Chandler and Repatriation Commission - [2001] AATA 130

DECISION AND REASONS FOR DECISION [2001] AATA 130

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1321

VETERANS'      APPEALS      DIVISION         )
           Re      PERCIVAL CLARENCE CHANDLER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date21 February 2001
PlaceMelbourne

Decision The Tribunal varies the decision under review by finding that the applicant has a war-caused condition of generalised anxiety disorder and is entitled to a pension at 60 per cent of the general rate.

...….(Sgd) B. H. Pascoe..........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - whether conditions war-caused – chronic bronchitis, emphysema, bilateral macular degeneration and nervous condition – whether Statements of Principles met
Veterans' Entitlements Act 1986
Statements of Principles
Instrument No. 73 of 1997 concerning chronic bronchitis and emphysema
Instrument No. 29 of 1997 concerning macular degeneration
Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995 concerning generalised anxiety disorder

REASONS FOR DECISION

21 February 2001 Mr B. H. Pascoe, Senior Member

This is an application to review a decision of the Veterans' Review Board ("the VRB") which, on 28 September 1999, affirmed a decision of the respondent dated 23 October 1998 refusing a claim for emphysema and chronic bronchitis, bilateral macular degeneration and nervous condition as being war-caused.
At the hearing the applicant was represented by Mr G. Moore of counsel and the respondent by Ms J. McCulloch, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Mr Chandler; his wife; Dr L. Walton, psychiatrist, and Dr Ehrlich, an opthamologist. In addition, medical reports from Dr W. Gillies, an opthamologist; Dr E. Cole, a psychiatrist; and Dr D. Hart, a consultant respiratory physician, were tendered for the applicant. The respondent tendered the clinical notes of Dr G. Toohill, a general practitioner, a combined impairment assessment by Dr J. Morgan, a senior medical officer, and medical documents from records of the respondent and the Repatriation General Hospital.
Mr Chandler served in the Royal Australian Navy from 20 July 1942 to 27 October 1944. He was discharged as medically unfit with a perforated ear drum and otitis media. His period of service constituted eligible war service under section 6B of the Veterans' Entitlements Act 1986 ("the Act").
Mr Chandler was born in 1921. At age 15 he commenced an apprenticeship as a baker and pastry cook. He joined the navy as a cook at 21 years of age. After initial training he served on corvettes involved in convey escort duties for four months. Mr Chandler said that there were no attacks during this time although depth charges were dropped. He told the Tribunal that he then served on HMAS Australia for 15 months which was involved in eight amphibious landings in New Guinea. The landing area was shelled prior to landing and he was assigned to a four inch gun handing up the shells, either in the magazine or on deck. Japanese submarines were in the vicinity and, although Mr Chandler believed that HMAS Australia was a target, it was not hit. He saw HMAS Hobart hit killing approximately 20 seamen.
Mr Chandler said that his health had been good prior to enlistment. He had started smoking at age 19 and his consumption at enlistment was 20 "or a bit more" cigarettes per day. He said that this increased to 40 per day until his discharge because of the boredom and tension with cigarettes cheap and easily available. He was discharged because of his ear problems but said that he had coughing and breathing problems at that time. He had seen a doctor on HMAS Australia and on shore and was told to give up smoking. Mr Chandler said he reduced his smoking to around 30 cigarettes per day until he stopped in 1965 after being told that there was a shadow on his lung. In cross-examination he acknowledged that within two years of discharge his cigarette consumption was close to pre-enlistment levels. Previously, his general practitioner had diagnosed bronchitis and emphysema. Mr Chandler said that he retired at age 61 as he was not coping with breathing as the main problem. He moved to Echuca and purchased a small farm but still could not cope and, after moving into the town, later moved to Inverloch.
Mr Chandler said that he found difficulty in driving when living in Echuca particularly in areas of sun and shadow. Frequently he had to stop the car and ask his wife to drive. About the same time his long distance vision started to become blurry. He said that he gave up driving completely some three to four years ago. He believed that it was some three years ago that he was told that he had macular degeneration. Mr Chandler said that his currently lifestyle was distressing as he cannot go to the football or cricket, cannot play bowls, is unable to read and finds it difficult to watch television. He said that he does not mix with people these days and needs somebody with him to go out. At times he uses a cane. He does very little about the house, spending his time listening to radio and talking books.
Mr Chandler stated that, since the war, he has had "the shakes", been nervous and experienced nightmares, mainly relating to the war. He said that he is easily irritated and restless. He said that he rarely talked about the war other than to other ex-Navy people. In cross-examination he acknowledged that he did not think that he had been irritable years ago and this had developed more since his eyes became a problem.
