Byrne and Repatriation Commission
[2011] AATA 875
•9 December 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 875
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4872
VETERANS' APPEALS DIVISION ) Re MICHAEL BYRNE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier C Ermert (Retd), Member Date9 December 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
. . . . . . . . [signed]. . . . . . . . . . .
Member
VETERANS’ AFFAIRS – operational service in Vietnam – stressors – diagnosis of psychiatric condition – whether psychiatric condition war-caused – Statements of Principles ‑ satisfied beyond reasonable doubt that psychiatric condition not war-caused – decision affirmed
Veterans’ Entitlements Act 1986 s 9, s 120, s 120A, s 196A, s 196B
Benjamin v Repatriation Commission (2001) 70 ALD 622
Meehan v Repatriation Commission [2003] FCA 1371
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
REASONS FOR DECISION
9 December 2011 Brigadier C Ermert (Ret’d), Member 1. Mr Michael Byrne, the veteran, was born in 1948. He served in the Australian Army from 29 January 1969 to 28 January 1971. Mr Byrne had operational service in Vietnam from 26 November 1969 to 19 November 1970, serving in 102 Field Workshop located at Vung Tau.
2. Mr Byrne contends that during his operational service he experienced a number of incidents that caused him to fear for his life.
3. After his discharge from the Army, Mr Byrne had a very successful career in industry. He held a variety of responsible senior positions in Australia and overseas. Over the years he suffered headaches and nightmares. In December 2004 Mr Byrne began to realise he could not continue to work. In June 2005 he ceased work on the advice of his doctor. He sought treatment for his psychiatric conditions. He continues to receive treatment, albeit at a greatly reduced level. Mr Byrne contends that his psychiatric conditions are war-caused.
4. On 17 December 2007 Mr Byrne submitted a claim to the Repatriation Commission for anxiety and post traumatic stress disorder (PTSD). On 2 June 2008 a delegate of the Repatriation Commission determined that the appropriate diagnosis of Mr Byrne’s condition was depressive disorder but decided that the condition was not war-caused. Mr Byrne sought a review of that decision by the Veterans’ Review Board (VRB). On 14 October 2010 the VRB varied the diagnosis of the condition to major depressive disorder in remission but otherwise affirmed the decision. This matter is an application for review of the VRB decision.
THE HEARING
5. At the hearing, Mr C Thomson of counsel represented Mr Byrne. Mr G Purcell, of the Department of Veterans’ Affairs, represented the Commission. Mr Byrne gave evidence. The Tribunal also heard evidence from Mrs Byrne, Dr G Mathews, Dr L Walton and Dr A Velakoulis, consultant psychiatrists, and Mr T Stream, who was with Mr Byrne during his period of R&C leave in Vietnam.
6.
The Tribunal had before it the documents the respondent submitted pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The
T documents contained a report by Dr C Newlands, consultant psychiatrist, three reports by G. Mathews, a report by Dr A Velakoulis, and a letter by Dr C Mackey, clinical psychologist.
7. Mr Thomson tendered statements by Mr Byrne and Mr Stream. Mr Purcell tendered:
(a)two reports by Dr Walton;
(b)a report by Dr D Pye, Mr Byrne’s treating general practitioner;
(c)two reports from Writeway Research Services;
(d)the transcript of the VRB hearing;
(e)a Patient Health Summary from Myers Street Family Medical clinic;
(f)the clinical notes of Dr Mathews of 17 July 2006; and
(g) the clinical notes of Dr Velakoulis.
THE ISSUES
8. The Tribunal must determine:
(a)the appropriate diagnoses for the psychiatric conditions claimed by Mr Byrne; and
(b)whether the conditions are war-caused.
THE EVIDENCE
Mr Byrne
9. In his evidence, Mr Byrne described each of the incidents that caused him to be fearful while on operational service.
(a)On two to three nights, shortly after his arrival in Vietnam, Mr Byrne was woken by explosions. On the first occasion, he was terrified as he thought that the nearby American airbase was being attacked. He learned subsequently that the explosions were from bombs being dropped by American aeroplanes on the Long Hai mountains approximately 18 kilometres distant (the bombing incident).
(b)On New Year’s Eve Mr Byrne heard machine gun fire coming from the main gate of the base. The following day he learned from others that an Australian soldier returning from leave had been accidentally shot and killed (the shooting incident).
(c)One night while hurrying to return to base from Vung Tau township, Mr Byrne accepted a lift from a man on a motorcycle. The man took him to a house in the shanty part of town that was being used as a brothel. Mr Byrne ran away. The man on the motorcycle caught up with him. Mr Byrne saw that the man had something in his hand that looked to him like a sharpened screwdriver. Fearing for his life, Mr Byrne pushed over the motorcycle and ran away again. The man on the motorcycle again caught up with him and indicated that Mr Byrne should get on the pillion seat, which he did. The man then proceeded to take Mr Byrne back to the base (the motorcycle incident).
(d)One night, while he was on picket duty, Mr Byrne saw a man acting suspiciously and carrying a box. He concluded it was one of the intruders about whom he had been warned. Mr Byrne aimed his rifle at the man but decided not to shoot, as the intruder appeared to be stealing goods rather than posing a military threat (the picket incident).
