Travers and Repatriation Commission
[2005] AATA 1040
•20 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1040
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1054
VETERANS' APPEALS DIVISION ) Re MICHAEL TRAVERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr J D Campbell, MemberDate20 October 2005
PlaceSydney
Decision The decision under review is affirmed.
................[sgd]................
Ms N Bell
Presiding Member
VETERANS’ AFFAIRS – Vietnam Veteran - Claim for Alcohol Dependence and Generalised Anxiety Disorder Conditions to be Recognised as War Caused – Eligible and Operational Service – Application Failed in Last Stage of ‘Deledio’ Test – Decision Under Review Affirmed
Veterans’ Entitlement Act 1986, section 120
Statement of Principles Instrument No 1 of 2000
Statement of Principles Instrument No 76 of 1998
Deledio v Repatriation Commission (1997) 47 ALD 261
Hardman v Repatriation Commission [2005] FCAFC 83
Bushell v Repatriation Commission (1993) 175 CLR 408
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Lees (2002) 36 AAR 484
White v Repatriation Commission (2004) 39 AAR 67
REASONS FOR DECISION
20 October 2005 Ms N Bell, Senior Member
Dr J D Campbell, Member1. Mr Travers served in the Australian Army for 2 years from 3 February 1966. His service from 17 February 1967 until 13 December 1967 was operational service, including service in Vietnam, and eligible war service within the meaning of the Veterans’ Entitlements Act 1986 (the Act).
2. Mr Travers claims that he suffers from generalised anxiety disorder and alcohol dependence and claimed a disability pension for these conditions. The Repatriation Commission accepted his claim and paid a pension at 60% of the General Rate. Mr Travers applied to the Veterans’ Review Board seeking an increase in the rate but, before the matter was reviewed by the Board, the Commission cancelled his pension on the basis that his generalised anxiety disorder and alcohol dependence are not war caused. The Board affirmed that decision.
3. Mr Travers claimed that a number of stressful incidents during his service caused the onset of symptoms of generalised anxiety disorder and alcohol dependence in 1968. In the alternative, Mr Travers contended that, in addition to generalised anxiety disorder, he first suffered alcohol abuse and later alcohol dependence. He also contended, in the further alternative, that his alcohol dependence or abuse arose out of his psychiatric disorder.
4. The Commission agreed that Mr Travers suffers from generalised anxiety disorder but contended the condition had its clinical onset in approximately 1980. The Commission also agreed that Mr Travers suffers from alcohol dependence but did not concede that he suffers from alcohol abuse.
5. The Commission disputed that the stressful incidents contested by Mr Travers occurred as described by him or at all and disputed that they affected him in the way he claimed.
6. The date of clinical onset of Mr Travers’ conditions is important because, as will be seen below, this is a requirement in certain of the Statements of Principle (SoPs) that play a crucial role in the assessment of war causation. The nature and effect of the stressful incidents is important for similar reasons.
issues
7. A veteran is entitled to be paid a pension if his conditions are war caused. Whether a condition is war caused is governed by the provisions of section 120, which prescribes the standard of proof of “reasonable hypothesis” for questions of war causation, and by section 120A which deems that standard to have been met when a hypothesis conforms with a factor or factors in a relevant Statement of Principles (SoP) determined by the Repatriation Medical Authority. This legislative framework was interpreted by Heery J in Deledio v Repatriation Commission (1997) 47 ALD 261 as requiring 4 steps to be taken in the process of determining whether a condition is war caused.
8. Given the contentions by the parties, this statutory framework and the steps set out in Deledio, the issues for us to consider are:
· The diagnosis of Mr Travers’ conditions;
· Whether the material before us raises a hypothesis connecting the condition with the circumstances of Mr Travers’ service and whether there is in force an SoP relevant to Mr Travers’ conditions;
· Whether the hypothesis contains one or more of the factors set out in the SoP. This, in turn, will require an examination of the elements of the relevant factors of the SoP. In this application, questions of the nature of the stressor alleged by Mr Travers and the date of clinical onset of his conditions are important; and
· Whether Mr Travers’ hypothesis can be disproved beyond reasonable doubt.
what is the diagnosis?
