Stevenson and Repatriation Commission
[2006] AATA 60
•27 January 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 60
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/932
VETERANS' APPEALS DIVISION )
Re DAPHNE STEVENSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date27 January 2006
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..........[Sgd]...........
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – application for war-widows pension – operational service – claim conditions were war-caused – application of Statement of Principles – depressive disorder – ischaemic heart disease – psycho-social stressor – decision affirmed.
Veterans’ Entitlements Act 1986 ss 6, 7, 8, 120, 120A, 196B
Secretary, Department of Social Security v Murphy [1998] FCA 809
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472
Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Hillier and Repatriation Commission [2004] AATA 897
Repatriation Commission v Stoddart (2003) 77 ALD 67
Lees v Repatriation Commission (2002) 125 FCR 331
Re Repatriation Commission v Cornelius (2002) FCA 750
Schmidt v Repatriation Commission [2004] FCA 1158
Bull v Repatriation Commission [2001] FCA 1832
Kattenberg v Repatriation Commission [2002] FCA 412
Repatriation Commission v Stoddart [2003] FCAFC 300
Repatriation Commission v Gorton (2001) 110 FCR 321
Haughey and Repatriation Commission [2005] AATA 189
Fenner v Repatriation Commission [2005] FCA 27
Repatriation Commission v Bey (1997) 79 FCR 364
Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153; (2003) 74 ALD 37 Grundman v Repatriation Commission [2001] FCA 892
Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Woodward v Repatriation Commission [2003] FCAFC 160
O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
Mines v Repatriation Commission [2004] FCA 1331REASONS FOR DECISION
27 January 2006 Mr SC Fisher, Member Introduction And Background
1. Mr Norman Aitken Stevenson (the veteran) served with the Royal Australian Army from 24 April 1941 until through November 1945. The veteran served in Dutch New Guinea and Morotai from 30 January 1945 until 30 June 1945 (also a period of operational service). The veteran was born on 10 November 1921 and died on 9 May 1985 aged 63 years.
Jurisdiction
2. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to provisions of the Act unless the context indicates otherwise.
The Decision under Review
3. The decision under review is a decision made by the Repatriation Commission (the Respondent) on 14 January 2003 refusing the claim of Mrs Daphne Stevenson that the death of her late husband, Mr Norman Stevenson, was service related. The 14 January 2003 decision was affirmed by the Veterans' Review Board on 2 September 2004. The Applicant appealed to this Tribunal on 7 December 2004.
The Role of the Tribunal
4. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy [1998] FCA 809. The Tribunal is guided by the norm that it should reach the correct or preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate: section 33(1)(c) of the Administrative Appeals Tribunal Act 1975. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
5. This Tribunal is not vested with a general discretion to circumvent, override, sidestep or supplant the otherwise very clear terms of legislation that determines income support entitlements such as veteran’s pension and related entitlements.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Supplementary Statement of Christine L’Estelle Stevenson dated 26 September 2005.
Exhibit 3Statement of Daphne Stevenson of dated 26 July 2005.
Exhibit 4Supplementary Statement of Daphne Stevenson dated 26 September 2005.
Exhibit 5Statement of Christine L’Estelle Stevenson dated 26 July 2005.
Exhibit 6Historical Report dated 8 March 2005 by Associate Professor John McCarthy, ADFA.
Exhibit 7Historical Report dated 11 October 2005 by Associate Professor John McCarthy, ADFA.
Exhibit 8Bundle of medical documents and previous claim by the veteran for a war pension and associated documentation filed 25 January 2005.
Exhibit 9Map of Halmahera and Morotai.
7. The Applicant was represented by Mr R Clutterbuck of counsel. Mr Clutterbuck was instructed by McAlister Cartmill. Exhibits 1 – 5 were lodged on behalf of the Applicant.
8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1.
9. The Respondent was represented by Mr Jeff Kelly, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal. The Respondent lodged Exhibits 6 – 8 with the Tribunal.
10. The Applicant lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Evidence for the Applicant
11. The Applicant gave evidence in person. In addition, Ms Christine Stevenson gave evidence for the Applicant.
Evidence of the Applicant
12. The evidence of the Applicant to the Tribunal was as follows:
- The Applicant said that her husband was an apprentice motor mechanic before he enlisted in World War II.
B.The Applicant said that she knew him "by reputation" before she actually met him which was in June 1944 during a period of leave from the Army where he was stationed in Western Australia. The Applicant described the veteran as a "most placid man, quiet and gentle, a real gentleman and always willing to go out of his way to help others". The Applicant said that he was stable.
