XRNX and Repatriation Commission (Veterans' entitlements)

Case [2022] AATA 2024

XRNX and Repatriation Commission (Veterans' entitlements) [2022] AATA 2024 (29 June 2022)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/5367

Re:XRNX  

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:29 June 2022

Place:Brisbane

I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant being the widow of the veteran is entitled to a war widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, I determine that the date of effect of this decision is 16 May 2016.

...............................[SGD].........................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veteran deceased – cause of death Alzheimer disease – claim for widow’s pension – standard of proof ss 120(1), 120(3) and 120A of the Act – relevant Statement of Principles – whether operational service rendered – whether death related to operational service – whether there is a reasonable hypothesis supported by the relevant SoP – Deledio steps – factors of the SoP are satisfied – reasonable hypothesis raised connecting the death of veteran with his service – decision under review set aside and substituted – applicant entitled to widow’s pension.

LEGISLATION

Acts Interpretation Act 1901 (Cth)

Legislation Act 2003 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

CASES

Australian Federation of Construction Contractors: ex parte Billing (1986) 68 ALR 416

Bird v Commonwealth of Australia (1988) 165 CLR 1

Bushell v Repatriation Commission (1992) 175 CLR 408

Byrnes v Repatriation Commission (1993) 177 CLR 564

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35

Deledio v Repatriation Commission (1997) 47 ALD 261

East v Repatriation Commission (1987) 16 FCR 517

Forrester v Repatriation Commission [2013] FCA 898

Kowalski v Repatriation Commission [2011] FCAFC 43

McKenna v Repatriation Commission (1999) 86 FCR 144

Onorato v Repatriation Commission [2011] FCA 1507

Repatriation Commission v Law (1981) 147 CLR 635

Repatriation Commission v Stares (1996) 66 FCR 594

Repatriation Commission v Deledio (1998) 83 FCR 82

Repatriation Commission v Hancock (2003) 37 AAR 383

Repatriation Commission v Warren (2008) 167 FCR 511

Repatriation Commission v Knight (2012) 202 FCR 451

Repatriation Commission v Bawden (2012) 206 FCR 296

Shafran v Repatriation Commission (No 2) [2020] FCA 1072

SECONDARY MATERIALS

Veterans' Affairs Legislation Amendment (2010 Budget Measures) Bill 2010 Explanatory Memorandum.

Statement of Principles concerning Alzheimer disease (Reasonable Hypothesis) (No. 33 of 2019)

Statement of Principles concerning posttraumatic stress disorder (No. 82 of 2014)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

29 June 2022

INTRODUCTION

  1. XRNX, (the “applicant”), following the death of her late husband (the “veteran”) has submitted a claim for a war widow’s pension under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), claiming that the veteran’s death was related to his operational service with the Australian Army.

  2. The veteran served in the Australian Army from 8 July 1969 to 7 July 1971. He rendered operational service in Vietnam from 30 July 1970 to…

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AGLC
XRNX and Repatriation Commission (Veterans' entitlements) [2022] AATA 2024
Case
[2022] AATA 2024
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a war widow's pension following the death of the veteran from Alzheimer's disease. The applicant contended that the veteran's death was linked to his operational service, specifically through a hypothesis involving PTSD stemming from his service experiences, which in turn led to alcohol consumption and subsequent hypertension, ultimately contributing to his death. The Repatriation Commission had previously affirmed a determination that the material before it did not raise a reasonable hypothesis connecting the veteran's death with his operational service. The applicant sought review of this decision.

The primary legal issues before the court were whether the material before the Tribunal raised a "reasonable hypothesis" connecting the veteran's death from Alzheimer's disease with his operational service, and whether this hypothesis was supported by the relevant Statement of Principles (SoP) issued by the Repatriation Medical Authority. The court was required to consider the standard of proof applicable under sections 120(1), 120(3), and 120A of the *Veterans' Entitlements Act 1986* (the Act), particularly the distinction between the "reasonable hypothesis" test and the "reasonable satisfaction" standard.

