ANTHONY MARSH and REPATRIATION COMMISSION
[2010] AATA 114
•15 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 114
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4564
VETERANS’ APPEALS DIVISION ) Re ANTHONY MARSH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr J D Campbell, MemberDate15 February 2010
PlaceSydney
Decision The decision under review is affirmed. ....................[Sgd]...................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that post traumatic stress disorder and depressive disorder were war-caused – consideration of Statement of Principles – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 9, 13(1), 120(1), 120(3), 120A, 196A, 196B(2), 196B(14)
Statement of Principles concerning depressive disorder No. 27 of 2008
Bull v Repatriation Commission (2001) 66 ALD 271
Elliott v Repatriation Commission (2002) 73 ALD 377
Fogarty v Repatriation Commission (2003) 37 AAR 363
Gorton v Repatriation Commission (2001) 63 ALD 723
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Youngnickel v Repatriation Commission [2004] FCA 1691
REASONS FOR DECISION
15 February 2010 Ms N Isenberg, Senior Member Dr J D Campbell, Member background
1. Mr Marsh served in the Royal Australian Air Force (“RAAF”) from 28 October 1958 to 12 January 1979. Mr Marsh rendered “operational service” as defined in the Veterans’ Entitlements Act 1986 (“the Act”) from 14 September 1965 to 11 August 1966 and from 19 April 1967 to 15 August 1968. Mr Marsh also rendered eligible defence service from 7 December 1972 to 12 January 1979, however, this is not relevant to the matter at hand, as Mr Marsh contends that he suffers a psychiatric condition attributable to his operational service in Vietnam.
2. Mr Marsh seeks review of the Veterans’ Review Board (“VRB”) decision dated 11 July 2008, which affirmed the Repatriation Commission decision of 22 September 2006 determining that post traumatic stress disorder (“PTSD”) and depressive disorder were not service-related.
issues
3.The issues before the Tribunal are:
(a) What psychiatric condition, if any, does Mr Marsh suffer from?
(b) Is the condition related to his operational service?
legislative background
4. Section 9 of the Act provides that a disease is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service, or arose out of, or was attributable to, that service.
5. Subsection 13(1) provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay pension by way of compensation to the veteran.
6. As Mr Marsh had operational service, the determination of whether his claimed condition(s) is/are war-caused is to be made by applying subsections 120(1) and 120(3) of the Act. Those subsections require us to find that the veteran’s condition was war‑caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding.
7. The Repatriation Medical Authority (“RMA”) was established under section 196A of the Act. Pursuant to subsection 196B(2), if the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to a veterans’ service, the RMA must determine a Statement of Principles (“SoP”) in respect of that condition, setting out the factors that must as a minimum exist, and which of those factors must be related to the veteran’s service before it can be said that a reasonable hypothesis has been raised connecting the condition with the circumstances of that service. The reference in subsection 196B(2) to “factor related to service” is expounded in subsection 196B(14), which provides, relevantly, that a factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.
evidence
8. We had before us the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T Documents”), as well as the following documents, which were tendered at the hearing:
·Statement by the Applicant;
·Statement by Robert Kemp;
·Statement by Elizabeth Frenopoulo;
·Medical report by Dr Dinnen;
·Department of Defence Service Records of Anthony Marsh;
·A four page extract titled “The RAAF in Vietnam”;
·Medical report by Dr Lewin.
9. Mr Marsh gave evidence at the hearing as did his partner, Ms Frenopoulo, and his friend and former employer, Mr Kemp. Medical evidence was also given by Dr Dinnen and Dr Lewin.
Mr Marsh
10. Mr Marsh’s evidence is that after a posting to Malaysia, he volunteered to serve in Vietnam out of a sense of patriotic duty. He was highly trained and had invaluable local knowledge. He was posted to Phan Rang – a large US military base – with No 2 Squadron, a Canberra bomber squadron, as part of the US 101 Airborne Division. He was a radio technician and carried out maintenance and repair on airborne electronics equipment. He was also involved in the welfare committee as a library member. He was responsible for showing movies to troops and ensuring there was a supply of reading material available. Mr Marsh described himself as not being a social person – ‘a bit of a loner’ – and kept largely to himself, reading science fiction in preference to attending the mess.
