Burge and Repatriation Commission
[2003] AATA 1133
•12 November 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1133
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2001/1647
VETERANS' APPEALS DIVISION ) Re LESLIE BURGE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Miss E.A. Shanahan, MemberDate12 November 2003
PlaceMelbourne
Decision 1. The Tribunal varies the decision under review to provide that cerebellar haemorrhage resulting from ischaemic infarct and anxiety disorder not otherwise specified are war-caused diseases.
2. The matter is remitted to the Repatriation Commission for assessment of the rate of pension payable.
(Sgd) Joan Dwyer
Senior Member
VETERANS’ AFFAIRS – whether cerebellar haemorrhage and anxiety disorder are war-caused diseases – operational service – application of relevant Statements of Principle
cerebellar haemorrhage – whether secondary to cerebral ischaemia and infarct – or whether a primary haemorrhage – Tribunal reasonably satisfied that veteran had cerebral ischaemia leading to ischaemic infarct followed by a cerebral haemorrhage – relevant factor in SoP relied on smoking habit – veteran’s evidence pointing to satisfaction of requirements of factor 5(k)(i) of SoP but some medical records contradicting that evidence – Tribunal not satisfied beyond reasonable doubt that veteran’s evidence as to smoking not accurate – cerebellar haemorrhage found to be war-caused
anxiety disorder – whether veteran suffers a psychiatric condition related to cerebellar haemorrhage – veteran’s late wife had given history of development of symptoms anxiety after cerebellar haemorrhage to doctors and in earlier AAT hearing – consideration of time and manner in which Tribunal to decide whether it is reasonably satisfied that veteran suffers an anxiety disorder and diagnosis of that disorder – whether reference to definitions in SoP is appropriate at time of deciding those issues to Tribunal’s reasonable satisfaction – finding as to symptoms from which veteran suffers – whether appropriate for Tribunal to consider a diagnosis in the relevant SoP, but not relied on by the parties – whether material pointing to a relevant factor in SoP – finding that veteran suffers from war-caused diseases of anxiety disorder not otherwise specified – matter remitted to Repatriation Commission for assessment of rate of pension payable
PRACTICE AND PROCEDURE – reference to histories given by veteran’s late wife to medical witnesses and to evidence given by her at earlier AAT hearing
Veterans' Entitlements Act 1986 ss 7, 9, 119(1)(h)(i), 120, 120A
Statements of Principles -
No. 52 of 1999 – Cerebrovascular AccidentNo. 1 of 2000 – Anxiety Disorder
Repatriation Commission v Burge [2002] FCA 623 (10 May 2002)
Repatriation Commission v Deledio (1998) 49 ALD 193
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Gosewinckel [1999] FCA 1273, 59 ALD 690
Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 34 AAR 27
Grant v Repatriation Commission [1999] FCA 1629 paragraphs 17-18; 57 ALD 1
Fogarty v Repatriation Commission [2003] FCAFC 136
Lees v Repatriation Commission [2002] FCAFC 398, 36 AAR 48
Repatriation Commission v Hill [2002] FCAFC 192, 69 ALD 581
McKenna v Repatriation Commission (1999) 86 FCR 144, 29 AAR 70
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002]FCA 750
REASONS FOR DECISION
12 November 2003 Mrs Joan Dwyer, Senior Member
Miss E.A. Shanahan, MemberBACKGROUND
1. This matter was remitted to the Tribunal by a Federal Magistrate on 26 October 2001. The position is unusual in that, although the Federal Magistrate made orders by consent, his decision was the subject of an appeal to the Federal Court. The appeal did not relate to the consent orders, but to the Federal Magistrate’s statement of the relevant law to be applied by the Tribunal on the rehearing.
2. On 10 May 2002 in Repatriation Commission v Burge [2002] FCA 623 (10 May 2002) Drummond J allowed the appeal and made the following declarations:
1. The learned federal magistrate erred in holding that the Administrative Appeals Tribunal is required, when considering whether a reasonable hypothesis is raised connecting an injury or disease with the circumstances of a veteran's operational service for the purposes of ss 120(3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth), to determine "whether the facts at least point to a reasonable hypothesis in a Statement of Principles" on the "reverse onus beyond reasonable doubt standard of proof".
2. The learned federal magistrate should have held, consistent with the decision of the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, that the Administrative Appeals Tribunal is required, when deciding whether a reasonable hypothesis is raised for the purposes of ss 120(3) and 120A(3) of the Veterans' Entitlements Act 1986 (Cth):
(i) first, to consider the whole of the material before it and determine whether that material points to a hypothesis connecting the claimed conditions with the circumstances of the particular service rendered by the veteran, being a hypothesis that is not too fanciful, remote or tenuous;
(ii) secondly, to identify the applicable Statement of Principles;
(iii) thirdly, to determine whether the hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles; and
(iv) finally, if such a hypothesis, as pointed to by the material before the Administrative Appeals Tribunal, is upheld by the applicable Statement of Principles, to determine whether the factual foundation of the hypothesis is displaced beyond reasonable doubt.
THE ISSUE
3. Mr Burge was admitted to the Repatriation General Hospital (“RGH”) on 23 February 1987 with a diagnosis of “cerebellar haemorrhage”. The issue is whether the haemorrhage and a mild anxiety disorder are “war-caused” within the meaning of that term in s 7 of the Veterans' Entitlements Act 1986 (“the Act”).
4. The determination of that issue requires that the Tribunal refer to the Statements of Principles (“SoPs”) which cover the conditions of cerebellar haemorrhage and anxiety disorder. There are issues as to the nature of the cerebrovascular accident which caused the haemorrhage, as the relevant SoP recognises different factors depending on whether or not there was cerebral ischaemia.
FORMAL MATTERS
5. The Repatriation Commission on 7 July 1997 rejected claims lodged by Mr Burge to have various conditions accepted as war-caused. The decision of the Repatriation Commission rejecting the claims was affirmed by the Veterans’ Review Board (“the VRB”) on 17 November 1998. The only conditions relevant to this hearing are cerebellar haemorrhage, (referred to by the VRB as “intracranial haemorrhage”) and anxiety disorder.
6. Mr De Marchi, a solicitor, appeared on behalf of Mr Burge. Ms McMahon of Counsel appeared on behalf of the Repatriation Commission. The Tribunal had before it the documents (“the T documents”) lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”) and a further document being an extract from DSM IV which was taken into evidence and marked as document T20. The Tribunal also had before it the exhibits tendered during the hearing.. Mr Burge gave evidence. Evidence on his behalf was given by Professor Myers and by Dr Cole. The Repatriation Commission called Associate Professor Kilpatrick and Dr Byrne.
7. It is not in issue that Mr Burge served in the Australian Army from 30 October 1941 to 10 April 1946 and that during that period he rendered operational service as defined in s 6 of the Act. Accordingly the whole of the period of service constitutes operational service.
RELEVANT LEGISLATIVE PROVISIONS AND THEIR APPLICATION
8. Section 9 of the Act provides the circumstances in which an injury or disease shall be taken to have been war-caused. So far as relevant it provides:
War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
9. As Mr Burge had operational service the relevant standard of proof is that set out in s 120(1) and (3) of the Act. They provide as follows:
120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
. . .
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
10. Section 120 is affected by s 120A which so far as relevant provides as follows:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
. . .
. . .
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); …..
that upholds the hypothesis.
11. The following relevant SoPs were current as at the date of hearing:
(a)Cerebrovascular Accident No.52 of 1999 as amended by No.30 of 2002
(b)Hypertension No.31 of 2001.
(c)Generalised Anxiety Disorder No.1 of 2000.
12. In Repatriation Commission v Gorton [2001] FCA 1194, the Full Court of the Federal Court held that where a SoP, in force at the time a claim was lodged, is revoked by another SoP, which is in force at the time of the AAT hearing, the current SoP is the starting point for consideration of whether a raised hypothesis is reasonable. If that SoP upholds the applicant’s hypothesis, then it is the one applied by the Tribunal. However, if the current SoP does not uphold the applicant’s hypothesis, the applicant may claim to have an accrued right to rely on the earlier SoP, as explained by the Full Court in Repatriation Commission v Keeley (2000) 98 FCR 108.
13. In this matter each of the relevant current SoPs replaced an earlier SoP, which was in force on 7 July 1997 when a decision on Mr Burge’s claim was first made by the Repatriation Commission. Those SoPs were as follows:
(a)Cerebrovascular accident No. 142 of 1996 as amended by 195 of 1996
(b)Hypertension No. 83 of 1995
(c)Generalised Anxiety Disorder No. 48 of 1994 as amended by 275 of 1995
14. The Full Court of the Federal Court, in Repatriation Commission v Deledio (1998) 49 ALD 193 at p206, has clearly explained the four step process to be adopted in applying s 120(1) and (3) of the Act:
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) . . .
