Colman and Repatriation Commission
[2005] AATA 74
•14 January 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 74
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1313 N2003/1616
VETERANS APPEALS DIVISION ) Re RICHARD COLMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal P.J. Lindsay, Senior Member Date14 January 2005
PlaceSydney
Decision The decisions under review in respect of chronic bronchitis with chronic airflow limitation (N2002/1313) and depressive disorder (N2003/1616) are affirmed.
……………………… P J Lindsay, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – first reviewable decision concerns chronic airflow limitation – applicant’s smoking not related to service – decision affirmed - second reviewable decision concerns psychiatric condition and impotence - diagnoses of adjustment disorder and depressive disorder – whether conditions connected with service – decision affirmed
Veterans’ Entitlements Act 1986 ss.120(1), 120(3), 120(4), 120A, 196
Repatriation Medical Authority Statements of Principles:
- Instrument No. 58 of 1996 concerning Adjustment Disorder
- Instrument Nos. 30 & 31 of 2004 concerning Chronic Bronchitis and Emphysema
- Instrument No. 73 & 74 of 1997 concerning Chronic Bronchitis and Emphysema (revoked)
- Instrument No. 58 & 59 of 1998 concerning Depressive Disorder
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Tuite (1993) 29 ALD 609
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Deledio (1998) 83 FCR
Repatriation Commission v Hill (2003) 69 ALD 581
Benjamin v Repatriation Commission (2001) 34 AAR 270
Repatriation Commission v Smith (1987) 74 ALR 537
Repatriation Commission v Budworth (2001) 66 ALD 285
REASONS FOR DECISION
P.J. Lindsay, Senior Member 1. Richard Colman has applied under the Veterans’ Entitlements Act 1986 (the Act) to the Administrative Appeals Tribunal for review of two decisions by the Repatriation Commission:
·N2002/1313 being a decision dated 24 November 2000 to refuse Mr Colman’s claim for pension in respect of the condition ‘shortness of breath’.
·N2003/1616 being the decision dated 22 May 2003 refusing his claim for pension in respect of the condition ‘adjustment disorder and impotence’.
2. At the hearing, Mr Colman was represented by Mr B Winship, solicitor, and the respondent by its advocate Mr N Bunn from the Department of Veterans’ Affairs. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Act 1975 (T documents) and the exhibits tendered at the hearing.
background
3. Mr Colman is 50. He served in the Royal Australian Navy from 11 July 1970, when he joined HMAS Leeuwin as a Junior Recruit, and was discharged on 15 September 2000 in the rank of lieutenant when he transferred to the Royal Australian Naval Reserve. He had operational service in HMAS Vampire from 21 November 1972 to 26 November 1972, and eligible Defence Service from 7 December 1972. In the course of the hearing he gave evidence as to service in East Timor, a period suggested by Mr Winship as operational service; no documentary evidence has been put before the tribunal in support of that contention.
4. (N2002/1313) On 6 October 2000 he lodged a claim for disability pension for a number of conditions including shortness of breath. The Commission accepted the claim for bilateral sensori-neural hearing loss, but it rejected the other conditions, including shortness of breath. Of relevance, the condition ‘shortness of breath’ was rejected on the basis that medical evidence, including a spirometry report from Douglas Hanly Moir Pathology, showed the condition not to be present (Ta2 in the T documents in this proceeding). Mr Colman’s appeal to the Veterans Review Board in relation to shortness of breath was unsuccessful, as was a claim for chondromalacia patellae of the right knee. However, the Board accepted his claim in relation to lumbar spondylosis and tenosynovitis of the left ankle.
5. On 5 September 2002, Mr Colman lodged an application for review of the decision by the tribunal. The Statement of Facts and Contentions subsequently submitted to the tribunal by Mr Winship contended that the condition of ‘shortness of breath’ should more appropriately be described as ‘chronic bronchitis with chronic airflow limitation’, as recorded in 2000 during eligible defence service, it being due to a long history of smoking tobacco. The parties agree that Mr Colman suffers from chronic bronchitis with mild airflow limitation, but the Commission denies that there is a connection between that condition and Mr Colman’s service. Mr Winship also confirmed that claims for other conditions were being withdrawn.
6. The respondent referred Mr Colman to Associate Professor A B X Breslin, consultant thoracic physician, who reported on 19 December 2002 that the applicant has chronic bronchitis with mild airflow limitation (exhibit A1 in N02/1313). In opening, Mr Winship submitted that the smoking history of Mr Colman was “negligible” prior to his entrance into the Navy, whereafter it increased substantially to the level of a habit, contributed to by operational service in Vietnam and other stressful experiences or incidents, where it continues to the present. Mr Winship referred to Mr Colman’s Defence Medical Records wherein at pages 97, 108 and 125 during his eligible defence service, there are references to coughs and sputum or phlegm, the latter entry in August 1979 also referring to a possible diagnosis of bronchitis.
7. (N2003/1616) Mr Colman lodged a separate claim on 5 November 2002 in relation to the conditions, adjustment disorder and impotence. The Commission rejected both claims because it was not satisfied that the conditions were related to either his period of operational service or his eligible defence service. Mr Colman consulted Dr K Koller, psychiatrist, on 5 March 2003. Dr Koller reported on 7 March 2003 that the applicant suffers from adjustment disorder. Dr Koller explained that adjustment disorder “ … refers to the development of emotional/behavioural symptoms in response to an identifiable stress. In his case the stress derives from painful knees and an ankle the result of injury whilst serving in the RAN”. (Tb6 in the T documents in N2003/1616). In Dr Koller’s opinion:
Such was the decline in his physical functioning and attendant concern, he appreciated he was no longer able to accept the responsibilities of a seaman officer. “My job was to keep the ship safe.” So he resigned.
Thus his role and status in life was negatively compromised. Fully intending to pursue a career in the RAN this now became impossible. Leaving the Navy meant anxiety about his marriage and his ability to support his wife and household.
