Veacock and Repatriation Commission

[2005] AATA 1115

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1115

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/1531

VETERANS’ APPEALS DIVISION		)
Re		ALAN JAMES VEACOCK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms R Hunt, Senior Member
Rear Admiral A R Horton, Member

Date11 November 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................

Ms R Hunt
  Presiding Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlements - Disability pension - Applicant served in Royal Australian Navy - Rendered "operational service" - Suffering from Generalised Anxiety Disorder (GAD) - GAD not "war-caused" - No reasonable hypothesis connecting applicant's GAD with circumstances of his "operational service" –Decision under review affirmed

LEGISLATION

Veterans' Entitlements Act 1986 ss 120(1), 120(3), 120(4), 120A(3)

Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 1 of 2000)

Statement of Principles concerning Generalised Anxiety Disorder (Instrument No 2 of 2000)

CASES

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 83 FCR 82

Arnott v Repatriation Commission (2001) 106 FCR 83

Stoddart v Repatriation Commission (2003) 197 ALR 283

White v Repatriation Commission (2004) 39 AAR 67

REASONS FOR DECISION

11 November 2005 Ms R Hunt, Senior Member
Rear Admiral A R Horton, Member          

introduction

1.        Mr Alan Veacock applied for a disability pension on 26 September 2002. The Commission accepted his claim for pension in respect to sensorineural hearing loss, tinnitus and gastro-oesophageal reflux disease but found that his anxiety disorder was not war-caused. He has sought review by the tribunal of this decision which  rejected his claim that his anxiety disorder was war-caused. If this were a war-caused condition, his rating according to the Guide to the Assessment of Rates of Veterans’ Pensions (GARP)  would need to be adjusted. However, the tribunal has decided that the decision under review should be affirmed. This means that Mr Veacock has not been successful.

issues and legislative provisions governing

2.        The main issue before the Tribunal is whether Mr Veacock suffers from a war-caused anxiety disorder.

3. Section 120 of the Veterans’ Entitlements Act 1986 (the Act) sets out the required standard of proof.  Subsection 120(1) makes it clear that where a claim for a pension in respect of incapacity from an injury or disease relates to operational service, the tribunal shall determine that the injury or disease was war-caused, unless it is satisfied beyond reasonable doubt that there are no sufficient grounds for making that determination.

4. Subsection 120(3) then goes on to explain that, in applying subsection (1) of section 120 in respect of the incapacity of a person from injury or disease, the tribunal is to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or disease was war-caused. After consideration of the whole of the material before it, if the tribunal is of the view that the material does not raise a reasonable hypothesis connecting the injury with the circumstances of the veteran’s service, then the veteran cannot succeed in his claim.

5.        Subsection (3) is affected by section 120A. Section 120A of the legislation addresses the reasonableness of the hypothesis and that it must be assessed by reference to the Statement of Principles (SoPs).  It points out that if a SoP is in place in respect of a kind of injury or disease, then the end hypothesis put forward by the applicant is to be tested against that SoP.

analysis

Eligible service

6.        Mr Veacock’s eligible service under the Veterans’ Entitlements Act 1986 (the Act) is defence service he performed from 7 December 1972 until completion of his naval service on 1 April 1979. His operational service, and thus eligible war service, is taken from records furnished by the Commission, and tabled as follows:

7 April 1960 to 28 April 1960	HMAS Melbourne	Malaya and Singapore
6 May 1960 to 20 May 1960	HMAS Melbourne	Malaya and Singapore
6 June 1960 to 16 June 1960	HMAS Melbourne	Malaya and Singapore
24 March 1961 to 17 April 1961	HMAS Melbourne	Malaysia and Singapore
28 February 1962 to 16 March 1962	HMAS Melbourne	Malaysia and Singapore
16 May 1967 to 8 June 1967	HMAS Stuart	Vietnam
25 January 1968 to 5 February 1968	HMAS Stuart	Vietnam

7.        The record of service before the tribunal shows that Mr Veacock did not join HMAS Melbourne until 11 July 1960, by which date the ship had returned to Australia from a Far East deployment.  If that was the case, then he would not have been present during the first three periods of operational service as defined in paragraph 8 above.  However, we do not think that anything hangs on this discrepancy, for reasons that will become apparent.

