Turner and Repatriation Commission
[2001] AATA 708
•10 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 708
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2000/155
VETERANS' APPEALS DIVISION )
Re DOUGLAS FRANK TURNER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President)
Date10 August 2001
PlaceHobart
Decision The decision under review is affirmed.
..............................................
Deputy President
CATCHWORDS
Veterans' Appeals – whether operative service – reasonable hypothesis of connection to service – causes of cerebrovascular accident – direct evidence not required – whether assumption may be made – decision affirmed.
Veterans' Entitlements Act 1986.
Smith v Repatriation Commission [1999] FCA 1484
REASONS FOR DECISION
10 August 2001 Mr S P Estcourt QC., (Deputy President)
This is an application by Douglas Frank Turner to review that part of the decision of a delegate of the Repatriation Commission of 28 October 1997, subsequently affirmed by a decision of the Veterans' Review Board of 24 October 2000, refusing the applicant's claim to have his cerebrovascular accident accepted as war-caused.
The applicant contends that he had operational service within the meaning of s.6 of the Veterans' Entitlements Act 1986, having served in the Australian Army from 4 November 1941 to 12 March 1946, including service in Dutch New Guinea.
The applicant further contends that the cerebrovascular accident he suffered in or about July 1997 was war-caused by virtue of SOP No. 53 of 1999 in that he suffered panic disorder before the clinical onset of the cerebrovascular accident.
The respondent contests the applicant's claim in respect of operational service and, whilst agreeing that SOP No. 53 of 1999 is an appropriate statement of principles to apply, contests that the evidence establishes that the applicant suffered from a panic disorder as defined before the clinical onset of his cerebrovascular accident.
To establish his operational service, the applicant (who was not sufficiently well to attend the hearing) relied on evidence from Mr Alfred Dilba who had been told by the applicant that during his period of service he had gone to Merauke (which is accepted by the parties as being in Dutch New Guinea and therefore, if true, giving rise to operational service).
Mr Dilba said that Mr Turner had told him that he went to Merauke by barge from Horn Island, having been sent with supplies which the 74th Australian Searchlight Battery had but the 76th Australian Mobile Searchlight Battery did not.
Mr Turner told Mr Dilba that he had gone to Merauke with about 10 other members of his unit and spent about 3 – 4 weeks there, doing everything, including guard duty.
Mr Turner further told Mr Dilba that he had returned to Horn Island from Merauke by barge and that the reason for the transfer of supplies was the "old boys network". Mr Dilba explained this as "one Colonel to the other being friends, short-cutted the delivery route in the sense of asking for supplies to get it quicker. One asked the other and so on …".
Mr Dilba also produced Mr Turner's photograph album containing very old photographs of his war-service, including two of a barge, one of which had written underneath, in clearly very old writing, "Barge, Merauke".
Mr Dilba's evidence was tested by cross-examination but was unshaken.
The respondent called on this issue, Colonel Nigel James Underwood (retired). Col. Underwood said that research carried out by him at the Australian War Memorial and the National Archives of Australia, in particular the war diaries of the 74th Australian Anti-Aircraft Searchlight Battery and the 76th Australian Mobile Searchlight Battery disclosed no record of exchange of personnel between the two batteries.
Col. Underwood said:
"I might add that 71 and 74 Battery would have been commanded by the same formation headquarters. That would have been Headquarters Torres Strait Force. 76 Battery at Merauke would have been commanded by another formation headquarters, Headquarters Merauke Force, and it would have been a little unusual for formations to have exchanges."
Col. Underwood also said that there was nothing in the 76th diary as to any receipt of stores from the 74th Battery. He was asked however, whether he had specifically looked for any such record and he said that he had not.
Col. Underwood was asked if he could say whether it might or might not have been a normal practice for one unit in a place like Dutch New Guinea and another in a more secure area like Horn Island to have such an exchange. Col. Underwood replied:
"It is possible, but certainly in the case of major equipment, from my reading of 74 Anti-Aircraft Searchlight Battery, they were deficient of major stores for quite some time when they deployed to Horn Island and there is certainly no record of them handing up any stores to any other battery."
Col. Underwood defined "major stores" as major search light equipment, generator, plumbing tables and so on which was reasonably heavy equipment, requiring, on land, a truck to transport the smaller search lights and a semi-trailer to transport the larger search lights with associated equipment and generators.
Under cross-examination, Col. Underwood gave the following evidence:
"We have heard evidence today that Mr Turner travelled by barge to Merauke with about 10 other men? --- Yes.
The remark was made that it was to deliver supplies through the 'old boys network', being some suggestion that the commanding officers of the two units, 74 and 76 were friendly? --- Yes.
You cannot discount the possibility that that, in fact, took place? --- I can't discount it, but I can't see major control stores which would have to be recorded on the unit's inventories, being staged willy-nilly even during war time.
Yes. There is no evidence as to what the supplies were, whether they were, in fact search light batteries? --- Right. I see.
It could have been anything. It could have been food supplies? --- Yes.
And that would be quite possible? --- I can't answer that question. Again it is way out of the chain of command and one has the right to, I suppose ask the question: who provided the barge and who authorised its travel?
Right. Now, that could have been the officer in charge of 74 Battery? --- It could have been, yes, I don't know.
Yes, thank you, Colonel? --– But certainly there are no barges on the equipment table of either of the batteries, so another unit would have to be involved."The applicant had asserted service on Merauke as early as 18 November 1944, when the medical officer signing his final discharge noted:
"Hands have been tremulous for about 12 months. Patient has been in operations room on Horn Island and at Merauke; unit is now on mainland and likely to be broken up."