Such loss of status and role led to anxiety and depression and this in turn contributed to an intensification of his symptoms. In other words, negative emotion heightens the perception of pain.(Ta6)
The Board affirmed the Commission’s decision finding that Mr Colman had not suffered a psychosocial stressor as required by the relevant Statement of Principles concerning Adjustment Disorder (SoP 58 of 1996). In considering the matter, the Board had before it the claim form, completed by Mr Colman’s advocate, which stated (Tb5):
(Adjustment disorder – aware from 1988) causally related to coping with daily pain, loss of mobility and restriction of movement, and difficulty in personal relationships.
(Impotence – onset 1992) causally related to mood swings, anxiety and depression adjusting to daily pain, restriction of movement and loss of mobility from lumbar spondylosis
8. The applicant’s solicitors referred him to Dr A Dinnen, consultant psychiatrist, who prepared a report dated 12 February 2004 (exhibit A1 in N03/1616). Dr Dinnen came to a diagnosis of ongoing depressive disorder.
9. The Commission obtained reports from Dr J Roberts, consultant forensic psychiatrist. In his report dated 21 January 2004, and confirmed by his subsequent report of 15 April 2004 (exhibits R1 and R2 in N03/1616) Dr Roberts concluded that Mr Colman did not suffer from any psychiatric disorder.
10. Mr Winship submitted in the Statement of Facts and Contentions dated 1 July 2004 that the appropriate diagnosis of the psychiatric condition should be ‘depressive disorder’ rather than adjustment disorder, and the condition of impotence resulted from that ongoing depressive disorder. Mr Winship confirmed this position at the commencement of the hearing, accepting that the question of diagnosis was a “live issue”. This was agreed by Mr Bunn, who further accepted for the Department that if Mr Colman was successful on either of the two psychiatric conditions, the condition of impotence would be conceded. The tribunal noted that concession.The respondent maintains that the applicant does not suffer from any psychiatric disorder.
11. Mr Winship submitted that the applicant would rely on the period in Vietnam during operational service and three incidents during the eligible defence service period. Mr Winship suggested that Mr Colman’s service in East Timor may prove to be operational service. He also suggested that Mr Bunn was in agreement with his view that if Mr Colman had landed in East Timor in 1999, (which Mr Colman subsequently stated in oral evidence) it would be considered operational service. Nonetheless, confirmation from the Department of Defence would be necessary. There is no evidence before the tribunal that such confirmation has been forthcoming. In referring to stressful incidents during Mr Colman’s service at sea, Mr Winship submitted that such service over a 30 year period caused a degree of vulnerability to a depressive disorder, and that he would be relying on the factor relating to the experiencing of severe psycho social stress or stressors within the relevant period before the clinical onset of the condition, as prescribed in the relevant SoPs. He submitted that such clinical onset occurred in 1989 or 1990, after a period of service in HMAS Success.
applicable legislation
12. Mr Colman’s claims for disability pension must be considered in respect of both a 6 day period of operational service and a period of eligible defence service from 7 December 1972 until his discharge on 15 September 2000. The standard of proof in respect of causation of a war-caused disease in the former period is that prescribed by s.120(1) of the Act. The tribunal must determine, pursuant to s.120(1), that conditions for which a diagnosis may be made were war caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The tribunal will be so satisfied if of the view that the material before it does not raise a reasonable hypothesis connecting a condition with the circumstances of his naval service pursuant to s.120(3) of the Act. As the claims were lodged after 1 June 1994, s.120A of the Act applies in that the tribunal must assess the reasonableness of an hypothesis in accordance with Statements of Principles (SoP) determined by the Repatriation Medical Authority pursuant to s.196 of the Act.
13. In this matter, and in respect of operational service, SoP 73 of 1997 is relevant for chronic bronchitis, although that SoP was replaced by SoP 30 of 2004 on 7 October 2004, which is after the Commission’s decision. The tribunal notes that that the Full Federal Court in Repatriation Commission v Gorton (2001) ALD 609 held that while the tribunal must apply the SoP in force at the time of its decision, the applicant retains an accrued right to rely on the SoP in force when the Commission determined the matter, should that SoP be more beneficial. SoP 58 of 1998 for depressive disorder is applicable.
14. The standard of proof in respect of causation of a disease in the period of eligible defence service is that prescribed under s.120(4), wherein when making a determination to which ss.(1) and (3) do not apply, the Tribunal shall decide such matters “to its reasonable satisfaction”. The relevant SoPs in this instance are 31 of 2004 for chronic bronchitis revoking SoP 74 of 1997 from 7 October 2004 and 59 of 1998 for depressive disorder.
evidence
15. Mr Colman’s evidence was that he smoked his first cigarette at 13. His parents smoked as did an older sister. He said he was aping his parents. He also said there was peer pressure to smoke. By that he meant that he smoked because his group of friends smoked. Because he did not have much money while at school, he could go some months without smoking cigarettes but then if he and friends had cigarettes, he would smoke a lot. But he disputed the history recorded by Dr Breslin that by age 15½ he was smoking around six cigarettes a day. He allowed, however, that he would on occasions smoke six cigarettes a day.
16. On joining the Navy, he was posted to the Junior Recruit training establishment in Fremantle, HMAS Leeuwin in Western Australia. He was one of around 200 recruits aged 15½ to16½. He said the opportunity to smoke was very limited, because smoking was not allowed in classrooms or in accommodation blocks. When asked why he smoked during his recruit training period he said that it was much the same reason as before: peer pressure and everyone in his group was doing it. He also said that smoking relieved the stress of being an adolescent from Sydney, posted to Western Australia and living in a dormitory with a great number of recruits around his age. His evidence was that he received little money, most of his pay being banked. There was not much available for the purchase of tobacco or cigarettes, which could be readily bought from the canteen at a cheaper price than elsewhere.
17. Whilst at Leeuwin, Mr Colman was selected for an officer candidate course, entailing a further six months training. He was not successful at the subsequent selection board, which he attributed mainly to immaturity, but some 16 years later, he was indeed promoted to commissioned officer rank.
18. On completion of his recruit training Mr Colman undertook his category course in meteorology, which encompassed qualifying as a navigating officer’s yeoman (assistant). In that capacity he was posted to Vampire, being embarked in that ship during an operational visit in company with HMAS Sydney to Vietnam (21 to 26 November 1972).He said it was Vampire’s role to escort Sydney into Vung Tau harbour while it was at anchor there. He said he felt apprehensive. His brother, who was in the Army, had served in Vietnam and been injured there. He also said that he felt exhilaration.