C.The Applicant married the veteran on 15 September 1945.
D.The Applicant said that there was a marked change in the veteran after his World War II service. Some of these changes included an inability to cope with minor everyday type stresses of life, he was very unsettled, he refused to discuss his war experience and quickly lost his temper with people and would became very angry.
E.The Applicant said that she and the veteran moved house constantly between 1945 and 1985, and she could recall at least 19 different residences that they lived in.
F.The Applicant recalled that the veteran changed employment on many occasions (Exhibit 3 detailed 30 changes of employment) between 1945 and 1982. The Applicant put this down to his unsettled state caused by his war service.
G.The Applicant said that after the war the veteran's nerves were "shot to pieces". The Applicant recalled that unexpected noises caused him to cringe, and recounted an incident in 1946 when she and her husband were on a tram Brisbane when a passing truck backfired. This caused the veteran to crouch on the floor where he had dived for cover.
H.The veteran told the Applicant how his unit was camped near an American ammunition dump and that when he heard planes approaching, his stomach muscles would tighten and he would become physically ill because he thought that the planes were Japanese planes that were about to bomb the ammunition dump which would have caused danger to himself and the men in his unit.
I.The Applicant said that the veteran was emotionally dependent on her for his well-being.
J.The Applicant said that her husband visited various general practitioners for treatment of symptoms relating to his nervous condition between 1945 and 1950.
K.In 1948 when the Applicant in the veteran left at the Gold Coast, the veteran went to see a military doctor, Dr Mackay, about his mental condition. The Applicant said that the veteran did not need to visit doctors about any physical conditions because he was in excellent physical health apart from minor ailments from time to time.
L.The veteran re-joined the Army between 1952 and 1960.
M.In December 1959, the veteran suffered a nervous breakdown and was admitted to Greenslopes Repatriation Hospital where he received electroconvulsive therapy.
N.During the 1970s and the early 1980s, the veteran continued to consult general practitioners about minor physical ailments and his mental condition.
O.The Applicant said that the veteran did not celebrate his war service, and that he disgusted only briefly with her. He said that he found the war service to be stressful and that is why he avoided speaking or thinking about it for fear that this would bring to the surface the stress, anxiety and fear he experienced during that war service.
Evidence of Ms Christine Stevenson
13. Ms Christine Stevenson is the daughter of the Applicant and the veteran. Ms Stevenson is a well-credentialed academically-trained historian who has also conducted research into aspects of her father's war service and the environment in which he discharged his war service. Ms Stevenson provided 2 statements in these proceedings (Exhibits 2 and 5), and prepared a lengthy report/investigation captioned "Morotai - March -- June 1945" which was attached to Exhibit 2.
14. The substance of the evidence provided by Ms Stevenson to the Tribunal is as follows:
- In her 26 July 2005 statement (Exhibit 5), Ms Stevenson said that her father may have had a fear of injury from aircraft flying overhead even if those aircraft were Allied aircraft. Ms Stevenson cited hostilities between American and Japanese forces on Bougainville, New Guinea from November 1944 through to the first half of 1945. Ms Stevenson conceded that Japanese attacks on Morotai ceased by the time her father arrived there in March 1945. Ms Stevenson observed that Morotai was only 12 miles from another island, Halmahera, controlled by the Japanese during World War II, and that knowledge of this may have cause fear in Allied military personnel stationed on Morotai.
B.Ms Stevenson said in her 26 July 2005 statement (Exhibit 5) that while she was a child, she and her brothers would have to tread warily around their father and not do anything to provoke him or anger him.
15. In her report "Morotai - March -- June 1945", Ms Stevenson accepted two propositions put forward by Associate Professor John McCarthy, namely (1) the veteran was not involved in any action with the enemy; and (2) the sea voyages transporting the veteran to and from Morotai were uneventful in terms of enemy attack.
16. Ms Stevenson argued in her report "Morotai - March -- June 1945" that:
- The veteran’s experiences on Morotai were completely consistent with the conditions on the island during his period of service there;
B.Large amounts of ammunition were stored on Morotai;
C.There was a possibility of Japanese air, sea and ground attack during the time the veteran spent on Morotai;
D.The veteran experienced at least one instance of severe psycho-social stressor while on the island;
E.At least one Japanese air attack actually took place while the veteran was stationed on the island (on 22 March 1945).
17. Ms Stevenson’s research demonstrates that there was some Japanese resistance on Morotai while the veteran was stationed there, and also that on at least one occasion, 4 Japanese barges containing soldiers traversed the 12 mile strait between Halmahera and Morotai and disembarked soldiers on the island. Ms Stevenson's research also shows that military personnel did not share the optimism about the defeat of the Japanese in the region displayed by Associate Professor McCarthy.
