Anderson and Repatriation Commission
[2005] AATA 869
•7 September 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 869
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1231
VETERANS’ APPEALS DIVISION ) Re LINDSAY ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr P Lynch, MemberDate7 September 2005
PlaceSydney
Decision The decision under review is affirmed
....................................
Ms N Bell
Presiding Member
VETERANS’ AFFAIRS – Claim for Compensation – Royal Australian Air Force – Eligible Service - Generalised Anxiety Disorder – Alleged that War Caused – Applicant Did Not Meet Statement of Principles Requirements for Generalised Anxiety Disorder Or Any Other Psychiatric Disorder – No Inquiry into War Causation Necessary – Decision Under Review Affirmed.
Veterans’ Entitlements Act 1986
Statement of Principles 2 of 2000
Statement of Principles 57 of 1996
Statement of Principles 5 of 1999
Statement of Principles 128 of 1996
Statement of Principles 58 of 1998
Statement of Principles 143 of 1995
Statement of Principles 132 of 1996
REASONS FOR DECISION
7 September 2005 Ms N Bell, Senior Member
Dr P Lynch, Member1. Mr Lindsay Anderson, born 23 April 1926, served in the Royal Australian Air Force (“RAAF”) from 18 May 1944 to 3 April 1946. There is no dispute that this was eligible service within the meaning of Veterans Entitlements Act 1986 (“the Act”).
2. Mr Anderson lodged a claim on 11 November 2003 for payment of Disability Pension in respect of bilateral sensorineural hearing loss, bilateral tinnitus, impotence, bilateral pes planus, generalised anxiety disorder and osteoarthrosis in both knees. The Repatriation Commission rejected Mr Anderson’s claims for bilateral pes planus, generalised anxiety disorder and osteoarthrosis. The rejection of these three conditions was affirmed by the Veterans’ Review Board.
3. Mr Anderson sought a review by this Tribunal but withdrew his claim in respect of bilateral pes planus and osteoarthrosis and sought to pursue only generalised anxiety disorder.
4. Mr Anderson contends that his generalised anxiety disorder is service related in conformity with Statement of Principles No 2 of 2000, in particular, factor 5(a) of that SoP, in that he experienced a number of incidents or events during his service that can be characterised as “severe psycho-social stressors” which precipitated the clinical onset of generalised anxiety disorder within one year immediately following the event.
5. The Commission, on the other hand, contends that Mr Anderson does not suffer from any psychiatric condition and that, even if he does, his circumstances do not conform with any of the factors in Statement of Principles No 2 of 2002.
6. The issues to be considered are therefore whether Mr Anderson suffers from generalised anxiety disorder (or any other psychiatric condition), and, if so, whether such a condition is service related. It is settled law that the standard of proof in relation to the question of diagnosis is that of the balance of probabilities. Given that Mr Anderson’s service was eligible service, the question of whether any condition suffered by him is related to that service must also be satisfied on the balance of probabilities.
Does Mr Anderson suffer from a psychiatric condition?
7. “Generalised anxiety disorder” is defined in SoP No 2 of 2002 as:
“…a psychiatric disorder with the following features:
A. Excessive anxiety and worry (apprehensive expectation), which occur on more days than not for a continuous period of at least six months, about a number of events or activities; and
B. The person finds it difficult to control the worry; and
C. The anxiety and worry are associated with three or more of the following six symptoms, with at least some symptoms present for more days than not during the previous six month period:
(1. restlessness or feeling keyed up or on edge
(2) being easily fatigued
(3) difficulty in concentrating or mind going blank
(4) irritability
(5) muscle tension
(6) difficulty falling or staying asleep, or restless unsatisfying sleep; and
D. The focus of the anxiety and worry is not confined to features of any other Axis I disorder; and
E. The anxiety, worry, or physical symptoms (as described in C. above) cause clinically significant distress or impairment in social, occupational, or other important areas of functioning; and
F. The anxiety and worry are not due to the direct physiological effects of a substance or a general medical condition and do not occur extensively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder.”