19. Mr Colman described the period at anchor in Vung Tau harbour as bedlam. For a few periods of two hours at a time, he was stationed at the upper deck of Vampire armed with a rifle. He fired the rifle frequently at suspicious objects floating in the river. He said he was expected to do this work so he just got on and did it. On a number of occasions, Vampire escorted Sydney out of Vung Tau harbour to anchorages off the coast where they would remain at night. This required the ship to manoeuvre in the Saigon River and he felt particularly vulnerable as they did this manoeuvring work.
20. He said there was little opportunity to smoke while he was in Vung Tau harbour because smoking was not permitted on the upper deck, nor while he was back doing his work on the bridge as part of the navigation team. He did have a couple of cigarettes while there and he thought smoking did relieve the stress.
21. He said he was “shit scared” in Vietnam, and the explosions, and bullets and bedlam made him realise he was in danger. His romantic reason for enlisting in Navy, being to visit to exotic, foreign locations left him at this point. He said he does not discuss Vietnam very much, not even with his brother although he had spoken with his first wife, who he married not long after that deployment, and probably his non-service friends. Mr Colman stated that he regularly thought about, and occasionally dreamed about, incidents in his naval career, some of which he could picture vividly. When asked did he dream about Vietnam, he said “not so much” but he could vividly recall what he did during the ship’s operations off Vung Tau and he has a vivid recollection of the jungle, the colours and the activities in the river.
22. After Vietnam, his ship visited Japan. At that stage he thought he started to smoke and drink more for relaxation, and by the time ship returned to Australia some four months later he was smoking full-time, about 20 cigarettes a day. By that time he was also able to drink at sea, having turned 18.
23. In 1988, Mr Colman was promoted to commissioned rank as a seaman officer. In early 1989 he was serving in HMAS Success as a sublieutenant, when that ship encountered a number of bodies in the sea. He stated he was responsible for manoeuvring the ship to pick up 14 bodies over a two day period. He described the bodies as like “lumps of soap”, decomposing and tending to break up as they were recovered, and a “disturbing “ sight, leaving him with a vivid memory which he sees regularly in his mind. Although he had seen other corpses, he had not previously seen decomposing human bodies that had been floating in the sea for many days. He said that it made him realise his vulnerability as sailor when he encountered others at sea who had died.
24. While he was serving as the Executive Officer in HMAS Betano, a landing craft heavy, his role was to act as a navigator and as personnel officer to the crew of approximately 20. He recalled an assignment when Betano was in Cairns for training. During a single month they were hit by two cyclones. Previously he had not been scared of bad weather but on these occasions he was extremely worried about someone on the vessel being injured. The cyclones caused structural cracks to the Betano and loss of equipment. He said he did worry about the vessel sinking.
25. The third severe psychosocial stressor referred to by Mr Winship was the landing by Mr Colman in East Timor sometime in 1999. Mr Colman was then serving in HMAS Manoora, and he described being seconded to a Danish merchant ship, Arctis Atlantic, for liaison duties. That ship was apparently chartered to transport army equipment from Darwin to Dili, the role of Mr Colman being to ensure the ship could proceed safely through the exclusion zone around East Timor to berth at Dili. During the transit, the ship was overflown by military aircraft a couple of times each day, but no incidents occurred. On arrival, Mr Colman disembarked, and after some hours was able to get to the airport in an escorted UN vehicle for the return flight to Darwin. While there, he said he was “shit scared” because he was unarmed, was carrying a briefcase with naval codes and was not wearing camouflage gear. This made him feel like a target. There were many Australian Army personnel around who were armed and he felt that he was the only person there who was not armed. He also saw Indonesian soldiers. Enroute the vehicle was stopped at various Australian manned checkpoints. As earlier noted there is no evidence before the tribunal that this deployment is defined as operational service.
26. In September 2000, Mr Colman completed full-time service and transferred to the naval reserves. He presently does not undertake any reserve duties or training because of his academic pursuits. He completed his naval service because “ I no longer could do the job I wanted to do and that was go to sea”. Prior to his discharge, Mr Colman said that he started to question his ability to do his job as an officer at watch. He said that these duties can require standing for many hours. His painful hip and back, ankle, bad knees and hearing impairment caused his performance on the job to suffer. He felt that he was not doing his job properly. At this time he was still smoking around twenty or more cigarettes a day. He said that nowadays he suffers from shortness of breath and is unable to jog but he may smoke 20-25 cigarettes in a day.
27. Mr Colman stated that he was in his third year of full-time university study for an arts honours degree, majoring in painting, history and archaeology. He is presently involved in divorce proceedings with his second wife. He described his health problems as normally coughing all day, with shortness of breath climbing stairs. He can no longer jog or run. As regards chest problems during his naval service, he thought that he got coughs and colds as often as most people, this often in his view being caused by air conditioning. As to his future plans on completion of his degree, he does not think he is fit enough to specialise in physical archaeology, but a post graduate degree would give him the opportunity to undertake museum work and the activities associated with after-excavation work.
28. In his claim for adjustment disorder lodged on 5 November 2002, Mr Colman indicated that he first became aware of the symptoms in 1988. In oral evidence, he attributed this to his promotion to commissioned rank, when he had to review his outlook on his responsibilities, taking more account of interrelations with sailors and responsibilities for those crew members. He confirmed that he had referred himself to a psychiatrist in the early to mid 1990s, as recorded by Dr Roberts in his first report of 21 January 2004, when he had sleep problems probably caused through nightmares or anxiety. Those sleep problems continue to the present.
medical evidence
29. Bronchitis (N2002/1313)The full Defence medical records of Mr Colman (Exhibit R1) contain references to coughs and sputum or phlegm at pages 97, 108 and 125 as referred to by Mr Winship, these occurring in May 1997, April 2000 and August 1979 respectively. No evidence was presented in respect of any other entries in the Medical Records, but the tribunal notes other occasional references to slight productive coughs. An extract from the clinical notes of Dr K Desai, general practitioner, (Exhibit R2) seemingly referring to an examination at about the time the claim was submitted, notes “chronic bronchitis and emphysema” and “SOB on exertion, climbing flights of stairs or jogging, not on any bronchodilators. SOB for last 3-4 years, getting worse. Gets occasional cough with sputum production.” There is no indication that medication was prescribed for any of these conditions.
