Sparks and Repatriation Commission

[2005] AATA 319

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/965

VETERANS' APPEALS DIVISION		)
Re		ALEXANDER SPARKS

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member P McDermott

Date11 April 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

....................[Sgd].....................

P McDermott
  Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ entitlements – application for review of denial of claims for anxiety disorder, alcohol dependence or alcohol abuse, malignant neoplasm of the colon and atrial fibrillation – no reasonable hypothesis connecting experiences during service to any condition – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 9, 70, 120B, 196B

White v Repatriation Commission (2004) 39 AAR 67
Stonehouse and Repatriation Commission [2004] AATA 707
Williamson and Repatriation Commission [2004] AATA 1185
Repatriation Commission v Gosewinkel (1999) 59 ALD 690
Delahunty v Repatriation Commission [2004] FCA 309

REASONS FOR DECISION

11 April 2005 Senior Member P McDermott   

1. The applicant seeks review of two decisions made by a delegate of the Respondent. The first decision was made on 20 February 2001 to reject his claim for anxiety disorder, and alcohol dependence or alcohol abuse. The second decision of 20 May 2002 rejected the applicant’s claim for malignant neoplasm of the colon and atrial fibrillation. Both decisions were affirmed by the Veterans’ Review Board on 12 September 2003 on the ground that these conditions were not war-caused or defence caused within the meaning of ss 9 and 70 of the Veterans’ Entitlements Act 1986. 

Service of Applicant

2.      The applicant has extensive service on various ships in the Royal Australian Navy.  The applicant has the following eligible service:-

§  Operational Service

Far Eastern Strategic Reserve

§  17 March 1958 to 3 April 1958

§  23 April 1958 to 13 May 1958

§  7 April 1960 to 15 April 1960

§  6 May 1960 to 2 June 1960

§  5 January 1961 to 24 January 1961

§  17 February 1961 to 9 March 1961

§  25 March 1961 to 17 April 1961

§  30 November 1961 to 22 December 1961

§  15 January 1962 to 25 January 1962

§  29 January 1962 to 24 February 1962

§  2 March 1962 to 27 March 1962

§  17 February 1966 to 27 April 1966

§  9 June 1966 to 16 July 1966

§  24 July 1966 to 3 August 1966

Vietnam

§25 January 1962 to 29 January 1962

§27 April 1966 to 9 May 1966

§13 April 1967 to 22 April 1967

§28 April 1967 to 5 May 1967

§13 November 1968 to 28 November 1968

§Defence Service

§7 December 1972 to 1 June 1977

Events Experienced by Applicant

3.      The applicant gave evidence that he had experienced various events that have caused the various ailments which are the subject of his claim. 

4.      These events relate to his service as a gunnery rating in Vietnam aboard various ships where he was the director aimer for all the time that he was on those ships.

5.      During his evidence the applicant verified the correctness of statements that are exhibits in these proceedings.

6.      The main events that are the basis of the claim of the applicant relate to the following alleged facts:-

(a)in 1962 whilst he was a member of the crew of HMAS Quickmatch after landing at Saigon on tour to ascertain whether it was feasible for HMAS Sydney to navigate to Saigon, he participated in a football match with the crew of HMAS Vampire which was evacuated due to enemy activity;

(b)the crew being told by the captain of HMAS Quickmatch that they had overstayed their welcome;

(c)being hounded and observed by enemy troops on the banks of the Mekong River;

(d)      observing tracer bullets whilst on HMAS Vampire;

(e)      being aware of the risk posed by floating mines and enemy divers.

7.      The statements of the applicant that were tendered in evidence differed from the evidence that was given before the Veterans’ Review Board.  It is clear that the evidence of the applicant was in some respects incorrect or exaggerated.  This applies to the statement of the applicant that on the day of their departure from Saigon he saw “the burning vehicles along the road”.  However, before the Board the applicant referred to “a few burnt cars on the side of the road”.   The applicant in evidence stated that on the day of his departure the Presidential Palace was bombed. 

8.      The applicant, in his statement that was admitted in evidence, stated that he had seen the Vietcong after his evacuation.  He stated: “During our trip down the Mekong River, we were hounded and observed by the Vietcong along the riverbanks.  He added: “As I could see the Vietcong along the banks, I could see them armed with machine guns and rocket propelled grenades”. 

9.      In cross-examination the applicant stated that his vessel “probably were” hounded by the Vietcong.  He stated: “We didn’t know if it was, sir, or not”.  When the applicant was asked about his statement that he could see them armed with machine guns and rocket propelled grenades, he answered: “Probably – well, I won’t use that word.  That’s not the right one.  They were carrying something like that”.

10.     In proceedings before the Board the applicant was asked whether he could see the Viet Cong he said: “No.  You wouldn’t see them, sir.  No, you wouldn’t see them in the mangroves and all that.  You would not see them in the long grass”.

11.     The account of the applicant was contradicted by the Writeway Research reports that were admitted in evidence and prepared by Capt JC MacDonald who gave evidence before the Tribunal.  For example, he pointed out that the Presidential Palace was bombed some time after the departure of HMAS Quickmatch from Vietnam.  The Presidential Palace was strafed by two renegade officers.

12.     Capt MacDonald gave evidence that the Captains of both HMAS Quickmatch and HMAS Vampire had given positive reports of the goodwill visit.  The reports contain no mention of any forced evacuation of Saigon because of enemy action.  The Captain of HMAS Quickmatch in his report stated that it was one of the best visits he had had in his naval career.   