(e)During his five-day period of R&C leave, Mr Byrne and another soldier from his unit hitched a ride in an American helicopter to an American base at Quan Loi, where they stayed for a few nights. On one night Mr Byrne was a passenger in a helicopter on a mission from that base. Part of the mission involved the dropping of parachute flares. An American captain, who was drunk at the time, appeared to be trying to pull the ring at the top of a flare. This action could have set the flare off inside the helicopter, thereby posing a grave risk to all aboard. An American crewman averted the danger by taking the flare and showing the captain how to launch the flares correctly and safely (the helicopter incident).
10. Mr Byrne said that on his return to Australia he was not able to settle down. After receiving a telephone call from his American friend, he made a spur of the moment decision to go to the United States. While there, he telephoned his then girlfriend and asked her to join him in America. They married on 1 January 1972. Mr Byrne’s employment took them to Europe, back to Australia and then to Canada. In 1986, while in Canada, he started suffering from nightmares that related mainly to the motorcycle incident. In 1989 he started suffering from headaches, for which he was referred to a neurologist.
11. By 2004 Mr Byrne was the Chief Executive Officer of a successful franchising company. By December of that year Mr Byrne was having many nightmares and losing a lot of sleep. In December Mr Byrne received a call from a colleague who expressed an empathy with him over some business issues confronting Mr Byrne at the time. Mr Byrne said he broke down into tears during this call. After the call, he realised that he was no longer capable of doing his job. His health then improved after the Christmas break.
12. In February 2005, while attending a dinner, Mr Byrne found that he could not eat. He had a headache and drove back to Geelong feeling very ill. Next morning he went to his general practitioner who advised him to stop working immediately. Mr Byrne ceased his employment at the end of June 2005, and has not worked since.
Dr Mathews
13. In his oral evidence, Dr Mathews was asked about the three reports he has provided in this matter: his report dated 8 January 2007 (T5, page 46), 30 May 2008 (T9, page 74) and 6 March 2009 (T11, page 87).
14. Dr Mathews said that in his first two reports he expressed his opinion that Mr Byrne suffered no traumatic events while in Vietnam and that he would not support Mr Byrne’s claim that his psychiatric conditions were in any way related to the events in Vietnam. However, following a discussion with Dr Mackey, a psychologist who had seen Mr Byrne, Dr Mathews changed his mind over his diagnosis of Mr Byrne’s condition. He said that his third report reflects his current opinion. In that report (T11, page 88) he states:
I am now of the view that his depression activated a long standing and repressed post traumatic stress disorder which continues to smoulder to the present time despite the fact that his depression has been cleared for some considerable time.
...Mr Byrne continues to suffer from a chronic trauma-related condition that currently falls on the borders of post traumatic stress disorder.
... I feel it is time to change my clinical opinion as to the significance and severity of this mans (sic) Vietnam experiences on the subsequent development of depressive illness and trauma-related stress syndromes.
Dr Mathews stated his present opinion that Mr Byrne suffers from PTSD.
15. Under cross-examination, Dr Mathews said that at the time of writing his third report he was aware of Mr Byrne’s application to the Commission. He also said that he was aware that his report would be influential to the outcome of that application. He said that he had a conversation with Dr Mackey sometime between August and November 2008 and that he received Dr Mackey’s letter dated 3 December 2008 (T12, page 91) in December 2008.
16. Mr Purcell referred Dr Mathews to his letter dated 9 January 2009 and addressed to Dr Mackey (Exhibit R7, page 88), in which he had written:
... an updated overview medical report from your good self is coming my way in the near future to facilitate my restructuring of his medical report and backing of ongoing post traumatic stress disorder/adjustment disorder/depressive illness: all interrelated.
... as the situation with Michael’s finances has changed to the point where a pension has become rather more urgent than previously considered.
17. Mr Purcell asked Dr Mathews whether his report was a way of taking the pressure off Mr Byrne. Dr Mathews said it was. When Mr Purcell asserted that it did not look as though the report would be an independent opinion, rather it would be sympathetic to Mr Byrne’s financial situation, Dr Mathews said that the purpose of the letter was only to hasten the response from Dr Mackey.
Dr Walton
18. Dr Walton was referred to his reports dated 6 June 2011 (Exhibit R1) and 27 September 2011 (Exhibit R2). He described Mr Byrne as straightforward in giving his history. Dr Walton said that Mr Byrne sounded quite depressed during 2004 and 2005. However, he is now very much improved with a normal sleep pattern and infrequent bouts of depression. Dr Walton was of the opinion that none of the incidents Mr Byrne experienced reached the threshold of stress levels required for a diagnosis of PTSD. Dr Walton said that the motorcycle incident was described as the most stressful for Mr Byrne. He said that Mr Byrne was temporarily afraid but that he was ultimately safe. Mr Byrne had misinterpreted the intentions of the rider. When asked about Mr Byrne’s condition during 2004-05, Dr Walton said it was depression. He added that insomnia commonly occurs in parallel with depression.
19. Mr Thomson put to Dr Walton that Mr Byrne was fearful, that he ran for his life, that he perceived himself to be under serious threat from the screwdriver-wielding man and that he felt his life was in danger. Dr Walton opined that Mr Byrne was unhappy and in some discomfort. He said that there was no question Mr Byrne was afraid but his emotions did not reach the level of severe or intense fear. He said that Mr Byrne’s feelings could not be divorced from the outcome that within minutes he was offered and accepted a lift back to camp by the same man. Dr Walton said that, in his opinion, there needs to be an objective threat, not a misinterpretation of a threat, to meet the requirements of the Statement of Principles (SoP) on PTSD.
