dependence, alcohol hepatitis and gynaecomastis are war-caused. The Tribunal remits the issue of assessment following acceptance of the war-caused conditions, to the Commission and adjourns sine die the original assessment decision pending the Commission’s fresh decision on assessment.
I certify that the 57 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J Short (Member)
Dr E T Eriksen (Member)Signed........................................................................................
AssociateDate/s of Hearing 21-23 March 2007, 17 August 2007
Date of Decision 29 October 2007
Counsel for the Applicant Dr S Churches
Solicitor for the Applicant Ms D Benge
Tindall Gask Bentley
Advocate for the Respondent Mr A Crowe
Department of Veterans’ Affairs
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