Cahill and Repatriation Commission - [2000] AATA 815

DECISION AND REASONS FOR DECISION [2000] AATA 815

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/0267

VETERANS' APPEALS DIVISION          )
           Re      THOMAS CAHILL
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date13 September 2000
PlaceMelbourne

Decision The decision under review with respect to ischaemic heart disease and diabetes is affirmed; the injury 'anxiety disorder' is more properly described as post traumatic stress disorder, on the balance of probabilities the applicant suffers from it and it is connected with service; this part of the decision under review is set aside and in substitution it is decided that post traumatic stress disorder is war-caused; the application be remitted to the respondent for assessment of pension entitlement.

..……………………..
Senior Member

VETERANS' ENTITLEMENTS: Whether diagnosis of anxiety disorder appropriate; whether applicant suffers from post traumatic stress disorder; whether it is an appropriate diagnosis; whether SoP 15/1994 satisfied; decision in part set aside; application remitted to respondent to assess pension entitlement.

REASONS FOR DECISION

13 September 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans' Review Board made on 14 December 1998 which affirmed a decision previously made by the Repatriation Commission. The decisions under review concerned the refusal to accept the injuries or diseases of diabetes, anxiety disorder and ischaemic heart disease. The Veterans' Review Board also decided to affirm a decision previously made by the respondent to assess pension at 50% of the general rate with effect from 12 July 1995.
The Statement of Case filed by the applicant's solicitors prior to the commencement of the hearing recorded that the applicant was "not proceeding" with the conditions of ischaemic heart disease and diabetes.
Mr Cahill has the conditions of chronic tonsillitis, chronic pharyngitis, bilateral sensory neural hearing loss with tinnitus and peptic ulcer disease accepted as war-caused. He has the conditions of deviated nasal septum and duodenal ulcer rejected as war-caused.
Prior to the commencement of the hearing the respondent conceded entitlement to general rate pension at 90%. The issue essentially in dispute before the tribunal was whether the applicant suffered, on the balance of probabilities, the condition of Post Traumatic Stress Disorder. In addition it was submitted that if this condition was found to be war-caused and, by reason of the applicant then having a probable entitlement to 100% of general rate pension, that he would, also by reason of his age, be entitled to extreme disablement adjustment.
The entitlement to EDA, if any, will be referred to later in these reasons.
Mr Cahill is presently 79 years of age having been born on 29 October 1920. He served as a member of the Australian Army between 18 December 1941 and 17 April 1946. He served on 2 separate occasions in the South West Pacific mainly in New Guinea and in Bouganville. Shortly after enlistment he was ranked as a sergeant and later qualified as a staff sergeant. He said he was engaged in infantry in what he regarded as a "terrible and frightful effort".
Mr Cahill recalled an episode where he and a colleague had been resting. He said that his colleague walked a short distance but onto a land mine and was killed. He said on another occasion he and colleagues were under fire and observed a colleague shot and killed. Mr Cahill said he threw himself over a cliff to avoid fire and suffered injuries. He said he was admitted to hospital and transferred to a convalescent camp in Port Moresby and later, when undertaking rehabilitation in Medang, he contacted Dengue Fever.
Mr Cahill said that his war service was treacherous and he had not ever expected to be subjected to "this type of situation".
On return to Victoria he said he was distressed, unsettled, restless and agitated. He said he roamed throughout country Victoria and was – shortly after returning – suffering nightmares.
In 1953 Mr Cahill married and said that at that time he found it difficult to "contain" himself.
In recent years Mr Cahill said that his health has deteriorated and he has given up all sporting pursuits. He said that he is house bound, dependent on others for transport and that nothing interests him. He recalled attending Dr Cole, a consultant psychiatrist and said he gave him a history to the best of his ability.
With respect to lifestyle issues Mr Cahill said that he had had a fall recently and following discharge from a hospital in Broadmeadows he was provided with a 4 wheel walking frame by the Department of Veterans' Affairs. He said that he and his wife sleep separately because he has frequent nightmares where he thrashes and screams in his sleep. He said there was an occasion where he was flung out of bed and suffered injuries. He has been prescribed with Diazepan which relaxes him. He does not drive a car and is intolerant of noise and crowds. His house has been modified by provision of railing. He no longer attends the Pascoe Vale RSL as he did previously and has been unable to participate in reunions of his battalion. He said he is despondent that he is unable to leave his home and does not engage in any voluntary work or gardening. He said his stomach is frequently upset and he consumes Epsom Salts. He suffers a significant hearing loss and lip-reads. Mr Cahill said he suffers from noises in his ear which is irritating and causes him difficulty with sleeping. A new hearing aid had recently been fitted but was uncomfortable and he noticed that he was suffering ringing in his ear "daily and all the time". At night he listens to a radio when he attempts to sleep because he noticed that the ringing in his ear was louder.
In cross-examination Mr Cahill agreed that he had worked for 38 years in the timber industry but despite having differing employers he said this was a consequence of his employers either being taken over or merging with other timber industry members.
Upon return to Victoria Mr Cahill said he was able to sleep much more regularly than he has in recent years but said this was because he was distracted and because he was tired from having engaged in competitive sport. He said that he was then suffering "small nightmares".
In about 1980 Mr Cahill said that he was admitted to the Queen Victoria Hospital by his local General Practitioner because he had "gone blank in the mind" and it was intended that he "keep his mind balanced". Mr Cahill was admitted as an in-patient for 3 weeks and upon discharge he attended a hospital in Parkville as an outpatient over a period of 10 weeks on 2 occasions per week. Mr Cahill said he was then being treated for depression.