Dr Velakoulis
20. In his oral evidence, Dr Velakoulis confirmed his diagnosis of Mr Byrne’s condition as chronic PTSD of moderate severity, attributable to his military service in Vietnam. He said that Mr Byrne had no diagnosable symptoms before 1986 and had no treatment before 2005. Dr Velakoulis said that Mr Byrne’s elevated anxiety levels in 2005 together with the symptoms of PTSD, which were bubbling in the background, led to his depression at that time. Dr Velakoulis opined that Mr Byrne also suffers from depression, which is now in full remission. He attributed the remission to the removal of life stressors and the treatment Mr Byrne has had.
21. Dr Velakoulis said that Mr Byrne may also suffer from alexithymia, which he described as a difficulty in monitoring one’s own emotional tone. When asked for clarification of this condition, Dr Velakoulis described alexithymia as a descriptive term rather than a diagnosis of a condition.
22. Dr Velakoulis said that Mr Byrne’s work related stresses, including a legal issue, were the reasons for his seeing his general practitioner in 2005. He said that at the time Mr Byrne had florid depression.
23. Under cross-examination, Dr Velakoulis agreed that at the time of seeing Mr Byrne he had available the report of Dr Newlands and the first two reports from Dr Mathews. When asked if he had read the reports carefully, Dr Velakoulis said that he would have perused them. He said also that he had not investigated Mr Byrne’s headaches.
24. Mr Purcell asked Dr Velakoulis whether the sections of his report shown in bold type and quotation marks were actual quotes of Mr Byrne. Dr Velakoulis said that they were a summary of his own notes taken during his examination of Mr Byrne.
Mr Stream
25. Mr Stream confirmed that he served in the same unit as Mr Byrne in Vietnam and that he accompanied Mr Byrne on the helicopter trip undertaken during their R&C leave.
26. Mr Stream said that Mr Byrne had contacted him about two years ago, to touch base. During the conversation, Mr Byrne had said that he was not travelling too well and that he was having a terrible time. Mr Stream understood this to mean that his health was not good. Mr Stream initially said they did not discuss their time in Vietnam. However, under cross-examination he agreed that he would have talked about their R&C leave. Mr Stream said Mr Byrne contacted him again in about June this year. He said that Mr Byrne said his life had gone pear shaped and that he wanted Mr Stream to be a witness for him in his application.
27. In describing their R&C leave trip, Mr Stream said that they had reported in to the R&C Centre in Vung Tau and then immediately gone to the airfield looking for a ride in an American helicopter. He said over the next few days they flew to many places in Vietnam but he could not recall their names. He said they stayed in a different place each night. He remembered the night they stayed at Quan Loi because they slept in an underground bunker and that during the night there was ongoing artillery shelling coming into the base and being fired out of the base.
28. Mr Stream recollected Mr Byrne going out on a mission in a helicopter, which took off late at night and came back about dawn. He remembered Mr Byrne coming back into the bunker petrified, all clammy and sweaty and saying something along the lines that he had seen a lot of action. Mr Stream said that he did not go on the mission with Mr Byrne as his tour of duty in Vietnam had almost finished and he did not want to take the risk. Mr Stream said that on their return to Vung Tau they went back to the R&C Centre to check out before returning to their unit lines.
Mr Byrne’s Further Evidence
29. In his further evidence, Mr Byrne said that he did not remember going to the Vung Tau R&C Centre to check in and out. He also did not remember any incoming shelling at the Quan Loi base, although there may have been outgoing artillery fire. Neither did he remember an underground bunker. He said that there might have been an excavation in their sleeping area. Mr Byrne said that Mr Stream was wrong in his evidence about a telephone conversation two years ago. Mr Byrne said that he had only one conversation with Mr Stream, that being approximately one year ago, and they had not spoken about their Army life.
30. Mr Purcell questioned Mr Byrne about the different histories of the motorcycle incident recorded by the psychiatrists. Mr Byrne said that he recounted the same history to all but he had no control over what they wrote in their reports.
Mrs Byrne
31. Mrs Byrne said that she met Mr Byrne when she was 16 years old. At the time Mr Byrne was conscripted into the Army they were going out together. They communicated by mail while he was in Vietnam. On his return from Vietnam, although he said he enjoyed his tour of duty, Mr Byrne was unsettled. They broke off their relationship soon after his return. Mrs Byrne said that he wanted to get married but she was not yet ready. She said that following a telephone call from Mr Byrne, she joined him in America and they married in January 1972.
32. Mrs Byrne said that he was always a bad sleeper, with nightmares and sleepwalking. She said his nightmares would occur about monthly at first but occurred on and off over the years. They settled down in the later years. Mrs Byrne was not aware of the content of his dreams. The only thing he said to her was that someone was chasing him.
33. Mrs Byrne agreed that Mr Byrne had a stellar business career and said that Mr Byrne’s hobby was his work. Mrs Byrne said she was shocked when Mr Byrne suffered his symptoms in December 2004. To this day, she does not know what triggered his meltdown. He had headaches and was very unwell but continued to push himself. Mrs Byrne said she was worried about the possibility of a brain tumour. She said Mr Byrne took a long time to stop missing his work after he stopped working, as he had no hobbies.