18. Ms Stevenson conceded that Associate Professor McCarthy was probably right in his contention that the veteran did not personally take part in the amphibious or air attack operations launched on Borneo from the base on Morotai.
Evidence for the Respondent: Associate Professor John McCarthy
19. The only evidence presented by the Respondent came from Associate Professor John McCarthy, ADFA. Associate Professor McCarthy compiled two historical reports, one dated 8 March 2005 (Exhibit 6) and the second dated 10 October 2005 (Exhibit 7), which was a rejoinder to Ms Stevenson's report/investigation and annexed to and forming part of Exhibit 2.
20. In his 8 March 2005 report (Exhibit 6), Associate Professor McCarthy concluded that the troopship on which to the veteran travelled from Australia to the region of hostilities was not subjected to any enemy attack nor was it in the vicinity of enemy forces during that voyage. Moreover, the veteran did not face any danger while his unit was at Hollandia and the unit's war diary did not mention any attack on it at that time. Associate Professor McCarthy concluded that after the unit moved to Morotai on 27 February 1945 "it would be most reasonable to argue that the late Veteran did not face the actuality or either the possibility of danger from the enemy while he was on Morotai".
21. In his second report dated 10 October 2005 (Exhibit 7), Associate Professor McCarthy conceded small-scale Japanese incursions did take place from Halmahera to Morotai, but notes that there was no evidence that subsequent clashes between Allied and Japanese forces following those incursions involve the veteran personally. Associate Professor McCarthy conceded the occurrence of the air attack from 2 Japanese aircraft on 22 March 1945 which dropped seven bombs at the north-east end of the Pitu airstrip damaging a mess hut and wounding an American. Associate Professor McCarthy was not able to find any evidence relating to the proximity of the veteran to the site where this incident took place.
Medical evidence relating to the veteran
22. The medical evidence before the Tribunal diagnosed the veteran as suffering from anxiety depression in January 1960.
23. The death certificate of the veteran recorded the cause of death as "1(a) cardiac arrest (b) myocardial infarction (c) ischaemic heart disease 2(a) diabetes mellitus (b) pericarditis" with the duration correspondingly "1(a) immediate (b) 6 weeks (c) many years 2(a) many years".
24. According to this evidence, the veteran's ischaemic heart disease had a clinical onset of 1985.
Discussion of the non-medical evidence
25. Ms Stevenson's evidence and research sought to maintain and reinforce the proposition that although the veteran was a non-combatant (because of his duties with a Light Armoured Detachment), because of the incidents and environment she described the veteran has having experienced, therefore the Tribunal should conclude that he experienced a severe psychosocial stressor which should provide the necessary nexus between his war service and his medical conditions. The Tribunal did review Ms Stevenson's research carefully, and also weighed that research in light of the research presented for the Respondent by Associate Professor McCarthy which has been summarised above. The Tribunal is left with the impression that whether or not the veteran was involved in an event that caused him to experience a severe psychosocial stressor is largely a matter of conjecture based on circumstantial evidence. While circumstantial evidence may be influential and even be decisive in the right case (because the cumulative weight and effect of such circumstantial evidence enables the court or tribunal to draw or infer the necessary further fact or facts relevant to the ultimate issue), it is a matter for the Tribunal as an appellate decision-maker to weigh up and sift the circumstantial evidence carefully. The Tribunal notes that the veteran never described to the Applicant a specific war-related incident or incidents which may have caused him to experience a severe psychosocial stressor which ultimately cause his medical conditions. The evidence of the Applicant to the Tribunal was that the veteran disliked talking about his war experience, and that when he did, it concerned the happier moments rather than the unhappy ones. The Tribunal accepts and finds that the veteran was a markedly different man before his overseas military service than he was afterwards, and acknowledges that his family bore the brunt of some of his changed negative behaviours after his return to Australia in 1945. The closest anything recounted by the veteran to the Applicant comes to experiencing a severe psycho-social stressor is the comment made that he was worried about being blown to kingdom come if the Japanese had managed to bomb the American ammunition dump which was nearby his own base. While the Tribunal accepts that this comment was made by the veteran to the Applicant, this particular statement indicates only a fear that the veteran held for his own safety, and not the basis of that fear (for example, Japanese air attacks which involved him personally or adjacent fighting between Allied and Japanese forces which involved him personally or affected him personally).
