XRNX and Repatriation Commission (Veterans' entitlements)
[2022] AATA 2024
•29 June 2022
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
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.
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 9 June 1971.[1]
[1] Exhibit A, T-Documents, T5.
The veteran died on 15 May 2016 at 67 years of age. The cause of death listed on the death certificate was Alzheimer disease.[2]
[2] Exhibit A, T-Documents, T7.
On 1 August 2016, the applicant’s claim for a war widow’s pension under the Act was lodged.[3] On 11 August 2016, the applicant’s claim was refused by the respondent as it was determined that the veteran’s death was not related to service.[4] On 24 July 2017, the Veterans’ Review Board (“VRB”) affirmed the decision to refuse the applicant’s claim for a war widow’s pension.[5] The VRB determined that the veteran’s death from Alzheimer disease was not related to his operational service.
[3] Exhibit A, T-Documents, T8.
[4] Exhibit A, T-Documents, T12.
[5] Exhibit A, T-Documents, T14.
On 6 September 2017, the applicant made her application to this Tribunal for a review of the decision of the VRB.[6]
[6] Exhibit A, T-Documents, T1.
LEGISLATION
Section 13(1) of the Act sets out the criteria for eligibility for a War Widow’s pension under the Act. Section 13(1) provides relevantly:
(1)Where:
(a)the death of a veteran was war-caused; …
…
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; …
…
in accordance with this Act.
Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1)(c) of the Act defines the term “dependant” to include a “widow”. Section 5E(1) of the Act defines a “widow” to include a woman who was legally married to a person, but living separately and apart from the person on a permanent basis, immediately before the person died. It is not in contention that the applicant meets this legislative definition of a “dependant” of the veteran.
Section 8(1) of the Act sets out the circumstances in which the death of a veteran shall be taken to have been war-caused. Section 8(1) of the Act relevantly states:
(1)Subject to this section and section 9A, for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
but not otherwise.
The determination of whether a veteran’s death was war-caused is to be made by applying the standard of proof provided in ss 120(1) and (3) of the Act. Section 120(1) of the Act states:
(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.
Section 120(3) of the Act states:
(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.
Sections 120(1) and (3) of the Act provide for what is often described as a “reverse criminal standard” of proof whereby a pension is payable under the Act provided there is a “reasonable hypothesis” of a connection between operational service and the veteran’s death which is not disproved beyond reasonable doubt.[7]
[7] See Robin Creyke and Peter Sutherland, Veterans’ Entitlements and Military Compensation Law (Federation Press, 3rd ed, 2016) 403; Veterans' Affairs Legislation Amendment (2010 Budget Measures) Bill 2010 Explanatory Memorandum.
Section 120A(3) of the Act states:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Section 120A(4) of the Act states:
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be.
The respondent has not disputed that the cause of death of the veteran was Alzheimer disease and that no other contributing cause to the veteran’s death has been identified.[8]
[8] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions, [36].
STATEMENT OF PRINCIPLES
The parties have submitted that the Statement of Principles (“SoP”) for Alzheimer disease (Instrument No. 33 of 2019) (“Alzheimer SoP”) is the SoP in force concerning the “kind of death” met by the veteran, being his death by Alzheimer disease. Indeed, s 7(5) of the Alzheimer SoP provides:
(5)For the purposes of this Statement of Principles, Alzheimer disease, in relation to a person, includes death from a terminal event or condition that was contributed to by the person's Alzheimer disease.
The applicant advances a hypothesis that the veteran suffered posttraumatic stress disorder (“PTSD”) and that it was the cause of the veteran’s Alzheimer disease.[9] The applicant had, in her amended Statement of Facts, Issues and Contentions, advanced a hypothesis that the veteran also suffered from depressive disorder and that it was also a cause of the veteran’s Alzheimer disease. However, having regard to my decision it is not necessary for me to reach a conclusion on this hypothesis.
[9] Closing submissions of the applicant dated 21 June 2021.
Alzheimer SoP (Instrument No. 33 of 2019)
Section 9 of the Alzheimer SoP prescribes several factors, of which at least one must be found to be present in order to give rise to a reasonable hypothesis connecting a person’s death from Alzheimer disease with the circumstances of their relevant service. “Relevant service” is defined in the Alzheimer SoP to include operational service under the Act.[10] Among the factors listed in s 9 of the Alzheimer SoP is a factor concerning the presence of posttraumatic stress disorder in a person.
[10] Alzheimer SoP, Schedule 1, definition of “relevant service”.
Section 9 of the Alzheimer SoP prescribes the following factor in respect of a hypothesis involving posttraumatic stress disorder:
9 Factors that must exist
At least one of the following factors must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Alzheimer disease or death from Alzheimer disease with the circumstances of a person's relevant service:
…
(11) having posttraumatic stress disorder at least ten years before the clinical onset of Alzheimer disease; …
Section 10(1) of the Alzheimer SoP provides:
(1)The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
Section 11 of the Alzheimer SoP provides:
11 Factors referring to an injury or disease covered by another Statement of Principles
In this Statement of Principles:
(1)if a factor referred to in section 9 applies in relation to a person; and
(2)that factor refers to an injury or disease in respect of which a Statement of Principles has been determined under subsection 196B(2) of the VEA;
then the factors in that Statement of Principles apply in accordance with the terms of that Statement of Principles as in force from time to time.
Sections 10 and 11 of the Alzheimer SoP require the Tribunal to consider whether the veteran’s claimed posttraumatic stress disorder was related to the relevant service rendered by the veteran and whether there is a SoP that supports the hypothesis that the veteran had PTSD as described in section 9(11) of the Alzheimer SoP. I am required, under s 120(3) and s 120A(3) of the Act, to form an opinion as to whether both the Alzheimer SoP and the PTSD SoP uphold the applicant’s asserted hypothesis.
PTSD SoP (Instrument No. 82 of 2014)
The evidence before me raises the hypothesis that:
(a)the Veteran suffered a mental health condition, namely PTSD, which caused his Alzheimer disease; and
(b)as to causation:
i.The veteran experienced a category 1A stressor before the clinical onset of PTSD; and/or
ii. the Veteran experienced a category 1B stressor before the clinical onset of PTSD; and/or
iii. the Veteran lived or worked in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of PTSD.[11]
[11] See also closing submissions of the applicant dated 21 June 2021, [13].
Clauses 6(b) and (c) of the PTSD SoP. Clause 6 of the PTSD SoP provides relevantly:
The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting posttraumatic stress disorder or death from posttraumatic stress disorder with the circumstances of a person’s relevant service is:
(a)experiencing a category 1A stressor before the clinical onset of posttraumatic stress disorder; or
(b)experiencing a category 1B stressor before the clinical onset of posttraumatic stress disorder; or
(c)living or working in a hostile or life-threatening environment for a period of at least four weeks before the clinical onset of posttraumatic stress disorder; …
Clause 9 of the PTSD SoP defines “a category 1A stressor” as meaning:
(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.
Clause 9 of the PTSD SoP defines “a category 1B stressor” as meaning one of the following severe traumatic events:
(a)killing or maiming a person;
(b)being an eyewitness to a person being killed or critically injured;
(c)being an eyewitness to atrocities inflicted on another person;
(d)participating in the clearance of a corpse or a critically injured casualty; or
(e)viewing a corpse or a critically injured casualty as an eyewitness.
Clause 9 of the PTSD SoP also defines “a hostile or life-threatening environment” as meaning a situation or setting which is characterised by a pervasive threat to life or bodily integrity, such as would be experienced in the following circumstances:
(a)experiencing or being under threat of artillery, missile, rocket, mine or bomb attack;
(b)experiencing or being under threat of nuclear, biological or chemical agent attack; or
(c)being involved in combat or going on combat patrols.
Clause 5 of the PTSD SoP states:
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
ISSUE
I have to determine whether the veteran’s death from Alzheimer disease was “war caused” within the meaning of s 8 of the Act. Whether the veteran’s death from Alzheimer disease can be considered war-caused depends on whether the material before me points to a hypothesis connecting the veteran’s death from Alzheimer disease with his operational service which is eligible war service under s 7 of the Act.
The respondent accepts that the material before the Tribunal points to a hypothesis that the veteran suffered PTSD based on a claimed primary event of the veteran (i) observing self‑immolation or (ii) living or working in a hostile or life-threatening environment for a period of at least 4 weeks before clinical onset PTSD.[12] The respondent submits, however, that the hypothesis is not reasonable.[13]
[12] Respondent’s Closing Submissions, dated 16 July 2021, page 1.
[13] Respondent’s Closing Submissions, dated 16 July 2021, page 1.
The respondent contends further that the Tribunal can be satisfied, beyond reasonable doubt, that the veteran’s death from Alzheimer disease was not war-caused, because the evidence shows that (i) the veteran’s Alzheimer disease was as a result of chronic alcohol abuse,[14] and (ii) the contention that the veteran witnessed self-immolations or worked in a hostile or life-threatening environment for a period of at least 4 weeks is only an assumption.[15]
[14] Respondent’s Closing Submissions, dated 16 July 2021, page 1.
[15] Respondent’s Closing Submissions, dated 16 July 2021, page 1.
HISTORY
On 28 September 2009, Dr PR, general practitioner, referred the veteran to Dr RW for an opinion and management of what was thought to be the early stages of Dementia.[16] On 21 January 2010, the veteran saw Dr RW. In his letter to Dr PR dated 29 January 2010, Dr RW concurred with Dr PR’s concern that the veteran had early onset dementia.[17] Dr RW noted in his letter the veteran’s family history of apparent Alzheimer dementia. Dr RW referred the veteran for further tests.
[16] Exhibit A, T-documents, T14.1.
[17] Exhibit A, T-documents, T14.2.
On 2 and 16 February 2010, the veteran saw Dr RW again and was referred to see Dr CP at the Prince Charles Hospital for opinion and treatment. In his letter dated 23 February 2010, Dr RW noted his observations of the veteran and the results of several tests. He opined that the veteran had a functional memory problem and recommended that he be assessed in the Memory Disorders Unit at the Prince Charles Hospital. He remarked that he strongly suspected dementia syndrome in the veteran.[18]
[18] Exhibit A, T-documents, T14.3.