When he discussed his war service Mr Cahill said that he "never wanted to go into it" nor did he ever want to talk about it. He said he cannot "get it out of (his) mind" and that it distresses him daily. He said he feels as if he has no future nor does he have any life. Mr Cahill said that he is upset in the mornings when he wakes, usually from his nightmares and whilst he cannot recall detail other persons apparently notice his distress. On occasions he says he attempts to distract himself but often he finds this not possible.
With respect to his tinnitus he said that he inserts a finger in one of his ears when the ringing noise is loud and that he does not always have to use a radio prior to falling asleep.
With respect to his nightmares Mr Cahill said he suffers them on 2 or 3 nights of every week. He said he is often cranky and irritable and suffers pain in his head. He takes paracetamol for relief.
edward cole
Dr Cole is a consultant psychiatrist who examined Mr Cahill at the request of his solicitors on 16 February 2000.
Dr Cole was of the opinion that the applicant did suffer from Post Traumatic Stress Disorder and that it did have a relationship to his service. He said that he had a history from the applicant of being exposed to the anguish of a comrade being blown up by a land mine and another being shot by a sniper. He said the history given was of the applicant having to endure hot humid and often wet conditions where he was exposed to poor rations and the risk of disease. He said the applicant was a good historian with an accurate memory. He was satisfied that post traumatic stress disorder was the appropriate diagnosis because the applicant was restless after returning to Victoria, was easily startled, endured flashbacks, was anxious, suffered nightmares, called out in his sleep and despite being reluctant to talk about his service and being reminded of service the applicant met, he said, the DSM IV criteria for PTSD. On the balance of probabilities he was satisfied that PTSD was the appropriate diagnosis.
In cross examination Dr Cole was referred to an opinion expressed at page 25 of the T Documents by Dr Maginn who was in practice as a psychiatrist with the Repatriation Hospital. In a hand-written report dated 30 May 1985 Dr Maginn recorded:
"The veteran has no psychiatric disability. He gets despondent and bored with life but has no depression. He has devoted his life to his family and work and now that he has retired has no interests. He was advised to join the elderly citizens club and to look for either voluntary or paid part-time work."
Dr Cole was also referred to a report by Dr Trudy Kennedy a psychiatrist who examined Mr Cahill at the request of the respondent on 27 September 1995. Her report is found at page 40. In it she records in part:
"He states that his mood is good, that he is quite happy with everything. His sleep is good, his appetite is really good, he does not smoke, he occasionally drinks, he only has prescription drugs, he did not apply for any recognition of his injuries before because of his attitude to life which he feels has always been funny, constructive and happy."
Later in that report Dr Kennedy reported:
"He shows however no signs of thought disorder. He shows no sign of thought inclusion, disturbances of thought the content, perceivity phenomena, he has no disorder of perception, he has no significant cognitive deficits, he has no disturbance of mind."
When Dr Cole was asked to comment on the conclusions reached by Dr Kennedy and by Dr Maginn he said "you won't find evidence if you don't look for it". He said that it was his experience that veterans' are reluctant to talk about their war time experiences and that "you have to draw them out". He said he could not explain Dr Kennedy's history of the applicant having a good memory, good sleep and good appetite which was different to the history that he obtained.
Dr Cole was then given a copy of a report by Dr Walton a consultant psychiatrist engaged by the respondent. At page 3 of the report Dr Walton concluded that Mr Cahill "would not attract a diagnosis of Generalised Anxiety Disorder, Adjustment Disorder nor Post Traumatic Stress Disorder ……". Dr Cole said that he did not agree with that opinion and believed that the comments were not warranted. He believed that Dr Walton could "have explored his war time experiences a little more thoroughly". Dr Cole referred to his own report to explain the thorough history he had obtained and his persistence in obtaining a comprehensive history. He said symptoms are not spontaneously volunteered and vigilant enquiry needs to made. By reference to the lengthy and detailed history he did obtain Dr Cole said that it was unlikely that the applicant had developed PTSD in recent years and it was his experience that PTSD symptoms develop "almost immediately after trauma". When asked to comment upon the ability of the applicant to engage in sporting activity and be gainfully employed for 38 years Dr Cole said these features were more indicative of the severity of PTSD not whether it existed. It was his opinion that the affect of PTSD on the applicant was "mild to moderate". In re-examination Dr Cole said that Dr Maginn was a psychiatrist yet he noted that Mr Cahill was referred to him by Dr White, his treating General Practitioner. Dr Cole was impressed that Dr White had referred Mr Cahill for depression "and this suggests his GP who knew him well referred him for treatment". When he learned that the applicant had been treated at Queen Victoria Hospital and a hospital in Parkville for what was believed to be depression, Dr Cahill said that treatment "would reinforce my opinion. He was therefore being treated for a psychological disorder but can only speculate if he was treated for PTSD".
Dr Cole was taken through Instrument No. 15 of 1994 entitled "Post Traumatic Stress Disorder" which was the applicable statement of principle at the time Mr Cahill made his claim on the respondent. Dr Cole agreed that factor 1(a) was applicable and agreed that the applicant satisfied the definition of "experiencing a stressor" and the definition of "post traumatic stress disorder" as found at paragraph 4.
LESTOR WALTON
Dr Walton is a consultant psychiatrist who examined the applicant at the request of the respondent on 26 October 1999 and provided a report dated 7 December 1999.
