Richardson and Repatriation Commission
[2007] AATA 2057
•14 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2057
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/2265
VETERANS' APPEALS DIVISION ) 2007/2266 Re ROBERT RICHARDSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, RFD, Senior Member Date14 December 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review. .................[Sgd].............................
SENIOR MEMBER
CATCHWORDS
VETERANS’ AFFAIRS – operational service in the Australian Army – post traumatic stress disorder – alcohol abuse – gastro-oesophageal reflux disease – whether these conditions are related to service – medical evidence – Deledio steps – hypothesis untenable as no severe stressor was experienced – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 9, 120, 120A
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Repatriation Commission v Deledio 1998 83 FCR 82
Lees and Repatriation Commission (2002) 125 FCR 331
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Webb (1998) 51 ALD 575Repatriation Commission v Stares (1996) 41 ALD 212
Bull v Repatriation Commission (2001) 66 ALD 271
East v Repatriation Commission (1987)16 FCR 517
Gilbert v Repatriation Commission (1989) 86 ALR 713
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Tuite (1993) 39 FCR 54
Stoddard v Repatriation Commission (2003) 74 ALD 366
Woodward v Repatriation Commission [2003] FCAFC 160
Hillier and Repatriation Commission [2004] AATA 897REASONS FOR DECISION
14 December 2007 Dr K S Levy, RFD, Senior Member Introduction
1. The veteran, Robert Richardson, has sought review of 2 decisions of the Repatriation Commission and a decision of the Veterans’ Review Board which affirmed the Repatriation Commission’s decisions. The applicant seeks recognition for 3 conditions which he claims are service related: post traumatic stress disorder; alcohol abuse and gastro-oesophageal reflux disease.
2. The first two of those conditions were determined by a delegate of the Repatriation Commission on 11 October 2006 as being not related to service. The third of those conditions was determined by a delegate of the Repatriation Commission on 3 November 2006 as being not related to service. Those decisions were reviewed by the Veterans’ Review Board on 16 May 2007 and the original decisions were affirmed. The applicant now seeks review of those decisions by this Tribunal.
Issues
3. The questions for the Tribunal relate to whether the 3 conditions claimed, that is, post traumatic stress disorder, alcohol abuse and gastro-oesophageal reflux disease, are war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act).
Legislation
4.The relevant provisions of the Act are as follows:
“War-caused injuries or diseases
9 (1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
Standard of proof
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.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re‑assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
120A (1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
…..
(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.”
Evidence
5.The following documentary exhibits were admitted:
Exhibit 1 – The T documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975
Exhibit 2 – Statement by Robert Richardson dated 22 June 2007 (and attachment of medical records and photograph)
Exhibit 3 – Newspaper article referring to damage caused by a bottle being thrown at a person’s head
Exhibit 4 – Transcript of the hearing before the Veterans’ Review Board dated 16 May 2007
Exhibit 5 – Extract of documents from the applicant’s army medical file
Oral Evidence
6. The applicant, Robert Richardson, served in the Australian Army in the Regular Army Supplement (National Service) from 12 July 1967 to 11 July 1969. He was 60 years old at the date of the hearing, and is now 61 years of age. Upon completion of recruit training, he was allotted to the (then) Royal Australian Army Service Corps (RAASC) and worked in the Army Services Canteen Organisation (ASCO) (T documents folio 101). As part of that service, Mr Richardson served in South Vietnam from 30 April 1968 to 9 April 1969. That service is classed as “operational service” for the purposes of the Act. During that service, he served as a Plant Operator (Forklift and Crane) and was based in Vung Tau.
7. The claims in the present case are those which the applicant raised with Dr Gibson, Psychiatrist, and upon which he relies as the basis for the present claims, and which he maintains amount to “trauma”. These are:
(a)Picket duties every night;
(b)Observing a US camp, two kilometres away, under rocket attack;
(c)Being hit by a whisky bottle while on rest and convalescent (R & C) leave.
