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The Parliament of the Commonwealth of Australia

ROYAL COM M ISSION ON THE USE A N D EFFECTS OF CHEMICAL AGENTS ON A U STR A LIA N PERSONNEL IN VIETNAM

Commissioner: The Hon. Mr Justice P. Evatt, D SC , LLB

Final Report—July 1985

Volume 7: Benefits and Treatment

Presented 22 August 1985 Ordered to be printed 19 September 1985

Parliamentary Paper No. 294/1985

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ROYAL COMMISSION ON THE USE AND EFFECTS OF CHEMICAL AGENTS ON AUSTRALIAN PERSONNEL IN VIETNAM

Commissioner: The Hon. Mr Justice Phillip Evatt DSC, LLB.

A Judge of the Federal Court of Australia

FINAL REPORT

July 1985

VOLUME 7

Australian Government Publishing Service Canberra 1985

© Commonwealth of Australia 1985

ISBN 0 644 04339 3 ISBN 0 644 04346 6 Set of Volumes Report Volume Seven

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I

Printed by Canberra Publishing and Printing Co., Fyshwick, A.C.T.

ji, AUSTRALIA

ROYAL CO MM IS SI O N ON T H E USE AND E F F E C T S OF C H E M I C A L A G E N T S ON A U ST RA L IA N P ER SO N N I I IN VIETNAM

Commissioner: The Hon. Mr Justice Phillip Evatt DSC

G.P.O. Box 48-12 Sydney. N S W. 2001 Telephone: (02) 23V 6222

Y o u r E x c e l l e n c y ,

Secretary: Mr B.D. Meade

31 July 1985

In accordance with Letters Patent issued to me on 13 May 1983, 27 June 1984, 3 August 1984 and 23 April 1985, I have the honour to present to you the Final Report of my inquiry.

I believe that the Report complies with those Letters Patent and that my task is therefore completed.

Yours sincerely

JUSTICE PHILLIP EVATT Royal Commissioner

His Excellency the Right Honourable Sir Ninian Stephen, A.K., G.C.M.G., G.C.V.O., K.B.E. Governor-General and Commander-in-chief Government House CANBERRA A.C.T. 2600

TABLE OF CONTENTS

VOLUME 7

CHAPTER XIV

BENEFITS AND TREATMENT

SECTION A

1. INTRODUCTION 1.1 Terms of Reference 1

1.2 Introduction 2

2. OPERATION AND ADMINISTRATION OF THE REPATRIATION SYSTEM 10

2.1 Legislation 2.1.1 Purpose, Aims and Effect 11

2.2 Recent Developments in the Repatriation System 13

A. Reviews and Examinations of the System 13 B . Legislative Changes 18

2.3 Legislative Framework 21

A. Eligibility 21

B . Administration 24

C. Investigation 25

D. Determination 28

3. DVA ADMINISTRATION 29

3.1 Overview of Departmental Operations 29

3.2 Information Services 32

3.3 Counter Staff Assistance 36

3.4 Telephone Inquiries 37

3.5 Customer Liaison Officer and FOI 39

3.6 Country Visits Officers 40

3.7 Other Contact With Veterans 41

3.8 Entitlement 49

3.9 Lay Investigation 50

3.10 Medical Investigations 53

3.11 Treatment Services 56

4. THE DETERMINING SYSTEM 60

4.1 Introduction 60

4.2 The New Determining System 62

4.3 The Repatriation Commission 63

4.4 Veterans Review board 63

4.5 Administrative Appeals Tribunal 67

4.6 The Previous Determining System 68

A. Repatriation Boards 68

B . The Repatriation Commission 70

C. The Repatriation Review Tribunal 71

The United States Approach 75

v

5. THE AUSTRALIAN RESPONSE TO CHEMICAL AGENTS ISSUES AND CARING FOR THE HEALTH OF AUSTRALIAN PERSONNEL 82

5.1 Introduction 84

5.2 The Department of Defence 103

5.2.1 Knowledge of Chemicals and Safety 5.3 Information Provided to Servicemen About Repatriation Benefits and

105

Chemical Agents Issues A. Provision of Information 112 about Repatriation Benefits B . Information Provided Concerning

Agent Orange and Chemical Agents

113

1

Issues 115

5.4 Department of Veterans' Affairs 120

5.4.1 DVA Activities 5.4.2 Chemical Claimant Medical 120 Examinations 121

5.4.3 Proximity Reports 126

5.4.4 Auto-Care Hospital Admission 131

5.4.5 The "Flooding" Technique 132

5.4.6 Information Services Specifically for Vietnam Veterans or Chemical Claimants 5.4.7 Implementation of Senate

133

Recommendations 134

5.4.8 DVA Task Force on Claims and Appeals 142 5.4.9 DVA Co-operation with W C S 5.4.10 Data Collection for Vietnam 143

Veteran Issues 145

6 . DEPARTMENT OF HEALTH, COMMONWEALTH INSTITUTE OF HEALTH AND AUSTRALIAN VETERANS' HEALTH STUDIES 148

SECTION B

SPECIFIC SUBMISSIONS ON BENEFITS AND TREATMENT M

7 . INTRODUCTION 152

8 . THE SUBMISSION OF W A A 162

The Commission's Approach 8.1 Part A: Documentation and Information 167 Held By DVA 168

Conclusion 178

8.2 Part B : Application of the Repatriation 14

Act by DVA 17 9

8.2.1 W A A Submission 179

8.2.2 Ombudsman's Tentative Conclusions 8.3 Part C: Proximity to Herbicides, Insecticides, Pesticides and other

187

Chemicals, Reports on Individual Veterans 194 Conclusions 206 M

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8.4 Part D: Specific Complaints by W A A of DVA Treatment 209

8.5 Part E: General Complaints of Treatment by DVA as Alleged in W A A Submissions 230

9. PART F; GENERAL COMPLAINTS RE MANAGEMENT AND CLAIMS FROM OTHER SOURCES 354

9.1 Medical Examinations and Opinions in Respect of Alleged Chemical Caused Disabilities 354

9.2 Improper Application of the Standard of Proof 357

9.3 Submission by Julian Donegan 367

9.4 The Commonwealth Ombudsman's Tentative Conclusions 376

9.5 Delays in Claims and Determination Procedures 379

9.5.1 Referral of Decisions 383

9.5.2 DVA Claims Management 384

9.5.3 Conclusion 338

9.5.4 Recommendations 392

10.1 GENERAL ATTITUDE OF DVA AND DVA STAFF 394 10.2 DVA Refusal to Invite Claims 396

10.3 Information Services and DVA Client Liaison 399 10.4 Recommendations 401

11. MEDICAL EXAMINATIONS AND DEPARTMENT MEDICAL OFFICERS (DMOs) 403

11.1 Unsatisfactory Diagnosis/Disability Assessments 405

11.2 Unnecessary Medical Examinations 409

11.3 Inconvenient Medical Examinations 410 11.4 Determining Officers Training Course 411 11.5 Recommendations 416

12. DATA COLLECTION SERVICES 417

13. ALTERNATIVE MEDICATIONS 422

13.1 Budodouze 422

13.2 Other Alternative Medicaments 425

Conclusions 426

13.3 Recommendations 427

14. FAILURE TO PROVIDE INTERIM BENEFITS PENDING DETERMINATION 428

Conclusions 430

14.1 Recommendations 431

15. REPATRIATION MEDICAL TREATMENT 432

15.1 Failure to Cure 440

15.2 Conclusions 440

15.3 Recommendations 442

16. CONCLUSIONS 442

ENDNOTES 451

APPENDIXES 1 to XV

vii

TABLE OF CONTENTS REPORT

VOLUME 1 - INTRODUCTION and EXPOSURE

Prologue

I Introduction II Standard of Proof III Ascertainment of Claims IV Exposure

VOLUME 2 - TOXICOLOGY and GENERAL HEALTH

V Toxicology and Safe Doses VI Health Effects General

VOLUME 3 - BIRTH ANOMALIES

VII Health Effects, Reproductive Outcomes and Birth Anomalies

VOLUME 4 - CANCER

VIII Health Effects, Cancer

VOLUME 5 - MENTAL WELL-BEING

IX Health Effects. Mental

VOLUME 6 - MORTALITY CLASS ACTION W A A and SECTION 47

X Mortality XI Class Action XII Status of W A A XIII Interim Report and S .47

VOLUME 7 - BENEFITS and TREATMENT

XIV Benefits and Treatment

VOLUME 8 - CONCLUSIONS. RECOMMENDATIONS and EPILOGUE

XV Conclusions and Recommendations Epilogue

VOLUME 9 - EXHIBIT LISTS AND BIBLIOGRAPHY

viii

CHAPTER XIV

BENEFITS AND TREATMENT

SECTION A

1. INTRODUCTION

1.1 Terms of Reference

The Letters Patent issued by the Governor-General of the

Commonwealth of Australia appointed this Commission to

inquire into„ inter alia:

(c) The operation and administration of the Repatriation Act 1920. the Repatriation (Special Overseas Service) Act 1962 and any other relevant Acts, as applicable to claims by Australian

personnel of chemical-caused disabilities.

Furthermore, the terms of those Letters Patent included

the following particular requirements and directions:

AND We require you to make such recommendations arising out of your inquiry as you think

appropriate, including recommendations regarding

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the legislative or administrative changes, if any, that are necessary or desirable and the adequacy of present assistance available to Australian personnel:

AND, in particular. We require you to make such recommendations as you consider appropriate in relation to assistance which any Government Department may be able to give relating to the health problems of Australian personnel and the power of a Department to grant, and the adequacy of the present method of granting assistance, with a view to ensuring that Australian personnel

receive the full benefit of all available

assistance:

AND We direct that, in making your inquiry, you have regard to any other matters which may appear to you to be relevant to any of paragraphs (a) to (k) (inclusive).

1.2 Introduction

This Commission was apppointed to make inquiries regarding

aspects of the Repatriation system. To ensure familiarity

with previous recommendations and present proposals for

change to the Repatriation system the Commission obtained

and read various reports and reviews. Some of the

documents were:

The Independent Inquiry into the Repatriation System by the Honourable Mr Justice P B Toose CBE;

The Department of Veterans' Affairs Task Force on Claims and Appeals Report;

The Department of Veterans' Affairs Legislative Review Position Papers;

The w D Scott Departmental Evaluation Study;

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Review of Pension Decisions under Repatriation Legislation, Administrative Review Council Report No 20, September 1983;

The Report of the Advisory Committee on

Repatriation Legislation. November 1983;

The Senate Standing Committee Report on Science and the Environment Nov 1982, "Pesticides and the Health of Australian Vietnam Veterans";

The Commonwealth Ombudsman's Report and Tentative Conclusions in regard to various complaints by the Victorian Branch of the Vietnam Veterans'

Association, together with the Department of Veterans' Affairs reply thereto; and

The Review of the Repatriation Hospital System under the Chairmanship of Dr Ian Brand.

Senior Counsel Assisting discussed these Terms of

Reference with Mr Mclnnes QC. Senior Counsel for W A A . 1

The content of the discussion was confirmed by Counsel

Assisting by letter dated 13 April 1984, which reads:

Re: Legislation and Treatment - Terms of Reference

On 11 January 1984, Counsel Assisting the Royal Commission had a conference with you and Hill concerning the following terms of reference, namely:

A the operation and administration of the

Repatriation Act 1920, the Repatriation (Special Overseas Service) Act 1962 and any other relevant acts, as applicable to claims by Australian personnel of chemical caused disabilities;

B. AND we require you to make such

recommendations arising out of your inquiry as you think appropriate. including

XIV- 3

recommendations regarding the legislative or administrative changes, if any, that are necessary or desirable and the adeguacy of present assistance available to Australian personnel; and

C. And, in particular, we require you to make such recommendations as you consider

appropriate in relation to assistance which any Government Department may be able to give relating to the health problems of Australian personnel and the power of a Department to grant, and the adeguacy of the present method of granting, assistance, with a view to ensuring that Australian personnel receive the full benefit of all available assistance;

In relation to the said legislation, it appeared that the Vietnam Veterans Association of

Australia believes that the legislation should be amended in the following ways, namely:

(i) To cater for the children of veterans who are ill or disabled when there is a causal connection between such illness or

disability and the Vietnam service of their fathers; and

(ii) To cater for the wives of veterans who are ill or disabled when there is a causal

connection between such illness or

disability and the Vietnam service of their husbands.

The Royal Commissioner will be informed, at an appropriate time of these views of the Vietnam Veterans Association of Australia. However, if the V.V.A.A. intends to supply the Royal

Commission with a more detailed written

submission concerning the above points, or any other points concerning legislative amendment. it would be greatly appreciated if that submission could be submitted in the near future.

In respect of the administration of the current legislation and the treatment of Vietnam

veterans, it appeared that the Vietnam Veterans Association of Australia believe that this Commission should investigate the following matters, namely:

XIV-4

(a) Whether nomination, in a claim for treatment or benefits, of a chemical cause for the disability behind the claim has produced or produces discrimination within the

Repatriation system, against the claimant;

(b) Whether nomination, in a claim for treatment or benefits, of particular complaints which might be presumed to be associated with chemical exposure has produced or produces discrimination within the Repatriation

system, against the claimant;

(c) Whether the fact or degree of private

patient treatment in Repatriation hospitals has interfered or interferes with

appropriate treatment of Vietnam veterans who have disabilities;

(d) Whether the Repatriation Act and, in

particular. s .47 is being and has been

administered and applied appropriately in the case of Vietnam veterans with

disabilities that may be caused by exposure to chemical agents.

It also appeared that the V.V.A.A. contends that the "prisoner of war rule" should be applied. That is, that the Department of Veterans' Affairs should conclude as a matter of administrative

formality that any disability which might be chemically caused is compehsable in every sense.

It was also generally agreed at the said

conference that any Royal Commission

investigation of these V.V.A.A. contentions should take place against the background of the existing 1300 claims that mentioned chemical agents and a short list of further complaints as provided by the V.V.A.A.

In order to facilitate proper and expeditious investigation of the abovementioned contentions, by those assisting the Royal Commission, it would be greatly appreciated if you could provide the following:

(i) A detailed written submission concerning the said contentions and any further contentions

XIV- 5

concerning administration of the current legislation and the treatment of Vietnam veterans. That submission should include, but not be limited to:

(a) A list of the names and D.V.A.

reference numbers of all Vietnam

veterans that your client alleges have been discriminated against in their claims for treatment or benefits in respect of chemically caused

disabilities;

(b) A list of the names and DVA reference numbers of all Vietnam veterans that your clients allege have been

discriminated against in their claims for treatment or benefits in respect of disabilities which might be presumed to be caused by exposure to chemical

agents;

(c) Your clients proposed schedule of

disabilities which should be accepted by the Department of Veterans' Affairs as being chemically caused and thereby compensable by application of the prisoner of war rule;

(d) A list of those Vietnam veterans that your client alleges have received inadequate treatment in Repatriation hospitals or whose medical treatment has in some way been adversely affected as a result of the fact or degree of private patient treatment in such hospitals. A small number of full case histories. by way of example, would also be appreciated;

(e) A list of those cases where it is

alleged that the Repatriation Act and/or the application of s. 47, in particular, has not been appropriately applied in claims for treatment or benefits in respect of disabilities that were claimed as caused by exposure to chemical agents or disabilities which may have been presumed to be a chemically caused disability, by a

XIV- 6

departmental officer or treating doctor even if not expressly claimed by the Vietnam veteran.

(ii) Statements from each of those Vietnam

veterans that the VVAA considers to best represent examples of veterans whose

treatment may warrant some recommendation for administrative changes or response. Such statements should take the form of Appendix II to the Royal Commission's

Hearing Procedures, as supplied.

In view of the fact that the above investigations will necessarily take a considerable amount of time, the Royal Commissioner has requested:

(a) That your written submission and the various lists referred to above be supplied to the Commission no later than Friday 1 June, 1984; and

(b) That the veteran statements referred to above also be supplied, if possible, by 1 June 1984 but, in any event, no later than 30 June, 1984.(emphases added).

Yours etc.

Subsequently, a submission was received from VVAA 2

entitled, "Conduct - Department of Veterans' Affairs".

This submission is dealt with fully in Section B hereof.

It should be noted however that that submission did not

address at all most of the issues identified by Counsel

for W A A during the above discussions.

This failure is elaborated on in Section B of this

However, in particular, W A A 1 s submission Chapter.

provided;

XIV-7

1. No list of chemical claimants (i.e. claimants who

mention any chemicals in their claims) allegedly

discriminated against;

2. No reference to the impact of the treatment of

private patients in RGHs on the treatment of

Vietnam veterans;

3. Only the most cursory reference to Section 47.

Before the commencement of this Commission, W A A had

publicly indicated its concern about matters allegedly

affecting Vietnam veterans. These included (inter alia)

procedures for acute-care admission of Vietnam veterans,

transportation costs, a proposal for the establishment of

hostels for veterans with war-caused psychiatric

conditions, a proposal for the establishment of DVA's

"Vietnam Special Studies Group" and the provision of

health care facilities for wives and children of Vietnam

veterans allegedly suffering from chemical-caused

disabilities. Again these issues were not addressed in

the submission.

AATTVA provided the Commission with copies of

correspondence with the Minister for Veterans' Affairs

XIV-8

claiming the Terms of Reference were too "narrow and

restrictive". This correspondence was in reply to a

letter from the Minister informing AATTVA that "the Terms

of Reference are deliberately wide and comprehensive, so

that as many matters as possible can be canvassed by the

Royal Commission".

It was considered essential to obtain an understanding of

the Repatriation system, its authorised procedures and

proper guidelines for operations in order to assess the

"adequacy of present assistance available to Australian

personnel" and of "the present methods of granting

assistance, with a view to ensuring that (such) personnel

receive the full benefit of all available assistance."

Various submissions concerning the operation of the

Repatriation system were considered during the examination

of this topic. Other Service Organisations made brief

comments in correspondence addressed to the Commission.

Many individual Vietnam Veterans and their wives made

written submissions in respect of the operation and

administration of the Repatriation system whilst many of

those who attended Informal Sessions commented on this

topic.

XIV-9

As a result, the areas of major concern were identified.

Those areas were: the determining system. DVA

administration (particularly delays), the medical process

for establishing entitlement to benefits. and the

treatment afforded at RGBs.

Members of this Commission's staff attended DVA offices

and Medical Institutions and with the fullest co-operation

of DVA investigated these areas.

Although it was considered necessary to gain an

understanding of the general operation and administration

of the Repatriation benefit and determining systems, it

was not this Commission's task to duplicate the work of Mr

Justice Toose and the various Task Force and Review

Committees referred to above.

2. OPERATION AND ADMINISTRATION OF THE REPATRIATION SYSTEM

This section gives a general outline of the Repatriation

system and seeks to give an understanding of those aspects

of it that have been criticised.

It is divided into three sections:

XIV-10

(a) Legislation;

(b) DVA Administration; and

(c) The Determining System.

2.1 Legislation

2.1.1 Purpose. Aims, and Effect

Australians have long accepted the responsibility of

caring for service personnel and their dependants in

circumstances where death or incapacity may be related to

war service or to service in war-like operations.

Successive Australian governments have met this

responsibility by passing and implementing legislation

aimed at providing suitable Repatriation benefits.

Following the War Pensions Act 1914. the Australian

Soldiers Repatriation Act was passed in 1917 to provide

for rehabilitation and other repatriation benefits for

death or injury due to service in World War I. In 1920

the Repatriation Act, the current principal repatriation

Act, was passed. Since that time veterans of World War II.

the Korea and Malaya Operations, the British Commonwealth

Far East Strategic Reserve, and, through the Repatriation

(Special Overseas Service) Act 1962, Vietnam veterans and

XIV-11

certain peacekeeping forces have been extended the

benefits provided for in the principal Act.

Fundamentally, the Australian Repatriation system is aimed

at providing veterans with disability pensions to

compensate them for service-connected incapacity, and with

service pensions where eligibility is based on age or

permanent unemployability (SPPU). In addition to these

pensions, pensions are paid to widows of veterans and a

wide range of other benefits is available to veterans and

their dependants.

The most significant treatment benefit is free hospital

care and medical treatment which is provided to eligible

persons at Repatriation General Hospitals (RGHs) - or

other approved institutions - and through the Local

Medical Officer (LMO)/Local Dental Officer (LDO) schemes.

The basic framework is in the Repatriation Act 1920.

Extension of benefits to those who served in the later

wars and conflicts has been piecemeal.

Veterans of the Vietnam conflict, whether National

Servicemen or Regular Defence Forces personnel, were

recognised as deserving the benefits of the Repatriation

system by the Repatriation (Special Overseas Service) Act

1962 and the Regulations thereunder.

XIV-12

For those interested in further background on the

development of the Australian Repatriation system.

Appendix 1 of the DVA publication, "The Australian

Repatriation System, February 1983", has been extracted

and appears at Appendix I to this Chapter. The most

significant of recent developments are the Repatriation

Legislation Amendment Act 1984, amendments to the

Repatriation Act 1920 which came into effect on 1 January

1985, and amendments to s . 47 (2) and s . 107VG(3) and other

consequential amendments which came into effect on 6 June

1985 .

There is presently a bill receiving scrutiny which will

repeal all the current legislation. It is the War

Veterans Entitlement Bill. It is not relevant to this

part of the inquiry.

2.2 Recent Developments in the Repatriation System

A. Reviews and Examinations of the System

Over the years the suggestion has often been made that

there is a need to consolidate legislation granting

entitlement to Repatriation benefits. The legislative

basis for the provision of Repatriation benefits is still

XIV-13

a tangle of interrelated Acts and Regulations although it

is hoped that this situation will be remedied by the

proposed Veterans Entitlement Bill which came before the

Senate of the Parliament on 31 May 1985 (to lay on the

table for 3 months during which time it is anticipated

that discussion between veterans' associations and DVA

will take place).

The basic legislative framework for the Repatriation

system remains the Repatriation Act 1920. This Commission

was not required to examine the effectiveness of this

framework for the provision of Repatriation benefits in

general. It feels obliged to comment, however, that the

task confronting DVA is daunting. It is required to

service and administer the determining aspects from which

it is theoretically at arms length. It is to the

forefront of the Government's contact with veterans and

has therefore significant public relations functions. It

also has all the functions of a public service Department

with tight bureaucratic guidelines, budgetary constraints.

and ministerial servicing; a "trichotomy" of functions,

indeed and productive of internal stresses at best.

A number of initiatives have been taken to assess the

adequacy of many aspects of the Repatriation system.

XIV-14

These initiatives have led to developments and proposals

for change which are of great significance to that

system.

This Inquiry has been limited to particular aspects of the

system and this Report does not dwell in detail on recent

reviews. But some recommendations and recent changes to

the system have been fundamentally related to issues which

were considered by this Inquiry and those matters have

been the subject of comment, particularly amendments to

s .47 and s.107VG (see Chapter XIII).

The Terms of Reference of the Toose Report required a

comprehensive review of the Australian Repatriation

system, and the principles that have governed its

operations. A full copy of the Terms of Reference of that

Inquiry appear at Appendix II to this Chapter.

The Administrative Review Council report stemmed from the

Attorney-General1s request for advice in 1978 on the

Government's decision to establish the Repatriation Review

Tribunal. "The Council at that time was invited to

comment on a proposed scheme whereby matters coming before

that Tribunal could be referred to the Administrative

Appeals Tribunal (AAT). The recommendations of the

XIV-15

Council on this question were communicated to the

Attorney-General in February 1979 and are set forth in the

Council's Third Annual Report at paras 55-63 (1979).3

In its third Annual Report the Council resolved that the means of review as established should be kept under consideration and re-examined at the end of a two year period. In July 1981 the

Council resolved to commence a project in

relation to review of Repatriation decisions. Accordingly, a review was conducted and the ARC Report was presented to the Attorney-General in September 1983.

The Minister for Veterans' Affairs in September 1982

determined that a comprehensive review of Repatriation

legislation would be undertaken to provide simplified

legislation covering all Repatriation entitlements.In 1983

the Assistant Secretary (Legislation and Review) of DVA

undertook a review of Repatriation legislation. As a

result 39 papers were prepared dealing with various

aspects of the Repatriation system. In most cases the

papers looked at the historical background, the purpose

and effect of particular sections of legislation, and made

recommendations.

In February 1983. the Minister for Veterans' Affairs

announced the establishment of an Advisory Committee to

present the views of veterans and their dependants when

XIV-16

consideration was given to the review of Repatriation

legislation. Membership of the Advisory Committee

included the National President, and the Victorian State

President, of the Returned Services League of Australia

(RSL), the Chairman of the Australian Veterans and Defence

Services Council (AVADSC), the Chairman, Legacy

Co-ordinating Council (Legacy) and the National President

of the War Widows Guild of Australia (War Widows).

The Terms of Reference of the Advisory Committee required

the Committee, inter alia, "to advise the Minister for

Veterans' Affairs on matters arising in the proposed

consolidation and review of Repatriation legislation" and

"to recommend for the Minister's consideration any

amendments for incorporation in the consolidated

legislation, whether or not mentioned in materials

submitted to the Committee by the Department, other than

amendments normally taken into account in the annual

budget context." The Committee was specifically required

to discuss and advise the Minister on matters arising out

of the Administrative Review Council report and the

Department of Veterans' Affairs Legislative Review papers

referred to above.

XIV-17

B . Legislative Changes

Following the Government's consideration of the

Administrative Review Council Report the Repatriation

Legislation Amendment Act, 1984, came into effect on 1

January 1985.

The main purposes of the Act, as stated in the tabling

speech of the Honourable A. Gietzelt, Minister for

Veterans' Affairs, were to:

Abolish Repatriation Boards (Clause 6);

Provide that the Repatriation Commission will be responsible for primary decision on claims and applications for disability pensions. of applications for increases in the rates of pensions payable and of claims for service pension (Clause 12, proposed Section 29A),

(Clause 15, proposed Section 90A);

Establish a Veterans' Review Board to operate as the intermediate level of review of decisions of Repatriation Commission delegates in respect of disability pension matters (Clause 19);

Provide for Appeal delegates of the Repatriation Commission to operate as the intermediate level of review of decisions of primary delegates in

respect of service pension matters (Clause 15, proposed Section 90C);

Abolish the Repatriation Review Tribunal (Clause 19);

Provide for the Administrative Appeals Tribunal to operate as a final level of review on the

merits of all claims for disability pensions and service pensions and all applications for

XIV-18

increases in the rates of disability pensions payable (Clause 19, proposed Part IIIB);

Provide for the Veterans' Review Board to operate as the intermediate level of review and the

Administrative Appeals Tribunal as the final level of review on the merits in respect of

claims and applications for pensions under the Seamen's War Pensions and Allowances Act 1940 (Clauses 38-47) .

In his tabling speech, the Minister for Veterans' Affairs

referred to particular deficiencies in the previous

determining system which the Administrative Review Council

had identified in its Report. These were:

Primary decisions are often made on the basis of incomplete evidence;

Claimants are frequently not given adequate explanations of the reasons for decisions; and

There are a number of appeal and review avenues.

The problems identified above led to undue delays in the

final disposition of cases in circumstances where not

enough claims and applications were allowed by primary

decision makers.

There is no doubt that the previous determining system and

its necessary prerequisite investigations caused serious

concern amongst veterans and authorities because of the

well-known delays involved. During investigations this

Commission identified that the failure to obtain prompt

XIV-19

determinations in respect of claims has been a matter

which has frustrated Vietnam veterans and influenced the

attitude which some of them have towards DVA and the

Determining Authorities.

Basically the previous system involved consideration at

three levels. Initial claims for compensation, pensions,

or applications for service pensions were determined by

Repatriation Boards. There was a right of appeal to the

Repatriation Commission. The Commission's decisions could

be reviewed and its in turn by the Repatriation Review

Tribunal, and those of the latter in turn by the

Administrative Appeals Tribunal. Appeals on question of

law could be taken the Federal Court of Australia, and by

leave to the High Court of Australia.

The new determining system still contains three levels

within its initial determining structure. The primary

determining authority is now the Repatriation Commission.

Applications for review of Commission decisions may be

made to the Veterans' Review Board or to a senior

Repatriation Commission delegate depending upon the type

of claim or application. Further application for review

may be made to the Administrative Appeals Tribunal. A

decision of the Administrative Appeals Tribunal may.

XIV-20

subject to the provisions of the Administrative Appeals

Tribunal Ac t 1975. be taken to the Federal Court of

Australia and, by special leave, to the High Cour t of

Australia.

2.3 Legislative Framework

A. Eligibility

Vietnam veterans are entitled to receive pensions pursuant

to sub-section 6.(1) of the Repatriation (Special Overseas

Service) Act 1962 which provides:

Upon the incapacity or death -(a) of a member of the Forces whose incapacity or death has resulted from an occurrence that happened during a period of special

service of the member (including the

contracting of a disease during such a

period); or

(b) of a member of the Forces whose incapacity or death has arisen out of or is

attributable to special service of the member.

the Commonwealth is, subject to this Act, liable to pay to the member, his dependants or both, as the case may be, pensions in accordance with Division 1 of Part III of the Repatriation Act as

applied by section 7.

In the case of a pre-existing cause, sub- section 6(5) of

the Repatriation (Special Overseas Service) Act 1962

provides:

XIV-21

(5) Where the origin of the cause of an

incapacity or of the death of a member of the

Forces existed before the commencement of a period of special service of the member and, in the opinion of the Commission -(a) the incapacity from which the member is

suffering was contributed to in any material degree, or has been aggravated, by the conditions of that special service or the member's death has been contributed to in any material degree by those conditions; and

(b) neither the incapacity or death, nor the origin of the cause of the incapacity or death, was due to the members serious

default or wilful act;

the incapacity or death shall be deemed to have resulted from an occurrence that happened during that period of special service.

3y virtue of s.7 of the Repatriation (Special Overseas

Service) Act, and subject to certain exceptions and

subject to the provisions of that Act, the provisions of

Division 1 of Part III of the Repatriation Act 1920, the

provisions of Division 5 of Part III, and the provisions

of Parts IIIA and 11 IB of the Repatriation Act extend to

Vietnam veterans.

The entitlement of Vietnam veterans to receive pensions in

circumstances where their death or incapacity is

attributable to war service was introduced into the

Repatriation Act (vide Act No. 100 of 1982) following-

recommendations of the Senate Standing Committee Report

XIV-22

which commented that the lack of such a provision resulted

in a major anomaly between benefits available to Vietnam

veterans and the veterans of other wars and conflicts not

covered by the Repatriation (Special Overseas Service) Act

1962 .

Disability pensions for Vietnam veterans, like other

veterans, are not subject to any means test. The other

most significant Repatriation pension is the service

pension paid to veterans and certain mariners and their

spouses in circumstances where the veteran qualifies

because of age or permanent unemployability. The

Repatriation (Special Overseas Service) Act 1962„ extends

the benefit of ss.84 and 85 of the Repatriation Act 1920.

to Vietnam veterans.

The Repatriation Act 1920. and the regulations pursuant

thereto make benefits available to veterans once

entitlement is established. That Act lays down

requirements for the investigation of claims for benefits,

for the administration and operation of the determining

system. and specifies appeal structures following

determinations. The granting and payment of pensions and

the provision of Repatriation treatment services are also

covered.

XIV-23

B . Administration

Administration of the Repatriation Act is the

responsibility of the Repatriation Commission, subject to

the control of the Minister (s.71, Repatriation Act

1920). The Repatriation Commission is a body corporate

with perpetual succession and a common seal (s . 7(2)). The

Commission as prescribed by sub-section 8(1) of the

Repatriation Act 1920, shall consist of not less than

three and not more than five members who shall be

appointed by the Governor-General.

Section 8A provides that "the person holding office under

the Public Service Act 1922 as Secretary of the Department

may be appointed as Chairman of the Commission while

retaining his office as Secretary of that Department...11.

The present Secretary of DVA holds the position of

Chairman of the Repatriation Commission. The

administrative infrastructure of DVA "assists" the

Commission in its administration of the Repatriation Act.

The power of delegation is given to the Commission

pursuant to sub-section 12(1) of the Repatriation Act

1920, enabling the Commission to delegate all or any of

its powers and functions under the Act other than the

power of delegation. DVA, in providing administrative

XIV-24

support for the Repatriation Commission. amongst other

things provides medical treatment, organises pension

payments to eligible veterans and dependants. and

administers a wide variety of other benefits and special

allowances.

C . Investigation

DVA is specifically required to make investigations and

examinations necessary to enable proper consideration of a

claim for a pension. Sub-section 28(1) provides that the

Secretary of the Department shall cause an investigation

to be made into the matters to which a claim is made for a

pension in accordance with sub-section 25(1) or an

application for an increased pension in accordance with

sub-section 26(1) or a pension under sub-section 26(2)

relates. Pursuant to sub-section 28(2), the Secretary

shall. upon completion of his investigation, cause the

claim or application to be submitted to the Commission for

its consideration and determination.

DVA also employs Departmental Medical Officers (DMOs) who

prepare the medical reports required by sub-section 48(1)

of the Repatriation Act 1920. That sub-section provides:

XIV-25

48.(1) A medical practitioner shall, in

reporting on any claim in relation to a member of the Forces, set out in his report his opinion -(a) in the case of a claim in respect of

the death of the member - as to the

cause of the death; and

(b) in the case of a claim in respect of

the incapacity of the member - as to the nature, cause and extent of the incapacity.

and shall also set out whether, in his opinion. the incapacity from which the member is suffering or from which he has died -(i) resulted from an occurrence that

happened during his war service;

(ii) resulted from his employment in

connexion with naval or military

preparations or operations;

* * * * * *

(iv) arose out of or is attributable to his war service; or

(v) has been contributed to in any

material degree. or has been

aggravated, by the conditions of his war service.

By virtue of sub-section 48(2) of the Repatriation Act

1920, where a medical practitioner entertains any doubt

concerning any of the matters which by sub-section (1) he

is required to report upon, he must state in his report

that he entertains such a doubt and also indicate, as far

as practicable, the nature and extent of that doubt.

XIV-26

Sub-section 48(3) of the Repatriation Act 1920, provides

that every medical practitioner, whether a DMO or not, who

is required by the Commission to report on a claim, and

the members of any medical board who examine a person on

war service immediately prior to his discharge from the

Forces, shall comply with the provisions of s.48.

The medical opinions provided in accordance with Section

48 are almost always the most significant material

considered by the Determining Authority. Consequently

their importance cannot be overstated. W A A and some

individual Vietnam veterans have been critical of the

quality and accuracy of s.48 opinions and those criticisms

are dealt with later in this Chapter.

Section 28 was inserted into the Repatriation Act 1920, by

the Repatriation Legislation Amendment Act 1984 and came

into operation on 1 January 1985. Section 28 requires

investigation of pension claims and also of applications

for increase in the rate of pension in respect of

disabilities already accepted. Previously, the

investigatory section, being s.24AB of the Act, referred

only to "a claim for pension". There is no significant

difference between the type of investigations the

Department must now make and the investigations previously

required of it in accordance with Section 24AB.

XIV-27

D . Determination

After a claim has been lodged with DVA and appropriate

medical opinions obtained and investigations required have

been completed, a claim is. in the first instance,

referred to the Repatriation Commission for

determination. A right of appeal exists to a senior

Commission delegate for service pension matters, and to

the Veterans' Review Board (the Board) for Disability

Pension Claims. Thereafter an appeal lies to the AAT, and

on questions of law to the Federal Court of Australia

thence by special leave to the High Court of Australia.

The Repatriation Act sets out in detail the structure,

membership, organisation, powers and responsibilities of

the Commission and the Board. In addition, the

legislation makes provision for applications for review

and deals with miscellaneous aspects involved in the

organisation of Determining Authorities, and proceedings

before the Commission and the Board.

This Report does not deal in any detail with the

administration and operation of the determining system

which commenced in January 1985.

XIV-28

3. DVA ADMINISTRATION

3.1 Overview of Departmental Operations

The Secretary to DVA is the administrative head of that

Department. He is also, in accordance with Section 8A of

the Repatriation Act, 1920. the Chairman of the

Repatriation Commission. DVA, under the control of the

Minister for Veterans' Affairs, and through the

Repatriation Commission, is responsible for the general

administration of the Repatriation Act and associated

legislation.

DVA has a Central Office located in Canberra with major

Branch Offices in the capital city of each State of 4

Australia, and regional offices.

Central Office has a number of Divisions, including

Medical Treatment Services, Systems, Management Services,

Benefits and Special Projects and Co-ordination and Legal

Services.

The Medical Division is responsible for the co-ordination

and conduct of med-ical examinations in respect of veterans

who have claimed that exposure to Agent Orange or other

XIV-29

chemicals may be causally connected with their

disabilities and health problems. That Division also has

the responsibility for the dissemination of information to

selected DMOs who have been charged with the

responsibility of keeping abreast of medical aspects of

chemical-related claims and, where appropriate, providing

s.48 medical opinions.

The Special Projects Branch of the Benefits and Special

Projects Division had, inter alia, the responsibility of

providing this Commission with assistance and relevant

information. For some time that Branch has been involved

in issues concerning Vietnam veterans and their families.

Since May 1903 that Branch has been involved in the

preparation of Proximity Reports to Determining

Authorities. This information displays chemical use in

Vietnam and draws a nexus between that information and the

claimant's recorded unit or sub-unit locations.

Branch Office administration of DVA is largely autonomous

although each Branch is subject to the control of the

Secretary and Central Office. They are headed by a Deputy

Commissioner who oversees three major Divisions, being

Benefits and Treatment, Management Services, and Medical

Services.

XIV-30

Management of Departmental operations in recent years has

involved the development of, and increasing reliance upon,

computerisation. After the introduction in late 1984 of a

computerised Claims Management System in the NSW Branch,

the Department now has such a Claims Management System

employed throughout its entire regional network. The

Department aims to increase utilization of a computerised

client data base to increase efficiency of claims

processing and administration of treatment and benefits.

The Commission strongly supports this.

The regional offices are responsible for disseminating

information about benefits and treatment, assisting

veterans in the preparation of claims documents, obtaining

necessary information to be forwarded for the Repatriation

Commission's consideration, and investigating the claim in

accordance with s .28. They also make arrangements for

medical examinations and obtain evidence to facilitate the

preparation of s.48 Reports. After collecting information

and preparing summaries and reports, DVA forwards the

relevant documents to a Commission delegate and, following

determination, has the task of advising claimants of

decisions and ensuring that treatment. benefits, and

pension payments are provided to successful claimants.

XIV-31

The Department is also involved in appeals and

applications for review.

The basic structure of Central Office and Branch Office

organisation networks is demonstrated in Appendixes III

and IV hereof respectively.

Some aspects of DVA operations and administration which it

was necessary to examine were information services

provided to veterans in general and Vietnam veterans in

particular, entitlement (investigation) procedures and

treatment services.

3.2 Information Services

5

The Task Force on Departmental Information in its

supplementary Report entitled "Information Activities of

the Department of Veterans' Affairs" identified the

objectives of the Department's information activities, in

the opinion of the Task Force, as being:

Inform ex-servicemen and women of their rights,

obligations and benefits;

Provide professionals - doctors, dentist, pharmacists

XIV-32

- with the information that they need to participate

in programs administered by the Department;

* Provide information necessary for the efficient

management of the programs and institutions operated

by the Department;

* Provide information to the Parliament and the public

about the administration of DVA its programs and its

activities.

In considering information services provided to Vietnam

veterans. their wives, widows or dependants, this

Commission has identified the following particular

purposes and functions:

* To advise veterans and dependants of available

Repatriation benefits and treatment services;

* To provide sufficient information and assistance

necessary to assist veterans in making claims for

pensions;

* To ensure that claimants are adequately and properly

informed about the conduct of Repatriation claims and

applications for review or appeal;

XIV-3 3

* To afford an opportunity to veterans to examine

documents in accordance with the provisions of the

Freedom of Information Act 1982, and other DVA

policies for the general disclosure of information.

In November. 19 8 3 DVA commissioned W. D. Scott & Co Pty

Ltd to study and report upon the Department's public

information programs. The objectives of the study as

listed in the introduction to the W. D. Scott report were:

1. To evaluate the effectiveness of current Public Information Programs;

2. To obtain data to enable the Department to improve its Programs.6

and

A secondary objective of the study was to assess the corporate image of the Department and to recommend strategies for strengthening this image.7

Veterans receive general information in a number of ways.

The Department has produced many pamphlets containing

information on various aspects of the Repatriation system

and available benefits. One such pamphlet deals

specifically with "Repatriation Benefits, Special Overseas

Service". In addition, a toll-free telephone inquiry

service has been initiated which enables all veterans to

make inquiries of the Department.

XIV-34

For the most part, however, general inquiries are

initially made of the counter staff at Departmental Branch

Offices. Subsequent general inquiries are made in a

variety of ways including counter staff inquiries and

telephone inquiries. The Department also runs information

programs during which Country Visits Officers attend

meetings and advise interested persons about the

Repatriation system.

The Branch Office Information Services of DVA are not

subject to any central control or co-ordination.

In the opinion of this Commission some of the criticisms

concerning Departmental operations and the conduct of

staff are directly attributable to the present methods of

providing information to veterans, and the quality of

information services.

Some of the major DVA information services examined by

this Commission during the course of its inquiries were

counter staff assistance, telephone inquiries, the

customer liaison officer. FOI and Country Visits Officers.

XIV-3 5

3.3 Counter Staff Assistance

For many veterans their initial contact with DVA occurs

when they attend a Branch Office for the purpose of

obtaining information about benefits or seeking some

assistance when lodging a claim for benefits. Each DVA

Branch has an initial counter contact service.

Members of the Commission 1 s staff attended the Sydney

Branch of the Department. That Branch divides its

workload into four sections, each dealing with a different

alphabetical grouping of veterans. The initial point of

contact at the Sydney office has been transformed from

counters into individual interviewing booths which are

manned by Clerical Assistants Grade 4. These Clerical

Assistants are supervised by a Clerk Class 6.

The Chief Executive Officer of the Sydney Branch has

assured this Commission that every effort is made to

ensure that counter staff are presentable and receptive to

the needs of veterans in accordance with DVA policy. To

this end Sydney counter staff officers attend a training

course conducted at Sydney Technical College over a period

of twelve weeks. This particular course is not

specifically designed for DVA staff but is a general

XI V-3 6

customer contact orientation course for counter staff.

Similar training courses are attended by DVA staff in

other States.

3.4 Telephone Inquiries

The Senate Report recommended that DVA implement a reverse

charge telephone service for veterans living outside the

metropolitan area to facilitate access to advice from DVA.

After a pilot scheme was tested the Department introduced

a 008 (toll-free) telephone service which has been in full

use since March 1984. This Commission has been advised

that, on an average, only eight per cent of inquiries need

to be referred to functional areas of the Department and

those inquirers are called back. DVA also stated that a

peak inquiry time was in October 1984 after Assets Test

forms had been distributed and an estimated 10,000

veterans and war widows had used the service to that

point. However no statistics are available on the number

of Vietnam veteran callers.

Apart from the use of the 008 telephone facility general

telephone inquiries are often received at the Branch

Office switchboards and may be directed to counter staff

XIV-37

or to one of the particular areas about which the inquiry

is being made, such as pension, entitlement or treatment.

There is no particular telephone inquiry service available

at Branch Offices to deal with general inquiries. In

addition, once a claim is lodged veterans frequently

contact the Department to make inquiries about the conduct

and processing of their claim. Inquiries of this nature

are usually referred to the particular officer who is

handling the file at that time so that he/she may answer

inquiries after perusal of the Departmental documents.

Some veterans who contacted this Commission were critical

of the Department's methods of answering inquiries and

providing information about the conduct of their claims.

They were especially critical of a process of being

transferred three or four times to different offices

before finding an officer who could adequately answer

inquiries. The need for an electronic information

retrieval system to facilitate prompt answering of

veterans' queries is obvious.

XIV -3 8

3.5 Customer Liaison Officer and FOI

Each Branch Office of the Department has a Customer

Liaison officer who is directly responsible for requests

under the Freedom of Information Act 1982 (FOI). In South

Australia and Victoria the duties of the Customer Liaison

Officer are more comprehensive. Because of the relatively

recent introduction of Customer Liaison Officers their

duties had not been clearly defined at the time of writing

this Report.

The FOI system within DVA commenced in December 1982.

However, before that time. the Department had its own full

disclosure system which permitted veterans to look at

their own files. No photocopies of documents were

provided as they now . are in accordance with the FOI Act.

The number of requests received by DVA is greater than for

any other Government Department.

This Commission was informed that, at the Sydney Branch

Office of DVA, veterans most frequently seek documents

when they propose to reinstitute a claim for disabilities

previously disallowed at a time when no reasons for the

rejection of the claim were given to the veteran.

Veterans are encouraged by service organisations to

XIV - 3 9

examine files before a fresh claim is lodged, and

individual veterans see the good sense of that. It does,

however, create additional work and is one factor in

causing delays.

The NSW Branch has an FOI section which has expanded

because of demand. The attitude of officers responsible

for the handling of FOI requests and contact with veterans

is very important. At the Sydney Office, veterans are

treated cordially and with courtesy. If required to wait

for any period of time they are offered tea or coffee and

are provided comfortable accommodation in which they may

examine documents. This Commission considers that the

influence which the FOI Section has had on public

relations is significant and beneficial to the image of

the Department.

3.6 Country Visits Officers

DVA uses Country Visits Officers who travel throughout

each state attending meetings at RSL sub-branches. They

give advice regarding DVA benefits and claim procedures.

The task of the Country Visits Officers is quite

complicated. They are required to answer questions

covering the entire range of benefits and treatment

XIV -40

services as well as home loans and other allowances. They

must have a thorough knowledge of the legislation and each

of the DVA General Orders applicable to eligibility,

treatment benefits and accountability.

This Commission has been informed that Country Visits

Officers have begun to conduct information courses at

Department of Social Security offices as well as other

locations such as RSL clubs. A pilot for this scheme was

conducted in Wagga Wagga (NSW); it has already been

introduced in Gosford (NSW).