26. The Tribunal notes that there is no corroborating evidence which supports the contention made by the Applicant that the veteran experienced a severe psychosocial stressor (for example, evidence from anyone the veteran served with or any evidence from the unit war diary about Japanese attacks involving unit personnel). In connection with the documented Japanese air attack on 22 March 1945, there is no evidence to suggest the proximity of the veteran to the site where bombs were dropped. Even if unit war diaries are not always accurate, correct and complete (a possibility conceded by Associate Professor McCarthy), Associate Professor McCarthy said that he could not find any evidence of attacks on ammunition dumps by the Japanese.
Submissions of the Applicant
27. The Applicant contended that the depression suffered by the veteran emanated from his operational service such that there was a reasonable hypothesis under section 120 of the Act, which reasonable hypothesis could not be disproved beyond reasonable doubt. The Applicant relied on factor 5(m) of the Statement of Principles for ischaemic heart disease as providing the necessary nexus between operational service and his medical conditions.
28. The Applicant contended that the medical evidence associated with the nervous breakdown of the veteran in late 1959 should be seen as attributing the genesis of the anxiety disorder to his operational service.
29. The Applicant relied upon Hillier and Repatriation Commission [2004] AATA 897 where Jarvis DP said:
“[65] I consider that the questions of whether a particular occurrence said to constitute a stressor satisfies the definition of “severe psychosocial stressor” in the depressive disorder SoP, and whether the applicant has experienced such a stressor, would include the following considerations.
(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
30. The Applicant submitted that in relation to paragraph (a) from Hillier and Repatriation Commission [2004] AATA 897 at [65], the objective occurrence was the passing overhead of aircraft laden with ordinance. Given the occurrences that took place on the island it would have been difficult to determine if they were Japanese or Allied planes. In relation to paragraph (a), the Applicant submitted that Repatriation Commission vStoddart (2003) 77 ALD 67 required that the reference, albeit in a PTSD environment to a "threat of imminent danger" or a "threat of clear and present danger" have been used similarly to describe the subjective element.
31. The Applicant contended further that:
A. For the purpose of a determination being made pursuant to s.120A of the Act – and with reference to the reasonable hypothesis that must be raised taking into account the existence of a relevant Statement of Principles pursuant to s.196B of the Act, IHD – Instrument No 53 of 2003 is applicable. The factors that must as a minimum exist before it can be said that such reasonable hypothesis has been raised primarily arises under factor 5(m) – suffering from a clinically significant depressive disorder for at least 5 years before the clinical onset of IHD. There is abundant evidence that the veteran suffered a depressive disorder for at least 5 years before the clinical onset of IHD. The question for the Tribunal is whether the depressive/anxiety disorder arose out of his operational service. SOP No 58 of 1998 – depressive disorder in its factors states inter alia:
‘That for it to be said that a reasonable hypothesis has been raised connecting the depressive disorder with the circumstances of the relevant service any of the factors identified therein must exist namely, experiencing a severe psycho-social stressor or stressors within 2 years immediately before the clinical onset of depressive disorder or alternatively, having a clinically significant psychiatric condition within 2 years immediately before the clinical onset of depressive disorder. Both factors 5(b) and (c) are satisfied – (b) because of the nature of the stressors that were suffered by the veteran and that an anxiety disorder has been identified as either occurring simultaneously with or independently of the depressive disorder. Factors 5(f) and (h) are also relevant as aggravating features. A psycho-social stressor is therein defined as an identifiable occurrence that evokes feelings of substantial distress in an individual “for example being shot at, death or serious injury of a close friend or relative, assault, severe illness or injury etc.’” [The source of this quote was not given by the applicant.]
B. It is now necessary to determine clinical onset. Lees v Repatriation Commission (2002) 125 FCR 331 at 336 is authority for the proposition that the meaning of the phrase ‘clinical onset’ means:
“there is a clinical onset of the disease either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
C. That analysis has been endorsed by the Federal Court in Re Repatriation Commission v Cornelius (2002) FCA 750. Lees (at 16) said that “Clinical onset is to be determined by reference to the definition of a disease –
“the purpose of the definition (in the SOP) is to identify those symptoms or features which if observed by a clinician, would warrant a conclusion that the patient suffered from generalised anxiety disorder – while it is true that the statement of principles are directed to causation, the means of establishing a necessary link in SOP 1 between disease and war service is to require that the symptoms (or features) of the disease are, in a case such as the present, revealed within 2 years of a veteran experiencing a severe psycho-social stressor.”
D. The veteran himself identified the clinical onset in his own application. The applicant has identified clinical onset as being within the relevant period post-return from his operational service.