Dr Walton said that the conclusions reached by Dr Kennedy in her report found at page 40 were consistent with the opinions of Dr Maginn and the opinions that he (Dr Walton) had expressed. With respect to the opinion expressed by Dr Maginn at page 25 he did not obtain a history from Mr Cahill that he had no interests when he retired and said that his understanding of the applicant's inactivity was more because of leg and physical problems rather than psychological problems.
When asked to comment on the applicable statement of principle Dr Walton said that the applicant would have satisfied some of the features required under the definitions of "experiencing a stressor" and "Post Traumatic Stress Disorder" found at paragraph 4 but not wholly. He (like Dr Cole) regarded the Post Traumatic Stress Disorder statement of principle as being unsatisfactory, indeed Dr Walton thought that the DSM IV definition was not satisfactory. He said that whilst he had the "overall impression" that the applicant has a "range of symptoms they were not of clinical severity".
Dr Walton said that he necessarily agreed that the applicant had not suffered PTSD "in recent years" because he did not believe that the applicant suffered from PTSD at all. He said he was aware that there were occasions where persons might suffer the delayed effects of trauma and manifest PTSD at some later time yet it was his experience that those cases occurred following exposure to some trivial trauma. It was his opinion that the applicant had no history of PTSD symptoms and that it was difficult to substantiate any recent PTSD at all even allowing for the applicant's ill health and the ill health of his wife.
In cross-examination Dr Walton said he was aware of the applicant's service history and denied that Mr Cahill had been reluctant to talk about it. He said the applicant was at ease during interview and dismissive of the effects of service upon him or it having any major emotional impact. He said that the applicant was restless after discharge yet the only history he had of prescribed medication was Mogadon to assist him to sleep in recent years. Dr Walton said that he disagreed with the opinions expressed by Dr Cole that the applicant suffered from insomnia whereas he thought that the inability of the applicant to sustain a sound sleep was because of the need for the applicant to frequently urinate by reason of his diabetes. When asked to comment as to whether the applicant had engaged in sporting activity "to hide a mild PTSD" Dr Walton thought that there "may be an element of denial" but he was not in a position to give an opinion. He said the applicant had told him that he did not avoid films of war but rather if he did watch such films it would be likely that he would suffer nightmares.
Dr Walton concluded that the applicant had "succumbed to discrete depressive episodes" and if he had ever had any PTSD it could have been aggravated by a decline in his recent health. He said the nightmares suffered by the applicant were consistent with PTSD however he thought most other symptoms were consistent with depression. He agreed that the applicant's reaction to the death of colleagues in service could satisfy some of the PTSD criteria under DSM 4 yet he was at a loss to explain the delay in manifestation of the reaction. Dr Walton was of the opinion that the applicant was an unreliable witness because of the differing accounts which had been given to him and to other doctors yet he said on what he had heard of the applicant's evidence "it appears that he has deteriorated".
In re-examination Dr Walton said that it was unlikely that the deceased had ever suffered from any PTSD which could be masked or concealed by sporting activity yet activity of that type would not have excluded any mild depressive symptoms.
conclusion and reasons for decision
I am satisfied that the applicant suffers from Post Traumatic Stress Disorder and am satisfied also on the probabilities that this is the appropriate diagnosis.
An examination of the documents filed prior to the hearing might have concluded that achieving this diagnosis would have been unlikely. The applicant's evidence however and his intimate yet graphic recollection of events has satisfied me that PTSD is the appropriate diagnosis.
The circumstances of service in New Guinea as the applicant described must have been frightening and devastating. To have endured the death of a colleague by a land mine explosion and the shooting of another colleague in sniper fire are events that in contemporary society are difficult to imagine. Yet the applicant's account of those circumstances and other events surrounding and within his service which despite them having occurred more than 50 years ago remain vivid and obviously enduring.
It was suggested that the applicant had not suffered PTSD because he was capable of 38 years of employment and active sporting pursuit. The inferences sought to be drawn were obvious yet as Dr Cole said in evidence the applicant's ability to engage in employment and sport was more likely to be referable to the level of symptoms from PTSD rather than the existence of PTSD at all.
The applicant clearly has had a history of some emotional or psychiatric illness if only by reference to the Repatriation Hospital records of 1985 found within the T Documents. Whilst Dr Maginn found that there was no psychiatric disability it is noted that the applicant was referred by Dr White, his treating GP, for depression and where the referring notes record the applicant as having expressed "there is nothing left in life for me".
I cannot reconcile the opinions expressed by Dr Kennedy at T13 with the evidence of the applicant at the hearing or the evidence of Drs Cole or Walton or the opinions expressed by them in their reports. Even allowing for the written opinion expressed by Dr Walton it was acknowledged by him in evidence that the applicant did satisfy some of the diagnostic criteria for PTSD as found within the statement of principle and that he had "succumbed" to depressive episodes. In fairness to Dr Kennedy it would appear that the applicant's health has deteriorated since the time of her consultation in 1995.
In conclusion I am satisfied on the evidence heard and by reference also to the diagnostic criteria for PTSD found within the statement of principle that at an objective and subjective level the applicant satisfies the criteria. If it is not already clear I am satisfied that factor 1(a) of the statement of principle exists as a minimum. It follows therefore that a reasonable hypothesis has been raised connecting PTSD with service.