Country Visits Officers are supervised by the Chief

Executive Officer.

3.7 Other Contact With Veterans

During the course of investigating a claim and providing

benefits to veterans there are a number of occasions when

Departmental officers will necessarily contact veterans.

When a claim is being investigated the veteran may be

contacted in writing to provide further details about the

claim. In addition he may be seen by an interviewing

officer whose role is to ask and/or answer guestions.

XIV-41

Departmental instructions contained in the Department's

General Orders Entitlement at Part 1/7(b) state that:

The interview must be controlled (sic) (i.e. conducted) in a courteous and tactful way with privacy being given to people being interviewed, regardless of the subject being discussed. A worried or nervous person must be reassured; the aggressive or talkative must be met with patience and firmness; and the inarticulate must be assisted by patient questioning and explanation.

Interviewing officers must be sure that they understand what each enquirer wants to know and that the explanation or information is properly understood. They must not form hasty conclusions about what people mean and must guard against people too readily adopting, as their own, ideas suggested to them during an interview.

Part 9/3(b) continues:

Departmental officers are not to advise a Veteran on merits of lodging an appeal. A Veteran

seeking advice should be advised to discuss the matter with one of the various ex-service

organisations or the Australian Legal Aid Office.

Prior to 16 July 1985, the Department did not assist

veterans by providing advice on lodgement of claims or

appeals. There was a firm policy against inviting claims

as is evidenced by Part 1/12(b) of the Department's

General Orders General Assistance which provided:

When it is noticed, during examination of a claim, etc., that a veteran is suffering from a disability (other than a minor or transitory disability) unrelated with those accepted as related to service, and no action has been taken

XIV-42

to notify the veteran and/or the LMO (Local

Medical Officer), the file(s) are to be referred to Entitlement Section for appropriate action. It should be noted that the Department will not invite a claim for acceptance of such a

disability but will notify the veteran and/or the LMO of it if it could materially affect the

veteran's health.

Similarly during medical investigations the General Orders

Entitlement of the Department at Part 7/5 provided:

(c) Where following medical investigation a DMO (ie Departmental Medical Officer) decides that the condition or disability diagnosed is not the same disability as that claimed, the claimant or a Local Medical Officer or both will be notified of the presence of any unclaimed disability which could materially effect the veterans' health. This advice will not include an invitation to lodge a claim in respect of the disability, as this will be left to the claimant's judgement.

... (e) When an additional disability which has not been the subject of an earlier claim or

determination is found during medical examination for any other purpose, the DMO will take action similar to that described above.

A similar policy was evidenced by the instructions given

to Departmental Medical Officers contained in the handbook

for Departmental Medical Officers at Part 6/3(c), and in

General Orders Treatment at Part l/ll(b).

In regard to instructions relating to disabilities which

are found following previous medical investigation which

failed to find evidence of such disability the

XIV-43

Department's General Orders Treatment at Part 1/11(f)

provided:

Disability found, where claim or appeal

previously refused N.I.F:

Where a claim or appeal has been refused on the ground that medical investigation failed to reveal any evidence of the disability and, as a result of an examination for some other purpose,

the claimed disability is found to be present, the case will be submitted to an A.S.(A)

(Assistant Secretary. Assessments) for

direction. The veteran should not be informed of the action being taken unless so directed by the Assistant Secretary.

On 11 January 1985 this Commission wrote to DVA seeking

reasons for the Departmental policy of "omitting to advise

claimants that a diagnosed disability may be such that a

claim for a disability pension could be lodged". DVA's

response - dated 16 July 1985 - was in terms that the

Repatriation Commission had reviewed the matter and by

Commission Decision reached on 16 July 1985:

(a) In cases where no final diagnosis was

possible or further investigation would be needed, the present practice should be continued of advising the Veteran and

his/her LMO about the need for medical

examination and the Veteran should be supplied with a brochure setting out his/her claim rights in the event of a subsequent decision to claim. The DMO should record on the file the advice given;

(b) In cases where the diagnosis of unclaimed disabilities was clear and the DMO could

XIV-44

complete a Section 48 Report in respect of those disabilities, the DMO should inform the Veteran of the condition or, where the DMO considered this inadvisable, the DMO

might inform the Veteran's LMO or other medical practitioner. The Veteran should be offered a brochure regarding his/her right to claim if he/she considers the condition

to be service related. The DMO should

consider whether the Veteran should be advised to seek treatment for the

condition. The DMO should record on the file the advice given;

(c) To inform claimants of their rights, a

brochure should be prepared on the approach adopted by the Repatriation Commission where there are unclaimed disabilities. The brochure should be given to the Veterans

concerned;

(d) DMOs should be informed of this decision and instructed to act accordingly;

(e) Current policy and practice should continue in those cases where the additional

disabilities identified have a medical relationship to the claim.

This is a significant improvement of which the Commission

approves.

During the course of claims investigation veterans will

also have contact with the Department for medical

appointments and - to a lesser extent - non-medical

interviews.

Whilst a claim is being investigated a claimant is kept

informed of progress primarily by correspondence which

XIV-45

advises him of medical appointments. The General Orders

Entitlement at Part 1/11 provide that "in all cases

persons dealing with the Department, including claimants,

are to be kept informed of delays, particularly when the

reasons for delay may not be obvious to that person". The

Departmental files examined by this Commission lead the

Commission to believe that this policy has not been

thoroughly implemented. There is no policy of issuing

routine letters to claimants whose claims are under

investigation for protracted periods. The Commission

appreciates the resource problems that exist within the

Department, and the dramatic increase in the number of

claims which DVA must process. Nonetheless failure to

implement this policy has produced much justified veteran

dissatisfaction and the Government must ensure adequate

funding for its implementation. With the implementation

of computerised claims management systems throughout the

Departmental Branches, such advice should now be able

readily to be given to veterans in cases of delays, and as

a matter of routine.

Once a claim has been submitted the General Orders General

Assistance (at Part 6/14 (g)) provide that "Veterans are

to be advised of the action taken and that they will be

informed of the decision as soon as it is known". This

too has sometimes not been implemented promptly.

XIV-46

The Department has some programs to assist staff in

customer liason and the provision of information

services. The training of staff is the responsibility of

each Branch's Senior Training Officer. The NSW Branch

conducts training programs for staff on topics such as

telephone techniques and public contact. Four or five of

these types of courses are conducted each year.

In addition. Departmental staff are given an opportunity

to view war-experience films which are screened

approximately every 18 months. Four war-experience films

dealing with World War I, World War II Army, World War II

Navy, and World War II Air Force are screened. These

films deal with conditions of war and are produced so that

staff may gain some appreciation of the circumstances in

which veterans served. The Commission was informed that,

in the Victorian Branch staff training includes a war

experience film, which includes events of Vietnam service.

There is no specific program aimed at informing staff

about the Vietnam conflict or the problems of Vietnam

veterans in particular. The NSW Branch considered a

number of movies about the Vietnam conflict but decided

that none was appropriate for screening. No film of the

Vietnam experience specifically is shown to staff.

XIV-47

Departmental staff and DMOs are conscious that some

Vietnam veterans have an antagonistic attitude towards the

Department and consider the Department to be a claimant's

adversary. Whether a film would help is difficult to

say. Knowledge of the special features of Vietnam service

would.

The Melbourne Branch of DVA responded to the peculiar

problems of chemical claimants by designating a single

Investigations Officer to process all such claims. An

officer of the Commission attended that Branch and there

spoke to that Officer. This Commission is of opinion that

the designation of a single Investigations Officer

responsible for the processing of chemical claims provided

Vietnam veterans with an advantage which was - and is -

warranted by the special circumstances of the time. A

rapport has developed between chemical claimants and the

Department as a result of this initiative and the

Investigations Officer was able to develop some particular

expertise in the handling of those claims and

appropriately arranging priority processing in accordance

with Departmental policy. In the opinion of this

Commission this activity was a most appropriate response

to chemical claims issues.

XIV-48

It is a pity that this initiative was not introduced in

all other DVA Branch Offices.

In 1984 the Senior Counsellor at the Parramatta W C S

attended the Sydney Branch of DVA and conducted sessions

on the Counselling Service and the type of problems some

Vietnam veterans experience. The sessions were voluntary

and approximately 250 Departmental staff members

participated in such sessions. One of the purposes was to

establish firm liaison between the Branch activities and

the Counselling Service and to ensure that Departmental

staff were aware of the services which the counsellors

might be able to provide to Vietnam veterans and their

families. In NSW. at least, it is proposed to conduct

further sessions on the location, role and operation of

the Counselling Service and the problems experienced by

some Vietnam veterans.

3.8 Entitlement

Once a claim for pension or application for increase in

pension is lodged, the Department. in accordance with s. 28

of the Repatriation Act 1920. investigates the matters to

which the claim or application relates, including

eligibility and entitlement of the claimant or applicant.

XIV-49

After that investigation the Department forwards the claim

and all relevant documents together with any evidence

furnished by the claimant or applicant to the Commission

for consideration and determination.

There are two elements of the Department's investigation,

namely, lay investigation and medical investigation.

3.9 Lay Investigation

There are two primary qualifications for the grant of

entitlement to a Repatriation disability pension.

Firstly, the claimant must be eligible because of

qualifying service, and secondly. there must be a

connection between such service and the death or

disability of the veteran.

When a claim is received by the Department, immediate

action is taken to register the claim, create a file,

request service documents in respect of the veteran, and

refer the matter for investigation. Investigation of the

claim is the responsibility of the Entitlement Section

within each Branch.

XIV-50

The Department's Entitlement Section is supervised by a

"Supervisor Entitlement" - a Clerk Class 8 who is

responsible to the Manager of the Branch. The Supervisor

is in charge of a "Directions Officer" who is a Clerk

Class 6 and acts as a vetting officer examining all new

claims. Further down the hierarchy Clerks Class 4 and

lower grade clerks act as "Investigations Officers".

Victoria was the only State Branch which provided for one

officer to deal with all chemical claims by Vietnam

veterans.

In NSW a "Directions Officer" system was introduced early

in 1984. That officer had the responsibility of examining

each new claim and deciding whether there was sufficient

information to forward the documents to a doctor for a

Section 48 opinion and subsequently to a Commission

delegate for a quick determination.

Before the introduction of the new determining system - on

1 January 1985 - this procedure was employed where the

Directions Officer considered the matter to be fairly

routine and one which should be allowed by the Commission

delegate. If the Directions Officer did not consider the

matter to be straightforward, instructions were given for

further investigations and thereafter the matter was

referred to a Repatriation Board for determination.

XIV-51

The Directions Officers responsible for vetting claims are

not given guidelines to assist them in determining which

claims should be referred promptly to a Commission

delegate. Some Directions Officers have developed their

own guidelines.

All service medical documents together with the claim

should be on file before reaching the Directions Officer.

The Directions Officer must determine whether sufficient

medical information is present and whether it is necessary

to obtain any further lay information, including any

further information to be supplied by the claimant. When

the Directions Officer considers further information is

required, an assessment is made and he/she provides

directions for Investigations Officers to follow.

The Entitlement Section also arranges medical appointments

and specialist appointments when directed by Departmental

Medical Officers so to do.

In the NSW Branch Office there are delays at the

Directions Officer level and at the Clerk Class 2/3

level. Each Clerk Class 2/3 has a case load of 150 to 200

files.

XIV-52

All veterans go through the system in the same way,

although the Department has introduced a priority system

which gives quick service to selected cases mainly in

circumstances where delay may cause unreasonable hardship.

3.10 Medical Investigations

Section 48 of the Repatriation Act 1920 stipulates those

matters which a medical officer must cover in his report

on a veteran. Before 1943, there was no provision for

medical opinions to be expressed on claims for pensions.

The s .4 8 medical report is the opinion of a medical

practitioner, who is usually a DMO. There was and is no

requirement for the DMO to employ any standard similar to

the standard of proof which the Commission used pursuant

to sub-section 47(2) of the Repatriation Act 1920, (as it

then was) or sl6 of the amending Act of June 1985.

In recent years medical officers have been most cautious

in their opinions and required specialist opinions in too

many cases. Likewise little use has been made of

we11-documented prior medical histories as the basis for

s.48 opinions. The usual procedure is for a fresh medical

examination to be conducted and for specialist

XIV-53

examinations to be performed where appropriate. This

caution in the preparation of medical reports and the

increased workload of DMOs with increasing numbers of

claims has led to substantial and unsatisfactory delays

being encountered whilst claims await preparation of s.48

opinions.

The Departmental Task Force on Claims and Appeals

recommended "that specialist opinions in respect of

entitlement cases be sought only at the discretion of

individual DMOs where considered medically necessary."8

That Task Force further recommended that "except in

exceptional circumstances, the Section 48 opinion be

written by the DMO who undertook the general medical 9 examination". Although on some occasions the same DMO

may perform an examination and prepare the s.48 opinion,

there is no established practice in this regard.

In further attempts to streamline the medical examination

system the Chief Executive Officer of the Sydney Branch

informed this Commission that consideration was being

given to a proposal to place greater reliance upon

existing medical documentation, particularly in

circumstances where a claimant had been receiving

treatment from his own doc tor(s) and specia1ist(s) and

XIV-54

information from those persons might adequately allow for

a DMO to express his opinion on diagnosis and the other

matters required of him by s.48. This is entirely

appropriate.

DMOs have available to them a Departmental guide to

aetiology which sets out details of specific diseases and

disabilities and their causes. The Departmental Task

Force on Claims and Appeals noted that this guide had not

been updated for some time and recommended that the guide

be updated and reissued. The Task Force further

recommended that revision and maintenance of the guide

should be specifically allocated to a new resource in the

Medical Division.10

Claims by Vietnam veterans wherein exposure to Agent

Orange or chemical agents is mentioned led the Department

to undertake a particular medical examination. Such

examinations commenced in an informal way in 1979, and by

May 1980 a standard form of examination was designed which

came into use in July of that year. The Department

through the co-ordination of Central Office designated

particular DMOs in each Branch who had the responsibility

of keeping abreast of literature in regard to chemical

agents and whose task it was to write s.48 opinions in

XIV-55

respect of those claims where exposure to chemical agents

had been mentioned. Particular attention to the chemical

claimant's medical examination and the allocation of work

to nominated chemical claims doctors is given in Section B

of this Chapter.

Before the introduction of the new determining system the

Determining Authorities. particularly the Repatriation

Board and the Commmission. relied heavily upon the

opinions expressed by medical officers in the s.48 medical

opinions.

3.11 Treatment Services

There are many treatment services and benefits available

to veterans. It is not always essential for a veteran to

have successfully established eligibility by claiming for

a disability claim or service pension.

Medical treatment is provided for Vietnam veterans under

Regulation 31 of the Repatriation (Special Overseas

Service) Regulations where an incapacity is due to special

service. There are other regulations which provide that

treatment may be provided in circumstances where an

incapacity is not due to special service.11 Regulation

X I V - 5 6

32B of the Repatriation (Special Overseas Service)

Regulations extends to Vietnam veterans, amongst others,

the type of benefits provided under Regulation 65A of the

Repatriation Regulations which allows the Deputy

Commissioner to provide medical treatment for malignant

neoplasia.

Medical treatment, for the purposes of Division 2 of the

Repatriation (Special Overseas Service) Regulations - and

subject to such qualifications as the Repatriation

Commission with respect to any particular case or class of

cases from time to time determines - means, "medical,

surgical, hospital and all other forms of treatment with a

view to restoring a person to physical or mental health or

alleviating suffering, and includes, subject to the same

qualifications, the supply, renewal and repair of 12

artificial replacements. surgical aids and appliances."

The Department's General Orders Treatment in dealing with 13

the scope of Repatriation Medical Services specifies ~

that treatment for those eligible may include:

in-patient treatment at a Repatriation Hospital conducted by the Department of Veterans1 Affairs, or. in certain cases where approval is given, at a public or private hospital;

XIV-57

general practitioner services through the Local Medical Officer Scheme;

medicines, drugs and dressings prescribed by a Local Medical Officer through the Repatriation Pharmaceutical Benefits Scheme;

specialist out-patient services, including consultations, pathology and radiology

examinations;

services of allied health professionals, including physiotherapy, podiatry etc.;

optometrical services;

dental treatment, including the supply of

dentures;

nursing-home care for service-related

disabilities or, for disabilities not

service-related, subject to a contribution;

rehabilitation and social work services;

artificial limbs and surgical aids, aids to daily living and self-help aids, including spectacles and hearing aids; and

custodial care in psychiatric hospitals operated by State mental health authorities (for

psychiatric conditions accepted as

service-related). In some States separate Repatriation blocks exist within the State institutions.

The most significant treatment services provided to

veterans are the LMOs scheme, whereby approved general

practitioners may treat eligible veterans, and the

treatment which veterans may receive at RGBs and other

approved insitutions. Each state has a RGH. Ά list of

Repatriation General Hospitals and Auxiliary Hospitals

appears at Appendix V of this Chapter. The Brand Report

XIV-58

recommended, inter alia, that they be integrated with the

State public hospital system, such that veterans may in

future be treated at their nearest public hospital. In

the context of Medicare this seems appropriate.

The Brand Committee was established on 5 March 1984 to:

Identify deficiencies in resources,

buildings, equipment and staff and

administrative procedures which inhibit the hospitals from delivering a high quality of care with efficiency and convenience to patients.

Identify the requirements for the further development of the hospitals and related services to an ageing veteran population to the end of the next decade.

Make recommendations (including on funding) to correct any such deficiencies and to meet those requirements.14

The Final Report of the Brand Committee was released on 9

July 1985, but became available to this Commission only on

12 July 1985. The Committee recommended a sweeping

rationalisation of, and upgrading of facilities within,

the RGB system, and their eventual integration with the

State hospital system, commencing immediately with

Tasmania.

Apart from usual hospital arid I,MO care, Vietnam veterans

and/or their dependants are also entitled to urgent

medical treatment at Departmental hospitals.

XIV-59

Other supplementary allowances and benefits which are

granted to eligible persons in special circumstances

include:

loss of earnings allowance;

temporary incapacity allowance;

soldier's children's education scheme;

funeral expenses;

air travel;

guide dogs for the blind;

travelling allowances.

4. THE DETERMINING SYSTEM

4.1 Introduction

On 1 January 1985 a new system was introduced for the

determination of claims for disability and service

pensions as well as applications for increases in the rate

of pension assessed.

In addition to changes in the structure and administration

of the determining system, the standard of proof required,

pursuant to (old) sub-section 47.(2) of the Repatriation

XIV-60

Act 1920 was substantially changed by the Repatriation

Amendment Act 1985. Prior to its 1985 amendment

sub-section 47.(2) provided:

The Commission shall grant a claim or application unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application, as the case may be.

In the case of decisions of the Veterans' Review Board the

standard of proof as specified by sub-section 107VG.(3) -

prior to its amendment in 1985 - provided:

On the completion of its consideration of a

review of a decision -(a) if the decision was a decision to refuse to grant a claim for a pension - the Board

shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for granting the claim or application; or

(b) in any other case - the Board shall set

aside the decision unless it is satisfied, beyond reasonable doubt, that the decision is the decision that the Board would have made if it had had the responsibility for making the decision the subject of the

review.

Decisions of the Veterans' Review Board and the

Repatriation Commission are reviewable, subject to certain

conditions, by the Administrative Appeals Tribunal. The

Administrative Appeals Tribunal Act 1975, applies in

relation to reviewable decisions, subject to exceptions

XIV-61

contained in the Repatriation Act 1920. In reviewing a

decision the Administrative Appeals Tribunal Act provides

that the Tribunal may exercise all the powers and

discretions that are conferred by any relevant enactment

15

on the person who made the decision.

4.2 The New Determining System

In Part 2.2 of this Chapter reference is made to the main

purposes of the Repatriation Legislation Amendment Act

1984, which provided for the introduction of the new

determining system. In addition, that part of this Report

repeats the Minister for Veterans' Affairs' summary of the

consequences of deficiencies in the determining system

contained in the Administrative Review Council Report.

It is too early to say whether the new system for

determination will be successful in overcoming identified

problems of the previous determining system. It may be

necessary to monitor the new system to ensure that

identified problems of the previous system do not continue.

The structure of the new determining system is set out at

Appendix VI to this Chapter which depicts the basic

three-tiered process for decision making and review.

XIV-62

The standard of proof to be applied by the determining

authorities has been changed and this will be discussed

further in Chapter XIII.

4.3 The Repatriation Commission

Sections (a) and (b) of Part 2 of the Chapter deal, inter

alia, with the administration of the Repatriation

Commission and the legislative provisions applicable in

respect thereof, including the power of the Commission to

delegate its powers and functions.

4.4 Veterans Review Board

The Veterans' Review Board (the Board) is established

pursuant to Section 1.07VB of the Repatriation Act 1920.

The Board consists of a Principal Member and such number

of Senior Members. and such number of other members, as

are appointed in accordance with the Act. Sub-section

107VK(1) provides that, for the purposes of a review, the

Board shall be constituted by the Principal Member. or a

Senior Member, a "Services member" (as defined in Section

107VA) and one other member. Sub-section 2 of Section

107VK provides that "with the approval of the Minister,

the Board may, for the purposes of a particular review, or

XIV-63

of a review included in a particular class of reviews, be

constituted by (a) the Principal Member or a Senior

Member; or (b) one other member, only".

The Principal Member is responsible for the efficient

operation of the Board and may give directions for the

purpose of increasing the efficiency of the operations of

the Board and as to the arrangements of the business of

the Board.16

The Board is not bound by technicalities, legal forms or

rules of evidence and must act according to substantial

justice and the merits and all the circumstances of the

case taking into account any difficulties that lie in the

way of ascertaining the existence of a fact, matter, cause

17

or circumstance.

Proceedings before the Board are dealt with in Division 5

of Part i iia of the Repatriation Act 1920. Section 107VR

of that Act provides that parties to a review by the Board

of a decision of the Commission are the applicant and the

Commission. The section further provides that a party to

a review may appear in person or be represented at his own

expense by a person other than a legal practitioner, at

any hearing of a review. If, for any reason, he wishes

XIV-64

the review to proceed in his absence, he may make such

submissions, in writing, to the Board as he considers are

relevant to the review.

The procedure of the Board is set out in s . 107VS of the

Act and the powers of the Board are set out in s . 1 0 7 W .

Applications for review by the Board may be made within

twelve months after service on the person to whom the

decision relates of a copy of the decision in accordance

with sub-section 47A(2) of the Act except in respect of

decisions by the Commission in regard to assessments and

determinations concerning the rate of pension in which

case the application must be made within three months

after service on the person of that copy of the decision

in accordance with sub-section 47A(2).18

The Secretary to DVA shall cause a report to be prepared

referring to the evidence under control of the Department

that is relevant to a review and cause a copy of that

report to be served on the applicant within six weeks 19

after receipt of an application for review. In

circumstances where, in the opinion of the Secretary, the

report prepared contains or refers to any information of a

confidential nature or which might be prejudicial to the

XIV-65

physical health or mental health or well-being of the

applicant, the document served on the applicant shall not

contain or refer to that information, opinion or other

20

matter.

Once the Board reviews a decision of the Commission, the

Board, in accordance with sub-section 107VJ.(1), shall

record its decision on the review in writing, prepare a

written statement setting out its reasons for that

decision, file the decision and written statement with the

records of the case, and cause a copy of the decision and

written statement to be served on each relevant person.

In addition, persons are advised of their rights to make

an application for review to the Administrative Appeals

Tribunal.

The written statement prepared by the Board shall not

contain or refer to information, opinion or other matters

which in the opinion of the Board is of a confidential

nature or might be prejudicial to the physical or mental

health or well-being of the relevant person if

communicated to the applicant.23-

X I V - 6 6

4.5 Administrative Appeals Tribunal

Applications for review by the Administrative Appeals

Tribunal are dealt with in Part 11 IB of the Repatriation

Act 1920. Subject to the modifications contained in the

Repatriation Act the provisions of the Administrative

Appeals Tribunal Act 1975 apply to proceedings before the

Administrative Appeals Tribunal.

The parties to proceedings before the AAT are the person

who has applied for the review and the Commission, in

circumstances where the Commission is not the applicant,

and in other cases, the Commission and the member of the 22

Forces or dependant affected by the decision.

The provisions of s .29 of the Administrative Appeals

Tribunal Act 1975, specifying prescribed times for making

applications for review have been extended by the

Repatriation Act to permit applicants to apply for a

review of a decision within three months of the relevant

date and permits the Tribunal to extend the time for

making an application or review of a decision for a period

not more than twelve months after the date on which the

document setting · out the terms with the decisions was 2 3 furnished to the applicant.

XIV-67

4.6 The Previous Determining System

Appendix VII sets out the structure of the previous

determining system. That system. like the present system,

contained three basic levels for determination, review,

reconsideration and appeal.

Some of the deficiencies in the previous system were

identified in Part 2 of the Administrative Review Council

Report and the consequences of such were summarised by the

ARC as follows:

Not enough claims and applications are allowed by primary decision makers.

An unnecessarily large number of cases proceed to hearing before the Repatriation Review Tribunal (RRT) and that Tribunal is finding it increasingly difficult to cope with its workload while maintaining an appropriate standard of decision making.

Hearings before the RRT are often in

substance primary consideration of (at least some) evidence rather than in the nature of a review.

Undue delays occur in the final disposition of cases.2^

A . Repatriation Boards

Repatriation Boards were established under s. 14 of the

Repatriation Act 1920 and consisted of a Chairman, a

X I V - 6 8

Services member and a third member, all appointed by the

Governor-General. The functions of Repatriation Boards as

identified by the Administrative Review Council Report

were:

The basic duties of a Board are described in

detail in Section 27 and cover the whole ambit of primary decision making. including the tasks of determining whether a veteran's death or

incapacity was service-related, the nature and extent of any incapacity, the extent of any

dependency on the veteran, whether a payment should be suspended or terminated, and assessing the rates of pensions.

The Boards are obliged under Section 15 to

consult and co-operate with the Commission in the performance of their functions. The Commission is empowered to issue statements of principle and other material to the Boards to assist them in

the performance of their functions. In addition the Minister may give directions to a Board for various purposes. However, neither the

Commission nor the Minister is authorised to interfere with a Board's consideration or

determination of a particular claim or

application.25

The Repatriation Act permitted the Repatriation Boards to

hear an applicant in person. However, such hearings were

unusual and the Administrative Review Council identified

that Board members consulted did not favour accepting an

applicant's evidence orally as a matter of general

_ . 26

practice.

XIV-69

The Administrative Review Council (ARC) identified that

normally a Board had before it the following documents:

* a written summary of the case prepared by

the Department, including the service records of the veteran held by the

Department;

* a written statement by the claimant (in a

few cases only);

* a Departmental medical opinion; and

* whenever required, a specialist medical report.27

These Boards were abolished following repeal of their

enabling legislation by the Repatriation Legislation

Amendment Act 1984 .

B . The Repatriation Commission

The Repatriation Commission, before the recent amendments,

had the responsibility of hearing appeals as well as

reviewing and reconsidering determinations.

In certain instances DVA officers referred claims to

Commission delegates for initial determination. The other

functions of the Commission as set out in the ARC

„ 28

Report were:

XIV-70

determining whether a veteran is eligible to receive a Service Pension under Sections 84 or 85 of the Act, and determining the rate of payment of such a pension;

hearing appeals from any assessment or

determination of a Board under Part III (Section 28) ;

reviewing any assessment, decision or

determination in relation to a pension, whenever it appears that sufficient reason exists for so doing (Section 31);

determining whether to cancel or vary the rate of a Service Pension (Section 98);

reviewing a decision before a review by the RRT because of a lapse of time since an earlier

decision of the Commission was made or for any other special circumstance (Section 107VL(1));

reviewing a decision in the light of further evidence at the request of the RRT (Section

107VL(2));

reconsidering a claim in the light of further evidence after an adverse decision of the RRT on an application under section 107VC (Section 107VM(1));

determining whether the de facto wife or widow of a veteran was dependent upon him (Section 42); and

determining whether the incapacity or death of a World War II veteran is due to venereal disease contracted during service or is due to an

accident or disease that would not have occurred or been contracted but for his being on war

service (Section 101).

C . The Repatriation Review Tribunal

The Repatriation Review Tribunal (RRT) was established

under the Repatr iation Acts Amendment Act 1979, and held

XIV-71

its first sittings on 2 July 1979. That Tribunal took the

place of the War Pensions Entitlement Appeal Tribunals and

the Assessment Appeal Tribunals which had „ since 1929,

respectively dealt with appeals relating to entitlement to

pensions for service-related death or incapacity; and

appeals relating to the assessment of war pensions and

entitlement to a Service Pension on the ground of

permanent unemployability.

The functions of the RRT, as set out in the ARC

2 9

Report, were as follows;

The review functions of the RRT are set out in Division 3 of Part IIIA of the Act. These

functions are four-fold. First, the Tribunal may review a decision of the Repatriation Commission refusing entitlement to a pension or benefit on the ground that an ex-serviceman's incapacity or death is not related to service on which

eligibility is based (S. 107C of the Repatriation Act 1920) or a determination of the Commission refusing a claim for pension or benefit on the ground that a merchant mariner's incapacity or death is not service related (S. 34 of the

Seamen's War Pensions and Allowances Act 1940). Second, the Tribunal may review a decision of the Commission, a Repatriation Board or a Seamen's Pension and Allowances Committee assessing the

rate of pension payable for incapacity for which the Commonwealth has been found liable (S. 107VD of the Repatriation Act 1920 and S. 35 of the Seamen's War Pensions and Allowances Act 1940). Third, the Tribunal may review decisions of the Repatriation Commission refusing to grant a service pension on the ground that the claimant is not permanently unemployable (S. 107VE of the Repatriation Act 1920).

XIV-72

The RRT consisted of three members being a presidential

member, a Services member„ and one other member. When

reviewing assessment or Service Pension applications the

Tribunal was usually constituted by a Medical Member as

30

well as the presidential member and a Services member.

The Minister for Veterans' Affairs was responsible for the

RRT, as he was for the Repatriation Commission. The

Tribunal, like the Commission, was serviced in terms of

31

staff and funds by DVA. The RRT in its second Annual

Report stated that the Tribunal was modelled in many

respects on the Administrative Appeals Tribunal and was

32

designed to function in a similar manner.

A significant feature of the previous determining system

was the number of Repatriation Commission determinations

of applications for entitlement pensions set aside on

review. A graphic representation of RRT determinations

appears at Appendix VIII. It can be seen that during

the period of operation of the RRT, Repatriation

Commission decisions affirmed by the RRT slipped from 66

per cent in 1980-81, to 33 per cent in 1981-82, 13 per

cent in 1983. 15.2% per cent in 1983-84, and - more

recently - to 9% in 1984-85.

XIV-73

In its Annual Report 1981-82 the RRT, under the heading

"Problems With the Determining System", stated:

The success rates demonstrated above indicate fundamental problems with decision making in the Repatriation system.

In the last year the Tribunal set aside over 65 per cent of the decisions reviewed. A system involving such a high level of successful appeals is expensive, and with the determination of claims protracted over three levels, claimants are prone to feel aggrieved by the necessity to pursue a claim at such lengths to obtain

justice.34

In the Repatriation Commmission's Annual Report 1982-83.

at page 22, the comment is made that:

The Repatriation Commission sees a need to obtain further judicial guidance on its statutory obligations in determining claims for pensions. While decisions of courts and tribunals have

helped, the High Court's decision in Repatriation v Law has left many unresolved practical issues. The Commission is pursuing some court appeals

from decisions of the Repatriation Review Tribunal to clarify the law. Some of these

appeals are for claims relating to diseases of unknown aetiology such as carcinomas. The Commission is concerned that the tendency towards granting such claims on the basis that the

statutory onus can not in practice be discharged even when, after full medical investigation, no specific connection with defence service is found.35

In its Annual Report 1982-83 the RRT, referring to the

fact that the Tribunal set aside 87 per cent of Commission

decisions on eligibility which came before the Tribunal in

the previous year, stated:

XIV-74

Until the Tribunal's decisions are shown to be wrong in law, the Commission and Boards should apply the view of the law held by the Tribunal. Where the Commission considers that this Tribunal

is in error it has a right to appeal to the

Federal Court of Australia.

The Commission has lodged a number of appeals and the decisions of the Court will assist decision makers to apply the law uniformly. The majority of the appeals are on grounds arising from the matter in which the Tribunal applied the law

relating to onus and standard of proof in cases involving diseases of which the causes are

unknown.

The observation contained in the RRT Annual Report that

claimants were prone to feel aggrieved by the necessity to

pursue a claim at such lengths "to obtain justice" echoes

comments made to this Commission by many veterans who

considered that the lower levels of determination must be

biased against them in circumstances where it was

necessary to pursue entitlement claims to the level of the

Repatriation Review Tribunal before they considered

justice to have been done (i.e. before they succeeded in

their claim!)

The United States Approach

In the United States there is a two-tiered determining

system. A veteran's original claim is considered by a

Rating Board which consists of three members, and the

veteran has a right of appeal to the Board of Veterans'

Appeals which is comprised of two lawyers and one doctor.

XIV-75

Two to three million claims are lodged each year with

USVA, and of these 60-70,000 disallowed claims are the

subject of appeals to the Board of Veterans' Appeals. In

these cases the Rating Board of the Regional Office

submits its reasons for determination to the Board of

Veterans' Appeals which then will make a decision

considering those reasons and any additional medical

evidence or any statement of evidence presented by the

claimant.

The Board of Veterans' Appeals covers all types of

benefits, grants and eligibility or allowance entitlements

for pensions. When the Commission visited the USA in

October 1984 there were 21 Boards of Veterans' Appeals.

All of these Boards are under the final authority of the

Chairman although each operates in an independent capacity.

In circumstances where a claim is made for service

disabilities an award of compensation will be made to

successful claimants. The percentage of the disability is

decided in accordance with rating schedules which

prescribe by law the amount to be paid. Non-service

connected disabilities may be the subject of means-tested

pensions granted to claimants but do not involve the

payment of large sums of money.

XIV-76

Basically the form of claim procedure in the United States

is as follows:

(1) The lodgement of a claim at a Veterans1

Administration Regional Office;

(2) Determination of the claim by the Rating Board;

(3) Issue to the claimant of a claim allowance or

denial notice;

(4) If denied lodgement of a notice of disagreement

by the claimant;

(5) Statement of case (reasons for determination)

forwarded to the veteran;

(6) Lodgement of a substantive appeal by the veteran

to the Board of Veterans' Appeals.

In some instances it is not necessary for a matter to be

reviewed by the Board of Veterans' Appeals. For example,

a Rating Board may review its own decision when new

evidence is provided.

XIV-77

The Board of Veterans' Appeal may require further medical

opinions or even independent medical opinions or may

merely reassess the evidence presented before it.

This Commission whilst in the United States had an

opportunity to discuss with the Chairman of the Board of

Veterans' Appeals some aspects of the operation and

administration of the determining procedure. Some of the

most interesting points discussed are summarised as

follows:

(1) Each Board of Veterans' Appeal has seven staff attorneys employed to review cases and make recommendations for decisions. Once an appeal is received one such staff attorney will receive the matter for consideration.

(2) The Board Members review the recommendation of the staff attorney. Each section is

expected to do 40 decisions a week and staff lawyers are expected to complete five to seven cases recommendations per week. 44,000 decisions were handed down by the Boards in 1983/84. Three Boards of

Veterans' Appeal are centralised in

Washington. Their decisions are final with only limited rights of judicial

consideration for matters such as violation of due process.

(3) Hearings are available in almost all cases before Boards of Veterans' Appeal. except a rare few cases where claims are allowed without any hearing. The hearings consist merely of giving a claimant an opportunity

to present his case to his Board of

• Veterans' Appeal. There is no

representation before the Board of any party - including USVA - apart from the veteran.

XIV-78

(4) Hearings are conducted in regional areas as well as Washington. The veteran has to pay his own costs of coming to Washington. On about 70% of occasions„ people do not attend

the hearings, although they may be

represented by Veterans' Organisations. The hearing serves the purpose of presenting further information which might be used by the Board and of giving the veterans an

opportunity of seeing the determining authority face to face.

(5) Veterans are allowed representation but because there is a legislative maximum fee of $10 for an attorney the usual

representation comes from service

organisations. The legislation in respect of attorneys is over 100 years old and has been maintained as an effective means of prohibiting lawyers appearing before the Boards. However. on some occasions, lawyers

do appear gratuitously in cases when they consider them of particular interest or merit. Generally. however, lawyers are reluctant to appear and since most of the

claims are related to issues of fact it is generally considered that service

organisations handle the task as well as lawyers.

(6) Boards of Veterans' Appeals are not bound by any rules of evidence.

(7) The procedure before Boards of Veterans' Appeals is non-adversary. The only VA

involvement is to present its reasons for determination at the regional level as expressed by the Rating Board.

(8) At the Board of Veterans' Appeals hearings, an opening statement is made by the veteran. If the veteran produces new evidence, the Board may refer the matter back to a Rating Board for further determination, although,

at the same time, it may give an indication to the Rating Board that in the

circumstances the Board of Veterans' Appeal would allow the claim.

XIV-79

(9) A decision of the regional office Rating Board is supposed to be final after one year from the date of determination. However, new evidence presented may reverse a service connection denial claim. Similarly, a decision may be countermanded for a clear and unmistakable error.

(10) The decisions of Boards of Veterans' Appeal may be reconsidered by another Board of six members which would include the original three member Board. There may be more

members on a Review Board and the Chairman of the Board of Veterans' Appeals informed this Commission that on occasions they have

had up to 12 members on Review Boards.

(11) 14% of decisions appealed against by

veterans were allowed by the Board of

Veterans' Appeal in the year 1983/84. The overall appeal allowance rate in that year was 20% which includes reversals of

decisions made by Rating Boards themselves.

(12) About two and one-half million claims per year are lodged with Veterans'

Administration in respect of disability, compensation and pension allowances. In recent years the rate of claims allowances has increased by 1%.

(13) The Board members are appointed by the Administrator (Minister) with the approval of the President. Presently there are 21 Boards and at the time of this Commission’s discussions with the Chairman of the Board of Veterans' Appeals approval had recently been given to increase the number of Board members.

(14) Decisions handed down by Boards of Veterans' Appeals are forwarded to Rating Boards and to the veteran.

(15) The appeals allowance rate of 14% was the overall rate. In some regional areas only 5% of Rating Board decisions were reversed on appeal while in others the figure was as

XIV-80

high as 25%, obviously indicating that in some areas Rating Boards were being too lenient in allowing claims whilst the

converse occurred in other areas. The

Chairman of the Veterans' Appeals Board considered that an allowance rate of 10% could be expected merely because of

differences of opinion and judgment in consideration of matters of fact.

(16) Appeal Board hearings usually last only about half an hour, assuming there is no delay, and the Board's decision usually comes out 4-6 weeks later. In most

circumstances there is no transcript taken of hearing proceedings.

(17) If a decision is favourable to the claimant, the claimant usually receives benefits from the date of the claim or it may be one year earlier if he can prove that he was worse before lodgement of the claim. This

provision, however, works both ways. For example, if a claimant only became eligible 6 months after lodging his claim, then the benefit might only be granted from that

time. It is possible to go back up to 10

years or more if there is a clear and

undeniable mistake in the original

determination by a Rating Board.

(18) Pensions are paid for varying percentages of incapacity. Once a veteran receives a 30% incapacity compensation payment he gets dependent allowances in addition to this

compensation.

(19) It usually takes approximately 4-6 months for a Board decision to be finalised.

(20) The onus is on the veteran in the sense that both Rating Board and Board of Veterans Appeals require satisfaction on the balance of probabilities of entitlement.

XIV-81

THE AUSTRALIAN RESPONSE TO CHEMICAL AGENTS ISSUES 5 .

AND CARING FOR THE HEALTH OF AUSTRALIAN PERSONNEL

To examine the particular initiatives of Government

Departments and the Vietnam Veterans' Counselling Service

(WCS) in greater detail. this Part deals with such

activities in the following format:

3(a) Introduction;

3(b) The Department of Defence;

(i) Knowledge of chemicals and safety;

(ii) Information provided to servicemen about

Repatriation benefits and chemical agents

issues;

3(c) Department of Veterans' Affairs;

(i) DVA activities;

(ii) Chemical claimant medical examinations;

(iii) Proximity Reports;

XIV-82

(iv) Acute-care hospital admission;

(v) The "flooding" technique;

(vi) Information services;

(vii) Implementation of Senate recommendations;

(viii) DVA Task Force on Claims and Appeals;

(ix) Co-operation with WCS;

(x) Data collection for Vietnam Veteran Issues;

(xi) Relationship with DVA;

(xii) Future of the WCS;

3(d) Department of Health, Commonwealth Institute of

Health (CIH) and Australian Veterans' Health

Studies (AVHS);

(i) History;

(ii) Future activities in regard to Vietnam

veteran issues.

XIV-83

5.1 Introduction

The introductory parts of this Report identify the

historical concerns about Agent Orange and its component

chemical agents. In particular the development of concern

for the health and welfare of US servicemen and their

children has been discussed.

The concern about Agent Orange spread guickly from the

United States to Australia with press articles concerning

Agent Orange appearing in the Australian press in late

1978 .

In January 1979, for the first time. a claim for

Repatriation benefits was made mentioning that the claimed

disability was due to exposure to defoliants.

Subsequently, the Australian Government responded with a

number of initiatives in efforts to understand and examine

the Agent Orange and chemical agents issues. The first

real product of Government initiatives was the Report

presented in May 1981 entitled, "Pesticides Used in

Vietnam Hostilities and Their Use in Australian

Agriculture: A Comparative Study".37 That Report

XIV-84

received input from the Departments of Health. Veterans'

Affairs. Primary Industry. Defence, and Prime Minister and

Cabinet.

DVA and CIH undertook a number of initiatives in attempts

to address the concerns of veterans and the community in

regard to chemical agents issues. The Defence Department

provided information on request and most substantively

compiled the Army Report,38 which was a comprehensive

summary of available documentary evidence concerning

probable exposure to chemical agents in Vietnam.

On a practical level, DVA instituted particular medical

examinations which were given to veterans claiming

exposure to chemical agents and later - where requested to

do so by Determining Authorities - provided proximity

profiles in respect of veteran claimants.

This Commission had the benefit of examining a document

provided by Dr Barclay Shepard of the Veterans'

Administration in Washington entitled. "Chronology of

Significant Events Pertaining to the Agent Orange

Issues". Af ter perusing that document this Commission

requested both DVA and the Department of Defence to

provide the Commission with their own version

XIV-85

particularising significant events pertaining to the

issues of chemical agents on Australian personnel in

Vietnam and specifically identifying all Departmental

initiatives and involvement in chemical agents issues. DVA

provided this Commission with a document entitled,

"Vietnam Veterans Issues - Chronology of Developments

(Department of Veterans' Affairs)". That document is

reproduced at Appendix IX hereof. The Department of

Defence provided its chronology entitled, "Use of Chemical

Agents in Vietnam - Chronology of Significant Events

(Department of Defence)". That document is reproduced at

Appendix X hereto and despite its title is not restricted

purely to Defence Department activities associated with

the use of chemical agents in Vietnam.

After considering the two chronologies provided by the

Department of Defence and DVA together with other

information available to this Commission, the following

significant events pertaining to chemical agents issues in

regard to Australian personnel have been identified:

March 1970 Mr Malcolm Fraser, then Minister for

Defence wrote to National Secretary, RSL.

confirming that the services had been

directed to review their existing

XI V-8 6

arrangements in respect of recording of

instances of chemical exposure, to ensure

3 9

their adequacy.

29 October 1978 The first reference to Agent Orange in

the Australian press recorded by DVA

appeared in the "Sun Herald". The

article, written by a New York

correspondent, which dealt with

happenings in the US, also mentioned that

Australian veterans had possibly been 40

affected by Agent Orange.

January 1979 Mr R. Brown made a claim against DVA

alleging that his disability (of cancer)

was due to exposure to defoliants. Other

claims followed this, and by 24 July 1979

ten claims mentioning chemical agents had

been lodged with the Department. A list

of those claims in contained in Appendix

XI hereof. From 20 May 1979 on, the

press coverage accelerated. Several

articles quoted Mr Don Cameron, MP, as

saying that then Minister for Veterans'

XIV-87

Affairs, the Hon. Evan Adermann, had told

him that veterans who had lodged claims

would have them investigated. Several

veterans, including Mr Bernard Szapiel,

gave stories to the press.41

11 June 1979 DVA1s Central Office provided State

Branches with the first batch of

scientific material on 2,4,5-T and other

chemicals.42

18 December 1979 The first of the Minister for Veterans'

Affairs press releases was issued stating

that the Department had been collecting

information and that it could not say on

the evidence gathered that there was a

connection between Agent Orange and the

various forms of ill health reported in

Australia (Chloracne excepted). Veterans

were invited to lodge claims.43

21 December 1979 DVA wrote to Defence seeking specific

information in respect of geographic

areas sprayed in periods when troops were 44

likely to have been in those areas.

XIV-88

January 1980 Cabinet noted the formation of a

7 January 1980

11 January 1980

Committee of Ministers, including the

Minister for Defence. to report to

Cabinet on matters relating to a study of

possible health effects of exposure to

Agent: Orange in Vietnam. Functions of

the Committee were:

a) To act as an informed group capable

of advising on possible health

effects on Australian veterans and

their families, and on exposure to

Agent Orange and other herbicides.

b) To consider reports submitted by

45

CIH.

In a press release the Minister for

Veterans' Affairs announced the intention

to set up an independent study of the 4 6 effects of Agent Orange.

