Wall and Repatriation Commission (Veterans' entitlements) - [2018] AATA 2573

Wall and Repatriation Commission (Veterans' entitlements) [2018] AATA 2573 (7 June 2018)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/1215
Re:Norman Wall
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A.A. Nikolic AM CSC
Date:7 June 2018
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A.A. Nikolic AM CSC
CATCHWORDS
VETERANS’ AFFAIRS – pension – left optic atrophy – major depressive disorder – operational service – whole of the material does not raise a reasonable hypothesis connected to circumstances of operational service – decision affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Blain v Repatriation Commission [2017] FCA 114
Bushell v Repatriation Commission (1992) 175 CLR 408
Cameron v Repatriation Commission (2003) FCA 1323
Repatriation Commission v Cooke [1998] FCA 1717
Deledio v Repatriation Commission (1997) 47 ALD 261
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Statement of Principles No. 83 of 2015: Depressive Disorder
REASONS FOR DECISION
Senior Member A.A. Nikolic AM CSC
7 June 2018

Mr Norman Wall has asked the Tribunal to review a decision by the Veterans’ Review Board (VRB) made on 25 November 2016,[1] affirming the Repatriation Commission’s decision,[2] that Mr Wall’s primary optic atrophy (left) and major depressive disorder were not war-caused.
[1] Exhibit R1 (T-documents numbering 155 pages), pp.2a-2k.
[2] Ibid, pp.98-108.
The hearing was conducted during 15-16 May 2018. Mr Wall was represented by Ms Fiona Spencer of counsel, instructed by Williams Winter Solicitors. The Commission was represented by Mr Ken Rudge, a departmental advocate.
For the reasons that follow, the decision under review is affirmed.
BACKGROUND
Mr Wall is a 70 year-old veteran who served with the Royal Australian Navy (RAN) for approximately eight years from 1964 until 1972.[3] During an 11-day period of operational service between 25 January and 5 February 1968, Mr Wall was serving on HMAS Stuart, while she escorted HMAS Sydney to and from Vung Tau, South Vietnam. HMAS Stuart was anchored in Vung Tau Harbour for approximately eight hours on 3 February 1968 while helicopters unloaded stores from HMAS Sydney.[4] Crew members did not go ashore. Mr Wall contends that during this 11-day period of operational service, the primary optic atrophy in his left eye was caused by local environmental factors or infection. In the alternative, Mr Wall contends he did not receive appropriate medical treatment for this condition.
[3] Ibid, p.2e.
[4] Exhibit R3 (HMAS Stuart Report of Proceedings for February 1968, pp.1-2). HMAS Stuart anchored of Ganh Rai Point at approximately 0650 hours and cleared the Vung Tau Harbour entrance at approximately 1200 hours. HMAS Stuart and two helicopters subsequently escorted HMAS Sydney to sea at approximately 1430 hours for passage to Singapore. HMAS Stuart berthed in Singapore on 5 February 1968 before sailing to Hong Kong on 13 February 1968, arriving in Hong Kong on 17 February 1968.
RELEVANT LEGISLATION AND AUTHORITIES
Operational Service. The expression ‘operational service’ is defined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Wall and Repatriation Commission (Veterans' entitlements) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 2573
Decision Date: 7 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr Wall, a veteran of approximately eight years' service in the Royal Australian Navy, against a decision of the Repatriation Commission. Mr Wall claimed that his conditions of primary optic atrophy in his left eye and major depressive disorder were war-caused, arising from his operational service between 25 January and 5 February 1968, during which HMAS Stuart escorted HMAS Sydney to Vung Tau, Vietnam. He contended that his optic atrophy was caused by environmental factors or infection during this period, or alternatively, that he did not receive appropriate medical treatment for the condition.

The Administrative Appeals Tribunal was required to determine whether the material before it raised a reasonable hypothesis connecting Mr Wall's left optic atrophy and major depressive disorder to the circumstances of his operational service. This determination was to be made in accordance with sections 120(1) and 120(3) of the *Veterans' Entitlements Act 1986*, which stipulate that a determination of a war-caused injury or disease shall be made unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Specifically, section 120(3) requires the Commission to be satisfied beyond reasonable doubt that there is no sufficient ground if the material does not raise a reasonable hypothesis connecting the condition with the service.