SUBMISSIONS
Mr Thomson
34. Mr Thomson submitted that Mr Byrne suffered from two psychiatric conditions, PTSD and depressive disorder. He contends that Mr Byrne’s PTSD resulted from the incidents in Vietnam. The most significant was the motorcycle incident. Mr Thomson said that the other incidents caused trauma but not to the extent of the motorcycle incident.
35. Mr Thomson submitted that Mr Byrne was troubled by the motorcycle incident and that he felt guilty that he had not handled the situation like a soldier. He said that Mr Byrne was ashamed as his condition demonstrated that he had been terrified but not in combat. Mr Thomson contended that this incident had a major impact on Mr Byrne’s psyche and that the shame explains the reservation Mr Byrne displayed in admitting that he had a problem. Mr Byrne was still reluctant to talk about the incident, even to doctors.
36. Mr Thomson submitted that Mr Byrne had suppressed his condition until 2004, when he broke down on receiving an empathetic telephone call from his predecessor in the company. Mr Thomson said that this was a trivial trigger for Mr Byrne’s breakdown but after that call Mr Byrne could no longer keep his emotions in check and realised that he was no longer capable of doing his job.
37. Mr Thomson summarised the other evidence before the Tribunal. He said that Dr Walton did not dispute that the symptoms of PTSD were present in Mr Byrne but he did not find evidence of the intense fear, helplessness or horror required by the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR). Dr Walton said that this was an issue for the Tribunal to determine.
38. Mr Thomson submitted that it was very difficult for Dr Mathews to change his opinion and that he had done so only after probing further into the motorcycle incident. Dr Mathews had undertaken this task on the prompting of Dr Mackey, a psychologist who had seen Mr Byrne. Mr Thomson submitted that Dr Mathews changed his mind after finding a rational explanation for Mr Byrne’s condition.
39. Mr Thomson also referred to the evidence of Dr Velakoulis, who described Mr Byrne’s intense fear at the motorcycle and the helicopter incidents, and had diagnosed PTSD and depressive disorder. Mr Thomson said that Mr Stream had confirmed Mr Byrne’s trip to Quan Loi and that Mr Byrne had been petrified on his return from the night flight. Mr Thomson said that Mrs Byrne confirmed Mr Byrne’s sleeping difficulties soon after his return from Vietnam and afterwards. She said that Mr Byrne loved his job and that she became concerned about his ability to concentrate.
40. On the issue of identifying Mr Byrne’s conditions, Mr Thomson contended that the Tribunal was in a better position to determine his condition than the doctors were. This is because the Tribunal had observed Mr Byrne in stressful circumstances for two days compared to the one-hour sessions of the doctors. He referred the Tribunal to the decision of the Federal Court in Repatriation Commission v Codd [2005] FCA 888, in particular to paragraph 29:
Before anything else, the Tribunal must find to its “reasonable satisfaction” that a disease exists; Repatriation Commission v Budworth [2001] FCA 1421; (2001) FCR 200 at [14] – [15]. It is not confined to considering only those diseases or conditions contended for by one or other party before it, and should not test the existence of a postulated disease by reference to any SoP while conducting this first inquiry; see Benjamin at [48] – [50]. At this first stage it is necessary to determine whether the veteran has a “collection of relevant symptoms”, and not the “nomenclature or ... traditional medical label” that may be used to describe them; Budworth at [19]
41. Mr Thomson submitted that after determining the diagnosis of Mr Byrne’s condition, the Tribunal must apply the reasoning prescribed by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. Mr Thomson submitted that there was a hypothesis connecting Mr Byrne’s condition with the incidents in Vietnam during which he was in fear of his life. Instrument No 2 of 2008, the SoP relating to PTSD, is in force. Mr Thomson contended that Mr Byrne’s condition fits the template of the SoP. Accordingly, the Tribunal cannot be satisfied beyond reasonable doubt that the hypothesis is unreasonable, and must find that Mr Byrne’s PTSD is war‑caused. Mr Thomson also submitted that Mr Byrne’s depressive disorder arose from his PTSD and is therefore also war-caused.
42. In his further submissions, Mr Thomson referred the Tribunal to section 119 of the Veterans’ Entitlement Act 1986 (the Act), which provides that the decision maker is not bound by any rules of evidence, that it can inform itself in such manner as it thinks just and take into account the passages of time. Mr Thomson said that Mr Byrne was scrupulous in his oral evidence, that the incidents were frightening for him to a traumatic intensity, and that he had been in fear of his life. Mr Thomson reiterated the evidence of Dr Mathews that Mr Byrne had smouldering PTSD that he had tried to shut out for 35 years.
Mr Purcell
43. Mr Purcell submitted that Mr Byrne’s credibility was an issue in this case. He handed up to the Tribunal a compilation of references to documents before the Tribunal and sections of the transcript of the proceedings. From the detail contained in the compilation document, Mr Purcell referred the Tribunal to variations in the descriptions of the incidents in Vietnam given by Mr Byrne. He contended that these inconsistencies showed a pattern of escalation in the description of the traumatic nature of the incidents and that they were illustrative of Mr Byrne’s credibility.