The Minister for Veterans' Affairs

announced that the School of Public

XIV-8 9

Health and Tropical Medicine„ (otherwise

known as the Commonwealth Institute of

Health) at the University of Sydney would

undertake epidemiological study of the

possible effects of Agent Orange on

veterans and their children.47

10 February 1980 A Victorian newspaper article appeared

quoting Mr John Evans, the scientific

advisor to VVAA, as saying that a number

of other groups of defoliants apart from

Agent Orange were used in Vietnam as well

as a variety of insecticides. He

specifically mentioned malathion and was

quoted as commenting that this

insecticide was possibly as dangerous to

humans as herbicides and had been known

to produce many of the same side effects

including cancer, vomiting, diarrhoea and

skin rashes.

20 February 1980 The inaugural meeting of the Committee of

Officials on Agent Orange (later changed

to Committee of Officials on Vietnam 48

Veterans' Issues) was convened.

XIV-90

22 February 1980 The Secretary to the Department of

Veterans' Affairs, Sir Richard Kings land,

49

met Mr John Evans.

31 March 1980 The Minister for Veterans' Affairs

announced that the Government had

decided, having satisfied itself that

certain vital information could be

obtained, that CIH should press on as

quickly as possible with the study, which

was aimed at determining whether

herbicides and other chemicals of

significance used in Vietnam had or may

be likely to have had an impact on the

health of Australian Vietnam veterans and

their children.

The Minister announced that the study

would involve interviewing some 60,000

veterans and their families and, to

enhance acceptance of the study, a small

group of independent scientists with

world-wide credibility as epidemiologists

would be established to assess and

XIV-91

endorse the methodology of the study and

to comment on any alterations which may

have become necessary during its

50

course. [The Commission confesses to

a feeling of deja vu! ]

27 March 1980 In response to a question without notice

from Mr Holding, the Defence Minister

tabled in the House two Reports

concerning spraying of herbicides at the

first Australian Task Force in Vietnam;

(a) "Herbicide Spraying at the First

Australian Task Force, Nui Dat, in

Vietnam" - Australian Army

Operational Research Group, 1968.

(Commonly known as the Holt Report,

after the author, Major E.S. Holt).

(b) "Herbicide Spraying at the First

Australian Task Force, Nui Dat, in

Vietnam" - Defence Standards

Laboratories Report 397 (commonly

known as the Lugg Report, after the

author. Mr George A. Lugg).

XIV-92

April 1980 The Chief Director, Medical Services,

May 1980

May/June 1980

June 1980

DVA, instructed all State Directors,

Medical Services, to nominate one or two

DMOs to deal specifically with

chemical-related claims.

The Minister for Defence agreed that the

Department would assist an

Inter-Departmental Committee charged with

preparing a Report on what chemical

substances, including pesticides, were

used in Vietnam; the origin of these

substances; and the differences between

the chemicals used in Vietnam and those

51

used domestically in Australia.

Central Army Records Office (CARO)

commenced preparation of a nominal roll

of all Army personnel who served in South

Vietnam. Impetus for this initiative was

the need for a data base on veterans for

use by DVA, Social Security, Health, and

the CIH.52

Publication of John Dux and P.J. Young,

"Agent Orange - The Bitter Harvest",

Hodder and Stoughton, 1980.

XIV-93

July 1980

4 July 1980

DVA introduced chemical claimant medical

examinations using a distinct form of

examination, particularised on DVA Form

D2120. In addition, individual histories

of self-reported exposure to chemical

agents were obtained from veterans as

well as histories concerning their family

health and the health of children where

appropriate.

Newspaper articles appeared throughout

Australia repeating a story from a New

York correspondent indicating that

evidence was emerging in the United

States that many dangerous chemicals

other than Agent Orange were used in the

Vietnam War. Dr Samuel Epstein was

guoted as stating, "There has been undue

preoccupation with Agent Orange ... to

base all conclusions about toxicity in

Vietnam veterans on Agent Orange is

simplistic ... you have a dozen toxic

agents in Vietnam ... some like chlordane

are unequivocally carcinogenic - others

like dapsone, an experimental

anti-malarial drug are suspected as being

carcinogenic ..."

XIV-9 4

15 July 1980 Appointments were announced to the

Scientific Advisory Committee (SAC), an

independent group of scientists and

statisticians who would assess and advise

5 3

on the methodology of the CIH Study.

14 January 1981 Senator Messner, Minister for Veterans'

Affairs, announced that free hospital

treatment would be available in

Repatriation General Hospitals to Vietnam

veterans who needed urgent

hospitalisation even though the complaint

might not be related to military

5 4

service. The conditions for such

treatment were that medical

investigations must indicate that the

condition required urgent treatment and

that it was appropriate to provide the

type of care necessary as an in-patient

and that there was a spare bed capacity

55

in the Repatriation Hospital.

14 January 1981 The Minister for Veterans' Affairs,

Senator Messner, said that he was

XIV-95

establishing a distinct unit within his

Department to be responsible for Vietnam

veteran matters. This unit - originally

known as the Vietnam Veterans Special

Studies Group - later became the Special

Projects Branch of DVA.

14 January 1981 Senator Messner announced that a

Departmental Counselling Service was

being established, to be operated by

professionally gualified officers located

in DVA, which would seek to identify

problems of Vietnam veterans and

facilitate their access to community

services.

May 1981 The Inter-Departmental Committee

(comprising representatives of Health,

DVA, Defence, Primary Industry, Prime

Minister and Cabinet) Report, "Pesticides

Used in Vietnam Hostilities and Their Use

in Australian Agriculture: A Comparative

Study", was publicly released. This

report summarised the known information

on chemical usage in Vietnam, and use of 56

the same chemicals at home.

XIV-96

6 May 1981 A pilot study to test the methodology of

June 1981

8 July 1981

the major research work began. Because

of the small number of veterans involved

(600), no results were to be released 57

from the pilot study.

Senator Messner visited the United States

to see how Government agencies were

handling veterans' problems, to examine

the status of US studies on veterans'

health and to consult US veterans'

representatives on their experiences in

dealing with the problems of veterans.58

Senator Messner held a press conference

during which he announced that extended

counselling services were to be made

available which would be modelled to some

extent on those which he had seen in the

US Veterans' Administration "Outreach

Program." Later in July 1981 Senator

Messner had discussions with both W A A

and the RSL. As a result, the Minister

was able to announce that there was

substantial agreement on the form of a

new counselling service to operate as

soon as practicable.59

XIV-97

21 August 1981 A National Advisory Committee for W C S

was appointed,60

27 August 1981 The CIH was asked to explore the

feasibility of a case control study of

birth defects in Australian children, to

be carried out with the co-operation of

major obstetric hospitals. In making the

announcement the Minister said that the

Government was continuing to examine the

possibility of initiating any other

studies which might answer guestions

about the relationship of veterans'

health to their Vietnam service.61

15 October 1981 The Senate resolved that the following

matters be referred to the Standing

Committee on Science and the

Environment: the use of pesticides,

particularly phenoxy chemicals and

chemicals containing dioxin with

reference to:

(a) their ecological effects; and

(b) their effects on human and animal

health;

XIV-98

and that in considering this matter the

Committee deal first with the possible

effects on Vietnam veterans of exposure

to herbicides.62

6 December 1981 DVA officers began research at the

Australian War Memorial which located

documents leading to the exercise

undertaken by Defence which produced the

Army Report.63

8 December 1981 The Senate Standing Committee conducted

10 public hearings between 8 December

1981 and 22 September 1962 at which 39

witnesses gave evidence. The hearings

took place in Canberra (4), Melbourne

(2). and Sydney (4).64

5 January 1982 The case of Colin Simpson was determined

by the RRT which could not be satisfied

beyond reasonable doubt that the

suggested causal relationship between Mr

Simpson's malignant lymphoma and his

possible exposure to phenoxy herbicides

in Vietnam did not exist.

XIV-99

29 January 1982 Opening of the first W C S Centre in

Adelaide.65

15 February 1982 A revised scientific study program and

extended treatment provisions were

announced at the opening of the W C S

Centre in Sydney.66

25 November 1982 Senate Report completed.67

9 December 1982 The * r, , 68 Army Report and Air Force

Report 69 were tabled by the Minister

for Defence in the House of

. 70

Representatives.

2 February 1983 Case control study of congenital

anomalies and Vietnam service (Birth 71

Defects Study) Report was released,

and subsequently tabled in Parliament by

Senator Gietzelt on 11 May 1983.72

11 May 1983 Senator Gietzelt tabled the Government

response to the Senate Standing Committee

on Science and the Environment Report.

Included in the response were

XIV-100

announcements that the Department of

Defence would disseminate a new manual on

the Safe Handling of Pesticides; that the

Morbidity Study of Vietnam veterans would

not proceed; that claims-hand1ing delays

would be reduced by introducing a new

system of Repatriation Commission

delegates with power to accept, but not

reject, claims; that a system to allow

country veterans to telephone the DVA

State capital office for the price of a

local call would be started on a trial

basis; that the Department planned to

develop a computerised epidemiological

index; that a customer liaison service

73

would be set up.

14 May 1983 The Minister for Veterans' Affairs

announced details of the Royal Commission

on the Use and Effects of Chemical Agents

on Australian Personnel in Vietnam. (DVA

Chronology Page 6).

XIV-101

May 1983 DVA considered that it had sufficient

14 July 1983

August 1983

8 September 1983

October 1983

information to provide proximity profiles

in relation to Vietnam veterans and did

so upon request by Determining

Authorities.

The first formal session of this

Commission was held.

Defence promulgated the Australian Joint

Service Publication - Pesticides Manual

known as JSP (AS) 705.

Minister for Veterans' Affairs announced

he had accepted interim recommendations

of the Committee reviewing the WCS,

including a recommendation that the

Service continue for at least three

74

years.

Design work commenced in DVA for data

base system to provide identification of

Vietnam veterans and historical data

collection.75

XIV-102

29 February 1984 The pilot study report. "A Report into

the Feasibility of an Epidemiological

Investigation of Morbidity in Vietnam

Veterans",76 was tabled in Parliament

by the Minister. (DVA Chronology Page 6).

2 August 1984 The Government announced that there would

be no funding for the proposed

epidemiological study into the morbidity

of Australian personnel.

10 October 1984 The Mortality Report, "A Retrospective

Cohort Study of Mortality amongst

Australian National Servicemen of the 77

Vietnam Conflict Era". was tabled in

Parliament by the Minister. 78

1 November 1984 DVA data base system for Vietnam veterans

was implemented. (DVA Chronology Page 6).

5.2 The Department of Defence

In the chronology of significant events pertaining to

chemical agents .provided to this Commission by the

XIV-103

Department of Defence, reference is made to a number of

Defence Department actions concerning chemical agents

issues. Department of Defence activities were usually in

response to some inquiry or request for information. The

chronology, at Appendix X, states that between 1980 and

December 1982:

Extensive research into files and documents was undertaken into Australian involvement with the use of chemicals both in Australia and Vietnam. Research was prompted by numerous PQ's

(Parliamentary Questions), press coverage and by the public concern on this issue. The research culminated in the tabling of the Army and Air Force Reports79 in Parliament on 9 December

1982 .

Apart from this activity the major Defence Department

involvements were:

Membership of the Inter-Departmental Committee

which produced the report, "Pesticides Used in

Vietnam Hostilities and Their Use in Australian

Agriculture: A Comparative Study",80 in May

1981.

Preparation of the nominal rolls.

Participation in the Senate Standing Committee on

Science and the Environment.

XIV-104

- Participation in limited aspects of this

Commission primarily in regard to paragraphs (a)

(g) and (k) of the Letters Patent.

Most of the initiative in dealing with the controversy was

taken by DVA which had the problem of potential claims.

Defence. Health, Primary Industry, and Prime Minister and

Cabinet all responded appropriately but on an ad hoc

basis. By contrast, in the United States the Air Force

took an initiative equal to or greater than that of USVA.

Whether this was because of the existence of the captive

and undeniably exposed Ranch Hand population or because of

the energy of Major (now Colonel) Alvin Young is not known.

5.2.1 Knowledge of Chemicals and Safety

W A A in its submission to this Royal Commission entitled,

"Conduct - Department of Veterans' Affairs",81 submitted

at Page 11 thereof:

The Department of Defence had knowledge of the dangers of chemicals used in Vietnam as shown by the following documents:

(a) "Defence Medical Services Committee, Pesticides Sub-Committee" Report. (Annexure 8 ).

(b) "A Report of the Spraying of Herbicides at First Australian Task Force", Major E.S. Holt, May 1968.82

XIV-105

(c) "Experimental Testing of Post Emergent Herbicides in South Vietnam", Mr G.A. Lugg, Department of Supply, Defence Standards Laboratories, Maribyrnong, Victoria 1968.

(d) "Herbicides Spraying at First Australian Task Force, Nui Da t. Vietnam", Mr G.A. Lugg,

Department of Supply, Defence Standards Laboratories, Maribyrnong. Victoria 1970.83

This Commission referred that submission to Defence and

invited a response.

Defence replied, inter alia:

The W A A submission states, 1 The Department of Defence had knowledge of the dangers of the chemicals used in Vietnam . . . ' . If this

statement is taken to mean the Army and the Air Force were using chemicals which, if improperly applied, could result in toxic effects being manifested, then the Department agrees with the W A A submission in that respect. But if by that

statement the W A A intends to suggest that the Department or the Armed Services knowingly used chemicals that were excessively dangerous and attempted to conceal the knowledge of their

dangers from those using the chemicals, that suggestion is rejected as being without

foundation and in fact contrary to the situation at that time.84

Defence in further answer to the W A A submission stated in

correspondence to this Commission that, "All chemicals.

whether naturally occurring or synthetic are toxic at a

sufficiently high dose level ", and thereafter gave some

examples to illustrate the fact. The Department made

XIV-106

clear to this Commission that it was aware of the dangers

associated with chemicals used in Vietnam and that it

considered that there was no real risk in the controlled

use of pesticides and herbicides. Specifically. the

Department commented:

The Department of Defence was well aware of the reported health problems and hazards associated with the chemicals used in Vietnam. Indeed it would have been negligent if it had not attempted

to collect information on reported health

problems and assess the implications. The result of assessments based on information available at the time was that the use of such chemicals in the manner recommended posed little or no threat

to health, and further that the benefits of use were real. These benefits can be summarised as of military nature for herbicides, (denial of cover) and an advantage to health for

insecticides (the control of insect-borne diseases).

In this connection the Royal Commission's

attention is drawn to the extensive compilation of safety instructions that were lodged as a Departmental submission and the frequency with which these safety instructions were revised

during the Vietnam War period in the light of both the accretion of scientific knowledge and the on site practical experience of precautions that needed to be taken.

This acquisition of safety information and its review would be a normal process for a decision regarding the use of any chemical, whether it were a drug for the treatment of epilepsy or a disinfectant for the home toilet. There can be

no guilt associated with the act of possessing the information whether positive or negative in implication. Yes, the Department knew of

potential health dangers, which were assessed to be controllable provided the safety instructions

XIV-107

were followed. It is of note some 15 years later there is still no factual evidence that shows conclusively there is a health danger in the use as specified of these chemicals. Within the historical context of the time, the Department's evaluation of possible risk was correct.

The Department of Defence rejects any implication that it suppressed or attempted to suppress information about reported health dangers of

chemicals used in Vietnam. There are two factors to consider. Firstly, the information was not generated within the Department of Defence, it came from outside. Practically all the

information was available to the public, as is evidenced by the use made of it by the public to generate media comment and Parliamentary

inquiry. The limitations to public access were associated with Departmental evaluations of the data, not with the primary data itself.

Therefore the Department had no opportunity to suppress this data, even if it so wished.

Secondly, it follows from the above that the only question to be determined is whether the

Department was negligent in not passing on

sufficiently strongly any reservations about the use of chemicals. As discussed above, the

Departmental assessment was that there was no real risk in the controlled use of pesticides and herbicides and this assessment was not suppressed.

Dealing comprehensively with Defence information regarding

the use of chemical agents and the safe handling of such

agents. Defence provided this Commission with four

submissions being:

(1) Defence documents relating to the use of

chemicals in Vietnam;85

(2) The adequacy of safety instructions for chemical

agent handling and use by Australian forces in

Vietnam;86

XIV-108

(3) The RAAF Report and classified/unclassified

extracts of known references to herbicides and

relevant pesticides;87

(4) Sources of discrepancies in personnel and health

records and statistics;88

Some of the documents which were made available to this

Commission by Defence indicated that in addition to the

particular documents referred to by WAA, as indicated

above, there were documents in existence which expressed

the concern about Agent Orange and herbicides even during

the Vietnam conflict and doubts about the safe methods of

insecticide application by Australian personnel.

Defence provided this Commission with a copy of the RAAF

Report being a Report of the RAAF's involvement with the

use of chemicals in South Vietnam.89

Defence also provided extracts from relevant files and

other documents upon which the RAAF Report is based. One

of those documents appeared as Document No. 8 of Annex B

of the RAAF Report which was an extract from a. document

entitled, "Tactical Air Support in South Vietnam" dated

October 1967 and which came from No. 1 Operational Support

Unit. An extract from that document states:

XIV-109

7 .f . Traildust

This is a C123 (PROVIDER) fitted for agricultural spraying. They are used for malaria control, strip defoliation of jungle terrain and

destruction of enemy crops. A lethal [i.e. to foliage] herbicide is used on the foliage, one aircraft can spray 14,000 metres x 300 metres. The sortie is carried out at 50 feet to 100 feet AGL (above ground level) and requires fighter escort as protection against ground fire and a FAC (forward air control) to mark the start

points for required runs.

A number of documents contained in Annex B of the RAAF

Report referred to the concerns about the possible genetic

defects related to the use of herbicides in the Republic

of Vietnam. Document No. 19 dated for the period 15

February 1970 to 14 March 1970 makes one such reference.

Document No. 18 for the period 12 January 1970 to 14

February 1970 is a Report similar to Document No. 19, but

earlier in time and covers the same subject matter.

Document No. 23 makes reference to "Herbicides in RVN. A

study of the Problem of the Possible Genetic Defects

Related to the Use of Herbicides in RVN."

There was some concern by DVA about statements recorded in

documents which were perused during the search of records

relating to the use of pesticides in Vietnam. On at least

one occasion the Assistant Secretary (Special Studies

Group) made reference to these concerns when he stated in

a minute to the Secretary90

XIV-110

... The documents include many statements,

observations, remarks and the like which would clearly be controversial but whose significance in context is not easily established from a

cursory reading of the records. For example there are statements such as:

. it is obvious that previous insecticide practice in 1 ATF is unsound.

. a lethal herbicide.

. weed killers. The unit is also holding 44 gallon drums of reglone weed killer. All

defoliation and weed killing is to be done under direct supervision of the Health Officer by a specially trained team. The dangers to soldiers in (the use of) this chemical is

considerable and the reglone should be

returned to Det 1 FD HYG COY. The toxicity

cannot be under-rated and the Task Force have had people hospitalised because of the

indiscriminate use by soldiers and officers unaware of the strict and necessary safety precautions.

. herbicide material being referred to as 'nasty stuff 1.

9. the significance and nature of such

statements can only be sorted out in a report such as that which the army staff is presently working on.

The observation such as herbicides being 1 nasty stuff1 or

the adjective 1 lethal1 used to refer to chemicals are not

of course in any way evidence of the true character or

nature of the substances referred to but merely the

opinion of the writer of the particular phrase or word.

Such references - so far as the Defence Department is

concerned - would have to be taken in the context of other

XIV-111

contemporaneous references to chemical agents. For

example. Document No. 14 contained in Annex B to the RAAF

Report, making reference to ground clearance for traildust

missions comments, inter alia, "Reguest ground commanders

emphasise to all field personnel that herbicide is

non-toxic CMM non-inflammable and completely harmless to

animal or human life". This document was dated 21

February 1969 and was extracted from 9 squadron files

having originated from 1 ATF Rear. Similarly, document

No. 12 refers to target disapproval by ground commanders

hampering herbicide operations and comments, inter alia,

"since the ground commanders must make their denial

decision based on the deployment of their troops, they

must be knowledgeable of the non-toxic nature of herbicide

as well as the procedures used to employ the fighter

escorts. "

5.3 Information Provided to Servicemen About

Repatriation Benefits and Chemical Agents Issues

A number of veterans who contacted this Commission and

discussed their knowledge of availability of Repatriation

benefits indicated that their understanding of such

benefits was deficient and that no adequate information

had been communicated to them during their period of

XIV-112

service. On the other hand other veterans who contacted

this Commission were able to inform it that they were

advised about Repatriation benefits during service. This

advice was not usually said to be particularly precise but

as healthy young men they were not motivated to obtain

details about disability benefits. Many veterans merely

felt that in circumstances where they developed some

disabilities they should be looked after by DVA.

Other veterans who were still serving soldiers contacted

the Commission and advised that they were concerned about

making any mention of Agent Orange or chemical agents

issues for fear that it would jeopardise their military

career. A number of those soldiers were due to retire

after having completed 20 years' service. It was

impossible due to the limited number of servicemen who

contacted this Commission to ascertain how widespread this

feeling was amongst serving members. Both of these issues

are dealt with below.

A. Provision of Information about Repatriation Benefits

In January 1985 this Commission wrote to the Assistant

Secretary, Information Policy Branch, Defence and asked

that he particularise what advice in regard to

XIV-113

Repatriation benefits was routinely given by Defence to

Australian personnel who served in Vietnam during their

training and service, as well as at the time of their

discharge. In addition. the Commission requested any

contemporaneous documents evidencing the guidelines for

providing such information, or instructions to provide

such information.

On 19 February 1985 the Assistant Secretary wrote to the

Commission and stated in regard to the abovementioned

inquiry:

Navy Office advises that any illnesses or

injuries encountered during Vietnam service were managed routinely and where appropriate, at Medical Boards of Survey; individuals had their compensation and Repatriation benefit

entitlements explained by the Presidents of Boards. There were no information leaflets or formal instruction covering such benefits issued

to personnel undertaking service in Vietnam.

Air Force Office advises a similar situation to that described above. Their records do not indicate that any formal briefings on

entitlements was provided. Ex-Vietnam members still serving are adamant that no published or written advice was available. It was not

recorded that Vets' Affairs staff was on medevac or other flights. Thus as far as the RAAF is

concerned its personnel were not generally advised of Repatriation benefits arising from their Vietnam service.

Army Office advises that from files that have been located it has ascertained that information on Repatriation benefits was provided in three ways.

X I V - 114

AHQ General Staff Instruction Number 8/65: Preparation and Despatch of Forces Overseas, included as one of its Sections some basic

information on Repatriation and Compensation Benefits ....

Starting in 1967. and coincident with the build up of Australian military forces in Vietnam arrangements were made with the Repatriation

Commission for the supply of 500 copies of a

pamphlet. In 1969, the Commander, Australian Forces, Vietnam proposed to issue the

Repatriation Department brochure, "Repatriation Benefits for Special Overseas Service", to all members prior to returning to Australia.

Arrangements were made for an initial supply of 10,000 pamphlets with 4,00 (sic) additional pamphlets to be supplied every six months. Some other proposals raised were found to be likely to cause administrative difficulties and were not proceeded with. . . .

Army Routine Order No. 521 dated 23 March 1970, contained a model notice: Repatriation Benefits, and instructed that a copy of this notice was to be placed on unit notice boards. . . .9- * -

B . Information Provided Concerning Agent Orange and

Chemical Agents Issues

On 7 January 1985 this Commission advised Defence that it

was aware that certain battalion bulletins contained

references advising personnel on topics such as, "The

Agent Orange Issue". The Department was asked to identify

and provide copies of all publications issued by that

Department providing information to personnel in regard to

Agent Orange or other chemical agent issues.

XIV-115

On 19 February 1985 the Assistant Secretary answered this

inquiry as follows:

Navy Office advises that RAN Personnel in Vietnam were under the administrative and operational control of the parent formation to which they were attached. Navy Office is not aware of any

records which fit the description of your request.

Air Force Personnel and Health Service Branches could provide no information as to whether RAAF members were advised on such matters via

bulletins. A check of all copies of "RAAF News" covering the Vietnam period has also failed to discover any items on Agent Orange, chemicals or Repatriation benefits. The consensus of opinion

is that no information was given to RAAF members in this manner.

Army Office is still researching this question. Some documents that may be relevant have been located at the Australian War Memorial and I shall forward them as soon as the copies become available.

Subsequently. and following the Army Office search of

references in the Army Report to routine Army orders and

examination of routine orders. the Department provided

this Commission with copies of the relevant routine orders

discovered. The Commission was advised that there were

some ll relevant references in the Army Report. The

references cited by the Defence Department dealt with

safety measures and precautions but did not specifically

address any information concerning the issues or concerns

about possible human health effects following exposure to

herbicides or other chemical agents.

XIV-116

Notwithstanding the Commission's advice to Defence that it

was aware of certain battalion bulletins informed serving

personnel on topics such as the "Agent Orange Issue", no

details of such publications were provided to the

Commission by Defence. Accordingly, this Commission is

not aware of the extent to which information concerning

such issues was provided to members of the Forces. The

battalion bulletins may well have been from non-official

sources, but the text is clearly based on official texts.

Two copies of bulletins issued to 11 Supply Battalion in

July 1980 were supplied to this Commission by a veteran.

The bulletin of 21 July 1980, under the topic, "Agent

Orange Issue", referred to the growing controversy about

the Agent Orange issue and the concern that the effects of

Agent Orange or other chemicals may have on the health of

veterans and that of their families.

The bulletin pointed out that such effects were not clear

and for this reason various studies had been made and were

still in progress in the United States. In addition

members were advised that the Australian Government

commissioned a comprehensive and expert study of the

possible effects of Agent Orange and other herbicides on

Australian Vietnam veterans because it was concerned about

XIV-117

their welfare and concerned to establish if alleged

effects were likely to have been harmful. Details of the

study announced by the Minister for Veterans' Affairs in

Parliament on 31 January 1980 were provided and

involvement of the Department of Defence in that study was

outlined.

Some reference was also made to the suggestion that a

judicial inquiry should be undertaken instead of a

Commonwealth Institute of Health study. In particular

regard to health effects the bulletin stated:

In his recent statement in Parliament, the Minister for Veterans' Affairs concluded by offering the following advice: '... those

veterans who feel they have been affected by herbicides or chemicals during their service in Vietnam should lodge a claim with my Department so that medical examinations can be carried out

to establish a diagnosis and to make

recommendations to the independent authorities which make the determinations on whether any disabilities found could be linked with their service in Vietnam ... if, as a result of the

study (by the then Commonwealth Institute of Health), we find information which suggests that there is a link between these herbicides and human health, those applications will be

immediately taken up and reviewed in light of that information'.

12. This advice applies as much to serving

members of the Forces who were in Vietnam as to those who have since left the Forces.

XIV-118

This clearly reflects official Defence policy of July 1980.

A full copy of the text of that aforementioned publication

is contained at Appendix XII hereof.

The 11 Supply Battalion bulletin of 18 July 1980 (Appendix

XIII) also addressed the "Agent Orange Issue" and advised

serving officers or soldiers who believed that their

health had been jeopardised through exposure to herbicides

that it was their duty to report to a service medical unit 9 2 for treatment. In addition they were advised that it

was their right to advise DVA if they considered their

family or dependant's health had been impaired as a result

of exposure to herbicides. Referring to Department of

Defence policy on this issue the bulletin stated:

Indeed as a matter of policy, for all levels of the Army's command structure, when a member chooses to approach the Department of Veterans' Affairs, the member is to be assured that his Army career prospects will not be jeopardised by

the act of making a representation.

Despite the opinion held by a very small number of

veterans who contacted this Commission that their military

careers would be jeopardised by the mention of Agent

Orange or chemical agents issues the expressed

Departmental policy as evidenced above was to the contrary.

XIV-119

The Commission has searched for and found no evidence that

a claim of chemical injury or reference to Agent Orange

has harmed any military career.

5.4 Department of Veterans' Affairs

5.4.1 DVA Activities

In its chronology of developments DVA made reference to

particular initiatives in regard to the chemical agents

issues and the health of Australian personnel.

Surprisingly, some initiatives were not nominated. For

example, the introduction of chemical claimants medical

examinations was not referred to nor was the commencement

of Proximity Profile Report dissemination.

Some aspects of passing concern to chemical claimants and

Vietnam veterans were covered by the Task Force on Claims

and Appeals. A number of particular Departmental

activities and responses to chemical agents issues are

examined in Section B of this Chapter but for the sake of

a more complete understanding during that discussion some

information concerning particular Departmental activities

and conduct is made in this sub-section. In particular

the following subject matters are discussed below:

XIV-120

Chemical claimant medical examinations;

- Proximity Reports;

- Acute-care hospital admission;

- The "flooding" technique;

- Information services specifically for Vietnam

veterans or chemical claimants;

- Implementation of Senate recommendations;

- DVA Task Force on Claims and Appeals;

- DVA co-operation with WCS;

- Data collection for Vietnam veteran issues.

5.4.2 Chemical Claimant Medical Examinations

In Section B particular reference is made to medical

examinations and opinions in respect of alleged

chemical-caused disabilities. A number of matters raised

by Vietnam veterans are referred to and their cases

XIV-121

examined. Information provided by DVA is considered and

certain conclusions are drawn. The Acting Chief Director,

Medical Services, Dr P. Misson, provided information which

was conveyed to this Commission indicating that:

About April 1980 the Chief Director, Medical Services instructed all State Directors, Medical Services to nominate one or two DMOs to deal

specifically with chemical related claims.

Initially during 1979 it became apparent that ex-Vietnam veterans were associating exposure to Agent Orange with their disabilities. At that time information on that chemical was limited,

the claims were of low volume and it was

considered that such claims were within the purview of all Departmental Medical Officers' regular duties. As the issues became more

complex subsequently and the volume of reference material increased it was considered wasteful of resources to have all DMOs keep abreast of the literature.

DVA was not able to provide this Commission with any duty

statements or other particular documents which could

identify instructions given to those nominated DMOs. The

principal activity of the nominated DMOs was the

preparation of s.48 opinions following medical

examinations. On occasions, nominated DMOs also performed

medical examinations.

As concern over chemical agents increased, DVA responded

by introducing a different medical examination for

XIV-122

chemical claimant Vietnam veterans. The difference was

mainly in the history taking: exposure to chemicals by

self-report was included. By July 1980, DVA had

formulated a specific Form (Form D2120) which was used

during medical examinations of a Vietnam veteran who

claimed exposure to chemical agents as a possible cause

for his alleged disabilities in his claim form or

alternatively who had claimed disabilities which led

Departmental officers to make inquiries to ascertain

whether the veteran was concerned about chemical agents.

If a concern were expressed following such inquiries. the

veteran became a chemical claimant and was given the Form

D2120 medical examination.

A copy of the Form D2120 medical examination is contained

hereto at Appendix XIV. Basically, the form of medical

examination does not differ from the usual form of

examination given to all veteran claimants, with the

exception that additional specific tests particularised in

section B of the examination form are given to all

claimant veterans. A number of other specialist referrals

and particular tests are available to veterans on an

as-needs basis and in a manner which does not differ from

the normal prescription of such examinations and

additional tests following routine preliminary diagnoses

upon initial medical examinations.

XIV-12 3

In addition to the medical examination given to chemical

claimants, the veterans are asked to complete, usually

with the assistance of a medical officer, a medical

history sheet and provision is made to cover details of

veterans' childrens history if appropriate. A history of

any alleged exposure to chemical agents was also obtained

from veterans.

At the date of this Report, DVA was continuing to conduct

the Form D2120 medical examinations and to obtain the

information about self-reported exposure and veterans'

family history.

At the outset, the concept was to collect exposure data

and family history data as well as disability data in a

statistical form for some useful analysis. That analysis

never occurred, and despite the realisation that the

nature of the information collected was not in a useful

form the material was still collected from veterans.

It was realised that self-reporting from a class of

self-selected chemical claimants would not allow for

proper epidemiological evaluation.

Veterans were thus led to believe that their examination

was "special", and that valuable data was being collected,

when neither was true.

XIV-124

Despite the introduction of DMOs nominated to deal

specifically with chemical agents issues, this Commission

observed that, on occasions, the chemical claimants

medical examination was given to veterans and a s . 48

opinion prepared by DMOs but neither the examining DMOs

nor the opinion writer was a DMO nominated to deal

specifically with chemical claims. In one particular

instance, the Department - at administratively high levels

- sent a doctor to the Northern Territory specifically to

investigate chemical claims. That doctor subsequently

prepared s . 48 opinions at least in regard to some of those

examinations conducted. The particular doctor was not in

the schedule of doctors designated by DVA to deal with

chemical-related claims.

Prima facie, the introduction of a particular chemical

claimant's medical examination and the collection of

specific data were substantive responses to chemical

agents issues. In reality the medical examination was not

significantly different from the routine examinations

previously given, and the data collected were not of any

particular value; but even once this was realised no

action was taken to halt the activity. DMOs interviewed

by this Commission were unaware of precisely what action

was taken by the Department in respect of the data

collected and knew merely that the information was

forwarded to Canberra.

XIV-125

5.4.3 Proximity Reports

Since May 1983, the Special Studies Group of DVA have

prepared reports called "Proximity Reports". The

development of Proximity Reports arose following the

growth of the Agent Orange issue and decided cases such as

that of Colin Simpson (which was determined in February

1982). Proximity Reports are a summary version of

recorded information linking a veteran's unit or sub-unit

location with some documented accounts of the use (or

potential for use) of chemical agents. They are not„ nor

do they claim to be, a full and accurate summary of the

use of chemicals in South Vietnam.

The Department informed this Commission that:

The purpose of a [Proximity] Report is to

summarise the recorded information available of a veteran's nearness to chemical spraying locations during the period of his service in South

Vietnam. The endeavour is to provide an analysis not elsewhere available in published documents and to relate data specifically to an individual veteran. . .. The object of a Proximity Report is to establish potential proximity rather than make any assessment of actual exposure. ... The

judgement as to what a veteran's "proximity" means in relation to "exposure" is outside the scope of the report. It is a matter for the

Determining Authorities.

XIV-126

Proximity Reports are prepared by DVA following a request

for such information by a Determining Authority. The

number of Proximity Reports prepared by the Department as

at 31 October 1984 was 292.

The Proximity Reports given to Determining Authorities

deal with topics such as Ranch Hand defoliation flights,

crop destruction flights, base area vegetation control,

indirect exposure to US herbicides, and exposure to

insecticides. The Proximity Report document itself does

not explain its own nature and purpose clearly, and does

not highlight the fact that the information contained in

Proximity Reports may be incomplete.

W A A was critical of the nature and content of Proximity

Reports and considered in particular that the Department

in preparation of such Reports failed adequately to take

into account matters such as wind drift and volatilisation

of chemicals as well as omitting anecdotal information

concerning the use of chemicals provided by veterans and

"selectively ignoring" what W A A considered to be relevant

information contained in the Army Report. These

criticisms by W A A are dealt with later in this Chapter.

XIV-127

A number of documents are routinely referred to in

Proximity Reports and form the basis of the exposure

information. Those documents include the HERBS tape, the

Senate Standing Committee on Science and the Environment

Report, the Army Report and other documents. W A A was

also critical of the fact that Proximity Reports gloss

over information regarding some chemicals and concentrate

too heavily on Agent Orange. The First Assistant

Secretary, Special Studies Group, DVA, Mr E.D. Letts, did

comment before the Senate Standing Committee in an answer

to a question by Senator MacGibbon, that his major concern 9 3 was Agent Orange. Such comment was made on 8 December

1981, some 18 months before the preparation of Proximity

Reports.

The format of Proximity Reports has not changed since

their introduction in May 1983 although the content of the

Reports has been continually upgraded as the Department's

knowledge concerning use, procurement and supply of

chemical agents both in the Australian sphere and as a

result of the United States operations has increased.

The HERBS tape has been updated by the United States Army

Agent Orange Task Force and the "Services HERBS tape" - as

it is now called - comprises a much more detailed summary

of herbicide spraying activities throughout the Vietnam

conflict.

XIV-128

Once a Proximity Report is requested by a Determining

Authority and the report is forwarded by the Department to

that authority a copy of the report is also forwarded to

the veteran who is given an opportunity to comment on that

report within a 28 day period. On occasions the widows of

veterans will be invited to comment. At the time of

writing this report the Department had advised the

Commission that on some 27 occasions a Determining

Authority had informed the Department of a veteran's or

widow's comments and the Department had been asked to

indicate whether such comments required amendment to the

Proximity Report.

Although Proximity Reports are not and do not purport to

be a full and accurate summary of the use of chemicals in

Vietnam, or of the exposure of an individual veteran, the

format and structure of the reports is such that veterans,

and particularly widows of veterans, consider the document

to be a comprehensive and authoritive statement dealing

with a veteran's possible exposure to chemical agents in

Vietnam. Without consulting source documents referred to

in Proximity Reports, veterans and Determining Authorities

must necessarily be left uninformed about particular

chemicals to which a claimant may possibly have been

exposed. For example, unless reference is made to the

XIV-12 9

appropriate annexure contained in the Array Report, a

claimant and a Determining Authority will have no

knowledge of the various insecticides - shown in Annex A

and Annex B to Chapter 2 of the Army Report - to which a

veteran may have been exposed.

DVA has expended a great deal of time, money, and effort

on the task of collecting data and preparing almost 300

Proximity Reports. The information contained in Proximity

Reports could in some circumstances place beyond any doubt

that a veteran's unit or sub-unit was "proximate" to

particular chemicals. Indeed in answer to particular

allegations made by WAA, the Department commented:

To date, 273 Reports have been reguested and completed. Of the 273 veterans covered in these Reports, 4 7 veterans have been reported on as proximate to herbicide flights, ie within 5 km.

Of these veterans 28 were definitely within 5 km of the herbicide flight. The remaining 19 were included in this category as the sub-unit in which they served could not be established. The

reports also guote the Senate Committee belief that the majority of veterans are exposed to insecticides while serving in South Vietnam.

The Proximity Reports do not of themselves do other than

raise a question as to an individual's potential exposure;

they may indicate a likelihood that an individual was not

proximate to chemicals but they do not completely displace

the possibility that he was nor, if so, to which.

XIV-130

5.4.4 Acute-Care Hospital Admission

The DVA chronology. Appendix IX, mentioned that on

14 January 1981 the then Minister for Veterans' Affairs,

Senator Messner. announced that free hospital treatment

would be available in Repatriation Hospitals to veterans

who needed urgent hospitalisation even though the

complaint may not have been related to military service.

The Repatriation Commission Annual Report 1980-81 at Page

7 particularised the conditions upon which such free

treatment would be provided:

Medical investigation indicates that the

condition requires urgent treatment and it is appropriate to provide the type of care necessary as an in-patient; and

there is spare bed capacity in the Repatriation Hospitals. Admitting Medical Officers will judge the necessity for urgent treatment.

This was further extended for Vietnam veterans on 15

February 1982 when the Minister announced broader

provisions to cover

. urgent treatment in country hospitals;

XIV-131

. free emergency treatment in Repatriation General

Hospitals for the wives and children of Vietnam

veterans if the hospitals had facilities to treat

them.

Vietnam veterans admitted to Repatriation General

Hospitals (RGHs) or other hospitals in accordance with the

policy stated above are admitted as civilian patients.

With the introduction of Medicare, the free hospital

admission of Vietnam veterans, and the fact that they are

admitted and treated as civilian patients, would make this

particular health care facility no different from the

treatment facilities available to all civilian patients.

This Commission sought particular details from DVA

concerning the number of veterans who had made use of this

health care facility, and was advised that a total of 496

admissions had been recorded to February 1983.

5.4.5 The "Flooding" Technique

One particular treatment program specifically aimed at

dealing with problems of Vietnam veterans was of

"flooding" as instituted at Greenslopes RGH, Brisbane. A

discussion about the effectiveness of this particular

XIV-132

technique and its suitability for the treatment of

particular Vietnam veterans is dealt with in Chapter IX.

5.4.6 Information Services Specifically for Vietnam

Veterans or Chemical Claimants

DVA does not discriminate in the way veteran claimants are

treated. No distinction is made between Vietnam veterans

and claimants of other wars or conflicts or chemical

claimant Vietnam veterans in regard to the information

provided to them.

Vietnam veterans are able to peruse a pamphlet entitled,

"Repatriation Benefits (Special Overseas Service) Act",

which relates to their particular eligibility, but

otherwise the general range of pamphlets explaining

entitlement and benefits is available to Vietnam veterans

as it is to other veterans.

In the United States, the Veterans' Administration

introduced information publications specifically dealing

with Agent Orange, and dealt with the issues associated

primarily with that herbicide. No similar information

publications were prepared by DVA for Australian

veterans. As was noted earlier, the Department of Defence

XIV-13 3

at least at one battalion level provided some information

to its members concerning the Agent Orange issue.

5.4.7 Implementation of Senate Recommendations

94

The Senate Report made a number of recommendations

which specifically concerned DVA. This Commission asked

the Department to advise which of these recommendations

had been implemented by the Department and to specify the

precise action taken as well as the time of

implementation. The Department advised as follows:

SENATE STANDING COMMITTEE ON SCIENCE AND THE ENVIRONMENT - GOVERNMENT RESPONSE TO FIRST REPORT ON

PESTICIDES AND THE HEALTH OF AUSTRALIAN VIETNAM VETERANS

Recommendations 8 through 18 of the above report were to be dealt with by the Department of

Veterans' Affairs. Details of action taken by the Department on these recommendations are set out individually below.

Recommendation 8

That the review of the Repatriation

legislation include an examination of the way in which the Determining Authorities have been applying the evidentiary

provisions of the legislation. The review should also examine whether the Determining Authorities have been relying too heavily on information provided by departmental sources.

XIV-13 4

Action Taken

Τη the Government's response to this

recommendation of the Senate Committee, it was pointed out that the Committee's objective could not be achieved simply through legislation. It involves more the guestion of the correct

application of the legislation and of the law generally.

When the investigation of a claim under the

previous determining system was completed (ie the system prior to 1 January 1985) all relevant material, including the files of the claim, was forwarded to a Repatriation Board for

determination. The material on the files

included not only matters that arose out of the Departmental investigation of the claim, but also statements and material submitted by the claimant in support of the claim. It was pointed out to

the Senate Committee that there is a reluctance on the part of some Veterans and claimants and their advisers to supply information in their possession at the initial stages of

determination. Often, this material was not provided until the last stage of review on the merits by the Repatriation Review Tribunal.

Steps have been taken to try to ensure that

determining bodies under the Repatriation system deal correctly with the evidence and material before them. In 1982, a re-structuring of the Department of Veterans' Affairs took this need

into account and. with the establishment of the Legal Services Division, decisions of

Repatriation Boards and of Repatriation

Commission delegates were monitored to ensure that they were correct in law. The Division also co-ordinated regular meetings of Repatriation Board members and of Repatriation Commission delegates to discuss decisions of the Courts and

of the Administrative Appeals Tribunal. In addition, seminars were conducted by consultant law lecturers from the Australian National University to ensure a proper appreciation of the

relevant Court decisions and a proper

interpretation of the law.

XIV-13 5

With the introduction of the new determining system from 1 January 1985, following the

enactment of the Repatriation Legislation Amendment Act 1984, a top structure

re-organisation of the Department was effected to ensure that the administrative machinery matches the legislative reforms. The role of monitoring decisions of the delegates of the Repatriation Commission to ensure their adherence to the law has been transferred to a new Benefits Division which will continue the programs of training,

conferences and seminars which had previously been commenced by the Legal Services Division. As part of the reform under the new determining system, a claimant will have the right to request an interview with the delegate of the

Repatriation Commission who is determining his or her claim. Delegates may request a claimant to attend for an interview. These provisions have been enacted in order to obtain, and to give to a claimant the opportunity to submit, evidence which may be in the possession of the claimant.

A further reform in the new system provides that, where a claimant is unsuccessful with the claim in the first instance, and is seeking a review by the Veterans' Review Board of the delegate's

decision, the Department is required to prepared under section 107VE, and to furnish to the

claimant, particulars of the evidence which was before the delegate of the Commission who

determined the claim in the first instance. This will give an opportunity for the claimant to consider the evidence and to determine whether

further evidence should be submitted to the Veterans' Review Board. It is hoped that these changes will enable all relevant evidence to be brought before an earlier level of determination,

leading to resolution of the claim, rather than that these matters be postponed to the final level of appeal.

The Department and the Repatriation Commission will, through the newly organised Benefits Division, monitor decisions by delegates of the Repatriation Commission to see that action is

taken to bring together all relevant evidence in the first instance and to ensure that decisions are made correctly and in accordance with the law.

XIV-13 6

Recommendation 9

That the Department of Veterans' Affairs fully investigate all claims made in

evidence to the Committee dealing with the alleged rudeness and unco-operative

attitudes of its staff to Vietnam Veterans. If these claims are found to have substance, staff training policies should be reviewed as a matter of urgency.

Action Taken

These claims were fully investigated by the Department in December 1982/January 1983. They were unable to be substantiated. The details of the investigation and a summary are attached (A).

Efforts to improve client relations have been made in many areas of the Department.

Initiatives include the 008 telephone service, the priority accorded to FOI requests and the introduction of a Customer Liaison Service. In

the case of the latter, a senior officer is being appointed in all States to the position of

Customer Liaison Officer to provide clients and client groups with ready access to information assistance and an effective and informal channel for complaint.

Recommendation 10

That the staff resources of the Department of Veterans' Affairs be increased so that more staff can be allocated to process

claims and to personally attend to Veterans' enquiries.

Action Taken

In the 1984/85 Budget the Government allowed for an increase of 127 in the Average Staffing Level capacity for claims processing and the new

determining system. This number does not include allocations to the new Veterans' Affairs division of the Administrative Appeals Tribunal, which may not be known until March 1985.

XIV-137

The Department's greater client orientation, apparent with such initiatives as the 003 system and the Customer Liaison Service, has seen more resources diverted to answer Veterans'

enquiries. The telephone service, introduced in March 1984. which provides for enquirers to call for information on the Repatriation system and

related matters from country areas for the cost of a local telephone call, has been particularly well utilised.