The veteran saw Dr CP on 21 April 2010. Dr CP, in his letter to Dr PR dated 22 April 2010, noted that the veteran had ceased consuming alcohol after having been drinking up to six standard drinks per day for many years. Dr CP noted that the veteran denied any history of depression. He also noted that the mother of the veteran had been diagnosed with dementia.[19]
[19] Exhibit A, T-documents, T14.5.
After further tests, Dr CP diagnosed the veteran with mild dementia of Alzheimer type.[20] The parties agree that the clinical onset of the veteran’s Alzheimer disease was September 2009.[21]
[20] Exhibit A, T-documents, T14.7.
[21] Closing submissions of the applicant dated 21 June 2021, [8]; Closing submissions of the respondent dated 16 July 2021, [15].
On 21 January 2016 the veteran was admitted to an aged care nursing home.[22]
[22] Exhibit I, Medical Chronology, page 24.
On 11 April 2016, the veteran presented, agitated and aggressive, at the Emergency Department at the Prince Charles Hospital.[23] His health continued to decline until his death on 15 May 2016.
[23] Exhibit A, T-Documents, T14.9.
On 1 August 2016, the Department of Veterans’ Affairs received the applicant’s claim for a widow’s pension, dated 22 July 2016.[24] On 11 August 2016, a delegate of the Repatriation Commission denied the applicant’s claim on the grounds that they were unable to relate the veteran’s Alzheimer disease to his service.[25] On 31 August 2016, an application was lodged with the Veterans’ Review Board on behalf of the applicant for review of the Repatriation Commission’s determination.[26]
[24] Exhibit A, T-Documents, T8.
[25] Exhibit A, T-Documents, T12.
[26] Exhibit A, T-Documents, T13.
On 4 November 2016, Dr PR wrote to the applicant’s advocate advising that he did not have any record of the veteran having PTSD but that the veteran did have anxiety symptoms in 2006.[27]
[27] Exhibit A, T-Documents, T14.14.
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.
The applicant recalled that by 1980 the veteran began working in the Customs Department. He worked there until he retired at 58 years of age in 2007.[40]
[40] Exhibit B, Statement of the applicant, page 3.
The applicant described the veteran’s behaviour during the period in which he worked as a customs officer. She stated that after coming home after work each night he would sit downstairs and drink by himself until 9 pm. She said he never ate dinner with the family.[41] In oral evidence, the applicant said the veteran would drink until 9:30 pm or 10 pm each night before having dinner alone. She stated that he did not eat with his family for over 25 years.[42]
[41] Exhibit B, Statement of the applicant, page 3.
[42] Transcript, 15 January 2019, page 11.
The applicant gave evidence regarding the veteran’s personality and interests prior to the onset of Alzheimer disease. The applicant gave evidence that the veteran was not the type of person that would seek medical help, nor was he the type to take medications, stating:
[The applicant]: [the veteran] was very anti-drugs of any sort, he would never take a Panadol, an Aspro or anything from the time I knew him until he was very sick with Alzheimer and in a lot of pain. He would never have sought help for depression anyway I don't think, and even if he was offered medication he would not have taken it.
…
And he would never have, you said, gone to get help for depression?
[The applicant]: No, he would have gone to the doctor with bronchial troubles, that's all. The only times he would have gone to the doctor would be for that sort of thing, never 15 for depression or that sort of mental sort of stuff, no.[43]
[43] Transcript, 15 January 2019, page 11.
The applicant also gave evidence that the veteran was very health conscious and was a sports fanatic, stating that he was a ‘very sporty type, very - well above average in sport and very fanatical’.[44]
[44] Transcript, 15 January 2019, page 11.
During cross-examination the applicant was questioned as to her knowledge of the veteran’s role in the Vietnam war, stating the following:
You now know that he was working in an intelligence field?
[The applicant]: M’mm.
When did you come to know that?
[The applicant]: When he told me he was in Vietnam he said he was in the Intelligence Corps, and I just assumed that wasn’t sort of - I didn’t know anything about Vietnam really so I didn’t really knew what that entailed.[45]
[45] Transcript, 15 January 2019, page 25.
The applicant gave evidence that the veteran did not stop drinking alcohol until he was diagnosed with diverticulitis in 2007. He stopped drinking because he needed to participate in research trials which he could not participate in if he was consuming alcohol.[46]
[46] Exhibit B, p 5; Transcript, 15 January 2019, page 24.
The applicant gave further evidence that the veteran was only able to sleep by drinking himself almost unconscious. She stated that once the veteran stopped drinking, sleeping became harder and he was up all night. She said that was the reason why she felt she needed to place him in a nursing home.[47]
[47] Transcript, 15 January 2019, page 26.
On 11 November 2015, the applicant completed a “person profile” form on behalf of the veteran at the cognitive assessment and management unit of the Prince Charles Hospital. In the form the applicant answered “no” to the question of whether the veteran had any significant traumatic event happen to him as an adult.[48] It was put to the applicant in cross-examination that she had not mentioned any war service of the veteran in response to the question about traumatic events. The applicant responded:
Why would I though? With regard to being in the [cognitive assessment and management] unit and he’s in sort of a very agitated state, why would I make a diagnosis myself that it’s from Vietnam? You know, why would I do that? This was just sort of introductory paperwork, as far as I was concerned…[49]
[48] Exhibit K, Summons material, A1, page 11.
[49] Transcript, 15 January 2019, page 30.
In giving evidence, the applicant was asked to comment on the report of Dr JS where he remarked that, in filling out the cognitive assessment and management “person profile” form, she had denied that the veteran previously suffered from depression. The applicant remarked that her understanding of depression, was “someone who’s a basket case”.[50] She remarked that the only times the veteran would have gone to a doctor would have been for something like his bronchial troubles, never for depression “or that sort of mental stuff”.[51] She stated that the veteran would not have liked to have seen himself as being “weak” in that regard.[52]
[50] Transcript, 15 January 2019, page 10.
[51] Transcript, 15 January 2019, page 11.
[52] Transcript, 15 January 2019, page 11.
The applicant was invited to comment on another statement she had written in the “person profile” form. She had stated that the veteran avoided arguments and did not cope at all with family and domestic stresses. She remarked that he was not good at handling situations where, for example, their children hurt themselves. She said the veteran would be critical of her in a time of crisis, but that he would not argue with her and that he gave her the silent treatment. She gave evidence that on one occasion the veteran was violent to her, when he threw her against the lounge room wall. She remarked that the incident was “explosive”.[53] She gave evidence that that was the only occasion that the veteran was violent towards her until he was placed in a nursing home.[54]
[53] Transcript, 15 January 2019, page 12.
[54] Transcript, 15 January 2019, page 31.
In her statement, the applicant referred to the financial difficulties that the veteran’s drinking had caused.[55] She gave oral evidence that the veteran’s drinking made it difficult for the family to pay school fees and that she returned to working in a nursing home after not working for 20-25 years.[56] She gave evidence that the veteran sought a job as a customs officer to give the family more financial stability.[57]
[55] Exhibit B, Statement of the applicant, page 5.
[56] Transcript, 15 January 2019, page 13.
[57] Transcript, 15 January 2019, page 19.
The applicant gave evidence that the veteran did not handle the period of intense family stress around 1995-1997. At that time their son was diagnosed with schizophrenia, the family was facing financial pressure, and the veteran’s relationship with his daughter was not good.[58] The applicant stated, however, that the veteran’s drinking had become a “real issue” for her in 1983.[59]
[58] Transcript, 15 January 2019, pages 21-22.
[59] Transcript, 15 January 2019, page 22, lines 15-16.
In her statement, the applicant remarked:
On one occasion only early in our marriage, [the veteran] told me that when he was serving in Saigon, he witnessed the death by self-immolation of two Buddhist monks. I recall that he actually used the words “self-immolation” when describing the incident to me.[60]
[60] Exhibit B, Statement of the applicant, page 7.
The applicant stated in cross-examination, that the veteran had on two occasions, not one, told her about witnessing the death by self-immolation of two Buddhist monks, stating:
Do you remember the exact words he used?
[The applicant:] [The veteran] used the words self-immolation, two Buddhist monks, and he said that to me on two occasions, not one, where it says in there, and I don’t recall the context of the surrounding conversation, I don’t. [The veteran] told me three things; the Buddhist monks, that he was with Chinooks and that he was with the [yanks]. They’re the only three things he told me about Vietnam. I remember asking him, “What did you do in Saigon?” He said, “I was with the Yanks”, that’s all he said.[61]
[61] Transcript, 15 January 2019, page 24.
The applicant gave evidence that the veteran joined the RSL, but that he did not maintain any friendships with any of his former military colleagues.[62] The applicant further elaborated that not only did the veteran not maintain any friendships but that he rarely attended the RSL.[63]
[62] Exhibit B, Statement of the applicant, page 7.
[63] Transcript, 15 January 2019, page 9.
On 20 May 2021, the applicant gave further evidence before the Tribunal. The applicant was asked about an occasion on which she and the veteran had watched the movie ‘Forrest Gump’, the applicant was questioned on the veteran’s response to the use of the word ‘Viet-fucking-nam’. The respondent questioned whether this prompted the veteran to display any evidence of experiencing distressing memories or flashbacks. In answering this question, the applicant stated:
I didn’t know of any traumatic incidents in Vietnam. … I asked him about Vietnam and he told me nothing except about the monks and that he was with the Yanks, that’s all he told me. I did ask but he never replied. He just didn’t reply…[64]
Evidence of Ms MB
[64] Transcript, 15 May 2021, page 7.
Ms MB, the youngest daughter of the applicant and the veteran, provided a statement dated 20 February 2018.[65] She gave evidence under affirmation, before the Tribunal on 15 January 2019.[66]
[65] Exhibit C, Statement of Ms MB.
[66] Transcript. 15 January 2019, page 32.