E. The fallacy in the respondent’s contentions that there must be some objective evidence from which one can determine that there is evidence sufficient to ‘warrant’ ongoing management defies what the Federal Court had to say in Lees (supra). Nevertheless there is evidence that there was a need to undergo continuing management which did involve regular visits to at least one general practitioner and this evidence has been borne out by the applicant. The contentions of the respondent are again disputed and unsupported in this regard as to state ‘there is no record or evidence of any treatment or diagnosis of this condition before this time’ (the Royal Greenslopes General Hospital (RGGH) incident) is to ignore the statutory provisions in the Act that require the beneficial nature of the legislation to be considered when assessing matters of this nature.”
Submissions of the Respondent
32. The contentions of the Respondent were to the following effect:
A. The respondent acknowledges that the primary condition causing the death of the veteran was ischaemic heart disease.
B. The respondent refutes that this condition is war caused.
C. The only factor in the relevant SoP that may apply in this matter is that contained in Factor 5(m) “suffering from clinically significant depressive disorder for at least five years before clinical onset of ischaemic heart disease”. Clinically significant is defined in the SoP as meaning “sufficient to warrant ongoing management, which may involve regular visits (eg at least monthly) to a psychiatrist, counsellor or General Practitioner”.
D. The respondent acknowledges that the veteran suffered a clinically significant depressive disorder in 1959. There is no record or evidence of any treatment or diagnoses of this condition before this time. After discharge from RGHG again there is no record/evidence of any ongoing treatment that would satisfy the definition.
E. The respondent acknowledges that the veteran was assessed by a psychiatrist in 1983 who diagnosed moderate depression. It is noted however that the veteran’s main emotional issues at this time was anger at losing his job, the circumstances of his discharge from RGGH and the failure of his repatriation claim. There is no record or evidence of any further treatment for a psychiatric condition.
F. In any event, for depressive disorder to be accepted as a link in the veteran’s death a factor in the relevant SoP for that condition would need to be satisfied.
G. The only factor in the relevant SoP that may apply in this matter is factor 5(b) “experiencing a severe psycho-social stressor or stressors within two years immediately before the clinical onset of depressive disorder”.
H. The respondent contends that there is no record or evidence of the veteran experiencing such, as defined in the SoP, during his period of service in WWII. The respondent also contends that there is no record of the veteran seeking treatment, or being diagnosed for a depressive disorder within two years of his WWII service. It is to be noted that the veteran rejoined the services in 1950, and thus, passed an official medical examination.
The Legislation
33. Section 8(1)(b) of the Act provides that the death of a veteran is taken to have been war-caused if that death arose out of, or was attributable to, any eligible war service rendered by the veteran. It was common ground in this appeal that the veteran had rendered operational service, and so rendered eligible war service within the scheme of sections 6 to 6F and section 7 of the Act. A person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service: see Hillier v Repatriation Commission [2004] AATA 897 at [10].
34. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and section 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
35. As the veteran has performed operational service, as defined in section 6 of the Act, the determination of whether his conditions of ischaemic heart disease and hypertension are war-caused is to be made by applying sections 120(1) and 120(3), as affected by section 120A, of the Act. Sections 120(1) and 120(3) provide 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.”
36. Authority establishes that when applying section 120(3), decision-makers (including this Tribunal) must look at all the material, not just some of it, that is before the decision-maker, including material that supports and opposes the formation of the reasonable hypothesis. It is not entitled to find facts or reject matters. The decision maker must consider the whole of the material before it – see Bull v Repatriation Commission[2001] FCA 1832 at [21] and Kattenberg v Repatriation Commission[2002] FCA 412 at [38] and [39].
37. Under section 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a SoP in respect of a particular kind of injury or disease, the reasonableness of a 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.”
38. According to the decision of the Full Court of the Federal Court of Australia in Repatriation Commission v Stoddart [2003] FCAFC 300, at [10] the standard of proof to be applied by the Repatriation Commission (and on review by the Tribunal) to the question whether a disease is war-caused where a claim relates to operational service, is dealt with in sections 120(1) and (3) of the Act.
39. The Repatriation Medical Authority has devised Statements of Principles (“SoPs”) in respect of anxiety disorder and alcohol dependence or alcohol abuse pursuant to section 196B(2) of the Act. Section 120A says the reasonableness of the hypotheses must be assessed against the relevant SoPs. There were no determinations of the Repatriation Commission under section 180A(2) that are relevant to this case, and the parties did not contend to that effect. An SoP is brought into existence in order to comply with section 196B: Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42]. In accordance with the decision of the Full Court in Repatriation Commission v Gorton (2001) 110 FCR 321, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15].
