Smith and Repatriation Commission
[2001] AATA 248
•8 February 2001
DECISION AND REASONS FOR DECISION [2001] AATA 248
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1307
VETERANS' APPEALS DIVISION )
Re robert james smith
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date8 February 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/1307
)
VETERANS' APPEALS DIVISION )
Re: ROBERT JAMES SMITH
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 8 February 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, ROBERT JAMES SMITH, is entitled to pension for the war-caused diseases of Refractive Error and Post Traumatic Stress Disorder as and from 10 December 1997; and
2.This matter is remitted to the Respondent, so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Post traumatic stress disorder claimed. Whether that was correct diagnosis of Applicant's illness. Satisfied on balance of probabilities as to existence of a post traumatic stress disorder.
Veterans' Entitlements Act 1986 - subs120(1), (3) and (6), s120A
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Cooke 28 AAR 400
Repatriation Commission v Smith 15 FCR 327
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 8 February 2001
Date of Decision 8 February 2001
Counsel for Applicant Mr C ColborneSolicitor for Applicant Mr B William
Advocate for Respondent Mr S Modder, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/1307
By SENIOR MEMBER ALLEN
SMITH and REPATRIATION COMMISSION
SYDNEY, 8 FEBRUARY 2001MR ALLEN: By application made 27 August 1999, the applicant sought review of a decision by the respondent, Repatriation Commission as affirmed by a Veterans' Review Board that the conditions of refractive error and a post traumatic stress disorder were not caused or contributed to by his service in the Republic of South Vietnam as a member of the Australian Army. I note in passing the original claim also referred to tension headaches, but it seems clear in these proceedings that those tension headaches are part and parcel of the post traumatic stress disorder.
At the outset of the proceedings today the respondent conceded that the applicant's refractive error was war caused and given the reports of Dr Duke, ophthalmic surgeon to the respondent, which reports were served on the Tribunal. That concession is entirely proper. The applicant's claim for post traumatic stress disorder was lodged on 10 July 1997. As it relates to operational service, namely, service in South Vietnam, subsections 120(1) and (3) of the Veterans' Entitlements Act 1986 apply regarding proof. Those particular subsections state inter alia that the Tribunal shall grant the claim:
(1) … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
The Tribunal shall, however, be so:
(3) … satisfied, beyond reasonable doubt, that there is no sufficient ground for determining …
that the particular disabilities were war-caused if it:
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 … disease … with the circumstances of the particular service rendered by the person.
Subsection 120(6) provides that no party to this review bears any onus of proof.
Section 120A of the Veterans' Entitlements Act provides that a hypothesis for the purposes of subsection 120(3) is only reasonable if it conforms with a so-called Statement of Principles.
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The particular Statement of Principles in this matter relating to post traumatic stress disorder is Instrument No 15 of 1994 as amended by Instrument No 225 of 1995. These particular SoPs, in effect, replicate the diagnostic criteria for post traumatic stress disorder as set out in the fourth edition of the Diagnostic and Statistical Manual, known otherwise as DSM-IV. The relationship between the SoP regime and the standard of proof prescribed by subsections120(1) and (3) of the VEA was discussed by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97.I see no necessity to recapitulate that now well-known passage here. More importantly, the matter is dispute in this matter is whether, in fact, the applicant does not suffer from PTSD. This question – that is to say, the question of whether a particular disease exists or not is to be decided to the Tribunal's reasonable satisfaction pursuant to subsection 120(4) of the VEA, see Repatriation Commission v Cooke 28 AAR 400. The term, "reasonable satisfaction" was discussed by a Full Court of the Federal Court in Repatriation Commission v Smith 15 FCR 327.
And the Court there said that the term "reasonable satisfaction" equates to the civil standard of proof, namely, that of on the balance of probabilities. There is no dispute that the applicant experienced a stressor as that term is defined in the relevant SoP. On 27 March 1969, the applicant as a rifleman in the 5th Battalion Royal Australian Regiments was injured when a vehicle in which he was a passenger hit an enemy landmine and was destroyed, injuring soldiers on the vehicle, including the applicant, some seriously.