The court reasoned that a reasonable hypothesis is one that is not fanciful or untenable, and is supported by facts pointing to a connection between the veteran's condition and their service. It noted that since 1 June 1984, decision-makers must have regard to the relevant SoP. The court found that the hypothesis put forward by the applicant, that the veteran suffered from PTSD due to events during his operational service, was supported by evidence of his exposure to traumatic events, such as witnessing self-immolation, being under enemy attack, and participating in body counts. The court determined that this evidence was sufficient to raise a reasonable hypothesis connecting the veteran's death with his operational service, and that the material fit the template for the relevant SoP. Consequently, the court set aside the previous decision and substituted a new decision finding the veteran's death to be war-caused, entitling the applicant to a war widow's pension from 16 May 2016.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In assessing whether a raised hypothesis is “reasonable”, the High Court of Australia in Byrnes v Repatriation Commission[181] held, at 569, that a reasonable hypothesis is raised when “the material points to some fact or facts (“the raised facts”) which support the hypothesis” (see also, Bushell v Repatriation Commission).[182] Furthermore, the High Court in Byrnes said at 571, that in relation to this step:The position may be summarised as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point. [181] (1993) 177 CLR 564. [182] (1992) 175 CLR 408 at page 414. Since 1 June 1984, in accordance with s 120A(3) of the Act, a decision-maker must have regard to the relevant Statement of Principles issued by the RMA to assist in establishing whether an applicant’s hypothesis is reasonable for the purposes of the Act. Therefore, this Tribunal is required to ascertain if it has material before it which fits the template for the relevant Statement of Principles. It has been held that the material must pose a credible proposition, not too remote or improbable; it must be “more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though no proved on the balance of probabilities”.[183] [183] East v Repatriation Commission (1987) 16 FCR 517 at 533. Accordingly, the evidence must point to, or support the hypothesis, and not merely be left open as a possibility. In Bushell v Repatriation Commission[184] the High Court of Australia held that the s 120(3) test will reveal a reasonable hypothesis where “there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service”. [184] (1992) 175 CLR 408. In McKenna v Repatriation Commission[185], Goldberg J emphasised that “it [was] fundamental to any enquiry under ss 120 and 120A of the Act to identify what is the relevant hypothesis”. The hypothesis put forward by the material is that the veteran suffered from PTSD based on events he experienced during his operational service, which is relevant service for the purposes of the Alzheimer SoP. There is evidence of the veteran having observed self-immolation by Buddhists in Saigon, flown in helicopters that were under enemy attack, been involved in body counts and the fact that the veteran lived or worked in a hostile environment for a period of at least four weeks before the clinical onset of PTSD. It is sufficient for my determination of this application, that the hypothesis be supported by the veteran having observed the self-immolation of Buddhists in Saigon, having flown in helicopters which were subject to enemy fire, and being personally involved in body counts. [185] (1999) 86 FCR 144

Evidence

Evidence Before The Court

On 24 July 2017, the Veteran’s Review Board heard the applicant’s application for review. The Board affirmed the determination of the Repatriation Commission.[28] The Board’s reasons for decision dated 24 July 2017 state that the applicant’s hypothesis was that death from Alzheimer disease “was linked to hypertension which in turn was linked to the veteran’s alcohol consumption which was service related”.[29] The Board concluded that the material before it did not raise a hypothesis connecting the veteran’s death with his operational service.[30]EVIDENCE[28] Exhibit A, T-Documents, T14. [29] Exhibit A, T-Documents, T14.[30] Exhibit A, T-Documents, T14. Evidence of the applicant On 15 January 2019 the applicant gave evidence under oath[31] and gave a written statement dated 22 July 2016 which was provided with her claim for a widow’s pension.[32] In her statement, the applicant stated that when she first met the veteran, he never spoke to her about his operational service. She stated that he used alcohol as a sedative and that his drinking worsened over the years.[31] Transcript, 15 January 2019, page 8. [32] Exhibit A, T-documents, T9. With her claim, the applicant also completed an alcohol questionnaire concerning the veteran’s history of drinking.[33] She stated in the questionnaire that in 1969 the veteran started drinking at least six stubbies of beer per day. She stated that the veteran “was very detached and never talked about his service operation. He used the alcohol to numb himself and used the alcohol to help himself sleep.”[34] The applicant was questioned on the validity of this statement, and answered ‘Yes, that’s just an assumption by me, I didn’t even know him until 1977’.[35] [33] Exhibit A, T-documents, T11.[34] Exhibit A, T-documents, T11, page 86.[35] Transcript, 15 January 2019, page 15. The alcohol questionnaire records that by 1983 the veteran’s consumption of alcohol had increased to 10 stubbies per day and that the reason, which was stated for the increase, was that their second child was diagnosed with schizophrenia.[36] The applicant, in her written statement dated 20 February 2018, corrected this record by pointing out that in 1983 her child was then three years of age and the diagnosis of schizophrenia was made when the child was 17 years of age.[37] [36] Exhibit A, T-documents, T11, page 87.[37] Exhibit B, Statement of the applicant, page 6. The applicant also provided a written statement, dated 20 February 2018, in support of her application before the Tribunal. In her statement, the applicant described the veteran as: “quiet but with a good sense of humour, having lots of friends (but none from the military), sensitive and sentimental, but also at times vague and aloof.”[38] She described the veteran’s lifestyle when she met him in 1977, stating that he was the lessee of a squash club which he operated. She stated that he drank heavily with his customers and that there was a drinking culture amongst the customers.[39] [38] Exhibit B, Statement of the applicant, page 2.[39] Exhibit B, Statement of the applicant, pages 2-3.