40. Section 196B(14) of the Act sets out the relationships to service contemplated by the SoP’s, whether the service is war service or defence service: see Haughey and Repatriation Commission [2005] AATA 189 at [35]. Section 196B(14) reads:
“196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i) to a place for the purpose of performing duty; or
(ii) away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for Chenges in the person’s environment consequent upon his or her having rendered that service.”
Diagnosis
41. The first issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4) of the Act.
42. The death certificate of the veteran recorded the cause of death as "1(a) cardiac arrest (b) myocardial infarction (c) ischaemic heart disease 2(a) diabetes mellitus (b) pericarditis" with the duration correspondingly "1(a) immediate (b) 6 weeks (c) many years 2(a) many years". Based upon the evidence before the Tribunal, the Tribunal is reasonably satisfied that the veteran suffered from ischaemic heart disease of six weeks’ duration before his death.
43. Essentially, the chain of reasoning pursued by the Applicant in these proceedings insofar as the medical conditions of the veteran are concerned is as follows. The Applicant asserts that the depressive disorder suffered by the veteran led to his ischaemic heart disease, which was the immediate or proximate cause of death.
The Deledio steps
44. In Deledio the Full Federal Court summarised (at 97-98) the four steps the Tribunal must follow in deciding whether a disease or injury is war-caused:
“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.”
45. The Full Court of the Federal Court made a correction to the second sentence of the above formulation in Bull v Repatriation Commission [2001] FCA 1832 at [14]; (2001) 34 AAR 326 at 330: see Fenner v Repatriation Commission [2005] FCA 27 at [13]. This correction is not material to the present appeal.
46. Despite occasional deviations (see that noted by the Full Court of the Federal Court in Hill v Repatriation Commission [2005] FCAFC 23) the four step Deledio template continues to be normative in veterans’ jurisprudence, and it will be followed in this case consistent with the constant and consistent stream of authority in this domain. The Tribunal noted that the four step Deledio template is cumulative, that is to say it is necessary to satisfy each of the four steps if a veteran's claim or the claim of a dependant of a veteran is to be accepted as war-caused within the meaning of the Act.
The Mines Preliminary Step
47. In Mines v Repatriation Commission [2004] FCA 1331 at [37], Gray J made these important observations about the Deledio reasoning process:
“[37] …The steps outlined in Deledio constitute a process of reasoning to be undertaken when the question arises whether a connection exists between a particular injury, disease or death and the particular operational service rendered by the veteran concerned. The first step identified in Deledio assumes that there has already been a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service. The first step is to identify whether the material points to a reasonable hypothesis connecting the one with the other. There cannot be such a reasonable hypothesis unless the two facts to be connected have already been identified. Their identification is not one of the steps referred to in Deledio.”
Gray J went on to say -
“[38] …Section 120(1) of the [Veterans’ Entitlements Act] appears to be based on the assumption that there will have been determined both the question whether there exists or has occurred an injury, disease or death and the question whether the relevant veteran had rendered operational service.” …
48. This concludes the preliminary or antecedent investigation before the first Deledio step is applied.
49. Before the well-known Deledio framework is applied, it is necessary to make a finding that the requisite injury, disease or death exists or has occurred, and a finding that the veteran concerned rendered operational service: see Mines v Repatriation Commission [2004] FCA 1331 at [37]. These two preliminary findings provide the gateway into the Deledio framework of analysis. In this case, the Tribunal is satisfied that the Applicant has a medical condition in the nature of a physical ailment, disorder, defect or morbid condition within the meaning of "disease" in section 5D of the Act, namely depressive disorder and ischaemic heart disease. The Tribunal is satisfied also that the Applicant rendered operational service in an operational area within section 6A of the Act (this was common ground between the parties).
Application Of The Law To The Injury Alleged To Be War-caused
The first Deledio step
50. The Tribunal must determine that the material before it gives rise to a hypothesis connecting the disease to the service rendered. The Applicant's contention is that the medical conditions suffered by the veteran were related to service. Not unexpectedly, the Respondent contested the making of this hypothesis, pointing to the gulf in time between the service of the veteran (which ended on 3 November 1945) and the onset of the depressive disorder which was diagnosed on 21 December 1959.