The Tribunal considered various service medical records and correspondence. Notably, Mr Wall's own discharge medical statement listed the approximate date of his left optic atrophy as January 1969, and he responded "possibly due to working conditions" when asked if the condition was due to or aggravated by service. Further, a service letter from October 1970 stated that the cause of his optic atrophy was "most unlikely to have been due to the causes stated" and that the cause had "not yet been proven." Another service letter from March 1972 referred to his left optic atrophy as "constitutional and not the result of naval service." The Tribunal found that the hypothesis put forward by Mr Wall, connecting his optic atrophy and subsequent depressive disorder to his operational service, was too tenuous to be considered reasonable. Consequently, the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for determining that Mr Wall's conditions were war-caused.

The Tribunal affirmed the decision under review, meaning Mr Wall's claim for an increase in his disability pension based on these conditions was not granted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, the decision under review is affirmed.BACKGROUND Mr Wall is a 70 year-old veteran who served with the Royal Australian Navy (RAN) for approximately eight years from 1964 until 1972.[3] During an 11-day period of operational service between 25 January and 5 February 1968, Mr Wall was serving on HMAS Stuart, while she escorted HMAS Sydney to and from Vung Tau, South Vietnam. HMAS Stuart was anchored in Vung Tau Harbour for approximately eight hours on 3 February 1968 while helicopters unloaded stores from HMAS Sydney.[4] Crew members did not go ashore. Mr Wall contends that during this 11-day period of operational service, the primary optic atrophy in his left eye was caused by local environmental factors or infection. In the alternative, Mr Wall contends he did not receive appropriate medical treatment for this condition.[3] Ibid, p.2e.[4] Exhibit R3 (HMAS Stuart Report of Proceedings for February 1968, pp.1-2). HMAS Stuart anchored of Ganh Rai Point at approximately 0650 hours and cleared the Vung Tau Harbour entrance at approximately 1200 hours. HMAS Stuart and two helicopters subsequently escorted HMAS Sydney to sea at approximately 1430 hours for passage to Singapore. HMAS Stuart berthed in Singapore on 5 February 1968 before sailing to Hong Kong on 13 February 1968, arriving in Hong Kong on 17 February 1968. RELEVANT LEGISLATION AND AUTHORITIES Operational Service. The expression ‘operational service’ is defined at sections 6 to 6F of the Veterans’ Entitlement Act 1986 (the Act). Under section 6C, a person renders operational service if they, inter alia, are allotted for duty in an operational area. It is not contested that Mr Wall had operational service on HMAS Stuart between 25 January and 5 February 1968. War-Caused Injuries or Diseases. Section 9 of the Act relevantly provides that: (1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if: (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;(c)…(d)… (e)The injury suffered, or disease contracted by, the veteran:(i) …(ii) Was suffered or contracted before the commencement of…eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;And, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; Standard of Proof. As Mr Wall’s claim relates to operational service, the applicable standard of proof is defined in section 120(1) and section 120(3) of the Act:(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.

Evidence

Evidence Before The Court

The issues for determination are whether the claimed conditions of primary optic atrophy - left and major depressive disorder, arose out of or are attributable to any eligible war service, and if so, whether Mr Wall is entitled to an increase in his disability pension.EVIDENCE Evidence of Mr Wall I have had regard for Mr Wall’s statement taken on 23 February 2017.[13] Mr Wall also gave oral evidence at the hearing and was cross-examined. Mr Wall contends that he had no previous problems with his vision prior to 25 January 1968, and connects optic atrophy in his left eye with war service on the following basis: (a)He first noticed a rapid deterioration of his vision[14] during an 11-day period of operational service on HMAS Stuart between 25 January and 5 February 1968. He became aware of this deterioration when unable to facially recognise colleagues on adjoining ships during refuelling or replenishment, something he previously had no difficulty with;(b)Optic atrophy in his left eye was caused by exposure to an unspecified ‘environmental influence or infection,’[15] during that 11-day operational tour; (c)He reported the rapid deterioration in his vision approximately two weeks later in Hong Kong, electing not to do so during an intervening nine day stop in Singapore, as he did not wish to appear alarmist and thought his vision problems may have been temporary;(d)After HMAS Stuart’s arrival in Hong Kong on 17 February 1968, he reported problems with his vision and was referred by a member of the ship’s medical staff to an eye specialist in Hong Kong;(e)Tests undertaken by the Hong Kong specialist confirmed the problem was solely in Mr Wall’s left eye and he was provided with spectacles that day; and (f)In the alternative, Mr Wall contends he did not receive appropriate medical treatment for his left eye condition.[13] Exhibit A1, Mr Wall’s Statement dated 23 February 2017.[14] Ibid, p.1, paragraph 2.[15] Ibid, p.2. In relation to his depressive disorder, Mr Wall submits in his statement that he first developed depression between his ‘1968 tour to Vietnam and the surgery performed by Prof Bradley.’ He identifies a service medical record dated 20 November 1969, which records him suffering anxiety and depression. He submits that he has ‘continued to suffer ongoing chronic depression,’ requiring referral to a psychiatrist. Mr Wall contends that his mental health problems relate to ‘the emotional distress caused by the optic nerve damage’ and the devastating impact his eye condition and the loss of smell resulting from surgery in July 1970 had on his naval career. At the commencement of his oral evidence, Mr Wall stated that the reference in his statement about a rapid deterioration in vision ‘affecting both eyes,’ required elaboration. He said this was true only until he saw the specialist in Hong Kong, who performed tests and confirmed that only Mr Wall’s left eye was affected. Mr Wall said he had aspired during his early Navy career to be a pilot or an officer. The former required good eyesight, which he said was assessed as normal on enlistment in 1964 and remained so until after HMAS Stuart departed Vung Tau Harbour on 3 February 1968. Mr Wall said he never got the opportunity to attend an officer selection board because of events that followed the deterioration of his eyesight in January-February 1968.