Decision

Reasons for decision

There was a large amount of complex documentation to review after a four-day Hearing and I acceded to the reasonable request of the respondent to have written submissions after the hearing. I express my appreciation of the assistance of both counsel in resolving this difficult application. I am conscious that in Collins at [49], Allsop J (as he then was) remarked that “the dividing line between impermissible fact finding and required assessment of all the material in the formation of an opinion as to whether a hypothesis is reasonable in connecting the injury, disease or death with the circumstances of service and as to whether a relevant SoP upholds the hypothesis is not necessarily easy to discern”. DECISION I set aside the decision under review and substitute a decision that the death of the veteran was war-caused and that the applicant being the widow of the veteran is entitled to a war widow’s pension. In accordance with s 20(1) of the Veterans’ Entitlement Act 1986, I determine that the date of effect of this decision is 16 May 2016.

Ratio Decidendi

Legal Principle Established

In relation to avoidance behaviours associated with PTSD, Dr JS remarked: The next heading is avoidance and the first category is avoidance of distressing memories, thoughts or feelings about the traumatic event. It is suggested that [the veteran] drank alcohol to avoid memories, thoughts and feelings about his military career. That is extremely speculative, there is no record that [the veteran] ever expressed this opinion to any member of his family. There are numerous reasons why [the veteran] might have been consuming excess amounts of alcohol, a number of possible explanations will be considered later.The second heading under avoidance states avoidance of external reminders that arouse distressing memories, thoughts or feelings. This is in fact the most noticeable of the external evidences for this condition. Individuals with PTSD experience an acute and sharp reaction with both physiological and psychological changes noticeable externally. Nowhere in [the veteran’s] records is there any mention of such behaviour in [the veteran]. He evidently had no interest in such things as Anzac Day or other military activities. There is no indication that the reason for avoiding these reminders was fear of experiencing acute psychological distress. Simply not being interested may be entirely a matter of personal preference or choice, we do not have clinical evidence that [the veteran] developed acute distress when exposed to such reminders. Watching television provides numerous potential exposures to military or violence related scenes, there is no record of [the veteran] being affected by such exposure.[167][167] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 482.CONSIDERATION As I have earlier stated, a pension is payable under the Act so long as there is a “reasonable hypothesis” of a connection between operational service and the veteran’s death which is not disproved beyond reasonable doubt. This standard of proof is distinct from the “reasonable satisfaction” standard which applies to determinations in respect of other matters arising under the Act. The “reasonable satisfaction” standard is the standard of proof that requires satisfaction on the “balance of probabilities”. In its amended Statement of Facts, Issues and Contentions,[168] the respondent had cited Repatriation Commission v Warren[169] as authority for its submission that “the existence of a disease or injury, and the factual circumstances of service must be established to the civil, or reasonable satisfaction standard: s 120(4)”.[170] Also, in its Statement of Facts, Issues and Contentions[171] the respondent quite properly recognised the relevance of Collins v Repatriation Commission[172] (“Collins”) and Onorato v Repatriation Commission (“Onorato”).[173] [168] Exhibit O, Tribunal Book, Respondent’s Amended Statement of Facts, Issues and Contentions. [169] Repatriation Commission v Warren (2008) 167 FCR 511.[170] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions, 25 February 2021 at [28].[171] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions, 25 February 2021 at [38].[172] Collins v Administrative Appeals Tribunal (2007) 163 FCR 35.[173] Onorato v Repatriation Commission [2011] FCA 1507.