In her statement, Ms MB remarked that she and her siblings were much closer to their mother (the applicant) than their father (the veteran). She stated that if she or her siblings approached the veteran, he would simply say “go to your mother” or “ask your mother”. She remarked that the veteran avoided any confrontational situation.[67] She stated that he was a “very quiet spoken man and was rarely aggressive. He never spoke about his military service”.[68]
[67] Exhibit C, Statement of Ms MB page 2, [6].
[68] Exhibit C, Statement of Ms MB page 2, [8].
In oral evidence, Ms MB claimed that she recalled the veteran’s daily drinking of at least five cans of beer at a very early age, in the early 1990s.[69]
[69] Transcript, 15 January 2019, page 34.
Ms MB gave evidence that the veteran’s drinking at the bowls club “became a daily thing”.[70] She stated “he seemed very well-known” at the bowls club.[71]
[70] Transcript, 15 January 2019, page 35.
[71] Transcript, 15 January 2019, page 35.
Ms MB gave evidence of an occasion when she approached the veteran to speak with him about his war-time experiences. She stated that the veteran “made it very clear that he did not want to talk about his military service”.[72] She stated in oral evidence that:
He was hesitant talking about it, very apprehensive. That was what his body language suggested to me. So he did not go into any detail whatsoever. He was quite dismissive on the topic.[73]
[72] Exhibit C, Statement of Ms MB, page 2, [8].
[73] Transcript, 15 January 2019, p 36.
Ms MB
gave evidence that, following that conversation with the veteran, the applicant told her that the veteran had witnessed the death by self-immolation of two Buddhist monks.
Ms MBstated that the veteran had never mentioned this incident to her.[74]
[74] Exhibit C, Statement of Ms MB page 2, [9].
Ms MB gave evidence that at family social gatherings, the veteran would “use alcohol to deal with the stress of these gatherings and invariably got drunk.”[75] She recalled that the veteran would be reluctant to attend such gatherings and would begin consuming alcohol immediately upon arriving at the event.[76]
Evidence of Mrs SK
[75] Exhibit C, Statement of Ms MB page 2, [15].
[76] Transcript, 15 January 2019, p 37.
Mrs SK, the eldest daughter of the applicant and the veteran, provided a statement dated 21 February 2018.[77] She gave evidence under affirmation before the Tribunal on 15 January 2019.[78]
[77] Exhibit D, Statement of Mrs SK.
[78] Transcript, 19 January 2019, page 38.
Mrs SK gave evidence that the veteran was “very sporty and extremely health conscious.”[79]
[79] Exhibit D, Statement of Mrs SK, p 1, [3].
Mrs SK gave evidence in her statement that, upon arriving home after work each afternoon, the veteran would:
sit downstairs and watch the television news by himself. He would watch the three news broadcasts including the ABC at 7 PM. He would then come upstairs to eat his dinner by himself.[80]
She remarked in oral evidence that she remembers clearly that this behaviour was “a repeated pattern.”[81]
[80] Exhibit D, Statement of Mrs SK p 3, [7].
[81] Transcript, 15 January 2019, p 40, line 21.
Mrs SK gave evidence in her statement that the veteran would drink “at least half a dozen stubbies of beer every night” and that she had “clear memories of seeing the empty bottles the next morning.”[82] She remarked in oral evidence that this occurred as long as she could remember.[83] She remarked that her recollection of the veteran drinking in this manner from before she was eight or nine years old.[84]
[82] Exhibit D, Statement of Mrs SK page 3, [9].
[83] Transcript, 15 January 2019, page 40, lines 26-27.
[84] Transcript, 15 January 2019, page 43.
Mrs SK remarked in her statement that the veteran was not interested in family social gatherings.[85] She gave oral evidence that, although the veteran was active in many sports, the people who he played with were not friends, rather associates.[86] She remarked that she could not remember the veteran ever bringing a friend to their home.[87]
[85] Exhibit D, Statement of Mrs SK, page 3, [10].
[86] Transcript, 15 January 2019, p 39, lines 29-30; p 39, line 46 – p 40, line 1.
[87] Transcript, 15 January 2019, p 43, lines 39-42.
Mrs SK gave evidence in her statement that when she was a teenager her relationship with the veteran “deteriorated and was somewhat volatile [because she] tested the boundaries”.[88] She stated that the veteran “had little insight” into her emotional needs.[89]
[88] Exhibit D, Statement of Mrs SK, page 3, [11].
[89] Exhibit D, Statement of Mrs SK, page 3, [13].
Mrs SK remarked that the period when she was in Grade 12 in 1995 was a difficult period for her relationship with the veteran. She recalled that the veteran had a short fuse and was generally irritable and sometimes angry and violent. [90] She recalled one occasion when the veteran threatened violence toward her by holding his fist in front of her. She described this as an occasion when he simply “snapped”. She remarked that he was remorseful after such events but that he was never able to say sorry. She stated, “he simply withdrew into his shell.”[91] Mrs SK remarked that during this period the family was in difficult financial circumstances.[92]
[90] Transcript, 15 January 2019, pages 39-41.
[91] Exhibit D, Statement of Mrs SK, page 4, [14].
[92] Transcript, 15 January 2019, page 41.
Mrs SK confirmed in oral evidence that the veteran never talked to her about what he did during his war service.[93]
Evidence of Mr TB
[93] Transcript, 21 May 2021, page 41, lines 39-40.
Mr TB, the brother of the veteran, provided a statement dated 21 April 2018.[94] He gave evidence under affirmation before the Tribunal on 15 January 2019.[95]
[94] Exhibit E, Statement of Mr TB.
[95] Transcript, 15 January 2019, page 45.
In his statement, Mr TB gave evidence of the veteran as a young man being “quiet but affable and intelligent”.[96] He stated that the veteran “was not the withdrawn person that he became later in life.”[97] In oral evidence Mr TB stated that the veteran became a withdrawn person when he came back from Vietnam.[98] He stated that he did not spend a lot of time with the veteran when he returned from Vietnam.[99]
[96] Exhibit E, Statement of Mr TB, page 1.
[97] Exhibit E, Statement of Mr TB, page 1.
[98] Transcript, 15 January 2019, pages 46-47.
[99] Transcript, 15 January 2019, page 49, lines 8-9.
In his statement, Mr TB remarked that the veteran did not talk much about his experiences in Vietnam. He stated: “[the veteran] probably disclosed more to me than anyone else. That is probably because I specifically asked him and that I had also been in the Army.”[100] He remarked that the veteran had said enough to him “to indicate that he did have a number of traumatic experiences in Vietnam.”[101]
[100] Exhibit E, Statement of Mr TB, page 2, [8].
[101] Exhibit E, Statement of Mr TB, page 3.
In his statement, Mr TB stated that the veteran “never spoke about most aspects of his intelligence duties because of the secrecy requirements and obligations relating to those activities.”[102] He stated in oral evidence that it was difficult to talk to the veteran about his service in Vietnam because “he saw things that … obviously upset him” and that, because he was in intelligence, the veteran would respond, “I can’t tell you anything,” when asked about his service.[103] He gave oral evidence that the veteran was “a very secretive person, and he was more so when he came back from Vietnam.”[104]
[102] Exhibit E, Statement of Mr TB, page 2.
[103] Transcript, 15 January 2019, pages 46-47.
[104] Transcript, 15 January 2019, page 47, lines 25-26.
Mr TB in his statement also remarked of the veteran’s involvement in sport.
Mr TB also remarked in his statement that the veteran had told him that it was part of his role in the Army:
… to be aware of troop movements and also body counts both in relation to the enemy as well as his own coalition forces. Being involved in body counts was not a pleasant experience.[105]
[105] Exhibit E, Statement of Mr TB, page 3, [9].
Mr TB confirmed in oral evidence that the veteran himself had told him “there was nothing nice about what they were doing”.[106]
[106] Transcript, 15 January 2019, p 49, lines 24-25.
Mr TB further recounted that the veteran had told him that:
He also did a number of reconnaissance flights in helicopters. These were dangerous and they were shot at on a regular basis. On one occasion, he told me that his helicopter had taken a number of rounds from ground fire and that he thought ‘that day he was going to die’. He told me that on that occasion he was ‘scared shitless’.[107]
[107] Exhibit E, Statement of Mr TB, page 3, [10].
Mr TB gave evidence in his statement of one other incident that the veteran told him about:
He also told me of an occasion that a USAF Airbase in Vietnam was overrun by enemy forces. He said that some of the American troops were on drugs and that essential weapons had been locked up and were not readily available. As a result, American servicemen were killed. He said the Americans re-took the base back by force the next day but that it was a matter of great concern to him.[108]
[108] Exhibit E, Statement of Mr TB, page 3, [11].
He gave oral evidence that this disclosure came about because he himself had some knowledge of this incident and that he asked the veteran if he know anything about it. He confirmed that the veteran did not say whether he was there at the time of the incident at USAF Airbase.[109]
[109] Transcript, 15 January 2019, pages 48-49.
Mr TB gave oral evidence that he has not told the veteran’s family anything that the veteran told him about his service in Vietnam. He stated that his written statement was “probably the first time” he had disclosed what the veteran had told him. He advised that this was because he and the veteran had “sworn secrecy” about these things.[110]
[110] Transcript, 15 January 2019, page 49, lines 29-43.
In cross-examination Mr TB was asked about whether his mother (who was also the veteran’s mother) drank alcohol. He gave evidence that she would drink a couple of glasses of wine per night. He gave evidence that his mother very seldom drank with the veteran.[111]
[111] Transcript, 15 January 2019, page 50, lines 13-21.
Mr TB also gave evidence of his (and the veteran’s) father drinking in the evenings. He stated that his father only drank with the veteran when they had a party at home together.[112]
Evidence of Ms BB
[112] Transcript, 15 January 2019, page 50, lines 30-46.
Ms BB, the sister of the veteran, provided a statement dated 7 January 2019.[113] She gave evidence under affirmation before the Tribunal on 15 January 2019.[114]
[113] Exhibit G, Statement of Ms BB.
[114] Transcript, 15 January 2019, page 51.