8. Regarding his traumatic experience, the applicant put into evidence that the third issue above (being hit by a whisky bottle) was the main traumatic incident. Dr Gibson reported on 6 February 2007 that the applicant told him that he realised he could have been killed by the flying whisky bottle and he felt vulnerable after that. Dr Gibson reported that “He says he did not venture back onto the streets of Vung Tau again after the incident.” (Report of 6 February 2007 – T documents folio 108). In his report of 10 May 2002 Dr Gibson concluded that the applicant meets the diagnostic criteria for Post Traumatic Stress Disorder (PTSD) and comorbid Alcohol Abuse, with the Alcohol Abuse condition being secondary to his PTSD (T documents folio 14).
9. The applicant states that he was a social drinker prior to his service in South Vietnam. He increased his consumption in South Vietnam in 1968 because of stress and trauma (see DVA Alcohol questionnaire received 8 February 2007 – T document 104 to 106).
Consideration
10. In arriving at a determination in this matter, I have considered the whole of the material admitted into evidence. I have also taken account of all of the relevant statutory and case law.
Preliminary questions
11.The following preliminary questions require determination:
(a)Was Mr Richardson a veteran?
As mentioned above, Mr Richardson served in the Regular Army Supplement (National Service) from 12 July 1967 to 11 July 1969. Within that period he had operational service in South Vietnam from 30 April 1968 to 9 April 1969. He is therefore a “veteran” within the meaning of the Act.
(b)Is the “kind of injury or disease” claimed, consistent with a Statement of Principles (SoP) which has been issued?
SoPs have been issued for the three conditions claimed. These are:
(i) PTSD – Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999;
(ii) Alcohol Abuse – Instrument Number 76 of 1998;
(iii) Gastro-oesophageal reflux disease – Instrument Number 11 of 2005.
(c)Diagnosis
Dr Gibson has diagnosed the applicant as having Post Traumatic Stress Disorder (PTSD) with comorbid Alcohol Abuse. Dr Gibson opined that alcohol abuse is secondary to the condition of PTSD (Report dated 10 May 2002 – T documents folios 10 - 14). There is no further diagnosis in Dr Gibson’s report dated 6 February 2007 (folio 108). That is, there is no formal diagnosis of gastro-oesophageal reflux disease.
12. There is no dispute as to the diagnosis of PTSD and Alcohol Abuse. I therefore find Mr Richardson has both of these conditions. With respect to gastro-oesophageal reflux disease, the respondent accepts that the applicant’s alcohol consumption falls within Factor 5(d) of SoP Number 11 of 2005, ie “consuming an average of at least 300 grams of alcohol per week for at least the twelve months before the clinical onset of gastro-oesophageal reflux disease; …..”.
13. I am satisfied that Mr Richardson meets this criterion also, and therefore I find he satisfies the diagnosis of gastro-oesophageal reflux disease for the purposes of the present claim.
Clinical Onset
14. I am satisfied that the three preliminary questions (or pre-conditions) above have been answered positively to allow these claims to be considered substantively. This requires identification of the time of clinical onset and determination of the statutory requirements by evaluating the claims against the “Deledio” process [Repatriation Commission v Deledio (1998) 83 FCR 82]. In Lees v Repatriation Commission (2002) 125 FCR 331 at [16], the Full Court of the Federal Court held that “clinical onset” requires some evidence which would demonstrate a sufficient proximity between the events hypothesised by the applicant and the associated condition or disease, so as to demonstrate a causal link between those incidents and an applicant’s military service.
15. On the hypothesis raised by Mr Richardson, one would have to accept, if the hypothesis is reasonable, that clinical onset of PTSD and alcohol abuse had a temporal connection with (or coincided with) his service in South Vietnam. Such was the conclusion of Dr Gibson on the basis of the efficacy of the events which Mr Richardson relayed to him.
16. The clinical onset of gastro-oesophageal reflux disease, however, has not been diagnosed by a medical practitioner. It is however, undoubtedly related to alcohol abuse, and has developed more latterly. The respondent accepts that the alcohol consumption of Mr Richardson falls within the parameters of Factor 5(d) of the relevant SoP and therefore would not appear to deny that Mr Richardson satisfies the criteria for gastro-oesophageal reflux disease, as stated in the SoP.
17. The clinical onset of PTSD is, however, subject to establishing the service nexus. If that nexus is established then the clinical onset of alcohol abuse is also established as being initiated during operational service, but not otherwise, as the diagnosis of alcohol abuse is secondary to PTSD. The condition of gastro-oesophageal reflux disease is related to alcohol abuse and is similarly related to whether or not there is a service nexus.