Decision

Reasons for decision

The proposed hypothesis is too tenuous and is therefore not reasonable. I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Wall’s left optic atrophy, or the depressive disorder he says arose from it, was war caused. DECISION It therefore follows that the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I note from Mr Wall’s SMR: (a)The disabilities he listed on discharge were:[52][52] Exhibit R2, p.93.‘(1) No smell.(2) Left optic Atrophy. (Blind spot (L) eye)(3) Long sighted.’(b)In response to a question on his Discharge Medical Statement, Mr Wall lists the approximate date his ‘Left Optic Atrophy’ occurred as ‘Jan ’69.’[53] The question immediately following asks whether Mr Wall considered the condition was due to or had been aggravated by service, to which he responded: ‘possibly due to working conditions;[53] Ibid.(c)A service letter dated 27 October 1970 relating to a claim Mr Wall had made under the Commonwealth Employment Compensation Act 1930, states:[54][54] Ibid, p.100.‘The cause of this sailor’s Left Optic Atrophy is most unlikely to have been due to the causes stated. D of T states that he would have only been exposed to ultraviolet light, and this would not cause optic atrophy but burns. There is no record of any retinal burning or its sequelae……The cause of the (L) optic nerve atrophy has not yet been proven.’(d)A service letter dated 24 February 1971, relating to Mr Wall’s anosmia, was provided in response to Mr Wall’s claim under the Commonwealth Employees Compensation Act 1930.[55] Consultant neurosurgeon Professor K. Bradley states:‘The incidence of loss of smell depends entirely on the area investigated by craniotomy. In the case in question where the optic nerves were being explored, the incidence of post-operative anosmia would be high as the olfactory nerves are adjacent to the optic tracts and may suffer damage during exploration. Conversely where areas of the brain remote from the olfactory nerves are being explored the incidence of anosmia would be low.In the type of operation performed in this case there is always an inherent risk of post-operative anosmia.’(e)A service letter dated March 1972, referring to Mr Wall’s Left Optic Atrophy as ‘constitutional and not the result of naval service under the provisions of the Repatriation or C(CE) Acts.’[56] (f)A Report of the Medical Board of Survey dated 2 March 1972 states:‘Recorded Facts: This LEMP first presented with difficulty with vision in his (L) eye in Jan 69…’[57](g)Correspondence dated 1 June 1972 regarding Mr Wall’s discharge, states:‘In June, 1970, after complaining that his distant vision had worried him for about two years…’[55] Ibid, p.102.[56] Ibid, p.109.[57] Ibid, p.92.TRIBUNAL’S DELIBERATIONS Ms Spencer, counsel for Mr Wall, submits that the material before me points to a reasonable hypothesis connecting the onset of Mr Wall’s left optic atrophy with his 11-day period of operational service in early 1968. Counsel further submits that the visual defect in Mr Wall’s left eye ‘could have been missed’ until diagnosed over two years later in mid-1970. Ms Spencer said the Applicant relied on the two possible causes referred to by Associate Professor White, contending it was not necessary to identify a definite cause, just a hypothesis pointed to by the material before me that was reasonable.