Venables and Repatriation Commission

[2007] AATA 1326

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1326

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  V 200500214

VETERANS’       APPEALS      DIVISION		)
Re		GEORGE VENABLES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Miss E.A. Shanahan, Member

Date16 May 2007

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd)  E.A. Shanahan
Member

  

VETERANS’ AFFAIRS – entitlement ‑ depressive disorder – operational service in Vietnam – diagnosis of dysthymic disorder and presence of a severe psychosocial stressor conceded – clinical onset of the depressive disorder – decision affirmed

Veterans’ Entitlements Act 1986  s 120(1), 120(3) and s 120A

Statement of Principles Instrument Nº 58 of 1998

Statement of Principles Instrument Nº 17 of 2007

Re McLeod‑Dryden and Repatriation Commission (1998) 53 ALD 428

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Cooke (1998) 90 FCR 307

Repatriation Commission v Gorton (2001) 110 FCR 321

REASONS FOR DECISION

16 May 2007   Miss E.A. Shanahan, Member

1.      Mr G. Venables joined the Australian Army (the Army) on 18 April 1963.  He had operational service in Vietnam as a radio operator from 1 June 1965 to 3 April 1966.  He was discharged from the Army on 19 December 1983 and has worked as a truck driver since. 

2.      Mr Venables was receiving disability pension on the basis of his lumbar spondylosis.  On 29 May 2003 Mr Venables applied to the Repatriation Commission (the respondent) for an increase in his pension.  He claimed that his dysthymic disorder (mild depression), bilateral tinnitus, gastro‑oesophageal reflux disease and solar keratosis were war‑caused conditions.  On 16 January 2004 the respondent accepted bilateral tinnitus and solar keratosis as war‑caused conditions and increased his disability pension to 50 per cent of the general rate.  However, the respondent refused the claim for dysthymic disorder and the gastro‑oesophageal reflux disease.  Mr Venables sought review of the decision by the Veterans’ Review Board (VRB).  The VRB affirmed the decision on 25 January 2005.  Mr Venables applied to the Administrative Appeals Tribunal (AAT) for review of the decision on 16 March 2005. 

3. Mr Venables was represented by Mr C. Thomson of counsel instructed by Mr P. Liefman, solicitor. The respondent was represented by Mr K. Rudge, an advocate with the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents, Exhibit R1).  The respondent tendered the following documents:

Report of Dr B. Kenny dated 21 September 2005 – Exhibit R2

Report of Dr B. Kenny dated 29 September 2007 – Exhibit R3

Transcript of the VRB Hearing dated 25 January 2005 – Exhibit R4

Dr C. Rattray‑Wood’s clinical notes – Exhibit R5

The applicant tendered three documents:

Report of Dr P. Collier dated 15 June 2006 – Exhibit A1

Report of Dr P. Collier dated 28 September 2006 – Exhibit A2

Statement of Mr B. Melville dated 8 March 2006 – Exhibit A3

Mr Venables, Mrs U. Venables, Dr Collier, Dr Kenny and Dr G. Kernutt gave evidence at the hearing.

4.      The respondent conceded that the correct diagnosis for Mr Venables’ condition is dysthymic disorder, that is, a form of depression as defined by Statements of Principles (SoP) Nº 17 of 2007 and Nº 58 of 1998.  The respondent also conceded and that Mr Venables had experienced a category 1A stressor (as required by SoP Nº 17 of 2007) or a severe psychosocial stressor (as required by SoP Nº 58 of 1998) in Vietnam, the event being that described as a mortar attack.

5.      The only issue before the Tribunal was the date of the clinical onset of Mr Venables’ dysthymic disorder in order for the condition to be war-caused and satisfy the requirements of either SoP.

evidence before the tribunal

Mr Venables

6.      Mr Venables confirmed his service in the Army from 18 April 1963 to 19 December 1983, with 10 months of operational service in Vietnam between 1965 and 1966.  He outlined his duties, which were mainly those of a radio operator, and the various stressful incidents he experienced in Vietnam.  He became tearful when describing his receipt of the notice of his father’s death by radio; although he had known his father was unwell and had been hospitalized with carcinoma of the stomach prior to his departure for Vietnam.  The Tribunal has not included the detail of the six stressful episodes Mr Venables claims to have experienced, as the respondent has conceded that one of those episodes, the mortar attack, was a category 1A stressor or severe psychosocial stressor.  Mr Venables said that he was nervous throughout his Vietnam service and drank to excess on the four days each fortnight that he was off duty, particularly after the death of his father.  Following his tour of duty in Vietnam, he admitted to becoming greatly upset when people mentioned his father’s death.