30. At the request of the Department, Associate Professor A B X Breslin saw Mr Colman on 18 December 2002. Professor Breslin records (exhibit A1) that Mr Colman smoked about 6 cigarettes a day from the age of 13 until joining the Navy at 15½, a figure denied by Mr Colman in oral evidence. He records that Mr Colman has had a cough for 10 years, accompanied by some minimal yellow sputum. He diagnoses mild chronic bronchitis with airflow limitation, due to a history of smoking. He considers the onset to be about 1992, with a 23 year pack smoking history, based on smoking 20 a day from the age of 15. Professor Breslin saw no evidence of emphysema, and considered the disability to be mild, noting that Mr Colman is still able to play tennis and golf, go for walks and surf.
31. Psychiatric Condition and Impotence (N2003/1616) Dr Koller, psychiatrist, examined Mr Colman on 5 March 2003 (Tb6). Dr Koller opines that Mr Colman suffers from adjustment disorder, the development of symptoms being in response to identifiable stress, this deriving from painful knees and an ankle injured during naval service. He considered that by resigning from the Navy due to his inability to cope with his responsibilities, Mr Colman negatively compromised his role and status in life, leading to anxiety and depression. Such anxiety lead to impotence. He considered him chronically unemployable, a conclusion somewhat at odds with Mr Colman’s success in his university studies and his intent to progress those studies. He recommends psychiatric treatment, but such treatment has yet to occur.
32. The tribunal notes with some concern the complaints listed by Dr Koller, presumably recording the detail given him by Mr Colman. Of the 9 points listed, only one, which refers to the difficulty in coping with his responsibilities in the Navy, leading to the decision to resign, was referred to in the applicant’s oral evidence.
33. Dr A Dinnen saw Mr Colman on 20 January 2004 (exhibit A1 dated 12 February 2004). He notes that Mr Colman appeared somewhat irritable with a mildly depressed mood. He records that Mr Colman said that his sexual life had deteriorated through the years but he attributed this to age, and that whilst his mood was changing and he was becoming more intolerant with age towards the end of his naval career, he left the Navy because of physical health. His performance became affected by having to work for some 8 to 12 hours at a stretch on the bridge, as well as additional hours as the ship’s gunnery officer. In addition, his hearing loss was interfering with his duties. He further informed Dr Dinnen that he had problems sitting for long periods during his university studies. That also applies when travelling by car, but not by motor bike; it plays on his mind and gets him angry. He had not sought psychiatric attention, other than Dr Koller, because of his ego.
34. In speaking of events during service, Dr Dinnen notes the requirement as an upper deck sentry in Vietnam, where Mr Colman emptied half a clip at a time, two or three times an hour, “as much from boredom as anything else”. He records that Vampire went through three cyclones, “fairly hairy for a 17 year old”. The incidents involving HMAS Betano, the bodies recovered by HMAS Success and his visit to East Timor are noted in brief, as well as “there were some near misses on Success” and an occasion of taking shelter in Marlborough Sound because of dangerous weather. Dr Dinnen notes that thoughts of the trip to Vietnam and the 14 bodies regularly come to mind. Dr Dinnen formed the opinion that Mr Colman had very little operational experience, and further detail of his career, should it become available, might produce more evidence as to whether or not he experienced significant stressors leading to a presumption of psychiatric disorder.
35. Dr Dinnen noted current symptoms as a feeling of depression (for the last 10 years), tearful at times, sleeping problems (although the latter is noted as being a problem in the “last couple of weeks”), impaired concentration and memory, worries about his sexual life and other problems, and anger, seemingly about the way his claim was being dealt with. Dr Dinnen considered that this range of symptoms was associated with a depressive disorder. Whilst he could not exclude the impact of stressful events during 30 years naval service, he nonetheless accepted the interaction between this illness and pain and disability as described by Dr Koller. Finally, Dr Dinnen considered the condition was not such as to prevent Mr Colman working for up to 20 hours per week, albeit in his view there was little motivation to do so.
36. Dr Roberts saw Mr Colman on 14 January 2004. His report (exhibit R1 dated 21 January 2004) refers at the outset to Mr Colman presenting complaints of poor hearing and eyesight, a cold, back, knee and ankle problems, and when questioned, some worry particularly in respect of sex life. The report notes that Mr Colman smokes between 20 and 40 cigarettes daily, but he had smoked infrequently prior to joining the Navy. In respect of the examination by a psychiatrist in the 1990s during his naval service, Dr Roberts records that he was seen a couple of times, and given advice as to relieving stress. No evidence was put forward by either party to confirm or otherwise that such an examination occurred by direction of the Navy. Dr Roberts notes that Mr Colman gave an extensive history of substance use in the past, which at the time would have made psychiatric assessment difficult.
37. In seeking symptomatology of anxiety, Dr Roberts elicited comment from Mr Colman, leading him to state “There is an assertion of concentration impairment secondary to pain – such would be more distractibility than evidence of a pure cognitive impairment – a degree of cognitive impairment would be expected however to arise as a result of substance use. Cognitive impairment was not evident clinically at the time of his presentation and if such is assumed to be present, it would be subtle”. Dr Roberts went on to report “Mr Colman has not one clinical symptom of heightened anxiety of inappropriate degree and therefore no reactive state can be diagnosed in him”. When questioned as to whether he saw himself as having any problems with being nervous, tense, anxious or depressed, Dr Roberts notes the answer as being in the negative some 10 years ago, the affirmative 5 years ago and in the last few years, Mr Colman would have described himself as being anxious or depressed, referring to marital breakup and social factors as being relevant. Dr Roberts records that Mr Colman has sleep difficulties, being “disturbed by tinnitus and aching involving the legs, ankles and back”. His usually does not recollect his dreams, but where he does, they centre around “escaping and arguing”. Mr Colman referred to rage in crowds, and hence he avoids that environment where possible. As to the Vietnam war, Dr Roberts opines that there was nothing in the responses by Mr Colman to suggest anything from that experience gave rise to a psychiatric sequel.