In her statement Ms BB described the veteran’s personality as “quiet and gentle”[115] and as a “gentle soul who would never harm a fly”.[116]
[115] Exhibit G, Statement of Ms BB, page 2, [5].
[116] Exhibit G, Statement of Ms BB, page 2, [5].
Ms BB remarked in her statement that she had read the statement of Mr TB and that she was not aware that the veteran “had those experiences in Vietnam.”[117] Ms BB stated that, knowing the veteran’s gentle nature, she believes that the veteran “would have been highly traumatised and horrified by these experiences especially the incident with the Buddhist monks.”[118]
[117] Exhibit G, Statement of Ms BB, page 2, [6].
[118] Exhibit G, Statement of Ms BB, page 2, [7].
Ms BB, in her statement related that she lived in Canberra, where the veteran worked, for three years prior to the veteran joining the Army. She stated that she spent a great deal of time in the veteran’s company over those years and that she never saw the veteran intoxicated during that period. She stated that there were many occasions in that period when she and the veteran were together where alcohol was available and that throughout that period he was “at best a light, social drinker”.[119]
[119] Exhibit G, Statement of Ms BB, page 3, [9]-[10].
Ms BB gave evidence in her statement that the veteran never spoke to her about what occurred in Vietnam.[120]
Evidence of Dr LJ
[120] Exhibit G, Statement of Ms BB, page 3, [11].
Dr LJ provided a statement dated May 2018.[121] He gave evidence under affirmation before the Tribunal on 15 January 2019.
[121] Exhibit F, Statement of Dr LJ.
Dr LJ was an acquaintance of the veteran. He gave evidence in his statement that he first met the veteran when he was a resident of a college at the University.[122] He stated that he had a friendship with the veteran for over 12 months and that the veteran was a mentor to him in a sense as the veteran was older than him.[123] In oral evidence Dr LJ confirmed that this was in 1972.[124] He gave oral evidence that he was not in the same classes as the veteran.[125]
[122] Exhibit F, Statement of Dr LJ, page 1.
[123] Exhibit F, Statement of Dr LJ, pages 1-2.
[124] Transcript, 15 January 2019, page 55.
[125] Transcript, 15 January 2019, page 56.
In his statement Dr LJ stated that the veteran was “a bit of a loner in that he did not seem to make any friends apart from myself”.[126] He stated that the veteran never joined with the other students in social or recreational activities with the exception of squash. He stated that it was unusual for the applicant to avoid social interaction because the students lived close together, ate meals together and studied together.[127]
[126] Exhibit F, Statement of Dr LJ, page 2.
[127] Exhibit F, Statement of Dr LJ, page 2.
Dr LJ remarked in his statement that the veteran never talked about to him about himself and that he was surprised to be informed that the veteran served in Vietnam before joining the college.[128]
[128] Exhibit F, Statement of Dr LJ, page 2.
Dr LJ recalled in his statement that on one occasion in about 1977 the veteran invited him to stay with him at the squash courts. He remarked that he and the veteran “drank quite heavily together that night.”[129]
Evidence of Dr AP
[129] Exhibit F, Statement of Dr LJ, page 2.
The report of Dr AP, consultant historian, dated 20 February 2018 was admitted into evidence.[130] Dr AP gave evidence, under affirmation, before this Tribunal on 20 May 2021.[131]
[130] Exhibit L, Report of Dr AP.
[131] Transcript, 20 May 2021, page 30.
In his report Dr AP outlined the veteran’s role whilst in Vietnam. Dr AP stated that working within intelligence, it is likely that the veteran was exposed to not only causality statistics, but also the specific details of those casualties.[132]
[132] Exhibit L, Report of Dr AP, pages 6-9.
Dr AP
also discussed the culture surrounding alcohol consumption throughout the course of the veteran’s operational service. Dr AP discussed the fact that the servicemen were given alcohol as part of their rations. Dr AP opined that this was to help counteract the issues of illicit drug abuse which was prominent amongst the US forces within Vietnam.[133]
Dr APstated that 15% of US military personnel were returning from the war as heroin addicts and that the rate of illicit drug use was lower amongst those soldiers that consumed alcohol.[134]
[133] Exhibit L, Report of Dr AP, pages 2-5.
[134] Exhibit L, Report of Dr AP, pages 2-5.
Dr AP in giving evidence was questioned about his report in which he stated that during the period of the service of the veteran in South Vietnam there were two acts of self-immolation by Buddhists. Although Dr AP conceded that the acts of self-immolation are recorded as occurring in the broadly defined area of ‘South Vietnam’, he stated that these acts were political protests which were aimed at the seat of government in Saigon and for that reason would usually occur in Saigon (South Vietnam).[135]
[135] Exhibit L, Report of Dr AP, pages 6-9.
Dr AP in giving evidence was questioned about the duties of the veteran in his intelligence role in working in the ADF intelligence headquarters. Dr AP was asked whether he had access to information on the number of battlefield statistics. Dr AP stated that the veteran would have had to generate statistics on casualties.[136]
[136] Exhibit L, Report of Dr AP, pages 6-9.
Dr AP stated that while he could not be sure that the veteran travelled as part of his work because the records do not go into detail as to who went on a helicopter flight, he stated that as part of the intelligence community he would be expected to conduct briefings at any place where Australians would be operating. Dr AP stated that the veteran would always travel by helicopter because ground travel was not suitable.[137]
[137] Exhibit L, Report of Dr AP, pages 6-9.
Dr AP was asked whether the veteran faced a pervasive threat to life or bodily integrity for four weeks. Dr AP answered that from the point of when the veteran arrived in Saigon, he was in a situation at which there was the possibility of his life being in danger at pretty much all points.[138]
[138] Exhibit L, Report of Dr AP, pages 6-9.
During cross-examination, Dr AP was asked whether he could be certain that the veteran’s role involved a pervasive threat to life or bodily integrity for four weeks, Dr AP answered:
Well you know, I am sorry, you know, [the veteran] is based in Vietnam, in Saigon, during the Vietnam war, this is an act of war, or fairly intense activity in which there are no rear lines, the Viet Cong and the North Vietnamese have infiltrated major cities such as Saigon on more than – on multiple occasions, there is the random events of rockets being fired into town, into the city, there were terrorist attacks, he is almost certainly going out on missions with other members of the intelligence team, travelling to other places, flying over what is hostile terrain in which his aircraft may or may not have come under ground fire. So I think that, you know, from the point of when he arrived in Saigon, to the point he departed which is a period of approximately 12 months, he was in a situation at which there was, you know, the possibility of life that is in danger at pretty much all points.[139]
[139] Transcript, 20 May 2021, page 35.
Attachment R to the report of Dr AP details a number of enemy terrorist incidents that occurred in Saigon during the period of operational service of the veteran which resulted in a loss of life.[140]
Evidence of Ms GA
[140] Exhibit L, Report of Dr AP, Attachment R.
The report of Ms GA, clinical psychologist, dated 14 May 2018 was admitted into evidence. Ms GA has provided an eight-page report in which she has provided her opinion that the veteran suffered from PTSD as a consequence of his operational service.[141]
Evidence of Dr A
[141] Exhibit I, Report of Ms GA, page 2.
The report of Dr A, psychiatrist, dated 1 October 2020 was admitted into evidence.[142] Dr A provided a 12-page report in which he provided his opinion that there was a reasonable hypothesis that the veteran did suffer from PTSD, the contents of which was consistent with the oral evidence provided at Hearing.
[142] Exhibit O, Report of Dr A.
In relation to the veteran’s alcohol consumption, Dr A remarked:
… there is diagnosis of alcohol use disorder. This is of moderate (not severe) severity in that he remained essentially functional throughout his life, albeit with very significant compensation by [the applicant] in the home environment. There is no evidence of physical deterioration or impairment of his work duties. As such, this illness is not of great severity and is not an explanatory factor for all parts of the clinical picture.[143]
[143] Exhibit O, Report of Dr A, page 90.
Throughout his report, Dr A explained the difficulties that are faced when attempting to provide a retrospective report of this nature, in particular stating:
I feel the consideration of the matter of [the veteran] has some inherent difficulties in that it is entirely retrospective and the patient himself cannot be interviewed conclusions have been inferred from records and memory. I note, I have interviewed [the applicant] directly over the telephone in September of this year.[144]
[144] Exhibit O, Report of Dr A, page 90.
At the conclusion of his report, Dr A opined:
… although there are many ways to explain matters and the full explanation of things can never be definitively defined, and in particular cannot be interviewed by a psychiatrist with experience in PTSD, I would think the overall shape of the picture is consistent with PTSD. A reasonable hypothesis can be made that it is explanatory. I feel the level of his drinking is not sufficient in itself to be a full explanation of matters and that his nature has obscured the presence of symptoms that otherwise could be explored.
On 20 May 2021 Dr A gave video evidence before this Tribunal under affirmation.[145] Dr A’s evidence was consistent with his written report. When asked to elaborate further as to why he holds the opinion that it is a reasonable hypothesis that the veteran suffered from PTSD, he remarked:
… firstly absence of evidence does not mean evidence of absence [of PTSD] and, in particular, we would look at the gaps in the medical records that didn’t reveal many particular symptoms suggestive of post-traumatic stress disorder early on. Now, this, to me, is not at all strange and when we think that post-traumatic stress disorder was only considered as a diagnosis from the early 1990s in practice in Australia and I can recall as a trainee psychiatrist in the late 1980s missing these diagnoses completely in hindsight, even though these were people from the Repatriation Hospital in Greenslopes. So, patients didn’t think to express these symptoms in those days, or they just came for physical problems and nothing else and us, as psychiatrists, could not catch the ball even if it was being tossed to us. So, the fact that a patient these days would give these symptoms, and doctors would ask the right questions, and going back 20, 30 years the fact that the questions were not asked, the patients have not conceptualised their problems as traumatic and so gaps from the history would leave open a wider range of diagnoses when you look at a history from back then, say compared to a history taken by a psychiatrist these days.
I’m not saying there’s something there that wasn’t but it puts less weight on the negative finding of those phenomena not being presented by [the veteran] back there and because patients just did not talk about it. Particularly military people refused to talk about the psychological stuff.[146]
[145] Transcript, 20 May 2021, page 10.