9. Mr Travers and the Commission agree that he suffers from generalised anxiety disorder. We have heard the evidence of psychiatrists, Drs Dinnen and Champion, that this is the appropriate diagnosis. We also note that the symptoms described by Mr Travers, and reported by him to Drs Dinnen and Champion, are in line with the diagnostic criteria for generalised anxiety disorder contained in the Diagnostic Statistical Manual of Mental Disorders, Fourth Edition (Text Revision) (DSM-IV). We agree that Mr Travers suffers from generalised anxiety disorder.
10. Mr Travers and the Commission also agree that he suffers from alcohol dependence. Again this is supported by the evidence of Drs Dinnen and Champion and the symptoms described by Mr Travers to those doctors and to the Tribunal. The symptoms described accord with the diagnostic criteria for alcohol dependence in DSM-IV. We agree that Mr Travers suffers from alcohol dependence.
is there a hypothesis and a relevant sop?
11. Mr Travers described a number of incidents he experienced in Vietnam, and soon after his return, that he says were stressful and gave rise to the onset of his generalised anxiety disorder and his alcohol dependence. He also described his immediate reactions to those incidents and the symptoms that followed. His evidence was also reflected in the histories reported by Drs Dinnen and Champion and by Dr Kesheva, Psychiatrist. This material points to a hypothesis of connection between Mr Travers’ generalised anxiety disorder and alcohol abuse and his service.
12. We are required, in this step of the exercise, to have regard to all of the material before us. There is material, presented by the Commission, that points away from Mr Travers having experienced stressful incidents of the kind described by him and with the claimed effect on him. There is also material that points away from Mr Travers having suffered the clinical onset of generalised anxiety disorder and alcohol dependence within 2 years after a relevant stressful incident.
13. The existence of material that does not support Mr Travers’ hypothesis does not allow us to disregard that hypothesis. No fact finding is to be done at this stage (Deledio). We find there is material that points to a hypothesis of war causation.
14. There is no dispute that there are in force SoPs that are relevant to generalised anxiety disorder and to alcohol dependence, that is, SoPs Nos 1 of 2000 and 76 of 1998 respectively.
does the hypothesis conform with a factor in the sop?
15. In relation to this question, and to the extended question of whether the material before us points to such conformity, we are guided by the decision of the Full Federal Court in Hardman v Repatriation Commission [2005] FCAFC 83. In that application the Tribunal had found that the material before it “overwhelmingly” suggested a clinical onset of depression more than two years after any relevant stressor. The Full Court held that the Tribunal had impermissibly entered upon fact finding and “negated the possibility of a reasonable hypothesis upon its view of the weight of the evidence”. The Full Court said:
“To reject that hypothesis on the basis that it was swamped by countervailing material is a finding which preferred some facts to others and so rejected those facts upon which the relevant hypothesis could be based. That is directly contrary to the three steps as described in Deledio.” (paragraph 28)
16. We also note the Full Court described as “large” the question of whether the qualification raised in Bushell v Repatriation Commission (1993) 175 CLR 408, citing East v Repatriation Commission (1987) 16 FCR 517, (that an hypothesis cannot be reasonable if it is “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”) continues to have any practical life after the introduction of Statements of Principles and section 120A of the Act.
Generalised Anxiety Disorder
17. The factor in SoP No. 1 of 2000 concerning generalised anxiety disorder that most closely relates to the hypothesis raised by Mr Travers is factor 5(a)(ii):
“Experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder”
18. We turn first to the requirement of clinical onset within two years after the relevant stressor.
19. In accordance with both parties’ submissions, we approached this issue on the basis that the question of the date of clinical onset, when posed by a factor in an SoP, goes to war causation and so the reasonable hypothesis standard applies. There may be no fact finding by the Tribunal at this stage.