38. Dr Roberts concluded that there was nothing to indicate “any abnormality in terms of my speciality” that could give rise to a diagnosis. He assumed that on the evidence given him, Mr Colman would not presently meet the criteria for substance abuse, although that may have been the case in the past. In finding no evidence of a psychiatric disorder, Dr Roberts opined that current irritability was a manifestation of someone concerned about his current relationships.
39. In response to the report by Dr Dinnen, Dr Roberts provided a supplementary report (Exhibit R2 dated 15 April 2004). He disagrees with the diagnosis of adjustment disorder made by Dr Koller as there is “not one clinical symptom of heightened anxiety” and hence no basis under the International Classification of Diseases criteria or the relevant SoP. He further did not follow the diagnosis of depressive disorder made by Dr Dinnen, there being no complaints or symptoms to support such a diagnosis. He would accept that Mr Colman suffered from a chronic painful condition which may result in depression, but believed there was no evidence that a clinical depressive state had arisen as a result, nor a “clinically significant” symptomatology as required under the relevant SoP. He also takes account of the fact that Mr Colman has made no effort to obtain treatment for a psychiatric condition. In summary, Dr Roberts stands by his original report.
concurrent evidence
40. Dr Dinnen and Dr Roberts gave concurrent evidence before the tribunal. The tribunal stated that the history given by Mr Colman during the hearing was not substantially different to that taken by both doctors. Mr Winship recounted the relevant incidents in the naval career of Mr Colman and confirmed that his case relied upon the criteria at paragraph 5(b) of SoP 58 of 1998 and 5(a) of SoP 59 of 1998, that is “experiencing a severe psychosocial stressor or stressors within the two years (or one year for eligible defence service) immediately before the clinical onset of depressive disorder”.
41. At the outset, Dr Dinnen gave his opinion that Mr Colman had a “mild form of depressive disorder with features that suggest to me the diagnosis of dysthymic disorder although it may not be completely typical but it’s not a major depression”. At a later stage of the proceedings, Dr Dinnen opined that Mr Colman did not have a dysthymic disorder, which would involve “depressed mood, loss of interest or pleasure, manifestations of symptoms used to diagnose major depression such as neural vegetative signs, social withdrawal, cognitive impairment and suicidal ideation”. In relation to SoPs, Dr Roberts referred to “a depression not otherwise specified”, a description acceptable to Dr Dinnen. As to clinical onset, Dr Dinnen understood that problems started 10 years earlier, that is the early 1990s, whereas Dr Roberts considered that a (routine) medical report of 1997 at page 21 of the Medical Records evidenced no psychiatric problems at that time, a position not acceptable to Dr Dinnen as the document could not be considered a psychiatric assessment.
42. As to whether Mr Colman suffered a severe psychosocial stressor resulting from any of the four incidents, Dr Roberts held to the view that none met the criteria of “severe” as defined in either SoP. Dr Dinnen took the alternative view, taking account of the detail and circumstances at the time, particularly Mr Colman’s age and experience in Vietnam, and the implications of his promotion to commissioned rank and the responsibilities that came with that promotion. In reply, Dr Roberts considered there was no phenomenology that would permit a diagnosis of a reactive state, and Mr Colman had never sought treatment for any psychiatric condition. Dr Dinnen considered that he had identified features which evidenced emotional problems, and it was also unrealistic to place emphasis on the need to have sought such treatment given that numerous studies had shown that people with depressive illness are more likely than not to avoid treatment.
43. Dr Dinnen resiled from the opinion expressed in his report that he had not been able to identify specific stressors which had led to the development of psychiatric problems within “three months or even two years other than his orthopaedic problems”, given we now had a better understanding of the issues and relevant times scales of the incidents, including the recovery of bodies, the exposure of the landing craft to cyclones, and the probable clinical onset (which might be linked to an excessive use of alcohol). He maintained that the circumstances of 30 years naval service were relevant, including the impact of not being able to cope with his duties and responsibilities, which led to him leaving the Navy, and these needed to be taken into account. He viewed the incidents both objectively and subjectively and accepted that others might disagree. When pressed by the tribunal, Dr Dinnen considered the occasion of picking up dead bodies was a “good indication of his worst psychosocial stressors…but certainly if I accepted psychosocial stressors are at a lower level of severity than a severe stressor I think they would all qualify”.
44. Dr Roberts accepted that Mr Colman had problems of pain, impotence and concerns at his relationship with his partner, but they were not problems that would fulfil a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). In respect of the earlier agreed “depression not otherwise specified”, he and Dr Dinnen agreed to disagree on the physiological features that might be considered in relation to anxiety, and the relative values that might be placed on DSM-IV or International Classification of Diseases, 10th revision (ICD 10) in reaching a diagnosis.
45. In response to Mr Bunn, Dr Dinnen confirmed that Mr Colman’s condition evinced some pathology, “albeit relatively minor” but in essence that was sufficient in his view. It was also supported by dysfunctions other than being depressed or anxious, such as the demands physically placed upon him as a watchkeeping officer, and the limitations of function causing him to leave the Navy prematurely. Dr Dinnen saw that early resignation, and his attendance at university, given his relatively young age, was reflective of a reduction in productivity. The circumstances of his more recent marriage and current relationship also illustrated a limiting function. Dr Roberts did not believe that the history and limitations put forward by Dr Dinnen was sufficient to allow a diagnosis of depressive disorder, and what he termed impulsive acts were not reflective of a condition of depression.
submissions
46. Mr Winship submitted that the facts in respect of the claim for chronic bronchitis and emphysema meet factor 5(a)(ii) of SoPs 73 and 74 of 1997, which states:
“(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
smoking at least ten (fifteen in the case of SoP 74) pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, …”
That level of consumption was supported by Dr Breslin. The only contention was whether Mr Colman’s defence or operational service played any part in the contribution to that habit. As noted earlier SoP 30 of 2004 (31 of 2004 relating to defence service) has commenced and has revoked the earlier SoP. The equivalent factor, factor 5(a), is more beneficial for the veteran as the number of pack years has been reduced to 5 years in relation to operational service and 10 yeas in respect of defence service.