[146] Transcript, 20 May 2021, page 11.
Under cross-examination Dr A was asked about the applicant’s statement that the veteran would cry at weddings and the like, with the specific example of the veteran becoming quite emotional at his sister’s wedding being raised. Dr A responded to this line of questioning by drawing a distinction between “revealing his emotional life” and “losing his self-control”.[147] Dr A opined it appeared to him to be an example of the latter.
[147] Transcript, 20 May 2021, page 14.
When asked about the routine of the veteran which included watching three different nightly news broadcasts and the likelihood of being exposed to news and information about military conflicts around the world, and whether this routine was inconsistent with avoidance behaviours, Dr A remarked:
… it’s not necessarily the concept of military action, or even the concept of seeing the Army … it depends what it was that had rattled this man. I mean [Dr AP] brings up the point of the issue of … Buddhist monks in Vietnam and that being a point of possible – you know, a focus of distress and it may have been more issues like that rather than a general military thing. Certainly it’s not at all unusual for military veterans to have PTSD but still be able to go to ANZAC Day. I see your point, I just don’t know if it’s … quite significant enough to dismiss the hypothesis.[148]
[148] Transcript, 20 May 2021, page 15.
Dr A was further cross-examined regarding the PTSD SoP and the following interaction occurred:
Have you got the Statement of Principles concerning post-traumatic stress disorder, which is number 82 of 2014?
[Dr A:] I have – yes. Yes, I do.
Now, I just want to ask you a few questions about those factors. Factor 35 3(b)A and this is found on page 170 and 171 of the court book; the first factor is exposure to actual or threatened death, serious injury or sexual violence and that’s set out in a number of ways?
[Dr A:] Yes
You can’t independently opine on whether [the veteran] had such an exposure, can you?
[Dr A:] I find your question difficult to answer because that’s a – he’s dead, I can’t interview him, so I can’t get a first-person history, you know.
…
Sorry, you’re reliant on the accounts that you’ve read from others, including Dr [AP]?
[Dr A:] … yes, plus, I suppose, my personal contact with ex-personnel who have worked in intelligence.
But that personal contact wouldn’t, essentially, inform exactly what it is [the veteran] was or wasn’t exposed to in Vietnam, would it?
[Dr A:] No, but it does give a picture that’s not inconsistent.
Taking you to factor B, which is on page 171 of the court book, part way down, it’s presence of one or more of the following intrusive symptoms associated with the traumatic events, beginning after the traumatic event occurred. There’s no direct evidence, [the veteran] suffering from any intrusion symptoms is there, Dr [A]?
[Dr A:] This is the gap in the history, this is the fact there that these are things that were never asked for or never reported back in those days.
Your hypothesis is that the symptoms were masked by the drinking, is that fair?
[Dr A:] Yes.[149]
[149] Transcript, 20 May 2021, page 17-18.
Dr A was further cross-examined in relation to the veteran’s avoidance behaviours and was questioned in relation to whether avoidance could be ascribed to other factors such as social anxiety. Dr A opined that if the veteran’s avoidance was driven by social anxiety, that he would have functioned better when at home with family.
When asked about the veteran’s re-enlistment for three years after returning from Vietnam, Dr A answered:
To explain, there’s a couple of reasonable explanations in this. The first one is, symptoms of PTSD often do not emerge and crystallise for some time and you know, while there’s still active indirect argument about it, early on, you can’t make the diagnosis, the dreams come and go, the intrusions are there or not and there’s lots of denial on the part of the patient as to whether they’ve got symptoms at all. So, it’s not like a physicalness, where you can image it and feel a broken bone or a lesion in a liver or something like that. So, the symptoms are often vague, incomplete, don’t meet the criteria and then, two years down the road, it all comes together. So, that’s a common clinical pathway. And hence, the difficulties in establishing permanency with these DVA people and their impairments. Now, the second one is, that individuals don’t want to accept they’ve got a psychiatric illness and so, remaining in the military, you know, is not an unreasonable thing to do because that’s what their mates were doing, that’s what others were doing. So, it’s not inconsistent at all. Remaining in the military may have even been reflective of his denial of impairment, much as I can see with injured police and service people that rather than accept their physical and mental incapacities, they re-join and pretend they’re okay, as evidence that they’re okay.[150]
Evidence of Dr JS
[150] Transcript, 20 May 2021, page 12.
On 12 July 2018, the respondent wrote to Dr JS, psychiatrist, requesting him to produce a report. At page 18 of the briefing letter, the respondent’s representative asked Dr JS the following question:
On the material provided and based on the balance of probabilities rather than possibilities, do you consider there is sufficient information to make a retrospective and posthumous diagnosis of any psychiatric condition that [the veteran] may have suffered from prior to the clinical onset of his Alzheimer disease?[151]
[151] Exhibit J, Report of Dr JS, page 18.
In his report dated 24 July 2018, Dr JS addressed the above question, stating that diagnoses of “PTSD and major depressive disorder have no basis in fact according to the information provided.” He stated, “[t]he anxiety state associated with PTSD is a possible explanation but is not at all a probable explanation as there are no other supportive factors or facts that support the idea.”[152]
[152] Exhibit J, Medical Report of Dr JS, dated 24 July 2018, p 13.
On 2 September 2019, the respondent wrote to Dr JS to request that he give a supplementary report. On 18 September 2019, Dr JS gave his supplementary report.
In his supplementary report Dr JS remarked that:
[the veteran] had two defining personal patterns of behaviour – he was socially avoidant and spent much of his free time on his own watching TV and consuming alcohol, despite having a family of five children and his wife at home. These personal choices were never explored or explained – to my mind they are more akin to that seen in avoidant and socially anxious individuals than those with either PTSD or a major depressive disorder.[153]
[153] Exhibit N, Supplementary Report of Dr JS, p 4.
During examination-in-chief, the respondent asked Dr JS to “broadly explain your opinion concerning [the veteran] to the Tribunal?’,[154] in answering this question, Dr JS stated the following:
And now the question is, you know, did he suffer PTSD at any point? And my opinion is that, well, why? Why would anyone think that this man had PTSD, like what in his behaviour? You know, he did a degree, that’s fairly – that requires a high level of function. He ran his own business, that was a high level of function. And then he changed and became withdrawn and drank and sat downstairs and didn't want to take care of the kids and stuff like that. So and, you know, one of my colleagues, what’s his name, I can’t remember his name now off the top of my head, but he very carefully, you know, looked at [the veteran’s] life and said there are a few things, you know, that are difficult to explain. And I agree with him, you know, I think he has accurately pointed out, you know, aspects of the man’s history which raise a bit of a question. And, yes, sure, why didn’t he want to come upstairs and have dinner with the family and, you know, participate with taking care of children. Why did he drink so much? That’s later, you know, in life. I mean before that he was evidently fine, he was affable, he was friendly, sociable and so on. He was apparently good at sport and he used to still play golf and bowls even though he used to go downstairs and drink during the week. So I don’t know how sociable he was when he went to play golf and bowls, there’s no information about that. But let me tell you what my main problem is with thinking this man had PTSD. You see I deal with it often you could say daily and I can tell you that when people have PTSD the main problem is anxiety because PTSD is really an anxiety state. It’s caused by fear, fear of getting hurt, and memories of horror, you know, like he watched some Buddhists burn themself to death, for instance apparently. You know, that sort of thing can cause memories that produce a state of fear in the person. And it can have a late onset, PTSD quite often does that. It’s not there and then suddenly it’s there and then the person has lots of anxiety and they can’t sleep and they go to doctors and they say, you know, I'm irritable and I'm fighting with everybody and I'm on edge and I can’t go shopping. And there’s really nothing in his presentation that suggests that he had this problem. So then why say he has PTSD? I mean maybe he had other problems, you know, who knows what possible explanations there may be.
…
His son developed schizophrenia. Is that from his genetic background? Does he have himself some, you know, genes that produce schizophrenia like symptoms and behaviours? Is it the alcohol? Why was he drinking so much? Was it just because he was drinking so much because alcohol becomes a problem in its own right and the alcohol, which is a really toxic substance, had damaged his nervous system. And so on and so on. So just basically, you know, in my reports I go through the phenomena that we associate with PTSD and I notice that typically he never really presented as someone who suffers from lots of anxiety. It’s just not mentioned ever. And, you know, every patient I see with PTSD has this problem, that they have panic, they have hypervigilance, they struggle with going outside, you know. He goes on a Saturday morning and hangs around garage sales, he plays golf, he plays bowls, goes to work. Where’s the anxiety state that he gets from PTSD? It’s never evident. So I just think on balance that whatever, you know, the explanation is for what looks like somewhat unusual kind of patters there are many possible explanations. I think it’s very speculative, you know, to state this is PTSD. It’s really very, very speculative. Sorry, that was a long ramble.[155]
[154] Transcript, 21 May 2021, p 41.
[155] Transcript, 21 May 2021, pages 41-43.
Dr JS was questioned under cross-examination as to whether his response in his report of 24 July 2018 was considered on the balance of probabilities.[156] Dr JS was asked:
… whether you considered that a diagnosis was appropriate on the balance of probabilities; you didn't deal with then whether a diagnosis of PTSD was a real possibility as opposed to a probable diagnosis, did you, in that report?[157]
Dr JS’ response was:
Hang on, I’ve got - honestly, I've got no idea what you're asking me. It’s too difficult to – because, I mean, I don’t remember what I said in the (indistinct) report at all.[158]
[156] Transcript, 21 May 2021, page 44.
[157] Transcript, 21 May 2021, page 44.
[158] Transcript, 21 May 2021, page 45.
In evidence, Dr JS remarked that, in his response of 24 July 2018, he went through “what is possible and what is probable” and that “the only thing I thought was probable was alcohol dependence.”[159]
[159] Transcript, 21 May 2021, page 45.