Findings of Fact
18.The following findings of fact are made:
(a)Mr Richardson was a national serviceman and undertook two years service with the Australian Army from 12 July 1967 to 11 July 1969.
(b)His National Service, following his Corps training, was spent with the (then) Royal Australian Army Service Corps (RAASC). Within that Corps, he was posted to the Australian Services Canteen Organisation (ASCO), an organisation providing canteen services, including alcohol, to soldiers serving away from fixed establishment areas.
(c)He was employed as a plant operator (forklift and crane); and also did picket duty and other general regimental duties.
(d)He served in South Vietnam, and therefore had operational service, for the period 30 April 1968 to 9 April 1969. He was stationed at Vung Tau. He also took rest and convalescent (R & C) leave at Vung Tau. The R & C Centre was only five miles from the ASCO unit in which Mr Richardson served.
(e)The applicant was hit by a whisky bottle, having been thrown at him by a passenger on a passing motorcycle in a built-up area of Vung Tau. At the time, he had been drinking for about three hours with two American servicemen. They helped him to the R & C Centre.
(f)He stayed at the R & C Centre for the remaining couple of days of his R & C leave. He did not seek medical treatment before returning to his unit. He then attended the 1 Australian Field Hospital.
(g)1 Australian Field Hospital records show that:
(a)He was hospitalised from 21 to 25 January 1969 for pyrexia;
(b)He attended the hospital on 21 March 1969 for a foot injury – where it is recorded that he slipped “last night”. He was not admitted to hospital as a result.
(c)On 24 March 1969 the hospital records shows “foot improving” and also noted that an “old cut on head still infected”.
(h)He completed his tour of duty approximately two weeks later ie 9 April 1969. The applicant mostly sat around and drank for the final two weeks of his operational service.
Are the conditions claimed war caused?
19. This is the main focus of the evaluation in assessing Mr Richardson’s claims. The standard of proof required is set out in s 120(1) and s 120(3) of the Act.
20. I must have regard to the requirement to make a determination “after consideration of the whole of the material” before me. This was referred to by the High Court of Australia in Bushell v Repatriation Commission (1992) 175 CLR 408 and in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569, where the High Court said a reasonable hypothesis is raised when “…the material points to some fact or facts (‘the raised facts’) which support the hypothesis”. The term “consideration of all the material” was further elaborated on in the decision of Repatriation Commission v Webb (1998) 51 ALD 575 at 582-583 where it was held that the overall hypotheses require consideration of each sequential part of the hypothesis and whether the facts point to each part of the hypothesis as being reasonable. If each part is reasonable, the overall hypothesis may be reasonable.
21. To determine whether the claims are “war-caused”, four steps must be followed as set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98. The relevant steps are:
“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.”
22. Considering Step 1 of Deledio, there must be some material which can establish an hypothesis which connects the applicant’s Post Traumatic Stress Disorder (and Alcohol Abuse) with facts relating to his military service. An hypothesis is a proposition which appears logical, without proof of its truth. It can be regarded as a starting point for further enquiry. “[A] hypothesis is no more than a supposition or conjectural explanation of an ultimate fact” (Repatriation Commission v Stares (1996) 41 ALD 212 at 217).
23. Based on the material presented by the applicant, I consider that an hypothesis can be raised connecting the applicant’s conditions with the circumstances of his service in South Vietnam.
24. In relation to Step 2 of Deledio, the Tribunal must assess whether a relevant SoP/SoPs have been issued by the Repatriation Medical Authority (RMA). This is the requirement of Step 2, or, where relevant, as modified by the Federal Court decision in Bull v Repatriation Commission (2001) 66 ALD 271. Three SoPs have been identified and are noted earlier.
25. In making an assessment at Step 3 of Deledio, the hypothesis at Step1 must be viewed as to whether –
(a)It is consistent with the known facts and not too tenuous, remote or fanciful (East v Repatriation Commission (1987) 16 FCR 517);
(b)It is upheld by the relevant SoP/SoPs, that is, it must be “consistent with the template” of the factors in the SoP/SoPs (Repatriation Commission v Deledio (supra)). It should be noted that where a factor in an SoP contains a number of elements, the hypothesis must contain the same elements (Howard v Repatriation Commission [1999] FCA 1030).