Recommendation 11

That the Department of Veterans' Affairs implement a reverse-charge telephone service for Veterans living outside the metropolitan area to facilitate access to advice from the Department regarding the Repatriation system.

Action Taken

The 008 telephone system has been in full use since March 1984. On average, only 8% of

enquiries need to be referred to functional areas of the Department and the enquirers called back, which is a demonstration of the system's

effectiveness. A peak inquiry time was in

October 1984 after assets test forms had been distributed. An estimated 10,000 Veterans and War Widows used the service to that point.

Statistics on 008 calls are taken according to the category of question, eg benefits, legal etc., but not on the personal details of the

caller. Hence, it is not known how many callers are Vietnam Veterans.

Recommendation 12

That the Department of Veterans' Affairs give high prior to improving the knowledge of local medical officers regarding the Repatriation system and related matters,

particularly the physical conditions of war service.

Action Taken

A comprehensive "LMO Newsletter" is prepared quarterly by the Department and distributed to

XIV-13 8

local medical officers. The Newsletter is to be updated from January 1985 to make it more

informative and attractive. in line with the Department's moves to improve information programs. Sample copies of previous editions are attached (B).

The Newsletter addresses a broad range of issues relevant to the Department and LMOs. The January edition will include detailed information about the new Repatriation determining system.

Recommendation 13

That adequate staffing levels at the Vietnam Veterans' Counselling Service be provided to enable the collection and publication of data on: the services provided; the number

of clients and the types of problems

presenting; and the outcome of the various treatment options available at the centres.

Action Taken

A data collection system providing information on the usage of the service was instituted in

January 1982 at the commencement of the service. An example copy is attached (C) . The collection system outlines basic problems before clients, the various patterns of use of the counselling

centres and a brief analysis of the outcome of counselling services. It is expected that this system will be reviewed and extended with the appointment of a professional director and

reorganisation of the service on a permanent basis as approved by the Minister.

Recommendation 14

That serious consideration be given to extending the Vietnam Veterans' Counselling Service beyond 31 December 1983.

Action Taken

Upon receiving the report of the Committee of Review of the counselling service under the Chairmanship of Professor Waterhouse. the

Minister accepted the recommendation that the

XIV-13 9

service be made permanent and that the officers be engaged as permanent public servants. The Minister made a public statement on behalf of the Government during the Budget Sittings in 1984. Copy attached (D).

Recommendations 15 & 16

That the Department of Veterans' Affairs maintain statistical data relating to Veterans serving prison sentences.

That the Department of Veterans' Affairs approach the various State prison

authorities to secure access to the W C S for Vietnam Veterans serving prison sentences.

Action Taken

The Acting Prime Minister (J.D. Anthony) wrote to the State Premiers on January 10 1983, suggesting the establishment of a formal mechanism for Vietnam Veterans in prison to have access to the WCS. The States agreed to facilitate access and

there have been no difficulties in gaining

access. Regular contact takes place between Counsellors and Veterans in most States by

arrangement with the prison authorities.

For various reasons the number of contacts

between the W C S and Vietnam Veterans is

difficult to calculate. A rough estimate has yielded a figure of 6,000. Because only small overall numbers are known to the Centres, the difficulties involved in collecting accurate

statistical data on Vietnam Veterans in prison would be great.

However the Administrator (WCS) is considering the feasibility of people entering prisons being asked whether they are Vietnam Veterans. This could heighten the knowledge and potential effectiveness of the WCS.

Recommendation 17

That the proposed remodelling of the

Repatriation claims system be undertaken as a matter or (sic) urgency.

XIV-140

Action Taken

The new Repatriation processing and determining system came into operation on 1 January 1985.

The new system came about as a result of the

Government's acceptance of most recommendations of the Administrative Review Council report and the subsequent passage of the Repatriation Legislation Amendment Bill. This new system

represents a thorough overhaul of the previous determining system. The new arrangements are outlined in the attached pamphlet (E).

Recommendation 18

That the Department of Veterans' Affairs review and upgrade its data collection system and also complete the computerisation of its manual indexes.

Action Taken

The Department has established a special task force to undertake the data collection associated with the expansion of the existing computerised Client Data Base to hold additional client

information, including epidemiological details, for the Vietnam Veteran population. This data base structure is now available for the inclusion

of similar details concerning other groups of the Department's client populations.

An external consultant study is currently being conducted of the Department's future data

processing direction. The Department will be using the findings of this study to formulate its Systems Strategic Plan. This Plan will cover the Department's information requirements and methods

by which this information can be more readily manipulated to meet specific requests.

XIV-141

5.4.8 DVA Task Force on Claims and Appeals

The Repatriation Commission Annual Report 1983-84

commented at Page 55:

In May 1983 the Repatriation Commission decided, with the approval of the Minister for Veterans' Affairs, to establish a Task Force on Claims and Appeals to investigate possible administrative

factors contributing to delays in processing of claims and applications for benefits.

The Commission recognised that in recent years veterans had been inconvenienced by long delays in finalising disability pension claims. In

addition to the streamlining of the Repatriation determining system and legislative initiatives, there was a need to revamp the administrative mechanisms by which claims for pensions were processed.

Factors contributing to the problem were the large increase in the level of claims - which has not been accompanied by an adjustment of staff resources; the increasing complexity of the claims investigation and determining process because of the lengthening time since the wars; new interpretations by courts of law; and a greater tendency for individuals to lodge 1 ambit1 claims covering a diverse range of incapacities.

The Task Force reported to the Minister and the

Repatriation Commission towards the end of 1983 . and

listed a number of managerial, operational, procedural,

training, and resource problems in the administrative and

medical areas.^

Although the Task Force on Claims and Appeals was not

specifically examining aspects of the Repatriation system

XIV-142

peculiar to Vietnam veterans many of the recommendations.

if accepted, would have significant influence on the

handling of Vietnam veterans claims as well as those of

other claimants.

An implementation unit was established to co-ordinate all

of the proposed administrative and legislative changes to

the Repatriation processing and determining systems

(Repatriation Commission Annual Report 1983-84 at Page

55) .

The principal change has been to introduce a Team System

to every State Branch Office. The team comprises

administrative officers, a DMO and a Determining Officer.

Another recommendation under consideration emphasises

greater reliance on, and acceptance of, private medical

practitioners in more complex matters, and to obviate even

a reference to doctors in simple matters.

5.4.9 DVA Co-operation with W C S

Reference is made in the following section to the

establishment and operation of the WCS. The Repatriation

Commission Annual Report 1981-82 at Page 19 commented:

XIV-143

A limited counselling service for Vietnam

veterans was established in January 1981, using existing Departmental social workers as contact points. During 1981-82 it was decided to

establish an expanded service which would operate in special centres usually located outside the Department. A Committee was formed to advise the Minister for Veterans' Affairs on the

establishment and operation of the service.

That Committee - known as the National Advisory Committee

- is referred to in greater detail in the following

section.

From the outset the W C S strove to attain an identity

separate from DVA, although for financial and

administrative purposes it came under the umbrella of DVA.

Repatriation Commission Annual Reports, which are of

course the reports detailing the activities of the DVA

throughout the year, usually devote some portion to the

operation of the W C S . However, there is no particular

working relationship or liaison with the W C S and the

general operations of DVA. This Commission was informed

of an exception whereby the Senior Counsellor of the

Parramatta W C S attended the New South Wales Office of DVA

in June 1984 and gave a number of seminars concerning the

operation of the Counselling Service and particular

problems of W C S clients. This seminar was aimed

XIV-144

partially at increasing the knowledge of DVA staff in

regard to the Vietnam veteran. This awareness had the

two-fold benefit of enabling DVA staff to understand

Vietnam veterans a little better. Knowledge of the work

of the W C S enabled DVA staff to advise appropriate

Vietnam veterans of the availability of that facility.

Although there is no general Departmental policy aimed at

educating staff about the functions and services of the

W C S , this Commission believes that an improved rapport

between RGH and the W C S has developed particularly in the

last year. Admissions to RGH psychiatric facilities are

being more easily co-ordinated since liaison between the

W C S and those institutions has developed.

5.4.10 Data Collection for Vietnam Veteran Issues

The Senate Standing Commitee on Science and the

Environment made certain recommendations which led DVA to

begin compilation of a comprehensive data base on veterans

with whom it had contact.

The Department's data base facilities now encompass a wide

area.

XIV-145

Proximity Reports rely upon major data collected by DVA

although that particular information is not contained in

any central computerised system for information retrieval.

At the time the Senate Standing Committee made its

investigations, the DVA system was seen to be one which

was not significantly geared to enable identification of

Vietnam veteran claimants. The system was

non-differential and did not distinguish between

servicemen by conflict. As is explained in Section B of

this Chapter the Department went to considerable lengths

to identify all Vietnam veteran claimants.

Following this identification. DVA took further steps to

identify common claims for disabilities made by veterans

and illnesses suffered by them. It was confronted with

the problem of identifying and recording disabilities

which in fact may have been the same although they were

descriptively referred to in a different fashion by a

diagnosing doctor. It was necessary to ensure that

similar kinds of disabilities were recorded on DVA's

computer by references which enabled them to be recalled

and placed in the same category if appropriate. After

conducting a test survey, DVA developed a system whereby

XIV-146

"unique disabilities" were identified, and subsequently

all recorded disabilities of Vietnam veterans were

reclassified in accordance with those unique disabilities

by reference to ICD codes.

The central data base, which was still being added to at

the time of this Report, enabled DVA to extract material

in regard to Vietnam veteran claimants in certain subject

areas. For example, information relating to "cancer" - or

particular cancers such as "lymphomas" - could be

extracted; as well the system was being geared to enable

information retrieval on other topics by reference to

identifiers such as "toxin" which would enable analysis of

claims for or diagnosis of chloracne, porphyria cutanea

tarda etc.

Using its central data base. DVA was able to supply this

Commission with particular information concerning the

mortality of Vietnam veterans, lymphoma cancer incidence

and, amongst other things, the number of chemical

claimants who made claims against the Department.

There were approximately 1.850 chemical claimants recorded

on the Department's central data base. Those persons were

identified as chemical claimants following the fact that

XIV-147

they mentioned exposure to chemical agents in their

original claim form, or subsequently expressed concern

about a possible causal connection between their claimed

disabilities and exposure to chemical agents during a

medical examination or some other contact with the

Department. That particular data base does not yet

comprehensively identify every Vietnam veteran who has

contacted the Department or such a veteran who may have

been concerned about chemical agents as a possible cause

of his disabilities. Particular reference is made to the

chemical claimant's data base and chemical claims medical

examinations in Section B of this Chapter.

6. DEPARTMENT OF HEALTH. COMMONWEALTH INSTITUTE OF HEALTH

AND AUSTRALIAN VETERANS' HEALTH STUDIES

The first significant involvement of the (Commonwealth)

Department of Health which was of concern to Vietnam

veterans' health and their potential exposure to chemical

agents in Vietnam was that Department's participation in

the 1981 Inter-Departmental Committee Report entitled,

"Pesticides Used in Vietnam Hostilities and Their Use in • Q 6

Australian Agriculture: A Comparative Study".

XIV-148

CIH - formerly called and now renamed the School of Public

Health and Tropical Medicine - at the University of Sydney

was asked in 1981 to explore the feasibility of a case

control Birth Defects Study concerning children of

Australian personnel. This led to the Birth Defects

97

Study.

The Australian Veterans' Health Studies was a group

previously called the Australian Veterans' Herbicides

Studies. In 1980 it became the name for investigations

conducted by a study group set up within the Commonwealth

Institute of Health (following DVA requests) for the

purpose of investigating the possible health-related

effects of herbicide exposure in Vietnam on Australian

veterans and their families. Subsequently the

investigation was to extend to all health problems.

whether said to be related to herbicides or not.

The Birth Defects Study, a case control study of

congenital anomalies and Vietnam service98 was presented

to the Minister for Veterans' Affairs by the Director of

Studies, Australian Veterans' Health Studies, on 24

January 1983. The Mortality Report of the Australian

Veterans' Health Studies was presented by the Director of

the Commonwealth Institute of Health of 7 September 1984.

XIV-149

A Pilot Study Report into the feasibility of an

epidemiological investigation of morbidity in Vietnam

veterans100 was prepared by AVHS and presented to the

Minister for Veterans' Affairs by the Director of Studies

AVHS on 1 July 1983.

The library and staff of AVHS were made freely available

to this Commission and their help at all times was most

valuable.

XIV-150

SECTION B

SPECIFIC SUBMISSIONS ON BENEFITS AND TREATMENT

"That is the way the world ends.

not with a bang, but a whimper."

T.S. Eliot

The Hollow Men (1925)

XIV-151

SECTION B

SPECIFIC SUBMISSIONS ON BENEFITS AND TREATMENT

7. INTRODUCTION

Paragraph (c) of this Commission's Terms of Reference

requires it to inquire into:

The operation and administration of the

Repatriation Act 1920. the Repatriation (Special Overseas Service) Act 1962 and any other relevant Acts, as applicable to claims by Australian Personnel of chemical-caused disabilities.

Early in the life of this Commission there were

discussions between those assisting, WAA, DVA officers

and ministerial staff. It was agreed that this segment of

the Commission's inquiry would be dealt with by

submission, counter submission and file examination at

this Commission's discretion.

This agreement was made in the context of the Toose

Report, the DVA Task Force on Claims and Appeals, the W.D.

Scott Departmental Evaluation Study and the Brand Review

of the RGH system. Time and cost considerations were also

XIV-152

relevant. For example, to deal with the complaints made

by individuals both directly and through the W A A in a

thorough forensic way would have occupied more than a year.

Accordingly this section of the Inquiry has been less

rigorous than one would expect from a Royal Commission.

Nonetheless, the Commission is confident in its

conclusions.

Apart from the concerns which Vietnam veterans and their

families have expressed concerning Agent Orange itself, no

other topic has generated such vocal criticism as the

conduct of the Department of Veterans' Affairs (DVA) in

respect of Vietnam veterans claims. During Informal

Sessions throughout Australia, the Commission heard many

complaints from the self-selected veterans, many of whom

were members of WAA.

The complaints ranged over the whole of that Department's

activities, and reactions to it varied across Australia.

Veterans in Western Australia impressed the Commission

with the intensity of their reaction.

Much of the reaction. it must be said. seemed to be

directed at the refusal of DVA to "accept and recognise

the justness of the chemical claims".

XIV-153

In January 1984, Counsel Assisting conferred several times

with Counsel representing W A A in respect of this Term of

Reference. Senior Counsel for W A A subsequently

identified in conference with Senior Counsel Assisting a

number of areas which his clients wished the Commission to

investigate. It was suggested by Senior Counsel for W A A

that investigations should take place with specific

reference to veterans who had identified chemical agents

as a possible cause for their problems in their dealing

with DVA. T n addition, the complaints of specific

veterans nominated by W A A were to be the subject of

investigation.

Following these discussions Senior Counsel Assisting

confirmed the oral arrangements by letter dated 13 April

1984, which read:

Re: Legislation and Treatment - Terms of Reference

On 11 January 1984. Counsel Assisting the Royal Commission had a conference with you and Hill concerning the following terms of reference, namely:

A the operation and administration of the

Repatriation Act 1920, the Repatriation (Special Overseas Service) Act 1962 and any other relevant acts, as applicable to claims by Australian personnel of chemical caused disabilities;

XIV-154

B . AND we require you to make such

recommendations arising out of your inquiry as you think appropriate, including

recommendations regarding the legislative or administrative changes, if any, that are necessary or desirable and the adequacy of present assistance available to Australian

personnel; and

C. AND, in particular, we require you to make such recommendations as you consider

appropriate in relation to assistance which any Government Department may be able to give relating to the health problems of Australian personnel and the power of a Department to grant, and the adequacy of the

present method of granting, assistance, with a view to ensuring that Australian personnel receive the full benefit of all available assistance;

In relation to the said legislation, it appeared that the Vietnam Veterans Association of

Australia believes that the legislation should be amended in the following ways, namely:

(i) To cater for the children of veterans who are ill or disabled when there is a causal connection between such illness or

disability and the Vietnam service of their fathers; and

(ii) To cater for the wives of veterans who are ill or disabled when there is a causal

connection between such illness or

disability and the Vietnam service of their husbands.

The Royal Commissioner will be informed, at an appropriate time of these views of the Vietnam Veterans Association of Australia. However, if the V.V.A.A. intends to supply the Royal

Commission with a more detailed written

submission concerning the above points, or any other points concerning legislative amendment, it would be greatly appreciated if that submission could be submitted in the near future.

In respect of the administration of the current legislation and the treatment of Vietnam

XIV-155

veterans, it appeared that the Vietnam Veterans Association of Australia believe that this Commission should investigate the following matters. namely:

(a) Whether nomination, in a claim for treatment or benefits, of a chemical cause for the disability behind the claim has produced or produces discrimination within the

Repatriation system, against the claimant;

(b) Whether nomination, in a claim for treatment or benefits, of particular complaints which might be presumed to be associated with chemical exposure has produced or produces discrimination within the Repatriation system, against the claimant;

(c) Whether the fact or degree of private

patient treatment in Repatriation hospitals has interfered or interferes with

appropriate treatment of Vietnam veterans who have disabilities;

(d) Whether the Repatriation Act and. in

particular, s.47 is being and has been

administered and applied appropriately in the case of Vietnam veterans with

disabilities that may be caused by exposure to chemical agents.

It also appeared that the V.V.A.A. contends that the "prisoner of war rule" should be applied. That is, that the Department of Veterans' Affairs should conclude as a matter of administrative formality that any disability which might be chemically caused is compensable in every sense.

It was also generally agreed at the said

conference that any Royal Commission

investigation of these V.V.A.A. contentions should take place against the background of the existing 1300 claims that mentioned chemical agents and a short list of further complaints as provided by the V.V.A.A.

In order to facilitate proper and expeditious investigation of the abovementioned contentions, by those assisting the Royal Commission, it would be greatly appreciated if you could provide the following:

XIV-15 6

(i) A detailed written submission concerning the said contentions and any further contentions concerning administration of the current legislation and the treatment of Vietnam veterans. That submission should include,

but not be limited to:

(a) A list of the names and D.V.A.

reference numbers of all Vietnam

veterans that your client alleges have been discriminated against in their claims for treatment or benefits in respect of chemically caused

disabilities;

(b) A list of the names and DVA reference numbers of all Vietnam veterans that your clients allege have been

discriminated against in their claims for treatment or benefits in respect of disabilities which might be presumed to be caused by exposure to chemical

agents;

(c) Your clients proposed schedule of

disabilities which should be accepted by the Department of Veterans' Affairs as being chemically caused and thereby compensable by application of the

prisoner of war rule;

(d) A list of those Vietnam veterans that your client alleges have received

inadequate treatment in Repatriation hospitals or whose medical treatment has in some way been adversely affected as a result of the fact or degree of

private patient treatment in such

hospitals. A small number of full case histories, by way of example, would also be appreciated;

(e) A list of those cases where it is

alleged that the Repatriation Act and/or the application of s. 47, in particular, has not been appropriately applied in claims for treatment or

benefits in respect of disabilities that were claimed as caused by exposure

XIV-157

to chemical agents or disabilities which may have been presumed to be a

chemically caused disability, by a departmental officer or treating doctor even if not expressly claimed by the Vietnam veteran.

(ii) Statements from each of those Vietnam

veterans that the W A A considers to best represent examples of veterans whose

treatment may warrant some recommendation for administrative changes or response. Such statements should take the form of Appendix II to the Royal Commission's

Hearing Procedures, as supplied.

In view of the fact that the above investigations will necessarily take a considerable amount of time, the Royal Commissioner has requested:

(a) That your written submission and the various lists referred to above be supplied to the Commission no later than Friday 1 June, 1984: and

(b) That the veteran statements referred to above also be supplied, if possible, by 1 June 1984 but, in any event, no later than 30 June, 1984. (emphases added).

WAA's submission entitled "Conduct - Department of

Veterans' Affairs101 was received by this Commission on

the 9 November 1984 . DVA were invited to comment on the

submission which it subsequently did. W A A in turn

were invited to respond to DVA1s reply which it did on 5

April 1985.103

In seeking WAA's rejoinder this Commission specifically

requested that any parts of DVA' s response which W A A

contended to be inaccurate or with which it wished to join

issue should be indicated.

XIV-158

In its reply W A A stated that individual complaints "were

not withdrawn". Moreover it contended that the answers

which the Department gave did not provide an explanation

satisfactory "to the said individuals". The Commission is

forced to doubt whether the individuals were consulted.

Of some, for example, it was complained that claims had

been refused when the veterans in fact were TP I pensioners.

WAA's submission as to the Department's conduct totalled

136 pages.

Having regard to the specific requests made of Senior

Counsel for W A A by Senior Counsel Assisting and noting

the particularity with which such requests were made. it

is disturbing that the submission received from W A A over

6 months later in respect of a topic about which it has

104

been highly critical and very public failed to

address itself to the issues which W A A itself had sought

to raise.

In particular, and without limiting the generality of the

foregoing, this Commission was not supplied by W A A with

. even one statement taken from a Vietnam veteran

in an appropriate form;

XIV-159

a list of names of all or any Vietnam veterans

whom W A A alleged had been discriminated against

in their claims for treatment or benefits in

respect of chemical-caused disabilities;

a list of names of persons whom W A A alleged had

been discriminated against in their claims

treatment or benefits in respect of disabilities

presumably caused by exposure to chemical agents;

a list of disabilities proposed by W A A as being

suitable for acceptance by DVA as being both

chemically caused and compensable by application

of the "prisoner of war" rule;

a list of Vietnam veterans alleged by W A A to

have received inadequate treatment in

Repatriation hospitals or whose medical treatment

was in some way adversely affected as a result of

the nature or extent of private patient treatment

in such hospitals;

a list of cases where it was alleged by W A A that

the relevant legislation or the application of

s . 47 of the Repatriation Act had not been

X I V - 160

appropriately applied in claims for treatment or

benefits in respect of alleged chemical-caused

disabilities or those which might be presumed

because of their nature to be chemically-caused;

. statements of Vietnam veterans considered by WAfi

to best represent examples of veterans whose

treatment might warrant recommendations for

administrative change or other appropriate

response.

This lack of particularity is disturbing especially

because of the seriousness of one of the general

allegations made„ namely:

(f) The result of Departmental incompetence has been to put veterans' lives at risk on

occasions.

This allegation has no evidentiary support. The single

and orchestrated case of veteran 12 does not warrant it,

although it justifies the criticism made later in this

Chapter.

This Commission was also seriously concerned at the

absence of any substantive submission by or on behalf of

W A A as to the alleged mis-application of s .47.

XIV-161

8 . THE SUBMISSION OF W A A

This submission was in five parts

Part A Documentation and information held by DVA;

Part B Application of the Repatriation Act by DVA;

Part C Proximity to Herbicides, Insecticides,

Pesticides, and other Chemicals;

Part D Specific complaints of treatment by DVA

(veteran 11, 12 and 13);

Part E General complaints of treatment by DVA.

Part A of the submission addressed the allegation of the

withholding by DVA of relevant information concerning the

toxicity of chemical agents and exposure of Vietnam

veterans to such agents. Particular reference was made to

the controversy concerning the so-called "Evans/Fleming"

report and the allegations and imputations of authorship

of that document. Generally, Part A was consistent with

the allegations raised and continued in "Debrief".

XIV-162

Part B of the submission dealt with the application of the

Repatriation Act, particularly s . 24 AB of the Act (prior

to its amendment, effective 1 January 1985: now s.25).

Basically, Part B alleges that DVA1s investigations,

pursuant to s. 24 AB, have not been properly carried out.

Further, the Department was alleged to have adopted an

adversary role by withholding information and submitting

misleading information to the relevant Determining

Authorities.

Part C of the submission complains about DVA1 s use of

Proximity Reports.

Part D of the submission deals with three nominated

cases. Inter alia, the complaints concerned the proper

application of the standard of proof by the Determining

Authorities.

Part E is an extraordinary document. It appears to

contain extracts from letters of, or statements from,

veterans. There is no categorisation, no verification, no

supplementary information. The presentation of this raw

material was quite unsatisfactory.

XIV-163

The Commission could not even discover whether these

complainants had been interviewed by Counsel for WAA.

The Commission has analysed these extracts as best it may.

This Commission has heard the plea of poverty of resources

put forward on more than one occasion by or on behalf of

W A A and rejects it. The W A A was funded to the tune of

$700,000 to present its case. The Association had ample

knowledge of the issues. I_t was a most vocal and at times

vicious complainant. It not only could, but should, have

assembled and collated any relevant documentation which

justified its continued complaints, and in appropriate

form.

Having regard to the circumstances giving rise to these

observations, it was incumbent upon the Commission itself

to investigate the complaints. The Commission did not

confine its investigation to WAA's submission: it had

regard also to the general criticisms of DVA voiced to it

in Informal Sessions, and to the written submissions from

individual veterans.

Submissions were received from a Victorian barrister and

solicitor, Mr Julian Donegan, particularly in respect of

the application of s . 47 of the Repatriation Act. The

XIV-164

Commonwealth Ombudsman also provided this Commission at

its request with a report prepared by him in respect o£

allegations made by the Victorian Branch of W A A of

deficiencies in the administration of DVA, which

allegations DVA has rejected.

Mr R V Lonnie, a barrister and solicitor from Western

Australia, who represented a substantial number of Vietnam

veterans and their families in the US Class Action, had

informed this Commission that his clients had concern

about the administration of the Repatriation legislation

in Western Australia.

This Commission sought a formal submission from Mr Lonnie

but was met with the response that the lack of funding by

the Federal Government made it impossible for him to

allocate adequate time to this task. A suggestion by the

Commission that it take formal or informal evidence from

his clients in Perth, or that Mr Lonnie himself should

give this Commission details of the ten "best" (i.e.

worst) examples of his clients who had complaints met with

the response that action was being taken to obtain details

directly from his clients as to their complaints against

XIV-165

Late i n 1984 , this Commission provided Mr Lonnie with a

draft questionnaire dealing with a number of matters

pertaining to this topic. Mr Lonnie subsequently

distributed the Commission's questionnaire without

amendment, and 112 completed questionnaires were forwarded

by Mr Lonnie to this Commission and have been analysed.

Submissions were also received from the Vietnam Veterans

Counselling Service and, independently, from so-called

Regional Branch Offices of WAA. One such submission -

from the Gippsland and La Trobe Valley Branch of W A A -

dealt specifically with the use of alternative health care

medicaments.

The Commission has considered all aspects as raised in

these various ways.

It is not proposed to canvass every case history or every

specific submission, nor every matter canvassed as a

result of independent avenues of inquiry undertaken by

this Commission. Nor is it proposed to comment in depth

upon the RGH system, the subject of the inquiry recently

completed by Dr Brand and his colleagues whose report -

dated 28 June 198S - was not released until 9 July 1985.

It was received by this Commission on 12 July 1985.

XIV-166

The lack of direct reference to a particular submission,

or complaint, should not be taken to mean lack of

awareness of its contents, or appreciation of the views

expressed. Rather it is necessary to compress the

anecdotal material in to some general categories of

problems indicated by complaints.

Accordingly it is proposed to refer to the specific

submissions made in Parts A-E of W A A 1s submission in this

107

regard before examining the specific topics examined

by this Commission partly in response to other submissions

and partly of its own initiative.

The Commission's Approach

The Repatriation system has been the subject of intensive

review. Mr Justice Toose spent more than 3 years making a

comprehensive review of it.108 The Brand Committee has

recently (June 1985) reported on the functioning of the

RGH system.

This Commission sees its role as it has been defined in

consultation with the major contending party, WAA, and as

clarified by the letter that passed between Senior Counsel

Assisting and Senior Counsel for W A A on 13 April 1985.

XIV-167

This section of the Report therefore will deal with the

specific complaints of W A A and „ where relevant, other

specific complaints of discrimination against Vietnam

veterans either because they were actually or

presumptively chemical claimants or because they were

Vietnam veterans.

8.1 Part A: Documentation and Information Held by DVA.

The precise complaint being made in this part is unclear.

It seems to allege the withholding, the concealment,

failure to follow-up available sources, or the disregard,

of information.

In general terms W A A states its complaints as follows:

The first matter which arises in this submission is the Department of Veterans' Affairs state of knowledge of the toxic effects and use of

chemicals in South Vietnam.

As to the so-called "Fleming" report it says:

The point made is that whilst the authorship of the document was questioned and it is criticised as not being a "report" etc, the document did bring to the notice of the Department published

information relating to the toxicity of the chemicals referred to therein.

XIV-168

Instead of concerning itself with the authorship of the document, the Department for the purpose of considering veterans' claims should have ensured that the contents were well known to all

staff (including medical) and all bodies who were involved in determining claims.109

As to the Department of Health's (Health's) comments on

the "Fleming" report W A A said:

Sometime in 1980 the Department of Health was asked to comment on the "Fleming Report". They produced a document presumably entitled.

"Comments Provided by Department of Health on Second and Third Drafts of 'Evans/Fleming

Report'". (See annexure 6).

The W A A submits that this document was designed to discredit the 'Fleming Report' and has been used by the Department of Veterans Affairs for that purpose.

In summary W A A said:

It is therefore clear that the Department not only had knowledge of chemicals used in Vietnam, their toxicity but had further sources of

information available which would have added to their knowledge.

The first source of information relied upon by W A A is the

information supplied by Mr John Evans. It is clear that

DVA through its officers gave ample opportunity to

Mr Evans to supply information.

There were a number of meetings in early 1980, between

Evans and DVA officers, the most significant being one

XIV-169

held at Me Evans h o m e . The Chief Director. Medical

Services, Dr Fleming and his secretary. Mrs Daniels,

attended. At this meeting Mr Evans referred to extracts

from some of the relevant literature and made comments on

it. Mrs Daniels made shorthand notes.

After the meeting a document was prepared, entitled,

"Notes Made Following a Briefing by John Evans on

Herbicide Spraying in Vietnam and Disabilities in Vietnam

Veterans".110 This was typed and forwarded by Dr

Fleming to Mr Evans. Mr Evans made comments.

A third draft was finally prepared entitled, "Extracts

From Literature on Certain Toxic Chemicals, Their Use in

Vietnam and Elsewhere and Their Reported Effects as

supplied by Mr John Evans to the Department of Veterans

Affairs" (emphasis added). This is the document called

the "Fleming Report" in W A A 1 s submission. W A A omits the

words emphasised in all its references to the document.

The implication is that Dr Fleming wrote and adopted the

document as his own and that the Department disavowed it

for political or other improper motives notwithstanding Dr

Fleming's position as Chief Director (Medical Services).

XIV-170

The "authorship" of the document is of course

unimportant. The implication is not: it is snide and.

the Commission believes, dishonest. It notes the failure

of W A A to call Evans to give evidence after 10 February-

1984 and the lack of any statement by him on this topic.

The Commission has interviewed Dr Fleming. It is

satisfied from the shorthand notes and from what Mrs

Daniels herself says that Dr Fleming 1s evidence in this

regard is correct. The document on its face establishes

the correctness of DVA's description of it which is

complained of by W A A . That description is:

In short, the document is not a report nor an

official Departmental paper, as such, but a collection and collation of selected extracts from scientific journal articles and elsewhere, interspersed with Mr Evans1 own comments.

The Commission finds that the document is just that. Dr

Fleming's account of its production is internally

consistent, and corroborated both orally and by

contemporaneous documents. The Commission accepts his

account in this regard.

The next complaint is that DVA did not make the document

"well known" to staff, particularly Determining Officers.

XIV-171

DVA did what was appropriate: it referred the document

and its references to the Department of Health for peer

review.

That peer review led to the comments next complained of by

WAA. Those comments were:

Furthermore, this document is a clever

presentation of facts, arguments and opinions which might be used to support complaints of a group of individuals who allege that they were suffering from a wide diversity of adverse

effects as a result of exposure to such

chemicals. Although I have been critical of the document in its style I must add that much effort has been devoted to its production and there is valuable information contained in it. It should be retained to alert those who may be required to produce defence material against such arguments which could be presented on behalf of a

plaintiff. On no account should it be used as an information item since it is essential that a document used for widespread distribution should be totally unbiased.111

The Commission has read all three versions of the

document. It has read all the scientific and other

references in it. The above description of it is

perfectly justified. It is selective, biased and in the

Commission's view quite unscientific.

To circulate such a paper without comment would have been

unsound.

XIV-172

However. in January 1981 DVA did circulate to all its

Branches copies of all the scientific and other journal

articles referred to in it. This was in accordance with

its policy of referring its officers to all relevant

scientific material relating to the relevant chemicals,

without comment or edit.

In March 1982 DVA circulated the "report" itself to its

Departmental Medical Officers in all States because of

W A A 1 s complaint, but with appropriate warning.

The Commission found all the references in DVA1 s

bibliography. They all became exhibits.

Next W A A complains that the Department of Health (Health)

helped produce a document, "Pesticides Used in Vietnam and

Their Use in Australian Agriculture: A Comparative 112 Study". It submits that this is contrary to Health's

comments on the Fleming Report. This complaint is not

understood. To criticise is wrong, to agree is wrong.

Catch-22!

As well, the fundamental importance of the concept of dose

is conveniently ignored.

XIV-173

It is clear that officers of DVA and Health set about

informing themselves and each other as to the real risks

of toxic exposures in Vietnam, as the documents referred

to by W A A in its submission show.

In truth, the complaint is that the Departments approached

the matter with circumspection and did not accept

uncritically the biased. selective and coloured views of

the unqualified John Evans.

The next complaint is that information available from

individual veterans was either ignored or not followed up.

The submission refers to Mr J.C. Rhodes. It is clear that

Mr Rhodes wrote to DVA on 5 June 1979 and referred to

defoliants and perimeter spraying, as well as other

aspects of his duties as a Hygiene Officer, concerned with

chemicals. In large measure, Mr Rhodes' information

merely corroborated material available from official

military sources. There were some discrepancies.

DVA took the view that the material provided by him was an

insufficient justification for accepting his "offer of

availability for any inquiries being made by your

Department into defoliant operations in Vietnam".

XIV-174

Mr Rhodes gave evidence before the Commission on 8

February 1984. Whether one agrees or disagrees with the

view that Mr Rhodes had little to add is unimportant. To

form that view was neither irresponsible nor improper. The

next individual is Craig Maxwell Steel. Mr Steel wrote to

the National President of the RSL on 9 January 1980 and

this letter was forwarded to DVA and used in the compiling

of the Army Report113 There is some inconsistency

between his letter and an affidavit sworn by him on 1 May

1980 but the contents of both were well known to DVA.

The document referred to in both the letter and the

affidavit as a technical paper is, in the Commission's

view, the 1ATF "Instructions For Spraying Herbicides

1970". These instructions make no reference to Agent

Orange or Agent Blue.

The Commission frankly does not understand the complaint.

The next individual is Mr Barry Corse. Mr Corse wrote to

the Repatriation Commission on 7 September 1982 and drew

attention to passage of troops through defoliated areas.

This was not new information and indeed had been widely

publicised.

XIV-175

The Commission notes that he first volunteered this

information as an attachment to his Claim Form Z in June

1981.

The next individual is Lesley Robert Nunn. Mr Nunn lodged

a claim with DVA in April 1980. He referred to his 12

years as an insecticide sprayer, two of which were spent

in Vietnam. He gave evidence before this Commission on 25

January 1984.

There has never been any dispute that insecticides were

consistently used in Vietnam as part of an anti-malarial

program. DVA has publicly and repeatedly adopted the

position that this is so. No follow-up of Mr Nunn's file

was reguired.

Mr Claude Ducker, who gave evidence before the Commission

on 6-7 February 1984, is the next individual upon whose

position W A A relies. W A A states that DVA was aware of

the c Company 5 RAR incident, "but at no time was Colonel

Ducker approached".

This submission is factually incorrect as the simplest

inquiry would have shown. DVA sought further information

about this incident. A meeting was held on 27 August 1981

XIV-176

in the Office of the Deputy Commander, Personnel, and was

attended by. inter alia. Colonel Ducker.

Colonel Ducker referred to this meeting, initiated by DVA,

in his evidence.11-4 Why this W A A submission was made

10 months later the Commission is at a loss to understand.

As a result of the meeting DVA wrote to the members of C

Company who may have been involved.

W A A next relies upon the failure to attend to the

"striking similarity" of "non-specific" complaints made by

Vietnam veterans and the similarity of these claims to the

reports of US veterans.

The submission is based on some misunderstanding. All

information in the form of symptoms and diagnosis is in

fact retained by DVA although it has not been computerised.

Nor is it appropriate to conclude from the lack of

computerisation that the information has not been

considered.

Of course there is some similarity in the complaints of

Vietnam veterans and their US counterparts. DVA asserts.

XIV-177

and the Commission accepts. that it has observed that

similarity.

If both groups have PTSD the similarity is not

surprising. But the similarity alone does not establish

chemical causation. On the contrary it suggests a more

reliable aetiology.

One observes. too. that W A A has circulated to its members

lists of "the usual symptoms" as had also been done in the

case of US veterans by their particular organisations.

The lists achieved wide circulation through W A A 1 s

magazine, "Debrief".

One would be surprised, then. if there had not been

similarity of reporting by Australian and American

veterans in such a context.

Conclusion

The Commission finds no justification for the particular

allegations. There has been no withholding, nor

concealment, nor failure to follow up available sources,

nor any disregard of information which was inappropriate

or improper.

XIV-178

Indeed DVA went about the research task posed by the

controversy Ln an intelligent and appropriate way and

widely disseminated the results of its research amongst

its officers.

If DVA had simply accepted Mr Evans without question or

inquiry, it would indeed have been a national scandal.

8.2 Part B: Application of the Repatriation Act by DVA

8.2.1 W A A Submission

The W A A is critical of the application of the statute by

DVA.

In terms it makes the following general allegation:

The W A A submits that though the Repatriation Act sets out the procedure required to be followed by the Department of Veterans' Affairs, particularly the investigative aspect, the Department has failed to follow such directions. Further, that

the Department has failed to follow such

directions and has adopted the role of adversary and withheld information and submitted misleading information to the determining authorities.11

The first example given comes from the case of Colin

Simpson who claimed a war pension for his lymphoma. The

XIV-179

Board refused his claim relying on a specialist medical

opinion. That medical opinion referred to a scientific

study by Zack and Suskind.116

The W A A complains:

In this instance selective information (the Zack and Suskind report) was available to the Board. Apparently, although in the possession of and well publicised within the Department. the

following documents were not brought to the notice of the Board:

(a) Axelson, O. et al Herbicide Exposure and Tumour Mortality: An Updated Epidemological Investigation on Swedish Railway Workers. Lakartidningen, 1980.

(b) Hardell L . and Sandstrom A. Case Control Study: Soft-Tissue Sarcomas and Exposure to Phenoxy-acetic acids or chlorophenols, 1979.

(c) Hardell L. et al Malignant Lymphoma and Exposure to Chemical Substances, Especially Organic Solvents, Chlorophenols and Phenoxy Acids. 1980.

The effect has been to mislead the Determining Authority by drawing to their attention the work of Zack and Suskind, and not bringing to the Board's attention the other relevant work. This

is contrary to the provisions of s. 24AB and a failure by the Department to carry out its

obligations.

The reports of the work of Axelson, Hardell and Sandstrom

are technical, medical, scientific research documents.

They had been supplied to DMOs and specialists by DVA.

XIV-180

The specialist who wrote the opinion chose to cite Zack

and Suskind in his report and thus brought it to the

attention of the board member. A board member would not

be likely to have the expertise to evaluate such papers.

Epidemiology is a complex art. Specialist papers are

supplied to specialists to assist them to form their

advisory opinions.

The Commission finds no substance in this complaint.

After Simpson died. the Commission disallowed his appeal

and his widow appealed to the RRT. DVA sought advice from

certain specialists.

W A A complains:

In this matter the Department had sought advice from three specialists namely Professor B.K. Armstrong, Professor M.H.N. Tattersall and Dr F.W. Gunz. The specialists were not supplied with the information then known to the Department

namely the information supplied by Mr Rhodes, Mr Steele, Herb Tapes and other sources of knowledge referred to earlier.

The medical research literature was supplied as both

Professor Armstrong and Professor Gunz confirm.

XIV-181

These experts were not asked to provide opinions about

likely exposure, nor were they especially qualified so to

do.

However, the material relied upon by the RRT, namely

"Pesticides Used in Vietnam Hostilities and Their Use in

Australian Agriculture: A Comparative Study", was (with

other background papers) provided to the medical

specialists.

The Commission deals with Proximity Reports - which rely

on the HERBS tapes - later in this section. To supply the

HERBS tapes themselves to the specialists would not have

been helpful.

Mr Rhodes was not in Vietnam until 10 months after Simpson

left, and Mr Steel was there 3 years and 9 months after.

Nor was their information likely to be useful to medical

specialists.

The Commission finds no substance in this complaint.

W A A seems also to draw some inference from the

Commission's decisions not to appear in, or appeal from

the decision of the RRT.

XIV-182

It says:

Consequently, the Repatriation Review Tribunal set aside the Commission's decision and allowed the appeal. As has been said. the Repatriation Commission, despite overtures, chose not to appear before the Tribunal, nor did it appeal

from the Tribunal's decision.

117

In the Debrief of December 1982 in its case for a

Royal Commission, W A A said:

The Repatriation Commission did not exercise its right of appeal against this decision thereby signalling its acceptance that the evidence given by the Vietnam Veterans' Association and its advisers both on the possibility of Colin

Simpson's exposure and of the possible links between that exposure and his lymphoma was both substantial and credible.

The Simpson case was a decision on a question of fact. Mr

Simos, QC advised that no appeal on a question of law was

available.

No inference of acceptance of the correctness of the

decision can be drawn from the failure to appeal.

W A A next complains:

In 1980 the widow of Joseph Gavin (MSS 6472) applied for Repatriation benefits for her

husband's death from lymphoma. No. 2

Repatriation Board dealt with the application on 5th June. 1980. The Board rejected the claim (annexure 21) .

XIV-183

On 7th July, 1980, the widow lodged an appeal from the Board's decision to the Repatriation Commission. A Commission delegate dealt with the appeal and rejected it on 12th November, 1981

(annexure 22). The widow then appealed to the Repatriation Review Tribunal.

On 9th May, 1983, shortly before the matter was to be dealt with by the RRT the Commission

reviewed its decision of 12th November, 1981, in the light of further evidence (annexure 23). Among this further evidence was the RRT1 s

decision in the Simpson case. However, the

delegate said at page 2 of this decision that -The Department of Veterans' Affairs has undertaken a study of Australian and United States records relating to the use of

herbicides in areas close to the deceased's known locations during his Vietnam service. It also commented upon the use of such

material within relevant Australian base areas.

According to the evidence presented by the Commission's consultant, animal tests have shown that dioxins, which I understand to be present in the herbicide to which the

deceased may have been exposed, may suppress cellular immunity and it is well known that lymphomas are relatively common in organ transplant recipients in immuno-suppressive drugs.

And later.

Lymphoma is a fairly rare disease, the cause of which is not precisely known to medical science. However, studies by Hardell et al have suggested a possible connection between

exposure to dioxin and development of

lymphoma. Although some eminent medical authorities have expressed reservations about methodology used in conducting these studies they have not, up to the present

time, been shown to be untenable.

XIV-184

Thus limiting claims of exposure to a TCDD

content. The W A A submits that the evidence used by the Commission's delegate on 9th May, 1983 was in fact the same evidence before the Commission on 12th November. 1981. That the intervening

delay was unnecessary and could have been avoided.

The Commission does not understand the cryptic "Thus

limiting claims of exposure to TCDD content".

The Department in fact received further evidence of

locations of sub-units of the Australian Army and

up-to-date herbicide use records from the USA.

Thus the complaint is without justification. DVA behaved

properly in granting the Review. The decision has no

impact on decisions in other cases.

The Burge case is raised by W A A but no clear complaint is

enunciated. A general submission is made:

The W A A submits that, when an application is made to the Department of Veterans' Affairs for benefits by a Vietnam veteran, the question must always arise as to whether the disability

complained of is referrable (sic) to chemicals. That to consider chemicals only when the

applicant mentions them is incorrect.

There cannot be a general rule requiring chemical

information and proximity reports etc in every case of a

claim by a Vietnam veteran. Such information must be

relevant expressly or by reasonable implication.

XIV-185

This Commission concurs in the submission of W A A that

"quick determinations are essential for the proper

administration of the Act". It agrees that delays.

frustration and hardships, with an increase in

"bureaucratic costs" when matters have to be heard on

appeal, may result from a failure to present relevant

material. However, the proper linchpin of this submission

is what is "relevant" and indeed what is "reasonable" in

the circumstances of any given case.

It is, to say the least of it. curious that W A A sought to

underpin its submission in an area of great importance

and concern to veterans by reference only to three cases,

all of them lymphomas. Twenty three lymphoma cases have

been granted benefits, in addition to treatment pursuant

to Reg 65A. DVA knows of 46. 19 were rejected and 4 have

not claimed.

In its response, the Department stated that it was not

Departmental policy to withhold information from the

Determining Authorities. Much of the information which

was available could be interpreted only by experts in the

particular field. It would not assist the speed of

determination of claims to present it to the Determining

Authorities without explanation by the appropriate expert

witness.

XIV-18 6

Of necessity. under the Act the Department has a vital

input and is able to filter material going to the

authorities. Conceding that a filtering role is

appropriate, the Commission emphasises that the subjective

views of a bureaucrat should not subvert the objective

intent of the legislation: all relevant material should

be presented with appropriate expert explanation and

without bias. No bias has in fact been shown in

presentation.

8.2.2 Ombudsman's Tentative Conclusions

The Victorian Branch of W A A made a series of complaints

to the Commonwealth Ombudsman. The Ombudsman's

investigation was overtaken by this Commission.

The Ombudsman reached certain tentative conclusions of

relevance to this sub-section. The investigator studied

nine particular cases relied on by the Victorian Branch

and drew tentative conclusions from those cases.