On 14 January 2021, the respondent wrote to Dr JS to request that he provide a further supplementary report.[160] Among the questions in its briefing letter, the respondent asked
Dr JSthe following question:
Do you agree with Dr [A]’s opinion that a reasonable hypothesis can be made that the veteran suffered posttraumatic stress disorder in the relevant timeframe? Why or why not? In particular, do you consider Dr [A]’s assessment of the relevant diagnostic criteria is reasonable (with particular regard to the concept of reasonableness set out above) including in light of the material/evidence Dr [A] was briefed with and relied on?[161]
[160] Exhibit O, Briefing Letter to Dr JS, dated 14 January 2021.
[161] Exhibit O, Briefing Letter to Dr JS, dated 14 January 2021, page 478.
On 21 January 2021, Dr JS gave his further supplementary report. In response to the above question, Dr JS suggested that, “[t]o satisfy the wording “reasonable hypothesis” … there must be compelling evidence that the criteria as set out in the DSM-5 are met.”[162]
[162] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 6.
In his further supplementary report Dr JS conceded that the veteran satisfied the exposure criterion laid out by the DSM-5. Dr JS, however, did not concede that the veteran experienced symptoms of intrusive thoughts (although he left it open as a possibility), in this regard Dr JS remarked:
In the information provided, there is no indication that [the veteran] at any stage expressed the opinion to anybody that knew him that he had recurrent involuntary and intrusive distressing memories of the traumatic event. He was evidently reluctant to talk about his military experiences, but this does not automatically imply the reason for his reluctance was related to the presence of distressing memories. The behaviour is unexplained and has a number of possible explanations. The actual explanation however remains unknown. Working for military intelligence implies need for a high level of security, and [the veteran’s] behaviour for instance may be explained by taking the need for security seriously and remaining rigidly convinced that he had a need to not talk about his military experience.[163]
[163] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 481.
Dr JS also does not concede that the applicant experienced recurrent distressing dreams about the traumatic event, stating simply “there is no indication that [the veteran] at any point expressed distress about dreams”.[164]
[164] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 481.
With regard to the presence of dissociative states, Dr JS, again, simply remarked that this was never mentioned in the veteran’s history.[165] In respect of distress resulting from exposure to cues reminiscent of the traumatic event, Dr JS went on to remark:
Intense or prolonged psychological distress at exposure to internal or external cues that resemble aspects of the traumatic event. Nowhere in [the veteran’s] records is there mention that he demonstrated prolonged psychological distress after exposure to a reminder of the military experience.[166]
[165] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 481.
[166] Exhibit O, Supplementary Report of Dr JS, dated 21 January 2021, page 481.
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.
In Repatriation Commission v Warren (2008) 167 FCR 511 Lindgren and Bennett JJ remarked:
Sections 120 and 120A of the VE Act provide a method and standard of proof for determining whether there is a link between a disease and a veteran’s service, that is to say, whether a disease was war-caused.[174]
[174] at 513.
In Onorato, Katzmann J, remarked that in a case of a claim by a dependant of a deceased veteran:
the condition for the operation of s 120(1) is the death of the veteran. Once the tribunal determined to its reasonable satisfaction in accordance with subs (4) the kind of death the veteran suffered … the subsection was exhausted.[175]
[175] Onorato v Repatriation Commission [2011] FCA 1507, [42].
The reasonable satisfaction standard is applicable in this application only to the following questions:
(a)whether the veteran died;
(b)whether the veteran died from Alzheimer disease;
(c)whether the applicant was a dependant at the time of the death of the veteran; and
(d)whether the veteran had engaged in operational service.[176]
These antecedent facts have been properly conceded by the respondent.[177]
[176] Cf, Onorato v Repatriation Commission [2011] FCA 1507, [38].
[177] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions, [3]; Closing submissions of the respondent dated 16 July 2021, [35]-[37].
The applicant is eligible for a pension if it can be shown that the veteran’s death was related to his operational service, by way of a reasonable hypothesis supported by the relevant SoP, as required by section 120A of the Act.
The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at [82]-[83] formulated this four-step process:
(i)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.
(ii)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a [Statement of Principles] 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.
(iii)If a 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 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.
(iv)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.
This Deledio formulation is still authoritative. In Repatriation Commission v Bawden (2012) 206 FCR 296 at [40], the Full Court reaffirmed the authority of Deledio. In Forrester v Repatriation Commission [2013] FCA 898 at [26], Mortimer J observed that in Collins v Administrative Appeals Tribunal (2007) 163 FCR at [31], Allsop J (as he then was) pointed out that the second sentence in the second paragraph of the Deledio formulation is not correct and that otherwise these four steps have been consistently endorsed and applied to the operation of ss 120 and 120A of the Act.
Having regard to the observations of Katzmann J in Onorarto v Repatriation Commission [2011] FCA 1507,[178] it is appropriate that the Deledio process begin, as I am reasonably satisfied that the veteran had passed, that he died because of Alzheimer disease, that the applicant was a dependent of the veteran at the time of his death and the veteran had engaged in operational service.
[178] At [38].
Step 1 of Deledio
In this first Deledio step I am required to examine the material to ascertain whether the material points to a hypothesis connecting the death of the veteran with the circumstances of the particular service rendered by him. It has been said that “a hypothesis is no more than a supposition of conjectural explanation of an ultimate fact” (see Repatriation Commission v Stares (1996) 66 FCR 594 at page 217).
The respondent has quite properly conceded that Step 1 of the Deledio process is met. I outline my reasons why I agree with this concession. In Forrester v Repatriation Commission [2013] FCA 898 at [30], Mortimer J pointed out that “whether material ‘points to’ or ‘supports’ a hypothesis is, of its nature, a matter which can be determined by inference or assumption”. Mortimer J, in Forrester, remarked that in Repatriation Commission v Stares (1996) 66 FCR 594 (a pre-Deledio case), the Full Court held that assuming a fact – in that case, that the veteran started his heavy drinking during war service – was permissible at what is now identified as the first stage of the Deledio approach.
The fact that the veteran had some difficulties with his studies soon after his operational service in Vietnam is consistent with the veteran then experiencing PTSD.[179] The fact that the veteran was a heavy drinker at the time when the applicant first met the veteran is significant and enables me to assume that his heavy drinking was a continuation of his heavy drinking during his service. There is evidence from Mr TB who stated that the veteran’s duties during his operational service included being responsible for body counts in relation to the enemy and for his own coalition forces, Mr TB remarked that being involved in body counts was not a pleasant experience. Having regard to the above quoted remarks of Mortimer J in Forrester, I consider it is legitimate to infer that the veteran saw corpses when he was involved in body counts. There is material which points to the veteran suffering from PTSD as a result of his service. Ms GA considers that the deployment of the veteran to Vietnam resulted in him experiencing numerous traumatic incidents that resulted in the development of PTSD which remained undiagnosed until his death. The material before me indicates that the veteran was travelling in a helicopter that came under enemy fire. The material before me indicates that the veteran witnessed acts of self-immolation by Buddhists. I therefore conclude after my review of this material, that the material before me points to a hypothesis connecting the death of the veteran with the circumstances of the operational service that was rendered by him.
[179] Exhibit H, Academic Record of the veteran.
The applicant accordingly satisfies step 1 of Deledio.
Step 2 of Deledio
The primary cause of death of the veteran at 67 years of age was Alzheimer disease. The death certificate of the applicant records that the duration of the Alzheimer disease condition of the veteran was for some years. There is no issue that the death suffered by the veteran was Alzheimer disease, which I find on the balance of probabilities to be the cause of death of the veteran.[180]
[180] Repatriation Commission v Hancock (2003) 37 AAR 383, 385-386, per Selway J.
I am required to ascertain whether there are in force any Statements of Principles issued by the RMA under ss196B(2) or (11) of the Act. There is a Statement of Principles concerning Alzheimer disease (instrument No. 33 of 2019).
Step 3 of Deledio
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
Subsection 7(5) of the Alzheimer SoP provides:
For the purposes of this Statement of Principles death from Alzheimer disease, in relation to a person, includes death from a terminal event or condition that was contributed to by the person’s Alzheimer disease.
The SoP in section 8 indicates that the RMA is of the view that there is sound medical-scientific evidence that indicates that death from Alzheimer disease can be related to relevant service rendered by veterans. There is medical evidence[186] that the veteran’s condition comes within the definition of Alzheimer disease in section 2 of the SoP which refers to evidence of major or mild neurocognitive disorder.
[186] Exhibit A, T-Documents; Exhibit K, Summons Records; Exhibit I, Report of Ms GA; Exhibit O, Report of Dr A.
Section 10 of the Alzheimer SoP provides that the existence of any factor referred to in s 9 must be related to the relevant service rendered by the person.
I have to consider whether a reasonable hypothesis has been raised connecting the veteran’s death from Alzheimer disease with the circumstances of the veteran’s relevant service.
I should make some preliminary observations concerning the fact that evidence was led as to whether the veteran met the diagnostic criteria for PTSD as contained in clause 3 of the PTSD SoP. While those diagnostic criteria in the SoP for PTSD are certainly relevant in a case where an applicant is making a claim based on the death of a veteran by PTSD, those diagnostic criteria, in my respectful opinion, are not relevant where an applicant is not making a claim based on the death of a veteran by PTSD. My task is not to weigh the evidence and decide whether or not the veteran suffered PTSD.[187]
[187] See Onorato v Repatriation Commission [2011] FCA 1507, [40]; Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [21]
I am aware that both parties sought medical advice on whether the veteran had ever satisfied the diagnostic criteria for PTSD. Such advice would certainly be useful in any negotiations prior to the hearing, but my function is not to make a finding on whether the veteran satisfied the diagnostic criteria for PTSD.
Section 6 of the Alzheimer SoP provides that one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from Alzheimer disease with the circumstances of a person’s relevant service is:
(10) having posttraumatic stress disorder at least ten years before the clinical onset of Alzheimer disease.
The parties accept the assessment of the VRB that the date of clinical onset of the Alzheimer disease condition of the veteran was on 28 September 2009. This assessment is reasonable because this is when the veteran was referred to a neurologist at the early stages of what was then considered as dementia.