47. Mr Winship contended that Mr Colman did not have a habit prior to joining the Navy, his smoking to that stage being by way of experimentation as might be usual in a boy. At HMAS Leeuwin at the age of 15 and a half, the evidence is that he was permitted to smoke, and was also subject to peer pressure. Mr Winship contended that the full-time smoking habit resulted from the deployment of Vampire to Vietnam, the circumstances of that period having been described in evidence. Mr Winship postulated that the causation element was linked to the cultural buildup of schooling, being in a war zone at the young age of 17, the stressful encounters in Vietnam, subsequent defence incidents and the increased responsibilities thrust upon him when promoted to officer with increasing stress, resulted in Mr Colman maintaining a habit that remains to this time.
48. In respect of a psychiatric condition, Mr Winship submitted that depressive disorder was the appropriate diagnosis, as given by Dr Dinnen, who said that Mr Colman had a “marked impairment of function”, a situation agreed by Dr Koller who had recommended psychiatric treatment. He suggested that the pursuit of studies rather than employment since leaving the Navy was a further indication of impairment. He noted that Dr Roberts accepted problems associated with marital circumstances, and suggested that his long naval career may have played a part in those difficulties. Dr Dinnen had referred to sleep problems, irritability and anger as an indication of a pathological reaction. He submitted that the tribunal must look at the perception of Mr Colman in an objective way, taking account of subjectivity, and accept that he did suffer severe psychosocial stressors, particularly the incident of recovering bodies in 1989 when serving in Success, which was within a year of his indication in his claim (Tb5) that he first became aware of symptoms in 1988. In response to the tribunal, Mr Winship confirmed that the claim for a psychiatric disorder was based on clinical onset occurring during the period defence service, and not operational service, although he opined that operational service in Vietnam may have made a contribution.
49. In conclusion he submitted that Mr Colman satisfied, factor 5(a) of SoP 59 of 1998, which states, on the balance of probabilities:
“(a) experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder”.
50. At the outset of the hearing, Mr Bunn accepted the diagnosis of chronic bronchitis. He did not dispute the quantities of cigarettes smoked as calculated by Dr Breslin, but did dispute that such smoking was related to naval service. In drawing on the Full Court decision in Repatriation Commission v Tuite (1993) 29 ALD 609, Mr Bunn submitted that the naval service of Mr Colman was merely a setting for his smoking habit rather than a contributing cause, and the history given at T6, that provided to Dr Breslin and the oral evidence of Mr Colman, were essentially the same. Mr Bunn accepted that Mr Colman started smoking small amounts at 13, but primarily because of the difficulty in getting access to a greater supply. He continued smoking on joining the Navy, this early period being ineligible service. Mr Bunn submitted that whilst the evidence of Mr Colman is that circumstances led to him smoking little during his ship’s days in Vietnam waters, the report by Dr Breslin makes no mention of events or factors at that time causing a variation to a smoking habit. Again, Mr Colman gave evidence that he began to smoke more thereafter, this apparently coinciding with reaching 18 years of age, but Mr Bunn submitted this was at variance with his smoking questionnaire at T6 wherein he states he began smoking regularly, 20 plus cigarettes a day, in July 1970, when he was aged 15½. In essence, said Mr Bunn, naval service was but a setting in which smoking occurred, and not a contributing cause.
51. In respect of the psychiatric claim, Mr Bunn submitted that no such condition has been identified. Whilst Dr Dinnen diagnosed a condition of depressive disorder, he considered this to be mild, and at page 6 of his report he stated that it was not “superficially obvious as the patient appears to be coping adequately”. Mr Bunn questioned whether leaving the Navy was a symptom of depression, as argued by Mr Winship, submitting that Mr Colman’s oral evidence was that he was no longer physically capable of doing his job to the standard he required, rather than any suggestion of depression. Mr Bunn submitted that the evidence of Dr Roberts must be preferred, and no disability could be found in that there was no demonstrated pathology or dysfunction.
52. In the event that the tribunal found that a depressive disorder is present, Mr Bunn submitted that none of the stressors put forward in support of the contention of a causal connection were of such a degree as to meet the definition of “severe psychosocial stressor”. Taking a subjective view, it was accepted that at the time of events such as recovering bodies, Mr Colman may have had some feelings of stress and anxiety, but he nonetheless continued with a successful career until this ended due to his physical limitations. Factor 5(a) of SoP 59 of 1998 requires a severe stressor, and for that to occur one year immediately before the clinical onset. The incidents under consideration varied from the recovery of bodies in 1989, and the cyclone in HMAS Betano in 1992 or 1993; in his claim, Mr Colman stated that symptoms became evident in 1988, whereas Dr Dinnen spoke of complaining for 10 years (that is from about 1994) and of the “last 10 years in the Navy “ (that is from 1990). Mr Bunn submitted that if a condition did exist, clinical onset was unclear, nor could it be determined on the balance of probabilities.
53. The tribunal asked Mr Bunn whether a submission was to be made on a report by Dr D Millons, consultant orthopaedic surgeon, dated 9 December 2002 and taken into evidence as Exhibit R3. The response was in the negative in that some but not all of the orthopaedic disabilities had been accepted (knees for instance) as service caused, but his understanding was that these were not being relied upon by the applicant. On the contrary, Mr Winship considered that physical disabilities were relevant to a state of depression, as postulated by Dr Dinnen, and those accepted as service caused should not be discounted. Mr Winship put to the Tribunal that factors 5(c) and 5 (d) of SoP 59 of 1998 should be considered, the former referring to a major illness or injury within one year immediately before clinical onset, the latter referring to suffering chronic pain for at least 6 months duration at the time of clinical onset. After discussion, and observing that the records show that a major injury (motor cycle accident) occurred in 1986, well outside any time frame under consideration, the submission in respect of factor 5(c) was withdrawn. In respect of factor 5(d), Mr Winship accepted the view of the tribunal that there was little evidence to support the contention of chronic pain of six months duration, but submitted that lumbar spondylosis and pain resulting from running could have generated ongoing pain. Mr Bunn referred to the lack of evidence in respect of this submission, and that whilst lumbar spondylosis may have been present in the late 1980s or early 1990s, there was no material to establish that it resulted in chronic pain. Further, the ability of Mr Colman to run in the Sydney City to Surf many years thereafter suggests that a restrictive and painful condition did not occur until recently when he had to cease such pursuits.