The first relevant tentative conclusion was:

There was insufficient investigation of evidence relating to the likelihood of each claimant's having been exposed to chemicals during Vietnam service before determinations were made of the possibility that claimed disabilities may be

related to such exposure.

X I V - 187

The "chemical agent-caused disability" controversy began

in Australia in early 1979. From June 1979 on, DVA

collected relevant material beginning with four documents

in that month and numbering well over 1000 now.

Information about proximity and exposure was gathered over

a period of time. The DVA set up a special unit to deal

with Vietnam veteran issues including Agent Orange.

From May 1983, full Proximity Reports were available to

Determining Authorities on request. The task of collating

Army records and HERBS tapes data was slow and laborious.

The particular files of the cases studied by the

Ombudsman's investigator do not and would not reflect

these matters.

As well, DVA submits:

It should not be overlooked that the primary purpose of the Department's investigation of Veterans' claims is not to establish whether the veteran was exposed to chemical agents but to

enable Determining Authorities to establish whether the veteran is suffering an incapacity and, if so, whether that incapacity is connected with service. Investigation of a veteran's claim

restricted to, or dominated by, the chemical agents issue would not fulfil the requirements of the Repatriation legislation.

X I V - 18 8

This point is well taken, particularly as the dose levels

to be expected from Vietnam service suggested no toxic

hazard.

The second relevant tentative conclusion was:

The case studies suggested that there was

insufficient evidence of familiarity by DMOs with the full range of available literature on the alleged effects of implicated substances and of reference to such material in considering claims.

DVA responded:

The Department has disseminated to its medical officers the known literature dealing with the effect and properties of chemical agents used in Vietnam. This bibliography of literature began with four items in June 1979 and has been

progressively extended to about 1000 items at the present time. It continues to be expanded as new items become available.

In dealing with the application of this body of literature in individual cases, Departmental Medical Officers (DMOs) treat the material in summary form. The fact that specific items from

the bibliography may not be referred to does not mean that the DMO is unaware of them or that he has overlooked them.

The specific criticism by the Ombudsman's

investigator suggests that the type of report required of the DMO is of an academic nature with detailed exposition of conflicting results and referencing of sources. This 1 research paper1

approach is inconsistent with the provisions of the Repatriation Act 1920 which require the DMO to provide a professional medical opinion and to indicate any professional doubts held by the DMO.

XIV-189

To ensure that all relevant factors are taken into account it is the practice to refer cases involving chemical claims to designated DMOs. These DMOs are expected to keep abreast of the

body of knowledge on the use and effects of these chemical agent.

However, the Commission has found that chemical claimants

were not invariably referred to the designated DMOs. It

is also possible that a chemically-caused disability might

not be nominated as such by the veteran.

Thus, it is possible that the mere passive availability of

the literature would not have sufficiently informed

non-designa ted DMOs. The Commission finds that the

tentative conclusion is otherwise unjustified.

The third relevant tentative conclusion was:

The extent of investigations undertaken in pursuance of the duty imposed by sub-s.24AB(1) of the Repatriation Act 1920, particularly in terms

of obtaining specific information from the Department of Defence on a claimant's potential exposure to chemicals and the assembly of all

relevant data on the claimant's medical history.

General - A study of the case files tended to

reveal a failure to investigate possible exposure to and the effects of deleterious substances other than pesticides.

DVA responded:

XIV-190

Section 24AB of the Repatriation Act requires the Secretary of the Department to conduct an

investigation into the matters to which the claim for pension relates. This involves obtaining any service records relating to the veteran, making inquiries of medical practitioners who attended

the veteran concerning his medical history, obtaining hospital or life insurance records. obtaining further information from the veteran or

his family, obtaining (where necessary) further information from the Department of Defence on conditions of service, obtaining specialist opinion (where necessary) on the veteran's medical condition making inquiries of the

veteran's employers and making other

investigations as necessary.

Once the medical and other investigations have been completed, the case would be referred to a medical practitioner to write a s . 48 report. In writing that the Doctor would have regard to the

material obtained during the course of the

investigation, to medical literature held by the Department regarding the aetiology and effect of a particular condition and to his own medical knowledge.

The matter of the Department's efforts to obtain information about the potential for exposure of veterans to chemical agents in Vietnam is dealt with under (i) above. The Department's

bibliography on chemical agents covers a wide range of chemicals used in Vietnam, not just pesticides, eg prophylactic anti-malarial drugs.

No evidence has been brought forward by the

investigator to support the claim that not all relevant data on claimants' medical histories has been assembled.

The Commission sees no substance in this complaint or the

investigator's tentative conclusion.

The fourth relevant tentative conclusion was:

XIV-191

Apparent shortcomings in the completeness of evidentiary material presented to Boards and the Commission. The Department's observance of the requirements of paragraph 24AB (3)(b) of the Act

1920, particularly in respect of the furnishing of information on the nature of chemicals used in Vietnam and all currently available scientific

and medical data on the effects of exposure to such chemicals.

DVA responded:

One obligation imposed on the Department under s. 2 4AB (3) of the Repatriation Act 1920 is the submission to the Determining Authority of 'all the records and other documents ' relevant to the

interpretation in individual cases. As has been pointed out under (i) above, the possible effect of any chemical exposure is only one element of the Department's investigation of a veteran's claim. There would be no advantage in providing to Determining Authorities comprehensive references to the literature on the possible human effects of chemical agents in Vietnam although such references are readily available to them if required. Much of the material could not be interpreted by members of Boards or the

Commission as they are not medically qualified.

Other alleged shortcomings in material presented to the Boards in the cases examined in the

Ombudsman's office are not substantiated from the information on the veteran's files. For example in one case, the Ombudsman's investigator states, 'no s. 48 opinion was prepared' ; this is correct because the medical investigation could not be completed as the veteran failed to attend medical appointments.

As stated above the assessment of relevance must be

objective. There is no thing in the files or the

investigator 1s material to suggest any lack of objectivity

in the selection of material in the 9 particular cases

XIV-192

referred to. The Commision found no shortcomings, and

rejects the tentative conclusion.

The fifth relevant tentative conclusion was:

The case studies suggested that Medical Officers were not provided with material (information on the nature of chemicals used in Vietnam and all currently available scientific and medical data

on the effects of exposure to such chemicals) to assist them in the preparation of medical reports under s .48 of the Act.

The material was available as the conclusions above show.

The Commission rejects the tentative conclusions.

In general it must be observed that the investigator had

no knowledge of medicine or toxicology. His tentative

conclusions reflect only the complaints made to him by

WAA's Victorian Branch.

W A A were convinced of the truth of the "chemical agent"

theory and regarded any rejection of it, even in

particular cases. as indicative of ignorance or bias.

This coloured its complaint to the Ombudsman, and may have

unconsciously influenced the investigator.

XIV-19 3

8.3 Part C: Proximity to Herbicides. Insecticides.

Pesticides and other Chemicals. Reports on Individual

Veterans

W A A submits :

The report is prepared„ a copy of which is sent under covering letter to the applicant or next of kin normally allowing 28 days in which to comment

or further time if the applicant desires.

However not all covering letters give the

applicant 28 days in which to reply or seek an extension of time. In the case of ALLEN K.

WHEATLEY MSS 4492 he was required to sign an

acknowledgement of his proximity reports which is in the following terms:

I acknowledge receipt of the report of

14.10.83 regarding my proximity to

herbicides, insecticides and other chemicals during my period of overseas service. I have been informed that I have 21 (twenty

one) days in which to lodge, with the

Department of Veterans' Affairs, any

comments, disputations or alterations that I may wish to make.

(See Annexure 26).

If no extension of time is sought, the report with or without comment is then submitted to the relevant determining authority.

The determining authority then uses the report to decide whether or not the veteran was exposed to chemicals and whether or not the veteran’s

ailment could arise from such exposure.

The W A A submits that these reports are:

1- biased, in that the average applicant would not have the resources to refute the report nor access to the documentation referred to therein;

XIV-194

2. they are misleading in that the Determining Authority is led to believe that the report is a full and accurate summary of the use of chemicals during the individual's service in

South Vietnam;

3. the reports suggest that the HERBS tape

gives a full account of the Ranch Hand

operations in South Vietnam;

4. the reports make no mention of other

documents held within the Department of Veterans' Affairs;

5. the reports are selective in that they

present only portions of favourable to the non

applicant;

documents exposure that of

are the

6 . the reports give only a

wind drift;

limited picture of

7 . the reports make no mention

volatilization of chemicals;

of

a . the reports make no

possibility of indirect ingestion of contaminated

mention exposure water and

of via food.

the the

DVA responds:

Proximity reports are provided where a

Determining Authority expresses a need for investigation of the claimant's possible

proximity to chemicals. Reports are not

necessarily prepared just because a veteran makes mention of chemicals in his claim for

compensation.

Reporting Procedure The sentence numbered 2 on page 37 of the W A A

submission might raise doubts as to whether or not a veteran's comments are forwarded to the Determining Authorities (DA) with the proximity report. Comments received are always forwarded

to the DA with the relevant report.

XIV-19 5

3. The DA may use the report to assist in

determining whether or not the veteran was exposed to chemicals. The DA do not use the report to decide whether or not a veteran's ailments could arise from exposure to

chemicals. That is a medical matter outside the scope of the report.

Submission (page 37)

1. Most applicants do not submit claims based on chemical exposure. Although over 17,000 claims had been received from Vietnam veterans as at 1 September 1984 , the total number of claims referring to chemicals was 1,854. The documents referred to in the

reports are readily available to claimants or their representatives at Branch Offices of the Department as the VVAA knows. In any case, there is no evidence to suggest that failure to seek access to documentation has affected the veracity of reports or that reports are biased.

(page 38).

2. The report summarises the information

contained in various source data about the veteran's proximity to chemical spraying locations in the area in which he served during the period of his tour of duty in

South Vietnam. It reports on the recorded nearness of the veteran to chemical spraying locations. It makes no claim to being "a full and accurate summary of the use of

chemicals" in South Vietnam.

3. The report does not suggest that the HERBS tape "gives a full account of the Ranch Hand operations in South Vietnam". It states what the HERBS tape is (paragraph 3) and it

refers to the US NAS analysis of the HERBS tapes' accuracy, comprehensiveness and suitability for assessing herbicide

operations in South Vietnam. The HERBS tape information is also checked against

operational record sources and other

documents as set out in the attachment. "Sources and Methodology". It is noted that

XIV-196

the W A A accepted the suitability of the HERBS tape for assessing herbicide

operations in South Vietnam in the Colin Simpson case before the Repatriation Review Tribunal (DEBRIEF, December 1982, page 17). Again in DEBRIEF, February 1983, page 17,

the W A A states, "It was not that this

detailed information on the massive spraying of herbicides by United States forces was unavailable to the Government. Indeed the document listing the flight path and load of all recorded fixed-wing herbicide spraying missions flown by the United States Air Force from 1965-71, a document known as the Herbicide Tapes - was mentioned in the

"Comparative Study" paper released by the Minister".

4. In the normally accepted manner the report mentions the documents, in addition to the HERBS tape. which are the sources of the information presented in the report. The

following documents are mentioned in all reports:

(a) Senate Standing Committee on Science and the Environment Report, "Pesticides and the Health of Australian Vietnam

Veterans", November 1981.

(b) Defence Department, "Report on the Use of Herbicides, Insecticides and Other Chemicals by the Australia Army in South Vietnam", 9 December 1982.

(c) US National Academy of Science Report, "The Effects of Herbicides in South Vietnam", Washington 1974.

(d) A.L. Young et al, "The Toxicology, Environmental Fate and Human Risk of Herbicide Orange and its Associated Dioxin". USAF Report TR-78-92, October

1978 .

(h) WA Buckingham Jnr. "Operation Ranch Hand - The Air Force and Herbicides in South East Asia 1961-71". Washington 1982.

XIV-197

(i) Defence Department Location Statement of Units in South Vietnam.

(j) US Veterans Administration letter of 22 December 1982.

(k) The veteran's military record of service.

In addition to the documents listed above, reports may also include references to the veteran's Departmental files, unit and other histories where these are applicable.

Reports do not normally refer to documents which do not provide information on the subject under report. In this case, the subject is proximity to chemical spraying

locations. Anything else, including the effects, or otherwise, of such chemicals is beyond the scope of the report.

5. The reports themselves show the

inappropriateness of this W A A statement alleging selectivity "favourable to the non exposure of the applicant". To date, 273 reports have been requested and completed. Of the 273 veterans covered in these

reports, 47 veterans have been reported on as proximate to herbicide flights, ie within 5 km. Of these veterans 28 were definitely within 5km of a herbicide flight. The

remaining 19 were included in this category as the sub-unit in which they serviced could not be established. The reports also quote the Senate Committee's belief that the majority of veterans were exposed to

insecticides while serving in South Vietnam.

6. According to researchers whose work was specific to the Vietnam situation, wind drift was not a primary factor in proximity of troops to aerial spraying in Vietnam.

Inter alia. it has been pointed out that drift minimisation was achieved by

restricting spraying to times when weather conditions were suitable and to the lowest possible spraying height. Drift is,

however, discussed in "Sources and

Methodology", paragraphs 2, 7 and 8, which provide sources for those wishing to pursue the matter further.

X I V - 198

7. This statement is incorrect. In the Sources and Methodology section of the reports, specific reference is made to the behaviour of Volatile Herbicide Moities.

8. A section of the Proximity Report ("Indirect Exposure to US Herbicides") deals with indirect exposure and refers the reader to the conclusions of the Senate Committee on

Science and the Environment in its 1982 report on 1 Pesticides and the Health of Australian Vietnam Veterans'.

The VVAA then relies upon alleged deficiencies in the

proximity reports of Paul Erbs, Dominic Wilson and Allen

Wheatley. No details are given of Wheatley. As to the

alleged deficiences DVA responded:

(a) Paul Anthony John ERBS - MSS 5403 . Vietnam S.O.S., 26 November 1969 to 10 September 1970

The W A A submit that paragraph 10 of the

Veteran's proximity report is misleading when it says, in regard to Base Area Vegetation Control, that 'The herbicides listed for use by 1 ATE at Nui Dat during Mr Erbs' service were Hyvar and

Reglone ‘ . In doing this, the W A A appears to

have failed to consult the reference given in the proximity report, which is to Annex I to Chapter I of the "Army Report" (HQ 1 ATE Forecast of

Usage of Herbicides) . That reference confirms what the proximity report says„ that Hyvar and Reglone were listed (ie forecast) for use by 1 AFT during Mr Erbs' service.

The VVAA goes on to refer to another part of the Army Report and a different time period. The reference to a possible procurement of several drums of what might have been Agent Orange years

before Mr Erbs' arrival is not considered to diminish the validity of what is said in the

proximity report.

XIV-19 9

In a further reference to the Army Report. the W A A quotes a passage "indicating" that 360

gallons of Tordon 50 had been issued and consumed in the period December 1968 to January 1971. A close examination of the Army Report,

particularly Annex L to Chapter 1, shows that 360 gallons of Tordon 50 were despatched to Vietnam in November/December 1968. This represents 8

barrels of the herbicide. While the possibility that the Tordon 50 was used later is not ruled out. it seems a reasonable expectation that this small quantity would have already been exhausted before Mr Erbs ' arrival in Vietnam 12 months later.

The Department is then criticised for not

bringing to notice, when referring to base area vegetation control, statements of J.C. Rhodes and C.M. Steele (sic). Mr Rhodes left Vietnam over seven months before Mr Erbs and Mr Steel arrived

in Vietnam six months after Mr Erbs completed his tour of duty.

Selectivity in the VVAA evidence is demonstrated by its referring to paragraph c on page 3-1-P-3 as evidence that defoliation "continued around the base areas at all times" while ignoring

paragraph b, which states in part. '... in

practice only Hyvar and Reglone sprays were being used1 . The paragraphs are part of a perimeter inspection report of 20 March 1970. ie in the middle of Mr Erbs' period of service. W A A has also omitted any reference to Mr J.C. Rhodes' statement on oath to the Royal Commission that

there was no ground spraying of the perimeter during his tour of duty and only a small section at the end of the airfield was sprayed by air on two occasions (R.C. Transcript, p 1451) . The Army Report, page 3-14, paragraph 27. states,

'.. . 1 ATE conducted a base area defoliation programme during the wet seasons from 19661 . and this is supported by C.M. Steel in his letter of 9 January 1980 where he states, ' I organised and supervised defoliant operations in an around Nui Da t Base from about June to September 19711 , ie

in the middle of the wet season.

XIV-200

(b) Dominic Michael WILSON - MSS 1821. Vietnam S.O.S. 19 July 1967 to 26 April 1968

The W A A finds the proximity report on Mr Wilson similar to that of Mr Erbs, but points out that paragraph 10 is different. Compared with the report on Mr Erbs, the report on Mr Wilson does

in fact include an additional herbicide because it was listed for use during the period of Mr

Wilson's service.

The proximity report on Mr Wilson correctly shows the herbicides listed by the Army Report as for use by 1 ATF at Nui Dat.

As to the Holt/Lugg herbicide trials of December 1967-January 1968 mentioned by the WAA, their nature has been known publicly since reports on them were tabled in Parliament several years ago. This public knowledge included the use of a very small sample of 2,4,5-T on a patch of

vegetation measuring 12 sq ft. After evidence was given to the Royal Commission by Mr J.C.

Rhodes that there was no ground spraying of the Nui Dat perimeter during his service, the

Department considered it should draw attention to perimeter spraying occurring in the period which preceded Mr Rhodes' service. When preparing reports on veterans who served during the brief

period of Mr Lugg's perimeter spraying, the Department therefore, makes mention of the use of Gramoxone, as it was mixed into a spray used on the perimeter by Mr Lugg. However, it should be

noted that the Army Report shows that only one 45-gallon drum of Gramoxone was sent to Vietnam. It might also be recalled that the reports of Holt/Lugg and literature on their operations were

sent to each State where they are available to Determining Authorities.

The W A A states (page 42) that paragraph 11 of the proximity report. "Indirect Exposure to US Herbicides" is misleading in that it refers readers only to the conclusions of the Senate

Committee. Separately, in the proximity reports there is discussion on drift, as noted and

referenced above. The Senate Committee report is also drawn to the attention of the reader who will find the full examination of the question by referring to individual chapters in the

Committee's report.

XIV-201

The W A A comment (page 43) on paragraph 12,

"Exposure to Insecticides", again demonstrates an apparent unwillingness to check a reference thoroughly. In this case, the reference in

paragraph 12 not only directs attention to all the insecticides mentioned by the W A A but also lists insect repellent, mite/tick repellent, creosote, dapsone and paludrine.

ATTACHMENT "A" TO THE PROXIMITY REPORTS

The W A A claims (page 43) that paragraph 1, 2 and 3 of the Attachment entitled, "Sources and

Methodology" gave a misleading view of the HERBS tape and leave certain readers with the

impression, "that the HERBS tape is a full and accurate acount of the use of herbicides during the Vietnam conflict".

As already explained above, the proximity report does not suggest that the HERBS tape gives a full account of such use.

Readers who matter are the claimant, his or her representatives and the Determining Authorities. All of these have access to the NAS Report

through Branch Offices of the Department of Veterans' Affairs in every State.

To support its contention about Attachment A giving a "misleading view", the W A A makes

quotations (pages 44-48) from the very pages of the NAS Report specified in paragragh 1 of

Attachment A. The W A A refers again (page 49) to wind drift and volatilisation which, as pointed out above, are discussed in Attachment A.

The quotations from the NAS Report are what the NAS refers to as "recognised deficiencies". Work has been done to overcome some of these

"deficiencies". The Services HERBS tape, used in the proximity report is one such piece of work. In September 1982 Mr D. Christian described the ongoing construction of the Services HERBS tapes as "a compilation of all identified herbicide spray operations and incidents. The tape now contains over one thousand helicopter perimeter spray missions, other Ranch Hand missions not previously shown on the original HERBS tape.

XIV-202

truck/land spraying, aborts/dumps, leaks and other incidents". (Hearing before the

Sub-Committee on Veterans' Affairs). H of R. September 15, 1982. Serial No. 97-78 p 74).

This tape covers the subject of helicopters and other spraying approved below military region level and dumps. This information was referred to in Mr Manning's statement to the Royal

Commissioner at BASIC 1.

In addition the Army Report was specifically constructed to provide data on helicopter crop spraying in Phuoc Tuy Province. This information is given at Annex H to Chapter 1 of the Army

Report and is referred to in all proximity

reports.

The W A A digresses again from the purpose of

proximity reports when it complains (page 49 et seq) that the reports do not bring to the

attention of Determining Authorities certain documents in the Department's possession. The W A A is aware that the Department's policy is to make available. for the use of Departmental

Officers and Determining Authorities. copies of scientific papers relating to relevant chemicals, without comment or editing and whether favourable or unfavourable to the claims of veterans or the WAA. The documents cited by the W A A have been

made available for Departmental Medical Officers and Determining Authorities. Because of the volume of material, in some instances abstracts are initially provided but the bibliography gives

full reference details so that State Branches and Determining Authorities have access to all material.

W A A draws four conclusions.

(a) That the Proximity Reports, because of the exclusion of these documents. will mislead.

(b) Because the Proximity Reports exclude these documents they are in breach of s. 24AB of the Repatriation Act, in that they do not present all relevant material to a

Determining Authority.

XIV-203

(c) That though the Proximity Reports purport to be reports as to proximity to herbicides, insecticides and other chemicals,

insecticide exposure is played down and no mention is made of so called therapeutic drugs such as dapone (sic).

(d) The reason for these Reports is given by Mr Bruce Manning as -It adds information as to the level if the man was out there. There is some

information that relates - correction - if the unit was out there, it adds more weight of information.

Q. More weight of information to what?

.... To those who have to make a

decision.118

At page 635 of the transcript the

Commissioner said this to Mr Manning:

THE COMMISSIONER [to Mr Mclnnes]: In view of the Act, and I do not want to go

into detail, in effect he [i.e. Mr

Manning who was then in the witness box], said - correct me if I am wrong, Mr Manning - that anyone who went to

Nui Dat during this period was

proximate to herbicide spraying.

Mr Manning did not disagree in any way with what His Honour put to him. If this

statement is substituted for the Proximity Reports, bearing in mind that virtually all army personnel went to Nui Dat, the

Determining Authority would be placed in a very different position to that where it has only the Proximity Reports.

DVA responded:

The first two of these, that proximity reports will mislead because of the exclusion of the documents mentioned and that the reports breach

XIV-204

S.24AB of the Repatriation Act as they "do not present all relevant material", have already been answered. In brief, proximity reports have a limited role (to summarise information on

nearness to chemical spraying locations as shown in the records) and are only one part of the

material made available.

The third contention is that insecticide exposure is played down in proximity reports and that no mentioned is made of 'so called therapeutic drugs such as dapone' . (sic). It is difficult to see

how insecticide exposure can be described as being played down, when paragraph 12 of the

proximity report guotes the Senate Committee conclusion that exposure to insecticides was probable in the majority of cases and refers the reader to a document which list insect repellent, mite/tick repellent, Creosote and Paludrine in addition to Dapsone and the other six chemicals mentioned by the W A A .

In its fourth contention (pages 58-59), the W A A suggests that substituting a statement by the Royal Commissioner for proximity reports would put Determining Authorities in 1 a very different

position'. The facts are these. In the sentence guoted by the WAA, the Commissioner was

interpreting a suggestion that anyone in Nui Dat during a particular period was proximate to herbicide spraying. The proximity report clearly states that perimeter defoliation was carried out

at Australian base camp areas and specifically mentions the herbicides listed for use at Nui Dat during a particular period was proximate to herbicide spraying. It is difficult to see the

point of the W A A contention.

XIV-205

CONCLUSIONS

The Commission concludes:

1. Proximity Reports are not, nor do they purport to

be, a full and accurate summary of the potential

for exposure to chemicals in Vietnam.

2. As at the date of writing this report, 292

Proximity Reports had been prepared by DVA; of

those reports, comments were received in 27 cases

which the Determining Authority referred to DVA.

In no case did DVA consider it necessary to amend

the information contained in any Proximity Report.

3. Source documents which are referred to in

Proximity Reports are available for perusal by

the Determining Authorities and claimants upon

request.

4. The format and structure of Proximity Reports are

such that veterans and widows of veterans may

consider the document to be both comprehensive

and authoritative, in relation to a veteran's

possible exposure to chemical agents in Vietnam.

XIV-206

5. This Commission was given no evidence

demonstrating that there is any misrepresentation

of source material referred to in any individual

veteran's Proximity Report.

6. This Commission accepts that the HERBS tape. as

revised in the light of continuing research. is

reliable„ accurate and comprehensive. It

represents the best and only source data. It is

therefore suitable for use by DVA and relevant

Determining Authorities in claims made by

eligible veterans.

7. DVA1 s adoption of a 5km margin to allow for wind

drift was more than reasonable having regard to

the real potential for such drift and

contemporary scientific knowledge demonstrating

minimal risk to humans.

8. The reference in Proximity Reports to

volatilization of chemicals would alone be of

little assistance to Determining Authorities or

claimants in understanding the process of

volatilization and its consequences. The process

was irrelevant in the light of contemporary

scientific knowledge.

XIV-207

9. Proximity Reports do not, nor do they purport to,

provide for any possibility of direct exposure to

chemical agents by the ingestion of water or

food; nor was toxicity from such sources a risk

to humans.

10. The determination of some claims was delayed

while DVA collected information considered by DVA

as being appropriate to the proper presentation

of Proximity Reports.

11. A significant criticism to be made of the

Proximity Reports is that the whole approach was

misconceived. The fundamental question is - and

always was - DOSE.

A careful analysis of "worst case" exposure

models would have made it obvious that detailed

Proximity Reports were superfluous, except

perhaps in the Soft Tissue Sarcoma and Malignant

Lymphoma cases, which were few in number.

Political factors may have influenced the

approach adopted. A "dose" oriented approach may

also have permitted the Minister of the day to be

more robust in his rejection of the mounting

hysteria.

XIV-208

8.4 Part D: Specific Complaints by W A A of DVA Treatment

In this Part names were originally used. W A A requested

no particular privacy arrangements. The Commission is

however not satisfied that the individuals were consulted

or that their needs will be met unless their names are not

used. Accordingly a numbering system has been adopted. The

veterans themselves or their authorised representatives

can obtain their name/number match from the secretary of

the Commission or from archives.

The W A A submission referred to three major cases:

Veteran 11

As to this veteran W A A submits:

The W A A submits that the case of veteran 11 is an example of the total breakdown of the system that was designed to take care of the returned serviceman.

This veteran's plight was brought to the

attention of the Department of Veterans' Affairs in early 1980. It was well known that he was in an unstable and desperate medical condition.

It would appear that no one within the Department was interested in ensuring he had proper medical treatment.

If such treatment had been forthcoming, it may well be that Mr 11 would still be alive.

XIV-209

This dramatic and extravagant submission is followed by a

rambling recitation of complaints made by Mr 111s widow to

W A A in a letter.

No attempt is made to evaluate the observations, nor is

any precise formulation of the complaint attempted.

The Commission has carefully examined veteran 111 s DVA

files. The following is an accurate summary of the

significant events as disclosed by the files:

5.6.80: Mr Dirk Van Neuren. a Social Worker from the Vietnam Veteran's Association, rang the Senior Social Worker at

Repatriation General Hospital

(Heidelberg) requesting that the abovenamed veteran, who had been under psychiatric care for three years and an inpatient at Larundel for two weeks, be transferred immediately to the

Psychiatric Unit at Repatriation

General Hospital (Heidelberg). Dr Oliver, who had seen the veteran at

Larundel. felt that he was receiving appropriate treatment there.

6.6.80: (a) Mr Van Neuren lodged a claim by Mr 11 for acceptance of Psychiatric

Disabilities and/or Disorders, Skin Problem. Allergies and Ear Problem as related to his service in Vietnam. In

his supporting statement. Mr 11 claimed to have been directly sprayed with Blue Haze Mist Spray at Nui Dat Base on some occasions. He also stated that he had

been basically healthy before Vietnam, but that his symptoms had started

during service there and had since considerably worsened. Mr Van Neuren requested that urgent attention be given to the claim.

XIV-210

(b) Mr Van Neuren and the ex-wife of the veteran, Mrs 11, met with Mr B.G. McPhee, Acting ADC (Benefits). Mrs 11 had apparently been led to believe that

her ex-husband's claim would be

finalised within a month or so. Mr

McPhee explained that processing of the claim would take somewhat longer than that, at the same time promising that undue delays would be avoided as much as possible., Mrs 11 said that she had written to New Zealand (the veteran's

birth place) to obtain clinical notes and a statement from the veteran's

father on changes in his son's

behaviour.

11.6.80: Mr 11 was examined at Heidelberg by the Senior Psychiatrist, Dr Gidley, who stated that the veteran was receiving adequate treatment for his condition at Larundel and that he would not benefit

from a transfer to Repatriation General Hospital (Heidelberg). Both Mr and Mrs 11 were advised of this by Dr Gidley on this occasion. Dr Gidley also stated

in his notes that he felt that no

available psychiatric treatment could significantly help Mr 11.

Unknown: Clinical notes dated 13 June 1980 arrived from Dr P G Fama, Deputy

Medical Superintendent of Tokanui Hospital, New Zealand, stating that the veteran had, following a referral by his local doctor, attended Tokanui and Waikato Hospitals as an out-patient in

early 1979. Dr Fama felt that his

symptoms of depression and alienation were the beginnings of a more serious breakdown.

26.6.80: (a) Following further representations from Mr Van Neuren, a spcial D2120

appointment was conducted at Branch Office by Dr Gruner. Following her examination of the veteran, she

requested that he have a dermatology examination, an ear, nose and throat examination and an audiogram.

XIV-211

(b) Prior to appointment. Mr and Mrs 11 and Mr Van Neuren had presented at the Treatment counter on the seventh floor, stating that Larundel wished to discharge the veteran and that

approaches had been made to have him admitted to Repatriation General Hospital (Heidelberg) as a community- patient. Dr Rose, the Medical

Superintendent at Repatriation General Hospital (Heidelberg), had stated that consideration would be given to this following his appointment with Dr Gruner.

The officer who spoke to them at the

counter (T2) rang Dr Rose, who referred to Dr Gidley1 s statement of 11 June 1980 (see above) and stated that the matter should be referred to the Deputy Director of Medical Services, Dr

Hoyling. This information was passed on to the 11s and Mr Van Neuren.

(c) Dr Gruner noted Dr Gidley's report and the fact that Larundel had

discharged Mr 11 as of 27 June 1980. They felt that they had done as much

for him as possible, and at present he was fairly subdued on medication. She said that admission might be warranted in the future if the veteran failed to

report for further appointments she had reguested so that they could be

finalized. It did not seem necessary to admit the veteran at that time. Dr Hoyling concurred with this

recommendation. This decision was then relayed by telephone to Mr Van Neuren. The Agent Orange Clerk also told Mr Van Neuren that, although the appointments would be arranged as soon as possible,

there was no guarantee that they could be finalised within the three or four weeks suggested by Mr Van Neuren.

30.6.80: Mr McPhee received a telephone call from Mr Race Mathews MLA concerning Mr 11 following representations made to him by Mrs 11. Mr Mathews felt that

XIV-212

the veteran should be admitted to

Repatriation General Hospital

(Heidelberg) as he was shortly to be discharged from Larundel and had

nowhere else to go. Mr McPhee

explained that this could not be done at present as Heidelberg did not have the facilities to accommodate patients in Mr 11's position. Mr Mathews

accepted this explanation but said he would be continually following the case up.

1.7.80: Mr McPhee received a telephone call from Mr Holt McMinn of the Vietnam

Veterans' Association, concerning placement of Mr 11. Representation had been made to him by Mrs 11. Mr McPhee

repeated the explanation he had given to Mr Mathews. Mr McMinn seemed

satisfied and promised to pass the

information on to Mrs 11 and assured her that everthing possible was being done for her husband.

1.7.80: The Deputy Commissioner noted Mr

McPhee's report of the above

conversation and recommended that a Repatriation Board decision be obtained concerning Mr ll's psychiatric

condition as soon as possible. The

other claimed conditions were to be deferred for later consideration.

2.7.80: Section 48 opinion completed by Dr Gruner, with a diagnosis of Personality Disorder. She noted the veteran's home background (violence by mother, early

desertion by father,incest, attempted suicide by sister in 1960-61) and his having left home at the age of

fourteen, and noted that there were no references to psychiatric troubles during his service and no evidence was available suggesting a link between

such service and the veteran's

problems. Indeed service appeared to have had a settling influence of him.

XIV-213

3.7.80: Following a call from Dr Fleming. Chief Director of Medical Services. Dr Rose spoke to Dr Barlow at Larundel in an

attempt to clarify Mr 111s situation. Dr Barlow said that they were holding Mr 11 at the request of Mr McMinn in

the light of the veteran's current

claim. Dr Rose then spoke to Dr

Milenski, who was directly responsible for the veteran's case, and who felt that Mr 11 was quite capable of finding his own accommodation. She had

intended to discharge Mr 11 to the

general community but had not done so owing to representations from Mrs 11, who was attempting to have him

transferred to Heidelberg. Dr Milenski concluded by stating that Mr 11 was not certifiable and not the subject of any police actions or bonds and would be discharged by her back to the community

in the next few days: this action

would not be conditional on Veterans' Affairs doing anything for him.

7.7.80: Chairman No. 6 Repatriation Board deferred consideration of the case requesting that clinical notes

concerning Mr ll's psychiatric

condition be obtained from the Malvern Psychiatric Clinic and the Dandenong Psychiatric Hospital. He also noted that at his discharge medical, the veteran stated that he had suffered from nail biting and suffered a severe head injury on one occasion.

4.7.80: Mr Van Neuren rang Mr McPhee again

concerning a previous telephone call by Holt McMinn to Dr Fleming which had initiated Dr Rose's action of 3 July 1980. Mr McPhee rang Central Office

(Alan Whalen) and was notified of the events of 3 July 1980 above. This

information was then passed on to Mr Van Neuren, who expressed

dissatisfaction that Central Office had not replied direct to either himself or Mr McMinn.

XI V - 2 14

7.7.80: Mr McMinn rang Mr McPhee and reported a telephone call he had received from Mrs 11. The veteran had been on trial

leave from Larundel over the weekend and had stayed with her. However,

following violent outbursts on his part, she had ordered him out of the

house.

Shortly afterwards. Mr Race Mathews' secretary rang and was advised of the current situation.

11.7.80: Mr Malcolm Uhe (El) rang Larundel and was told that the veteran had now been discharged and was living in Oakleigh with his ex-wife.

16.7.80: Routine pathology and RFU tests carried out in connection with the veteran's claim.

Μ VO

00 o

Following receipt of clinical notes requested by No. 6 Repatriation Board (see 7.7.1980), Dr Gruner said that despite the greater detail concerning

Mr ll's condition and in particular his early childhood. there was still no evidence that his Vietnam service had aggravated his pre-existing psychiatric

condition.

29.7.80: Central Office received a copy of a letter sent by Mrs 11 to the Prime

Minister, Mr Fraser, in which she

requested his assistance in having Mr 11 admitted to Heidelberg and having his psychiatric condition accepted as service-related.

1.8.80: Request from Central Office for a

report on ll's case, as a result of the above letter.

o 00 GO

Ο 1

Ear, nose and throat and dermatology examinations carried out.

o 00 00 H rH

Audiogram held.

XIV-215

12.8.80: Report: on case sent to Central Office.

12.8.80: Dr Gruner commented on points raised by No. 6 Repatriation Board as follows:

14.8.80:

The veteran had concussion on three occasions prior to enlistment. There was no relationship between such concussion and his psychiatric condition. She noted the reference

to nail biting on discharge„ but, although it is usually associated with nervous tension there is no way of knowing why the member's nails were bitten on this occasion. It may have been due to his

experiencing stress on discharge with consequent worries about what to do in civilian life. There was no evidence of any stress on service or aggravation on service of his pre-existing psychiatric condition.

No. 6 Repatriation board rejected

member's Personality Disorder as not service-related.

18.8.80: Member notified of decision by mail.

2.9.80: Final diagnosis of members ear problem by ear, nose and throat specialist.

9.9.80: Section 48 opinion by Dr Gruner in

respect of skin problem allergies and ear problem. His ear problem was

diagnosed as Sensori Neural Deafness which was not considered to be related to service but due to normal wear and tear. No incapacities were found with

regard to his claimed skin problem and allergies.

9.9.80 A letter was received from the

Australian Legal Aid Office, requesting that a full summary of Mr 11's medical history be forwarded to them. The

veteran's signed authority was enclosed.

XIV-216

16.9.80: The Australian Legal Aid Office was advised that their request could not be complied with, as no summary had been prepared. However. they were invited

to examine Mr 111 s files at Branch

Office.

29.9.80: No. 6 Repatriation Board rejected Sensori Neural Deafness and recorded findings of no incapacity found in

respect of skin problem and allergies.

14.10.80: Veteran advised of decision.

17.10.80: Mr Robert Coleman, a columnist from the Melbourne Herald, rang Sir Richard Kingsland, Secretary of the Department, and said that Mrs 11 was publicising

the rejection of Mr 111s disabilities - in particular his psychiatric

condition. Mr Coleman felt, from what he had been told, Mr 11's condition was aggravated by service. He had medical

advice that while Mr 111 s condition is highly treatable, lack of treatment may result in him becoming a threat to the health or life of others.

21.10.80: Sir Richard wrote to Mrs 11. pointing out that over the last few days he had made several attempts to ring her, both at her home and through the Vietnam

Veterans Association but to no avail. He then invited her to ring him reverse charge if she wished to discuss her husband's case.

24.10.80: Sir Richard contacted the Deputy Commissioner (Victoria) regarding possible admission of Mr 11 to

Repatriation General Hospital

(Heidelberg) or some other departmental institution. He was informed that Dr Gidley had already indicated that there was no treatment purpose to be served in admitting Mr 11 to Heidelberg.

Admission to Bundoora was restricted to patients with service related

psychiatric conditions. Mr 11 would however, be admitted to Heidelberg if acute hospital treatment was indicated.

XIV-217

24.10.80: The Deputy Commissioner rang

Repatriation General Hospital

(Heidelberg) and spoke to Dr Rose who then contacted Dr Gidley. Dr Gidley agreed to see Mr 11 at Heidelberg on 29 October 1980, and if he felt acute

hospital treatment was indicated, arrangements would be made for Mr 11 to be admitted as a community patient.

27.10.80: Mr Van Neuren rang the Deputy

Commissioner's Office and spoke to his secretary. Mr 11 had advised that he was currently under treatment from two specialists from the Royal Melbourne Hospital, and that he was quite happy with the situation. He would not,

therefore, be reporting for his

appointment on 29 October 1980. He

would however, like to receive

treatment at Repatriation General Hospital (Heidelberg) should he require it in the future. He also complained to Mr Van Neuren that he had heard

nothing since he applied for treatment from Veterans' Affairs three months earlier.

28.10.80: Sir Richard advised Mr Coleman of the events outlined in the above entries following his telephone call.

29.10.80: Dr Rose advised the Deputy Commissioner that, in Dr Gidley' s opinion, the fact that Mr 11 was under treatment at the Royal Melbourne Hospital did not

necessarily mean that he required acute hospital treatment. Professor Davies and Dr Burroughs of Royal Melbourne Hospital have been investigating the

causes of conditions allegedly Agent Orange-related on their own account. This could well be the reason for Mr

ll's admission.

5.11.80: Dr Cooper spoke to Dr Gidley who told him that, according to Dr Freed, a

visiting psychiatrist, the Vietnam Veterans' Association has asked a

number of private psychiatrists to examine Vietnam veterans allegedly exposed to herbicides.

XIV-218

He also spoke to Professor Davies who was unaware that Mr 11 was in the Royal Melbourne Hospital.

13.11.80: Another letter was received from the Australian Legal Aid Office appealing to the Repatriation Commission against the Repatriation Board's decisions of

18 August 1980 and 14 October 1980. In the course of the letter mention was made of the veteran being currently treated by Dr B Holwell of the Clinical Sciences Block at Royal Melbourne

Hospital.

26.11.80: Acknowledgement of receipt of appeal.

27.12.80: Veteran's body found hanging from a tree at a reserve on the Boulevard in Kew.

29.12.80: Notice of death in ' The Sun' - first indication of death to Branch Office.

30.12.80: Telegram from David Harris, State President, Vietnam Veterans'

Association to Sir Richard Kingsland:

Regret to advise you that our office worker. Mr 11 who recently had a

claim rejected by your Department, died 27 December 1980 aged thirty three years.

This case became something of cause celebre because his

death, and the facts surrounding it, were given widespread

publicity in the press.

It is incorrect for Mrs. 11 to assert, as she vehemently

did, that the psychiatrist and those treating her husband

were unaware of his experiences in Vietnam. In the

XIV-219

records there are numerous references to his experiences

of Vietnam. It is therefore unhelpful and unsound for her

to assert, "Was he ever asked what happened in South

Vietnam?! Did he or any of the other Vietnam veterans

tell you people ALL of the mental turmoil and horrors that

they suffered? No!".

There is a large element of over-statement in Mrs. ll's

response. which may perhaps be understandable having

regard to her own grief.

The decision of the Delegate of the Repatriation

Commission on 5 July 1982, to allow the appeal against the

Repatriation Board's rejection of 14 August 1980, could be

used by critics to denigrate the original decision of the

Board. Success in appeal to another level of

decision-making frequently occurs and is not confined to

the Repatriation system although in that system the

apellate success rate is prodigiously high. In this case

the Delegate deciding the appeal had access to additional

evidence in the form of an opinion from Professor Gordon

Johnson, Associate Professor, Department of Psychiatry,

Royal Prince Alfred Hospital, Sydney, which established a

doubt about the substantial weight of medical evidence

available to the Board that Mr ll's service experiences

could be wholly excluded as contributory.

XIV-220

Despite the earlier rejection of Mr ll's claim by the

Determining Authority, the Department went beyond its

statutory obligations in trying to help Mr and Mrs 11. Any

denigration would be entirely inappropriate.

This Commission is satisfied that the medical treatment of

this veteran by DVA was the best that could be given in

the circumstances particular to Mr 11. His war service

experience was extensively considered within the limits of

his co-operation with DVA. This Commission also accepts

that, contrary to Mrs ll's firmly held and expressed

belief, the claim by Mr 11 was processed reasonably and

rapidly. The Department were aware of representations to

the Prime Minister and State politicians by Mrs 11 and by

the Victorian President of VVAA. The Secretary to the

Department had taken a personal and direct interest in the

matter and the determination by the Repatriation Board

took place approximately 10 weeks after the claim, against

a norm of between 6-8 months applying at that time. This

may be of cold comfort to Mrs 11, but indicates that the

Department genuinely, and seriously, sought to discharge

its responsibilities to Mr 11.

In all the circumstances this Commission is satisfied that

DVA reasonably, and reasonably guickly, discharged its

XIV-221

statutory obligations to the veteran and to his ex-wife

and their dependent children. The submission of W A A in

respect of his case is entirely without foundation.

Veteran 12

This case caused the Commission serious disquiet. This

Commission is satisfied that there was serious misconduct

by a DVA doctor and that the departmental response was too

lenient.

On the other hand, the Commission accepts that this case

was an isolated example.

While on holidays in the Philippines Mr 12 became

concerned about the rapid growth of a lump on his face.

Following a medical consultation he left the Philippines

on the first available flight to Australia, arrived at

Mascot Airport and went straight from there to Concord

KGH, reporting to the Emergency Accident Centre.

He was physically examined by a Dr. Janu who made a

tentative diagnosis of parotid tumour.

XIV-222

D l· Janu explained to Mr 12 that surgery would be required

and that it might take several weeks before possible

admission. Mr 12 became abusive and left before any

further admission arrangements could be made.

That same day (Tuesday 22 March 1983) Mr 12 saw his Local

Medical Officer (Dr Robilliard) who arranged an

appointment for him to see a surgeon at RGH (Mr Gillett)

on 31 March 1983.

Meanwhile, Mr 12 privately consulted a specialist (Mr

Cumberland) on 26 March 1983. Mr Cumberland diagnosed a

parotid tumour and made arrangements for Mr 121 s admission

to the Royal North Shore Hospital (RNSH) on 6 April 1983.

subsequent to which he was operated on 8 April 1983.

Despite these arrangements for his admission to RNSH on 6

April, Mr 12 saw Mr Gillett on 31 March 1983. Mr Gillett

performed an examination. Four student doctors present

during the examination also examined him which, although

usual at a teaching hospital, upset Mr 12. Mr Gillett

informed Mr 12 that DVA would notify him when he was to go

into Concord Hospital and that there was "little to worry

about" . Mr 12 did not inform Mr Gillett that he had

already seen Mr Cumberland five days previously, and that

he was to go into RNSH one week later.

XIV-223

The operation on 6 April 1983 was a superficial

parotidectomy. The pathologist reported metastatic

squamous cell carcinoma in the section removed. On 18

April 1983 Mr 12 was transferred to Sydney Hospital under

the care of Professor Stevens. He there underwent

intra-arterial infusion chemotherapy to the parotid

region. After 5 weeks the procedure was completed. 28

sessions of radiotherapy followed.

In late April 1983 , DVA advised Mr 12 that he was to be

admitted for an operation which they had arranged "during

or around the month of August 1983 ". In May 1983 he

received a letter indicating that he would be admitted to

Concord Hospital on 21 August 1983.

Dr Cumberland expressed his opinion to Mr 12:

When you presented with a tumour, right parotid salivary gland, which was growing fairly quickly I fe.lt this should be removed without undue delay as the chances of it being malignant were

significant.

The W A A submitted that the urgency of the situation was

beyond any doubt, and that if the Philippines and Sydney

specialists were alerted to the urgency of the situation

and the possibility of a carcinoma, it was clear that the

XIV-224

DVA doctor seen at Concord Emergency Accident Centre

should have had the condition diagnosed by a specalist

forthwith. It was also submitted that Mr Gillett, as the

surgeon, should have arranged immediate admission after

his consultation with Mr 12 on 31 March.