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.
DIAGNOSIS OF CEREBROVASCULAR ACCIDENT
15. The term “cerebrovascular accident” is defined in clause 2 of the current SoP dealing with that condition. It was defined in the same way in the earlier SoP. The definition is as follows:
Kind of injury, disease or death
2.(a) This Statement of Principles is about cerebrovascular accident and death from cerebrovascular accident.
(b)For the purposes of this Statement of Principles, “cerebrovascular accident” means cerebral ischaemia or intracerebral haemorrhage, attracting ICD-9-CM code 431, 433.01, 433.11, 433.21, 433.31, 433.81, 433.91, 434.01, 434.11, 434.91, 435, 436, 437.1 or 674.0.
16. There is no dispute about the fact that Mr Burge suffered a cerebrovascular accident on 23 February 1987, but there is an issue about whether he suffered from a primary haemorrhage, or from cerebral ischaemia which caused a primary infarct and a secondary haemorrhage. That is relevant because the SoP recognises smoking as a relevant factor if the “cerebrovascular accident”, as defined, is cerebral ischaemia, but not otherwise.
17. The respondent’s Statement of Facts and Contentions submitted, in paragraph 47, that the question of whether Mr Burge suffered from cerebral ischaemia must be decided to the reasonable satisfaction of the Tribunal as explained by the Full Court of the Federal Court in Repatriation Commission v Cooke (1998) 160 ALR 17. The decision in Cooke was approved by the Full Court in Repatriation Commission v Budworth (2001) 116 FCR 200.
18. The respondent submitted that the Tribunal should be reasonably satisfied that Mr Burge did not suffer from cerebral ischaemia. The respondent relied on:
(i)the hospital notes relating to Mr Burges’ admission to the RGH on 23 February 1987;
(ii)the report and evidence of Professor Kilpatrick;
(iii)the report of Dr Reddy, the treating general practitioner.
THE EVIDENCE AS TO DIAGNOSIS
19. There was no evidence of Mr Burge having been diagnosed with ischaemia prior to the event on 23 February 1987. The evidence was that he had seen his treating doctor, Dr Reddy, a week or two before the stroke, with symptoms which were diagnosed as Menieres syndrome, and some two years earlier with an episode described as “dizziness of unknown cause” when getting out of a swimming pool (R2 pp4 and 2).
20. The history obtained on admission to Heidelberg Repatriation General Hospital on 23 February 1987, included a reference to an episode of vertigo, vomiting and photophobia two weeks before presentation (R3 p3). Professor Myers commented on that history. He said it could be totally unrelated to the incident on 23 February 1987, but if it were related, the reported symptoms would indicate ischaemia to the brain causing those symptoms, and then going on to cause infarction. He said it would be more common to have more repetitive episodes, but that would not necessarily be the case.
21. Professor Myers agreed with Ms McMahon that there were no recorded clinical symptoms present on admission which would point to Mr Burge suffering ischaemia. He agreed that there was no record of Mr Burge being treated with Aspirin or Warfarin after the stroke, which medication could point to him having cerebral ischaemia, but he said you cannot make a diagnosis on the basis of treatment given or not given.
22. Professor Myers and Professor Kilpatrick both relied on the CT reports included in the hospital file (R3 pp 3-4) in order to form an opinion whether Mr Burge had suffered from cerebral ischaemia at the time of his haemorrhage. The first report of 23 February 1987 stated (R3 p3):
A wedge shaped area of increased density is seen in the midline of the right cerebellar hemisphere. This area extends to the periphery and there is mild mass effect with partial compression of the right ambient cistern and 4th ventricle. No definite gyral enhancement is noted post contrast. There is no abnormality detected in the brain stem. The remainder of the examination is within normal limits.
CONCLUSION: I can only really offer a differential diagnosis on this appearance.
It may represent a haemorrhagic infarct of the tonsillar hemispheric branches of the right pica. (The brain stem branches must be spared).
It may also represent a primary cerebellar haemorrhage that is undergoing resolution judging by the minimal mass effect.
The follow up CT scan of 3 March 1987 was reported as follows (R3 p4):
There has been a decrease in both attenuation, and size, of area of high density seen in the right cerebellar hemisphere. Ring enhancement is seen following intravenous contrast. The appearances are consistent with a resolving cerebellar haemorrhage. The pattern is less typical of infarction.
CONCLUSION: Resolving cerebellar haemorrhage.
A final CT report on 7 April 1987 stated (R3 p6):
Since the examination performed March 87, there has been further resolution in the size of the right cerebellar haemorrhage. On this occasion there is no evidence of mass effect, or focal infarction relating to this lesion.
23. Professor Myers said that in his opinion the presence of a “wedge shaped lesion” in the first CT scan “is diagnostic of an infarct”, due to cerebral ischaemia. He explained that the wedge shape occurs because, if a feeding artery is occluded, all of the tissue within the fan formed by the branches from that artery will potentially die. He said that the early appearances are probably more compelling than the late appearances. He also said he placed less emphasis, than Professor Kilpatrick did in her report, on the absence of any evidence of infarcted material. Professor Myers acknowledged that a haemorrhage did occur, but he thought it was “far more likely” to be “a secondary haemorrhage after a primary infarct and therefore, resulting from cerebral ischaemia”.
24. Professor Kilpatrick in her report (A1), at pp4-5, had set out her reasons for favouring the alternative diagnosis of a primary cerebral haemorrhage. Basically she relied on the fact that it seemed to be the conclusion the radiologists favoured at the time, as set out in the second and third CT reports (R3 pp4 and 6).
25. Professor Myers said that the appearances reported in those reports were quite consistent with a resolving infarct. He agreed with the medically qualified Member of the Tribunal that it is “extraordinarily common” to have a secondary haemorrhage into the area of infarction. He said it was his opinion that Mr Burge suffered an infarct as a result of cerebral ischaemia.
26. Professor Myers said that he disagreed with the opinion expressed by the radiologist in the second CT report of 4 March 1987, that the appearance was less typical of infarction than of a primary haemorrhage. He pointed out that it was not the same radiologist as had done the earlier report. He said the last CT report does not assist in making a diagnosis.
27. Ms McMahon also asked Professor Myers to comment on the clinical presentation, reported at R3 pp20-23, which recorded symptoms of photophobia and neck stiffness. Professor Myers said that those symptoms certainly suggest a degree of bleeding into the fluid around the brain. He said that a sudden onset of those symptoms was consistent with either diagnosis.
28. Professor Myers maintained the view that the wedge shaped lesion was diagnostic of an infarct. He said he would place great reliance on that. He commented that he did not know why the neurology resident made a diagnosis of [primary] cerebral haemorrhage.. He explained, “that appearance is specific for an infarct and should be compelling”.
29. In answer to a question from the Tribunal, Professor Myers said that he would not prescribe Warfarin, which is an anti-coagulant, for somebody who has just had a haemorrhagic infarct. He explained that the risk of re-bleeding into that area, or another area of the brain, would outweigh the benefits of reducing the likelihood of thrombotic occlusion. He also said that he would not give Aspirin, until the situation had stabilised, which would be at least six to eight weeks after the event.
30. Professor Kilpatrick, in her report (R1), stated that it was difficult to know whether Mr Burge had had a cerebellar infarct which became haemorrhagic or a primary cerebellar haemorrhage.. After setting out the matters favouring each of those possibilities, she concluded at para 96 [sic] of her report:
In my opinion it is more likely this man had a primary cerebellar haemorrhage as the cause of the stroke in February 1987.
31. Professor Kilpatrick wrote “Haemorrhage involving the cortex and “wedge shaped”, as was in this case, tend to favour bleeding into an infarct, that is a haemorrhagic infarct”. However, she added at pp6-7 (R1):
Diagnosis is based on the clinical history, examination findings, knowledge of what is common and likely to occur, and investigations, including radiological investigations. One piece of information alone rarely is used in isolation to make a diagnosis. If differences arise, that is the clinical history suggests one thing and the radiology suggests another, then it is often the stronger evidence that determines the management. For example, if the radiological investigations suggest two differential diagnoses which are equally possible, but the clinical presentation strongly suggests one thing, one would usually conclude that the clinical presentation determines the diagnosis. On occasions, however, it is impossible to be certain.
Differentiating haemorrhagic infarct from a primary haemorrhage, however, does often have significant implications for management. For example, if a patient was thought to have an infarct due to an embolus from the heart, even if it had become haemorrhagic, then often the patient would be treated with Warfarin, a drug which is used to thin the blood, to prevent further emboli, and hence, infarcts from occurring. If, however, the lesion was thought to be a primary haemorrhage, then clearly Warfarin would be totally inappropriate. Physicians have to make a judgement as to which is the most appropriate treatment. This happens very commonly in medicine.