Mr Hall who appeared on behalf of the applicant conceded that in the event that PTSD was found on the probabilities that Factor 1(a) would be satisfied. That concession is in the circumstances appropriate.
The remaining issue is that of assessment. Submissions were not made by either representative as to the impairment points that would be attracted in the event that PTSD was found. The respondent did concede an entitlement to 90% of general rate before the hearing commenced. It would be likely that the applicant would attract sufficient impairment points to give him an entitlement to 100% of general rate pension with PTSD being an accepted disability.
Whether than converts to an entitlement to extreme disablement adjust is a matter which in the circumstances I am satisfied should be remitted to the respondent for assessment.
Mr De Marchi submitted that there was enough information documented and obtained from the applicant in evidence to permit a finding of 70 impairment points and 6 lifestyle points sufficient to permit a finding of EDA. I do not agree.
There was no evidence to permit me to find tinnitus attracting 15 impairment points as he submitted – indeed the applicant's explanation for his partial relief of the effect of tinnitus were of a nature I had not ever heard of and I would in the circumstances be reluctant to conclude that tinnitus was of the severity as submitted in the absence of supporting medical evidence. Similarly whilst the respondent urged at the outset that it was difficult to assess lifestyle effects when allowance would have had to have been made for rejected disabilities and other disabilities or illnesses not ever claimed. There was no medical evidence which would permit me to either make allowances of this kind or to assist in determining whether allowances were appropriate at all.
In fairness to Mr Cahill he should be given the opportunity to adequately present his application to the respondent for extreme disablement adjustment with supporting evidence and/or comprehensive submissions. It is not appropriate that I should make findings in the absence of supporting evidence from appropriately qualified specialists. Despite Mr De Marchi's urging on me to make a conclusion as to EDA entitlement I am not in the circumstances prepared to speculate or to potentially reach conclusions which may not be in his client's interest.

I certify that the forty six (46) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:    Linda A Nemeth    ............................................
                 Secretary
Date of Hearing  24 August 2000
Date of Decision  13 September 2000
Solicitor for the Applicant         De Marchi & Associates
Counsel for the Respondent    Mr Allan Hall, Departmental Advocate