26. Step 3 of Deledio is essentially required to make an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The explanatory memorandum to the Act dealing with this statutory provision makes it plain that the intention of the legislation is that a reasonable hypothesis is not made out merely by establishing the existence of a mere possibility of a causal link but that a pension will be payable only where the evidence provides “…. some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (see page 107).
27. The approach to be adopted in assessing Step 3 is that originally set out by the High Court of Australia in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571:
“The position may be summarised as follows: (1) First, sub-s. (3) of s. 120 is 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 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) 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 (my emphasis); or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt (my emphasis), thus disproving, beyond reasonable doubt, the hypothesis.”
28. In determining whether the hypothesis is reasonable, the material submitted must fit the template for PTSD. In Repatriation Commission v Hill (2002) 69 ALD 581 at paragraph 67, the court approached the assessment as follows:
“The correct issue was, assuming [the applicant] suffered from PTSD as defined in Clause 4 of the SoP, did the material raise or point to his ‘experiencing a stressor’, as defined, during his operational service?”
29. The relevant parts of the SoP for PTSD (Instrument Number 3 of 1999 as amended by Instrument Number 54 of 1999) are as follows:
“Factors
5 The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised, connecting post traumatic stress disorder or death from post traumatic stress disorder with the circumstances of a person’s relevant service are:
(a)experiencing a severe stressor prior to the clinical onset of post traumatic stress disorder;
….”
Other definitions
8 For the purposes of this statement of principles:
….
‘Experiencing a severe stressor’ (as amended by Instrument Number 54 of 1999) means the person experienced, witnessed, or was confronted with an event or events that involved actual or threat of death or serious injury, or a threat to the persons, or another person’s physical integrity.
In the setting of service in the Defence Forces, or other service where the Veterans’ Entitlements Act applies, events that qualify as severe stressors include:
(i) threat of serious injury or death; or
(ii) engagement with the enemy; or
(iii)witnessing casualties or participation in or observation of casualty clearance, atrocities or abusive violence;….”
30. It is apparent that the third step in the Deledio process requires the Tribunal to make a relatively macro level assessment of Mr Richardson’s story and to determine whether it fits the template set out in the above SoP. Findings of fact are not made at step three. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument Number 3 of 1999 (as amended by Instrument Number 54 of 1999), then his hypothesis will not be reasonable. To be reasonable, an hypothesis must reveal a credible proposition and one that is not too remote or too improbable. It must be “….more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.” (East v Repatriation Commission (1987) 16 FCR 517 at 533.)
31. The question arises as to how in a practical sense, one gives effect to the authorities outlined above. Certainly, the evidence must “point to” or “support” the hypothesis and not merely be “left open” on the evidence as a possibility (Gilbert v Repatriation Commission (1989) 86 ALR 713 also Repatriation Commission v Bey (1997) 79 FCR 364). There must also be shown to be more than a mere temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed this approach for the “points to” test. Their Honours determined that the test in s 120(3) will manifest a reasonable hypothesis in circumstances where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
32. There must therefore be a temporal connection and a causal connection. The Tribunal accepts that the incident concerned, has the requisite temporal connection with military service. The question of whether it has a causal connection is determined by assessing whether the incident claimed is in accordance with the SoP factors and definitions. Critical to the assessment in this case is whether Mr Richardson satisfies the definition of “experiencing a severe stressor”. In Stoddart v Repatriation Commission (2003) 74 ALD 366 Mansfield J held that the meaning of that term does not require that there be an actual threat, judged objectively with full knowledge of the circumstances. That objective judgement must be considered from the view point of a reasonable person in the position of the applicant. A useful consideration of the term is contained in the judgement of the Full Court of the Federal Court in Woodward v Repatriation Commission [2003] FCAFC 160 at [114] et seq. In Stoddart (supra) (at 378), Mansfield J referred to the definition of “experiencing a severe stressor” as follows:
“The adjectival clause ‘that involve actual or threat of death or serious injury…’ explains the nature of the event or events which must be experienced. It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perceptions of events which, judged objectively, do not in fact fall within the adjectival clause.”