13.     In evaluating the evidence of the applicant I am prepared to take into account the circumstance that the applicant was a young man at the time of the events which were some 40 years ago.  However, the fact remains that some events which have been described by the applicant as having occurring during the visit certainly did not happen, such as the strafing of the Presidential Palace or the fact that the crew of HMAS Quickmatch had to evacuate from Saigon due to enemy activity. 

14.     The applicant stated in evidence that his statement was typed by his son.  He was asked whether his son had “gilded the lily without you realising it, without you caring?” The applicant replied “Yes, could been”. 

15.     In evidence before the Board the applicant stated that he was not actually shot at while he was in Vietnam.

16.     I have also considered the evidence of Rear Admiral P H Doyle AO OBE RAN (Rtd).  In his statement of 14 February 2004 that was admitted in evidence, Rear Admiral Doyle stated that the passage of HMAS Quickmatch up and down the Mekong River was uneventful. 

Statements of Principles

17. The claims of the applicant are subject to a number of Statements of Principles that have been determined by the Repatriation Medical Authority: see s 196B. I will examine the claims of the applicant having regard to the applicable Statement of Principles.

18.     I am required to consider whether the events that are experienced by the applicant during his period of eligible service fit into the template of a relevant Statement of Principles. 

19.     It is common ground between the applicant and respondent that the applicant’s claim for hypertension, neoplasm of the colon and atrial fibrillation depend upon the applicant being successful in his claim in relation to alcohol abuse or alcohol dependence or his claim for an anxiety disorder or depressive disorder.

20.     It has been established by the report of 2 May 2002 of Dr Viljoen that the applicant has hypertension and atrial fibrillation.  The report of Dr Viljoen also is evidence of the applicant having neoplasm of the colon.

§  Anxiety disorder

21.     I have to consider whether the applicant can be regarded as having experienced a “severe psychosocial stressor” within the meaning of Statement of Principles (No 1 of 2000) which relates to anxiety disorder: see Veterans’ Entitlement Act 1986, s 120B

22.      Dr John Brown, a psychiatrist, gave evidence before the Tribunal by telephone.  Dr Brown’s report was admitted into evidence.  Dr Brown diagnosed the applicant as having an anxiety disorder, alcohol dependence or abuse and depressive disorder.  Dr Brown in his report stated that the applicant was subject to the traumatic events that have already been discussed.  Dr Brown stated that in Vietnam the applicant felt on edge all the time.  He felt vulnerable and vigilant.

23.     In White v Repatriation Commission (2004) 39 AAR 67, in discussing Statement of Principles (No 1 of 2000), Spender J (at [30]) remarked: “In my judgment, the definition of severe psychosocial stressor concerns an occurrence that, objectively, is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which, subjectively, evokes feelings of substantial distress in the particular person concerned”. See also Stonehouse and Repatriation Commission [2004] AATA 707.

24.     Applying these remarks of Spender J to this case it is difficult to see how the experiences of the applicant can be said to be a “severe psychosocial stressor” within the meaning of Statement of Principles (No 1 of 2000): see Veterans’ Entitlement Act 1986, s 120B.

25.     At no time was the applicant under any personal attack or threat.  The applicant did not experience an event of the severity of the events mentioned in the definition.  Those events are such as to severely compromise a person’s health or social and financial supports. 

26.     In this respect it has been recently held by this Tribunal that ongoing fear about what may possibly occur is not “an identifiable occurrence” within the meaning of the definition of severe psychosocial stressor : see Williamson and Repatriation Commission [2004] AATA 1185.

27.     Dr Brown in his evidence could not confirm the existence of the diagnostic criteria in Statement of Principles (No 1 of 2000). 

28.     Dr Alroe, a psychiatrist, who examined the applicant in 1996, stated in his report that there was “no evidence of any psychiatric disorder”.

§  Alcohol Dependence

29.     I have to consider whether the applicant can be regarded as “experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse” in terms of Statement of Principles (No 76 of 1998) which relates to alcohol dependence: see Veterans’ Entitlement Act 1986, s 120B.

30.     In considering the definition of “severe stressor” I am mindful of the observations of Tamberlin J in Delahunty v Repatriation Commission [2004] FCA 309 (at [28]) that considerable latitude must be extended when considering whether a person has experienced a severe stressor. His Honour pointed out (at [27]) that the definition must be approached in a manner which is not unduly restrictive. Whilst His Honour was then considering another Statement of Principles (SoP 3/1999), I consider that I should adopt such an approach on this occasion.

31.     One of the requirements of the definition of “severe stressor” is that the relevant event or events might evoke intense fear, helplessness or horror”. 

32.     There is no evidence which points to a hypothesis connecting alcohol dependence or alcohol abuse with his service. There was no injury at the time, and there was also no evidence of any serious injury being committed. 

33.     I accordingly find that for the purposes of Statement of Principles (No 76 of 1998) the applicant did not experience a “severe stressor” within the meaning of factor 5 (b). 

§  Applicant’s Pension Entitlement

34.     On 13 June 2002 the respondent assessed the applicant’s disability pension at 20% of the General Rate. 

35.     On 23 September 2004 Dr Brown reported an updated GARP assessment.  In that assessment he scored the applicant as having a functional assessment of 27.

36.     It may accordingly be appropriate for the respondent to reconsider the applicant’s pension entitlement if such an assessment has not occurred since Dr Brown reported on 23 September 2004. 

Decision

37.     The Tribunal affirms the decision under review. 

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott.

Signed:         Camille Banks

Associate

Date/s of Hearing  10 February 2005 
Date of Decision  11 April 2005
Counsel for the Applicant         Mr C Smith  
Solicitor for the Applicant          Sciacca’s Lawyers  
For the Respondent                  Mr M Smith, Departmental Advocate