11. Mr Marsh submitted a claim form for PTSD on 17 February 2006, citing stressful service in Vietnam. He provided details of about eight incidents in support of his contention, although his claim has proceeded on the basis of the ‘thunder-flash’ event which he found most disturbing. In his evidence, Mr Marsh agreed that when all those matters were taken together, they created a feeling of concern about the hostile environment in which he found himself.
12. The account he has given of the thunder-flash event, broadly speaking, has been consistent throughout the claims process:
When I first heard the bang I thought my life was finished, but the vehicle leaving and the lack of pain or blood caused me to realise that I had been the victim of a cruel joke. I am now very easily startled by any loud noise.
13. Mr Marsh told the VRB that the thunder-flash incident had occurred about a third of the way into his tour. Although he was ‘terrified’, he said he did not report the incident, and afterwards just went about his normal routine – returning to his room to drink Drambuie, eat cheese and read science fiction. He thought he would have tried to go on with things as normal to try to calm himself. He said he made every effort to cope with his job for the remainder of his posting. He described the event as the ‘worst thing that’s ever happened to me’, but conceded that he had not discussed it until the mid to late 1990s because he did not want to dwell on his Vietnam experiences. Mr Marsh told the VRB he was not in the habit of revealing his service history to anyone, so few people were aware of his service in Vietnam.
14. In his evidence, Mr Marsh elaborated that it was sudden and unexpected loud noises that affected him. He knew Phan Rang to be well protected and that the only enemy danger within the base was from mortar attacks. Mr Marsh stated that he is unaffected by aircraft noise generally, and also fireworks, as long as he knows of their occurrence. In 1969, he privately undertook an explosives safety course in order to assist family members in extracting gravel to repair the roadway into their farm.
15. Mr Marsh gave evidence that when the thunder-flash exploded he thought his life was finished, and that no other incident in his life could equal the distress he felt at that moment.
16. Mrs Marsh, the veteran’s former wife, told the VRB that her husband had been a happy person before Vietnam but, after his operational service, he became very short tempered, his depression started and his temperament got worse until be received help from Dr Lennane (which was not until 1991). Mr Marsh said that very soon after his return from Vietnam he started to become violent towards his children. The earliest event he could recall was violently shaking his two year old son in 1968. Not long after his return from Vietnam he started to experience stomach pains.
17. In 1971, Mr Marsh was posted to the US to undertake a 12 month course. In the performance records on file, his instructors described him as an outstanding student. Mr Marsh agreed his performance as a student was exemplary. He said that while he was there, he only socialised with people because his wife wanted to and he managed this satisfactorily, but he did not form any close connections with the people he met. Mr Marsh recalled an occasion while in the US of having been lying on the floor crying and thinking life was not worth living.
18. Mr Marsh did not consult a psychiatrist until 1991 and did not know why his GP had referred him, but in retrospect he could now see that he had had ‘depressed moods’ for a long time before that. Mr Marsh’s evidence was that since he has been on medication his anger is under control, but he still suffers from anxiety, inability to concentrate and memory problems. For example, when asked the dates of birth of his children, Mr Marsh referred to a note book in order to answer.
19. In about 1978, Mr Marsh’s epigastric pain was investigated by a gastroenterologist but no evidence of an ulcer was found. His symptoms were attributed to high level tension in his job and the studies he was undertaking in anticipation of leaving the RAAF. He was having marital problems. He was said to be a very ambitious and aggressive man and was referred for advice on relaxation techniques. Mr Marsh said he had no recollection of having received advice on relaxation techniques in the RAAF, but did do relaxation therapy twice after his discharge.