8. We note that this definition is in identical terms to the diagnostic criteria for generalised anxiety disorder contained in the Fourth Edition of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders Text Revision (“DSM-IV”).
9. The term “clinically significant” is defined in SoP No 2 of 2000 as:
“sufficient to warrant ongoing management by a psychiatrist, clinical psychologist or general practitioner”.
10. Mr Anderson gave evidence that he was called up to the Royal Australian Air Force (RAAF) when he 18 years old and studying as a trainee journalist. He gave evidence of five incidents which took place during his training and which, he said, “made him very nervous, anxious, jumpy, unhappy”.
11. The first incident involved the accidental discharge of a rifle which ricocheted off and shattered a stone, a fragment of which hit Mr Anderson under his eye. He described himself as being in a “state of trauma” after that incident.
12. The second incident, occurring approximately one hour later, on the same manoeuvre (a mock battle), involved a flare landing on his back, being brushed off by Mr Anderson, and singeing his hair.
13. The third incident, which occurred approximately one week later, involved the throwing of a grenade from a trench. The grenade did not explode and had to be blown up with gelignite before Mr Anderson could leave the site. He said he was 50 yards away when the explosion finally took place.
14. The fourth incident involved being told that he and his fellows were to be sent overseas to replace men who had been killed.
15. The fifth incident involved travelling as a passenger in the back of a truck loaded with gas masks that, when about to go under an overpass, was stopped by the driver who then told Mr Anderson that had he not stopped, Mr Anderson could have been decapitated.
16. Mr Anderson said that he thinks about these incidents today as much as he did years ago, that he has recurring thoughts about them and they have caused him sleeplessness and irritability ever since. An example of this, as given by Mr Anderson, is that he jumps when a car backfires.
17. Mr Anderson said that when he left the RAAF he went back home to his family and tried to re-establish his career. He lived at home until marrying in 1954.
18. Mr Anderson said that he has never been out of work. He described his career in journalism, running a communications business and, finally, his own business representing overseas textile companies. He still works 15 to 20 hours a week in this business. He described himself as successful in his work and agreed that he was ambitious. Mr Anderson said his family consists of a sister who he has always got on well with and has contact with every month or two.
19. Mr Anderson said his marriage was not a happy one and they were “incompatible”. His evidence was that the marriage could not be consummated and he described his wife as unbalanced and noted an incident on a railway platform where she had to be prevented from jumping. They divorced in 1979.
20. In 1996 Mr Anderson was diagnosed with prostate cancer and began treatment, which to date has been successful. He said he now has a number of lady friends with whom he has frequent lunches and dinners. He said he goes out most days for lunch and meets and talks with people.
21. Mr Anderson described himself as irritable, jumpy and nervous and stated that he was not like this prior to his service. He also described problems with sleep in that he wakes up every one and a half hours because of his prostate treatment and its effect on bladder control. He said when he is lying awake he frequently thinks about war times.
22. He said that his general practitioner, Dr Jabour says that he is “a worrier”. However Dr Jabour has never prescribed or suggested medication for this worry and Mr Anderson said he has never raised it with him.
23. Mr Anderson said that he was never criticised for his work during war service. He said that after his return from the RAAF he enjoyed many extra-curricular activities, including cricket, tennis and ballroom dancing.
24. When asked what effect the symptoms have had on his functioning, he said they interfered with his career because he was nervous and sometimes unsure about what to do and that these feelings may have contributed to the failure of his marriage.
25. Dr J Jabour, Mr Anderson’s general practitioner, completed the medical aspects of Mr Anderson’s claim for pension and in doing so gave a medical diagnosis of “anxiety state” with a basis for diagnosis of “symptoms” and said Mr Anderson first consulted him for this condition in or around 1980. Dr Jabour said in his assessment:
“He sees me monthly for treatment for his prostrate cancer and we also visit the symptoms of his anxiety disorder. The prostatic cancer treatment causes him impotence.”