32. Professor Kilpatrick agreed with Professor Myers, that she would not have prescribed Warfarin after the event, even if it was thought to be an infarct. She said also that she would not have prescribed Aspirin for some weeks after the event.
33. The difference between the opinions of Professor Kilpatrick and Professor Myers, was that Professor Kilpatrick said either diagnosis was quite possible, but on balance she favoured the diagnosis of a primary cerebellar haemorrhage. Professor Myers considered that the wedge shaped lesion was clearly diagnostic of a primary infarct, with a secondary haemorrhage.
34. There was reference during the hearing to Dr Reddy’s diagnostic report on 2 February 1997 (Tdocs p89) where Dr Reddy had written that there had been a gradual onset of symptoms of “dizziness, headache, photophobia and vomiting”, approximately one week before the incident on 23 February 1987 (Dr Reddy, in error, in that report gave the date of the incident as 23 February 1988). Professor Kilpatrick said that if there had been a “gradual onset”, that would tend to make one think of an infarct. On the other hand, she explained that the reference to headache and photophobia, would sway her towards a diagnosis of a primary haemorrhage.
35. Miss Shanahan, the medically qualified member of the Tribunal, asked Professor Kilpatrick to comment on the significance of Dr Reddy’s clinical note of 13 February 1987 (R2 p4), “seen here with Menieres syndrome this week”, and of Dr Reddy’s reference (Tdocs p89) to symptoms, including headache and photophobia, approximately a week before admission. Miss Shanahan suggested that the reference to “2/52 . . . Vertigo, vomiting and photophobia” at (R3 p3) could be rather confused, bearing in mind that it was a history taken on admission, probably from a daughter of Mr Burge.
36. Miss Shanahan referred Professor Kilpatrick to the evidence Mr Burge had given at the hearing. He had said that the Sunday before his hospital admission on Monday 23 February 1987 he thought he had been visited by three locum doctors. He said “it happened on the Saturday” . . . “On the Sunday . . . I couldn’t eat. Everything I ate, drank, up it came. I was in bed” (trans. p27). He added that when his daughter visited he could not stand the light. She rang Dr Reddy. He said Dr Reddy came and just called the ambulance. Later in his evidence (trans. p46), Mr Burge said he was given Stematil by the locum on the Saturday and Sunday.
37. Miss Shanahan asked Professor Kilpatrick how she would interpret a history of dizziness on the 13th of February, with no other symptoms until the weekend before the hospital admission, when there was vomiting, headache and photophobia. She asked Professor Kilpatrick whether, if the pattern was that the onset of dizziness, leading to the diagnosis of Menieres disease, came first, and the symptoms of headache, photophobia and vomiting developed some days later, that would be indicative of an infarct followed by a secondary haemorrhage.
38. Professor Kilpatrick replied (trans. p145) that the symptoms described over the weekend would be “consistent with a haemorrhage of some sort”.. She added (trans. p145):
If you say that earlier there was a preceding vertigo, if we are saying that is factual, then it [is] sounding more like, given all the other bits and pieces, more like a scenario of a haemorrhagic infarct, if that is factual, yes.
CONCLUSION AS TO DESCRIPTION OF CEREBROVASCULAR ACCIDENT
39. We find, on the balance of probabilities, that Mr Burge had an ischaemic infarct followed by a secondary haemorrhage. The factors which we have regarded as significant in making that finding are, first, the wedge shaped lesion and, secondly, the history of gradual onset over 14 days, commencing with symptoms of dizziness, and other symptoms consistent with haemorrhage only developing over the weekend prior to admission.
40. Professor Kilpatrick clearly expressed the processes of a cerebrovascular accident at paragraph B of her report. Professor Myers agreed with that passage. It is as follows:
· Stroke and cerebrovascular accident are interchangeable. These days we use the word stroke not cerebrovascular accident.
· Stroke is defined as an acute neurological deficit due to a vascular event. This may be either due to occlusion of a blood vessel or haemorrhage into brain tissue.
· Occlusion of a blood vessel is referred to as ischaemia or if the tissue dies, an infarct. Haemorrhage is referred to as primary or secondary. Primary haemorrhage implies there is no underlying cause apart from hypertension. Secondary haemorrhage implies there is an underlying cause such as haemorrhage in to a tumour or abnormal blood vessels bleeding, such as an arteriovenous malformation.
·Not uncommonly, bleeding may occur into an infarct, and this is referred to as a haemorrhagic infarct.
41. We find that Mr Burge had a haemorrhagic infarct due to occlusion of a blood vessel caused by cerebral ischaemia. That cerebral ischaemia is a “cerebrovascular accident”, as that term is defined in SoP No 52 of 1999.
THE APPLICATION OF THE DELEDIO PROCEDURE
STEP 1 – DOES THE MATERIAL POINT TO A HYPOTHESIS CONNECTING THE HAEMORRHAGIC INFARCT OR CEREBRAL ISCHAEMIA WITH THE CIRCUMSTANCES OF SERVICE?
42. The hypotheses relied on in the applicant’s Statement of Facts and Contentions were related to smoking and hypertension. Mr De Marchi said (trans. p70) that he was not pursuing any hypothesis based on hypertension. As to the hypothesis based on smoking, he relied on Professor Myers’ opinion in his report of 17 December 1999 (A5):
[H]e would appear to satisfy the criteria of smoking at least five cigarettes a day for at least five years before the chronic clinical onset of cerebrovascular accident and within fifteen years of the event for he told me that the stroke occurred some twelve years ago and that he stopped smoking some ten years ago.
Later in his report Professor Myers wrote:
His smoking activities were clearly accelerated by his experiences during the war.
43. The material before the Tribunal as to smoking consisted of:
(i)a statement made by Mr Burge prior to the hearing;
(ii)his evidence at the hearing; and
(iii)medical records with references to smoking habit.
44. Mr Burge, in his statement made 3 November 1999 (A3), stated as to smoking:
1.I served in the Australian Army from 30 October 1941, to 10 April 1946. I served in the Northern Territory and in the South West Pacific Area, and have rendered operational service.
. . .
8.SMOKING – I commenced smoking prior to the Army, but was a very light smoker, smoking less than 10 cigarettes per day.
9.When in the Army and training, I increased my cigarette consumption to 15 per day.
10.On Morotai I increased my smoking habit to 25 per day through stress, and continued to smoke 25 cigarettes or more per day until 1989, when I ceased smoking.
45. At the hearing Mr Burge confirmed that smoking history.
46. Ms McMahon in cross-examination took Mr Burge to a number of documents which were inconsistent with that smoking history. Those documents were as follows:
8 May 1966
RGH – history obtained on admission for surgery for varicose veins “Non-smoker” (R3 p24)
27 July 1981
Dr Reddy – clinical notes – history taken on initial visit “cigs No” (R2 p1)
23 February 1987
History on admission to RGH “cigs 0” (R3 p22)
15 June 1987
Letter from Neurology Resident to Dr Reddy “He is a reformed smoker 30 years ago” (R3 p9).
47. Mr Burge said as to those histories that he, “Wouldn’t have a clue”, as to why it was recorded in 1966,1981 and 1987 that he did not smoke, or why the Neurology Resident in June 1987 had described him as having given up smoking 30 years earlier. He said he was still smoking at the time of his stroke in February 1987.
48. We find that Mr Burge’s evidence, that he increased his smoking during service and kept on smoking at that increased rate until 1989, and the evidence of Professor Myers does point to a hypothesis connecting smoking with cerebral ischaemia and cerebrovascular accident. There is of course evidence inconsistent with Mr Burge’s recollection of his smoking habit, but no question of fact finding arises at this stage.
STEP 2 – IS THERE A RELEVANT SoP?
49. We have already identified in paragraphs 11 and 13 the current and superseded SoPs dealing with cerebrovascular accident.
STEP 3 – IS THE HYPOTHESIS REASONABLE?
50. Professor Myers expressed his opinion as to the medical link between smoking and cerebral ischaemia, by reference to the SoP, which recognises that link. He said that Mr Burge would appear to satisfy the criteria in the SoP.
51. The current SoP for cerebrovascular accident is No 52 of 1999. For cerebral ischaemia it recognises smoking as a factor which allows the raising of a reasonable hypothesis connecting cerebral ischaemia with the circumstances of a person’s service. It provides in clause 5 factor k(i):
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cerebrovascular accident or death from cerebrovascular accident with the circumstances of a person’s relevant service are:
. . .
