Simos and Repatriation Commission

Case [2014] AATA 110

[2014] AATA 110 

Division VETERANS' APPEALS DIVISION

File Number

2010/0105

Re

Russell Simos

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan
Date 28 February 2014
Place Melbourne

The Tribunal affirms the decision under review.

...........[sgd].............................................. ...............

Miss E A Shanahan

VETERANS’ AFFAIRS – disability pension claim – operational service – generalised anxiety disorder – hypertension – atrial fibrillation – complex hypothesis – asthma – severity of stressors experienced – exposure to multiple stressors post-service – reasonable hypotheses – reliability of evidence – decision affirmed

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Cases

Border v Repatriation Commission No 2 (2010) FCA 1430

Bull v Repatriation Commission (2001) FCA 1832

Bushell v Repatriation Commission (1992) 175 CLR 408

Delahunty v Repatriation Commission (2004) 38 AAR 511

Forrester v Repatriation Commission (2013) FCA 898

McKenna v Repatriation Commission (1999) 29 AAR 70

Meehan v Repatriation Commission (2001) 64 ALD 345

Repatriation Commission v Deledio (1998) 49 ALD 193

Simos v Repatriation Commission (2013) FCA 607 (20 June 2013)

Stoddard v Repatriation Commission (2003) FCA 334

Re Russell Simos and Repatriation Commission [2011] AATA 537

Woodward v Repatriation Commission (2003) 200 ALR 332

Re White v Repatriation Commission [2004] FCA 633, [2003] AATA 942

Secondary Materials

Statement of Principles Instrument No 101 of 2007 – Anxiety Disorder

REASONS FOR DECISION

Miss E A Shanahan

28 February 2014

The history of the application

  1. Mr Simos initially applied for a disability pension claiming that the medical conditions of anxiety disorder, depressive disorder, alcohol dependence, hypertension, tinnitus and sensorio-neural hearing loss were war-caused.  The hearing loss and tinnitus were accepted as being war-caused as they were considered to be due to Mr Simos’ repeated firing of an M60 machine gun in Vietnam. This decision of a delegate of the Department of Veterans’ Affairs (DVA) was dated 25 February 2007.  The other medical conditions were rejected by a delegate of the Repatriation Commission as being war-caused on 28 September 2007.

  2. In his statement accompanying the application, Mr Simos attributed significant changes in his behaviour to his military training.  He said these changes did not become evident until his arrival in Vietnam.  The only stressful incident that he referred to was witnessing the despatching of deceased American servicemen at the (Saigon) airport.  (T‑documents p 4).

  3. In his reasons for decision the delegate of the Repatriation Commission (the Commission) acknowledged that Mr Simos had experienced an event which met the Repatriation Medical Authority definition of a severe psychosocial stressor but that he maintained that this did not occur on operational service.  Mr Simos’ operational service in South Vietnam was from 16 September 1971 to 18 November 1971, during which time he was actually in South Vietnam for 51 days. 

  4. Mr Simos lodged a further application for an increase in his disability pension on 27 February 2009.  The medical conditions he claimed as being war‑caused were as before, with the addition of asthma, atrial fibrillation and hypertension.  The psychiatric conditions Mr Simos claimed as being war‑caused were as…

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Details
AGLC
Simos and Repatriation Commission [2014] AATA 110
Case
[2014] AATA 110
Decision Date

CaseChat Overview and Summary

The case involves Mr Simos, a Vietnam veteran, who is seeking a disability pension from the Repatriation Commission, claiming that he suffered from Post-Traumatic Stress Disorder (PTSD) due to a traumatic event during his service. The Administrative Appeals Tribunal (AAT) was required to determine whether Mr Simos’ claim for a disability pension was supported by evidence of a Category 1A stressor, and if his PTSD was connected to his military service. The legal issues centered on whether Mr Simos had provided sufficient evidence of a traumatic event during his service that met the criteria for a Category 1A stressor, and whether his PTSD was connected to this event. The AAT had to consider whether the Tribunal had erred in its interpretation of the evidence and the applicable legal standards.

The AAT concluded that the Tribunal had not erred in its interpretation of the evidence or the applicable legal standards. The Tribunal found that Mr Simos did not provide sufficient evidence of a Category 1A stressor during his service. The Tribunal noted that Mr Simos only mentioned the patrol incident as the relevant stressor in 2007, 36 years after his service. The Tribunal also found that Mr Simos’ PTSD did not meet the criteria for a Category 1A stressor, as the onset of his anxiety disorder was not within five years of the event. The Tribunal concluded that Mr Simos’ claim for a disability pension was not supported by sufficient evidence.

The AAT upheld the decision of the Tribunal, finding that the Tribunal had correctly applied the law and reached a reasonable decision based on the evidence. The AAT found that the Tribunal had not erred in its interpretation of the evidence or the applicable legal standards. The AAT also found that the Tribunal had correctly concluded that Mr Simos’ claim for a disability pension was not supported by sufficient evidence.