There was no evidence before the VRB that there were any psychiatric conditions which may have contributed to the Alzheimer disease condition of the veteran. There is medical opinion before this Tribunal which indicates that since the time of his operational service, the applicant had PTSD. This would satisfy the template which requires that the veteran had PTSD at least ten years before the clinical onset of Alzheimer disease.
At the resumed hearing the applicant stated that they are no longer seeking to rely upon the report of Ms GA. However, I then stated that the report is still in evidence. At this juncture, I invited the parties to deal with the weight that this report should be given in their closing submissions. Neither the applicant nor the respondent made any submissions in this regard.
I am mindful that the respondent in its statement of facts, issues and contentions acknowledges that the report of Ms GA points to a possibility of a diagnosis of PTSD and/or Major Depressive Disorder.[188] Logan J in Repatriation Commission v Warren[189] explained how this document follows the background against which each party conducts its case. The respondent did not withdraw the concession which I consider was properly made. I have therefore considered that I may have regard to the report of Ms GA.
[188] Exhibit O, Respondent’s Amended SFIC, page 17.
[189] 167 FCR 511 at [92].
Ms GA, in her report dated 14 May 2018 has provided her opinion that the tragic events experienced by the veteran during his operational service resulted in the development of PTSD and met the criteria under the SoP for PTSD. Ms GA considered that the veteran experienced Criterion A, B, C, D and E for “the entirety of his life post his military service, however [the veteran’s] symptoms remained undiagnosed and untreated”. In my opinion this report of Ms GA is a sufficient basis for finding that there was a reasonable hypothesis that the veteran suffered from PTSD because of the traumatic events that he sustained during his operational service and had PTSD for the requisite period of ten years before the clinical onset of Alzheimer Disease.
Dr A, in his report dated 1 October 2020, has also given his opinion that there was a reasonable hypothesis that the veteran suffered from PTSD as a result of his military service in Vietnam. The applicant submitted that there were key features of this conclusion:
i. the ‘striking’ change between the way the Veteran was before his military service and the way the Veteran was after his military service. Before his military service, the Veteran demonstrated social skills and a high level of interpersonal activity. After his military service his life was extraordinarily restricted;
ii. the veteran demonstrated extreme rigidity in routine in his life which was consistent with suppression of intrusive symptoms;
iii. his complete avoidance of discussion of his military experiences was too extreme to be considered a normal variant;
iv. his avoidance of emotional intimacy with his family was consistent with emotional numbing as seen in PTSD;
v. his irritability was consistent with PTSD; and
vi. the consistency of the overall picture with the Veteran suffering from PTSD.
Dr JS differed from the opinions expressed by Ms GA and Dr A. Dr JS concluded that having gone through the criteria of PTSD there was “very little that one could go on to make a definite diagnosis”.
Dr JS in his report dated 21 January 2021 concluded:
In summary [the veteran] is an individual who had an unusual lifestyle. He spent much of his time, when not at work, away from family contact consuming excessive amounts of alcohol. What drove him to this behaviour is unknown. There are a number of possible explanations including anxiety disorders and genetic vulnerability related to schizophrenia and early onset dementia, and the effects of alcohol abuse. All of these need, I think, consideration above the possibility that it is explicable as posttraumatic stress disorder in the absence of the definitive features of PTSD.
Dr JS’ expert opinion (contained within his reports of 24 July 2018, 18 September 2019 and 21 January 2021) was given in terms of what Dr JS considered was “probable”, “compelling” and “convincing”. While the initial letter of instruction to Dr JS required him to form an opinion having regard to the balance of probabilities standard, he did not seem to have regard to the correct standard of proof mentioned in the further letters of instruction which had regard to the standard of proof which is prescribed by s 120(3) and s 120A of the Act.
Subsequent briefing letters from the respondent have quite correctly asked Dr JS to provide his opinion based on whether there was a reasonable hypothesis that the applicant had PTSD for at least ten years before the clinical onset of his Alzheimer disease, the response of Dr JS in his report dated 14 January 2021 remarked “to satisfy the wording ‘reasonable hypothesis’, I suggest that there must be compelling evidence that the criteria as set out in the DSM-5 are met’”.[190] Under cross-examination Dr JS explained that in using the expression ‘compelling’, he meant ‘substantial, substantiated enough’.[191] I have earlier mentioned that for the purposes of my determining this application, it is not necessary for me to determine whether the veteran actually satisfied the diagnostic criteria for PTSD. Such a finding is not required for the purposes of considering the application of step 3 of Deledio.
[190] Exhibit J, Report of Dr JS.
[191] Transcript, 21 May 2021, page 47.
Before this Tribunal, Dr A was questioned on whether the veteran had satisfied the diagnostic criteria in the SoP for PTSD. However, for two reasons I consider that I cannot conduct an inquiry into whether the veteran met the diagnostic criteria in the SoP for PTSD. First, I have previously mentioned that the diagnostic criteria in clause 3 of the PTSD SoP would only have relevance if the veteran’s death was from posttraumatic stress disorder (see clause 3(1)). This application is not a case where the death of the veteran was caused by posttraumatic stress disorder. Secondly, such an inquiry would be impermissible having regard to the decision of the Full Court in Collins v Administrative Appeals Tribunal (2007) 165 FCR 35 which is binding upon me. Katzmann J observed in Onorarto that the Tribunal in Collins had impermissibly engaged in a process of fact finding in determining that the veteran had not satisfied all of the criteria for the then SoP concerning PTSD in a case where the cause of the death of the veteran was ischaemic heart disease.
In determining this application, I have been guided by the judgement of Katzmann J in Onorarto, who at [41], explained that the decision in McKenna v Repatriation Commission (1999) 86 FCR 144 was not concerned with the death of a veteran and the operation of s 120(4) of the Act. Katzmann J also explained at [32], that a consequence of the McKenna decision is that s 120A(3) of the Act enables an hypothesis to be upheld by more than one SoP.
In Onorarto Katzmann J, at [8], emphasised that a SoP is a statutory instrument. A Statement of Principles determined under s 196B(2) or (11) of the Act is a legislative instrument as defined by s 8(4) of the Legislation Act 2003 (Cth) as being an instrument made under a power delegated by Parliament. Pursuant to s 13 of the Legislation Act 2003 (Cth), the rules of interpretation in s 15AA and s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) are applicable.
The High Court of Australia has emphasised that s15AB(1)(a) of the Acts Interpretation Act 1901 (Cth) does not permit recourse to any extrinsic materials in a case where the meaning of the statute is clear.[192] However, in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation (s15AA)).
[192] Australian Federation of Construction Contractors: ex parte Billing (1986) 68 ALJR 416 at 420.
I have endeavoured to keep in mind that the High Court of Australia has emphasised that the Act has to be interpreted beneficially as the Act is legislation to compensate veterans and their dependents.[193] In Shafran v Repatriation Commission (No 2) [2020] FCA 1072 at [39], Logan J emphasised that the Act ‘is not just beneficial legislation; it confers entitlements on veterans and their dependents in return for the undertaking of particular types of military service. It is a contemporary manifestation of our country’s bargain with her veterans’. I am also mindful that the Full Court of the Federal Court of Australia has explained in Kowalski v Repatriation Commission[194] Logan J, with whom Dowsett and Cowdray JJ agreed, pointed out that the fact that a beneficial purpose can be discerned in legislation does not provide a warrant for the extending of a benefit to an individual whose case falls outside its terms. I consider that the entitlement of the applicant to a widow’s pension falls fairly and squarely within the terms of the SoPs which are statutory instruments made under the Act.
[193] Repatriation Commission v Law(1981) 147 CLR 635, at 648 per Aickin J,; Bird v Commonwealth of Australia(1988) 165 CLR 1, at 6 per Mason CJ, Brennan and Toohey J
[194] [2011] FCAFC 43 at [36].
Section 11 of the Alzheimer SoP requires that the factors in the PTSD SoP apply. In interpreting the Alzheimer SoP I have to consider the factors contained in clause 6 of the PTSD SoP. I will outline my consideration of how some of those factors apply to this application.
Clause 6(a) of the PTSD SoP refers to the factor of experiencing a category 1A stressor before the clinical onset of PTSD. In considering this factor I have had regard to the evidence before me which points to the veteran being exposed to a category 1A stressor, being in a helicopter which was subject to enemy fire. The brother of the veteran has related how the veteran had told him that on one occasion the helicopter that he was travelling in had ‘taken a number of rounds from ground fire’, the veteran informed his brother that he was ‘scared shitless’ and that on ‘that day he thought that he was going to die’. During the period of operational service of the veteran RAAF records verify that Australian helicopters were attacked; in December 1970 two helicopters were hit by ground fire and in March 1971 two helicopters were forced to land after being hit by ground fire.
The material before me discloses that during his service the veteran experienced a class 1B stressor as required by clause 6(b) of the PTSD SoP. This is because the veteran was an eyewitness to a person being killed by witnessing the self-immolation of Buddhists. The veteran witnessing the two events of suicides by Buddhists would satisfy the factor of experiencing a category 1B stressor by being an eyewitness to a person being killed. The veteran also experienced a category 1B stressor by viewing a corpse. The definition of ‘a corpse’ means the human remains of a person who has met a violent or horrific death. A person who was killed in combat would be such a person. In being involved in body counts, the veteran would have seen a number of corpses.
I find that the hypothesis raised is consistent with the template in sections 6(a) and 6(b) of the Alzheimer SoP.[195]
[195] Collins v Administrative Appeals Tribunal (2007) 165 FCR at [5] per Lindgren J and at [48] per Allsop J.
At this stage of my inquiry, I am not required to make any findings of fact as to matters of proof. In Repatriation Commission v Knight[196] Katzmann J explained that “the Tribunal is not permitted to make findings regarding the facts necessary to make out the hypothesis”. In Deledio[197] Heerey J explained that a claimant does not have to prove all the facts raised by a hypothesis. My duty is therefore simply to examine the material before me.[198] I have already mentioned that my task is not to weigh the evidence and decide whether or not the veteran suffered PTSD.[199]
[196] [2012] 202 FCR 451.
[197] Deledio v Repatriation Commission (1997) 47 ALD 261 at 275.