Mrs Chandler gave evidence that she married Mr Chandler in 1959 and had known him for two years prior. She said that he smoked when they met and she had disapproved as being a "dirty habit". She believed that he smoked a packet of cigarettes at work each day and a further eight or nine cigarettes at home. She could not recall the level of smoking at weekends. Mrs Chandler said that Mr Chandler used to cough and bring up mucous when they first met and that the coughing and breathing problems were the main reasons for ceasing work in 1981. She believed that, by 1983, Mr Chandler was having difficulty with driving in conditions of light and shade. She said that he had seen an opthamologist some ten years ago but it was not until he was examined by Dr Gibson some three or four years ago that macular degeneration was diagnosed. Mr Chandler said that when she married Mr Chandler he was very nervous at times and restless in bed. Once or twice a week he would have disturbed sleep, with nightmares every few months where he said he was "saving her from the Japanese". Frequently, he had night sweats. She said that his irritability had become worse, particularly since his eye problems had started.
Dr Hart examined Mr Chandler on 16 March 2000 and provided a written report dated the same date. His opinion was that Mr Chandler has chronic bronchitis with associated chronic airflow obstruction and emphysema. He believed that this was the result of cigarette smoking between the ages of 18 and 44 with a possible contribution from his occupation as a pastry cook with heavy flour exposure. He thought that it was conceivable that chronically infected and discharging ears and mastoids had led to colonisation of his upper airway with organisms which may have contributed to a higher frequency of respiratory infection.
Dr Ehrlich had reviewed Mr Chandler on 4 February 2000 for bilateral macular degeneration. He noted developing cataracts. He believed that macular degeneration was the main cause of the visual deterioration. He said that the problems with contrasts of light and shade were typical of the condition and, if this was the only problem with no sign of cataracts, the likely diagnosis would be macular degeneration. Dr Ehrlich said that it was possible not to diagnose the condition if the patient had not presented with clear symptoms. However, he said that, when symptoms become obvious it is usual to be able to observe clinical changes.
Dr Gillies saw Mr Chandler shortly before providing a written report dated 6 April 2000. He believed that Mr Chandler was "…suffering from long standing age related macular degenerative change affecting both eyes" and that this "…was aggravated by the smoking which took place on and after war service". Dr Gillies noted that the condition did not become clinically apparent until 1990 but that it was "likely that it was present in a sub-clinical form long before Mr Chandler noted the clinical onset of the condition with a serious reduced visual acuity".
Dr Cole examined Mr Chandler on 8 February 2000 and provided a written report dated 28 February 2000. He was of the opinion that Mr Chandler is suffering from a chronic mild generalised anxiety disorder which was in evidence when he was discharged from the Navy and which has troubled him ever since. While certain symptoms were consistent with post traumatic stress disorder, Dr Cole doubted that Mr Chandler would meet the requirements of the relevant Statement of Principles ("SoP") for that disorder.
Dr Walton examined Mr Chandler on 4 April 2000 and provided a report dated 7 April 2000. He, also, considered that Mr Chandler exhibited a form of post traumatic syndrome as a direct consequence of his military experience but did not consider that he met the necessary criteria specified in the SoP for post traumatic stress disorder. Whilst Dr Walton considered that it was possible striking anxiety had not emerged until more recent years as a result of physical problems, he suspected that anxiety may well have been present since the war experiences and that Mr Chandler satisfied the criteria for a diagnosis of generalised anxiety disorder. He accepted the difficulties of obtaining a history with such a long gap in time and reports of symptoms being influenced by a person's state on a particular day. While Dr Walton accepted that he could not exclude other traumas in Mr Chandler's life, such as the break-up of his first marriage, he was comfortable with a clinical assessment of war-caused generalised anxiety disorder.
Section 120(3) of the Act requires the material before the Tribunal to raise a reasonable hypothesis connecting the conditions claimed with the circumstances of the veteran's operational service. Under section 120A, if there is in force a SoP issued by the Repatriation Medical Authority in relation to the condition, then the hypothesis is reasonable only if the relevant SoP upholds such hypothesis. The relevant SoPs here are those concerning chronic bronchitis and emphysema (Instrument No. 73 of 1997), generalised anxiety disorder (Instrument No. 48 of 1994 as amended by Instrument No. 275 of 1995) and macular degeneration (Instrument No. 29 of 1997). Each SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised.
For the applicant it was submitted that he satisfied factor 5(b) of the SoP for chronic bronchitis and emphysema. This factor states:
"(b) smoking at least ten pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; …"

A pack-year is defined as 7,300 cigarettes which is equivalent to 20 cigarettes per day. Similarly, the applicant relied on factor 5(a) of the SoP for macular degeneration which requires smoking at least 10 pack-years of cigarettes before the clinical onset but provides that, where smoking has ceased, clinical onset occurred within 20 years of cessation. It was submitted that the applicant suffered from generalised anxiety disorder and factor 1(b) of the relevant SoP was relied upon as "having experienced a stressful event not more than two years before the clinical onset".