20. Mr Marsh was referred to Dr Dinnen’s report of 10 June 2009. He said he doubted that he would have told Dr Dinnen that his ‘worst problem’ is his inability to relate to people. He thought that it was in fact his loss of memory and his inability to concentrate.
Ms Frenopoulo
21. Ms Frenopoulo, who is a mental health nurse and Mr Marsh’s partner, provided an undated statement in which she wrote that Mr Marsh panics in crowded or noisy places, and is unaware of how emotionally fragile he appears when he talks of his time in Vietnam, which he seldom does. She also wrote that he tolerates conflict poorly, is easily agitated and depressed and gets easily startled by any unexpected noise. She also referred to his poor memory and inability to complete tasks. She said that he needs a great deal of emotional support and this can leave her drained, with no energy left to keep the relationship going.
22. She said in her evidence that Mr Marsh cannot cope with movies that contain violence, and that he finds unexpected loud noises very distressing, and when he is emotional he has no memory of what happened. She said he was not obsessional or authoritarian.
Mr Kemp
23. In his statement dated 29 September 2009, Mr Kemp wrote that Mr Marsh could lose control and be quite agitated for no apparent reason, and seemed to over-react to loud noises or sudden surprises. In the context of work, he described Mr Marsh as unreliable in his attendance, having difficulty remembering how to complete tasks, being only able to concentrate for one or two hours, and to switching tasks without maintaining adequate records of work he had done or remembering where he had left off.
the medical evidence
24. Mr Marsh’s claim form was supported by a report from his general practitioner, Dr Janet Drewitt-Smith. In her report dated 13 February 2006, Dr Drewitt-Smith diagnosed depression secondary to PTSD. She wrote that she had been Mr Marsh's GP since 2001, and it had been her experience that he had permanent symptoms of PTSD and depressive symptomatology, with diminished interest and participation in certain activities, feelings of detachment, estrangement from others, lack of confidence and admitted to decreased cognitive function.
25. On 10 April 2001, Dr Jean Lennane, consultant psychiatrist, stated that she had been treating Mr Marsh for major depression since 1991. On 14 December 2005, Dr Lennane wrote in her report that this depression was ‘related to’ PTSD. She had taken a history of Mr Marsh being exposed to ‘the usual almost daily traumatic incidents involving death and injury to colleagues’. She referred to the thunder-flash incident, and also recorded a history of him being affected by external cues such as aircraft noise.
26. On 26 July 2006, Dr Lennane provided another report in which she wrote that Mr Marsh's PTSD had its onset during his duty at Phan Rang, and his depression was persistent and severe enough to require treatment by 1987-1988. She thought his PTSD was responsible for most of his symptomatology, and went on to state that she regarded his incapacity as permanent, being still severe, although his depression is currently mostly in remission.
27. In her further report of 9 April 2008, Dr Lennane listed Mr Marsh's PTSD symptoms, and stated that Mr Marsh had avoided stimuli associated with the trauma, including associating with other veterans. As a consequence, he ‘had never even heard of PTSD until about 10 years ago, and his intense stimuli avoidance prevented him even mentioning the traumatic incident when he first saw me regarding his depression in 1991’.
Dr Anthony Dinnen – consultant psychiatrist
28. Dr Dinnen provided a report dated 10 June 2009, in which he recorded that Mr Marsh told him that after Vietnam he had a great deal of difficulty relating to people and had fits of temper. In his evidence he said that Mr Marsh told him he had had a lot more relationships before Vietnam than after that service, referring to friends at school and being in the Cubs and Scouts. (We observe though that by the time Mr Marsh went to Vietnam he was 26 years old and this information was somewhat historical.)
29. Dr Dinnen’s evidence was that Mr Marsh's violence towards his children on his return from Vietnam may reflect low stress tolerance, as a consequence of PTSD and anxiety, and that can lead to a sense of guilt and depression and is a real indicator of psychiatric problems. When speaking to Dr Dinnen, Mr Marsh also recalled depressive symptoms from the time he was in the US in 1971-1972.