26. When asked to describe the subjective distress that anxiety disorder causes Mr Anderson, Dr Jabour wrote:
“Apprehension, fear, continually needing reassurance.”
27. When asked to indicate how this subjective distress affects Mr Anderson, Dr Jabour ticked the box indicating:
“Frequent symptoms causing moderate distress; he will sometimes be unable to distract himself from the distress.”
28. Dr Jabour added the following comment:
“This combined with his impotence makes his distress very significant”.
29. When asked to list the manifest features of anxiety disorder observed by Dr Jabour, he wrote:
“Nervousness, sweating, preoccupation with cancer.
When asked to indicate how Mr Anderson’s distress is perceived by himself and by others, Dr Jabour ticked the following:
“Distress is apparent, and/or his preoccupation with the symptoms is noticeable to astute observers or persons familiar with the veteran”.
30. When asked to describe the effects of the condition on his ability to cope in basic everyday situations, Dr Jabour ticked the following:
“Moderate interference with function in some everyday situations.”
31. When asked to describe the effect of the condition on Mr Anderson’s ability to continue or form domestic and interpersonal relationships, Dr Jabour ticked the following:
“Occasional friction with family members”.
32. We note that this is in contrast to Mr Anderson’s evidence of a good relationship with his sister.
33. When asked to describe the effect of the disability on Mr Anderson’s ability to relate to friends and interact with people in a casual way as required in various social circumstances, Dr Jabour ticked the following:
“Significant reduction in social interaction.”.
34. Dr Jabour added the following comment:
“Avoids contact except for people he knows very well.”
35. This appears to be in contrast with Mr Anderson’s evidence to the tribunal that he lunches out every day and meets and talks with people.
36. When asked to describe the effect of the condition on Mr Anderson’s ability to enjoy previously pleasurable activities, Dr Jabour ticked the following:
“Virtually all recreational activities abandoned”.
37. He added the comment:
“Can’t play golf, walk or enjoy sex”.
38. Dr Jabour said that counselling was prescribed for Mr Anderson’s anxiety disorder and yet in another question following shortly after he indicated that no regular treatment had been sought or recommended.
39. We note that Dr Jabour also provided a medical assessment in relation to tinnitus, lower limb condition, disfigurement and social impairment and sexual function.
40. We also note that Dr Jabour’s clinical notes make no mention at all of anxiety or anxiety disorder, except for containing a copy of a letter from Dr J Sallfeld, Urological Surgeon, dated 23 March 1994 which, in the context of reporting on a prostate examination, noted that Mr Anderson reported being under significant stress and anxiety.
41. Dr J Taylor, Consultant Psychiatrist reported, on 27 January 2004, that Mr Anderson satisfies the DSM-IV diagnostic criteria for generalised anxiety disorder. Dr Taylor said, after indicating a normal mental state examination and after excluding any possible history of obsessions, compulsions, specific phobias, social phobia and post traumatic stress disorder, that Mr Anderson stated that he tends to be a worrier about financial problems, the running of his business and his general health, that he tends to be a perfectionist and he is careful with punctuality and detail. Dr Taylor also completed an emotional and behavioural medical impairment worksheet in which he notes largely the same symptoms as noted in his report. We do not understand how Dr Taylor reached the conclusion he reached or made a diagnosis in accordance with DSM-IV. His reasoning is simply not apparent from his report.
42. Dr Anthony Hordern, Consultant Psychiatrist, in a report dated 18 January 2005, described a normal mental state examination at which Mr Anderson “did not appear tense or depressed”. Dr Horden recounted the history of experiences by Mr Anderson in the RAAF and Mr Anderson’s post-RAAF life which was substantially in accord with the evidence given by Mr Anderson. Notably, Dr Hordern described Mr Anderson as having many outdoor interests as a young man, including cricket and tennis and ballroom dancing. He had been the President of the Commercial Travellers’ Association and was also a Mason. Mr Anderson indicated to Dr Hordern that he enjoyed his work and had many friends, including a lady friend.