consideration of issues
54. N2002/1313 Section 120(4) of the Act defines the relevant standard of proof, that of reasonable satisfaction, that must be applied in determining the appropriate diagnosis of any medical condition. Dr Breslin diagnosed the condition of chronic bronchitis with mild airflow limitation and such a condition was agreed by the parties at the outset. The tribunal accords with this diagnosis, and the issue in this matter is therefore whether such a condition arose from Mr Colman’s naval service. As Mr Colman had both operational service (6 days in Vietnam) and eligible defence service from 7 December 1972 until his transfer to the naval reserves on 15 September 2000, it is necessary to consider the application of both SoPs 30 and 31 of 2004, described as Chronic Airflow Limitation.
55. A reasonable hypothesis has to be raised connecting this condition with Mr Colman’s relevant service. The High Court considered the proper application of s.120 of the Act as it relates to operational service in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 thus:
The position may be summarised as follows: (1) First, sub-s.(3) of s.120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
56. The Full Federal Court has held in Repatriation Commission v Deledio (1998) 83 FCR 82 that, in operational service matters such as this, there are four steps to be considered in assessing whether an applicant will succeed in a claim for a war-caused disability, namely:
"(i) 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.
(ii) 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.
(iii) 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.
(iv) The Tribunal must then proceed to consider under s120(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". (at 97-98)
Does the material point to a hypothesis?
57. It is sufficient at this stage that the material before the tribunal shows that the circumstances of his operational service were such as to lead Mr Colman to take up or increase smoking to the extent of meeting one or more factors in SoP 30 of 2004. It is accepted by both parties and the tribunal that the condition of chronic bronchitis and airflow limitation arose from smoking. The material before the tribunal is such as to point to an hypothesis connecting the disease with the circumstances of that particular service.
Is there a statement of principles in force?
58. Step 2 requires the tribunal to determine whether there is in force a Statement of Principles determined by the Repatriation Medical Authority under section 196B(2) or (11) of the Act. The parties agreed that SoP 73 of 1997 is the appropriate instrument in respect of this condition but, subject to the principle in Gorton referred to earlier, the tribunal must have regard to SoP 30 of 2004 since it revoked SoP 73 of 1997 from 7 October 2004.
Is the hypothesis consistent with the template in the SoP?
59. Step 3 requires the tribunal to form an opinion as to whether the hypothesis is a reasonable one, that is does it fit and is it consistent with the template. The hypothesis raised must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum that must exist, and this factor must be related to Mr Colman’s naval service. The factor in this matter is 5(a) referring to smoking at least five pack years of cigarettes. This factor must be related to operational service, a period of 6 days. Mr Winship submitted that there is material that supports the hypothesis.
60. Within the constraints of his operational service, the evidence before the tribunal does not support the hypothesis being consistent with the template. Mr Colman gave evidence that he commenced smoking intermittently at the age of 13, experimenting as a young boy, aping his parents, as a result of peer pressure, and as financial circumstances permitted. His evidence also implied a consistent desire to do so when financial circumstances permitted, “ when we obtained them, we would have a cigarette”. At times he and his mates would smoke a whole packet. The inference is that this was going somewhat beyond “experimentation”, confirmed somewhat by his evidence about smoking when he joined HMAS Leeuwin at the age of 15 and a half.
61. He stated there was no restraint on junior recruits buying cigarettes or tobacco in the establishment or smoking except when in class or undertaking naval training. That this situation existed for youths aged from 15 and a half was not challenged by the Department. Nonetheless, Mr Colman said that he bought cigarettes, or more often roll-your-own tobacco and papers because it was cheaper and he had limited funds as most of his pay was banked. The evidence of Mr Colman is quite clear as to his smoking habits when his ship was in Vietnam in November 1972. He was apprehensive, and during daylight hours he was employed as upper deck sentry. He stated there was little opportunity to smoke and he probably had a “couple of smokes for stress relief”. No evidence was given as to whether more opportunity to do so presented itself when the ship proceeded to sea each night. His ship subsequently went to Japan, “and at that stage I probably started to smoke more”. He agreed with Mr Winship it was for relaxation, but further said he was not sure why he smoked at that stage, but he was smoking full-time by the time they got to Australia some months later.
62. Although proof of facts is not an issue at step 3 of the tribunal’s decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis. Is the material before the tribunal consistent with the template in SoP 30 of 2004? In this regard the tribunal notes the following passage from the Full Court of the Federal Court’s judgment in Repatriation Commission v Hill (2003) 69 ALD 581:
… the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.(at 597)
63. There is no material before the tribunal to suggest that Mr Colman’s smoking increased dramatically after the Vietnam deployment, or as a result of that deployment. The material does not point to the factor being met, as the hypothesis put to the tribunal does not fit the template in SoP 30 of 2004 in respect of his operational service, the claim in this respect must fail.
64. Where the matter is not related to operational service, s. 120(4) of the Act applies. It states:
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
65. SoP 31 of 2004 requires that the person must have smoked 10 pack years before clinical onset. Dr Breslin considered Mr Colman had exceeded the 15 year requirement in SoP 74 of 1997 figure prior to clinical onset which he understood to be about 1992.
66. The smoking history as given orally by Mr Colman has been defined in brief above. However, contradictions to this history are given in the report by Dr Breslin wherein he states that Mr Colman “started smoking at the age of 13, but increased to 20 a day he says at the age of 15 until the present time…”. In oral evidence, Mr Colman denied that he had had given that history, but the tribunal notes that his response to the smoking questionnaire when claiming for this condition in October 2000, states that he started smoking on a regular basis approximately in July 1970, (when he was 15 and a half) at the rate of 20 cigarettes a day or 1 ounce of tobacco a week.