Given Mr Turner's assertion as early as his date of discharge that he had served on Merauke, his uncontradicted evidence relayed to the Tribunal by Mr Dilba and the fact that Col. Underwood accepts the possibility that what he says could have occurred, I am reasonably satisfied that the applicant did have operational service comprised of service on Merauke for a period of some weeks.
On the basis that a finding in favour of the applicant would be made on the issue of operational service, counsel for Mr Turner continued as follows:
"The next step is the hypothesis and the way in which it is to be established. First of all, the applicant has a psychiatric condition first treated on service and in 1946 accepted by the respondent in whatever capacity at that stage. As service related it appears at folio 56 of the T documents in which it is found, Mr Turner – this is a summary prepared by a departmental officer;
'In 1946 this veteran had an accepted disability of mild anxiety state with nervous dyspepsia. In May 1959 a Repatriation Board amended the above diagnosis to read psychoneurosis with some somatic symptoms affecting his digestive and circulatory systems.'
I have examined the departmental files and I am unable to say on what basis the diagnosis was changed, but it is clear that as early as 1946 that he had a psychiatric disorder. In September 1998 he was seen by a psychiatrist, Dr. Braganza, who wrote a report – and I have referred to part of it, in the second paragraph appearing at p.50 of the T documents:
'The above named person was referred to me by his general practitioner, Dr J Cannon, who felt that his mental condition had been deteriorating a great deal more recently.'
Might I say two things in respect of Dr Cannon? First, he retired last year, and secondly, the last he was heard of, that he nearly lost his boat in the Indian Ocean and is not available at the present time:
'He informed me that he had developed a nerve problem while he was in the Army, 1945 and 1946 and he was discharged from the Army for the same reason. When he returned to Tasmania it was suggested he was to go to Milbrook Rise to receive treatment, but he declined due to the stigma attached to it.'
At page 51 there is an acknowledgment of the current symptoms and how he is affected by his accepted disability. And at p.52 of the T documents at the bottom of the page:
'With this background information, I am of opinion that Mr Turner is suffering from a major depressive illness with anxiety symptoms which is related to his war service.'"
Statement of Principle No. 53 of 1999 sets out the factors that must exist before it can be said that cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person's relevant service.
The specific factor relied on by the applicant is that he suffered from "panic disorder" before the clinical onset of the cerebrovascular accident.
Counsel for the applicant accepted that there was no direct medical evidence that, in fact, the applicant had a panic disorder prior to his cerebrovascular accident. He submitted however, that given all the medical evidence and the applicant's treatment since 1946, for the purposes of the hypothesis it could be assumed that his condition became so serious that, in fact, one of the elements in it was panic disorder.
Counsel relied on the decision of Heerey J in Smith v Repatriation Commission [1999] FCA 1484 (28 October 1999). It is clear from Heerey J's consideration of the authorities at paragraph 10 of his reasons for judgment that there is no requirement that there be evidence to support a hypothesis at every point and that in some cases the hypothesis may assume the occurrence of existence of a "fact".
In my view however, I am not able in the absence of anything in the material pointing to the existence of a panic disorder as defined, to assume that the applicant suffered from such a disorder before the clinical onset of his cerebrovascular accident.
Panic disorder is defined as follows:
"'Panic disorder' means the presence of recurrent, unexpected panic attacks followed by at least one month of persistent concern about having another panic attack, worry about possible implications or consequences of the panic attacks, or a significant behavioural change related to the panic attacks, as clinically defined in the diagnostic criteria for panic disorder in the Diagnostic & Statistical Manual of the American Psychiatric Association, 4th Ed., (DSM-IV), and includes panic disorder without agoraphobia and panic disorder with agoraphobia."
I have evidence that as long ago as 1944 the applicant had an accepted disability of "mild anxiety state with nervous dyspepsia", that in May 1959 he was diagnosed with "psychoneurosis with some somatic symptoms affecting his digestive and circulatory systems" and that in 1998 after his mental condition had deteriorated, he was diagnosed as suffering from "a major depressive illness with anxiety symptoms".
In my view, I cannot reasonably assume or infer from the foregoing diagnoses that, prior to his cerebrovascular incident, the applicant suffered from "recurrent unexpected panic attacks followed by at least one month of persistent concern about having another panic attack, worry about possible implications or consequences of the panic attacks or a significant behavioural change related to the panic attacks". This is particularly so in view of the complexity of the psychiatrists' nosology contained in the DSM-IV.
I have no way of knowing that a mild anxiety state with "nervous dyspepsia: or a "psychoneurosis with some somatic symptoms" or a "major depressive illness with anxiety symptoms" involves something as precisely defined as "panic disorder" is in the Statement of Principles and it would be nothing more than speculation for me to assume that they might.
To the extent that it is permissible for me to have regard to the DSM-IV myself, I am not assisted. The DSM-IV TR that is, the most recent edition of the Manual, provides under the heading of Panic Disorder at p.439:
"When criteria are met for both Panic Disorder and another Anxiety or Mood Disorder, both disorders should be diagnosed. However, if unexpected Panic Attacks occur in the context of another disorder (eg. Major Depressive Disorder or Generalised Anxiety Disorder), but are not accompanied by a month or more of fear of having additional attacks, associated concerns, or behavioural change, the additional diagnosis of Panic Disorder is not made."
It follows from these observations that notwithstanding I am satisfied Mr Turner had operational service on Merauke, I am not satisfied that there exists a reasonable hypothesis connecting the condition of cerebrovascular accident with that service. Accordingly, the decision under review is affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 25 July 2001
Date of Decision 10 August 2001
Counsel for the Applicant Mr R M Webster
Solicitor for the Applicant R M Webster
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans' Affairs
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