51. The Tribunal took into account what the Federal Court said in Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 that there must be material pointing to a connection between the veteran’s disease and his or her war service. Either the material points to a connection or it does not. If there is no such connection, then the deficiency cannot be cured by resort to a procedural provision such as section 119(1)(g) (see also Fenner v Repatriation Commission [2005] FCA 27 at [26] – [ 29], citing Parnell-Schoeneveld v Repatriation Commission [2003] FCA 153 at [46]; (2003) 74 ALD 37 at 43 per Jacobsen J. and Grundman v Repatriation Commission [2001] FCA 892 at [33]; (2001) 66 ALD 125 at 135 per Gray J). In terms of aligning the statutory direction to act according to substantial justice with the requirements for a reasonable hypothesis under section 120, the Federal Court in Repatriation Commission v Bey has stated that section 119 does not displace section 120. In a similar vein, this Tribunal said in Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921 at 922 – 923 that section 119(1)(h) cannot be used to ensure a benign medical interpretation of facts once those facts have been determined relying on this legislative signpost.
52. Based upon the evidence before the Tribunal, the Tribunal is satisfied that there is a hypothesis linking the depressive disorder and the subsequent ischaemic heart disease suffered by the veteran with his operational service. The evidence discloses that the veteran’s post-World War II behaviour towards his wife and his family and people beyond his family was out of character with what he was like before his World War II service.
The Second Deledio Step
53. The second Deledio step is to determine the relevant SoP. In this case, the relevant SoPs are:
§Depressive disorder (Instrument No 58 of 1998).
§Ischaemic heart disease (Instrument No 53 of 2003, as amended by Instrument No 9 of 2004).
The Third Deledio Step: General Considerations
54. The Tribunal must then determine whether the facts as presented “fit” the SoP. Raised facts “fit” if they are consistent with the SoP: Woodward v Repatriation Commission [2003] FCAFC 160 at par 36. The Tribunal cannot make findings of fact at this point.
55. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the veteran’s condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b) of the Act). The relationship to service must be one of the relationships prescribed in section 196B(14) of the Act: Haughey and Repatriation Commission [2005] AATA 189 at [63].
The Third Deledio Step: depressive disorder
56. Relevant excerpts from Depressive disorder (Instrument No 58 of 1998) are as follows:
Kind of injury, disease or death
2.(a) This Statement of Principles is about depressive disorder and death from depressive disorder.
(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A) the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i)major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii)depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSM-IV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting depressive disorder or death from depressive disorder with the circumstances of a person’s relevant service are:…
(b)experiencing a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder;
(c)having a clinically significant psychiatric condition within the two years immediately before the clinical onset of depressive disorder;
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
57. The Tribunal notes that the submissions of the Applicant were not clear in specifying reliance on any particular factors in paragraph 5 of this SoP. The Respondent relied specifically on paragraph 5(b) of this SoP.
The Third Deledio Step: Ischaemic Heart Disease
58. Relevant excerpts from Instrument No 53 of 2003 (ischaemic heart disease), as amended by Instrument No 9 of 2004 (ischaemic heart disease) are as follows:
“Kind of injury, disease or death
2.(b) For the purposes of this Statement of Principles, “ischaemic heart disease” means a cardiac disability characterised by insufficient blood flow to the muscle tissue of the heart due to atherosclerosis, thrombosis or vasospasm of the coronary arteries.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting ischaemic heart disease or death from ischaemic heart disease with the circumstances of a person’s relevant service are:…
(m) suffering from clinically significant depressive disorder for at least five years before the clinical onset of ischaemic heart disease…;”
§ The Third Deledio Step: Consideration of the medical evidence and the SoP
59. The chain of reasoning that the Tribunal proceeds with in this case is that the Applicant contended that her husband's war service caused his depressive disorder which in turn caused his ischaemic heart disease which was the immediate or proximate cause of death.
60. Clause 4 of the each of the SoPs identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran. It is common ground between the parties that the Applicant has rendered “relevant service” within the meaning of clause 7 of the SoP. What is disputed (as was argued in effect by the Respondent) is whether the Applicant developed depressive disorder or ischaemic heart disease because of his operational service (a subset of “relevant service”). The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of the each of the SoP does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd(1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker, and this determination depends upon the nature, quality and probative value of the relevant and admissible evidence before the Tribunal.
61. In effect, the Applicant pinned her case upon establishing that her husband's war service caused in depressive disorder which led ultimately to his ischaemic heart disease which in turn led to his death. Clause 4 of the each of the SoPs identified above requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.