[198] Repatriation Commission v Knight [2012] 202 FCR 451.
[199] See Onorato v Repatriation Commission [2011] FCA 1507, [40]; Collins v Administrative Appeals Tribunal (2007) 163 FCR 35 at [21]
The veteran’s relatives have given an account of his change of personality from that of “a well man” to one who lived a restrictive life, who avoided emotional intimacy with his family and who was irritable. Dr A has concluded that veteran’s mental condition was consistent with PTSD.
The respondent has submitted that one element of the applicant’s hypothesis that the Tribunal must be satisfied of “on the basis of the whole of the material, is clinical onset of PTSD”.[200] The respondent remarked that Dr A did not provide any opinion as to the date of clinical onset of PTSD. The Alzheimer SoP refers at s 9(11) to the veteran “having posttraumatic stress disorder at least ten years before the clinical onset of Alzheimer disease”. This does not call for the Tribunal to determine the date of the clinical onset of PTSD, but rather to consider whether the veteran had PTSD at least ten years before the clinical onset of Alzheimer disease. This requirement in my opinion, is met by the report of Ms GA who considers that the veteran experienced PTSD since his operational service. This is consistent with the fact that upon his return to Australia the veteran experienced academic difficulties in his university studies.
[200] Closing submissions of the respondent dated 16 July 2021, [15].
The respondent has quite properly referred to Repatriation Commission v Knight[201] where the Full Court of the Federal Court remarked:
The Act … required the Tribunal to ask whether the material before it raised a reasonable hypothesis connecting the veteran’s service to his death and to answer that question by locating such a hypothesis, if possible, within a Statement of Principles which upheld it. Consistently with the meaning of the word “hypothesis” this inquiry was not to involve the Tribunal in fact-finding about the material before it. Instead, the Tribunal was simply to examine that material to see if such a hypothesis might reasonably be drawn from it.[202]
[201] (2012) 202 FCR 451.
[202] (2021) 202 FCR 451, [5].
I have concluded that there is indeed a reasonable hypothesis that the death of the veteran is connected with the circumstances of his service. This is because there is material which points to the veteran being exposed to the type of stressors required by the PTSD SoP whilst he was on operational service. There is material before this Tribunal which raises a reasonable hypothesis connecting the veteran’s death from Alzheimer disease with his operational service. Having regard to the decision of the High Court in Byrnes v Repatriation Commission,[203] I have given reasons why I consider that the material before this Tribunal points to facts that support the hypothesis. There is no basis for me to find that the hypothesis is fanciful or untenable. I therefore find the applicant’s hypothesis to be reasonable.
[203] (1993) 177 CLR 564 at 571.
The applicant accordingly satisfies Step 3 of Deledio.
Step 4 of Deledio
Section 120(3) of the Act requires me to consider whether the applicant’s hypothesis is reasonable or not. If the hypothesis of the applicant is reasonable, then s 120(1) of the Act requires me to determine that the veteran’s death by Alzheimer disease was war‑caused unless I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. In Forrester v Repatriation Commission,[204] Mortimer J, in discussing the fourth step in Deledio, has referred to the “very high level of satisfaction required to reject a veteran’s claim at [this] stage”.
[204] [2013] FCA 898.
There is an authenticity of the evidence that was advanced on behalf of the applicant. I consider that the fact that the veteran was not forthcoming about most of his experiences in Vietnam is consistent with the nature of his intelligence duties. The applicant herself gave honest evidence and did not, in my view, embellish the account of her interactions with the veteran. The evidence given by the applicant was consistent with that of other witnesses called in this matter. In relation to the issue raised at hearing of whether the veteran told her once, or twice, of the self-immolation, I consider this to a peripheral issue which does not impact upon my assessment of her credibility. I find the applicant to be credible, open and honest, even when her answers may not have advanced her case.
The respondent has submitted that for the consideration of the fourth Deledio step “the evidence shows clearly that the veteran’s Alzheimer diagnosis is a result of chronic alcohol abuse”.[205] However, I accept the evidence of Dr A who in his report stated that in his opinion any alcohol use “is not of great severity and is not an explanatory factor for all parts of the clinical picture”.[206] The conclusion of Dr A in his report that any alcohol use was not of great severity was not challenged before the Tribunal. Dr A gave cogent reasons for his conclusion stating that there is no evidence of physical deterioration or impairment of his work duties as a result of the veteran’s alcohol use. In giving evidence before the Tribunal Dr A explained that the veteran did not have the usual sequelae that would be expected of a lifetime of alcoholism on its own. While Dr A considered that there was some increase in consumption, it was not as much as he had expected if the veteran had a chronic alcohol abuse condition.[207]
[205] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions.
[206] Exhibit O, Respondent’s Amended Statement of Facts, Issues and Contentions.
[207] Transcript, 20 May 2021, page 15.
Dr AP had provided information to the best of his knowledge and having regard to his considerable expertise in this field, I place a high amount of weight on his evidence. I have found assistance from the evidence of Dr AP who confirmed that it was possible that the veteran witnessed an act of self-immolation of a Buddhist. While Dr AP stated that the acts of self-immolation of the Buddhists are recorded as occurring in the broadly defined area of South Vietnam, he gave a plausible explanation of why those acts would usually occur in Saigon. This is because the acts of self-immolation were political protests aimed at the seat of government in Saigon.[208]
[208] Transcript, 20 May 2021, pages 33-35.
There is no cogent evidence to explain that the behaviour of the veteran was caused by a condition other than PTSD. Dr A under cross-examination denied that the behaviour of the veteran could be explained by social anxiety disorder and avoidant personality disorder.[209] Dr A explained that the longitudinal picture was not consistent with avoidant personality disorder. Dr A remarked that alcohol was not fully explanatory of the entire picture because the veteran was able to keep his job. Dr A considered that a reasonable hypothesis can be made that there was another psychiatric illness other than an alcohol abuse disorder which explains the totality of the veteran’s experience. While Dr JS points to unknown influences from genetic disturbances from schizophrenia or autistic tendencies, there is no cogent evidence of these unknown influences. Dr A remarked that ‘unknown influences’ is a vague term and was not consistent with a man that could captain a tennis team and move to Canberra to take a responsible position.[210] I mention that the veteran undertook these responsible duties prior to his operational service in Vietnam. Dr A was asked whether there could be a personality vulnerability and while Dr A was fair in considering this as a possibility, he said that there was no basis for such a conclusion.
[209] Transcript, 20 May 2021, pages 24-25.
[210] Transcript, 20 May 2021, page 25.
In the absence of any compelling evidence to the contrary, I have inferred that the two acts of self-immolation by Buddhists that the applicant claims the veteran witnessed, had occurred in Saigon during the period of operational service of the veteran in South Vietnam. I have also concluded that the veteran had seen these acts of self-immolation having regard to the credibility of the applicant who did her best in my opinion to recall what the veteran had told her about these acts.
Dr AP when giving evidence, was questioned about the duties of the veteran in his intelligence role when he was working in the ADF intelligence headquarters. Dr AP was asked whether the veteran had access to information on the number of battlefield casualties and similar statistics. Dr AP considered that the veteran as part of his intelligence work would have had to generate statistics on casualties. This evidence enables me to conclude that it is certainly plausible that the veteran would have been asked to provide an independent verification of those statistics. I have inferred that the veteran had seen corpses because he had mentioned to his brother that he did not have a pleasant experience in being involved in body counts.
Dr AP stated that while he could not be sure that the veteran travelled as part of his work because the records do not go into detail as to who went on a helicopter flight, he stated that as part of the intelligence community the veteran would be expected to conduct briefing at any place where Australians would be operating.[211] Dr AP stated that the veteran would always travel by helicopter because ground travel was not suitable.
[211] Transcript, 20 May 2021, page 34.
It is entirely plausible that the helicopter that the veteran travelled in was subjected to enemy fire and that the veteran faced a Category 1A stressor by experiencing a life-threatening event. Dr AP made reference to official RAAF records which verify that during the period of operational service of the veteran, four Australian helicopters were forced to land after having been hit by enemy fire. Dr AP pointed out that the forces of the United States had lost more than 6,000 helicopters in Vietnam to enemy fire. In his report, Dr AP pointed out how the veteran would have to travel locations which contained Australian personnel such as Da Nang in the northern part of South Vietnam and Dong Tam in the Delta.
Dr AP was asked whether the veteran faced a pervasive threat to life or bodily integrity for four weeks. Dr AP answered that from the point of when the veteran arrived in Saigon to the point of approximately 12 months, he was in a situation in which there was the possibility of his life being in danger at pretty much all points. Dr AP confirmed the stressful nature of the environment in which the veteran worked. In his report he mentioned how enemy forces were able to fire rocket attacks anywhere into the city of Saigon. Dr AP also referred to the stressful nature of the work undertaken in Vietnam, he emphasised how at this time alcohol was readily available to personnel to relieve stress.
Whilst it is not necessary for me to make a final determination on whether the applicant suffered from PTSD, it is clear that the applicant operated within a stressful environment. Having regard to the evidence of Dr AP, it is evident that the veteran served in a stressful environment. I should mention that I do not accept the suggestion of Dr JS that the fact that the veteran had graduated with a degree after his operational service had meant that the veteran had “a high level of function”.[212] Dr JS may not have been shown the documentation evidencing the academic difficulty that the veteran experienced during his studies.[213]
[212] Transcript, 21 May 2021, page 42.
[213] Exhibit H, Academic record of the veteran.
There is no cogent evidence before the Tribunal which would satisfy me beyond a reasonable doubt that there is no sufficient ground to determine that the veteran’s death from Alzheimer disease was war-caused.
CONCLUSION
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.
I certify that the preceding 195 (one-hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
................................[SGD]........................................
Associate
Dated: 29 June 2022
Date(s) of hearing: 15 September 2019 Date final submissions received: 10 June 2022 Counsel for the Applicant: Mr A Harding Solicitors for the Applicant: Cockburn Legal Counsel for the Respondent: Ms I Sekler Solicitors for the Respondent: Australian Government Solicitor
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