(k) for cerebral ischaemia only,
(i) smoking at least five cigarettes per day or the equivalent thereof in other tobacco products, for at least five years before the clinical onset of cerebrovascular accident and where smoking has ceased, the clinical onset has occurred within 15 years of cessation; or
. . .
52. It was Mr Burge’s evidence that he increased his smoking habit from 10 cigarettes a day to 25 a day during his service, and that he continued to smoke at that rate until 1989. The whole of Mr Burge’s service during World War II was operational service and is therefore relevant service for the SoP. Thus the hypothesis relied on by Mr Burge is consistent with the “template” to be found in the SoP. Applying Step 3 as explained in Deledio, the hypothesis relied on is reasonable.
53. We notice that Mrs Burge, who unfortunately had died before this hearing, gave evidence to the first Administrative Appeals Tribunal hearing on 26 September 2000. She was asked whether it was her recollection that Mr Burge smoked from the time he came out of the army until about 2 years after the haemorrhage. She replied “Yes, it would be about right” (A7 p171).
STEP 4 – CONSIDERATION OF S120(1)
54. Although the medical records referred to by Ms McMahon raise a real doubt as to the accuracy of the smoking history set out in Mr Burge’s statement (A3) and given by him in his evidence, we cannot be satisfied beyond reasonable doubt that his statement and evidence were not accurate. Thus we cannot be satisfied beyond reasonable doubt that Mr Burge’s incapacity from the cerebellar haemorrhage following the ischaemic infarct is not war-caused.
CONCLUSION AS TO CEREBELLAR HAEMORRHAGE
55. We find that the evidence does raise a reasonable hypothesis connecting Mr Burge’s incapacity due to cerebellar haemorrhage following an ischaemic infarct with the circumstances of his service. We are not satisfied beyond reasonable doubt that the incapacity due to the secondary cerebellar haemorrhage was not war-caused.
56. The decision under review will be varied to provide that cerebellar haemorrhage is a war-caused disease, and that Mr Burge is entitled to pension in respect of incapacity from that disease. The parties were agreed that the Tribunal did not have sufficient information to assess the rate of pension payable to Mr Burge.
GENERALISED ANXIETY DISORDER
DOES MR BURGE SUFFER FROM AN ANXIETY DISORDER?
57. The claim lodged by Mr Burge on 7 January 1997 referred to “nervous condition” (T6 p73). Dr Cole, in his reports dated 14 December 1999 (A4) and 13 May 2003 (A9), diagnosed Mr Burge as having a mild generalised anxiety disorder.
58. The Repatriation Commission submitted, in paragraph 50 of its Statement of Facts and Contentions, that Mr Burge does not suffer from generalised anxiety disorder. That issue, as the respondent pointed out, must be decided to the reasonable satisfaction of the decision-maker. (Repatriation Commission v Cooke (1998) 52 ALD 1; (1998) 90 FCR 307 and Repatriation Commission v Budworth (2001) 116 FCR 200; (2001) 66 ALD 285; (2001) 33 AAR 476.
59. The Tribunal had before it reports from two psychiatrists, Dr Gidley and Dr Cole, and a report from Dr Byrne a psychologist. Dr Cole and Dr Byrne gave evidence. Each of those experts had seen Mr and Mrs Burge. They had obtained a history from Mr Burge of various events which caused him some stress during his war service, while he was driving ambulances and during air raids when he was stationed in Darwin. There were also similar experiences as an ambulance driver and during air raids, when Mr Burge was stationed in Morotai.
60. Each of the psychiatrists and Dr Byrne had obtained a history not only from Mr Burge but also from Mrs Burge. She described the changes she had noticed in Mr Burge, both when he returned home after his war service and at a later period following his cerebellar haemorrhage.
61. None of these expert witnesses diagnosed Mr Burge as having suffered generalised anxiety disorder or any other psychiatric disorder in the period following his discharge from the Army.
62. However Dr Cole, in his report of 14 December 1999 (A4), did conclude that Mr Burge was then suffering from a mild generalised anxiety disorder. He wrote:
Mr. Burge is suffering from a mild generalised anxiety disorder. He would appear to have had few in the way of nervous symptoms upon his discharge from the Army and many of his current symptoms have emerged only in comparatively recent years. However, he is the sort of person who would tend to deny to himself the existence of any anxieties he thought inappropriate and to bottle up his feelings, so that it is difficult to judge quite when his anxiety disorder might have begun. I note, however, that he still has intrusive memories about some of his war time experiences, while his war service was, at times, emotionally stressful. That is, I don’t think the war left him altogether unscathed, although he could not be said to be suffering from a post-traumatic stress disorder, while the deterioration in his condition that has taken place in recent years owes more to factors unrelated to his war service than it does to that service.
Nonetheless, I think it can reasonably be postulated that his war time experiences rendered him more vulnerable to the development of a nervous disorder in later life than might otherwise been the case. That is to say, a reasonable hypothesis can be erected connecting his Army service with the development of a generalised anxiety disorder in later life.
63. In the later report dated 13 May 2003 (A9), written after seeing Mr Burge a second time, Dr Cole noted that “his memory had obviously faded over the years”.. Dr Cole noted some discrepancies in the accounts Mr Burge gave of his war time experiences, but he commented that he doubted if they were significant and he attributed them to memory fading. Dr Cole concluded:
I am still of the opinion that he suffers from a mild generalised anxiety disorder which I suspect could date from his war time experiences, although the evidence to this effect is far from convincing and I doubt if he would meet the requirements of the Statement of Principles relating it to his war time service.
Mr. Burge did not give a clear history of an upsurge in his anxiety following his stroke, in contrast to what his wife had told me. If one accepts his late wife’s account it could reasonably be argued that his generalised anxiety disorder was due to a generalised medical condition, although once again it might be difficult to meet all the requirements of the Statement of Principles for the diagnosis in view of Mr. Burge’s tendency to deny to himself the full extent of his anxieties.
64. The issue which requires determination is whether on the history given by Mrs Burge, not only to Dr Cole, but also to Dr Gidley and Dr Byrne, and in evidence at the first Administrative Appeals Tribunal hearing of this matter, we can be reasonably satisfied that Mr Burge, suffers a psychiatric disorder related to his cerebellar haemorrhage, which we have already found was a war-caused condition.
65. Because Mrs Burge had died before this hearing, the only evidence available as to what she noticed is that set out in the various medical reports and the transcript of the first hearing. We place more weight on that evidence of Mrs Burge than on the evidence given by Mr Burge at the hearing, first, because, as Dr Cole noted, “his memory has obviously faded over the years”, but secondly, because Mr Burge, as he readily recognised, was not perceptive of his own behaviour even in earlier years.
66. When asked why he had put in the claim for a nervous condition he replied that it was because his wife had told him he had an anxiety problem. He said, “she knew more about me than I knew myself” (trans. p94).
67. The history Dr Cole obtained from Mrs Burge is set out in his first report (A4):
HISTORY FROM WIFE: I spoke separately to Mrs. Burge who said that she met her husband about twenty-five days before he went overseas. He changed a little after the war, but the most marked change had occurred only in latter years, particularly since his stroke. He was a worrier but would not admit it. His family could see it. It had been more noticeable since the stroke. He suffered from mood swings, became very tense about things and had become irritable. Whenever he was upset he complained of heartburn and indigestion.
He woke several times a night. He jumped in his sleep quite frequently and about six months ago called out and hit her in the leg. However, he slept well when he was younger. He did not talk about the war and kept a lot to himself.
68. Dr Gidley’s report (T9) contains the following history:
.. . . He says that he gets uptight very easily. Also since he suffered a brain haemorrhage 10 years ago he has noticed fairly constant giddiness. He recognises a problem with declining recent memory. He has a lot of trouble sleeping, waking frequently during the night and having difficulty getting back to sleep. He is not aware of dreaming. His wife describes him as having a short fuse and often agitated, particularly when he has the view that the world seems to be against him. He reports that memories of his war experiences are often on his mind and this is more likely to be the case around occasions such as Anzac day, when he gets upset by seeing the thinning ranks of his former service comrades. A further problem now is that he feels uneasy when he is in crowds.
. . .
Dr Gidley wrote:
On examination: Mild anxiety was evident and he became tearful when he described his childhood. He expressed concerns about his physical health. Intrusive traumatic memories were present but seemed to be relatively mild in severity. His personality showed a mix of dependent and obsessional traits.