The AAT did not make any further orders, as the decision of the Tribunal was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

His Honour rejected all the other grounds Mr Simos raised as being indicative of an error at law. Evidence relating to the Experiencing of a Category 1A stressor and in particular the Patrol Incident In 2007 the Commission delegate dealing with Mr Simos’ original claim for disability pension, identified him as having suffered a 1A stressor while in training but not during operational service. No evidence of the nature of this 1A stressor was provided. Mr Simos did not mention the patrol incident as the relevant 1A stressor until 16 April 2007, when he gave a history of this event to his psychiatrist, Dr Collier. This was some 36 years after his operational service in Vietnam. Mr Simos had been attending the Vietnam Veterans’ Counselling Service (VVCS) from 1998, where he attended by himself and with his wife. His attendance was said to have been for alcohol misuse, aggression, mood swings and marital problems. The details of his consultations with VVCS are subject to confidentiality provisions. In 2002 Mr Simos was referred to Dr Collier by a psychologist at the VVCS for treatment and assessment of mood swings, anger management and short periods of depression. In his first visit to Dr Collier in 2002 Mr Simos declared that he had not experienced any highly traumatic events during his term in Vietnam. He did report seeing Vietnamese villagers who had lost limbs and body bags being loaded on to an aeroplane. At the time of Mr Simos’ first consultation with Dr Collier, Dr Collier was a senior psychiatrist in the Vietnam Veterans’ Psychiatric Unit at the Austin Hospital. Dr Collier opined that Mr Simos did not meet the criteria for PTSD. He particularly mentioned the difficulties in the family due to disabilities of Mr Simos’ children and the presence of some marital problems. Dr Collier made a diagnosis of moderately severe anxiety with intermittent depression and excluded a diagnosis of PTSD. Mr Simos attended Dr Collier on two further occasions and failed to attend his third review appointment. (Exhibit R10) Mr Simos next saw Dr Collier on 16 April 2007 and gave the following description of the patrol incident to Dr Collier (T5, p15): The word was the Vietcong planned to hit us hard before we left the Nui Dat area. We were stressed. The night was black. It was drizzling. We were in a bunker protected with sandbags. We had set an M60 machine gun up and we had our own rifles as well. We could hear our artillery in the background. Mr Simos had told Dr Collier that: He and two colleagues had been told they would go onto the patrol line, that is to man a security point which was located on the perimeter of the camp. They were to relieve the group that had already been there and they were to stay the night in that situation...Mr. Simos and his colleagues were on a bit of a rise approximately one kilometre from the bush. There was reportedly some cleared grassy area, but areas of thick grass and water also. They settled in as best they could but there was a “horrific feeling” about being out there as compared to being in the camp. Mr. Simos felt totally insecure. One of his mates was half snoozing. Eventually the man on the M60 seemed to shake. There was some kind of movement out there. He fired several rounds. Mr. Simos panicked and then froze. “It might have been the movement of the water or perhaps a pig in the grass or monkeys in the bush but the thing I recall is the fear. The next day we laughed about it but the fear did something to me, I imagine like a bad car accident does.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Wallace distinguished the decision in Border, as a claim for PTSD which attracted a different SoP and definition of 1A stressor or its equivalent. Mr Wallace submitted that Mr Simos’ application failed at the first step of Deledio. That is, all the material before the Tribunal did not raise a hypothesis connecting his claimed medical conditions with the circumstances of the particular service he had rendered.TRIBUNALS DELIBERATIONS In accordance with the directions of His Honour Tracey J, the Tribunal is required to reconsider its decision (Re Russell Simos and Repatriation Commission [2011] AATA 537) that there was no objective foundation for Mr Simos’ claim to have experienced a life-threatening event. His Honour had determined the Tribunal had reached this conclusion on the mistaken belief that Mr Simos and/or his counsel had made a concession to that affect. The directed reconsideration did not require the taking of further evidence. Step 3 of Deledio requires that the hypothesis raised is consistent with or fits the template to be found in the SoP in order for the hypothesis to be reasonable. In reaching its decision of 3 August 2011 this Tribunal relied primarily on Mr Simos’ spontaneous, evidence before the VRB and the AAT, in particular the latter, where he twice clearly stated that he did not think he would be killed (Transcript of 12/4/2011 page 147, and 11/4/2011 page 46). Mr Simos also stated that his subjective response, that is his fear and numbness, was momentary. The Tribunal acknowledges that when later on 11 April 2011 the question was put by Mr Chancellor, were you in fear of your life? Mr Simos answered - Yes. Mr Chancellor did not pose the same question on 12 April 2011. As his Honour has found that no concession was made by the applicant in this regard no further consideration of this evidence is required. The Tribunal had found that the Mr Simos did not meet the template of the SoP in that his anxiety disorder was not clinically significant until 1998, some 27 years after his operational service; as opposed to the SoP requirement, in relation to category 1A and 1B stressors, that the onset of the anxiety disorder be within 5 years of the event. The requirement that the anxiety disorder be clinically significant, as defined in SoP No 101 of 2007, is in item E of the diagnostic criteria for the psychiatric disorder. His Honour has found that the Tribunal did not err in its interpretation of this requirement. (para 57). While Mr Simos’ description of the patrol incident has varied greatly over the four years this claim has been afoot, there are some common features to the descriptions. It would appear there were two other more experienced soldiers accompanying him on what the Tribunal understands to be sentry duty rather than patrol duty. They were housed in a well-constructed sentry post, elevated in relation to the distant bush and separated from the latter by 100 to 200 meters of cleared but grassed ground. The patrol was said to have occurred in the dark of night when it was windy and raining. One of Mr Simos’ fellow soldiers reportedly saw movement in the long grass and fired one or two rounds of ammunition into the area. In the original hearing before this Tribunal, Mr Barsley of Writeway Research Services provided a report which stated (among other details) that the Nui Dat camp was never attacked by enemy infantry throughout the course of the war in Vietnam. In September/October 1971 Nui Dat was being vacated by the Australian forces and handed over to the South Vietnamese army.