20. We also had regard to the decision of the Full Federal Court in Repatriation Commission v Lees (2002) 36 AAR 484 in which it was held that the symptoms or features of a condition must be revealed within two years of a veteran experiencing a stressor. This requires reference to the diagnostic criteria for the condition. Those criteria are contained in the SoP which duplicates the criteria contained in DSM-IV. The criteria are:
A. Excessive anxiety and worry (apprehensive expectation), which
occur on more days than not for a continuous period of at least six
months, about a number of events or activities; andB. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the
following six symptoms, with at least some symptoms present for
more days than not during the previous six month period:(1). restlessness or feeling keyed up or on edge
(2). being easily fatigued
(3). difficulty concentrating or mind going blank
(4). irritability
(5). muscle tension
(6). difficulty falling or staying asleep, or restless unsatisfying
sleep; and
D. The focus of the anxiety and worry is not confined to features of
any other Axis I disorder; andE. The anxiety, worry, or physical symptoms (as described in C.
above) cause clinically significant distress or impairment in social,
occupational, or other important areas of functioning; andF. The anxiety and worry are not due to the direct physiological
effects of a substance or a general medical condition and do not
occur exclusively during a mood disorder, a psychotic disorder, or
a pervasive developmental disorder;
21. Mr Travers gave evidence of a number of matters relevant to the question of when he developed the symptoms and signs set out in these diagnostic criteria. The following material relates to the symptoms experienced by him by early 1969:
· He had nightmares about being conscripted from the time he was in Vietnam and for the following ten years;
· On his return from Vietnam and recommencement of his work as a school teacher he was irritable with the children and found he was no longer suited to teaching. This was compounded to some extent by an increase in class size;
· When he returned from Vietnam, beginning with his teaching, he had “personality problems” with other people. He said his problems manifested in anger, abruptness and rudeness. They did not affect him by impairing his ability to concentrate;
· At the same time he was irritable and quick to become angry with his wife and after the first 3 or 4 months there were problems in the marriage with constant arguing about trivial matters. He said he was very easy to upset and does not know why;
· He attended a doctor in Adelaide in 1968 in relation to “emotional problems, real tiredness”, irritability and “not sleeping well”. He recalled little about the treatment or the practitioners involved in the treatment but was clear that he did not pursue it because he did not want to take medication on a long term basis;
· In January 1969, when he commenced a training course with IBM, he developed a rash affecting 90% of his body. He associated this with a high level of nervousness and not “handling pressure well”;
· When doing the IBM course in 1969 he was aggressive, excited and flippant. He would flinch at loud noises;
· In 1969, doing the IBM course, he began to drink excessively when highly anxious or highly excited. He did concede that he was able to distract himself from his anxiety;
22. We consider that this material points to the presence of all of the diagnostic criteria for generalised anxiety disorder by early 1969. In particular, it points to excessive anxiety in the form of nervousness, irritability and excitability that manifested in sleep and “emotional” problems, among others, and, by 1969 a need to assuage it with alcohol. This last feature indicates an inability to control the anxiety. The symptoms of excitability, nervousness, irritability and difficulty with sleep fit paragraph C of the criteria. The material also points to distress or impairment in functioning in the area of his marriage and his dealings in employment. The clinical significance of this is demonstrated by the material concerning his treatment, for some of his symptoms, by two medical practitioners in Adelaide in 1968.
23. We turn now to the second limb of the SoP factor. The term “severe psychosocial stressor” is defined in the SoP 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 (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems”
24. We are guided by the decision of the Federal Court in White v Repatriation Commission (2004) 39 AAR 67 in which Spender J construed a severe psychosocial stressor as an occurrence that, objectively, would evoke feelings of substantial distress in a person exposed to that occurrence and that, subjectively, did evoke feelings of substantial distress in the particular individual concerned.