Statement of Principles

8.        The agreed relevant Statements of Principle for Generalised Anxiety Disorder that govern this case are set out in instrument number 1 of 2000 (operational service) and number 2 of 2000 (defence service).   In order for Mr Veacock to raise a reasonable hypothesis that his condition is related to service, he needs to first show that he suffers from generalised anxiety disorder (GAD) and pursuant to factor 5 of the relevant SoPs, that he has experienced a severe psychosocial stressor, one or two years immediately before the clinical onset of this condition.

Diagnosis

9.        The tribunal had before it reports from Dr Law, dated 31 October 2002 and 29 May 2003, where he concluded that Mr Veacock’s disorder was causally related to the severe stressors of his past navy experiences. Also before the tribunal were reports from Dr Dinnen, dated 8 January 2004, and Dr Delaforce, dated 20 July 2004. The diagnosis of Mr Veacock’s condition has been agreed by Doctors Law, Dinnen and Delaforce. It is accepted that he suffers from GAD, the point of difference being when clinical onset occurred, see further discussion below.  Based on the medical opinion before the tribunal, diagnosis is not an issue and we accept that Mr Veacock suffers from generalised anxiety disorder.

Severe Psychosocial Stressor

10.      The veteran gave evidence of what he claimed were events which could meet the definition of "severe psychosocial stressor" as defined in the SoPs and includes a range of stressful experiences. As well, Spender J in the Federal Court case of White v Repatriation Commission (2004) 79 AAR 67 noted that the term has a subjective element. See for example, Stoddart v Repatriation Commission (2003) 197 ALR 283. Both subjective and objective tests are relevant.

11.      Mr Veacock’s written statement, dated 18 December 2003, identifies a number of incidents and/or stressors which he claims “have left me with memories of a dangerous period while serving almost continuously for six years in a hostile and unstable area”. He further claims that these incidents contributed to his GAD.   

12.      We have considered all the incidents referred to by Mr Veacock in his written statement made for these proceedings and as given in oral evidence. His statement refers to the following chronological incidents or occurrences:

·The crash on deck of an aircraft onboard HMAS Melbourne in 1960, when the aircraft finished up in a gun sponson on which he had been working until moments before

·Confrontation by Chinese one evening in Bugis Street, Singapore in 1960/1961

·Meeting wounded US personnel during a visit to Hawaii in HMAS Stuart, probably in 1966

·Incidents involving distressed US servicemen in Penang and Hong Kong whilst serving in HMAS Stuart, probably in 1967

·Vietnam service in HMAS Stuart

·Patrolling off Borneo in HMAS Stuart

·Security concerns in Hong Kong during a visit by HMAS Stuart

13.      In examination-in chief, only the incidents involving the aircraft crash on deck on HMAS Melbourne in 1960, the Bugis Street, Singapore fracas in 1960/61 and patrolling off Borneo in 1967/1968 were addressed. The occasion of meeting wounded US personnel in Hawaii was addressed only to the extent of Mr Veacock confirming his statement that it had a lasting effect on him. The two incidents of observing distressed US personnel, which occurred in Penang and Hong Kong, were not pursued, nor was the matter of security concerns in Hong Kong. The issue of Vietnam service was not addressed. 

Aircraft crash

14.      No evidence was adduced in respect of the aircraft crash in the Indian Ocean in 1960, but whilst the VRB decision of 22 July 2003 notes that Mr Veacock believed this incident occurred about in 1961 or 1962, the Board refers to confirmation by a historian that such a crash occurred in late March 1960.

15.      The aircraft crash, on the only evidence available to the Tribunal, occurred outside an operational period of Mr Veacock’s service.  Even if this incident did occur in an operational period, this cannot be determined on the available evidence, therefore the tribunal cannot be satisfied that Mr Veacock has a valid claim related to the incident.

Bugis Street

16.      In relation to the Bugis Street fracas, Mr Veacock stated in cross-examination that the incident probably occurred in 1960 when he was serving in the HMAS Melbourne. Mr Veacock has not established that this incident occurred in an operational period.