Conclusions: Mr Burge presents as a retired elderly married man with mild anxiety and depressive symptoms. He suffered deprivations during his childhood and in old age he seems to be re-experiencing some distressing emotions related to these. He describes some traumatic war time events however he does not meet the criteria for a diagnosis of Post Traumatic Stress Disorder – intrusive phenomena are mild and there are no significant avoidance behaviours. Thus although he is experiencing nervous symptoms, these are essentially related to personality and early life experiential factors and are of a degree of severity that does not warrant a psychiatric diagnosis.
69. Thus Dr Gidley recognised that Mr Burge had mild anxiety and depressive symptoms, although it was his opinion in 1997, that they were not of a degree of severity to warrant a psychiatric diagnosis.
70. In his report of 12 November 1999, Dr Byrne reported that Mr Burge told him that after discharge from the Army he was married, and he described that period to Dr Byrne as “the happiest time of my life”. Sadly, a couple of years after they were married, Mr and Mrs Burge lost their first child, a baby daughter, at the age of 10 months. Dr Byrne commented that this time was of course particularly traumatic for Mr Burge and his wife.
71. Dr Byrne obtained a history from Mr and Mrs Burge, of the onset of psychological problems after the brain haemorrhage. In the section of the report dealing with medical history he wrote:
6.4In about 1987, he suffered from a brain haemorrhage, which was not diagnosed for a few days, and which he described as “terribly traumatic”. He stated “it really, really got me going”. Since then he has suffered from vertigo and mood swings.
The psychological history set out in the report included the following paragraphs:
9.5Since the brain haemorrhage about twelve years ago, Mr Burge has suffered from numerous psychological problems. Mrs Burge stated “until then he was the easiest man to get on with” but since then “he thinks the world is on his shoulders, he is irritable and he flares up in a couple of minutes”.. He has also suffered from disturbed sleep and occasional nightmares. He takes Ducene (Valium) to help him sleep about once a week.
9.6He has found himself becoming more emotional, particularly on Anzac Day or if he sees something on television about the war.
9.7For about the last ten years he has suffered from an upset stomach when he gets tense. He believes this first happened prior to the brain haemorrhage, and his wife stated that when he goes off his food she knows he is uptight about something.
9.8On specific enquiry, Mr Burge stated that he does attend the RSL, but most of his unit are interstate, so he does not have regular contact with them. He managed to catch up with one member of his unit recently, and his wife stated that when he came back from this visit he was “really bubbly”.
9.9When asked about any discomfort in crowds, he stated that at parties he tends to feel uncomfortable, and gets dizzy, and has to lie down. This has been worse in the last seven or eight years.
9.10He does not have intrusive memories of his service, but stated “on Anzac Day you think about it”.
9.11Recently, when he has been feeling down, he sometimes thinks “how suicide would be”.. He had these thoughts recently when his brother-in-law was dying of cancer.
Dr Byrne in summarising Mr and Mrs Burge’s marital history again referred to the effect of the haemorrhage:
10.1 Mr Burge and his wife described a very happy marriage without any separations. His wife stated “we’ve been married for fifty-three years and have had no problems at all”. She described him as a “wonderful father” who never yelled at his children. Even now, they do not have arguments, but “differences of opinion” because Mr Burge “flares up easily since the haemorrhage”.
72. Dr Byrne set out his opinion as follows:
14.1Mr Burge experienced a particularly difficult childhood characterised by the very early death of his mother, being raised in boys’ homes, living through the Depression and a poor relationship with his stepmother. Despite these difficulties he has been remarkably emotionally resilient, without developing any significant psychological problems.
14.2He was exposed to some traumatic situations during his Army service, and these memories remain painful for him.
14.3Since his Army service he maintained a successful career as a butcher until his retirement at the age of 62, and describes a strong and happy marriage and family life.
14.4He did not display any significant psychological problems until he suffered a brain haemorrhage about twelve years ago. Since that time, as is common following a brain haemorrhage, Mr Burge has experienced mood swings and sleep disturbance.
14.5Mr Burge does not display the symptoms of Post Traumatic Stress Disorder or Generalised Anxiety Disorder.
73. Mrs Burge’s evidence at the first AAT hearing was that Mr Burge was more subdued after he came back from the war, than he had been before. She said he was no longer as happy, because of what he saw when he went away, but he did not speak about his war experiences. She said he had always been a worrier.
74. When asked whether she noticed further differences following “the bleed”, Mrs Burge replied:
Yes, I did.
What were they?---He was very easily agitated, and to put it commonly it was like he had a chip on his shoulder all the time. He was very hard to – you know, like he sort of – how can I put it? He was – as I say he was easily agitated. Even my children noticed the difference in him. They have spoken about it.
They noticed. They told you about it?---Well, the first thing that they told me was the fact that he used to get agitated very quickly, and they would say to me, what is the matter with Dad? He is going off the handle about nothing there. And I spoke to him about it, and he just said, well, that is the way it is, that is the way things are.
Yes. And what about argumentative?---At time he was, yes.
What about worrying?---Yes, he is a worrier. He is still a worrier.
Tell me about that. Now, what do you mean by that?---He just worries about things. He tells me that he is worried about things, and I know when he is worried about things because he gets so upset and agitated in the stomach.
75. As to the issue whether the Tribunal is satisfied that Mr Burge does suffer from a diagnosable anxiety condition, the applicant’s Statement of Facts and Contentions stated:
It is submitted that Dr Cole has diagnosed that Mr Burge is suffering from Generalised Anxiety Disorder, that this condition has existed from when he was in the Army, that the condition has become worse as a result of his Intracranial Haemorrhage due to his diminished ability to cope and cover up the symptoms of Generalised Anxiety Disorder.
This meets all the criteria of Statement of Principles, Instrument No. 48 of 1994, factor 1(b) and factor 1(c), being “clinical worsening as a result of the intracranial haemorrhage.”
76. However, as the evidence was given, it became clear that there was no evidence pointing to Mr Burge suffering an anxiety disorder after his service, until after the cerebellar haemorrhage.
77. During the hearing, Mr De Marchi, at trans. pp164-165, said that the applicant’s case was that he had been suffering from a generalised anxiety disorder subsequent to his stroke, and that the applicant abandoned any claim to have been suffering from a generalised anxiety disorder prior to the stroke. We consider that to have been an appropriate concession. There is no evidence that Mr Burge suffered from anxiety after his discharge from service, to the extent that it could be characterised as an anxiety disorder.
78. However there is evidence from Dr Cole, that from 1999 Mr Burge’s psychiatric symptoms did justify a diagnosis of a mild generalised anxiety disorder. Dr Byrne, while acknowledging that Mr Burge had “significant psychological problems” after his brain haemorrhage, seemed to regard them as not constituting a generalised anxiety disorder, because problems such as mood swings and sleep disturbance are “common following a brain haemorrhage”.. We do not understand that reasoning except in so far as it may affect the diagnosis of any anxiety disorder. Dr Byrne also said at one stage of his evidence that the symptoms did not “rise to the level of warranting a diagnosis of generalised anxiety disorder”, although at another point (trans. p159), he acknowledged that such a diagnosis was open. Dr Gidley in 1997, as we have pointed out, also referred to Mr Burge having mild anxiety and depressive symptoms.
79. Thus each of the expert witnesses who saw Mr Burge noticed that he had symptoms of anxiety. Dr Cole diagnosed an anxiety disorder. Although Dr Byrne did not do so, the fact that he described the psychological symptoms reported to him at present after the haemorrhage as “significant”, and acknowledged that an anxiety disorder could be diagnosed, is consistent with the view that Mr Burge does have a mild anxiety disorder, as Dr Cole diagnosed.
80. Ms McMahon submitted that the Tribunal could not proceed to apply the steps laid down in Deledio, without first being satisfied that Mr Burge suffered from “generalised anxiety disorder”, which satisfied all the diagnostic requirements in the relevant SoP. She submitted that we could not accept Dr Cole’s opinion that Mr Burge suffered from generalised anxiety disorder, without regard to the description of that disorder as set out in the SoP. Her submission relied on Repatriation Commission v Gosewinckel [1999] FCA 1273, 59 ALD 690 at p703, paragraphs 55-59, where Weinberg J said:
55 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 Shelton v Repatriation Commission [1999] FCA 181 at par 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".
56 Mr Hanks submitted that the AAT should have asked itself whether it was reasonably satisfied that the veteran was suffering from generalised anxiety disorder, as defined in clause 4 of the SoP - that is, it should have asked itself: "Are we reasonably satisfied that the diagnostic criteria prescribed by the SoP as essential for a diagnosis of generalised anxiety disorder have occurred more days than not for at least six months?"
57 I accept this submission in so far as it relates to the AAT's failure to approach the prescribed criteria through s 120(4) rather than ss 120(1) and (3) of the Act. I would not, however, have been disposed to allow this application merely because the AAT did not refer in terms to par (a)(v) of the SoP at this point in its reasons for decision, and did not refer to the exclusionary criteria in pars (a)(iii) and (iv), (b) and (c) at any point in those reasons, apart from setting out the SoP in par 31.