44. Mr Purcell referred to the decision of the Federal Court in Meehan v Repatriation Commission [2003] FCA 1371. Jacobson J referred to a decision of the Full Court in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 74 ALD 68, in which the court said at [60] that it was concerned by the repeated instances of unreliable material put forward by the applicant in support of his claim. The reasons for decision in Meehan contain the following extract from the Tribunal’s decision:
32. The tribunal observed that any material put forward by the Applicant to corroborate his symptoms was corroborated only in medical opinions based on the history provided by the Applicant.
33. The tribunal’s ultimate finding was stated in [65] as follows:
The tribunal finds that the credibility problems that were integral to Mr Meehan’s evidence, and to material on which others based their evidence, rendered that material of little use as evidence.
The Tribunal’s finding was upheld by His Honour.
45. Mr Purcell referred to the third report by Dr Mathews, in which he reported his changed opinion. Mr Purcell contended that the Tribunal should give no weight to this report or the evidence given by Dr Mathews as the change of opinion was made in collaboration with Dr Mackey, in order to influence the Commission because:
... the situation with Michael’s finances has changed to the point where a pension has become rather more urgent than previously considered (Exhibit R7, page 88).
46. Mr Purcell noted that the report by Dr Velakoulis came as the result of request by the RSL advocates acting for Mr Byrne and not at the request of a doctor. Mr Purcell submitted that expert evidence should be neutral and not be advocacy for one of the parties. Mr Purcell drew the Tribunal’s attention to the variations in the histories of the incidents recorded by Dr Velakoulis and those recorded by the other doctors. He also noted that Dr Velakoulis did not investigate Mr Byrne’s headaches, even though the headaches were the central issue in Mr Byrne’s condition in 2005. Mr Purcell said that these considerations should affect the weight given to the evidence of Dr Velakoulis.
47. Mr Purcell submitted that the Tribunal should accept the report of Dr Newlands as being a faithful record of the incidents. He reiterated his submission that the third report of Dr Mathews was written for questionable reasons. Mr Purcell stated that Dr Walton’s diagnosis should be accepted, as he was not involved in treating Mr Byrne, he is experienced in these matters and there are no obvious errors of fact in his reports or his evidence.
48. Of the other witnesses, Mr Purcell submitted that the evidence of Mr Stream should carry little weight, as his recollections were unconvincing. Mr Purcell said that Mrs Byrne was worried about her husband’s headaches and the dangers they posed while he was driving his car.
49. In his submissions regarding the diagnosis, Mr Purcell said that the diagnosis of PTSD is not only for doctors. The Tribunal needs to determine the facts that are part of the medical diagnosis.
50. Mr Purcell’s concluding submission was that it was highly improbable that Mr Byrne’s meltdown could be caused by one incident in Vietnam.
51. Mr Purcell referred also to section 119 of the Act and contended that it could not be used as padding in the absence of evidence.
WHAT ARE THE DIAGNOSES OF THE CONDITIONS?
52. The Tribunal’s first task is to determine the appropriate diagnoses for the conditions claimed by Mr Byrne. The standard of proof is to the Tribunal’s reasonable satisfaction: Repatriation Commission v Budworth (2001) 116 FCR 200; Repatriation Commission v Cooke (1998) 90 FCR 307; and Repatriation Commission v Gosewinckel (1999) 59 ALD 690. Consistent with these cases, in Benjamin v Repatriation Commission (2001) 70 ALD 622 the Full Court of the Federal Court stated at 634:
When the commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision-maker, in accordance with s 120(4) of the Act …
53. In this case, Mr Byrne’s conditions have been examined and diagnoses provided by four psychiatrists: Dr Newlands, Dr Mathews, Dr Velakoulis and Dr Walton.
54. Dr Newlands saw Mr Byrne on 14 June 2005 and 28 June 2005 for the purpose of providing a report to the Commission. In her report (T4), Dr Newlands diagnosed his condition as a major depressive illness, with co-morbid anxiety and some panic features. She set the date of onset around February 2005, noting that until that time Mr Byrne had been functioning well. Dr Newlands wrote:
In listening to Mr Byrne’s account, I do not believe that there is a relationship between his service and his development of symptoms now. Likewise, I do not believe that there is a relationship between any event before or after his service. I do not believe that there was an aggravation of a pre-existing condition. My reason for this, is that at no time, did Mr Byrne feel particularly traumatized during his time in Vietnam. ... he himself did not feel traumatized by these events. As such I do not believe he fulfils the necessary criteria for sub-category A of Post Traumatic Stress Disorder.
With regard to the possibility of his having a Major Depression or even his anxiety related to his service in Vietnam, there would be a need for his symptoms to have commenced within 2 years of a specific trauma. That does not appear to be the case in this particular situation.
55. Dr Mathews has seen Mr Byrne as a patient since 30 January 2006, following a referral from Mr Byrne’s general practitioner, Dr Pye. In his first report, dated 8 January 2007 (T5), Dr Mathews wrote that in 2005 Mr Byrne suffered a:
Major Depressive Disorder which, at its earliest manifestation, provoked a Generalized Anxiety State and Panic Disorder. ...
The major depressive disorder Mr Byrne suffered from the beginning of 2005 altered his thinking, perception, memory, sleep, and cognition to the point where he became obsessed with previous experiences in Vietnam which, of themselves, were not severe enough to provoke either a post traumatic stress disorder or a major depressive disorder within him. ...