7.      Mr Venables said he saw a psychiatrist in 1968 as he was having difficulty adjusting to being in charge of others and asserting his authority, since being promoted to corporal.  He saw the psychiatrist on four occasions but did not require any treatment.  He again saw a psychiatrist or counsellor in 1978 when he and his wife were having difficulties with their daughter.  Mr Venables was not treated by this counsellor either.  In February 1967 Mr Venables had, at his future mother‑in‑law’s suggestion, seen an army doctor regarding grinding of his teeth.  This was noted as being a nine year habit at that time.  Mr Venables was not aware he ground his teeth, but according to his wife he still does.

8.      Following his marriage in 1967, Mr Venables reduced his alcohol intake.  This increased again when he was posted to Thailand from 1970 to 1972, as he and his wife enjoyed a far more active social life during this posting.

9.      Mr Venables related an incident in April 1967 when he became distressed after seeing his wife-to-be polishing medals in preparation for ANZAC day.  He said this reminded him of Vietnam.  He said that his distress following this incident lasted for two weeks.  As a result, he did not attend the wedding of his future wife’s best friend in early May 1967.

10.     Under cross-examination Mr Venables agreed that he had generally enjoyed his army service until his final year, when he was blamed and reprimanded, he felt unjustifiably, for the destruction of classified documents.  While in Thailand (1970‑1972) he had suffered two stressful episodes due to the animosity between a staff sergeant and another signalman.

11.     Mr Venables agreed that his mother’s death in 2001 had caused him enormous grief.

Mrs Venables

12.     Mrs Venables confirmed her statement.  She described the episode when Mr Venables saw her polishing medals in preparation for ANZAC day in 1967.  She said her husband had been upset and withdrawn at the sight, but she believed he had returned to normal by the evening of that day.  Mrs Venables had thought her husband’s refusal to attend her friend’s wedding was due to him getting cold feet with respect to their forthcoming marriage.  Although she was pregnant she had told Mr Venables that he did not have to marry her.  She said that at that time he would be moody for a day and then he would be happy.

13.     Under cross‑examination Mrs Venables said that Mr Venables was moody from 25 April 1967 to 13 May 1967 but after that she described him as being happy until recent times.  She did not believe he had a drinking problem during their marriage.  She said his moodiness had become more apparent and severe in the past 10 years, particularly after the death of his mother.

Dr Collier

14.     Dr Collier provided a report dated 19 October 2004 (T8, p108) in which he diagnosed Mr Venables as suffering from a dysthymic disorder.  Dr Collier reported that his operational service had contributed to the dysthymic disorder.  Dr Collier wrote that:

…learning of his father’s death in the way that he did was a distressing and traumatic event for him, but that event does not constitute the sole cause of his condition.

15.     In his evidence before the Tribunal, Dr Collier nominated the death of Mr Venables’ father as the most stressful event but said that the other events experienced in Vietnam had also contributed to his dysthymic disorder.  The Tribunal asked Dr Collier if Mr Venables reached the diagnostic criteria of dysthymic disorder within two years (factor 5 in Instrument Nº 58 of 1998) or five years (factor 6 of Instrument Nº17 of 2007) of his Vietnam service.  Dr Collier said that he could not say that Mr Venables had reached the diagnostic criteria within two years or five years of his Vietnam service.  Under cross‑examination Dr Collier reiterated that while Mr Venables had some symptoms within the relevant period they were insufficient to attract a diagnosis of dysthymic disorder.  He disagreed with Dr Kernutt’s conclusion; (T8, p48) namely that Mr Venables’ current difficulties are service-related, having been triggered by his mother’s death in late 2001, which reactivated the depression, unresolved grief and guilt regarding his father’s death.

Dr Kenny

16.     Dr Kenny, in his reports dated 21 September 2006 (Exhibit R2) and 29 January 2007 (Exhibit R3), had diagnosed a dysthymic disorder.  However, based on the history he had obtained and the sworn evidence of Mr Venables at the hearing, Dr Kenny said that Mr Venables did not meet the criteria of either SoP with respect to the clinical onset of his depression.