In that case, his Honour also referred to the word “threat” and held that it must be interpreted in relation to an hypothesised event as being one which “…..judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the person experiencing those events, are capable of and did convey (that is, are subjectively experienced) the risk of death or serious injury or to physical integrity” (at 379). A person’s physical integrity is intended to mean that their physical entirety or complete functioning is not diminished.
33. These considerations are facilitated to some degree by the judgement of Deputy President Jarvis in Hillier and Repatriation Commission [2004] AATA 897. There, the objective requirements were referred to as being more properly considered in terms of a member of the Armed Forces who is not idiosyncratic or unduly timorous or sensitive. It must take account of the diversity of age and experience of persons in the Armed Forces and include their formal training and experience, particularly in combat or stressful situations. The examples provided in the SoP provide some guidance as to what would amount to a severe stressor.
34. The examples in the definition in the SoP read ejusdem generis, must be in the context of life threatening events during service in the defence forces. They do not have to be in actual combat. There must, however, at least be a sense of threat to the applicant’s, or other person’s, physical integrity but at a level consistent with the language of the definition of “experiencing a severe stressor”. That is, the assessment must be made objectively, but in the context of subjective assessment of a person in the Armed Forces who is not idiosyncratic or unduly timorous or sensitive.
35. Here, Mr Richardson was not in a combat environment. He was on R & C leave at the end of a 12 month period of overseas service. For all of that period he was stationed in Vung Tau which was in a logistics area. When he went on R & C leave that was also in Vung Tau. The assessment to be made in this case is whether in the circumstances described in the hypothesis in Step 1, a person in Mr Richardson’s station in the Army could have regarded the whisky bottle incident as “experiencing a severe stressor” as defined in the SoP, and as interpreted within the bounds of the authorities outlined above. In that context, even allowing for subjective differences, it must be assessed as to whether the throwing of a whisky bottle in a built-up area of Vung Tau in 1969, by a pillion passenger on a motor cycle could result in significant ongoing psychological dysfunction 35 years later? The Tribunal thinks not.
36. Such an hypothesis seems to me to be most unlikely and therefore is not reasonable. This conclusion takes account of all of the material, including the fact that the applicant knew within minutes of the event occurring that he was hit by a whisky bottle and that he had not been shot or experienced some other more serious event which was life threatening. The gravity of the examples defined as “severe stressors” in paragraph 8 of SoP No 3 of 1999 (as amended) are far higher than the assertions in the hypothesis in Step 1. The incidents are not “severe stressors” and therefore Mr Richardson’s PTSD cannot be attributable to operational service. The other incidents claimed are secondary to PTSD and therefore they also cannot reasonably be said to be connected with operational service. The hypothesis in Step 1 is therefore “untenable” (Byrnes v Repatriation Commission (supra)).
37. Consequently, the applicant fails at Step 3 of the Deledio process.
38. Even if I was not so strongly persuaded to that conclusion, I would conclude that Step 4 could not have been satisfied based on the inconsistency in some evidence given by the applicant at the Veterans’ Review Board hearing and at this Tribunal. In addition, the fact that 1 Australian Field Hospital was well established and the records shown for dates when he was in hospital are for a different condition, and for a different period of time as proposed in the applicant’s theory of his case. The dates when he apparently attended for treatment of the injuries claimed showed that he was not admitted to hospital as he states, and that when he first attended to report those injuries, the version of events he put to the Tribunal is too inconsistent with the medical records. I find that the truth of the facts in the hypothesis are disproved beyond reasonable doubt.
39. Also, the fact that Mr Richardson did not venture back into Vung Tau was clearly because he was in the last couple of weeks of his tour of duty, rather than for the reasons put forward in his hypothesis. He simply would not have been on leave again.
40. The other issue which weighs heavily against this application is that it seems unlikely that a bottle thrown by a pillion passenger of a motor cycle could in the ordinary course, be regarded as causing such physical injuries that his physical integrity, that is, his physical entirety or complete functioning, would be diminished. The above facts are also inconsistent with the hypothesis and are proved beyond reasonable doubt.
41. In the circumstances, the decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, RFD, Senior Member
Signed: .....................................................................................
F. Kamst, Legal Research OfficerDate/s of Hearing 29 October 2007
Date of Decision 14 December 2007
Advocate for the Applicant Mr Bob Richards and Mr Peter Jones
For the Respondent Mr Jeff Kelly, departmental advocate
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