For the facts, I refer to the letter by Brigadier Khan, the former commander of 5RAR dated 21 December 1988 at document T18 page 98 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and also a copy of a press report at page 99 and the applicant's Army medical documents at pages 14 and 15 of the said section 37 documents.
The Applicant was born on 24 January 1947 and conscripted into the Australian Army. He had left school at about age 14 and after a short period of apprenticeship to a carpenter he returned to the family dairy farm and remained there until called up. After service in South Vietnam, he experienced the usual treatment of a rapid return to Australia by air and a rapid dismissal from the Army. He states that, immediately after discharge he went out west with an Army mate for some six months and spent his days drinking.
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©Auscript Pty Ltd 2001After six months he could not take this lifestyle any further and returned to dairy farm as a share farmer abstaining from alcohol and married. The applicant's attitude to service in South Vietnam is expressed in his statement which is exhibit A3. The relevant part reading:
In regards to my War Service in Vietnam. Firstly I didn't ask to be sent over there, my number came up, it was my turn so I went, I believed I was doing the right thing. I was not scared about going it was after our first Operation, then it was different, I think we were all a bit scared, not ever knowing what was going to happen next, who would be wounded or killed. Being out in the Jungle the bombs and Rocket going off all around you. Wondering who be next or what would be next. I can remember having to dig up stinking dead bodies, some that had been buried a day or more, and in the heat, it's a smell that I'll never forget. The stench of dead VC. I can still smell it today. Then were the nights 'On Picket', guarding the camp and everyone's lives, Bombs and Rocket Grenades going off in all directions, those rocket sure light up an area. Then I was frightened in fact I was shit scared. You never knew what was going to happen next or what would come out of the dark. The flashes of light from the rockets & Bombs, was blinding.
The applicant then goes on to discuss when the truck ran over a mine and he was injured. As stated, the applicant married, returned to dairy farming although in reverse order and after some prior problems the applicant's marriage suffered an irretrievable breakdown in or about 1995. On 30 April 1996, following an argument with his wife and taunts by her, the applicant had determined to shoot himself. The events of that day are set out in the report of Mr Taylor, psychologist at T18 page 81.
Suffice it to say, the applicant had decided to shoot himself in front of his wife in the town of Taree. He discharged a double barrel shotgun into the air to attract her attention after his wife then tried to take the gun off him and in the course of this struggle he assaulted his wife and as I understand the evidence, she suffered a broken arm. The applicant was charged with the offences of going armed in public and aggravated assault for which he received a sentence of 12 months imprisonment.
These events have complicated the applicant's case and the diagnosis of his condition. For example, the reports by Mr Taylor, psychologist, and Dr Tan, psychologist, to the applicant's solicitor are clearly reports written to be tendered in mitigation of penalty. In this matter, I would prefer, however, to adopt a chronological approach.
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©Auscript Pty Ltd 2001Exhibit R6, being the clinical notes of Dr Altman, psychiatrist, contains a letter to Dr Altman by a Ms Jurd who is president of a body termed the Veterans and Family Support Link Line Incorporated. In that letter, Miss Jurd says:
As requested, enclosed the information on this Veteran. I have known Bob for 3-3 ½ years, through our association, … I have had 29 years Nursing which included Psychiatrics. From the first day I meet Bob I found him to be very reserved, it was evident that he needed some assistance re a disability pension, as he suffered with P.T.S.D.
Interestingly enough, and it is relevant to the applicant's failure to make full disclosure to investigating medical practitioners, Miss Jurd says that the applicant, having been bailed to stay with his brother in Tamworth:
I understand he did see a Psychiatrist but he was Chinese which didn't impress Bob, I know he would not go back.