17.     Under cross‑examination Dr Kenny described many of Mr Venables’ responses, such as that following his father’s death, to be manifestations of unresolved grief.  Many of Mr Venables’ responses had been normal and limited in duration.  There was no history of continuity of his symptoms.

Dr Kernutt

18.     Dr Kernutt provided a report dated 14 October 2003 (T8, p40).  He also diagnosed a dysthymic disorder with atypical features but could not relate this disorder to Mr Venables’ experiences in Vietnam.  In his opinion, Mr Venables did not meet the diagnostic criteria of either SoP.  Under cross-examination, Dr Kernutt agreed that Mr Venables’ experiences in Vietnam may have rendered him more vulnerable to the development of depression in later life.  In answer to a question posed by the Tribunal regarding this vulnerability, Dr Kernutt said vulnerability was genetic in a constitutional sense.

documentary evidence before the tribunal

Clinical Notes of Dr Rattray‑Wood (Exhibit R5)

19.     Dr Rattray-Wood is Mr Venables’ local medical officer.  His clinical notes do not mention any psychiatric disorder until 26 May 2003.  Mr Venables had been advised by a member of his local Returned Services League (RSL) to see the pension’s officer regarding assessment for post traumatic stress disorder.  The Department of Veterans’ Affairs arranged for Mr Venables to see Dr Kernutt.  Dr Rattray-Wood referred Mr Venables to Dr Collier for further assessment and treatment in December 2003.  The initial details regarding referral to the pension officer and Dr Kernutt were supplied by Mr Venables.

Mr R. Gable

20.     Mr Gable was Mr Venables’ detachment commander when the mortar attack took place in Phuoc Vinh.  Mr Gable confirmed that incident (T20, p114).

Mrs B. Woods

21.     Mrs Woods is Mr Venables’ sister.  In her statement dated 30 August 2004 (T24, p118) she said that she noted that her brother was moody, reluctant to mix with others, had frequent nightmares and bouts of depression after his return from Vietnam.  She perceived the major factor in his reactions to be their father’s death and possibly his being unable to attend his father’s funeral.

Mr K. Ewart

22.     Mr Ewart was also a radio operator in Vietnam with Mr Venables.  In a statement dated 12 October 2004 (T21, p115), Mr Ewart confirmed that Mr Venables had been the radio operator who received the notification of his father’s death.  He said that following this event, he perceived Mr Venables to have become very withdrawn, easily agitated and just not the same.  After their return to Australia, Mr Ewart noticed that Mr Venables remained quite withdrawn and seemed depressed.  Mr Ewart and Mr Venables had lost contact following their Vietnam service.  

Service Medical Records

23.     Mr Venables’ service medical records (T5, p77‑105) include an entry dated 27 February 1967 documenting a nine year history of grinding teeth, mention of bedwetting to age 12, a report of low back pain on 29 July 1974, mention of a hearing deficit and minor medical problems, such as influenza.  There were no entries regarding other diseases including depression.

relevant legislation

24.     Mr Venables has rendered operational service, therefore s 120(1) and s 120(3) of the Veterans’ Entitlements Act 1986 (the Act) apply.  Section 120A requires the Tribunal, for the purposes of s 120(3), to apply an SoP that is in force.  There is no dispute that Instrument Nº17 of 2007 is in force.  However, in accordance with the decision in Repatriation Commission v Gorton (2002) 65 ALD 609, the applicant may contend that he has an accrued right with respect to Instrument Nº 58 of 1998. Therefore, Mr Venables’ claim must be tested against Instrument Nº 17 of 2007 first. If it fails, the claim must then be tested against Instrument Nº 58 of 1998.

25.     Section 120(1) of the Act states:

120 (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.

(2)       …

(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.

26.     The Tribunal is required to follow the four-step process set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 relating to the reasonable hypothesis standard of proof. These steps are as follows:

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.

submissions

The Applicant

27.     Mr Thomson addressed the Deledio requirements; but given that the respondent has conceded Mr Venables satisfies steps 1 and 2 of Deledio, the submissions on these steps are not relevant.