30. Dr Dinnen concluded that his diagnosis was chronic PTSD with associated depressive features, with clinical onset during service in Phan Rang in 1967.
31. Dr Dinnen said in his evidence that the excessive worry and tension observed in 1978 was consistent with a diagnosis of PTSD, and Mr Marsh's coping strategy in respect of Vietnam was suppression and denial. He considered the statements by Ms Frenopoulo and Mr Kemp strengthened his opinion. He said PTSD and depression were co-morbid conditions, and the depressive aspect of the illness was what brought Mr Marsh to seek treatment or what was at least evident to the psychiatrist treating him, but depression is an intrinsical element of PTSD.
32. It was Dr Dinnen’s view that the traumatic experiences described by Mr Marsh were not realistically life-threatening, but it was Mr Marsh’s perception that they were. In his view, it was the totality of [Mr Marsh’s] experience in Vietnam which was the severe stressor responsible for his condition, notwithstanding that he had no direct combat exposure.
Dr Robert Lewin – consultant psychiatrist
33. Dr Lewin saw Mr Marsh for a period of about 2 hours, following which he provided a report dated 20 July 2009. He wrote that Mr Marsh had no current symptoms of PTSD or anxiety and that there was no evidence of cognitive impairment. He diagnosed Major Depressive Disorder now in Remission.
34. When provided with the statements by Ms Frenopoulo and Mr Kemp, Dr Lewin acknowledged that the information provided was consistent with depression or anxiety disorder. Dr Lewin did not favour a diagnosis of PTSD because he thought the stressor was of insufficient gravity, even taking into account what he considered to be Mr Marsh's vulnerability.
35. Dr Lewin noted that, when initially referred to Dr Lennane, Mr Marsh did not think Vietnam was relevant and did not want to talk about it, but she encouraged him to talk about it and subsequently diagnosed PTSD.
consideration
36. Only after we determine that a veteran is suffering from a particular condition does the question arise as to whether the particular condition is war-caused: Fogarty v Repatriation Commission (2003) 37 AAR 363.
37. The issue of whether a disease exists is to be decided to the reasonable satisfaction of the Tribunal: Repatriation Commission v Cooke (1998) 90 FCR 307.
What psychiatric condition, if any, does Mr Marsh suffer from?
38. Dr Lennane had treated Mr Marsh for some years on the basis that he had a depressive disorder. It was only in 2005 that she connected it in any way to Mr Marsh’s Vietnam experiences, describing it as ‘related to’ his PTSD. It would appear from her report of 9 April 2008 that it was only after Mr Marsh had finally referred to his Vietnam service, when he ‘heard about’ PTSD, that he disclosed his service experiences. We have difficulty accepting that, notwithstanding his reticence to discuss his service in Vietnam, Mr Marsh had accepted psychiatric treatment from Dr Lennane for at least 10 years without mentioning that he attributed his psychiatric condition to an event that he describes as ‘the worst thing to ever have happened’ to him. We therefore have reservations about her belated diagnosis of PTSD.
39. We also have difficulty with Dr Dinnen’s diagnosis of PTSD, because he had considered it was the totality of Mr Marsh’s experiences in Vietnam which was responsible for his condition, rather than the stressor described by Mr Marsh.
40. Dr Lewin diagnosed Major Depressive Disorder but had thought the condition to be in remission. He revised this qualification on the basis of Ms Frenopoulo and Mr Kemp’s statements. Dr Lewin did not favour a diagnosis of PTSD because he thought the stressor was of insufficient gravity, even taking into account what he considered to be Mr Marsh's vulnerability.
41. In reviewing the medical evidence before us, we are satisfied on the balance of probabilities that Mr Marsh suffers from a psychiatric condition and that the probable diagnosis is major depression.
Is Mr Marsh’s depressive disorder related to his operational service?
42. Where an SoP exists, the Tribunal must apply the test prescribed by subsection 120A(3) of the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ….