When he saw Mr 12, Mr Gillett gave written instructions to

the Admissions Clerk on a Special Services request form

but failed to indicate any urgency. Accordingly the case

was treated as routine. Mr 12 was advised twice by letter

as to the tentative and the final admission date. The

surgeon believed that a time of 2-3 weeks following

consultation would be appropriate for a parotid tumour.

He claimed to be unaware of any delay until Mr 12

complained in May 1983. In March 1985 Mr 12 was informed

that the surgeon had been under a misapprehension that

there was a waiting time of only a few weeks. The waiting

time was in fact considerably longer. The Commission does

not accept this misapprehension. The Commission also

believes that Departmental officers concerned did not

accept it although it was passed on to placate the veteran.

The Commission is satisfied that a delay of almost five

months was quite inappropriate. It is not to the point to

XIV-225

say that Mr 12 was not actually in danger because he had

arranged alternative treatment. The system failed and

failed badly.

Mr Gillett failed to indicate urgency as he properly

should have. Worse, he has admitted to his superiors that

he falsified the record by adding the words, "within 2-3

weeks" to the Special Services Reguest form after the

veteran complained in May. He said this was "to obviate

continuing correspondence".

This is totally unacceptable.

He is described as a surgeon of the highest calibre, and

as a conscientious and highly respected member of the DVA

staff.

It may well be that the two flaws displayed in his

conscientiousness are aberrant and out of character. The

Commission is prepared to accept his employer's judgment

that this is so.

He having admitted his falsification of the records as

described above, it is patent that the "strong reprimand"

issued at that time was guite inadeguate to the

circumstances.

XIV-226

However, the Commission is of the view that the

publication of his name in this Report will make further

action unnecessary.

The Commission accepts that the Department now has

established firmer lines of checks and controls to ensure

that urgent treatment is given urgently.

The implication in W A A 1s submission that other similar

cases exist is unwarranted. The Commission knows of

none. It notes that the Repatriation system involves

119

literally millions of medical consultations per year.

It is clear that Mr 12 never intended to rely on the

Repatriation system after his abuse of Dr Janu and that

following his consultation with Mr Cumberland on 26 March

1983 and/or during his visit to Mr Gillett on 31 March

1983 when Mr Gillett informed him that there was "little

to worry about", he decided to set that doctor up.

The Commission notes that DVA frankly disclosed the

falsification of the records. This is typical of the open

way in which DVA has accepted the investigations by this

Commission.

XIV-227

Veteran 13

The W A A submits that "the case of veteran 13 (MKM 3471)

is an example of the Department of Veterans' Affairs

failure to apply the standard of proof as required under

the Repatriation Act."

This misconceives the statute (as it then was). Sections

47 and 107VH apply to the determining bodies rather than

to DVA.

The Board, the Commission, and the RRT all found Mr 13 to

be suffering from Huntington's Chorea which is a disease

of genetic origin.

W A A pointed to two opinions by medical men of eminence.

One of them. Dr Eadie thought the disease was probably

Huntington's Chorea although it might have been chronic

progressive chorea.

The other. Dr Maxwell said that,

A consideration of some intoxication during his service should be reviewed.

XIV-228

And

Since his disorder arose during his service and since he was exposed to herbicides and other toxins consideration should be given to this matter being due or directly a result of his

service career.

The RRT requested a special Medical Board to review the

case. It already had opinions diagnosing Huntington's

Chorea from Dr Perkins, Dr Lusson and Dr Game.

The special Board consisted of neurologists Drs Bandy and

Banney and Dr Kirkpatrick.

The Board found:

Final Diagnosis - Huntington's Chorea

Reasons for Diagnosis - Clinical presentation and CT Scan are indicative and/or consistent with the diagnosis.

(The absence of a severe degree of dementia does not preclude the diagnosis).

"Cause of Diagnosis" - Genetic.

A determination has yet to be made.

The Commission can see no basis for criticism of DVA:

indeed the case seems to be one of entirely appropriate

XIV-229

management;. The Commission does not’ of course pre-empt

the determining body's decision.

8.5 Part E :

General Complaints of Treatment by DVA as Alleged in W A A

Submission

The Seventy Six

The W A A submission next contained 7 6 complaints. These

were - on their face - extracts from complaints by

individual veterans. Despite their entirely inappropriate

form they have been analysed in detail so far as was

possible. With this limitation the Commission comments

further on their form post.

Veteran 14 did not serve in Vietnam as Counsel Assisting

discovered in the first minute of their interview with

him. Counsel for W A A could not explain his

inclusion.118

Veteran is. who complained that his wife was told by a DMO

that he was an alcoholic. The DMO concerned has left DVA

and could not be questioned.

XIV-230

However, the following entries are to be found on his form

D2120.

Page 2 - Interval: 0-12 months - symptoms:

nervous problems excess alcohol intake duration: 11 years.

Back of page 2: Drinking: Once starts keeps on going. Trying to cut it down. Even now on top

shelf drinks.

NB Car Accident - smelt ETOH - but not drunk.

Spends $20/week - but goes to Mess where is

cheaper .

Page 6: ETOH 3-4 bottles/day.

Back of page 7: very placid. Gradually has

changed and drunk more and more. Wife mentioned this - annoyed him. Has drunk less over past few months - after threw spade at wife. Occasional drink at night.

Page 10: Provisional Diagnosis: ?Alcoholism -personality disorder. (emphasis added).

In his own claim form he included in his history the

phrase "heavy drinking bouts".

The Commission regards counselling about his drinking

habits as appropriate. The manner of the counselling

(through his wife) was inappropriate, if it occurred.

This is a minor matter on any view.

Veteran 16. W A A says :

The veteran complained to the Department that he was suffering from:

Severe headaches, heart pains, stomach problems - indigestion, overacidity, heartburn, severe pains, ulcers,

intestinal/bowel problems - constipation, bleeding, piles, sinus, nervous anxiety, excessive salivation, nausea and vomiting, insomnia.

He was diagnosed as having no organic disease, that all symptoms were due to psychosomatic manifestations of chronic paranoid

schitzophrenia. It was later found that he was suffering from acute diabetes plus complications.

The veteran also complains that his interview with the psychiatrist was extremely short.

A careful examination of the file has been undertaken and

it leads the Commission to the following conclusions:

(a) Fourteen diagnoses were reached after thorough

investigation and the contention that no organic

disease was diagnosed cannot be substantiated.

In fact, thirteen out of the fourteen diagnoses

are "organic" disabilities, though most of them

are sometimes associated with psychiatric

disability.

(b) The psychiatric report of the examination on 9

October 1980, 1 1/2 typed pages long contains

XIV-232

many items of information from past psychiatric

history and relevant signs and symptoms. An

"extremely short" interview seems unlikely.

(c) Veteran 16 failed to attend an appointment with a

psychologist on 21 February 1983, but kept an

appointment on 12 April 1983. The report shows

that a full psychometric assessment was

undertaken.

(d) On 11 November 1982 Veteran 16 failed to attend

the psychiatric appointment with Dr Spragg.

Another psychiatric appointment was arranged for

11 April 1983. The typewritten report is a page

and a half long and is filled with information.

The interview could not have been brief.

(e) The signs and symptoms presented by Veteran 16 in

writing in his claim and the records written by

various Medical Officers do not suggest diabetes

mel1itus. Examinations (two) of the urine did

not detect glucose in the urine and the blood

sugar level was unequivocally normal.

XIV-233

This complaint is without substance whether or not Veteran

16 later developed diabetes - which has not been proved.

Veteran 17. W A A complains:

The veteran complains that the interviews

conducted by Doctors Killick and Hession (sic) were more like interrogations and that the

contents of his answers were incorrectly recorded.

The Doctor's name is Hessian. This veteran was examined

in connection with both previously accepted disabilities

and for chemical exposure. This is a double process and

is always lengthy and detailed. The veteran may well have

felt "interrogated" at the end of it.

The Commission sought details from W A A of the alleged

interrogation and of what was incorrectly recorded.

Having not received them it cannot take the matter further.

It finds no valid complaint made out.

Veteran 18. W A A submits:

The veteran complains that his application for headaches was refused even though the headaches started in Vietnam and have continued.

XIV-234

He also complains that in 1973 his appeal against this decision was set in Townsville, Queensland, and he was unable to attend as he was residing in PNG. His appeal failed because there was no

record of the complaint on service and he

received no advice or help as to whether he could still claim.

The Commission notes that this veteran has deafness as a

service related disability. As to his headaches, the file

reveals the following:

On 19 April 1972 a Form Z was received in respect of headaches. The Repatriation Board, NSW, refused the claim on 26 July 1972 as the member failed to attend for investigation (f15). Folios

8 and 9 of the medical file indicate that the

department had no record of the address in New Guinea. Veteran 18 was advised of the

Repatriation Board's decision and of his right to re-open the case (f 20).

A second Form Z was lodged on 2 January 1973 for migraine headaches and a medical examination was arranged with the Department of Public Health, 1 Goroka (refer folio 36). The Repatriation Board

rejected this claim on 16 February 1973. Advice was forwarded to Veteran 18 on 21 February 1973 concerning the decision and right of appeal (f 51).

An appeal to the Repatriation Commission was lodged on 28 March 1973 in Queensland. A copy of the Commission's decision is at f 56 plus the comments from the Assistant Director of Medical Service (f 55) on the earlier Section 48

opinion. The appeal was disallowed.

Advice of the decision and right of appeal was sent to the veteran on 24 July 1973 (f 58

refers); at that time no reasons for decision were given.

XIV-235

This establishes that the veteran had pursued his claim

effectively for a period, and that he did not take the

last appeal step. although advised of his rights. The

Commission finds no valid complaint made out.

Veteran 19. W A A complains :

Veteran complains that in October. 1982 he was transferred from Tweed Hospital by road to

Greenslopes Hospital, Brisbane. He waited 6 1/2 hours before being admitted. He was informed that there was no food after 5 pm. His last meal was lunch at Tweed Hospital and his next meal was

breakfast the following day.

This man certainly could have missed a meal.

Veteran 20. W A A says :

The veteran complains that psychiatric patients should not have to wait 6 weeks to see a

psychiatrist.

The file shows that Veteran 201s Local Medical Officer has

requested treatment for his psychiatric condition 3

times. These were:

request received 7 October 1975 - admission 9 October

1975, (2 days);

XIV-23 6

request, received 5 March 1980 - appointment 8 April

1980; admission 14 April 1980. (6 weeks);

request received 25 March 1981 - admission 26 May-1981, (2 months).

For diagnosis and report he had a claim lodged 8 October

1974 - appointment 4 December 1974.

There is indeed a problem with the volume of appointments,

as observed elsewhere.

There was no discrimination against this veteran,

personally or as a Vietnam veteran.

Veteran 21. W A A says:

The veteran complains that for 7 years he was receiving a Repatriation pension. The name of the disease was changed and the pension was stopped. Had a confrontation with Dr Thorpe who

instigated the stoppage. The doctor told him:

You are costing the Repat too much money in treatment.

The veteran has appealed against this stoppage.

The Repatriation Commission found in 1977 that earlier

diagnoses of duodenal ulcer (1970) and colitis (1971) were

XIV-237

untenable and that any current problems were not service

related. This decision was based on the opinion of the

Senior Medical Officer, Dr Grainger. Dr Thorpe was a

physician who, in 1976, had counselled the veteran about

his drug and alcohol consumption. This veteran spent from

2 July 1970 to 12 August 1970 in Vietnam.

This veteran was advised in 1977 and again in November

1979 of his right to appeal and an RRT appeal is pending.

Orthodox procedures have been followed.

No valid complaint has been made out.

Veteran 22. W A A says:

The veteran complains that his nervous disorder has not been recognised as due to war service. He says:

My first marriage was destroyed by my war service. My injuries to my shoulder

triggered me.

The veteran receives a 75% pension for shrapnel wound to left shoulder.

This man's claim for nervous disorder is current and

awaiting determination. His medical investigations were

completed in November 1984.

XIV-238

This has been a slow process delayed by the Commission's

call for his files.

Delay in determination is a valid complaint. This man has

not been discriminated against either personally or as a

Vietnam veteran.

Veteran 23. W A A says:

The veteran complains that he was told that his hearing loss was due to working as a boilermaker, even though he had been operated on in Vietnam for a perforated eardrum after a contact with the enemy. He was told to claim against his previous employer. He was also told that his "tinea" of his feet and groin would go away if he washed. He still has the tinea 12 years later.

This man has had his sensori neural deafness allowed. All

his other claims were dealt with by Tribunals up to the

War Pensions Entitlement Appeals Tribunal„ all of which

refused his claims. There is no sign of any untoward

procedure. There is no evidence in the file of any advice

concerning his "tinea" such as that alleged. He lost his

claim in connection with the tinea.

He was not discriminated against. No valid complaint is

made out.

XIV-239

Veteran 24. W A A says:

The veteran complains that:

I was warned not to make any more appeals to the Department or I would lose the 30%

pension I already have been granted.

No particulars were available as to who warned him despite

requests. No statement was provided. He did not in fact

appeal. He has a 30% pension for, inter alia,

schizo-affective personality. There is needless to say no

record of any such warning. On the other hand. there is

evidence of his being advised of his rights to appeal,

although the veteran has yet to exercise such rights.

The Commission finds no valid complaint made out.

Veteran 25. W A A says:

The veteran complains that his disabilities should have been accepted as war caused because as he was in good health prior to Vietnam. He now suffers from 1 bad nerves' dermatitis in large toes causing the nails to fall off.

He was unsuccessful before the Board on 22 January 1979

for the following claimed disabilities.

XIV-240

Low back strain (recurrent);

Osteoarthritis (right knee);

Chondormalacia (left) patellae

Dyskeratosis of nails

Functional chest pain;

He did not appeal. The findings of the board were based

on medical opinion, uncontradicted.

Veteran 26. W A A says :

The veteran complains that his disability, namely 1 right seventh nerve palsy' should have been accepted by the Department because the disability was contracted in the 'war zone1.

His right 7th nerve palsy was accepted on 4 May 1970. He

receives a 30% pension.

The complaint is quite unjustified.

Veteran 27. W A A says :

The veteran complains that Dr Burfitt Williams on Concord Repatriation Hospital told him that:

All Vietnam veterans only wanted something to claim on and he would not tolerate stupid claims about sprays of any kind.

XIV-241

Dr Burfit t Williams admitted Veteran 27 to Concord for

pyrexia of unknown origin on 23 July 1979. He saw him

over a period of 2 years both as an in-patient and as an

out-patient. No record of discussion of sprays appears

nor of any such incident. The relationship between

patient and doctor continued until 29 May 1981, without

rancour.

The complaint is not made out.

Veteran 28. W A A says :

The veteran complains of hearing loss, blurred vision, bleeding from bowel, knee injury and bad nerves. All disabilities were rejected in 1982.

On 12 July 1983 this man had sensori neural deafness

accepted. but the following disallowed:

Haemorrhoids

Nervous condition

Post traumatic osteoarthritis of (L) knee;

Refractive error

Chronic follicular conjunctivitis.

The disallowance was based on medical opinion.

XIV-242

He was advised of the decision and his rights to appeal

regarding pension assessment and non service-related

disabilities on 19 July 1983. He did not appeal.

Procedures were regularly followed without any

discrimination. There is no valid complaint made out.

Veteran 29. W A A says :

The veteran is a TPI pensioner accepted

disabilities are, leg injuries, back pain, shrapnel wounds to face, thighs, legs, chest and arms. He complains that:

Administration staff are often discourteous rude and leave you waiting with no reasons given. Medical staff often insinuate that Vietnam veterans are bludgers. Taken to

Sydney for four years for treatment - none given.

An examination of his files leads to the following

conclusions: there is no evidence on the veteran's files

to indicate he is unhappy with the service supplied by the

Department.

Veteran 29 attended the Rehabilitation Clinic, RGH Concord

on a regular basis between 1977 and 1980. During this

time. Veteran 29 received intensive physiotherapy

treatment. He also received training and fitting for

surgical aids such as a caliper for his injured leg, a

XIV-243

special shower fitting and a Levra chair in an effort to

retain the veteran in the work force.

Veteran 29 was regarded by the Rehabilitation staff as an

excellent example of an individual determined to overcome

a severe disability.

Veteran 29 has a TPI pension.

The W A A submission on this veteran is puzzling. What can

one conclude without dates, times or other particulars -

or a statement?

No valid complaint is made out.

Veteran 30. W A A says :

The veteran receives a 20% pension for chronic anxiety state, tension headaches, acne vulgaris. He complains that the attitude of staff is rude. That the Department did not reply to his

letters. That telephone calls to the Department lead to 1 transference to various extensions'.

A file examination shows that Veteran 30 receives a 20%

disability pension. He has an application for increase in

pension pending.

XIV-244

Veteran 301s application for service pension on the ground

of permanent unemployablity was rejected by a Repatriation

Board on 2 July 1984.

There is no evidence on file of correspondence that has

not been answered, nor that any complaint has been

received regarding the conduct of DVA staff.

No particulars were forthcoming. The telephone guestion

is discussed generally above. No valid complaint is made

out.

Veteran 31. W A A says:

The veteran made application for physical

scarring and anguish following an accident in Vietnam in which he suffered a broken jaw, broken left ankle, multiple facial and chest injuries, including a deep cut to right cheekbone and

partially severed right ear and pneumonia, which he contracted en route to the American base

hospital at Long Binh. His application was disallowed in 1973. He complains that he was unable to obtain any information from the

Department on the use of herbicides in Vietnam when he enquired after the death of his second child in 1979 from Hydrocephaly and Spina Bifida."

His file shows that these service related disabilities

were allowed but that no incapacity was found. This was

on 26/3/71.

XIV-245

There is no record in his file of any inquiry from him

regarding chemicals. Records of such inquiries have often

been found by this Commission. In the absence of

particulars, a statement, or any other evidence. no valid

complaint could be found.

Veteran 32. W A A says:

The veteran has the accepted disability of

nervous depression, other claims have been refused. He complains about the treatment of in-patients at Ward 34 of Concord Hospital. This

complaint is at present subject to a Ministerial Inquiry.

This man has a depressive reaction, found to be service

related and his incapacity has been assessed at 100%.

(14/10/68 RB).

His complaints were investigated by the Minister and a

reply sent to him and his local member on 24/5/83.

His complaint concerned group therapy sessions and counter

staff reactions. The response to complaint seems

appropriate and no further complaint has been received

from him. Group therapy is sometimes stressful. No valid

complaint is made out.

XIV-246

Veteran 33. W A A says:

The veteran has an accepted disability of

duodenal ulcer (20%) . He had also claimed for personality disorder, tension headaches, asthma. He was concerned that all his medical evidence prior to enlistment was not examined. He

appealed to the Repatriation Commission on 6 April 1983 .

This is again surprising. He has had accepted (on

6.11.80!):

Personality disorder

Tension headaches

Intercostal neuralgia.

On 10.4.84 osteoarthritis lumbar spine, and more recently

bronchial asthma.

Normal procedures were followed and there is no sign of

discrimination. What jj5 the complaint? Certainly no

valid complaint is made out.

Veteran 34. W A A says:

The veteran first applied for Repatriation benefits in 1970 for 1 nerve trouble1 . This was diagnosed by the Department as 'inadequate personality with anxiety symptoms'. The 1970 application was disallowed, a fresh application was brought in 1982. It was allowed in 1983.

XIV-247

The veteran says that the procedure obstructs the veteran more than it helps. The counter staff are rude.

The veteran is currently in receipt of disability pension

at the 100% rate plus additional pension at the TPI rate

for post-traumatic stress disorder. The file search shows

this veteran has two claims outstanding; one an

application to backdate payment of his pension (RRT) and a

Departmental disability pension review. His file contains

no complaint by him.

In the absence of particulars and/or a statement no valid

complaint is made out.

Veteran 35. W A A says:

The veteran applied for Repatriation benefits in 1972-73 for skin rash, asthma and depression. (He still suffers from these). He says he

received no help or advice from the Department and 1 was shown the door 1.

The fact is that. effective 19/10/80. this veteran has

received a TPI pension for PTSD. He lodged an application

for service pension on 17 May 1982. This was granted on

23 June 1982.

XIV-248

He previously claimed for 1 insomnia, depression and guilt

complex' in August 1977 and his claim was refused when he

failed to attend for investigation of his claim.

There is absolutely no substance in this complaint.

Veteran 36. W A A says:

The veteran applied for Repatriation benefits in 1974 for stomach pains and skin rashes. (He

still suffers from these). Presumably his

application was refused as he says:

The Department agreed my illnesses existed but would take no responsibility. No help given in any form on finding that my

illnesses existed. Unsatisfactory advisory service available after being discharged from the Army.

He In fact claimed on 14/11/76 for stomach trouble and

tinea. The Board re.fused his claim 4/4/77. He has not

appealed. The file shows orthodox procedures were

followed and that there was no discrimination against

him. No valid complaint is made out.

Veteran 37. W A A says:

The veteran first applied for Repatriation benefits in 1973. He was refused. He was

finally granted a 100% pension in September. 1983.

XIV-249

He complains that the Department continually obstruct applicants and delay.

Veteran 37 in fact wrote a letter of complaint to DVA on 2

January 1983. It said:

Dear Sir

Please find enclosed forms D2046 and 12' . I was given these forms by Mrs Margaret Duncan at 9am on the 31 Dec 82. She asked me to 'fill them out while I waited to see the doctor1 . (My

appointment was for 9am) . I told her I would

take them home, read them and fill them out and send them in. She told me; To have them in by

the 8 Jan 83 or they would not accept them1.

Mrs Duncan also said that I was to be examined for 1 Agent Orange1 by the same doctor that ... and showed me a letter (green copy) which she said was sent on the 23 Dec 82 to me and asked

did I receive it? I said no, so she read it to

me. (It was a letter sent to me by the Dept Re;

our phone conversation on the 22 Dec 82. I will expand on this point later. Firstly, I am

horrified at the abuse and treatment given to me, an ex war veteran by your Departmental staff. At the way she told me to 'fill the forms out while I waited' and to ' have them in before the 8 Jan

83' or, 'they would not accept them'.

It also seems unfair to me, that you should not be told, until you arrive for an appointment that, 'you will be examined for Agent Orange'. I was totally unprepared for a 2 hour exhausting

interview by a departmental doctor. Surely you should be given more than 2 minutes notice for such an appointment. (I saw Dr S Davison at

0902) .

My other complaint is far more serious: On the 22 Dec 82 at 1420 hrs Mrs Margaret Duncan phoned me at work at the H/O Electoral Office, Sydney, when I answered the phone a Mrs Margaret Stunken

said she was from the Department of Veterans' Affairs (I asked her to spell out her name which

XIV-2 50

she did - ' Stunken1 ) and that she had something to tell me; she (Duncan) said -My claim for black spots in eyes and Vietnam post traumatic stress was, according to a

Department doctor, the same as my now

accepted claim for anxiety state and that the Department was going to refuse my 2 new claims, however if I wanted to I could

appeal against this decision.

1 was horrified at this ad hoc advice and thought it was completely improper also. I asked her to repeat what she said and she did. I then told

her I have not seen any Department doctor for the 2 new claims, so how could the doctor say this, she said she didn't know. I asked her to put

what she quoted to me in writing, she said he couldn't at first, but changed her mind when I demanded it in writing. She said I wouldn't ' get it' before Christmas. I said that was OK I could wait.

The next day the 23 Dec 82, I phoned the

Department and asked to speak to Mrs Margaret Stunken. The switch girl said there was nobody there by that name but a Margaret Duncan I talked to her. I asked did she phone me yesterday? She said she did. I asked her to give me the name of the doctor who made this astonishing decision? She said she could not. I then asked her again

to put it in writing? She said she would.

I would like to ask you Sir. the Deputy

Commissioner, some very important questions.

(a) Do you advise and train your staff in the manner Mrs M Duncan advised me?

(b) If (a) is correct, (which I find it

difficult to believe) what is the Department of Veterans' Affairs all about?

(c) What has happened to 'service' given by

public servants, eg courtesy, friendly, helpful, sympathetic, understanding etc etc.

(d) Is this treatment only given to 'Vietnam veterans', especially the ones who mutter those awful words, 'Agent Orange'?

XIV-251

(e) Do you allow anybody to refuse a claim

without seeing a Departmental doctor?; either on the phone or by letter?

(f) Is it normal practice to expect any returned serviceman to undergo an exhausting 2 hour medical examination at 2 minutes notice?

(g) Do you expect a returned serviceman to fill out several forms, while he waits to a

doctor? or told to 'get them in by 8 days'?

(h) Is Mrs M Duncan working as directed from

management advice?

I know you are very busy running your Department, but could you please find the time to answer my 8 questions and not let some junior employee answer them or bury them on the 'too hard file'.

Awaiting your reply.

Yours faithfully Veteran 37

PS. I have not yet received Mrs Duncan's letter of 23 Dec 82. Could you please send another copy.

Mrs Duncan wrote a report, as follows:

Veteran 37

This Vietnam veteran submitted a claim for 'black spots both eyes' on 8 October 1982. As his files had just been sent to the Repatriation Board for other claims. I could not get the files to start

immediately on this claim. On 11 November he lodged another claim for post trauma stress reaction. I

I eventually obtained the files on 8 December and sent them to the DMO for comment as to whether post trauma stress reaction was part of the accepted disability anxiety state or a new

disability. Dr Ng wrote that it was related to the accepted disability.

XIV-252

As mails are not good before Christmas and both claims were informal I rang the veteran on 22 December at work and explained that our doctor considered the post trauma stress reaction was

part of the accepted disability anxiety state. Veteran 37 became quite nasty, saying how could a doctor say that without seeing him and wanted to know the doctor's name - which of course I

refused to give. I did give him mine and the

extension number explaining I would be handling his new claims if he had any enquiries. I also explained that he could appeal and would send him a letter to this effect. I explained he would not get the letter before Christmas. At the time he was talking about Vietnam Veterans Association and complaining about his treatment but I thought

I had left him pacified. The phone call had

upset me so much I wished I had only written and not taken the trouble to explain in person.

I checked on all the various claims and appeals this man has current and found he had a D3 9 5 - general medical and psychiatrist appointment booked for 16 February for Tribunal appeal for assessment. I checked he could lodge an AFI and

took the letter to the typist the following

morning.

On 23 December (ie next day) the veteran rang back about the letter. I had just received the type written copy and read it out to him. I

explained again that it would not arrive before Christmas. He again wanted the name of the

doctor with more mutterings of Vietnam Veterans Association. I again refused to give it and explained once again that he could apply for an increase in pension and appeal against our

doctor 1s opinion.

On 30 December I tried to arrange an Agent Orange medical for the same time as the D395 already booked, but was unable to get through and

intended to try again after New Year to save the veteran having to come in more than once to Grace Building.

At about 8.40 am on 31 December Miss Paula

Houlahan H3 came to me looking for Veteran 37's files for an appointment at Branch Office. She said he had phoned up the previous day and as he

XIV-253

had so much time off work he wanted all his

appointments before 24 January. She explained that they were fully booked but out of the

kindness of her heart arranged for a doctor to do a D395 for him the next day, 31 December at 9.00 am; there were no other veterans at all booked for that day.

I took the files /to Dr Ng to confirm that D2120 Agent Orange medical would be required for 1 black spots both eyes' which he claimed due to toxic exposure. I mentioned to him that Veteran 37 had not thought a decision on stress reaction could

be taken without seeing him. Veteran 37 had not previously had this full examination so Dr Ng said it was necessary and that we may as well

investigate the 1 post trauma stress reaction' as a new claim.

I went with Paula to the 9th floor and filled the details in on the D2120 and asked Veteran 37

where he had served. We explained that in order to save him coming in again we could get the

medical done at the same time and he seemed

agreeable. I explained that he had not filled in Form Z or other forms for either claim and

explained that if his claim for 'black spots' was accepted we would need the Form Z by 8 January 1983 for him to received maximum benefit. I

suggested he fill in the Form Z before he left and took the other forms home to fill in at

leisure. He demanded to look at his file and said he had not yet received my letter of which I read the copy of him again. I explained he could not see the file but could apply to do so. I

left him going in for the medical.

I have spoken to Paula this week and she too was very upset over the attitude of this man, after going to so much trouble to satisfy his requests and without a word of thanks. She says they

managed to arrange all the appointments in the period specified by Veteran 37. As soon as he left the building she realised that an

opthalmologist appointment had not been made and it was rectified immediately. He was informed by mail, and no doubt he will be complaining that he was not told at the time.

XIV-254

On 7 January Veteran 37 rang H 3 and demanded to have his eye appointment on the same day as the others. Paula explained that it could be very difficult to achieve and stressed the trouble to

which we had gone to accommodate him with no

thanks but said she would try.

An hour later he rang back to find out what she had done. She did manage to fit him in and

mentioned how upset we were with his letter. He was most apologetic to her and said he was not trying to 'get at her or Mrs Duncan1 only the

system under which we work. He asked Paula to apologise to me and said he will try and come in and apologise personally when he comes to the Eye Clinic on 13 January.

I have always endeavoured to speak to all

veterans and dependants in a courteous and

helpful manner as I would like to receive

myself. I have been very upset by this man's

attitude to my attempts to assist him.

Margaret Duncan.

The Deputy Commissioner wrote to Veteran 37 on 17 January

1983, as follows:

Dear Veteran 37

I refer to your letter of 2 January 1983

concerning the processing of claims you have lodged with this Office.

As you are aware, you wrote a letter to this

Department which was received on 8 October 1982 wishing to claim the condition black spots both eyes as being related to your service. It was then necessary for a formal claim to be lodged

within 3 months of the date of your letter to ensure that you would receive maximum

retrospective benefits should your claim be accepted. It was for this reason that you were asked to lodge the 'Form Z' prior to 8 January 1983 .

XIV-255

The medical examination in respect of Agent Orange was necessary in view of the nature of your claim for 'black spots both eyes'. As you

already had an examination arranged for 31

December 1982, it was thought that in order not to inconvenience you by making further

appointments on a separate date, you may wish to have the 'Agent Orange' examination on the same date. This I believe, you agreed to. I should point out that it requires a great deal of

organising to re-schedule medical appointments at such short notice and I am sure you will

appreciate the time and effort made on your

behalf.

In regard to a departmental medical officer stating that your claim in respect of post trauma stress reaction was related to anxiety state, I can assure you that this type of procedure is the usual practice, if by taking into account your medical records, the medical officer considers

the conditions are related. However, in view of your attitude, it has been decided to have your claim investigated.

As a substantial part of your letter is directed at your treatment by officers of this Department, and in particular Mrs Duncan, I should mentioned that the staff in this Office have a reputation, both inside and outside the public service, of being both fair and understanding. Mrs Duncan is also a very mature officer and has often been complimented by returned servicemen on her courteous manner.

I believe that since you wrote your letter, you have asked for apologies to be conveyed to Mrs Duncan and for this I wish to thank you.

Yours sincerely L.H. Mead.

His 100% pension was granted in September 1983, effective

from 13 January 1983. Procedures were orthodox. This

veteran was undoubtedly decompensating at the time of his

XIV-256

visit to the Grace Building. There are stresses involved

in attending medical examinations and this veteran was

understandably hypersensitive at the time. The account

given by Ms Duncan is accepted by the Commission. No

valid complaint is made out.

Veteran 38. W A A says:

The veteran complains that the medical tests done by Repatriation are slow and differ from those done outside. He says he was threatened in

Greenslopes Hospital with certification to a mental institution for life. That he had to go to a detoxification unit to 1 dry out1 of the

drugs prescribed by the Repatriation.

This man is also a TPI pensioner. His wife was a member

of the executive of W A A and has written to the Minister

making complaints in similar but much lengthier terms

(10.1.84). She had earlier sought her husband's

involuntary detention which was not thought by his doctors

to be in his interest. This is hardly consistent with a

threat of certification for life from the same people.

Her husband is quite disturbed and found his needs were

not met by RGH treatment. He has found the services of

private doctors more satisfactory.

XIV-257

Greens lopes doctors were indeed concerned about his very

high medication rates, particularly as he was drinking

heavily.

With no statement or particulars it is difficult to assess

the man's complaint: the objective facts do not tally

with the complaint. It is not made out.

The system provided the veteran with both a T PI pension

and medical treatment for as long as he attended for it.

The complaint came from his wife.

Veteran 39. W A A says:

The veteran complains that:

The Department stated that there was nothing wrong on results of their tests, I submitted alternative tests and was informed that the problem was due to previous therapy.

This man receives a 20% pension for glaucoma, eczema and

acne.

His claim for 'toxic hepatitis' was refused. The basis of

refusal was that the relevant toxin was alcohol, and that

his condition had in any event resolved. He has appealed

to the RRT, but no medical reports have been submitted by

him.

XIV-258

The complaint made is not made out.

Veteran 40. W A A says :

The veteran complains that:

The Repatriation Hospital. Concord. claimed that there was no evidence of hookworm. But I have been shown the hookworm ova in my

faeces under microscope at Ingleburn Army Hospital and treated there at a later date.

The file shows that he was admitted to RGH Concord in

June/July 1969 and hookworm ova were found and he was

treated.

In April 1970 no hookworm was found by pathology test.

In June 1970, July 1970 and September 1970 hookworm was

found and not responding to treatment. He was admitted to

RGH Concord. On 16/10/70 he was 1 discharged home, well 1

and his hookworm was thought to be cured.

There was a recurrence in November 1970 and he was

readmitted to hospital (2nd Military) for treatment. One

hookworm ova was found by pathology.

XIV-259

He was admitted later to Wagga Base Hospital in May 1981:

no hookworm was found. In September 1971 a S.48 opinion

recorded no hookworm as being present.

This complaint is hard to understand. Hookworm is

persistent and recurrent. Pathology does not always find

ova but the findings are contrary to the basis of this

veteran's complaint. No valid complaint is made out.

Veteran 41. W A A says:

The veteran complains that there are months between appointments and long waits to see

doctors. He was told by Dr Gidley that -Cat Scan was new fangled and not acceptable.

There are delays caused by insufficient medical and other

resources.

The veteran in fact had a Cat Scan on 16/11/81. Dr Gidley

found that the scan was difficult to assess, partly

because of the veteran's alcohol dependence. Moreover,

degrees of impairment revealed by scan were not

standardised, leading Dr Gidley to refer the veteran to a

Neuro-Psychologist.

XIV-260

He is in recept of a SPPU pension (permanently

unemployable).

No valid complaint special to this veteran is made out:

delays do exist.

Veteran 42. W A A says:

The veteran complains that he first approached the Repatriation Department in 1969. that after 16 years the matter is still dragging on. That 'his skin is at its worst at this date1 .

In fact the veteran lodged a claim for skin disease in May

1969. After initial refusal he succeeded in an appeal to

the WPEAT (13/2/70) . No incapacity was found. However.

he was invited to claim for a nervous condition, which he

did and after missing two appointments with doctors. he

was again invited to claim. He finally attended the

psychiatrist on 7/7/70 and the Board determined no

incapacity found (NIP) on 7/9/70.

He made no approach to DVA then until 13/12/82. His skin

condition was reclassified as psoriasis and a 10% pension

was granted effective from 13/12/82.

XIV-261

The reasons for this complaint are hard to follow. The

man has been patiently and generously dealt with. No

valid complaint is made out.

Veteran 43. W A A says :

The veteran complains that:

I went to a medical presuming that they would examine my son, which they refused to do, I took a special day off and travelled a long way. They gave me no reason for not

seeing my son.

The veteran's appointment was to assess his claim for

'severe headaches, migraines, sore eyes and tropical ear1

which he thought might have been contributed to by Agent

Orange. His claim mentions the child's problem and the

doctor (on 11/6/80) recorded that the child had an

undeveloped right eye and wears an artificial eye. He

also recorded that the child was attending a psychiatrist

for co-ordination problems.

There is no record of a reguest that the child be examined

but it would not be usual to make such an examination.

The legislation did not and does not provide for

examination of offspring.

XIV-262

Veteran 4 4 . W A A says :

The veteran complains that he first applied for Repatriation benefits in 1971 was granted

treatment for groin rash and says:

I found the individual specialist trying to put my groin rash down to overweight. I

would be very dubious about making claims as I think it would be an uphill battle after my first experience with them.

This veteran's file shows that he claimed on 15.6.72 for

dermatitis. The specialist who examined him diagnosed

1 mild sweat intertrigo without disability1 and the Board

accepted this condition with no disability pension payable

on 25 July 1972. The specialist noted that he was obese.

The DMO noted that he was 5'8" tall and weighed 15 stone.

Obesity is a predisposing factor in the development of

intertrigo.

It seems entirely appropriate to tell the veteran so.

The Commission notes that his claim was processed quickly

and efficiently. This complaint is quite unjustified.

XIV-263

Veteran 45. W A A say:

The veteran complains that:

My wife rang Mr John Gleeson before the

appointment and asked permission for her to see the doctor, on Mr Gleeson1s OK. She and my son came to Melbourne with me. We saw Mr

Gleeson just before I saw the doctor and he repeated that it was alright for her to see the doctor. The doctor saw me alone first

and when I told him that my wife wanted to see him, he did not answer. It was a wasted day. It seems incredible to me that a

doctor who is assessing my mental and

physical health should not want to see my wife as she knows my problems very well.

Dr Baldock cannot recall any request by Veteran 45 and

stresses that he would usually interview a wife if

specifically requested. Perhaps he did not hear the

request. One notes that Veteran 45 says that he did not

answer, not that he refused. This complaint is not made

out.

Veteran 46. W A A says :

The veteran complains that he first applied for Repatriation benefits in 1970 for diabetes as a result of shrapnel wound. This was rejected. After pursuing the matter over many years he was granted a pension for headaches.

The file shows that on 28.2.69 he applied by a Form Z for

'Frag Wounds R Eye'. There is no mention of diabetes.

This injury was accepted.

XIV-264

His LMO requested a neurological examination in June 1970

for "recurrent headaches and blackouts". The veteran

failed to report, but a subsequent examination on 9 July

1970 by a Neurologist, and at RGH Heidelberg in August

1970 showed his condition as "within normal limits".

In November 1975 he requested admission to RGH, Heidelberg

with dramatic weight loss and URTI. Glycosuria and

retonuria were noted at a high level. He was admitted to

Alfred Hospital because no bed was available at RGH.

He longed a claim for diabetes 'caused by his eye

injury1. This was refused and he appealed ultimately to

WPEAT. His appeal was disallowed since no connection

between service and his diabetes could be shown.

In particular no connection between the eye injury and

diabetes was or could be shown. A medical examination on

13 June 1969 conducted during his period of service showed

negative albumin and sugar in his urine. His headaches

above the eye were allowed in 1980.

This is an unwarranted complaint.

XIV-265

Veteran 47. W A A says:

The veteran complains that he first applied for Repatriation benefits in 1969 and 1978. He claimed for deafness, lymphoedema„ hypertension

and anxiety state. Deafness was accepted. the others rejected. He says that:

Veteran has to prove his case. No genuine interest on behalf of Veterans Affairs. So for the veteran, the Vietnam Counselling Services has been the only help.

He has had a claim for a fractured left ankle accepted and

a claim for partial loss of hearing accepted, a total of

20% .

His claims for lymphoedema and anxiety state were rejected

and are the subject of an appeal which is current but

inert because no submission has been received from his

solicitors. as was promised and despite DVA follow-up

action.

His claim for hypertension was refused and is also subject

to appeal.

The Board's reasons were given to the veteran.

There is no valid criticism made out.

XIV-266

Veteran 4 8 . W A A says:

The veteran complains that he applied for

Repatriation benefits for depression, anxiety state, headaches and emotional instability. He says:

When I was medically discharged unfit, I applied for a pension but to no avail. I

was physically and mentally broken, the Department gave me nothing. I cannot

remember who I dealt with.

This man's file reveals the following history:

Veteran 481 s first claim was lodged on 19 November 1970

for encephalitis. The subsequent MF9A examination on 22

February 1971 recorded: X/M had encephalitis in SVN 3/12

ago. Had been in SVN 3/12 before attack. Recovered

almost completely but still complains of

(1) Loss of memory;

(2) Exaggeration of small worries until they become

important. Needed admission to RGH(C) to

Neurology and Psychiatric Wards.

Discharge summary included in service medical documents

from RGH Concord recorded: He was reviewed by Professor

McLeod who considered he has no residual organic brain

XIV-267

disease following the viral encephalitis. The

Psychiatrists, Dr Fox ton and Dr Grady considered he is an

unstable personality with reactive depression and

recommend discharge from the Army. No treatment on

discharge. (15 January 1971).

On 1 June 1971, the No 2 Repatriation Board decided:

(1) No residual organic brain disease (encephalitis

NIF).

(2) Reactive depression in unstable personality

accepted with incapacity assessed as so slight

that it does not warrant a pension assessment.

Veteran 48 appealed to the Repatriation Commission

concerning encephalitis (NIF) on 22 July 1971. On 27

September 1971, he was advised by NSW Branch that he had

not attended for medical examinations in connection with

this appeal and should no reply be received within

fourteen days his claim may be determined on the evidence

available. He did not reply and on 21 October 1971 a

Delegate of the Commission lapsed the appeal.

XIV-268

Veteran 48 lodged a Form Z for war neurosis and after

effects of encephalitis on 3 March 1972. This was

regarded as an application for increase. The file is

noted that he was inpatient at North Hyde Psychiatric

Hospital for some time in March/April 1972 where he had

admitted himself after two suicide attempts. He was

inpatient at RGH Concord in May 1972. (Discharged in

absentia).

The Western Australia Branch Office was contacted by a Dr

Hobday of Dalwallinu WA advising that the veteran had

moved into his district and requesting clinical notes from

RGH Concord.

The Western Australia Branch made two attempts to have

Veteran 48 attend for medical pension review in July and

September 1972, but he failed to attend. A third attempt

for a November appointment resulted in return of the

letter, address unknown.

In 1974 his wife made attempts through the Department to

trace his whereabouts.

In January 1981 he contacted the Victorian Branch office

by letter which was non-specific in intent. The reply

XIV-269

advised him of ability to apply for disability pension if

his accepted condition had deteriorated and/or service

pension.

On 27 January 1981 he presented at RGH Heidelberg

complaining of emotional and psychological state and his

inability to hold down a job. He believed this may be

related to defoliants. He was asked to report on the

following day for a consultation on possible

psycho-therapy but he did not attend.

On 22 September 1982 he lodged a claim for depression,

anxiety state, bowel problems, headaches and sterility.

He mentioned suicidal tendencies in his statement in

support. Over the ensuing twelve months a considerable

number of medical appointments and investigations occurred

in the processing of his new claims and the assessment of

his already accepted disability.

On 14 September 1983, the Board refused azospermia and

accepted irritable colon syndrome. It recorded that the

incapacity described as depression, anxiety state,

headaches was the same as his accepted disability.

Pension was granted at fifty per cent.

XIV-270

The Department was unable to process Veteran 481 s

application for disability pension in 1972, due to his

movement around Australia and failure to report for

medical appointments. He did not contact the Department

again until 1981 when he again failed to keep an

appointment at RGH Heidelberg.

Again no valid criticism can be found or supported.

Veteran 49. W A A says :

The veteran complains that he was granted a 10% pension in 1972 for a perforated eardrum but the pension was stopped 1 or 2 years later. He says he was admitted to Heidelberg Repatriation Hospital on 17.9.1983. That -

Dr Houghton in Ward 33 showed little

interest and provided no assistance, sought no information from me and provided me with no advice.

This veteran was admitted to RGH Heidelberg after his car

collided with a tree. He was significantly under the

influence of oxazepam (serepax) and alcohol. He claimed

that he drank 2 litres of red wine daily and was taking

300 mg of the drug, a very large dose. (Six times a

normal therapeutic regime).

XIV-271

Alcohol and serepax are synergistic and it is most

unlikely that he can recall his early admission period if

his stated drug and alcohol intake are correct. He was

seen at length not by Dr Houghton, the RMO whom he singles

out for complaint when he discharged himself, but by the

Senior Psychiatric Registrar, and was closely observed by

ward staff.

There is no substance to this complaint. The man

discharged himself only to return a month later, now

giving a history of 5 litres of wine and 240 grams of

oxazepain (serepax) daily. He discharged himself four

days later.

He has a current claim for, inter alia, depression, loss

of memory, personality disorders.

Veteran 50. W A A says:

The veteran complains that he first applied for Repatriation benefits in 1980 for anxiety state and other ailments. These have been rejected and

he has appealed against the last decision. Of his anxiety state the veteran sent a letter to the Department stating the following: I

I wish to appeal against the Repatriation Board's decision concerning my claims for nervous condition. I believe that my

anxiety is war related and I have spent a considerable period of time at Repatriation

XIV-272

General Hospital (Heidelberg) being treated for this condition. My anxiety originally arose out of several traumatic events that occurred in Vietnam, including the death of a very close friend.

I also experienced intense feelings of rejection on my return which I have been unable to overcome. Since Vietnam I have been too scared to get close to anyone and I

cannot express my emotions properly. As a result, I am often frustrated and lonely and frequently break down crying and vomiting whenever I am under stress.

As such, I would appreciate it if my claim for nervous condition could be reassessed and I would welcome the opportunity of

discussing the matter with any medical personnel.

Veteran 50 first applied in October 1980. He failed to

attend for 5 of his medical appointments.

When appointments were finally kept his claim was rejected

(27.10.81). He was subsequently admitted to Heidelberg

RGH for personality disorder and alcohol abuse on four

occasions in 1983.

He did not appeal until 9.11.83 and his claim was amended

to read "personality disorder with PTSD" and accepted. He

receives a 60% pension.

There is nothing to justify complaint.

XIV-273

Veteran 51. W A A says :

The veteran complains that he first approached the Department in 1970 for Repatriation

benefits. He says:

A 4 year wait for a decision on the first

claim which was only partly successful and now a further 18 months wait for skin cancer which has still not been decided.