25. Mr Travers relied on 4 incidents as stressors of the kind required by the SoP. His evidence of them was:
· The Mine Incident: In February 1967, 3 or 4 days after Mr Travers arrived in Vietnam, based at Nui Dat, he was sent out to where the Battalion was operating on the Long Hai hills. While at Battalion Headquarters he heard and saw an explosion about 2 kilometres away. Some hours later he was sent to pick up some mines that had been recovered. He could not recall who had given him that order. He “thought” he had gone there on a Bell helicopter. He recalled landing and a person waiting there giving him 6 or 8 mines, about the size of coke cans, in a cardboard box. He took them back to camp and was directed to an Engineering Officer who was to deal with them. That officer produced a spanner or wrench and began to defuse the mines and, finding one on which the flange would not unscrew, hit it with the spanner. At that precise moment, artillery began to fire nearby and Mr Travers thought the mine had exploded. He was frightened, jumped in the air and “thought (he) was dead”. The incident shook him badly and became the subject of a recurring nightmare in which the mine did explode. In the short term he found sleep difficult as the sound of artillery “brought back the terror of that incident”. The sound of a car backfiring also evokes that feeling.
· The Hospital Incident: In about mid 1967, Mr Travers was in the hospital in Vung Tau or in the Field Ambulance with an undiagnosed illness. One night a number of casualties were brought in. Mr Travers recalls being wheeled outside in order to make room for others and he was left alongside “two cases who were too far gone to be treated”. He had nightmares about this for about 10 years. However, he said his memories are fairly vague and he recalled that he was delirious at the time. He said he did not see their wounds, as they were covered with sheets and he just inferred they were close to death.
· The Death of two Friends: Mr Travers met Second Lieutenant Fraser at Officer Training and met him again at Canungra. He met Second Lieutenant Rinkin at Canungra. They all spent a weekend together at Surfers Paradise. Both were killed by stepping on mines. He learnt of Mr Rinkin’s death while still in Vietnam but heard of Mr Fraser’s death after he had left Vietnam. Mr Travers said he had known Mr Rinkin for just three weeks. However, he said when he received the news of his death he felt “gutted”.
· Death of Nuns and Students: For about 4 months, while in Vietnam, Mr Travers taught English to children in an orphanage run by Vietnamese nuns. He said he enjoyed this time and became very close to them. After he returned to Australia he heard that the nuns and many of the children had been killed in the Tet Offensive. He described himself as “very highly unsettled by it” and said he does not like to think about it.
26. We consider that the mine incident, as described by Mr Travers, satisfies and points towards the objective element of the definition of “severe psychosocial stressor” in that it had the appearance of a real threat to personal safety, such as being shot at, and would evoke feelings of substantial distress in a person exposed to that occurrence. We also consider that his evidence points to his having actually experienced substantial distress as a result of the incident.
27. We note the Commission’s submission that the unexpected noise of artillery going off would have caused only a momentary fright followed by the realisation that no harm had been done. This does not take adequate account of the context in which the artillery was heard, that is, while an officer was striking a mine with a spanner. This lends far greater significance to the sudden artillery noise. Nor do we consider that the duration of an occurrence determines the significance or substance of the distress caused by that occurrence. Nor are we persuaded, as urged by the Commission, that Mr Travers’ experience and education as a primary school teacher or his officer training would have lessened the effect on him of the incident. We agree with Mr Travers that any concern he may have had that the officer handling the mine had noticed how scared he had been, simply points to how scared he had been.
28. We note the Commission’s submission that, in determining whether the material before the Tribunal points to the incidents having happened in the manner described by Mr Travers, “the question is not whether the Applicant’s version of events is pointed to on the basis of some of the material before the Tribunal; a reasonable hypothesis must be pointed to on the whole of the material before the Tribunal.” This approach appears is at odds with the statements made by the Full Federal Court in Hardman.
29. We do not consider the material concerning the hospital incident points to a severe psychosocial stressor. The evidence given by Mr Travers in relation to this incident points only to an inference of an occurrence and, together with the delirium he said he was experiencing at the time, is very uncertain and vague. Even standing alone and uncontested, this material does not point to an occurrence of the kind required by the SoP.
30. The material concerning the death of two friends, known by Mr Travers for a period of approximately three weeks, is not consistent with a severe psychosocial stressor, given the reference in the definition to “death or serious injury of a close friend or relative”. The use of these words in the definition makes it clear that a close relationship is required to have been established. There was no material pointing to a close relationship
31. The death of the nuns and students made Mr Travers “highly unsettled”, according to his evidence. He expressed sadness and regret at the fate of these between Mr Travers and Mr Fraser or Mr Rinkin. people, together with a fondness for them, but we are not satisfied that the material before us points to a reaction by Mr Travers (the subjective component of the definition) of substantial distress.