58 While Dr Wahr did not, in terms, refer to those criteria, it seems to me to have been implicit in his report, and in his evidence, that in his opinion the veteran currently met each of the requisite criteria for generalised anxiety disorder as set out in the SoP. Had the AAT applied the correct standard of proof, it would have been open to it to have so concluded.
59 The AAT's reasons for decision should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed - Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, and at 291-3. The AAT's failure when dealing with the issue of diagnosis to advert, in terms, to each and every aspect of generalised anxiety disorder, as set out in cl 4 of the SoP, does not mean that it did not have regard to each of those aspects, whether positive or exclusionary in nature. Had ground (b) stood alone, the application before the Court would not have succeeded.
81. That passage is a little hard to reconcile with the passage in Benjamin v Repatriation Commission [2001] FCA 1879 (2001) 34 AAR 270, where the Full Court said at paragraph 41, p280:
41 The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis. However, the similarity of the definition in SoP 15 of 1994 to the criteria in DSM-IV led his Honour to the conclusion that the Tribunal's error was of no practical consequence whatsoever.
82. The Full Court in Benjamin set out the two issues before it in paragraph 46, p281 as follows:
(1) At what stage of decision making on a claim for veterans' disability pension in respect of operational service does the decision-maker address disease definitions contained in SoPs?
(2) What standard of proof under s 120 is to be applied when addressing diagnostic criteria used in the medical classification of diseases?
83. The Full Court then explained the inquisitorial nature of a review by the Tribunal and referred to the principles in Grant v Repatriation Commission [1999] FCA 1629 paragraphs 17-18; 57 ALD 1 at p6, to the effect that this Tribunal should not limit its determination to “the case” made by the applicant, if the evidence and material which it accepted or did not reject, raised an issue not put forward by the applicant.
84. The Full Court, in Benjamin, held at p282 paragraph 49, that the Tribunal erred in that it failed to consider whether the psychiatric problems from which it found Mr Benjamin suffered, might be a disease and might be war-caused, even if they did not constitute PTSD.
85. In Budworth the Full Court said at paragraphs 9, 19 and 20:
9 At the hearing of the appeal, counsel for the Commission accepted that the AAT had erred in failing to consider the exercise of its discretion not to reduce Mr Budworth's pension retrospectively. It was conceded that the primary Judge's reasoning in this respect was correct and that the matter must be remitted to the AAT for reconsideration on this ground alone. Ultimately, counsel for the Commission also conceded that the primary Judge was correct in deciding that the AAT had a duty to consider whether Mr Budworth suffered from any disease other than post traumatic stress disorder and that the matter ought be remitted to the AAT for consideration of that issue as well.
. . .
19 The expression "as claimed" in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which it is attached, namely, "that the veteran suffered the injury or contracted the disease." This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label "Post Traumatic Stress Disorder", may turn on questions of causation or aetiology. Once the decision-maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).
20 It was also submitted in the alternative by counsel for Mr Budworth, that if Cooke was correctly decided, it is not authority for "the approach of the appellant". We disagree. We regard Cooke as decisive of the critical issue on this appeal, namely what standard of proof is to be applied when determining whether a claimed injury or disease exists. Consequently we consider that the primary Judge erred in concluding that the reverse criminal standard of proof contained in s 120(1) of the Act was relevantly applicable. Although therefore we affirm the order of the primary Judge that the matter be remitted to the AAT to be heard and determined according to law, such determination will require reconsideration of the matters referred to in [9] above, and the appropriate application of the correct standard of proof as to whether the claimed disease exists.
86. Applying Budworth we are obliged:
(i)as a first step, to identify the symptoms from which we find Mr Burge suffers (para 19);
(ii)to do so on the reasonable satisfaction standard of proof (para 20);
(iii)if we do not find that Mr Burge suffers from generalised anxiety disorder, to consider whether he suffers from any other disease.
87. The decision in Budworth was followed by the Full Court in Fogarty v Repatriation Commission [2003] FCAFC 136.. Kenny J, with whose reasons Spender and Tamberlin JJ agreed, held that the Tribunal had made an error of law in not clearly deciding as the first step whether it was reasonably satisfied that Mr Fogarty had suffered from an anxiety disorder. Her Honour referred, at the conclusion of her reasons, to the various definitions in SoP No 1 of 2000, of anxiety disorder. She noted that it included a new condition, not mentioned in the earlier SoP, “anxiety disorder not otherwise specified” in addition to “generalised anxiety disorder” and “anxiety disorder due to a medical condition”. Her Honour held that the definition raised the possibility that a claim may satisfy the description “anxiety disorder not otherwise specified” even though it does not satisfy the description of “a generalised anxiety disorder”. Kenny J held that the Tribunal’s failure to consider that possibility was an error which may have materially affected its decision.
88. We are reasonably satisfied that Mr Burge suffers from the following symptoms of anxiety, which were identified in the medical reports before us and in the evidence of Mr Burge at this hearing and of Mrs Burge at the first AAT hearing:
· Restlessness or feeling keyed up, on edge or agitated or tense
· Difficulty concentrating or mind going blank, poor memory
· Irritability, liable to flare up
· Sleep problems
· Digestive problems described as “an acid stomach” when upset and agitated (trans p 96)
· Mood swings
· Discomfort in crowds
89. We note in reference to the evidence on which we have relied, the Full Court in Lees v Repatriation Commission [2002] FCAFC 398, 36 AAR 48, at p491 paragraph 21, made it clear that it is appropriate in a matter before the Tribunal to have regard to evidence of a doctor as to facts recounted to him or her as probative of those facts. The Court said at paragraph 21:
21 Counsel for the appellant submitted that even in proceedings in which the laws of evidence apply, evidence of a doctor of facts recounted to him or her by the patient and on which the doctor's opinion is based, is probative of those facts. Reference was made to s 60 and s 72 of the Evidence Act 1995 (Cth) and Ramsay v Watson (1961) 108 CLR 642, Lee v The Queen (1998) 195 CLR 594, Welsh v R (1996) 90 A Crim R 364 and Lardil & Ors v Queensland [2000] FCA 1548. The Tribunal is not bound by the rules of evidence: see s 33(1) of the Administrative Appeals Tribunal Act 1976 (Cth) and is obliged, by s 120(3) of the Act to consider all material before it in determining whether a reasonable hypothesis is raised.
90. Further, as Mrs Burge had unfortunately died before this hearing, s 119(1)(h)(i) of the Act is relevant. It provides:
119 Commission not bound by technicalities
(1)In considering, hearing or determining, and in making a decision . . . the Commission . . .
h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses;
The fact that Mrs Burge is no longer available as a witness reinforces the relevance of the histories on which we have relied (see also Evidence Act 1995 Part 2, s 4(1)(b)).
91. Having identified the relevant symptoms there is a question as to whether we should attempt to consider the appropriate diagnosis by reference to the relevant SoP. It is clear that Weinberg J in Gosewinckel said we should do so, but the Full Court in Benjamin said that is not the appropriate course to adopt.
92. The issue of the application of a SoP in matters as to diagnosis arose before the Full Court (Black CJ, Drummond and Kenny JJ) in Repatriation Commission v Hill [2002] FCAFC 192, 69 ALD 581.. Although that matter was distinguishable, because it was accepted by both parties that Mr Hill did suffer from PTSD, the Full Court explained that, where there is an issue as to diagnosis, reference may be made to the criteria in the relevant SoP. The Full Court said at 69 ALD 598, paragraphs 61 – 63:
61 As the final sentence of [89] of its reasons illustrates, in this paragraph, the Tribunal was not turning its mind to cl 1 of the PTSD SoP and to "experiencing a stressor". Rather, in [89] to [93], the Tribunal was considering whether the material before it pointed to the elements of "post-traumatic stress disorder" as defined in cl 4 of the PTSD SoP. This inquiry was not the correct one. The inquiry would have been relevant if there had been a dispute before the Tribunal as to whether or not Mr Hill was actually suffering from PTSD. . . .
62 As noted already, the Commission in fact conceded that the Tribunal fell into error in this regard, but it submitted that the error was inconsequential. We reject this submission. We note, first, that ss 120(1) and (3) (together with s 120A(3)) are directed to the standard of proof for establishing a causal connection between, amongst other things, a veteran's disease and his war service, assuming the existence of the relevant condition: see Repatriation Commission v Cooke (1998) 160 ALR 17 at 20 and Gosewinckel at 72. These provisions do not require any consideration of the question whether the veteran in fact suffered from the disease.