There would appear to have been no obvious provoking factors for this depressive illness but one has to hypothesise that his personality combined with his workload to cause significant stress and increasing sleep deprivation which may have provoked or at least initiated a process of illness within him thereafter. ...
Mr Byrne’s current psychiatric state is one of good health as he is in total remission or Major Depressive Illness and continues on treatment for the rest of this year.
56. In his second report, dated 30 May 2008 (T9), Dr Mathews noted that his previous report concurred with Dr Newlands’ formulation of major depressive illness, which had been developing from late 2004. In describing Mr Byrne’s condition in late 2004 Dr Mathews wrote:
Mr Byrne began to develop symptoms by late 2004. These presented as worsening headaches, increasing anxiety, emerging cognitive compromise, and deepening depression to the point where he eventually reduced and thereafter ceased working several months later on the advice of his GP.
It was only when major depressive illness was causing him severe compromise that he became profoundly preoccupied, even obsessed, with his experiences in Vietnam. He read about the Vietnam War widely and became involved in issues relating to the events of that time. ...
In the two years that I have been involved in treating Mr Byrne for depressive illness there has never been any mention of a clear link between that time in Vietnam where he was threatened by a civilian on a motorbike and the development of stress-related anxiety and depression in 2005.
Although Mr Byrne now states that his recent psychiatric condition arose as a result of this specific incident in Vietnam I cannot say that I could agree with this proposition at any level whatsoever.
I have discussed this incident with Mr Byrne on several occasions and have never been impressed by the fact that he was severely upset by what happened – nor did he suffer any psychiatric consequence thereafter as a result of that incident. ...
I have advised Mr Byrne that I will not be supporting his claim that his major depression with co-morbid anxiety and panic episodes is any way related to the time he spent on active service in Vietnam thirty years previously.
57. In his third report, dated 6 March 2009 (T11), however, Dr Mathews wrote :
... I am now of the view that his depression activated long standing and repressed post traumatic stress disorder which continues to smoulder to the present time despite the fact that his depression has been cleared for some considerable time ...
... Mr Byrne continues to suffer from a chronic trauma-related condition that currently falls on the borders of post traumatic stress disorder ...
My revised opinion would have me state that Mr Byrne suffered from a Major Depressive Illness between 2004 and late 2006 with recovery taking place throughout 2007.
His depressive illness of 2004-2007 provoked a post traumatic stress disorder of sorts which laid latent within him for decades since his experiences in Vietnam in the late sixties.
58.In his report dated 14 July 2010 (T15), Dr Velakoulis wrote:
Based on the criteria outlined in the ‘Diagnostic and Statistical Manual of Mental Disorders, Edition 4 (DSM 4)’ the veteran meets the criteria for Chronic Post Traumatic Stress Disorder of Moderate severity that seems primarily attributable to his military service in Vietnam. [Emphasis in original.]
59. Dr Velakoulis stated that Mr Byrne also currently meets the criteria for Major Depressive Disorder – Full Remission. Dr Velakoulis also opined that Mr Byrne may suffer from alexithymia. However, in his oral evidence he said that alexithymia was a descriptive term rather than a diagnosis.
60. In his first report dated 6 June 2011 (Exhibit R1), Dr Walton wrote:
This veteran could not qualify for any diagnosis of a depressive disorder at present simply on the basis that lowered mood is only brief and now very infrequent indeed.
... as best I can judge, a diagnosis of post-traumatic stress disorder cannot be made because the threshold question is not met, that is, objectively it would appear that none of the incidents which Mr Byrne reported could be described as meaningfully life threatening and neither does he report a subjective response which amounts to intense fear, helplessness or horror.
... I would cite the date of clinical onset of the depressive condition as 2004.
61. In his second report, dated 27 September 2011, Dr Walton reiterated his earlier opinion that a diagnosis of PTSD cannot be made because none of the incidents could be described as meaningfully life-threatening. In addition, Mr Byrne did not report a response that amounted to intense fear, helplessness or horror. Dr Walton conceded that a depressive condition may have been diagnosable as at 2004 but noted that the condition would not be compensable as the date of clinical onset was in 2004.
CONSIDERATION OF DIAGNOSIS
62. From the reports of the psychiatrists, the Tribunal has before it diagnoses of major depressive illness, with co-morbid anxiety and some panic features, a chronic trauma-related condition that currently falls on the borders of PTSD, chronic PTSD of moderate severity, major depressive disorder in full remission, and no depressive disorder at present. The Tribunal notes that these diagnoses are variations of two conditions, PTSD and depressive disorder. The Tribunal will consider first the condition of PTSD.
63. There are two diagnoses of PTSD, one by Dr Velakoulis, and a revised opinion by Dr Mathews. Dr Velakoulis saw Mr Byrne in January and March 2010. The history of the stressful incidents on which he based his diagnosis is shown in the bold font sections of his report. Dr Velakoulis said that, although the sections are shown within quotation marks, they are in fact an adaptation of his notes taken at the time of seeing Mr Byrne. Regarding the bombing incident, Dr Velakoulis records I was shit scared ... I thought we were being rocketed. In regard to the motorcycle incident Dr Velakoulis records Emotionally I couldn’t breath (sic), anxious for my life ... He pulled out a screwdriver ... I was fearful. Regarding the helicopter incident, Dr Velakoulis records... I was fearful for my life ... I could go down.