32. It follows that we consider there is material before us that points to the compliance with the SoP of the hypothesis that, in experiencing the mine incident, Mr Travers experienced a severe psychosocial stressor.
Alcohol Dependence
33. The factors in SoP No.76 of 1998 concerning Alcohol Dependence or Alcohol Abuse that most closely relate to the hypothesis raised by Mr Travers are factors 5 (a) and 5 (b):
“5(a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse;
(b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse.”
34. There is no dispute that the material before us points to the clinical onset of alcohol dependence by at least the 1980’s (see written submissions of both parties). We agree. Mr Travers submitted that a date of clinical onset substantially earlier than that is pointed to by the material.
35. We note that factor 5 (a) would be satisfied by a 1980’s date of clinical onset, provided that a psychiatric disorder, connected to Mr Travers service, was suffered by him at that time. Indeed, the substance of Mr Travers’ hypothesis in relation to his generalised anxiety disorder is that clinical onset of that disorder was by 1969. If we conclude that his generalised anxiety disorder is war caused, then he will satisfy factor 5 (a) of the SoP in respect of his alcohol dependence. For this reason it is appropriate to proceed to the next and final issue in relation to the question of whether Mr Travers’ generalised anxiety disorder is war caused.
can the hypothesis be disproved beyond reasonable doubt?
36. Considerable evidence was presented by the Commission to disprove the mine incident occurred as described by Mr Travers. Most of this evidence went to the background to the incident, that is, the events leading up to the disarming of the mine by the Engineer Officer as described by Mr Travers.
37. James Campbell, the pilot of the only Bell Sioux helicopter assigned to Battalion Headquarters on the day of the mine explosion, was unequivocal in his evidence that he only made one flight on that day in which he delivered mine detection equipment to A company at approximately 1800 hours, picked up mines from the area of the incident and that he had no passenger on that return flight. His evidence was that the mines had already been defused. He could not recall where he took the mines.
38. The Batallion log is consistent with this evidence, showing that A company found mines and accepted an offer to be supplied with mine detection equipment at 1800 hours.
39. Counsel for Mr Travers submitted that the critical incident matter is the incident itself and not the question of how Mr Travers came to be in the presence of an engineer officer defusing mines with a spanner. However, even if we accept this submission, we note the evidence of David Buring, who was an Engineer Officer, and the only such officer present at Battalion Headquarters on that day. He had no recollection of having defused mines at Battalion Headquarters and was unaware of any mines being brought back to Headquarters on that day. He said it would not have been normal practice for the incident described by Mr Travers to have occurred but he allowed, in cross examination, that there may be reasons for Battalion Headquarters to decide to backload mines to the Headquarters rather than defuse or destroy them on site. However, the unusual nature of such an occurrence would make it memorable. Mr Buring had no such memory.
40. We may accept that Mr Travers’ memory of a journey on a Sioux helicopter is faulty due to the passage of time but does not impugn his memory of the mine defusing incident. However, the evidence of Mr Buring as to the unlikelihood of such an occurrence and his inability to recall such an unusual event, as the only Engineer Officer at Batallion Headquarters that day, puts the matter beyond reasonable doubt.
41. On this basis, we are satisfied beyond reasonable doubt that the mine incident as described by Mr Travers did not occur. It follows that Mr Travers’ generalised anxiety disorder is not war caused.
42. It flows from this conclusion that, in the absence of war caused generalised anxiety disorder, factors 5(a) or 5(b) of the SoP concerning alcohol dependence cannot be satisfied by Mr Travers. Therefore his alcohol dependence is not war caused.
decision
43. The decision under review is affirmed.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr J D Campbell, Member.
Signed: ..........[Linda Blue]...............................
AssociateDates of Hearing 6 June 2005, 4 August 2005
Date of Decision 20 October 2005
Counsel for the Applicant Michael Perry
Solicitor for the Applicant Maurice Blackburn Cashman
Solicitor for the Respondent Department of Veterans' Affairs
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