Later she says:
Bob served with 5 RAR he was W.I.A. [wounded in action] when the truck he was travelling in ran over a mine, he saw a lot of action, even though Bob has not told me this, though his mate who served with him has stated this fact.
Again, I commented this is another example which has been commented upon by the applicant's treating psychiatrist, Dr Akkerman, of the applicant's reluctance to discuss his war service.
Miss Jurd concludes by saying:
Bob is very reserved, he does not open up to many people, Which includes Doctors, regarding his War Service…
Exhibit R6 also contains a referral to Dr Altman by the applicant's general practitioner, a Dr Cook. The referral reads inter alia:
Thanks for seeing this chap with depressive disorder on a basis of post traumatic stress disorder & marital breakdown …
I mention that as it seems clear there that Dr Cook, at least at the time had made a tentative diagnosis of PTSD. The applicant, when he made his original claim for pension relating to PTSD which was received by the Department of Veterans' Affairs on 10 July 1997 had a form which is required to be completed by a medical practitioner. See page 22 of the
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section 37 documents. In that particular form Dr Cook, again, diagnoses the applicant as suffering from a post traumatic stress disorder. Mr Taylor, psychologist n his report of 22 May 1996, states as a comment:Mr Smith's assessed current level of intellectual functioning is within the borderline intellectual functioning area as defined by DSM-IV. In fact his Full Scale I.Q. of 82 places his level of ability within the bottom 11.5% of the population. The pattern of his test results suggests that he has always functioned at about the present level.
And one might comment that that no doubt also reflects in the applicant's abilities to articulate what he sees is wrong with his mental state. Mr Taylor continues:
Mr Smith attempts to hide or mask many of his symptoms of depression.
Interestingly, given the criteria for PTSD, he further states:
He is very cognitively pessimistic in that he possesses defeatist and fatalistic attitudes about most matters in life.
Mr Taylor, however, did not explore PTSD symptoms with the applicant. Dr Tan's report is at page 20 of exhibit R6. Although Dr Tan notes that the applicant did serve in Vietnam, he comments, page 22 of R6:
On mental state examination Mr. Smith's manner was somewhat reserved and laconic.
Adding:
There was a mild to moderate degree of depression as evidenced by his score on the Zung Rating Scale …
Dr Tan opined that the applicant was then suffering from a reactive depression at the time of the alleged offence. Dr Altman, in his report of 31 July '97, to the applicant's solicitors, did not consider that the applicant at that time was suffering from any mental illness. Interestingly, he states:
Mr Smith struck me as being an honest, sincere type of person.
As pointed out by the respondent, Dr Altman did consider PTSD but rejected this diagnosis. Dr Altman'' notes are there in exhibit R6. What
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©Auscript Pty Ltd 2001is interesting is that the applicant is noted as saying that in effect he lacks recall of events, although noting that Vietnam service was stressful for the applicant. The applicant is now, however, consulting Dr Akkerman, psychiatrist, and Dr Akkerman's report of 8 June 2000 is exhibit A2 in this matter. I believe it is important to note that Dr Akkerman was not consulted for forensic purposes.
The applicant's general practitioner, Dr Cook, apparently accepted Dr Altman's diagnosis of not PTSD, but still found the applicant to be depressed and implicated his marriage breakdown. On this basis he was referred to Dr Akkerman who did diagnose post traumatic stress disorder. Dr Akkerman agreed the applicant is not forthcoming in his history of Vietnam service. In evidence to the Tribunal Dr Akkerman said of the applicant:
He tries not to think about it and not to discuss it. It's difficult to get information out of Mr Smith, but what information I have got has been internally consistent.
Dr Akkerman mentioned that PTSD is one of the anxiety disorders, so that a diagnosis of anxiety disorder is not inconsistent with a diagnosis of PTSD. Or so I infer. Speaking of the applicant he said his problem was that he had told him enough but not all relating to his events on service and subsequently. Significantly, Dr Akkerman said that the applicant would rather jeopardise his case than tell others about it. And this certainly seems to be the case with Drs Altman and Tan. I can also relate very much to what Dr Akkerman said, that the applicant would not have related to Dr Walden, stating:
The fact she is a female would not help.