For the respondent it was submitted that the applicant did not satisfy the relied upon factors for chronic bronchitis and emphysema or macular degeneration. It was argued that, as the applicant had commenced smoking prior to service, it could not be accepted that a consumption of 10 pack-years could be attributed to war service. Ms McCulloch submitted that, at best, an increased consumption of 20 cigarettes per day for, possibly, two years could be so attributed. In addition, it was submitted that the clinical onset of macular degeneration was in excess of 20 years from the date on which Mr Chandler ceased smoking. In relation to the claim for generalised anxiety disorder, it was submitted that Mr Chandler did not satisfy the definition of the disorder, particularly within two years of a stressful experience during war service. It was said that the evidence did not show that he suffered from "excessive anxiety" which he found "difficult to control", had not suffered from "irritability" except in recent years as a result of physical problems and did not suffer from "restlessness".
For the Tribunal to accept the claimed conditions as war-caused, it must be satisfied that a relevant factor of the SoP is satisfied and that the factor is attributable to war service. For chronic bronchitis and emphysema, the Tribunal needs to be satisfied that there is no sufficient ground to find that the smoking of 10 pack-years of cigarettes was not war-caused. The evidence shows that a consumption at that level occurred in any 10 year period between 1940 and 1965. However, the question to be answered is whether such a level of consumption can be attributed to war service. The evidence is clear that, at the time of joining the Navy, Mr Chandler was smoking at least 20 cigarettes per day. He said that this increased to 40 per day during service. However, the evidence showed that, soon after discharge, he reduced his consumption. The actual level of consumption thereafter is in doubt but it appears clear that it was at or near the pre-service level. To succeed in his claim, Mr Chandler needed to demonstrate that his consumption increased by 20 cigarettes per day as a result of service and that level of increase continued for ten years. I have no difficulty in finding, on the evidence, that this was not the position so that and the requirements of the SoP for chronic bronchitis and emphysema are not met.
Having made that finding, it means, also, that Mr Chandler does not satisfy the SoP for macular degeneration. As he does not satisfy the factor requiring the smoking of 10 pack-years, it is unnecessary to decide whether the clinical onset of the condition was within 20 years of ceasing smoking. The date of clinical onset is in doubt given that the formal diagnosis of the condition did not occur until approximately 1996, some 31 years after cessation. I accept that there were symptoms present, possibly as early as 1983. However, it is not necessary to make a finding as to the date of clinical onset.
The relevant definition of generalised anxiety disorder in the SoP describes the condition as:
"excessive anxiety and worry (apprehensive expectation) occurring more days than not for at least six months, about a number of events or activities which … the person finds difficult to control, and which is associated with … restlessness or feeling keyed up or on edge … irritability … sleep disturbance."

Whilst there must be some doubt that the condition of Mr Chandler within two years of his stressful experience during service included the requirements set out in the SoP, both psychiatrists who gave evidence for the hearing were prepared to accept that Mr Chandler did satisfy the requirements of the SoP. Taking into account the difficulties of obtaining a clear history when some 50 years has passed since the relevant time, the beneficial nature of the legislation and the opinions of Dr Cole and Dr Walton, I find that Mr Chandler does suffer from generalised anxiety disorder; he experienced a stressful event during war service not more than two years before the clinical onset and the condition is war-caused.

In assessing the appropriate impairment rating for the condition of generalised anxiety disorder the method is set out in the Guide to the Assessment of Rates of Veterans' Pensions ("the GARP") under Tables 4.1 to 4.8. Dr Cole assessed a final rating of 16 while Dr Walton arrived at a score of 8. Dr Bomford, a psychiatrist, saw Mr Chandler on 24 June 1998. In his report (T16) to the respondent he found no psychiatric complaint and assessed a psychiatric impairment as nil. Having made a finding that Mr Chandler is suffering from the condition it is necessary to assess the degree of impairment caused by the condition. It is clear, with the degree of doubt on the diagnosis and an understanding that the condition produces minor impairment, that a full impairment rating will be at a modest level. Having reviewed and compared the ratings of Dr Cole and Dr Walton, I am of the opinion that the assessment of Dr Cole under Tables 4.2, 4.4, 4.6, 4.7 and 4.8 is too high. The evidence does not indicate that this psychiatric condition has produced more than minimal, if any, effect on occupation, social interaction or leisure activities. Any effect on these has been the product of his physical conditions. He has not had nor requires any treatment other than some supportive treatment from his local medical officer. Manifest distress is, at best, sometimes apparent and noticeable to persons familiar with Mr Chandler. Consequently, I find that an appropriate assessment is that of Dr Walton being a score of 8.
Mr Chandler has previously accepted conditions of chronic otitis media and external (bilateral) with deafness and non-melanotic malignant neoplasms of the skin. Assessed impairment ratings are 10 (tinnitus), 9 (hearing loss), 5 (otitis) and 5 (skin disorder). Adding a further rating of 8 for his psychiatric condition produced a combined rating of 33 points which is rounded to 35. With a lifestyle average of 2, this produces a pension at 60 per cent of the general rate.
It follows that the decision under review should be varied by finding that the applicant has a war-caused condition of generalised anxiety disorder and is entitled to a pension at 60 per cent of the general rate.
I certify that the twenty-two (22) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  30 October 2000
Date of Decision  21 February 2001
Counsel for the Applicant        Mr G. Moore
Solicitor for the Applicant         De Marchi & Associates
Solicitor for the Respondent    Ms J. McCulloch, departmental advocate