64. This history is in contrast to that recorded by Dr Newlands about the bombing incident:
When asked he stated that he did not feel any particular terror at this time, but it was just the knowledge that there was a war zone which seemed to be evident.
The history taken by Dr Newlands about the motorcycle incident was that Mr Byrne was concerned, as he did not know where he was. Of the helicopter incident, Dr Newlands records that Mr Byrne recalled finding it a most exciting time.
65. In his first two reports, Dr Mathews did not record a history of the bombing incident. Of the motorcycle incident, Dr Mathews recorded that Mr Byrne was frightened but not to the point of being traumatized with psychiatric consequence. Of the helicopter incident, Dr Mathews recorded Mr Byrne …requesting to fly on bombing raids with American servicemen which he enjoyed and found exciting, but never upset him to the point of being stressed.
66. Dr Velakoulis said that he had the reports of Drs Newlands and Mathews prior to examining Mr Byrne. When asked whether he had read the reports he said that he would have perused them but did not examine them carefully. When asked about Mr Byrne’s headaches, Dr Velakoulis said that he did not investigate them.
67. The histories of stressful incidents are a critical consideration in the diagnosis of stress-related conditions. In the opinion of the Tribunal, differences in the histories such as those recorded by Drs Newlands and Mathews and those taken by Dr Velakoulis require some explanation. In this case, it appears that Dr Velakoulis was not sufficiently aware of the differences in the histories to do other than accept the history given by Mr Byrne at the time of his examination. It is also surprising that Dr Velakoulis did not investigate Mr Byrne’s headaches, despite headaches being an accepted indicator of stress-related conditions. The Tribunal considers these shortcomings in the examination of Mr Byrne to be sufficient to reduce the weight the Tribunal attaches to the opinions of Dr Velakoulis.
68. The other diagnosis of PTSD comes from Dr Mathews. This is recorded in his third report, produced some nine months after his second report. In his oral evidence, Dr Mathews confirmed his current diagnosis of PTSD. In his testimony, Dr Mathews said that a letter from Dr Mackey (T12) and discussions with Dr Mackey had caused him to change his earlier diagnosis of depression to PTSD.
69. Under cross-examination, Mr Purcell referred Dr Mathews to a letter he had written to Dr Mackey on 9 January 2009 (Exhibit R7, page 88). In that letter Dr Mathews had written:
...I believe this history along with an updated overview medical report from your good self is coming my way in the near future to facilitate my restructuring of his medical report and backing of ongoing post traumatic stress disorder/adjustment disorder/depressive illness: all interrelated.
I’d be very grateful if this could be sent to me as soon as possible, Chris, as the situation with Michael’s finances has changed to the point where a pension has become rather more urgent than previously considered.
70. In answers to questions from Mr Purcell, Dr Mathews agreed that at the time of writing his report he was aware of Mr Byrne’s application and that his revised report would be influential in that application. Dr Mathews said also that the restructuring of his report was influenced by the need for Mr Byrne to get a pension and that this was a way of taking the pressure off Mr Byrne.
71. The evidence of Dr Mathews indicates that his change of diagnosis to PTSD was influenced to some extent by the perceived need for Mr Byrne to get a pension due to his financial situation. The Tribunal considers that a person’s financial situation should play no part in the diagnosis of their condition, unless there is evidence that the difficult financial situation played a part in their psychiatric condition. There is no such evidence in this case. The Tribunal considers Dr Mathews’ motivation in this case is a major flaw in the diagnosis he has espoused in his third report. Accordingly, the Tribunal considerably reduces the weight it gives to the evidence of Dr Mathews and the opinions expressed in his third report.
72. The Tribunal has unequivocal opinions from Dr Newlands and Dr Walton that Mr Byrne does not suffer from PTSD. Dr Mathews gave complementary opinions in his first two reports. Although the Tribunal has contrary opinions from Dr Velakoulis and from Dr Mathews in his third report, the Tribunal attaches less weight to those opinions for the reasons given above. The Tribunal is satisfied on the balance of probabilities that Mr Byrne does not suffer from PTSD and finds accordingly.
73. The other conditions to be considered are major depressive illness, with co‑morbid anxiety and some panic features, major depressive disorder in full remission, and no depressive disorder at present. Each of the psychiatrists consulted in this case agrees that Mr Byrne suffered a depressive disorder in late 2004 and 2005. There is some disagreement about whether Mr Byrne still suffers from the condition. Dr Walton’s opinion (Exhibit R1) is that Mr Byrne:
...could not qualify for any diagnosis of a depressive disorder at present simply on the basis that lowered mood is only brief and now very infrequent indeed. It is possible that when his symptoms were more severe and when he was prompted to seek medical assistance around 2004 he may have attracted such a diagnosis validly at that time.
74. Prior to his change of opinion, Dr Mathews wrote in his second report I reiterate that in my opinion Mr Byrne has been suffering from a Major Depressive Illness from late 2004.... In his third report, Dr Mathews wrote that Mr Byrne ...continues to remain free of symptoms of major clinical depression. The Tribunal notes, however, that Dr Mathews continues to treat Mr Byrne to the present time.
75. In his written report, confirmed in his oral evidence, Dr Velakoulis considers Mr Byrne meets the criteria for Major Depressive Disorder in full remission.