28.     In relation to step 3 of Deledio, Mr Venables relied on factor 6(b) of Instrument Nº 17 of 2007 and factor 5(b) of the Instrument Nº 58 of 1998.  Factor 6(b) of Instrument Nº 17 of 2007 states:

6.        The factor 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 is:

…

(a)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or

…

A category 1A stressor is defined as follows:

…one or more of the following severe traumatic events:

(a)experiencing a life-threatening event;

(b)being subject to a serious physical attack or assault including rape and sexual molestation; or

(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured…

Factor 5(b) of Instrument Nº 58 of 1998 states:

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; or

…

A severe psychosocial stressor is 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 (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;

SoP Nº 58 of 1998 defines a severe psychosocial stressor and SoP Nº 17 of 2007defines a category 1A stressor.

29.     In relation to step 3 of Deledio, Mr Thomson submitted that factor 6(b) of Instrument Nº17 of 2007 and factor 5(b) of Instrument Nº 58 of 1998 were satisfied. The incidents relied upon were Mr Venables learning of the death of his father and experiencing a mortar attack.  The other stressful incidents were also outlined.  The major issue was identified by the parties and the Tribunal as being the date of clinical onset of Mr Venables’ depression.

30.     In support of a clinical onset within two or five years of operational service, Mr Venables relied on the evidence of his reaction to the polishing of medals in April 1967; his sister’s statement; and the statement of Mr Ewart.  Mr Thomson submitted that the referral of Mr Venables to a psychiatrist in 1968 for lack of assertiveness may have been indicative of an underlying psychiatric disorder, such as depression.

31.     Mr Venables relied on the decision of Re McLeod‑Dryden and Repatriation Commission (1998) 53 ALD 428 for the meaning of clinical onset.  The Tribunal stated, at paragraph 62:

We consider that the term “clinical onset” means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition… refers to the time when a doctor or patient becomes aware of symptoms which either then, or at a later stage, a doctor considers to have been due to the relevant condition.  The Tribunal finds that there can be “clinical onset” of a disease before the condition satisfies the definition of the disease in the SoP…Logically it cannot be necessary to have “two or more major depressive episodes” before the onset of depressive disorder.  It is the onset of the first signs of depressive disorder which is significant.

The Respondent

32.     Having conceded that Mr Venables satisfied steps 1 and 2 of Deledio, the respondent based its submissions on the argument that neither SoP was satisfied with respect to the time of clinical onset.  The respondent relied on the reports of the three psychiatrists, Dr Collier, Dr Kenny and Dr Kernutt; all of whom stated in their oral evidence that they could not identify symptoms indicative of continuous depression within five years of the stressors Mr Venables experienced during his Vietnam service.

33.     Mr Thomson responded by claiming evidence of a chronic mood depression between 1965 and 1968.  He drew the Tribunal’s attention to the passage of time that had resulted in the inability of Mr Venables and the others to recall all events.  Mr Thomson relied on the decision of Repatriation Commission v Cooke (1998) 90 FCR 307 as advocating a more liberal standard of proof, given that the events reported occurred many years previously. Mr Venables’ response to the respondent’s submission did not advance his claim as it essentially reiterated the primary submission.

tribunal’s deliberations on the evidence

34.     The only issue before the Tribunal is the time of clinical onset of the applicant’s dysthymic disorder.  The Tribunal agrees with the respondent’s analysis of the claim and that steps 1 and 2 of Deledio are satisfied.

35.     Step 3 of Deledio requires the Tribunal to determine 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.

36.     The three psychiatrists who have given evidence before the Tribunal and provided reports have all said that they are unable to discern symptomatology that would indicate a clinical onset within five years of Mr Venables experiencing the relevant stressor.  Therefore, the Tribunal can only conclude that the hypothesis raised does not fit the template in Instrument Nº17 of 2007.  Therefore, step 3 of Deledio is not satisfied and the hypothesis is not reasonable.  Mr Venables is not assisted by Instrument Nº 58 of 1998. 

37.     The Tribunal affirms the decision under review.

I certify that the thirty‑seven [37] preceding paragraphs are a true copy of the reasons for the decision of:

Miss E.A. Shanahan, Member

(sgd)       Olympia Sarrinikolaou

Clerk

Date of hearing:  8 February 2007
Date of decision:  16 May 2007
Counsel for applicant:                  Mr C. Thomson
Solicitor for applicant:                  Peter J. Liefman
Counsel for respondent:              Mr K. Rudge
Solicitor for respondent:              Department of Veterans’ Affairs