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
Steps 1 and 2: Is there a hypothesis and is there an SoP?
43. The hypothesis is that the thunder-flash incident resulted in Mr Marsh suffering a psychiatric condition (found by us, on the balance of probabilities, to be major depression) and that that condition was war-caused.
44. The current SoP concerning depressive disorder is No. 27 of 2008. At the time Mr Marsh’s claim was first decided, the SoP in force was No. 58 of 1998. We must apply the relevant SoP for the condition on the basis of the Federal Court’s decision in Gorton v Repatriation Commission (2001) 63 ALD 723; that is, the relevant SoP is that which is currently in force, unless the earlier SoP is more beneficial.
Step 3: Does the hypothesis conform to the template in the SoP?
45. Clause 5 of SoP No. 27 of 2008 states that subject to clause 7, at least one of the factors set out in clause 6 must be related to the veteran’s relevant service (being in this case, operational service).
46.The veteran’s hypothesis relies on factor 6(a)(ii):
(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder;
47.The SoP defines a category 1A stressor as:
"a category 1A stressor" means one or more of the following severe traumatic events:
(a) experiencing a life-threatening event;
(b)being subject to a serious physical attack or assault including rape and sexual molestation; or
(c)being threatened with a weapon, being held captive, being kidnapped, or being tortured;
48. We need to determine whether the hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
49. We must consider all of the material, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271; Hardman v Repatriation Commission (2004) 82 ALD 433; Elliott v Repatriation Commission (2002) 73 ALD 377. In Elliott, Stone J likened the decision-maker’s task to striking out a statement of claim for failing to disclose a course of action without any consideration of whether the facts pleaded can be substantiated.
50. A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey (1997) 79 FCR 364. Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the SoP requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material. A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581.
51. The thunder-flash incident, said to be a category 1A stressor, occurred in about mid 1967. The relevant factor requires that there be material which points to the clinical onset of the condition within five years of experiencing the alleged stressor, that is by mid 1972. The term “clinical onset” has not been defined by the RMA, but the requirement will be met if symptoms have been described to a medical practitioner who is then able to state that the presence of those symptoms, at a particular time, indicates that the condition was present at that time: see Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 and Repatriation Commission v Cornelius [2002] FCA 750.
52. Further, all of the diagnostic criteria of the disease need to be shown within the five year period: see Lees and Youngnickel. As Mr Marsh did not consult a psychiatrist until 1991 – some 25 years after the alleged stressor – it is difficult to ascertain if he might have had all the symptoms of depressive disorder by mid 1972. Mr and Mrs Marsh’s evidence was that on his return from Vietnam he ‘changed’; he was violent towards his son; he gave evidence of a breakdown of sorts in 1971 (or 1972) while on a course in the US. From the available service documents, it appears he underwent annual medicals, but there is no material pointing to any psychological concerns raised by him or about him, until the mention of stress in 1978. Further, the history given to Dr Lennane, whom Mr Marsh first consulted in 1991, did not, for some years, refer to his Vietnam experiences at all.
53. Having regard to all of the material (per Bull and Hardman), we do not consider there to be material pointing to the clinical onset of depressive disorder by the relevant date. It is therefore not necessary to consider whether there is material pointing to Mr Marsh having experienced a category 1A stressor.
54. Thus, we have come to the view, without making a finding of fact, that every essential element of the hypothesis is not pointed to by the material before us. A reasonable hypothesis therefore has not been raised. It follows, by virtue of subsection 120(3) of the Act that we must find, beyond reasonable doubt, that there is no sufficient ground for determining Mr Marsh’s depressive disorder was war-caused. As a result, the claim for pension in respect of that condition must fail.
decision
55. The decision under review is affirmed.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg and
Dr J D Campbell, MemberSigned: .........................[Sgd]..........................
Associate: Jennifer WongDates of Hearing 8 December 2009 and 20 January 2010
Date of Decision 15 February 2010
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant KCI Lawyers
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Department of Veterans’ Affairs
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