67. The tribunal must place weight on the history given Dr Breslin and that provided in writing by Mr Colman. The implication is that Mr Colman was developing a habit from an early age, and applying the decision in Tuite as referred to by Mr Bunn, it could be said that naval service merely provided the forum or setting to further increase that habit. Taking account of all the evidence, the tribunal decides to its reasonable satisfaction that there is no causal link between Mr Colman’s smoking habit and his naval service. The decision of the Repatriation Commission of 24 November 2000 to refuse a claim for shortness of breath as subsequently amended to chronic bronchitis and chronic airflow limitation is affirmed.
68. N2003/1616 The second issue before the tribunal is whether Mr Colman has a psychiatric condition, and if so, to establish a diagnosis given that the parties are not in agreement. Should such a diagnosis be established, then the consideration as to whether the condition arose from Mr Colman’s naval service must be made against the principles and factors enumerated in SoP 59 of 1998 only, given the position of Mr Winship that the claim is based on clinical onset occurring during defence service, and not operational service.
69. Again subsection 120(4) of the Act applies both in terms of reaching a diagnosis, on the basis of our reasonable satisfaction (i.e. on the balance of probabilities: Repatriation Commission v Smith (1987) 74 ALR 537) and should it be established that a psychiatric condition exists, in applying the relevant factor(s) from SoP 59 of 1998.
70. The Full Court in Repatriation Commission v Budworth (2001) 66 ALD 285 has described the tribunal’s role where there is a preliminary issue as to whether Mr Colman suffers from a psychiatric condition :
… identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. … Once the decision maker has identified, to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the Commission the reverse onus of proof on the criminal standard in accordance with s.120(1) as qualified by s.120(3). (at 292)
71. It is clear from Benjamin v Repatriation Commission (2001) 34 AAR 270 that SoPs are not relevant to the question of diagnosis, as the Full Court there noted (at 280):
The primary judge observed that, on all the evidence before the Tribunal, exposure to a traumatic event was the primary criterion required for the diagnosis of post traumatic stress disorder. The Tribunal made its diagnosis by reference to SoP 15 of 1994. His Honour correctly held that to be impermissible, as the scheme of the Act contemplates that SoPs be used to determine the standard of proof. SoPs are not relevant to the question of diagnosis.
Where the tribunal determines that the symptoms constitute a disease, the next step is to determine whether a SoP is in force in respect of the disease.
72. Mr Colman gave evidence that he saw a psychiatrist in the 1990s in respect of of sleeping difficulties. There is no report available to the tribunal as to the results of that consultation, nor seemingly did it lead to any medication or treatment. To the knowledge of the tribunal there are no reports of any psychiatric concerns in the Medical Records. The tribunal does agree with Dr Dinnen however, that the routine medical report at page 21 of those documents, as referred to by Dr Roberts, which indicates a normal psychiatric assessment, is of no real value. The report by Dr Koller of 7 March 2003 is the first indication of any psychiatric condition, he having diagnosed adjustment disorder. The tribunal has previously noted some difficulty with that report in that many of the “complaints” were not made in oral evidence at the hearing, or where they were, the emphasis in Dr Koller’s report was not evident. Psychiatric treatment was recommended by Dr Koller, but has not been forthcoming.
73. Dr Koller considered Mr Colman to be chronically unemployable. Dr Dinnen disagreed with this assessment, considering Mr Colman could work for up to 20 hours a week. Dr Dinnen agreed with Dr Koller as regards functional impairments, but considered the appropriate diagnosis to be depressive disorder. Whilst he held to this view in giving concurrent evidence, he considered the condition to be mild, that the pathology was relatively minor and “not superficially obvious”. He observed an occasionally tearful condition in Mr Colman, a mildly depressed mood, and believed there was reduced level of concentration and memory. He considered social factors had a bearing on Mr Colman’s condition, but believed the stressor incidents and the ramifications of 30 years of naval service contributed to a depressive disorder. Dr Dinnen believed recourse to university studies was a reflection of a functional disability to cope as one might have expected, as submitted by Mr Winship.
74. Dr Roberts consistently maintained the position that no cognitive impairment was evident, there was no reactive state, and whilst social factors and marriage breakdown were relevant factors in his life, neither they nor naval service lead to a diagnosis of any psychiatric condition.
75. The tribunal notes but does not place much weight on the report by Dr Koller, having concerns for the reasons earlier given. The tribunal also has reservations as to the diagnosis of Dr Dinnen in that he holds to a mild depression, a mild condition, and acknowledges that pathological indications were not superficially obvious. On the other hand, Dr Roberts maintained the position that there were no indicators that would allow him to make a diagnosis of a condition. The tribunal prefers his evidence.
76. The tribunal also has reservations as to the view that Mr Colman has resorted to study because of an inability or reluctance to seek employment, this being a manifestation of a depressive condition. In the tribunal’s view, no such conclusion can be drawn. Mr Colman is clearly enjoying his studies, is succeeding, and is seeking an honours degree with thoughts of proceeding into a postgraduate stream. The implication is that he has chosen a new career path and is comfortable with it. That he has some physical disabilities or problems, both defence caused and otherwise, and has real concerns about his impotence and social relationships is not disputed. But in the view of the tribunal, on the evidence and to its reasonable satisfaction, they do not indicate a psychiatric condition. That being the case, the decision of the Repatriation Commission of 22 May 2003 to refuse a claim for adjustment disorder, as subsequently amended to depressive disorder, is affirmed. That decision by the Repatriation Commission also refused the claim for impotence. In this hearing, impotence was linked specifically to a psychiatric condition, wherein if such a condition was found by the tribunal, impotence would be conceded. In the event, a psychiatric condition has not been accepted. No submissions were made by either party should that situation arise. Logically, the claim for impotence must also fail, but the tribunal makes no decision.
77. In summary, the tribunal finds that the decisions under review in respect of chronic bronchitis with chronic airflow limitation (N2002/1313) and depressive disorder (N2003/1616) are affirmed.
I certify that the 77 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member:
Signed: .....................................................................................
AssociateDates of Hearing 12-13 July 2004
Date of Decision 14 January 2005
Solicitor for the applicant Mr B WinshipRespondent’s representative Mr N Bunn, Dep’t of Veterans Affairs
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