76. It is common opinion that Mr Byrne no longer exhibits symptoms of a depressive illness. Dr Mathews and Dr Velakoulis attributed this to the effectiveness of his treatment and his medication. Nevertheless, Mr Byrne remains under Dr Mathews’ treatment. On the evidence, the Tribunal is satisfied on the balance of probabilities that Mr Byrne suffers from major depressive disorder in full remission, and it finds accordingly.
77. Mr Thomson urged the Tribunal to apply to the diagnoses of Mr Byrne’s psychiatric conditions its own observations of Mr Byrne over the period of the hearing. The Tribunal has no expertise in the area of psychiatric conditions and does not presume to draw any conclusions from its observations. In this case, Mr Byrne has been examined by a number of highly qualified psychiatrists, all of whom have provided considered reports for the benefit of the Tribunal’s decision-making. This Tribunal has considered their reports and evidence and reached its finding as described above.
78. Mr Purcell submitted that the Tribunal should determine the facts of the incidents as a part of the medical diagnosis. In this case, while some details of the incidents vary in their description and recording, the real issue is not the incidents themselves but Mr Byrne’s reactions to the incidents. It is this Tribunal’s opinion that it is for experienced psychiatrists to explore reactions to stressful events, as they have done in this case.
IS MR BYRNE’S PSYCHIATRIC CONDITION WAR-CAUSED?
79. The next task for the Tribunal is to consider and determine whether Mr Byrne’s diagnosed psychiatric condition is war-caused.
80. Section 9 of the Act considers the question of whether an injury or disease is war-caused.
(1)Subject to this section and section 9A, 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;
…
81. There is no dispute Mr Byrne had operational service as defined in the Act. Thus, the question of whether his claimed condition is war‑caused is to be determined by applying s 120(1) and s 120(3) of the Act. Those sections provide that:
(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.
82. Section 120A of the Act provides that, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has determined an SoP in respect of a particular kind of injury or disease, the reasonableness of a hypothesis is to be assessed by reference to that SoP. Section 120A(3) provides that:
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
83. Section 196A of the Act provides for the establishment of the RMA. Section 196B(2) of the Act provides that:
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
…
(ca) warlike or non-warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
…
84. The reference in s 196B(2) of the Act to a particular kind of injury, disease or death being related to service is expounded in s196B(14) of the Act. Section 196B(14) provides that:
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
85. Where a condition is the subject of an SoP, the Tribunal must apply the test prescribed by s 120A(3) of the Act, in the following manner (as set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98):
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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
Adopting the Deledio line of reasoning, the Tribunal considered whether Mr Byrne’s psychiatric condition was war-caused.
Step 1 – Does the material point to a hypothesis connecting the veteran’s Psychiatric Condition with his operational service?
86. The hypothesis advanced on behalf of Mr Byrne is that the stressful events he experienced during his operational service led to the onset of his psychiatric condition. Mr Byrne testified to experiencing a number of incidents during his service in Vietnam during which he was terrified and feared for his life. Dr Mathews and Dr Velakoulis testified that Mr Byrne’s psychiatric condition was linked to the incidents in Vietnam. The evidence presented is sufficient to satisfy the Tribunal there is material that points to the hypothesis connecting Mr Byrne’s psychiatric condition to his operational service.
Step 2 – Is there an SoP in force which deals with the relevant condition?
87. The Tribunal has found the relevant condition is depressive disorder, albeit that it is currently in remission. Instrument No 27 of 2008 is the SoP that deals with depressive disorder and is in force.
Step 3 – Does the hypothesis fit the template of the SoP?
88. Before it can be said that the hypothesis is reasonable it must contain one or more of the factors that the RMA has determined to be the minimum that must exist and be related to the person’s service. In this case, the only factors which could be relevant are 6(a)(ii) and 6(a)(iii) which state:
(ii)experiencing a category 1A stressor within the five years before the clinical onset of depressive disorder; or
(iii)experiencing a category 1B stressor within the five years before the clinical onset of depressive disorder.
89. Both factors require the stressors to have been experienced within five years before the clinical onset of the condition. There is a unanimity of evidence that the clinical onset of Mr Byrne’s psychiatric condition was in late 2004. As this date is considerably more than five years after the incidents Mr Byrne claimed were the cause of his condition, it is clear that neither of the relevant factors can be satisfied.
90. Accordingly, the Tribunal finds that in this case the hypothesis does not fit the template of the relevant SoP. In accordance with the reasoning in Deledio, the Tribunal finds that the hypothesis is not reasonable. The Tribunal does not need to proceed to the fourth stage of the reasoning in Deledio. As a consequence, the Tribunal is satisfied beyond reasonable doubt that Mr Byrne’s psychiatric condition is not war‑caused.
DECISION
91. The Tribunal affirms the decision under review.
I certify that the ninety-one [91] preceding paragraphs are a true copy of the reasons for the decision herein of:
Brigadier C Ermert, (Retd) MemberSigned: ...............................[signed].........................................
Clerk Y MakerDates of Hearing 24 and 25 October 2011, 23 November 2011
Date of Decision 9 December 2011
Counsel for the Applicant Mr C Thomson
Solicitor for the Applicant Williams Winter Solicitors
Counsel for the Respondent Mr G Purcell
Advocate for the Respondent Department of Veterans’ Affairs
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