I have already mentioned that the applicant has stated to Ms Jurd that he did not relate to Dr Tan. And interestingly enough, as part of the applicant's statement, exhibit A3, he says, relating to Vietnam:
Even when my mates are all together we don't talk about that Hell Hole, so why should I tell a stranger what went on, most of the (sic) wouldn't know about Vietnam, When you ring D.V.A. all you get is talk to is Asians, so I don't ring them.
As I said, that may well again reflect on Dr Tan's opinion. A comment which I found significant in Dr Akkerman's evidence was where he said, referring to the applicant:
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©Auscript Pty Ltd 2001I don't think he is intelligent enough to deceive me on all the occasions I have seen him.
Now, in that regard I would refer back to Mr Taylor's report, who puts the applicant in the lower 11.5 per cent of the population intellectually. And Dr Akkerman said:
Depression is very commonly a secondary condition to PTSD.
So again depression has been found and points to PTSD. Dr Walden did see the applicant on behalf of the respondent and interestingly enough she saw the applicant after he had first consulted Dr Akkerman, yet took quite a different history. Again, that illustrates Dr Akkerman's point about the applicant's reluctance to discuss the matter. Yet, Dr Walden did find a dysthymic disorder.
In this case, given even the opinions of Drs Tan and Walden, I am satisfied that Dr Altman is simply wrong in his diagnosis of the applicant. Dr Tan, Mr Taylor, did not really explore PTSD and as stated Dr Walden, for reasons which were obvious, given the evidence of what Dr Akkerman said, simply did not get the history to enable her to make that diagnosis. As the applicant said of Dr Walden:
I only answered the questions she asked me. Even then I couldn't care much of the time.
Of Vietnam, the applicant said:
I don't like to think about it. I don't like to talk about it. I don't like to talk about it to anyone.
He said that even now he still feels suicidal at times. Interesting comment by the applicant, almost as an aside, was that "my wife blamed our marital troubles on Vietnam". Of course, it is a pity the wife has never been interviewed but I do note from the documents Dr Cook tried at the time of the assault to interview her, but she refused. One might mention that in any marital dispute there are always two sides to a question, and I consider that that comment, the wife blaming marital troubles on Vietnam, is relevant.
In his evidence, the applicant conformed to the criteria for PTSD in that he has a startled response, he has difficulty staying asleep, there is an avoidance factor, he has a sense of a foreshortened future, avoids people. For example, he said he would go shopping at Coles in the middle of the night when there are not many people around, and he has recurrent and
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©Auscript Pty Ltd 2001intrusive recollections. The only other report referred to is Dr Burns, who expressed an opinion that he did not think the applicant had PTSD. I do not place any weight on that.
Dr Burns' expertise is as an occupational physician, not a psychiatrist. Taking all the material before me, I am satisfied that due to the very disease in question the applicant has avoided giving a full history to examining psychiatrists and other professionals, and so has in the past and by Dr Walden been misdiagnosed. I am reasonably satisfied the correct diagnosis of the applicant's condition is that decided upon by his treating psychiatrist, namely that of post traumatic stress disorder.
Applying the Deledio test, it is clear that an hypothesis has been raised. Frankly, the land mine explosion without more, without the other incidences of service, would be sufficient and that hypothesis conforms with the Statement of Principles relevant to this case. The facts supporting the hypothesis are not in any doubt. I therefore set aside the decision under review and substitute in lieu thereof the Tribunal's decision that the applicant's refractive error and post traumatic disorder are war-caused and that he is entitled to pension in respect of incapacity from the said conditions as and from 10 April 1997. The matter is remitted to the Repatriation Commission in order that it might assess the amount of pension to be paid.
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