Hawaii

17.      The meeting with U.S. servicemen in Hawaii in 1966 did not occur during operational service.

Penang and Hong Kong

18.      As to the incidents in Penang and Hong Kong, both of which Mr Veacock stated occurred during service in HMAS Stuart, perusal of the reports of proceedings of that ship clearly indicates that the ship did not visit either of those ports during the two periods of Mr Veacock’s operational service on the ship. Such operational service was specifically related to Vietnam operations, and is defined in an Instrument of Allotment signed by the then Minister for Defence Industry, Science and Personnel dated 23 December 1997, pursuant to subsection 5B(2)(c) of the Act. There are no other relevant Instruments of Allotment for duty in an operational area, as pertinent to HMAS Stuart, before the Tribunal. The referred incident in respect of civil unrest in Hong Kong was similarly not in a period of operational service.

Borneo

19.      In relation to the small boat party patrols off Borneo in 1967/1968, nothing of any consequence emerged at the hearing, other than that, as an officer, he was issued with a side arm, and did not physically take part in small boat search operations. However, we find that this incident did not occur during a period of operational service.

Vung Tao, Vietnam

20.      In the first period of Vietnam service in 1967, HMAS Stuart accompanied HMAS Sydney from Australia to Vung Tau and returned directly to Darwin. In the second instance, HMAS Stuart joined HMAS Sydney in the South China Sea before that ship arrived at Vung Tau, and detached on completion of the Vietnam operation.

21.      In his written statement, Mr Veacock writes that the trip to Vietnam waters was uneventful.  He refers to the ship being closed up at the 3^rd degree of readiness and anchoring some way off shore.  He notes the presence of armed sentries and the use of scare charges but makes no comment that either of these activities caused him any concern.  He recalls the odd animal floating past.  He refers to explosions heard in the north-west, aircraft movements, and tracers, the origin and target of which was unknown.  He refers, in paragraph 3 of his statement, to having some apprehension and that he perceived a real danger when the ship was in a war zone, but states “no incident occurred”.  He makes no reference to any event that might be construed as a severe psychosocial stressor during this period.  No new evidence of a possible stressor arose in examination-in-chief, there being no reference to this period.  It follows that there is no incident to form a basis for Mr Veacock’s claim.

Findings

22.      As can be seen, none of these matters provides any reasonable basis for a hypothesis that they may have led to Mr Veacock’s anxiety condition. They either did not occur during operational service or no particular event occurred during such service.  We have not had put before us any event during operational service, nor indeed in subsequent defence service, which might amount to a severe psycho-social stressor. The only incidents that occurred happened outside operational service periods.  It is therefore unnecessary for us to consider the claim further as we have before us no hypothesis that is reasonable by any standard, subjective or objective.

23.      The report from Dr Delaforce, obtained on behalf of the Commission, refers to Mr Veacock’s experiencing considerable stress when trapped with his 18 month old son in a stationary train in the London underground in late 1969.  At that time, Mr Veacock was in the United Kingdom undertaking officer training with the Royal Navy.  Dr Delaforce placed considerable emphasis on the description given him by Mr Veacock, including that he thought his son might die, in reaching a conclusion that the incident was sufficient to trigger an anxiety state. 

24.      In cross examination, Mr Veacock said he could not remember ever saying to Dr Delaforce that his son might die. Mr Veacock gave oral evidence about the experience in the London underground. He described it to the tribunal as the train stopping between stations and giving him concern for his son’s welfare because it was “absolutely packed and the temperature was getting up and it appeared to me that there wasn’t a lot of air in the damn train. So that I picked him up from between my legs and put him on my shoulders so that he could get some air.” He denied having a panic attack and said he was apprehensive rather than scared. He gave further evidence that he was more concerned about his son’s safety as the train “was packed to the eyeballs” and “you could hardly move”. He noted that the train would have been very hard to break out of and gave evidence he might have thought he would kick the door out if he saw smoke. Neither Dr Dinnen, nor Dr Law, was advised of this incident, according to their written reports, and they have not mentioned it in their assessment of Mr Veacock. Dr Delaforce opined that the trigger for the anxiety condition was Mr Veacock’s being “trapped” on a train in the London underground system. This may be correct but it is unnecessary for us to make a finding as to the cause of Mr Veacock’s condition. Certainly, it is consistent with the date of onset being around the 1970s discussed below.