His claim was for dysiotric eczema, deafness and skin cancer.

The file discloses that the veteran first lodged a claim

on 5.1.70 for 'feet condition1 . As a result. 'hammer

toes' was accepted by the Repatriation Board on 13.3.70

but was considered to be not pensionable. At the same

time the Board rejected 1dysidrotic eczema'.

On 11.6.70 an appeal was lodged against the decision to

reject dysidrotic eczema and this was disallowed by the

Repatriation Commission on 23.6.70.

On 8.7.74 the veteran lodged a form for appeal to the War

Pensions Entitlement Appeal Tribunal (Form TA) on which he

mentioned 1 dermatitis, fungus of feet1 . This was treated

as an appeal against the rejection of 1 dysidrotic eczema'

and was heard by the Tribunal on 9.4.75. The appeal was

allowed and the disability was subsequently assessed by a

XIV-274

Delegate of the Repatriation Commission at the ten per

cent rate with effect from 8.1.74.

On 24.8.82 a letter from Melasecca and Tobin, Barristers

and Solicitors, indicated that the veteran wished to apply

for an increase in his disability pension to ten per cent

on the grounds of skin cancer and nervous disorder being

related to service. A Form Z was lodged on 22.11.82 for

skin cancer. Veteran 51 was examined by a Departmental

Medical Officer on 25.1.83 for both the skin cancer and

the nervous condition and further appointments including

with a Psychiatrist were then requested. A Form Z for

nervous tension was then lodged on 31.3.83. The veteran

was examined by a psychiatrist on 12.5.83.

On 24.11.83 a Delegate of the Repatriation Commission

accepted 'Basal Cell Carcinoma of Forehead with Excision1

with effect from 24.5.82 but granted no pension.

Personality disorder was also accepted, with effect from

31.1.82, and pension was granted at the twenty per cent

with effect from 31.12.82.

Advice of the decisions was sent to the veteran on 1.12.83

and to Melasecca and Tobin on 8.12.83.

XIV-275

The pension increase was processed on 12.12.83 and

clearance was immediately sought from the Department of

Social Security to put payment into effect. The case was

treated as a high priority and Veteran 51 was sent his

first payment including arrears on 5.1.84.

It is difficult to see Veteran 511 s grounds for

complaint. His original claim and subsequent appeals were

dealt with promptly and it is to be noted that there was a

gap of more than four years between the decision of the

Repatriation Commission on 23.6.70 and the veteran’s

appeal on 8.7.74. His more recent claim took fifteen

months to determine which is indicative of the prevailing

backlogs in the Entitlement area, affecting all veterans'

claims.

Apart from this delay, there is no valid complaint made

out.

Veteran 52. W A A says:

The veteran complains that he sought Repatriation benefits in 1968-70. This was rejected, 1980 awarded 20% pension for "nerves", 1983

undecided. His claims were for hypertension, anxiety state, allergies, diabetes, internal pains of unknown origin and skin rashes. He says that the system is:

XIV-276

Too slow, no direct answers - run around by people in the entitlement section.

An examination of the file shows that on 9.1.67 Veteran 52

lodged a claim for bad nerves and on 7.2.67 he was

examined by a Departmental Medical Officer and a

specialist psychiatrist.

A Repatriation Board on 22.2.67 rejected Schizophrenia

(euphemism nerves) as not related to his service and

advice of this decision was issued on 22.1.67.

No further approach was made until an enquiry was received

from Veteran 521 s Local Medical Officer on 4.1.80 as to

whether the veteran was eligible to received psychiatric

treatment and his Local Medical Officer was informed by

telephone that he was not eligible on 9.1.80.

Veteran 52 attended Repatriation General Hospital.

Heidelberg on 21.8.80 and was seen by the Senior

Specialist (Psychiatry) who diagnosed personality disorder

and depression and recommended that he be admitted for

further assessment. He was subsequently admitted on

25.8.80 as a civilian patient and discharged on 26.9.80.

XIV-277

On 9.1.81 Veteran 52 lodged a claim for anxiety state,

hyper tension, allergies and internal pains of unknown

origin.

On 7.5. 81 he was medically examined on a Form D2120

(Agent Orange) and he also lodged a further claim for

diabetes. An appointment with a Specialist (Physician)

was arranged for 3.6.81 for which the veteran failed to

report. Appointments with a dermatologist and a

psychiatrist were conducted on 22.6.81 and a further

appointment with a physician was attended on 31.7.81.

Veteran 52 was admitted to Repatriation General Hospital

Heidelberg as a community patient from 10.8.81 until

25.9.81 and discharged with diagnoses of "personality

disorder, reactive depression, diabetes mellitus and

essential hypertension."

On 16.11.81, a s .48 opinion was completed by a

Departmental Medical Officer and on 27.11.81 the case was

submitted to a Repatriation Board for determination. On

11.12.81 the Board deferred the claim requesting

clarification from the Department of Defence concerning an

admission to hospital while Veteran 52 was serving in

Vietnam. The reply from Central Army Records Office was

XIV-278

received on 19.1.82 and on 26.1.82 the Chairman of the

Repatriation Board directed that the case be referred to

the Repatriation Commission.

On 15.2.82, a Delegate of the Repatriation Commission

requested a further examination by a Psychiatrist and an

appointment was arranged for 6.5.82 but attempts to

ascertain Veteran 521 s then whereabouts proved

unsuccessful and the files were referred to the Senior

Specialist (Psychiatry) for comment on the evidence

available from the files which he did on 17.6.82.

The case was referred back to the Repatriation Commission

on 28.6.82 and on 30.6.82 the Delegate again deferred the

case to request the Department of Defence to supply

original service documents. These were received and

attached on 28.7.82 and referred back to the Commission on

3.8.82.

On 6.9.82 the Delegate of the Repatriation Commission

amended the diagnosis of "schizophrenia" to "socio-pathic

personality" and accepted the condition as being related

to service with effect from 9.7.80 and advised the use of

a euphemism of "nerves". Advice of this decision was sent

on 29.9.82 but was returned by the Post Office as Veteran

XIV-279

52 was no longer at that address. A check of the

veteran's hospital file revealed that a report had been

received by a Local Medical Officer in July 1982 but the

address recorded on the request had not been updated on

the "change of address" system. The advice to the new

address was issued on 5.10.82.

On 5.10.82 the files were referred to a Repatriation Board

for assessment of the newly accepted disability and for

consideration of the other outstanding claims. On

12.10.82 the Chairman of the Repatriation Board referred

the case to an Assistant Director, Medical Service who in

turn requested an opinion from the Senior Specialist

(Psychiatry).

On 25.11.82 a Repatriation Board rejected "Essential

Hypertension, Angio-Neurotic Oedema and Diabetes Mellitus"

as not service related and assessed incapacity from

"Nerves" at twenty per cent. Veteran 52 was advised of

this decision on 13.12.82.

An appeal against the Board's rejection of the above

disabilities was received on 5.1.83 and this appeal was

forwarded to the Repatriation Commission requested an

opinion from the Senior Medical Officer (Appeals) as to

XIV-280

whether there could be a relationship between the accepted

disability and his hypertension and on 29.6.83 the

Delegate referred the case to the Senior Specialist

(Psychiatry) who gave his opinion on 26.9.83.

On 26.10.83, the Delegate of the Repatriation Commission

accepted "essential hypertension" as being related to

service with the extent of incapacity for pension purposes

to be determined separately. The appeals in respect

"angio-neurotic oedema and diabetes mellitus" were

disallowed. Advice of this decision was issued on 7.11.83.

On 2.12.83, a Delegate of the Repatriation Commission

assessed the extent of incapacity for the service related

disabilities at sixty per cent.

Veteran 52 lodged an application for review to the

Repatraition Review Tribunal on 10.11.83 against the

Commission decision disallowing his appeals in respect of

angio-neurotic oedema and diabetes mellitus. A summary of

his case was prepared and transmitted to the Repatriation

Review Tribunal on 27.1.84 but his case has not as yet

been heard.

XIV-281

Veteran 52 was admitted to Repatriation General Hospital,

Heidelberg from 28.9.84 to 26.10.84 on referral from W C S .

On 29.10.84, Veteran 52 lodged an application for increase

in his rate of disability pension but no action has yet

been started on this as the clinical record file has only

recently been received from Heidelberg.

In relation to his original claim in 1967, this was

processed and finalised in approximately six weeks and no

further claim was lodged until approximately 14 years

later in 1981.

On the second claim there were the well known delays of

backlogs in the Entitlement system coupled with Veteran

52's failure to report for examinations on two occasions

and admission to Repatriation General Hospital, Heidelberg

as a community patient and extra information requested by

the Determining Authorities.

It is difficult to comment on his complaint of "no direct

answers - run around by people in the Entitlement Section"

as he has not given any specific instances of these

allegations. However, staff in the Entitlement Section

are certainly encouraged to be sympathetic and helpful to

XIV-282

all veterans in their dealings with them. The recent

problems of delays in the system, although sympathetically

explained to them, are often not accepted and this is

understandable. There is no valid complaint made out.

Veteran 53. W A A says:

The veteran complains that he first approached the Department for Repatriation benefits in 1972 then in 1980 and 1983 for anxiety depression and lumbar spondylosis with laminectomy. All claims were disallowed. He said that:

Would not discuss my problems - meaning doctors, very abrupt.

This man has a long history of malaria attacks for which

he has been treated.

His claim for anxiety depression was in fact for nervous

condition and headache and 1 emotional turmoil 1 . This

claim was refused on the psychiatric evidence. An appeal

is outstanding.

His lumbar spondylosis with laminectomy he ascribed to his

five months service and chemicals.

In fact he injured his back whilst working in 1977, seven

years after his return from Vietnam.

XIV-283

There is no substance to his complaint.

Veteran 54. W A A says:

Pension and medical cover granted for groin and body rash, bilateral perceptive deafness, tension state and migraine. He says:

I would not like to list my ill feelings

towards the Department except to say I

receive greater satisfaction and treatment from my AMO (sic) (Dr I Swain).

This man receives a 40% pension for 1 tension state1 and

migraine- His 'complaint' is too vague to deal with

except by saying that no valid complaint is made out.

Veteran 55. W A A says:

20% disability pension was granted to the veteran in 1980 for 'nervous problems and stomach

problems'. He complains that:

The attitude of the majority of examining doctors was indifference unbelieving and I felt I was made to feel like a criminal

trying to rob them.

An examination of the file reveals that this man is tense

and anxious as well as aggressive with medical staff.

His anxiety state with irritable bowel syndrome has been

accepted at 20%.

XIV-284

He has expressed no dissatisfaction. His application for

increase in pension is current. A thyroid deficiency is

suspected and is being investigated.

His feelings may be a result of his unresolved medical

problems but as complaints they are too unspecific to

investigate and no valid complaint is made out.

Veteran 56. W A A says :

The veteran applied for Repatriation benefits in July 1982 for 1 nervous condition1. His

application was rejected. He says.

The personnel were unhelpful and

unsympathetic at the inguiries desk. I got the impression that I and other veterans (or defendants) were mere nuisances with the impertinence to take up their valuable

time. If not for the VVA and RSL we would

not have a hope.

This man applied on 14/7/82 for SPPU on the ground of

1 poor state of physical and mental health1 as a result of

herbicide poisoning.

His LMO expressed the view that he was not permanently

unemployable and an Assistant Director, Medical Services

agreed.

XIV-285

He was interviewed regarding employment history, income

and property.

He inquired by telephone re travelling expenses. No other

contacts are recorded.

The complaint is extremely vague: no particulars or

statement were supplied. No valid complaint is made out.

Veteran 57. W A A says:

The veteran in 1972 was granted benefits for hearing loss and keloid left hand, his claims for rash on head and chest and personality problems were rejected. He says that:

Generally too long in actioning claims, general disbelief by Repatriation doctor of your claim and problems.

The file shows that this veteran has had some claims

allowed and others refused. He has had appeals allowed

and refused. So far as one can judge careful histories

have been taken and recorded, and the matter processed by

DVA in reasonable time.

The generality of the complaint precludes precise

investigation.

XIV-286

No valid complaint is made ou t ,

Veteran 58. W A A says :

The veteran complains that he applied for

Repatriation benefits in 1970 for deafness in one ear, after a limited investigation of 10 minutes, the claim was rejected. His application for retraining was also rejected.

The facts are that this veteran had three examinations, a

general medical including assessment of his hearing on

5.4.71, an ΕΝ & T specialist examination on 13.4.71 and an

audiometry test on 21.4.71. DVA did not handle any

application for retraining. The complaint is simply false.

He currently has a claim, under medical investigation, for

"war neurosis, severe skin rashes, ear and eye problems,

post traumatic stress and increased bronchial secretion".

Veteran 59. W A A says :

The veteran complains that:

When I told the dermatologist that I had trouble shaving, she suggested that I grow a beard. The psychiatrist was only interested in asking standard type guestions before concluding the examination. I had to insist on an extension in order to explain my

problems and have them documented.

XIV-287

The file examination shows that on 14 August 1980, Veteran

59 lodged a Form Z for headaches, skin problems,

nervous/personality problems, sleeping problems, stomach

disorders, susceptibility to virus infections. He claimed

these to be due to effects of herbicides/pesticides.

An appointment was made for medical examination on 5

November 1980 but veteran 59 cancelled this. A further

appointment was made for 26 November 1980. Veteran 59

also cancelled this as he had started a new job and made a

new appointment for 17 December 1980. He was sent for

pathology, respiratory function tests, dermatologist

consultation, physician consultation and psychiatrist

consultation in January/February 1981.

On 23 July 1981. the Board:

. rejected incapacity resulting from personality

disorder, recurrent bronchitis.

. accepted incapacity from acne vulgaris, but

assessed as so light that it did not warrant

payment of a pension.

XIV-288

The veteran was advised on 28 August 1981 and sent a copy

of the reasons.

On 10 September 1981, Veteran 59 lodged a letter of appeal

to the RRT. This should have been taken as an appeal to

the Repatriation Commission but was not picked up by

clerical staff. It was processed through to a Tribunal

hearing on 11 July 1983 (almost two years later) only to

be withdrawn to allow appeal to the Commission.

In the meantime. Veteran 59 lodged a letter of appeal

dated 1 October 1982 and indicated that he would be

submitting evidence in support. The Department followed

this up on 11 February 1983. 7 September 1983 , 7 October

1983 and received a medical statement in support from

Veteran 59 on 19 October 1983. At the same time, he asked

for further deferment while waiting for further tests

arranged privately by his Medical Officer. This was

followed up by the Department on 2 May 1984, 19 July 1984.

1 August 1984 and 10 October 1984.

The case is now being referred to a Delegate of the

Repatriation Commission to see if the appeal can be

determined.

XIV-289

There was an incident of unsatisfactory performance at RGH

Heidelberg in March 1982 which was the subject of a

complaint from VVAA to the Director, Medical Services and

the Minister.

Veteran 59 was referred to the Hospital in a disturbed

state following a telephone call to the Admitting Medical

officer, by the State President of WAA. The veteran left

approx. 2 1/2 hours later without being seen by a doctor

because casualty was busy. Apologies were written.

Veteran 591 s reference in the W A A submission to the

dermatolotist's comment about growing a beard, has been

considered. The notes refer to his neck area being

aggravated by shaving but not to the growing of a beard.

However, the Deputy Director Medical Services has

commented that this advice is quite often given, not in a

flippant manner, to patients with this problem.

There is also a reference to the Psychiatrist's

consultation in the submission. The notes indicate a

comprehensive consultation and report. The report

includes the following comment:

XIV-290

10 . E . Large obese man. Driving. Intellectually able (arrived with a list of symptoms written down). Proceeded to compulsively make sure I have every detail. Tendency to project it.'

There is therefore substance, not in the complaint made

but in the delay caused by the clerical error and the

substandard performance at RGH Heidelberg. as the

examination of the file shows. This is an instance where

complaint is justified.

Veteran 60. W A A says:

The veteran complains that:

Tend to treat you as a complete jerk, just won't believe you.

This veteran has a 40% pension for personality disorder.

The file reveals nothing of relevance.

The complaint is too unspecific to be rationally dealt

with. The file shows that he was in fact believed. No

valid complaint is made out.

Veteran 61. W A A says:

The veteran claimed for nervous disorder, bowel problems, pain, tingling in hands and feet, headaches and dizzy spells in 1981. This was rejected. There is a 1983 appeal. He says:

XIV-291

The vintage doctors you see for claims, treat you as sub-human and you leave feeling depressed. Far too much waiting for results of appeals. Been waiting 7 months for

appeal result. Also never told results of blood tests and cardiographs. Department cannot explain disappearance of medical records from Vietnam service records that are important - nerves - headaches and dizzy spells.

The Commission observes that the the Department attempts

to engage the services of the most competent available

medical practitioners, some of whom are not young. It is

not the intention of medical officers to treat veterans as

described and there are relatively few complaints about

the attitude of the DMOs.

The veteran lodged his appeal to the Repatriation

Commission on 12 April 1983. Two days later a claim was

lodged for several disabilities. The claim was

investigated and determined on 9 January 1984 after

several medical examinations. The appeal was referred to

the Commission immediately after the claims action has

been finalised and was determined on 28 February 1984.

It is not routine practice to inform patients of the

results of tests conducted in entitlement investigations

and the results of blood tests are not usually available

immediately anyway. However, it is normal practice for

XIV-292

the Department to advise LMOs of the results of any

examinations or tests when requested. so that follow-up

treatment is available to the veteran. There is no

reference on this veteran's files to any specific request

for results of tests or to any refusal of access to those

results.

As to disappearing records, DVA relies on the Department

of Defence for the supply of medical records relating to

Vietnam veteran. In this particular case there is no

record of the veteran having sought from this Department

an explanation of the apparent disappearance of any

documents and there is no evidence of the documentation

being incomplete. If the veteran did have a complaint he

may have notified the Department of Defence.

There seems little substance to this general and

unverified complaint.

Veteran 62. W A A says :

The veteran says that he was granted a 10%

pension in 1969 for 'ulcer type dispepsia and shrapnel wounds „ then later for irritable

bowel1. Pension now 50%. He also says:

I feel that a large number of staff and

doctors feel you are sponging off the

system, particularly if you are a Vietnam veteran.

XIV-29 3

This generality is not supported by the file. Veteran 62

may feel as he says; who knows why? He certainly was

accepted at face value. There is no substance to this

complaint.

Veteran 63. W A A says:

The veteran was granted a 30% pension in 1969 for shrapnel wound right shoulder. In 1983 he was granted a further 10% for post traumatic stress disorder. He says:

Post traumatic stress admitted, but no help or advice given as to what to do about it. However B12 injections seem to help for about 4 months at a time (which I pay for).

In fact in the letter advising this veteran of the

acceptance of PTSD was the information that treatment was

available from the LMO at Departmental expense together

with a pamphlet which detailed available treatment and how

to get it.

Correspondence about treatment by Dr van Tiggelen

carefully explained that he was not a recognised

specialist nor an LMO and that his treatment (which

includes B12 injections) could not be paid for.

There is no valid complaint made out.

XIV-294

Veteran 64. W A A say:

The veteran claimed Repatriation benefits in 1981 and 1983 for the following: stomach pains, cysts in crutch, skin tabs under arms and in crutch, nerves, tension, anxiety, depression and other associated illnesses. He complains that:

Delay in actioning claims. Delay in

actioning monetary claims whilst in hospital and off work with associated illnesses for 2 1/2 months.

There was no delay with this veteran's claims in 1972.

There were delays with his claims of September 1982 and

August 1983 which flow from the well known backlog in the

entitlement area. This is unfortunately common to all

veterans.

He also experienced delay in loss of earnings claims,

occasioned by the delays in deciding entitlement for the

nervous condition.

There was no discrimination against this man.

Veteran 65. W A A says :

The veteran applied for Repatriation benefits on 17.8.1983 for war neurosis, numbness in hands and feet, stomach ulcer, respiratory and chest problems, eye and ear disorders, post traumatic stress and severe skin rashes. He says:

XIV-295

In 1972 I had gone to the Department as I

was suffering pain from ulcers and had skin rashes. The staff treated me like scum

pushing me from one point to another. hence the reason it has taken me so long to submit a claim again.

The file discloses that on 29.9.70 Veteran 65 lodged a

claim for benefits for incapacities which were diagnosed

as acne vulgar is, percussive deafness and tension

headache. He also claimed for continuous muscular strain

to lower part of back.

The following medical examinations were arranged:

general medical examination 6.11.70 at 109

Kingsway, South Melbourne, 1.15 pm;

examination by a physician 6.11.70 at OPC, St

KiIda Hoad, Melbourne, 9.30 am;

consultation with an Orthopaedist 18.11.70 at

RALAC, South Melbourne at 11.00 am.

A report in terms of s . 48 of the Repatriation Act was

prepared on 25.11.70.

On 30.11.70 a Repatriation Board determined:

XIV-296

1. The veteran was not presently suffering from any

disability of the back at present.

2. Incapacity resulting from percussive deafness,

tension headache rejected.

3. Incapacity resulting from acne vulgaris accepted

- incapacity negligible.

Veteran 65 was advised of this determination on 2.12.70.

There is no evidence on the files to support Veteran 65's

claim that the staff pushed him from one point to another

and treated him like scum. It is noted that Veteran 65

had two appointments on 6.11.70 one at 169 Kingsway„ South

Melbourne and the other at OPC, St KiIda Road, Melbourne.

The appointments were arranged over three hours apart to

allow for delays and travelling. The third appointment

was arranged mid-morning 12 days later at RALAC, Sturt

Street, South Melbourne. There is no evidence to suggest

that there were any delays at either office on 6.11.70.

Veteran 65's assertions regarding his treatment by the

staff are inconsistent with the attitude of staff to

veterans as displayed generally.

XIV-297

The claim is without particularity or any statement to

support it. There is no sign in the documents of such

treatment. No valid complaint is made out.

Veteran 66. W A A says :

The veteran was granted a 10% pension in 1979 for intertrigo in groins. tinea pedis, personality disorder. He complains that:

No follow up treatment.

As to this, he was notified in September 1980 of the

result of his claim of 4/2/80 and at the same time sent a

pamphlet on arrangements for treatment and a list of

LMO's. He was requested to select one for treatment

purposes and return the form. This he did on 9/10/80 and

on 13/10/80 he was notified that arrangements for him to

be treated by the LMO he nominated. The psychiatrists and

the dermatologist's reports were sent to the LMO. If

there was no follow-up treatment who is to blame?

There is no substance to this complaint.

Veteran 67. W A A says:

The veteran was granted a 10% pension in 1969 for anxiety reaction, a claim for chondritic ulcer, right corneal scarring was rejected. He says t h a t :

XIV-298

The Department advised, to re-open my appeal regarding my eye problem I need supporting medical evidence from my eye specialist. My eye specialist asked what was specifically

required. The Department's answer was, evidence stating the reasons why the claim should be re-opened.

The Commission does not understand what the complaint is.

Veteran 68. W A A says :

The veteran was granted a 100% pension in 1967 for gun shot wounds. In 1978 he was granted the intermediate rate for nervous condition in addition to the G.S.W. He says:

When I was very ill in 1978 even though I

was on 100% pension it still took 5 months to get an appointment with the Veterans Affairs Department.

An examination of the file discloses that, the only

request for an appointment was from his Local Medical

Officer received 13.9.78 for an appointment with a

Psychiatrist. On 21.9.78 a letter was forwarded to

Veteran 68 advising that an appointment had been arranged

for 3.10.78, which he attended. The delay in this

instance was approximately three weeks.

The last appointment requested and arranged by DVA prior

to 1978 was following a request from his Local Medical

Officer received on 10.4.70 for an examination by an

XIV-299

Orthopaedic Surgeon. An appointment was arranged for and

attended on 28.4.70, ie an eighteen day delay.

The next action on the files involving Departmental

appointments followed a claim lodged by Veteran 68 on

5.3.79 for a nervous condition. On 20.3.79 Veteran 68 was

advised that appointments had been arranged for 3.5.79.

On 30.4.79 an urgent reguest for an appointment with a

Psychiatrist was received from his Local Medical Officer

and this request was incorporated with the appointment

arranged for 3.5.79. Following the Psychiatrist's

examination, the Assistant Director Medical Service

telephoned the Local Medical Officer on the same day to

arrange admission in Warragul. On 10.5.79 a written

reguest was received from the Local Medical Officer for

psychiatric care as either an in-patient or out-pateint

and admission to Repatriation General Hospital, Heidelberg

was arranged for 18.5.79 and he was discharged on 25.5.79.

This complaint is totally unsubstantiated.

Veteran 69. W A A says:

The veteran was granted a 50% pension in 1979 for anxiety neurosis. He says:

XIV-300

I and numerous other Vietnam veterans found a Mr Max Storey (Melbourne DVA) to be

extremely unco-operative, aggressive and belligerent when responding to their calls for help and assistance.

This veteran was one of the seminal Australian Agent

Orange promoters; he received a 50% pension for a shrapnel

wound and anxiety neurosis with effect from 11.1.78,

increased to 70% with effect from 24.9.79.

Mr Storey reminds this Commission that as Director, Client

Services Branch, Melbourne, he is the last port of resort

for problem cases.

He is himself a Vietnam veteran, active in both the RSL

and Legacy.

He has had to deal with the most difficult of DVA's

clientele. In the absence of specifics or even a

statement of facts it is difficult to consider the

complaint except by saying that Mr Storey is highly

regarded by other staff and those he works with in the RSL

and Legacy.

The complaint is not made out.

XIV-301

Veteran 70. W A A says :

The veteran first applied for benefits in 1972 (rejected). He applied again in 1976 and this was accepted in 1983. Complaints were 1 nerves, headaches, eye problems'. He says:

The length of time it took for the decision to accept my illness for treatment then the delay in agreeing on the percentage

disability and payment. Still cannot

receive payment in bank account on due

date. First time 5 years, 5 years second time. On the third March, 1983, I saw

Doctor Gidley, Consultant Psychiatrist, DVA on his recommendation I saw further

psychiatrist. Dr Maginn, the file could not go the Board for determination as it was used for Dr Maginn1 s report yet Dr Gidley had made an assessment.

A perusal of the file discloses a lengthy history, as

follows: On 5 May 1972. Veteran 70 lodged claims for

Sprained Left Hand, Conjunctivitis, Migraine and Nervous

Disorder while residing in Queensland. He transferred to

Victoria in June 1972 and appointments were arranged on 10

July 1972 with a Psychiatrist, 4 August 1972 with a

Neuro-Surgeon for which he was unable to attend and a

further appointment was arranged for 15 September 1972. A

skull x-ray and electro-encephalograph were arranged for

31 October 1972 after which the files were referred back

to the Psychiatrist for final diagnosis.

XIV-302

The claim for Conjunctivitis was submitted to a

Repatriation Board on 9 October 1972 and the Board

determined that the veteran was not at that stage

suffering from conjunctivitis. Advice of this decision

was issued on 12 October 1972.

On 1 December 1972, a Repatriation Board rejected Veteran

701s claim for sprained left wrist and migraine and advice

of this determination was issued on 7 December 1972. The

claim for nervous disorder was deferred by the Board for

an opinion by the Senior Specialist (Psychiatry).

On 13 December 1972, Veteran 70 lodged an appeal to the

Repatriation Commission in respect of Migraine Headaches.

The Repatriation Board, on 18 December 1972, rejected

anxiety state as not due to service and advice of this

decision was issued on 20 December 1972.

On 3 January 1973, Veteran 70 lodged an appeal to the

Repatriation Commission against this decision.

The appeals against these decisions were disallowed by the

Commission on 1 March 1973 and advice issued on 13 March

1973.

XIV-303

Appeals to the War Pensions Entitlement Appeal Tribunal

were lodged on 20 March 1973 and a hearing was arranged

for 25 May 1973 which was deferred to give the veteran the

opportunity to obtain further evidence.

On 31 July 1973, the RSL advocate advised that there was

no further evidence to be submitted in connection with the

appeal and on the same date the appeals in respect of

anxiety state and migraine were disallowed.

Veteran 70 lodged an appeal for conjunctivitis and nervous

disorder on 22 May 1975 and on 30 May 1975 was advised

that as the WPEAT is the final body of appeal under the

Repatriation Act the claim could be re-opened only if

Veteran 70 could produce further evidence.

On 24 June 1975 a further claim for 1 part loss of

eyesight1 was received and on 20 August 1975 Veteran 70

was examined by an Ophthalmologist who requested that an

orthoptic examination be arranged.

An appointment was arranged on 2 October 1975 but Veteran

70 failed to report for the examination. Another

appointment was arranged for 18 February 1976 but he again

failed to attend. On 5 March 1976 a letter was sent to

XIV-304

Veteran 70 advising that the orthoptic examination was

necessary for determining his claim for acceptance of his

eye condition as being service related and requested

Veteran 70 to advise whether he would be prepared to

attend if another appointment was arranged.

As no advice had been received, a further letter was sent

on 23 April 1976 to the effect that if no advice was

received within 14 days his claim would be considered on

the available evidence.

Veteran 70 phoned on 27 April 1976 to advise that he would

attend for examination which he did on 6 May 1976.

A s.48 opinion of 1 hypermetropic astigmatism, convergence

insufficiency and conjunctivitis - NIF1 was completed on 2

June 1976.

On 9 June 1976 a further claim was submitted by Veteran 70

for 1 nervous disorder or anxiety state' and a further s.48

opinion for anxiety state was completed on 27 July 1976.

On 29 July 1976 the appeal against conjunctivitis - NIF

was submitted to the Repatriation Commission and on 22

September 1976 a Delegate of the Repatriation Commission

disallowed the appeal.

XIV-305

A Repatriation Board on 9 August 1976 rejected the claim

for anxiety state under the serving-member eligibility,

rejected the claim for hypermetropic astigmatism and

accepted 1 convergence insufficiency' as being related to

service, but determined that the incapacity arising from

this was so slight that it did not warrant pension

assessment. Advice of the Board decision was issued on

23 August 1976 and advice of the Commission decision was

forwarded on 6 October 1976.

On 4 June 1980 Veteran 70 wrote to the Department

requesting that his claim in respect of nervous disorder

be re-opened and on 17 June 1980 the Department wrote to

advise that he would have to submit further evidence to

re-open his case.

On 8 August 1980 Veteran 70 wrote enclosing further

medical and lay evidence and receipt of this was

acknowledged on 13 August 1980. The summary of evidence

relating to the case was updated and forwarded to the

Commission on 20 November 1980.

On 19 January 1981, Veteran 70 submitted further evidence

in support of re-opening his case in the form of a report

from Dr C J van Tiggelen.

XIV-306

A Delegate of the Repatriation Commission on 5 August 1981

deferred consideration of the case to reguest advice from

Dr van Tiggelen on the relationship of anxiety state to

exposure to "Agent Orange" and to provide any reference in

current medical literature to support that opinion. This

request was sent to Dr van Tiggelen on 6 October 1981 and

his reply was received on 22 February 1982.

On 5 February 1982 a request for a report on Veteran 701s

medical history was received from Maurice Blackburn & Co

in relation to a Workers' Compensation case and a reply to

this was sent on 26 February 1982.

Veteran 70's case was again submitted to the Commission on

6 May 1982 and on 10 May 1982 the Delegate deferred the

case for a further medical examination which was arranged

for l June 1982. Veteran 70 telephoned on 26 May 1982 to

advise that he was leaving for Queensland that day and

would not be available for appointments until the end of

August.

On 1 June 1982, Veteran 701 s solicitors advised that the

Departmental files would be required for the court hearing

for the Workers' Compensation case on 9 June 1982. The

court case was adjourned on 9 June 1982 and on 4 August

XIV-307

1982 advice was received that the case had been settled

out of court.

Veteran 701 s files were referred back to the Delegate of

the Repatriation Commission who on 17 August 1982

requested that the files be referred to a Consultant

Psychiatrist for opinion.

This opinion was given on 19 August 1982 and on 23 August

1982 the Delegate of the Repatriation Commission accepted

anxiety state and migraine as being service related and

requested that the extent of incapacity for pension

assessment be determined separately. Advice of this

decision was issued on 29 September 1982.

On 7 October 1982 the files were submitted for medical

direction relating to assessment of pension and an

appointment with a psychiatrist was requested.

On 15 October 1982 a letter was received from Veteran 70

requesting that he be allowed to continue treatment with

his current psychiatrist and on 30 November 1982 Veteran

70 was advised that this request had been approved.

XIV-308

On 22 November 1982 Veteran 70 was advised of his

appointment with a psychiatrist for pension assessment

arranged for 3 March 1983. A further appointment was

arranged for 19 May 1983 for treatment purposes with

further reviews on 2 June 1983 and 7 July 1983.

On B July 1983 the pension assessment was prepared for

submission to a Repatriation Board and on 12 July 1983 a

letter was received from Veteran 70 expressing concern at

the length of time his case was taking.

On 26 July 1983 a Repatriation Board assessed incapacity

from his service related disabilities at eighty per cent

with effect from 23 August 1978.

Veteran 70' s complaint that his files were not submitted

for a determination because the files were required for

his on going psychiatric treatment is substantially

correct as the Determining Authorities require all files

when making their decision. In this case the overall time

taken was exacerbated by:

. the general backlogs of work affecting all

veterans with claims in the entitlement system in

recent years:

XIV-309

his failure to report for appointments;

. deferments for further evidence;

. his Workers' Compensation case (not the

Department);

. his trip to Queensland;

. nomination of his own specialist for treatment.

Clearly there were serious ^delays. The Commission's

recommendation about ADP must surely be adopted.

This complaint is valid.

Veteran 71. W A A says:

The veteran was granted a 50% pension for nervous tension in 1980. He says:

Department doctors generally authoritative, unsympathetic and occasionally

contemptuous. Department administrative staff often obstructionist and invariably uninterested. At appeal, the Repatriation Review Tribunal was very authoritarian, obsessed with legal technicalities to an extent that was detrimental to me and more concerned to do justice to the Department than to myself.

XIV-310

A formal submission was made by Veteran 71 to this

Commission and was repeated during Informal Sessions. The

files dislose the following: on 21 May 1980 a claim for

benefits for incapacities which were diagnosed as

hypermetropia, schizoid personality, was lodged at this

office by Veteran 71. He also lodged a claim for sweat

rash. Veteran 71 was examined by a DMO who recorded a

detailed history on 23 July 1980. Further medical

examinations were arranged as follows:

1. Dermatologist ) 25 August 1980

2. Psychiatrist )

3. Pulmonary Function Test ) 5 September 1980

4. Pathology Test )

5. Ophthalmologist ) 9 September 1980

On 7 October 1980 a report in terms of s.48 of the

Repatriation Act was prepared. The claim was submitted to

a Repatriation Board which on 20 November 1980 accepted

incapacity from schizoid personality as being

service-related and assessed such incapacity at fifty per

cent of the general rate with effect from 21 February

1980. The claim in respect of hypermetropia was refused

XIV-311

and the member was not found to be suffering from sweat

rash or any incapacity therefrom. Veteran 71 was advised

of this determination on 31 December 1980 and the Board's

reasons for the decision were enclosed.

On 2 March 1981 a letter written by Veteran 71 to Sir

Phillip Lynch was forwarded to DVA1s Melbourne Branch

Office for information. In it. Veteran 71 claimed that

the medical officer who examined him was unprofessional.

There is no evidence to support Veteran 711 s contention.

The medical report sets out a detailed history and

statement of symptoms. Following special medical advice

the DMO established the diagnosis of the claimed

incapacities.

On 25 February 1981 Veteran 71, through his solicitors,

Fraenkel and Kiven, lodged an appeal to the RRT against

the assessment of the degree of incapacity resulting from

schizoid personality.

On 27 April 1983 a Delegate of the Repatriation Commission

allowed the appeal lodged on 25 February 1981 and accepted

hypermetropia as being service-related with effect from 21

February 1980. Incapacity resulting from hypermetropia

was assessed at ten per cent of the General Rate by a

Repatriation Board on 15 June 1983.

XIV-312

On 27 April 1983 a Delegate of the Repatriation Commission

also disallowed the appeal against a Repatriation Board

determination in respect of a condition now diagnosed as

acne vulgaris.

On 4 June 1981 Veteran 71 lodged a claim for benefits for

coughing-up of blood, itching head sores, nightmares,

darkness of sight and severe neck pains.

Following lengthy medical investigations, a Repatriation

Board on IB June 1983 made the following determinations:

1. coughing up of blood refused - no incapacity

found.

2. itching head sores accepted as service related

with effect from 4 March 1981 - negligible

incapacity.

3. nightmares - no jurisdiction - considered to be

the same incapacity as schizoid personality

accepted by a Board on 20 November 1980.

4. severe neck pain - cervical spondylosis refused -

not related to service.

XIV-313

The appeal to the RRT against the Repatriation Board

determination of 15 June 1983 assessing incapacity

resulting from schizoid personality at fifty per cent of

the general rate was heard on 12 July 1983. As a result

of this appeal Veteran 711 s pension was assessed at one

hundred per cent of the general rate with effect from 21

February 1980. The Tribunal fixed a binding period of one

week to enable Veteran 71 to present further evidence of

deterioration of his accepted disability schizoid

personality to a Repatriation Board.

After further medical investigations following Veteran

711 s application for increase lodged on 20 July 1983 a

Delegate of the Repatriation Commission determined the

extent of incapacity resulting from the service-related

disabilities to be Totally and Permanently Incapacitated

Special Rate with effect from 4 June 1981.

Following lengthy medical investigations a Delegate of the

Repatriation Commission determined on 15 August 1983 that

darkness of vision claimed on 4 June 1981 was the same

incapacity diagnosed as schizoid personality and there was

no jurisdiction to consider the claim.

XIV-314

There is no evidence to support Veteran 711 s contentions

in respect of general staff, medical officers, or the

Repatriation Review Tribunal.

All of Veteran 711 s enquiries have been attended to as

promptly as Departmental resources permitted. His view of

the Department and its staff is so all embracing that the

absence of particularity makes it difficult for this

Commission to conclude other than that no valid complaint

is made out.

Veteran 72. W A A says :

The veteran claimed for 1 bad nerves, aching of limbs and joints, tension, depression, anxiety' in 1981 his claim was rejected. He says of the Department:

They do not listen to me, they do not

believe a thing I told them.

The files show that this veteran was examined by a

physician, an ear, nose and throat specialist and 2

psychiatrists. All took extensive histories and have

expressed no doubts about the man's veracity.

The Board, and the Repatriation Commission refused his

claim and his appeal on medical grounds unconnected with

his truthfulness of otherwise.

XIV-315

There is no substance in his complaint.

Veteran 73. W A A says:

The veteran complains that:

I would like to draw your attention to a

health condition of my scalp, which I

contracted during my service in Vietnam.

I enlisted as a National Serviceman on

11.7.67 at Brisbane. Serving in Vietnam 1 year and 1 day (1968-69). Whilst I was

there I contracted this scalp condition and was treated by the RAP. At that time they did not know what it was (so treated for

, prickly heat).

Upon discharge, I tried to obtain Repat services, but was told that seeing I was discharged medically fit, I was not entitled to Repat services.

I then had to go to specialists in Brisbane, four in number, none of these knew what it was, they all tried different treatments, all failed. I still have the said complaint.

No DVA record of this man exists in its Client Data Base

or on the Brisbane Branch index. It is thought unlikely

that he would be told he could not obtain assistance on

the basis claimed.

Veteran 74. W A A says :

The veteran complains and says that he was

treated for heat rash in Vietnam. That since Vietnam he has had trouble with his eyes, they

XIV-316

started to deteriorate in 1970-71 as a result of a flash blast of a nearby RPG (enemy anti tank weapon) exploding in Vietnam. The Army sought specialist treatment which resulted in the issue

of special tinted glasses, the eyes are still getting worse. He also suffers from a skin rash from the collar upwards to the forehead on the exposed skin. He has also had problems with his

teeth. The diagnosis is of a tropical disease which affects the protein balance and results in the teeth degenerating and breaking up.

He approached the DVA in Brisbane in early 1981 to inguire about benefits available to him. He spoke to a clerk on the counter and explained to him the problems he was having with his eyes. rash and teeth. The clerk at the counter said:

'were you discharged medically fit from the Army?' He replied: 'Yes, I was'. The clerk

then said: 'Well you've got no claim then'.

(Ipswich Branch W A A have submitted a new claim for this veteran, 1984).

No record of the claimed initial contact can be found.

The staff performing counter duties have

selected and trained. The statement

unlikely and guite contrary to policy,

particularity. No valid claim is made out.

been specially

attributed is

There is no

Veteran 75. W A A says:

The veteran complains that he first approach the Repatriation Department for benefits in 1971 for bowel disorder and nervous problems. These were finally accepted in November, 1983 and March,

1984 .

XIV-317

The file shows the following: On 20 July 1971 the veteran

lodged a claim for skin condition, stomach condition and

haemorrhoids. The diagnosis was:

(1) Functional Diarrhoea

(2) Haemorrhoids

(3) Hyperhidrosis

(4) Tinea Pedis

On 30 September 1971 the Repatriation Board rejected the

claims for functional diarrhoea, hyperhidrosis and tinea

pedis on the basis that no record of treatment for these

conditions existed during the veteran's eligible service

periods. Incapacity from haemorrhoids was accepted with

effect from 20 April 1971; however, due to the degree of

the incapacity, no pension was considered to be payable.

On 15 October 1971 the veteran appealed against the

Repatriation Board's decision of 30 September 1971 in

respect of the rejected disabilities functional diarrhoea,

hyperhydros is and tinea pedis and this appeal was

subsequently disallowed by the Repatriation Commission on

7 December 1971.

XIV-318

The veteran also appealed against the pension assessment

in respect of his accepted disability of haemorrhoids on

15 October 1971. The appeal was disallowed by the War

Pensions' Assessment Appeal Tribunal on 28 January 1972

due to the resulting incapacity not being of a pensionable

degree.

On 23 June 1980 the veteran lodged a claim for acceptance

of the disabilities skin condition (scalp and body) and

nervous condition. The diagnosis was:

(1) Psoriasis

(2) Nervous condition - no new disability as symptoms

covered by rejected disability functional

diarrhoea

On 15 December 1980 a Delegate of the Repatriation

Commission determined that the claim for psoriasis be

referred to a Repatriation Board for determination as a

new disability and that the claim for nervous condition be

referred to a Repatriation Review Tribunal as an

application for review of the Repatriation Commission

decision of 7 December 1971 in respect of functional

diarrhoea.

XIV-319

On 16 January 1981 the Repatriation Board rejected the

veteran's claim for psoriasis on the basis that the

condition was not present on discharge and also was not

present when the veteran was seen by a dermatologist in

1971 in connection with his disabilities hyperhidrosis and

tinea pedis.

Prior to referring the claim for functional diarrhoea to

the RRT, the Repatriation Commission directed that the

case be reviewed by Commission as no reasons for decision

were given by that Authority in 1971. This review was

completed on 22 September 1981 when the Commission

affirmed its previous decision to disallow the appeal and

amended the diagnosis of the condition to irritable bowel

syndrome.

On 8 July 1983 a Delegate of the Repatriation Commission

reviewed th claim for irritable bowel syndrome under s .107

VL and determined that this condition was due to war

service with effect from 23 December 1979. The Commission

also directed that the veteran's claim of 23 June 1980 in

respect of a nervous condition should be answered with the

diagnosis of anxiety neurosis and be referred to a

Repatriation Board for determination.

XIV-320

On 13 January 1984 the Repatriation Board allowed the

claim for anxiety neurosis with effect from 23 March

1980. Disability pension was granted with effect from 23

December 1979 at 20%, increased to 30% with effect from 23

March 1980 and further increased to 50% with effect from

20 March 1984.

The veteran's improved position probably reflects

developments in understanding of s.47 or perhaps

increasing benevolence.

There is no valid complaint made out.

Veteran 76. W A A says:

The veteran has received a pension from the

Department since 1970-71 for a nervous disorder. He says:

That the Department are not interested in me. I was referred to a psychiatrist at

Greenslopes 4 or 5 years ago because I could not sleep. I was given valium. The

psychiatrist asked me a few questions in the interview before prescribing the valium. I went to see him twice, but gave up because I felt that they were not interested.

This man saw the psychiatrist at RGH, Greenslopes on

18.2.80.

XIV-321

A detailed history was taken and recorded (3 full pages).

Valium seemed appropriate and was prescribed.

A follow up examination was arranged for 10/3/80. The

veteran failed to attend. The veteran attended once, not

twice as stated by him.

Who was not interested? Veteran 76 has received a pension

for conversion reaction, now 20%. since 31.5.69.

No valid complaint is made out.

Veteran 77. W A A says :

The veteran says that he applied for Repatriation benefits in 1970 for boils on his neck. He had the boils first in Vietnam when aged 35 years. He was told by the MO that they were tropical

boils and that they would go away, he still gets them. He was told by a specialist at Wickham Terrace that it was hereditary acne. He did not have acne before Vietnam, nor had his parents

suffered with acne. His claim for acne was

refused.

This veteran receives a disability 50% pension for a range

of disorders. Half of his 12 claims have been allowed and

half not.

XIV-322

His acne was thought to be caused by a hormonal defect and

the claim for it was indeed refused. There is no mention

of any hereditary defect.

No valid complaint is made out.

Veteran 78. W A A says :

The veteran complains that he was enlisted in 1968 and was discharged in 1970. When he tried to re-enlist 10 weeks later he was rejected

because of loss of hearing. He therefore applied for Repatriation benefits. He says:

I was asked to appear before a Board, I

received the letter on the Wednesday before the hearing on the Friday. The Board

consisted of seven people who asked some questions and banged a tuning fork on the table and asked if I could hear it. I felt that they were not particularly interested

and that I have been set up. I felt the

result had been decided before they even saw me. A letter refusing the claim arrived on the Monday after the Friday appearance before the Board.