63 It should be borne in mind that the issue whether a particular disease exists is governed by s 120(4) of the Act, not ss 120(1) and (3). That is, the issue whether or not a disease exists is to be decided to the reasonable satisfaction of the Commission: see Repatriation Commission v Cooke at 20 and Gosewinckel at [49]. [emphasis added]
93. In Hill, the Full Court said that where there is a dispute as to whether a veteran suffers from a disease, it would be relevant for the Tribunal to inquire whether the evidence points to the elements of a disorder, as defined in the SoP. Thus we now embark on that inquiry, recognising, as pointed out in paragraph 63 of the reasons in Hill, that the issue whether a particular disease exists is to be decided to our reasonable satisfaction.
DIAGNOSIS OF ANXIETY DISORDER
94. SoP No. 1 of 2000 in clause 8 defines “anxiety due to a general medical condition”, “anxiety disorder not otherwise specified”, and “generalised anxiety disorder” as follows:
“anxiety due to a general medical condition” means a psychiatric disorder where:
A.Prominent anxiety, panic attacks, obsessions or compulsions predominate in the clinical picture; and
B.There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition; and
C.The anxiety, panic attacks, obsessions or compulsions are not better accounted for by another mental disorder; and
D.The anxiety, panic attacks, obsessions or compulsions do not occur exclusively during the course of a delirium; and
E.The anxiety, panic attacks, obsessions or compulsions cause clinically significant distress or impairment in social, occupational, or other important areas of functioning;
“anxiety disorder not otherwise specified” means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
“generalised anxiety disorder” means 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 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 exclusively during a mood disorder, a psychotic disorder, or a pervasive developmental disorder;
95. Dr Cole diagnosed Mr Burge as suffering from a generalised anxiety disorder, but he did not specifically refer to the diagnostic criteria for that disease, either in DSM IV or in the relevant SoP. Dr Cole did not set out in his report any history as to the frequency of the feature set out as criterion A of the SoP, namely: “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”.. Nor did Dr Cole say whether or not Mr Burge had told him that he had the symptoms set out in criterion C for “more days than not” during the previous “six month period”..
96. Dr Cole said that Mr Burge did experience symptoms of:
difficulty concentrating or mind going blank
irritability
difficulty falling or staying asleep, or restless unsatisfying sleep;
But, Dr Cole said he had not asked Mr Burge how frequently he had those symptoms, although he had the impression that the sleep problems occurred every night.
97. Similarly, Dr Byrne accepted that Mr Burge had some of the symptoms specified in the diagnostic criteria in the SoP, but he, too, had not asked specifically about their frequency. He acknowledged that Mr Burge experienced symptoms of restlessness, irritability and sleep problems.
98. We are reasonably satisfied that Mr Burge had had those symptoms for far longer than 6 months, in fact for years, before he lodged his claim in 1997, but he had not been asked by either Dr Cole or Dr Byrne, or at the hearing, to state whether those symptoms occurred “on more days than not for a continuous period of at least six months”, as specified in criterion C.
99. In Gosewinckel, Weinberg J said at paragraph 51:
51 The applicant contends that the AAT misconstrued the relevant SoP by failing to consider whether the indicia for generalised anxiety disorder were present in the veteran's case. Generalised anxiety disorder is a disease which is defined by the presence of certain designated symptoms. Those symptoms must exist for the period specified in the SoP. The presence of some only of those symptoms, or the presence of all of the requisite symptoms for less than the specified period, would not permit a diagnosis of the disease.
100. Although that passage may need qualification, due to the subsequent decision of Benjamin, it seems that, unless there is material on which the Tribunal can be satisfied that the requisite symptoms have existed with the frequency and for the times specified in DSM IV or the relevant SoP (which are practically identical), we are not at liberty to find on the basis of Dr Cole’s opinion that Mr Burge suffers from “generalised anxiety disorder”.
101. Thus, although we accept Dr Cole’s evidence, and find that after his haemorrhage Mr Burge did suffer from a mild anxiety disorder, we cannot characterise it as a “generalised anxiety disorder”.
102. It was Dr Cole’s evidence that he thought Mr Burge’s mild anxiety disorder was a reaction to his stroke. We find that anxiety is a prominent feature of the disorder. Dr Cole said at trans p 190:
Yes, I think that is the evidence that I obtained . . . Mr Burge, himself, indicated that his anxiety symptoms had been worse in recent years than they had immediately after the war and his wife also told me that he had been considerably more anxious since the stroke.
He explained that anxiety is a natural reaction to having a life threatening illness (trans. p191).
103. The evidence does not satisfy us that the anxiety Mr Burge has suffered since his stroke satisfies the diagnostic criteria for “anxiety due to a general medical condition”, as there is no evidence satisfying criterion B in the SoP for diagnosis of that condition. It provides:
B. There is evidence from the history, physical examination, or laboratory findings that the anxiety, panic attacks, obsessions or compulsions are the direct physiological consequence of a general medical condition
104. There was no evidence meeting that description. Further, Professor Myers and Dr Cole were both of the view that cerebellar haemorrhage does not generally cause mood swings or emotional changes. Professor Kilpatrick agreed that that was the generally accepted view, but she said there is now a developing view that questions that, so she would not totally discount the possibility of the changes having a physiological cause (trans. pp125-126).
105. Even if it is now accepted that a cerebellar haemorrhage may cause mood swings and emotional changes, there is no evidence that the psychological changes and psychiatric symptoms experienced by Mr Burge, are the direct physiological consequences of his cerebellar haemorrhage.
106. We are therefore not able to be satisfied that Mr Burge does suffer from “anxiety due to a general medical condition”, as defined in the SoP.
107. However, there is one further anxiety disorder defined in the SoP. As set out in paragraph 94 of these reasons, the description of that condition in clause 8 of the SoP 1 of 2000 is:
“anxiety disorder not otherwise specified” means a psychiatric disorder with prominent anxiety or phobic avoidance that does not meet criteria for any specific anxiety disorder, adjustment disorder with anxiety, or adjustment disorder with mixed anxiety and depressed mood;
108. The Full Court of the Federal Court has now held that the Tribunal must consider not only conditions relied on by the parties, but also other conditions which may be pointed to by evidence accepted, or not rejected, by the Tribunal. Kenny J in Fogarty, at para 44, said:
44 Although cl 5(a)(iv) of the 2000 SoP added little to the veteran's case, there is another feature of the 2000 SoP that may have been more favourable to him. The 2000 SoP expressly concerned "anxiety disorder" (as well as "death from anxiety disorder"). The term "anxiety disorder" was defined, in cl 2(b), as "the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9". Pursuant to cl 8, "generalised anxiety disorder" is defined in much the same terms as in the 1994 SoP, but the expression "anxiety disorder not otherwise specified" is new. This latter expression, which did not appear in the 1994 SoP, was defined in cl 8 of the 2000 SoP as "a psychiatric disorder with prominent anxiety ... that does not meet criteria for any specified anxiety disorder ... ". This definition raises the possibility that a claim may satisfy the description "anxiety disorder not otherwise specified" even though it does not satisfy the description of "a generalised anxiety disorder". In this case, the Tribunal's failure to consider this possibility may have materially affected its decision.
109. We must therefore consider whether the evidence before us, although not allowing us to find that Mr Burge suffers from a “generalised anxiety disorder” as defined in DSM IV or SoP No 1 of 2000, or from “anxiety due to a general medical condition”, as defined in SoP No. 1 of 2000, does allow us to be reasonably satisfied that Mr Burge suffers from an “anxiety disorder not otherwise specified” as defined in the SoP. That is to say we must consider whether he suffers “a psychiatric disorder with prominent anxiety…that does not meet criteria for any specified anxiety disorder”.
110. Both Dr Cole and Dr Gidley described Mr Burge as suffering from symptoms of anxiety. Dr Byrne did not use that description, but he too referred to Mr Burge suffering from some of the anxiety symptoms specified in the SoP in criterion C of the diagnostic criteria for “generalised anxiety disorder”, in particular agitation or tension, irritability and sleep problems. Although he himself did not diagnose an anxiety disorder, when he was asked, whether he thought Mr Burge currently had an anxiety disorder he replied (trans. p159):
Well, that could be argued either way. One could say, yes, he has symptoms of a generalised anxiety disorder. I would not agree with that view because in my opinion the symptoms are better accounted for by saying that they are the result of a brain injury. And that I believe is a more accurate description of it.
Later Dr Byrne stated that the question whether the changes resulted from brain injury (trans. p171):
. . . goes to the very edge of my own area of competence and I think the answer to that particular question is better sought from a neurologist than from me.