25. On the evidence, we find that Mr Veacock cannot meet the requirements of sections 120(1) and 120(3) of the Act on which to base a claim in respect of his anxiety disorder. Mr Veacock has not presented the Tribunal with any reasonable hypothesis concerning any incident he experienced while engaged in eligible service.

Clinical Onset

26.      Even if we are wrong in finding that no severe psychosocial stressor occurred in Mr Veacock’s operational service or defence service, in sum, the evidence is strong that clinical onset occurred no earlier than the late 1960s and more likely around 1970. The date of the clinical onset of Mr Veacock’s condition is critical to his claim as the Statement of Principles (SoPs) require that he experienced a severe psychosocial stressor during his eligible service. No incident relating to his defence service was raised. Therefore, in relation to incidents that occurred in Mr Veacock’s operational service, he needs to show that the incident occurred within two years before the clinical onset of GAD.

27.      In evidence, Mr Veacock stated that he started getting anxiety symptoms – “butterflies in the stomach” – when he was a Chief Petty Officer in 1969, “certainly prior to 1970, just”, his condition becoming worse in time as he was given more responsibility on promotion.  In cross examination, he did not disagree that his anxiety symptoms, as he later understood they were, commenced in 1968/69.  He agreed with a statement in the report by Dr Law that the symptoms were evident in the early ‘70s and said in evidence, “certainly the early ‘70s, maybe even before that, but certainly the early ‘70s, yes”.

28.      Nowhere in Mr Veacock’s written statement has he stated that he began to feel anxious around 1970.  However, Dr Law noted that Mr Veacock told him that he “began to feel easily anxious about 1970” and Dr Dinnen believes his anxiety became evident in the late 1960s. Dr Dinnen also reported (at page 2, paragraph 9) that Mr Veacock told him he nearly had a nervous breakdown in 1970. Dr Delaforce opined that the trigger for GAD was Mr Veacock’s being “trapped” on a train in the London underground system in 1970. Mr Veacock also told Dr Delaforce (at page 5) that he had a very difficult year in 1970 on HMAS Torrens. Mr Veacock gave oral evidence that the reason for his problems that year “was that I was sent to a new ship called HMAS Torrens”. Mr Veacock said he did not get on with his superior officer, Lieutenant Commander Nesbitt. This was not raised in examination-in-chief, but affirmed in cross examination, where Mr Veacock said it caused him a great deal of stress.  This period is outside eligible service, but again it adds to the argument that onset of an anxiety condition took place in the late 1960s or 1970.

29.      Mr Veacock’s counsel further accepted that the veteran could not satisfy the statement of principles if the only incidents that were accepted as stressors were incidents in 1960 or 1961 alone. He suggested that a group of events brought Mr Veacock’s experiences into the factor as his service in Vung Tau was within the possible time frame. We do not accept this proposition as no incidents occurred during operational service in Vung Tau which could by any measure be described as severe psychological stressors for the reasons set out above. Mr Veacock himself stated that no incident occurred although he perceived himself to be in a dangerous situation.

30.      The tribunal finds that the clinical onset of GAD occurred no earlier than the late 1960s and as a result, no incident described in operational service can meet the respective two year severe psychosocial stressor criteria in SoPs 1 of 2000. It follows that we have decided that the reviewable decision before us should be affirmed. 

decision

31.      The tribunal affirms the decision under review.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member Robin Hunt

Signed:          .....................................................................................
Zoe McDonald
Associate

Dates of Hearing: 6 September 2004; 12 January 2005; 8 August 2005        

Date of Decision: 11 November 2005
Counsel for the Applicant: Mr N. Dawson      
Solicitor for the Applicant: Maurice Blackburn Cashman Lawyers     
Counsel for the Respondent: Ms T McConnell

Solicitor for the Respondent: Department of Veterans’ Affairs