The file shows that on 6 April 1970 Veteran 78 claimed to

have suspected appendicitis accepted as due to war

service. A further claim for slight hearing defect in

both ears, was received 12 June 1970.

XIV-32 3

On 24 June 1970 the veteran was examined by his LMO.

Dr K L McLachlan in respect of his claim for Appendicitis

and on 3 July 1970 Dr W A Hopkins performed an ENT

examination and audiogram.

The Repatriation Board determined, on 24 July 1970, that

appendicitis be refused as the veteran was not suffering

from this condition, and also, that bilateral

sensori-neura1 deafness be accepted with effect from 29

January 1970. The incapacity resulting from this

disability was considered to be such that it did not

warrant pension assessment. The letter advising the

veteran of the Repatriation Board's determination was

forwarded to him on 28 July 1970.

On 16 October 1970 the veteran lodged an appeal to the

Assessment Appeal Tribunal. The veteran was flown to

Brisbane to be examined by two medical members of the War

Pensions Assessment Appeal Tribunal on 26 February 1971,

and on that same day the appeal was disallowed and advice

of the decision forwarded to the veteran.

Thus the claim was not refused: the deafness which the

veteran himself described in his claim as ' slight1 was

allowed but found not to be incapacitating.

XIV-324

The complaint is unjustified.

Veteran 79. W A A says:

The veteran complains that he made application for benefits in February 1980 for 1 chest

condition1 and ' nervous disorder' . It was

refused in October 1980. He says:

I went to see a psychiatrist in Toowoomba as part of the assessment. Dr Linness. I spent 10 minutes with him. He asked me about my present health but asked nothing about details of Army service. He did not appear

to be interested. I then saw a physician at Greenslopes as part of the application. He did not ask me about my health or history.

Shortly afterwards I went to my own

physician who immediately sent me to a

specialist because of my headaches, nausea. lethargy and rashes. He found I was

suffering from an enlarged liver.

A file examination reveals that the veteran was seen by a

physician on 16 May 1980 at RGH Greenslopes and the Form

D918 from that consultation shows that a full and complete

history had been taken by the physician.

Also at that time the veteran underwent a physical

examination, chest x-ray and x-ray of sinuses, each

revealing no abnormality. Respiratory function tests, a

full blood count, multiple biochemical analyses and liver

function tests were also carried out and produced normal

results in each case.

XIV-325

The date of the private specialist examination is not

given. Nothing which contradicts the tests at RGB

(Greenslopes) has been proffered.

The complaint is not made out.

Veteran 80. W A A says :

This veteran complains that:

On finding out our son had a serious hearing defect my wife and I approached the Veterans Affairs Department and we were interviewed by a medical officer. He stated that in all

the cases he had seen relating to agent

orange, he had not heard of a hearing defect in any Vietnam Veterans' offspring. My wife was then interviewed separately and the doctor stated that seeing that this was her first child that she may have contracted measles during pregnancy thus causing our child's disability. My wife was very upset at his attitude towards her. 'I was treated

like dirt' was her comment. We certainly would not have any confidence in the

Veterans Affairs medical staff after our first visit.

On 18.2.81 this man claimed a disability pension in

respect of himself and his children because of exposure to

toxic chemicals in Vietnam.

When he attended (on 24.4.81) it appeared that he claimed

no personal disability but wished to claim for his son's

hearing loss.

XIV-326

The legislative impossibility of the son's claim was

explained and„ at the veteran's request„ the matter of the

son's hearing loss was recorded for possible use in a

study.

No record of the other matter alleged is to be found in

the files.

No statement from the wife or the husband has been

submitted. Rubella does cause deafness in children and a

question to this effect could be expected. No valid

complaint is made out.

Veteran 81. W A A says:

The veteran has an 80% disability pension from the Department of Veterans' Affairs.

He says that he was admitted to Greenslopes Hospital in January 1983 for a period of two

weeks for a psychiatric condition. During this two weeks he did not see any doctor for this condition. Consequently he discharged himself as he was tired of having nothing done. He was

admitted again in June 1983 for approximately 6 weeks. One particular night he was very sick with nausea, vomiting and migraine headache. He asked the nurse if he could see a doctor. The

doctor did not come until the next day. Everyone in the ward signed a petition complaining about the fact that no doctor was available to see him. As a result of this he was transferred to

Ward 14, the psychiatric ward.

XIV-327

This man has a 100% pension (SPPU) for allergic rhinitis,

functional headaches, migraine, ulcer, and personality

disorder.

The file reveals the following. The veteran was an

in-patient at RGH Greenslopes on two occasions:

(a) 27/12/82 to 7/1/83

(b) 1/6/83 to 13/7/83

The veteran's first admission was a booked admission for

pension assessment on 27 December 1982.

Due to the staffing levels over the holiday period and

also because he was admitted for pension assessment rather

than treatment, he was not seen by the Psychiatric

Registrar until 3 January 1983. An BEG and CT scan were

ordered and carried out privately to obviate any further

delay and both were found to be normal.

From 3 January 1983 the veteran was seen daily by the

Psychiatric Registrar and on 5 January 1984 he was seen by

a visiting psychiatrist, although there is no record of

any assessment being made. This would appear to conflict

XI V-328

with the veteran's statement that he did not see a doctor

for his psychiatric condition.

In his discharge summary the Registrar stated. 1 other

appointments made for ENT consultation and

gastroenterology were cancelled because Veteran 81 was

'tired of being mucked around' - part of which was true'.

The Director Medical Administration has also commented,

'his management during this admission certainly left

something to be desired'.

The veteran's second admission was for an overall review

of his problems on 1 June 1983. He was extensively

investigated psychiatrically and also by a Neurologist and

Gastroenterologist. All medical and nursing records have

been carefully perused and there has been nothing found to

substantiate the veteran's complaint. Cross referencing

of nursing and the RMO notes has shown that the veteran

was always seen and treated for his severe attacks of

migraine.

However, one minor delay did occur on the night of 10 July

1984. A nursing note at 0100 hours states that the

veteran was experiencing severe pain to the right side of

his head. It further stated that the RMO was notified and

XIV-329

treatment was ordered and given, the final statement was

1 settled and slept1 . The RMO notes at 0400 hours

confirmed the telephone orders of drugs in writing and

also stated 'I was unable to see patient at the time - now

asleep'. This time delay of three hours is not considered

to be unreasonable especially as treatment was ordered by

phone.

The veteran had always been in a psychiatric bed during

this admission; however, he was initially in a Ward which

took the overflow from the psychiatric ward. From 5 June

1983 he was spending some daytime in the Psychiatric Ward

and from 11 June 1983 he was in the Psychiatric Ward for

most of the daytime hours. The veteran was eventually

transferred to the Psychiatric Ward when a bed became

available on 29 June 1984.

The complaint is exaggerated at best, although the files

show some deficiencies in his treatment. The period

between Christmas and New Year presents particular

staffing problems in any organization and a 3 hour delay

between l am and 4 am when appropriate treatment was

immediately ordered by telephone does not seem entirely

inappropriate. The man was clearly able to sleep by 4 am

at the latest.

XIV-330

A marginal complaint having some substance as DVA freely

admit.

Veteran 82. W A A says:

The veteran complains that he lodged an

application for Repatriation benefits for a back injury. He says the injury occurred in 1968 at Nui Dat. he was lifting logs of wood for a bunker installation and ended up taking all weight of

one log himself. He says he did not report the injury to the RAP because you would be looked upon as a malingerer if you went to them about those sorts of things. His back gradually became worse and he applied for benefits in 1978.

Dr Walters, an orthopaedic specialist, told him that he had disc damage in the lumbar spine.

After about 12 months he received a letter from the Department of Veterans' Affairs stating tht his application was refused, that his back

problem could not have happened on service as there is no record of it in his army medical file.

His claim was indeed refused. The reasons

determination by the Board were forwarded to him

15/10/79 and read as follows:

The veteran claims his disability to service (sic) from lifting logs during the Vietnam war. There is no documentation of such an occurrence during service - he claims it occurred in 1968.

In 1969 medical examination of his spine is

reported as normal. It was also normal in 1967 and a motor vehicle accident on 4.9.65 resulted in abrasions and no reference to any back injury.

for

on

XIV-331

The veteran works at a centre for physically and mentally handicapped people entailing a lot of lifting and bending. On 15.5.79 he lifted a patient, and subsequently overbalanced and fell forward injuring his back.

There was an earlier episode 12.8.75 of back injury occurring while a clerical assistant lifting a desk at Amberley Housing Section. This was referred to as an 'acute back strain' rather

than disc trouble and the effects of this were of a temporary nature.

There is no way that this veteran's back trouble can be attributed to his war service as there is nothing relating to any back trouble in the

documents though he himself describes an episode in 1968.

The disability must be attributed to degenerative changes with super inforced injury such as occurred in 1979 on lifting a heavy weight.

There is no way the incapacity could have

resulted from an occurrence that happened during service.

It was not first manifest on service.

The incapacity did not arise out of nor is it attributable to service or anything therein.

This conclusion was clearly open. There was no appeal.

The complaint is not made out.

Veteran 83. W A A says:

The veteran suffers from carcinoma of the

naso-pharynx which was diagnosed in January 1983. Dr Kelly of Southport, Queensland, can provide details of the biopsy report on the cancer. In January 1983, he lodged a claim for cancer and anxiety state, the cancer was rejected.

XIV-332

The veteran served with the 6th Battalion Royal Australian Regiment from May to November 1969. He was "medivaced" out of Vietnam for anxiety.

He saw a Dr Cameron at the Department of Veterans Affairs in early 1984 about his anxiety claim. He says:

She took a bit of medical history from me and talked to me about my childhood. She did not asked me about my experiences or what I did in Vietnam or the army.

The doctor then said to him -Are you looking for a job?

He replied:

I'm trying to find something casual that I can do.

The doctor then said:

Why don't you get an office job. You

shouldn't need any money from Repat when your wife's children live at home with you. they can support you.

He later inquired at the Repatriation Office in Brisbane about his claim for anxiety state and was told by the girl at the counter that his

claim could take months and he should forget it.

This man receives a 20% disability pension, a SPPU pension

(100%) and the additional pension for 2 children. He

received this as a result of his interview with Dr Cameron.

Dr Cameron says that she does not recall the interview

specifically but she firmly denies the statements

attributed to her.

XIV-333

Counter staff are specially and carefully selected and

trained. The account is unlikely, but delays do occur as

stated.

The complaint is not made out.

Veteran 84. W A A says:

The veteran states:

My problems are my ears, deafness etc and I have been dealing with clinic/ward 9 for the last 3 years. On the first visit they

examined me and months' . said '

' come back in six

The second visit was about 10 minutes and again told to - 1come back in s ix months'.

In the meantime I was under a specialist at Gosford. This 'come back in six months' went on for 2 1/2 years. On one occasion I arrived at clinic 9 only to find that my

appointment had been cancelled and they had failed to inform me, so a day off work, all the way down and back for nothing. They

were not even going to pay my travelling expenses until I complained bitterly.

My specialist at Gosford kept asking me, 'what is Concord doing for you?' My reply was - 'come back in six months.'

My specialist then decided to operate on my right ear. He found a fractured staples bone inside my middle ear. After I had been operated on. May 30th, 1984, I again had to go to Concord. My appointment was at

2.00pm. (I had intended to catch a train back to Gosford at 3.00pm). I asked the

sister when I can see the doctor. Her reply was - 'the doctor doesn't turn up until

2.30pm'.

X I V - 334

Why give an appointment at 2.00pm. Upon seeing another doctor about ten minutes later he said, 1 why do you keep coming down here?1 My reply was. 1 because you doctors keep telling me to come'.

He then examined me and said. 'well you

might as well go to the specialist at

Gosford and don’t bother about coming back here anymore'.

So after about 3 years of going down to

Concord every six months they did nothing for me, except the hearing test centre on 5th floor, he was very helpful.

Also if you have an afternoon appointment, they give you a lunch voucher, but if you appointment is for 11.45 am - no voucher, even though you are still there over lunch.

The files reveal the following. Veteran 84 lodged an

application for an increase in his disability pension on

2 4 July 1981. His accepted disability at that stage was

sensori neural deafness accepted by the Repatriation Board

in 1971.

General medical examination plus an ear, nose and throat

specialist examination plus an audiogram were arranged

locally for August and September 1981. An assessment was

granted at the 20% rate on 24 November 1981 and backdated

to 24 July 1981.

Veteran 84 then lodged a claim for tinnitus both ears,

acne in both ears and nervous tension on 22 February 1982.

XIV-335

A general medical examination, psychiatric examination and

ENT examination were arranged for May 1982 and clinical

notes were requested and received.

The veteran was seen by an ENT specialist at Concord in

May 1982 who suggested that the veteran should see an

orthodontic specialist for opinion 'trial of opening up

the bite 1.

The veteran was again seen on 22 October 1982 at Concord

by an ENT specialist who recorded that 'orthodontist

offered no treatment. Now has displacement with some

ambient noise. Consider this to be associated with this

cochlear loss. No treatment available. Review in six

months’.

Veteran 84's accepted disability was amended to read

'sensori neural deafness with tinnitus' on 23 December

1982 and his pension assessment was increased to 30% with

effect from 22 November 1981.

The veteran returned to Concord on 27 May 1983 where the

ENT specialist recorded 'no significant change' and

requested review in six months.

XIV-336

A review was conducted on 4 November 1983. Two audiograms

dated 3 February and 15 June 1984 are held in the Hospital

file.

A report was received from ear, nose and throat surgeon.

Dr J.R. Deves, dated 11 January 1984, on the condition of

Veteran 84. A second report was received from Dr Deves

concerning the operation performed on Veteran 84 30 May

1984.

As to the lunch complaint, the relevant instruction is

found in Instructions for Medical Institutions, No. 20/19

of which states:

a) Day patients who attend hospital at the

Department's direction for the whole or major part of the day as part of a prescribed course of treatment, may be provided with a meal free of charge. Day patients include those:

. participating in active rehabilitation and psychiatric programmes;

. undergoing surgical or other procedures as day patients;

. with specialised dietary requirements which cannot be met from food normally available from the canteen or commerical sources;

. attending pre-admission clinics.

b) Meals are not to be provided free of charge to day patients who are: .

. not undergoing active treatment programmes;

XIV-337

. attending the hospital for appoints at the outpatient department or other treatment centres;

. attending for a consultation or treatment of short duration;

. community patients.

This Commission notes however that at Repatriation General

Hospital (Concord) a liberal approach is taken to the

instruction and if an eligible beneficiary is required to

be at the outpatient Department for a lengthy period

including the lunch break, a meal voucher, redeemable at

the hospital cafeteria, is issued if requested.

The complaints are not made out.

Veteran 85. W A A says :

He states:

I have spent quite a bit of time in

Hollywood Repatriation Hospital and my view from my experience is that they really don't care overly much for Vietnam veterans. They seem to blame everything on nerves -

whatever you've got the matter with you, it's due to nerves!! In November 1980, I was in Hollywood for an operation of my

back. One day in the war I began coughing up blood which really put the wind up me. I called the sister and told her and all she

said was: 'That's nice' and walked away. This was the Ward Sister in Ward 6. When

the doctor came round I told him. He said, 'I'm busy now I'll see you later'. He never came back to see me.

XIV-338

I was also told that I should have

physiotherapy after my back operation but I waited and waited and they never came for me to take me to physiotherapy even though I'd

had an operation on my back.

I was in hospital on 16 April 1982. I had a drip which ran out. I told the nurses three times, 9.10am, 9.35am and 9.36am before anyone came to fix it.

During that particular stay in Hollywood my sputum mug was not emptied for three days. Also in my experience at Hollywood on many occasions my medication had not been given

on time and I have had to remind the staff. On one occasion I was in the psych ward at Hollywood when one of the staff, a sister, just flew at a fellow patient. ... She

really abused him calling him everything under the sun. Everyone could hear this. It did not seem very good behaviour to me whatever the chap had done. (I taped this

abuse and have the tape at home).

I am of the opinion that you are treated as a second class citizen in Hollywood if you are a Vietnam veteran.

I have had such bad treatment that I have kept a diary of all the things that have

happened at Hollywood to me.

On occasions staff have not given me my

medication - they have forgotten about it. On a couple of occasions I've been given the wrong coloured pills and when I questioned them it turned out they were the wrong ones,

they were for someone else. When I

questioned them, the nurse said, 'so you're refusing to take them are you?

The Commission has carefully examined this man's files. He

is clearly an obsessional and rigid person who fails to

meet his own (impossibly high) standards and is therefore

XIV-339

very angry with those around him. He is very irritable

and describes himself as violent and cantankerous.

He has been a difficult patient to manage but the files

disclose detailed interviews and careful conventional and

sympathetic management at Hollywood. Very often his

symptoms are perceived by him as organic when the medical

opinion is that they are of psychosomatic origin. This

has caused upset to them.

The veteran receives a T & PI pension and has four large

files detailing his long course of RGH treatment, both

in-patient and out-patient.

The Commission feels confident that no valid basis for

complaint exists. In his many visits and admissions it is

clear that isolated upsetting events have occurred. One

example was in a group therapy session when the veteran

was clearly disturbed by the group's response to him.

Veteran 86. W A A says :

His wife states:

In 1971 my husband was operated on for the removal of a Sertoli cell tumour from the

XIV-340

right testicle. He made a claim upon

Repatriation in 1971 in respect of this tumour. His claim was refused and he was very upset by this refusal. In 1981 he

lodged another claim. My husband lodged an appeal in respect of the Board's decision following the determination. This appeal was lodged in December 1981. The form was

handed over at Repatriation in William street, Perth. We got nothing from the Department to say that they were processing it. We waited and waited and still did not

hear anything. I know these things take time but we were left entirely in the dark.

Finally in June of this year, 1984 . I

approached the local president of the W A A on behalf of my husband to see if he could

get on to Repatriation to hurry them up a bit. My husband is so fed up that he will

not get in touch with them. I was very

traumatic for my husband when he had his testicle removed and he has suffered

psychologically ever since.

The local president of the W A A has told me that he rang Repatriation for me and he was told that the papers were lost. He was told that a letter of apology was on the way and the claim " had been moved into the fast

lane". Still we received no correspondence.

At the beginning of September of this year, 1984, I rang Repatriation again. I spoke to and Indian gentleman who said he would ring me back; another chap rang me back later and

said that my husband's file was not there and he'd look into it. He said he'd get

back to me. I cannot understand why we have to wait for almost 3 years to have this

matter decided.

No record of any 1971 claim exists. A telephone inquiry

of 11.9.78 by the wife is recorded. The first claim was

made on 27.8.80 for the lost testicle and depression. The

XIV-341

depression claim was allowed and a 50% pension granted.

The testicle claim was refused. This was on 27.5.80. An

appeal was lodged on 21.12.81.

The appeal notice was overlooked until 8.6.84 when W A A

inquired.

This oversight led to an apology and a tightening of

procedures to avoid such human error.

The complaint is quite valid.

Veteran 87. W A A says :

He states:

I am in receipt of Repatriation pension at the rate of 100% for thoracic spondylosis. A couple of years ago I collapsed at home. My wife drove me to Hollywood Repatriation Hospital. When we arrived she asked for a wheelchair because I was in a very bad way - I could not stand up. The staff would not give us a wheelchair and we were told to sit in the waiting room. I had to lie down on the floor because I just could not stand up or sit up in a chair. The orderly came in

and wrote down my particulars while I was lying on the floor - he did not seem at all concerned by this fact. I was seen by a Dr Yin who asked me what was wrong. I said

that I did not know. I had collapsed. The doctor asked me who my GP was and when I

told him he got on the telephone to my GP. I heard the doctor say on the telephone, 'he's putting on quite an act, what shall I do with him?'

XIV-342

After the conversation had concluded, Dr Yin said to me, 11 suggest you go and malinger elsewhere. I've got urgent matters here, this is a very busy hospital'.

Despite this doctor's attitude I managed to get myself admitted to hospital where I stayed for 12 days. I was diagnosed as

having a virus of unknown aetiology.

I had a very nasty experience on another occasion at Hollywood. I was admitted for an operation where they push a tube down into your stomach to have a look. I was

admitted in the evening before the

operation. At the time I was working night shifts and I found it hard to sleep so after lights out I kept my light on to read. I

asked the nurse and she said this was OK. Shortly after a nursing aid came round and reached over me and switched off the light. When I asked why the fellow opposite was allowed to have his light on and not me the aid just barked: 'doctor's orders'. A

little later a nurse came up with 2 sleeping tablets and gave them to me with the words: 'doctor's orders ' .

The next day I was as sick as a dog when

they gave me the jab ready for the operation but no one seemed to care. I was wheeled up to the theatre and left outside on the

trolley for guite a long while; when I asked what was going on, no one would tell me. I just could not get anyone to tell me why I was left waiting on the trolley in the

corridor.

I was finally wheeled into the theatre and I had a bad time because I just could not take having this tube shoved down my throat. I

finally must have passed out.

When I came round later that day I was very groggy and I felt terrible. A nurse came up to the bed and threw an envelope on the

bed„ A friend of mine had come to see me

and he was standing by the bed when this

happened. He said: 'What's that?' The

nurse said: 'It's his discharge'. My friend

XIV-343

said, 'How's he going to get home like this, he's in a bad way?' The nurse replied,

'That's not our concern'. My friend took me home in his car but I was in a real bad

way. I kept passing out. I passed out when I got home.

I have also been treated very rudely on

other occasions. On one occasion I went for a routine appointment at out-patients at Hollywood. Whilst I was waiting for my turn a tallish chap in his 50' s came up to me.

He said: 'step into this room'. I followed him thinking he was the chap I was supposed to see. When I got into the rooms he said: ‘sit down'. When I was seated he said, ' I want you and your mates to know that this is not a drop-in centre for a government

holiday'. I was really angry and upset and I just got up and walked out. I couldn’t

take that sort of treatment for no reason whatsoever.

The Commission's investigation was made difficult by the

lack of times, dates and specificity.

However, it seems that this veteran presented at Hollywood

at 10.15 am on 26.11.81 with abdominal pain and fever. He

was admitted immediately under the care of Dr Herzberg, a

specialist physician attached to the University's

Department of Medicine.

He stayed for 6 not 12 days.

Dr Yin emphatically denies the veteran's account and the

remarks attributed to him.

XIV-344

The veteran was admitted for endoscopy on 9.6.82. No

complaint is recorded. A good night's sleep is advisable

before ERCP. The nurse has noted "satisfactory night".

The veteran was discharged at 1500 on 10.6.82.

This man has presented at the out-patient clinic on 6

occasions. Inquiries cannot identify a "tallish chap in

his 50's".

He was seen twice by a Psychiatrist, Dr button, who

advised continued therapy which he declined.

She felt that his obsessional detached traits were

controlling an underlying anxiety state which could be

assisted.

The Commission accepts Dr Yin. The complaint is not made

out.

Veteran 88. W A A says :

He states:

I have had quite a lot of trouble with my

nerves since Vietnam and I have spent some time in the psych ward at Hollywod Hospital, Perth. They put you in the same ward as all the geriatrics and whilst I feel sorry for

X I V - 3 4 5

the old blokes. when you are feeling on edge and nervy the last thing you want is to be put in a bed next to an old bloke who is

dribbling and raving on. It makes you feel even more depressed.

One occasion I was in the Hospital in Ward 12, it was about 2 years ago. ... was in

there at the same time. We used to go into the TV room to watch TV and a girl would

come in and watch TV with us. She was from the Women's Ward. I made a point of never being alone in the TV room with her for fear of being accused of trying to chat her up.

One day the Ward Sister, Monica, called me in and told me to keep away from the girl. 1 told her that there was nothing going on, the girl just used to come in to watch TV. I was upset that I should be accused of

doing something I had not done. I walked away and Monica started a tirade of abuse at me. ... heard it all.

I went through a long period of impotence and I became very depressed about this. It is the sort of thing that a bloke feels very nervous about talking about. It's hard for a bloke to talk about those things even to a doctor. Finally after about 5 years things

started to get better and when I went to see Dr Holman, the Repat doctor and told her that I was beginning to get erections again, she burst out laughing. She treated the whole thing as a joke. That is typical of

the attitude I have experienced with the Repat system. They treat you like an

idiot. They won't explain things to you; they do tests and they won't tell you what they are for or what the results were; they seem to treat it all like a big joke. There was a lack of sensitivity particularly when dealing with my impotence problem. It is not the sort of thing that should be laughed about.

The consultant psychiatrist Dr McLaren, reports to the

Commission as follows:

XIV-346

(1) This man has an A/D 1 personality disorder1 . One of his more frequent complaints is poor memory. His tendency to indulge in fantasy (usually that people are persecuting him) is well documented: - report by Clinical

Psychiologist 12.6.80. H file refers.

(2) This man is usually kept on ward XI at RGB

Hollywood because of his frequent impulsive suicide bids. On the admission to which he appears to be referring, he cut his wrists on two separate occasions. As a result, he was transferred to ward XI from ward XII where he could be kept under close

observation. It should be noted that other patients have frequently complained about his behaviour.

(3) The ' complaint' about his dispute with Sr Monica Benjamin is not confirmed by the nursing notes. (The female patient in question is well known for her capacity to

become enmeshed in complex, destructive relationships with men). The nursing notes for the period in question are paraphrased:

23.2.81: Night report 0230 hrs: up and had cup of coffee, chatting with order lies. 0600 found in bathroom with both wrists cut. Later handed in more razor blades.

24.3.81: Day report: very manipulative.

Constantly seeking attention and if not given it. becomes 'suicidal'.

25.3.81: Night report: comfortable night swearing at the other patients.

26.3.81: Day report: had a talk with him re his close association with Mrs F. Advised him to deal with his own problems and leave the staff to deal with hers. He

exploded saying I was accusing him of running after her - was quite abusive, and his friends Mr M and Mr S supported him.

E/R: Rather quiet, watching TV and

talking to other patients. N/R: had a good night, no complaints. Sr Benjamin does not start ' tirades of

XIV-347

abuse' at anyone. This 'complaint1 is perfectly in keeping with his general conduct of rejecting all advice, however innocently intended, and twisting events

to make them look as though he was being persecuted.

Dr Holman does not recall the alleged

incident, and there is nothing in the notes about it. Dr Holman does not 'burst out

laughing' about anything. She suggests she might have smiled and said 'that's nice'.

When this Unit took over Veteran 88 's

management, he was destitute, physically, mentally and financially. As a result of our treatment, he is now functioning

independently at a level nobody who knew him previously would ever have expected.

The doctor's explanation seems coherent and acceptable.

The Commission accepts it. No complaint is made out.

Veteran 89. W A A says:

The veteran complains that during his assessment from (sic) Repatriation benefits from anxiety disorder. Dr Darvas of the Department of Veterans Affairs wrote on the veteran's file, the

following:

The cause of the disability in this cause is faulty reaction to stress due to hereditary factor creating a vulnerable personality.

The traits which provide basis of

personality are inherited but the

environment of early years especially the first seven, plays an important part in the formation and inter-relation of the

personality and the subsequent adjustment of the emotional life.

XIV-348

Member immigrated to this country with his parents at the age of 18 months from Malta. It is very likely that early difficulties of immigration has affected family life. Parental deprivation - even if it was due to hard work - is very likely, economic

problems almost certain particularly in early stages, to provide the absolute

necessities, it is well known that

immigrants from Malta came from the poorer classes.

Father died at age of 45. Cause of his

death was 'liver disorder1. Although no more detail is available and by no means is it always the case - however it is known

that Ethenal abuse is a common cause of

'liver disorder ' in middle age men.

The incapacity - in my opinion - has not

arisen out of nor is it attributable to

member's eligible period of service, but attributable to heredity and environmental factors in his early age.

This man receives a TPI pension for his psychiatric

condition. Opinions from psychiatrists to medical

officers must quite often contain material which would be

offensive to the subject.

There is no ground for complaint unless the material is

untrue and the veterans does not say it is, just that it

was written. One assumes it offended him. Nor is the

Doctor actually ascribing alcohol abuse to the father,

indeed he is careful not to.

XIV-349

The Commission notes that the findings of the Board

omitted the 'offensive1 material, which only came to the

man's notice when he insisted on a copy of all his file,

as he is quite entitled to do. The veteran's psychiatric

state has made him very sensitive. No valid complaint is

made out.

8.5.1 Conclusions from the Three Major and the

Seventy-Six Minor Complaints

W A A selects the cases of Veterans 11, 12 and 13 for high

prominence. As can be seen the Commission sees no basis

for complaint in the cases of Veterans 11 and 13.

It also relies on the 7 6 individual complaints. These

have all been analysed above in so far as their

presentation permitted analysis.

This Commission's written "procedures" reguired all

statements to be dated and signed.

In his letter of 13 April 1984 Senior Counsel Assisting

sought submission lists and statements as set out above.

No lists or statements were received despite regular

reminders. There is in truth no evidence from W A A as to

XIV- 3 5 0

any of the complaints in this section. Many are clearly

out of date, many are misconceived. The admittedly

blurred distinction between DVA and determining bodies is

just ignored.

The submission dealing with the conduct of DVA was

received on 9 November 1984, some 4 1/2 months late. On

14 November 1984, those assisting wrote requesting

statements and detailed particulars in respect of 20 of

the cases.

On 30 November 1984 Mr Alun Hill, Junior Counsel for VVAA,

was reminded of the particularity needed. His response

was to say that he would talk to the second Junior

Counsel, Ms Ward, to see what they were "able" to do about

a reply.

No reply was received.

On 11 November 1984 those assisting approached Ms Ward who

asked for (and was given) a copy of the earlier letter.

On 12 December 1984, Senior Counsel Assisting wrote to

Senior Counsel for W A A protesting the lack of

particularity and asking that he ensure the supply of

particulars.

XIV-351

Nothing has ever been received, not even a reply to Senior

Counsel's letter.

W A A did not identify which specific complaints in Part E

of the W A A submission were said to reflect any improper

application of s.47 or of failure by DVA to comply with

S .24 AB.

The Commission invited Counsel for W A A to examine all the

DVA files on each such case as obtained by this

Commission. Counsel for W A A made only the most cursory

examination of the files.

The DVA response to the generality of complaint was

forwarded to WAA.

The rejoinder merely repeats the allegations and says that

"individuals have not withdrawn their complaints nor do

the answers provide a satisfactory explanation to the

individuals".

An examination of the files leads the Commission to

seriously doubt whether contact was made with the

individuals at this stage.

XIV-352

A plea of paucity of resources has been made by WAA.

This Association has been vicious and vocal in its

complaints. This Commission was its opportunity to "put

up or shut up."

Senior and Junior Counsel were retained by W A A on the

weekend of 14/15 May 1983. The President of W A A and

Counsel for W A A addressed meetings of veterans in all

capital cities of Australia about the subject matter of

this Commission. In each of those capital cities as well

as in other centres they interviewed many witnesses

119

"volunteering useful information".

State and National office workers were working "furiously"

120

finding veterans with special knowledge.

Questionnaires were circulated in August 198 3 to all on

the W A A mailing list.

As early as 1979 State Branches were collecting complaints

against DVA.

The legal advisers of W A A had almost 2 years to collect

and collate complaints, to verify and substantiate them.

XIV-353

DVA has literally millions of "client" contacts per year

through its more than 12,000 staff. More than 70,000

patients are treated in Repatriation hospitals and

institutions.

That after the furore W A A came up with fewer than 10

complaints of substance of itself speaks volumes.

9 . PART F; GENERAL COMPLAINTS RE MANAGEMENT AND CLAIMS

FROM OTHER SOURCES

9.l Medical Examinations and Opinions in Respect of

Alleged Chemical Caused Disabilities

Some veterans have complained that doctors who examined

them seemed to have no knowledge of the possible effects

of chemicals. It is clear that DVA did designate

particular DMO s to read the relevant literature and that

these designated DMOs were meant to see all chemical

claimants. After July 1980, a special form was used.

(D2120).

This Commission has considered individual submissions made

by and on behalf of veterans. It has examined a wealth of

material contained in individual DVA files and has

XIV-354

considered and evaluated information supplied by DVA, most

commonly in response to specific questions raised by this

Commission. The conclusions reached by the Commission are

as foilows:

. Information dealing with chemical agents which was

distributed and otherwise made available to DMOs

and other senior officers of DVA by the Assistant

Chief Director (Medical Services) was

comprehensive, up-to-date, relevant, and essential

to DMOs responsible for dealing with

chemical-related claims;

. DVA began to use a different form of medical

examination for chemical claimants only in July

1980. Those . claimants were given a medical

examination recorded as form D2120 and, in

addition, particular personal data were collected

concerning that veteran's family history and

health and a history of self-reported exposure to

chemical agents;

. Vietnam veterans could reasonably have presumed

that the medical examinations given to chemical

claimants would be of particular value for the

XIV-355

diagnosis of chemical-caused disabilities and

would be of effect in allowing the Department to

obtain information concerning Vietnam veterans

allegedly exposed to chemical agents;

Section 48 medical opinions prepared in respect of

chemical claims were not always prepared by DMOs

designated by DVA specifically to deal with such

claims. Where this occurred, internal monitoring

discovered it and procedures were revised to

minimise recurrence;

Nonetheless there may be justification for

complaints made by some veterans alleging that

medical examinations for chemical-caused

disabilities were conducted by medical officers

lacking particular knowledge or experience in the

diagnosis of chemical-caused disabilities or other

medical aspects of chemical exposure;

No unfavourable inference can be drawn about the

quality and thoroughness of medical examinations

and diagnoses given by DMOs who performed chemical

claimants medical examinations;

X I V - 3 5 6

. Chemical claimant medical examinations were not

routinely conducted by DVA in circumstances where

a veteran raised the issue of chemical agents

being a possible cause of disabilities after those

disabilities had already been accepted by a

Determining Authority;

. Chemical claimants medical examinations were not

conducted by DVA in circumstances where a veteran

raised the issue of chemical causation but had not

lodged a claim for entitlement benefits. even in

circumstances where the veteran was receiving

treatment on a civilian basis at RGHs;

. DVA should have ensured that the DMOs designated

to perform chemical claimants medical examinations

and writing s . 48 opinions concerning those

claimants actually performed them.

9.2 Improper Application of the Standard of Proof

Prior to the amendments to the Repatriation Act made in

May 1985, sub-s .47(2) of the Repatriation Act 1920 ("the

Act") provided for the standard of proof which was to be

applied when determining claims. That sub-section

provided as follows:

XIV-357

The Commission shall grant a claim or application unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the claim or application, as the case may be.

Prior to the amendments to the Repatriation Act 1920 by

the Repatriation Legislation Amendment Act 1984, Section

47(2) provided the same standard of proof but that

standard had to be applied both by the Commission, and at

the lowest level of determination, the Repatriation

Board. The same standard of proof was to be applied by

RRT on a review of any claim. (S.107VH).

The standard of proof to be applied by the RRT1s successor

- the Veterans Review Board - was prescribed by in similar

form by sub-s.107 VG (3) which, prior to the May 1985

amendments, provided:

On the completion of its consideration of a

review of a decision -(a) if the decision was a decision to refuse to grant a claim for a pension - the Board

shall set aside the decision unless it is satisfied, beyond reasonable doubt, that there were insufficient grounds for

granting the claim or application; or

(b) in any other case the Board shall set aside the decision unless it is satisfied, beyond reasonable doubt, that the decision is the decision the Board would have made if it had had the responsibility for making the decision a subject of the Review.

XIV-358

Application of the standards of proof, particularly in

recent years, has caused great confusion and disagreement

among the Determining Authorities and resentment among

members of the veteran community.

It is a matter of public record that there has been a

clear divergence of opinion and of result between the

Repatriation Review Tribunal and the Repatriation

Commission as to the proper interpretation and application

of the standards of proof prescribed under the

legislation. Repatriation Review Tribunal Annual Reports

observed that claimants are prone to feel aggrieved by the

necessity to pursue a claim at some length "to obtain

justice".

The number of Repatriation Commission determinations

reversed on appeal are a matter of public record. Between

1976 and 31 December 1984 the acceptance rate by the Board

for new disability claims increased from 26% to 76%, but

in the same period the number of claims almost doubled

from 16,000 to a figure in excess of 30,000 each year.

Acceptance rates at the second level of determination

(which was by way of appeal to the Repatriation Commission

prior to 31 December 1984) have increased by margins even

greater than for the Boards determinations. In 1976 the

XIV-359

acceptance rate was 11% and in 1984 it was 89% for new

disability pension at the Commission level.

At the Repatriation Review Tribunal appeal stage,

acceptance rates were even greater, increasing from 10% in

1976 to 91% in 1984.

The number of Repatriation Commission determinations

reversed highlights a significant problem within the

determining system which has not yet been sufficiently or

effectively addressed. Indeed, the Determining Officers

were trained to find ways around Court statements of what

the law was, increasing the risk of successful appeals.

The Repatriation Commission in recent years, particularly

since the decision of the High Court in Repatriation

Commission v Law (1981) 147 C.L.R. 635, has taken a number

of cases on appeal arguing for a more restrictive

interpretation of the standard of proof provisions.

The Repatriation Commission has asserted that one reason

it has lodged these appeals was to resolve issues left

unanswered by previous Court decisions and, to clarify the

law.

XIV-360

However, there is no question but that the Repatriation

Commission is greatly concerned by the increasing cost of

providing Repatriation benefits. Although the total

number of disability pensioners has been declining slowly

but steadily for some years, the distribution of those

remaining (in terms of pension rates) has changed

markedly, particularly in the area of Special Rate

pensions (increasing from 14,000 in 1982 to 22,000 in

1985). High unemployment probably influences the number

of claims.

The number of war widow pensioners has also risen steadily

since 1981, the main factor in recent years being said to

be the influence and consequence of Law's case. Another

factor is the increasing number of veterans dying,

particularly World War II veterans. Moreover, the number

of surviving widows of veterans has increased steadily

over the years and this trend is expected to continue.

The main reason for the increase is the greater longevity

of women compared with men. Again, the rate of growth of

disability pension expenditure has exceeded the inflation

rate, despite the decline in total disability pension

numbers. The two main reasons for this are, first, that

there has been an increase in the average level of General

Rate pensions, from 40.65% in 1981 to 42.65% in 1985; and,

XIV-361

second, there has been a strong increase in grants, and

hence the number, of TPI pensions (14,000 in 1982 to

22,000 in 1985) .

The effect of these on expenditure is pronounced. For

example, the overall financial cost effect of the decision

of the High Court in O'Brien's case, estimated at $7.8

million in 1985/86, has been estimated by DVA at $250

million in 1989/90.

The Repatriation Commission also has been greatly

concerned with the amounts spent on disability

compensation and the rate of disability claims. In

1983/84, Australia spent $607 million on disability

compensation to World War II veterans including war

widows, and in Canada only slightly more was spent ($651

millions) in the same period for all wars even though the

peak strength of the Canadian Armed Forces in World War II

was 780,000 compared with Australia's 680,000.

In Australia, TPI pensioners from World War II represent

13% of all disability pensioners. In other countries the

percentages for equivalent pensions are: USA 5%; Canada

5%; and New Zealand 5%. Disability claims in Australia

(25,000 in 1983/84) are being made at a level

XIV-362

approximately four times that of the United Kingdom

(6,000), three times that for Canada (7,000) and eight

times the level for New Zealand (3,000). Given the

relatively high numbers of servicemen, particularly for

the United Kingdom (almost seven times the peak strength

of the Australian Armed Forces in World War II). the

Australian figure is high.

That Australia has a more benevolent Repatriation system

than other countries is appropriate and a matter for pride

and does not indicate mismanagement.

For budgetary reasons. therefore, DVA and the Repatriation

Commission have found it extremely difficult to accept and

apply a generous interpretation of sub-s.47 (2). The

Commission applied statements of principles pursuant to

s . IB of the Act of 1920. Following the decision in the

Law' s case a s . 15 statement issued on 11 September 1980

left little doubt that the effect of the judgment was to

express "a significantly different approach in respect of

ss.47 and 107VH from that which has been applied to

date....".

The decision in Law1s notwithstanding, the DVA attitude,

particularly in cases of unknown aetiology and those cases

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where a relation between war service and disability

claimed was not absolutely clear, appears to have been to

impress upon Repatriation Commission delegates and

Repatriation Board members that there are ways of

rejecting claims.

Officers of this Commission attended a Determining

Officers' training course conducted by DVA at its

Melbourne Branch Office. The overwhelming impression

gained during the session dealing with s.47 on application

of the so-called onus of proof (the session being

conducted by the First Assistant Secretary (Legal

Services) of DVA, was that a significant aim of the

lecture was to impress upon DVA officers attending the

course ways in which a claim for Repatriation benefits

might be rejected, and ways in which the interpretation of

sub-s.47(2) could be restricted. A video presentation on

the topic of "evidence" given by Departmental Officer

contained similar comments couched in terms restrictive of

the grant of benefits and outlined the ways in which a

claim could be "knocked-out".

DVA and the Repatriation Commission have, for a number of

years, refused to concede that benevolent judicial

interpretations of the application of s.47 were consistent

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with parliamentary intention at the time the provision was

inserted in 1977 and amended in 1979. DVA and the

Commission seem to have at last realised since Law's case

that the appropriate remedy in circumstances where they

are dissatisfied with interpretation of a legislative

provision by higher authority is to seek appropriate

legislative amendment or. alternatively, to follow the

course laid down by higher authority, as recent events

show. That is, to apply the law!

Repatriation Commission v. O'Brien (1985) 59 ALJR 363 is

but the latest in a long line of cases in which the

Repatriation Commission has sought to clarify the onus of

proof and its obligations as a Determining Authority. The

O ' Brien decision was not specifically a case of unknown

aetiology and the High Court dealt with the standard of

proof required to be applied in repatriation

determinations. DVA is clearly dissatisfied with the

decision. The departmental response focused on the

financial/budgetary implications of that decision although

clearly the rates of claims granted went up. The May,

1985 amendments to the Repatriation legislation need to be

understood in that light.

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The Repatriation Commission, moreover, has sought over the

years to obtain clear-cut clarification as to how

Commission Delegates and Repatriation Board members should

interpret and apply the section. It appears to this

Commission tha t an Intrinsic part of this search for

clarification involves a goal of finding a method whereby

the Repatriation Commission may restrict benefits which

have flowed from a generous - though proper -

interpretation of the legislation.

The problem of the competing roles of DVA - as provider of

benefits, guardian of the public purse, public relations

arm of the Government in dealings with veterans and

unofficial adviser to the Repatriation Commission - is

ever present.

The judgments in 0 1 Brien1 s case both in the Federal Court

and the High Court are replete with judicial admonishment

to the Repatriation Commission particularly the joint

judgments of Gibbs C J, Wilson and Dawson J J in the High

Court in its pithily expressed assertion that the

legislation means what it says.

No specific submission concerning s. 47 has been made by

W A A notwithstanding its nomination by its Senior Counsel

as an area requiring investigation.

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9.3 Submission by Julian Doneqan.

Mr Donegan is a barrister and solicitor from Victoria, and

gave evidence before the Senate Standing Committee on

Science and the Environment. For a number of years he has

been involved in Repatriation matters and provided a

submission to this Commission dealing particularly with

the Terms of Reference discussed in this Chapter.

Although his submission was received only in February

1985, many of the matters covered had already been

investigated by this Commission in the course of its

inquiries.

Dealing with the application of s. 47 Mr Donegan identified

a number of issues for consideration. Those which this

Commission found pertinent are summarised as follows: 1

(1) from a selection of cases examined by Mr Donegan

it was apparent to him that Determining

Authorities had shown scant regard to the

conditions of service that were particular to

the claimant;

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(2) when faced with making decisions concerning

diseases of unknown aetiology the Determining

Authority has found that there is no occurrence

on war service and has thus rejected the claim;

(3) s.48 opinions prepared by DMOs should have regard

to the general conditions of service in order

better to understand the position of the claimant;

(4) Departmental doctors have not understood the

requirements of the Act with the result that

there has been a distinct tendency to look for a

single identifiable traumatic event of

significance; and

(5) in cases involving pre-existing disability not

only was the basis of entitlement misunderstood

but in almost all cases it was impossible to

apply to the claimant the benefit of the

evidentiary provisions under the legislation.

Accordingly, claimants were denied their

statutory rights.

Unfortunately, Mr Donegan provided no particulars to

exemplify his submissions. However, the opinion of this

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Commission is that, in regard to Vietnam veterans, it

would be useful if doctors had a thorough understanding of

the circumstances of Vietnam service.

Some DMOs and some veterans have informed this Commission

that a hostile attitude exists between the two groups and

such knowledge might improve communication and good

relations.

In this regard, confirmation of his submission is

contained in a letter dated 30 October 1980 by the then

Chief Director (Medical Services) of DVA to the Director

(Medical Services) of the Victorian Branch of that

Department. That letter contained comments on an

aide-memoire concerning toxic chemical claims. The letter

commented, inter alia, that " two very important concepts

are not discussed in this aide-memoire - individuals

susceptibility which is outlined in the articles attached

to this paper and gross sensitivity".

As to the fourth point in his submission, specific

particulars of the claims which Mr Donegan had experienced

were not provided. Accordingly, it is difficult to draw

any further conclusions since the substance of the

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allegations in the submission cannot be investigated or

substantiated. The Commission's own examination of

Departmental files and the forms used by the DMOs for the

preparation of s.48 opinions indicates that there is a

requirement for DMOs to identify whether or not there was

an "occurrence". In many cases, doctors will specifically

direct their attention to the lack of a particular event

on service as forming part of their opinion that

disabilities are not service related.

It is clear to this Commission that Determining

Authorities place great reliance upon medical opinions,

especially the opinions of DMOs. Some DMOs in particular

are acutely aware of the influence which their opinions

will have on the determination of a claim. It was a

common practice for Repatriation Boards and the

Repatriation Commission to accept and rely upon the

unopposed opinion of a DMO. That opinion - pursuant to

Section 48 of the Act - is not in any way referable to the

standard of proof which a Determining Authority is bound

to use, although s.48 does require a medical officer to