43. In relation to his personality, Dr Hordern said that Mr Anderson reported always having high standards and always being conscientious and a perfectionist. He reported Mr Anderson as saying that he liked his feelings to be under control and didn’t have much of a temper, was on an even keel emotionally for most of the time and was not temperamentally moody.
44. From these comments and from further observations about an unremarkable family and personal history Dr Hordern appeared to ‘jump’ to a diagnosis of generalised anxiety disorder in accordance with DSM-IV. He stated, without further comment, that Mr Anderson has been mildly to moderately disabled by his chronic generalised anxiety state. He also stated that the clinical onset of this condition was during an evening battle exercise on or about 4 June 1944, the first of the incidents recounted by Mr Anderson.
45. In oral evidence to the Tribunal, Dr Hordern said that Mr Anderson has suffered the symptoms of being on edge, muscle fatigue and insomnia ever since the first incident in the RAAF. He said that Mr Anderson also told him that he’d been depressed and had been a chronic worrier.
46. When asked about clinically significant distress or impairment in social, occupational or other important areas of functioning, Dr Hordern said that Mr Anderson’s symptoms may have contributed to the failure of his marriage but he allowed that the main problem in the marriage was sexual incompatibility. He also allowed that Mr Anderson had functioned extremely well. He considered, however, that he had experienced clinically significant distress at the time of the incidents and that has caused irritability and nervousness.
47. When asked what his diagnosis and conclusions were based on, he answered that they were based on the history given to him by Mr Anderson and on his clinical judgement.
48. A short report by Dr Karl Koller, Consultant Psychiatrist dated 24 March 2004, stated that he examined Mr Anderson and found that he had no case for generalised anxiety disorder. He suggested there may be a possibility of a diagnosis of adjustment disorder in relation to his “feet and knee problem” and suggested that he would obtain an orthopaedic opinion to associate his knee difficulties with war service.
49. Dr A White, Consultant Psychiatrist in a report dated 7 March 2005, reported Mr Anderson’s symptoms as sometimes waking at night and thinking about what happened all those years ago, jumping when a car backfires and having good days and bad days. Dr White noted that Mr Anderson is Vice President of the Masonic Club RSL in Sydney, a member of the Combined Services Club in the Sydney, a member of the Brighton-Le-Sands RSL and a member the Willoughby Legion. He has also recently joined another Masonic Lodge. He has also been Chairman of the Body corporate of his block of units for over twenty years and has lady friends and lunches with his former wife every couple of months.
50. Dr White noted normal results on a mental status examination.
51. Dr White concluded that there is no evidence of any psychiatric problems for Mr Anderson throughout his life. He noted his successful career and his continuation in it.
52. In oral evidence to the Tribunal Dr White said that Mr Anderson behaved normally, had lived a full life, was socially involved and still working. Dr White’s attention was drawn to paragraph (E) of the diagnostic criteria for generalised anxiety disorder and he expressed the view that Mr Anderson has no impairment of the kind that would interfere with his life and adduce an inability to function as a spouse, parent or employee.
53. Dr White described Mr Anderson as having good coping skills, having dealt with the breakdown of his marriage and the diagnosis of prostate cancer. He also noted that Mr Anderson had married in 1954, a long time after service and that he made no issue of the breakdown of his marriage being tied in any way with service.
54. In commenting on the medical assessment provided by Dr Jabour in Mr Anderson’s claim for pension, Dr White noted that the symptoms of apprehension, fear and continually needing reassurance in that assessment appeared to be linked to Mr Anderson’s concerns with prostrate cancer.
55. Dr White stated that being jumpy and unhappy is not a clinically significant state. Finally, he said that if a person gets prostate cancer and then begins having counselling, one could not suggest that his anxiety was related to an event in the 1940’s.
consideration
56. The Federal Court has held that the questions as to whether an Applicant is suffering from a disease and the diagnosis of that disease are to be determined to the Commission’s or the Tribunal’s reasonable satisfaction, that is, in accordance with section 120(4) of the Act (Repatriation Commission v Gosewinckel (1999) 59 ALD 690; Repatriation Commission v Cooke (1998) 90 FCR 307; Repatriation Commission v Budworth (2001) 116 FCR 200).