62. The Applicant contended that her husband's depression was caused by his war service. On the evidence, the earliest formal diagnosis of depression was in December 1959 when the veteran was admitted to the Repatriation General Hospital, Brisbane for treatment for depression. Exhibit 8 comprised medical records spanning 4 January 1960 – 10 June 1983. A report from a medical practitioner dated 4 January 1960 diagnosed "anxiety depression" and attributed its cause to "constitutional". A later notation in the same document in answer to the question "has the incapacity result from an occurrence that happened during his war service?" recorded the following answer "No. S/D shown no evidence of the condition existing during period of W/S." Similarly, in answer to a question "Did the incapacity arise out of or is it attributable to his war service?" the medical practitioner answered "no". In a claim for a war pension (reproduced also in Exhibit 8) dated 12 January 1960, the veteran contended "I consider the aggravation of war service and conditions... directly contributed to my nervous condition." This particular claim was rejected at the time.
63. From the perspective of the Applicant, it is critical that she demonstrate and establish the nexus between the war service of the veteran and his depressive disorder. Relevant excerpts from the SoP (Instrument No 58 of 1998) have been set out earlier in these Reasons for Decision. Accordingly, the question for the Tribunal is whether the veteran experienced “a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder". The Applicant invited the Tribunal to infer from the circumstances of the veteran's war service on Morotai in the Southwest Pacific Theatre (which circumstances have been discussed above) that the veteran experienced a severe psychosocial stressor or stressors within the two years immediately before the clinical onset of depressive disorder. More particularly, the Applicant contended that the veteran experienced a severe psychosocial stressor or stressors based on the threat of possible Japanese aerial attack or Japanese ground attack and upon flights overhead by Allied aircraft carrying ordinance. The Applicant said that because her husband was in good physical health, the only reason why he consulted medical practitioners after 1945 was for his nervous condition. Therefore, the Tribunal was invited to infer as a fact that the clinical onset of his depressive disorder took place within two years after 3 November 1945 based upon the severe psychosocial stressors the veteran is said to have experienced whilst on Morotai.
64. The Respondent pointed to the fact that the veteran had rejoined the Army in 1952, and that he passed a medical examination, which encompassed both his physical and mental states such that he would have been rejected as the candidate had he exhibited signs of any mental illness or instability such as depression.
65. The major difficulty facing the Applicant is that there must be an identifiable objective occurrence which fits within the framework of a severe psychosocial stressor. The 1960 war pension claim of the veteran did not provide any pinpoint references to specific events which amount to an identifiable objective occurrence. Given the sad death of the veteran in 1985, the 1960 war pension claim represents the best opportunity the veteran had to document and establish his claim to a war pension by referring to specific events or occurrences which may have caused his depressive disorder. Repatriation Commission v Bey (1997) 79 FCR 364 at 373; (1997) 47 ALD 481 at 490 directs this Tribunal (and other subordinate decision-makers) that there must be material pointing to a connection between the veteran’s disease and his or her war service. The Tribunal accepts that there is evidence from the veteran which states that the veteran attributed his nervous condition to his war service. But this does not go far enough because there is no evidence of an objective occurrence in order to meet the requirements of the SoP for a severe psychosocial stressor. Section 119 does not displace section 120 when it comes to the requirement for evidence to point to a connection between the veteran’s disease and his or her war service. The appeal by the Applicant to the beneficial nature of the Act as grounding the existence of a depressive disorder in the veteran sometime before December 1959 does not meet or overcome the deficiency in the evidence relating to whether or not an identifiable occurrence corresponding to a severe psychosocial stressor was expressed by the veteran. Accordingly, the Tribunal is not satisfied on the balance of probabilities on the evidence before it that the veteran experienced a severe psychosocial stressor within the two years before the clinical onset of depressive disorder or any clinical worsening of depressive disorder. This conclusion means also that the immediate cause of death of the veteran (ischaemic heart disease) cannot be attributed to his war service in a causative sense.
The fourth Deledio step: findings of fact
66. As the Tribunal has determined that neither of the hypotheses fit within the SoP templates, it is not necessary for the Tribunal to proceed to engage in fact-finding.
67. Tribunal’s Conclusion
68. The Tribunal concludes that the veteran’s death was not caused by or contributed to by service-related depressive disorder and ischaemic heart disease.
Tribunal’s Decision
69. For these reasons, the Tribunal decides to affirm the decision under review.
I certify that the 69 preceding paragraphs are a true copy of the reasons for the decision herein of Mr SC Fisher, Member
Signed: Jeff Mills
Legal Research Officer
Date of Hearing 18 October 2005
Date of Decision 27 January 2006
Counsel for the Applicant Mr R Clutterback
Solicitor for the Applicant McAlister Cartmill
Counsel for the Respondent Mr J Kelly, Departmental Advocate
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