As set out in paragraph 104 of these reasons, the neurologists did not say that the personality changes were due to brain injury resulting from the stroke. All Professor Kilpatrick said was that she would not “totally discount that possibility”.
111. On Dr Cole’s evidence we are reasonably satisfied that Mr Burge does experience excessive anxiety or worry, to the extent that it can be characterised as a mild psychiatric disorder with prominent anxiety. We consider that Dr Byrne’s evidence is consistent with that finding. For the reasons set out in the preceding paragraphs, the psychiatric disorder does not meet the criteria for either of the other two possibly relevant anxiety disorders. There is no evidence that it meets the diagnostic criteria for “adjustment disorder with anxiety” or for “adjustment disorder with mixed anxiety and depressed mood”. We therefore are reasonably satisfied that Mr Burge suffers from a mild “anxiety disorder not otherwise specified” as defined in SoP 1 of 2000. We now turn to apply the steps laid down in Deledio.
STEP 1 – DOES THE MATERIAL POINT TO A HYPOTHESIS CONNECTING ANXIETY DISORDER WITH THE CIRCUMSTANCES OF SERVICE?
112. The material does point to a hypothesis connecting Mr Burge’s anxiety disorder with anxiety following his cerebellar haemorrhage, which we have found is a war-caused disease. Thus the requirements of McKenna v Repatriation Commission (1999) 86 FCR 144, 29 AAR 70 are satisfied
STEP 2 – IS THERE A RELEVANT SoP?
113. There is a relevant SoP which specifically covers “anxiety disorder not otherwise specified”. As stated earlier, it is No. 1 of 2000. It states in clause 2:
Kind of injury, disease or death
2. (a)This Statement of Principles is about anxiety disorder and death from anxiety disorder.
(b)For the purposes of this Statement of Principles, “anxiety disorder” is defined as the anxiety spectrum disorders of generalised anxiety disorder, or anxiety disorder due to a general medical condition, or anxiety disorder not otherwise specified, attracting ICD-10-AM code F06.4, F41.1, F41.8 or F41.9. This definition excludes the other anxiety spectrum disorders: post traumatic stress disorder, acute stress disorder, phobia, obsessive compulsive disorder, adjustment disorder with anxiety, panic disorder and agoraphobia.
STEP 3 – DOES THE HYPOTHESIS FIT THE “TEMPLATE” IN THE SoP, SO AS TO BE A REASONABLE HYPOTHESIS?
114. SoP No. 1 of 2000, so far as relevant, provides in clauses 4 and 5:
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting anxiety disorder .. . . with the circumstances of a person’s relevant service are:
(a)for generalised anxiety disorder or anxiety disorder not otherwise specified, only
. . .
(ii) experiencing a severe psychosocial stressor within the two years immediately before the clinical onset of anxiety disorder; or
. . .
(iv) having a major illness or injury within the two years immediately before the clinical onset of anxiety disorder;
115. The terms “major illness or injury” and “severe psychosocial stressor” are defined in the SoP as follows:
“major illness or injury” means a disease or injury that is life-threatening or seriously disabling;
. . .
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;
116. We find that there is material pointing to the brain haemorrhage, being a “major illness or injury” and a “severe psychosocial stressor”. It led to Mr Burge being taken to hospital by ambulance, after a weekend of symptoms of vertigo, vomiting and photophobia. Mr Burge was an inpatient from 23 February 1988 to 4 March 1988. Although he seems to have made a good recovery, except that he continues to suffer from vertigo, we find there is evidence pointing to the experience of suffering a cerebellar haemorrhage being an occurrence that “evokes feelings of substantial distress in an individual”. A stroke, Professor Myers said, is a significant event. Professor Kilpatrick was not asked to consider the meaning of the terms “major illness” or injury and “severe psychosocial stressor”. Dr Byrne said he had no doubt the stroke was a “stressful event”, which is the term used in the earlier SoP No. 48 of 1994, where it is defined as meaning “an occurrence which evokes feelings of anxiety and stress”. Dr Byrne said that in his opinion, the personality changes described to him by Mr and Mrs Burge were very likely to be due to the stroke, which Mr Burge had described to him as “terribly traumatic”. Dr Cole said that “a stroke is not a trivial illness, it is a potentially life-threatening illness” (trans. p197).
117. On Dr Cole and Dr Byrne’s evidence, we find there is evidence pointing to the stroke evoking feelings of substantial distress in Mr Burge and thus to him experiencing a “severe psychosocial stressor”, as defined, before the clinical onset of anxiety disorder. Accepting Dr Cole’s evidence that a stroke is life-threatening, there is also evidence pointing to Mr Burge having a “major illness or injury”, as defined.
118. The remaining question is whether there is evidence pointing to Mr Burge “experiencing a severe psychosocial stressor” or having a “major illness or injury”, “within the two years immediately before the clinical onset of anxiety disorder”.
119. The Full Court of the Federal Court in Lees approved of the meaning given to the term “clinical onset” by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 and by Branson J in Repatriation Commission v Cornelius [2002]FCA 750.. The meaning approved was as follows:
“.. . . there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...."
120. The Full Court also approved a passage from the reasons of Weinberg J in Gosewinckel, where his Honour said, at paragraphs 64 to 68 that there cannot be a clinical onset of a defined disease, unless all of the symptoms referred to in the description of the disease in the SoP are present.
121. The description of “anxiety disorder not otherwise specified” requires, so far as relevant to this matter, only “a psychiatric disorder with prominent anxiety, . . . that does not meet criteria for any [other] specified anxiety . . . disorder”.
122. In her evidence at the earlier AAT hearing, and in each of the histories, Mrs Burge described the onset of the relevant symptoms such as being on edge or agitated, being irritable and having sleep problems. She said those symptoms had occurred after the stroke or “bleed”. Dr Cole in his report of 13 May 2003 wrote that if one accepted Mrs Burge’s account, it could reasonably be argued that Mr Burge’s anxiety was due to a medical condition, by which he meant the stroke.
123. We find that Mrs Burge’s evidence and the histories she gave to the medical practitioners do, on Dr Cole’s evidence, point to Mr Burge ‘”experiencing a severe psychosocial stressor” and having a major illness or injury “within the two years immediately before the clinical onset of anxiety disorder”. We note that Dr Byrne’s report also contains material pointing to that conclusion. In paragraph 6.4 Dr Byrne reported that Mr Burge had told him that the haemorrhage “really got me going” and that it had been “terribly traumatic”. In paragraph 10.1 Dr Byrne recorded that Mrs Burge had said that Mr Burge “flares up easily since the haemorrhage”. Further, Dr Byrne obtained a history set out in paragraph 9.5 of his report dated 12 November 1999 that Mr Burge had suffered from numerous psychological problems “since the brain haemorrhage about 12 years ago”.
124. We recognise that neither Mr nor Mrs Burge said that the clinical onset of the anxiety symptoms was within two years of the stroke, but we understand the history they gave to have the meaning that the development of the relevant symptoms was shortly after the stroke. The tenor of the histories obtained from Mrs Burge is that the change in her husband’s symptoms was associated with the haemorrhage in her mind. Neither a doctor, nor Counsel at the first AAT hearing, asked Mrs Burge how long it was after the stroke, before the anxiety symptoms developed. We consider that to have been because it was understood from her evidence and from the histories she gave, that the changes followed soon after the stroke, and well within the required two year period.
125. We find that there is material pointing to factors 5(a)(ii) and (iv) in the SoP which allow the raising of a reasonable hypothesis connecting “anxiety disorder not otherwise specified” with Mr Burge’s service, through his service related cerebellar haemorrhage.
126. We find that the hypothesis linking Mr Burge’s “anxiety disorder not otherwise specified” with his war-caused cerebellar haemorrhage does meet the template in SoP No. 1 of 2000, and is therefore reasonable.
STEP 4 – IS THE FACTUAL FOUNDATION OF THE HYPOTHESIS DISPLACED BEYOND REASONABLE DOUBT?
127. There is no evidence which satisfies us beyond reasonable doubt that Mr Burge’s incapacity from anxiety disorder does not arise from a war-caused disease. Thus the claim in respect of anxiety disorder must succeed.
CONCLUSION
128. The decision under review will be varied to provide that cerebellar haemorrhage and anxiety disorder not otherwise specified are war-caused diseases. The matter will be remitted to the Repatriation Commission for assessment of the rate of pension payable.
I certify that the 128 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Miss E.A. Shanahan, MemberSigned: Nick Fletcher
AssociateDate/s of Hearing 10 April 2003
Date of Decision 12 November 2003
Counsel for the Applicant Nil
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Ms A McMahon
Solicitor for the Respondent Australian Government Solicitor
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