57. I note also the decision of the Federal Court and Repatriation Commission v Gosewinckel (supra) where Weinberg J said at 703:
“It is clear that the AAT could not accept Dr Wahr’s opinion of generalised anxiety disorder without regard to the description of that disorder as set out in the SoP. As the Full Court held in Sheldon v Repatriation Commission (1999) 85 FCR 587 at [6] the SoP requires that the disease in question be ‘manifested by certain behaviour which is symptomatic of disease, not merely at any level of behaviour of that kind, whether or not it is symptomatic of the disease’.”
58. With regard to the diagnostic criteria for generalised anxiety disorder, there is evidence, from Mr Anderson, Dr Jabour and Dr Hordern, that Mr Anderson is nervous, jumpy, is a worrier, has muscle tension, and becomes irritable. Mr Anderson also gave evidence of having difficulty sleeping but that was associated with bladder control difficulties. We also note that Dr Jabour appeared to relate Mr Anderson’s apprehension to his concern over his prostate cancer. Even so, there is some evidence to support satisfaction of paragraphs A, B and C of the diagnostic criteria.
59. Difficulty arises, however, for Mr Anderson in relation to diagnostic criterion E, concerning clinically significant distress or impairment in social, occupational or other important areas of functioning. The only evidence of impairment in these areas is Dr Hordern’s opinion that Mr Anderson’s anxiety may have contributed to the breakdown of his marriage and Mr Anderson’s evidence that, in his working life, he was nervous and sometimes unsure about what to do. Mr Anderson also suggested that it contributed to the breakdown of his marriage but was also firm in his evidence that his sexual incompatibility with his wife was the main cause of the breakdown of the marriage. There are also Dr Jabour’s statements in the medical aspects of Mr Anderson’s claim form. However, these were directly contradicted by Mr Anderson’s own evidence of his work, social and family life.
60. We are not satisfied that Mr Anderson suffers any impairment of clinical significance, and in this regard we note the definition of “clinically significant” in the SoP. He has been successful in his work and continues to be so. He socialises widely and is involved in a number of organisations. He maintains friendly contact with his sister.
61. The opinions of Drs Hordern and Taylor are not persuasive. They do not address specifically the diagnostic criteria of generalised anxiety disorder or link Mr Anderson’s symptoms to the diagnostic criteria of the condition.
62. We also turned our minds to the question of whether Mr Anderson may suffer from a psychiatric disease other than anxiety disorder. In particular, we turned our minds to the diagnostic criteria in SoP No. 57 of 1996 concerning adjustment disorder, SoP No.5 of 1999 concerning acute stress disorder, SoP No.128 of 1996 concerning bipolar disorder, SoP No.58 of 1998 concerning depressive disorder, SoP No.9 of 1999 concerning panic disorder, SoP No.143 of 1995 concerning personality disorder and SoP No.132 of 1996 concerning schizophrenia. We find that Mr Anderson’s symptoms do not accord with the diagnostic criteria in any of these SoPs. I also note that these SoPs are either derived from or reproduce, the diagnostic criteria set out in the American Diagnostic and Statistical Manual of Mental Disorders, DSM IV.
63. On the basis of the evidence before us, we cannot be reasonably satisfied that Mr Anderson suffers from a psychiatric disease. It follows that an inquiry into service causation is unnecessary.
decision
64. The decision under review is affirmed.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr P D Lynch, Member.
Signed: .........[Linda Blue].............................
AssociateDates of Hearing 25 and 26 July 2005
Date of Decision 7 September 2005
Solicitor for the Applicant Fairbairn Lawyers
Solicitor for the Respondent Department of Veterans' Affairs
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